The states of Utah and New Hampshire, along with a sheriff in Indiana, are trying to keep the federal government from “interfering” in regulation of food products produced and sold in those states.
Utah and New Hampshire have recently introduced bills in their state legislatures that would make it illegal for federal officials to investigate or have jurisdiction over foods grown or produced, and sold, entirely within state borders.
In Utah, S.B. 34 was proposed in response to the Food Safety Modernization Act. The bill would prohibit federal regulation of agricultural products that are made, grown, produced, and sold within state borders. Attorneys for the legislature attached a note to the bill, stating that there is a “high probability” the bill is unconstitutional.
And this bill would most likely conflict with Congress’s power under the Commerce Clause.
The New Hampshire bill, HB 1650-FN, would have exempted food grown, produced, and sold in New Hampshire from federal regulation if the product is labeled “Made in New Hampshire.” The New Hampshire Farm Bureau and the New Hampshire Department of Agriculture both opposed the bill, which was defeated in a committee vote on January 26, 2012.
And a sheriff in Indiana, Brad Rogers, has notified the Department of Justice that if they enforce a subpoena issued by that department at the request of the FDA against two raw milk producers, David Hochstetler and Richard Hebron, they would “have to go through him.”
Ross Goldstein, a Justice Department attorney, emailed Rogers and told him that interfering with a federal investigation could be prosecuted as a felony. Goldstein cited the “supremacy clause” that the Supreme Court has interpreted as meaning federal rules and laws are superior to local rules and laws.
In 2010, the Michigan Department of Health issued a health warning about raw milk from Hochstetler’s farm in Forest Grove, Indiana, reporting there were Campylobacter infections among people who drank raw milk from the farm. The Department said that “epidemiological evidence points to Forest Grove.”
Since it’s illegal to sell raw milk in Indiana and illegal to transport raw milk for sale across state lines, the milk was supplied to a cooperative in Michigan which bought herd shares, allowing the consumers to become “co-owners” of the cows.
The FDA wants to inspect the farm without a warrant, since they say federal law allows it, and did so twice in March 2011. But when FDA agents tried to inspect the farm a third time, they were refused entry.
Goldstein wrote to Rogers, saying: “Because Forest Grove Dairy manufactures, processes, packages or holds food, the provision of federal law authorizes FDA personnel to enter Mr. Hochstetler’s property. Because it is a federal law, indeed an act of Congress, officers or employees of the FDA may do so lawfully without regard to any Indiana law to the contrary.”
The federal subpoea for Hochstetler has been withdrawn and there has been no further action from the federal government. Inspectors have not tried to access the farm since March 2011.
