NOTE: Recent information has made this story out of date. Click here to see an updated story on this case with new information.
When Brooksville’s Ordinance Review Committee debated placing a local food sovereignty ordinance on the 2013 town meeting warrant, chairman Sarah Cox read a letter from the town attorney, who advised that “it may give selectmen some concern in that [the local foods ordinance] is preempted at state level.”
Voters ultimately approved the ordinance although selectmen did not support enforcing it if challenged by the state. At a hearing prior to town meeting, moderator Robert Vaughn said “it stands as an ordinance until it is challenged.”
Blue Hill selectmen, faced with a similar ordinance in 2011, requested language be changed in the ordinance to hold the town harmless in the event of a legal challenge.
With nine Maine towns having passed similar ordinances, including Sedgwick and Penobscot, momentum seemed to be with the local food sovereignty movement. No ordinance has been challenged by the state; however, the Department of Agriculture initiated a lawsuit against Blue Hill farmer Dan Brown for selling unlicensed raw milk and milk products in 2011. Brown claims he is covered under the Blue Hill local food sovereignty ordinance.
“The question is whether or not state law has preempted local municipal ordinances,” said Brown’s attorney Gary Cox. “Obviously, it’s our position the state does not.” Cox bases this stance on previous cases that used the home rule provision of the Maine Constitution.
After settlement negotiations between Brown and the department floundered, Judge Ann Murray heard motions from both sides on April 23 asking her for a summary judgment in their favor. She had not issued a decision by press time. If she does not grant either motion, the case will go to trial.
“It’s coming down to home rule and the ordinance,” said Brown after the hearing.
LD 475 “ought not to pass”
A recent bill introduced in the Legislature, LD 475, seeks to remove the state’s ability to preempt local government’s right “to regulate food systems via local ordinance.” On April 11, the Joint Standing Committee on Agriculture, Conservation and Forestry held a public hearing and work session on LD 475, ultimately giving a 10-2 “ought not to pass” vote. The bill was sponsored by Rep. Craig Hickman (D-Winthrop).
Several people at the hearing said Assistant Attorney General Jerry Reid gave “state trumps local” as the reason after the committee vote. Reid did not return calls to his office by The Weekly Packet.
“In my view, that was improper,” said Rep. Ralph Chapman (D-Brooksville), who attended the hearing but not the work session. “Until the court decides the ordinances aren’t valid, they are.”
Not all small farm owners at the hearing and work session spoke in favor of the bill.
Levant farmer Joan Gibson, who sells licensed raw milk, spoke against the bill. In an email she circulated among local small dairy farmers, she wrote: “[LD 475] was introduced by a group of individuals from Blue Hill, Maine who continue to illegally sell unlicensed and therefore untested dairy and other food products, such as poultry, from their “farms” and at farmers’ markets. They continue to live in their private world, wanting to make their own rules, regardless of how that affects the health of the consumer and the livelihood of producers like ourselves.”
Kevin Poland, of Poland Family Farm, is one local farmer who stands publicly against the ordinance. He attended the hearing and work session.
“I don’t think there are two sides to this. There’s the law and not the law,” he said in a recent interview.
Poland sees the selling of unlicensed products to consumers at farmers’ markets, where they expect products to be licensed and inspected unless labeled otherwise, as the bigger problem.
“The local food ordinance people are taking advantage of the public’s perception that everything is tested and inspected,” said Poland. “Common sense says food needs to be inspected if it’s out in the streets of the public.”
Poland believes it’s only when farm products leave the farm that the state should be involved.
“If someone…wants to buy something directly from you at your farm, I don’t think there should be any laws…But when you walk off that farm and onto the street, there’s a big difference.”
Both Rep. Chapman and Poland believe that state agricultural laws are not equally enforced, which has contributed to the division between small farmers and the larger issue of food sovereignty ordinances.
The “ambiguity in regulations leads to selective enforcement,” said Chapman, with those regulations geared toward large producers.
“The law is selectively unenforced,” said Poland. “There are numerous people who do uninspected, unlicensed things…I think that half the problems would go away if the laws were enforced.”
Meanwhile, Dan Brown continues to sell his unlicensed raw milk and milk products at local farmers markets, including the Local Food Exchange held Saturday mornings at Mainescape in Blue Hill.
Recently, state retail food establishment inspector John Morris paid the market a visit, but would not comment on why he did so.
“We routinely inspect our sales of prepared food throughout the state,” said John Bott, director of relations for the Department of Agriculture, adding that the department is “neither for or against” LD 475, but “watching that bill and monitoring it.”
Chapman believes the department fears that if LD 475 or a similar law is passed, federal authorities will take over. “It’s very clear that the [state agriculture] department is holding it back,” he said.