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PA Governor: Marshmallow Peeps are "Life-Sustaining," production can continue during COVID-19 Emergency

Designating candy as "life-sustaining," but not constitutionally-protected firearms, is irrational

|The Volokh Conspiracy |

Tom Wolf, the Governor of Pennsylvania maintains that licensed firearm dealers are not "life-sustaining" businesses. Therefore, they must shutter during the COVID-19 emergency. But, thankfully, the Peeps factory in Bethlehem, PA can remain open. Yes, the popular marshmallow candy is "life-sustaining."

Regardless of what the nutritional facts are on the side of a box of PEEPS, the marshmallow treat's producers in Bethlehem believe that it's an emotionally healthy necessity and therefore, an essential business.

Just Born, the company behind PEEPS as well as Mike & Ikes, Hot Tamales and more, sent out a statement in the wake of Pennsylvania Governor Tom Wolf's order for all non-life-sustaining businesses to close down in order to stop the spread of coronavirus. Food manufacturing falls into the "life-sustaining" category, which includes PEEPS.

This sort of evidence would help the Supreme Court summarily conclude that the Governor's policy is completely irrational. Caetano v. Massachusetts provides a guide. That case declared unconstitutional Massachusett's ban on stun guns. But the two-page per curiam decision did not wade into Heller's unresolved issues.

Here, the Supreme Court could simply say that Pennsylvania's distinction of what is, and is not "life-sustaining" cannot survive even rational-basis review. Indeed, other states have designated firearm dealers as "essential." Stay tuned.

H/T David Sokasits

Update: The Peeps factory will close on Wednesday. Worry not, they will ship enough marshmallows to retailers.

But don't worry there are still plenty of PEEPS to fill Easter baskets on April 12. All of the marshmallow goodies have already been shipped to retailers, Just Born reports.

The candy maker also has inventory of Mike and Ikes, Hot Tamales and Goldenberg's Peanut Chews for a short-term closure, but some items may go out of stock, the company warns.

"We will continue to work with our retail partners to ensure that the fans of our brands can continue to enjoy them during this challenging time," according to the statement.

The Just Born facilities will close no later than 6:30 a.m. Wednesday and remain closed through at least April 7. The PEEPS and Company Store at the Promenade Shoppes closed March 17 and will remain closed until at least April 7.