From Tenth Amendment Center
AUGUSTA, Maine (Sept. 14, 2017) – Maine Gov. Paul LePage has called for a special emergency session of the legislature to roll back a food sovereignty bill he signed into law earlier this year, after the federal government threatened to take over meat and poultry inspection in the state.
Sen. Troy Jackson (D-Aroostook) sponsored Senate Bill 725 (LD725). Titled “An Act to Recognize Local Control Regarding Food Systems,” the legislation gives local governments the authority to enact ordinances regulating local food distribution without state interference. The new law not only takes a big step forward for food sovereignty and local control by reducing state regulation, it also creates an environment hostile to federal regulations and can potentially nullify some FDA and USDA edicts in effect.
Practically speaking, the law eliminates state licensing and regulation requirements on local, direct producer to consumer sales, and allows local communities to create their own networks of distribution and regulation.
“Pursuant to the home rule authority granted to municipalities by Title 30-A, section 3001 and by the Constitution of Maine, Article VIII, Part Second, and pursuant to section 201-A, and notwithstanding any other provision of law to the contrary, a municipal government may regulate by ordinance local food systems, and the State shall recognize such ordinances. An ordinance adopted by a municipality pursuant to this section must apply only to food or food products that are grown, produced or processed by individuals within that municipality who sell directly to consumers.”
Under the new law, all food products produced for wholesale or retail distribution outside the municipality will remain subject to all state and federal laws.
LD725 passed both houses of the Maine legislature by wide margins and enjoyed widespread popular support. Food for Maine’s Future acting executive director Betsy Garrold told the Bangor Daily News she was fighting back tears of joy when she heard LePage had signed LD725.
“This means face-to-face transactions are legal if your town has passed a food sovereignty ordinance [and] you can sell food without excessive government regulations, If we can feed ourselves, no one can push us around.”
But the federal government has other ideas. It intends to maintain strict control over Maine food production and distribution – even at the local level. On July 6, the USDA sent a letter to the Maine Department of Agriculture threatening to take over all meat and poultry inspections in the state if the law goes into effect. The feds require state meat and poultry inspection programs to be “at least equal to” federal inspection programs. The USDA said it is “concerned the Food Sovereignty Act, if implemented as currently written, would contravene Federal food safety laws and regulations.”
LePage immediately caved. He responded to the letter by calling a special session to make the new Maine law federally compliant. He said in a letter to legislators that meat and poultry needs to be excluded from the law so that the state can continue to enforce its inspection regime even at the local level.
“LD725 needs to be amended immediately to exempt meat and poultry and allow these facilities to continue to be inspected by state officials. If the law is not changed, five state licensed facilities, 30 custom services, 51 small facilities for poultry processing, and 2,714 small retail processing facilities will switch from state oversight to federal inspection … The Maine Meat and Poultry Inspection program operates under a federally approved delegation of authority, which is only considered valid if their jurisdiction extends statewide.”
Federal Control
LePage’s letter reveals just how much power the federal government exercises over state food regulations. You can call them state regulations all you want, but the feds effectively dictate their provisions. Then they leave it to the state to enforce them.
While LD725 doesn’t directly address federal regulations, it nullifies them in effect. Since the state enforces the federal laws, any reduction in state enforcement also impacts federal enforcement. If the state will not interfere with local ordinances under LD725, it also means it will not enforce FDA mandates that conflict with local law. Should the feds want to enforce food laws in Maine municipalities, it will have to do so by itself.
And that’s exactly what the feds are threatening to do. If the legislature doesn’t amend the law, the UDSA will officially place Maine on “designation status.” You can read how the process works here.
The Right Response
Instead of bowing to federal pressure, the legislature should ignore the governor and refuse to change the law. Let the feds take over meat and poultry inspection in large facilities. What difference would it make? Why use state resources to enforce federal mandates in the first place? Since the feds dictate the inspection and licensing requirements anyway, let them use their own personnel and resources to enforce them.
Meanwhile, farmers and producers in local areas can sell directly to their customers with no interference. You can rest assured the feds don’t have the resources to police a farmer selling raw milk in some little town in upstate Maine without state help.
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 will likely have a similar impact on USDA and FDA regulation. It will make it that much more difficult for the feds to enforce their will within the state.
It shouldn’t surprise us that LePage wants to cave to the feds. He has no sense of the states preeminence in the Constitutional system. Instead of protecting the people of Maine from overreaching and unconstitutional federal overreach, he begged the feds to trample on his state’s sovereignty when it comes to marijuana. Now he’s inviting the feds to roll over the will of Mainers when it comes to food sovereignty.
LePage Doesn’t Get It
LePage said state meat inspection operates under a federal delegation of authority. But the federal government doesn’t have any such authority to delegate. 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.
LePage has a responsibility to stand up against federal overreach. He swore an oath to defend and protect the Constitution. But he doesn’t get it. The legislature should ignore him and stand its ground. Let the feds try to enforce their unconstitutional acts. Don’t be complicit in their usurpation.
Mike Maharrey
September 14, 2017 at 11:56AM
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