Melanie Pugh

I want to fix food.

Right now, there is no way for me to fix food with my law degree. Most food interests are funneled to environmental law or legal aid organizations. Environmental lawyers fight agencies, and legal aid lawyers (on behalf of farm workers) fight farmers. A food fix will not happen without agencies and farmers. So, the food fix will not come from the environmental or legal aid lawyers.

The need couldn’t be greater. The food system stands on the back of our broken immigration system, exploiting the most vulnerable in this country and around the world—a twenty-first century, near-slavery system that Americans tolerate. Fresh foods pose the risk of sickening consumers with microbial contamination, and non-fresh foods make bodies sluggish. Agencies are captured, complacent, and overworked. Farmers are both idealized and vilified, and non-corporate farmers are increasingly rare. Nourishing farmland is more profitable as development, and droughts strain already scarce water sources.

Food will not be fixed without looking at the problem from a “system” viewpoint. This is incompatible with normal legal practices, which narrows issues to pinpoint precision. Lawyers are expected to be experts in a narrow field, risking ethical considerations if one takes cases outside of their area of expertise. But this practice of “narrowing” is exactly what got the food system to the point that it is at now. We didn’t consider several steps ahead, or look at impacted stakeholders, and have a system where both the consumption are production sides of the food chain are plagued.

The non-legal solutions have not worked. Food policy folks have been pushing the idea that redirecting consumer demand toward “ethical” food will create a better food system in our capitalist economy. This effort has focused on product labels, resulting in confusing and unenforced product claims as a justification for higher prices. True, a food system reform fix will necessarily result in higher food prices and those companies currently implementing good production practices have to charge higher prices, resulting in a need to convey the consumer benefits through marketing. However, other companies that are not fully committed to high labor and environmental standards have caught on that ethical labels and marketing will increase profits. This market approach has, at best, created a market solution: it has created an alternative product that is available and affordable to some. This leaves the policy to be steered towards the issues most relevant to the wealthy. At worst, it has created an information system that ranges from simple exploitation of consumers’ outrage to fraud. It has not fixed food.

Asymmetrical information may not be the reason that food labels are ineffective. Calorie information, for example, is almost ubiquitously available, but that has not stopped obesity from rising in America. There are issues of access to healthy foods, knowledge of how to prepare them, and having time to do so. Thus, information in itself is not always the answer. Information does not equal education. These are systemic issues that need systemic reforms.

I think the idea that leveraging consumer demand toward “ethical” products has stalled actual progress for food system reform. It has misdirected efforts away from direct legislative, regulatory, and litigation actions. It has confused consumers and undermined the integrity of the food label. Putting reform solely in the hands of consumers (especially when only a small portion can afford to access the policy steering labels) may not be the best way forward considering that the interests at stake include public health, health care costs, the environment, and labor and immigration.

So, it is time to regroup and look at what the food reform movement and labels on consumer products are trying to achieve. Are they trying to achieve fair pay for workers? Access food that nourishes bodies instead preserving them like Twinkies? Access land that is free of toxins and properly zoned to grow said food? That’s the work of lawyers. If those issues are what we are really trying to achieve, then we will need more consumer information and food costs will rise. So, in that sense, food labels and their effects are getting us a small way there. But to fully achieve these goals, other economic and policy factors must come into play besides consumer demand. It is a system, and consumers cannot do it alone. There is a great need for lawyers to utilize their policy and litigation tools in the fight for a better food system.

The need for lawyers is apparent to those who speak to small farmers, field workers, consumers eating bad food that makes them sick, and the businesses trying sell good food. The acceptance of “food law” as a legal specialty can start at law schools. Food law and policy courses are popping up around the country. Much like environmental law, which surveys statutory and regulatory schemes, food law can survey the all of the laws that food encounters along its lifespan—from agricultural production to consumer products. Students can activate their social networks as student organization leaders. They bring practitioners into school, energizing both attorneys and students alike, and debate current issues. Student organizations are also well known for doing public service projects and pro bono work. Practicing attorneys can incorporate food work into their practice by considering the food system as a whole when counseling clients, and selecting food law cases for their pro bono work.

Most importantly, food law needs a comprehensive public interest legal organization. Just as environmental law has Earthjustice and the Natural Resource Defense Council (NRDC), food needs an organization that houses both policy and litigation, and that is not profit driven. A food law nonprofit could have teams of issue groups, such as farmland preservation, antitrust, pesticides, farmworker wages, and food borne illness. This will allow coordination. By aligning priorities under one organization, different teams in the food fight will not inadvertently sabotage issues that another team is fighting to prioritize.

There are a few developments that, I think, would be critical to both advancing a better food system and getting food law established in jurisprudence. First, food lawyers needs to take antitrust law off the shelf. Right now the major trend is to mobilize consumers to affect the production side of the food chain, such as the consumer demand issue discussed above as well as consumer protection and product liability litigation. Lawyers have a tool to maintain competition so that no single firm or group’s collusive efforts harm consumers, at least in terms of protecting prices. The food industry is complex in its ownership and contract structures. The food industry attempts to bypass protections by systems of franchising and contracting. By contracting with producers and farmers, industry firms are able to make policy and business decisions while attempting to avoid liability and antitrust enforcement. Antitrust has been getting recent attention because of the book, Foodopoly by Wenonah Hauter. With the qualifiers that my antitrust experience is limited to one law school course, and I have not read Hauter’s book, I will say that I don’t think that antitrust is the great capitalism-equalizer that many people think that it is. It seeks to stabilize consumer prices— not to vindicate social values that are trampled by “big businesses.” I think there is some room to help break up the power structure that dominates food. I will explore antitrust, exclusively, in a later blog post.

Second, lawyers need to counsel small farm operations. Small and independent farmers and food producers need assistance with regulatory compliance, especially after the Food and Drug Administration’s Produce Safety and Preventive Controls Rules, promulgated under the Food Safety Modernization Act, go into effect. These rules will require farmers and producers to test equipment and other sources of microbial contamination, and maintain records of these tests. There are a number of alternatives or exemptions in the laws that should be explained to farmers so they don’t spend more time and money than necessary on these requirements. Further, independent famers and producers need counselors when entering into contracts with bigger food companies, whether they are entering franchise agreement or supplying products, smaller players need adequate counseling to secure the best bargain they can get.

Finally, consumer class actions are a necessary tool. My discussion above pointing to some of the weaknesses in relying on consumers is not to say that consumers are not the lynchpin of a better food system. They are. But leveraging consumer demand is not how they are most effective. Litigation is a more direct and impactful weapon against potential wrongdoers. Be it false advertising, unfair competition, or product liability, impact litigation can change the law, provide meaningful remedies to consumers, and impact the pocketbooks (and therefore the decisions) of the industry. I hope food impact litigation evolves out of traditional torts, which necessitates some statutory or regulatory protections. I want to find a way to say that consumers did not think they were buying lethargy, diabetes, and a gut. I want a lawsuit that recognizes that the true nature of modern food has negative health outcomes because it is loaded with salt, sugars, or pesticides, and that companies are not open about the health effects of these ingredients when consumed in the quantity offered in the product. Too often consumers are blamed for overeating, without acknowledging that processed food is designed to be addictive. I want a lawsuit that does not shame eaters (i.e. everyone) for eating.

When I say I want to fix food, people should immediately say, “get a lawyer.” The food system is unjust from origin to end. The legal community needs to adapt and recognize the new field in town. To start, the legal community can adopt a uniform definition of food law: “Food law is a term that refers to all of the laws that food encounters along its lifespan—from agricultural production to consumer products.” It will also take pioneers willing to work hard while being underpaid in service to this goal. Firms and governments need to fund fellows. Fellowships are the only way to jump start action and counseling efforts immediately in communities that desperately need it. It will also take some landmark cases and a court willing to protect the interests of eaters, understanding that eating is a human instinct that is being unjustly manipulated for profit. It was visionary cases and judges that spurred environmental law as well as the public interest organizations that continue to protect the environment’s interests. Food, too, needs a good lawyer.

ABOUT THE AUTHOR:

Melanie Pugh will soon graduate from Seattle University School of Law where she co-founded the Food Law Society. Melanie has worked on food law issues as a summer fellow at the Harvard Food Law and Policy Clinic in Boston, MA, an intern at Earthjustice in Seattle, WA, and a Research Assistant researching Chinese food and land use policies. You can find her trying to limit her opinions on food law to 140 characters or less on Twitter, @pughmelanie.