Neal D. Fortin

Food Regulation


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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.

       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:

      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.

      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