Trojan Horse “Food Safety” Law

A misguided bill, the Food Safety Modernization Act of 2009, may shut down farmer’s markets and “drive out of business local farmers and artisanal, small-scale producers of berries, herbs, cheese, and countless other wares, even when there is in fact nothing unsafe in their methods of production,” warns Walter Olson at Overlawyered.

Ignorance about the law’s broad reach (and how it will be construed by the courts) has thwarted opposition to the bill, which will likely pass Congress. For example, a newspaper claims the bill “doesn’t regulate home gardens.” The newspaper probably assumed that was true because the bill, like most federal laws, only purports to reach activities that affect “interstate commerce.” To an uninformed layperson or journalist, that “sounds as if it might not reach local and mom-and-pop operators at all.” (The bill’s sponsor, Rep. Rosa DeLauro, has sought to forestall opposition to her bill by falsely claiming that that “the Constitution’s commerce clause prevents the federal government from regulating commerce that doesn’t cross state lines.”)

But lawyers familiar with our capricious legal system know better. The Supreme Court ruled in Wickard v. Filburn (1942) that even home gardens (in that case, a farmer’s growing wheat for his own consumption) are subject to federal laws that regulate interstate commerce. Economists and scholars have criticized this decision, but it continues to be cited and followed in Supreme Court rulings, such as those applying federal anti-drug laws to consumption of even home-grown medical marijuana. Indeed, many court decisions allow Congress to define as “interstate commerce” even non-commercial conduct that doesn’t cross state lines — something directly at odds with Rep. DeLauro’s claims.

Moreover, DeLauro’s own bill has a sweepingly broad jurisdictional provision that creates a presumption that home gardens do affect interstate commerce. Section 406 of the bill reads as follows: “PRESUMPTION. In any action to enforce the requirements of the food safety law, the connection with interstate commerce required for jurisdiction shall be presumed to exist.”

Lori Robertson of, who is not a lawyer (she has a B.A. in advertising), claims the bill doesn’t apply to “that tomato plant in your backyard.” As a lawyer, I am skeptical of this claim. (I co-represented the prevailing defendant in the last successful constitutional challenge to federal regulation under the interstate commerce clause, United States v. Morrison (2000) — one of only two cases since the 1930s where the Supreme Court limited, rather than rubberstamped, regulation in the name of “interstate commerce”). And it appears that that the proposed law CAN apply to that tomato plant in your backyard (or Michelle Obama’s garden), since Congress’s power under the Commerce Clause is almost unlimited in the eyes of the courts.

This so-called “food safety” bill may actually make food less safe. Federal regulation often backfires or reduces competition. A classic example is the 2007 child-safety law, the CPSIA, which was based on junk science. It shut down countless thrift stores and entire industries, resulting in children’s books being thrown out and pulled from library shelves by the thousands. It harmed poor people and special-needs kids. It rendered many ordinary bicycles illegal and made motorcycles more dangerous to children.

My wife, who immigrated from France, already finds it difficult or impossible to obtain many of the food items she likes from her native country (like raw-milk cheeses). This law will make it even worse. As Olson notes, “Many informal makers of ethnically or culturally distinctive food items will go off-books or simply fall by the wayside, overwhelmed by the reporting and batch-tracking paperwork. Many foreign producers who ship in less-than-mass quantities will give up on the U.S. market rather than try to comply with challenging standards that differ drastically from those imposed by European markets or their own countries of origin, which in turn will mean that many interesting and safe specialty foods will simply no longer be available for purchase, at least legally.”