The Future of Maine’s Food Sovereignty Movement
by   /  Jul 14, 2020

“For nearly a decade, in response to a growing food sovereignty movement by small-scale farmers, Maine has been experimenting in radical self-governance over food production. During this time the state’s efforts have clashed with a federal food safety regulatory regime overseen by the U.S. Department of Agriculture (USDA) and the U.S. Food and Drug Administration (FDA). Despite the food sovereignty movement’s growth and success, the ever-present potential of federal preemption threatens its long-term viability. Maine’s food sovereignty movement secured its first major policy win in 2011, when, in response to grassroots pressure for the state to protect its small-scale farmers, the Maine Legislature passed a joint resolution “to oppose any federal statute, law or regulation that attempts to threaten our basic human right to save seed and grow, process, consume and exchange food and farm products” within the state. A joint resolution does not constitute law but rather expresses “special recognition or opinion”—in this case, a vocal dissent against the federal government.

That same year, municipalities began adopting food sovereignty ordinances (FSOs). The model FSO states that its authority is derived from “the inherent, inalienable, and fundamental right of the citizens of the town to self-government,” as well as the Maine Constitution and its home rule statute. Some FSOs went further, adding that “it shall be unlawful for any law or regulation adopted by the state or federal government to interfere with the rights recognized by this ordinance.” Legal commentators generally assumed that these ordinances would be preempted by both state and federal law but would still provide a powerful expressive function. Four months later, Maine sued Farmer Brown, a small dairy farmer for selling raw milk without a license, testing the FSO’s legality. Maine’s Supreme Court avoided determining whether state law preempted the FSO and ruled against the farmer on other grounds. Despite the joint resolution, without state authorization, the specter of state preemption remained—that is, until 2017 when grassroots pressure led the governor to sign into law the Maine Food Sovereignty Act (MFSA).

The act allowed municipalities to adopt FSOs that would supersede state and federal regulations, subject to certain unburdensome requirements. But the state is not the ultimate authority in food regulation. Although states adopt their own food regulations pursuant to and in compliance with federal regulations, federal law requires states to ensure that any state and local requirements are at least as strict as the federal requirements. States may also operate their own meat and poultry inspection programs if they meet and enforce requirements “at least equal to” those imposed by the federal government. Maine is one of 27 states that USDA allows to inspect smaller meat processing facilities. Due to the federal regulatory regime’s expansive authority over food, the MFSA unsurprisingly ruffled USDA’s feathers. Weeks before the state law was to take effect, USDA sent a letter to the governor that threatened to transfer control of meat and poultry from the state to federal inspectors. USDA argued that Maine could not ensure that its state and local requirements would be at least as strict as the federal rules, given that Maine, by enacting the MFSA, had declared municipalities’ sovereignty over food regulation. If USDA followed through with its threat, only USDA facilities would be legal, which, these farmers argued, would prohibit the sale of meat processed at current state-licensed facilities, force state facilities to close, and cripple many of the state’s family farms.

To avoid such an outcome, the state legislature called an emergency session to amend the MFSA. The amended version substantially eroded municipal power by stipulating that the state would continue requiring state inspection and licensing pursuant to federal law for meat and poultry. The MFSA now limits local control over products to situations involving face-to-face interactions at the site where the food was produced—the actual farm, not farmers’ markets. As of this year, 73 municipalities in Maine have adopted FSOs, affecting approximately 187,260 people. Twenty-six of these towns passed such ordinances in 2019 alone, and many more are expected to follow. USDA and FDA have so far remained silent, although legal scholars argue that the specter of federal preemption still looms in the background.

Federal silence nevertheless provides an opportunity for the food sovereignty movement to grow across Maine and even expand to other states—at least for now. The amended MFSA no longer clashes with USDA’s authority, and FDA only has authority over products that enter interstate commerce. Still, if the food sovereignty movement continues to grow, it may reach the point at which intrastate commerce effectively becomes interstate commerce. The U.S. Supreme Court’s 1942 decision in Wickard v. Filburn, followed by its 2005 decision in Gonzales v. Raich, both support FDA’s authority over intrastate activities that substantially affect interstate commerce. If enough Mainers buy their food from farmers covered by FSOs, they could have such an effect. Federal court decisions have consistently found that the interstate commerce requirement poses “no obstacle” to FDA’s regulation of even “seemingly wholly intrastate activities.”

The question then becomes: at what point will FDA object to Maine’s self-regulatory project? Given FDA’s longstanding opposition to raw milk (one of the main products distributed on local farms under the MFSA), FDA may be more willing to challenge the food sovereignty movement. For example, in response to an unsuccessful 2010 lawsuit against FDA seeking to reverse the agency’s interstate ban on raw milk, the government responded that “there is no ‘deeply rooted’ historical tradition of unfettered access to foods of all kinds.” Its argument rejected the existence of a right to choose which foods to buy and consume. FDA has also explicitly warned against raw milk consumption but noted that it tolerates intrastate distribution. Maine’s food sovereignty movement could ultimately become a victim of its own success—if it grows enough to affect substantially interstate commerce and if FDA decides to challenge it. For now, however, the most apparent threat to food sovereignty is FDA’s broadly construed authority and its distaste for raw milk.”

Food Freedom Advocates Claim Victory in Maine
by   /  July 18, 2017

“Last month, Maine’s Governor Paul LePage signed into law a bill that gives municipalities the power to regulate direct farm-to-consumer sales within their own borders. It’s the third so-called “food freedom” bill—also often called “food sovereignty” bills—to successfully make its way into state law in the U.S.: the first one was signed in Wyoming in 2015, and the second in North Dakota this past April. A wide range of regulations can fall under the term food freedom, including cottage food laws that allow home cooks to sell their products to the public or donate rescued food without fear of liability. But food freedom proponents are hailing Maine’s new law as a groundbreaking win, and one they hope is emblematic of the future success of their movement. The new Maine law is the first to allow municipalities to enforce their own food regulations. In each town or city that passes an ordinance, farmers can now sell their products directly to consumers. But, by potentially bypassing state and federal licensing and inspections that pertain to foods like raw milk, some food safety experts are concerned that the new law may sidestep important food safety precautions.

The effort to pass the bill was spearheaded by Betsy Garrold, president of the board of the nonprofit farmers’ advocacy organization Food for Maine’s Future. “We see [food freedom] as necessary to protecting traditional foodways in Maine, which have been the backbone of the local economy forever,” she said. That economy became threatened in 2009, says Garrold, when the U.S. Department of Agriculture (USDA) “started beefing up its regulatory muscle nationwide. They suddenly came down the driveway and said, ‘You can no longer have a farm store on your farm,’” Garrold said. The USDA’s crackdown was followed in 2011 by the passage of the Food Safety Modernization Act (FSMA), the most significant effort to change food safety laws in the last 70 years. Critics like Garrold saw FSMA as part of a governmental bid to make raw milk sales illegal. Originally, Garrold set her sights on changing regulations for the entirety of Maine—this would have put it in line with Wyoming and its Food Freedom Act, which allows unlicensed sales from farm to consumer statewide. “We’d get bills through the committees in the House and Senate and on to the governor’s desk, and then he’d veto them,” she said. Despite broad-based bipartisan support, “we were losing,” she said. Instead, Garrold and her fellow advocates turned their attention to the task of helping towns and cities to pass their own ordinances.

By 2017, 20 had done so, and three others signaled their interest in hyper-localized food freedom by passing resolutions in support of it. According to Elizabeth Rich, president of the Farm-to-Consumer Legal Defense Fund (FTCLDF), which provided financial backing to the Maine endeavor, the ordinances were possibly unenforceable because they contradicted state law. But they provided evidence of a bubbling resentment of regulation among both what she says are financially burdened small farmers and consumers who prefer, for a host of reasons, to shop or trade with their neighbors. Most people became aware of “food freedom” in the early aughts, when the Weston A. Price Foundation began promoting the health benefits of raw milk (that organization’s president, Sally Fallon Morell, provided the seed money for the FTCLDF, according to Rich). The movement has since attracted supporters from widely divergent ends of the political spectrum—including in Maine. The state’s Farm Bureau, which had previously come out against the ordinances, “backed off and became neutral” during the most recent hearings in the House and Senate, said Garrold. Another group, the Maine Municipal Association, reversed its opposition and testified in favor of the ordinances. And state senator Troy Jackson (D), who chairs Maine’s ag committee and had challenged the wisdom of food freedom, changed his mind and decided to throw his weight behind the bill. Jackson had originally gone into committee hearings with safety concerns—a common point of pushback against these bills.

But as he listened to testimony, his views shifted: “Like they do with Big Pharma and Big Oil, [government] sometimes protects the big dog, and that’s what I saw more and more with food sovereignty,” he said. “As time went on, I felt I was on the wrong side of the issue.” Meanwhile, farmers around the country—particularly produce growers and those processing food on their farms—are working to comply with the new FSMA rules, and many of the farmers Gerrold hoped to shield from federal regulation are—perhaps ironically—exempt from the new rules because they run small operations. In the case of processed food, only businesses averaging more than $1 million in annual sales and employing more than 500 people will have to comply with FSMA rules, for instance. But Roger Noonan, President of the New England Farmers Union, said Maine will still likely figure out a way to satisfy both the FDA regulations and the food-freedom advocates among the state’s larger producers. How the state will achieve that, though, remains an “open question,” according to Noonan. Rich and other food freedom supporters say they are advocates for governmental food safety oversight, but only where they see that it’s strictly necessary. The real place for it, Rich maintains, is in the supermarket, “When you go in to purchase a gallon of milk that came from a factory farm. That’s potentially dangerous stuff,” she said. “But [regulating] transactions between informed, consenting adults, when people know their farmer—that’s no role for government.”

Bill Marler, a prominent food safety lawyer and managing partner of Marler Clark in Seattle, dismisses the idea that regulation is unnecessary. “I’ve certainly seen a number of cases where small producers have poisoned their consumers; those statistics are just harder to track,” he said. Nevertheless, he makes a distinction between what he calls high-risk products such as raw milk, sprouts, and unpasteurized juice—which he says need to be regulated no matter who produces them—and low-risk produce that consumers can simply wash and/or cook in order to render safe to eat. “The real issue, for me, is that people need to understand the product they’re selling or purchasing and its risk profile,” said Marler. “Bacteria and viruses don’t give a heck if you’re Nestlé or Farmer Bob; the rules of safety apply no matter what.” Fortified by the wins in Maine and North Dakota, Rich’s organization is now circling back to work on food freedom laws in Illinois, Mississippi, South Dakota, Utah, and Virginia (all of which attempted, and failed, to pass legislation in the past year). “I’m definitely starting to see more of a push for these kinds of laws,” she said. “We’re on the brink of a huge groundswell of awareness of these issues. For her part, Garrold, though bolstered by the bill’s success, is now holding her breath, waiting to see what, if anything, the federal government will do to try to overturn the law. “We’ve definitely gotten their attention,” she said, “We’re just waiting for the other shoe to drop.”

Maine Town Declares Food Sovereignty
by Amy Halloran / March 10, 2011

“Following the lead of Sedgwick, Maine to exempt itself from state and federal food safety regulations, three other towns in Hancock County are now poised to adopt similar “food sovereignty” measures. Titled “The Ordinance to Protect the Health and Integrity of the Local Food System,” Sedgwick’s four-page document invokes the town’s right to self-governance, and states that local producers and processors may sell food to consumers without licensing. “We have faith in our citizens’ ability to educate themselves and make informed decisions,” reads the ordinance, which was adopted unanimously March 5 at a meeting of about 100 residents. “We hold that federal and state regulations impede local food production and constitute a usurpation of our citizens’ right to foods of their choice.”

Maine’s Department of Agriculture, Food and Rural Resources is taking a wait-and-see attitude on Sedgwick’s self rule. Newly appointed Ag Commissioner Walter Whitcomb said he was aware of the initiative. Prior to assuming his new position, he had toured the area and met proponents of the ordinance. “The Agriculture Department has not been aggressive on this subject, in part because these areas are currently before the state legislature,” said Commissioner Whitcomb about inspection and food processing concerns addressed by both the Sedgwick ordinance and two bills.  “Our staff has been dealing with these concerns for several years, but they’ve come to a head this year.  We kind of wanted that to work through the process before we became more active in enforcement.”

If approved, these two bills — LD 366 and LD 330 —  would further ease regulation of raw milk sales, and exempt farm and homemade food products from certain licensing requirements. Agriculture department officials are preparing testimony on the proposed measures to present once hearings are scheduled. Sedgwick residents aren’t waiting for the state to grant more local control, they’ve seized it. “The [town] ordinance codifies the way that people have been doing food business for a very long time,” said Sedgwick farmer Bob St. Peters, who celebrated the passage of the ordinance by starting a home-based cookie business. If the enterprise is successful, his family can scale up their processing accordingly. The cottage industry route, he argues, avoids a big initial investment. “The direct relationship creates transparency and accountability and all the things you need to ensure a safe food system, and it’s been the way things have operated,” he explains.  “The certifications of home kitchens, the trend toward licensing and bureaucracy has really put a damper on small cottage industries and small farm businesses, and I think this is going to have the opposite effect.”

St. Peters said the Sedgwick ordinance grew out of a controversy over poultry, and a request from small farms slaughtering fewer than 1,000 birds to do so without having to use an indoor processing facility. There was a lot of back and forth debate but, in the end, the small poultry processors’ bid was denied. “We felt like we, as farmers and farm patrons, presented a really good case to the state and they said we can’t help you because our state funding is at stake,” said St. Peters, referring to the state’s fear that it could lose federal funding for its meat inspection program if small producers were exempt from inspection. “So we discussed other avenues,” St. Peters continued, “and some of us were familiar with different local ordinances, some that had passed in Maine regarding GMOs, others that had passed elsewhere regarding corporate personhood.  We felt that dealing with this on a town level was the way to go.”

New England’s strong populist tradition is evident in ordinances banning GMO crops in certain areas. “I think there is a fair amount of authority in a New England town meeting process,” said Commissioner Whitcomb.  “State to state, it’s a little different.  It’s a citizen’s gathering and they have the absolute legislative authority on matters of finance, but they’re also kind of a populist event. “And sending a letter from the state telling a town they can and cannot do something inspires, probably, the opposite reaction.” When a federal animal identification program, to track livestock in the event of an animal disease outbreak, was being discussed in Hancock County, a state representative got a pie of manure in his face. Whitcomb said the state Attorney General’s office is investigating the issue of local food regulation, and is drafting a formal legal response to the town.  Among the concerns to be raised are whether food produced in Sedgwick could be sold out of town or whether the town would have to notify consumers or face liability if food safety problems occurred. “We haven’t found anything in the statute that says that the town can supersede the state on food safety.”




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