A Sign of the Times: Food Law and Policy

Almost every day there is a major news story that touches on our food system: bird flu and the price of eggs, the impact of tariffs on the farm economy and on food prices, proposed cuts to SNAP and WIC payments, the elimination of federal grants for the purchase of locally grown fruits and vegetables, “Make America Healthy Again” (MAHA) and its efforts to remove synthetic dyes from food and to emphasize diet-health connections.

Each of these news items is grounded in law and policy. In the past, lawyers may have assumed that food law issues were relegated to a "food and drug law" practice in D.C., and an "ag law" practice was limited to farming country. However, today's issues transcend those traditional areas of practice. They showcase the new discipline of food law and policy, a specialized area of legal practice, scholarship, and academic study with its foundations in both agricultural law and food law. This article explores this area of law and its rise to a pinnacle of importance.

 

Agricultural Law

For a variety of reasons explored in legal scholarship and reflected in congressional debates, agriculture is often treated differently than other businesses and given a unique legal status. "Agricultural exceptionalism" is pervasive. For example, agricultural employers are exempted from many of the labor and employment laws that apply to other businesses. Agricultural exceptions are built into many of the environmental laws and regulations. Chapter 12 bankruptcy was created specifically for "family farmers." And federal farm programs and subsidized crop insurance create an elaborate and expensive safety net that protects some (but not all) of those businesses engaged in agricultural production. Agricultural law can be defined as the network of the special laws and exceptions applicable to the agricultural industry.

Agricultural law began to gain widespread recognition as a distinct legal discipline in the early 1980s. A severe farm financial crisis was brewing, creating challenging debtor-creditor work, more specialized laws, and a new network of practicing attorneys. In 1980, the University of Arkansas School of Law founded its LL.M. Program in Agricultural Law and the American Agricultural Law Association was organized. In 1985, West published its Agricultural Law casebook. Agricultural law courses were added to the law school curriculum of many law schools.

Agricultural law can best be described as an applied law – reflecting the application of each area of law to the agricultural sector. Typically, agricultural law stopped at the barn door. As even the Supreme Court confirmed, once the product left the farm, agricultural law was no longer at issue. While this may have made sense from the perspective of the farm client, it did not allow for the important legal considerations throughout the supply chain and certainly did not consider the ultimate consumer.

 

Food Law and Policy

Twenty years later, another new discipline began to emerge – this one more focused on the main product of agriculture – food. Previously, there was little connection between agricultural law and food law, and the latter was primarily the domain of D.C.-area law firms that specialized in practicing before the Food and Drug Administration. Food and Drug Law was the course offered at law schools, often with drug regulation taking center stage.

Around 2000, that began to change. Consumers, advocacy groups, and public health professionals raised the alarm about diet-health connections and our food system. They found comradery with those involved in agriculture who were concerned about concentration, industrialization, and the environmental harms associated with modern farming practices. Food law and policy began to emerge as a new discipline. Incorporating all the laws that frame the food system from beginning to end; this new discipline subsumed a good share of agricultural law and added to it. It also included the study of "food law," including the legal framework that supports and regulates food manufacturing, promotes safe food, and requires accurate labels, but expanded its narrow focus. It included consideration of the food safety net for families who need assistance and areas where the law falls short in assuring a safe, equitable food system.

Embracing the new perspective, agricultural law leader Professor Neil Hamilton began teaching a "Food and the Law" class at Drake Law School and "An Introduction to the Law of Food & Agriculture" in the University of Arkansas LL.M. Program. While these courses were primarily focused on agriculture, they looked at agriculture from the perspective of the consumer in addition to the farmer, a groundbreaking change.

In 2005, the University of Arkansas Law School founded its Journal of Food Law & Policy and offered the first "Food Law & Policy" course in the nation as part of its LL.M. curriculum. By 2009, the Arkansas LL.M. Program changed its name to "Agricultural and Food Law" and promised a holistic look at the food system, from farm to fork, incorporating both its traditional approach to agricultural law and a new approach to food law and policy. In 2010, under the leadership of Emily Broad Leib, Harvard Law School developed the first Food Law & Policy Clinic in the U.S. In 2016, the Academy of Food Law & Policy was formed. By 2017, it was reported that approximately one-third of the top 100 law schools in the country had some type of food law and policy class that combined agricultural and food law studies.

Because food law and policy largely began as a consumer-driven trend, practicing attorneys did not see the same immediate need for legal services that arose from the farm financial crisis. However, as consumers demanded more transparency and questioned their food choices, new legal issues arose. Mandatory labeling criteria such as the statutory defined use of the term "organic" were put into place. A host of private certifications such as humanely raised and fair trade-certified supplemented the regulatory system. The USDA offered its approval of certain voluntary marketing claims such as "raised without antibiotics." Terms such as "grass fed," "pasture-raised," "grown without pesticides," and "cage free" became commonplace but sometimes with questionable veracity. When is the use of a claim "false or misleading"? When does it violate a state consumer protection law? When does it raise a false-advertising action for competitors under the Lanham Act? Attorneys brought challenges and defended their farm and food business clients, while others guided those businesses through a new world of labeling, advertising, and marketing strategies.

Antitrust and anti-competitive practices are also critical legal issues that impact the food system. From grocery chain mergers to price-fixing in the chicken industry, the consolidated food industry is under review. Because of the specialized nature of the industry, food and agricultural law knowledge is critical to either prosecuting or defending such actions.

Agriculture constitutes the largest use of land and water in the U.S. In many areas, it is also the largest source of water pollution and erosion, emitting a large portion of greenhouse gases. Food production adds another level of consumption, with water use and water pollution issues raised with respect to meat and poultry production. Yet, food production is essential. Legal battles seek to find a sustainable balance between food production and environmental protection.

Food safety also plays a critical legal role. The CDC estimates that 48 million people contract a foodborne illness each year, 128,000 are hospitalized, and 3,000 die as a result. Lawyers bring actions to recover for their clients or defend the businesses involved. How to make food safer is a critical policy debate. That debate has been heightened due to workforce reductions at FDA, the Centers for Disease Control and Prevention, and USDA's Food Safety and Inspection Service.

Some large and mid-sized law firms now have explicit agriculture and food law practice groups to address these issues; personal injury lawyers promote their food law expertise. Smaller firms specialize their practice to focus on the legal needs of food businesses, including those with direct farm connections. Advocacy groups on all sides of the issues litigate, lobby, and educate on how the law impacts their constituents.

 

What is the future for agricultural and food law?

Climate change and its effects march on, challenging the food system in new ways. On the farm side, agricultural law expertise is needed to decipher carbon contracts, advise on climate-smart agriculture programs, and strategize on marketing strategies in a tariff-disrupted trade world. Environmental concerns are increasing. Water scarcity threatens food production in many areas of intense production. Food manufacturers and retailers face complex supply chains, new food safety protocols, and controversy over human rights and corporate social responsibility.

Harsh immigration policies threaten the workforce on which both agriculture and the food industry depend. Attorneys are on the ground working with farmers to assist in navigating H-2A visas, working with immigrants to defend their rights, and working with processors and restaurants to advise them on the law impacting their workers.

"Make America Healthy" promises disruption to the food system but may lack an appreciation for sound scientific research or a plan as to exactly what should replace it. Lawyers are needed on all sides of the issues raised. Legal expertise will be needed to bring about the promised changes, to defend against them, and to address repercussions. Challenges to the cuts made in local food distribution programs and the planned cuts to food assistance programs will demand policy advocacy and creative solutions, with lawyers needed at all stages.

Careers in agricultural and food law span the food system. Attorneys are needed in private practice, as in-house counsel or in a compliance role, serving in government with local, state, or federal agencies, or working in public service with advocacy organizations. The Ag Food Law Jobs Blog showcases some of the job opportunities.

With political change, economic uncertainty, shifting consumer concerns, and the impact of unmitigated climate change, it is difficult to predict exactly where the discipline of food law and policy will lead, but it is certain that the issues presented will only grow in importance. Now may be the time for attorneys to consider the opportunity to "practice what you eat."

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