H.B. 198

This document includes House Committee Amendments incorporated into the bill on Mon, Feb 13, 2012 at 11:05 AM by jeyring. --> 1

GROWING OF FOOD
2 2012 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 provides that certain food grown by an individual for H. [ use ] consumption .H
9a by the individual's
10 family is not subject to local or federal regulation and that certain food grown or stored
11 by an individual for H. [ use ] consumption .H by the individual's family may not be
11a confiscated by a
12 government entity.
13 Highlighted Provisions:
14 This bill:
15 . defines "family food";
16 . prohibits local or federal regulation of certain food that is grown by an individual
17 for H. [ use ] consumption .H by the individual or the individual's family unless:
18 . the food poses a risk to health, the spreading of insect infestation, or the
19 spreading of agricultural disease; or
20 . the food is unlawfully possessed; and
21 . prohibits a government entity from confiscating certain food that is grown or stored
22 by an individual for H. [ use ] consumption .H by the individual or the individual's family unless:
23 . the food poses a risk to health, the spreading of insect infestation, or the
24 spreading of agricultural disease; or
25 . the food is unlawfully possessed.
26 Money Appropriated in this Bill:
27 None

28 Other Special Clauses:
29 None
30 Utah Code Sections Affected:
31 ENACTS:
32 4-1-9, Utah Code Annotated 1953
33
34 Be it enacted by the Legislature of the state of Utah:
35 Section 1. Section 4-1-9 is enacted to read:
36 4-1-9. Growing or storing food for personal or family use.
37 (1) As used in this section, "family food" means food owned by an individual that is
38 intended for the individual's H. [ use ] consumption .H , or for H. [ use ] consumption .H by
38a members of the individual's immediate family,
39 that:
40 (a) is legal for human consumption;
41 (b) is lawfully possessed; and
42 (c) poses no risk:
43 (i) to health;
44 (ii) of spreading insect infestation; or
45 (iii) of spreading agricultural disease.
46 (2) Family food that is grown by an individual on the individual's property is not
47 subject to local or federal regulation if growth of the family food:
48 (a) does not negatively impact the rights of adjoining property owners; and
49 (b) complies with the food safety requirements of this title.
50 (3) A government entity may not confiscate family food described in Subsection (2) or
51 family food that is stored by the owner in the owner's home or dwelling.
52 (4) If any provision of this section or the application of any provision of this section to
53 any person or circumstance is held invalid by a final decision of a court of competent
54 jurisdiction, the remainder of this section shall be given effect without the invalid provision or
55 application. The provisions of this section are severable.

Legislative Review Note
as of 2-2-12 7:01 PM


As required by legislative rule 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.

This bill provides that, subject to certain exceptions, food grown by an individual and intended
for personal or family use is not subject to federal regulation. In addition, this bill provides
that, subject to certain exceptions, food either grown or stored by an individual that is intended
for the individual's use or for use by the individual's family may not be confiscated by a
government entity. As drafted, this bill raises issues relating to the Supremacy Clause,
contained in Article VI of the United States Constitution. The United States Supreme Court
has "long recognized that state laws that conflict with federal law are 'without effect.'" Altria
Group, Inc. v. Good, 555 U.S. 70, 76 (2008), quoting Maryland v. Louisiana, 451 U.S. 725,
746 (1981).

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). Finally, the United States Supreme Court has explained that 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.”).

Based on this authority, to the extent this bill conflicts with federal regulation of commerce,
there is a high probability that a court would find that this legislation violates the Supremacy
Clause of the United States Constitution.

Office of Legislative Research and General Counsel