Friday, November 8, 2013

Announcing the Food Law Profs reading group!

We're starting a food law professors reading group!  The idea is to focus on books outside the legal arena which may nevertheless inform our views of the food system and to provide an arena for sharing our individual approaches to legal scholarship in the food systems area. 

Our first book will be Weighing In by Julie Guthman. Several of us will be lead discussants, who will present their own thoughts and questions as individual blog posts.

The rest of us (and any of you readers!) will then discuss the books within the comment sections.  We anticipate starting our discussion on January 10, 2014 and to continue for about a week and a half afterwards.

Happy reading!

Special thanks to Professor Steph Tai for getting this initiative organized.  Steph is an associate professor at the University of Wisconsin Law School, and this year is serving as the 2013-14 Supreme Court Fellow assigned to the Federal Judicial Center.

Saturday, July 13, 2013

New Food Safety Chapters

Food Law Prof Neal D. Fortin published two chapters in two different books this spring. Both relate to the complex issue of the regulation of imported food. Although I do not have links, citations to the books are provided.

Neal Fortin, Institute for Food Laws & Regulations, Michigan State University, Michigan State University College of Law

Improving U.S. Regulation of Imported Foods, Improving Import Food Safety, pp. 89-109 (Wiley-Blackwell 2013)    
This chapter provides an overview of the amalgamation of disparate elements that make up the food import regulatory system in the United States. This patchwork collection of authorities provides a useful laboratory to observe the effectiveness of the different regulatory approaches. The author discusses how this knowledge could best be used to create a more effective, prevention-based import regulatory system.

Neal D. Fortin, Institute for Food Laws & Regulations, Michigan State University, Michigan State University College of Law

HACCP and Other Regulatory Approaches to Prevention of Foodborne Diseases, Foodborne Infections and Intoxications, Chapter 38, 4 Ed. (Elsevier 2013)
Science-based, preventative regulation was slow in coming to food law. It took more than half a century from the development of HACCP — Hazard Analysis and Critical Control Point — in the 1950s, for Congress to direct the Food and Drug Administration (FDA) to apply comprehensive, science-based, preventive controls across the food supply. Full implementation will likely take several years, but the FDA Food Safety Modernization Act (FSMA) signed into law on January 4, 2011, provides FDA with a mandate to shift the focus of the FDA from primarily reacting to food safety problems to prevention. 
FSMA requires that all FDA regulated food companies implement a written hazard analysis and risk-based preventive control plan unless specifically exempt. In addition, FSMA directs FDA to work with the U.S. Department of Agriculture (USDA) to propose “science-based minimum standards for the safe production and harvesting” of fruits and vegetables that are raw agricultural commodities for which FDA has determined such standards will minimize the risk of “serious adverse health consequences". The law also provides FDA with new enforcement authorities designed to achieve higher rates of compliance with prevention and risk-based food safety standards. 
This chapter summarizes the evolution of science-based risk control systems into food regulation in the United States beginning with the development of HACCP and finishing with enactment the Food Safety Modernization Act in 2011. Key points of the HACCP regulation for seafood, meats and poultry, juices, and FSMA risk-control plans are covered. Finally, the chapter provides advice on compliance with these control systems. 

The Science, Law and Policy of Neonicotinoids and Bees: A New Test Case for the Precautionary Principle

Another article that is on my summer reading list is the very timely article by Food Law Prof Alberto Alemanno discussing the precautionary principle and the regulation of neonicotinoids.

Alberto Alemanno, HEC Paris - Law Department
The Science, Law and Policy of Neonicotinoids and Bees: A New Test Case for the Precautionary Principle,  European Journal of Risk Regulation, 2/2013

Once more, while facing an analogous risk phenomenon affecting their predominantly homogeneous societal and economic interests, the US and EU authorities seem to adopt diverging stances. Amid the publication of several new studies and a set of EFSA scientific opinions linking the use of the world’s most widely used pesticides to bee decline, the European Union is poised to adopt a temporary ban on their use. While the Commission does not expressly rely on it, its restrictive decision is clearly based on the controversial precautionary principle. Yet, as it is discussed in this article, the conformity of this decision with the requirements that determine the legal invocation of this principle remains doubtful.  
This article proceeds as follow. Part II first introduces the reader to the main features and usages of these controversial insecticides, called neonicotinoids. It then discusses how concerns have arisen around their use and analyses the available science exploring their impact on the sudden decline of bee colonies. Part III identifies and comments the restrictive actions currently undertaken across the European Union both at the national and EU level. Part IV in turn provides an overview of the scientific and regulatory approaches adopted by US authorities vis-à-vis neonicotinoids. By building upon the previous two sections, Part V contrasts the EU scientific and regulatory approach towards the use of these pesticides with that adopted by the US authorities. It then attempts at illustrating the factors explaining the current regulatory divergence across the Atlantic upon the issue of neonicotinoids. In order to provide a legal analysis of the EU restrictive stance over these pesticides, Part VI measures how the EU controversial restrictive measures score under both EU and WTO law. Lastly, some final conclusions provide some recommendations on how to render less controversial the invocation of the precautionary principle in the EU and beyond.

Preempting Humanity: Why National Meat Ass'n v. Harris Answered the Wrong Question

I also recommend the following thought-provoking article by Food Law Prof Pamela Vesiland. I am pleased to note that Pamela has agreed to stay with us for another year at the University of Arkansas School of Law, serving as a Visiting Assistant Professor. Pamela earned her LL.M. degree in Agricultural & Food Law in May.

Pamela Vesiland, Preempting Humanity: Why National Meat Ass'n v. Harris Answered the Wrong Question, 65 Me. L. Rev. 685 (2013).
National Meat Ass’n v. Harris is poised to become a significant legal barrier to industrial animal agriculture reform. Although Congress has historically refrained from setting even minimal protections for animals raised in industrial operations, the Supreme Court’s 2012 opinion laid the foundation for expanding Congress’s Commerce Clause authority to set national limits to state animal welfare standards. National Meat asked whether USDA slaughterhouse and packing plant regulations under the Federal Meat Inspection Act preempted California’s newly-raised standards for handling disabled (or “downed”) livestock. In answering this question, the Court misconstrued federal legislative and regulatory history and improperly conflated the state’s animal cruelty regulations with its food safety regulations and the USDA’s food safety regulations. Taking the resulting opinion to its logical conclusion, Congress and the USDA have unprecedented supremacy to limit state farmed animal welfare and anti-cruelty standards. This unfortunate consequence might have been avoided had National Meat asked a better question: Whether California’s welfare standards for downed livestock violated the “dormant” Commerce Clause. Mounting tensions between meat and dairy corporations and organizations representing animal welfare, food safety, and consumer protection interests will eventually force congressional action. Unless its preemptive authority in the area of farmed animal welfare is correctly defined, Congress will continue to impose artificial limits on state police authority to define what is “humane.”

FDA and the Rise of the Empowered Consumer

I 'd like to highlight some of the articles that our Food Law Professors group are publishing. As member Alberto Alemanno is the editor of the LSN, Food Law & Policy eJournal, his listings are a good way to start. I noticed Lewis Grossman's recent article, described and linked below, and it is now on my "must read list" for the summer.

Note:  it would be wonderful if listserv members would either post themselves or send me titles and abstracts of your recent work for posting. Otherwise, it will just be the articles that I happen across and recommend.

FDA and the Rise of the Empowered Consumer
By Lewis A. Grossman, American University

Presented to the Harvard Law School Petrie Flom Health Law Center Annual Conference: FDA in the 21st Century
This paper traces the historical evolution of a view of consumers as informed, rational, and rights-bearing decision makers, and the corresponding diminution of FDA’s role as a paternalistic gatekeeper acting in conjunction with medical and scientific experts to prevent products and information from reaching the public.  
The relationship between consumers and FDA-regulated products has changed dramatically since the mid-1960s. A half century ago, FDA treated consumers as passive and ignorant. Accordingly, the agency gave them relatively little latitude to make their own choices among products and denied them much of the information they could have used to inform such choices. By comparison, today’s consumers of food and drugs are much more empowered to make their own, unmediated choices among a wider variety of products, guided by a deluge of labeling and advertising information. 
The paper examines this phenomenon against a background of three societal and cultural trends during the past half century: Americans’ declining trust in major institutions, the “rights revolution,” and the dramatic expansion of health care information accessible to consumers. It then examines a variety of specific regulatory developments during this period of change. In a section on food, the paper considers reforms in standards of identity and nutrition labeling, the rise of health claims as facilitated by the First Amendment, and various popular movements for freedom of choice with respect to food ingredients and dietary supplements. The paper then turns to drug regulation, examining the rise of patient labeling and direct-to-consumer advertising of prescription drugs, the tidal wave of “switches” from prescription to over-the-counter status, and the birth of social movements seeking to influence FDA drug approval policy. The paper concludes by speculating on whether this new model of consumer is a permanent one.

Monday, June 17, 2013

Yale Food Symposium-Yale University, October 18-19, 2013

Thanks to Melissa Mortazavi, Visiting Assistant Professor of Law at Brooklyn Law School for passing along the information below.

Yale Food Systems Symposium
Yale University, October 18-19, 2013

The parallel forces of urbanization and globalization are transforming our planet. They are bringing unprecedented changes to food production and distribution, livelihoods, communities, and the environment. While the pace of this transformation presents significant challenges to the creation of just and sustainable food systems, it may also create powerful opportunities: to support ecological stewardship, promote economic sustainability, cultivate human health, and ensure social justice. Currently, divergent food system paradigms compete for validity. How can these diverse perspectives be negotiated? How can we synchronize the efforts of research, policy, and practice?
The Yale Food Systems Symposium will bring emerging and established scholars and practitioners to work together in action-oriented sessions that address the complex ecological and socio-economic processes of food production, consumption, climate change and rapid urbanization. A variety of session formats will encourage transdisciplinary dialogue and an active exchange of ideas. We seek a diversity of proposal formats: panels, working groups, roundtables, poster presentations, and papers. We welcome perspectives from the natural and social sciences, from applied disciplines, and from community practitioners. Proposals that bring scholars and practitioners together, work across disciplines, or partner emerging and established researchers are especially encouraged.

Topic areas include, but are not limited to:

Climate change and the food system
Urbanization, land use change, and food systems planning
Politics, policies, and governance across scales
Agricultural biodiversity and issues of genetic property
Sustainable intensification, multi-functional agriculture
Urban-rural linkages
Public and market-based approaches to regulating the food system
Alternative food networks
The right to food, food justice, and food sovereignty movements
Industrial ecology approaches to food systems analysis
Sustainable diets and assessing and forecasting nutrition trends
Sustainable supply chains
University-community partnerships
Research methods, participatory practice, and frameworks for collaboration

Submission form and deadlines:

Deadline for submission is July 1, 2013. Abstracts & workshop proposals should be 150-200 words and include a title and keywords. Please submit online using our abstract submission form. Accepted proposals will be notified by August 15, 2013.

Questions about proposal submission and registration may be directed to

Thursday, June 13, 2013

Maine Law Review Food System Conference: Articles Available

Announcement from the Maine Law Review (edited for this post):

On February 23, 2013, the Maine Law Review organized a day-long conference in Portland, Maine devoted to discussing emerging issues in food law and policy.  This conference, Colloquium:  Local Food, Global Food:  Do We Have What It Takes to Reinvent the U.S. Food System? brought together more than a dozen legal scholars from around the country, including some from our Food Law Professors network. The audience was comprised of members of the legal community, policymakers, farmers, and community organizers.  The conference became a forum for exploring the many ways in which people are challenging conventional thinking about U.S. food systems, and the hurdles they face in so doing.

To continue to facilitate the exchange of ideas about these important and relevant issues, the Maine Law Review has devoted much of Volume 65:2 to legal scholarship on food law and policy. The spring volume, which includes sixteen essays on a diverse range of food law and policy topics, is now published and available online on the Maine Law Review website.

 To purchase a paper copy, please e-mail

Maine Law Review
University of Maine School of Law
246 Deering Avenue
Portland, ME 04102

Friday, May 31, 2013

Food Law Clinical Work at Stanford

A while back, we put out a call for information about teaching experiences in Food Law & Policy classes.  Professor Jay Mitchell at Stanford responded with some information about the food law work he is doing through the Organization and Transactions Clinic at Stanford.  The clinic that he runs represents a number of organizations active in sustainable agriculture, small-scale farming, food security, and food system reform.  Jay provided a one-page description of the clinic, the work it does, and a summary of recent "food and ag" projects.

A couple years ago, Jay published an article in the Journal of Food Law and Policy, Getting in the Field, about why ag clients are great project sources for clinics and other law school experiential education programs.  Helpful and inspiring article -  thanks, Jay.

USDA ERS Report on Use of Nutrition & Health Claims (1989-2010)

I just came across an interesting report that the USDA ERS issued in February 2013, Introduction of New Products With Voluntary Health- and Nutrition-Related Claims (1989-2010)It reviews the use of health and nutrition related claims on food packaging over the years covered, noting trends.  For example, it notes that that food companies made these types of claims on 43.1 percent of new products introduced in 2010.  The report tracks health- and nutrition-related claims displayed on new products from 1989 to 2010 and delineates the claims by product category and type of claim. It also attempts to evaluate sales and average nutrient content of all new food and beverage products carrying at least 1 of the top 10 health- and nutrition-related claims from 2010.  It's available in a free download from the publication's USDA ERS page.

Thursday, February 28, 2013

A Place at the Table

On March 1, A Place at the Table, a powerful new documentary will be released in select theaters and for streaming via iTunes and On Demand.
Fifty million people in the U.S.—one in four children—don’t know where their next meal is coming from. Directors Kristi Jacobson and Lori Silverbush examine the issue of hunger in America through the lens of three people struggling with food insecurity: Barbie, a single Philadelphia mother who grew up in poverty and is trying to provide a better life for her two kids; Rosie, a Colorado fifth-grader who often has to depend on friends and neighbors to feed her and has trouble concentrating in school; and Tremonica, a Mississippi second-grader whose asthma and health issues are exacerbated by the largely empty calories her hardworking mother can afford.
Ultimately, A Place at the Table shows us how hunger poses serious economic, social and cultural implications for our nation, and that it could be solved once and for all, if the American public decides — as they have in the past — that making healthy food available and affordable is in the best interest of us all. 

Sunday, February 24, 2013

Horsemeat Scandal Turns into a Food Safety Crisis

From Alberto Alemanno's blog, February 20, 2013 12:00 AM
Although the current horsemeat scandal has been depicted as an instance of fraud and mislabeling generated by a single source, it is progressively escalating into a broader food safety crisis that reveals some flaws in our EU food safety system. Yet relying on country-of-origin-labelling – as many have invoked it – to tackle misleading labeling of food ingredients might be the wrong answer to the good question raised by this unfortunate story. . . . 
Alberto reviews facts and the timeline of events in the scandal and then provides an analysis that identifies the flaws of the current EU regulatory framework and provides some recommendations.

Please link directly to Alberto's blog for the rest of the article and a number of interesting comments on the scandal, Horsemeat Scandal Turns into a Food Safety Crisis.

Resources: Antibiotic Use in Livestock and Resistance in Meat

I just posted on Agricultural Law on this topic and you may find the resources I relied on helpful. Much of the following is excerpted from my post:

 The FDA recently published its 2011 Summary Report on Antimicrobials Sold or Distributed for Use in Food-Producing Animals.  This report is required under the Animal Drug User Fee Amendments, codified in the Federal Food, Drug & Cosmetic Act at 21 U.S.C. § 360b. Sponsors of applications for new animal drugs that contain an active antimicrobial ingredient are required report to the FDA each year, providing data on the amount of sold or distributed for use in food-producing animals. The law also now requires that FDA make the information compiled public.

The National Antimicrobial Resistance Monitoring System (NARMS) also issued its 2011 report this month, reporting on the antimicrobial resistant bacteria it found on meat products. NARMS is a joint project of the FDA, the CDC and 11 state public health laboratories, and it tests retail meat products for the presence of antimicrobial resistant strains of bacteria.

Few major media outlets covered the release of these reports.  Fortunately, some food safety experts provided excellent commentary to explain the reports. Here are some important links.
Some summary information:

Overall antimicrobial drug use in livestock production is up about 2.3%.  In 2011, 29.9 million pounds of antimicrobial drugs were used in livestock production. Contrast this with the 7.7 million pounds of antimicrobial drugs used for humans during the same time period.

Not all of the drugs used in livestock production are used for human treatment. The 2011 data shows a welcome decline in the use of Sulfa drugs, often used in humans. In contrast, Ionophores, which are not currently used to treat humans, showed an increase in animal use, largely in poultry production.

However, Dr. Wallinga noted that:
Penicillins and tetracyclines sold for animal use increased for the second year in a row. From 11.5 million pounds in 2009, sales rose to 14.4 million pounds in 2011. The two classes of antibiotics remain the most commonly used antibiotics in livestock and poultry, despite their obvious import for treating infections in people as well. In 2011, animal sales accounted for 38 percent of total penicillin sales and 98 percent of total tetracycline sales, including in humans.
One of the concerns about the overuse of antibiotics in livestock production is that we are encouraging the development of antibiotic resistant strains of dangerous bacteria. This is where the study of antimicrobial resistance in retail meat is important. Summarizing the NARMS report, Helena Bottemiller noted that:
Drug resistance among Salmonella isolates increased all around. In 2010, the percentage of isolates that showed drug resistance was about 50 percent, while in 2011 it had increased to nearly 55 percent. 
Resistance to cephalosporins, a class of drugs the FDA restricted in early 2012, increased between 2002 and 2011. Third generation cephalosporin resistance increased, in chicken from 10 to 33 percent and in ground turkey from 8 to 22 percent. . . .
The NARMS data also indicate that there was a significant increase in ampicillin resistance over the last decade among retail chicken, from nearly 17 percent to around 40 percent, and in ground turkey isolates from 16 percent to 58 percent. Ampicillin can be used in human medicine to treat infections, including Salmonella. 
More than 27 percent of all chicken isolates showed resistance to five or more classes of antibiotics and in ground turkey isolates researchers found 10 different serotypes with resistance to six or more classes of antibiotics.
The Animal Health Institute, the lobbying organization for the veterinary pharmaceutical companies has not commented on the recent reports, but has consistently maintained that "[a]nimal antibiotics make our food supply safer and people healthier. Antibiotics are a critical tool to prevent, control and treat disease in animals. In doing so, they also reduce the chance of bacterial transmission from animals to humans."  While antibiotics are clearly needed in animal production for the treatment of disease, the data indicates that their continual use in feed as a disease prevention method and to promote rapid growth is problematic.

Representative Louise Slaughter, a long time proponent of legislation to reduce antibiotic use in livestock production addressed the report through a press release titled, We Are Standing on the Brink of a Public Health Catastrophe.

Last October, IATP published a bibliography of studies, No Time to Lose: 147 Studies Supporting Public Health Action to Reduce Antibiotic Overuse in Food Animals.  

Susan Schneider

Tuesday, February 12, 2013

New SSRN Food Law & Policy Network

We are pleased to announce a new Legal Scholarship Network (LSN) Subject Matter eJournal - Food Law & Policy eJournal.

View Papers:

Editor: Alberto Alemanno, Associate Professor of Law, HEC Paris - Law Department

Description: This eJournal distributes working and accepted paper abstracts with an aim to promote and bring together the rapidly emerging scholarship focusing on the regulation of food. At a time in which this area of law is progressively acquiring some autonomy vis-a-vis other areas of law, such as Administrative Law, and - given its international vocation - International Trade and International Health law, this eJournal nurtures the ambition to provide a one-stop shop for virtually all food-related papers published today at the global level. While the focus of this eJournal is predominantly the regulation of food products, their production methods and their marketing opportunities, it also extends to: agriculture and food law, human rights and food law (including the right to food and labor issues), antitrust and food law, international trade of food, food quality as well as food information (e.g. labeling schemes). Issues related to intellectual property aspects of food (e.g. geographical indications) are also pertinent to this Journal. Given the recent attention by food law regimes to the nutritional aspects of food, this eJournal also covers the regulation of nutritional and health claims, food reformulation and other nutritional-related measures such as fiscal measures. It equally covers the regulation of food and beverages. As witnessed by its advisory board, the scope of this eJournal is genuinely global and as such it reflects the increasingly globalized food supply chain and the broader discourse of food studies. Due to the inherently interdisciplinary and international nature of food regulation, this eJournal will also host papers coming not only from other disciplines than law but also from all over the world.

Sunday, February 3, 2013

Welcome to the Food Law Professors blog

Jim Chen and I set up this blog to provide an additional way for our group -  law professors who teach, write, research, and otherwise explore areas of food law and policy -   to to communicate. Information that is posted here will be readily available to us, without the need for scrolling back through emails.

If you would like to post on this blog, you can send your posts to me for now. However, if you would like to post directly, I am happy to add you.

Susan (