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HomeHealth Law & PolicyThe New Frontier of Food Law: Constitutionalizing Food Freedom Post Lochner

The New Frontier of Food Law: Constitutionalizing Food Freedom Post Lochner

When you think about food law, what is the first thing that pops into your head? Perhaps
it is food labelling regulations, or mandated safety inspections, or the Farm Bill. Clearly there are a large swath of regulations, statutes, and institutions that might come up. One thing is for certain, however: you do not think of the Constitution.

Given the historic fall from grace of Lochner v. United States, that reaction is not surprising. Lochner was a Supreme Court case widely known to establish a fundamental substantive due process right to contract under the 14th Amendment. 1 Any abridgement of that right through economic regulation had to be “a fair, reasonable, and appropriate exercise of the police power of the State” to pass constitutional muster. 2 However, this economic due process doctrine did not last long. In West Coast Hotel Co. v. Parrish, the Court affirmatively disavowed any fundamental right to freedom of contract under the 14th amendment. 3 Since then, any economic regulation “which is reasonable in relation to its subject and is adopted in the interests of the community” meets due process. 4 Many scholars therefore find it reasonable to assume that “economic ‘substantive due process’ is entirely dead [and] buried.” 5

This begs the question: does this mean that a constitutional attack on laws that implicate
food freedom are dead? Recent cases out of Wisconsin and Florida show that the answer is no, not completely.

In Diaz v. City of Fort Pierce, a Florida circuit court found that a ban on food trucks
within 500 feet of restaurants was substantially likely to violate due process under the Florida Constitution. 6 Though the City claimed vague interests in the safety of the community, commissioner meetings revealed an underlying desire to prevent competition against established restaurants. 7 The court cited two main problems with the law: (1) the ordinance did not reasonably serve the cited safety interests, and (2) the ordinance solely served the city’s illegitimate interest in economic protectionism. 8 Other ordinances were more closely tailored to safety issues like preventing traffic and littering, including trash receptacle requirements and prohibitions on the blocking of streets. 9 There was no independent reason why proximity to a restaurant posed particular safety concerns. 10 The protectionist interests, meanwhile, were deemed contrary to the public welfare, and were therefore not legitimate government interests for due process purposes. 11

Similarly, in Kivirist v. Wisconsin Department of Agriculture, a Wisconsin district court
found that regulations prohibiting the sale of home-baked goods without a commercial grade kitchen violated due process under the Wisconsin constitution. 12 Like in Diaz, there were two main problems with the regulations: (1) experts agreed that home baking did not pose any substantial health risks; and (2) underlying protectionist interests created skepticism over the state’s health motivations. 13 The process of baking rendered the products non-hazardous, and there was no evidence of any outbreaks caused by home baking. 14 Additionally, special allowances were made for certain food providers despite similar safety risks, showing that protectionist interests were likely involved. 15 This combination of lack of evidence of health risks and underlying protectionist interests ultimately doomed the regulatory scheme, even under deferential rational basis review. 16

The Diaz and Kivirist cases show that a food freedom case in more likely to succeed
where the regulation’s impact on the purported state interest is easy to verify or test, and
underlying protectionist interests are clearly at work. This happens more often where the state claims an interest in health or safety, as scientific evidence or even common sense can be used to demonstrate the impact of a potential regulation. Safety interests like blocking traffic or littering, as in Diaz, are easy to identify and can be addressed in clearly defined ways. These risks tend to be obvious, with courts easily being able to determine when an activity actually risks blocking traffic or producing litter, and when it does not, and which regulations effectively remedy these problems. In Diaz, for instance, the city already had a regulatory scheme which solved these problems in more targeted ways, while requiring 500 feet of distance clearly did nothing to stop trucks from blocking the street or causing litter. 17 An even stronger case exists where the proclaimed risk can be scientifically tested, as with the health concerns of home baking in Kivirist. 18

Importantly, however, less “testable” and more subjective interests can still withstand
constitutional scrutiny. For instance, a town’s interest in “community beauty” successfully
justified a front-yard garden ban in Florida. 19 This shows that while this emerging food freedom rule could have significant implications, it will still be reasonably limited to the most egregious of violations, avoiding Lochner-era risks of judicial activism. Rather, rational legislation will still be able to thrive, especially when involving subjective interests tied to community values.

These recent trends could have substantial policy implications. Though both are state
constitution cases, the use of rational basis review identical to the federal test invites wider
application. In particular, the rule can circumvent the costly and biased legislative process,
discourage domination by certain powerful food retailers, and in turn increase consumer choice.

The legislative process works extremely slowly, making it difficult to implement critical
changes. 20 Moreover, the actions of the city commissioners in Diaz reflect how the process often serves the interests of those with more money, power, or established presence in the
community. 21 Similarly, Kivirist highlights how special interests can often muddy the legislative process to hurt smaller producers for the benefit of larger producers. 22 For this reason, some food freedom activists go so far to claim a “direct assault on economic liberty and food freedom” by legislatures. 23

Thus, attempts to change laws through legislation can be extremely difficult, even where
that regulation is obviously irrational, biased, and harmful towards certain groups. By contrast, constitutional rules are known to give parties with less political influence a meaningful opportunity to challenge arbitrary laws and secure their rights. 24 This emerging food freedom rule can therefore help harmed citizens circumvent the legislative circus and more effectively block arbitrary and biased laws.

The fight against protectionism in particular—known to stifle competition, decrease
consumer choice, and increase prices 25 —will also benefit the public. Consumers will not be limited in their food choice and access to the select businesses the government favors. Instead, allowing more participants in the market will ensure that innovation and consumer choice can thrive.

The constitutional rule demonstrated by these recent cases therefore has the potential to
create serious policy benefits. Yet, the rule also remains limited enough in scope to prevent
unwanted negative effects and overly pervasive constraints on regulation. A continued trend in this direction would thus be a valuable contribution, especially if it extends beyond state constitutions onto the federal level.

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