Category: Business

For Your Meatless Monday Reading Pleasure

by Diana R. H. Winters

Recently there has been a lot of interest in plant-based meat substitutes and their potential role in reducing global meat consumption and the environmental impact of meat production.

This week’s Economist discussed how plant-based meat can reshape the market, and its environmental potential.  The article, under the headline of “Fake Moos“, explains, however, that companies marketing plant-based meat substitutes must radically increase their reach to make much of a difference.

In today’s New York Times, David Yaffe-Bellany discusses how this may happen in “The New Makers of Plant-Based Meat?  Big Meat Companies.”  This article explains that Tyson, Smithfield, Purdue, and other meat producers are moving into the meat-substitute space.  The oddest product being introduced?  A “blended” product introduced by Purdue and Tyson, which combines meat and vegetable protein.  Weird.

And last week, Tad Friend at The New Yorker profiled Impossible Burger, and its founder’s ambition to “wipe out all animal agriculture and deep-sea fishing by 2035.”

Why the sudden fascination with bleeding vegetable protein?  Perhaps it rings a hopeful note after last month’s bleak climate news, providing a way forward for individual action.  But first, we have to stop flying these burgers across the Atlantic…..

ACLU sues Arkansas for “meat” labeling law

by Diana R. H. Winters

The ACLU, the Animal Legal Defense Fund, and the Good Food Institute are suing Arkansas on behalf of The Tofurky Company to challenge a new law that restricts producers of plant-based food products from using words like “meat,” “burger,” or “sausage” to label these items.  The complaint argues that the law restricts commercial speech, and thereby violates the First and Fourteenth Amendments, and the dormant Commerce Clause.  The law “creates consumer confusion where none existed before in order to impeded competition.”

The stated purpose of the Arkansas law is to “protect consumers from being misled or confused by false or misleading labeling of agricultural products that are edible by humans.”  Tofurky’s complaint states that there is actually no evidence that consumers are confused about plant-based meats, nor does the Arkansas law point to any such evidence.  Moreover, existing laws, both federal (FDCA, FMIA, PPIA, and FTCA) and state, prohibit misbranding and deceptive marketing.

The lawsuit asks for a declaration that the Arkansas law is unconstitutional and an injunction against its implementation.

Along with questions about state power, this case raises questions regarding the “reasonable” consumer.  Does a consumer buying a veggie burger think that burger contains meat?  Or that Tofurky deli slices made with “slow-smoked tender plant-based non-gmo ingredients,” are meat?  In most circumstances, the answer is no.  Consumers of plant-based meat products actively seek these items.  If we expect consumers to know that a “crunchberry” isn’t a real berry, and to have the wherewithal to check the nutrition facts label for the sugar content in a product labeled “healthy,” surely we can trust a consumer to understand that a veggie burger contains no animal meat.

New Scholarship: Holding the Animal Agriculture Industry Accountable for Climate Change

by Diana R. H. Winters

UCLA Law 3L Amit Liran has published “Holding the Animal Agriculture Industry Accountable for Climate Change: Merits of a Public Nuisance Claim Under California and Federal Law,” in the Villanova Environmental Law Journal (Vol. 30, Issue 1 (2019)).  This paper develops arguments for a public nuisance claim under both California state and federal common law against companies within the animal agriculture industry for their role in climate change and assesses the validity of such arguments.

About coming to this topic, Liran writes:

“I was first inspired to write Holding the Animal Agriculture Industry Accountable for Climate Change: Merits of a Public Nuisance Claim Under California and Federal Law            while enrolled in the “Introduction to Food Law and Policy” course taught by Professor Michael T. Roberts, the founding Executive Director of the Resnick Center for Food Law and Policy at UCLA School of Law.  Class discussions regarding civil food law claims based on misrepresentations of nutritional facts made me consider potential claims against huge forces in the food industry that—motivated by profits—have continuously pushed long-standing misconceptions regarding the nutritional value of modern food staples.  This strategy boosted consumption of their products and thereby materially contributed to today’s most pressing exigency: climate change.  Based on parallel claims that have been brought against fossil fuel companies, I developed and wrote about potential litigation strategies against the most culpable of such forces.”

 

Enjoy!

 

“Public Values in Conflict with Animal Agribusiness Practices” Conference at UCLA Law

By Michael T. Roberts

 

On February 23, 2019, the Resnick Center for Food Law and the UCLA Animal Law and Policy Program hosted a one-day conference at UCLA Law titled, “Public Values in Conflict with Animal Agribusiness Practices.” The conference featured three panels about subjects relevant to closing the gap between public values and animal agribusiness practices. These three panels addressed  the role and utility of undercover investigations, production method issues and consumer perceptions of labels, and private agreements with corporations as a way to improve business practices that affect workers and animals and to reduce animal products.

This conference was part of a joint Initiative on Animals in Our Food System between the Resnick Center and the UCLA Animal Law and Policy Program and funded by a generous gift from the Animal Welfare Trust. We previously co-hosted with the Animal and Law and Policy Program a Roundtable discussion on the legal and business considerations in how investments are made in plant-based enterprises. We have also incorporated law and policy issues related to animals in the food system in our classes and events. The Center is grateful for its association with the UCLA Animal Law and Policy Program and looks forward to future joint activities.

FDA Commissioner Scott Gottlieb resigns

by Diana R. H. Winters

Much of the coverage of the resignation of FDA Commissioner Scott Gottlieb highlights his work to regulate the e-cigarette and tobacco industries and his mixed record on the opioid addiction epidemic.  See here, here, and here, for example.  Despite criticism for delaying certain e-cigarette regulations, Commissioner Gottlieb stood out in the Trump administration for his willingness to regulate and to challenge the tobacco, e-cigarette, and drug industries.  Similarly, and surprisingly, the FDA under Gottlieb continued to move ahead with certain Obama era nutrition policy initiatives and began to spearhead some of its own.  The agency moved ahead with changes to the nutrition facts label, with requirements that certain restaurants post calories on menus, and with an FDA initiative to reduce sodium levels in the food supply.  Moreover, in a speech to the National Food Policy Conference delivered in March 2018, Gottlieb outlined a new FDA nutrition strategy, designed to reduce the toll that poor nutrition takes on Americans’ health.  Gottlieb explained that the FDA would “use our tools and authorities to create better ways of communicating nutrition information to consumers so they can be empowered to make good choices. And we’ll advance new ways to make science-based claims that provide more incentives for food manufacturers to produce products with more healthful attributes.”

What’s next for the FDA?  As the FDA’s tobacco and e-cigarette initiatives are now up in the air, so are those regarding nutrition policy.

Street Vending Decriminalized in L.A.

Just a note to follow up on our guest post by Joseph Pileri on October 3, 2018, discussing new legislation legalizing street vending across California.  This week, the Los Angeles City Council finalized an ordinance legalizing and regulating street vending, ahead of the state law discussed by Pileri that takes effect on January 1, 2019.  The city will implement a permit system, granting site-specific permits to vendors.  This system will take a year to develop, and until then, Los Angeles will regulate street vendors by requiring them to comply with certain rules and standards.

 

Perspective: California Takes Important Step to Decriminalize Microenterprise

By: Joseph Pileri, Contributor

Last month, California Governor Jerry Brown signed legislation legalizing street vending across California. This bill prohibits California localities from outlawing street vending outright or treating any violation of street vending regulations as a criminal offense, limiting penalties to administrative fines payable only on an as-needed basis. The law also requires prosecutors to dismiss any currently pending prosecution brought under street vending regulations.[1]

This bill follows years of efforts by advocates in Los Angeles to legalize street vending in the city. For years, street vending was illegal in Los Angeles despite the near ubiquity of fruit carts, taco stands, and hot dog vendors. There was a blanket ban on street vending that exposed any street vendor to potential fines and criminal violations.[2] Advocates recently renewed their push to change this law so that thousands of immigrant street vendors would not find themselves facing deportation because of operating a street vending business.

Los Angeles was not alone in its treatment of street vending. Municipalities around the country have criminalized street vending or the violation of street vending regulations. This is an example of what I term “the criminalization of microenterprise” – local jurisdictions completely outlawing street vending and other business activities or treating violations of licensing rules as a criminal offense. I am working on a project to survey municipalities around the country and study their treatment of street vending. The results, thus far, are surprising. Though many localities require street vendors to be licensed and may impose fines and civil penalties for violating these licensing requirements, cities from Detroit[3] to Houston[4] treat the failure to comply with street vending regulations as a criminal violation. Washington, DC attempted to criminalize street vending in 2014.

These laws have disproportionately negative effects on would-be entrepreneurs who already face barriers to entering the formal economy. Immigrants, those with legal status and those without, individuals returning from incarceration, and individuals with time-consuming childcare and family obligations often look to start microenterprises like street vending to provide for themselves and their families. When these types of businesses are criminalized, vulnerable individuals may be deterred from starting these enterprises or may face severe penalties, including deportation or incarceration, for what would otherwise be a simple licensing violation.

Concerns about public health and safety – particularly when it comes to food – are understandable. The public has a right to know that food, even when bought and consumed on the street, is safe. The California law, however, does not force Angelenos to take health risks with every bite of their al pastor taco. This legislation explicitly permits cities to pass ordinances related to public health and safety. Cities may even have an easier time regulating the safety of food sold by street vendors now that proprietors of these businesses no longer face potential criminal penalties.

Much work remains to understand the extent to which cities and states criminalize street vending and other microenterprises. California has taken an important first step that both protects the health of the public and allows individuals to support themselves and their families. Angelenos who love grabbing a pupusa or a bacon-wrapped hot dog on the go will also be appreciative. By criminalizing microenterprise, cities raise barriers to entry for vulnerable entrepreneurs, unduly burden those entrepreneurs most at risk, and detract from the vibrancy of communities. I hope that California is only the first to reverse this trend.

 

[1] 2018 Cal. Legis. Serv. Ch. 459 (S.B. 946) (WEST).

[2] L.A., Cal., Municipal Code Section 42.00 (1994).

[3] Detroit, Mich., City Code § 41-6-2 (2017).

[4] Hous., Tex., Code of Ordinances § 22-91 (2018).

Michael Roberts Talks About Food Authenticity

Read a conversation about food authenticity in Quality Assurance & Food Safety magazine between Michael Roberts; John Spink, director, Michigan State University Assistant Professor and Food Fraud Initiative; Karen Everstine, Decernis Senior Manager, Scientific Affairs; and Mitchell Weinberg, International Food authenticity Assurance Organization (IFAAO) founder, president, CEO, and Chairman of the Board.

Among other things, they discuss why the concept of food authenticity is so important right now, and the difference between food fraud and food authenticity.  Good stuff!

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.

Government subsidized loan programs for chicken facilities and Becerra v. The Coca-Cola Co.

Late last week I read two interesting short pieces on food law, one an email to a listserve by Susan Schneider, a Professor of Law and the Director of the LL.M. Program in Agricultural & Food Law at the University of Arkansas School of Law on using government subsidized loans to build chicken facilities for contract production, and one a Public Citizen blog post by Stephen Gardner, former litigation director for the Center for Science in the Public Interest, criticizing the Northern District of California District Court’s recent opinion in Becerra v. Coca-Cola. 

Professor Schneider wrote the following:

For a long time, I have questioned the use of government subsidized loan programs through USDA and SBA to fund the huge loans needed to build chicken facilities for contract production.  As noted in Food, Farming, & Sustainability, I have argued that those loans supported the one-sided contracts that are used throughout the industry. Lenders would rarely fund operations based on these short term and risk laden contracts without a government guarantee.  In this regard the subsidized lending programs, designed to help small business, have actually been used to support the integrated industry. 

The SBA Office of Inspector General has just published a report that lends support to this analysis. It provides a good description of the contractual relationship, the risks associated with the contract terms, and the role of  SBA in supporting this system of production. And, it is a fascinating look at the billions of dollars of SBA loans going to poultry growers. It finds that the control exercised by the integrator is so extensive that the integrator and the grower are “affiliated enterprises,” and that as such, about $1.8 billion in loans should have been ineligible.  “SBA guaranteed loans to affiliative enterprises are inconsistent with its stated mission to assist small business concerns.”  

For anyone writing or teaching about the system that produces our inexpensive and abundant  supply of poultry, I highly recommend this report. 

Evaluation of SBA 7(A) Loans Made to Poultry Farmers, SBA OIG, Rep. No. 18-13 (Mar. 6, 2018). 

Appreciation to Politico, Morning Ag Report for bringing this report to my attention.

 

The link to Mr. Gardner’s piece is here: http://pubcit.typepad.com/clpblog/2018/03/illustration-of-the-problem-of-judges-substituting-their-own-opinions-of-facts.html

 

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