Commentary

Maine’s food sovereignty law needs tweaking

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If you have been paying attention to the happenings in Augusta, you have probably heard about the food sovereignty bill that passed during the 128th Legislature. This bill allows municipalities to develop local food ordinances that permit food to be produced and sold in the same municipality without state oversight.

This fixed a dilemma that was caused by municipalities passing these types of ordinances without a state statute allowing them to do so. It’s important to understand that, like it or not, municipalities are essentially an arm of the State.  The food sovereignty ordinances that were previously passed really didn’t mean anything, they only had the right to make those decisions if the State of Maine allowed it. LD 725 fixed this conflict. As with most things done by legislation, we are now seeing unintended consequences of passage.

What was not foreseen in this bill was the consequences of the Federal and State relationship surrounding meat processing. There are essentially three types of meat inspection: Federal Inspection, State Inspection, and Custom Exempt.

Federally inspected meat has a USDA inspector present for the slaughter of the animal, inspects the facility and inspects the meat that has been processed. Federally inspected meat puts a USDA stamp on the carcass, a USDA seal on the label and then the meat can be sold anywhere; including over State lines (interstate commerce).

State inspected meat has a State inspector instead of a USDA inspector present for slaughter, inspects the facility and inspects the meat that has been processed. State inspected meat has a State of Maine stamp on the carcass and a State of Maine seal on the labels, State inspected meat is only allowed to be sold in Maine (intrastate commerce).

Custom Exempt facilities are inspected by the State of Maine, but an inspector is not present for slaughter and the processed meat itself is not inspected. Meat processed in a custom exempt facility is stamped on the package “Not For Resale.” Custom exempt is common when a person purchases a side of beef from a farmer, and then pays the butcher to process that meat to put in their own freezer. That meat is not allowed to be sold.

The food sovereignty bill, as currently written, would allow the meat processed in a custom exempt facility to be sold retail in the municipality it was produced in. This is why Governor LePage is calling for an amendment to LD 725. Because of this, the USDA is threatening to take control of all meat and poultry slaughter and processing in Maine. Most readers here likely realize that the federal government is too large and too involved in our lives, but case law has brought us to where we are today and all State and local laws involving meat processing are superseded by federal law and regulations.

If custom exempt meat and State inspected meat doesn’t involve interstate commerce, why can the USDA do this? The Commerce Clause (Article I, Section 8, Clause 3) of the constitution has been broadly interpreted since Wickard v. Filburn to allow even things that substantially effect interstate commerce (even through unintentional aggregation) to be regulated under the Commerce Clause. The Supremacy Clause (Article VI, Clause 2) of the constitution enables the federal government to have power over meat inspection through federal law and regulations.

The Maine Meat and Poultry Inspection program operates under a “cooperative agreement” with the federal government. This means that we are allowed to have our own State inspection program as long as our rules are equal to or greater than the USDA rules and regulations. Another component of the cooperative agreement is funding The Maine Meat and Poultry Inspection program. The USDA requires a consistent set of rules throughout the State, local control does not satisfy this requirement.

What will happen if we take no action before LD 725 goes into effect? The USDA will take control of all facilities that are currently under State oversight. Many of these facilities will not be able to come into compliance. Products that are found to be improper during inspection will be seized. This would be an incredible step backwards for the local food movement that Maine has been working hard to build.

If LD 725 goes into effect this November without an amendment made during a special legislative session, it will be farmers who get caught in the crossfire.

About Ben Hartwell

Ben Hartwell is a second-year student at Maine Law School. Ben raises grass-fed beef in Gorham, where he also serves as a town councilor.

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