With new rules for the implementation of the Food Safety Modernization Act expected soon, at least two states are signaling their resistance with proposed legislation that would limit the ability of the federal government to enforce food safety laws in those states.
Bills in the New Hampshire and Utah legislatures seek to exempt from federal regulations food that is grown, produced, sold, and consumed entirely in those states. The New Hampshire bill, HB 1650, would establish a “made in New Hampshire” brand for such foods, which would be subject only to state regulations. It proposes misdemeanor criminal penalties, including fines, for anyone who attempts to help enforce federal food regulations. A similar bill in Utah, SB 34, goes even further, including jail time in the possible penalties.
Representatives of farm groups in both states have come out in opposition to the legislation. The New Hampshire Farm Bureau has called that state’s bill too broad, and a spokesperson for the Utah Farm Bureau told a local newspaper that people living outside Utah might be mistrustful of Utah-made food products.
Both bills are likely unconstitutional, said attorney and food safety expert Bill Marler. “They both impose a state criminal penalty on a federal officer, which is a violation of the supremacy clause of the Constitution,” he noted. “States may not enact laws that put a state penalty on a federal officer doing his federal job.”
What’s more, said Marler, these laws don’t protect local producers from anything. “FSMA doesn’t even apply unless you’re making more than half a million dollars a year and selling products greater than 125 miles from the source, and more than half of your product goes into the broader stream of commerce. These bills wouldn’t do anything to protect local farmers. They’re more show than substance.”