Maine Voters To Decide on Constitutional 'Right to Food'

Language regarding seed exchanges could violate contracts.

Maine voters are set to decide this fall whether to enshrine a "right to food" in the state's constitution, the Portland Press-Herald reported this week. If passed, the state would become the first to guarantee such a right.

The proposed constitutional amendment, sponsored by Sen. Craig Hickman (D–Winthrop), an organic farmer, will ask voters if they "favor amending the Constitution of Maine to declare that all individuals have a natural, inherent[,] and unalienable right to grow, raise, harvest, produce and consume the food of their own choosing for their own nourishment, sustenance, bodily health[,] and well-being[.]"

Hickman's previous efforts to add a right-to-food amendment to the state constitution, which I wrote about in a 2016 column, fell short.

The current proposed amendment is proving controversial.

Part of the controversy over a "right to food" is that people don't agree on the terms. For example, some experts define a right to food as "demanding that [one's] food be adequate, available[,] and accessible." Others contend it means a right to "discounted food." Either of those interpretations amounts largely to a positive right—basically, a mandate that someone else provides you with adequate food.

Others—me included—think of a right to food as a negative right—which means that people have a right to provide sustenance for themselves and others free of government interference. In May, as Maine's House of Representatives greenlit sending the right-to-food amendment to voters, State Rep. Margaret O'Neil (D-Biddeford), a supporter of the bill, told Maine Public Radio that to her the bill recognizes that "[f]ood is foundational to life and food freedom is really the freedom to grow, prepare[,] and consume food." Rep. O'Neil's thinking about a right to food tracks closely with my own. (I typically define food freedom as a person's right to grow, raise, produce, buy, sell, share, cook, eat, and/or drink the foods of their own choosing.)

But the chief controversy over the ballot measure involves the language of the proposed amendment, and the likelihood that it will spur a host of court challenges—a prospect everyone seems to agree on. Indeed, while critics contend the amendment could spur litigation, supporters do, too. Both Sen. Hickman and a GOP colleague who supports the bill— State Rep. Billy Bob Faulkingham (R-Winter Harbor)—note they expect pushback from corporate farming interests. In this way, both critics and supporters of the right-to-food amendment are correct.

While I love the language in the ballot measure and think it would likely improve any state constitution to which it was added (though I would improve upon it further, including by ending the text after the word "choosing"), that's not the language that would in fact be added to the state constitution if Maine voters approve the measure.

In fact, if approved, the state constitution would be amended to declare—I've italicized a portion of the pertinent text of the proposed amendment to indicate how it differs from the language in the ballot question—that "[a]ll individuals have a natural, inherent[,] and unalienable right to food, including the right to save and exchange seeds and the right to grow, raise, harvest, produce and consume the food of their own choosing for their own nourishment, sustenance, bodily health and well-being[.]"

In 2016, Andy O'Brien, then-editor of Maine's Free Press, cautioned that the proposed amendment, which contained similar language pertaining to seeds as is found in the current version, could bump up against contracts signed by Maine farmers that protect the intellectual property rights of makers of seeds—particularly GMO seeds. Notably, Maine's state constitution—like the U.S. Constitution—prohibits the passage of laws that "impair[] the obligation of contracts."

As I explained in my 2016 column, language creating a right to save and exchange seeds is highly problematic because it would likely impair existing contractual obligations. "The issue with saving [or exchanging] seeds arises when a farmer voluntarily signs a contract that says he won't do so, as many seed contracts offered by GMO producers do," I wrote. "The seed language therefore would make it difficult for Mainers to do business with GMO seed producers. And that may have been the point of the controversial language."

After all, Sen. Hickman, the amendment's sponsor, is an organic farmer who—by definition—does not utilize GMO seeds on his farm. In that context, it's difficult to see how the seed language is anything but an attempt to target GMO seed makers and to evict their crops from Maine entirely.

"Ultimately, Maine's constitutional amendment could have impaired basic freedom of contract and led to the amendment's death in court," I concluded, of the failed 2016 effort. "That would have made it a setback for food freedom."

In that same column, I called the proposed right-to-food amendment "mostly great." The current version is, too. Sadly, though, it still contains language that impairs the ability of Maine farmers to engage in voluntary contracts with seed makers. To me, that's a fatal flaw