Volume 2014, No. 2

Symposium Issue — Safety and Sustainability in the Era of Food Systems: Reaching a More Integrated Approach

PDF link The Specter of Productivism and Food Democracy

By Olivier De Schutter

The productivist paradigm we have inherited from fifty years ago was shaped to respond to a very different set of problems than those we are facing today. The resulting dominant food system in rich countries succeeds in doing one big thing: it is well equipped to produce large volumes of commodities for the food-processing industry, which in turn does reasonably well at ensuring a relatively stable availability of cheap calories to the populations. But this has come with huge costs— externalities that have been borne by the collectivity rather than accounted for in the price of food.

Diets relying on processed foods have caused obesity and ill-health. The food systems have developed a toxic addiction to fossil energies and have caused ecological damage on a large scale most notably through their significant contribution to climate change. They have rewarded economies of scale and prioritized efficiency, leading to the disappearance of a large number of small farms. And they have led to considerable imbalances on global markets, increasing the reliance of low-income countries on food imports—a paradox of course, because these countries are mostly agriculture based and were, until thirty years ago, able to satisfy their own needs.

PDF link An Agricultural Law Jeremiad: The Harvest Is Past, The Summer Is Ended, and Seed Is Not Saved

By James Ming Chen

True to the “rhetorical formula” drawn by Puritan orators from the Hebrew prophets Jeremiah and Isaiah, this Article will deliver a jeremiad, “recalling the courage and piety of the founders, lamenting recent and present ills, and crying out for a return to the original conduct and zeal.”

Part I surveys the law on the uses of seed, from planting for nonreproductive use to reverse-engineering and overt sales of patented seed. The Supreme Court’s 2013 decision in Bowman v. Monsanto Co. completes a cycle that began with the United States’ adoption of the international framework for protecting new plant varieties. In a practical if not legal sense, seed saving has exhausted all avenues of recourse. Part II places the practice of seed saving within its proper economic context. Seed saving is merely one of many traditional practices that contemporary agriculture has eroded. Seed saving, however, poses a uniquely powerful threat to the suppliers of agricultural inputs and to innovation within agribusiness. It has no place in a framework for agricultural policy based on the progress of science and the useful arts. Part III concludes that the decades-long obsession with seed saving has diverted legal attention from genuine problems arising from the intensive use of biotechnology in contemporary agriculture.

PDF link The Dominion of Agricultural Sustainability: Invisible Farm Laborers

By Guadalupe T. Luna

This Article asks whether integrated sustainability is possible without deliberation on the causal links between the status and working conditions of hired farm laborers and the food production system. While farmworkers might not appear related to integrated sustainability, agricultural economists, the United States Department of Agriculture (USDA), and others recognize the unique importance of farm laborers to food production. From an economic-value perspective, without farmworkers, crops remain in fields, guaranteeing economic hardship for growers, producers, and agricultural economies.

In contrast to the limiting economic-value perspectives, this Article asserts that integrated sustainability approaches to the nation’s food systems are stymied without consideration of the labor workforce. It proposes that relegating farmworkers to invisible roles foregoes opportunities to improve food systems and systemically repeats the cycle of harm that farmworkers and other agricultural laborers endure — in essence, duplicating the pattern of financially empowering owner-operators while simultaneously disempowering the workers who are primarily impoverished.

PDF link Oversight in Private Food Safety Auditing: Addressing Auditor Conflict of Interest

By Timothy D. Lytton & Lesley K. McAllister

Private auditing is a significant component of food safety regulation. Typically, manufacturers, retail sellers, and food-service operators require their suppliers to obtain food safety certification from a private third-party auditor paid by the supplier. Auditors’ financial interest in acquiring accounts from suppliers who want the cheapest certification that they can obtain gives auditors incentive to reduce the rigor of audits. This constitutes a conflict of interest between the auditor’s private financial interest and its professional obligation to protect the public from food safety risks. Audit industry insiders and outside observers are well aware of this problem, and various institutional actors—both public and private—have developed oversight mechanisms to address it.

We analyze the nature and sources of this conflict of interest in food safety auditing, efforts to prevent it, and responses when it occurs. Our focus is on institutional design—organizational structures, administrative routines, and professional norms. Part I of the Article describes how conflicts of interest lead some auditors to be less probing in their inspection of suppliers’ operations and to skew their risk evaluations in favor of suppliers’ desire for cheap certification. Part II of the Article surveys the different oversight mechanisms currently in place or under development that aim to counteract auditors’ incentive to reduce the rigor of audits.

PDF link Short Ends of the Stick: The Plight of Growers and Consumers in Concentrated Agricultural Supply Chains

By Diana L. Moss & C. Robert Taylor

Competition in U.S. agricultural markets has been shaped and reshaped over the course of decades by a number of factors. These include long-standing statutory exemptions from the U.S. antitrust laws for some forms of agricultural business organizations, changes in regulation, advances in technology, the rise of intellectual property protection, and globalization. More recent changes, however, have fundamentally altered the landscapes of domestic and global agricultural markets. This has been driven largely by horizontal and vertical consolidation, which has created tight oligopolies and by the emergence of powerful players at critical stages in increasingly complex agricultural supply chains.

This Article attempts to lend some order to what is likely one of the most troubling phases in U.S. agricultural history—namely the squeezing of the ends of the supply chain through the exercise of market power in the upstream and midstream segments. It proceeds in six sections.Part I examines characteristics of agricultural supply chains and describes growing concentration at the input, midstream processing and food manufacturing, and downstream retail levels. Part II analyzes horizontal and vertical integration in supply chains, including efficiency motivations and strategic competitive incentives. The implications of integration for producers and consumers are examined further in Parts III and IV. Part V takes up key challenges for antitrust enforcement that result from concentrated agricultural supply chains and provides important examples from fertilizer and transgenic seed. The final Part concludes with observations and policy recommendations.

PDF link Unpermitted Urban Agriculture: Transgressive Actions, Changing Norms, and the Local Food Movement

By Sarah Schindler

Roberta keeps four chickens in her backyard. Bob snuck onto the vacant lot next door, which the bank foreclosed upon and now owns, and planted a vegetable garden. Vien operates an occasional underground restaurant from his friends’ microbrewery after beer-making operations cease for the day. The common thread tying these actions together is that they are unauthorized; they are being undertaken in violation of existing laws and often norms.

In this Article, I explore ideas surrounding the overlap between food policy and land use law, specifically the transgressive actions that people living in urban and suburban communities are undertaking to further their local food-related goals. I assert that while governmental and societal acceptance and normalization of currently illegal local food actions is likely needed for the broader goals of the local food movement to succeed, there are some limited benefits to the currently unauthorized nature of these activities. These include transgression serving as a catalyst for change and as an enticement to participate—in part because it can reduce costs associated with formal governmental processes.

PDF link Examining Food Safety from a Food Systems Perspective: The Need for a Holistic Approach

By Susan A. Schneider

There has been an effort to shift the focus of the Food and Drug Administration’s (FDA) food safety approach from reactive to preventative. The recently enacted Food Safety Modernization Act was hailed as a means to “transform the FDA from an agency that tracks down outbreaks after the fact, to an agency focused on preventing food contamination in the first place.” While this attempted proactivity is laudable in many respects, the United States’ overall approach toward food safety remains highly compartmentalized and is seemingly unable to consider safety concerns on a systemic scale.

This has resulted in actions based on narrow and immediate justification with unanticipated negative consequences. This Article considers the inherently systemic nature of our food system and the inability of the agencies involved to address it as such.

PDF link A Continuing Plague: Faceless Transactions and the Coincident Rise of Food Adulteration and Legal Regulation of Quality

By Denis W. Stearns

Beginning in the middle of November 1992, and through the end of February 1993, there were more than five hundred lab-confirmed E. coli O157:H7 infections and four related deaths, making it the largest reported outbreak in the history of the United States. But the lab confirmations did not tell the whole story; hundreds more had been made sick, the majority of them children. All were infected as a result of eating a contaminated burger at a Jack in the Box restaurant.

Reports of the outbreak dominated the news for months, spurring changes everywhere, from how consumers viewed the safety of ground beef to how the federal government regulated the manufacture and inspection of meat products. The media focus on issues of food and food safety has only increased over time, making every outbreak that occurs widely reported news. The recent reports of horse meat being found in a wide variety of food products and the indictment of several corporate executives for selling Salmonella-contaminated peanuts are but two current examples of the media’s continued focus on food and food safety. But still the plague continues with no end in sight.

PDF link Sowing the Seeds of Protection

By Elizabeth I. Winston

Seeds are chattel. As such, seeds are protectable by the same tapestry of public and private ordering as other forms of chattel. However, the distinguishing characteristic of seeds, their method of propagation, and the history of seeds—traditionally viewed as a public good rather than chattel— distort that tapestry. The model of seed distribution thus needs to be reframed in light of the often disparate interests of innovators, producers, and consumers. As with all chattel, there is no single, correct model for distributing seeds, but law and contract may be woven together to strike a balance.

Intellectual property protection for seed is rooted in its history as a public good. Seed is a public good, a commodity, and a chattel. There is no single, correct framework for distributing seeds, but law and contract may be interwoven to strike a balance. The protections set forth in the intellectual property system and the restrictions placed by law and contract on distribution of seed are examined in Part I of this Article. Part II addresses the enforcement of these restrictions by the judicial system. Various models of seed distribution are set forth in Part III.