Ethanol: The Real Growing Problem

The White House this week released the report, "Growing America’s Fuel." The report, created by President Obama’s Biofuels Interagency Working Group, "lays out a strategy to advance the development and commercialization of a sustainable biofuels industry to meet or exceed the nation’s biofuels targets."

I have been a critic of the use of conventional biofuels (i.e., corn-based ethanol) to satisfy the U.S. Renewable Fuel Standard (RFS), and unfortunately, this report does little to encourage optimism that our reliance on corn as our primary source of alternative fuel is going to change anytime soon.

Although the report espouses the need for, and support of, additional next-generation biofuels, the report also indicates support for expanded corn-based ethanol production. Noting that the current RFS “has effectively placed a 15 billion gallon cap on ethanol production from corn starch as part of a new 36 billion gallon target for 2022,” the report then states that “there are opportunities to develop new markets for corn-based ethanol that can provide improved economic stability, increased rural wealth and reduced use of petroleum based feedstocks.” Thus, the report appears to question the value of capping the use of corn-based ethanol to satisfy the RFS, while also encouraging expanding the market for such products. I am all for economic stability, increased rural wealth, and reduced use of petroleum, but I remain skeptical corn-based ethanol has a proper role in achieving those goals.

Beyond that, even in identifying problems related to ethanol production, the report is a cause for concern. The report argues “As more farms and forests are utilized for biofuels production, careful consideration of feedstock production practices and location of biomass conversion plants will be required to avoid serious impacts on existing food, feed, and fiber markets and the quality of natural resources upon which we all depend on for clean air and water.” This, it seems to me, has the analysis wrong.

The better report language would be: “Because feedstock production practices and location of biomass conversion plants could seriously impact existing food, feed, and fiber markets and the quality of natural resources upon which we all depend on for clean air and water, careful consideration of using more farms and forests for biofuels production is necessary.”

Alas, no one asked me.

Journal of Food Law & Policy Seeking Articles

The Journal of Food Law & Policy just announced that it is seeking submissions for placement in the Spring 2010 issue, to be published in June 2010. This unanticipated need presents an opportunity for an author to place an article and see it in print in a very short period of time.




Articles may be submitted via email to foodlaw@uark.edu or mailed to:

Journal of Food Law and Policy
University of Arkansas School of Law
107 Waterman Hall
Fayetteville, AR 72701

USDA Drops Controversial National Animal ID Plan

The New York Times reports that the USDA is dropping plans for the National Animal Identification System (NAIS). USDA Drops Plans to Drop Program to Trace Livestock, Feb. 5, 2010. The department will announce a new traceability plan based on state-based programs and the regulation of livestock shipped in interstate commerce. Information about the new approach is available on the USDA Animal Plant Health Inspection Service (APHIS). Credit to Aimee Witteman,Executive Director, National Sustainable Agriculture Coalition for the link.

Applications to LL.M. Program for Fall 2010

The LL.M. Program in Agricultural & Food Law at the University of Arkansas School of Law offers the nation's only advanced LL.M. degree in either agricultural law or food law & policy.

Agricultural Law can be defined as "the study of the network of laws and policies that apply to the production, marketing, and sale of agricultural products, i.e., the food we eat, the natural fibers we wear, and increasingly, the bio-fuels that run our vehicles." Because of the special nature of producing living products to meet society's critical need for food, a variety of special laws make up the core of agricultural law studies - laws that often are often quite different than the law studied in basic law courses. The topic What is Agricultural Law was the subject of a previous post reporting on a panel discussion at the American Association of Law Schools annual meeting.

While food law is essentially a big part of agricultural law, recent interest in our food system has greatly expanded legal interest in food labeling, food safety, and questions regarding the sustainability of our food system. We study all of these issues from the perspective of the farmer, the consumer, and whoever may be involved in between.

We have already admitted a number of candidates for Fall 2010. We still have places available and will be able to offer merit-based graduate assistantships to a limited number of those admitted. These assistantships provide a tuition waiver plus a small stipend.

Our nine month course of study attracts attorneys from throughout the United States and from abroad. While many of our students are recent law school graduates, others enter the program as experienced practitioners. Our alumni are among the leaders in the agricultural law and food law communities.

Interested attorneys and third year law students are encouraged to apply to the Program as soon as possible. Visit our website for more information and to obtain an application form. You are welcome to send me an e-mail at sas.susan@gmail.com with questions. And, you can call the LL.M. Program Office at 479-575-3706.

Corporate Farming Articles and the Nebraska Constitution

In an effort at shameless self-aggrandizement, I'm posting links to some recent work I've done.

Here is a recent article from the Drake Journal of Agricultural Law in which I evaluate corporate-farming measures in the wake of Jones v. Gale.

Here is a recent article from the Nebraska Law Review in which I critically examine the court's opinion in Jones v. Gale and the discriminatory-effects thread of dormant Commerce Clause doctrine.

Finally, I'd recommend to all this book on the Nebraska State Constitution. Nebraska's corporate-farming measure was created as an amendment to the state constitution. This book, however, is much broader, offering an entry-point treatise into the many provisions in our state constitution. We maintain an electronic update here.

America's New Farmers

The Drake Forum on America's New Farmers: Policy Innovations and Opportunities will be held March 4 and 5, 2010 at the L'Enfant Plaza Hotel in Washington, DC.


The goal of the Forum is

• to organize a national discussion on new and beginning farmer policy issues;
• to gather stakeholders from across the U.S. to identify and inventory innovative policies and projects at the federal, state, and local levels to support new farmers; and,
• to provide the Administration and Congress an agenda of ideas for developing a comprehensive campaign to support the next generation of American farmers.

Forum organizer, Professor Neil Hamilton states that the agenda is close to being finalized and that over fifty people from across the nation will participate as speakers, moderators and policy reporters. Professor Hamilton, Janie Simms Hipp, advisor to U.S. Secretary of Agriculture on Tribal Relations and Bill Murphy, Administrator, USDA Risk Management Agency will open the conference on March 4, and USDA Secretary Tom Vilsack has been invited to deliver the Opening Keynote Address, America’s New Generation of Farmers.

To learn more about the Forum, view the agenda, and to register please visit the Drake Agricultural Law Center website. Group rates for rooms at the L'Enfant Plaza Hotel are available up until February 10th.

Models of Local Food Distribution

The University of Wisconsin-Madison Center for Integrated Agricultural Systems (CIAS) and University of Wisconsin-Extension Agricultural Innovation Center just released their report, Scaling Up: Meeting the Demand for Local Food.

The report detailed their study of eleven models of regional food aggregation and distribution that are successful in linking local farmers with regional food chains.

From their website:

Robust local food systems offer social, environmental and economic benefits. Increasingly, wholesale buyers are demanding locally grown food and growers are looking for new regional markets. In order to meet the demand for locally and regionally grown food and move significant quantities of this food into markets such as restaurants, mainstream grocery stores and institutions, local food systems need to be scaled up or expanded from farmer-direct sales of small quantities of product to wholesale transactions. By scaling up, local food systems have the potential to borrow some of the economic and logistical efficiencies of the industrial food system while retaining social and environmental priorities such as sustainable agricultural practices and profitability for small- and mid-scale family farms and businesses.

The models provide examples of how this is being done, benefiting farmers, retailers and consumers.

Atrazine and Groundwater

A few weeks ago, there was a post linking to a moving personal story about atrazine use in agriculture and concerns about the potential cancer risk associated with chemical pesticides. This highly charged issue was in the news again this week, and the divide in the agriculture community was readily apparent.

In January, the Land Stewardship Project collaborated with the Pesticide Action Network in the publication of the report, The Syngenta Corporation & Atrazine: The Cost to the Land, People & Democracy.

According to this report:

Syngenta’s atrazine has become one of the most commonly detected pesticides in U.S. ground and surface water. Between 1998 and 2003, 7 million people were exposed to atrazine in their treated drinking water at levels above state or federal health-based limits. The U.S. Geological Survey found that atrazine was present in streams in agricultural areas approximately 80 percent of the time, and in groundwater in agricultural areas about 40 percent of the time.

Earlier this month, a number of commodity groups signed a letter to EPA Administrator Lisa Jackson stating that they were “troubled by the activist forces that seem to be guiding the very intensive and urgent re-evaluation (actually a re-re-evaluation) of atrazine despite its recently completed re-registration, which provided for its continued safe use.”

The farmers involved in the Land Stewardship Project report are deemed to be "activists" and "special interest groups." This is amusing in that this is also clearly what the commodity groups are - and I don't mean that in a derogatory sense. Organizations like the National Corn Growers Association exist to lobby for the interest of their members. The letter argues for a science-based approach, which seems to be what everyone says that they are asking for. It is just that each side reads the "science" differently.

I'd like the EPA to look at atrazine openly, honestly and without pressure from any interest group - including the chemical and agricultural industries. It is simply too hard for them to separate out economic interests. It is universally acknowledged that atrazine is in the drinking water consumed by many farm families and rural communities across the United States. They deserve an honest look at the health impact of that contamination.

Dr. King and Agricultural Law

Please consider the issues of discrimination and diversity and their impact on agriculture in honor of Dr. Martin Luther King, Jr.

For a reference to some of the resources available, see today's LL.M. in Agricultural & Food Law post.

CPRBlog: Atrazine, Syngenta's Confidential Data, EPA's Review, and the Five Stages of Grief

My colleague, Sandi Zellmer's, recent post at the Center for Progressive reform offers a compelling story about atrazine. I encourage you to read it.

Private Sector Rural Economic Development - An Example from Namibia

As part of my interest in rural development, natural resources management, and agricultural land use, I recently spent twelve days traveling to and around Namibia to research how its citizens market the rural landscape. More specifically, I was interested in the legal arrangements folks have used to help them develop agricultural operations (primarily ranches) into enterprises that encompass a variety of income streams. Below, I'll talk about Namibia and some of its history, the way in which ranchers have capitalized on the landscape and the wildlife there, and how that experience could be relevant to Nebraska's landowners.

Read the rest of this post . . . .

Namibia is a large country with a relatively small population. It is roughly twice the size of California with about two million people. It achieved independence in 1990. It was a colony of Germany until World War I, and it was ruled by South Africa until independence. Much of the land in the country is privately owned, though there are significant parts of the country that remain governmentally owned. The governmentally owned land includes national parks (Etosha, The Namib Desert and the Sossusvlei (pictured below) are examples), the diamond mining area of the southern coast, and communal areas, which are somewhat like the reservations we have in the United States. Most of the landowners in Namibia are of German descent or Afrikaaners, who are of Dutch descent.
The privately owned land is cut up into "farms," which we would call ranches in the United States. Each farm has set borders encompassing about four to five thousand acres. Many landowners own more than one farm and use it in their operation. The operations are primarily geared at livestock production and, more specifically cattle. Many of the areas don't look all that different than landscapes you could find in the midwest (picture) There is no significant feeding industry in the country because there is little rain and insufficient crop production. The cattle are raised to slaughter weight on grass and typically sold into European markets.

Insofar as wildlife are concerned, landowners in Namibia may generally kill any game occurring on their property. Trophy hunting, selling game meat, and other economic activities related to game hunting must be done with a government permit. The permits are issued by a governmental agency and are limited to the farm for which the permit is issued. In the areas where I was located (mainly in the central and southern parts of the country), the game I saw include Gemsbok (Oryx, pictured immediately below), Kudu, Springbok (both pictured below), Cheetah, Leopard, Warthog, Zebra, Ostrich and Jackal (as well as some other birds that I can't recall the name of - they don't really care much about bird hunting in Namibia). Notably, there is a robust market for game meat in Namibia. In fact, one of the ranchers I met with said that they eat no beef in their household, opting instead for the game. And I noticed a lot of game meat in the supermarket and restaurants.

Because there is economic value in the game for the ranchers, they have an incentive to manage their properties in a way that increases the presence of game and maintains species' populations. Moreover, many ranchers are engaged in activities other than hunting that benefit from the presence of a diverse array of species. Many, for instance, market their landscape and the relative solitude of open spaces by running guest lodges. Thus, managing the landscape for species' benefit, as well as cattle, yields economic returns to the ranchers.

However, the scale of an individual operation is an insufficient area in which to effectively manage game from year to year. Unless the rancher wants to invest in a huge (and relatively expensive) fence and operate a "game farm" within its borders, it makes more sense to allow the game to cross property boundaries as they always have. And with many species there is little choice to do otherwise, given the size of the animal's habitat needs. But this poses significant problems. The fact that game don't respect our boundaries eliminates many of the opportunities to profit. There is no guarantee from year to year that the game will come to the ranchers' land. And there is no guarantee that the neighbors will compensate the rancher for the benefits they reap from his management practices, let alone contribute to the species management.

Given the boundary and scale problems, many ranchers have formed what they call "conservancies". Basically, the ranchers join together in an association at a scale where game management becomes feasible and effective. These associations range in size from 250,000 acres to nearly one million acres. The landowners forming these associations write up a document outlining their goals and the activities they will undertake to achieve these goals. Most of the goals relate to game populations. Thus, the landowners, for example, may agree to conduct three game counts over the course of a year. They then meet annually to discuss how many of the existing population can be consumed for trophy hunting or other uses during the ensuing year on each ranch. The goal, of course, is to maintain the game populations at whatever level the group decides is appropriate, given the ranching activity, forage availability, likely rainfall, and species' health. Once the group agrees on these quotas, they forward their information to the agency in charge of permits. To the extent permits need to be issued (for example for meat hunts, meat sales after a culling operation, catch and sell, trophy hunts, etc.), there is an informal understanding with the government agency to issue the permits.

Interestingly, there has been an ongoing push for legislation that would formalize the permitting arrangement with the landowner associations and limit the level of government oversight. After all, the ranchers argue, there is no permitting required to raise cattle, and they do just fine in managing that species. Nonetheless, there has been some resistance to a wholesale relinquishment of game management to the private sector.

The viability of these sorts of associations in the grasslands of the midwest is something that I am considering. Many parts of Namibia resemble the grasslands of the US (see the picture below), and there is much we can learn from Namibia, and vice versa. For instance, we have never left much of anything to the private sector when it comes to wildlife management. Namibia is proof that the private sector, and more specifically, privately owned lands, can be a positive force in wildlife management, provided the incentives are there. Financial returns can also follow for landowners and others in rural areas.

Namibia's associations, however, have their problems. In general, they increase the value of individual ranchers' properties. However, there is always the possibility that individuals will withdrawal from the association, choosing instead to capitalize on the benefits of the surrounding landowners' management activities without contributing at all to the overall enterprise. Or the landowners may sell their property, leaving the choice of joining to a new owner who may ride along with the association for free. In the United States, we have the ability to create obligations that inure in the title to real estate and bind both present and future owners. We do that, for instance, with many residential housing developments (e.g. gated communities) in urban areas, which often involve associations. My work is considering how that aspect of American law can be used to avoid some of the problems that Namibian associations have encountered. Leases to an association are another option. In the end, we have an array of useful property law tools that landowners can use to create associations. And those tools can be used to helps landowners engage in the sort of cross-border enterprise that has worked fairly well in Namibia.

We also permit hunting somewhat differently than they do in Namibia. However, for reasons that would take too long to explain here, I tend to think that wholesale changes to our game laws are unnecessary. Landowners' ability to exclude hunters and others from their property and their ability to charge a fee for access make the differences in permitting somewhat irrelevant, provided enough permits are issued to effectively manage the population of the relevant species.

Finally, it should be noted that there are many different ways of doing business in this area and many more details that I have left out. There is one more aspect of these associations that is interesting. Many conservancy members in Namibia are perfectly content to raise cattle on their land without running guest farms or hunting operations. They remain part of the conservancy, however, for a couple of reasons. One is the desire to be a good steward of the game and landscape where their community exists. The most successful conservancies, after all, are comprised of landowners who see themselves as part of a larger community. Being a good neighbor is important. Additionally, and probably more importantly, even the passive member gets economic benefits from his membership. Sometimes they sell access to the property to third-party outfitters or neighbors who want to bring people onto the property for hunting or hiking or whatever. And one can structure the enterprise so that the association (owned by the landowners) pays dividends to the owners.

In the end, I think this is an interesting example of how agricultural lands can be used in ways that generate alternative revenue streams for landowners and ranch families. It has for some ranchers in Namibia, like the Pack family pictured below. If you are interested in this sort of thing, have questions, or would like to visit Namibia, give me a call or drop me an e-mail.

Join me for a book discussion

A few months ago, Oxford published When Cooperation Fails: The International Law and Politics of Genetically Modified Foods, an interesting new book by Gregory Shaffer and Mark Pollack. Today, Opinio Juris is hosting a one-day book discussion about the book, with yours truly as a guest blogger. Please join the conversation--it should be fun!

AALS Open Source Program: Food, Law, & Values

At the American Association of Law School's Annual Meeting in New Orleans, there will be a special open source program presented on Food, Law & Values. This program will be held on Friday, January 8, 4:00 – 6:00 p.m.

The agenda for the program, provided by organizer Professor Donna M. Byrne, William Mitchell College of Law is as follows:



Food Production beyond Technology: Risks, fears, environment, and labor
4:00 – 4:50

Moderator: Bret C. Birdsong, University of Nevada, Las Vegas, William S. Boyd School of Law

A program on food law would naturally begin with food production. Increasingly, consumers are interested in how food was produced, demonstrating that food production is more than agricultural and scientific techniques. Food production raises value-laden questions of identity, personal autonomy, and concern for culture. In addition, advancing technology implicates uncertainty and risk. This panel presents several points of focus on values in food production, approaches to risk and uncertainty in food production, and the appropriate roles for governmental intervention.

Panelists:

• Stephanie Tai, University of Wisconsin Law School – Food safety regulation development and confined animal feeding operation (CAFO) siting management may seem to be widely disparate subjects, but Professor Tai will bring these together by focusing on the tensions between public participation and scientific expertise in these two different contexts. Rather than providing normative recommendations regarding these issues, however, the focus is on recognizing the implications of public participation structures for the epistemic nature of the scientific information used by agencies in reaching their regulatory decisions.

• Guadalupe T. Luna, Northern Illinois University College of Law – Agricultural laws affect more than food. Professor Luna will discuss globalization of the agricultural workforce and its impact on domestic Indians and the Purepecha Indians from Mexico. The Purepecha are farmworkers residing on the Cahualla Indian Reservation in California and in difficult housing conditions. The immediate intent is not to lay blame on the tribe housing the farmworkers; but to illustrate how agricultural laws are directly harming both groups with further attendant harm on the environment of an Indian nation.
  

• Dean James Ming Chen, University of Louisville, Louis D. Brandeis School of Law -- The mass marketing of foods derived from organisms modified through recombinant DNA technology has put extreme pressure on the interpretation and implementation of the United States' basic food safety law, the venerable Food, Drug & Cosmetic Act. In its classic form, the FD&CA reflects its Progressive and New Deal roots. It vests enormous trust in a specialized agency, the Food and Drug Administration, which is presumed to have nonpareil expertise over food safety. The political reality of GM foods, however, has placed the FD&CA and its implementation by the FDA in severe tension with the Organic Foods Production Act and with commercial speech doctrine. Fear about food is one of the most deeply seated forms of behavioral protection against the natural world. It is precisely here, where food comes into contact with notions of good and evil, that the classic regulatory state must take its stand. The FDA's regulation of foods using rDNA technology upholds the best of the Progressive regulatory tradition and deserves to survive the challenge posed by the OFPA, the revived commercial speech doctrine, and contemporary consumer distrust of governmentally supervised review of science and safety.

• Marne Coit, Coit Consulting, Fayetteville, Arkansas – Local food systems and sustainability. For people who work in agriculture, there is often a tendency to view one's work as either helping farmers or as helping consumers. A dichotomous viewpoint such as this is not necessarily productive. In particular, when thinking about sustainability, it is more productive to use a systems approach, and to think about these issues in a way that takes farmers, consumers, the environment, culture, and ethics into consideration. One model that seeks to accomplish this is that of local food systems, a model which works to meet the needs of both farmers and consumers in a sustainable manner. This model has become increasingly popular in recent years.
  

The Role of Governments – Labels, Regulation, Economy, and Safety
4:55 to 5:25

Moderator: Donna M. Byrne, William Mitchell College of Law

The Obama administration seems to be taking a more aggressive approach with respect to controlling the food industry through increased regulation. States and local governments are also taking a more pro-active approach. One area where regulation has an obvious role is labeling. Food labeling should be a way to provide consumers with the opportunity to make decisions about what they eat - decisions that may be based not only on safety or nutrition but on other factors such as social or economic issues. But, how can the law better assure that food labels serve these larger purposes? How do other countries address these issues?

Panelists:

• Margaret E. Sova McCabe, Franklin Pierce Law Center -- the relationship between scientific certainty, food label claims, and consumer information. Professor McCabe will use the gluten-free definition as an example of how Congress asked FDA for a definition in the FALCPA, but that FDA interprets this mandate to require comprehensive review of the status of science on celiac disease as well as product testing.

• Neil D. Hamilton, Drake University Law School – A perspective from the Obama/Vilsack administration. Professor Hamilton chaired the Iowa Food Policy Council for six years under then Governor Vilsack and is now serving as an informal adviser to him and USDA on various issues - including the new Know Your Farmer Know Your Food effort as well as the People's Garden project.

• Thomas Wilson, Alabama A&M University School of Agricultural & Environmental Sciences – A view from across the pond. Professor Wilson started the online Food Law Certificate Program at Michigan State and was chair of the Institute of Food Technologists food law committee for a year as well. More recently Professor Wilson has lived in Europe working with the Food Directorates in the Netherlands.

Food Law, Food Law Scholarship and where we go from here.
5:30 – 6:00

Moderator: Stephanie Tai, University of Wisconsin Law School

One of the driving notions behind the open-source program idea is to get folks together who often think about disparate things that bear some relation to food law. Although many scholars have been writing about food law for a long time, others are moving into the area from other disciplines. This panel will provide a chance for us to discuss, albeit briefly, where we, as legal scholars, see our particular niche (or niches) in the development/transformation of food policy.

Panelists:

• Susan Schneider, University of Arkansas School of Law – From agriculture to food. The LL.M. program at the University of Arkansas School of Law now includes food law courses in its curriculum and recently changed its name to LL.M. in Agricultural & Food Law. When is agricultural law food law? Professor Schneider's recent scholarship calls for a reassessment of agricultural policy to reflect a closer connection to food policy goals and environmental sustainability. The shift in focus to consumer-driven issues with value-laden agricultural implications is bringing food law issues into the spotlight.

• Bret C. Birdsong, University of Nevada, Las Vegas, William S. Boyd School of Law – Critical Rice Theory. What is the role of the academy? Are we asking the right questions? The food choices that are available to us as individuals and collectively are bound up with our system of food law. Law shapes and informs those choices, and the food system shapes and informs the law. The enterprise for legal scholars should be to explore the interlinking web of law and food, taking into account the wide array of values that food and food production systems implicate, and suggest improvements that can help to transform the system into one that is more balanced, just, and sane.

Large Panel -- Where do we go from here? Any or all can chime in.

Sustainable South Carolina Local Food Systems Workshop

This announcement came in from Beth Crocker, J.D. Drake University School of Law, LL.M. Agricultural Law, University of Arkansas School of Law. Beth serves as Counsel for the South Carolina Department of Agriculture and has been instrumental in their impressive local foods campaign. Note the January 8 Registration deadline for this workshop.

Sustainable South Carolina
Local Food Systems Workshop
January 29, 2010
8:00 a.m. until 4:30 p.m.
Hilton Columbia Center
924 Senate Street
Columbia, South Carolina

Currently the demand for locally-produced foods in South Carolina is much greater than the supply, creating tremendous economic opportunities for local farms and markets and also consumers interested in a more healthy diet. This workshop will address local food policies in South Carolina from farm to fork, looking at all aspects of food policy in South Carolina including sustainable production, distribution and consumption trends and why a sustainable food system is advantageous to South Carolina. The goal of the workshop is to explore challenges and opportunities leading to the development of sustainable food systems for South Carolina, including key economic, environmental, food distribution and health aspects that are critical to sustainable, local food systems. The result of this workshop will be a set of written guiding principles for achieving a more sustainable, local food system in South Carolina.
The registration deadline is January 8, 2010. More information and registration details can be found on the South Carolina Department of Agriculture Food Policy Counsel website.

NY Students Reveal Mislabeled Food Through DNA Testing

Not everyone reads the details on their food labels. And there is a lively debate about how much information to provide to consumers, how to provide that information, and how much our "storied food" tells a true story. However, I recently read about the exposure of real food fraud, thanks to a New York high school DNA testing project. Two students uncovered some mislabeling of the most overt sort. Stuff that was just not what it was supposed to be.

Through DNA testing the students found food labeled as sturgeon caviar that was in fact Mississippi paddlefish; "sheep's milk cheese" that made from cow's milk; "smelt" that was Japanese anchovy; and "venison dog treats" made from beef.

The LA Times blog, Booster Shot picked up the story and quoted the students report:

"We do not know where or why the mislabeling occurred, but most cases appeared to involve substitution of a less expensive or less desirable item, suggesting the possibility of deliberate mislabeling for economic gain. We also think mislabeling is a serious problem because certain individuals have allergies or dietary restrictions regarding certain foods. ... Like a powerful flashlight, DNA exposes hidden identities of living and once-living things. We look forward to more explorations!"

There are, of course, a couple of good aspects to the story. First, what a great way to introduce students to the power of information and of science. Second, what a good way to catch mislabeling. My guess is that companies may be less hesitant to cheat if they worry about getting caught.

America's New Farmers: Policy Innovations and Opportunities

The Drake Forum on America's New Farmers: Policy Innovations and Opportunities will take place Thursday and Friday March 4-5, 2010, at the L'Enfant Plaza Hotel in Washington DC. This two day meeting will bring together policy advocates, government officials, and beginning farmers from across the nation to consider how best to support policies creating the next generation of America's farmers. Drake University is pleased to have the financial support of USDA Risk Management Agency, the Farm Credit Council, and others in making the Forum possible. A dozen agricultural groups and institutions involved with new and beginning farmers are cooperating with Drake on this initiative. Registration for the conference is now open and can be found on the conference website.

The Forum will begin with a panel of new farmers talking about their hopes and needs for public policy. Discussion sessions are planned on: land access and availability; innovations in finance and credit; lessons from beginning farmer efforts; new farmer training and education programs; opportunities for new farmer communities; and markets and sustainable rural revitalization. The closing plenary will address the road ahead in identifying opportunities for national policy action.

Senior leaders from Congress and USDA have been invited to provide keynote presentations. A local food reception and a new farmer film festival are planned for the evening of March 4th.

Forum organizer, Professor Neil Hamilton is working to finalize the agenda of speakers and panels and reports that he is pleased to have several new national organizations joining Drake as co-sponsors for this event. Anyone with questions or suggestions for the Forum should e-mail americasnewfarmer@drake.edu or call 515-271-4956.

U.S. Food Safety System In Serious Disrepair

More than 50% of food manufacturers are unaware of their legal obligation to provide the FDA with updated contact information that the FDA relies on to deal with emergencies, such as Salmonella or other forms of food contamination. According to a Report released yesterday by The Department of Health and Human Services, Office of Inspector General, federal auditors found that approximately 48% of surveyed manufacturers failed to provide the FDA with accurate contact information and approximately 25% provided no emergency contact information at all.

The GAO Report explains:

Each year, more than 300,000 Americans are hospitalized and 5,000 die after consuming contaminated foods and beverages. In the event of an outbreak of a foodborne illness, FDA is responsible for finding the source of the contamination and helping to remove the contaminated food products from the food supply chain. Recent outbreaks of foodborne illness involving peanut butter, peppers, and spinach have raised serious questions about FDA’s ability to protect the Nation’s food supply.

The Public Health Security and Bioterrorism Preparedness and Response Act of 2002 requires certain food facilities to register with FDA. The purpose of registration is to provide FDA with sufficient and reliable information about food facilities. This information enables FDA to quickly locate facilities during an outbreak of foodborne illness and to locate these facilities for inspection.

FDA requires each domestic food facility to provide information for the registry, including (1) contact information (i.e., name, full address, telephone number, and all trade names under which the facility conducts business); (2) contact information for the parent company; (3) contact information for the owner or operator of the facility; and (4) an emergency contact telephone number. If there is a change in a facility’s information, such as a new name or address, the facility must provide FDA with the updated information within 60 days. The information provided by facilities is stored in a database called the FDA Unified Registration and Listing System .....

Hat tip: Bill Marler at Marler Blog.

Hunger Crisis Among Those Who Harvest Our Food

Consider the irony of this when you select fresh fruit or vegetables at the supermarket.

In Hard Times Even Harder, National Public
Radio reports that the children of migrant farm laborers inn North Carolina are more than 3 times more likely to be of "food insecure." Unemployment in the migrant labor sector has exacerbated farm labor poverty in recent months.

"Nearly a million migrant children crisscross the United States with their families from harvest to harvest and job to job. In North Carolina, migrant families struggle to find work and many rely on schools for food and clothing. The people who run North Carolina's migrant program say the living conditions and financial hardships for migrant laborers are the worst in memory."

Agricultural Law Information

The December issue of The Agricultural Law Brief, published by Ross Pifer Director of The Agricultural Law Resource and Reference Center at Penn State Law was just released. This issue contains information on the following topics:

(1) Litigation filed by Dimock landowners against a natural gas company for environmental contamination;
(2) The Food Safety Modernization Act of 2009;
(3) Pennsylvania Supreme Court order in ACRE litigation;
(4) Chesapeake Bay Protection and Restoration draft strategy; and
(5) World Summit on Food Security.

The Brief is available on the Center's website.

Ag Law Professor to Farmers: Step Up on Climate Change

The following appeared in the Des Moines Register, Sunday, Novenber 29, 2009. It is reprinted with the permission of the author, Neil Hamilton. Professor Hamilton is the Dwight D. Opperman Chair of Law at the Drake University School of Law in Des Moines, Iowa and also serves as the Director of the Drake Agricultural Law Center.

Next month, I travel to Copenhagen for the U.N. Climate Change Negotiations (COP 15) with two Drake agricultural law students. We are part of the Iowa U.N. Association delegation going to witness the international talks on possibly the most significant environmental, social and political issue shaping our futures.

My special interest is what the talks may mean for farmers in the United States and abroad. U.S. policy discussions show much of America's agricultural sector doesn't take climate change seriously.The reality is the impacts of climate change are being felt around the globe - whether or not U.S. farm groups and politicians believe it. Fortunately, most other nations recognize the obligation and opportunity to engage in deciding how best to respond.

The adverse impacts climate change has on food production and the critical role agriculture may play in addressing it means farmers have a major stake in the debate.

The magnitude of U.S. contributions to greenhouse gas emissions make Copenhagen a prime opportunity for America to help lead development of effective responses - leadership the world needs and expects. The negotiations are especially important to farmers, because American agriculture thrives on international rules supporting free trade and open markets. If we engage at Copenhagen, then ideas to protect the environment and increase farm income may emerge, but sitting on the sidelines while others craft the agenda is a recipe for conflict and lost opportunities. Lack of U.S. leadership won't just limit success of the negotiations and limit the willingness of other nations to act, but may signal erosion in U.S. prestige and national confidence. The Kyoto climate-change treaty created little role for agriculture, but proposals for COP 15 give farmers a large, even central role. Still many U.S. farm groups are ambivalent - not just to Copenhagen but to whether climate change is real or U.S. action is needed.

Some groups like the National Farmers Union and the renewable energy coalition 25X25 endorse cap-and-trade legislation as the basis for ambitious goals for Copenhagen.

Others like the American Farm Bureau Federation oppose cap and trade - and appear uninterested in what the world may do. Farm Bureau members are being encouraged to protest to Congress "don't cap our future," arguing agriculture will suffer increased energy costs with no corresponding economic benefits. Studies show the proposed legislation will have limited impacts on farm costs and Secretary of Agriculture Tom Vilsack argues the law will open new streams of farm income from offsets and carbon markets. He has spent months explaining to farmers why they should support the legislation. Last week, President Barack Obama announced he and Vilsack will go to Copenhagen to show U.S. resolve to address climate change, even though Congress has yet to act.

Agriculture's opposition to cap and trade is delaying progress on legislation to reform U.S. energy policy. The lack of progress has already led to scaling back expectations for what might happen in Copenhagen. But remember the saying, "If you aren't part of the solution you are part of the problem." We shouldn't delude ourselves the rest of the world won't act without us or that we are immune from either the natural effects of climate change or the political effects of policies developed in our absence.

Our lack of engagement threatens to make U.S. agriculture the "problem" other nations address and risks development of an international agreement adverse to U.S. interests. Ironically the opposition may also jeopardize our ability to engage in international markets and the trade negotiations central to continued growth of American agriculture. The opposition to climate-change action is puzzling given agriculture's support for biofuels like corn ethanol as the "answer" to our energy needs. America's farmers have a successful history of innovating to meet new demands. But U.S. politics on cap and trade has become largely a question of "What is in it for me?" rather than focusing on how agricultural practices can help address climate change.

Our responding is not optional - the scientific and international political realities of climate change are real, as is the need to act. Yes, there is debate about whether the practices and policies being proposed will significantly reduce global temperatures, but disagreement about effectiveness shouldn't obscure the fact that doing nothing ensures no progress. From a legal perspective, something will happen. If Congress fails to act, the Environmental Protection Agency will regulate greenhouse gas emissions as required by a 2007 U.S. Supreme Court ruling. Legislation may raise concerns but it will be friendlier and more tailored to agriculture's needs than EPA regulations.

The world is going to address climate change, and farmers and agriculture in other nations will lead in developing responses - many have no choice if they are to protect their land and futures. The COP 15 negotiations are a stage on which the willingness of nations to act and lead will be measured. American agriculture is fond of congratulating itself for "feeding the world," even if the claim is far from true. The reality is most of the world tries to feed itself. The tragedy is that over 1 billion go hungry today, and climate change threatens even more. America may not feed the world, but we have long claimed a central role in leading it.

The climate-change debate is an opportunity for the United States - agriculture and farmers included - to live up to our self-image as leaders. Failing to do so risks America being seen as a self-serving nation in decline - a portrait our enemies and critics are happy to paint. My hope is we have the vision, courage and wisdom to rise to this occasion. That is why I am going to Copenhagen.

Farmers Market in St. Paul, Minnesota

I traveled north for Thanksgiving, spending the holiday with family on our farm north of Hastings, Minnesota. On Wednesday, I had the pleasure of visiting the St. Paul Farmers' Market where we picked up our pre-ordered fresh turkey from the Otis Family Farm.

The market was busy, despite the chilly Minnesota weather. A testimony to the hardiness of Minnesota/Wisconsin farmers and shoppers, the market continues year-round.

Buying fresh, wholesome food, and talking with the farmers about the food they produced made for a wonderful thanksgiving experience, long before we sat down to enjoy dinner.

FAO Report on Climate Change and Food Safety

The FAO issued a new report this week, Climate Change: Implications for Food Safety. While other impacts of global warming are more generally discussed, this report explores some of the food safety impacts that have yet to be widely considered.

Here is the abstract of the report:

The paper aims to identify potential impacts of anticipated changes in climate on food safety and their control at all stages of the food chain. The purpose is to raise awareness of the issue and to facilitate international cooperation in better understanding the changing food safety situation and in developing and implementing strategies to address them.

While this paper takes a broad look at a number of food safety issues and considers possible implications of climate change – it does not provide exhaustive treatment of the topic. The food safety issues covered include: agents of food-borne disease with specific consideration of zoonotic diseases, mycotoxin contamination, biotoxins in fishery products and environmental contaminants with significance to the food chain. The paper also highlights the need for adequate attention to food safety in ensuring preparedness for effective management of emergency situations arising from extreme weather events. There is much uncertainty about possible food safety implications of climate change. This paper discusses some expected effects that are supported by data; it also considers other issues that are largely speculative.

New Ag & Food Law Community on Kiva

I received a wonderful present last Spring - a gift certificate with Kiva. What better present for someone who teaches Agricultural Finance & Credit. In class, we discuss the need for capital in agricultural operations, the legal issues that arise in financing transactions, and the impact of financial stresses on farming operations. Most of the U.S. cases we study involve fairly significant sums of money.

Kiva, a non-profit micro-finance organization offers both a similarity and a difference. The similarity is the need that farmers have for financing for their businesses. The difference is that the loans needed are so small.

Kiva's mission is "to connect people through lending for the sake of alleviating poverty" and works to achieve this goal through a "person-to-person micro-lending website." On the Kiva website, you can browse entrepreneurs' profiles and decide who you would like to lend to. Loans are made through local micro-finance institutions approved by Kiva. The website provides transparent data regarding the institutions, the actual loans, and repayment track records.

During the course of the loan period, you receive periodic updates, and when your loan is repaid, you can relend to someone else.

One of my first loans was to Carmen in Peru. Here is the description that was provided to me.

Carmen is a member of the Banco Comunal Renacer. She is 55 years old, married, and has 6 children. Carmen travels to the region's different fairs to sell fruits and vegetables. She also buys cereals from the fair, which she later sells at the provisions market in the city of Ayacucho. In addition to all this, Carmen also sells wool out of her house. Carmen needs a loan of 2,000 soles, which will be invested in the purchase of wool and cereals. Carmen's dreams are to provide a good education to her children and to improve her business.

Last April, I signed up to offer a small loan; twenty-one others also participated. The total loan that Carmen needed was $675. Soon after she got the loan, she began paying it back. On October 16, Carmen paid back the last installment - $16.66, the loan was fully repaid. It is now available for making a loan to another.

My best wishes to Carmen; my thanks to the entrepreneurs that started Kiva and the organizations that keep it running so well; and my challenge to readers - make a Kiva loan to someone in the farming or food-related business.

I just set up an Ag & Food Law Community on Kiva. Anyone who makes a Kiva loan is welcome to count their loan as part of our community. All lending decisions are your own - it is just a way to show that the agricultural and food law community supports farmers and other food providers world wide. I think you will be pleased.

Accepting Applications to the LL.M. Program in Agricultural & Food Law

We are now accepting applications for the LL.M. Program in Agricultural & Food Law for the class beginning in Fall 2010.

While agricultural law issues have always been important, recent concerns about food safety and food labeling have highlighted the connections between agricultural and food law. Food law and policy is an emerging area of interest and practice. And, more traditional components of the agricultural law curriculum continue to generate great interest and sometimes controversy. Environmental and sustainability concerns, biotechnology and intellectual property rights, international trade, complex commercial law arrangements, and other compelling issues continue to raise complex legal issues.

The LL.M. Program in Agricultural & Food Law at the University of Arkansas School of Law offers the nation's only advanced LL.M. degree in either agricultural law or food law. We take pride in offering a curriculum covering the full spectrum of law and policy from the perspective of the farmer, the processor, the retailer, and the consumer.

Our nine month course of study attracts attorneys from throughout the United States and from abroad. While many of our LL.M. candidates are recent law school graduates, others enter the program as experienced practitioners. Our alumni are among the leaders in the agricultural law and food law communities.

Interested in more information? Visit our website, e-mail us for information at llm@uark.edu or call 479-575-3706. Additional information can be found on our aglawllm blog. And, you can follow us on the aglawllm Twitter account.

Please help us spread the word.

On the Farm With CSI Miami

Prime time television drama takes on agricultural law. Here's the teaser for this week's episode of CSI Miami, Bad Seed:

When several seemingly unrelated deaths turn out to be part of a sudden outbreak of E. Coli, Alexx returns to help the team as they race to find the source of it to stop the death toll from rising.

Yes, last night, Horatio and his band of crime fighters took on food safety issues, and the result could have been an issue-spotting exam for Ag Law 101. The one hour drama centered on the death of two young lovers. What began as a homicide investigation ended up with the bereaved family preparing for a civil lawsuit.

Traceability problems were a major issue. The E. Coli was linked to a spinach salad (wonder where that idea came from?) and was eventually traced back to run off from a feedlot up the hill. It is clear that Horatio works much faster than the CDC, who was missing in action in this episode.

But what was even more amazing was the host of other ag law issues that were tossed in, leading Christopher and I to wonder who consulted on the episode. Vegie Libel laws came up several times; the organic standards; pollen drift and genetic contamination; farmer liability for having unauthorized GMO crops on their land; undocumented farm workers; farm consolidation; crop contamination via irrigation water; and the difficulty of local health departments confronted with food poisoning. Not the usual fare for prime time drama.

There were, of course, some legal missteps and some over simplifications. And, the National Cattlemen's Beef Association was offended, even though spinach (and ultimately corn - but I don't want to give away the end) were the deadly products. They already posted their rejoinder. I personally found it to be great fun to have people talking about farming and food issues. And, its main point - that food safety is a critical issue - is one that needs to be made.

Check out the MarlerBlog for Bill Marler's comments on the episode. The producers called him a couple weeks ago for some background information.

You can view the whole episode the CSI Miami website.

I should mention that I may be one of only a handful of folks that were focused on the agricultural law issues. Everyone else is talking about Calleigh and Eric. Did they break up??

Minority Farmers

I recently participated in the Farmers Legal Action Group, Inc. (FLAG) Board meeting. I was elected to serve on the FLAG Board last year.

For those new to FLAG, its work is described as follows:

Farmers' Legal Action Group, Inc. (FLAG) is a nonprofit law center dedicated to providing legal services to family farmers and their rural communities in order to help keep family farmers on the land.

The meeting was held in Albany, Georgia, and while it involved a review of the wide range of family farm support projects undertaken by FLAG this year, its focus on providing support to minority farmers was highlighted.

FLAG's newest board members reflect that support:

• Phil Baird, a member of the Rosebud Sioux Tribe (Sicangu Lakota) and the Vice President of Academic, Career & Technical Education at the United Tribes Technical College.

• May Lee, a Minnesota Hmong farmer who immigrated from Laos (via a Thai refugee camp) and now has a certified organic farming operation through the Minnesota Food Association's New Immigrants in Agriculture Project.

• Jerry Pennick, Director of the Land Assistance Fund of the Federation of Southern Cooperatives, whose mission is to retain African American owned land and engage cooperatives for land-based economic development.

• Linda Yardley, an Outreach Liaison with the National FSA American Indian Credit Outreach Initiative.

Former board member, Shirley Sherrod and retiring board member Betty Bailey, former executive director of RAFI were honored at a special dinner. Shirley has long been a champion of black farmers through her work with the Federation of Southern Cooperatives/Land Assistance Fund and the Southern Rural Black Women's Initiative. She left the board because of her new position as Georgia's head of the USDA Rural Development office. Shirley's husband, civil rights leader Charles Sherrod joined us and provided a moving story of the history of the civil rights struggle in Albany. Pictured to the left are Charles and Shirley with FLAG Executive Director, Susan Stokes.

According to the USDA analysis of the 2007 Census released early in 2009, there is "growing diversity" in American agriculture. The actual numbers, however, reveal a long way to go.

Only 2.5% of principal farm operators are Hispanic; 1.6% of are American Indian; 1.4% are Black; and .5% are Asian. That puts white principal operators at 94% of American farmers. The USDA offers a map with a state-by-state breakdown of the racial make up of farmers.

Discrimination is an issue that continues to haunt the USDA. After years with a non-existent or grossly deficient mechanism for even investigating discrimination complaints, the USDA is now trying to clean up the mess. The Pigford discrimination case on behalf of African American farmers settled in 1999, yet implementation of the settlement is only now winding down. So far, the USDA has paid out over $1 billion to African American farmers who chose to settle their claims through the streamlined, "Track A" process agreed upon in the consent decree. Congress passed so-called "Pigford II" provisions as part of the 2008 Farm Bill, allowing additional plaintiffs who missed critical Pigford deadlines to also sue.

Last week, NPR did a story on the Garcia case on behalf of Hispanic farmers, Hispanic Farmers Fight to Sue USDA.

Also in progress, but not mentioned in the NPR story is the Keepseagle case filed on behalf of American Indian farmers.

Early in his tenure as Secretary of Agriculture, Secretary Vilsack sent a memo to all USDA employees that included the following:

As you know, civil rights is one of my top priorities. In the Departmental complaint system alone, more than 14,000 complaints have been filed since the year 2000. Approximately 3,000 of these complaints remain to be processed, and questions continue to be raised about USDA’s handling of complaints. I have said many times that I intend to take definitive action to improve USDA’s record on civil rights and to move USDA into a new era as a model employer and premier service provider. … To be successful, all USDA employees must be committed to making USDA a model in the Federal Government for respecting the civil rights of its employees and constituents. As Secretary, I will accept nothing less.

Appreciation is expressed to Rita Capes from FLAG for the photographs displayed here.

The Wall Street Journal "Puts up" Produce

As someone who grew up learning the art and science of home canning from my mother, I was both delighted and a little amused to read today's Wall Street Journal's article, Putting up Produce: Yes You Can. It comes complete with a slide show on canning pickles. Canning was once considered to be the hallmark of an unsophisticated rural society; consumers rushed to purchase commercially processed foods; and many wondered whether grandma's secrets of canning would be lost forever. Now, the benefits and the enjoyment of home processed produce has resurged and of all things, is captured in the Wall Street Journal.

Food Safety Discussion on Larry King Live

Last night's Larry King Live show discussed food safety issues, in particular food safety and meat. Bill Marler, noted food safety advocate and personal injury lawyer and Patrick Boyle, president and CEO of the American Meat Institute were among the guests.

Ohio Agricultural Law Symposium

Last Friday, I had the pleasure of addressing the Ohio Agricultural Law Symposium sponsored by The Ohio State University and the Ohio State Bar Association. My invitation came from Peggy Kirk Hall, a colleague from the American Agricultural Law Association (AALA). Peggy is the Director of the Agricultural and Rural Law Program at The Ohio State University Department of Agricultural, Environmental and Development Economics. Her leadership and organizational skills were clearly evident in the quality of the symposium, and I thank her for the opportunity to participate.

The conference was held at the new Nationwide and Ohio Farm Bureau 4H Center, a beautifully designed LEED certified building on The Ohio State Campus. The pictures shown highlight just a few of the "green" features of this impressive conference center. 1) Some of the building's structure, including studs and girders, was made from recycled steel. Its highly reflective roofs helps to ease summer cooling costs. 2) Ninety-percent of the center’s space has natural light, reducing the energy needed for artificial light.

Prior to the conference, I had an opportunity to meet with a wonderful group of Ohio students. We discussed "agricultural law" as it is sometimes misunderstood in non-agricultural communities. And, we discussed ways of recasting the description of our work in a more inclusive manner to better portray its diversity and complexity. This discussion and the students' perspectives reaffirmed the wisdom of our decision at the University of Arkansas School of Law to expand the name of our program to The LL.M. Program in Agricultural and Food Law.

We also discussed ways that universities can better teach the challenging and relevant subjects included within agricultural and food law. The students had excellent ideas regarding the need for more interdisciplinary approaches and distance collaborations. They provided innovative suggestions for bridging the gap between rural and non-rural residents. My thanks to long-time agricultural law attorney and AALA leader, Paul Wright for his support through the Paul L. Wright Chair Fund in Agricultural Law for the scholarships provided to the students, enabling them to attend the conference. The students' discussion of the need for additional coursework in agricultural and food law inspired me to press on with my agricultural and food law book.

At the conference, I was delighted at the enthusiasm that the participants had for learning more about food law. There were so many excellent questions raised regarding food safety issues, I had to rush through some of the other parts of my PowerPoint presentation. It is always a pleasure to address an engaged audience!

Other morning conference presentations provided information on climate change legislation presented by Kevin Braig, Dinsmore & Shohl and an update from the Ohio State Department of Agriculture presented by William Hopper, Chief Counsel of the department. The latter included an update on the state regulation of milk labeling and rBST, an issue now before the Sixth Circuit Court of Appeals. Afternoon presentations included the Honorable Justice Paul E. Pfeifer, Chief Justice of the Ohio Supreme Court who provided a review of recent Ohio decisions affecting agriculture. And, a review of developments and panel discussion was presented by Justice Pfeifer, Federal District Court Judge Gregory L. Frost, and Logan County Court of Common Pleas Judge Mark S. O'Connor. The conference concluded with a survey of recent state proposals and enactments on farm animal care and an overview of the Ohio debate on this hotly contested issue by Peggy Hall.

Many Thanks to the AALA

The annual AALA conference was, as usual, quite enjoyable. This year two students from the University of Nebraska College of Law attended with me. Jeff Murman (second from right) and Tim Hruza (far right), both 1Ls, attended with me. The photo also includes students from the Penn State Dickenson School of Law and, of course, Secretary Vilsack.

Both of my students were very impressed. According to Tim,

"The conference was a great experience. I attended presentations which focused on such topics as protecting the family farm, promoting local purchases of food, and understanding the implications of both federal anti-trust laws, and the Farm Bill.

I had the fortune of meeting a number of attorneys currently practicing in different areas of agricultural law, and meeting students at other universities across the nation who have interests and backgrounds similar to my own. I am confident that the information presented and the relationships formed will benefit me in my future career in law."

According to Jeff,

"The AALA Conference was an outstanding opportunity to quickly expand my limited knowledge of agricultural law. The conference was a great chance to network with other students with similar interests, as well as professionals and professors from other areas of the country. It is clear that agricultural law will be of utmost importance as the earth's population swells and available farmlands shrink. I look forward to attending next years confernce in Omaha, NE."

Many thanks to the AALA for making this a low cost experience. And many thanks to the Leone and Neal Harlan Agricultural Law Excellence Fund for paying for the students travel.

Egan on Food Connections

The thing I enjoy about Mr. Egan is his ability to avoid overstatement. He makes 3 points that struck me as very interesting:

1) people desire a connection to their food (especially in light of food borne illness): "Every now and then, we have to see our food, if only to preserve the illusion that this good earth can keep us well.";

2) good food (case in point, apples) is often the product of ecological manipulation, despite the labels "sustainable and local":

In the romance of an October day, all of it seems like Eden in an age of warehouse burger peril. All of it seems like it fits — sustainable and local, to use those drab words that people insist on attaching to good food from somebody you know.

But this image is somewhat illusory. The Yakima Valley is a miracle of manipulation. It would grow little but sage and scrub brush without its network of irrigation ditches and pipes, draining water off the Cascades.

3) the role of industrialized production in food-borne illness is somewhat unclear and should be considered in context:

How much of the danger from leafy vegetables can be blamed on the industrial model that produces cheap calories I don’t know. But as consumers follow Michael Pollan’s advice to get to know our food producers, we will learn to see the processed burger and the industrial vegetables for what they are — cheap global commodities that carry some risk.

If that is what they are, whether they should be part of our food supply is not a simple question, at least to me. Egan artfully links the imperfect supply with the imperfect remedy many of us employ:

The best antidote for such a thing is to see, touch and experience food as it comes off the fields. As imperfect as this harvest picture is, it satisfies a need that has never bred out of us as people.

Considering Hamburger: NYTimes Report on Food Safety

The New York Times published an article on Sunday that told the tragic tale of a young woman from Minnesota who contracted a severe form of food-borne illness caused by E. coli traced to a hamburger her mother grilled for her. Stephanie Smith, now just 22 barely survived, and she was left paralyzed as a result of severe nerve damage. The article, Woman's Shattered Life Shows Flaws in Beef Inspection, is a frightening look at food borne illness and a similarly frightening look at potential problems associated with that quintessential American food, the hamburger.

. . . confidential grinding logs and other Cargill records show that the hamburgers were made from a mix of slaughterhouse trimmings and a mash-like product derived from scraps that were ground together at a plant in Wisconsin. The ingredients came from slaughterhouses in Nebraska, Texas and Uruguay, and from a South Dakota company that processes fatty trimmings and treats them with ammonia to kill bacteria.

Testing for E-coli is recommended by USDA, but is not required. While Cargill manufactured and sold the patties, given the variety of origins and the lack of testing, it is virtually impossible to trace back to the original source of the contamination.

This problem is described in the associated graphic, Anatomy of a Burger, an effective portrayal of the the source of the substances that went into the frozen patties that Stephanie's mother purchased. Addressing the issue of proper cooking, the Times conducted a test on kitchen procedures and produced a video, Hamburger Confidential that suggests the ease of contamination to surfaces and objects in the kitchen, even when the burger is properly cooked.

A video presentation provides an interview with Stephanie, her attorney Bill Marler, and a look at our meat inspection process. Marler provides information about another victim of the Minnesota outbreak on his blog in the post, Stephanie Smith is Just One of the Victims. The post provides a detailed and heartbreaking chronology of the medical problems and permanent disability suffered by another Minnesotan, eleven year old Ruth Hemmingson.

On Monday, USDA Secretary Tom Vilsack issued a statement in response to the New York Times article.

The story we learned about over the weekend is unacceptable and tragic. We all know we can and should do more to protect the safety of the American people and the story in this weekend's paper will continue to spur our efforts to reduce the incidence of E. coli O157:H7.

While the statement reviews some of the new initiatives begun under the Obama adminstration, Secretary Vilsack promised additional action.

USDA is also looking at ways to enhance traceback methods and will initiate a rulemaking in the near future to require all grinders, including establishments and retail stores, to keep accurate records of the sources of each lot of ground beef.

No priority is greater to me than food safety and I am firmly committed to taking the steps necessary to reduce the incidence of foodborne illness and protect the American people from preventable illnesses. We will continue to make improvements to reduce the presence of E. coli 0157:H7.

Clearly, it is in the interests of the public, the political interests of the administration, and the economic interests of the livestock and meat industries to address food safety problems quickly and effectively.

Beyond this, I am left wondering about the big picture of contamination and wondering about the virility of the new bacteria that seems to be developing. While testing, sterilization, and sanitization seem essential to address the symptoms of our problems, are there more fundamental questions to also address?

UPDATE: Cargill's response to the NY Times article and its explanation of its testing system for food safey can be found on the MarlerBlog post, Cargill Responds.

Part Three: The Relationship Between the Level of Regulation under the FDCA and the Health Status of a Product’s Targeted Population

An Introduction to the History of Quack Medicine

In the late nineteenth and early twentieth centuries there was a remarkable growth in the marketing of sham products to treat and cure disease.

At that time, the rate at which quack medicines were being introduced into the market far outpaced the development of the science necessary to establish the efficacy and identify the risks associated with each new product. This scientific lag time created a period when there was an information void that
predatory commercial interests were quick to use to their advantage. As the FDA carried the burden of proof to show that a product did not work or was unsafe in order to remove the product from the market, during this lag time predatory commercial interests were able to profit from scientific uncertainty to the detriment of public health.

During this long period in U.S. history, the curative claims of the predatory sham medicine salesmen were limited only by the gullibility of their targets. In many cases, the degree of gullibility was proportional to the level of desperation of the individual for a cure. The more dire the condition, the more vulnerable an individual was to the ‘flim flam’ of the greedy snake oil salesman. And the more dire the condition, the greater the degree of harm when the sham medicine did not work, causing injury over and above the original illness and/or causing a delay in seeking effective medical treatment. Thus, this lag time between initial marketing of a sham product and the development of the science necessary to resolve uncertainties over the new product’s safety and effectiveness was very costly in terms of human suffering and loss of life. Slaying the Hydra: The History of Quack Medicines

In 1962, after a series of highly publicized public health crises, legislation was passed to close this ‘space between’ created by scientific uncertainty by switching the burden of proof for safety and effectiveness from the FDA and onto product manufacturers.

As more fully discussed in the next entries in this series,

it was not until 1962 that legislation was passed that required manufacturers to obtain premarket approval for new drugs from the FDA by producing “substantial evidence” that the product is both safe and effective for its intended use. The Drug Amendments of 1962 allowed the FDA to make the transition
from its former inefficient and costly police role of enforcing specific statutory prohibitions by removing adulterated and misbranded products from the market, to its current gatekeeper role of preventing those products from entering the market in the first place. Thus, from 1962 until 1994, manufacturers were no longer able to ‘play in the grey’ and take commercial advantage of the scientific uncertainty over the safety and effectiveness of a product to the detriment of public health.

The legislative history of the FDCA makes it clear that Congress also intended that weight loss products fall into the same regulatory category as drugs and devices specifically to deal with predatory profiteering by product manufacturers that targeted a vulnerable population of those who were overweight or obese. In the legislative record, members of Congress expressed their intent to deal with the massive number of “worthless” products being marketed for weight loss at the time. Id.

Thus, prior to the passage of The Dietary Supplement Health Education Act (“DSHEA”) and the Nutritional Labeling Education Act (“NLEA”), the FDCA appears to have required that manufacturers of weight loss supplements obtain premarket approval by establishing the safety and effectiveness of their products before distributing them.

However, the passage of DSHEA in 1994 has confused this situation. To date, it appears that DSHEA is being interpreted to shift the burden of proof back onto the FDA with relation to dietary supplements marketed to both healthy populations and vulnerable, unhealthy populations.

With this over broad interpretation, predatory commercial interests are again being allowed to exploit scientific uncertainty. The door has now been re-opened to the same deceptive advertising that ran rampant in the late nineteenth and early twentieth centuries.

And unfortunately, tens of millions of vulnerable and desperate individuals who are overweight and at grave risk of developing a serious, chronic disease are being lured into this predatory playground. The United States has now come full circle and returned to the era of the snake oil salesman. The very public health problem that the FDCA was originally promulgated to deal with, fraudulent and deceptive products that put the nation’s health at risk, has reared its ugly head once again. Id.

The next blog post in this series delves into more details regarding the history of the quack medicines to give additional perspective to the relationship between the FDCA, the FDA and predatory commercial interests.

Post Two of a Series: The Relationship Between the Level of Regulation under the FDCA and the Health Status of a Product’s Targeted Population

The first post of this series began by asking whether functional foods should be regulated as drugs if they claim to treat abnormal health conditions. For example, was it appropriate for the FDA to characterize Cheerios as a drug as a result of its advertising claim that “you can Lower Your Cholesterol 4% in 6 weeks?” An abnormally high cholesterol level is a serious risk factor for disease and those with high cholesterol levels are in an abnormal state of health. By virtue of its claims to help this group of unhealthy consumers with their struggle to return to a normal state of health, should the manufacturer of Cheerios be required to undergo the FDA's premarket approval process to show that eating Cheerios is effective in lowering cholesterol as claimed?

The answer to this question may become more apparent by looking at another category of products that claim to help unhealthy people return to a normal health status – weight loss products.

The Obesity Crisis and Weight Loss Products

The United States’ obesity crisis is gaining momentum. In only fifteen years, eighty percent of Americans will be either overweight or obese. Being overweight or obese places an individual at a significant risk for developing hypertension, Type II diabetes, heart disease, stroke and cancer.

Conservative estimates predict that the health care costs associated with this epidemic will reach $956.9 billion in the 2020s. One of every six dollars spent on health care will be associated with the conditions of being overweight and obese. Significantly, for the first time in over a century, children and young adults will have a shorter life expectancy than their parents.

"This obesity epidemic has been matched by a rapid growth in the weight loss supplement industry. Overweight consumers desperate to lose weight are being lured by ‘magic bullet’ claims into purchasing ‘quick-fix’ weight loss supplements in order to lose weight and decrease their risk for disease. As the result of prodigious marketing campaigns, many adults and adolescents ... are turning to weight loss supplements as an alternative to diet modification and exercise.

Advertisements for the ‘quick-fix’ product that works to melt off pounds without diet or exercise, some even while you sleep, are everywhere. Enforma Natural Products, Inc. ran an infomercial marketing its product Exercise in A Bottle claiming it “helps your body burn more calories while you’re just standing or sitting around doing nothing – even while you are sleeping” and “[y]ou can enjoy all those delicious foods like fried chicken, pizza, cheeseburgers, even butter and sour cream, and stop worrying about the weight.” The manufacturer of a similar product called Maxiline advertised heavily by taking out full-page newspaper advertisements stating “[s]leep … and lose weight in just a few nights … you eat whatever you want.” The advertisement stated that the product worked because “the body’s fat cannot defend itself from attack while asleep.”

Commercials on television and radio, lengthy infomercials, magazine advertisements, mass mailings of brochures and Amway and “Avon-Calling” type visits from friends and neighbors hawking miracle potions for magical weight loss flood the American consciousness. In 2000, the sale of weight loss supplements in the United States reached $4.7 billion, with a projected increase of ten to twenty percent annually.

In the book Through the Looking Glass, Alice said, “[o]ne can’t believe impossible things.” The White Queen answered: “I daresay you haven’t had much practice . . . . When I was your age . . . I’ve believed as many as six impossible things before breakfast.”

Like Alice, for many, the impossible weight loss claims made by the current breed of snake oil salesmen defy credibility. However, viewed in context, these beliefs are more understandable. Many of these consumers, and, shockingly, their physicians, incorrectly believe that the FDA requires premarket testing to establish that these weight loss supplements are both safe and effective. In fact, the FDA does not require that these products undergo clinical testing for safety or efficacy prior to being placed on the market. This vast market exists in spite of the fact that there is little to no evidence that most of these products actually work. To the contrary, there is growing evidence that many are ineffective and unsafe.

In 2002, the FTC issued a report that fifty-five percent of the claims made within advertisements of over-the-counter weight loss products were either false or misleading. According to the FTC, more consumers are defrauded by weight loss products than any other product it has examined." Slaying the Hydra: The History of Quack Medicines

Why isn’t the FDA using its premarket approval authority to keep these sham products from entering the market in the first place? Not surprisingly, the weight loss supplement industry is marketing its products as dietary supplements and is claiming the safe haven protections from FDA regulation offered under the Dietary Supplement Health Education Act (“DSHEA”) and the National Labeling Education Act of 1990 (“NLEA”). What is surprising is that the FDA appears to agree. Are the weight loss supplement industry and the FDA correct?

The next several posts in this series will examine the history of the relationship between the FDCA, the FDA and predatory commercial interests and will ask whether there are lessons from the past that can assist in the analysis of current regulatory issues involving food, functional food and dietary supplements. If so, do these lessons also offer insights into the regulation of nanotechnology used in consumer products for direct and indirect human consumption — including food (directly and through the food production process), food supplements, cosmetics and sunscreens?