Bill Text: NH HB1669 | 2018 | Regular Session | Introduced


Bill Title: Relative to commerce in food in New Hampshire.

Spectrum: Partisan Bill (Republican 4-0)

Status: (Introduced) 2018-02-08 - Inexpedient to Legislate: Motion Adopted Voice Vote 02/08/2018 House Journal 3 P. 2 [HB1669 Detail]

Download: New_Hampshire-2018-HB1669-Introduced.html

HB 1669-FN - AS INTRODUCED

 

 

2018 SESSION

18-2120

08/03

 

HOUSE BILL 1669-FN

 

AN ACT relative to commerce in food in New Hampshire.

 

SPONSORS: Rep. Itse, Rock. 10; Rep. Hoell, Merr. 23; Rep. Spillane, Rock. 2; Sen. Reagan, Dist 17

 

COMMITTEE: Commerce and Consumer Affairs

 

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ANALYSIS

 

This bill:

 

I.  Exempts foodstuffs grown or produced in and then sold in New Hampshire from federal regulation so long as it is labeled as “Made in New Hampshire.”

 

II.  Provides penalties for both agents attempting to enforce federal regulations and for producers and processors who label their food as “Made in New Hampshire” when it does not meet “Made in New Hampshire” requirements.

 

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Explanation: Matter added to current law appears in bold italics.

Matter removed from current law appears [in brackets and struckthrough.]

Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.

18-2120

08/03

 

STATE OF NEW HAMPSHIRE

 

In the Year of Our Lord Two Thousand Eighteen

 

AN ACT relative to commerce in food in New Hampshire.

 

Be it Enacted by the Senate and House of Representatives in General Court convened:

 

1  Legislative Declarations of Authority and Purpose.  The legislature declares that the authority for this act is the following:

I.  The Tenth Amendment of the United States Constitution guarantees to the states and their people all power not expressly delegated to the federal government elsewhere in the Constitution and reserves to the state and people of New Hampshire certain powers as they were understood at the time that New Hampshire ratified the Bill of Rights, particularly the Tenth Amendment in 1790.  The guarantee of those powers is a matter of contract between the state and people of New Hampshire and the United States as of the time that the compact with the United States was agreed upon and adopted by New Hampshire and the United States.

II.  The Ninth Amendment to the United States Constitution guarantees to the people rights not explicitly granted in the Constitution and reserves to the people of New Hampshire certain rights as they were understood at the time that New Hampshire ratified the Bill of Rights, particularly the Tenth Amendment in 1790.  The guarantee of these rights is a matter of contract between the state and people of New Hampshire and the United States as of the time that the compact with the United States was agreed upon and adopted by New Hampshire and the United States.

III.  The regulation of intrastate commerce is vested in the states, and such is made explicit by the Ninth and Tenth Amendments to the United States Constitution.  The United States Constitution is a charter of enumerated powers and nowhere therein is such power delegated to the United States.

IV.  New Hampshire, having established its own constitution before joining the United States, retains in compact with the people of the state the natural rights acknowledged in the New Hampshire constitution.  Article 2 of the New Hampshire constitution declares “All men have certain natural, essential, and inherent rights among which are, the enjoying and defending life and liberty; acquiring, possessing, and protecting property….” Article 4 states “Among the natural rights, some are, in their very nature unalienable, because no equivalent can be given or received for them.”  The interpretation of food and trade as natural rights is consistent with the contemporaneous definition.

V.  The purpose of the New Hampshire Food Freedom Act is to allow for locally produced food products to be sold and consumed within New Hampshire and to encourage the expansion and accessibility of farmers’ markets, roadside stands, farm and home based sales, and producer to end consumer agricultural sales by:

(a)  Promoting the purchase and consumption of fresh and local agricultural products;

(b)  Enhancing the agricultural economy;

(c)  Encouraging agritourism opportunities in New Hampshire;

(d)  Providing New Hampshire citizens with unimpeded access to healthy food from known sources; and

(e)  Encouraging good manufacturing practices, including sanitation and hygiene, in the production, handling, storage, and transportation of foodstuffs.

VI.  The general court further finds that historically:

(a)  Food trade at the local level has been ubiquitous in societies since prehistoric times;

(b)  In a republic which distinguishes between public and private property, the ability to furnish nourishment from one’s private property places a check on the power of the majority over the minority; and

(c)  Historically food access restrictions have been used to squelch political dissent.

2 New Chapter; Locally Grown and Produced Foodstuffs.  Amend RSA by inserting after chapter 439 the following new chapter:

CHAPTER 439-A

LOCALLY GROWN AND PRODUCED FOODSTUFFS

439-A:1  Short Title.  This chapter is known and may be cited as the New Hampshire Food Freedom Act.

439-A:2  Definitions.  In this chapter:

I.  “Community social event” means an event where people gather as part of a community for the benefit of the community gathering or for the community at large.

II.  “End consumer” means a person who is the last person to purchase any product or preparation and who does not resell the product or preparation.

III.  “Establishment” means and includes any place in which foods, drugs, devices, and cosmetics are displayed for sale, manufactured, processed, packed, held or stored.  “Establishment” does not include restaurants, any place where home made food is prepared for a community social event, or where such foodstuffs are sold under this chapter.

IV.  “Foodstuff” means products derived from agriculture, crops, plants, livestock, wild animals, insects, dairy, and processed items derived from said products.

V.  “Foodstuff production” means the growing, raising, processing, packaging, preparation, or manufacturing of foodstuff.

VI.  “Home consumption” means consumed within a private residence.

VII.  “Processor” means any person who processes or prepares products of the soil or animals for food or drink.

VIII.  “Producer” means any person who harvests any product of the soil or animals for food or drink.

439-A:3  Prohibitions.  Notwithstanding any other New Hampshire law to the contrary, all foodstuffs that are grown in and remain within the borders of the state of New Hampshire shall be regulated solely by the state of New Hampshire and shall not be subject to federal regulation, nor inspection of growing or production facilities by federal officials or their agents.

439-A:4  Made in New Hampshire Labels.

I.  If a producer or processor desires the protections of this chapter he or she shall print, stamp, or otherwise label the packaging or display of his or her foodstuffs with “Made in New Hampshire.”

II.  Any producer or processor who sells his or her product only at farmers’ markets, at roadside stands, or by farm and home based sales directly to the end consumer and labels his or her food as prescribed in paragraph I shall be exempt from federal licensing, certification, and inspection requirements.

III.  There shall be no licensure, certification, or inspection by any federal governmental agency provided the transaction between the producer, the processor, the producer’s agent, or the processor’s agent and the end consumer when the food is for home consumption or the food is prepared for a community social event is for foodstuff grown, raised, and produced in New Hampshire with the intended purpose or reasonable belief that such foodstuff shall be consumed within the state of New Hampshire so long as such food stuff is labeled as provided in paragraph I.

439-A:5  Penalty.

I.  Any public servant of the state of New Hampshire as defined by RSA 640:2 that enforces or attempts to enforce a federal act, order, law, statute, rule, or regulation upon a foodstuff labeled “Made in New Hampshire,” that is produced commercially or privately in New Hampshire, and that remains within the state of New Hampshire shall be guilty of a class B misdemeanor.

II.  Any official, agent, or employee of the government of the United States, or employee of a corporation providing services to the government of the United States that enforces or attempts to enforce a federal act, order, law, statute, rule, or regulation of the government of the United States upon a foodstuff labeled “Made in New Hampshire” shall be guilty of a class A misdemeanor.

III.  Any producer, processor, producer’s agent, or processor’s agent which labels foodstuff as “Made in New Hampshire” where said foodstuff fails to meet the definition of “Made in New Hampshire” shall be guilty of class B misdemeanor.

IV.  Notwithstanding any other provision of law, this chapter shall not grant to the producer, the processor, the producer’s agent, or the processor’s agent immunity from civil legal remedies by the consumer.

3  New Section; Ordinances in Municipalities.  Amend RSA 143-A by inserting after section 9-b the following new section:

143-A:9-c  Ordinances in Municipalities.  No municipality shall make or enforce any food ordinance or bylaw which is more restrictive than the requirements pursuant to this chapter or the rules adopted under this chapter or any other state law relative to food safety.

4  Effective Date.  This act shall take effect January 1, 2019.

 

LBAO

18-2120

11/8/17

 

HB 1669-FN- FISCAL NOTE

AS INTRODUCED

 

AN ACT relative to commerce in food in New Hampshire.

 

FISCAL IMPACT:      [ X ] State              [ X ] County               [    ] Local              [    ] None

 

 

 

Estimated Increase / (Decrease)

STATE:

FY 2019

FY 2020

FY 2021

FY 2022

   Appropriation

$0

$0

$0

$0

   Revenue

$0

$0

$0

$0

   Expenditures

Indeterminable Increase

Indeterminable Increase

Indeterminable Increase

Indeterminable Increase

Funding Source:

  [ X ] General            [    ] Education            [    ] Highway           [    ] Other

 

 

 

 

 

COUNTY:

 

 

 

 

   Revenue

$0

$0

$0

$0

   Expenditures

Indeterminable Increase

Indeterminable Increase

Indeterminable Increase

Indeterminable Increase

 

METHODOLOGY:

This bill exempts foodstuffs that are grown in and remain within the borders of the state from federal regulation or inspection.  Producers or processors who label the packaging or display of their foodstuffs as "Made in New Hampshire", including those producers or processors who sell products only at farmer's markets, roadside stands or by farm and home based sales directly to consumers, for home consumption or community socal events, will be exempt from federal licensure, certification or inspection.  Federal agents attempting to enforce federal regulations upon a foodstuff labeled "Made in New Hampshire" will be guilty of a class A misdemeanor.  State employees attempting to enforce federal regulations upon a foodstuff labeled "Made in New Hampshire" and producers and processors who label their food as "Made in New Hampshire" without meeting "Made in New Hampshire" requirements will be subject to penalties for class B misdemeanor offenses.  Municipalities shall not make or enforce any food ordinance or bylaw which is more restrictive than those specified pursuant to this legislation or through rule or other state laws relative to food safety.

 

The Department of Agriculture states it has no role in carrying out federal regulatory oversight related to foodstuffs and there would be no fiscal impact on the agency.

 

The Department of Health and Human Services anticipates no fiscal impact because the legislation does not alter the department's regulatory duties for food protection services under RSA 143-A.

 

The New Hampshire Municipal Association indicates the legislation is unlikely to have any impact on local revenues or expenditures.

 

This bill contains penalties that may have an impact on the New Hampshire judicial and correctional systems.  There is no method to determine how many charges would be brought as a result of the changes contained in this bill to determine the fiscal impact on expenditures.  However, the entities impacted have provided the potential costs associated with these penalties below.

 

Judicial Branch

FY 2019

FY 2020

Class B Misdemeanor

$50

$51

Class A Misdemeanor

$72

$73

Appeals

Varies

Varies

It should be noted that average case cost estimates for FY 2019 and FY 2020 are based on data that is more than ten years old and does not reflect changes to the courts over that same period of time or the impact these changes may have on processing the various case types.  An unspecified misdemeanor can be either class A or class B, with the presumption being a class B misdemeanor.

NH Association of Counties

 

 

County Prosecution Costs

Indeterminable

Indeterminable

Estimated Average Daily Cost of Incarcerating an Individual

$85 to $110

$85 to $110

 

The Department of Justice indicates this bill would result in an increased number of investigations and/or prosecutions by the Department for criminal conduct by certain public officials in their official capacity.  The number of investigations and prosecutions resulting from the bill is unknown, therefore the fiscal impact is indeterminable.

 

The Judicial Council states that to the extent this bill creates criminal offenses regarding the conduct of federal employees, the Council does not anticipate any expenditures for the defense of the criminally accused due to the likelihood of the federal government defending or indemnifying the employee in the context of their occupation.

 

 

AGENCIES CONTACTED:

Department of Agriculture, Department of Health & Human Services, New Hampshire Municipal Association, Judicial Branch, Department of Justice, Judicial Council, New Hampshire Association of Counties, and Department of Corrections

 

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