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”

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.

2021 California Food Legislation

by Beth Kent*

            The California State Legislature is back in session, and legislators have introduced a number of bills related to food and agriculture. Many of these bills address food insecurity, which has been exacerbated by the Covid-19 pandemic. A number of bills focus on sustainable agriculture, including phasing out pesticides and protecting agricultural lands. Governor Newsom’s proposed Budget also includes funding for a new approach to pesticide regulation that aims to catalyze the transition to safe and sustainable agriculture.

This is the beginning of the legislative cycle, and bill text and budget priorities are subject to change, but it is exciting to see so many bills that address food and agricultural issues. You can track your bill priorities here, and we will provide an update at the end of the session that summarizes the bills that are passed by the Legislature and approved by the Governor.

Food and the Environment

  • AB-350 (Villapudua) would create a grant program to help landowners in the San Joaquin Valley’s “critically over-drafted basins” meet the Sustainable Groundwater Management Act’s water use reduction goals.
  • AB-352 (Rivas) proposes amendments to the California Farmland Conservancy Program to make the program more accessible to low-income, diverse, and socially disadvantaged farmers and ranchers.
  • AB-391 (Villapudua) proposes appropriating $5 million from the Department of Food and Agriculture’s General Fund to provide technical assistance and grants to incentivize participation in state and federal conservation programs that integrate pollinator habitat and forage on working lands.
  • AB-567 (Bauer-Kahan) proposes expanding pesticide regulations to prohibit using neonicotinoids (a type of insecticide that is especially harmful to bees) on seeds and makes the use of neonicotinoids a misdemeanor.
  • AB-1086 (Aguiar-Curry) would require the California Natural Resources Agency to develop an implementation strategy to achieve the State’s organic waste, and related climate change and air quality, goals. The implementation strategy may include recommendations on policy and funding support for the beneficial reuse of organic waste.

Nutrition and Food Security

  • SB-364 (Skinner): Introduced by Senator Skinner and co-authored by Senators Eggman, Hertzberg, Laird, Limón, McGuire, Hueso, Newman, Wieckowski, and Wiener and Assembly Members Berman, Carrillo, Chiu, Cooley, Cooper, Cristina Garcia, Eduardo Garcia, Levine, Nazarian, Quirk-Silva, Reyes, Robert Rivas, Rodriguez, Santiago, Stone, and Villapudua, SB-364 proposes to establish a California Universal School Meal Program, which would continue to make school free breakfast and lunch programs available to all children beyond the COVID-19 public health crisis. It would also establish the Better Out of School Time (BOOST) Nutrition Program to prevent child hunger when schools are not in session.
  • AB-221 (Santiago, Chiu, and R. Rivas): Introduced by Assembly Members Santiago, Chiu, and Robert Rivas and co-authored by Assembly Members Burke, Carrillo, Cristina Garcia, Gipson, Grayson, Kamlager, Luz Rivas, Stone, and Villapudua and Senators Rubio, Dodd, Durazo, and Wiener, AB-221is an urgency statue that would make food assistance benefits available to low-income California residents across the State, regardless of their immigration status. The bill also commissions a study to identify permanent solutions for low-income food assistance programs to address food insecurity throughout the State.
  • SB-108 (Hurtado) would declare that every human being has the right to access sufficient healthy food and require state agencies to revise and adopt policies accordingly.
  • AB-941 (Bennett and R. Rivas): Introduced by Assembly Members Bennett and Robert Rivas and co-authored by Senators Limón and Dodd and Assembly Member Medina, AB-941would establish a grant program to create farmworker resources centers. Resource centers would provide farmworkers and their families information and access to services related to education, housing, payroll and wage rights, and health and human services.
  • AB-1009 (Bloom) would establish the Farm to School Food Hub Program, which would incentivize the creation and permanency of farm to school hubs. Hubs would function as nonprofit aggregators and supply chain intermediaries to distribute food products from farms or ranches to public institutions and nonprofit organizations. The goals of the program are promote food access and to increase the amount of agricultural products available to underserved communities and schools.
  • SB-20 (Dodd) would increase access to Supplemental Nutrition Assistance Program/CalFresh Benefits for low-income community college students by requiring the Student Aid Commission to notify students of their CalFresh eligibility. These requirements are intended to educate students about the availability of CalFresh benefits and to help address food insecurity among low-income community college students.
  • AB-543 (Davies): Introduced by Davies and coauthored by Dodd, AB-543 would require California universities to provide information about CalFresh to all incoming students as part of campus orientation.
  • AB-508 (L. Rivas and Lorena Gonzalez): Introduced by Assembly Members Luz Rivas and Lorena Gonzalez and coauthored by Assembly Members Kalra, Bauer-Kahan, Boerner Horvath, and Eduardo Garcia, AB-508 would expand school meal programs by requiring school districts and county superintendents to provide free meals for students who are eligible to receive reduced-priced meals.
  • AB-558 (Nazarian) would create the California School Plant-Based Food and Beverage Program, which would provide reimbursements to school districts that provide plant-based options as part of free and reduced-price school meal programs. This bill could have positive health and environmental benefits by increasing access to plant-based food.
  • AB-368 (Bonta): Introduced by Assembly Member Bonta and coauthored by Assembly Members Chiu and Wicks, AB-368 would establish a pilot program to provide prescriptions for medically supportive food. Eligible Medi-Cal beneficiaries could receive vouchers to redeem specific foods that can alleviate or treat medical conditions, such a diabetes and hypertension.

*Beth Kent is an Emmett/Frankel Fellow in Environmental Law and Policy at UCLA School of Law for 2020-2022. She earned her J.D. from UCLA School of Law with a specialization in Public Interest Law & Policy from the Epstein Program, and she actively participated in UCLA Law’s environmental and food law programs.

Food Policy with Senator Tom Harkin – a Repast Interview

We are so pleased to share this terrific new episode of Repast, where Michael Roberts interviews Senator Tom Harkin on his years in Congress and his significant impact on food policy, the Harkin Institute and its focus on wellness and nutrition–including the Institute’s upcoming symposium on food as medicine--and the opportunities Senator Harkin sees for food policy with the Biden administration.

You can listen to the episode here.

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.

Forthcoming Scholarship: “A Palatable Option for Sugar-Coated Palates”

by Diana Winters

Some good news!  UCLA Law 2L Nicholas Miller’s article, “A Palatable Option for Sugar-Coated Palates: Labeling as the Libertarian Paternalism Intervention that American Consumers Need”, will be published in the University of Florida Journal of Law & Public Policy early in 2021.

Nicholas is a second year law student at UCLA, where he is involved in a range of activities including OUTLaw and the Dukeminier Awards Journal of Sexual Orientation and Gender Identity Law. As the son of a caterer and a lawyer, he was naturally drawn to food law, which combines his love of food and his desire to understand the legal frameworks that protect society and guide behavior. He chose to write about labeling – specifically of sugar content – because it raises the issue of how to balance progressive public health policy and the historically American fear of paternalistic overreach by the government. He sees this dynamic of public health initiatives that impede on individual liberty at play now, amid the coronavirus pandemic, and hopes his analysis will help advance the dialogue on how best to guide people to make good decisions about their health.

Here is the abstract for the article:

Addressing nutritional health for Americans has proven uniquely challenging in a marketplace flooded with non-nutritious food products.  Compounding the issue, consumers consistently misjudge the contents of these processed foods and undervalue their pernicious effect.  At the same time, consumers are wary of overly intrusive or paternalistic government interventions, such as bans and portion limits.  This paper reflects on the effectiveness (or lack thereof) of previous attempts by the FDA to combat public health threats.  Finally, the paper proposes a path forward, with growing political momentum, that builds on the innovative food labeling models being tested in markets around the world.

We can’t wait to see this in print.

*If you would like to have forthcoming food law scholarship featured in the blog, please contact Diana Winters.*

Resnick Center Launches Covid-19 and Food Law Resource Guide

Today, the Resnick Center in conjunction with the UCLA School of Law Hugh and Hazel Darling Law Library launched a Covid-19 and Food Law Resource Guide.  The guide will provide resources on the intersection of Covid-19 and food law and policy for scholars, researchers, and officials, which comports with the Resnick Center’s mission to provide cutting-edge legal research and scholarship in food law and policy.

This library guide will consist mainly at its start of substantive popular press articles, links to various open-access repositories of media reports, and helpful government sites. Over time, this library guide will be populated by legal scholarship and reflective, analytical publications relevant to legal scholarship that will be organized by subject matter and in some cases annotated.

If you come across interesting material at the intersection of Covid-19 and food law and policy, please submit it to be considered for this guide to the Resnick Center.

Food Law Conference – March 2-3

by Diana R. H. Winters

I will be attending CLE International’s Annual Food Law Conference on March 2-3, 202, in San Francisco.  This is a terrific conference, which I highly recommend.

This is one of the few food law conferences where you can hear from both defense and plaintiff’s counsel, industry associations, and advocacy organizations.  I learned so much last year.   Michael T. Roberts, the Resnick Center‘s Executive Director, is a Co-Chair, and I am speaking on state law regulation on Tuesday, March 3.  The featured speaker is Laura Eichhorn Kurpad, Esq., Associate Chief Counsel US Food and Drug Administration, to give us views from the FDA.  You can find more info here: https://web.cvent.com/event/091ab345-25cd-4928-adf0-9212b7768bd5/summary?RefId=cle.com%20more%20info

Seriously, this conference is the cream of the crop!  Hope to see you there.

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.

An Ongoing Regulatory Failure – Antibiotics in Animal Feed

by Diana R. H. Winters

A few weeks back, the New York Times published an article about continuing publicity campaigns by drugmakers to sell antibiotics to farmers for use in healthy animals.  In “Warning of ‘Pig Zero’: One Drugmaker’s Push to Sell More Antibiotics,” Danny Hakim and Matt Richtel discuss the recent (and not-so-recent) regulatory attempts to curtail antibiotic use in animal feed and show how one drugmaker has worked to maneuver around these obstacles to continue selling massive amounts of antibiotics to farmers.

Particularly striking in this article is the explanation of how antibiotic overuse affects human health:

“The connection of overuse of antibiotics in livestock to human health takes two         paths: As bacteria develop defenses against drugs widely used in animals, those defense mechanisms can spread to other bacteria that infect humans; and, resistant germs are transmitted from livestock to humans — through undercooked meat, farm-animal feces seeping into waterways, waste lagoons that overflow after natural disasters like Hurricane Florence, or when farm workers and others come into contact with animals.”

And how this connection is misconstrued by pharmaceutical companies:

“Mr. Simmons of Elanco has long played down livestock’s role in spreading resistant microbes to humans.

‘The most serious pathogens are not related to antibiotics used in food animals,’ he said. ‘Of the 18 major antibiotic-resistant threats that the C.D.C. tracks, only two, campylobacter and nontyphoidal salmonella, are associated with animals.’

But such oft-repeated statements, made even in Elanco’s securities filings, refer only to food-borne strains like antibiotic-resistant salmonella that can be found in raw chicken, for example, while ignoring the myriad ways pathogens can be transferred.”

Also striking is the discussion of research linking the rise in C.Diff. infections, as well as in E. coli and MRSA infections, and the use of antibiotics in livestock:

“There is a growing body of research establishing links between Clostridium difficile, or C. diff, in livestock and humans, viewed by the C.D.C. as an urgent threat. Broad-spectrum antibiotics in livestock provide “a survival advantage to antibiotic-resistant C. difficile strains,” according to a 2018 study by Australian researchers. Similar studies exist for E. coli and methicillin-resistant Staphylococcus aureus, known as MRSA — the C.D.C. even lists different animals like cows, goats, sheep and deer that can pass E. coli to humans.”

Disturbing on many levels, the article highlights how federal attempts to regulate antibiotics, while laudable, have fallen short.

 

See our prior post on a previous N.Y. Times article on this issue here.

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