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Abstract

The State of Maine is leading the nation in efforts not only to promote production of locally and sustainably grown food, but the right of consumers to grow, produce, and consume the food of their choosing. This includes creation of a constitutional right to food, a right recognized in the global community but not throughout the United States. Many advocates in the United States emphasize the right to food as a human right, advocating for the same attention and protection as other human rights such as the right to life, liberty, freedom from slavery, and freedom from discrimination. The right to food provides individuals with greater access to healthy and sustainable food. This meets the global right to food standards of availability, accessibility, adequacy, and sustainability. A constitutional right to food addresses the challenging regulatory environment for food production and prioritizes access of individuals and families to nourishing food. This constitutional right is not only about access to food as a human right, but it also protects the ability of individuals to grow their own food or to obtain their food from small, local producers whom they trust. This Article approaches the constitutional right to food as a method to mitigate the overwhelming morass of regulations that discourage local food production by smaller independent farms and by consumers themselves. Establishing this right prioritizes the rights of individuals and small producers to produce locally grown, sustainable, and healthy food over regulations that favor larger industrial producers. Legal obstacles throughout the United States impede the ability of homesteaders, home gardeners, cottage food producers, and others to produce their own healthy, sustainably grown food. Impeding regulations include zoning prohibitions on the raising of chickens, front yard gardens, hoop houses, and other land uses. Small farms, increasingly sought out by consumers, are similarly affected. Regulations that negatively impact them include licensing and zoning restrictions; challenges to meat and poultry processing; complex food safety regulations; and regulation of unlicensed eggs, cottage foods, and dairy products. Continuing problems with and access to the U.S. meat processing industry forces local producers to drive long distances for processing, which is harmful to both the environment and to animals raised in humane conditions. Passage of a constitutional right to food and food sovereignty legislation provides an effective method of diminishing the impact of a regulatory system that supports centralization of the U.S. food supply controlled by a small number of corporate producers. It appropriately prioritizes the right of individuals to obtain locally and sustainably grown healthy food. The Maine constitutional right to food and the Maine Food Sovereignty Act provide a helpful blueprint for expanding Americans’ right to food. Maine courts and its Legislature should protect this new right to food, avoid unnecessary limitations, and prevent state agencies from violating the text, spirit, and intent of this basic right to food. Pending in the Superior Court of Maine is Kenduskeag Kitchen et al. v. Lambrew and DHHS. Kenduskeag Kitchen had been preparing food from locally produced ingredients permitted by a town ordinance and the Maine Food Sovereignty Act. The Maine Department of Health and Human Services insisted that the Kitchen obtain a food establishment license, which in turn requires construction of a cost-prohibitive commercial kitchen. Such action violates the Maine constitutional right to food by interfering with consumer choice of local healthy nourishment. The action likewise violated the Maine Food Sovereignty Act, which authorizes local control. By closing Kenduskeag Kitchen, the state shut down the only healthy prepared food option in town. This action demonstrates the need for a constitutional right to food over mere statutory changes.

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