A legal complaint is drafted challenging the constitutionality of Montana’s popular Local Food Choice Act, Food Safely News has learned. Montana’s Local Food Choice Act exempts homemade food producers from state licensure, permitting, certification, and labeling requirements ( Chap. 04 30).

Jeff Havens, Senior Public Health Sanitarian and Registered Sanitarian since October 2012 for the Montana Department of Health and Human Service’s Food and Consumer Safety Section, is ready with the Plaintiff Pro Se filing in Montana’s First Judicial District Court for Lewis and Clark County.

Montana Gov.  Greg Gianforte and Adam Meier, state Health and Human Services director would be named as defendants.

The Montana Local Food Choice Act was signed into law by Gov. Gianforte April 30, 2021, after passing the Senate 31-to-18 on March 1, and the House on April 9, 70-to-26. As Senate Bill 199, the Local Food Choice Act went through the Montana Legislature mostly, but not entirely, on Republican votes. Its purpose is “to allow for the sale and consumption of homemade food and food products and to encourage the expansion of agricultural sales by ranches, farms, and home-based producers and the accessibility of homemade food and food products to informed end consumers. . .”

According to the draft complaint, the case has been “in preparation for several months, but the plaintiff delayed filing, hoping negative health consequences as a direct result of the new law would be publicly disclosed, new and additional workload obligations caused by the new law would diminish, and Defendant Meier would exercise his constitutional authority to challenge the new law.”

The complaint draft says the issues involved are not being addressed in the best interest of public health and requires the lawsuit to go forward.

“The constitutionality measure at issue is the failure to completely separate the subject of interstate commerce from intrastate commerce in former 2021 Senate Bill 199, rendering its title unclear and the Act void and unequal consumer protection for high-risk canned foods,” the draft continues.

Havens, a resident of Helena, MT, has also served as a Food and Drug Administration (FDA) contract investigator. He also names State Sen. Greg Hertz, R-Polson, MT, as a defendant. Havens contends SB199 “was also advocated by the libertarian-conservative political advocacy group nqm4 “Americans for Prosperity.”

Sen. Hertz was SB199’s chief sponsor. He went along with amending the bill to hold the state’s federally sanctioned meat inspection program harmless,  meaning food produced under the “Choice Act” cannot include meat.    

The draft lawsuit says the Montana Local Food  Choice Act “is negligently silent on the subject of food ingredients and food components that comprise food products..”

Havens wants the Montana court to rule that the “true intent” of the Montana Local Food Choice Act is to “avoid any and all interstate commerce and federal jurisdictional authority over such commercial food.”  He also says the act violates the Montana State Constitution because the bill “negligently fails to completely separate the subjects. of interstate commerce food from intrastate commerce food.”

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