AUGUSTA, Me. (Nov. 4, 2021) – On Tuesday, Maine voters overwhelmingly approved a ballot measure that enshrines food freedom in the state constitution. The provisions will protect food sovereignty and set the stage to undermine federal food regulations.

The amendment adds language to the Maine state constitution protecting the individual right to grow, raise, harvest and produce food.

“All individuals have a natural, inherent and unalienable right to food, including the right to save and exchange seeds and the right to grow, raise, harvest, produce and consume the food of their own choosing for their own nourishment, sustenance, bodily health and well-being, as long as an individual does not commit trespassing, theft, poaching or other abuses of private property rights, public lands or natural resources in the harvesting, production or acquisition of food”

The amendment passed by a 60.8 to 39.2 percent margin.

In 2017, Maine enacted a law giving local governments the authority to enact ordinances regulating local food distribution without state interference. Heather Retberg helped create that law. She told Maine Public that it was a good first step toward better food security, but systemic problems with food supply and access remain. She said the new constitutional amendment will set the foundation to address those problems.

“When we see those high rates of hunger, when we see how vulnerable Maine’s food supply is, I really think that’s a helpful metaphor for people to think about with the constitutional amendment. That we are trying to secure a strong foundation under a very unstable food house, if you will.”

Maine Public pointed out that “as elsewhere in the country, Mainers experienced bare meat aisles, rationed eggs, and lack of milk during the pandemic, which in turn drove them to seek groceries from a local food system — which no longer exists in many communities.”

Securing the right to grow and produce food creates the foundation to end state barriers to reestablishing that local system.

Opponents of the amendment reveal why it was so important to pass. Maine state Sen. Jeffrey Timberlake (R – Androscoggin) worried that it could limit state control. He told a Maine TV station that with the amendment, some Mainers might be able to sell or cook food without having to follow government-mandated food safety restrictions. “This is a way to get around food safety laws in my opinion,” he said.

In practice, food freedom flourishes in states where government regulators simply get out of the way. According to a 2019 Forbes article, hundreds of local businesses have sprouted up across three states that have passed food freedom laws in recent years without a single report of foodborne illness. The report throws cold water on Timberlake’s worries. Representatives from health departments in Wyoming, North Dakota and Utah reported exactly zero outbreaks of foodborne illnesses connected to a business operating under a food freedom law. Meanwhile, “the Centers for Disease Control and Prevention investigated and advised the public on 24 multistate outbreaks of foodborne illness, the highest in over a decade, with federally regulated romaine lettuce, chicken salad, and even Honey Smacks Cereal all linked to outbreaks that hospitalized Americans.”

It appears market forces do a better job of ensuring food safety than government regulatory schemes. As one Wyoming farmer and put it, if you produce a bad product, “you’re risking not only your family’s health, but the health of your community, your friends.”

Food freedom laws not only open markets, expand consumer choice, and create opportunities for farmers and entrepreneurs; they take a step toward restoring the United States’ original political structure. Instead of top-down, centralized regulatory schemes, these laws encourage local control, and they can effectively nullify federal regulatory schemes in effect by hindering enforcement of federal regulations. The Maine constitutional amendment gives food freedom activists a tool to fight state government overreach and devolve control back to individuals and local communities.

While state law does not bind the FDA, the passage of food freedom laws creates an environment hostile to federal food regulation in those states. According to Maine Public, “Opponents are skeptical that a state constitutional amendment will carry any significant weight when stacked against a host of federal laws.”

But when the state does not interfere with local food producers, it means it will not enforce FDA mandates either. Should the feds want to enforce food laws in states with food freedom laws, they have to do so by themselves. And they don’t have the personnel or resources to do it.

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.”

Less restrictive food laws almost certainly have a similar impact on FDA regulation. They make it that much more difficult for the feds to enforce their will within the state.

Mike Maharrey

The 10th Amendment

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