Food fight: federalism, localism, and food sovereignty in Maine and beyond

By Professor Sarah Schindler

sarah-schindlerIf I grow carrots on my small farm, should I be able to sell them to my neighbor without any oversight or regulation from the government? Should I be able to sell them to a restaurant? What if, instead of carrots, I was raising chickens to kill and sell? (Of course, I never would do so, being a vegan animal rights advocate! But let’s assume this is an alternate universe.) How involved should the government be when it comes to small scale, local transactions involving produce and animals raised for slaughter and consumption? And which level of government should set the rules?

The food sovereignty movement has tried to address these questions. Originally, a global peasant farmers’ social movement defined food sovereignty as “the right of peoples to healthy and culturally appropriate food produced through sustainable methods and their right to define their own food and agriculture systems.”[1] Today, food sovereignty advocates often more specifically seek to give local communities control over the way that food is produced, sold, and eaten within those local communities. In the United States, the term has also taken on a bit of a libertarian bent, manifesting as a desire to avoid regulations that currently govern food production.

Maine has long been associated with the food sovereignty movement. The towns of Sedgwick, Blue Hill, and others declared themselves to be “food sovereign” in 2011, and since that time, reporters, law makers, and legal scholars from around the country have been trying to decipher the purpose and effect of these local ordinances. At base, the local ordinances sought to grant to the people of these “food sovereign” towns the “right to produce, process, sell, purchase and consume local foods” as part of their “inherent right to self-government.”[2] Thus, they sought to avoid state and federal regulations controlling the production and sale of local foods. While the towns sought to assert this power as part of their home rule authority, most legal scholars would look at them, consider the principles of federalism, and assume that the ordinances would be preempted by the state and federal governments.

The state of Maine took a step toward clarifying these local food sovereignty ordinances earlier this year, when the legislature voted to approve a law—An Act To Recognize Local Control Regarding Food Systems—acknowledging that municipalities may, pursuant to their home rule powers, adopt food sovereignty ordinances, and that the state would recognize and observe these ordinances. While there have been numerous stories lately about states seeking to restrain or withdraw local power, it is interesting to see a state attempt to move in the other direction. Indeed, without express authorization by a state, even cities with home rule power are sometimes barred from acting in areas that are already heavily regulated. However, if the state gives express authorization to a locality to regulate in a certain area, as the state of Maine did here, that lessens concerns about preemption or about the locality acting beyond the scope of its home rule authority.

However, the story doesn’t end here. The biggest problem with what the Maine state legislature did is this: the state is not the final arbiter in the area of food safety and regulation. Although the state has control over certain areas, there is a massive federal regulatory system, overseen by the USDA and FDA, that governs food production and sales in the U.S.

And, in this instance, Maine’s attempt to strengthen the power of its local governments drew the attention of federal regulators. A few weeks before the new law was set to take effect, Governor LePage received a letter [3] from the USDA threatening to transfer control of meat and poultry from the state to federal inspectors if the new state law went into effect in its existing form.[4] In response, the state legislature called an emergency session and amended their new law, substantially weakening it.

I’ve written about food sovereignty, the power struggles between governments at the local, state, and federal levels, and what other states can learn from Maine’s experiment, in a new symposium piece for the Ohio State Law Journal titled, “Food Federalism: States, Local Governments, and the Fight for Food Sovereignty.” What I suggest is that there is a potentially important role for states to take in empowering and furthering the authority of their localities. However, those states must remember that they should seek to act in areas where the state, and not the federal government, has substantial control.

[1] Declaration of Nyéléni, Feb. 27, 2007, available at http://nyeleni.org/spip.php?article290

[2] Maine ordinance template, available at https://localfoodlocalrules.files.wordpress.com/2011/03/localfoodlocalrules-ordinance-template.pdf

[3] Letter available at https://drive.google.com/file/d/0B3PYp5sROj_1NkxMa3BRMHNVOXdkTDVwajNZN245VDA0Vzdj/view?usp%3Dsharing

[4] See https://www.pressherald.com/2017/10/18/maines-meat-and-poultry-producers-caught-in-the-middle-of-food-sovereignty-fight/