As supporters celebrate Maine’s passage of the nation’s first “right to food” constitutional amendment, opponents worry that its ambiguous language will trigger a torrent of costly litigation over a wide range of personal choices related to food production and consumption.
Jail inmates might use the amendment to seek more personalized food options, opponents say. Suburban homeowners who want to raise livestock in their backyards could use it to challenge municipal zoning regulations. Farmers and landscapers might use it to skirt laws regulating certain pesticides or invasive species.
“Those are real possibilities that didn’t exist before, but they exist now,” said Rebecca Graham, legislative advocate with the Maine Municipal Association, which represents about 500 cities and towns. “The scope and the intent of the language will be decided in the courts.”
The measure, which won with 61 percent of the vote Tuesday, declares that “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.”
It also says the right to food exists “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.”
Exactly what those words mean remains debatable.
“Everyday people probably aren’t going to notice a difference,” said Rep. Billy Bob Faulkingham, R-Winter Harbor, a lobster fisherman who was a leader of the push for the amendment.
“Prior to this, our government viewed our ability to provide food for ourselves as a privilege and not a right,” Faulkingham said. “With this amendment, the people of Maine ensured that food is a right by enumerating it in the constitution.”
Faulkingham said he was aware of no existing situations where the new amendment might come into play or pending challenges to the amendment itself. He also disputed concerns that people might use the amendment to circumvent other laws pertaining to issues such as food safety, residential zoning or pesticide use.
“All rights are subject to reasonable restraint,” he said.
Faulkingham and other supporters of the amendment note that while the Maine Constitution specifies each citizen’s right to keep and bear arms, the state retains the authority to prohibit firearm uses that deny other people’s rights.
They also say it doesn’t restrict the government’s right to regulate food processing and distribution, or obligate the government to provide free or subsidized food.
The bill calling for the new constitutional amendment, L.D. 95, was approved by a two-thirds majority of the Legislature. Constitutional amendments do not require the approval of the governor and go directly to the voters.
Faulkingham said proponents of a similar measure in West Virginia are watching Maine with great interest.
Maine also led the nation in 2017 with the passage of the Food Sovereignty Act, which allows cities and towns to pass ordinances regulating the exchange of food, with the exception of poultry and meat. Since then, more than 90 municipalities have adopted food ordinances.
With the passage of the amendment, the Maine Organic Farmers and Gardeners Association applauded voters for seizing an opportunity to wrest control of the food supply from large landowners and corporate retailers that have little connection to local communities.
“The vote on this referendum shows that Maine recognizes food as a basic human need and that all future policy decisions about our food supply should build on this value statement,” the association announced on its website.
Maine is almost entirely reliant on food “from away,” the association said, currently importing more than 90 percent of its food supply, despite having abundant natural resources to be self-sufficient and provide its people with a healthy, diverse and delicious diet.
The amendment is “an essential cornerstone in the foundation of a healthy and fair food system for all – one that generates the vast majority of Maine’s food supply with locally, organically grown produce.”
The association plans to work with municipal and state officials to implement policy initiatives that will complement the amendment and help to shift control of the food supply toward individuals and smaller, locally owned farms.
Meanwhile, the Maine Farm Bureau, the largest farming advocacy group in the state, tempered its opposition to the amendment as approval became imminent Tuesday, saying the organization would respect the will of the voters, The Associated Press reported.
“The Maine Farm Bureau is prepared to support Maine farmers as this amendment is enacted and, as always, stands clear in its resolve to protect and embrace food safety and animal welfare as a standard for all Mainers,” said Julie Ann Smith, the bureau’s executive director.
The bureau and other opponents say the amendment is vague and drafted to address a problem that doesn’t exist. At the same time, they say it can be expected to create a host of conflicts that likely will play themselves out in Maine’s courts.
“Litigation is really the only way to understand the scope or intent of this amendment,” said Graham of the Maine Municipal Association.
She said the amendment “handcuffs” lawmakers and other government officials, who must worry how it will be applied in the future.
It might hobble cities and towns as they move toward greater sustainability and consider laws that could affect food production in a variety of ways, such as pesticide bans and animal waste regulations. County jails already face regular challenges over the food they serve and municipalities often deal with neighborhood disputes over keeping livestock in backyards.
“There are a million possibilities,” Graham said. “It likely means somebody’s getting sued and it likely will be municipalities.”
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