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In the Face of Rising Global Food Movement, U.S. Laws Must Be Nimble to Adapt

By Thai Phi Le

September 2, 2016

Global Food Map

In its September issue, the Washington Lawyer examines the intersection of food and law. In it, Michael Roberts, founding executive director of the Resnick Program for Food Law and Policy at UCLA School of Law, talks about the global food system. Roberts discusses how the growing food movement is forcing the evolution of laws around the world.

You are often noted as saying it's important that people understand there is a framework for food law. Why?

Roberts: There was a major legislation in 1938, the Federal Food, Drug and Cosmetic Act, that regulates the safety, quality, and labeling of food. This act, along with other major acts, govern to a large extent how we produce, manufacture, distribute, and sell food.

While the food movement has come upon us in recent years, food has been regulated for a long time. Often times, scholars or activists who want to get involved mistakenly believe we don't have laws regulating food, but we really do.

Where the framework has fallen short, that has exposed these gaps in regulation, which is why we're seeing emerging types of law that are trying to respond to this need to regulate food.

What are some examples of some of the gaps we're seeing now?

Even though the 1938 Act regulates food labeling, it hasn't regulated the word "natural." There have been numerous attempts to try to get the Food and Drug Administration (FDA) to define what natural means, all of which have largely failed over the years. A result has been a number of class action lawsuits that have been filed in the states alleging that food manufacturers have misused the word "natural" on food products that are not really natural.

It's an example of where you've got laws that define what misbranding means on a food label, but then you have a gap because the law's not defining a particular term—such as "natural"—that's ubiquitous in the food supply system. Litigation emerges as a gap filler to try to address the alleged misuse. Ironically, the FDA is now asking for public comments on what natural should mean on a food label, but its usage has already dissipated due to the threat of litigation.

In the regulation of genetically modified food labeling, the FDA has declared that genetically modified food is no different than conventional food, ergo it's not going to require that genetically modified food bear a label that stipulates it as GMO. However, consumer pressure for GMO-free food product has increased over the years.

Consumers want to know whether food has been genetically modified for a whole host of reasons. This tension between the FDA's science assessment and consumer interest has resulted in pressure at the state level to develop a gap filler.

What state initiatives are in place to fill the gaps in the Federal Food, Drug and Cosmetic Act?

One comprehensive state initiative that finally passed was in Vermont, which requires mandatory GMO labeling. The question then becomes, is the regulation in Vermont preempted by this federal labeling framework and pronouncements by the FDA?* Also, can states constitutionally require food companies to disclose GMO content in food product where the FDA has said there is no difference between GMO and conventional food?

Another interesting example involves antibiotics, which have been used in food as an animal drug for some time. Animals ingest these drugs, and it creates antibiotic resistance in humans who consume the meat. Again, the framework gives the authority to the FDA to regulate animal drugs.

What we're seeing is this antibiotic resistance is really causing a great deal of alarm with public health authorities. Even though it's difficult to button down the science to show a direct cause, it's convinced enough people that something more needs to be done. So as a gap filler, we [saw] California pass major legislation just this past year that arguably could be viewed as being preempted by the Food, Drug and Cosmetic Act.

How big of a role do states play in food law?

Many of the big events in food law developments have been driven by states. The federal government regulates labeling, but it has exempted restaurants from its regulations. It was New York City and California that led the way on menu labeling. Finally, it caught on and now you have under the Obama health care law a menu labeling provision.

The federal framework hasn't proven nimble enough with the changing social conditions both in public and environmental health. Hence you have these gap fillers.

Are there things happening abroad that affect how states or the federal government reacts?

An interesting example is ractopamine hydrochloride. It's an animal drug that's used in mostly pigs and cattle to boost growth and promote leanness. It's used very freely in the United States. Europe banned its use on food safety grounds. So there was a showdown at the World Trade Organization after this that eventually brought into the play the Alimentarius Commission, which decides what the appropriate standards are for the WTO.

To make a long story short, the U.S. was able to force a vote [and won]. What's interesting about this is that China entered the fray and opposed the use of ractopamine because of its belief that the human studies done in the U.S. did not measure the effects on people eating [pig] organs.

In China, you typically eat the organs of animals. In the U.S., you don't. The concern was that the U.S. human studies didn't cover what the typical Chinese person would eat. It has turned out to be a big controversy and a really interesting example on how the international markets in different countries and cultures can affect the use of an animal drug here in the U.S. in a way that's quite novel.

What other cultural differences do you see affecting how the U.S. and its consumers think about food?

A lot of the food movement here in the U.S. is really borrowed [from] Europe. The slow food movement had its start in Italy and moved its way through France. It's really more of a value-based culture when it comes to food. I always tell my students at the beginning of class, almost every issue we address comes back to the question: What do you think about food?

Often times folks will think food is like art. It's cultural. It's something that we value differently than other things, so we set food apart. Europe tends to lean on the cultural side. The American policy has been more of food is a commodity. It lends itself to industrial-style production and manufacturing. You can produce it at a lower cost, but you also lose some of the cultural aspects of food. It's an interesting tension.

A lot of the food movement [in the U.S] is that people are trying to connect with food in a way that adds meaning to their lives. We see some of that creeping into the law as well when you talk about issues like food security or food sovereignty. This whole shared economy approach to food where you have a lot of home kitchens and folks who want to make food on a local level, but run into issues because of food safety concerns—it's kind of messy.

How do we help meet future challenges as a global community?

Sharing information and comparative law approaches and being willing to sit down and talk and listen [to how other countries are doing things] is really important to the global regulation of food.

You have the same thing going on in all the countries around the world. It's driven to a large degree by technology, the Internet, and information to consumers. The world is a big, complicated place, but sometimes it becomes a little smaller when we're sharing concepts and ideas as part of this shared economy, especially . . . when it comes to the importance of food to health, families, and communities. It's fascinating to watch.

*On July 29 President Obama signed a historic law requiring the labeling of GMO ingredients in food packages, which will preempt the Vermont law once the rules are written and implemented by the U.S. Department of Agriculture.