The increasing popularity of municipal regulations on food production in Maine can attract federal preemption challenges.
For nearly a decade, in response to the growing food sovereignty movement by small-scale farmers, Maine has done so experimenting in a radical self-government over food production. During this time state efforts had clashed with the federal food safety regulatory regime that was overseen by US Department of Agriculture (USDA) and US Food and Drug Administration (FDA). Despite the movement for food sovereignty growth and success, the potential for federal preemption that always exists threatens its long-term survival.
The Maine food sovereignty movement secured its first major policy victory in 2011, when, in response to grassroots pressure on the state to protect its small-scale farmers, the Legislature of Maine passed joint resolution “to oppose any federal law, law or regulation that seeks to threaten our human rights to save seeds and grow, process, consume and exchange food and agricultural products” within the state. Joint resolution is not a law but more than that express “Special recognition or opinion” —in this case, vocal differences of opinion with the federal government.
That same year, the municipality began to adopt food sovereignty regulations (FSO). FSO model stated that his authority derives from “inherent, irrevocable, and fundamental rights of the citizens of the city for self-government,” as well Maine Constitution and house rules Constitution. Some FSO go furthermore, adding that “it is against the law for any law or regulation adopted by the state or federal government to interfere with the rights recognized by this regulation.”
Legal commentators in general is assumed that this procedure will be preceded by state and federal law but will still provide a strong expressive function. Four months later, Maine suing Farmer Brown, a small dairy farmer for selling raw milk without a license, testing legality of the FSO. Maine Supreme Court avoided determine whether the state law precedes the FSO and decides against farmers for other reasons.
Despite a joint resolution, without state authorization, the specter of state preemption remains – that is, until 2017 when grassroots pressure makes the governor sign the law. Maine Food Sovereignty Act (MFSA). Action allowed municipalities to adopt FSO which will replace state and federal regulations, are subject to certain conditions which are not heavy.
But the state is not the highest authority in regulating food. Although states adopt their own food regulations in accordance with and in accordance with federal regulations, federal law requires states to ensure that state and local requirements are at least as stringent as federal requirements. Country can, too operate their own meat and poultry inspection program if they meet and enforce “at least the same” requirements imposed by the federal government. Maine is one of 27 states that have USDA make it possible to inspect smaller meat processing facilities.
Because of the federal supervisory regime’s expansive authority over food, the MFSA surprisingly ruffled the USDA’s fur. A few weeks before the country’s laws take effect, the USDA shipped letter to the governor threatening to transfer meat and poultry control from the state to federal inspectors. USDA debate that Maine cannot ensure that its state and local requirements will be as stringent as federal regulations, bearing in mind that Maine, by applying the MFSA, has declared municipal sovereignty over food regulations. If the USDA is followed up with the threat, only the USDA facility will be legal, which is this farmer debate, will prohibit the sale of processed meat at current state-licensed facilities, force state facilities to close, and paralyze many state family farms.
To avoid such results, state legislatures was called in emergency session to change MFSA. The amended version substantially eroded the power of cities by stipulating that the state would continue to request state inspections and licenses in accordance with federal laws for meat and poultry. MFSA now limit local control over products to situations that involve face-to-face interactions at actual food production – agricultural sites, not farmers’ markets.
This year, 73 cities in Maine have adopted FSO, affecting about 187,260 people. Twenty-six of these cities passed such procedures in 2019 alone, and many others is expected follow. The USDA and FDA have so far remained silent, despite legal scholars to debate that the specter of federal preemption still appears in the background.
However, federal silence provides an opportunity for the movement for food sovereignty grow across Maine and even expand to another state – at least for now. The amended MFSA no longer clashes with the USDA authority, and only the FDA had been authority over products entering trade between countries. However, if the movement for food sovereignty continues to grow, it will probably reach the point where intrastate trade is effective Becomes trade between countries. Decree of the US Supreme Court in 1942 in Wickard v. Philburn, followed by a 2005 decision in Jakarta Gonzales v. Raich, both support the FDA’s authority over intrastate activities that substantially affect trade between countries. If enough parents buy their food from farmers covered by the FSO, they can have such an effect.
Consistent federal court decisions was found that interstate trade requirements pose “no obstacles” to FDA regulations regarding even “activities that appear to be fully intrastate.” The question then becomes: at what point will the FDA object to the Maine self-regulation project?
Given the FDA for a long time the opposite for raw milk (one of the main products distributed on local farms under MFSA), the FDA may be more willing to challenge the food sovereignty movement. For example, in response to a failed 2010 lawsuit against the FDA that sought to reverse the state’s ban on raw milk, the government respond that “there is no historical tradition ‘rooted in’ about unlimited access to all types of food.” His argument rejects the right to choose food to be bought and consumed. The FDA is also explicit be warned towards raw milk consumption but noted that it tolerates intrastate distribution.
The Maine food sovereignty movement could eventually become a victim of its own success – if it grows enough to affect interstate commerce and if the FDA decides to challenge it. To date, however, the most obvious threat to food sovereignty is the FDA authority which is widely interpreted and its dislike of raw milk.