Law For Food: The law affects what you eat. What you buy to eat affects the law.

Raw Milk and Bathtubs
30 October 2007, 4:40 pm
Filed under: Cheese, Food Safety, Inspections, Raw Milk, Regulation

Serious Eats has a story about a California couple who were recently busted by state food safety authorities for making soft cheese in their bathtub and selling it on the street. The cheeses they were making were Mexican recipe soft cheeses such as queso fresco and queso oaxaca.

This is interesting to me because the anti-raw-milk authorities often justify the ban on raw-milk cheese by referring to outbreaks of listeria and e. coli found in queso fresco. Serious Eats notes that “bathtub cheesemaking” is a common practice in Latin American communities.

Which makes one wonder whether the outbreaks have more to do with the sanitation practices of the cheesemaker than with the intrinsic “dangers” of raw milk.


Undecided about Fois Gras

The Real Potato sums up the moral dimensions of fois gras remarkably well:

“I’ll be honest with you: I’m undecided on this issue. Here are my biases: I’m generally horrified by the conditions of commercial meat production…. I’m deeply suspicious of animal rights groups: I’ve worked on the political left for many years and have often found them shrill, dogmatic, and elitist. I’m also suspicious of business owners who scream ‘Communism!’ every time City Council introduces a bill…. I’m not a vegetarian (that’s another post) but I think that there are big problems with the way meat is consumed in the mainstream American diet. I’m generally in favor of any food that’s produced by hand, by skilled artisans working in a centuries-old craft. I think foie gras is delicious, but while I’m normally in favor of democratizing good food and getting delicious things out to the masses, I tend to think that foie gras should stay expensive– it should continue to be produced artisanally rather than becoming another factory product, which would bring in a high level of cruelty, as well as low safety standards.” (Emphasis added.)

This is just it, and this is the uneasy tension that a lot of us in the food world seem to have: producing things responsibly takes time and labor. Time and labor are expensive. I think this is what Carlos Petrini was getting at when he criticized the Ferry Farmer’s Market a few months back. Ethical, sustainable food shouldn’t just be for people with trust funds and portfoilos, because good food is a universal value.

In Food Politics, Marion Nestle writes about how traditional regional diets, high in plants and carbs but with occasional meats and other proteins added in, provide the best balance of calories and nutrients. Regrettably, she also notes that when due to economic success, a traditional diet becomes meat-heavy, it never reverts back to its earlier form voluntarily.

As I noted in the comments below, the farm subsidies have the effect of ensuring that the meat-heavy U.S. diet remains meat-heavy. This requires factory farming and industrial processes. As Americans, it goes against our nature to feel comfortable with the idea that poor people shouldn’t be able to eat meat if they want to. Ultimately, though, the costs of democratizing the meat-heavy diet are high, and should be considered.

Regulatory Design: Fois Gras

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.)

Food Patents and Antitrust

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.

Bourdain is Right
15 October 2007, 7:17 pm
Filed under: Economics of Eating, Ethics of Eating, fois gras, Meat, the-small-laws

About Fois Gras, at least.

Although not universally accepted in negligence suits, the Learned Hand formula for determining liability serves as an illuminating tool to show that banning fois gras is not a good use of political capital, assuming that one’s objective is to minimize the suffering of the animals intended for human consumption.

Hand’s formula is as follows: where an actor’s burden (i.e., the cost of preventing a particular harm) is less than the probability that the harm will occur multiplied by the loss the harm will incur if it takes place, the actor is liable to take steps to prevent the harm. It is often represented as

B < pl

Thus, where a harm is unlikely to occur, an actor needn’t spend much to prevent it, unless the harm will be costly if it does occur. Indeed, spending resources on unlikely harms is inefficient.

Unfortunately, humans are susceptible to something called the Availability Heuristic, which is the name for the tendency of humans to fear vivid harms (such as dying in a plane crash) over common ones (such as dying in a car accident) without taking into account the relative probabilities that these harms will occur.

While fois gras opponents aren’t seeking to determine liability, the Hand formula remains useful for comparing the harm of fois gras to the other possible harms worth protesting throughout the industrialized food supply. Feedlot overcrowding, for instance, is far more widespread, both in terms of total number of animals, and of total biomass affected, than fois gras production, and the amount of suffering per animal is at least as bad.

According to one estimate, world fois gras production in 2005 was 23,500 pounds. At 2 lbs/bird (a reasonable estimate, I am given to believe), that’s 12,250 birds per year. In the world.

By contrast, in 2003 10.7 Million cattle alone were raised in large feedlots, according to the USDA, and this number only represented one third of the 33 Million total cattle raised in the U.S. This does not take into account the number of pigs and sheep raised in feedlots in the U.S., or the cattle, sheep, and pigs raised in the rest of the world.

Thus, the number of creatures affected by fois gras production is substantially smaller than the number of creatures affected by feedlot practices.

It now falls to us to consider whether the harm done to fois gras birds may be so severe as to outweigh, when aggregated, the harm done to feedlot cattle when aggregated.

According to this study, geese and ducks do not exhibit the signs of being harmed when raised in conditions similar to those used to produce fois gras, compared to a control group. I found it notable that the animals do experience stress the first time they are tube-fed, but that these stress levels do not recur with subsequent feedings. Additionally, while I don’t think the practice is widespread, and while it won’t qualify for French AOC fois gras, the “overfeeding” of fois gras birds may be something that they would do for themselves anyway.

Moreover, it seems that many of the other incidental harms to these birds are not specific to fois gras production, but occur wherever there is overcrowding or wet bedding. I do not intend to disregard these harms, but simply to point out that it is possible to have these harms without raising fois gras, and that it appears to be possible to have fois gras without causing these harms, and that they are therefore causally disjunct.

In contrast, the harms suffered by feedlot cattle are well documented in books, reports, and websites, going back at least to Upton Sinclair’s The Jungle. I heartily recommend The Ethicurean for some good, current reading on this topic.

Thus it seems to me that fois gras raising is not intrinsically harmful to the birds raised in its production, and that people like Bourdain and Jamie Forrest may be right that a reduction in the number of animals raised in factory farms does more to eliminate animal suffering than an equivalent reduction in the number of animals used to produce fois gras. However, this is not the whole issue.

Tied to the availability heuristic are what economists call “outrage costs.” These are the political and other costs to regulators and reformers of ignoring the vivid but unlikely harms in favor of the mundane but common harms. It seems to me that it is easier to generate a groundswell of opposition to fois gras, which is an unfamiliar french-sounding food typically associated with people who own their own jets. It is probably more difficult to generate a groundswell of opposition to overcrowded feedlots when the immediate impact of such opposition would be an increase in the price of beef. Ultimately, opposition to fois gras seems to me a cynical exercise in political haymaking, rather than a considered attempt to reduce the suffering of animals raised for food.

Giving your Secrets Away
15 October 2007, 1:38 pm
Filed under: Intellectual Property in Food

On a related note, the 37 Signals blog noted recently that successful restaurants are restaurants that “give their secrets away” by selling cookbooks.

Comparative IP, Magician Style
15 October 2007, 1:32 pm
Filed under: Intellectual Property in Food, Regulation, Subsidies, Taxation, the-small-laws

In my comparative law class last year, we discussed at length the need for comparative lawyers to take a holistic look at the cultures which they are comparing before reaching their conclusions. It is often misleading to conclude that such-and-such a problem simply does not occur in the target jurisdiction when a strictly legal solution to that problem doesn’t show up in statutes and cases.

This article in Slate brings up the idea of extra-legal IP protection in two cases: magicians’ tricks, and chefs’ techniques and recipes. In neither case are the ideas and innovations that build a magician or a chef’s career protected at law, but that doesn’t mean that these markets don’t have extra-legal incentives to protect those innovations. Often the incentives are a function of the social network protecting its value and stability against outsiders and upstart. I thought you might appreciate this as a way IP is protected without recourse to the government.