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Lift your lamp beside the golden door, Break not the golden rule, avoid well the golden calf, know; not all that glitters is gold, and laissez faire et laissez passer [let do and let pass] but as a shining sentinel, hesitate not to ring the bell, defend the gates, and man the wall

Saturday, July 2, 2011

FDA Legal Brief: No Right To Food Choice

FDA Legal Brief

Case 5:10-cv-04018-MWB   Document 11-1    Filed 04/26/10

No. C 10-4018-MWB

Unquestionably, FDA’s regulations prevent individuals from introducing
unpasteurized milk into interstate commerce, but they in no way affect the ability of
individuals to travel from one state to another, to be subject to the same laws as
citizens of a state in which they are visiting, or for those moving to a new state to be to
be subject to the same laws as the citizens already residing there. “[T]o recognize a
fundamental right to interstate travel in a situation that does not involve any of these
circumstances would extend the doctrine beyond the Supreme Court’s pronouncements
in this area.” Doe v. Miller, 405 F.3d 700, 712 (8th Cir. 2005); see also Monson v. DEA,
589 F.3d 952, 963 (8th Cir. 2009) (holding that it is “well-established” that under the
Commerce Clause “Congress is permitted to regulate purely local activities that . . .
have a substantial effect on interstate commerce”). Accordingly, plaintiffs’ claim that
Case 5:10-cv-04018-MWB Document 11-1 Filed 04/26/10 Page 23 of 30
the constitutional right to travel encompasses the right to travel with unpasteurized milk
must fail.
4. FDA’s Regulations Do Not Infringe Upon Substantive Due Process
Plaintiffs contend that FDA’s regulations violate certain “fundamental rights”
purportedly protected by the Due Process Clause of the Fifth Amendment: (1) the
“fundamental right to raise their famil[ies] in their own way, which includes what foods
they do and do not choose to consume for themselves and their families;” (2) the
“fundamental right to their own bodily and physical health, which includes what foods
they do and do not choose to consume for themselves and their families;” and
(3) fundamental “contract rights” to “the use of an agent to accomplish what the
principal herself ought to be free to do,” which includes having “raw milk . . . transported
across State lines by an agent.” Am. Compl. ¶¶ 117-118, 135, 143-144.
“In evaluating this argument, it is important to consider the Supreme Court’s
admonition that ‘substantive due process analysis must begin with a careful description
of the asserted right, for the doctrine of judicial self-restraint requires us to exercise the
utmost care whenever we are asked to break new ground in this field.’” Doe, 405 F.3d
at 710 (quoting Reno v. Flores, 507 U.S. 292, 302 (1993)) (add’l citation and quotation
marks omitted). One reason for judicial restraint in this area is that “[b]y extending
constitutional protection to an asserted right or liberty interest, we, to a great extent,
place the matter outside the arena of public debate and legislative action.” Washington
v. Glucksberg, 521 U.S. 702, 720 (1997); see also Collins v. Harker Heights, 503 U.S.
115, 125 (1992) (“[T]he Court has always been reluctant to expand the concept of
substantive due process because guideposts for responsible decisionmaking in this
Case 5:10-cv-04018-MWB Document 11-1 Filed 04/26/10 Page 24 of 30
unchartered area are scarce and open-ended.”). Thus, the Supreme Court has
established demanding criteria for the recognition of fundamental rights; a plaintiff must
show both that the rights claimed “are, objectively, deeply rooted in this Nation’s history
and tradition . . . and implicit in the concept of ordered liberty, such that neither liberty
nor justice would exist if they were sacrificed.” Glucksberg, 521 U.S. at 720-21 (citation
and quotation marks omitted). Plaintiffs fall far short of satisfying these criteria.
a. There is No Absolute Right to Consume or Feed Children Any
Particular Food.
Although “[t]wo of the earliest right to privacy cases,” Meyer v. Nebraska, 262
U.S. 390 (1923), and Pierce v. Society of Sisters, 268 U.S. 510 (1925), “established the
existence of a fundamental right to make child rearing decisions free from unwarranted
governmental intrusion,” these cases do not “establish an absolute parental right to
make decisions relating to children free from government regulation.” Henne v. Wright,
904 F.2d 1208, 1214 (8th Cir. 1990) (citing Prince v. Massachusetts, 321 U.S. 158
(1944)). Plaintiffs’ generalized assertion of “fundamental privacy rights of raising their
families in the way they see fit,” Am. Compl. ¶ 120, falls far short of the “careful
description of the asserted right” that forms the starting point of the “established method
of substantive-due-process analysis.” Glucksberg, 521 U.S. at 720-21. Here, plaintiffs’
“characterization of a fundamental right to ‘personal choice regarding the family’ is so
general that it would trigger strict scrutiny of innumerable laws and ordinances that
influence ‘personal choices’ made by families on a daily basis.” Doe, 405 F.3d at 710;
see also Henne, 904 F.2d at 1214 (upholding a restriction on parents’ choice of
surnames for children that allegedly violated the broad right to make “parental decisions
relating to child rearing”).
Case 5:10-cv-04018-MWB Document 11-1 Filed 04/26/10 Page 25 of 30
The interest claimed by plaintiffs could be framed more narrowly as a right to
“provid[e] them[selves] and their families with the foods of their own choice.”
Compl. ¶ 120. But there is no “deeply rooted” historical tradition of unfettered access to
food of all kinds.
See Glucksberg, 521 U.S. at 721. To the contrary, society’s long
history of food regulation stretches back to the dietary laws of biblical times.
See Peter
Barton Hutt & Peter Barton Hutt II, A History of Gov’t Regulation of Adulteration &
Misbranding of Food, 39 Food, Drug & Cosmetic Law J. 2, 3 (1984)
(citing Leviticus 11,
17 and 19, and Deuteronomy 14). Modern food safety regulation in the United States has its roots in the early food laws of the American colonies, which themselves
incorporated “the tradition of food regulation established in England.
Id. at 35; see also id. at 43 (citing a Virginia statute passed in 1873, that “made it an offense . . . [to]
knowingly, sell, supply, or bring to be manufactured . . . milk from which any cream has been taken; or milk commonly known as skimmed milk”). Comprehensive federal
regulation of the food supply has been in effect at least since Congress enacted the
Pure Food and Drugs Act of 1906, and was strengthened by the passage of the FDCA in 1938.
Thus, plaintiffs’ claim to a fundamental privacy interest in obtaining “foods of their own choice” for themselves and their families is without merit. Am. Compl. ¶ 120. b. There is No Generalized Right to Bodily and Physical Health.
Plaintiffs’ assertion of a “fundamental right to their own bodily and physical
health, which includes what foods they do and do not choose to consume for
themselves and their families” is similarly unavailing because plaintiffs do not have a fundamental right to obtain any food they wish. In addition, courts have consistently refused to extrapolate a generalized right to “bodily and physical health” from the Case
5:10-cv-04018-MWB Document 11-1 Filed 04/26/10 Page 26 of 30

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