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

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).