Given our globalized food system, this is a difficult question to answer.  

The question of food origin breaks down into several parts.  Do we care where it originated?  Or, do we care where it was processed?  Does where the food comes from impact its quality?  Does a food’s origin impact its safety?  Can we ever know as much about the sources of our food as we would like?

The answers to these questions will vary, but the bottom line is that it is a complex issue.

Reasons to want to know

For some people, knowing where their food comes from is very important. For others, it may not matter at all.  

One reason for promoting labeling has to do with the consumer’s right to know. Consumers have a right to know what ingredients are in a product and where it is from, manufactured, processed, or packed. If consumers want to purchase food that was grown or produced locally, labeling should provide that information. Additionally, labeling should aid consumers if they are seeking products grown or made in a particular area–i.e. for fair trade reasons.

Similar to, but slightly nuanced from, the consumer’s right to know is the goal of consumer protection, which includes health concerns. Labeling of ingredients or country of origin allows a consumer the ability to avoid certain foods they know, or suspect, will trigger a reaction.  

For example, some people experience a bitter taste in their mouths (ranging from a few days to a few weeks) after eating pine nuts. The syndrome is called “pine mouth” and, although the FDA has not linked the phenomenon to any particular kind of pine nut, some studies have connected pine mouth to certain pine nuts grown in China. For those people, having the information about the origin of the pine nuts would allow them to avoid those specific pine nuts.

Labeling is important because it provides information that enables consumers to make more informed decisions about their food choices.

Finding the answer

There are two alternate ways to answer the question of origin: purchasing food directly from the farmer at farmers markets or through community supported agriculture (CSAs); or, relying on certain government laws and regulations that are in place to aid consumers in determining where their food came from–for example, country of origin labeling and labeling requirements for packaged foods.

If the goal is to know where our food comes from, how well do these systems accomplish that goal?

Farmers markets and CSAs

Participating in direct marketing, or face-to-face transactions, is one way consumers can find out where their food comes from.  Farmers markets and CSAs will generally provide a quick and clear answer because a consumer is able to ask the farmer directly about the food being sold.

In a CSA, a person purchases a share of the produce that will be grown on a farm and later, during the growing season, will receive a box of produce from that farm on a weekly basis.

Farmers markets, like CSAs, provide an opportunity for farmers and consumers to interact and for consumers to ask the farmer about the produce they are selling.  An additional source of information comes in the form of market rules and regulations:  farmers markets are governed by a set of rules that dictate where the produce can come from and provide a method of enforcement of those rules.

For example, some farmers markets require the sellers to be the actual growers of the produce.  Despite the challenges in defining a “producer-only” market, in “producer only” markets, all of the food sold will have been grown locally (subject to whatever definition of “local” the market requires).  Other farmers markets do not require the seller to have actually grown the produce.

Is purchasing from a farmers market or CSA an effective way to find out where one’s food comes from?  Generally yes.  The benefit of these face-to-face transactions is that the consumer can inquire of the farmer where the food came from.  Farmers markets and CSAs have an added benefit because customers are usually purchasing whole foods (simpler to trace), rather than prepared products containing a variety of ingredients.

Country of origin labeling

According to the United States Department of Agriculture’s Agricultural Marketing Service (AMS), country of origin labeling (COOL) is a “law that requires retailers, such as full-line grocery stores, supermarkets, and club warehouse stores, [to] notify their customers with information regarding the source of certain foods.”  

Foods that must be labeled under the country of origin rules (the “covered commodities”) include various types of meat; wild and farm-raised fish and shellfish; fresh and frozen fruits and vegetables; peanuts, pecans, and macadamia nuts; and ginseng.

If a covered commodity has been processed in certain ways, the packaging does not have to include the country of origin designation.  In order to be excluded from the COOL rules, the process must result in a “change of character” in the covered commodity.  Those processes include cooking (e.g. frying, broiling, grilling, boiling, steaming, baking, roasting), curing (e.g. salt curing, sugar curing, drying), smoking (hot or cold), and restructuring (e.g. emulsifying and extruding).

For example, a whole melon, pineapple, or flat of strawberries will have to be labeled with its country of origin; but, according to COOL Frequently Asked Questions, a fruit cup that contains those fruits (melons, pineapple, and strawberries) is not required to be labeled with the country of origin.  Other examples of “processed food items” are roasted peanuts, breaded chicken tenders, fish sticks, and teriyaki flavored pork loin.

Some products that are imported and may fall outside of the COOL requirements because they are processed are, nonetheless, required to be labeled with a country of origin designation under other international trade rules, such as the Tariff Act of 1930.

The Frequently Asked Questions document explains: “while a bag of frozen peas and carrots is considered a processed food item under the COOL final rule, if the peas and carrots are of foreign origin, the Tariff Act requires that the country of origin be marked on the bag.”

Is country of origin labeling effective?  When it is required, country of origin labeling is very effective in that consumers are provided information about the source of the covered commodities.  But the covered commodities are relatively few, and many covered commodities are processed before sale in such a way as to fall within the processing exemption from the labeling requirements.  Consumers may know where the head of lettuce they purchased is from, but they may not be able to find out where the lettuce, tomatoes, and carrots, in their prepared salad are from.

Labeling requirements

The Food and Drug Administration’s (FDA) labeling requirements provide another level of information consu
mers can use to determine the source of their food.  Under the FDA rules, food labels are required to include the name of the product, the net amount of product, the ingredients, the nutritional fact panel (with information about calories, etc), and the statement of origin.  

The rules about the ingredient list require that the ingredients be listed in descending order of prominence on the side of the packaging.  

The statement of origin must identify the name and location of the manufacturer, packer, or distributor.  If the location provided is not the manufacturer’s address, the label must clarify what the relationship is between the manufacturer and the location listed–for example, the bottling of a soda can be done “on behalf of” someone else, but that relationship must be disclosed.

It may come as a surprise that there is no requirement that the label include the source of the ingredients.  Perhaps if a product is made in the United States, or consumers associate it with the United States, the question about origin never arises.

The lack of information about ingredient origins, however, may be more surprising when considering the global sourcing of our food supply.  When you read the ingredient list of a packaged food at the grocery store, do you wonder where the ingredients come from?

The Food Studies Project, out of the University of Texas, posted a blog entry recently about “Agriculture and Global Food Procurement.”  The graphic included in the post illustrates two food products–a NutriGrain bar and a loaf of Sara Lee bread–and points out the potential sources of ingredients in each of those products.  

In the NutriGrain bar, the list of sources and ingredients is as follows:

• USA: high fructose corn syrup, sugar, wheat flour (produced and milled), whole grain oats, sunflower oil, strawberry puree, cellulose, red dye #40;

• China: vitamin and mineral supplements (B1, B2, iron, folic acid), honey;

• Philippines: carrageenan;

• India: guar gum;

• Europe: citric acid;

• Denmark: lecithin (soy);

• Italy: malic acid; and

• Scotland: sodium alginate.

The loaf of Sara Lee bread names ingredients from the United States, China, Vietnam, India, Australia, Russia, Non-USA North American and various South American countries, Switzerland, Netherlands, and Other European countries.

The Sara Lee statement of origin on the label lists Sara Lee’s address in Illinois.

Are the statement of origin and ingredient labeling effective in conveying where the food comes from?  The short answer is most likely no.  The ingredients must be listed on the label, but the source of those ingredients need not be identified.  The statement of origin for these processed foods requires only the name and address of the company that manufactured or processed the food.  If the ingredients are imported, but the food is processed and packed in the United States, the FDA rules apply.

The trouble with this information is…

Information is a good thing for consumers to have, but there are two main obstacles to obtaining this kind of data.

First, it would be a logistical nightmare to include the sources of ingredients on labels.  Labels are already packed with information and are confusing for some consumers.  

Imagine trying to find space on a label for the list of ingredient sources.  Because of the globalized nature of our food supply, the sources of ingredients may change on a daily basis.  For example, have you ever wondered why the ingredient list on a bag of chips says “soybean oil and/or canola oil”?  The company will purchase whichever oil is cheaper on any given day, and must have flexibility in their labels to reflect that reality.

Perhaps companies could include a list of sources on their website.  A website has enough space to list the potential sources of ingredients without crowding the packaging label; this would, however, place a burden on the consumer to inquire on a regular basis.

Second, there are significant international trade issues with our country of origin labeling.  The country of origin labeling laws were challenged in the World Trade Organization back in 2008.  In November 2011, the Dispute Settlement Body ruled unfavorably to the United States as to parts of the law.  In March 2012, the U.S. announced it would appeal the ruling.  It is unclear whether the country-of-origin labeling laws will survive this challenge in the WTO.

Finally, more questions

Knowing where our food comes from probably does matter; but even though we may want that information, the reality is that most of the time we won’t have it.

So in the end we are left with more questions than answers.  Aside from direct transactions with farmers, the existing regulatory schemes do provide some information about where our food comes from, but they are not able to complete the entire picture.

I must ask:  What do you think about your last meal now?

Part of the subsidy discussion that is just as important, but not addressed in the popular press as much, is the fact that receiving those subsidies requires a farmer to be in compliance with certain conservation practices.

Impacts of Conservation: Environment and Food Safety

Under the conservation compliance rules, farmers are required “to meet some minimum standard of environmental protection on environmentally sensitive land as a condition of eligibility for many Federal farm program benefits — including farm commodity program payments.”

The government does not require farmers to comply with these conservation practices.  If the farmer wants to receive government payments, however, the farmer has to meet certain requirements, including implementing specified environmentally beneficial practices (i.e. to prevent soil erosion).

There are a number of other government program benefits, besides direct payments, that are linked to conservation compliance.  Some of those include farm credit loans, payments made under the Environmental Quality Incentives Program (EQIP), conservation program payments, and disaster payments.

Some examples of conservation practices include conservation tillage (low or no till), the use of ponds and reservoirs, irrigation reuse systems, and noncrop vegetation buffers such as grassed waterways, riparian habitat, buffer strips and trees.

The American Farmland Trust (AFT) lists as benefits of conservation compliance a 40 percent reduction of soil erosion (saving at least 295 million tons of soil per year) and a significant reduction in the conversion of ecologically important wetlands on farms, preserving the critical benefits the wetlands provide for flood protection, nutrient filtering, and wildlife habitat.

Conservation practices also have an interesting relationship to food safety. In a 2007 study, University of California researchers found that 15 percent of 181 growers interviewed removed or discontinued conservation measures, such as irrigation reuse or vegetation buffer, after the   E. coli O157:H7 outbreak linked to bagged spinach.  The same study found that 8 percent (of 181 growers surveyed) had crops rejected by buyers because of practices to improve water quality and wildlife habitat on the farm.

The study’s authors cautioned against concluding that conservation practices necessarily cause food safety problems. To the contrary, they cited research showing that discouraging or actively removing such conservation practices could, in some cases, actually increase the risk of crop contamination. For example, the use of cover crops or strips of vegetation near open water have been found to greatly reduce the E. coli bacteria count in the water.

Preserving wildlife habitat, thereby allowing animals access to crop fields, is a major concern for food safety advocates and is cited as one source of food contamination.  The Wild Farmland Alliance recently released a new brochure, Farming With Food Safety and Conservation in Mind, that provides an overview of how producers can co-manage the goals of food safety and conservation through their farming practices.

Conservation compliance has a number of positive impacts — most clearly for environmental protection and possibly in reducing the risk of foodborne illnesses — so it is understandable why the government would want to encourage the use of conservation practices.

Crop Insurance and Conservation Compliance: To Link or Not to Link?

The fact that conservation compliance is tied to direct payments has some groups worried that should direct payments be eliminated in the next Farm Bill (highly likely), farmers will stop following these environmental practices.

The most likely outcome in the 2012 Farm Bill is that direct payments will be eliminated and replaced with some form of crop insurance program (to provide farmers with a safety net).

As an important side note, crop insurance is highly subsidized by the federal government.  A USDA Farm Bill summary lists the ways in which the government subsidizes crop insurance: by providing reinsurance, paying a premium subsidy to reduce the premium charged to producers, reimbursing the insurance companies for administrative and operating costs, and overseeing the financial integrity and operational performance of the delivery system.  According to the White House’s 2012 budget for the Department of Agriculture, the government spent $6,387,000,000 on crop insurance in 2011.

If Congress eliminates one form of subsidy (direct payments) and replaces it with a different subsidy (crop insurance), the next question that arises is what will happen to conservation compliance?

Some farm groups, such as the National Farmers Union and American Farmland Trust, advocate linking crop insurance with conservation compliance.

Jon Scholl, President of AFT, said in a press release, “Conservation compliance is nothing more than an incentive for farmers with highly sensitive lands to follow a few basic conservation practices.  When I talk to farmers, they recognize that conservation compliance is crucial for the long-term health of our soil.”

Not all agricultural groups believe tying crop insurance with conservation compliance is a good idea.  In adopting language from a resolution from the Iowa Farm Bureau Federation, the national organization–the American Farm Bureau Federation–conveyed its opposition to linking crop insurance with conservation compliance.

Iowa Farm Bureau Federation President Craig Hill notes that Iowa farmers lead the nation in conservation, but that linking these two programs could be financially disastrous for Iowa farmers.

Hill said, “Because of torrential weather events like we’ve seen in recent years, we also know that linkage of conservation to crop insurance simply risks too much at a time when the stakes have never been higher for farmers.  There are already 15 farm programs that link to the conservation title in the Farm Bill, so to deny crop insurance to farmers because of weather events beyond their control could put a farmer out of business in a single year’s event.”

Anticipating this response, Scholl remarked that “despite what you may have heard, attaching compliance to the crop insurance premium support would have a pretty minimal impact back on the farm.  Farmers across the United States would still be able to buy crop insurance and get operating loans from their bank.  Anyone out of compliance simply wouldn’t receive the crop insurance premium support until they come back into compliance.  NRCS (Natural Resources Conservation Service) and FSA (Farm Service Agency) would still do compliance checks using the same system we have in place now, and crop insurance agents would not have an additional role.”

With these major agricultural players on opposite sides of the issue, it is unclear what the final result will be: crop insurance coupled with conservation compliance, or crop insurance on its own.

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Alli Condra is pursuing her LL.M. in Agricultural and Food Law at the University of Arkansas. She is the 2011-12 recipient of the Marler Clark Graduate Assistantship.

The partners in the GRSB include Cargill, JBS, McDonald’s, Merck Animal Health, the National Wildlife Federation, Rainforest Alliance, the Nature Conservancy, Walmart and the World Wildlife Fund.

It is surprising to see these groups banding together to work on an issue when there may be significant conflicts of interest: the environmental and conservation groups are seeking to reduce the environmental impact of beef production; the industry groups want to continue producing beef at a level to meet increasing global demand; and the retail groups want to dispel alleged myths about beef production and increase consumers’ trust in their products.

Jason Clay, World Wildlife Fund’s Senior Vice President for Markets Transformation, initiated the roundtable approach and said WWF is encouraged to see such a strong commitment from the major stakeholders in the beef industry to work collaboratively to create a more sustainable beef supply chain.

“At World Wildlife Fund, we recognize that these collaborative efforts are instrumental to our goal of preserving the most important biological places on earth and, ultimately, living in harmony with nature,” Clay commented.

Why Sustainability?

Although beef consumption in the United States is declining, global consumption is on the rise. Scott Hanson, managing director of Meat & Livestock Australia, said “[global] demand is set to grow increasingly over the next five years, vastly outstripping the globe’s capacity to supply.”  In 2011, global beef consumption reached 64.5 million metric tons (about 142 billion pounds) and is estimated to climb 24 percent by 2020.

Conservation and environmental groups have long criticized the beef industry for its significant contributions to a number of environmental problems.  For example, beef production requires an enormous amount of land and water.  Crop production and grazing activities take up 58 percent of the earth’s habitable area.  Beef production alone uses 60 percent of all the land used to produce food, but provides only 1.3 percent of the calories.  The threat of increased deforestation to make room for more cow operations is a major concern.  In terms of water use, one liter of water produces just one calorie of beef.  Concentrated animal feeding operations (CAFOs) are linked to water and air quality issues, including increased levels of greenhouse gases and degradation of water sources.

The environmental impacts of beef production, which are already quite serious, become even more significant in light of a growing world population and projected increase in demand for beef.

The Global Conference on Sustainable Beef

The idea for the Global Roundtable came out of the Global Conference on Sustainable Beef held in November 2010 in Denver, CO.

In the opening session of that meeting, Bryan Weech, Director of Livestock at World Wildlife Fund, said the purpose of the conference was to begin a dialogue about sustainable beef production. Weech was quick to note that this event was not an attack on or defense of industry, but an effort to bring together representatives from all steps of beef production to discuss sustainability.

Bob Langert, Vice President of Corporate Social Responsibility at McDonald’s, explained why McDonald’s was participating in the conference.

Langert noted that McDonald’s had commissioned a group of students from the University of California – Berkeley to examine McDonald’s entire beef system for its sustainability.

The students pointed to several ways McDonald’s could improve its system.  One suggested improvement was to use preferred suppliers who meet certain environmental, animal welfare and labor benchmarks (see 2006 Corporate Social Responsibility Report, pages 26a – g).  Additionally, the students recommended pilot projects to demonstrate environmental stewardship, for example using methane generators on waste lagoons.

The second reason McDonald’s participated in the conference had to do with building trust with their consumers. Langert said part of earning consumers’ trust is showing that the products McDonald’s buys (like beef) are produced in a responsible way.  Consumers expect a socially responsible supply chain, and Langert said McDonald’s continued success requires serving food in a convenient, safe, fun and very responsible way.

Langert cited what he called the mischaracterization of sustainability as the third reason McDonald’s was invested in the conference.  He said sustainability, in general, has been incorrectly defined by too many stakeholders.  In his view, the food industry is under attack and is being negatively portrayed by “opinion makers.”

Langert said media portrayals, whether in coverage of obesity or health or environmental degradation issues, sometimes do not give an accurate picture of what is truly going on.  “What the heck?” he continued, “The guy that heads up the U.N. effort on climate change called on people to eat less beef.”

Animal welfare abuses and food safety threats are being defined as part of the total umbrella of factory farming, and Langert thinks “the real story is that the beef industry is made up of excellent men and women and processors that take pride in what they are doing and manage their businesses responsibly.”

For this reason, McDonald’s approached the World Wildlife Fund more than a year ago to suggest this conference. Langert said that “today there is window of opportunity to come together and demonstrate that we all can be very proactive and strategic in our approach and tell our story even more.”

McDonald’s has had past successes working with “really incredible third parties that focus on science and market-based solutions.” Langert said that World Wildlife Fund is committed to coming up with socially, environmentally and economically viable solutions and, because of that, McDonald’s was willing to work in collaboration on the issue of sustainable beef production.

In closing, Langert presented some thoughts from the steering committee, including its earnest desire to improve the sustainability of beef globally (from environmental, social and economic perspectives); its strong support for working collaboratively with a variety of stakeholders involved in beef production to find science-based solutions; and its commitment to continue to do more for sustainable beef, both locally and globally.

The rest of the conference involved presentations by international beef producers and organizations, discussions about def
ining sustainability, and presentations by groups that are already working toward sustainable beef production (for example, the California Rangeland Conservation Coalition working to preserve and increase grazing land in California).

The purpose of the conference was to bring together a number of different stakeholders with different interests and goals to begin the conversation about defining sustainability and finding ways to accomplish their goal.  One of the conclusions of the conference was the idea for a Global Roundtable for Sustainable Beef.

Global Roundtable for Sustainable Beef

The aim of the GRSB, as listed on its website, is to advance continuous improvement in the sustainability of the global beef value chain through a number of actions.  Those steps include:

– “Identifying, evaluating, and enabling increased adoption of current leading production and supply chain practices, policy, and technology;

– Promoting the adoption of leading employment and economic development practices;

– Supporting action-oriented, regional, and local multi-stakeholder initiatives focused on producing measurable outcomes;

– Addressing high-priority issues related to sustainability by sharing locally relevant and science based information; and

– Providing a forum and opportunities for constructive engagement, information exchange, and technical problem solving.”

The website does not provide any examples of how the Roundtable is going to accomplish these goals, but lists a few existing initiatives, such as the Brasilian Sustainable Beef Working Group, the Florida Ranchlands Environmental Services Project, and the California Rangeland Conservation Coalition.

GRSB Registers as Non-Profit

One of the first steps the GRSB did was to register as a non-profit.  Ruaraidh Petre, president of the Roundtable, said that the formation of the non-profit “reaffirms our collective support of activities that deliver measurable, science-based outcomes that are focused on high priority environmental and industry-related issues.  More efficient, environmentally sustainable approaches to bringing beef from farm to fork will help conserve our planet’s finite resources while also supporting our communities and our members’ bottom lines.”

It is unclear how the GRSB is going to accomplish those goals.

GRSB registered under Article 60 of the Swiss code, which allows it to support local, regional and national roundtable members who propose new innovations, technologies, and share best practices in beef production systems.  The group will also be able to distribute several million euros that the Dutch government pledged for new trainings and technologies to improve the efficiency and productivity of smallholder and frontier farms.

Since November 2010, GRSB has initiated a number of dialogues in key beef producing regions to share information and practices across the diverse beef industry, including in Argentina, Australia, and Brazil.

GRSB has more activities planned for the near future: it will participate in the Australian Beef Conference in May 2012 and hopes to host the second Global Conference on Sustainable Beef later this year so that global stakeholders can review and comment on the new statutes and bylaws.

The members of the GRSB are strange bedfellows, to be sure, so keep an eye on what comes out of this Roundtable in the coming months (and perhaps years).

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Alli Condra is pursuing her LL.M. in Agricultural and Food Law at the University of Arkansas, and is the recipient of the Marler Clark Graduate Assistantship.

The coalition explained in a letter  to FDA Commissioner Margaret Hamburg that more consumers are trying to make better, informed choices about the foods they eat and that FDA has the ability to provide consumers with the informational tools to make smarter decisions.

The letter noted that “[w]hile current regulations stipulate what foods can be labeled ‘No Sugar Added’ or use a similar phrase, there is currently no requirement that added sugars be shown separately on the ‘Ingredients List.’ ”  

The coalition recommends that FDA require any “added sugars” to be listed in the ingredients section as a single food ingredient with a parenthetical list of the specific ingredients that account for those sugars.  In line with the rules for labeling ingredients, the specific added sugars would be listed by descending weight and the combined weight of the added sugars will be used to determine where the “added sugars” ingredient will be ranked in the ingredient list.

Americans consume significantly more added sugar than is recommended.  The American Heart Association, which signed the letter, notes that the usual intake of added sugars for Americans is 22.2 teaspoons a day.  At first glance that may not sound like a lot of added sugar, but 22.2 teaspoons of sugar is the equivalent of 355 calories; the recommended daily limit of added sugars for women is 100 calories and 150 for men.

The connection between sugar intake and the obesity epidemic is also of concern to this coalition.  According to the Center for Disease Control and Prevention, more than 33 percent of adults and approximately 17 percent of children and adolescents are obese.

Likely anticipating a response from the sugar and food industry that the burden should fall on the consumer to stay informed to make these decisions rather than impose more government regulation, the coalition stated:  “Without specific information on the amount of ‘added sugars’ on the labels of food products, consumers can hardly exercise that responsibility and make smarter choices in the grocery aisle.”

The 14 coalition members are: Environmental Working Group, American Association for Health Education, American Heart Association, Center for Science in the Public Interest, Corporate Accountability International, Defeat Diabetes Foundation, American Association for Health Education, National Association of School Nurses, Young People’s Healthy Heart at Mercy Hospital, Indiana Rural Health Association, American Society of Bariatric Physicians, The FGE Food & Nutrition Team, Cambridge/Somerville WIC, and Iowa Public Health Association.

After that experience, Stambler reports he “made a commitment to work with the department to see if there was a legitimate way for a small-scale bread baker such as [himself] to start a micro-enterprise without going deeply into debt.”

Assemblyman Mike Gatto (D-Los Angeles) read about Stambler’s struggles in a newspaper and called Stambler to offer to help.  Gatto teamed up with LABB, the Sustainable Economies Law Center (SELC), and Proyecto Jardin to draft legislation to address the obstacles small food producers face.

The California Homemade Food Act

On Feb. 8, 2012, Assemblyman Gatto introduced a cottage food bill in the California State Assembly, bringing California one step closer to joining a growing number of other states with similar laws.

The California Homemade Food Act, AB 1616, would allow small food businesses operating out of a private home that produce “nonpotentially hazardous goods” (so called “cottage food operations”) to comply with fewer regulations.

Cottage foods are those foods considered to be not potentially hazardous.  The bill’s definition of cottage food includes things like “baked goods, jams, jellies, fruit butters, preserves, pickles with a pH level of 4.6 or below when measured at 75 degrees Fahrenheit, candy, granola, dry cereals, popcorns, nut mixes, dried fruit, chocolate covered nonperishable nuts and dried fruit, dry baking mixes, roasted coffees, dry teas, [and] honey.”

A cottage food operation, defined as “a private home where cottage food products are prepared or packaged to be sold directly to consumers, including through the internet and mail order, and to in-state retail and food facilities pursuant to this article,” is subject to inspection only if there is reason to suspect, based on a consumer complaint, that adulterated or otherwise unsafe food has been produced in the private home kitchen.  The bill expressly states that there shall be no routine inspections of cottage food operations.

While cottage food operations are removed from some of the state laws and regulations, these operations must comply with other specific rules and regulations.  The bill sets forth requirements for sanitation (i.e., keeping surfaces and utensils sanitized; washing hands; not working in the home kitchen when sick with a contagious illness; keeping children and pets out of the home kitchen when making the cottage food) and labeling (compliance with the Federal Food, Drug, and Cosmetic Act).

The bill also authorizes the director of the State Public Health Department to adopt regulations that are reasonably necessary to implement the proposed law covering sanitation procedures, labeling requirements, and registration (potentially including “reasonable fees”).  The director is prohibited from requiring an inspection of the operation as a prerequisite to register.  Further, the director is prohibited from setting a maximum annual gross sales amount for a cottage food operation (some states have a limit).

Lastly, the bill addresses the potential zoning violations that are common in allowing a commercial activity in a residential zone.  Because local governments (city and county) most often retain authority over zoning, the bill expressly states that “a city, county, or city and county shall not prohibit cottage food operations in any residential dwelling.”  Instead, the municipality can: (1) classify cottage food operations as a permitted use in a residential zone; (2) grant a nondiscretionary permit to the operation that requires compliance with local ordinances concerning spacing and concentration, traffic control, parking, and noise control; or, (3) require the cottage food operation to apply for a permit, which shall be granted if the operation complies with the local ordinances of the kind mentioned above.

The latest bill action noted on the California legislative information website shows AB 1616 may be heard in committee March 10.

The ordinance, referred to as a “food sovereignty proposal,” was met with support from the five-member Board and those in attendance.

Raw Milk and Cow Shares

Chelseth’s interest in a local food ordinance began last year after she was issued a cease and desist order from the California Department of Food and Agriculture for operating a cow-share that consisted of two cows and 15 owners. Under a cow share arrangement, people pay to become part owners (the purchase of “shares”) of a cow. The shareholders pay the farmer to board and care for the cow, and as part of their ownership, they’re entitled to a share of the raw milk.

California law permits sales of unpasteurized milk from farms and in retail stores, provided that the dairy is licensed and inspected.  Some, including Chelseth, argue that cow shares fall outside of such regulation because the milk isn’t being sold — the shareholders already own the cow.

The California Department of Food and Agriculture disagrees. The agency considers cow shares to be commercial transactions, and subject to the public health regulations that govern dairy production in California.

Introducing the Local Food Ordinance

Like the Local Food and Community Self-Governance ordinances passed in Maine, the El Dorado County ordinance would exempt from state or federal licensure and safety inspection transactions that occur in the Placerville area directly between a producer and a consumer, when the food is for home consumption.

Unlike the ordinances passed in Maine, the El Dorado County version includes five subsections that address the right to own livestock, the right to contract for care and production of such livestock, the right to the products of that livestock, the right to contract for specialty food items (such as baked goods and jams), and the right to participate in private food clubs.

Nearly six months after Chelseth held a meeting on her farm to discuss the creation of a local food ordinance, the El Dorado County Board of Supervisors took up the issue.

In Chelseth’s remarks to the board, she quickly reviewed recent court holdings and documents that assert consumers do not have a fundamental right to produce and consume the foods of their choice or a fundamental right to own and use a dairy cow or dairy herd, and that a cow-share contract does not fall outside the scope of state regulation (see the Wisconsin decision for the most recent example).

She then cited the county’s history of “noble pioneers and hearty farmers” and asked the board to be a pioneer and beacon for what she called citizens’ “right to choose.”

Support and Concerns

The board members each expressed support for the ordinance as well as some concerns.  While supporting local producers would be beneficial to the area’s economic development, and restore authority around local food production to the producers, board members also noted their desire to proceed cautiously and thoughtfully in drafting and passing this kind of ordinance.

Supervisors Ray Nutting and Ron Briggs shared their personal experiences of watching the agriculture and food system change and dealing with the laws as they stand today. Nutting expressed strong support for the ordinance, saying that the board would do whatever it could, within the limits of the California and U.S. Constitutions, to bring the laws and policies in line with the goals of the ordinance.

The board underscored that it was “on the same page” as Chelseth in wanting to enact the ordinance, but also needed to address some of the legal issues raised in this ordinance.  Briggs noted that the legal issues were not insurmountable and that the board would work with Chelseth to create a better ordinance.

Supervisor Jack Sweeney suggested first creating a unified resolution asking the state and federal governments from interfering in what they consider an entirely local issue.  Sweeney said the board needed to address the potential conflicts with the U.S. and California constitutions in order to prevent the supervisors from violating their oaths of office and from getting the county into significant legal trouble.  “We don’t want to be anarchists,” he said. “We just want to have our home foods.”

In the end, the supervisors passed a motion directing Briggs and Norma Santiago “to prepare a resolution of general support to bring back to the Board of Supervisors for adoption.”

Although El Dorado County did not pass the ordinance that night, it appears from the discussion at the meeting and the momentum these types of ordinances are gaining around the country, that it may not be long before El Dorado County declares its “rights” to local food self-governance.

To see video of the ordinance discussion at El Dorado County Board of Supervisor meeting on Jan. 24, 2012, click here (note: after you click, the link will ask if you want to open the minutes of the meeting before it proceeds to the video page).

Agriculture Deputy Secretary Kathleen Merrigan announced Wednesday that the organic certifying programs in the United States and Europe Union are now considered equivalent.  The new partnership between the two largest organic producers in the world means that products certified organic under one certification scheme can be sold as organic in the other without additional certification and paperwork.

Prior to the partnership, producers and companies seeking to trade their organic products both domestically and abroad had to obtain two separate certifications, one from the U.S. and one from the EU.  Each certification required its own fees, inspections, and paperwork.  By declaring the organic standards equivalent, the partnership eliminates many significant barriers, especially for small and medium-sized organic producers.

In a press release, Deputy Secretary Merrigan noted the new partnership “is a win for the American economy and President Obama’s jobs strategy.  This partnership will open new markets for American farmers and ranchers, create more opportunities for small businesses, and result in good jobs for Americans who package, ship, and market organic products.”

The partnership recognizes that while the certification standards are compatible, there are some differences that need to be addressed.  As a general rule, all products that meet the terms of the partnership may be traded and labeled as certified organic produce, meat, cereal, or wine.  

The major difference comes in the use of antibiotics.  Under the agreement, U.S. apples and pears produced using antibiotics (to control fire blight) may not be exported to the EU, and EU meat and milk derived from animals treated with antibiotics may not be exported to the U.S..

The terms of the partnership require the U.S. and EU to have regular discussions and to periodically review each other’s programs to ensure that the partnership agreement is being met.

The international trade implications of this partnership are huge.  The combined value of the EU and U.S. organic sectors is valued at $50 billion each year, and growing.  Officials at USDA estimate that U.S. organic exports to Europe will triple within three years.

EU Commissioner Dacian Ciolos noted that the partnership “improves transparency on organic standards, and enhances consumers’ confidence and recognition of our organic food and products.  This partnership marks an important step, taking EU-U.S. agricultural trade relations to a new level of cooperation.”

The Institute at Golden Gate’s report entitled Food For the Parks: Case Studies of Sustainable Food in America’s Most Treasured Places highlights four national parks and the advances each of those parks has made to increase local, sustainable, and healthy food.  Two of the parks are located in California:  Muir Woods National Monument in Golden Gate National Parks and Asilomar State Beach and Conference Grounds.  The other two case studies are in Yellowstone National Park (northwest Wyoming and southwest Montana) and Mount Rushmore National Memorial (South Dakota). The report also highlights “other notable park sustainable food activities” that cover a diverse range of locations within the United States.  Although each of the sites faces different challenges, each has made significant progress in accomplishing the goal of improving the food served on its premises.

The initiative has had a number of positive impacts in addition to improving the quality of food served at the parks.  Sourcing produce and other food items locally provides economic development for local businesses, the parks can use the initiative as educational material for visitors, and packaging and waste generation are better managed and often significantly reduced.

Some highlights of the report include:

Muir Woods Café:  

The Café creates seasonal menus to maximize the use of local food.  According to the report, “all fruits and vegetables are organically produced, and in 2009 87 percent of produce was sourced within 30 miles of the park.”  The Café has partnered with Rustic Bakery, a local bakery that uses only organic and local ingredients and prepares all the food by hand.  The business Rustic Bakery gets from the national park and one other customer has allowed the Rustic Bakery to double its production capacity.

Asilomar State Beach Crocker Dining Hall:

The retail shop at Asilomar serves tea and Fair Trade, shade-grown coffee, more than half of which is organic.  Crocker Dining Hall serves fresh seafood that is on the Seafood Watch green list, sustainably grown fruits and vegetables, and California cheese and wine.  The concessioner, Aramark, is working to make all of its to-go packaging compostable.  Currently, Aramark has partnered with Monterey Regional Waste to compost food waste and compostable packaging, which is then sold to farmers.

Yellowstone Lodges:

Xanterra Parks & Resorts, Yellowstone Lodges’ concessioner, made a company-wide sustainability goal to spend 50 percent of all food expenditures on “sustainable food” by 2015.  For Xanterra, “sustainable” food and ingredients mean: “purchased from USDA-certified organic producers, produced within a 500-mile radius of the park, Fair Trade certified, or on the green list of the Marine Stewardship Council (MSC).”  Currently, under this definition, 32 percent of Yellowstone’s food and beverage offerings are sustainable.  The use of local sourcing has reduced transportation costs for Xanterra.  Yellowstone offers local products like beef, potatoes, produce, bread, dairy products and unique local products such as huckleberries, game, and MSC-certified fish including salmon.

In terms of energy and waste management, Xanterra diverts its used cooking oil (10,000 gallons per year) to heat its hotel facilities.  This project alone reduces the amount of diesel fuel used and keeps 200,000 pounds of carbon dioxide from being admitted to the atmosphere.  Xanterra also owns and operates a composting facility on site that turned 2.2 million pounds of waste into marketable compost.

Mount Rushmore Carvers Café:

Although it is more of a challenge to source local products from South Dakota, Xanterra has made significant progress in taking advantage of the products that are produced locally.  Carvers Café purchases hormone-free, grass-fed bison from a local rancher for burgers, chili, and stew.  Visitors can purchase food items that are typical of the Northern Plains region, including “gourmet Lakota Popcorn from the harvest of the Lower Brule Sioux Tribe, bison, antelope, elk, or venison sausage, Railroad Bill’s Cashew Crunch, and Sioux Fry Bread mix that visitors can bake at home.”  Because of a lack of locally sourced produce, Xanterra planted a garden in a nearby town to provide for some of its fresh produce needs and built a greenhouse on top of the café to grow spinach and other items year-round.

The Food for the Parks report provides an interesting look at the benefits and challenges of increasing local, sustainable, and healthy food options at the National Parks.  The four case studies “highlighted in this report collectively hosted 14.8 million visitors and represent $116.6 million in annual revenues.  Committing just 10 percent of this purchasing power toward sustainably produced foods creates a multi-million dollar driver for local and organic businesses that are producing food using environmentally responsible methods.”

The report concludes by noting that part of the National Park Service’s mission is to preserve the scenery and natural environment so that future generations can enjoy those unimpaired protected spaces.  “At a time when climate change threatens scenery, natural and historic objects, and wildlife in parks, sustainable food sourcing in park concessions is both possible and necessary to ensure that future generations will have the chance to enjoy them.”

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Alli Condra is pursuing her LL.M. in Agricultural and Food Law at the University of Arkansas, and is the recipient of the Marler Clark Graduate Assistantship.

La Via Campesina’s “Food Sovereignty” Movement

La Via Campesina first defined the notion of food sovereignty at the World Food Summit in 1996.  La Via Campesina is “an international movement which brings together millions of peasants, small and medium-sized farmers, landless people, women farmers, indigenous people, migrants and agricultural workers from around the world.  It defends small-scale sustainable agriculture as a way to promote social justice and dignity.  It strongly opposes corporate driven agriculture and transnational companies that are destroying people and nature.”

La Via Campesina’s model of food sovereignty focuses on empowering the poor and other socially disadvantaged peoples to regain and maintain control over food systems.  Food sovereignty is a matter of food security and of fairness.  In 2003, La Via Campesina described food sovereignty as:

” … the right of peoples to define their own food and agriculture; to protect and regulate domestic agricultural production and trade in order to achieve sustainable development objectives; to determine the extent to which they want to be self reliant; to restrict the dumping of products in their markets … Food sovereignty does not negate trade, but rather, it promotes the formulation of trade policies and practices that serve the rights of peoples to safe, healthy and ecologically sustainable production.”

The document further asserts that it is the role of government to “uphold the rights of all peoples to food sovereignty and security, and adopt and implement policies that promote sustainable, family-based production rather than industry-led, high-input and export oriented production.”  In order to accomplish those goals, governments must address a number of issues, including food safety.

Food Safety as Part of Food Sovereignty

The food safety element of La Via Campesina’s food sovereignty declaration includes controlling pests and disease, protecting against environmental pollution, prohibiting the use of antibiotics and hormones in aquacultures, and banning irradiation of food.  Governments must establish food quality standards that reflect the culture and values of its people and establish quality control measures to comply with environmental, social and health quality standards.

Further, the declaration maintains that governments must “ensure that all food inspection functions are performed by appropriate and independent government bodies, and not by private corporations or contractors.”  La Via Campesina envisions governments having an active role in protecting and promoting food safety, and therefore food sovereignty.  

The Expansion of Food Sovereignty

The underlying problem La Via Campesina seeks to change is the degree of power and control that corporate interests have over food systems.  The focus is on localizing trade and providing local producers with access to their own markets.  In 2003, Peter Rosset, former Co-director of Food First/Institute for Food and Development Policy, wrote:

“… [w]hat Via Campesina and others say is that we face a clash of economic development models for the rural world.  The contrasts between the dominant model, based on agroexports, neoliberal economic policies, and free trade, versus the food sovereignty model, could not be more stark.  Where one model sees family farmers as an inefficient anachronism that should disappear with development, the other sees them as the basis of local economies and of national economic development.”

In 2011, in the face of continued corporate control and increasingly visible injustices within the food system, people around the world are taking action to regain control of their own food systems.  The original driving issues – land reform, ending harmful international trade agreements, removing corporate control of food systems, etc. – have remained the same.

How the food sovereignty movement manifests itself is shaped in large part by issues like the 2008 food riots and the Occupy Wall Street movement (called Occupy the Food System).  In the United States, this movement includes increased participation in urban gardening, farmers’ markets, community supported agriculture, and school gardens, and through the promotion of sustainable, local economic development.

Maine’s “Food Sovereignty” Movement

The five towns in Maine that passed Local Food Ordinances in the past year are considered part of the food sovereignty movement in the United States.  These ordinances reject any state or federal involvement in the town’s local food production.  The ordinances are a response to allegedly over-burdensome regulations and a desire for the community to sell food to one another like they did one hundred years ago – without government interference.

One of the concerns driving these local food ordinances is fear that FDA will shut down things like church suppers and bake sales.  This is based on a misunderstanding of the law.  Setting aside the practicality of such action for FDA, the Food Safety Modernization Act exempts small local producers, farmers, and direct-to-consumer transactions from most federal regulations.  The FDA is not going to interfere with church suppers and bake sales.

However, what makes this lawsuit and the legality of these local food ordinances more complicated is that Dan Brown was selling raw milk.  Raw milk is a hot-button issue with passions running high on both sides.  Raw milk cannot be sold interstate, as per FDA rules, but each state has the authority to decide whether raw milk can be sold within its borders and how to regulate its production and sale.

Maine allows the sale of raw milk as long as certain licensing and inspection procedures are followed.  According to the State, Brown did not comply with those procedures and a sample of raw milk tested from his dairy was found to have levels of bacteria high above the state’s standards.  This is not only an issue
of government involvement i
n food but of food safety.

Reconciling “Food Sovereignty” with Maine’s Local Food Ordinances

The desire to place control over local food systems and transactions in the hands of local people is an important one.  The part of the Maine movement to empower, support, and grow local producers is something that should be pursued.  It is also something that falls squarely within the goals of the food sovereignty movement.

However, advocating for no government oversight of the food system is less aligned with food sovereignty and more aligned with something like a Libertarian perspective.  It is ok for these Maine towns to take that stance, but to call it “food sovereignty” is misleading.  

The food sovereignty movement as envisioned by La Via Campesina does not reject government involvement – especially in food safety.  It seeks thoughtful, smart, and necessary regulation that will not harm the development of local markets.  Ensuring a safe food supply – for example, by testing each batch of raw milk to ensure its safety – is something that La Via Campesina would likely support.

Whether you call the local food ordinances “food sovereignty” or something else, the issue of food safety must be taken into account.  The supporters of the local food ordinances need to identify the specific regulations that are too burdensome and come up with ways to lessen the burden, rather than reject outright all government involvement.  If what the supporters in Maine are seeking truly is no government regulation or no oversight of the food system, they need look no further than China to see the potential consequences.

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Alli Condra is pursuing her LL.M. in Agricultural and Food Law at the University of Arkansas. She is the 2011-12 recipient of the Marler Clark Graduate Assistantship.

on holidays as a way to share our favorite recipes and love of food,

and also to take a little break from writing about the potential risks

in what we eat.

Always, but especially at

Thanksgiving, we’re grateful for the many people who work hard to

provide us with fresh, wholesome and safe food.

Just like last year,

in addition to the turkey, our virtual Thanksgiving 2011 potluck

includes a choice of two soup starters – Gretchen’s Thai Butternut

Squash soup and Andy’s Gorgonzola and Celery Soup. Helena has

contributed homemade herb chard stuffing., Dan is offering pumpkin

applesauce muffins, Alli is bringing herb-roasted winter veggies, Suzanne

has made apple-blackberry pies and Cookson has suggested coconut-milk

pumpkin pie.

Thank you for reading Food Safety News. Have a happy and food-safe Thanksgiving.

Alli’s Herb-Roasted Winter Veggies

I first stumbled upon this recipe in a holiday issue of Vegetarian Times a few years ago and made it for our family’s Christmas Eve dinner.  I love this recipe for a number of reasons.  First, the combination of favorite winter vegetables roasted at a high heat with lemon and some herbs (dried herbs work just as well) results in a delicious and beautiful (I think) dish.  Second, this dish showcases a variety of tastes and nutritional powerhouses.  I make this recipe often, especially as the temperatures drop, and I am never disappointed!  Feel free to ignore the measurements – the important part is coating the veggies with oil and heating them at the high temperatures. 

Herb-Roasted Winter Veggies

Serves 4

Ingredients:

– 2 c. bite size cauliflower florets, each halved lengthwise

– 2 c. halved Brussels sprouts

– 2 medium carrots, cut into sticks

– 1 medium yam or sweet potato (1/2 lb.), diced

– 3 Tbs. garlic-infused olive oil, divided

– 1 Tbs. chopped fresh rosemary

– 2 tsp. chopped fresh thyme

– 2 Tbs. chopped fresh parsley

– 2 tsp. lemon juice

Instructions:

Preheat oven to 450F.  Place cauliflower, Brussels sprouts, carrots, and yam in large bowl.  Add 2 Tbs. oil, rosemary, and thyme, and toss to coat.  Season with salt and pepper if desired.  Scatter vegetables evenly on baking sheet, and roast 20 minutes, turning 2 or 3 times with spatula.  Increase oven temperature to 500F, and roast vegetables 10 minutes more, or until tender.  Transfer vegetables to large serving bowl, and add parsley, lemon juice, and remaining 1 Tbs. oil.  Toss to mix and serve.

What makes this lawsuit more interesting is that the town of Blue Hill is one of five Maine towns that recently passed a Local Food and Community Self-Governance Ordinance.  This ordinance — sometimes referred to as food sovereignty — exempts small local producers from state and federal licensure and inspection laws as long as the transaction is between the producer or processor and the consumer, and the food is sold for home consumption (not for resale).  It is a declaration of the municipality’s supposed right to self-government. The preamble to the Local Food Local Rules Ordinance template reads:

We the People of the Town of (name of town), (name of county) County, Maine have the right to produce, process, sell, purchase and consume local foods thus promoting self-reliance, the preservation of family farms, and local food traditions.  We recognize that family farms, sustainable agricultural practices, and food processing by individuals, families an non-corporate entities offers stability to our rural way of life by enhancing the economic, environmental and social wealth of our community.  As such, our right to a local food system requires us to assert our inherent right to self-government.  We recognize the authority to protect that right as belonging to the Town of (name of town).

We have faith in our citizens’ ability to educate themselves and make informed decisions.  We hold that federal and state regulations impede local food production and constitute a usurpation of our citizens’ right to foods of their choice.  We support food that fundamentally respects human dignity and health, nourishes individuals and the community, and sustains producers, processors and the environment.  We are therefore duty bound under the Constitution of the State of Maine to protect and promote unimpeded access to local foods.

In addition to asserting an exemption from state and federal licensure and inspection requirements, the ordinance asserts a right to access and produce food, a right to self-governance, and a right to enforce the ordinance. The ordinance also states that any state or federal law or regulation that interferes with the rights set forth by the ordinance is unlawful and should any level of government attempt to preempt, amend, alter or overturn the ordinance, the town will assemble to decide a course of action to protect what it claims as a right to self-government.

When the town of Blue Hill was deciding whether to approve this ordinance in April, the debate that ensued illustrated the difficult balancing test faced by advocates for local food and local control over food systems. One concern focused on whether enforcement of FDA regulations (which largely exempt small farms and producers) may be a threat to local food traditions and activities, such as bake sales and church suppers.  

Another significant concern raised during the discussion surrounded the town’s own responsibilities and liability in enforcing an ordinance that takes a strong stance against what some term as state and federal interference in local food decisions. Selectman John Bannister expressed sympathy for the farmers and indicated there were many areas where the state and federal governments were allegedly over-regulating individuals and business. However, Bannister also was concerned that enacting the ordinance might force the town into a costly legal battle to defend a challenge. Those present at the meeting also expressed apprehension about the drastic measures the town is permitted to take to protect what it defines as its rights, which include “the partial or complete separation of the town from other units and levels of government.” In the end, voters in Blue Hill passed the ordinance by an overwhelming voice vote.

The lawsuit filed by the State of Maine just seven months after the ordinance passed may provide an opportunity to test whether assertive action taken by local governments to support food systems of their choosing, or to exempt themselves from food-safety regulations, will hold up in court.  In the meantime, support surrounding Farmer Brown is mounting and includes a Facebook page entitled “We Are All Farmer Brown” and a YouTube video “Farmer Dan Brown Tells His Story.”

On Friday, November 18, the Blue Hill Board of Selectmen held a meeting to decide what to do about the lawsuit filed against resident dairyman Dan Brown. With 150-200 Farmer Brown supporters gathered outside the Blue Hill Town Hall, the three-member Board of Selectmen unanimously voted to ask the state to drop the charges against Brown and to respect the town’s local food ordinance. Brown said he plans to fight the injunction and continue selling raw milk from his dairy without a license because of the local food ordinance passed in Blue Hill last spring.

Despite the show of support for Brown, the raw milk industry in Maine is divided over the issue.  There is at least one other raw milk producer, Heather Retberg, who supports the local food ordinance and Brown – her perspective is that the community has “asserted the right to choose what food we eat and feed our families.”  However, Brian Call and Joan Gibson, who own an organic farm in Maine and are licensed to sell raw milk, feel that the state’s licensure and inspection process is not overly burdensome.  Gibson acknowledged that there are circumstances in which FDA over-regulates farmers, but that requiring raw milk farmers to comply with health and safety requirements is not unreasonable.

Brown has until Wednesday, November 23, to file a written response to the lawsuit.

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Alli Condra is pursuing her LL.M. in Agricultural and Food Law at the University of Arkansas. She is the 2011-12 recipient of the Marler Clark Graduate Assistantship.

Historically, farm bills have provided financial support for commodity crops (such as wheat, corn and soybeans) and no financial support for fruits and vegetables. Two types of subsidies given to commodity crop producers come in the form of direct and counter-cyclical payments.  Counter-cyclical payments are tied to market prices. Farmers will get paid when the price of their commodity is less than a price set by the government. Direct payments, on the other hand, are paid to a producer regardless of the market price of the crop. The payments are based on the number of acres the producer was growing when the subsidy program began.

The direct payments program allows a producer to plant anything he or she wants except for fruits and vegetables and still remain eligible to receive payments. Why would fruit and vegetable producers be excluded from receiving direct payments?

The short answer is that the fruit and vegetable producers did not want fruits and vegetables to be subsidized. A look back at Congressional records from the 1990 Farm Bill provides some interesting insight into how we got to where we are today.

1990: A “Flexible” Farm Bill

In 1990, the farm bill debate centered on whether to give farmers more flexibility in what they plant without jeopardizing their eligibility for farm payments. Traditionally, eligibility was based on a farmer’s “historical planting patterns” so that if the farmer switched to a new crop, the farmer would lose eligibility for farm payments.

The notion of allowing a farmer to plant a different crop and remain eligible for payments, or “decoupling” payments from production, was quite controversial. A June 14, 1990, Reuters article reported that the Senate Agriculture Committee rejected an amendment that would have allowed producers to rotate crops on 25 percent of their base acres without losing payments or program eligibility. Then-Senator Tom Daschle said, “The issue is not flexibility. The issue is decoupling. I think it’s a big mistake from a policy standpoint.”

It’s About Flexibility:  Any Program or Non-Program Crop

Despite Daschle’s disapproval, the July 6, 1990, Senate report included farm bill language that would have allowed producers the flexibility to plant any crop on 25 percent of their land without suffering a reduction in base acres used to determine payments.

If producers wanted to grow fruits or vegetables on a portion of their land, the producers would remain eligible for farm payments. The Agriculture Committee intended “that producers be allowed to plant within acreage limits any crop on acreage the producer so chooses, without suffering a loss in crop base acreage.”

Flexibility was still the buzzword in the July 18 Senate report:  Sen. Bob Kerrey of Nebraska commented at the time, “Planting flexibility is important because it frees farmers to produce any mix of crops in response to market signals. It is also important because planting flexibility allows farmers to rotate their crops and thus better conserve the soil, protect groundwater, and thus reduce the need for fertilizers and herbicides.”

Proponents of decoupling farm payments wanted producers to be able to respond to market forces and not be locked in to growing a certain crop just to remain eligible for farm programs.

It’s About Fairness:  Except Any Fruit or Vegetable Crop

There must have been some significant lobbying in the days following the abovementioned Senate reports because on July 24, 1990, Sen. William Cohen from Maine introduced an amendment “to prohibit certain fruits and vegetables from being eligible for the flexibility provisions in the commodity title.”

Cohen and other supporters of the amendment were concerned about fairness – “the fairness that is involved here is the situation where those who are covered with federal supports are in direct competition with those who are not.”

Sen. Kent Conrad of North Dakota expressed concern that program crop producers with a protected base would shift to producing non-program crops (including fruits and vegetables) during times of high prices, which would drive down prices and negatively impact those growers who rely solely on non-program crops for their livelihood.

The amendment was not without its critics. Sen. Rudy Boschwitz of Minnesota criticized the farm bill for sending mixed messages to farmers – for example, one farm bill focuses on planting more crops, and then the next encourages conservation. Boschwitz supported introducing more flexibility for farmers to respond to market forces in choosing what they plant, and therefore was very critical of the Cohen amendment.

“The purpose of this [farm] bill is not to lock farmers into doing certain things,” Boschwitz commented, “But now, as we begin to unlock, we are once again locking up by virtue of this amendment. We are saying to the farmers: You have flexibility, but not very much flexibility.  Yes, you can plant your regular crop or you can respond to the market, but not in all crops.  Not in most crops, as a matter of fact. … It is for that reason I object to this amendment.”

The focus on fairness to non-program fruit and vegetable growers prevailed over flexibility in the end. The amendment was supported by both the minority and majority members of the agriculture committee, the Western Growers Association, the American Farm Bureau Federation, the Florida Fruit and Vegetable Association, the United Fruit and Vegetable Association, the National Potato Council, and the administration.

Cohen concluded his remarks by focusing on the unfairness in allowing program farmers to try growing fruits and vegetables (and to be in direct competition with non-program fruit and vegetable growers) and in providing those program farmers with a safety net should their venture into fruits and vegetables not prove, well, fruitful.

“Do not ask Maine farmers to watch while their competitors whom they are subsidizing through their tax dollars come in and seek a share of the market and, if they fail, go back to their full acreage protection,” Cohen urged.

“All we are saying by this amendment is that if you want to get into the market, if you want flexibility, you cannot expect a guarantee. We are saying that you cannot go out into the volatility of the marketplace and then come back into the safety of the federal government’s security program. We do not have a security blanket for Maine potato farmers or other fruit and vegetable producers.”

Where We Are Today

During the debate on the fruit and vegetable amendment in 1990, Sen. Dick Lugar from Indiana, who did not support the amendment, said: “I take this occasion, however, to point out that there will come a time, I suspect, when many farmers will not be involved in the programs. They will find it advantageous economically not to restrict their planting in order to qualify for program crops. They will make choices as the market dictates.”

Twenty-plus years later, Lugar’s predictions have not come true as he imagined:  farmers continue to farm program crops to receive direct payments (to the tune of $4.9 billion a year) and groups such as the American Farm Bureau Federation still strongly support direct payments.

Lugar’s predictions have some truth in that many farmers may not be involved in the programs anymore. The difference is, however, that Congress, and not the farmers, will decide whether direct payments and other farm support programs will continue into the future.  The level-playing field for fruit and vegetable production that Cohen hoped for may become more of a reality.

A perhaps unintended consequence of excluding themselves from the direct payments program is that fruit and vegetable producers have created a successful industry without ever having received any subsidies, an experience that may prove crucial in the upcoming budget cuts.

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Alli Condra is pursuing her LL.M. in Agricultural and Food Law at the University of Arkansas. She is the 2011-12 recipient of the Marler Clark Graduate Assistantship.

That which we call a rose by any other name would smell as sweet.” 

– Romeo and Juliet

On Sept. 22 the U.S. Farmers and Ranchers Alliance (USFRA) hosted four “Food Dialogues” in major agricultural production and policy areas to, in their own words, answer consumers’ questions and have an open discussion about American production agriculture and the future of food.

Perhaps anticipating criticism, an August blog entry on the Food Dialogues website states that, “the goal is not to advance an agenda or to persuade you to any particular point of view.  We simply want to create a forum that, we hope, will result in all of us being better informed about issues that affect our lives, our health, our planet and our future.”

With an affiliate list that reads like a who’s who of production agriculture, media materials such as the full page ads in major newspapers that read “Since When Did Agriculture Become a Dirty Word?”, and panel questions and responses that often felt staged, it is difficult to believe the USFRA when they say they want an “open discussion” about American agriculture.  Quite to the contrary, the Food Dialogues have all the markings of an aggressive marketing and rebranding campaign.

“What’s in a name?”: Defining “Dialogue”

The various dictionaries define “dialogue” in basically two ways: (1) dialogues in novels and plays in which two or more characters are having a conversation; and, (2) truly open conversations exploring (and trying to bridge) areas of difference between two parties.

If the purpose of the Food Dialogues had been to simply educate consumers about American agriculture from a specific point of view, the USFRA would have successfully had a dialogue under the first definition.  With the stage set and the characters in place, ready with their lines, the USFRA simply had to raise the curtain and in four acts present “The Food Dialogues” to its audience.

The trouble with this situation is that the Food Dialogues were more like dialogues in a play, dressed up in “open conversation dialogue” clothes.  In the area of food law, we call this kind of “trying to be something you’re not” thing “misbranding.”

Characters in a Play:  Education of American Consumers

The USFRA clearly has a right to put forward its own perspective and to educate Americans about why it thinks production agriculture, as it stands, is a positive thing.  And, it is a perfect time to do so.  Despite the attention that Michael Pollan, Food Inc., and others have brought to food and agriculture issues, two recently conducted studies show that consumers actually know very little about food and agriculture, but are thinking and caring about it a lot.

A study the USFRA conducted over the summer found that most consumers (72 percent) know nothing or very little about agriculture, but think about food production somewhat often and especially when purchasing groceries.  It also found that most farmers and ranchers think the general public’s perception of modern farming and ranching is only somewhat or not at all accurate.  Interestingly, the study found that 39 percent of consumers think the U.S. is heading in the right direction in the way we produce food while 42 percent think the U.S. is heading off on the wrong track – the nation stands divided.

The other study, commissioned by the David & Lucile Packard Foundation in July, focused on attitudes related to agriculture, the environment, and the federal budget.  Among the findings:

– 78 percent said making nutritious and healthy foods more affordable and more accessible should be a top priority in the next farm bill;

– 69 percent said reducing the use of chemicals that contribute to water pollution should also be a top priority;

– 57 percent did not agree with cutting funding for farm conservation programs, saying they save money by preventing pollution;

– 60 percent said farmers should be required to meet environmental standards such as protecting water quality or soil health as a condition of receiving subsidy payments and subsidized crop insurance; and

– 75 percent said helping family farmers stay in business should be a top or high priority in agriculture policy and 31 percent would make it the top goal of subsidy programs.

The time is ripe, so to speak, for all parts of the food and agriculture industry to educate consumers about these issues.  As dialogue in a play educates the audience, the Food Dialogues successfully conveyed the USFRA’s own perspective on agricultural production.

[Not] Truly Open Conversations

The Food Dialogues run into some problems trying to fit into the second definition of dialogue: truly open conversations exploring (and trying to bridge) areas of difference between two (or more) parties.

First, there were no other parties.  Despite the purported involvement of audience members and viewers online, the questions were largely pre-determined and there was no opportunity for follow-up of submitted questions.  Second, the panelists themselves largely seemed to come from the same viewpoint.  However, panelists from School Nutrition Association, American Humane Association Farm Animal Program, World Wildlife Fund, and Roots of Change offered different perspectives that provided some fleeting glimpses of a true discussion.

Unlike a true dialogue, the Food Dialogues did not address the fundamental questions and issues underlying our agricultural system.  Jason Clay, from World Wildlife Fund and on the D.C. panel, said “If you’ don’t know where you’re going, any road will get you there.  We have to figure out where it is we want to go.”  Instead of asking those tough questions and seeking out a variety of answers and perspectives, the Food Dialogues were one-sided and sometimes dismissive of issues Americans are seriously concerned about.  For example:

•Some on the Indiana panel focused on their self-declared status as a “typical family farm.”  But, what exactly is a family farm and does it matter?  (Apparently so, according to the study quoted above).  Are consumers more comfortable buying food if they think it comes from a “family farm”?  What if that family farm is a 32,000 head dairy operation, or a hog operation that raises 4,000 acres of crops and produces between 150,000 – 200,000 pigs a year?

•The issue of antibiotics and food safety was raised.  Instead of asking whether there were other ways to set up our agricultural system that might reduce the need for antibiotics, the panel emphasized the strict regulations requiring testing of milk to ensure there is no antibiotic residue (suggesting antibiotics are of no concern), their own judicious use of antibiotics (due to cost and consumer discomfort), and the safety of that meat and dairy despite antibiotic use.  The panel basically downplayed the issue, even though the debate over the impact of these antibiotics is not over.

•A video that played at the end of the Washington D.C. panel featured a cattle farmer who may very well be doing things right on his farm.  The farmer said that in terms of environmental practices in the cattle industry it only makes sense that farmers take care of the land because the next year the farmer has to bring the cattle back on the same land, and if the farmer hasn’t treated the land right, the grass won’t be there.  While his farm may have little or no runoff, the truth is that agriculture has significant, and often detrimental, impacts on the environment the costs of which are largely external to the farmers and the consumers (if you are a farmer or consumer in Louisiana, those costs are clearly not external to you).  The Food Dialogues would have been an opportune time to discuss ways that farmers could improve their practices to lessen their negative impact on environment.

•The issue of feeding the growing world population came up and the D.C. panelists were largely singing the “production agriculture” refrain.  Jason Clay was the only panelist to offer a cautious word about U.S. involvement in global food affairs.  Clay said that when we bring in cheap food from the U.S., we undermine local food markets and that we need to be more thoughtful about our actions and stimulate food production in those countries.

•Then there was WalMart and its statement that in its supply chain, there is room for everybody – from large conventional farms to small niche farms.  Is that something we as a nation want?  Do farmers want to be part of that chain?  Is it even true that there is room for everybody?  Tres Bailey, Director of Agriculture and Food at WalMart, said that sustainability also includes ethical and social issues and that the livelihood of farmers is one of those metrics.  Most people would agree with that statement.  However, who decides what an “appropriate price” for the farmers is?  WalMart wants their suppliers healthy, but by whose standards?

The Impact of the Food Dialogues

It is unclear how many people outside of the debate are paying attention to anything that the USFRA is doing and so it will be difficult to measure what impact these Food Dialogues actually have on Americans’ view of production agriculture.

Among those paying attention, however, the criticisms are strong and serious.  Nancy Huehnergarth, at NY State Healthy Eating and Physical Activity Alliance, warns that the USFRA is a deep-pocketed industry coalition whose multi-million dollar budget means it is a force to be reckoned with.  “When Big Beverage came to town,” she recalls, “with their slick, emotionally manipulative, deep pocketed advocacy marketing campaign to derail the proposed penny per ounce soda tax, we wound up losing.”  She cautions that the USFRA campaign is just the same and that “food and agriculture reformers will need to vigorously counter the messages that come out of the USFRA campaign.”

Anna Lappé criticized the Food Dialogues as being “an orchestrated framing of the message about ‘modern agricultural production’ from the perspective of big business.”  More seriously, she quotes an industry report from September 2010 titled “Farm & PR Groups Wrestle with National ‘Ag Image’ Campaign” that discusses the use of media to successfully rebrand agriculture.  According to the report, the yet-to-be-formed-USFRA media campaign was to be a “‘preemptive strike’ against ‘a long list of new regulations and restrictions coming out of the Environmental Protection Agency, the U.S. Department of Agriculture, and the Food & Drug Administration, ranging from tighter rules on pesticide applications to a potential ban of routine, preventative use of animal antibiotics.'”

A Call for a Real Dialogue

It remains to be seen whether and how this “marketing campaign in a dialogue’s clothes” has an impact on Americans’ opinions and attitudes about food and agriculture (and on legislation and regulation).  Shortly after the USFRA formed in November 2010, Professor Susan Schneider called for a true discussion about American agriculture:

Let’s have an honest discussion, i.e. a dialogue about the sustainability of our food system – environmental sustainability, social sustainability and economic sustainability (making sure that farmers earn enough to cover the costs of good production practices), not an ad campaign.  The farmers that I admire are the kind of people that step up to problems and are always looking for better ways to do things.  Not shoving problems under the rug and advertising complacency.

Given the number of pressing issues facing our food and agriculture system, we do not have the luxury of being distracted by rebranding campaigns pitched as open conversations (and, as my fellow LL.M.-er, Martha Dragich, commented, “True dialogue is impossible if honest inquiry is unwelcome.”).  What we need is to take a deeper, honest, more fundamental look at the things we value as a nation in our food and agricultural system, and figure out how to help our agricultural sector get there.  Farmers and ranchers of all types and sizes are innovative and responsive.  If we, as a nation, truly have an open dialogue about the future of agriculture and food production, we will be more able to meet the coming challenges.  And, given how huge they are, we better be ready.

———————–

Alli Condra is pursuing her LL.M. in Agricultural and Food Law at the University of Arkansas. She was chosen as the 2011-12 recipient of the Marler Clark Graduate Assistantship.

The FDA and Imports

The Food and Drug Administration (FDA) is responsible for ensuring that imported foods are safe and that unsafe imported foods will not reach consumers.[1]   Under the Food, Drug, and Cosmetic Act (FD&C Act), FDA has the authority to prevent the admission of any imported products that violate the Act. [2] 

Refusing Entry after Inspection

FDA has the power to refuse admission of a product if, upon “examination of such samples or otherwise,” the product appears to have violated FD&C Act in one of four ways: the product was “manufactured, processed, or packed under insanitary conditions;” is forbidden or restricted in sale in the country in which it was produced or from which it was exported;” is adulterated or misbranded; or is in violation of certain recordkeeping requirements.[3]  

In fiscal year 2010, there were 9,974,958 shipments of imported food to the United States.[4]   FDA was able to physically examine only 2.1 percent of those shipments (equal to 768,235 inspections).[5]   Had the FDA found a violation of the FD&C Act during one of those examinations, it could refuse to admit the product into U.S. commerce.  Given the low number of inspections conducted at the ports of entry, it is not surprising that in some situations products that have already been admitted into the United States are found to have violated the FD&C Act, requiring FDA to take action to protect consumers.

Import Alerts: Refusing Entry without Examination

An alternative to the inspection at port of entry process comes in the form of an “import alert.”

When FDA has enough evidence or other information that a certain imported product, whether prior to or after admission, is unsafe (or in some other way has violated or potentially could have violated the FD&C Act), FDA will issue an “import alert.” [6]   

An import alert is a notification from FDA to its field staff that all future shipments of the imported product may be refused admission without physically examining the product in each shipment (called “Detention Without Physical Examination” or DWEP). [7]   

FDA field offices, centers, and other government agencies (state and federal) provide information to and request import alerts from FDA’s Division of Import Operations and Policy (DIOP).   DIOP then gathers and reviews this information about the imported products and works with the Division of Field Science to ensure laboratory-testing methods are appropriate and reliable, and determine whether an import alert should be issued. [9] 

After an import alert has been issued for a shipment of food and the shipment has been refused admission, it is the importer’s responsibility to introduce evidence within 10 days to show that the product does not violate the Act. [10]   If the importer does not adequately prove that the product is safe, the product must be destroyed or exported within 90 days. [11]   The import alert will stay in place and all future shipments of the product will be denied admission until the violation is remedied, the importer provides enough evidence that the shipment is safe for consumers, or other conditions imposed by FDA are met. [12] 

What Triggers an Import Alert?

Import alerts are issued for a variety of reasons and on a variety of levels.  In FDA’s Regulatory Procedures Manual, FDA explains that “[d]etention without physical examination … is appropriate where there exists a history of the importation of violative products, or products that may appear violative, or when other information indicates that future entries may appear violative.” [13]

For example, the manufacturer or grower could have a problem or history of problems in their growing or processing facilities that have not been remedied and which have the potential to cause harm to consumers.  The product may have tested positive for a dangerous microbiological substance.  FDA has issued import alerts for seafood products contaminated with Salmonella, for seafood contaminated with Listeria monocytogenes, and for honey contaminated with Chloramphenicol.  An import alert may be issued after a recall of product that has already been distributed throughout the states.  The recent import alert for cantaloupes from Asuncion Mita, Guatemala, was based on findings of alleged contamination likely due to use of contaminated irrigation water, poor hygienic practices of workers, and/or processing produce with Salmonella contaminated water.  Additionally, an import alert may be issued for a specific product, manufacturer, shipper, grower, geographical area, and/or country, depending on the issue.

According to the FDA Regulatory Procedures Manual, in those instances where at least one sample of the product has been found to violate the Act and the type of violation, if not remedied, could result in serious health consequences, FDA is more willing to recommend an import alert based on just one violative sample. [14]   For example, the product may have adverse health consequences, contain an unacceptable level of pesticide residue, or contain undeclared significant ingredients (such as allergens) or unapproved colors. [15]   Other types of violations will require more than one sample showing a violation before an import alert will be issued.

What authority does FDA have to do this?

FDA has clear statutory authority to detain products after examination if they appear to have violated the FD&C Act.[16]   The authority to issue import alerts, which do not require physical examination of the product, is a little less clear, although FDA argues that the FD&C Act is explicit about FDA’s authority to do so. [17]   

The Act states that “[i]f it appears from the examination of such samples or otherwise” that a product has violated the Act in some way, FDA may refuse admission of the product. [18]   It is the language “or otherwise” on which FDA bases its authority to issue import alerts.  There is no explicit language about import alerts in the Act or in the regulations promulgated under the Act.[19]   However, in FDA’s Regulatory Procedures Manual, FDA asserts that “Congress authorized FDA to refuse admission of regulated articles based on information, other than the results of examination of samples, that causes an article to appear to violate the FD&C Act.” [20]  

Del Monte Fresh Produce recently challenged the FDA’s issuance of an import alert against cantaloupes from a farm in Asuncion Mita, Guatemala. [21]   Del Monte Fresh Produce asserts, among other things, that FDA is required to comply with more stringent administrative procedures before issuing import alerts.  Others have also questioned FDA’s authority to issue import alerts and what procedures are required. [22]

Problems Import Alerts Have for Industry

The automatic detention and refusal of entry for imported products can cause serious consequences for importers and other players in the production and import chain.  FDAImports.com, a group of consultants and attorneys that help industry through the import process, lists “shipment delays, supply-chain risks, increased costs and budget overages, not to mention the additional burden it places on a supplier to prove to FDA why [there] should not be [an] Import A
lert” as some of the serious
consequences facing an importer after being issued an import alert.[23]   Producers and importers of perishable goods are in an especially precarious position, as those products will not likely be salvageable if the importer is able to remove itself from the import alert list.

FDA has the resources to inspect only a fraction of the imported products that enter the United States each year; 2.1% of imported products were inspected last year.  FDA is charged with protecting consumers from products that are unsafe, especially those with adverse health impacts.  The duty to protect consumers and a lack of resources requires FDA to take action swiftly without the opportunity to inspect every shipment intended for import.

At this time, FDA will likely continue to issue import alerts and prevent the importation of products that it believes violate the FD&C Act in order to protect consumers from potentially harmful problems. The recently passed Food Safety Modernization Act addressed import alerts only in that the importers will be responsible for food inspection and reexamination fees. Unless and until the federal courts review FDA’s authority to issue import alerts, they will remain an important and controversial part of the U.S.’s food safety system.

[1]  FDA: Consumer Health Information, Import Alerts Guard Against Unsafe Products, August 2011, available at www.fda.gov/forConsumers/ConsumerUpdates/ucm269384.htm.

[2]  21 U.S.C. § 381(a) (2011).

[3]  21 U.S.C. § 381(a) (2011).

[4]  Report to Congress, Annual Report on Food Facilities, Food Imports, and FDA Foreign Offices Provisions of the FDA Food Safety and Modernization Act, April 6, 2011, http://www.fda.gov/Food/FoodSafety/FSMA/ucm250569.htm.

[5]  Report to Congress, Annual Report on Food Facilities, Food Imports, and FDA Foreign Offices Provisions of the FDA Food Safety and Modernization Act, April 6, 2011, http://www.fda.gov/Food/FoodSafety/FSMA/ucm250569.htm.

[6]  FDA: Consumer Health Information, Import Alerts Guard Against Unsafe Products, August 2011, available at www.fda.gov/forConsumers/ConsumerUpdates/ucm269384.htm. 

[7]  FDA: Consumer Health Information, Import Alerts Guard Against Unsafe Products, August 2011, available at www.fda.gov/forConsumers/ConsumerUpdates/ucm269384.htm. 

[8]  FDA: Consumer Health Information, Import Alerts Guard Against Unsafe Products, August 2011, available at www.fda.gov/forConsumers/ConsumerUpdates/ucm269384.htm.

[9]  FDA: Consumer Health Information, Import Alerts Guard Against Unsafe Products, August 2011, available at www.fda.gov/forConsumers/ConsumerUpdates/ucm269384.htm.a

[10]  FDA: Consumer Health Information, Import Alerts Guard Against Unsafe Products, August 2011, available at www.fda.gov/forConsumers/ConsumerUpdates/ucm269384.htm. 

[11]  FDA: Consumer Health Information, Import Alerts Guard Against Unsafe Products, August 2011, available at www.fda.gov/forConsumers/ConsumerUpdates/ucm269384.htm. 

[12]  FDA: Consumer Health Information, Import Alerts Guard Against Unsafe Products, August 2011, available at www.fda.gov/forConsumers/ConsumerUpdates/ucm269384.htm.

[13] FDA REGULATORY PROCEDURES MANUAL, Chapter 9: Import Operations and Actions, 9-19 (2011), available at http://www.fda.gov/downloads/ICECI/ComplianceManuals/RegulatoryProceduresManual/UCM074300.pdf.

[14]  FDA REGULATORY PROCEDURES MANUAL, Chapter 9: Import Operations and Actions, 9-21 (2011), available at http://www.fda.gov/downloads/ICECI/ComplianceManuals/RegulatoryProceduresManual/UCM074300.pdf.

[15]  FDA REGULATORY PROCEDURES MANUAL, Chapter 9: Import Operations and Actions, 9-22 (2011), available at http://www.fda.gov/downloads/ICECI/ComplianceManuals/RegulatoryProceduresManual/UCM074300.pdf.

[16]  21 U.S.C. § 381(a) (2011).

[17] See FDA REGULATORY PROCEDURES MANUAL, Chapter 9: Import Operations and Actions, 9-19 (2011), available at http://www.fda.gov/downloads/ICECI/ComplianceManuals/RegulatoryProceduresManual/UCM074300.pdf.

[18]  21 U.S.C. § 381(a) (2011).

[19] 21 U.S.C. § 381(a)(2011); 21 C.F.R. §1.94(a) (2011).

[20]  FDA REGULATORY PROCEDURES MANUAL, Chapter 9: Import Operations and Actions, 9-19 (2011), available at http://www.fda.gov/downloads/ICECI/ComplianceManuals/RegulatoryProceduresManual/UCM074300.pdf. 

[21]  See https://www.foodsafetynews.com/2011/08/del-monte-sues-fda-over-cantaloupe-restrictions/ for a link to the complaint.

[22]  Christine M. Humphrey, The Food and Drug Administration’s Import Alerts Appear to be “Misbranded”, 58 FDLJ 595 (2003), available at http://www.perishablepundit.com/docs/fda-alerts-misbranded.pdf; Bellarno Intern. Ltd. v. Food and Drug Admin., 678 F. Supp. 410 (E.D.N.Y. 1988).

[23]  FDAImports.com, FDAImports.com Overcomes Import Alerts and Other Obstacles:  2 Success Stories, http://www.fdaimports.com/blog/fdaimports-com-overcomes-import-alerts-and-other-obstacles-2-success-stories/ (last accessed Sept. 8, 2011).

[24] Opponents to the new fees are forming a coalition: http://www.fdaimports.com/coalition.php.

While MyPlate shows the relative portions of fruits, vegetables, grains, protein and dairy a person should eat, it says nothing about the quality of those foods.  Experts agree that MyPlate is a significant improvement from the Food Guide Pyramid, introduced in 1992, but the Harvard nutrition experts say it still does not provide enough of the guidance consumers need.  They think the Healthy Eating Plate, on the other hand, focuses on the types and quality of food consumers should choose to ensure a healthy diet because, as many people know, quality matters.

The central message of the Healthy Eating Plate is to get plenty of produce, choose whole grains, choose healthy sources of protein, use healthy oils, and drink water or other beverages that don’t contain sugar.

Harvard Health Publications points out that, “a hamburger or hot dog on a white bread bun with French fries and a milk shake could be part of a MyPlate meal – even though high red and processed meat intakes increase the risk of heart disease, diabetes, and colon cancer, and high intakes of refined grains and potatoes make it hard to control weight.”

Unlike MyPlate, the vegetable portion of the Healthy Eating Plate is at the top of the plate and increased in size to show that a variety of vegetables should make up a significant portion of the meal.  On the Healthy Eating Plate, potatoes and French fries don’t count as vegetables (likely neither does ketchup – sorry, President Reagan).  The Healthy Eating Plate also contains two additional recommendations that MyPlate does not: use healthy oils in cooking and at the table instead of butter and trans fats, and a reminder to stay active.

P.J. Skerrett, editor of Harvard Heart Letter, summed up the recommendations of the Healthy Eating Plate:

– Make half your meal vegetables and fruits.  Go for variety.  And keep in mind that potatoes and French fries don’t count.

– Choose whole grains whenever you can.  Limit refined grains, like white rice and white bread, because the body rapidly turns them into blood sugar.

– Pick the healthiest sources of protein, such as fish, poultry, beans, and nuts; cut back on red meat; avoid bacon, cold cuts, and other processed meats.

– Healthy oils (like olive and canola oil) are good for you.  Don’t be afraid to use them for cooking, on salad, and at the table.

– Drink water, tea, or coffee.  Milk and dairy are not must-have foods – limit them to 1-2 servings/day.  Go easy on juice.  Avoid sugary drinks.

– And stay active!

The Healthy Eating Plate offers a more complete, yet still simple, picture to guide consumers through the sometimes-overwhelming process of choosing healthy foods for their families.  Dr. Anthony Komaroff, professor of medicine at Harvard Medical School and Editor in Chief of Harvard Health Publications says, “We gave MyPlate a makeover to provide consumers with an easy to use but specific guide to healthy eating based on the best science available.”  

The Healthy Eating Plate has a lot going in its favor: simple graphic; simple and clear suggestions for making food choices; a reminder to stay active.  And as if that wasn’t enough, the folks at Harvard can boast that “the Healthy Eating Plate is based on nutritional science and is not influenced even a smidgeon by commercial pressure.”  Given the strength of the food industry, agricultural interests, and other political players, that is definitely something to brag about.

Alli Condra is pursuing her LL.M. in Agricultural and Food Law at the University of Arkansas. She was chosen as the 2011-12 recipient of the Marler Clark Graduate Assistantship.