You Are What You Eat: Eat Free

Few things are more intimate than sitting around the table to break bread with family and friends.  With alarming frequency, however, government is also demanding a seat at the table.  This uninvited guest seeks to dictate what we have on our plates and in our glasses . . . and, ultimately, what we put in our bodies.

A new report released today, The Attack on Food Freedom, details this growing governmental intrusion into the food choices of ordinary Americans.  But the report—authored by Baylen Linnekin and Michael Bachmann and published by the Institute for Justice—reveals that food freedom is not the only thing under attack.  So, too, is the economic liberty of the farmers, chefs, artisans, restaurateurs and food truck operators who raise, produce, cook and sell the food we eat.

The connection between economic liberty and food freedom may not be obvious, but it is a relationship long and deeply rooted in the history of our Republic.  In the decades preceding the Revolution, the British government imposed draconian taxes and trade restrictions on food items widely consumed by the colonists.  Designed largely to raise revenue—in many cases, by protecting favored business interests from competition—these laws impeded the colonists’ ability to not only feed, but also support, themselves.  Laws such as the Molasses Act of 1733, Sugar Act of 1764 and Tea Act of 1773 fueled growing discontentment in the colonies, leading to the “taxation without representation” rallying cry, the Boston Tea Party and, ultimately, the Revolution itself.

The conception of a new nation led to the adoption of a new constitution.  With the abuses of the crown fresh in their memory, the Founding Fathers ensured that the charter they framed contained strong protections for economic (and, in turn, food) freedom.  Subsequent amendments to the Constitution augmented those guarantees.

But constitutional protections are only as effective as the willingness of courts to enforce them.  Sadly, beginning in the 1930s, courts began abdicating their role as bulwark of our constitutional rights.  That abdication cleared the way for the slew of economic regulations that undermine food freedom today.

This is not to suggest that government has no regulatory role to play when it comes to food—it does.  But far too often, regulations that restrict the economic rights of America’s food producers—and, concomitantly, the food choices of American consumers—have nothing at all to do with government’s legitimate interest in protecting the public health.

For example, many of our food regulations erect procedural hoops and barriers that are utterly arbitrary and wholly detached from public health concerns.  Utah’s “Zion curtain” law, which forces restaurants to erect a literal (and costly) wall between bartenders who mix and pour drinks and the customers who order them, is a prime example.  The law may protect people from seeing what the government deems an undesirable activity, but it does nothing to protect the public health.

Other regulations may purport to advance the public health, but not the conventional (read:  correct) conception of public health that most people have.  Rather than promote sanitation and prevent the spread of bacterial and viral illnesses, these “new” public health regulations seek to manipulate our food choices to conform to what government thinks is an appropriate diet.  Exhibits A and B are former-Mayor Bloomberg’s ban on large soft drinks and his decision to restrict food donations to the homeless because government was unable to monitor the food’s salt, fat and fiber content.

Even regulations arguably aimed at legitimate public health concerns are often extraordinarily overzealous, imposing prohibitively expensive and burdensome requirements on food producers that yield little—if any—public health benefit.  Consider the new composting regulations the Food and Drug Administration proposed last year under the “Food Safety Modernization Act.”  Before a grassroots backlash of small farms forced the FDA to reconsider, these regulations stood to inflict exorbitant compliance costs and render large portions of family farms unusable.  Perversely, the regulations (which large, national agribusinesses supported) would have made it far easier to use synthetic chemicals than compost and other natural soil amendments.

But if so much of our food regulation lacks a rational connection to the public health, what purpose is it actually serving?  Far too often, the twin assault on economic liberty and food freedom is motivated by the twin evils of economic protectionism and paternalism:  government’s desire to protect powerful food industry insiders from honest competition and its belief that it knows better than we do what we should feed ourselves and our families.  Neither use of governmental power is legitimate.

Thankfully, there is a growing, nationwide movement of food entrepreneurs and consumers who are fighting back.  These folks are tired of government making their food choices for them—of government dictating what foods they can grow, sell and eat.  They are courageous Americans like Hermine Ricketts and Tom Carroll, who are fighting back after local officials in Miami Shores, Fla., forced them to uproot their front-yard vegetable garden; Jane Astramecki and Mara Heck, who are challenging Minnesota’s severe restrictions on home-bakers and other “cottage food” producers; and Christine Anderson, who recently prevailed in a constitutional challenge to Oregon’s ban on the advertisement of raw, or unpasteurized, milk.  These folks know that only when government respects economic liberty and other constitutional guarantees, such as property rights and free speech, will Americans be truly free to produce, procure and consume the foods of their choice.

We’ve all heard the old expression, “You are what you eat.”  It is time we once again eat free of the petty, arbitrary and harmful laws that restrict the economic opportunity and food choices of ordinary Americans.

Michael Bindas is a senior attorney with the Institute for Justice (IJ) and leads its National Food Freedom Initiative.  IJ represents Hermine Ricketts, Tom Carroll, Jane Astramecki, Mara Heck and Christine Anderson.

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