Massachusetts has a long, proud history of farming. Drive into the small towns West of Metro Boston and it’s hard not to notice an orchard, dairy, or signs for one of our many local farmer’s markets. A few minute’s drive from my home will bring you to Bolton – a right to farm community. A few minute’s drive in the other direction, and you’re in Lancaster, where a pick-your-own orchard gave me my first job in Massachusetts, when I moved here in 2001. One more town over from Lancaster and you’re in Sterling, where the Davis family, farming for over 100 years, turned a disaster on their family-owned dairy into Davis Farmland – a local attraction dedicated to educating children and conservation of endangered livestock. All of this, and more, is threatened by the provisions in S 510, The FDA Food Modernization Act.

The Food Modernization Act was primarily written to force American food producers and exporters into compliance with international treaties that the United States has entered regarding the import and export of agricultural products. To the extent that the bill will regulate the exportation and importation of food in international commerce, it is constitutional. However, there are serious constitutional and economic issues with the bill in how it deals with small, local farms.

One of the act’s main initiatives is to make all food produced in the United States traceable. The motives behind this initiative seem honorable on their face. Essentially, the act says food must be traceable in order to protect public health.

If someone gets sick after eating an agricultural product, then the source of their sickness must be traceable back to the producer so that the problem can be corrected. However honorable this may seem, the act exceeds the constitutional authority of the United States government by making its requirements mandatory for small, local farmers whose produce will never enter international commerce. Under the new regulations created by this act, anyone who produces food and gives it away, trades it, or sells it at a local farmer’s market will be classified as a producer subject to regulation and their produce will have to comply with the traceability provisions in the bill. This requirement is in direct violation of the United States Constitution in two ways.

First, Congress is authorized by the Commerce Clause “to regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes.” Food that is produced locally on a small scale with the intention of transferring it within the state where it is produced fails to meet the definition of international or interstate commerce. So long as a Massachusetts farmer is engaging in business completely within the boundaries of the Commonwealth, he cannot be regulated by the federal government per the United States Constitution. Any legal reasoning that claims locally produced food could enter interstate commerce when a resident of another New England state purchases it and transports it into another state is not in line with the original spirit and intent of the Constitution. A farmer growing and selling in Massachusetts, to the exclusion of Vermont, New Hampshire, Rhode Island, or Connecticut has not engaged in interstate commerce. Engagement in interstate commerce should be judged by the actions and intent of the merchant, not the consumer.

Second, S 510 violates the Tenth Amendment and the constitutional understanding of state sovereignty. Massachusetts is not a subsidiary, sycophant, or subordinate of the United States government. By requiring state cooperation in the enforcement and administration of the Food Modernization Act, the government of the United States violates and belittles the sovereign rights and responsibilities of the Commonwealth of Massachusetts. Further, by attempting to regulate farmers who do not engage in international or interstate commerce, the federal government has effectively usurped the right of another sovereign to regulate its own intrastate agricultural producers. Furthermore, by including producers who are not engaged in the businessof agriculture, S 510 would restrict the rights of individual property owners – what right does the federal government have to tell a private landowner he cannot grow food and give it away for free? If S 510 and its equivalent bill in the House pass and become law, Massachusetts will be fully within its Tenth Amendment rights to nullify that law and direct its officials not to cooperate with federal enforcement actions.

Finally, there are serious economic implications for Massachusetts agriculture should S 510 become law. By loading small, local producers with burdensome regulatory costs and time investments, it is not inconceivable that these new regulations would drive many small farmers out of business. According to the Massachusetts Department of Agricultural Resources, there are 7,691 farms in Massachusetts employing 13,545 workers. Total farm cash receipts in 2008 were $489 million with $99 million paid in wages. And these statistics don’t include non-commercial producers, like my coworker who owns a few chickens and sells or gives away the (truly free-range) eggs they produce – she, too, would be subject to federal regulation if S 510 becomes law. Sometimes it’s difficult in the sub-urban hustle and bustle to notice the presence and importance of agriculture in our communities. But consider the ramifications of losing part of an industry that put almost $100 million of wages into the pockets of Massachusetts residents – and imagine not being able to buy those perfect New England tomatoes, organic broccoli, and fresh eggs at your local farmer’s market.

S 510 is just one recent example of the federal government’s never-ending attempt to overreach its constitutional boundaries. And in this example, Massachusetts has much about which to feel threatened – constitutionally and economically. As of this writing, the speculation is that S 510 will proceed to the floor of the United States Senate tomorrow, Thursday, November 18, 2010. You have approximately 24 hours to contact Senators Scott Brown and John Kerry and ask them to oppose passage of S 510.

cross-posted from the Massachusetts Tenth Amendment Center