Chlorpyrifos and state v. national action in food policy

by Diana Winters

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

20180409 SmartAgTechsLMISandlerFinalRound

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

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

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

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

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

FDA Commissioner Scott Gottlieb Proposes Sweeping Label Updates – COMMENTS OPEN

by Diana Winters

On March 29, FDA Commissioner Scott Gottlieb spoke at the Consumer Federation of America’s National Food Policy Conference about how the agency “can make further improvements in public health by both empowering consumers with information and facilitating industry innovation toward healthier foods that consumers want.” He focused not just on reducing chronic disease, but also on how better information can help to narrow nutrition and health disparities.

As to specific steps, Commissioner Gottlieb discussed: (1) modernizing health claims, (2) re-defining “healthy”, (3) changing the process by which the agency reviews qualified health claims, (4) clarifying the term “natural”, and (5) modernizing the names for ingredients, and standards of identity. He also talked about implementing the new nutrition facts label and menu labeling rules, and working on reducing sodium in foods.

You can watch the speech here.

For an administration committed to deregulation, Commissioner Gottlieb’s stance is surprising, and exciting. The Center for Science in the Public Interest provided FDA with some great preliminary suggestions for moving forward. I’m opening comments for this post – what do you think about Commissioner Gottlieb’s speech? What should or shouldn’t FDA do?

N.Y. Times on animal antibiotics in animal feed

There was a really interesting article on the use of antibiotics in animal feed in the N.Y. Times last week. Two very interesting takeaways: (1) the article highlights the flaws in FDA’s initiative to prohibit the use of antibiotic for growth promotion—as many critics noted, allowing companies to use these drugs for disease “prevention” is essentially a loophole, and (2) the market is eclipsing regulation in the context of antibiotics, as consumers increasingly demand antibiotic-free meat.

Further reading:

  • Emilie Aguirre wrote about California’s stricter rules and democratic experimentalism here.
  • Lisa Heinzerling wrote about the FDA’s poor record on animal antibiotics here.
  • I link to some resources on the background of this issue in a 2014 blog post, here.

N.Y. Times article: U.S. influence on Nafta talks regarding junk food warning labels

The New York Times reported today that in trade talks with Mexico and Canada, the Trump administration is trying to prevent Nafta’s members, including the United States, from using warning labels on junk food.  In 2016, Chile introduced black stop-sign warnings on food that was high in calories, sodium, sugar, or saturated fat, and the Times reports that Mexico and Canada are considering imposing similar regulations.  Mexico currently has one of the highest death rates from diabetes in the world.  The Office of the United States Trade Representative, however, “is pushing to limit the ability of any Nafta member to require consumer warnings on the front of sugary drinks and fatty packaged foods,” which aligns with the wishes of certain beverage and packaged food manufacturers in the United States.  The article can be found here: https://www.nytimes.com/2018/03/20/world/americas/nafta-food-labels-obesity.html

Media coverage of food desert analysis

by Diana R. H. Winters

Last week, in an article titled “Food deserts may not matter that much,” The Economist reported on a study by three scholars finding that when trying to account for the disparity in eating patterns between rich and poor people, the answer may not be in the availability of healthy food. In “The Geography of Poverty and Nutrition: Food Deserts and Food Choices Across the United States,” Hunt Allcott, Rebecca Diamond, and Jean-Pierre Dubé found that although it is true that “there is a meaningful nutrition-income relationship in grocery purchases,”—that people with more money buy more healthful food—this is not due to the supply, or lack thereof, of healthy food in lower income neighborhoods. The authors looked at the effect of the entry of new stores carrying healthy food options into neighborhoods that had previously had fewer healthy options, concluding that there was little effect “on the composition of the shopping basket.” This is because people were willing to drive to supermarkets if there were no supermarkets in their neighborhoods. A new market may reduce transport costs, but did not change individual preferences. These findings cast doubt on the “food desert” hypothesis, which explains the fact that poor people eat less healthfully by pointing to the lower availability of healthy food in lower income neighborhoods.

This is not the first study to question the food desert hypothesis. Earlier studies have found, among other things, that putting new stores into underserved neighborhoods without other interventions to change shopping and eating habits may not have the effect on dietary choices or obesity rates that had been predicted. In this extremely comprehensive new study, the authors buttressed policy suggestions with rigorous empirical work. They found, as did the earlier studies, that changing demand was more important than changing supply, and that increasing people’s knowledge about food could be an important driver of change. For this reason, “policies geared toward nutrition education may be more effective than subsidies and grants geared toward food retailers.”

The policy conclusion that public money is better spent in education than in retail is a significant one, and a progressive one. The coverage of this study in The Economist, however, is anything but. Instead, the article’s focus, encapsulated by its title, is that the availability of healthful food may not affect food-related health outcomes as much as once thought. Instead, the article tells us that it is preference, not availability, which drives food purchasing. Although it notes that preference may be influenced by education, the article does not mention that the authors of the study it covers emphasize the need to shift our food policy dollars. And without noting that preference itself is formed by historical forces, including generations of poor supply and lack of access to education about nutrition in lower income neighborhoods, readers are left to assume that a preference for unhealthy food is an individual and personal failure.   By doing this, The Economist’s article erases the institutionally supported and sanctioned inequality that partially created the obesity epidemic and its related problems, reinforces the perception that government has no place in food policy, and shifts the burden from public to private responsibility for the solution.

 

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

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

Professor Schneider wrote the following:

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

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

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

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

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

 

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

 

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