Earlier this year, when a small Maine town declared “food sovereignty” to exempt its local food sales from food-safety regulations, many wondered: Can they do that?
The short answer is no. The slightly longer answer is that the declaration raises issues of the supremacy clause of the U.S. Constitution, which gives federal law preeminence, and a state’s police powers to protect the public welfare through regulations such as building codes or environmental safeguards.
It’s good political theater to declare independence from such rules, but it’s not legally meaningful.
“They can say it, but the preemption doctrine doesn’t work this way,” said Prof. Margaret Sova McCabe of the University of New Hampshire School of Law and the Food and Drug Law Institute’s Academic Committee.
With some fanfare, Sedgwick, a town of about 1,000 residents, passed the Local Food and Community Self-Governance Ordinance unanimously at a town meeting. In essence, the ordinance says food grown, produced, or processed locally is exempt from any federal or state laws that require food sold to the public to be prepared in licensed facilities open to government inspectors.
Food sovereignty advocates say such government regulations, intended to protect the public from foodborne illness, are costly, burdensome and unnecessary for farmers or amateur cooks trying to make a few dollars selling homegrown or homemade food.
“Food safety is when you can shake the hand that feeds you,” said Deborah Evans, a farmer from the adjacent town of Brooksville and co-drafter of the ordinance. “The rules and regulations as they exist in Maine right now have done a pretty good job of stripping the small-town quality of our towns.”
Two other nearby towns, Blue Hill and Penobscot, later passed nearly identical ordinances at town meetings, while Brooksville narrowly defeated a similar referendum proposal.
All the measures declare that food-safety regulations “impede local food production and constitute a usurpation of our citizens’ right to foods of their choice.” They cite as authority the U.S. Declaration of Independence, the Maine Constitution and a Maine statute that claims, “It is the policy of the State to encourage food self-sufficiency for the State.”
Some ordinance proponents like Evans see a place for food safety rules, they just feel the regulations don’t protect their interests or are unnecessary to regulate their small-scale production.
“If my [product] were to go into grocery stores, then it’s starting to go through a distribution chain where there should be accountability every step of the way,” Evans said. “But when I sell it to my neighbor, do I really need to have a state license to do that? That’s absurd.”
Rural Maine communities are not alone in their sentiment. Many farmers and food activists on both sides of the political spectrum share Sedgwick’s rationale: promoting entrepreneurship and fear of the newly enacted and widely misunderstood Food Safety Modernization Act (FSMA).
The rural food sovereignty movement in Maine is not all that different from the underground “pop-up” dinners showing up in major cities. The so-called “crave” clubs evade inspection fees and licensing laws by operating as a private clubs. Members can join for free, although sometimes they must sign a waiver acknowledging they know the food was not inspected.
Foodies praise the pop-ups as a way to profit from a culinary passion without the start-up costs involved with a permanent location and local regulation.
Back in New England, the Vermont Coalition for Food Sovereignty drew up a proposed resolution last year, a response to the false rumors that the federal government planned a takeover of the food system via the FSMA. The resolution declares a right to save seed, grow and exchange food within Vermont and claims that any attempts to infringe on those rights will be resisted.
However, some say such resolutions are knee-jerk reactions based on misinformation. For one, they seem to ignore that the FSMA exempts small food producers from pathogen-hazard analysis and other requirements imposed
on large-scale food operations. Or that there is help available to attain Good Agricultural Practices (GAPs) certification — not a mandate but something most grocery stores or school districts require of all their suppliers, including those providing locally sourced food.
“Though I understand the town’s sentiment, the FSMA also includes grant programs to help local governments address food safety issues,” noted Prof. McCabe. “In the long run, this type of assistance from the federal government might help local agriculture thrive.”
But not all small farmers take solace in that. For instance, Evans is convinced that qualifying as a small farmer under the FSMA will require three years of bank statements and a laundry list of customers to show that none are from out of state, among other things.
“I think we’re a long ways away from seeing the impact,” Evans said of the new law. “We just know that what we’ve seen of it, and it isn’t looking good.”
Legally speaking, Maine’s status as a Home Rule state is of particular importance to the Sedgwick ordinance.
“Home Rule allows us to make laws that are local and municipal in nature and don’t frustrate the intent of the state laws that exist,” said Evans.
However, like most states, Maine also applies Dillon’s Rule, which limits local authority to only those powers granted by the state.
“Unless the state gave the local government the authority, then the local government doesn’t have authority to regulate,” said Prof. Susan A. Schneider, director of the Arkansas University School of Law’s LL.M. program in agricultural law.
Additionally, Evans readily admits that the ordinance contravenes some state laws. But she believes “If it’s a bad law, it’s no law at all.”
On her farm, Evans raises pigs, goats and sheep, which are slaughtered at a USDA-inspected facility. Most of her meat is either sold at local farmer’s markets or by advanced order. Emphasizing sustainability, she’s working on a winter hay pasture so that everything the animals eat comes from the farm.
“We have a pasture restoration and health program going,” Evans says. “We grow grass to feed the animals and then we eat the animals.”
Where she runs into regulations is with “value added products” such as lard from the pigs, which she processes at home and sells at farmer’s markets to be used in foods or made into soaps.
“According to the state of Maine, any home kitchen that has anything to do with meat or dairy must produce those foods in a commercial kitchen,” Evans said. “I don’t have the money to put a commercial kitchen in an 1830 farmhouse.”
Further, Evans would love to make her sausage at home or add chickens to the farm without outsourcing the slaughter. But to slaughter chickens in accordance with state law, she claims she would need a facility with hot and cold running water, an ice maker, two separate rooms and refrigeration.
Maine already attempts to accommodate small poultry producers, allowing those with 1,000 or fewer birds to slaughter without having to use regulated facilities. But Evans says a commercial style kitchen is still required. Other locals have similar issues with the state’s regulations on products like raw milk, which can be sold legally in Maine but must be labeled as not pasteurized.
While the food-sovereignty ordinance purports to let locals avoid these regulations, its chancing of standing up under legal scrutiny are slim.
“There is no citizens’ right to foods of their choice in the legal sense,” said McCabe. “The [Supreme] Court has consistently held that the commerce clause reaches intrastate actions that have interstate impact.”
Further, a state’s police power allows it to regulate public health issues. For example, environmental codes and road safety laws also can affect the profitability of some industries, but the state has an interest in enforcing these regulations as a matter of public health. This allows a state to prohibit or limit the sale of food such as raw milk, not just require a warning label. But the degree to which these regulations affect local producers is debatable.
“This is, as they say, a solution in search of a problem,” said Schneider. “To the best of my knowledge, the only area where a person is restricted is if a particular food is found to be dangerous … Can I give my children contaminated water if I choose to do so? These are issues of science and of public health. There is no fundamental right at issue.”
While the ordinance might not stand up under legal scrutiny, McCabe says what this debate really underscores is that local food producers feel the regulators have failed them.
“I think many citizens feel science-based regulation and agricultural policy based on the commerce clause allows corporate interests and ‘big government’ to overlook local concerns,” said McCabe.
Evans would agree. As an example, she says her friend who runs a large sausage-making facility in Boston is often pushed by the USDA to include more nitrates in the meat as a preservative.
“They want it to be able to go across the country and sit on a room-temperature shelf for about a month and not kill anyone,” said Evans. “It’s all about the money first. It’s got nothing to do with what’s good, bad or environmentally friendly.”