Liberty of Palate

As lawmakers concerned with problems as diverse as childhood obesity, animal cruelty, and listeria have increasingly focused their attention on consumers, legal issues surrounding food choice have recently attracted much broader interest. Bans on large sodas in New York City, fast food chains in South Los Angeles, and foie gras in California and Chicago have provoked national controversy, as have federal raids on raw milk sellers. In response, various groups have decried restrictions on their ability to consume the food products of their choice. A few groups have organized around the principle of what we might call liberty of palate, and one commentator has even suggested, based on some old Supreme Court dicta, that a fundamental substantive due process right to food choice may exist. At the same time, the ominous possibility of a federal broccoli consumption mandate became a central point in the debate over the constitutionality of the Affordable Care Act. Advocates, in advancing the argument that the Commerce Clause should be interpreted to prevent Congress from forcing people to consume certain types of food, at least implicitly assumed that no fundamental food rights exist. This Essay will examine both of these claims and show that they are wrong. While no fundamental right to a liberty of palate exists, there likely is a right to be free of mandates to consume any particular type of food. The Commerce Clause thus need not be considered in future fights over certain food regulation, yet those arguing for a broader right to food will find little solace in the Constitution, apart from knowing that they can still push away their plates of uneaten broccoli