Maine voters to consider “right to food” constitutional amendment

It’s an unprecedented approach to food sovereignty. No one can agree what it actually does.  

On Tuesday, Maine voters will consider amending the state constitution to guarantee every resident’s right to food, defined as the ability to “grow, raise, harvest, produce, and consume the food of their own choosing,” as long as it doesn’t involve trespassing, stealing, poaching, or other illegal activities. If passed, it would mark the first constitutional amendment of its kind in the United States. But it’s not immediately clear what the amendment would actually do.

Proponents of the amendment, who have spent years advocating for it, argue that it will allow farmers to continue saving and exchanging seeds while enshrining the rights of hunters and fishermen. (Neither seed-saving nor hunters’ rights are under current direct threat from new laws or regulations.) More broadly, supporters say the amendment would support relocalizing the food system and challenge corporate control of the food supply. “It safeguards essential freedom while protecting against abuse. It’s Maine food and government by the people, of the people, and for the people of Maine,” said Heather Retberg, livestock farmer and co-author of the bill, in a statement provided to The Counter. 

Opponents have raised concerns about food safety and animal welfare. They worry the amendment could challenge state and local laws and allow people to raise animals in their backyards in inhumane conditions. “A constitutional law supersedes any existing law when it’s passed. It’s not going to wipe out every single law immediately, but it gives standing in court to anyone to challenge the law,” says Julie Ann Smith of the Maine Farm Bureau. (Supporters say language in the amendment protects private property and natural resources and does not conflict with existing animal rights laws.) The Maine Municipal Association, which opposes the bill, worries the costs of litigating these questions will fall on towns and cities. 

“A constitutional law supersedes any existing law when it’s passed. It’s not going to wipe out every single law immediately, but it gives standing in court to anyone to challenge the law.”

Retberg described the constitutional right to food as a step toward local food sovereignty, “a strong foundation under a very unstable food house,” in an interview with Maine Public Radio. If that sounds a little vague, the editorial boards of two local newspapers agree: Both the Portland Press Herald and the Bangor Daily News oppose changing the state constitution, arguing that legislators should instead craft food policy that targets specific issues. “Question 3 raises a lot of legitimate concerns, but it won’t necessarily fix them,” the Press Herald wrote. “We have a hard time seeing how creating this new ambiguous constitutional right won’t lead to court challenges where judges, rather than the Legislature, will decide what this language really means,” the Daily News editorial board added. 

In Maine, the food sovereignty movement has been gathering steam for years. Roughly a decade ago, a handful of municipalities passed ordinances to allow food producers to bypass regulatory requirements when selling directly to consumers, making it easier for small farmers and makers to do business. A granola maker in New York might have to rent space in a city-inspected commercial kitchen before she can sell at the farmers’ market; in Maine, these local ordinances were meant to allow her to bake that granola at home. As long as she was selling only to people she met face to face, the logic went, anyone with food safety complaints would know where to find her—meaning there was no need for additional regulation. 

In 2017, the state enacted a law that legitimized these local ordinances, giving towns express permission to enact their own food policy without interference from the state government. As The Counter wrote at the time, the new law cracked open the door for casserole sales between neighbors. (Raw milk sellers were also big fans, the Associated Press reported.)  It also drew the attention of the federal government. Later that year, the Department of Agriculture (USDA) issued a stern warning: If Maine legislators refused to amend the law to ensure meat and poultry processing conformed to federal standards, the agency would take over the state’s inspection program. Today, the state’s food sovereignty law does not apply to meat and poultry, which would likely remain subject to federal inspection even if the new amendment is passed. 

“Question 3 raises a lot of legitimate concerns, but it won’t necessarily fix them,” the Press Herald wrote.

Still, it’s not clear what, exactly, would change with the passage of the amendment. Like so many food issues, the initiative has made for some strange political bedfellows. On the “yes” side, hunters and fishermen recently sided with organic farmers. The Sportsman’s Alliance of Maine, having initially sat on the sidelines, joined supporters after a legal analysis showed the amendment could impact hunting. They see it as a possible legal framework to fight hypothetical future bans on hunting specific species, like moose. 

Meanwhile, the “no” side has attracted support from national animal welfare advocates, who have found common cause with the pro-business Maine Farm Bureau, which voiced food safety concerns, the Maine Veterinary Medical Association, and the Maine Municipal Association, which offers professional support to cities and towns. Veterinarians and animal welfare types worry the amendment will lead to novice homesteaders, ill-equipped to take care of animals, getting in over their heads. For its part, the municipal association worries towns will wind up footing the bill for legal challenges that arise from the passage of the amendment. For example, someone might invoke their right to food by trying to raise roosters in their backyard in violation of a city ordinance. The city may then have to foot the bill to litigate the dispute in court, executive director Catherine Conlow said during a panel on the NPR show Maine Calling. 

The amendment has already passed both chambers of the state Legislature, and Tuesday’s vote is the final hurdle. If successful, proponents hope the amendment could inspire similar initiatives in other states.  

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H. Claire Brown is a senior staff writer for The Counter. Her work has also appeared in The Atlantic, The Guardian, and The Intercept and has won awards from the Society for Advancing Business Editing and Writing, the New York Press Club, the Newswomen's Club of New York, and others. A North Carolina native, she now lives in Brooklyn.