For a decade now, judges, regulators, and even some media have ridiculed the notion of ‘food rights,’ the idea that Americans have a right to grow, buy, and consume the foods of our own choosing. FDA lawyers in 2010 argued in a brief defending against a suit filed by the Farm-to-Consumer Legal Defense Fund that “there is no ‘deeply rooted’ historical tradition of unfettered access to food of all kinds…” That eventually led them to concluded: ““There is no generalized right to bodily and physical health.”
A year later, a Wisconsin judge wrote in explaining his decision against dairy farmers selling raw milk via a herdshare arrangement: “no, Plaintiffs do not have a fundamental right to consume the milk from their own cow;”
And in a kind of exclamation point, he added this to his list of no-nos: “no, Plaintiffs do not have a fundamental right to produce and consume the foods of their choice…”
In 2012, a federal judge ruled that an Amish farmer’s cow-share arrangement for providing individual shareholders with raw dairy was “a subterfuge” for avoiding regulations prohibiting interstate raw milk sales.
On and on the expressions of disdain and arrogance go. As recently as this past August, Food Safety News, a staunch defender of food regulators and regulations, went after me for my defense of Amish farmer Amos Miller’s private sale of meat slaughtered on the farm to food club members around the country, stating in its rant: “The fantasy in Gumpert’s mind is about ‘private food rights’ and ‘the right’ to purchase directly from farmers. In the ‘Food Freedom’ world, you have to go down many rabbit holes to find these ‘rights’ that come without responsibilities.”
Well, we may well be seeing an important turn of events in favor of food rights, thanks to a proposed amendment to Maine’s constitution; on November 2, Maine voters will be asked: “Do you favor amending the Constitution of Maine to declare that all individuals have a natural, inherent and unalienable right to grow, raise, harvest, produce and consume the food of their own choosing for their own nourishment, sustenance, bodily health and well-being?”
This seemingly simple expression of food rights, which is designed to also cover the protection of seeds and reduction of food insecurity, is actually more than a decade in the making. When Maine regulators tried to make it harder owners of small farms to sell chickens and raw dairy to neighbors back in 2008 and 2009, one of those farmers, Heather Retberg, led an innovative end run around the regulators and legislature by convincing small towns to pass ordinances legalizing private food exchange.
Retberg’s approach gained traction over the last decade, with nearly 100 Maine towns having joined the ordinance parade. The Maine legislature in 2017 formalized the process of towns enacting food-rights ordinances. Retberg wanted more, though–she convinced several legislators to help give teeth to the food rights movement by enshrining it into the Maine constitution. “We wanted to enshrine a right to food in the most fundamental way possible,” she says. But getting a constitutional amendment approved requires a two-thirds vote of each legislative chamber, no easy task in today’s polarized political scene. After six years of legislative debate and exploration, that finally happened earlier this year, thanks to support from legislators across the political spectrum; one of the key supporters from the beginning was Craig Hickman, a liberal Democrat who owns a small farm himself. (I described Hickman’s inspiring speech mourning the murder of George Floyd in spring of 2020.) Now, it requires a simple majority of the voters in favor to make it happen.
She points out that one of the reasons regulators and judges have been so haughty about formal and legal expressions of food rights is that there is no easy way for small food producers to get the legal leverage they need to challenge the current system tilted toward Big Ag. “People have not had standing without something enshrined in the constitution,” Retberg says.
It’s not just a matter of fighting back against the corporate interests, which have the most to gain by repressing and denigrating food rights. It also is a matter of giving small farms an opportunity to play on more of a level playing field. Retberg says the local food rights ordinance in her town of Penobscot, Maine, helped keep her farm financially viable, as it has dozens of other small farms around the state.
There’s no organized opposition to the proposed amendment within Maine, but apparently at least one Washington lobbying group against cruelty to animals, and against the use of animal-based protein, has expressed opposition.
If the amendment is approved November 2, it could set the stage for other states to follow the Maine model for finally giving real substance to the notion of food rights.