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Web exclusive, May 13, 2011
Department of Agriculture to towns: state law preempts local food rules

Click here to see the full Local Food: Ordinances & Issues Archive.

by Faith DeAmbrose

When voters prepared for annual town meetings in Blue Hill, Brooksville, Sedgwick and Penobscot they discussed a document titled “Local Food and Community Self-governance Ordinance” that aimed to exempt farm fresh foods from licensing requirements, provided the sale of those foods happened directly between a producer and a consumer.

While sympathetic to the cause and the feelings of overregulation, town officials consistently warned voters, at public meetings and hearings ahead of annual town meetings, that the passage of the ordinance would do little more than raise awareness and as it turns out, they were right: the state’s Department of Agriculture has taken notice.

In a letter sent to the towns of Blue Hill, Brooksville, Sedgwick and Penobscot, Agriculture’s commissioner, Walter Whitcomb, reminded the municipal officers of the towns that state law trumps local law. “The ordinance purports to exempt local residents from certain food licensure and inspection requirements. Because this conflicts with and would frustrate the purposes of state food licensing and inspection laws, the ordinance is preempted by state law,” wrote Whitcomb in the letter sent to the board of selectmen in Blue Hill. “The Maine Department of Agriculture, Food and Rural Resources will continue to license and inspect all food processors and manufacturers as provided by Maine law, including those located in the Town of Blue Hill.”

While public officials were clear in saying that the ordinance, even if adopted, would not hold up to a legal challenge, the voters of Blue Hill, Sedgwick and Penobscot passed the measure by wide margins during open town meetings, expressing the desire to challenge the current regulations and support local farmers.

Voters in Brooksville did not pass the measure, which was presented on a referendum ballot. There is a movement in Brooksville to petition for a re-vote on the ordinance, but a formal petition has yet to be submitted to the board of selectmen.

Penobscot’s board of selectmen are the only elected officials who have responded to the Agriculture commissioner’s correspondence in a formal way.

In a letter dated April 17, the selectmen assured the commissioner “that the proponents of this ordinance were well informed at town meeting and at the public hearing held earlier that in those cases where the ordinance and state law conflict, state law would prevail and that the Board of Selectmen would not contest any subsequent dispute with the State of Maine.”

However, board chairman Paul Bowen also wrote, “Having said that, and as you well know, history has demonstrated many times that free markets and limited governments create the greatest prosperity for the largest number of people, and the most efficient distribution of goods and services. I think, therefore, it would behoove the State Department of Agriculture and its new Commissioner to strike a reasonable balance between the interests of public safety and the right of a willing seller and a willing buyer to negotiate a transaction beneficial to both with little or no interference from the state.”

The ordinance was created by a small group of local farmers who have spent the last many months talking to neighbors, presenting testimony at town meetings and in Augusta, and helping other neighboring communities, such as Trenton and Gray, adopt similar ordinances. The ordinance drafters include Heather Retberg of Quill’s End Farm in Penobscot, Deborah Evans of Bagaduce Farm in Brooksville and Larissa Curlik of East Blue Hill (with assistance from Bob St. Peter of Sedgwick).

According to Retberg, the issue focuses on food security and the ability of local people to access local foods through direct-to-consumer purchases. It is also about preserving traditional farm practices and about standing up for personal rights, found in both the U.S. and the state of Maine’s Constitutions.

The ordinance, according to its drafters, rests on, one, The Declaration of Independence, which declares that governments are instituted to secure peoples’ rights, and that government derives its just powers from the consent of the governed; two, Article I, §2 of the Maine Constitution, which declares “all power is inherent in the people; all free governments are founded in their authority and instituted for their benefit, [and that] they have therefore an unalienable and indefeasible right to institute government and to alter, reform, or totally change the same when their safety and happiness require it”; three, §3001 of Title 30-A of the Maine Revised Statutes, which grants municipalities all powers necessary to protect the health, safety and welfare of its residents; and four, §211 of Title 7 of the Maine Revised Statutes, which states “it is the policy of the State to encourage food self-sufficiency for the State.”

“We know that Maine is a state with a strong municipal home rule provided by our constitution,” explained Retberg. “We know that allows municipalities to govern things local in nature that do not frustrate state laws. We also know that selectmen take an oath to uphold the constitution and state laws. Well, what happens when those are in conflict? That depends an awful lot on citizen involvement.” Commissioner Whitcomb did not respond to requests for comments by press time.