Laws to Require Purchase of Locally Grown Food and
Constitutional Limits on State and Local Government:
Suggestions for Policymakers and Advocates

by Brannon P. Denning, Samantha Graff, and Heather Wooten

http://dx.doi.org/10.5304/jafscd.2010.011.014, pp. 139–148

Abstract

Locally grown food laws that require, or provide incentives for, purchasing food grown within a defined geographic boundary are vulnerable to challenge under the U.S. Constitution’s restrictions on local and state laws that discriminate against goods and commerce from other states, known as the dormant Commerce Clause doctrine (DCCD). Policymakers and advocates for local food should understand the impact of these restrictions and should take advantage of an important exception to these restrictions when drafting policies to encourage purchase of locally grown food. In particular, they should (1) consider using the “market-participant exception” to the DCCD and tailor policies to apply to government’s direct food purchasing or agreements with food service contractors; (2) avoid using tax credits and instead use direct cash subsidies when providing incentives for local food purchasing by private (nongovern­mental) entities, and (3) make “locally grown” geographic definitions as broad as possible (especially to include out-of-state territory).

Keywords: Locally grown food, dormant Commerce Clause doctrine, economic development, public contracting

Erratum

On 20 October 2010, the following correction was made to this article:

The second sentence on page 141 was updated from “So, for example, since the National School Lunch Act allows operators of all child nutrition programs to apply a geographic preference for locally grown food, a state law requiring school districts to favor locally grown food raises no DCCD concerns.” to “Were Congress to pass a law that, for example, expressly permitted states to require restaurants to serve a certain percentage of locally grown food, a state law doing precisely that would raise no DCCD concerns because it had been sanctioned by Congress.”

This correction was made at the authors’ request because the initial hypothetical example could cause confusion in light of a USDA memo brought to their attention by a colleague. The corrected article is now linked here.

Attachments:

JAFSCD_Laws_on_Locally_Grown_Food_Corrected_10-10.pdf

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