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Dan Brown addresses supporters outside the Maine Supreme Court in Portland last month. The Maine Supreme Court dealt a blow to those hoping for legal backing of locally sanctioned private food sales, outside government regulatory auspices, by upholding farmer Dan Brown’s conviction last year of violating state dairy and food laws. 

 

In the end, the justices indicated, regulators’ interpretation of “public health” trumps all arguments that might be put forward to justify food rights–in the town of Blue Hill, Maine, where Brown’s case originated and which has a Food Sovereignty ordinance, and throughout the state. “The State’s responsibility (is) to protect the public health by ensuring sanitary conditions and proper business operating practices for the preparation and sale of food to the public…the Town of Blue Hill has left the protection of public health with respect to the sale of local foods to market forces.”

 

The seven judges rejected all arguments put forth by Farm-to-Consumer Legal Defense Fund lawyers and sought to discredit Maine’s expanding Food Sovereignty movement, which had seen ten towns pass ordinances over the last three years exempting direct farmer-to-consumer food sales, outside the auspices of state and federal regulations. (It’s not clear from the written opinion how the justices voted.) Three additional Maine towns were poised to add to the total, and a scattering of locales around the country as far away as Santa Cruz, CA, had taken Maine’s lead and passed their own Food Sovereignty ordinances. 

 

In Maine, at least, Food Sovereignty now has been re-defined by the court: “We construe the plain language of the Blue Hill Local Food Ordinance to exempt local food producers and processors only from municipal licensing and inspection requirements,” the justices stated in their decision. “The Ordinance would be constitutionally invalid and preempted only to the extent that it purports to exempt from state or federal requirements the distribution of milk and operation of food establishments.” 

 

The Blue Hill ordinance, passed in 2011, was very specific about its intent, ““We have faith in our citizens’ ability to educate themselves and make informed decisions. We hold that federal and state regulations impede local food production and constitute a usurpation of our citizens’ right to foods of their choice.”

 

In a footnote, the justices added, “It is important to again note that, to the extent that Brown sells primarily produce and not dairy products from his farm stand, he is exempt under state law from obtaining a food establishment license.” In other words, Brown and other farmers are free to sell all the veggies they want without licensing, but no town in Maine has the authority to allow the sale of raw milk privately, outside state permitting auspices. 

 

The justices also came down against Brown on his argument that state regulators had, in effect, encouraged him to start his unlicensed operation when he launched in 2006 via a thirty-year-plus policy of allowing small dairies like his to sell directly to individuals without a license, so long as the dairies didn’t advertise. The state argued that it changed its policy in 2009, banning the unlicensed option, and that all farmers, including Brown, needed to comply. 

 

While government agencies can in certain cases be held at fault for arbitrarily changing their regulations, not in this case, said the justices. 

 

“The State Veterinarian’s statements to Brown in 2006 were accurate when they were made because, at that time, the Dairy Inspection Program did not enforce licensing requirements on distributors of raw milk who did not advertise their sales,” the Supreme Court said. “The subsequent change in policy by the Quality Assurance Division did not render the State Veterinarian’s earlier statements misleading or fraudulent. Accordingly, there was no misrepresentation by a governmental entity or official…” to justify prohibition of enforcement.  

 

Once again, “public health” took precedence, in the court’s view, as it backed the lower court. That court “determined that, under the totality of the circumstances, the public health implications of permitting Brown to sell milk without a license outweigh the injury to Brown to obtain a license.” The Maine Supreme Court became another in a lengthening list of state courts–including Wisconsin, Missouri, and New York–to completely back regulator authority over food standards and availability. 


The justices also rejected any easing of the penalty levied against Brown by the lower court, which was a $1,000 fine, plus about $300 of court costs.

 

What are the options for Maine’s Food Sovereignty movement from here? While an appeal to a federal court of the Maine court’s decision is a technical possibility, it’s difficult to imagine that federal judges would be any more sympathetic than the ones in Maine. 

 

So that leaves three options that I can see.


1. Convince the state legislature to sanction Food Sovereignty statewide. Maine’s legislature has a growing number of food-rights supporters among its members, and I understand they will be meeting shortly to consider how to deal with the state court’s decision. 

 

2. Another option would be for a farmer to defy the latest court decision, engage in civil disobedience, and invite criminal charges. Then, the farmer could be tried in front of a jury, and so far, these have been the only legal entities in recent years to side with farmers and their customers. 


3. And finally, the farmers can take their food sales ever more underground. You can be sure that expanding trend has already begun to accelerate.