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.

In The Volokh Conspiracy–Allegations of food plant contamination, litigated under seal

Yesterday, our colleague Eugene Volokh wrote at his blog, The Volokh Conspiracy, about a fascinating case involving the employee of a company that contracted to clean food processing plants.  The employee threatened to release some damaging information about a food processing plant at which he had worked and his employer was granted a temporary restraining order to block this release.  The court also granted the company’s request to seal the case.  Volokh raises some super interesting questions, including whether it is appropriate for a dispute regarding the release of information that may seriously affect the public health to be litigated under seal, and the relevance of the allegation that the person seeking to release the information was looking to extort money in exchange for keeping the information secret.

The case is Packers Sanitation Services, Inc. v. Acosta, and you can read the blog post here.

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.

Proposition 12 – Humane v. Humane

This fall the California ballot will include an initiated state statute, the Farm Animal Confinement Initiative, or California Proposition 12.  This statute would ban the sale of meat and eggs from calves raised for veal, breeding pigs, and egg-laying hens confined in areas below a specific number of square feet, repealing and replacing part of a 2008 California law that also addressed the humane treatment of animals.

Dr. Alison Van Eenennaam provides an interesting perspective on Prop 12 in the blog post, below, which is cross-posted from her blog, Biobeef Blog.  Dr. Van Eenennaam is a Cooperative Extension Specialist in the field of Animal Genomics and Biotechnology in the Department of Animal Science at University of California, Davis.  I also recommend reading her series of three posts on this issue that she posted in January.  The first is linked here.

Proposition 12 – Humane vs. Humane

Back in January I wrote a blog entitled Proposition 2 déjà vu about a proposed  California ballot initiative entitled “The Prevention of Cruelty to Farm Animals Act”. Sure enough that initiative qualified for the 2018 ballot, despite the clear data on the impacts as detailed in my three blog posts on this issue (Six hens a layingEvidence-based animal welfare recommendationsProposition 2 déjà vu).

I am quaintly of the opinion that objective evidence should drive public policy, and not emotions, despite having lived in California for over 30 years. And as a public scientist I remain convinced that objective facts and data are the best way to inform policy.

However, ballot initiatives in California are basically a pay-to-play scorecard. If you have the money to get the requisite number of signatures (365,880 valid signatures), then your initiative will be on the ballot, facts be damned. And so it was with Proposition 12, a Humane Society of the United States (HSUS)‐backed initiative addressing animal confinement, which has raised $5.37 million to date… And so now let’s cue the opposition funding which will no doubt be “big ag” or “corporate farming” or “evil egg” or “big chicken”, or a tearful segment of a mother on Dr. Oz, or a shockumentary on NetFlix…..but no – crickets (actually cage-free, mute crickets to be precise). As in no organized-opposition from those who grow your food, or research the best way to produce food sustainably (Hint: people who might know some things).

Wait – what? Agriculture and scientists have had enough. We know science and facts are useless (see my previous 3 blogs re this initiative and almost all of the outreach work I have ever done in agricultural science), and there just is no point in fighting initiatives funded by wealthy animal activist industry groups who use persuasive arguments based entirely on emotion while conveniently failing to mention the multiple trade-offs and unintended consequences associated with their proposed course of action. And so the usual adversaries of demonstrably bad agricultural policy i.e. “big ag”, known as farmers by the general public, and “tobacco scientists”,  known as public university faculty and researchers to most, have thrown in the towel.

And I understand that response. It is exhausting trying to fight these large, well-funded activist groups who will stop at nothing to get their way – facts and scientific consensus be damned, and it can be a lucrative pastime. Ask those trying to fight the anti-vaxxers, or the anti-GMO industry. Slowly I see my animal scientist colleagues quietly retreating into the “spiral of silence” – a tranquil place where no one fabricates facts, and where pure science can be carried out peacefully sans messy public confrontations – sometimes referred to as “the ivory tower.”

Last time UC Davis got involved in this discussion by providing objective facts regarding Proposition 2 “Treatment of Farm Animals” over a decade ago in 2008, it cost the taxpayers more than a million dollars in a lawsuit with HSUS – money that did not go to educating our students or carrying out research, and the lawsuit about wore out one of my faculty colleagues. Likely UC administration is happy we are playing dead this time around on Proposition 12 too.

And who can blame the University? It is not fun to be in the middle of a politicized, scientific controversy. However, if professionals in the field are unwilling to stand up for objective data and evidence-based decisions, who will? And that is where this discussion gets interesting.

Who is opposing Proposition 12 – if not industry or subject-matter experts? The Humane Farming Association (HFA), an animal cruelty organization that opposes the proposition on the grounds that it legalizes for several more years some practices HFA opposes. So Proposition 12 does not move fast enough for the Humane Farming Association.

Say again? With a modest $550,000, a committee backed entirely by the Humane Farming Association, is the sole funder of opposition to Proposition 12, the “The Prevention of Cruelty to Farm Animals”. And here is where it gets good. Who doesn’t like a little Humane vs Humane mud wrestling?

Bradley Miller, spokesperson for HFA’s Californian’s Against Cruelty, Cages, and Fraud “Stop the Rotten Egg Initiative” stated of rival HSUS

The Humane Society of the United States [HSUS] is once again deceiving voters, flip-flopping on the issue of cages, and perpetuating the suffering of egg-laying hens”                                            HFA

There is a video made by HFA (below and can be accessed here) summarizing their version of the June 19, 2018 California State Legislature hearing regarding Proposition 12 which contains some interesting conflict-of-interest footage, including some questioning as to how much money HSUS was making from Proposition 12 (Spoiler alert: HSUS does not have those numbers).

https://player.vimeo.com/video/277511154?app_id=122963

According to HFA, HSUS ended up collecting 664,000 signatures for the ballot, but less than a quarter (164,000) of those were collected by volunteers, the remaining signatures were collected by HSUS paid-“bounty-hunter” signature gatherers, like the one I met at the CA Davis market in January, telling me that Proposition 12 would remove non-existent “veal-crates”, and sow “gestation crates” from California production systems. This video is worth a listen, as Miller suggests the major opposition to Proposition 12 will be the humane farming associations.

Miller further stated on the HFA “Stop the Rotten Egg” page:

Prop 12 is now just a publicity stunt in search of a lawsuit. Not only does this come at taxpayer expense, HSUS’s reckless exploitation of California’s ballot measure system is putting in grave danger a wide array of existing consumer, animal, and environmental protection lawsOf the initiatives appearing on the November ballot, Proposition 12 is the dirtiest of the dozenWe’re confident that California voters won’t get fooled again and that this fraudulent initiative will be decisively rejected.”                                                                                                                                 HFA

And then there is a quote from Friends of Animals (FoA) on the HFA “Stop the Rotten Egg” page,

“This initiative should be fiercely opposed by everyone who cares about farm animal suffering. HSUS’s collusion with the egg industry is disturbing. From legalizing battery cages to allowing as little as one square foot of space per hen — this initiative would be a disaster for millions of egg-laying hens who would still be left suffering in battery cages throughout California.”                     FoA

And yet another quote from People for the Ethical Treatment of Animals (PETA) on the HFA “Stop the Rotten Egg” page

Beware! This initiative is being painted in rosy terms, but don’t be fooled… What it would actually do is allow farms to keep egg-laying hens in cages until 2022, at which time factory farms would still be able to confine uncaged hens to massive, crowded sheds with only 1 square foot of space per bird.”                                                                                                                                                        PETA

And finally this from Animals 24/7 on the HFA “Stop the Rotten Egg” page

“Time and again HFA has accurately identified fatal flaws in legislation advanced by HSUS.”    Animals 24/7

So what is a voter to do? Be guided by The Humane Society of the United States (HSUS), the Humane Farming Association (HFA), People for the Ethical Treatment of Animals (PETA), Friends of Animals (FoA), or Animals 24/7? Some of the above, none of the above, one of the above? Who is representing animal welfare, and how can you tell? You could try asking the scientific community who have spent their careers researching these questions, or farmers who happen to know a thing or two about farming – but that does not seem to be a popular route.

In the absence of objective, evidence-based measurements – there is just a “blob” of emotions, competing world-views, and fund-raising agendas. And that is not a great foundation upon which to base decisions around animal agriculture or public policy. Case in point: Proposition 2 from 2008 (see what that did to California farmers: Six hens a laying).

So it seems some cracks are appearing in the humpty dumpty coalition of “animal-themed corporations” also known as the “humane community”.  And perhaps nowhere is this rift more bizarrely illustrated than in this “Stop the Rotten Egg” page  animated video, “Proposition 12: California’s Caged Chickens Say NO!”.

For anyone that has ever met the former President and CEO of HSUS, Wayne Pecelle, who resigned February 2018 in a #MeToo moment  after a number of women accused him of sexual harassment,  the big-toothed male lead featured in this animated video is a thinly disguised provocation from one humane society (HFA) whose operations are based on the West Coast in California to another (HSUS) based on the East Coast in Maryland. Ironically the largest egg producing state in the US by far is Iowa.

On an unrelated note, buried in the fine print of Proposition 12, are the following strikeouts (and additions) that remove the scientific and agricultural research exemptions that were previously written into SECTION 5. SECTION 25992 OF THE CALIFORNIA HEALTH AND SAFETY CODE (line A below).

The proposed Proposition 12 language includes the following exemptions:

“This Chapter will not apply:

(a) During scientific or agricultural medical research.”

In other words, scientific and agricultural research animals at universities and other research facilities are subject to the provisions of the initiative – just like all of the farm animls. The implications of this change to the research exemption on things such as teaching, scientific or agricultural research, especially for genetic and nutrition research (we need individual cages to collect observations or phenotypes on each animal, and to record which egg comes from which hen), may well not be discovered until after the ballot votes are cast when agriculturalists and scientists go to perform specialized research on calves, pigs, or poultry.

It may be that those university researchers retreating to the “spiral of silence” to avoid the discomfort of a heated public discussion of Proposition 12, will eventually find their research projects thwarted by the inevitable passage of the initiative (I may have quaint opinions on how objective evidence should drive public policy, but I am a realist living in California). Yet another casualty of public policy based on emotion and propaganda, rather than informed by objective evidence and science-based recommendations.

As Mr. Miller, spokesperson for HFA’s Californian’s Against Cruelty, Cages, and Fraud, ironically lamented during his testimony before the California State Legislature, including the words “farm animal” and “protection” in a ballot initiative in California is enough to get it passed, irrespective of how the text reads, and what the ultimate impacts of its passage will be on the welfare of animals, and the people of California.

The Resnick Center for Food Law & Policy

It’s official.  The Resnick Program is now the Resnick Center!  Lynda and Stewart Resnick have donated an additional $2.375 million to UCLA School of Law to strengthen the research and educational resources of the Resnick Center for Food Law and Policy.

From the announcement: “‘Families must have accurate and honest information about their food so that they can prepare healthy meals,’ Stewart Resnick said. ‘UCLA and the Resnick Center are undertaking groundbreaking work to improve the incredibly complex modern food system, and Lynda and I want to see that effort grow in impact for decades to come.'”

“Michael Roberts, the founding executive director of the Resnick Center, said the Resnicks’ generosity will allow scholars to take a longer-term approach to work in food law and will enhance opportunities for students.”

This exciting gift will allow the Resnick Center to continue to engage in research, teaching, and advocacy to improve the food system for years to come.

 

Los Angeles Food Policy Tracker 2018

I am excited to share that the Resnick Program and the Los Angeles Food Policy Council have published the third Los Angeles Food Policy Tracker, compiled by Ellison Griep, who spent the summer working with both the Resnick Program and the Los Angeles Food Policy Council.

The Resnick Program for Food Law and Policy and the Los Angeles Food Policy Council actively follow Los Angeles food policy actions. In the Los Angeles Food Policy Tracker 2018, substantial policy actions undertaken at both the City and County level are identified. Specifically, the tracker documents policies that were adopted, administratively closed, or are currently pending during the time period from January 1, 2017 to July 1, 2018.

We hope this valuable resource is a useful tool for the Los Angeles food community, and for the food community more broadly.

Jonathan Gold

The stupendous, and entirely unique restaurant critic/food writer Jonathan Gold died last weekend.  Like for so many others, Gold’s reviews helped me to explore and engage with the vast and incredibly complex city of Los Angeles when I moved here two years ago.  Gold’s writing illustrates how food connects people to each other and to place, much as does Bourdain’s, and his death too is an enormous loss.

Here’s a piece of his from 1998 about the year he tried to eat at every restaurant on Pico Blvd.

 

Food Law in the United States translated into Chinese

by Michael T. Roberts

I was pleased recently to approve a book cover sent to me by my colleagues at East China University of Science and Technology (ECUST) for my treatise, Food Law in the United States, (Cambridge University Press 2016), which has been translated into Chinese. The translation had been previously celebrated in a ribbon-cutting event hosted by ECUST and other colleagues in Shanghai during Spring Break in March. This event was followed by a very lovely reception by colleagues and friends to celebrate the nuptials between Nancy Walker (Professor of Education, University of La Verne) and me last December. We were honored by gracious speeches, gifts, and well wishes. We were especially honored that Mr. Xu Jihghe, General Counsel to FDA and good friend, wished us congratulations via Skype from Beijing.

MTR.Book CoverMTR.book

My journey into food law in China has been a long and incredibly rewarding experience, punctuated by teaching and outreach. I began teaching food law in China a decade ago when I was practicing law in Washington D.C.  Since then, thanks to academic appointments with ECUST, Renmin University School of Law, and Michigan State University School of Law, I have been fortunate to delve into China food law as an instructor. The outreach includes a series of food-law roundtables and conferences in China many of which have been sponsored by the UCLA Resnick Program on a variety of issues. I was pleased last year to join Yale Law School’s Paul Tsai China Center in a series of roundtables at law schools in China to address the regulation of food safety on the farm.

All of these experiences have given me a unique perspective on the development of food law in China over the last decade and has engendered an appreciation for the role of law – no matter the legal or political system – in adapting to changing social conditions and improving the quality of living for all citizens. From where I sit, I am optimistic that China will continue to improve its food governance, notwithstanding the tremendous challenges facing China in the regulation of its food supply. I also remain cautiously optimistic and hopeful that the spirit of cooperation between the United States and China on food regulation that really took hold after the melamine scandals of 2007-08, involving pet food and infant formula, will rise above the recent political rancor coming from Washington D.C.

 

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.

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