By: Rudman Winchell attorney John K. Hamer

I sat down to read the weekend paper the other day with a cup of organically grown coffee when I discovered we were out of milk. I looked at my black coffee which, despite the three spoonfuls of unprocessed sugar, just lacked something necessary for a Saturday morning. From the kitchen, I heard my wife stop stirring whatever she was going to bake, pick up the measuring cup, open the refrigerator door, and then a silent pause. Across the table, I watched my one year old daughter look at me, then down at her dry cheerios, and then back up at me, and then unceremoniously drop a handful of the dry cheerios over the side of her highchair tray. I got the point, although my daughter was dreaming if she thought she was going to have milk in anything other than a sippy cup. Only the dog seemed not to care, distracted by the raining cheerios.

I grabbed my keys and jumped into the car. The dog followed. Less than ten minutes later, I was standing in front of the milk display in the local market. The dog remained in the car, head out the window enjoying barking at passers-by. I surveyed whole milk, skim milk, 1%, 2%, chocolate milk, even buttermilk, not to mention the heavy cream and half and half. Mesmerized by the various shapes and colors, and not yet having had my morning coffee, my mind drifted.

I wondered what raw milk direct from a farmer was like and if it was better than the options I was confronting. I recalled that at least one town in the region had passed a local food self governance ordinance. It turns out that the town declared by ordinance that people have the right to locally produced foods without state or federal regulation, citing for authority, among other things, the Declaration of Independence. Intriguing.

Specifically, the ordinance provided that producers of local foods are exempt from licensure and inspection provided it was sold direct from the producer to consumer for home consumption. In fact, the ordinance went further to declare that any state or federal regulations that infringed on this right were unlawful, and that any attempt by a government to overturn the ordinance would require the town to hold a town meeting to explore other options, including secession. However, this ordinance was recently held invalid, which is not surprising given the fact that municipalities derive their existence and authority from the Maine Constitution and the Maine Legislature.

A municipality has broad legislative authority, called “home rule,” based on Art. 8, Pt. 2, § 1, of the Maine Constitution and 30-A M.R.S.A. § 3001, and may act on all matters to the same extent as the State of Maine, unless otherwise preempted. Likewise, the Supremacy Clause of the United States Constitution provides that federal law takes precedence over state law, so federal law can preempt state law and local ordinances.

On the state level, whether an ordinance is preempted depends on whether the local action would frustrate the purpose of any state law, and preemption is implied only where it prevents the efficient accomplishment of a defined state purpose. This may occur where an ordinance directly contradicts a state statute or where the legislature intended to create a comprehensive and exclusive regulatory scheme, leaving no room for local regulation. A local ordinance exempting people from complying with state food licensing regulations may have made a statement, but it did not stand a chance. I wondered if the town would really consider seceding.

Just then, a kid pushed by me to restock the shelf and I returned to the here and now. I grabbed my half-gallon of milk and was on my way.

Related links:

Local Food and Community Self-Governance Ordinance of 2011

Maine Constitution, Art. 8, Pt. 2, § 1

30-A M.R.S.A. § 3001


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