Commerce Clause

The Commerce Clause of the U.S. Constitution provides Congress with the power to regulate commerce “among the several states.”[1] This is an express grant of power to Congress, which it often uses to justify exercising legislative power over a diverse range of public health activities.[2] For example, Congress used this power to place a prohibition on altering of any part of a food, drug, medical device, tobacco product, or cosmetic label after shipment in interstate commerce.[3]

The United States Supreme Court has interpreted the Commerce Clause as also placing a prohibition on states’ ability to pass legislation that discriminates against or excessively burdens interstate commerce. This is called the Dormant Commerce Clause, and a state violates this doctrine if it passes a law that benefits the state or citizens within the state at the expense of out-of-state interests. For example, in 1933, New York State enacted a Milk Control Act setting the minimum price for milk sales and barring the resale of milk purchased from out-ofstate producers (namely Vermont) for less than New York prices. The Supreme Court struck down the Act as an improper attempt to set a barrier to commerce between states.[4] More recently, the state of Michigan enacted a law that permitted in-state wineries to sell wine directly to consumers in that state over the Internet but hindered out-of-state wineries from doing the same; this was also struck down as violating the Commerce Clause.[5] Finally, even absent any obvious discrimination against out-of-state interests, such as what is presented in these cases, courts will look to determine whether any incidental burden imposed on interstate commerce is “clearly excessive in relation to the putative local benefits.”[6] This involves weighing competing interests. A nondiscriminatory regulation that serves a substantial state purpose will not be considered invalid simply because it causes some business to shift to an out-of-state industry.[6] To determine whether a state’s purpose is substantial in the context of food law, it is necessary to understand state government authorities, described below and further in Chapter 9.

  • [1] U.S. Constitution Article 1, Section 8, Clause 3.
  • [2] L. Rutkow, J. S. Vernick. The U.S. Constitution’s Commerce Clause, the Supreme Court, andPublic Health. Public Health Report. 20ii;i26(5):750-753.
  • [3] 21 USC § 33i(k).
  • [4] Baldwin v. G. A. F. Seelig, Inc., 294 U.S. 511(1935).
  • [5] Granholm v. Heald, 544 U.S. 460 (2005).
  • [6] Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456 (1981).
  • [7] Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456 (1981).
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