Do You Have a Constitutional Right to Food? Understanding the Food Sovereignty Movement

Well, as of November 2021, if you live in Maine, you do.  It’s the first state to give constitutional protection to the “right to food.” This constitutional amendment capped a growing and expanding “food sovereignty” movement in Maine that seeks to deregulate the state’s small-scale farming and food operations. Almost a year and a half since its ratification, the Right to Food amendment has now made its way to Maine courts where some of its scope and limits will be tested.

Maine’s Food Sovereignty Movement

In 2020, 90% of Maine’s farmers had sales below $100,000; 63% made less than $10,000. Unlike the large row-crop operations of the corn belt, Maine’s agricultural industry largely consists of small farmers selling directly to consumers. In 2011, Maine municipalities began enacting “food sovereignty ordinances,” or FSOs, some of which declared that it was unlawful for any state or federal government regulation to interfere with community members’ rights to sell and grow food.  This “food sovereignty” movement grew out of small farmers’ belief that Maine’s regulations rendered their businesses unprofitable. The first legal test of an FSO came in 2011 when one farmer, Dan Brown, was fined over $1,000 for selling raw milk from a single cow without a state license. The farmer’s “regulatory turf war” ended with the Maine Supreme Court upholding his fine.  

Inspired (or enflamed) by Farmer Brown’s case, a growing number of municipalities enacted FSOs. In 2017, the Maine legislature passed the Maine Food Sovereignty Act (MFSA), legitimizing FSOs and showing the state governments’ intent to fall in line with the food sovereignty movement. However, the MFSA did not give complete free reign to FSOs; after pressure from the FDA, the legislature amended the act to make clear that meat and poultry were still subject to state and federal regulation. 

Fast forward to November 2021, when 61% of Mainers voted in favor of the Right to Food Amendment, which states:

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.

While portions of this Amendment, like the right to save seeds that are protected by federal patent law and other federal intellectual property laws, are clearly preempted, those portions of the Amendment are not the focus of the current litigation.

Current Litigation Challenges and Impact

Though the Right to Food Amendment is less than two years old, it has already faced questions as to its scope and impact. The first lawsuit under the Amendment, filed in April 2022,  challenged Maine’s ban of hunting on Sundays. The plaintiffs contend that hunting is included under the “harvest” portion of the Amendment, and the antique Sunday hunting ban infringes on this right.  After the lower court dismissed the suit without comment, the plaintiff appealed to the Maine Supreme Court in March 2023. 

In Penobscot County, a small home kitchen business has recently sued the state after the state shut down the business in October 2022 for not having a state license to operate. The plaintiffs in Deschaine v. Lambrew seek a declaratory judgment that they qualify for a license exemption under the MFSA or, in the alternative, that the state’s closure of the business infringes on its customers’ rights to consume the food of their choice under the Right to Food Amendment.  The state has filed a motion to dismiss, arguing that the plaintiffs are not entitled to a direct producer-to-consumer exemption as they use ingredients from other local producers and markets. In its motion, the state also argued, “The people of the state of Maine were specifically led to believe that voting in favor of the Right to Food Amendment would not result in the full-scale nullification of the state’s comprehensive food safety laws. Yet, that is exactly what the plaintiffs demand.” 

Even state legislators have attempted to expand the scope of the Right to Food amendment. In April 2023, legislators introduced a new bill that would classify hemp and cannabis as food under the Amendment. While the legislature has clarified that this would be for personal use only and would not include cannabis sales, regulators argue that the bill would hurt licensed cannabis operations and effectively insert cannabis legality into the Maine constitution. 

Conclusion

Does a Constitutional right to food mean a right to hunt on Sundays? To run an unlicensed home kitchen business? A constitutional right to Cannabis for personal use?  For the final answers to these questions, keep an eye on the litigation surrounding Maine’s Right to Food Amendment. Those decisions may also inform other states’ “food freedom” laws.  North Dakota, Wyoming, and Utah have already enacted such laws. And given these laws’ traction, other states may not be far behind.

Rachael Moore is an associate in Thompson Coburn’s Business Litigation practice. Matt Bober is a partner in Thompson Coburn’s Business Litigation practice and Chair of the Agriculture and Food group.