Home-cooked meals business says state violated Maine's right-to-food amendment

Apr. 28—The operators of a small home kitchen business in Penobscot County have sued the state after regulators ordered them to stop preparing meals for customers in the rural community because they lack a state license.

Kenduskeag Kitchen owner Rhiannon Deschaine and the Farm-to-Consumer Legal Defense Fund say the action violates Maine's food sovereignty law and a constitutional right to food amendment adopted by Maine voters in 2021. They are asking the court to allow the business to resume sales of its gourmet carryout meals while the lawsuit makes its way through court.

The defense fund this week filed a motion for a preliminary injunction against the Maine Department of Health and Human Services to allow Kenduskeag Kitchen to continue operating, according to the group. Included as plaintiffs are owners, Nathan and Rhiannon Deschaine and Frank Roma, a customer.

"Despite the small scale of the operation, the Deschaines take pride in their business and view the kitchen as an opportunity to provide their neighbors with nutritious, wholesome and, quite literally, home-cooked meals that bring together a constellation of local growers and producers, and that enhances their sense of purpose and service to the community," the lawsuit says.

A DHHS spokesperson said Friday that the department "is unable to comment on pending litigation."

The state has filed a motion to dismiss the lawsuit, however, saying that the Deschaines' sales do not qualify for a license exemption as direct producer-to-consumer transactions because they use ingredients from other local producers and markets.

And the motion argues that requiring a license does not deprive the businesses or its customers of a constitutional right. If it did, the state argues, restaurants in other communities could claim the same right to operate without licenses or oversight.

"The people of the state of Maine were specifically led to believe that voting in favor of the Right to Food Amendment would not result in the full-scale nullification of the state's comprehensive food safety laws. Yet, that is exactly what the plaintiffs demand," the filings says.

The kitchen began operating last April, according to the lawsuit. Ingredients came largely from the Deschaines' garden or from neighboring gardeners and homesteaders. Items unavailable locally, including rice and dry pasta, were purchased from local markets that are licensed and inspected, the lawsuit says.

The business served about two dozen customers on a weekly basis and sold meals that generally ranged from $15 to $20.

In July, DHHS performed an unannounced inspection at the home and the inspector told Rhiannon Deschaine that Kenduskeag Kitchen was required to have an eating establishment license, which would require a full commercial kitchen, according to the defense fund. Deschaine told the inspector that she was operating under the Kenduskeag Food Sovereignty Ordinance and was not required to obtain the state license, according to the lawsuit.

In a letter of enforcement sent in October, DHHS asserted that the kitchen's operation "does not meet the definition of direct producer-to-consumer transactions because it is preparing and selling meals that contain food products and/or ingredients that are purchased from other sites (supermarkets, local businesses or foods stores)," according to the lawsuit.

Rhiannon Deschaine says her business has been shut down since December because of the threat of fines and legal action.

"This has taken away my meals as options for my community members, who came to enjoy the availability of a wholesome, homemade meal," she said in a statement. "The state's action has created further financial strain for my family amid rapidly rising costs of living in our area. Living with the threats of fines and legal action has caused anxiety and confusion among my family and community."

The lawsuit accuses the state of violating the Maine Food Sovereignty Act of 2017 and the Maine Right to Food constitutional amendment that was approved by voters in 2021. The amendment — the first of its kind in the country — says individuals have the right to grow, produce and consume the food of their choice for their own nourishment, sustenance, bodily health and well-being.

The Farm-to-Consumer Legal Defense Fund maintains that by requiring the use of a commercial kitchen and license, the state has violated the Maine Food Sovereignty Act and its requirement to permit local control of local food production and consumption.

The town of Kenduskeag passed a local ordinance in 2021 that governs direct-to-producer transactions, which are regulated by the town rather than the state, said Alexia Kulwiec, executive director of Farm-to-Consumer Legal Defense Fund, a Virginia-based nonprofit that aims to protect the rights of farmers, food producers and consumers to engage in direct commerce.

"The Maine Food Sovereignty Act provides that the state must recognize local ordinances regulating direct food producer-to-consumer transactions and not enforce state regulation that would otherwise apply to those transactions, such as licensing or registration requirements," Kulwiec said in a statement. "This Maine statute was intended to support local control of local food production and consumption, small scale farming and food production, improved well-being and health, self-reliance and personal responsibility and rural economic development."

The "right to food" amendment also is central to another pending lawsuit filed against the state.

That lawsuit, filed last year by Virginia Parker of Readfield on behalf of herself and her husband, Joel, seeks to end the Sunday hunting ban because of "the unalienable constitutional right to harvest food, superseding the old religious ban on Sunday hunting."

Virginia Parker said only having one weekend day to hunt is a hardship for her family of seven because school and sports keep her five children busy during the week, and her husband works long hours Monday through Friday. With only Saturday to stalk deer, Parker said, her family can't travel farther north where they have landowner permission to hunt.

Attorneys for the Parkers last month filed an appeal brief to the Maine Supreme Judicial Court saying that their lawsuit, which was dismissed by a lower court, has merit in light of the right to food movement. The Maine Department of Inland Fisheries and Wildlife has until May 4 to file a response.