Food Systems Law

An Introduction for Non-Lawyers

Marne Coit, Theodore A. Feitshans

• Publisher: Routledge
• Year: 2020
• ISBN:
  9780429761287
• Edition: 1
• Topic: Commerce
• Subtopic: Industrie alimentaire

Food law is a rapidly developing area, with interest being driven at the consumer, handler and farm level. This introductory textbook provides an overview of the concepts necessary for an understanding of food law and regulations, providing the non-specialist reader with a more comprehensive understanding of food systems from production to consumption.

Food Systems Law first introduces the US legal system and then moves on to explain the Federal Regulation of Food systems, the Food Safety Modernization Act (FSMA) and the Farm Bill, the single most important piece of legislation which impacts the way in which federal resources are used within the food industry. The following chapters provide concise explanations of key topics including food safety, food labeling, organic certification and food waste, with examples from US law and policy included. Importantly, the book also addresses key topics which overlap with food law, such as environmental, health and agricultural law.

This textbook is geared towards a non-legal audience, particularly students of interdisciplinary food studies and food science who are taking food law courses, as well as those studying agricultural law, food policy and environmental law. It will also be of interest to professionals working in the food industry and those who want to learn more about how food is regulated.

1 Introduction to food systems and food law

Introduction

This chapter provides background and historical information on food systems in the United States. Working definitions of key concepts such as “food systems” and a brief introduction to the concept of food law will be discussed. There is information on the distinction between “advocacy,” “policy” and “law,” as these terms are often (erroneously) used interchangeably. The relationships between the different parts of the law and food systems are non-linear. With the consequence that one part of the law can apply to multiple parts of the food system. A major purpose of this chapter is to provide an overview of how the different components of the law fit together with the different components of food systems.

Food systems

The focus of this book is on food law, and how law and policy impact food systems in the United States. In this context, the term “food systems” refers to local, regional and national systems. The reason that the focus is on food systems, instead of just food, is because a discussion of systems more accurately takes into account the complex nature of the food supply.

There are a number of definitions of food systems. One that encompasses the basic elements is from the Committee on World Food Security, which defines a food system as including “all the stages of keeping us fed: growing, harvesting, packing, processing, transforming, marketing, consuming and disposing of food.”¹ This definition captures the multi-faceted and dynamic nature of food systems. The study of food systems is not simply a matter of looking at a particular crop and seeing how it is grown and then how it reaches the end consumer. By nature, a food system is a complex web of interactions that include everything from production to beyond what happens to a food or food product after use by the end consumer. Food systems are also impacted by external influences that may be directly or even indirectly related to agriculture or food production. Food systems evolve over time and are affected by changing socio-economic conditions, consumer preferences, historical events, changes in transportation and technology, etc. As a reference point, agriculture and food production looked different in 1850 than it did in 1950, and both look different than it does today.

This book examines the laws and regulations that impact food systems. Each part of the food system is impacted by law. It is far from a simple task to break down all of the components of a food system, as it encompasses everything that occurs from the farm to the final consumer to post-consumer. The purpose of this book is to provide the relevant law on some of the most important current topics and trends in food law today.

Just as changing social, economic, technological and historical factors affects food systems, so too do they influence the law. This is true both in terms of how lawmakers make decisions and determine what the law is, and how courts interpret those laws. It is also true in terms of the value that society places on regulating different parts of the food system, and what is found to be acceptable.

In order to better understand how food in the United States is regulated today, it helps to understand the historical context of how food systems have changed and evolved over time. For example, the first laws that were put into place to regulate food safety came about in the early 1900s because of the public response to Upton Sinclair’s book The Jungle, which was about the conditions in the meat packing industry. The book was a catalyst that brought attention to this issue, which in turn influenced public opinion about the meat industry, and ultimately led to pressure on lawmakers in Congress to take action in order to protect the public from harm.

Another example of how food systems have changed over time can be seen in the recent policy debates around the term “milk”: whether it refers to only a substance that comes from a lactating animal, or whether it can be used as a label for a substance that comes from soaking and pressing or blending rice, almonds, cashews, soybeans, etc. This is a relatively new phenomenon, and not something that was being debated in state legislatures, or by the federal government, 30 years ago.

Example 1.1

In 2018 the North Carolina General Assembly passed a law that states that the term “milk” is defined as being the lacteal secretion from hooved animals, such as cattle, sheep, goats, yaks, llamas, moose, and camels. It specifically prohibits the use of the term “milk” to identify plant-based products, and goes on to say that products labeled as such will be deemed to be mislabeled and the products will be embargoed. The stated purpose of this law is to protect the viability of the dairy industry in the state, as well as to ensure that consumers have access to a safe milk supply.

One important caveat to this law is that it does not go into effect until at least 11 other states also pass a similar labeling law. Those states can include any of the following: Alabama, Arkansas, Florida, Georgia, Kentucky, Louisiana, Maryland, Mississippi, Oklahoma, South Carolina, Tennessee, Texas, Virginia and West Virginia.²

History of food and agriculture in the United States

U.S. agriculture is one of many industries that serves as an example for how industrialization revolutionized production, but the modern history of American food and agriculture is indicative of a much more complex story.

At the turn of the 19th century and into its first few decades, innovations and inventions in agriculture were targeted at the automation of farming. From 1800 to around 1830, farmers enjoyed an era of booming turnpike construction and improved communication and transportation. These infrastructure developments enabled more connectivity and commerce among towns and small cities. After the 1803 purchase of the Louisiana Territory, steamboats provided a practical means to transport goods up and down the Mississippi River (what was then called “western trade”), as well as along the East Coast. By this time cotton had replaced tobacco as the top cash crop in the South, and the manufacturing of goods began to take place in shops and factories as opposed to at home. Plows with steel blades, threshing machines, mowing machines and other technological innovations could now simply be purchased by farmers rather than built by them. Major American canals, such as the Erie Canal, allowed farmers to transport goods to inland locations, as well as to ship larger quantities of goods at one time than had been feasible previously. Steamboats also became popular along the Mississippi River and connected people and towns throughout the heartland. By the 1830s, the beginning of the mechanization of agriculture and transportation laid the foundation for the modernization of the U.S. food system.

The development of industrial agriculture coincided with the evolution of systems for food preservation. By the end of the first few decades of the 19th century, the infancy of the U.S. canning industry had been established. Prior to canning, salting food was a primary method of preservation, especially for meat. Salting, and also applying various spices, dehydrated food products and rendered them less susceptible to be infected by bacteria. After the turn of the 20th century, the advent of refrigeration and the subsequent development of in-home freezing birthed new and more effective methods of food preservation.³

From 1830 to 1850, land speculation boomed as improving roads and the new and expanding railroad allowed people to move further west in a much shorter time. With more farmers emerging in the west, eastern farmers were now forced into diversifying their crop production in order to keep customers in nearby urban centers.

During the same time period, the U.S. Patent Office began collecting agricultural information and distributing seeds to farmers in 1836. During the 1840s, communications improved drastically with the invention of the telegraph. Manufacturing growth brought several labor saving devices (like tools and machines using horsepower) to the farm home. The development of balloon-frame construction improved rural housing. The first poultry exhibition in the United States took place in 1849, the same year that mixed chemical fertilizers (fertilizers with more than one nutrient present) began to be sold commercially.

In the late 1860s, cattle ranching boomed in the Great Plains – which witnessed a massive influx of farmers as transportation continued to improve – and the first transcontinental railroad (the Union Pacific) was completed. Additionally, as the free land supply decreased through the purchase of public land (claimed by the U.S. government through expansion) by American citizens, the Homestead Act of 1862 granted 160 acres of land to settlers who could demonstrate that they had worked the land for at least five years to encourage settlement in the west and Great Plains.⁴

The latter few decades of the 19th century witnessed booming agriculture alongside the consolidation of businesses. Refrigerated railroad cars were introduced in the 1870s, drastically broadening the national market for fresh produce, as well as increasing regional specialization in farm production. Barbed wire, patented in 1874, made ranching more efficient. The 1880s saw increases in Great Plain farm settlements along with the continued proliferation of mechanized equipment, gadgets and tools. The industrialization of agriculture increased the reach of food and food products produced on family farms, and labor costs continued to drop as a result of both mechanization of labor and influxes of migrant or immigrant workers. By the turn of the 20th century, major railroads were consolidating and George B. Selden had been issued a patent for the automobile that had major ramifications on agriculture and food systems.⁵

Agriculture in the United States in the 20th century can be described as a time of drastically declining numbers of farms. Food prices for consumers fell due to increased supply. At the same time, the government played an increasing role as a result of the Great Depression.

From 1930 to 2000, U.S. agricultural outputs like goods, services and products increased approximately fourfold, while USDA’s index or aggregate inputs remained roughly unchanged. Inputs include a variety of factors including land, capital, and materials like seeds, fertilizers, feed and labor. This essentially means that, while inputs remained roughly stagnant, output increased about 2% annually. This consistent increase survived major slowdowns experienced in most other economic sectors in the last quarter of the 20th century. Moreover, the increase in productivity persisted despite the consistent fall in food prices received by farmers and real food prices paid by consumers.⁶ However, the steady decrease in food prices has not been entirely consistent. Three periods of major price spikes have occurred in the 20th century: 1917–1919, 1943–1948 and 1973–1974. In each case, rising prices – and therefore rising revenues – incentivized farmers to invest and take on debt at an unsustainable rate. The most recent spike period led to what is referred to as the financial farm crisis of the 1980s.⁷

In evaluating the increasing role of government since the turn of the 20th century, the Great Depression precipitated a variety of government responses to the overwhelming number of ill-fated farms, mainly in the form of commodity support programs. Prior to the Depression, government “intervention” in agriculture mainly consisted of investment in agricultural education, irrigation, utilities and rural roads. Beginning in the Progressive Era and escalating...