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Second Substitute H.B. 249

Representative Bill Wright proposes the following substitute bill:

             1      GROWING OF FOOD
             2      2011 GENERAL SESSION
             3      STATE OF UTAH
             4      Chief Sponsor: Christopher N. Herrod
             5      Senate Sponsor: Stephen H. Urquhart
             6     
             7      LONG TITLE
             8      General Description:
             9          This bill recognizes the right of an individual to grow food for personal use of the
             10      individual and the individual's family, without being subject to local, state, or federal
             11      regulation.
             12      Highlighted Provisions:
             13          This bill:
             14          .    recognizes the right of an individual to grow food for personal use of the individual
             15      and the individual's family, on the individual's property, without being subject to
             16      local, state, or federal regulation; and
             17          .    unless the food poses a risk to health, a risk of spreading insect infestation, a risk of
             18      spreading agricultural disease, or is unlawfully possessed, prohibits governmental
             19      confiscation of food grown for individual or family use, or food stored in an
             20      individual's dwelling.
             21      Money Appropriated in this Bill:
             22          None
             23      Other Special Clauses:
             24          None
             25      Utah Code Sections Affected:

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             26      ENACTS:
             27          4-1-9, Utah Code Annotated 1953
             28     
             29      Be it enacted by the Legislature of the state of Utah:
             30          Section 1. Section 4-1-9 is enacted to read:
             31          4-1-9. Growing food for personal use.
             32          (1) The state recognizes the right of an individual, without federal intervention, to grow
             33      food for personal use by the individual or a member of the individual's family, on the
             34      individual's property, without being subject to local, state, or federal laws, ordinances, or rules,
             35      if the food:
             36          (a) is legal for human consumption;
             37          (b) is lawfully possessed;
             38          (c) does not pose a health risk;
             39          (d) does not negatively impact the rights of adjoining property owners; and
             40          (e) complies with the food safety requirements of this title.
             41          (2) A government entity may not confiscate food grown in accordance with this
             42      section, or food stored in an individual's home or dwelling, that is legal for human consumption
             43      and is lawfully possessed, unless the food poses a risk:
             44          (a) to health;
             45          (b) of spreading insect infestation; or
             46          (c) of spreading agricultural disease.




Legislative Review Note
    as of 3-3-11 6:10 PM

As required by legislative rules and practice, the Office of Legislative Research and General
Counsel provides the following legislative review note to assist the Legislature in making its
own determination as to the constitutionality of the bill. The note is based on an analysis of
relevant state and federal constitutional law as applied to the bill. The note is not written for
the purpose of influencing whether the bill should become law, but is written to provide
information relevant to the legislators' consideration of this bill. The note is not a substitute
for the judgment of the judiciary, which has authority to determine the constitutionality of a
law in the context of a specific case.

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This legislation recognizes the right of an individual to grow and store food for the personal
use of the individual and the individual's family without being subject to local, state, or federal
laws, ordinances, or rules. Furthermore, it provides that a government entity, not excluding a
federal government entity, may confiscate that food only under certain circumstances. Even if
this legislation is interpreted to be limited to wholly intrastate conduct, the United States
Supreme Court has held that the United States Congress has broad power to regulate purely
intrastate activity under the Commerce Clause of the United States Constitution. Gonzales v.
Raich, 545 U.S. 1, 18 (2005) (“Congress can regulate purely intrastate activity . . . if it
concludes that failure to regulate that class of activity would undercut the regulation of the
interstate market in that commodity.”); U.S. Const. art. I, § 8, cl. 3. Moreover, even if the
growing and storing of food described in this bill is not considered commercial activity, the
Supreme Court has held that Congress may regulate intrastate activity if it substantially affects
interstate commerce. United States v. Lopez, 514 U.S. 549, 559 (1995). Indeed, the regulation
of agricultural commodities is a fundamental example of what Congress may regulate under the
Commerce Clause. Wickard v. Filburn, 317 U.S. 111, 125 (1942) (holding that Congress may
regulate wholly intrastate conduct_even the growing of wheat for consumption only by the
grower_if “it exerts a substantial economic effect on interstate commerce.”).

Furthermore, the Supremacy Clause of the United States Constitution declares the laws of the
United States to be the supreme law of the land. U.S. Const. art. VI, cl. 2. The Supreme Court
has interpreted this to mean, for example, that a federal regulation properly adopted under
federal law preempts state law that conflicts with the federal regulation. Fry v. United States,
421 U.S. 542, 547-48 (1975).

Based on this authority, there is a high probability that a court would find that this legislation is
unconstitutional in that it violates the Supremacy Clause by limiting the permissible exercise of
Congress's authority under the Commerce Clause.