CONCORD, N.H. (Dec. 17, 2017) – A bill prefiled in the New Hampshire House would set the stage to prohibit the federal government from regulating food produced and sold wholly within the state as long as it is labeled “Made in New Hampshire.”
A coalition of four Republican representatives prefiled House Bill 1669 (HB1669) in November. The legislation asserts “all foodstuffs that are grown in and remain within the borders of the state of New Hampshire shall be regulated solely by the state of New Hampshire and shall not be subject to federal regulation, nor inspection of growing or production facilities by federal officials or their agents.”
Food producers who want the protection of the law would be required to label their product “Made in New Hampshire.” Producers or processors who sell their products only at farmers’ markets, at roadside stands, or by farm and home-based sales directly to the end consumer would be eligible to apply this labeling. Under the proposed law, these producers and processors would be exempt from federal licensing, certification, and inspection requirements.
State and federal agents who attempt to enforce federal regulations upon foodstuffs labeled “Made in New Hampshire” would be subject to misdemeanor criminal charges. Producers and processors who use the “Made in New Hampshire” label and fail to meet the criteria under the law would also be subject to criminal penalties.
PRACTICAL EFFECTS
As we’ve explained in the past, practically speaking, it would be extremely difficult for the state to prosecute federal agents for enforcing federal law. Under federal statute, any case involving a federal agent acting within the scope of his or her official duties gets removed to federal court. In other words, the current structure of the legal system makes it virtually impossible to prosecute a federal agent in state court. Lawyers for the charged federal agent would immediately make a motion to remove the case to federal district court under 28 U.S.C. § 1442(a)(1). Unless the state judge refused to comply, the case would then be out of state hands.
But even without the threat of prosecuting federal agents, HB1669 would still make it difficult if not impossible for the federal government to enforce its food regulations on products labeled “Made in New Hampshire.”
As we’ve seen with marijuana and industrial hemp, a federal regulation becomes ineffective when states ignore it and pass laws encouraging the prohibited activity anyway. The federal government lacks the enforcement power necessary to maintain its ban, and people will willingly take on the small risk of federal sanctions if they know the state will not interfere. This increases when the state actively encourages “the market.”
Passage of HB1669 would likely have a similar impact on FDA regulation of locally produced and process food, even if the state never prosecuted federal agents. With state agents prohibited from assisting with enforcement of federal law, it would be extremely difficult for the feds to enforce their will within the state. The FDA lacks the resources to do it without state assistance.
While prosecuting federal agents would prove legally problematic, the Supreme Court has firmly established that states can bar their own personnel from enforcing federal regulations or implementing federal programs. Known as the anti-commandeering doctrine this legal principle is based primarily on four Supreme Court cases dating back to 1842. Printz v. US serves as the cornerstone.
“We held in New York that Congress cannot compel the States to enact or enforce a federal regulatory program. Today we hold that Congress cannot circumvent that prohibition by conscripting the States’ officers directly. The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program. It matters not whether policy making is involved, and no case by case weighing of the burdens or benefits is necessary; such commands are fundamentally incompatible with our constitutional system of dual sovereignty.”
Constitutionally, food safety falls within the powers reserved to the states and the people. The feds have no authority to enforce food safety laws within the border of a state. Nevertheless, federal agencies still want more control over America’s food supply, and they go great lengths to get it.
For example, the FDA actively bans the interstate sale of raw milk. But, not only do they ban the transportation of raw milk across state lines, they also claim the authority to ban unpasteurized milk within the borders of a state.
“It is within HHS’s authority…to institute an intrastate ban [on unpasteurized milk] as well,” FDA officials wrote in response to a Farm-to-Consumer Legal Defense Fund lawsuit against the agency over the interstate ban.The FDA ultimately wants to maintain complete prohibition of raw milk across the United States.
However, federal ambitions go far beyond controlling your access to raw milk. In fact, the FDA wants to enforce universal, one-size-fits-all control over everything you eat and drink.
Passage of HB1669 would take an important step for food freedom. It would increase local control and encourage local food production. It would also recognize the fact the one-size-fits-all regulation enforced from the top in Washington D.C. is not necessary for “food safety,” and would take a major step toward nullifying unconstitutional and burdensome federal mandates.
WHAT’S NEXT
HB1669 will be officially introduced when the regular session begins in early January. The bill will be referred to the House Commerce and Consumer Affairs Committee.
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