Local Food Sovereignty

Training for: Legal Notes

In June 2013 Blue Hill farmer Dan Brown was fined by the Hancock County Superior Court for selling raw, unpasteurized milk at his farm stand and at local farmers’ markets without State-required licenses and labeling. Brown had argued, among other things, that the town’s Local Food Ordinance exempted him from such requirements as long as his sales were directly to consumers for home consumption. But the court was unconvinced and ruled against him, so he appealed.

One year later the Maine Supreme Court handed down its decision in State of Maine v. Brown, 2014 ME 79. It affirmed the lower court’s decision, holding that the State’s food safety laws “occupied the field” and that any ordinance exempting local farmers from these laws would frustrate their purpose and would therefore be preempted and legally unenforceable (see “Local Food Ordinance Preempted – Law Court,” Maine Townsman, Legal Notes, July 2014).

The Law Court’s decision prompted local “food sovereignty” advocates and sympathetic legislators to press for a change in the law, and on June 16, 2017 the Governor signed into law “An Act To Recognize Local Control Regarding Food Systems.” This vaguely worded new law authorized municipalities to “regulate by ordinance local food systems” and required the State to “recognize such ordinances.” What this meant exactly was not at all clear, although presumably the law was intended to legalize the handful of ordinances like Blue Hill’s that already purported to exempt direct producer-to-consumer sales from State (and federal) food safety laws.

Not long afterward, though, the U.S. Department of Agriculture notified the Governor that if the new law were allowed to stand, the federal government itself would step in to enforce meat and poultry inspections, which would impact all meat and poultry producers and threaten the entire slaughtering and processing infrastructure in Maine. The Governor therefore proposed emergency legislation excluding meat and poultry from the new law and making other important changes as well. This bill was passed overwhelmingly by the Legislature and signed into law by the Governor on Oct. 31, 2017.

The refurbished law (now “the Maine Food Sovereignty Act”) authorizes municipalities to adopt ordinances “regarding direct producer-to-consumer transactions” and requires the State to “recognize such ordinances by not enforcing those state food laws” relating to these sales. In effect, this first-of-its-kind law now enables municipalities, by ordinance, to simply declare that direct producer-to-consumer sales of certain local foods and food products are exempt from State food safety laws. Such an ordinance could also impose local food safety requirements, but this is not mandatory. If a municipality opts not to adopt a food sovereignty ordinance, all food sales, including direct producer-to-consumer sales, remain subject to all State food laws.

It is especially noteworthy that in addition to excluding meat and poultry, the revised law also contains a much more restrictive definition of “direct producer-to-consumer transaction.” It must not only be a “face-to-face” transaction, it must also take place “at the site of production” of the food or food product. In other words, Dan Brown’s farm stand would still qualify, but the farmers’ markets he also sold at would not. The scope of permissible local “sovereignty” under the revised law is thus comparatively limited.

Municipalities that have adopted or are considering

In June 2013 Blue Hill farmer Dan Brown was fined by the Hancock County Superior Court for selling raw, unpasteurized milk at his farm stand and at local farmers’ markets without State-required licenses and labeling. Brown had argued, among other things, that the town’s Local Food Ordinance exempted him from such requirements as long as his sales were directly to consumers for home consumption. But the court was unconvinced and ruled against him, so he appealed.

One year later the Maine Supreme Court handed down its decision in State of Maine v. Brown, 2014 ME 79. It affirmed the lower court’s decision, holding that the State’s food safety laws “occupied the field” and that any ordinance exempting local farmers from these laws would frustrate their purpose and would therefore be preempted and legally unenforceable (see “Local Food Ordinance Preempted – Law Court,” Maine Townsman, Legal Notes, July 2014).

The Law Court’s decision prompted local “food sovereignty” advocates and sympathetic legislators to press for a change in the law, and on June 16, 2017 the Governor signed into law “An Act To Recognize Local Control Regarding Food Systems.” This vaguely worded new law authorized municipalities to “regulate by ordinance local food systems” and required the State to “recognize such ordinances.” What this meant exactly was not at all clear, although presumably the law was intended to legalize the handful of ordinances like Blue Hill’s that already purported to exempt direct producer-to-consumer sales from State (and federal) food safety laws.

Not long afterward, though, the U.S. Department of Agriculture notified the Governor that if the new law were allowed to stand, the federal government itself would step in to enforce meat and poultry inspections, which would impact all meat and poultry producers and threaten the entire slaughtering and processing infrastructure in Maine. The Governor therefore proposed emergency legislation excluding meat and poultry from the new law and making other important changes as well. This bill was passed overwhelmingly by the Legislature and signed into law by the Governor on Oct. 31, 2017.

The refurbished law (now “the Maine Food Sovereignty Act”) authorizes municipalities to adopt ordinances “regarding direct producer-to-consumer transactions” and requires the State to “recognize such ordinances by not enforcing those state food laws” relating to these sales. In effect, this first-of-its-kind law now enables municipalities, by ordinance, to simply declare that direct producer-to-consumer sales of certain local foods and food products are exempt from State food safety laws. Such an ordinance could also impose local food safety requirements, but this is not mandatory. If a municipality opts not to adopt a food sovereignty ordinance, all food sales, including direct producer-to-consumer sales, remain subject to all State food laws.

It is especially noteworthy that in addition to excluding meat and poultry, the revised law also contains a much more restrictive definition of “direct producer-to-consumer transaction.” It must not only be a “face-to-face” transaction, it must also take place “at the site of production” of the food or food product. In other words, Dan Brown’s farm stand would still qualify, but the farmers’ markets he also sold at would not. The scope of permissible local “sovereignty” under the revised law is thus comparatively limited.

Municipalities that have adopted or are considering adopting food sovereignty ordinances should carefully review them to ensure they are consistent with these statutory limitations. (Most ordinances circulating on food sovereignty websites are not.) MMA does not have and does not anticipate drafting a one-size-fits-all model ordinance, in part because different communities are apt to have differing ordinance objectives. Instead, we recommend that interested municipalities work with local legal counsel to prepare an ordinance that both conforms to the statute and meets local objectives.

Besides a food sovereignty ordinance, there are other ways to support local farms and the locavore movement. Farmers’ markets and community gardens spring to mind. The website for the Maine Federation of Farmers’ Markets (www.mainefarmersmarkets.org) includes loads of information on promoting farmers’ markets and keeping them legal. We also offered several suggestions on how municipalities can assist with community gardens in an earlier issue of this magazine (see “Community Gardens,” Maine Townsman, Legal Notes, April 2009). The Maine Farmland Trust, a statewide nonprofit dedicated to farmland preservation and promoting local agriculture, also offers a wide variety of innovative ideas and technical assistance on its website (www.mainefarmlandtrust.org).

The newly revised Maine Food Sovereignty Act can be found at 7 M.R.S.A. §§ 281-286. (By R.P.F.)