Happy Thanksgiving

A nice image, by way of Feminist Law Professors.

Coffee and the law

Our friends at Red Lion Reports have brewed a pair of powerful posts on the connection between coffee and the law. First, Kelly Bozanic revels in caffeine (in the form of coffee and espresso drinks) as her drug of choice. And then Marie Reilly delivers this tour-de-force on the social history of coffee:

Coffee has a surprising and so far unexplored social history. About one thousand years ago, coffee from Africa crossed the Red Sea into Arabia where Muslim monks brewed it into a kind of wine used for spiritual rituals. During the 16th century, Muslim religious leaders prohibited coffee drinking as forbidden by God. But, coffee caught on and became so popular and so troubling to Muslim religious and political leaders that in the 17th century, a Turkish sultan prohibited it again for the Ottoman Empire. In 18th century Germany, the government took up regulation of the demon drink and proposed prohibition, but only for women. J.S. Bach, a noted coffee house hound, was so outraged (too much coffee?) that in 1732 he composed an operatic political screed[,] The Coffee Cantata.

To all of which, Marie concludes: "I'm thinking that we lawyers need to scrutinize the history of regulation of coffee and its implications for religious liberty and sexual equality. Seminar anyone?"

To all these questions, except perhaps Kelly Bozanic's quest for the ideal cup of coffee in State College, Pennsylvania, Agricultural Law has the answer. Some time ago, this forum proposed the very seminar that Marie recommends, based on Jim Chen, The Potable Constitution, 15 Const. Comment. 1 (1998).

I also have a suggestion regarding the social and cultural history of coffee. As Food Law Prof Blog has kindly noticed, I discussed this very issue in Around the World in Eighty Centiliters, 15 Minn. J. Int'l L. 11 (2006):

The production, marketing, and delivery of beverages are enterprises so vast that fully to comprehend [them] would require an almost universal knowledge ranging from geology, biology, chemistry and medicine to the niceties of the legislative, judicial and administrative processes of government. Queensboro Farm Prods., Inc. v. Wickard, 137 F.2d 969, 975 (2d Cir. 1943). So extensive are the legal complexities at issue that the typical North American coffee service traverses nearly the entire range of allocative and redistributive considerations within the law of trade. A simple carafe of coffee, with cream and sugar on the side, vividly illustrates the tradeoff between comparative advantage and redistributive goals in the formation of trade policies.

Coffee, tea, milk, or liquor: all law dissolves in the beverage of your choice.

Beyond food and evil (revisited)

Herewith an extension of my original post regarding my paper, Beyond Food and Evil, as reprinted from The Cardinal Lawyer:

I am pleased to present this RealPlayer video  of my presentation at the Duke Law Journal's 37th Annual Administrative Law Conference. This year's conference, staged on February 2, 2007, focused on the administrative state's regulation of food.

I also invite you to download and read the finished product: Jim Chen, Beyond Food and Evil, 56 Duke L.J. 1581 (2007):

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.

Beyond Food and Evil has had an active academic life since February. I presented this paper at the University of Arkansas on November 1, 2007, as part of my official visit at Arkansas. In addition, Professor Donna Byrne has discussed Beyond Food and Evil on her Food Law Prof Blog.

Thoughts on Food & Agriculture

An earlier post, Arkansas' LL.M. Program in Agricultural Law announced another recruiting season for the LL.M. program. That post noted an increasing interest in the program on the part of students and practicing attorneys concerned with issues of food law and policy. This observation and subsequent references to it, have caused some interesting discussions about the relationship between agricultural law and food law. It appears that some in the agricultural law world are uncertain about the intrusion of "foodies." My thoughts on the issue, while evolving, begin as follows:

Agricultural law can be defined as the network of laws that apply to the production, marketing, and sale of agricultural products. Food, with the exception of that which is hunted, gathered, or created in a chemistry lab, is an agricultural product.

So, in one respect, food law can be seen as a subset of agricultural law. The informational materials for the Agricultural Law LL.M. Program reference agricultural law as "the laws that apply to the production marketing, and sale of the food we eat, the natural fibers we wear, and increasingly, the bio-fuel that runs our cars."

But, in reality, food is much than a simple subset. Agriculture began as an attempt to produce food, and it is the production of food that has historically given agriculture its claim to special status world wide. Human survival (indeed, the survival of any animal) is dependent upon two basic elements - food and water, and agriculture uses one to produce the other.

So it is not surprising that as interest in food has increased in our popular culture, interest in agricultural law has also increased. What impact might this have on American farmers and on agricultural law?

In my view, having consumers more interested in the food they eat and where it comes represents a remarkable opportunity for agriculture, and it represents an exciting new frontier for agricultural law. Farmers are not used to consumer "interference" in the agricultural marketplace, so some conflicts are anticipated. But, consider the following arguments, all presented from the perspective of the American farmer.

1) The industrialization of U.S. agriculture has been fueled largely based the goal of cheap food. However, in the long run, cheap food is not the wagon that American farmers want to hitch their horse to . . . First, cheap food is one of the reasons why American farmers have had so many financial struggles. Second, other countries can and often do produce food more cheaply, witness Vietnamese catfish. To prevent American agriculture from going the way of the North Carolina textile industry, and for American farmers to continue to be successful as producers of our nation's food, consumers need to care about more than just price.

2) Consumer interest in food offers farmers a unique opportunity for a market that is interested in the products they have to sell. Consider for example, the ongoing efforts by Appalachian Rural Development to help Virginia Burley Tobacco farmers to convert their farming operations to organic vegetables. This effort was highlighted on a recent segment of the PBS news show Now. As one farmer says of the transition, "I can make more money selling tomatoes than I can tobacco." It is that simple.

The slow food movement, self-defined as advocating "a food system that is based on the principles of high quality and taste, environmental sustainability, and social justice," also presents opportunities. While that may sound a little too "lefty" for Farm Bureau, if you step back from the political hot buttons, that food system offers a lot of advantages to the American farmer - particularly if consumers are willing to pay for such a system.

And, of course there are other consumer interests, some as basic as food safety or buying local to reduce "food miles" that offer American farmers an opportunity to market their products to informed buyers.

3) Key to building loyalty between consumers and American farmers is knowledge. In the last two generations, consumers have moved so far away from their food that they no longer even understand the risks inherent in agriculture. Few have ever been on a working farm, and few ever have any personal impact when there is a crop failure. What if the oranges freeze in Florida? We'll just import them from Brazil. In contrast, consider the regular shopper at the farmers' market. She understands when the weather has been too cold and wet for tomatoes - she sees the results, and she talks to the growers. Which consumer is more likely to support Congressionally funded disaster assistance programs and other special protections for farmers? The answer is pretty clear - we care about what we know about.

Farmers may feed the world, but now the world would like a say in what they eat. That sounds like a great marketing opportunity to me.

Atrazine Brings the Bachelor to Life

When the stork arrives, there is a 50/50 chance that it will bring a girl, Right? Not so, says a team of researchers. Since 1970 there is a "distinct and unexplained trend" of more female births than male. Devra Lee Davis, et al., Declines in Sex Ratio at Birth and Fetal Deaths in Japan and in U.S. Whites, but not African Americans, 115 Enviro. Health Persp. 61 (June 2007). This is especially strange because boys historically outnumber girls 51/49.

Most shocking are the statistics from the Aawjiwnaang First Nation community in Canada. They reported that "sex ratios have dropped from an expected 0.55-0.54 range to 0.45 for the late 1990s, to 0.35 for the 1999-2003 period." Id. This constitutes the greatest rate of change in sex ratio ever reported.

This brings to mind recent research from Tyrone Hayes, the frogman from Berkeley. I don't know if that's how others think of Tyrone Hayes, but he will always be the frogman to me. Hayes has published numerous articles finding that little boy tadpoles who grow up next corn fields often become little girl tadpoles. See e.g., Tyrone Hayes, et al., eminization of Male Frogs in the Wild, 419 Nature 895, 895 (Oct. 31, 2002); Tyrone Hayes et al., Atrazine-Induced Hermaphroditism at 0.1 Ppb in American Leopard Frogs (Rana Pipiens): Laboratory and Field Evidence, 111 Enviro. Health Persp. 568, 574-75 (2003).

In fact, the study's authors posed exposure to endocrine-disrupting hormones as one of the potential causes of the observed sex ratio. They cite altered sex ratio in children of gardeners and farmers as support for this theory. One problem with this theory - if pesticide exposure causes altered sex ratio, then why the variability between blacks and whites. I have my own little theory - more white people live around corn fields. While I just pulled that one out of thin air, I think it is superior to the researchers suggestion that African Americans have "greater exposures to hair care and other personal care products." Out of respect to the researchers, I must note that they pulled that idea out of another paper and mentioned one or two other forgettable explanations. Still, shame on them for citing it!

Because I am interested in pesticide regulation, I might be a little too happy to jump on the pesticide causation theory. Despite my own biases, I think this data should give us a moment of pause about our current use of endocrine-disrupting chemicals. If we don't take that moment of pause, The Bachelor, a really bad t.v. show, could become all too real. Watch it next week - it will strike fear into your heart and motivate you to buy organic and filter your water.

Bourbon and bluegrass

The New York Times' most recent travel section features a story on the pursuit of bourbon and bluegrass in Kentucky:

[Author Steven Kurutz] embarked on a road trip centered on bourbon and bluegrass, exploring the back roads of the state where those two American mainstays trace their deepest roots. It was a trip that spoke to our passions and vices; [travel companion] Chris and I are both avid fans of traditional country and roots music, and we’re also dedicated whiskey drinkers, so much so that holidays are often met with an exchange of a bottle of whiskey between us. (Occasionally, we’ve even combined the two, sneaking a flask into a concert.)

We fashioned our itinerary in the style of a bluegrass song: a defined structure but with ample room for improvisation. During the first part of the trip, we would hit the Kentucky Bourbon Trail, a whiskey version of California’s Napa Valley made up of seven distilleries (Maker’s among them) that are open to the public. Our final stop would be the sixth annual Jerusalem Ridge Bluegrass Celebration in Rosine, the birthplace of Bill Monroe, the father of bluegrass. It was in the central part of the state, in the rolling hills between Lexington and Louisville — where a layer of limestone filters the iron from the water, making it ideal for bourbon making — that Scotch-Irish distillers settled in the early 1800s.

Cross-posted from The Cardinal Lawyer.

Multimedia notes

1. The online version of the Times' feature includes a multimedia supplement, which you may watch in a popup window.


2. Be sure to enjoy Bill Monroe singing his signature song, Blue Moon of Kentucky:
   
   

How Sweet It Is

How Sweet It Is

Sugar is sweet, especially if you grow sugar beets or sugar cane. In a 2000 report, the GAO concluded that the sugar program produced welfare gains to sugar producers and processors in 1998 totaling about $1 billion. United States Gen. Accounting Office, Sugar Program: Supporting Sugar Prices Has Increased Users’ Costs While Benefitting Producers (GAO/RCED-00-126, June 9, 2000). About 70% of these gains went to sugar beet producers and processors. More specifically, sugar beet growers in 1998 benefitted from the sugar program to the tune of about $650 million. In 1997, the latest year for which figures were available, there were either 7,097 or 11,800 sugar beet farms in the U.S., depending on whether you rely on the USDA’s census of agriculture (7,097) or the FSA’s estimate (11,800). In either case, a total welfare gain of $650 million spread over 7,000 to 11,000 or so farms is an impressive a per-farm welfare gain.

How did the American people as a whole fare as a result of the sugar program? Not so good, according to the GAO. The GAO computed welfare losses accruing to sweetener users at about $1,938 billion. When this sum is subtracted from the welfare gains accruing to sugar producers and processors, the result in a net loss to the U.S. economy of about $893 million.

Not surprisingly, the sugar program has promoted sugar production. Acreage devoted to sugar beets and sugar cane increased an estimated 8% from 1997 to 2000. In addition, yields have increased as have sugar-per-acre recovery rates. As a result, the U.S. became awash in sugar.

Also not surprisingly, the glut of sugar depressed sugar prices, which sunk to historic lows. In June 2000, the USDA pitched in to help sugar producers by purchasing 132,000 tons of refined sugar at a cost of about $54 million. Prices, however, did not rebound.

The USDA then implemented the “2000 Sugar Payment-In-Kind (PIK) Program” that paid qualifying sugar beet producers up to $20,000 per-person in sugar for not harvesting sugar beet acreage. Producers did not actually take delivery of the sugar. Instead, they were given certificates redeemable in cash by assigning the certificate to a processor. A 2001 Sugar PIK program followed. And a lawsuit followed the 2001 sugar PIK, Sugar Cane Growers Coop. of Florida v. Veneman, 289 F.3d 89 (D.C. Cir. 2002).

Nature gives us the sweetness to sugar-cure our ham. Congress gives us the pork to sinecure our sugar producers. Sweet.

The Timing is Sweet

Yesterday, Dean Jim Chen, visiting here at the University of Arkansas School of Law as part of our Day with a Dean program delivered a lecture in the Agricultural Law LL.M. Finance & Credit class on his article, Around the World in Eighty Centileters.

In this article, and in Dean Chen's lecture, he discussed the interplay of trade, taxation (particularly through regulation and subsidy), and social justice. He used the typical North American coffee service, a carafe of coffee with cream and sugar on the side, to illustrate his analysis and to pointedly criticize certain aspects of U.S. farm policy.

The U.S. sugar program is an easy target. Quoting Dean Chen, [t]his program succeeds like no other in transferring wealth from the poor to the rich." Through a non-recourse loan system that effectively guarantees a high price to U.S. producers and a two-tiered mechanism of import tariffs, the sugar program imposes billions of dollars of costs each year on U.S. consumers and has a tremendously negative impact on trade with poor tropical countries far more suited for growing sugarcane.

As the New York Times opined last week, in Sugar's Sweetheart Deal , "[o]f all the government’s farm-support programs, there are few as egregious as the tangle of loans, quotas and import tariffs set up to protect the well-connected club of American sugar producers at the expense of American consumers and farmers in the developing world." The new farm bill passed by the House contains a 1 billion dollar ten year sugar subsidy program. And, as Professor Mark J. Perry reveals in a recent post on his Carpe Diem blog, Harvesting Cash: A Billion Dollars for Big Sugar, the current sugar programs already result in a U.S. price for sugar that is more than twice the world rate.

And now, to the sweet timing. Today's Washington Post highlights the timeliness of Professor Chen's presentation. Sweet Money: Sugar Industry Expands Influence (part of the Post's Harvesting Cash Series) provides us more detailed information on the current farm bill debate by exposing the lobbying efforts behind the "sweetheart deal". For example the Post reports that "nine sugar farm or refinery groups have made more than 900 separate contributions totaling nearly $1.5 million to candidates, parties and political funds."

An interesting, but discouraging read for those of us who would like to see farm policies that make sense for consumers as well as farmers. Isn't that what U.S. farmers' purported goal of "feeding the world" should really be about?