Upcoming Webinar

By Diana Winters

Please let me draw your attention to this exciting upcoming webinar in the Faegre Drinker Food Webinar series, to be held at 10am PT on June 15, 2021:

Litigation Considerations Arising From the Pandemic – This presentation will explore litigation trends in the food practice area arising from the COVID-19 pandemic. Covered topics include types of litigated claims, state and federal defenses, and jurisdictional questions, among others.

The webinar will be led by Molly Flynn, a partner at Faegre Drinker, and Rita Mansuryan, an associate at Faegre Drinker and a Research Affiliate with the Resnick Center, as well as an Advisory Board member.

I am sure it will be terrific. You can register for the webinar here.

A Historical Perspective on Regulating Eating Places Amid a Pandemic

by Brian Fink*

The ferocity and turmoil of the Covid-19 pandemic has, at times, been compared to the so-called Spanish Flu of 1918–1920.  Dr. Anthony Fauci, the nation’s top infectious disease expert, said in July 2020 that the Covid-19 pandemic could reach the same tragic magnitude as the Spanish Flu.  The United States lost about 675,000 people to that virus.  In February 2021, it had already lost 500,000 to the new one.  There are many comparisons to be made, and the present feels frighteningly familiar.

That is why I decided to see for myself how we regulated restaurants, bars, and the rest of the budding American hospitality industry during the Spanish Flu.  To do that, I analyzed scores of newspaper stories and advertisements from between 1918 and 1920.

What I discovered was déjà vu: a global pandemic, mask mandates, forced quarantines, fake news and newspapers fanning the flames of fear, eating places and entertainment venues shuttered, curfews and restricted hours of service, restaurants struggling to survive, businesses deemed essential and nonessential, anti-vaxxers, hairbrained explanations of how the virus started, an economy on the brink, and, oh, the fighting and the politics.

Continue reading “A Historical Perspective on Regulating Eating Places Amid a Pandemic”

Two Important Food Policy Roadmaps

by Diana Winters

Today marks the one-year anniversary of the day the World Health Organization declared Covid-19 to be a global pandemic, and over this past year, the preexisting weaknesses, incapacities, and inequities of the national and global food system have been glaringly evident. From food and supply shortages, to disease outbreaks in meat production facilities, to the breakdown in school lunch distribution networks, to an enormous rise in food insecurity, the pandemic emergency brought the dangers of consolidation in the food system and shortsighted agricultural and nutrition policy to the forefront of public awareness.

Two recent reports, one by the New York City Mayor’s Office of Food Policy, and one by the Center for Good Food Purchasing, have outlined roadmaps toward a stronger food system.

Food Forward NYC is organized around five goals supporting a framework to lead to a ore healthy, equitable, and sustainable food system in a decade’s time. These goals are: (1) All New Yorkers have multiple ways to access healthy, affordable, and culturally appropriate food; (2) New York City’s food economy drives economic opportunity and provides good jobs; (3) The supply chains that feed New York City are modern, efficient, and resilient; (4) New York City’s food is produced, distributed, and disposed of sustainably; and to (5) Support the systems and knowledge to implement the 10-year food policy plan. Each of these goals will require collaboration among multiple stakeholders, and the Office of Food Policy will issue a biennial report as to the City’s progress.

The Good Food Purchasing Program roadmap for the post-pandemic food system we need also posits a ten-year timeframe for the building of a stronger and better food system. The roadmap is built around five core values that support the Center for Good Food Purchasing’s program: Valued Workforce; Local Economies; Animal Welfare; Nutrition; and Environmental Sustainability, all of which are guided by equity, transparency, and accessibility. The roadmap is organized around three key pillars of success: (1) the power of partnerships; (2) shared goals and infrastructure, and; (3) transformational policies.

Both of these reports seek to utilize the observations and lessons drawn from the pandemic emergency’s impact on the food system so that as we rebuild, we recreate as well.

Op-ed: How to Feed America Better Post-Covid

By Veronica Goodman*

When teachers locked up their classrooms last March, few thought that a year later schools would still be shuttered and that millions of children would lack access to essential services, such as meals, and that millions of jobs would be lost, leaving many individuals and families struggling to put food on the table. America’s hunger crisis is now so acute that a recent analysis found that the number of children not getting enough to eat was ten times higher during the pandemic, while nearly 1 in 6 adults – or close to 24 million Americans – reported that their households did not have enough to eat sometimes or often in the past seven days.  

The sharp rise of hunger during the pandemic is yet another woeful legacy of the Trump administration’s mishandling of the Covid crisis, including trying to deny access to food relief by placing unnecessary bureaucratic barriers on states and even attempting to kick nearly 700,000 unemployed people off of food assistance in the midst of a once-in-a-century public health crisis. President Biden has thankfully made quick progress to address the hunger crisis through executive action and proposed legislation, but there is more work to be done to make our federal anti-hunger policy more resilient going forward for the next crisis, and to address the structural barriers to food affordability and access.

In his first week in office, President Biden signed an executive order that will help alleviate the hunger crisis by increasing benefits of the Pandemic-EBT program (P-EBT) and the Supplemental Nutrition Assistance Program (SNAP), as well as calling for the Agriculture Department to modernize the Thrifty Food Plan to better reflect the cost of a market basket of foods upon which SNAP benefits are based. Biden’s American Rescue Plan will also significantly bolster food assistance programs around the country. Collectively, these changes should make food aid more generous and better targeted.

However, many anti-hunger innovations were born of necessity during the pandemic, and these should serve as lessons learned going forward to better prepare for a future crisis. The P-EBT program has been a success at bridging the gap in nutrition for low-income children who used to obtain meals through programs at their schools, but who could no longer do so with schools closed. This program should be studied to see if it can be converted to a Summer EBT option going forward. Furthermore, to stay ahead of a future crisis, researchers at the Center on Budget and Policy Priorities have suggested that Congress “leverage the P-EBT structure to create a permanent authorization for states to issue replacement benefits (similar to P-EBT, and perhaps renamed “emergency-” or E-EBT) in case of lengthy school or child care closures resulting from a future public health emergency or natural disaster.” This would make it easier for states to act quickly and not rely on Congressional action should schools need to close in the future. Finally, Rep. Suzanne Bonamici has introduced a bill that would more effectively allow schools to distribute free meals to students and other community members in need, and to extend meal service for afterschool meals and snack programs. These measures would make our systems nimbler and more responsive should a future disruption, national or local, occur.

America’s hunger crisis did not start with the pandemic, and policymakers should go further to address three key underlying causes and structural barriers to food access and affordability. First, the White House should focus on stricter antitrust enforcement in the food industry. The U.S. food and agriculture industry is concentrated, with a few large firms dominating many markets, which can drive up consumer prices on basic nutrition staples. Second, Congress should enact the HOPE Act, introduced by Reps. Joe Morelle and Jim McGovern and Senator Kirsten Gillibrand (D-NY) which would create online accounts that enable low-income families to apply once for all social programs they qualify for, rather than forcing them to run a bureaucratic gauntlet that makes it difficult for low-income Americans to get public assistance. Third, Congress should take up legislation, such as the bipartisan Healthy Food Access for All Americans (HFAAA) Act put forth by Sens. Mark R. Warner, Jerry Moran, Bob Casey, Shelley Moore Capito, that incentivizes food providers to set up shop in rural and hard-to-reach communities to improve food access for the estimated 40 million Americans living in “food deserts” that lack a nearby grocery store or food pantry or bank.

Food insecurity is not just a moral issue, it also has economic and social costs. Adults who go hungry are less productive and are more likely to suffer from chronic illness. Hungry children are more likely to get sick and fall behind in school. One in five Black and Hispanic households report they are unable to afford food. Poor nutrition and soaring rates of metabolic disease are a drag on the economy and contribute to rising healthcare costs and early deaths in minority and low-income families that are disproportionately more likely to experience poor nutrition and health as a result of food insecurity. And a boost in food assistance programs has even been found to speed economy recovery during a downturn and serve as an “automatic stabilizer”, an added bonus of fighting hunger during the Covid recession.

It’s time for a new national commitment to wiping out hunger and malnutrition in America. The pandemic and the associated hunger crisis have taught us valuable lessons that we should use so that we can be better prepared to face a future crisis and to curb hunger in America.

*Veronica Goodman is the Director of Social Policy at the Progressive Policy Institute. In her role, she develops and analyzes policies designed to help lift more Americans out of poverty and to strengthen the middle class, focusing on social mobility, inequality, labor, and modernizing social services. Veronica earned graduate degrees in economics and public management from Johns Hopkins University, and her undergraduate degree from The George Washington University.

You can find Goodman’s full paper on a comprehensive federal approach to the hunger crisis here.

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.

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.

Not labeled for retail sale, except during the coronavirus pandemic

By Daniel Pessar* (Guest Blogger)

This is the third in a series of occasional posts by Daniel Pessar on regulatory flexibility in the context of food law and the pandemic.

The novel coronavirus pandemic has led to health, economic, and political turmoil around the world. In response to this public health crisis, U.S. federal, state, and local governments have been seeking to contain the impact of the virus while minimizing the collateral economic impact. Although stay at home orders and social distancing rules have had the greatest impact on people, many laws, regulations, and rules have been suspended or relaxed in order to help individuals and organizations—especially those involved in the pandemic response—to be productive during these difficult times.

One agency relaxing regulatory measures is the U.S. Food and Drug Administration (FDA) which has been working to remove obstacles to the flow of essential goods throughout the economy. As supply chains have been disrupted and demand patterns have shifted, the FDA has worked to relax the enforcement of certain regulations which could slow the response of food manufacturers and distributers to the new food business landscape.

In March 2020, the FDA announced that it would relax the enforcement of certain labeling laws that are familiar to many shoppers who purchase packaged goods in bulk. These shoppers know that often the individual beverage containers or snack bags do not have the product’s nutrition information. Instead, they have a label which reads “This unit not labeled for individual sale” or some variation of that announcement. Labeling items within a multi-pack in this way gives manufacturers more flexibility in package aesthetics and design and can help a food business to better control the flow of products for retail sale. Retailers interested in selling these items individually would need to affix a compliant nutrition label on top of the manufacturer’s label to comply with federal law.

In addition to multi-unit packaged goods, FDA nutrition labeling regulations also provide exceptions for food served in most restaurants or in other establishments in which food is served for immediate human consumption (e.g., institutional food service establishments, such as schools, hospitals, and cafeterias; transportation carriers, such as trains and airplanes; bakeries, delicatessens, and retail confectionery stores where there are facilities for immediate consumption on the premises; food service vendors, such as lunch wagons, ice cream shops, mall cookie counters, vending machines, and sidewalk carts…)  21 CFR § 101.9(j)(2)(ii)

These exceptions do not give restaurants a blank check, however. Only food served for immediate human consumption may be served without the inclusion of the necessary nutrition information. Under normal circumstances, these regulations do not limit restaurants—they are in the business of serving food for immediate human consumption after all.

Yet all of the upheaval that has come with the coronavirus pandemic has turned this law into a costly obstacle to offloading excess ingredient inventory. Food establishments with extra meat, flour, or cheese—but fewer customers—might consider selling packages of supplies directly to customers in order to reduce the economic pressures they are facing. However, given that these supplies would not qualify as food for immediate human consumption, the restaurants would need to ensure that an appropriate label be designed and affixed to the food parcels. Further compounding this challenge is the fact that the large packages sent to the restaurants by manufacturers or distributers of food supplies often lack nutrition labeling as well—those companies qualify for a separate exception from nutrition labeling regulations (see 21 CFR § 101.9(j)(2)(v)).

Recognizing that this rule would hurt restaurants while reducing the amount of food being made available to consumers during the pandemic, the FDA stepped in to temporarily relax certain rules. In March 2020, The FDA issued a temporary policy to relax labeling requirements for restaurants seeking to sell these kinds of products. As long as the food was labeled with (1) statement of identity, (2) ingredient statement, (3) name and place of business of the food manufacturer, packer, or distributer, (4) net quantity of contents, and (5) allergen information, the FDA would not object to the product’s sale even if it lacked a Nutrition Facts label.

Other rules have not been suspended, however. Restaurants making nutrient content claims about these food products (“Low fat cheese” or “High fiber beans”) would face other labeling rules that have not been relaxed by the FDA’s temporary policy. In addition, the FDA guidance does not apply to any foods prepared by restaurants. Entrepreneurs interested in developing packaged foods to supplement their restaurant offerings during the pandemic will need to comply with the robust label requirements for packaged foods. But as long as the new guidance stays in effect, restaurants can more easily sell packaged foods—both perishable and non-perishable—from cooking oil and tomato sauce to snack packs and juice pouches.

As restaurants, bars, and bakeries see a dramatic slowdown in business, some are trying to capitalize on their supply chain to maintain some business activity. For example, Fort Defiance, a bar in the Red Hook section of Brooklyn, New York, now sells a range of food supplies online including cheese, tofu, and raw chicken.  The FDA’s new stance facilitates this flexibility.

*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

Learning and eating remotely

By Daniel Pessar* (Guest Blogger)

This is the second in a series of occasional posts by Daniel Pessar on regulatory flexibility in the context of food law and the pandemic.

School administrators across the country have their work cut out for them. The shift to remote instruction has improved compliance with social distancing mandates but has also created challenges for families and invited questions about the quality of online education. Modern schools, however, are more than just places of instruction—they are also hubs of support service activity for students. From providing guidance counselors and speech therapists to nurses and probation officers, schools are equipped to do much more than just teach. And many of the services offered by schools are less easily transferable to the web than classroom learning.

chairs classroom college desks
Photo by Pixabay on Pexels.com

 

Food provision programs are one such example. The U.S. Department of Agriculture (USDA) administers federal programs including the National School Lunch Program (NSLP), the School Breakfast Program (SBP), and the Summer Food Service Program (SFSP) which exist to bring nutritious food to school-age children. The Child Nutrition Programs, including the ones listed above, cost the United State over $20 billion each year—translating to well over 7 billion meals and snacks—and are administered with the help of a long list of laws and regulations.

But like many other school services, food programs are designed to provide meals on site and not remotely. For example, program sponsors (e.g., schools, camps, or governments) must agree, in writing, to numerous rules including to, Maintain children on site while meals are consumed.”  7 CFR § 225.6(e)(15)

To allow the food programs to continue despite the virus-related upheaval, the USDA has relaxed several rules, including the requirement to have students eat on site. Although some rule waivers are being issued on a state-by-state or case-by-case basis, the USDA issued an all-states waiver in this case:

[The law and regulations require that] child nutrition program meals must be served in a congregate setting and must be consumed by participants on site. However, FNS [USDA’s Food and Nutrition Service] recognizes that in this public health emergency, waiving the congregate meal requirements is vital to ensure appropriate safety measures for the purpose of providing meals and meal supplements.

COVID–19: Child Nutrition Response #2 (March 20, 2020), Food and Nutrition Service, U.S. Department of Agriculture

Another important rule waiver deals with the requirement that students be present for food pickup. Given the concerns about students having to leave home in the current environment of recommended isolation—especially those students who may not feel well—the USDA granted another all-state rule waiver:

[The law and regulations] envision Program operators providing meals directly to children, not to parents and guardians picking up meals at non-congregate meal sites on behalf of their children. However, FNS recognizes that in this public health emergency, continuing to require children to come to the meal site to pick up meals may not be practical and in keeping with the goal of providing meals while also taking appropriate safety measures.

COVID–19: Child Nutrition Response #5 (March 25, 2020), Food and Nutrition Service, U.S. Department of Agriculture

Questions remain:  Will these meals—designed to be healthy and produced with children in mind—actually get into the hands of the intended recipients? Even if they do, will students eat the food if they have unhealthy alternatives available? These and many other questions face school administrators and policymakers trying to navigate the new environment.

But at least food provisions can be handed to parents and guardians and sent home to students. The same cannot be said for counseling and therapy services, health services, and many other offerings. Without new avenues for connecting with students and distributing all resources, the pandemic disruption will continue to result in a dramatic decrease in support services to the students who need them most.

*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

President Trump Signs Executive Order to Keep Meat Processing Plants Open

by Diana Winters

Thousands of workers at meat processing and packing plants have contracted coronavirus* and over 20 have died.  As of last week 13 plants had closed down for some period of time resulting in a significant reduction in the nation’s meat slaughter (pork and beef) capacity.

Yesterday, April 28, President Trump signed an Executive Order declaring meat plants “critical infrastructure” and directing the Secretary of Agriculture, Sonny Perdue, to ensure that processing plants remain open.

The Order requires that continued operations be in compliance with guidance from the CDC and OSHA regarding safety in plants, but because this guidance is voluntary, labor representatives fear that workers will continue to be put at risk by working in meat plants.  Moreover, some meat plant workers insist they will not be ordered to come to work.

Some scholars have speculated that the main purpose of the Order is to block local objections and potentially protect the meat processing and packing industry from liability for coronavirus contracted on the job.  The issue of tort liability is being discussed more broadly in relation to the gradual reopening of the economy, and certain representatives for business are asking the Trump administration to include a liability shield in any future relief legislation.

As we consider the effects of this Executive Order, perhaps this is a good time to remember that poor diet has been linked to worse outcomes from Covid-19, and that excess meat consumption has been linked to many diet-related diseases.  Maybe a (temporary) reduction in the meat supply can be tolerated?

 

*Many of the articles linked in this post, as well as many others, are linked in the Resnick Center’s UCLA Law LibGuide to Covid-19 and Food Law.

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