By: Mike Maharrey
Food freedom flourishes in states where government regulators simply get out of the way. The proof is in the pudding – the and cakes and the bread and the raw milk.
According to a recent Forbes article, hundreds of local business have sprouted up across three states that have passed food freedom laws in recent years without a single report of foodborne illness.
Food freedom laws exempt small food producing businesses from onerous regulations and licensing requirements. These businesses can sell directly to the consumer from a home, farm or ranch, as well as at farmers’ markets and roadside stands.
Wyoming enacted the first such law in 2015. The expansive law even allows poultry farmers with fewer than 1,000 birds to sell chicken and turkey, along with products made from their birds. It also authorizes the sale of raw milk, rabbit meat and most farm-raised fish.
Rep. Tyler Lindholm sponsored the Wyoming Food Freedom Act. He said his state now has the best artisan food laws in the nation.
“When it comes to local foods being produced by local people directly sold to consumers, Wyoming stands far above the rest.”
Following Wyoming’s lead, North Dakota and Utah passed similar laws. In 2017, Maine enacted a law that gives local governments the authority to enact ordinances regulating local food distribution without state interference.
States with food freedom laws have undeniably seen a boom in the number of small, local food producers.
Because these states don’t regulate businesses operating under food freedom laws and no central state registries or licensing databases exist, gaging the economic impact of food freedom can prove challenging. But according to Forbes, the available data paint an encouraging picture. For instance, the number of farmers’ markets has increased by nearly 70 percent since enactment of the Wyoming Food Freedom Act. And the North Dakota Farmers Market and Growers Association estimates there around 600 vendors sell their products at farmers’ markets, the majority operating under the state’s food freedom law.
The most common objections brought up in opposition to food freedom revolve around public safety. But according to Forbes, representatives from health departments in Wyoming, North Dakota and Utah reported exactly zero outbreaks of foodborne illnesses connected to a business operating under a food freedom law. Meanwhile, “Last year, the Centers for Disease Control and Prevention investigated and advised the public on 24 multistate outbreaks of foodborne illness, the highest in over a decade, with federally regulated romaine lettuce, chicken salad, and even Honey Smacks Cereal all linked to outbreaks that hospitalized Americans.”
It appears market forces do a better job of ensuring food safety than government regulatory schemes. As one Wyoming farmer and put it, if you produce a bad product, “you’re risking not only your family’s health, but the health of your community, your friends.”
Food freedom laws not only open markets, expand consumer choice, and create opportunities for farmers and entrepreneurs; they take a step toward restoring the United States’ original political structure. Instead of top-down, centralized regulatory schemes, these laws encourage local control, and they can effectively nullify federal regulatory schemes in effect by hindering enforcement of federal regulations.
While state law does not bind the FDA, the passage of food freedom laws creates an environment hostile to federal food regulation in those states. And because the state does not interfere with local food producers, that means it will not enforce FDA mandates either. Should the feds want to enforce food laws in states with food freedom laws, they have to do so by themselves.
As we’ve seen with marijuana and industrial hemp, a federal regulation becomes ineffective when states ignore it and pass laws encouraging the prohibited activity anyway. The federal government lacks the enforcement power necessary to maintain its ban, and people will willingly take on the small risk of federal sanctions if they know the state will not interfere. This increases when the state actively encourages “the market.”
Less restrictive food laws almost certainly have a similar impact on FDA regulation. They make it that much more difficult for the feds to enforce their will within the state.
Constitutionally, food safety falls within the powers reserved to the states and the people. The feds have no authority to enforce food safety laws within the border of a state. Nevertheless, federal agencies still want more control over America’s food supply, and they go great lengths to get it. For example, the FDA actively bans the interstate sale of raw milk. But, not only do they ban the transportation of raw milk across state lines; they also claim the authority to ban unpasteurized milk within the borders of a state.
“It is within HHS’s authority…to institute an intrastate ban [on unpasteurized milk] as well,” FDA officials wrote in response to a Farm-to-Consumer Legal Defense Fund lawsuit against the agency over the interstate ban. The FDA ultimately wants to maintain complete prohibition of raw milk across the United States.
However, federal ambitions go far beyond controlling your access to raw milk. In fact, the FDA wants to enforce universal, one-size-fits-all control over everything you eat and drink.
Food freedom laws undermine these federal regulatory schemes. Widespread adoption of food freedom, along with state and local refusal to enforce federal mandates, could make FDA regulations virtually impossible to enforce and nullify them in effect and practice.