Constitutionally, food safety falls within the powers reserved to the states and the people. The feds have no authority to enforce food safety laws within the border of a state. Nevertheless, federal agencies still want more control over America’s food supply, and they go great lengths to get it.

For example, the FDA bans the interstate sale of raw milk. But, not only do they ban the transportation of raw milk across state lines, they also claim the authority to ban unpasteurized milk within the borders of a state.

“It is within HHS’s authority…to institute an intrastate ban [on unpasteurized milk] as well,” FDA officials wrote in response to a Farm-to-Consumer Legal Defense Fund lawsuit against the agency over the interstate ban.The FDA ultimately wants to maintain complete prohibition of raw milk across the United States.

However, federal ambitions go far beyond controlling your access to raw milk. In fact, the FDA wants to enforce universal, one-size-fits-all control over everything you eat and drink.

In the Name of Safety

While FDA apologists claim the agency only wants to protect consumers, in truth, federal regulations tend to benefit big companies and squeeze out family farms. In the name of safety, FDA regulations limit your ability to access local, fresh food.

For example, the Wholesome Meat Act of 1967 mandates meat must be slaughtered and processed at a federally inspected slaughter house, or one inspected in a state with meat inspection laws at least as strict as federal requirements. Small slaughterhouses cannot meet the requirements. As a result, the meat processing industry went through massive consolidation. Since passage of the act, the number of slaughterhouses dropped from more than 10,000 to less than 3,000. Today, instead of hundreds of companies processing meat, three corporations control virtually the entire industry.

This does not promote food safety. In fact, by concentrating meat processing in a few facilities, the likelihood of widespread contamination increases. A single sick cow can infect thousands of pounds of beef in one of these corporate slaughterhouses. In a more diversified, decentralized system, outbreaks generally remain limited to small regions. You never saw these nationwide recalls in the era of diversified meat processing.

The Food Safety Modernization Act (FSMA) “directs FDA to build an integrated national food safety system in partnership with state and local authorities explicitly recognizing that all food safety agencies need to work in integrated ways to achieve public health goals.”

Essentially, this means dictating state food laws.

The Goal: Complete Federal Control

As with so many expansions of federal power, the FDA has piggybacked on the “War on Terror” to assert more control over state and local food regulations.

The 2002 Bioterrorism Act mandated “any facility engaged in manufacturing, processing, packing or holding food for consumption in the United States be registered with the Secretary of the Department of Health and Human Services (DHHS).” FSMA expands the requirements to include firms exclusively engaged in intrastate commerce. A section of FSMA called Hazard Analysis and Risk-based Preventative Controls (HARPC) requires the owner or operator of a facility to “implement a food safety plan to prevent the adulteration and misbranding of food.

“Any ‘facility’ that is required to register with DHHS must also comply with HARPC even if that ‘facility’ is operating only in intrastate commerce,” Farm-to-Consumer Legal Defense Fund President Pete Kennedy said.

This gives the FDA wide-ranging power to meddle in state food and beverage regulations.

The feds also buy compliance with their mandates by bribing state agencies through funding.

The FDA Food Code establishes one-size-fits-all regulations for retail food establishments. It currently operates as a voluntary program. Nevertheless, every state has adopted it in one form or the other. According to Kennedy, the FDA makes the food codes effectively mandatory by entering into “cooperative agreements” with state agencies under a funding opportunity called “Advancing Conformance with the Voluntary National Retail Food Regulatory Program Standards (VNRFRPS).”

“A stated goal of the program is to ‘encourage widespread, uniform and complete adoption of the FDA Food Code.’ A complete adoption means that little local food production and distribution would escape the requirements of the regulatory-heavy food code.”

An attempt to deregulate pumpkin pies in Virginia this year demonstrates how federal funding and the Food Codes extend the federal governments deep beyond state borders.

“A bill that would have legalized the unregulated sale of potentially hazardous baked goods (foods subject to time and temperature control, e.g. pumpkin pies) was killed after the Virginia Department of Agriculture and Consumer Services (VDACS) informed members of a legislative subcommittee that the bill was in violation of the FDA Food Code. The bill was initially passed by the same subcommittee one week earlier. Virginia has adopted the food code which calls for regulation of potentially hazardous food such as baked goods. In 2015, VDACS received $70,000 from FDA under the ‘Advancing Conformance’ funding opportunity.”

How to Stop It

But there is a way to stop this kind of federal overreach. There is a way to reassert state and local control over food. James Madison gave us the blueprint in Federalist #46 – a refusal to cooperate with officers of the union. The FDA cannot force widespread, uniform and complete adoption of its rules and regulations on its own. It can only do it with state and local help. Kennedy made this very point in a recent article.

“FDA needs the help of state agencies to implement and enforce the FSMA requirements; the agency does not have close to the manpower needed to enforce FSMA on its own. FDA will be entering into more cooperative agreements than ever to get state help on FSMA; states will be spending more of their time enforcing federal law and less enforcing their own laws. State agencies will be increasingly conscripted by the federal government.”

The states do not have to enter into these cooperative agreements with the feds.The federal government cannot force states to enforce or implement federal regulations. In fact, state legislatures can prohibit these agreements completely. States do not have to comply with the FDA Food Codes. If the states say, “No!” the FDA has zero power or authority to do anything about it.

Kennedy said of food freedom, “It’s going to happen in the states.”

State legislatures need to get busy and prove Kennedy right.

Mike Maharrey

The 10th Amendment

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”



Featured Articles

On the Constitution, history, the founders, and analysis of current events.

featured articles


Tenther Blog and News

Nullification news, quick takes, history, interviews, podcasts and much more.

tenther blog


State of the Nullification Movement

232 pages. History, constitutionality, and application today.

get the report


Path to Liberty

Our flagship podcast. Michael Boldin on the constitution, history, and strategy for liberty today

path to liberty


maharrey minute

The title says it all. Mike Maharrey with a 1 minute take on issues under a 10th Amendment lens. maharrey minute

Tenther Essentials

2-4 minute videos on key Constitutional issues - history, and application today


Join TAC, Support Liberty!

Nothing helps us get the job done more than the financial support of our members, from just $2/month!



The 10th Amendment

History, meaning, and purpose - the "Foundation of the Constitution."

10th Amendment



Get an overview of the principles, background, and application in history - and today.