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

Drive-By Libertarian v. Straw-Man Foodie

Reason Magazine issues a salvo in the fast-food restaurant labeling discussion, arguing that in our haste to regulate how much fat we eat, consumer protection advocates and supporters of mandatory nutrition information labeling have unduly singled out fast food operations and have forgotten that wretched excess in the consumption of saturated fats is not limited to the drive-thru window. Money quote:

Fast food makes such a savory scapegoat for our perpetual girth control failures that it’s easy to forget we eat less than 20 percent of our meals at the Golden Arches and its ilk. It’s also easy to forget that before America fell in love with cheap, convenient, standardized junk food, it loved cheap, convenient, independently deep-fried junk food.

While these statements may be true as far as they go, it seems to me that the author is playing fast and loose with the various argumenta ad antiquitatem, ad populum, ad hominem, and the old red herring.

To address each of these in turn: first, it may be true that U.S. citizens have been susceptible to overconsumption of the sorts of artery-clogging fare that typify the fast-food menu since long before the invention of the fast-food restaurant, but even if this proposition is true, it does not follow that our tendency to overeat is ordinary or good simply because it preceded the existence of some restaurants subject to regulation.

Second, nobody is arguing that at the current prices, demand for fast-food and fast-food-type food is high. If fast-food-type food weren’t popular, it wouldn’t be a major contributor to U.S. obesity, would it? Again, the fact that lots of people tend to eat fast-food-type food says little, if anything, about whether that tendency is something that we should address with regulation.

Thirdly, the author seems to be saying that because people overeat at independently-owned restaurants that sell, e.g., massive burgers as well as at chain restaurants that sell massive burgers, requiring chains to meet a standard that independent shops may avoid is hypocritical populism. This argument cannot be valid unless chain shops are no better off than independent shops at meeting the standard, and this is not the case for two reasons. 1) The franchisor (because let’s face it, in general we’re talking about franchises here) is more likely than the independent shop already to have access to information about portioning and nutrition. 2) the franchisor is able to design a single sign for use in multiple shops, thereby spreading the large costs of compliance over a wider population than the independent shop.

That is, if you’re Burger King corporate, when you determine the nutritional values of the Whopper and design a sign containing those values, you incur a single cost that brings all of your stores into compliance, but if you’re Ray’s Burger Joint, when you determine the nutritional value of the Ray’s Slider, and design a sign containing that information, you incur a cost that brings only one store into compliance. This cost will have to be replicated for every independent shop in the city. Thus it is not the case that failing to go after independent shops selling fast-food-type food necessarily stems from a desire on the part of the legislator to be seen as tough on big business and a friend of the little guy. It may simply be the case that these standards, although necessary, are more onerous on the independent diner than they are on the chain restaurant, and therefore the requirement of fifteen stores or more within the city constitutes a hardship exemption for smaller businesses.

Finally, all of these objections are another instance of Drive-by Libertarianism and how it obscures the issues. U.S. citizens ate too much beef in greasy-spoon diners in the 1950s for the same reason we eat too much beef in fast-food restaurants now, and it’s a reason that I should expect Libertarians to be more mindful of — government distortion of the market via subsidies.

It is fair to say that Federal Farm subsidies are really only half the problem, and that the other half is that we didn’t develop a firmly-entrenched food culture here in the U.S. prior to the distortions created by the farm subsidies. We didn’t then, and still don’t, have a sense of the difference between “food” and a “meal,” in the way that, for instance, the French do. It is further well-established that proteins and saturated fats and sugars are historically rare in the human diet, meaning that a feast-or-famine mechanism naturally kicks in when high-fat, high-protein foods are present. Unfortunately, the farm bill has made it those foods cheap and omnipresent.

Among my favorite statements about the law and justice is the following, by G.K. Chesterton:
“When you break the big laws, you do not get liberty. You do not even get anarchy. You get the small laws.” It seems to me that when you badly and unintelligently distort the pressures of a market, you get regulation, and the regulation isn’t the problem.

About that corn-based ethanol…
10 December 2007, 5:19 am
Filed under: Corn-based Ethanol, Eating Science, Food and Energy, Food Safety, Meat

Or maybe it’s bash-on-ethanol day here at Law for Food. According to the Food Law Profs Blog, some CAFOs are feeding cattle corn that is a by-product of ethanol production, and that this practice is leading to increased E.Coli presence in the cattle’s digestive tract. I don’t pretend to be a scientist, but my guess would be that the ethanol is produced by fermentation, and that the fermentation lowers the pH of the corn by-product, and that the corn by-product lowers the pH of the digestive tract so as to create an optimal environment for E.Coli to breed.

I don’t think I need to remind readers that quite a lot of meat has been recalled in the past tweve months.

Hops shortage in favor of subsidized corn
10 December 2007, 4:58 am
Filed under: Economics of Eating, Food and Energy, Subsidies

Craft beer connoisseurs will be facing higher prices due to a hops shortage driving prices up about 400% in a single year. According to the linked article, there had been a hops glut which made it difficult for individual growers to remain profitable, and a lot of farmers shifted from growing hops to growing subsidized corn for ethanol. Astute readers will recall that corn-based ethanol yeilds one sixth of the energy required to produce the ethanol in the first place. (Which reminds me, come to think of it, of the story, probaby apocryphal, that rabbit flesh requires more energy to digest than it yeilds in digestion, giving rise to the expression, again probably apocryphal, “starving to death on rabbit”.)

I want to say things about commmodity production, the various corn subsidies, and the way markets are supposed to operate, but I’m in the middle of studying for finals, so posting will be light.

On the Congressional power to regulate vending machines.
4 December 2007, 1:07 am
Filed under: Economics of Eating, Ethics of Eating, Farm Bill, Food Policy, Subsidies

Andrew Sullivan asks, “Since when did the federal Congress have the right to micro-manage what school-kids get from snack machines?”

Since at least 1933.

I know he was probably being rhetorical, but I’m guessing that the
Cato-at-Liberty article to which he links is actually being disingenuous when they point out that nowhere does the Constitution say “Congress shall have the power … to hector schools about the contents of their vending machines.” In fact there is such a power.

Since the legislation to limit the contents of vending machines is attached to the 2007 Farm Bill, I’m guessing that this proposal is somehow tied to the spending power, which SCOTUS has found to be pretty near infinite. In United States v. Butler (1933) the Court adopts the Hamiltonian position that congressional spending power is a free-standing power among the powers enumerated in Article 1 § 8 of the U.S. Constitution. That is to say, Congress may tax and spend for any purpose that it believes serves the general welfare. If the proposal makes certain federal spending contingent upon the states’ compliance with a rule about, e.g., what goes into their school’s vending machines, it’s lawful under Butler, and is in a vein of thinking that goes right back to the founders themselves.1

Ordinarily I wouldn’t write a letter like this to address what I suspect is a rhetorical question, but this one kind of got under my skin: Mr. Sullivan often writes hopefully of the transformative nature of the Paul and Obama campaigns, and I am disappointed to see him occasionally fall into the same tired narratives of government intrusion and nanny-statism. I don’t think this narrative applies: there’s no time-honored tradition or civil right to sell candy to kids in school vending machines. The practice is itself an innovation of the past few decades, and it is not unconservative (as Sullivan defines the term, if I understand him correctly) to discover that innovations require modification.

Moreover, the proposal takes place in the context of a vibrant debate about the nature and extent of U.S. farm subsidies. For instance, it is not controversial to note that subsidies distort market behavior. It is hardly controversial to point out that the farm subsidy shifts the costs of raw inputs such as corn syrup and high-fructose corn syrup from the consumer onto the taxpayer. The net effect is that Americans are able to purchase more calories for their retail dollar, particularly in the form of processed foods containing lots of fat and high-fructose corn syrup: in essence, U.S. taxpayers are paying to create the conditions for our own health and obesity crisis.

Seen in this light, the proposal is an attempt to correct a situation Congress has created. I might agree with Mr. Sullivan that Congress shouldn’t do this, but I am more inclined to say that Congress shouldn’t have to do this.

Update: A reader points out that no discussion of the Congressional spending power is complete without at least the mention of South Dakota v. Dole, which lays out four requirements which limit the spending power as a conditional tool to compel state action, albeit in a largely theoretical manner. The four requirements are: the condition must 1) promote the general welfare, 2) be unambiguous, 3) relate to a federal interest in national projects and programs, and 4) not fall afoul of other constitutional provisions (e.g., it is theoretically possible to condition spending in such a way as to violate, say, the equal protection clause: such a conditioning would be unconstitutional.)

If this had been a legal argument, I would certainly have been expected to address Dole, however it doesn’t seem to me that this spending proposal fails any of the Dole requirements. Moreover, my understanding from ConLaw is that the spending power is more or less unrestricted save in theory, and that as a result conditional spending is almost never challenged.

A Bright Side

Is American Cheese the new American Wine? Is the faltering dollar good for the domestic artisanal food industry — or at least those parts of it which don’t rely on imports?

What has been good for wine has been good for cheese. The rising wealth and strong dollar of the 1990s sent Americans flocking to Europe, returning with a new understanding and appreci­ation of continental eating. Food has emerged as hip entertainment, with its own vibrant press, TVnetworks, and rock-star chefs. Movies about food and wine have found large, sophisticated audi­ences (“Eat, Drink, Man, Woman,” “Sideways,” “Big Night,” “Like Water for Chocolate,” “Ratatouille”). Increased concern for health and a growing sus­picion of conventional agriculture, spurred by crises like mad cow, bird flu, and tainted spin­ach, have focused the nation on small-scale local farming and the sustainability and traceability of our food supply. Meanwhile, Whole Foods Market has planted 263 stores around the country (many through acquisitions of regional chains) since the first opened in 1980. And who could have pre­dicted the French Paradox—the notion, according to a bestseller about the eating habits of France, that you can eat plenty of fat and stay slim? Or Dr. Atkins urging eager dieters to eat pork and but­terfat? More recently, the flaccid dollar and robust euro have made American wines and cheeses seem veritable bargains.

I have for a while maintained that there is more excitement and energy in the U.S. artisanal cheese industry than there is in European cheese. In part, this is surely due to our having farther to go: try speaking, reading, or typing the words “American cheese” without picturing something gummy, preternaturally orange, oversalted and individually wrapped.

However, I also suspect that european cheesemakers and regulators have done the industry a disservice in the long term due to the AOC/PDO/DOP/DOC system of trademark regulation. (Each of these terms, in a different language, stands for “Controlled Name of Origin” and I shall refer to them all under the term “DOP” for simplicity’s sake.) The DOP system sets characteristics that must be met if a product is to be referred to under a traditional name; i.e., if you want to call your blue cheese Stilton you have to use milk from these sorts of cows, and make it into wheels this big and age them for this long and so on. In a number of cases, qualification is tied to a region: you can’t call your blue cheese Rocquefort, for instance, unless you have made it from sheep’s milk and then aged it in caves in the department Aveyron, where they will be exposed to the airborne, naturally-occurring penicilium rocqueforti that lives there. This system allows for the same sort of protection that individual firms get through trademark law, but enables the protection to be shared by every firm that makes a product meeting the qualification.

However, there are times and occasions in which the DOP system can backfire. Because the definitions are backed by law, it can be difficult to adapt them to new circumstances. Last year, Newcastle Brewing Company ran into this problem. Newcastle had successfully petitioned for the creation of a DOP defining “Newcastle Brown Ale” as ale that was, inter alia produced in the city of Newcastle-upon-Tyne. When the brewco decided to move its operations across the river to Gateshead, it was required to petition again to expand the legal defintion of “Newcastle Brown Ale” so that ale produced in its new facilities could be marketed under the same label.

As another example: the DOP for Stilton was written some years ago and requires that “Stilton” be made with pasteurized milk, despite the fact that pasturized Stilton is a historical latecomer, and that the cheese had been made with raw milk for centuries prior to industrial cheese production. When Joe Schneider and Randolph Hodgson revived the traditional stilton recipe, they were prohibited by law from calling the product “Stilton” and instead have had to market it under the name “Stichelton”, which is the Middle English name for the city of Stilton.

DOP protection has done some good in protecting quality standards for traditional food products, and I certainly do not oppose its use. However it seems to me that, absent DOP protection, artisanal cheesemakers in the U.S. have more opportunities to innovate in their cheesemaking techniques which are driving quality and variety in American artisanal cheesemaking. I have little doubt that if the DOP system were introduced into the U.S., it would in short order be co-opted by industrial producers, and thereby used to constrain this innovation, and I have some fears that European cheesemaking, which enjoys DOP protection, doesn’t have the same opportunities to innovate.