The U.S. Supreme Court ruled today in the case of Horne v. USDA, which centers on a USDA program that forces those who grow and sell raisins to turn over part of their crop to the agency, that the federal Constitution protects Americans against uncompensated government takings of food. The ruling means that the USDA program is unconstitutional. This tremendous victory for food freedom is likely to have wide-ranging implications for federal and state programs that take crops and foods from individuals and businesses.
The historical arguments that Chief Justice John Roberts made in his decision today echo many of those Keep Food Legal Foundation made in an amicus curiae brief we filed in Horne v. USDA. In particular, Chief Justice Roberts discussion of the food-related origins of the Fifth Amendment’s Takings Clause reflects many of the arguments we alone (among more than a dozen fellow amici) made on the subject.
“Our brief elucidates--likely for the first time in Supreme Court history--the essential food-related origins of the Fifth Amendment's Takings Clause, which is the central issue in the case,” we described after filing the brief this spring. “Our brief may also be the first ever to discuss the term ‘food freedom’ before the Supreme Court.
"Our brief describes how a person's rights in food as property go back to Magna Carta, and notes that in 1641 Massachusetts established the first protection against uncompensated takings (specifically, of cattle and other personal property). In the years prior to and during the American Revolution, we detail, the British increasingly violated the colonists’ personal property rights in food. Founding Father James Madison drafted the Takings Clause in order to protect the property rights of Americans by preventing the government from engaging in any such future abuses, we argue. The essential food-related origins of the Takings Clause we reveal in our brief, we conclude, suggest that courts should interpret the Takings Clause most broadly in cases where--as in this case--the government takes personal property, particularly food.”
The Supreme Court did just that today.
“We commend the Supreme Court for its important decision today in the Horne case,” said Keep Food Legal Foundation executive director Baylen Linnekin, who authored our amicus brief. “We are very optimistic that this decision reflects the growing embrace of food freedom by courts, lawmakers, and all Americans.”
Tuesday, the FDA issued a rule that will effectively ban the use of manmade, trans-fat-containing partially hydrogenated oils in all foods by 2018. The ban doesn’t touch—for now, at least—the trans fats that occur naturally in foods like beef and milk that come from ruminant animals like cows.
Most experts agree trans fats aren’t good for you. The American Heart Association, for example, recommends eating no more than 2 grams per day. The FDA has required food manufacturers to list the trans fat content of packaged foods since 2006. That requirement, along with education and the actions of food makers, has helped reduce the amount of trans fats in the average American’s diet from far above the American Heart Association recommendations (5g) to well below (1g).
So if Americans are already eating less trans fats than health experts recommend, why the push to ban them?
The FDA had balked at banning trans fats. But a lawsuit forced the agency’s hand.
Years ago, our executive director Baylen Linnekin wrote (of raw milk) that where a warning will suffice, a ban is inappropriate. Not coincidentally, the FDA’s raw milk ban also came about as a result of a lawsuit that forced the agency to enforce a ban it did not want.
Still, the key issue here—as it almost always is—is where to draw the line between government power and individual rights.
"The government is not the best arbiter of what one's diet should be, nor should they be," Linnekin told the popular foodie website Eater this week. "It's a freedom of choice issue. It doesn't mean that we should be swimming in Big Gulps and Twinkies, but it means that those choices should be protected in the same way that we protect a person's right to grow produce or buy raw milk or shop at a farmer's market. It is about food freedom."
Looking ahead, the unintended consequences of the trans fat ban may play out halfway across the world, in sensitive rain forests of Indonesia and Malaysia. That’s because palm oil, which is the leading contender to replace trans fats in the American diet, often comes from increasingly deforested areas of those countries. Those dwindling rain forests are home to endangered animals like orangutans and tigers, which could face increased threat of extinction thanks to a trans fat ban that did not have to be.
Baylen Linnekin Discusses New Whole Foods "Responsibly Grown" Private Label in HuffPost Live Appearance
Keep Food Legal Foundation executive director Baylen Linnekin appeared on HuffPost Live yesterday to discuss a new private food-ratings system put in place by grocer Whole Foods. The company’s new “Responsibly Grown” program ranks fruits and vegetables based on factors like how well producers maintain soil health and how well they treat farm workers.
Are these the “right” factors? That’s up to Whole Foods, farmers, and consumers, Linnekin argues.
While some organic farmers and organic-farming advocates have criticized the new ranking system—claiming it deemphasizes the organic foods they grow and promote—Linnekin applauds Whole Foods for taking bold steps in making private labeling, which we support, more informative and available to consumers both in the market and in the marketplace of ideas.
Watch the video (approximately 22:30) by clicking here.