Voters will decide if Mainers have a constitutional right to food
The Legislature approved the proposal by a two-thirds margin, but some critics worry that embedding the language in the Maine Constitution could have unintended consequences.
Maine voters in November will be the first in the nation to consider embedding in the state constitution an amendment that establishes a fundamental right to grow and consume food for their own nourishment.
The proposal, which will be on the Nov. 2 ballot, is the result of a nearly decadelong effort that represents an evolution of the movement that produced the Maine Food Sovereignty Act. That landmark law authorized cities and towns to adopt local food ordinances, and more than 90 have done so.
“You have to have a right to food because food is life,” said Sen. Craig Hickman, D-Winthrop, an organic farmer who has long championed the cause. “This is a foundation we are putting in the constitution.”
But while the idea of guaranteeing a fundamental right to food may seem benign, or even unassailable, the proposal has met resistance. Critics say the amendment, while well-intentioned, could have unintended consequences for food safety, animal welfare or other areas as judges interpret the amendment in future court cases.
Hickman said he expects an onslaught of misinformation ahead of the vote, likely from opponents backed by multinational agricultural companies and the factory farm industry.
The ballot question will ask:
“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?”
If passed, Maine would be the first state to adopt a constitutional amendment enshrining a right to food. West Virginia and Washington are also considering right-to-food amendments for their state constitutions.
The language to be added to the Maine Constitution would read:
“All individuals have a natural, inherent and unalienable right to food, including the right to save and exchange seeds and the right to grow, raise, harvest, produce and consume the food of their own choosing for their own nourishment, sustenance, bodily health and well-being, as long as an individual does not commit trespassing, theft, poaching or other abuses of private property rights, public lands or natural resources in the harvesting, production or acquisition of food.”
The bill calling for the new constitutional amendment,
L.D. 95, was approved by a two-thirds majority in both the state House and Senate. Constitutional amendments do not require the approval of the governor and go directly to the ballot for consideration by voters.
One of the bill’s strongest supporters is Rep. Billy Bob Faulkingham, R-Winter Harbor. In written testimony in support of the amendment, he said the right to food, growing a garden or raising livestock may not be in question today but the situation could change.
“Jumping ahead 25 or 50 years into the future, could we see our government creating roadblocks and restrictions to the people’s right to food?” Faulkingham wrote. “Will the government be telling people what they are allowed to eat and where they can grow it?”
Faulkingham, a lobsterman, also voiced concerns about the influence on food policy of multinational food producers or industrial agriculture. And he pushes back against those who say food safety will suffer if the amendment is approved.
“They’re going to say, ‘The sky is falling, the sky is falling,'” Faulkingham said. “But it hasn’t yet and it is probably not going to.”
He pointed out that Mainers for generations, even before statehood, have bartered for or bought and sold food products from one another in their local communities. And he said there have been no reports of food-borne illnesses since Maine starting allowing cities and towns to govern the exchange of food locally.
Heather Retberg, a farmer from Penobscot and a leader in the food sovereignty movement, has been a longtime proponent of the right-to-food amendment. She testified in favor of the proposal at a February public hearing. Retberg said the COVID-19 pandemic highlighted vulnerabilities in the food supply chain, when early in the pandemic many store shelves went barren as people stockpiled food and other supplies.
“Maine people can increase resilience to external shocks in systems beyond our control by growing and producing much more of our own food,” Retberg said. “By securing the right to grow and raise food in our Constitution, it will be protected in the most fundamental form of law.”
But opponents to the amendment, including lawmakers who are also farmers, say it is unnecessary and would undermine a food safety system in Maine that works well.
Senate Minority Leader Jeffrey Timberlake, R-Turner, said he voted against the measure because nobody could tell him when food rights had ever been denied to Mainers. “For that matter, when in the history of the United States has anyone ever had their right to food denied?” Timberlake asked.
Timberlake and Sen. Russell Black, R-Wilton, own commercial farming operations and produce processed foods under state licensing regulations. Black worries what the unintended consequences of the amendment could be.
“This is so vague, how are the courts going to interpret this?” Black said. “An inherent right to food. Are people going to be able to go to town government and say, ‘I don’t have food. I don’t have seed and I don’t have a place to grow it. I want you to take care of that for me.'”
He said state government is already working to bolster food security and reduce hunger, including through a recent law that
will provide free school meals to all public school students, among other policy changes.
He fears a food safety problem from an unregulated producer could undermine the many years Maine farmers have spent building a reputation for quality, safe, healthy food products. “Why would we want to take the chance of blowing that up?” he asked.
The administration of Gov. Janet Mills, a former state attorney general, has remained neutral on the amendment, stating it supports local food production and farms while at the same time expressing concerns over the uncertain impact a new constitutional right might have on existing laws – including fish and game, among others.
The Maine Department of Agriculture, Conservation and Forestry submitted testimony neither for nor against the amendment. Emily Horton, policy director at the department, said the state had concerns about language in a previous version of the bill that could create conflict with food safety standards, hunting laws and property rights. But she said the current version of the bill no longer includes the potentially troublesome language.
“With that said, the department does acknowledge that constitutional amendments will pre-empt state law and may be subject to legal interpretation going forward,” Horton said.
Agriculture, Conservation and Forestry Commissioner Amanda Beal said her department strives to balance the promotion of locally produced food products with consumer health and safety.
“There are a lot of diverse opinions out there about how relaxed can our regulations be versus where do they need to be more defined,” Beal said. She noted that the right-to-food constitutional amendment focuses more on the ability for people to provide food for themselves and their families.
“And as the language focuses on self-provisioning rather than commerce, we did not have outright concerns,” Beal said. Beal also confirmed Faulkingham’s assertion that there have been no reported outbreaks of food-borne illness in Maine that were triggered because of weak or ineffective local food ordinances.
Maine Attorney General Aaron Frey declined to answer questions about how enshrining a new right in the state constitution could affect existing law. But other legal scholars say there’s little doubt a new right would be defined in the courts.
Emily Broad Leib, director of the Food Law and Policy Clinic of the Center for Health Law and Policy Innovation at Harvard Law School, said the establishment of a protected right was likely to lead to new case law and legal precedent.
“This puts a thumb on the scale towards generally allowing food transactions to take place, while still maintaining reasonable restrictions,” Broad Leib said. “It provides a comfort to the citizens of Maine that they are allowed to obtain or procure food of their choosing, and that they do not have to constantly be worrying about whether they are breaking a law in doing so.”
Still, any ruling by a judge would have to be viewed in the complete context of the case, and Maine’s amendment would be paving new ground. “Context is so important for things like this,” Broad Leib said. The first courts to hear cases on the newly established right will likely consider not only the language of the amendment but also the intent of the Legislature in approving it, she said.
She noted that more than half of state legislatures have considered or passed laws expanding the sale of food without licensure in the past year, a recognition by lawmakers of the constraints the COVID-19 pandemic put on access to food. But Maine’s constitutional amendment takes a different approach in guaranteeing individuals the right to obtain the methods of production for themselves, Broad Leib said.
Maine led the nation in 2017 with the passage of the Food Sovereignty Act, which allows cities and towns to pass their own ordinances regulating the exchange of food, with the exception of poultry and meat. Since passage, more than 90 municipalities have adopted their own food ordinances.
An amendment to the act that gained broad bipartisan support this year in both bodies of the Legislature would have given counties the authority to set food production ordinances for Maine’s unorganized territories or plantations. The amendment also would have eliminated a “face-to-face on the site of production transaction” requirement, replacing it with a requirement that those engaged in the exchange of food do so on terms that are mutually agreed to.
But that change was vetoed by the governor.
“I have heard deep concern from several sectors of the agriculture community and other entities that sell perishable or processed food items about the negative impact that this bill could have on the reputation of Maine’s local foods if someone becomes ill from uninspected products,” Mills wrote in her veto letter.
Beal also noted her agency is concerned about expanding the point of exchange and said the state’s licensing process also includes education and guidance from state inspectors for those who want to produce food from their homes. Licensing fees are nominal, only $20 for a license to sell baked goods, for example, Beal said. That license involves only one kitchen inspection and no follow-up inspections, unless there is a complaint made, Beal said.
Lawmakers will cast override votes on the veto when the Legislature returns to session on Monday. It’s unclear whether supporters can build the two-thirds majority needed to overcome Mills’ opposition.
