health, safety, and general welfare has been sustained not only for laws aimed at protecting the public in general but also protecting individuals. Such laws have been upheld even when restricting property rights and individual autonomy. The U.S. Supreme Court made it clear that “the police power is one of the least limitable of governmental powers … .,” and that the states possess extensive authority to protect public health and safety.39
Although the courts have interpreted the state police power broadly, governmental authorities do have limits placed on their powers. Limitations on state and federal powers are mainly found in these documents:
The U.S. Constitution.
The constitutions of individual states.
Federal and state laws.
In the case of a federal law, the federal government has limited, enumerated powers. If the subject matter of legislation does not fall within any of the enumerated areas of federal authority, then either the matter is one that is reserved to the states or it is a matter beyond the constitutional reach of government altogether. For example, Congress passed a law that required states to provide a disposal site for low‐level radioactive waste by a specific date. Any state that failed to meet that deadline was required to take title to and be responsible for all low‐level radioactive waste produced in the state. New York State contested the “take title” provision on the ground that it went beyond the enumerated powers of the federal government. The U.S. Supreme Court agreed that the act violated the Tenth Amendment of the U.S. Constitution.40
Food laws are sometimes challenged as infringing upon constitutionally protected individual rights. The first ten amendments to the Constitution, the Bill of Rights, define those things that government cannot do to the individual. If Congress or a state legislature enacts a law inconsistent with any of these constitutional provisions, the courts may be asked to invalidate the law as being “repugnant to the Constitution.”
In the area of food safety, however, the courts historically have been hesitant to invalidate these laws, even for the sake of protecting individual rights. Nonetheless, food laws have been challenged on this basis, and some important aspects highlighted below foreshadow issues that will rise in subsequent chapters. The cases illustrate how an individual’s rights are balanced against society’s need for protection from preventable harms.
The Bill of Rights is generally applicable to the states through the Fourteenth Amendment. Right by right, the Supreme Court has applied most, but not all, of the Bill of Rights’ restrictions to the state governments through the Fourteenth Amendment. For example, the states may not pass laws that abridge the freedom of speech, press, or assembly. Technically, the state law would be in violation of the Fourteenth Amendment, but for ease of reference, this chapter will refer to the underlying Bill of Rights amendment (in this example, the First Amendment’s protections of the freedom of speech, press, and assembly).
Free Speech
Laws may be invalidated because they conflict with the part of the First Amendment that protects the free communication of ideas: “Congress shall make no law … abridging the freedom of speech or of the press … .” As with all the Bill of Rights, the First Amendment rights are not absolute and may be abridged under certain circumstances. Justice Holmes famously noted that the First Amendment does not afford a right to cry “fire” in a crowded theater.
In Cox v. New Hampshire, 312 U.S. 569 (1941), the U.S. Supreme Court upheld an ordinance that required parade permits, although a group who challenged the law argued that it abridged their First Amendment rights of assembly and communication. The Court concluded:
The authority of a municipality to impose regulations in order to assure the safety and convenience of the people in the use of public highways has never been regarded as inconsistent with civil liberties, but rather as one of the means of safe‐guarding the good order upon which they ultimately depend … . The question in a particular case is whether that control is exerted so as not to deny or unwarrantedly abridge the right of assembly and the opportunities for the communication of thought and the discussion of public questions immemorially associated with resort to public places.
Source: Cox v. New Hampshire, 312 U.S. 569 (1941), U.S. Supreme Court. Public domain.
First Amendment issues will be discussed in later chapters regarding the right of free expression of commercial speech in conjunction with food advertising and claims.
Searches
The Fourth Amendment to the U.S. Constitution provides that:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue but upon probable cause supported by Oath or affirmation and particularly describing the place to be searched and the persons or things to be seized.
This is particularly relevant to how agencies conduct inspections. The courts have generally upheld the validity of laws granting government agencies the right to inspect food establishments; however, the scope of inspections is more controversial. The right to take photographs and the right to access records, such as complaint files, formulation files, and personnel files, will be discussed in later chapters.
The Fifth Amendment contains three provisions that are particularly pertinent to food regulation:
Self‐Incrimination: No person shall be compelled to be a witness against himself in any criminal case.
Due Process: No person shall be deprived of life, liberty, or property without due process of law.
Just Compensation: No private property shall be taken for public use without just compensation.
Self‐Incrimination
Under the Fifth Amendment’s protection that no person shall be compelled to be a witness against himself in a criminal case, a person may refuse to answer official questions if the answers could be used as evidence against them in a criminal prosecution. This right applies not only to questioning by the federal government, but also through application of the Fourteenth Amendment, to questioning by state and local governmental agencies.
However, the Fifth Amendment protection against self‐incrimination has limited applicability to agency authority to see records or require the production of documents kept by a food establishment. Largely this is because the privilege against self‐incrimination is a personal one and does not extend to corporations and similar unincorporated collective entities or associations.41 In addition, this privilege does not extend to the agents or custodian of the records of corporations and other collective entities.42 Nor does the privilege extend to the sole proprietor of a business to withhold records kept under a legitimate regulatory program.43 For example, the Fifth Amendment provides no privilege to withhold the time and temperature records a company is required to keep under food safety regulations.
On the other hand, the privilege against self‐incrimination
