The Iron Triangle of Food Policy, AJLM’s 2015 symposium

A symposium hosted by the American Journal of Law & Medicine

President Obama signed the FDA Food Safety Modernization Act (FSMA) into law on January 4, 2011, aiming to ensure the safety of the US food supply by preventing contamination. Boston University School of Law’s American Journal of Law & Medicine recently held a symposium examining this law, as well as other related regulations.

A distinguished list of health law scholars from around the country traveled to campus to consider how policy can impact access to food and food quality. Panels discussed food insecurity, obesity, GMOs and food purity, and issues with local sourcing and the access to and costs of organic food.

Below, find a summary of some of the discussions that transpired over the course of the symposium. Please check future editions of the American Journal of Law & Medicine for a published collection of the ideas presented.

Panel 1: Administrative Law

Moderator: Jake Gersen, Harvard Law School

Saby Ghoshray, Institute of Interdisciplinary Studies
Tracing the Transgenic Pathways of the US Food System at the Intersection of Regulatory Landscape and Constitutional Jurisprudence
Responding to an audience question, Dr. Ghoshray noted that there is no scientific basis underlying the public perception about GMO foods. Labels and warnings on these foods are unnecessary and irrelevant—but that they exist perpetuates a public perception that GMO foods carry a serious risk. If consumers demand to know certain information via warnings/labels, is it paternalistic for the scientific community to say those labels are unnecessary and deprive consumers of such knowledge? Further, if there is no scientific basis to require this labeling through legislation and regulation, would that hold up under rational basis review?

Diana Winters, Indiana University Robert H. McKinney School of Law
Not Part of the Solution: The Inappropriate Use of Primary Jurisdiction in Food-Labeling Litigation
Forthcoming article available via SSRN

Samuel R. Wiseman, Florida State University College of Law
The Implementation of the Food Safety Modernization Act and the Power of the Sustainable Agriculture Movement

Panel 2: Justice

Moderator: Emily Broad Leib, Harvard Law School

Paul A. Diller, Willamette University College of Law
The Illusion of Autonomy in ‘Food’ Litigation
Professor Diller aruged that we are not rational consumers: rather, we are subject to our “food environment.” Factors such as food label design, the placement of items on the shelf, and even lighting in the store can influence consumers when making choices about products to purchase. This has not always been considered in rulings surrounding food litigation. For example, former NYC Mayor Michael Bloomberg introduced the Portion Cap Rule in 2012, attempting to regulate the size of containers in which vendors could sell sugary beverages to address rising obesity rates. In March 2013, the New York Supreme Court declared the regulation invalid, a decision upheld by the Court of Appeals, on the grounds that rule-making is the responsibility of the legislature, not the mayor. Diller argues that this decision assumes a false notion that consumers are completely rational and can make healthy choices, in spite of the “food environment.” Diller believes psychological science should be considered in such instances.

Abigail Moncrieff, Boston University School of Law
A Thought Experiment: What Would an American Constitutional Right to Food Look Like, and Would it Do Any Good?
Professor Moncrieff argued against the constitutional right to food, in the same way in which we have free speech. She believes that we should consider removing some of the actions government has taken toward food regulation, in fact, because of its paternalistic nature. From a constitutional lens, she argues, fictionalizing autonomy “is not a permissible move.”

Lindsay Wiley, American University Washington College of Law
Deregulation, Distrust, and Democracy: State and Local Action to Ensure Equitable Access to Healthy, Sustainably Produced Food
Professor Wiley noted that interest groups generally agree that promoting the consumption of fresh fruits and vegetables is in the public’s best interest. We see public health goals as compatible with broader social justice goals. But occasionally tensions will arise between public health advocates and civil rights, anti-poverty, and anti-hunger groups when it comes to food promotion, or lack thereof. Do some regulations (e.g. Bloomberg’s Portion Cap Rule) unfairly penalize economically disadvantaged communities without facilitating more viable options? Wiley also expressed concern about assuming that local governments are always better in this regard.

Panel 3: Informed Consumers

Moderator: Kathy Zeiler, Boston University School of Law

Andrea Freeman, University of Hawaii School of Law
Transparency for Food Consumers: Nutrition Labeling and Food Oppression
Professor Freeman argued that consumers have a limited ability to process new information. When it comes to choosing food, taste, convenience, and price often become priority over, say, nutritional information, even if that information is available on the food’s label. The overabundance of fast food (and lack of access to healthier options) that has contributed to an increase in food-related disease and death among disadvantaged communities is further compounded by the government’s support of the fast food industry. For example, the FDA compromised with processed and fast food companies to count pizza as a vegetable for the 2014 standards for public school lunches.

Government is framed as a windfall, which supports the idea that changes in individual behavior, not public policy, will lead to better health. In reality, public policy, specifically food policy, is better equipped to improve health outcome, through agricultural subsidies, food additive regulation, and higher quality of school and other government provided food programs. Taxing unhealthy choices (e.g., cigarettes, sugary drinks) could actually incentivize the government to want people to engage in those unhealthy choices because they will increase tax revenue.

Christine Fry, ChangeLab Solutions
What’s in Store: A Vision for Healthier Retail Environments through Better Collaboration
Ms. Fry noted that the three leading causes of death in the US are smoking, poor diet and inactivity, and alcohol use—all of which can be purchased at food and beverage retailers. Thus, public health interventions that make healthy choices easier should focus on environment, particularly the retail environment. This could be particularly impactful at convenience stores, as a community’s proximity to convenience stores (vs. grocery stores) is typically related to higher levels of obesity. Though there is very little regulation of the retail environment at any level of government, Ms. Fry argued that regulation should be commensurate with the harm caused by various products sold. At the product level, there could be taxes on sugary drink or limits to sugary drink portion sizes, for example. And at the store level, unhealthy items around the check-out areas/registers could be replaced with grab-and-go healthy options to encourage healthier impulse purchases. Additionally, non-food stores(e.g. Best Buy) often sell junk food around the register, but regulations could prohibit non-food stores from selling food to inhibit this opportunity for unhealthy impulse purchases. Finally, at the community level, regulations should control the location of retailers allowed to sell sugary drinks and junk food (i.e., prohibit sales near schools), and communities should improve transportation access to healthy stores.

Efthimios Parasidis, The Ohio State University Moritz College of Law
A ‘Natural’ Experiment: Consumer Confusion and Food Claims
Professor Parasidis discussed Immersive Sensory Technology, a research method used to analyze how consumers perceive food and its attributes (from non-label factors) and how those perceptions inform and influence decisions. Analysis indicated clear consumer confusion (and incorrect perceptions) about labels such as “natural,” “organic,” and “naturally raised.” Parasidis then discussed the Health-Halo Theory: the idea that individuals overestimate the healthfulness of food based on its perceived attributes, which derive from meaningless and misunderstood labels and claims.

Joanna K. Sax, California Western School of Law
Dietary Supplements are Not all Safe and Not all Food: How the Low Cost of Dietary Supplements Preys on the Consumer
Professor Sax discussed the common misperception that dietary supplements are as highly regulated as prescription or over-the-counter medications, which often sit next to supplements in retail stores. Many think that because they are labeled as “natural,” they cannot be harmful and are ok to mix with other prescriptions. The truth is that there is very little regulation of dietary supplements, and most consumers—not to mention physicians—do not have adequate information to understand the the effects and the potential hazards of mixing supplements with other medications. Even those who are in a position or have a desire to self-educate cannot possibly obtain (or correctly interpret) sufficient information because the information does not exist and is not regulated or required by law.

Encouraging consumers to seek accurate scientific information about supplements is a very difficult business. Even if the information were readily available, several hurdles may still exist to having them take action: consumers ignore healthy choices in their own personal cost/benefit decisions; consumers do not access the available information; or consumers do not understand the information or do not have the means to act adequately on the information. The consequences of such extend beyond individual harm: they are externalized to societal costs at large through Medicare/Medicaid costs, workplace costs (sick days, insurance costs, disability, etc)., and the like.

Panel 4: Federalism

Moderator: Kevin Outterson, Boston University School of Law

Kathryn Boys, North Carolina State University
The Food Safety Modernization Act: Implications for US Small-Scale Farms
The FSMA’s Tester-Hagan Amendment modified food safety requirements for small-and medium-scale farms that locally sell more than 50% of their produce directly to consumers, food retailers, or restaurants. While this exemption is intended to reduce the regulatory burden on small- and medium-size producers, some food buyers feel that, with this exception, there is insufficient assurance of food safety practices from small- and medium-scale producers. Professor Boys argued that there is no evidence that the production practices on small farm are less safe than the production practices of large farms. Furthermore, small-scall farms benefit from direct-to-consumer sales in this regard: since they provide food locally, consumers know the origin of their food, which facilitates containment when any safety issues occur.

Sam F. Halabi, The University of Tulsa College of Law
The Codex Alimentarius Commission, Corporate Influence, and International Trade: A Perspective on FDA’s Global Role
The Codex’s mission is to protect human health and to facilitate world trade by developing codes of practices, standards, and processes for food products and processes. Professor Halabi’s paper will weigh the evidence supporting criticisms of Codex and propose solutions for the criticisms.

Stephen Miller, University of Idaho College of Law
A Coordinated Approach to Food Safety and Land Use Law at the Urban Fringe
Professor Miller discussed the growing trend for urban and suburban dwellers to engage in rural areas where food is produced, not only to obtain food, but also as a means of cultural activity. Miller noted that the movement is successful because of small farmers’ need for a secondary income, as well as the consumers’ desire to obtain their food. The problem arises because food safety and land use laws fail to keep pace with these trends and, as a result, fumble between over-regulation and de-regulation. Miller points to food sovereignty, which has been successfully implemented at the state level (e.g., Maine), as a potential legal path forward that steers clear of regulatory extremes.
Forthcoming article available via SSRN

Stephanie Tai, University of Wisconsin Law School
Whole Foods: The FSMA and the Challenges of Defragmenting Food Safety Regulation
Professor Tai discussed the lack of consistency in food safety regulation and the fragmented and limited government resources available for this task.