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In Maine, a push to enumerate a constitutional right to food

Voters in Maine will decide on Election Day whether to amend the state’s constitution to recognize an unalienable right to grow, harvest and eat the foods of their choice. Detractors worry the amendment creates a Pandora’s box.

(CN) — For Maine state Representative Billy Bob Faulkingham, amending the state Constitution to recognize a constitutional right to food is just common sense.

“In the last decade I think everybody, no matter where you are in the country, has probably seen an expansion of the farmers' markets and such because people want to get that food closer to home, healthier food, get away from the big corporate producers,” said Faulkingham, a fifth-generation lobsterman who has captained a lobster boat since he was 15.

Thanks to a resolution he helped introduce into the legislature, Maine voters will decide on Election Day whether to become the first state to codify a right to food in their state Constitution.

The proposed amendment says individuals have a right to consume food of their own choosing, which includes saving seeds and the ability to grow, raise and harvest that food as long as private property rights and natural resources are not abused in the process.

The spending to launch campaigns surrounding this ballot question has been miniscule, comparable to a brisk town-wide election. Newspaper op-eds have been published and some radio spots have aired across the state. It is unlike the millions spent on another question posed to Maine voters this year over whether to ban construction of electrical transmission lines across a portion of the state.

But unlike the transmission line question, proponents and skeptics of Maine’s right to food initiative believe the issue may crop up in other states. Indeed, Washington and West Virginia have begun to consider it.

Furthermore, the question has shaken the stereotypical political alliances. Faulkingham, a Republican, has pushed for the bill with Senator Craig Hickman, a Democrat who runs an organic farm. The coalition opposing the adoption of the amendment include animal rights groups and agricultural associations.

Detractors say the amendment’s language is too vague and could lead to unintended consequences for how animals are raised and how food safety is enforced in the state.

According to Faulkingham, the proposed right to food amendment grew out of a grassroots food sovereignty movement.

Around the time Faulkingham began paying attention to the movement, years before he entered the legislature in 2018, the state had cracked down on a Maine farmer who it said was not licensed to sell raw milk.

“It definitely struck me the wrong way… what it seemed like the government was doing to him,” Faulkingham said.

In 2014, the Maine Supreme Court ruled against Dan Brown, a farmer who had sold raw milk without a distributor's license and argued a town ordinance exempted him from the state requirements regarding the labeling of his milk when he sold it from a farmers’ market and a stand.

The Maine Supreme Court took up the matter and ruled against Brown, saying the municipal exemption only applied to inspection and licensing requirements at the local level.

In 2017, the legislature passed the Maine Food Sovereignty Act that allowed towns to pass ordinances that prevented state food laws from applying to producer-to-consumer purchases of food.

The question now before Maine voters, Faulkingham said, will codify an individual right, similar to that of the Maine’s right to bear arms: the Constitution’s language says it’s a right that cannot be questioned but it also comes with restrictions.

Little will change if the amendment passes, Faulkingham said, but it would help promote self-sufficiency in the land with deep farming, hunting and fishing traditions.

For now, the right to food is a preventative one, designed to be a bulwark against government infringement, the lawmaker said, though he does not see a lot of infringement currently.


“We worry about that in the future,” Faulkingham said. “And we think that a constitutional right, definitely gives some people some standing when it comes to those sorts of things.”

Denisse Cordova Montes, professor at the University of Miami, said Maine is leading the nation in asking its voters about enshrining a right to food, a right that’s recognized internationally, from constitutions of various countries to the 1948 Universal Declaration of Human Rights.

Cordova Montes, a human rights lawyer who has worked on the right to food, said the right is a holistic one that encompasses consuming sustenance with dignity. Food, Cordova Montes said, should be nutritionally adequate whether the individual is a baby or a pregnant mother, and accessible to the person who is seeking to grow their own food and the person living in a food desert, which are communities far away from a grocery store where they could obtain healthy food. 

“By including it in the Constitution, it will result in, I think, the government of Maine taking it into account when it comes to policy planning … It just becomes a priority in the state,” Cordova Montes said.

In April, Cordova Montes and an intern with the University of Miamai School of Law’s Human Rights Clinic issued a legal memo to the Maine Attorney General arguing the right to food resolution being considered in the legislature did not include a right to commercially produce and save seeds, which allowed the state to continue to regulate seeds for diseases and blight.

Wayne Pacelle, president of Animal Wellness Action said it has only been in the last few years that some states have banned the use of intensive confinement of animals on large commercial farms. Over the years, he has worked on ballot initiatives in states such as Massachusetts and California to ban extreme confinement and fought ballot measures in places such as Oklahoma which considered right-to-farm questions that would have prevented the prohibition on such confinement. 

Pacelle said he’s concerned about copycat resolutions in other states and that could be used to roll back animal welfare protections. The right-to-food amendment seems to have grown from Maine food sovereignty movement, but its language he sees to be a combination of right-to-farm and a right-to-hunt resolutions.

“We all think that we should have access to food and it should be wholesome and it should be quality food, but the measure doesn't do anything to advance that. I mean, it's just not clear that the rhetoric aligns with the actual language of the provision,” Pacelle said.

Beth Gallie, president of the Maine Animal Coalition, says amending the constitution should be rare and already the constitution says whatever rights are not enumerated in the document are reserved for the people.

“If everyone starts putting their rights into the Constitution, it's like a 100-page document. No, it's not the way to go,” Gallie said.

In previous years, the legislature considered other versions of the right to food amendment. This version, Gallie said, does not raise as many red flags but there are still concerns. She also worries that creating a constitutional right and questions surrounding it would be left in the hands of the state’s judges.  

But Scott Bloomberg, a law professor who teaches constitutional law at Maine University School of Law, said if the Maine courts interpret the right, they will probably look to evidence about what the voters thought they were enacting, if it’s passed.

The courts are unlikely to conclude that the right obligates the government to provide food to the state’s residents, but nevertheless, they will “have to grapple with what is the scope of the right and what kind of laws intrude on the right,” Bloomberg said.

But 100 years into the future? Courts could take a more expansive reading, Bloomberg said.

“If this is really a response to a future problem, it is really hard to assess what a court is going to make of it and when is somebody going to challenge a law, under this amendment,” Bloomberg said.

Julie Smith, executive director of the Maine Farm Bureau Association, said the vague language of the proposed amendment could lead to unintended consequences for food safety. The kind of foods Maine farmers produce is varied, said Smith, from wild blueberries, a diverse number of vegetables and “some of the best tasting milk in the whole United States.”

The bureau supports customers buying raw milk, Smith said, but licensing is important.

“You can’t see bacteria,” Smith said. “There’s no way to know whether your milk is safe or not for consumption unless you test it.”

But a court could decide, under the proposed amendment, that an individual who got sick drinking uninspected milk chose to buy that milk. According to Smith, the question becomes whether the state had a right to inspect the dairy farmer to see if, say, the farm’s water source is contaminated.

Furthermore, Smith said it could affect hunting and fishing laws, hampering efforts to notify individuals digging for clams that there’s a red tide, for instance.

And while the question before voters over the transmission lines attracted more dollars than the right to food question, Smith said the latter is the more important issue.

“This absolutely impacts every single person in the state of Maine and it impacts their future,” Smith said. “A transmission line, you know what? You can take it down and the forest can regrow. You take away food safety, people die.”

There has been little polling on this issue. Whether voters see this as a common-sense enshrinement of a right to self-sufficiency or they see unintended effects to the state’s animals and food safety, those involved in the issue will find out on Election Day if the voters decide it’s a bite they want to take.

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