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Baylen Linnekin

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Baylen Linnekin is the executive director of the Keep Food Legal Foundation, an organization he founded to defend what he calls “food freedom”—the right to grow, raise, produce, buy, sell, share, cook, eat, and drink the foods of one’s own choosing. He appeared on The Bob Zadek Show in 2015 and again in 2022 to discuss government regulation of food, from soda taxes and foie gras bans to the Supreme Court’s Horne v. USDA decision and California’s food waste law.

Linnekin described the motivation for founding Keep Food Legal in terms of a pervasive regulatory threat: regardless of what a person likes to eat, there is some government employee or elected official who wants to prevent it. He characterized the foundation, depending on his audience, as a “Food ACLU” or a “Food NRA,” explaining that the basic premise is that people’s food choices should be defended whether they shop at a farmers market or at 7-Eleven. The foundation’s mission, he said, is to protect an individual’s right to grow, raise, produce, buy, sell, share, cook, eat, and drink the foods of their own choosing Baylen Linnekin on the Front lines of the Fight for Food Freedom (2015).

Asked why government concerns itself with what people eat, Linnekin identified several motivations: public health reasons, which he qualified as “alleged”; animal rights and animal welfare; and revenue-raising. He stated that government has a legitimate role in protecting public health to some degree—if someone were trying to poison food with cyanide, that would be an appropriate use of government power—but argued that many people mistake the idea that government should do a few things for the idea that it must do everything. He described himself as favoring limited government, not no government Baylen Linnekin on the Front lines of the Fight for Food Freedom (2015).

Soda taxes and the soft drink wars

Linnekin discussed Berkeley’s soda tax, which he said was the first in the nation and added approximately $1.50 to the cost of a six-pack of soda. The revenue, he noted, goes into the city’s general fund and can be used for anything. He compared the tax to lotteries, which he said had been promoted for a generation as a way to solve public education funding but had not improved education and acted as a tax on the poor, since low-income Americans buy the bulk of lottery tickets. Bob Zadek added that lotteries also tax people with a gambling addiction Baylen Linnekin on the Front lines of the Fight for Food Freedom (2015).

Zadek framed the broader issue as a question of competence: the premise of an intrusive government, he argued, is that people are intellectually incapable of making important life decisions about what to eat and therefore must be nudged or prohibited. He cited the example of salt, which he said was first found to be bad for you and then not that bad after all in terms of causing heart conditions. Linnekin agreed that salt is one example, noting that he is an attorney and not a nutritionist and does not dispense nutritional advice Baylen Linnekin on the Front lines of the Fight for Food Freedom (2015).

Warning labels versus bans

Zadek drew a distinction between warning labels and outright bans. A warning label, he said, is designed to give information, and by the very fact that it is there it has to work. But when government finds something harmful, it can impose warning labels—as with cigarette packs—and then take what he called a giant step beyond that to an absolute ban. The issue, he argued, is that government does not trust people to learn from the warning label and make their own decision. Banning, he said, is profoundly different from a warning label and is a great deprivation of liberty where the product is merely bad for you rather than immediately lethal Baylen Linnekin on the Front lines of the Fight for Food Freedom (2015).

Linnekin invoked the saying that the dose makes the poison, noting that drinking too much water kills people every year. He used raw milk as an example: if it were the case that every person who consumed raw milk got sick because it always contained pathogens, government would have a good case to consider banning it, but that is not the case, and yet raw milk is banned in interstate commerce and in many states, with loopholes such as buying it as pet food. He cited Randy Barnett, a professor at Georgetown University Law School whose work he admires, and Barnett’s book Restoring the Lost Constitution, whose subtitle Zadek identified as “Presumption of Liberty.” Linnekin agreed with the idea that government should presume people have a right and that the burden should be on government to demonstrate where they do not and why. In economic cases, he said, the presumption is that government has authority to regulate, ban, and restrict; flipping the burden and enabling a higher level of scrutiny would make it harder for government to prove a given ban is appropriate Baylen Linnekin on the Front lines of the Fight for Food Freedom (2015).

Foie gras and the Dormant Commerce Clause

A caller from Boston asked Linnekin to bring the audience up to date on the foie gras controversy in California. Linnekin explained that foie gras is a luxury food made from the fattened liver of a duck or goose, which is fed a diet of grain and fat until its liver becomes engorged. He said he had tasted it and found it tasty, and recalled attending a 16-course foie gras dinner where everything, including the dessert, contained foie gras. California passed a ban on producing foie gras several years earlier and also prohibited importing it from other states. The motivation, Linnekin said, was an animal rights and animal welfare argument that the force-feeding is cruel. He acknowledged that some animals raised for foie gras or any food may be mistreated and that this is a legitimate issue, but said it hides the fact that most ducks and geese used for foie gras are not mistreated and are treated similarly to other well-treated farm animals Baylen Linnekin on the Front lines of the Fight for Food Freedom (2015).

The ban took effect, Linnekin said, in 2012, and was immediately challenged by several groups. The lead plaintiff was a group in Quebec that raises geese or ducks for foie gras; other parties included Hudson Valley Foie Gras, which he believed to be the country’s largest producer, based in New York State. The plaintiffs argued that California had no power to regulate what was happening in New York or Canada under the Dormant Commerce Clause—the principle that California cannot dictate what a farmer does on a farm in New York. Linnekin said he supported the lawsuit in principle and in fact. The US District Court, he believed in Los Angeles, found for the plaintiffs and lifted the ban. The case was on appeal before the Ninth Circuit. Linnekin said he saw no possibility of the ban being revived, calling it facially unconstitutional and vague—so vague, he noted, that it does not even mention the words “foie gras” Baylen Linnekin on the Front lines of the Fight for Food Freedom (2015).

Horne v. USDA and the raisin case

Zadek introduced the Horne case as a food-related Supreme Court decision handed down that week, reversing the Ninth Circuit. Linnekin explained that the Hornes are a California couple who, in the USDA’s terminology, “handle” raisins. Under a USDA program called the Raisin Administrative Committee, in place since the New Deal era, raisin handlers must turn over a significant portion of their crop to the committee for the privilege of doing business. Zadek described the committee’s function as managing the retail price of raisins: if growers collectively grow too many, depressing the price, they turn the excess over to the committee so the price remains high, and the committee disposes of the raisins and shares the profits with growers—a cartel-like manipulation of raisin prices. Linnekin agreed with that description and noted that similar programs exist for other fruits and vegetables and even for spearmint oil Baylen Linnekin on the Front lines of the Fight for Food Freedom (2015).

At one point, Linnekin said, nearly half of the Hornes’ raisin crop, worth hundreds of thousands of dollars, was ordered seized by the government because the amounts the government demands fluctuate each year. The Hornes objected that the government could not take their raisins without compensation; the government said they could pay; the Hornes replied that this is not how commerce works in a free country. They claimed an unconstitutional taking under the Fifth Amendment’s Takings Clause and sued. The case went from the Ninth Circuit to the Supreme Court, back to the Ninth Circuit, and back up to the Supreme Court. Zadek noted that in the first round, the government had said the Hornes had to pay a fine of about three-quarters of a million dollars before contesting the taking, and the Supreme Court held that the government cannot require paying a fine first as a condition of getting into court Baylen Linnekin on the Front lines of the Fight for Food Freedom (2015).

In the second round, Linnekin said, the Supreme Court ruled that personal property such as raisins is protected by the Takings Clause in the same way as real property like a home. He characterized this as nothing new—essentially a reiteration of history. The USDA program, he said, is now in very shaky constitutional territory and will either have to be rewritten or go away Baylen Linnekin on the Front lines of the Fight for Food Freedom (2015).

Across episodes

The 2015 and 2022 episodes both feature Linnekin arguing that government regulation of food is intrusive and often counterproductive, but the excerpts show no development of the argument between them: the 2015 episode covers soda taxes, foie gras, trans fats, and Horne v. USDA, while the 2022 episode turns to California’s SB 1383, school lunch programs, food labeling and grading, and food waste. The later episode’s introduction frames the topic as food freedom and government intrusion, with Zadek describing California’s approach to feeding the homeless as a way to get credit without raising taxes, but the excerpts do not show Linnekin responding to or revising positions from the earlier appearance Food (Waste) Freedom (2022).

What the sources do not cover

The excerpts do not state Linnekin’s educational background, the date he founded Keep Food Legal, or any professional title beyond executive director. They do not give the outcome of the foie gras appeal beyond Linnekin’s prediction that the ban would not be revived, nor do they describe the final disposition of Horne v. USDA beyond the Supreme Court’s ruling on personal property. The 2022 episode’s treatment of SB 1383 is cut off before Linnekin speaks on the law’s details. The excerpts also do not cover Linnekin’s book beyond its title, Biting the Hands that Feed Us, and Zadek’s description of its argument.

Episodes

2 appearances, 2015–2022.

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