This past week, I read Utah’s S.B. 34 titled “Production and Sale of Food in Utah Revisions,” along with its New Hampshire counterpart, H.B. 1650-FN, called “Commerce in Food in New Hampshire.”  As any lawyer would, I immediately asked myself, “what are these pieces of legislation really trying to do?,” and, of course, “are they constitutional?”  I’ll get to those questions in a moment.  Here are the two bills:


The Utah bill, S.B. 34:

Prohibits federal regulation of an agricultural product that remains in Utah after it is made, grown, or produced in Utah;

Allows a person to identify certain agricultural products by indicating that the products are “Made in Utah,” “Grown in Utah,” or “Produced in Utah;”

Prohibits a person from claiming that an agricultural product was made, grown, or produced in Utah if the product is not a Utah agricultural product; and

Makes it a class A misdemeanor for a person to enforce federal regulation of a Utah agricultural product that remains in Utah.

Under the bill, the definition of “Utah agricultural product” is an agricultural product that is entirely, (i) made in Utah, (ii) grown in Utah, (iii) produced in Utah or produced with an insignificant part of a basic or generic material that is acquired from outside of Utah.

I guess that could mean made/grown/produced in Utah and a little bit in China?


Perhaps even more problematic than SB 34’s possible conflict with Congress’s power under the Commerce Clause, is that SB 34 creates criminal liability for state or local officers trying to enforce federal law. This is a conflict with federal law if ever there was one, presuming, of course, that Congress (and its statutorily created agencies, the FDA and USDA) had the constitutional power to regulate the conduct in the first place.

The New Hampshire bill, HB 1650-FN:

Like Utah’s bill, this bill seeks to 

Exempt foodstuffs grown or produced, and then sold, in New Hampshire from federal regulation if the product is labeled “Made in New Hampshire;” and,

Provides penalties for both agents attempting to enforce federal regulations and for producers and processors who label their food as “Made in New Hampshire” when it does not meet “Made in New Hampshire” requirements.

According to the preamble, the purpose of the New Hampshire bill is to allow for locally produced food products to be sold and consumed within New Hampshire and to encourage the expansion and accessibility of farmers’ markets, roadside stands, farm and home-based sales, and producer-to-end-consumer agricultural sales.

First, these bills seem to lack any clear point.  The sale of local food certainly is not improperly impeded by the fact that there are federal laws that bear on the production of that food. And clearly, these bills are not motivated by a concern for the public’s safety. Instead, these bills are just a effort to piecemeal these states out of an entirely constitutional regulatory scheme that, like it or not (and pretty clearly, they don’t like it) allows for federal regulation and oversight over a broad range of food producers and food producing activities.  Even New Hampshire’s slogan “Live Free or Die” must recognize the federal government’s constitutional role in our society.


On that point, exactly what is the federal government’s power to control the methods and manners by which our food is produced and sold?  Most will immediately jump to the Commerce Clause of the U.S. Constitution. Undoubtedly, this powerful set of words is a part of the equation, but it is only a part. The federal government not only has plenary (meaning complete and all encompassing) power over interstate commerce — i.e. commerce between the states — but also can constitutionally undertake any act, so long as it does not infringe on some individual right guaranteed by the bill of rights or some power granted to another branch of government, that is “necessary and proper” to the furtherance of its enumerated power over interstate commerce.


Just words? Think again. A little more history:  The federal government is one of enumerated powers, meaning that it can act only where it has the constitutional authority to do so.  As James Madison wrote:

[t]he powers delegated by the proposed Constitution to the federal government are few and defined.  Those which are to remain in the State governments are numerous and indefinite.

The Federalist No. 45, pp. 292-293 (C. Rossiter ed. 1961).  Among the powers specifically delegated to the federal government is the power “[t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”  U.S. CONST. art. I, § 8, cl. 3.  The “commerce clause” has, of course, become a particularly potent regulatory enabler that, as a result, has spawned a notoriously complex body of case law. See generally United States v. Lopez, 514 U.S. 549 (1994) (Kennedy, J., concurring). For present purposes, however, it suffices to say that the Commerce Clause has provided the constitutional authority for a great many landmark legislative and regulatory measures.

The Supreme Court’s interpretation of these powers has produced a complex line of case law that contemplates the rightful regulation of things that appear to be even intrastate matters–i.e. local actions that do not involve the sales of goods and services across state lines–as long as those matters have a “substantial economic effect on interstate commerce.”  See Wickard v. Filburn, 317 U.S. 111, 125 (1942) (emphasis added).   “[E]ven if appellee’s activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce.”  Id.

This is mere food for thought, as it remains to be seen how the actions that are seemingly insulated from federal reach by the Utah and New Hampshire bills actually affect interstate commerce.  The crafting of the Utah and New Hampshire legislation to require the production (well, maybe not all of it) of the food in state and that it be consumed or remain in state (hmm, what about Internet sales and roadside stands or farmer’s markets near state borders?), at most allows these states to walk a fine line around the Commerce Clause.

And then, again, there are the provisions in these bills that seek to criminalize any action taken to enforce a federal law that is in conflict with the dictates of these bills.  Even the bills themselves acknowledge the potential tension with the Supremacy Clause of the U.S. Constitution (Article VI, Section 2):  “This Constitution, and the Laws of the United States . . . shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”

The Utah bill’s legislative analysis acknowledges that the United States Supreme Court has “long recognized that state laws t
hat conflict with federal law are ‘without effect,’ ” Altria Group, Inc. v. Good, 555 U.S. 70, 76 (2008), quoting Maryland v. Louisiana, 451 U.S. 725, 746 (1981), and has further held that an individual cannot be guilty of a state crime if the individual was acting necessarily and properly under the authority of the laws of the United States. Cunningham v. Neagle, 135 U.S. 1, 75 (1890).

The only relevant question is whether Congress, again through its statutorily created agencies FDA and USDA, has the power to regulate, or create the law that is in conflict with the Utah or New Hampshire law, in the first place.  If so, there is an unconstitutional conflict with the Supremacy Clause, and these states laws are of no force and effect.

Again, on this question the Necessary and Proper Clause speaks loudly. Properly created federal agencies like the FDA and USDA have the constitutional power to make any regulation that is both necessary and proper to the effectuation of its constitutional authority over interstate commerce.  And this, as the Supreme Court said in Wickard v. Filburn, potentially reaches even activities that appear purely local in character.


At best, the Utah and New Hampshire bills raise a number of Constitutional concerns.  At worst, we should all just view these bills for what they really are:  likely misguided attempts to address the concerns of just a few about feared governmental intrusion into our private lives.  I’m all for freedom, but not every guy who espouses the power of his constitutional rights and liberties is correct in his analysis of constitutional jurisprudence.  I would say that the supporters of these bills have conscientiously walked a fine line between constitutional right and wrong, and have done so in a basically empty manner.


What do these bills really accomplish?

More to the point, what are Utah and New Hampshire farmers and food producers afraid of?  Are they really afraid of the FDA and FSIS regulating food safety within the state, especially when it is likely that the food may cross state boundaries?  And, why would the legislatures even consider laws that are likely unconstitutional?  Is it to curry favor with constituents, or stick a thumb in Uncle Sam’s eye?

The point should be to produce safe food, not to push legislation that essentially meaningless.

  • WC

    Thank you for the interesting article. However, you only touched on the real problem. The “Laws of the Land” are given to be locally enforced when those laws do not extend without the state. This is why we have state police departments. Giving the FDA, ASIS, and USDA the authority to “act” on regulatory guidelines on purely intrastate matters is unconstitutional not only in most states constitutions but on the basic level of the US Constitution.
    The Food Safety Bill (formerly The Safety Modernization Act) now goes beyond establishing the guidelines for Food Safety but establishes the enforcement of those guidelines , punitive fees for failure to comply, and establishes no funding for the increase in needed manpower to accomplish these tasks. In truth, the states already have a system in place that monitors and addresses oversight of existing food safety statutes. Now the Federal Govt. wants to create a redundent layer of beauracracy at the cost of states’ rights. This is what Utah and New Hampshire are fighting.

  • Tom Skillman

    Didn’t we learn from the recent federal financial crisis that cutting back on regulation can have disastrous results. Did banking deregulation save us money, when now we see the cost in lost jobs and home mortgage under water.
    Food safety regulations and their implementation may need improvement, but no regulation is guaranteed to lead to abuse, with the state’s constituents bearing the cost, not in dollars but with their lives.

  • Sue McLeod

    Perhaps if the FDA and FSIS could manage to regulate for safer food bills such as those from NH and Utah would not be necessary? Yet we see that the FDA still believes that GMO’s are safe and that feeding cows chicken manure is a perfectly legitimate farming practice.
    Feared government intrusion? Perhaps there is some foundation to that fear. Ever tried to sell raw milk?

  • Sue McLeod

    Let’s also not forget that this is the same Federal Government that is allowing agri-business to self regulate.

  • Mark Jones

    Most folks either forget or never learned that the commerce clause was never understood to allow the federal government to come in and regulate anything happening inside the states. Then FDR got elected and got his people into the courts and the commerce clause was used as an excuse for the federal government to do whatever it wants to do.
    When the constitution means whatever you want it to mean then there is no constitution. If you don’t believe that then go read the Chinese constitution. It actually reads quite nicely. Too bad there are a bunch sociopaths running their governerment.
    I think there’s a lesson in there somewhere. From a food safety perspective, some folks argue that states are incapable of regulating their own food industries. From what I’ve seen and heard about the USDA, I don’t buy that for one second.
    Next they’ll be telling us we need one-world-government to have uniform food regulation in an environment where international trade is increasingly prevalent.

  • Hortense

    A declaration of “Made in Utah” or “Made in New Hampshire” becomes a solemn promise food has been haphazardly manufactured without regard for customer safety. What’s so special about that? Don’t shoppers in Utah and New Hampshire enjoy adequate access to foods labeled “Made in China” or “Made in Mexico”? Misguided is the only explanation for such bizarre behavior on the part of state legislatures. And much too full of themselves: “Made in New Hampshire”, what a hoot!

  • Bill, once again great article and discussion! As a regulator here in Utah I’ve been tracking this bill quite intently since I could be prosecuted for not following it. Now, what most people don’t understand, especially the sponsors of SB 34, is that the Utah Department of Agriculture and Food (UDAF), the agency most affected by this bill, already has adopted federal regulations. This means that the federal food safety laws this bill wants to take away, are now Utah food safety laws. They would have to also make state law invalid if they wanted to protect local farms from federal regulation. I had a recent conversation with an inspector from UDAF and they see this bill as dead on arrival.

  • Hmmmm, as a New Hampshire resident I don’t like the idea of being called “full of ourselves” since we are nothing like that. I really have no idea why my state is doing this and I certainly don’t agree with everything they do. But then again, most of the things any form of government be it state or federal don’t make any sense to anyone but the persons benefiting from it. To understand it, I’d have to dig and look for who really introduced this bill and ask them why. Even then I may not get a straight answer but I don’t see that happening in any state. NH is no different.
    Going to the grocery stores in any state, including here has become a “buy at your own risk” thing to do. I feel like I don’t even know what to eat anymore! Vegetables that kill over 30 people! Most of them in the store are moldy and gross and squishy. I buy all of my produce now at local farmer’s markets. And as far as meat, it’s a roll of the dice now isn’t it.
    Apple juice with arsenic, rice with arsenic, OJ with pesticides, on and on and on!!! Let’s all just agree that our food is no longer doing what it’s supposed to do for our bodies but the complete opposite. And it’s because of man’s constant need to take short cuts, make more money and not care who gets hurt from it. GREED has many definitions and it all impacts our safety and livelihood. No matter what area it’s coming from. Especially these days.

  • Catherine J Frompovich

    Perhaps this is an ‘in your face’ attempt at enforcing states rights and the 10th Amendment to the U.S. Constitution? Maybe states with rather conservative constituents are concerned about how constitutional rights are being abrogated constantly and particularly by federal agencies instituting corporate governance, e.g., FDA mandating no labeling of GMO food products, that is getting out of hand and making life miserable for everyone. Ever think of that?

  • Steve

    RE: Bill’s ” More to the point, what are Utah and New Hampshire farmers and food producers afraid of?…….. Is it to curry favor with constituents, or stick a thumb in Uncle Sam’s eye?”
    The central question for more and more citizens who become active in the Good Food Movement is: whose interests does FDA/USDA/EPA and other food sub-agencies really represent, anyway? There is considerable evidence that the revolving door between government and the regulated businesses has filled our regulatory agencies with food industry boosters –resulting in a virtual corporate-centric cultural takeover of their functions. The non-political appointee apparatus of our federal bureaucracies have taken on a life of their own — remaining in place, unelected, even in administrations that have tried to do something about it..
    Akin to Woody Guthrie’s songs about the rich and powerful robbing citizens “with a fountain pen” — this also holds true for those who have worked their way into protected positions of power to wield regulations (in the name of public safety) to regulate smaller scale competitors out of business.
    We should really be talking about this in terms of “food sovereignty” — before all we are left with is a totally (instead of partially) captive food supply that only features a “choice” between beautified farmesque brand images that all produced by the same unidentified 4 or 5 vertically-integrated corporations, where most (instead of some) of the farmers are serfs under captive contacts and laborers are even more disempowered than they are now…
    The growth of inherently self-serving industrialized agriculture and food systems has been going on since the 1950’s — only now are we becoming aware of the ramifications…

  • Frank

    Seems like the hazy concept of “food sovereignty” portends isolationism, aiming to regress local farmers back into subsistence agriculture with the grueling manual labor and grinding poverty that accompanies it. This “restoration” might be acceptable for states like New Hampshire whose agriculture has long since been irreversibly decimated by reforestation, land development and real estate speculation. Not much of an option for states with meaningful agricultural economies. Those vocational farmers will not relish a reversion to peasant class at the hands of upstart suburban political monarchs who take it upon themselves to force a new doctrine of “sovereignty” upon their native yeoman neighbors.

  • Bill, once again great article and discussion! As a regulator here in Utah I’ve been tracking this bill quite intently since I could be prosecuted for not following it. Now, what most people don’t understand, especially the sponsors of SB 34, is that the Utah Department of Agriculture and Food (UDAF), the agency most affected by this bill, already has adopted federal regulations. This means that the federal food safety laws this bill wants to take away, are now Utah food safety laws. They would have to also make state law invalid if they wanted to protect local farms from federal regulation. I had a recent conversation with an inspector from UDAF and they see this bill as dead on arrival.

  • Steve

    I’d say that’s an unsubstantiated, dim view, Frank. First of all look what’s already happened to farmers under the present agribusiness consolidation regime where farmers are now under 1% of the population and the biggest — in states with “meaningful agricultural economies” –are growing vast acreage of highly subsidized commodity crops — for industry, ethanol and inedible food for humans.
    Further, commodity farmers are essentially money launderers for the highly profitable agricultural input corporations — their subsidy payments are quickly turned over to Agribiz to pay for all the land costs, seed, chemical fertilizers, insecticides, herbicides and other pesticides, mega equipment, etc. it takes under “production agriculture” to produce the crop. CAFO livestock “factory farm” farmers are no better than serfs under the yoke of oppressive corporate contracts.
    Unless Big Ag succeeds in muscling it’s way into local food systems, food sovereignty is protective — creating a respectful partnership between eaters and farmers based on full choice– and elevating the health and well-being of both.

  • Samantha

    “…serfs under the yoke of oppressive corporate contracts.”
    Golly gee willikers, somebody’s been guzzling the Koolaid!

  • Michael D. Houst

    The NH bill was supported by the Raw Milk group. The FDA specifically has engaged in legal warfare on raw milk producers solely because they challenge the authority of the FDA. The FDA feeling threatened when people choose to consume a product that may have heath risks (unsubstantiated in this case).

  • Excellent piece. Will keep this one bookmarked for future “It’s not Constitutional” arguments related to the commerce clause. The puppy millers also bring this one up. Repeatedly.
    Michael, are you deliberately ignoring the many stories of people sick from raw milk and raw milk products?

  • Steve

    No kool-aid here — but it seems that somebody’s had way too many Happy Meals…
    Not modern serfdom? Check out Confined Animal Feeding Operations (CAFOs) that have forced smaller operations out of business and now dominate hogs, poultry, beef and other livestock markets. CAFOs contracts require the farmer to construct the steel buildings to company specs — the big loans are predicated on having signed corporate contracts but in ensuing years the terms in the contract renewals can change — and the farmer’s investment is worthless without continuing renewals. Once signed they can’t divulge the terms to anyone. = ahhhh…. gothcha!
    CAFOs are set up so the corporation supplies and owns the piglets/chicks and the (medicated) feed. The farmer/laborer/serf works to feed, raise and manage the livestock, but owns and is responsible for all the animals that die along the way in the cramped factory conditions as well as the odor problems and huge amounts of manure.
    The Justice Dept held hearing around the country on these captive contracts last summer — still no action forthcoming, however…
    Here’s a couple of quotes from an excellent paper, “Do We Need CAFOs” by economist John Ikerd who also calls CAFO farmers “serfs”:
    “So, hog producers are lured to CAFOs by the false promise of a higher total return to management, only later to realize that lower returns per head sold have erased any advantage.”
    “The fact of the matter is that CAFOs are an integral part of a corporately controlled food chain, in which producers have no power to bargain for a profit or even for an equitable return on their investment. Even in cases where producer-owned CAFOs are not yet under corporate contract, they soon will be. As is the case for poultry, and increasingly for hogs, CAFO producers who are not under contract will find they have no markets. And once under contract, they have no bargaining power to negotiate for fair and equitable treatment. In addition, contract producers make none of the important production and marketing decisions, take very little production or market risk, and thus, have little opportunity to realize profits. They are hog house landlords and contract “janitors,” but certainly are not farmers, in any traditional sense of the occupation.”

  • Farmer with a Dell

    How many pigs has John Ikerd ever raised? Sounds like he doesn’t know any more about it than you do, Steve. This cannot possibly be what New Hampshire is afraid of. Maybe they should be a little cautious of your exaggeration, though.