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.