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Institute says it sticks up for little producers

Mateusz Perkowski
A non-profit public interest law firm plans to unleash litigation against food regulations it believes are unconstitutional.

A lawsuit challenging Oregon’s ban on raw milk advertising is just one case in a broader legal battle against food regulations.

The Institute for Justice, a non-profit public interest law firm, vows to unleash a flood of litigation against food restrictions it considers unconstitutional.

Apart from the raw milk case, the firm has filed complaints against a Florida city that prohibits front-yard vegetable gardens and a Minnesota law that limits sales of homemade baked and canned goods.

“This is just the first salvo in what will be an ongoing national campaign,” said Michael Bindas, an attorney for the institute.

The firm’s goal is to support the nationwide movement of small-scale food entrepreneurs, which it will represent free of charge, he said. “They have a new ally in the Institute for Justice.”

Bindas said the law firm expects to file new cases against rules that violate one of three principles:

• Free speech, like the raw milk advertising ban.

• Property rights, like the vegetable growing ban.

• Economic liberty, like the homemade goods restriction.

“More and more frequently, the government is demanding a seat at the dining room table,” said Bindas.

Governments have been exerting more control over food production for two primary reasons, he said. 

They believe individuals need to be told what is good for them and they seek to protect the economic interests of some private parties at the expense of others, Bindas said.

“There is an increasing tendency to regulate for protectionist and paternalistic purposes,” he said. “Neither is a legitimate basis for government to regulate.”

In light of the institute’s allegations, Capital Press asked constitutional law professor Ronald Rotunda of Chapman University about legal theories in the three lawsuits.

Rotunda indicated the case against Oregon’s raw milk advertising ban is the strongest, since the U.S. Supreme Court has repeatedly struck down similar advertising prohibitions.

While government can place some constraint on commercial speech — like prohibiting false advertising — an outright ban like Oregon’s is unlikely to be upheld, he said.

“If a product is legal, the government cannot prevent advertising to dampen demand,” Rotunda said. “I’m amazed they have such a law because there are so many precedents on this.”

The case against the Village of Miami Shores over its aesthetic prohibition on front-yard vegetable gardens is more complicated.

Legal precedents about the constitutionality of zoning ordinances vary on a case-by-case basis, Rotunda said.

In this case, the fact that the city isn’t actually taking possession of the plaintiff’s property works in its favor, he said.

On the other hand, the aesthetic standard is vague and that hurts the city’s defense, Rotunda said.

The validity of Minnesota’s limits on homemade baked and canned goods — producers can only sell at certain events and can’t earn more than $5,000 per year — will depend on the intent of the rule, he said.

If the state government claims the limits are needed for food safety, the court will have to determine whether the rule is actually meant to help consumers, said Rotunda.

If the safety benefits of the rule don’t seem rational, and the actual purpose appears to be economic protection for other businesses, then that argument is undercut, he said.



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