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Maine voters could add a 'right to food' amendment to the state constitution. Here's what that means

Heather Retberg at her farm in Penobscot, Maine. She had helped lead the campaign for Question 3, which could make Maine the first state with a "right to food" amendment in its constitution.
Heather Retberg at her farm in Penobscot, Maine. She had helped lead the campaign for Question 3, which could make Maine the first state with a "right to food" amendment in its constitution.

Question 3 on the November ballot asks Maine voters if they want to add an amendment to the Maine State Constitution to make growing, raising, and harvesting food an individual right.

If passed, Maine would be the first state in the U.S. to do that — although others are considering similar measures. In a rare example of a truly non-partisan issue, the question has drawn support and fire from a broad array of groups.

Heather Retberg has been homesteading and selling goods from her Penobscot Farm for 16 years. She helped create the state's groundbreaking 2017 food sovereignty law, the first of its kind in the nation. That law recognized that towns have the authority to make their own food policy through local ordinance.

Retberg says the 2017 law was a step toward better food security for Mainers but systemic problems of supply and access remain. And she says the way to start to address those is with the constitutional right to food.

"When we see those high rates of hunger, when we see how vulnerable Maine's food supply is, I really think that's a helpful metaphor for people to think about with the constitutional amendment. That we are trying to secure a strong foundation under a very unstable food house, if you will," she says.

As elsewhere in the country, Mainers experienced bare meat aisles, rationed eggs, and lack of milk during the pandemic, which in turn drove them to seek groceries from a local food system — which no longer exists in many communities.

The notion of securing a "right to food" seems like a common sense response for supporters like Retberg. But for opponents of Question 3, it's seeming simplicity is what makes it confusing and unnecessary.

"When I first read the legislation when it was in the legislature, I thought 'Oh my gosh. They've written a bill asking if puppies are cute. Like it's so... 'Do we have a right to food?' Well, of course we have a right to food!" says Janelle Tirrell, an equine vet who serves on the board of the Maine Veterinary Medical Association.

At first, Tirrell says, the bill seemed "confusingly obvious," but then she began to think about unintended consequences. For example: animal welfare.

Tirrell says she's already witnessed mistakes being made by novice homesteaders who tried to raise their own food during the pandemic.

"A feeder pig is adorable when it's a baby. But it gets big and it gets aggressive. And when you raise a pig you have to plan for how you're going to harvest and process that pig at the end — before the pig arrives on your farm. So we actually had quite a few people with large hogs on their farm unable to get them processed, and that fell to animal welfare to deal with," she says.

Tirrell says she can see a future where a person keeps a cow or a pig in an inadequate enclosure and is able to defend that practice under the constitutional right to food.

Contrary to popular belief, she says backyard farms are not always clean, kind, places for animals to live. She says she already sees too many cases of well-meaning people getting in over their heads with dreams of a "back to basics" lifestyle.

"And the idea that I would have to be involved in more because of something like this? It just weighs on me," she says.

Representative Jennifer Poirier of Skowhegan is a Republican co-sponsor of the bill, which has proponents and critics from both sides of the aisle.

"I would not have signed on to a bill had it actually had that effect. Many lawyers went over this bill with a fine tooth comb. The animal cruelty laws do remain in effect," she says.

She says there's nothing in it at odds with animal welfare. Or property rights, or hunting and fishing rights.

What she says it will do is give individuals legal standing in food policy issues going forward. As an example, she points to petition initiative 13 in Oregon, which seeks to criminalize the breeding and killing of animals.

"It would make fishing and hunting criminal offenses. I think everybody sees the importance to secure our natural, inherent, inalienable rights to food. It's the Maine people stating this is what our fundamentals are. This is what our fundamental beliefs are. To secure the rights of Mainers for not just now but future generations to come," she says.

Supporters of question 3 also point to factory farming conditions, supply chain bottlenecks, shipping issues, climate change, and conflicts over patented, bioengineered seeds, as other reasons why individuals ought to be enabled to grow more of their own food, and why they need a firmer legal footing in court.

But opponents are skeptical that a state constitutional amendment will carry any significant weight when stacked against a host of federal laws.

Dan Shea directs the Goldfarb Center for Public Affairs at Colby College. He's not taking a public position on Question 3. But Shea says there has been a trend to try to settle more sticky issues through ballot questions and constitutional amendments, in an effort to avoid the often frustrating world of policy-making and repeal. The question for him is whether it's a good idea or not.

"Because if you define a policy question as a fundamental right, then there's no debate, there's no compromise. Opponents aren't simply wrong-headed — they're oppressors," Shea says.

"But remember, if you veer away from that complexity and murkiness, you're left with vague, often ambiguous language. Now somebody is going to interpret that language. If it's a constitutional amendment, that will be interpreted by the courts. And I would argue that's one of the least democratic institutions that we have."

The prospects of more litigation is one of the reasons the Maine Municipal Association opposes Question 3.

"Municipalities will be the ones that end up having to litigate," says Rebecca Graham, a legal advocate with the MMA.

She suspects towns and cities will find themselves paying for lawsuits to settle issues that might arise over land use, zoning disputes, and even the terms used in the amendment. She says phrases like "food of their own choosing" and even the term "poaching" could open the door to interpretation.

"We don't really know how it will shake out. But what we do know is that it strips both state and municipal government of any authority to legislate to the contrary," Graham says.

But Heather Retberg says the amendment has been years in the making, involved public input, and has gone through numerous reviews. Those arguments, she says, have already been rejected.

"This amendment, you know, cleared the highest bar that we have of a two-thirds, super majority vote in both chambers. I mean, a six year long discussion is certainly a rigorous process," she says.

But it's the Maine voters who will have the final say on Nov. 2, and other states will likely be watching.

Copyright 2021 Maine Public. To see more, visit Maine Public.