Event at UCLA Law: Suing Monsanto: How a Team of Lawyers Won a Verdict Linking the Herbicide Roundup to Cancer

October 25, 2018

You may remember the interview we did about a month ago with Michael Baum and Pedram Esfandiary from the law firm of Baum, Hedlund, Aristei & Goldman.  The firm represents approximately 700 plaintiffs in lawsuits against Monsanto alleging that the plaintiffs’ exposure to the Roundup herbicide caused them or a loved one to contract non-Hodgkin lymphoma.  Shortly after this interview, one of these state cases proceeded through trial, and a jury in San Francisco returned a verdict of $289.2 million against Monsanto, including $250 million in punitive damage.  (A few days ago, a California judge upheld the verdict but cut the award to $78 million.) Brent Wisner of Baum, Hedlund, Aristei & Goldman was co-lead trial counsel in this case.

On December 31, 2018, from 12:15-1:30pm, the Emmett Institute on Climate Change and the Environment and the Resnick Center for Food Law and Policy at UCLA Law will co-sponsor a lunchtime event that will feature attorneys Michael BaumPedram Esfandiary and Brent Wisner of Baum Hedlund Aristei Goldman, PC discussing their lawsuits against Monsanto.

Michael Roberts, Executive Director of the Resnick Center for Food Law and Policy, will provide opening remarks and Cara Horowitz, Andrew Sabin Family Foundation Co-Executive Director of the Emmett Institute on Climate Change and the Environment will moderate the discussion.

DATE/TIME/LOCATION:

October 31, 2018

12:15 p.m. – 1:30 p.m.

Room 1347

UCLA Law Building

385 Charles E Young Dr E

Los Angeles, CA 90095

Lunch will be provided for all registered guests.

RSVP:

Please register here by October 26, 2018.

SPEAKERS:

Opening remarks: Michael Roberts, Executive Director, Resnick Center for Food Law and Policy, UCLA School of Law

  • Michael Baum (UCLA J.D. ’85), Attorney, Managing Partner, President, Baum Hedlund Aristei Goldman, PC;
  • Brent Wisner, Attorney, Partner, Baum Hedlund Aristei Goldman, PC;
  • Pedram Esfandiary, Attorney, Baum Hedlund Aristei Goldman, PC;
  • Moderator: Cara Horowitz, Andrew Sabin Family Foundation Co-Executive Director, Emmett Institute on Climate Change and the Environment, UCLA School of Law

Suing Monsanto: An interview with Michael Baum and Pedram Esfandiary

by Diana R. H. Winters

Michael Roberts and I were lucky enough to spend an hour talking with Michael Baum and Pedram Esfandiary from the law firm of Baum, Hedlund, Aristei & Goldman.  The firm represents approximately 700 plaintiffs in lawsuits against Monsanto alleging that the plaintiffs’ exposure to the Roundup herbicide caused them or a loved one to contract non-Hodgkin lymphoma.  Some of these lawsuits have been consolidated in a multidistrict litigation in United States District Court in San Francisco, a Judicial Council Coordination Proceedings (“JCCP”) in Oakland and consolidated cases in St. Louis (near Monsanto’s headquarters).   Shortly after this interview, one of these state cases proceeded through trial, and a jury in San Francisco returned a verdict of $289.2 million against Monsanto, including $250 million in punitive damage.  Brent Wisner of Baum, Hedlund, Aristei & Goldman was co-lead trial counsel in this case.

Baum and Esfandiary also represent plaintiffs in a separate class action against Monsanto Co. alleging that the company falsely promoted Roundup as interfering with an enzyme that was not found in humans or pets, although this enzyme does actually interfere with essential, beneficial microbiota found in both humans and pets.  This class action accuses Monsanto of making “false, misleading, and deceptive” claims.

These lawsuits against Monsanto are brought to help individuals who have suffered harm, but also impact our food system as a whole, and have the potential to influence change in the regulatory landscape.

Michael Baum in the senior managing partner of Baum, Hedlund, Aristei & Goldman, and he has been lead counsel in thousands of personal injury, drug catastrophe, and mass disaster litigations.  He is a graduate of UCLA Law School.  Pedram Esfandiary joined the firm in 2016.  He holds a law degree from the University of Birmingham Law School, UK, and a Master of Laws degree from the USC Gould School of Law.

Baum, Hedlund has quite a bit of information about these lawsuits on their website.  See here for information on the Monsanto Papers, which are documents obtained by the firm during discovery.  And see here for information on how the class action differs from the individual lawsuits.  For more information on Monsanto, contact info@baumhedlundlaw.com.

 

NOTE: The interview has been edited and condensed for readability.

Diana Winters [DW]

Michael Roberts [MTR]

Michael Baum [MB]

Pedram Esfandiary [PE]

 

 

DW: Can you tell us a little bit about your background and what brought you to these Monsanto cases?

MB: Well I actually started doing various forms of product liability cases in pharmaceutical products. And I’ve worked on a wide range of [] wrongful death and product liability cases. One of the women that works in our office had an uncle who was a farmer up in San Luis Obispo area, and used nothing but Roundup, which is a glyphosate-based herbicide. And he and his dog both developed lymphoma and died, [from] non-Hodgkins lymphoma, and they asked us to look into it. Another UCLA grad, Brent Wisner, at our office, and I had been …looking into ways of using litigation to influence or prove or expose what is going on with the pesticide industry interfering with the food supply [by] contaminating it, or killing the bees and the pollinators that honey farmers and almond growers and pistachio growers [rely on].

So we were interested in the area, and started pulling data on the relationship between glyphosate based formulations like Roundup that are used to kill weeds, and non-Hodgkins lymphoma, and found that there had actually been a publication in March of 2015 at IARC, the International Agency for Research on Cancer, that [noted] the association between glyphosate based products and non-Hodgkins lymphoma and other forms of cancer. And the strongest correlation was with non-Hodgkins lymphoma.

 

DW: What is the International Agency for Research on Cancer? Is it a United States-based organization?

MB: World Health Organization. A lot of neutral independent scientists are appointed by the World Health Organization as part of the International Agency for Research on Cancer. They are leading academics and scientists from around the world, and they are do non-industry funded research, which is important in this area because so much of academic research is corrupted by industry. I’ve been on the soapbox for a long time.

 

 

DW: Okay, and so you started to collect this data, and—?

MB: … [The report showed] elevated levels of carcinogenicity related to Roundup and glyphosate-based products. So with that body of science we had enough to file a lawsuit. So we … summarized it, and decided to represent the family of the farmer in San Luis Obispo who … believed that Roundup was safe for humans because it said so on the label. The label says it affects an enzyme found in plants, but not in humans or pets, [so was] safe to use on food. And he had a citrus farm and he went around and sprayed all of his trees and around his trees with Roundup thinking it was safe.

 

DW: And [] under what theory was the case brought?

MB: That [the farmer’s] exposure to Roundup while he was spraying it around his farm caused non-Hodgkins lymphoma. And there are a couple of mechanisms for how it does that.

[Baum explains here that the glyphosate in Roundup and other herbicides combines with another molecule in the herbicide, a surfactant, which multiplies exponentially the harmful effects of the glyphosate.]

PE: [] What is significant here is that Monsanto managed to focus regulatory agencies and the public on just glyphosate whereas what is being used is Roundup, a formulated product, [including] the surfactants and [other chemicals] that contribute to the carcinogenicity of the product. There are impurities in there that come about as a result of the manufacturing process. One of them is dioxane, which is a recognized carcinogen. Another one is formaldehyde which is another recognized carcinogen, as well as NNG . These are all individual carcinogens that are in the Roundup formulation.

MB: So the surfactant is supposed to be inert. And the way they define inert is that it is not the active molecule that is interfering with the enzyme pathway that glyphosate influences. And they test them separately, not together.

 

DW: Even though they are together in the product?

MB: Yes.

PE:  So the EPA [studies] of Roundup, [are not of] Roundup, [but] of the molecule glyphosate.

MB: So one of the issues is that glyphosate by itself, under the conditions, is not as carcinogenic as the formula that has the surfactant in it. And so studies—some of the internal documents that we got from Monsanto, and that we declassified and circulated around the world, was their internal discussion saying we can’t say that Roundup is not carcinogenic because we haven’t actually tested that and don’t want to know the outcome.

 

MTR:  It’s interesting, you sent these documents to Europe how many years ago?

MB: A year and a half.

 

MTR:  A year and a half ago.

MB: Just before Roundup and glyphosate-based products were supposed to be getting their license renewal for the next fifteen years.

 

MTR:  The outcome of that, was what?

MB: It stopped it being renewed for fifteen years.

DW: There were a bunch of these cases, right? The non-Hodgkins lymphoma cases?

MB: Yeah, we represent about 700 people.

 

DW: So these are separate cases that have been combined in a multi-district litigation?

PE:  Both the state level and federal level, it is multi-district litigation. In California, we have a JCCP, which is a Judicial Council for Coordinated Proceedings.

MB: It is the California equivalent of an MDL.

 

 

MB: There is a consolidated group of cases in Saint Louis. And all told there have probably been around 8,000 cases filed.

 

[DW asks about the timeline of other filed cases.]

MB: As we …were looking around to see how and where to file, one of my colleagues from this other litigation I worked on, … invited us to come to [a meeting with other lawyers filing Roundup cases in January 2016]. So we were part of that initial crew of law firms that came together to sort of strategize where and how to file, and what experts to get, things like that.

 

DW: Why are some of the cases brought in federal court and some in state court?

PE:  Well, it’s just legal strategy. So the federal cases have been consolidated, and the … MDL judge has bifurcated those cases, which means he wants to consider general causation first, which is the question of whether this product can generally cause cancer in human populations, before he proceeds to considering specific causation, i.e. whether it caused cancer in any individual plaintiff. And that is a significant hurdle for the plaintiff’s bar to overcome, especially in federal court with the Daubert standard[1] for expert testimony.

So that is one reason. Another reason is because of the high standards for admitting expert testimony in federal court versus state court. State proceedings tend to be a lot more kind of full steam ahead, and getting to a trial is going to be maybe not easier but a more streamlined process.

MB: So one of the issues in federal court due to the bifurcation was that we were limited on what discovery we could do, and then … everything had to be related to general causation. We wanted to get our hands on some of those internal documents which showed this corruption going on, and ghostwriting [of scientific articles], and having journal editors and journal peer reviewers on Monsanto’s payroll. That is real corruption. And that doesn’t relate to whether or not glyphosate as a molecule causes cancer, it relates to—wrongful conduct by the company but doesn’t necessarily mean it could cause cancer. So we had run into quite a bit of resistance from Monsanto to give us those documents, and from the judge considering whether or not he would give them to us. We ended up getting some, but not all—so we wanted to have the state court litigation where there wasn’t necessarily going to be bifurcation, and that would allow us to get access to some of these [documents].

 

 

DW: [In addition,] there is another case too, right? The class action that is alleging economic harm?

MB: Yes.

 

DW: When did that come about, and why, and how does it work? …

MB: Yes. [W]hile we were working on this, Pedram and I in particular were researching how does non-Hodgkins lymphoma get caused by a pesticide? How does that occur? Either getting it on your skin, or you are breathing it in, or you may have a background level that you are already exposed to because it is in all non-organic food. So we decided to just pull the string on it and do research, and some of the research that came out of that is that there is—part of the human body…is a bunch of bacteria and fungi … that are called microbiota that …are the gut flora that help process foods and create the vitamins, and are part of your immune system. And they are also in your skin and all of your mucus membranes. And the label for Roundup says [it affects an] enzyme found in plants not in humans or pets,” so it’s safe. And they actually promoted it as being safer than salt, and you can actually drink it or put it in your food or bathe in it. They got prohibited by Elliot Spitzer in New York from saying those things, but the label gives the impression, and marketing gives the impression you can put on your shorts and walk out and spray the Roundup on your yard and on your driveway, and there’s no harm to worry about to your kids or your  pets or yourself because it only affects an enzyme found in plants, not in humans.

And the lawsuit that we filed is that [the herbicide] interferes with a pathway called the shikimate pathway that involves an enzyme that is necessary for the plants to create three amino acids that are formed in building blocks for proteins. You interfere with those amino acids, you don’t get the proteins, and then the plant dies. And the microbiota that are on your skin and in your mucus membranes and in your gut rely upon the shikimate pathway. Human cells don’t have that pathway, so they don’t depend on the pathway, so it’s partly correct to say that it affects an enzyme found in plants, not in humans. But it is incorrect because the gut flora that are in your body are affected by it. And so it kills them or weakens some beneficial microbiota that affect and monitor cancer cells, and pathogenic microbiota. And some of the pathogenic microbiota are resistant to glyphosate. So it negatively selects bad bacteria to grow and thrive, and decreases some of the microbiota that are helpful for preventing some forms of cancer.

 

MB: … So we filed a lawsuit saying that the label for Roundup is false and misleading because it leads people to think that it is safe for use around their homes, or around their landscaping, or around their farms when it actually affects a big part of the human body, which is the microbiota.

PE:  And the labeling case, we don’t have to necessarily show that the effect on microbiota causes disease. We just have to show that the microbiota are affected by glyphosate, which is contrary to what is on the label.

 

DW: So you don’t have to have the specific causation.

PE:  Yeah, so it’s like we don’t have to sit down and determine in a general population would this have led to any adverse events for any specific plaintiff.

 

DW: Because you wouldn’t have bought it if you knew it would possibly do this.

 

 

PE:  …[I]t’s about informed choice. If there is a label on there saying, look this stuff can cause cancer, this stuff interferes with a vital mechanism in your body, then the consumer should be made aware of that. Even when you buy cigarettes you are in full knowledge that this causes cancer, right? You can at least make the choice with that information in mind. Right now for Roundup there is no such label, there is no warning, there is no indication that this could potentially cause harm. So it’s—whether it should be on the market, off the market, that’s a regulatory decision, but at least the consumer should be made aware of its potential danger, and that is what the lawsuit is.

 

DW: As you said, this case is about information disclosure and letting people make informed choices. But it also sounds like as a whole, and specifically with the non-Hodgkins lymphoma cases you are also doing a bit of policy work by [publicizing] these documents … and trying to actually change the regulatory landscape, is that correct?

MB: Yes, so one of the things we did was we summarized some of the documents, and summarized some of the IARC findings, and submitted those … to help the California equivalent of the EPA make a decision about how to list glyphosate and glyphosate-based formulations as carcinogens for Prop 65.[2] And there are two battles.

One is whether California can rely on an entity like IARC to make a decision of whether to list something under Prop 65. It is an outside entity, it is not regulated [by] the California government or the California EPA, … And we wanted to support California going forward with listing it as a possible carcinogen based on the science that IARC—because it was independent science, and not industry funded science, and not ghostwritten science, it was independent scientists who came to that conclusion using animal, petri dish, and human epidemiology to arrive at that conclusion. So we wanted to make sure they were aware of that, and also aware of some of the internal documents we accumulated showing how Monsanto had been attempting to influence the regulators, and actually had a campaign to invalidate and discredit IARC. One of the things [Monsanto was] trying to avoid is a Prop 65 listing. And so we brought with us also the battle plans that Monsanto had for responding to the IARC carcinogenicity finding. These are now declassified. …

PE:  But the broad—the policy issues here is that Monsanto’s kind of mantra has been to say 70 regulatory agencies across the world have approved glyphosate for use in their countries. The problem with regulatory agencies [is that they are] usually aligned with the executive, right? Or [with] the administrative government, and they are subject to lobbying influence. Whereas IARC is quite literally a research organization which receives funding from governments, but it is not approached by lobbyists, it doesn’t make regulatory decisions, it has no enforcement power, it is just an arm of the WHO that does pure research. So that is what is so compelling about IARC’s findings …

 

 

DW: What about unintended consequences? Glyphosate has been around for, what, decades now?

MB: Yes.

 

DW: So have they developed something new, and are we more scared of that?

MB: Well …one of the agriculture effects has been that there are weeds that are developing resistance to glyphosate. … Super weeds, super pig weeds that used to be—you could just pull them or use a weed whacker to kill them, you need—they are super thick, super tough, and require an electric saw to cut them. That was one of the beefs that Europe had with Roundup, is there is a whole lot of super resistant weeds growing there that are taking over, and so that is a problem.

So Dicamba was developed to help with that. And one of the problems with Dicamba, it’s more volatile, and it’s become—it gets up in the air and floats. And so it will float over to other farms, and where their plants are not resistant to Dicamba and it kills them. …

 

 

PE:  [A]t least what the litigation does is kind of spearhead the process towards alternatives.  By making all of the risks and potential dangers known it incentivizes innovation and research towards advances. Particularly since such a large proportion of the food supply is already contaminated with Roundup and glyphosate, and naturally people want to steer away from that way of cultivating food.

[Discussion of potential health effects of the human consumption of Roundup, including research on gluten sensitivity as caused and exacerbated by herbicides in human food.]

MB: So an amusing story, when we went to Brussels, and we had this package of documents we were circulating around to the EU. We met with some of the German agriculture minister’s office, and we had a nice little meeting in there, and they had a plate of cookies and things to drink. And as I was explaining the glyphosate connection I said—the woman that was working as our liaison started to grab a cookie, and I said, that cookie and all of the cookies on that plate, if they were not organic and were made from flour that was probably treated with Roundup just before the harvest you are about to eat a bunch of glyphosate, and she put it down.

 

 

DW: Please tell me where these cases are right now.

MB: Well there is the state level, and the federal level. We, in March finished off the Daubert hearings in the federal case, and he hasn’t ruled yet. We have a similar set of hearings in the state case, and it’s called the Sargon hearing–it is the California equivalent of the Daubert hearings–and that is evaluating whether our experts used valid methodology to arrive at their conclusions that there was a carcinogenicity connection.

[Discussion of “preference” case Baum and Esfandiary have that was about to go to trial.  A preference case is a case that goes to trial quickly because the plaintiff is dying or elderly.]

About a month ago the Sargon hearings [in this case] were completed and the judge issued a very comprehensive, detailed analysis rejecting Monsanto’s arguments that our experts are not to be allowed to testify, and he said that there was good justification for them to testify. [The court also] rejected their motions for summary judgment, and allowed us to present punitive damages data saying that there is ample evidence upon which a reasonable jury could conclude that ‘malice, oppression or fraud’ might have occurred by Monsanto. So this case is starting in San Francisco City on June 18th.[3]

 

 

DW: It is really interesting how these cases are working together towards incremental change but also systemic change.

MB: And that is one of the things I wanted to get across to students who read this, is that there is something that you can do with a law degree to create change.

 

DW: And that was going to be my final question. Do you have advice for aspiring lawyers who want to work for the public interest, in the public interest, for private firms working in the public interest, to make the world a better place?

PE:  Honestly, my perspective from the limited experience I have had is that you can achieve a significant amount on the local government level. Especially in a country like America where such power is by default in local governments given a federal system. We don’t have that luxury in the UK, [because] everything is monitored and controlled by Parliament in London, whereas here there is so much local initiative to make a change. And I think especially when it comes to environmental issues, states have discretion, so being involved on a local level does have a lot of impact. You don’t have to necessarily always aim at the White House, and federal grand sweeping changes.

 

DW:    Thank you so much for talking with us.  We so appreciate your time and this important work.

 

[1] The Daubert standard is a rule of evidence in federal court regarding when the testimony of expert witnesses can be admitted. Since this interview, the federal MDL judge ruled in plaintiffs’ favor on the Daubert motions.

[2] Editor’s Note: Proposition 65 was enacted in California in 1986.  As part of the law, the state publishes a list of chemicals that are “known to the State of California to cause cancer or reproductive toxicity.”

[3] The Johnson case proceeded through trial shortly after this interview and the jury returned a verdict of $289.2 million against Monsanto, including $250 million in punitive damages.

Regeneration: Los Angeles Food Policy Council Discusses Healing and Transforming the Food System

Last week, the Los Angeles Food Policy Council (LAFPC) held a community networking event on the concept of regeneration, a broad idea that addresses healing and transforming our food system, and encompasses health, access, human rights, social justice, and animal welfare.  In its description of the event, the LAFPC wrote, “At LAFPC, we envision regeneration as a paradigm shift–one that goes beyond extraction, beyond inputs and outputs and even beyond sustainability. To be regenerative, our food systems need to not only feed people, but restore our planet. Regenerative food systems give birth to new opportunities for transforming our earth, our communities and the people who inhabit them.”

The program included talks by Clare Fox, the Executive Director of the L.A. Food Policy Council, and Gunnar Lovelace, the co-founder and co- CEO of Thrive Market, an online wholesale buying club for organic and natural foods, and “learning hubs,” which divided the attendees into small groups to discuss how regeneration resonated with various aspects of the food system.

The concept of regeneration goes beyond “organic,” “clean,” “natural,” and even beyond “sustainable,” and the conversation at the event ranged from how to indicate such a concept to consumers, to how to create incentives for big agriculture to embrace regeneration, and whether change would start at the individual or systemic level, or both.

To see more LAFPC events, see their website, here.

MSU Global Food Law Current Issues Conference

by Diana Winters

I was lucky over the last few days to attend and present at the MSU College of Law Global Food Law Program’s fantastic Global Food Law Current Issues Conference. At the conference there was a mix of academics, practitioners, scientists, and industry representatives, and a truly global focus. Wednesday’s discussions of dietary supplement labeling, developments in organic foods, issues regarding animal food labeling were fascinating, and the keynote on food litigation by Bill Marler, was, for a food law aficionado, a dream come true. Thursday’s talk on professional consumers in China and their effect on food safety provided an opportunity to reflect on the absence of a citizen suit provision in the FDCA, and the discussion of new technologies in product supply chains was a chance to engage with blockchain, 3D printing, and other fun stuff. These are only a few highlights of the conference, which also included discussions of intellectual property, food security, and innovation in the food space, as well as opportunities to explore the food and environment of greater Lansing, Michigan. Note: if you find yourself in East Lansing, don’t miss the Zaha Hadid designed Broad Museum of Art—a short walk from campus (picture above).

 

The value of a conference that provides a space for academics, practitioners, and scientists to meet and mingle is immense, and I’m so glad I went.

Nutrition Education in the 2018 Farm Bill

by Julia McCarthy

 

The House Committee on Agriculture recently failed to pass its version of the farm bill, legislation that sets farm and food policy every five years. Despite obesity rates looming at all-time highs, H.R. 2 Agriculture and Nutrition Act of 2018 proposed to weaken the very programs we know improve diets—the Supplemental Nutrition Assistance Program (SNAP), SNAP Education (SNAP-Ed), and the Expanded Food and Nutrition Assistance Program (EFNEP).[1] The changes H.R. 2 proposed would have disrupted local nutrition education services, affecting already vulnerable individuals. Understanding how these changes would have harmed public health and public health infrastructure could prevent the Senate from including these misguided provisions in its version of the farm bill.

Protecting SNAP is and should be advocates’ priority. Preserving programs that enhance food assistance and promote healthy eating is also crucial to our nation’s health. Program participants, media, and advocates have articulately denounced cuts to SNAP.[2] Less has been written about the concerning changes being proposed to our nation’s largest nutrition education program. Below, I explain what the term “nutrition education” means, how the farm bill affects nutrition education, and why the proposed changes are problematic. I also suggest several ways to provide stronger, more effective support for nutrition education.

What is Nutrition Education?

Nutrition promotion; obesity prevention; consumer education; food literacy; food policy, systems, and environmental change—these are just a few of the many names people use to describe nutrition education. Nutrition education has so many names because, as the widely-accepted definition for the term explains, it involves “any combination of educational strategies accompanied by environmental supports” that provide people with the motivation, skills, and knowledge to eat well.[3] Cooking demonstrations, gardening lessons, school wellness policy support, healthy retail projects, and recipe distribution are all examples of nutrition education for which the farm bill provides funding.[4]

In fact, there are at least 26 initiatives that can support nutrition education included in the farm bill. For some initiatives, nutrition education is both the main focus and required. SNAP-Ed, which funds direct education for low-income individuals as well as policy, systems, and environment changes in schools, stores, and other community locations, is an example.[5]

Other initiatives have a main focus distinct from nutrition education, such as providing food, but still require such education. The Commodity Supplemental Food Program (CSFP), which provides low-income seniors food and resources such as recipes, is an example of this second type of initiative.[6]

Others still have a broader main focus—such as increasing fruit and vegetable sales—and allow, but do not require nutrition education. The Specialty Crop Block Grant, which states have used to support farm to school programs, is an example of this third kind of initiative.[7] See Table 1 below for a full list of nutrition education initiatives in the farm bill.

Table 1: Nutrition Education in the Farm Bill[8]

McCarthy.table

How the 2018 House Bill Would Have Affected Nutrition Education

The House Bill would have altered the structure of many of these initiatives, but most importantly, it would have combined the two largest nutrition education programs, SNAP-Ed and EFNEP. To combine the programs, H.R. 2 reallocated responsibility for SNAP-Ed from United States Department of Agriculture (USDA) Food and Nutrition Service (FNS) to USDA National Institute of Food and Agriculture (NIFA), the agency currently responsible for EFNEP. The bill repealed EFNEP, but maintained funding for the combined program at a level similar to current funding and added $65 million in annual discretionary funding.

At the state level, H.R. 2 shifted primary administrative responsibilities for SNAP-Ed away from state agencies to land grant universities (LGUs). The bill also altered states’ funding formula, basing future funding only on a jurisdiction’s current SNAP population, and not in any part on historical funding levels. Ultimately, merging SNAP-Ed and EFNEP as proposed would have created potential problems while failing to measurably improve either program:

  • Taking SNAP out of SNAP-Ed—Naming NIFA, rather than FNS as the administering agency for SNAP-Ed, would decouple the program from SNAP and other FNS low-income nutrition education programs. At the federal level and through regional offices, FNS coordinates numerous nutrition education initiatives such as SNAP-Ed, Team Nutrition, and the Special Supplemental Nutrition Program for Women, Infants, and Children (WIC). Moving SNAP-Ed to NIFA, a research focused sub-agency, would create inefficiencies, not improve coordination.
  • Shifting Administrative Responsibilities to Land Grand UniversitiesGiving LGUs primary administrative responsibility for SNAP-Ed is also problematic. LGUs are one of several important agencies that administer SNAP-Ed; health departments and community-based nonprofits also administer the program. If LGUs were solely responsible for administering SNAP-Ed funds, they could choose not to share funds with other agencies, impacting the diversity and reach of organizations that implement the program.

Even if LGUs were to share funding, sub-contracting would be difficult; LGUs typically do not have contract managers the way state social services and health departments do. Many LGUs would need to create new administrative systems to manage SNAP-Ed, though this infrastructure already exists in other state agencies. And, realistically, LGUs would have trouble spending less than 10% of grant funds on administration, as the bill required.

  • Altering SNAP-Ed’s Funding Formula—R. 2 did maintain mandatory funding for the proposed, combined program, but too abruptly changed how states provide SNAP-Ed. The proposed changes to the funding formula could leave many struggling to provide public health services. The Healthy Hunger-Free Kids Act established a stepped-down formula that considers a state’s funding history and incrementally introduces pro rata distribution based on its current SNAP population.[9] A sudden shift that considers only current SNAP participation would hurt states with a strong record of matching federal funds, as well as less-populated states. Changes to SNAP-Ed funding, when paired with recent cuts to Centers for Disease Control and Prevention (CDC) grants for diet-related disease control, would leave some states reeling with very little funding for nutrition education and obesity prevention.

Nutrition Education Recommendations for the 2018 Farm Bill

Nutrition education helps to prevent obesity and encourages individuals to eat healthy foods American farmers grow.[10] The 2018 Farm Bill should ensure not only that these programs receive adequate funding, but that they are structured to succeed. The Senate bill should:

  • Preserve SNAP-Ed and EFNEP’s Strengths—Combining SNAP-Ed and EFNEP, as the House Bill proposed, may be politically inevitable. Whatever form farm bill nutrition education takes should maintain the funding and flexibility of SNAP-Ed and the efficacy and peer-education emphasis of EFNEP.

With SNAP-Ed, state agencies receive more than $414 million a year to contract with land grant universities, local health departments, and community-based organizations.[11] These groups empower people to eat well through social marketing, direct education, and policy, systems, and environment changes consistent with current public health practices.

EFNEP, though funded at only $67 million a year, has a great return on investment; for every $1 spent, EFNEP saves $10 in future health care costs.[12] EFNEP also has the advantage of hiring peer educators.[13] The program not only provides low-income community members with jobs, but its instructors understand the challenges and strengths of the communities in which they work.

  • Maintain FNS as the SNAP-Ed Administrator—FNS’s structure ensures that people can access and afford nutrition assistance programs, driving demand for nutritious foods through nutrition education. FNS should consult with NIFA on program administration and maintain control of SNAP-Ed.
  • Gradually Adjust SNAP-Ed Funding Based on States’ SNAP Population—Currently, USDA allocates 50% of a state’s funding based on its SNAP population, and 50% based on historical match.[14] Instead of immediately altering states’ funding, USDA should adjust funding by 10% each year until 100% of funding is based on SNAP populations. This will allow states to better plan for the program going forward.

 

[1] 7 U.S.C. §§ 2011 et seq.; §§ 2036a et seq.; §§ 3175 et seq.

[2] See e.g. Ed Bolen et al., House Agriculture Committee’s Farm Bill Would Increase Food Insecurity and Hardship, Center on Budget & Pol’y Priorities (April 25, 2018), https://www.cbpp.org/research/food-assistance/house-agriculture-committees-farm-bill-would-increase-food-insecurity-and.

[3] Isobel Contento, Nutrition Education: Linking Research, Theory and Practice (3rd ed., Jones & Bartlett 2015).

[4] Julia McCarthy, Claire Uno, Pam Koch, & Isobel Contento, Empowered Eaters: A Road Map for Stronger New York State Nutrition Education Policies and Programs, 31 (Laurie M. Tisch Center for Food, Educ. & Pol’y, Program in Nutrition at Tchr. College, Columbia U. 2018), http://www.tc.columbia.edu/media/media-library-2014/centers/tisch-center/Empowered-Eaters-STATE-FINAL.pdf.

[5] 7 U.S.C. §§ 2036a et seq.

[6] 7 U.S.C. §§ 612c et seq.

[7] 7 C.F.R. §§ 1291 et seq.

[8] McCarthy, supra note 4.

[9] Pub. L. 111-296 § 241(d) codified in 7 U.S.C. § 2036a(d)(2).

[10] See e.g. M. Vine et al. Expanding the Role of Primary Care in the Prevention and Treatment of Childhood Obesity: A Review of Clinic and Community-Based Recommendations and Interventions, J. Obesity (2013);

  1. Prelip et al., Evaluation of a School-Based Multicomponent Nutrition Education Program to Improve Young Children’s Fruit and Vegetable Consumption, 44(4) J. Nutrition Educ. & Behav. 310-318 (2012).

[11] U.S. Dep’t Agric., Supplemental Nutrition Assistance Program Education (SNAP-Ed) Budget Allocation for Fiscal Year 1992 to 2017 (2017), available at https://snaped.fns.usda.gov/snap/Guidance/SNAP-EdBudgetAllocationFY1992-2017.pdf.

[12] U.S. Dep’t Agric., Expanded Food and Nutrition Education Program (EFNEP) FY 2018 Request for Applications, (Aug. 8, 2018), available at https://nifa.usda.gov/sites/default/files/resources/FY18-EFNEP-Modification-882017.pdf; Jamie Dollahite et al., An Economic Evaluation of the Expanded Food and Nutrition Education Program, 40 J. Nutrition Educ. & Behav. 134-143 (2008).

[13] 7 U.S.C. § 3175(c).

[14] 7 U.S.C. § 2036a(d)(2).

 

Julia McCarthy is a Senior Nutrition Policy Associate at CSPI, focusing on healthy retail policies. Prior to joining CSPI, she was a policy analyst at the Laurie M. Tisch Center for Food, Education, and Policy. McCarthy has worked as a legal fellow at the Natural Resources Defense Council, Food and Drug Administration, and U.S. Public Interest Research Group. She attended Georgetown University and has a law degree from New York University where she was a Root-Tilden-Kern scholar.

Chlorpyrifos and state v. national action in food policy

by Diana Winters

A reversal by the Trump administration on proposed restrictions on the use of a commonly used pesticide highlights how state governments may be instrumental in the development of progressive food policy.

The Environmental Protection Agency (EPA) began a reassessment of all organophosphate pesticides in 1996, pursuant to the Food Quality Protection Act (FQPA). The FQPA amended the Food, Drug, and Cosmetic Act (FDCA) and the Federal Fungicide, Insecticide, and Rodenticide Act (FIFRA), under which the EPA regulates pesticides, and required the agency to assess approved pesticides under a stricter standard than it had previously. In 2000, after this reassessment, the EPA signed an agreement with six manufacturers of chlorpyrifos sharply limiting the pesticide’s production for home and garden use, and curtailing its use on certain agricultural products.

After the EPA completed its reassessment process in 2006 and reaffirmed its approval for the remaining uses of chlorpyrifos, the Natural Resources Defense Council (NRDC) and Pesticide Action Network North America (PANNA), filed an administrative petition, asking the agency to ban all uses of the pesticide. In this petition, the groups argued that the EPA had inappropriately reaffirmed the pesticide’s approval despite significant evidence showing that chlorpyrifos was dangerous to humans, especially to children.

The EPA delayed issuing a response to the NRDC/PANNA petition for years. PANNA filed suit in 2010 against the agency, demanding a response, but settled the suit based on a promise by EPA that the agency would issue a final decision by 2011. When it did not, PANNA filed for a writ of mandamus in the Ninth Circuit, which the court denied after the EPA provided a timeline for response. When the EPA again missed its deadline in 2014, PANNA renewed its petition for mandamus. The Ninth Circuit granted this petition, ordering the EPA to respond by October 2015.

In October 2015, the agency proposed to revoke all approvals for chlorpyrifos based on what it saw as unacceptable risk to human health, and supported this decision in November 2016 with an updated human health risk assessment. The agency set March 2017 as a deadline for its final decision on the 2015 proposal.

In March 2017, however, the EPA rejected NRDC and PANNA’s petition on the basis that it needed more time to assess the potential health consequences of the pesticide. The agency stated:

despite several years of study, the science addressing neurodevelopmental effects remains unresolved and that further evaluation of the science during the remaining time for completion of registration review is warranted to achieve greater certainty as to whether the potential exists for adverse neurodevelopmental effects to occur from current human exposures to chlorpyrifos.

In August 2017, the New York Times reported that in the weeks before the agency rejected the petition, Scott Pruitt, appointed head of the EPA by President Trump, had assured industry executives who had been advocating for the continued EPA approval of chlorpyrifos, that it is “a new day, and a new future,” and that he would work with the industry.

Soon after the agency denied the petition, NRDC and PANNA filed for further relief from the Ninth Circuit, arguing that the agency’s denial was inadequate because it was not based on new scientific evidence. Several states including California and New York sought to join the suit in July, but shortly thereafter, the court denied this petition, explaining that by issuing a final decision the EPA had fulfilled the court’s earlier mandate, and the groups now needed to pursue administrative relief before returning to court.

In response to the EPA’s decision, California, which produces the majority of the nation’s produce, has moved to further regulate and restrict the use of chlorpyrifos, and to add the chemical to the list of human health hazards that the state maintains under Proposition 65.

While not ameliorating it completely, California’s action to regulate chlorpyrifos will reduce the impact of the Trump administration’s refusal to move forward with the previously proposed restrictions on this chemical. We see the possibility of meaningful change in the food systems sphere—here through the restriction of a pesticide harmful to producers and consumers—enacted through state, not federal action. In regards to food policy, the state, local, and private spheres will be the arenas to watch in the near future as they work to react to the Trump administration’s anti-regulatory stance, industry focus, and inattention to some of the progressive food policy positions taken by the prior federal administration.

Resnick Alum Builds a Company After Winning UCLA Law Contest for Entrepreneurs

This article originally appeared here: https://law.ucla.edu/news-and-events/in-the-news/2018/04/beelieve-it-2017-lmi-sandler-prize-winner-makes-a-buzz-in-business/ 

Bee-lieve It: 2017 LMI-Sandler Prize Winner Makes a Buzz in Business

20180409 SmartAgTechsBeltranYuUCLA Law alumna Sofía Beltran ’17 and UCLA Engineering alum Tim Yingtian Yu build their bee business, SmartAg Technologies, at the HAX Accelerator in Shenzhen, China.

A year ago, Sofía Beltran ’17 joined forces with UCLA Engineering student Tim Yingtian Yu to launch a bee business that would help address a crisis in agriculture and allow farmers to make the most of their crops.

Their first stop was the Lowell Milken Institute for Business Law and Policy and its second-annual $100,000 venture-funding contest, the LMI-Sandler Prize for New Entrepreneurs. Beltran and Yu’s team, which also included UCLA Law alum Jared Xu ’16, finished in second place and was awarded $30,000.

Buzz is now growing about their firm, SmartAg Technologies. Today, they are adding team members, are developing hives that will encourage bee health and farmer awareness of how to maintain thriving bee populations, and have attracted an additional $250,000 in venture capital.

As the April 11 final round of the third-annual LMI-Sandler Prize competition approaches, six teams prepare to make their pitches to the judges, who will decide the next winners to follow in Beltran’s footsteps and earn a piece of this year’s $100,000 prize. In the meantime, Beltran speaks about getting stung by the entrepreneurship bug.

What is happening with SmartAg Technologies right now?
SmartAg Technologies has secured $250,000 of pre-seed investments through the prestigious HAX Accelerator program. We are participating in their 111-day program in Shenzhen, China, the Silicon Valley of hardware development, where we are working with engineers, marketing specialists, seasoned entrepreneurs and other advisors to quicken the growth our technology. Things are moving at lightning speed each day, and we are working hard to develop and refine products that will help monitor and treat beehive health and, in turn, save and sustain the world’s declining bee population.

How can SmartAg make a positive impact in agriculture?
Bees are dying at the rate of 50 percent per year, and this loss will inevitably lead to a major collapse in our global food system if it is not stopped and reversed, because 80 percent of the world’s crops are pollinated by bees. Our business helps commercial beekeepers keep their hives alive and healthy by providing organic, bee-safe, sustainable methods for treating pest-ridden or diseased hives and by providing information on the appropriate amount of food and other health-related treatments for individual hives to ensure optimal survival and growth rates.

20180409 SmartAgTechsLMISandlerFinalRound

L to R: Xu, Beltran and Yu make their pitch before the judges at the 2017 LMI-Sandler Prize competition’s final round.

How did the LMI-Sandler Prize help SmartAg take off?
Tim and I would never have met without the LMI-Sandler prize competition! He was hunting for a law student in order to participate in the competition, and my reputation as “queen of food law” led to our meeting. We worked diligently for months, preparing our 100-plus-page business plan, and we invested many hours prepping for the final round. It turns out that the competition laid the groundwork for countless additional pitches, business proposals, applications, and time spent networking, revising, and spreading our vision.

At UCLA Law, you participated in the Resnick Program for Food Law and Policyand served as president of the Food Law Society. How did that experience help you prepare for this opportunity?
The Resnick Program is why I came to UCLA Law, [executive director] Michael Roberts has been my trusted mentor and friend, and being president of the FLS provided a network of top-tier contacts in food law and policy. That, plus my business and entertainment coursework, gave me wide exposure to the types of issues I have faced in starting up a company, and, more importantly, the tools to know where to look for answers, how to network effectively and how to ask for help when I needed it.

What advice do you have for students interested in entrepreneurial activity in the food space?
Don’t be afraid to put yourself out there and carve your own path! Before law school, I volunteered picking and packing organic produce at Johnson’s Backyard Garden in Austin, had a cooking blog and just loved to eat. Those hobbies brought me joy and many good friendships, and, over a few years with a lot of persistence, I was able to transform that joy into making connections with the right people [in L.A. and at UCLA Law]. Eventually, I positioned myself to accept this opportunity and run with it full blast.

So how, exactly, did you get from a farm in Austin to an accelerator program in China?
During my 2L year, I was very discouraged after applying for positions in food law and coming up empty. Professor Roberts told me to never be afraid of accepting promising opportunities, even if they seemed completely unrelated to what I set out to do. That year, I took Professor Derian’s Sports Law Clinic to get some hands-on transactional experience, and that led to a summer internship at the NFL Network and a position after graduation. Fast forward to now: My work at the NFL prepared me to wrangle our start-up’s foundational agreements, finances, and negotiations. The NFL had nothing to do with food law, but it prepared me for my role at our start-up once things fell into place.

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