Free our food

rom farm to table” isn’t just a meaningless foodie slogan anymore. It’s the rallying cry for the smallest of small-scale farming operations in Maine, which are fighting against what they consider to be burdensome state and federal regulations. In the process, they’re laying the groundwork for a nationwide “food sovereignty” movement, aimed at restoring the direct relationship between food producers and consumers, while reducing government interference in local food systems.

It started on the Blue Hill peninsula, a cluster of tiny, rural, coastal towns about three hours northeast of Portland. A controversy over poultry regulations led a group of family farmers to Augusta, where they told legislators that state food-safety rules were too strict. They claimed that current law could require them to spend tens of thousands of dollars in permitting fees, equipment, and new facilities, just to butcher a few chickens and sell the meat to their neighbors.

At a public hearing and later at a work session, the farmers were told — sympathetically, but still — that if the state were to loosen its meat-inspection conditions, federal funding would be pulled. Hal Prince, director of the state’s Quality Assurance and Regulation division within the agriculture department, explains that in order for the state to run its own meat-inspection program, its standards “have to be at least equal to the [US Department of Agriculture].” The USDA chips in about $200,000 — roughly half of the program’s operating costs.

“It didn’t have to do with food safety, it had to do with funding,” says Heather Retberg of Quill’s End Farm in Penobscot, a town of about 1300 people, where the chicken-butchering controversy originated. “The USDA is determining rules for products that are never leaving the state or even our own communities. We realized, if these things are happening to us, they’re happening to other small farms around the state.”

So began a series of meetings between local farmers determined to align food policy with their food philosophy. It’s a battle with national implications, both legally and economically. And it exposes a key problem in the American system of food-safety regulation: states seeking to boost local producers are required to treat tiny farmers almost as if they are part of the agro-industrial complex.

“I think we’ve been colonized by a global economy that doesn’t recognize the value of local communities,” says Bob St. Peter, a Sedgwick farmer who is also the director of Food for Maine’s Future, a local-food advocacy organization. “If we wanted to feed ourselves locally, we couldn’t. The rules and regulations that have evolved over the last few generations have created this situation. We can buy into the industrial system, or we can create our own rules.”

The folks in Hancock County chose the latter route.

Give me your chickens, your lettuce…

In early March, 120 people voted unanimously to pass the “Ordinance to Protect the Health and Integrity of the Local Food System” at Sedgwick’s town meeting, at which all the town’s citizens (population: 1100) are permitted to vote on municipal matters. At its core, the document decrees local independence and self-rule.

“We have faith in our citizens’ ability to educate themselves and make informed decisions,” the law reads. “We hold that federal and state regulations impede local food production and constitute a usurpation of our citizens’ right to foods of their choice.” (See sidebar, “Constitutional Commerce.”)

Then, citing the Declaration of Independence, the Maine constitution, and various state laws, the ordinance sheds those alleged shackles: “Producers or processors of local foods in the Town of Sedgwick are exempt from licensure and inspection provided that the transaction is only between the producer or processor and a patron when the food is sold for home consumption.”

Just weeks after Sedgwick passed its law, nearly identical measures passed in nearby Blue Hill, which is home to about 2300 people, and Penobscot. One in Brooksville, another coastal town in Hancock County, was not approved. (There is currently a petition circulating to revisit the Brooksville vote.) More than two dozen small-scale food-production operations are “covered” by the ordinances.

The day after the vote in Sedgwick, St. Peter and his daughter started Poppaloona’s Cookie Club — an unlicensed cookie-baking business — out of their home kitchen using both local and non-local ingredients. The cookies are delicious, but this entrepreneurship was also a statement: St. Peter is operating under the language of the ordinance.

On April 6, after consulting with the Maine Attorney General’s Office, state agriculture commissioner Walter Whitcomb sent a letter to several communities that either had passed or were considering similar laws. The letter reminds local officials that “the ordinance is pre-empted by state law” and that “persons who fail to comply will be subject to enforcement” including removal of products for sale, or monetary fines.

“We certainly hope things don’t get to that point,” Whitcomb said in a follow-up phone interview. He stressed that “we’re not trying to be unreasonable,” and that as a small farmer “I understand the challenges of sometimes finding five dollars.”

But the state must convince the feds that it can handle its own inspection process — “we have to demonstrate that constantly.” Failing to do so would result in even more scrutiny for Maine farmers, Whitcomb says. If the state does not adhere to regulations that are just as or more stringent than federal ones, it won’t be permitted to run its own meat-inspection program. That would bring more USDA inspectors to the state — and they’ll be even less accommodating to small farmers.

This logic also explains why several legislative proposals, including one that echoes the sentiment of the local ordinances and another that makes it easier for farmers to sell raw milk without a license, haven’t gotten a lot of support in Augusta. It’s a paradox: in order for Maine to maintain some level of local authority over its own regulatory system, the state relies on federal funding. And that money is at risk if Maine strikes out too far on its own.

USDA representatives refused to comment on the record for this story, but did say the agency is monitoring the situation, and that Maine’s handling of it has been appropriate so far.

…your homemade cookies…

Regardless of how the laws shake out here, it’s clear that this handful of back-to-the-landers is at the forefront of a burgeoning national campaign.

“What’s happened in Maine has created a lot of interest nationally,” says Pete Kennedy, a lawyer and the president of the Farm-to-Consumer Legal Defense Fund (FTCLDF), a Virginia-based non-profit that advocates for small-scale farmers and consulted with the peninsula activists on the language of their ordinance. “There are several other states where this is being tried, but [they haven’t] gotten as far as Maine has.”

So-called Food Freedom Acts that loosen regulations and permitting requirements have been proposed in both Wyoming and Florida, although neither has gained sufficient traction to move forward. Meanwhile, the farmers involved in Maine’s push for food independence say they’ve gotten inquiries from all over the state and country. Cottage (home-based, small-scale) producers and diversified farms everywhere say they’re struggling against regulations that they see as tailored to conventional and industrial agriculture.

As evidence, they point to the Food Safety Modernization Act (FSMA), which President Barack Obama signed in January. It expands the regulatory powers of the federal Food and Drug Administration, which oversees food production in the United States (everything except meat, poultry, and dairy, which are in the realm of the US Department of Agriculture). According to the FDA, the bill “aims to ensure the U.S. food supply is safe by shifting the focus of federal regulators from responding to contamination to preventing it.”

But the bill also had the unlikely effect of uniting hippie homesteaders and Tea Partiers; both groups say that the bill overreaches.

The FSMA “is a fundamentally flawed bill and is not in the best interest of small farmers,” says an online action alert from the FTCLDF, which claims that the “FDA has used its existing power to benefit the pharmaceutical and biotechnology industries at the expense of public health.”

And at the website of Freedom Works (a/k/a “Tea Party HQ,” a national online gathering place for people who want to “continue the fight against big government!”), the FSMA is described as “something new to control yet more of our lives.”

“We don’t have a real understanding about how these regulations are affecting small farmers,” says Mia Strong, another Sedgwick activist. “One size doesn’t fit all. We need to be flexible. It’s none of the government’s business how I choose to feed my family.”

But in fact, concerns about food-borne illnesses may lead to even more government regulation.

…yearning to breathe free

A study released last week by the Emerging Pathogens Institute at the University of Florida found that “the food contaminant that causes the most economic damage is campylobacter in poultry, which sickens more than 600,000 people and costs society $1.3 billion a year,” according to a report in the Washington Post. The article continued: “The fact that half of the most costly food pathogens are found in meat suggests that food safety laws at the USDA need an overhaul, similar to the new powers Congress approved for the FDA last year, said Carol L. Tucker-Foreman of the Food Policy Institute at the Consumer Federation of America.”

In other words, the Food Safety Modernization Act is here to stay, and its tenets may expand into other arenas. And given that the primary focus of FSMA is increasing inspection and disease prevention, it’s unlikely the government would support looser regulations at the state or local levels.

The food sovereignty movement, in its rural incarnation, might not have much logistical application in urban and suburban towns like those around Portland, or among larger-scale operations (although people who wanted to sell goods from their backyard gardens — jams or pickles, for example — might be interested in loosening licensing requirements). But the philosophy applies broadly: as Brooksville farmer Deborah Evans puts it, “food security is knowing the hand that feeds you.”

And that requires a distance, at least, from the agribusiness model that’s shunned by eco-activists, foodies, and small farmers alike.

“The reality is that it’s the fully inspected, fully licensed system that is making people sick,” St. Peter says, referring to large-scale agricultural operations such as the DeCoster egg empire, which came under fire after a massive egg recall in 2010. “I’m not going to be a scapegoat for a failed industrial food system.”

Constitutional commerce

On Thursday, May 5, the state judiciary committee will hear public testimony on LD 1172, “An Act To Prohibit Enforcement of Federal Laws in Violation of the Constitution of the United States.” The bill invokes the Tenth Amendment in the name of food independence, looking at “what level of regulation the federal government is allowed to implement regarding trade that occurs within state borders,” says John O’Donnell, a farmer who raises grass-fed beef in Monmouth, and is organizing people around this issue.

When the Food Safety Modernization Act passed, O’Donnell contacted the Tenth Amendment Center, a national think tank “that works to preserve and protect the principles of strictly limited government . . . [and] serves as a forum for the study and exploration of state and individual sovereignty issues, focusing primarily on the decentralization of federal government power as required by the Constitution.” The TAC told him about their model legislation, the Intrastate Commerce Act, which deals with products that are produced and sold within state borders. LD 1172, sponsored by Republican representative Melvin Newendyke of Litchfield, adheres closely to the TAC language.

“The power to regulate intrastate commerce is reserved to the states or the people,” it reads. “A person may not enforce or attempt to enforce a federal law that regulates . . . goods grown, manufactured or made in this state . . . when those goods or services are sold . . . exclusively in this state.”

On issues ranging from gun laws to gay marriage, from health care to medical marijuana, there’s no denying that the “states-rights” movement is gaining steam — states (and courts, in some cases) are acknowledging some limitations of federal law when faced with conflicting state statutes.

However, H. Cabanne Howard, an assistant professor of law and public policy at the University of Maine School of Law, says this particular attempt “is almost certainly unconstitutional.” Interpretations of what’s covered in federal commerce laws “is very broad,” he says, “and includes regulation of agriculture.” The Supreme Court “has been very firm about this,” he adds.

O’Donnell and many of the food activists on the Blue Hill peninsula believe that LD 1172 relates directly to their food-sovereignty campaign.

“What seems consistent in these laws and regulations is that small farmers, raising livestock and other farm products sold to local consumers and within the state have seen their regulatory burdens and limitations increase dramatically,” O’Donnell said in written testimony. “If not stopped, this will result in the loss of many small farmers. The state of Maine needs the Intrastate Commerce Act to establish a precedent so that we can unlock the potential of these small businesses to stimulate the economy and build a food security net for our citizens.”