Well, it’s been quiet here for almost eighteen months. I apologize, and I wanted to break the silence with some big news that is going to a) bring back the lawforfood blog, and b) change the shape of local agriculture in New England.
Announcing (or rather, pre-announcing) Law for Food, the firm.
Together with a partner, I’m launching a law firm to support a lot of what I used to talk about here. It’s a tremendous risk, as well as a tremendous opportunity. More than that, it’s why I decided to go to law school in the first place. I wanted to work for a place like Law for Food, but I couldn’t find one, so I and my partner are making one for ourselves.
In the next few months, this site will make its way over to its new home at lawforfood.com as we launch the firm, and the website. Stay tuned for more!
This really is the way to run a culture.
What have you done to plan for the very distant future?
More on Raw Milk in Pennsylvania tomorrow. Today I found very interesting the Turf Wars article in this weeks’ New Yorker. It’s been my intuition that as energy and food costs rise, particularly if the economy begins to really slip, we’re going to see a great deal of suburban and urban yard converted into “victory garden” use, but my fear is that these will go the way of the original victory gardens: that is, they will exist until economic conditions enable our return to irresponsibility. Of course, the the emergency may wind up being rather longer than we think.
Tangential to this, Matt Yglesias has a good bit of writing about offshore drilling (which is intended to increase the supply of energy) as compared to high-density mixed-use zoning (which is intended to decrease the demand for energy).
Filed under: Economics of Eating, Food Costs and Prices, Portioning, Uncategorized
According to The Wall Street Journal, as beer prices rise in response to the rising costs of raw inputs, bars and restaurants are serving less than a pint of beer by substituting thick-bottomed 14 oz. glasses and by pouring more head than they used to. Jeff Alworth, of the Honest Pint Project, has more details.
To me, this problem presents an opportunity to think about the sorts of problems that regulation by the state is able to solve and the sorts of problems that are best left to actors in the market without legal intervention. I can think of three basic approaches:
- This is a simple false advertising problem, and can be handled by the existing body of tort and consumer protection law.
- Regulation is necessary because this is a harm that will not be adequately addressed either by false advertising tort law, nor by market action.
- Little or no government action is necessary because, to the extent that this is really a problem, people will stop going to establishments that short them on beer.
I think that the first position is the weakest, simply because of how expensive it is to bring an action in tort. It’s certainly not worth it in this sort of a case, and if I were a manager I would shrug off any customer who threatened to sue me for false advertising over a few ounces of beer. On the other hand, I would be careful that my state’s Attorney General didn’t get too many complaints about the practice, since in many (if not all) states the A.G. has a consumer protection division that handles exactly this sort of problem. However, the problem only exists as long as the bar is selling their beer in “pints” so a simple change of menu text would probably protect the company. That’s where the thick-bottomed 14 oz. glasses become useful to the bar: they look like pints, but as long as you’re not calling them “pints” you’re probably safe here.
The second option probably has some legs: I could imagine a regulation requiring that beer be sold in glasses with a line etched in them at the 16 oz. mark, similar to the way it is sold in England (although in England, if I’m not mistaken, the etching is of a 19.2 oz. Imperial pint). This has some merit, as it allows the patron a ready way to determine whether he is being ripped off — he can see if he’s getting a short pour. Also, a glass that were etched at a smaller amount but marked as a pint would be a pretty good badge of fraud, making a much easier private suit.
I think that the third option, although interesting, has little merit in the present case because because the patron will bear larger costs in policing the sizes of the pint he is served than the benefits he will get in getting the right amount of beer. The costs of policing are fairly fixed for all sorts of transactions: you have to verify that you are getting what you think you are getting, and if you aren’t, you have to bring it up with the vendor; you incur a social cost for bringing it up, and quite possibly another social cost for even policing it in the first place — it isn’t terribly cool to pour your beer into a measuring glass. The benefits, in this case, are probably no more than three ounces of beer. I have trouble imagining that beer prices will rise to a level such that the price of three ounces of beer is worth policing one’s pour amount.
It is difficult for me to see where the efficient outcome lies. It may be true that when you’ve paid your five dollars for a pint, you should expect a full pint and not just 14 oz., but what if, in order to stay in business, a bar would have to charge $5.75 for the full pint where it only charges an even $5.00 for the 14 oz. beer? What if the bar has determined that $5.00 is the best price-point for a beer, and has had to adjust its portioning accordingly, rather than keeping portioning the same and raising the price? What if people buy more beer by volume at $5.00 / beer than they do at $5.75 / beer due to perceptions about how much money they are spending? None of our answers to these questions justifies calling a 14oz. glass a pint: that’s false advertising. But maybe a bar should be able to sell beer in any amounts it wants.
Readers, I crave your thoughts. Is this a problem that regulation can efficiently solve? What sort of regulation? What would an efficient outcome look like?
Filed under: consumerism, Energy Costs, Food and Energy, Uncategorized, Wal-Martization
Not that it’s anything new, but the New York Times has an article about how rising gas prices are affecting rural populations the most. From the article:
Mr. Clark and members of his work crew spoke of the big and little changes that higher gas prices have brought. The extra dollars spent at the pump mean electric bills are going unpaid and macaroni is replacing meat at supper. Donations to church are being put off, and video rentals are now unaffordable.
Cleveland Whiteside, who works with Mr. Clark and used to commute 30 miles a day, said his Jeep Cherokee was repossessed last month, because “I paid so much for gas to get to work I couldn’t pay my payments anymore.” His employer, Larry Clanton, has lent him a pickup truck so he can get to work.
Signs of pain and adaptation because of the cost of gas are everywhere. Local fried chicken restaurants are closing because people are eating out less. At the hardware store here, sales have plummeted to $30 a day from $250 a day a month ago.
I realize that this is only tangentially related to food policy, but it ties into other policy arrangements that have had an impact on the way we order our lives in the U.S., and relates to some of the same issues as food production and retail. Specifically, the rise of the strip mall and commuter culture. Author and researcher Stacey Mitchell, in her book Big-Box Swindle, notes that:
As corporate chains have come to dominate retauling, Americans are logging more road miles each year for shopping and errands…. It’s not that we’re taking more shopping trips, but rather that more of those trips are by automobile and the journeys are longer. As the chains build ever-bigger stores, each outlet depends on a greater number of households spread over a wider geographic area. Thus the distance between home and store continues to grow….
Driving has become less about choice and more about necessity. In much of America, walking or taking public transit to the store is no longer an option. Most families have moved into suburban subdivisions that, by virtue of both zoning codes and convention, are strictly residential and lack the small neighborhood shops common in older communities. Not surprisingly, families that live in the suburbs rely much more on their cars than those who live in traditional neighborhoods….
Corporate chains have a strong preference for locations and store designs that encourage and even necessitate traveling by car…. [T]he [very] nature of the shopping experience necessitates driving. Picking up a few things after work every day — which is fast and easy if you have a few good small stores in the neighborhood — is not at all convenient if you have to navigate a superstore the size of a football field and then wait in line behind families buying a week’s worth of supplies.
What does any of this have to do with food law? As I have said, very little, except that the rise of this driving culture and the consumer tendencies it fosters have contributed strongly to the conditions we face today. As big-box retailers cause smaller, independent stores to go out of business, consumers purchase more and more of their goods at the big-box stores. Since big-box stores save administrative costs by having a single purchaser buy an entire category or subcategory of products for a region of stores, it is really unrealistic for big-box retailers to buy locally produced goods such as food, even if they wanted to. (To say nothing of the fact that, if they did, they would quickly drive local producers out of business due to the concessions they are able to demand.)
The system is able to perpetuate itself because most people own cars and think little of driving 20 miles to grocery-shop. Thanks to the rising price of gas, all of that is about to change.
Filed under: Uncategorized
I’ve added Ruhlman, and via Ruhlman, Wolly Pigs, a blog by a man raising pigs for custom slaughter. I’ve also lately been enjoying Becks & Posh, and I can’t believe I didn’t already have Serious Eats on the roll.
Enjoy!
Filed under: Cheese, Food Policy, Food Safety, Inspections, local v. industrial, Pasteurization, Production, Raw Milk, Regulation, Uncategorized
From the Dairy Reporter, a story on probiotic dairy products intended to replenish the sorts of gastrointestinal flora that we used to get from food. Money quote:
[Walker] said that measures intended to improve public health, such as food pasteurisation and sterilisation and use of antibiotics means that there is a decreased exposure to micoorganisms – leading to a gap in colonisation and weaker defences against disease.
First of all, while this research doesn’t surprise me, I am a bit bothered by the fact that Nestlé is profiting off of mandatory pasturization and sterilization of food.
The sequence of events seems to go like this: unpasteurized foods contain a great deal of bacteria, most of which is harmless. Exposure to these bacteria would promote the immune system. (Note: I don’t have a scientific background, but my understanding is that these bacteria compete for resources with harmful bacteria in the gastrointestinal tract, which means that harmful bacteria wind up fighting a two-front war against both the immune system and these other bacteria. This means that the immune system doesn’t get overwhelmed by harmful bacteria. Any biologists care to comment?)
As it is now, a great many foods are pasturized or sterilized, either by regulation or voluntarily, and do not expose the consumer to these harmless bacteria. Which means that consumers’ immune systems get weaker. Thank god there’s Nestlé to put back in the stuff that was in the food to begin with.
I am reminded of something that Ari used to talk about when I worked at Zingerman’s. He was presenting on raw milk cheeses and he said that pasteurization was a bad idea is because it enables producers to lower their production standards, because they know that any bacteria that get into the milk will be cooked when they pasturize it. Pasturization destroys accountability because the dairy co-op or factory cheesemaker doesn’t know and doesn’t care whose milk might have been dirty: they can put it all into the same big vat and heat it up and it doesn’t matter.
Only, turns out it might matter.
Filed under: Economics of Eating, fois gras, Food Policy, food politics, Regulation, Uncategorized
There’s a good discussion of the ethics and politics of fois gras over at Accidental Hedonist, in which Marc from The Ethicurean and Mental Masala asks a policy question:
If it was determined that gavage was unacceptably painful for the animals, would it be OK to ban the sale of foie gras produced using the technique of gavage? Or should the ban only apply to the practice of the process within the state or locality?
The answer of course depends on what one’s intentions are in supporting a ban. The first proposal would limit the consumption of gavage-produced fois gras, while the second would limit its production, but not necessarily its consumption.
The foreseeable effects of banning the sale gavage-produced fois gras are as follows: first, some certifying authority would regularly have to inspect producers (both domestic and overseas) to ensure that gavage was not taking place (in much the same way that the FDA inspects and certifies overseas producers of other foods). Since FDA inspection fees are borne in part by the party seeking inspection, this raises the barrier to entry and precludes some smaller producers from entering the U.S. fois gras market (if they aren’t producing enough fois gras to amortize the inspection costs.)
The second proposal bans the act of gavage in the production of fois gras, presumably under animal cruelty grounds. It seems to me that this would simply outsource gavage to other jurisdictions, unless it were accompanied by a ban on the import or sale of gavage-produced fois gras such as discussed above.
An outright ban on gavage-produced fois gras therefore will be more effective in stopping the practice than will a ban on gavage within the jurisdiction, assuming that gavage is worth banning. (I want to stress that I remain unconvinced of this.)
Filed under: antitrust, Economics of Eating, Food Policy, food politics, Intellectual Property in Food, Regulation, the-small-laws, Uncategorized
So, thanks to something the Ethicurean asked about last summer, I am working on a paper about Monsanto’s recently revoked seed patents, and I am unsure how I am supposed to think about a few things.
First, a short review of what I’m learning. Monsanto held the patent in glyphosate-based herbicides, which are non-selective (i.e., they kill your crop as well as your weeds) and which it sells under the RoundUp trade mark. While they held this patent they developed a way to insert DNA which codes for an enzyme into various germplasms. The coded-for enzyme confers glyphosate tolerance upon the plant. Monsanto sells crops with this nifty little bit of bioengineering under the RoundUp Ready trade mark.
The RoundUp patent expired, but the market hasn’t seen an increase in the sale or availability of generic glyphosate herbicides (which should still work with RoundUp Ready seeds) for a number of reasons.
First, Monsanto includes with the sale of RoundUp Ready seeds a crop failure guarantee called “RoundUp Rewards”, which protect farmers against crop failure. This guarantee is only available when RoundUp Ready seeds are used in conjunction with RoundUp, and is unavailable when generic glyphosate herbicide is used. Given that a crop failure guarantee adds substantial value to the RoundUp Ready seeds, farmers are unlikely to use generic glyphosate. This sews up the demand side for RoundUp.
Second, the dealer margins on herbicides are fairly slender, so Monsanto has a dealer rebate program which makes the sale of RoundUp profitable. This rebate program, however, is contingent upon the dealer hitting its sales targets with respect to the entire spectrum of RoundUp Ready seeds. This sews up the supply side for bioengineered seeds.
Farmers want RoundUp, so dealers have to sell it. Dealers want to make a profit on RoundUp, so they have to push RoundUp Ready seeds.
Now, I think there is a strong argument to be made that this behavior is in violation of section 1 of the Sherman Act and section 3 of the Clayton act, but I have to ask whether it is in the interests of opponents of genetically modified foods and of herbicides for these laws to be enforced in this case.
The aim of antitrust law (known in non-U.S. jurisdictions as competition law) is to promote competition within a market. Where an entity (be it a single corporation, or the concerted action of multiple colluding competitors) exercises market power so as to eliminate competition, the thinking is that the entire market, and therefore consumer choice and economic development, suffers. Competition brings prices down and more products to market. There are some economists who disagree, but antitrust law seems to me to be ultimately pro-market by ensuring that markets remain competitive.
Thus it seems to me that a real danger exists that if Monsanto is found to be in violation of these antitrust laws and is enjoined to cease these behaviors, the market may open up to other suppliers of generic glyphosate, which will simply reduce the total cost of growing glyphosate-resistant crops. That is, in a competitive market for glyphosate, we should expect to see an increase in the amount of glyphosate-resistant crops grown. Monsanto’s actions keep the market from being competitive, at least for now.
This is confusing to me, because in doing a lot of this reading I have developed a sense that Monsanto is a too-powerful company that needs to be stopped from abusing its patents and market power, but I have a suspicion that the harm Monsanto does to growers and dealers is that it is able to keep prices from dropping by keeping competitors out of the market. I am unsure whether this is a harm to society as a whole, given the premise that GM crops and non-selective herbicides are harmful to both our environment and our food supply.
Filed under: Uncategorized
Via Megnut, a food blog called Food Karma Alert is proving to be a worthy read.
Law For Food: The law affects what you eat. What you buy to eat affects the law. 