Welcome!

Welcome to On Food Law, a food law and policy blog administered by the Food Law Lab at Harvard Law and the Resnick Center for Food Law and Policy at UCLA Law.  This blog will be a forum for food law scholars, policymakers, media, the food industry, and the interested public to engage with and discuss research in and ideas about food law and policy.

Food is, at once, the most personal and the most political.  Food affects all of us and the law affects all of food.  The things we eat, from morning coffee to late night snack, come to us as they are as the result of an elaborate web of legal regulations.  On Food Law’s goal is to build an understanding of the law of food, and ultimately improve both the law and our food.

We hope to foster and amplify the conversation among the many stakeholders, including industry, activists, academics, and politicians. Our authors will include members of the Food Law Lab, Resnick Center, Harvard Law, and UCLA Law faculty, staff, and students, as well as other scholars, policymakers, and individuals with ideas that may affect the food system.  We will also cross post to other blogs and relevant publications.

We would like for this blog to be a place of thoughtful discussion, and although our default is no comments, we will consider opening specific posts to comments or publishing responses.  Please see our policies.

Finally, please join the discussion, share what you see here, and stay in touch.  Follow us on Twitter at @UCLAFoodLaw and @thefoodlawlab, or email us at resnickprogram@law.ucla.edu, info@foodlawlab.com, or winters@law.ucla.edu.

 

 

 

Featured post

The Small Farm in a Big Food System

by Evan Graham Arango*

Our modern food system prioritizes efficiency and scalability over all other considerations. The result is a highly mechanized and centralized system capable of producing and distributing staggering amounts of food at low cost to consumers.  The majority of food is packaged and handled by a small number of very large processing plants.  Most of this food is produced, controlled and distributed by an even smaller number of giant corporations.  This preference for efficiency, which has shaped the landscape of our modern food system just as it has the physical landscape of our country, comes with tradeoffs that have been largely ignored by our law and policymakers for far too long.  Specifically, the relaxed enforcement of antitrust regulations in the food sector has caused intensive centralization of our food cultivation and distribution system.  Small-scale organic and regenerative farms can significantly impact local food systems in a more robust and sustainable manner.

Degradation of farmland, food contamination, worker safety, climate change, and even intentional attack are some of the primary risks that derive from having such a highly centralized food system.  From an environmental perspective, our soil, water and ecosystems have paid a heavy and easily overlooked price from the agglomeration of power in the food industry.  Moreover, the pandemic has exposed some of these risks and has highlighted both the immediate and long-term need to build into our food system qualities like adaptability, diversification and sustainability.  While the pandemic forcefully brought issues like worker safety, food waste, and food security to the front page headlines, these issues ultimately stem from deeply rooted legal and policy decisions that have invariably favored centralization and efficiency over sustainability and security.  The pandemic has not caused these problems, it has simply revealed just how vulnerable the system is on a national and global scale. This system will only continue to be tested as the Earth’s climate becomes less predictable, soils less fertile, and the number of people to feed increases. I see new technologies and production techniques, along with more small-scale food producers, as promising solutions to many of the risks our food system faces. 

I recently had the opportunity to visit Steadfast Farm in Mesa, Arizona, which provides a great example of how farmers, developers and local governments can work together to create robust and flourishing local food production systems. Here, farmer Erich Shultz partnered with developers to create a profitable one-acre vegetable farm in the heart of a suburban development community.  The farm is beautifully landscaped into the community and serves as an attraction for new residents while securing a place for Erich to run his operation. 

Models such as this can also help overcome the common problem of land acquisition which serves as a major barrier of entry for beginning farmers.  The problem of affordable farmland acquisition is especially apparent in urban and suburban settings where land values are often prohibitively expensive to farm despite the high demand for hyperlocal fresh produce.  Steadfast Farm sells fresh organic vegetables to the local community via an on-farm store, a vegetable box subscription program, farmers markets, and to local restaurants. Small, well managed farms like Steadfast Farm have the potential to be far more profitable per acre than larger-scale farms and have a serious impact on their local food systems.  Many small farms have also been nimble enough to sustain themselves, or even increase business during the pandemic as the demand for healthy local food surged and the threat to the national food supply became apparent. 

How productive can a small-scale regenerative farm be? This is the most common question I have received since I started Ojai Roots, a quarter-acre vegetable farm in Ojai, CA, where I focus on experimenting with organic production techniques that maximize the productivity and revenue potential of very small farms without compromising on environmental care.  While I devote my work on the farm to answering the question of how productive a small farm can be, I have come to understand that the real power may lie in increasing the number of small farms, and their potential to succeed as profitable businesses.  Research, innovation and information sharing will be key in the development and proliferation of these farms and local food production business models. 

The success of these types of diverse local food systems depends on entrepreneurial creativity and supportive laws and policies that rethink issues like zoning, urban/ag divide, business associations, water use, food safety, and environmental protection.  The incoming administration has the opportunity, and hopefully the political will, to support these kinds of changes. Efficiency, while important, cannot be all that counts in making food policy decisions.  It is time to reimagine the possibilities for local food production and get creative in building a more resilient and just food system. 

*Evan Graham Arango is the owner, founder and farmer at Ojai Roots Farm in Ojai, CA. He graduated UCLA Law in 2020 specializing in environmental law and taking courses in food and agricultural law and policy. He supports the small-scale regenerative farming movement currently underway and advocates for policies that help build a more resilient and sustainable food system.

Evan is currently a Research Affiliate with the Resnick Center for Food Law & Policy at UCLA Law. Research Affiliates are recent law school graduates working to better the food system who consult and assist on various Resnick Center research projects.

To contact Evan or for more information about Ojai Roots Farm:
Email: ojairootsfarm@gmail.com
Website: https://ojairootsfarm.com
Instagram: @Ojairoots

Roberts Guest Lectures

by Michael T. Roberts

I had the opportunity to guest lecture on historical perspectives involving food law and Covid-19 via Zoom in two classes last week. The first lecture/discussion was at the University of Arkansas School of Law’s LL.M. program series sponsored by Professor Susan Schneider on Food, Law, and Covid-19. My presentation title was on “Learning from the Past: Pandemics and Food Security in Historical Context.”

The second lecture/discussion was here at UCLA in Professor Monica Smith’s anthropology class on Covid-19 Foodways: Changes and Challenges for the Future. I presented on legal perspectives on Covid-19 changes in the context of the development of international food law in the 20th century. 

These opportunities have underscored for me how understanding the history of food security and the development of modern food law is critical as we move to the future.

Study Food History and Culture in Italy With UCLA Next Summer

Aaahhh, travel. Let’s dream of July in Rome, experiencing Italy’s food culture and learning Italian food history through the concept of terroir. Study this complex food culture with Robin Derby, Professor of History, UCLA, and Michael Roberts, Executive Director of the Resnick Center for Food Law & Policy, observing sustainable food production, tasting local cuisine, and learning about the emergence of international food governance through the twentieth century. Click here for more information.

Guide to Food-Based Pro Bono Activities

by Diana Winters

The Resnick Center is excited to share the publication of “Setting the Table for Food-Based Pro Bono Opportunities: A Resource Guide for Pro Bono Attorneys,” authored by Tommy Tobin, a member of the Resnick Center’s Advisory Board, and MAZON: A Jewish Response to Hunger. The guide is designed to facilitate connections between attorneys seeking meaningful pro bono work and anti-hunger organizations.

The Covid-19 pandemic has exacerbated food insecurity in the United States, and the amount of resources needed to address the crisis is staggering. Attorneys seeking pro bono work can assist with direct client services, legislative research, and policy advocacy, among other things. This guide seeks to describe these opportunities and to assist in forming these partnerships.

We are grateful to Tommy Tobin, Mazon, and Perkins Coie LLP for their work on and support of the guide. The guide will be updated periodically.

Addressing Honey Fraud and the Pollination Crisis

by Diana Winters

The scope of honey fraud is enormous.  Demand for honey has doubled in the U.S. in the past 25 years, but production has not kept up. The increase in demand for honey has coincided with a critical decline in honey bee populations globally.    So to keep consumers’ honey pots full with cheap honey, producers have increasingly cut honey with cheaper substances like corn syrup.

As adulterated honey takes over the mass market, beekeepers and legitimate honey producers cannot recoup their expenses by selling pure honey and are going out of business.  The loss of these businesses has dire consequences for our declining honeybee population, which in turn has repercussions far beyond honey production. 

Those trying to solve these two problems—honey market fraud and the loss of bee populations—must recognize that they are inextricably linked.  The failure to do so may be catastrophic. This is because the decline in honey production is the least of our worries when it comes to declining honeybee populations; the consequences of reduced pollination are far worse.  Three out of four fruit or seed crops need pollinators to continue producing, and the loss of bees has led to what some see as a pollination crisis.

Commercial beekeepers’ revenue comes from the sale of both honey and pollination services.  When beekeepers go out of business because they cannot compete on price with honey producers mixing cheaper products into honey, they also cease providing pollination services. 

But this linkage has not been effectively addressed by policymakers. One reason is that the declining honeybee population is seen as an environmental problem, while fraud is an economic one, and these problems are addressed by different federal agencies.  Notably, a 2014 effort by the White House to address the pollination crisis did not include the FDA, the only agency with the authority to address honey adulteration.  Moreover, the FDA’s approach to honey fraud has been anemic.  It focuses on labeling rather than stronger action like setting out a specific formula or method of production for honey.  

Michael T. Roberts, Executive Director of the Resnick Center for Food Law and Policy at UCLA Law School, has published a white paper with the support of the American Honeybee Producers Association that identified an approach to stopping honey fraud while also saving the honeybee.

First, federal agencies—including the FDA, the USDA, and the EPA— must work together to adopt food-systems thinking with the twin goals of addressing pollination and honey production.  If the White House fails to order coordination among these entities, Congress should legislate this coordination.  And regardless of whether the White House or Congress act, the FDA should take immediate action against honey fraud.  Next, retailers should work with the American Honey Producers Association to develop strategies to address honey fraud and to save pollinators.  For example, in the absence of governmental standards, retailers should consider creating private standards in the supply chain to counter fraud. 

Moreover, all the stakeholders in this pollinator economy—including regulators, retailers, and beekeepers—must educate the consumer on the value of unadulterated honey. 

Currently, there are overwhelming incentives and an absence of consequences for food manufacturers to engage in honey fraud, and this takes a vast toll on consumers, the legitimate honey producer, and pollinators.  To fix this, we must make the connection between healthy pollinator populations and pure, authentic honey as clear to everyone as it is to beekeepers and legitimate honey producers.

Resnick Center faculty and staff recent speaking events

Executive Director Michael T. Roberts recently spoke by Zoom for the San Marino Rotary Club on the “Role of Food Law in everyday consumer products: Olive Oil and Honey. How do we know what’s in our plates?” Regarding the presentation, he commented, “I was thoroughly impressed with the quality of questions from the members. We ran 30 minutes overtime, as questions about Ractopamine (animal drug) and Isotopes (chemical fingerprinting) surfaced.” A video of the talk is here.

Also this week, Assistant Director Diana Winters participated in a Duke Law Food Law Society Zoom panel on Slaughterhouses and Covid-19, with David Muraskin from Public Justice, Hannah Connor from the Center for Biological Diversity, and Delcianna Winders, the Director of Lewis & Clark Law School’s Animal Law Litigation Clinic. The panel discussed failures in food safety and worker protection regulation that have led to the rampant spread of Covid-19 in meat processing plants.

Webinar: Impacts of COVID-19 on Food Security and Long-term Implications and Adaptations

by Diana Winters

On September 18, I attended a webinar hosted by the Center for Urban and Regional Analysis at Ohio State University on the impacts of Covid-19 on food security. The panelists included Kip Curtis, an Associate Professor in the Department of History at OSU, Mary Rodriguez, an Assistant Professor in the Department of Agricultural Communication, Education, and Leadership at OSU, Brian Snyder, the Executive Director of the Initiative for Food and Agricultural Transformation (InFACT) at OSU, and Lauren Vargo – a Program Manager at Case Western Reserve University.

The panelists discussed the enormous impact of Covid-19 on family decision-making concerning food, and the increase in the use of federal and state food assistance benefits. Rodriguez described how families had to shift their buying habits because of the pandemic. Although official advice was to acquire two weeks of food, many families had neither the financial capacity nor the infrastructure to do so, and had to shift their diets accordingly. Curtis, an environmental historian, discussed the growing importance of local food production, in the context of many crises–not just the pandemic.

Snyder analogized the food system to a river, which had reduced water flow because of the pandemic. This drop in water level exposed hazards in the system that were always there, but hidden. For example, the public became aware of shortages and surpluses in the supply chain, as well as bottlenecks and dams in production, processing, and distribution. Worker issues became visible, especially in the area of meat processing, as production slowed because of rampant disease spread amongst closely packed individuals. Moreover, the fact that approximately 50% of farmworkers are undocumented disincentivized testing and treatment, which leads to more disease spread.

Vargo pointed out how much more food is in the media now, and this webinar highlighted how food and food systems became critically important during the Covid-19 pandemic, which is by no means over. There is no more important time to address the hazards in our food supply, to prepare us not just for future crises, but for the present.

Retail Water Rates and Community Gardens in Los Angeles

Welcome back to On Food Law! We are excited to be back from our summer break and can’t wait to see what the rest of 2020 will bring. (Kidding.)

We have some exciting news – Laura Yraceburu Dall’s (UCLA Law ’20) article on the effect of Proposition 218 on retail water rates for community gardens in Los Angeles, which won the 2020 California Water Law Writing Prize co-sponsored by the California Water Law Symposium Board of Directors and the University of the Pacific, McGeorge School of Law, has been published in the California Water Law Journal.

Laura, who was deeply involved with the Resnick Center during her time at UCLA Law, writes that she came to the topic in her Food Law & Policy Clinic:

“As a part of Professor Korn’s Food Law and Policy Clinic, a representative of the Los Angeles Food and Policy Council came to discuss her advocacy and mentioned that water rates for community gardens were increasing by nearly three hundred percent, threatening the existence of gardens to the detriment of low-income community members. I began researching outside of class and came to realize that there was no clear understanding of why the rates were increasing so dramatically. I knew that I had to write about it.”
She then wrote the paper for her water law course, and submitted it for the 2020 CA Water Law Writing Prize.
Here is a synopsis of the paper:

Community gardens in Los Angeles County have seen water rates increase from a flat rate of $1.41 per hundred cubic feet (HCF) in March 2016 to $2.095/HCF plus variable adjustments in July 2019 – a 289 percent increase.[1] As a result, some community gardens have been forced to quadruple their member gardeners’ monthly dues to cover the increasing cost of water.[2] In three years, this increase in the price of water has made gardening significantly more expensive and has priced out low-income, largely immigrant community members[3] who rely on these gardens to supplement their diets with fresh produce. Community gardens across Los Angeles now face the choice of either having their membership change from subsisters who rely on the gardens for dietary needs to hobby gardeners who can pay more to fund the gardens or, alternatively, closing their operations.  Either result increases food insecurity for the most vulnerable members of the gardens’ communities.

California has a long history of resisting tax increases through voter-approved propositions, known in short-hand as the California Tax Revolt. This effort has generally made it more challenging for cities and utilities to raise needed revenue for local services and programs, including water service,[4] but a deeper problem exists than a shortage of funds. Proposition 218, which amended the California Constitution, imposes substantive and procedural requirements on local agencies by limiting property-related fees, including retail water rates.[5]  Proposition 218’s shifting of rate setting authority to the electorate has paradoxically contributed to a significant water rate increase for Los Angeles’ community gardens.  While the goal of the Tax Revolt was to keep taxes and rates low, certain ratepayers have not received such benefits and in fact have experienced disproportionate rate increases.

This paper begins with an overview of community gardens and the history of the California Tax Revolt, primarily focusing on Propositions 13 and 218.[6]  Next, this paper will evaluate Proposition 218’s consequences for community gardens in the Los Angeles area. An analysis of how Proposition 218 was sold to voters will follow. A discussion of practical steps towards reform will precede the conclusion.[7]

 

This important work can be found here.

Post-pandemic changes to food safety protocols?

By Daniel Pessar (Guest Blogger)

In May, the U.S. Food and Drug Administration (FDA) released the Best Practices for Re-Opening Retail Food Establishments During the COVID-19 Pandemic – Food Safety Checklist. The document contains dozens of questions for food facilities to consider relating to Handwashing Stations, Employee Health, and Facility Operations. Some of the questions are very specific, such as

“Are all the handwashing sinks functional and able to reach 100 F minimum?”

Best Practices for Re-Opening Retail Food Establishments During the COVID-19 Pandemic – Food Safety Checklist, U.S. Food and Drug Administration (May 21, 2020), https://www.fda.gov/media/137867/download

Yet, food safety professionals understood that this list was mostly comprised of food safety recommendations that the FDA’s most recent Food Code already includes. For example, the 2017 Food Code—its most up to date full release—contains the following:

[Handwashing sinks] shall be equipped to provide water at a temperature of at least 38°C (100°F) through a mixing valve or combination faucet.

FDA Food Code 2017 §5-202.12, https://www.fda.gov/media/110822/download

Because the FDA’s mandate regarding retail food establishments mostly relates to food safety, this makes sense. The checklist contains guidance generally applicable to reopening food establishments, serving as a reminder for responsible parties to make sure all of the core systems and policies are functioning. Consistent with this purpose, ventilation, pest management, fire prevention, product inspection and rotation, and warewashing are just some of the items mentioned in the document.

Three items in the checklist relate to social distancing, but most of the dozens of items listed are familiar to retail food establishments, such as:

“Have you trained and reminded employees of effective hand hygiene practices including washing hands with soap and water for at least 20 seconds, especially after going to the bathroom, before eating, and after blowing their nose, coughing, or sneezing?”

Best Practices for Re-Opening Retail Food Establishments During the COVID-19 Pandemic – Food Safety Checklist, U.S. Food and Drug Administration (May 21, 2020), https://www.fda.gov/media/137867/download

This unchanged focus on food safety is understandable given the lack of evidence associating food with the pandemic. According to the FDA:

“Currently there is no evidence of food, food containers, or food packaging being associated with transmission of COVID-19. Like other viruses, it is possible that the virus that causes COVID-19 can survive on surfaces or objects. If you are concerned about contamination of food or food packaging, wash your hands after handling food packaging, after removing food from the packaging, before you prepare food for eating and before you eat.”

COVID-19 Frequently Asked Questions (Current as of June 17, 2020),

https://www.fda.gov/emergency-preparedness-and-response/coronavirus-disease- 2019-covid-19/covid-19-frequently-asked-questions

While the CDC might advise about the risks of attending certain restaurants, the FDA has a different role to play and the pandemic does not necessarily warrant a change in its strategies for ensuring food safety. While the public might be responsible in focusing on handwashing to prevent the spread of the coronavirus, handwashing sinks in food establishments continue to serve more general food safety functions as well. The 2017 Food Code explains that the accessibility of handwashing sinks with warm water are important for materials encountered in kitchens, too:

“Warm water is more effective than cold water in removing the fatty soils encountered in kitchens. An adequate flow of warm water will cause soap to lather and aid in flushing soil quickly from the hands. ASTM Standards for testing the ef cacy of handwashing formulations specify a water temperature of 40°C ± 2°C (100 to 108°F).”

FDA Food Code 2017, Annex 3: Public Health Reasons/Administrative Guidelines §5-202.12, https://www.fda.gov/media/110822/download

The next full FDA Food Code, adopted on some level by food-regulating agencies in 49 states, is scheduled to be released in 2021. While public health and social distancing guidance may continue to affect countless interactions for the foreseeable future, there is no indication that food safety best practices are about to change.

*Daniel Pessar is a third-year student at Harvard Law School. Before law school, he worked in the real estate investment industry for six years. He is the author of three books and numerous articles. He can be contacted at dpessar@jd20.law.harvard.edu

Guide to Careers in Public Interest Food Law and Policy Published

By Diana Winters

A food law and policy career, especially for attorneys interested in working in the public interest sector, can take many shapes. Food policy work often intersects with other legal subject matters, such as housing, health care, education, and family law. For this reason, the Resnick Center has put together a digital guide to Careers in Public Interest Food Law and Policy to help law students and graduates understand the varied directions a public interest food law career can go, and how to embark upon such a career path.

Although the guide contains some resources specific to UCLA Law students, it also contains many more general resources, and will be useful to all law students and law school graduates seeking to explore public interest food law and policy careers.

We’re excited about this guide, and hope it can help grow our vibrant field.

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