Earlier this year, I had the pleasure of attending CLE International’s 6th Annual Food Law Conference. I vividly remember attending the previous food law conference in San Francisco in February of 2020, deliberating on whether it was appropriate to shake hands and how often to use hand sanitizer. A lot has changed since then, including food law. This evolution of food law was demonstrated in every session of this year’s food law conference. Ann Oxenham, the Acting Director of the Office of Compliance in the Center for Food Safety and Applied Nutrition (CFSAN) at the US Food and Drug Administration spoke of tech-enabled traceability as a part of the FDA’s new era of smarter food safety. The General Counsel Roundtable session exemplified how food businesses had to adapt to navigate supply chain issues, labor issues, and remote work. Thus, ending the conference with a session on the future of food law was the perfect way to reflect on how food law has evolved and surmise its next evolution.
In the Future of Food Law session, Michael Roberts, the Executive Director of the Resnick Center, moderated a conversation with two of his former students, Evan Graham Arango and Jason Lawler. The conversation illustrated why food is currently top of mind for everyone, not just food lawyers. The pandemic forced us to think about where our food comes from. For many, it was the first experience with gardening or baking bread. For many, it was the first experience not finding numerous items on a grocery list. For many, it was the first or worst experience with food insecurity.
Evan Graham Arango, the owner, founder and farmer at Ojai Roots Farm in Ojai, California noted people’s interest in regenerative agriculture and eating locally. I’m speculating that many people, like me, watched documentaries about regenerative agriculture, such as Kiss the Ground and Biggest Little Farm, when they were stuck inside, and were inspired. Regenerative agriculture and its potential to sequester carbon from the atmosphere brings to the forefront the connection between our food system and climate change
Jason Lawler, an associate at Sidley Austin LLP, elaborated on how his work around the business of food interfaces with climate change realities. Businesses are aware that consumers vote with their wallets, which encourages existing businesses to voluntarily offset carbon and new businesses to form with the goal of sequestering greenhouse gases.
Michael Roberts posits that the future of food will revolve around information. As artificial intelligence gives us more insights into what to grow, how to grow it, where to grow it, and when to market it, he wonders how to democratize that information and ensure fairness in data collection and ownership. As a consumer, I wonder how all that information will be relayed to me so I can make good food choices. To all the current and aspiring food lawyers, I look forward to seeing how we navigate the future of food law and reflecting on our progress at the next food law conference.
*Alexa is graduating this year from UCLA Law. She graduated from UCLA with a BS in neuroscience with highest honors and a minor in biomedical research in 2017. At UCLA School of Law, she has been coexecutive chair of the Food Law Society and is currently chief managing editor of the Journal of Environmental Law & Policy. She is also a research assistant with the Resnick Center.
With a background in Food Studies, an interest in food law and policy, and a belief in the power of education, I was searching for ways to combine my passions when a professor recommended FoodCorps to me. FoodCorps is an AmeriCorps service fellowship program focusing on student access to healthy food in schools that partners with local community organizations and school districts around the U.S. Service members participate in three primary activities: providing hands-on lessons, encouraging healthy school meals, and promoting a schoolwide culture of health. For example, members teach gardening and cooking and facilitate taste tests of new and different foods, although the COVID-19 pandemic limits some of what we are able to do. A number of service members also work with the cafeteria staff and school districts to ensure healthy food options are available and promoted at school lunches. Each state and site partner have different needs and therefore service varies from position to position.
As students return to in-person school, it is an important time to revisit the issue of food insecurity across America’s educational system. Particularly in Higher Education, recent studies suggest student food insecurity levels had reached as high as 38% in Spring 2020 and 5.8 of every 10 students experienced some form of basic needs insecurity. These rates have dramatically increased throughout the duration of the pandemic because students sent home for lock-down no longer had access to the already limited forms of support available in person on campuses.
A common tool used to fight food insecurity is the Supplemental Nutrition Assistance Program (SNAP). Despite its successes in reducing hunger and the economic benefits the program introduces to stimulate local economies, SNAP has many limitations and needs reform to better address food insecurity. One such limitation is that policy makers have long denied students access to SNAP. While the past decade has brought some expansions to grant students access, significant barriers remain. Barriers include restrictive student eligibility criteria and mixed messaging that leaves students misinformed of their eligibility. This policy failure leaves students hungry, many of whom would otherwise be eligible for aid if they were not pursuing higher education.
To provide additional context to the policies described in Salgado’s reporting, the below contains insights from Resnick Center Research Assistant Kyle Winterboer in this policy area. This research comes from his time with the student led research advocacy group “unBox”, the assistance of the UCLA CalFresh Initiative, his own application process amidst the pandemic, and from his time implementing a little known policy solution across UCLA departments to better support students in their SNAP applications.
The Resnick Center thanks the unBox Project and the UCLA CalFresh Initiative for readily sharing information for this report, and their continued dedication to the mission of ensuring equitable access to food for all.
Welcome back to On Food Law! We are excited to be back from our summer break and can’t wait to see what the rest of 2020 will bring. (Kidding.)
We have some exciting news – Laura Yraceburu Dall’s (UCLA Law ’20) article on the effect of Proposition 218 on retail water rates for community gardens in Los Angeles, which won the 2020 California Water Law Writing Prize co-sponsored by the California Water Law Symposium Board of Directors and the University of the Pacific, McGeorge School of Law, has been published in the California Water Law Journal.
Laura, who was deeply involved with the Resnick Center during her time at UCLA Law, writes that she came to the topic in her Food Law & Policy Clinic:
“As a part of Professor Korn’s Food Law and Policy Clinic, a representative of the Los Angeles Food and Policy Council came to discuss her advocacy and mentioned that water rates for community gardens were increasing by nearly three hundred percent, threatening the existence of gardens to the detriment of low-income community members. I began researching outside of class and came to realize that there was no clear understanding of why the rates were increasing so dramatically. I knew that I had to write about it.”
She then wrote the paper for her water law course, and submitted it for the 2020 CA Water Law Writing Prize.
Here is a synopsis of the paper:
Community gardens in Los Angeles County have seen water rates increase from a flat rate of $1.41 per hundred cubic feet (HCF) in March 2016 to $2.095/HCF plus variable adjustments in July 2019 – a 289 percent increase. As a result, some community gardens have been forced to quadruple their member gardeners’ monthly dues to cover the increasing cost of water. In three years, this increase in the price of water has made gardening significantly more expensive and has priced out low-income, largely immigrant community members who rely on these gardens to supplement their diets with fresh produce. Community gardens across Los Angeles now face the choice of either having their membership change from subsisters who rely on the gardens for dietary needs to hobby gardeners who can pay more to fund the gardens or, alternatively, closing their operations. Either result increases food insecurity for the most vulnerable members of the gardens’ communities.
California has a long history of resisting tax increases through voter-approved propositions, known in short-hand as the California Tax Revolt. This effort has generally made it more challenging for cities and utilities to raise needed revenue for local services and programs, including water service, but a deeper problem exists than a shortage of funds. Proposition 218, which amended the California Constitution, imposes substantive and procedural requirements on local agencies by limiting property-related fees, including retail water rates. Proposition 218’s shifting of rate setting authority to the electorate has paradoxically contributed to a significant water rate increase for Los Angeles’ community gardens. While the goal of the Tax Revolt was to keep taxes and rates low, certain ratepayers have not received such benefits and in fact have experienced disproportionate rate increases.
This paper begins with an overview of community gardens and the history of the California Tax Revolt, primarily focusing on Propositions 13 and 218. Next, this paper will evaluate Proposition 218’s consequences for community gardens in the Los Angeles area. An analysis of how Proposition 218 was sold to voters will follow. A discussion of practical steps towards reform will precede the conclusion.
“I was first inspired to write Holding the Animal Agriculture Industry Accountable for Climate Change: Merits of a Public Nuisance Claim Under California and Federal Law while enrolled in the “Introduction to Food Law and Policy” course taught by Professor Michael T. Roberts, the founding Executive Director of the Resnick Center for Food Law and Policy at UCLA School of Law. Class discussions regarding civil food law claims based on misrepresentations of nutritional facts made me consider potential claims against huge forces in the food industry that—motivated by profits—have continuously pushed long-standing misconceptions regarding the nutritional value of modern food staples. This strategy boosted consumption of their products and thereby materially contributed to today’s most pressing exigency: climate change. Based on parallel claims that have been brought against fossil fuel companies, I developed and wrote about potential litigation strategies against the most culpable of such forces.”
Just a note to follow up on our guest post by Joseph Pileri on October 3, 2018, discussing new legislation legalizing street vending across California. This week, the Los Angeles City Council finalized an ordinance legalizing and regulating street vending, ahead of the state law discussed by Pileri that takes effect on January 1, 2019. The city will implement a permit system, granting site-specific permits to vendors. This system will take a year to develop, and until then, Los Angeles will regulate street vendors by requiring them to comply with certain rules and standards.
Last month, California Governor Jerry Brown signed legislation legalizing street vending across California. This bill prohibits California localities from outlawing street vending outright or treating any violation of street vending regulations as a criminal offense, limiting penalties to administrative fines payable only on an as-needed basis. The law also requires prosecutors to dismiss any currently pending prosecution brought under street vending regulations.
This bill follows years of efforts by advocates in Los Angeles to legalize street vending in the city. For years, street vending was illegal in Los Angeles despite the near ubiquity of fruit carts, taco stands, and hot dog vendors. There was a blanket ban on street vending that exposed any street vendor to potential fines and criminal violations. Advocates recently renewed their push to change this law so that thousands of immigrant street vendors would not find themselves facing deportation because of operating a street vending business.
Los Angeles was not alone in its treatment of street vending. Municipalities around the country have criminalized street vending or the violation of street vending regulations. This is an example of what I term “the criminalization of microenterprise” – local jurisdictions completely outlawing street vending and other business activities or treating violations of licensing rules as a criminal offense. I am working on a project to survey municipalities around the country and study their treatment of street vending. The results, thus far, are surprising. Though many localities require street vendors to be licensed and may impose fines and civil penalties for violating these licensing requirements, cities from Detroit to Houston treat the failure to comply with street vending regulations as a criminal violation. Washington, DC attempted to criminalize street vending in 2014.
These laws have disproportionately negative effects on would-be entrepreneurs who already face barriers to entering the formal economy. Immigrants, those with legal status and those without, individuals returning from incarceration, and individuals with time-consuming childcare and family obligations often look to start microenterprises like street vending to provide for themselves and their families. When these types of businesses are criminalized, vulnerable individuals may be deterred from starting these enterprises or may face severe penalties, including deportation or incarceration, for what would otherwise be a simple licensing violation.
Concerns about public health and safety – particularly when it comes to food – are understandable. The public has a right to know that food, even when bought and consumed on the street, is safe. The California law, however, does not force Angelenos to take health risks with every bite of their al pastor taco. This legislation explicitly permits cities to pass ordinances related to public health and safety. Cities may even have an easier time regulating the safety of food sold by street vendors now that proprietors of these businesses no longer face potential criminal penalties.
Much work remains to understand the extent to which cities and states criminalize street vending and other microenterprises. California has taken an important first step that both protects the health of the public and allows individuals to support themselves and their families. Angelenos who love grabbing a pupusa or a bacon-wrapped hot dog on the go will also be appreciative. By criminalizing microenterprise, cities raise barriers to entry for vulnerable entrepreneurs, unduly burden those entrepreneurs most at risk, and detract from the vibrancy of communities. I hope that California is only the first to reverse this trend.
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.
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?
“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).
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.
“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 laws. Of the initiatives appearing on the November ballot, Proposition 12 is the dirtiest of the dozen. We’re confident that California voters won’t get fooled again and that this fraudulent initiative will be decisively rejected.” HFA
“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
“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
“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.