of criminal activity. For example, bookies (those running an illegal gambling operation, or “bookmaking”) cannot be compelled to register their occupation because it would be compelled self‐incrimination.44 The difference here is the requirement concerns inherently criminal activity, while required food establishment records are essentially noncriminal and regulatory in nature.
Nonetheless, when the records and reports required to be produced by food establishments and supplied to regulatory agencies could conceivably lead to criminal prosecution, there can be a concern over the reluctance to create incriminatory records. This reluctance for candor in the records can inhibit the purpose of certain self‐regulatory measures. For instance, the requirement to document deviations from time or temperature controls and correspondingly take corrective actions is an important preventative means in keeping safety issues from reaching the consumers. If the concern over self‐incrimination prevents the effectiveness of such controls, this potential conflict has been avoided by making it a criminal offense to fail to maintain and report such records, but forbidding their use for criminal prosecution.45
Due Process
The Fifth Amendment due process provision provides that “no person shall be deprived of life, liberty, or property without due process of law.” This clause, along with a similar provision in the Fourteenth Amendment applying due process to state governmental actions, establishes the principle that government must act fairly, according to clear procedures. In its most straightforward sense, due process means fairness in the procedural application of the law. The most basic components of due process fairness are notice and an opportunity to be heard, which were also discussed above regarding the Administrative Procedures Act.
Additionally, notice means that the government must give adequate information about legal requirements to the persons affected so that they can avoid the consequences of noncompliance. Generally, fair notice means that a law must be published before being enforced. The law must also be written clearly enough so that those subject to the law can understand what the law requires. A law that is so vague that reasonable people may not understand its meaning lacks basic fairness and violates due process. Such statutory or regulatory language could be invalidated by the courts as “void for vagueness” under the Due Process clause.
Due process also requires that when the government takes action affecting a person’s rights or entitlements, the person must be given notice of the intended action and an opportunity to challenge the determination. For example, a government agency cannot revoke a food establishment license without giving the owner notice of the action and, under most circumstances, an opportunity to challenge the action before the license is revoked. In an emergency situation the agency may unilaterally revoke a license, but the agency must then give the owner an opportunity to challenge the revocation in a later hearing.
Just Compensation for the Taking of Private Property
The Fifth Amendment provides that no private property shall be taken for public use without just compensation. Agencies may seize or embargo food for being adulterated or misbranded. Is such a seizure a “taking” under the Fifth Amendment? If it is, then the government would be constitutionally required to compensate those persons whose private property rights were affected.
Adulterated food with no commercial value presents an easy answer because with no value there can be no takings. However, the state is not required to compensate the seller of adulterated meat for the salvage value of the protein.
Seizures clearly interfere with people’s use and enjoyment of their property. However, foods under seizure are not taken for the public use. The purpose of the seizures is protection of the public’s health and welfare. However, in keeping with the broad authority, the Constitution extends to government as the protector of public health and safety, the general rule is that government seizure of private property to prevent harm does not require compensation.
The Supreme Court balances the public interest involved against the reasonableness of the infringement on individual private interests. In Mulger v. Kansas, 123 U.S. 623 (1887), the U.S. Supreme Court noted:
The power which the States have of prohibiting such use by individuals of their property as will be prejudicial to the health, the morals, or the safety of the public, is not—and, consistently with the existence and safety of organized society, cannot be—burdened with the condition that the State must compensate such individual owners for pecuniary losses they may sustain. The exercise of the police power by the destruction of property which is itself a public nuisance, or the prohibition of its use in a particular way, whereby its value becomes depreciated, is very different from taking property for public use, or from depriving a person of his property without due process of law. In the one case, a nuisance only is abated; in the other, unoffending property is taken away from an innocent owner.
Source: Modified from Mugler v. Kansas, 123 U.S. 623 (1887), U.S. Supreme Court.
The courts have routinely upheld the exercise of the police power even when property will be confiscated or destroyed.
Equal Protection
The U.S. Supreme Court has also interpreted due process to mean that no person shall be denied equal protection of the laws. This guarantee is provided for explicitly in the Fourteenth Amendment, applicable to the states, and implicitly in the Fifth Amendment Due Process clause, applicable to the federal government. Equal protection of the law refers to an even‐handed application of law. In its most basic sense this means that government and the legal system cannot arbitrarily discriminate. Equal protection may be violated in two ways: directly by the words of the law or by the application of the law.
Equality before the law applies not only to the specifics of a law but also to how agencies implement the law. For example, under a local ordinance, which prohibited the construction of wooden laundries without a license, almost all Chinese applicants were denied licenses, while non‐Chinese applicants routinely received them. Although the ordinance was a valid safety measure on its face, the implementation violated the equal protection clause of the Fourteenth Amendment.46
Nonetheless, equal protection does not require identical treatment. Government may classify people into groups and treat these groups differently. For example, regarding workers in food establishments, the law places special restrictions on persons suffering from certain communicable diseases. This distinction does not violate equal protection because the government may differentiate between individuals and groups if it has good reason to do so. The critical question is what is an acceptable reason for applying the law differently to persons in similar situations.
Privacy Rights
Although privacy right objections are frequently made against public health laws—such as immunization, fluoridation, and compulsory HIV testing—the argument is less common against food laws. The seminal case on privacy rights is Griswold v. Connecticut, 381 U.S. 479 (1965), where a Connecticut law prohibited the prescribing of contraceptives and their use by any person, including married couples. The U.S. Supreme Court declared the Connecticut statute unconstitutional. In the main opinion, Justice William O. Douglas laid out the basis of a constitutional right to privacy. The constitutional right to privacy has been applied by the Supreme Court only in situations involving the personal intimacies of the home, the family, marriage, motherhood, procreation, and child rearing. Efforts to
