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Fresh Maine Law Lets Municipalities Regulate Local Food Production

Jennifer Mitchell
Maine Public
Heather Retberg with goats at Quill's End Farm in Penobscot.

Earlier this month, Republican Gov. Paul LePage took up a Democrat-sponsored food sovereignty bill, and signed it. The move, which delighted or dismayed, depending on who you talk to, essentially tells state regulators to butt out if a municipality chooses to assert its local authority over food regulation.

The law, though similar in spirit to those passed recently in Wyoming and North Dakota, is being hailed as the first of its kind in the nation, with almost ten years in the making.

The term “food sovereignty” may be relatively new, but the actual practice dates back centuries. Until the 20th century, neighbors could buy and sell everything from apples to hog head cheese right off the farm.

“So food sovereignty is really about people making the decision about our food and not corporate entities, not agencies,” says Heather Retberg who, along with her husband, Phil, has a small farm in Penobscot near Blue Hill.

For nearly a dozen years, they sold milk — straight from their hand-milked cows and goats — and meat to local customers who came to their farm store. But all that came to an end one day in 2009. The couple had just spent the day slaughtering chickens at a friend’s processing shed, when a state inspector paid them a visit.

“And the inspector let us know that we were not allowed to do that because our friend, under USDA rules, wasn’t allowed to share his facility at all. And we would have to build our own facility. And while he was here he noticed that we were selling fresh milk, and then he called back a few weeks later and said ‘By the way, I should let you know the department is also reviewing our milk policy and we’ve reclassified you,’” Retberg says.

She says, with a stroke of a pen, she and her husband were no longer farmers but “distributors,” facing thousands of dollars in compliance upgrades.

According to a spokesman for the Maine Department of Agriculture, the Retbergs and others like them were not actually “reclassified,” but when the oversight of milk sales was shifted from the division of animal health, the department actually started enforcing the law that had been inserted into statute about 10 years earlier.

Either way, it meant the couple couldn’t sell their milk in the way they had been, and the Department of Agriculture wouldn’t budge. So they decided to try something else. A 1969 amendment to Maine’s constitution strengthened the power of home rule in cities and towns. And so the nation’s first local food sovereignty ordinance was drafted at the Retberg’s kitchen table.

When it was adopted in 2011, there was just one problem. It didn’t keep local farmers from being penalized for violating state law. The bill signed by LePage does.

“We’ll see how it works. It’s different from anything in the nation. Do I support it? No, but I didn’t fight it to the end like I have in the past,” says Republican state Rep. Jeff Timberlake of Turner, co-owner of one of Maine’s biggest apple orchards.

Timberlake says he’s concerned about the scope of the new law, which gives towns oversight of food production, processing and consumption, among other things.

“Most of the small towns in the state of Maine where farmers are do not have health departments where they have health inspectors that go out and inspect your farm. You know, they’re building inspectors that go out, inspect if you put the stairs in right or the roof trusses in right, but they don’t have people who do food inspection — and we’re talking things that are capable of making people sick,” he says.

Credit Jennifer Mitchell / Maine Public
Maine Public
The Retbergs have a small herd of cattle, which are tended and milked by hand, and the milk sold to locals who come to the farm. They say rules designed for operations that might have thousands of cows don't make sense for tiny, hyperlocal farms like theirs.

According to the U.S. Centers for Disease Control, 48 million Americans will experience a food-borne illness this year, even with regulations in place. Of those, more than 100,000 will be hospitalized and 3,000 will die.

Proponents of the law argue that much of this disease is a direct result of factory farming and food centralization, not food produced on small farms. John Rebar, who heads the University of Maine Cooperative Extension, cautions that just because it was a traditional practice doesn’t mean it’s advisable.

“Years ago there was probably much more food-borne illness than there is now, because we didn’t have the regulatory and the science-based knowledge that we have now. But because food was so decentralized, the incidence of it wasn’t as widespread as it possibly could be with a large processor or producer who might produce a tainted product.”

In other words, illness tended to run its course locally, whereas today, one Listeria outbreak in California can make the whole country sick. Maine’s food sovereignty law tries to address this by limiting transactions to local, face-to-face sales only. Anyone wanting to ship or distribute products outside the immediate community still needs the blessing of state or federal regulators.

Rebar says it’s unrealistic to think that these products won’t be shared beyond the borders of the town where they’ve been produced. And without mandatory state inspections, he says it will be down to each farmer to self-police.

State Rep. Craig Hickman says that’s what good farmers do everyday.

“This isn’t really about food safety as much as it has been opposed for that reason,” he says.

Hickman, a Democrat from Winthrop, has worked on the issue for years. He says the law is about letting people decide for themselves where they feel comfortable buying their food.

In fact, Hickman credits overregulation for getting him fired up about politics in the first place, after state inspectors told him he couldn’t sell his homemade yogurt at his farm, where he also runs a bed and breakfast.

“I believed that some of the regulations — the one size fits all regulations — that the department wanted for a homestead of my size didn’t seem fair to me or to the people in my community who wanted to buy my food,” he says. “And so I came to the Legislature to try and make a change, and five years later it has happened.”

Supporters didn’t get everything they wanted. The original bill included not just food but water, which proved to be too controversial and was struck from the final version of the bill.

Currently, 20 Maine towns have adopted local food ordinances where wheels of cheese and quarts of milk can be directly purchased from farmers. But with the threat of fines and lawsuits no longer in the background, more towns are expected to join what appears to be a growing food sovereignty movement.

It’s unclear at the moment what state regulators think about it. John Bott, a spokesman for the Maine Department of Agriculture, Conservation, and Forestry, says the department is still in consultation with state and federal officials to determine the “broad legal implications” resulting from the bill’s passage, and how the new law will be implemented going forward.

This story was originally published on June 28, 2017, at 4:06 p.m. ET.