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

Cork Forests Threatened
9 July 2008, 7:30 pm
Filed under: Economics of Eating, Food and Ecology

Audubon Magazine has an article on the ecology of cork forests, now threatened as wine manufacturers move to more economical screw-top bottles. I don’t really have anything to add to the article, but I thought you might find it interesting.


“Luxury Comfort Food” is an Oxymoron
24 June 2008, 11:59 pm
Filed under: consumerism, Economics of Eating

Too right.

The Power of Just-in-time Logistics, in the Palm of Your Hand

In today’s New York Times, David Pogue reviews a device called the Ikan which seems to be a combination supermarket scanner, list compiler, and web-based shopping service. It works like this: as you use your kitchen items, you can scan them into the Ikan device, which sits on your countertop. The Ikan complies a list of items, and you can add to the list by dictating items which don’t have a scannable label. The list is viewable online, and, once it’s complete, you can click “shop” or something, and Ikan will have the contents of your list delivered to your door. Reactions, as you might expect, are mixed:

Old-school homemakers may consider it a silly redundancy. How much more effort is it, they ask, to maintain a handwritten list? And isn’t going to the grocery store more than just a time drain? Isn’t it also a little outing, a small source of pride and accomplishment, an opportunity for social interaction?

Other people can’t believe the amount of time this system saves. You’ve just compressed a two-hour weekly errand into about 10 minutes. All you have to do is approve the illustrated, error-proof online shopping list, and then let somebody else battle the traffic, haul the bags and pay for the gas.

Before I get into the substantive merits or flaws of the Ikan, I should say that I rather suspect that this is a bad time to introduce a product like this one. With rising food, gas, and credit prices, I have trouble imagining that this sort of gadget / service is high on many people’s purchasing list.

I should think that, if the Ikan were able to overcome that setback, though, and reach a certain customer density, it could realize some efficiencies which are friendly to the ecology and the human environment. Specifically, I would suspect that one delivery van bringing groceries to several houses in a neighborhood produces less congestion, less noise pollution, less wear and tear on roads, and less gasoline per pound of merchandise than each of those households doing their own shopping. I would consider that to be a good thing.

On the other hand, it seems to me that the Ikan service relies on a number of presuppositions which are difficult to reconcile with ethical eating / locavorism. For instance:

  • Food ordinarily has a label on it so that machines can identify it more easily.
  • Food is ordinarily available in the same condition, all year long regardless of season.
  • Food is ordinarily fungible.
  • Choosing one’s own food is an activity that one’s surrogate can do just as easily and just as well as oneself.

The presuppositions I’ve identified here are as good an example as any of the differences between arguing against the excesses and arguing against the ground-state. It should come as no surprise to anyone that there are positives to sending someone else to the supermarket for you. For one thing, your time is probably worth more than it would cost to pay someone else. For another, shopping at the supermarket is, I suspect, very few people’s idea of a pleasant experience: you have to deal with traffic getting there and parking once you’re there, and shopping-carriage traffic the whole time you are shopping; the lighting and the atmosphere are rarely inviting; the food is practically the same week after week — it never comes into season, it never gets ripe, it never smells like food. Doing a week’s worth of grocery shopping at the supermarket is pretty strictly a utilitarian ordeal, and as such, it is something one would outsource if one could.

I don’t mean to pick on the Ikan here: I simply thought it was a way to illuminate how institutions perpetuate themselves and the values that give them rise. If shopping at the supermarket has become unpleasant, then you can hire a stranger to shop at the supermarket for you. Instead of asking why shopping for food is so joyless, you can simply pay someone else to spend that joyless time for you. But you can only do this if food is fungible — one of the presuppositions that underlies our whole production and distribution system. You can only do this if a tomato is a tomato is a tomato — red, watery, with a thick skin to protect from bruising during transport, mealy of flesh and without discernible odor. If food is not fungible; if, say, a tomato from a local farm is not the same as a tomato of equivalent weight trucked across the country from California, then you can no more send somebody to the supermarket for you than you can go to the supermarket for yourself.

The system of food production and distribution we have in the U.S., which gives rise to institutions such as supermarkets and to their logical extensions like the Ikan, is responsible for two miracles. The first miracle is the one we all hear about: the miracle that, (present life-threatening food-borne illnesses aside,) you can go to the supermarket and buy a tomato any time you like, no matter where you are. This is a not-inconsiderable feat, and it is rightly emphasized, if a bit too often and too loudly, by the Old Guard of U.S. food and politics.

To my mind, however, the second miracle — the one that is almost never considered — is even more amazing. You can go to the supermarket and buy a tomato any time you want, but you will never want to.

Short Beer Pints: Do We Need A Law?
13 June 2008, 3:33 pm
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:

  1. This is a simple false advertising problem, and can be handled by the existing body of tort and consumer protection law.
  2. Regulation is necessary because this is a harm that will not be adequately addressed either by false advertising tort law, nor by market action.
  3. 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?

Let me get this straight…
13 June 2008, 2:32 pm
Filed under: Economics of Eating, food politics, local v. industrial, Production

… Steven Dubner, co-author of the acclaimed book Freakonomics has a bad first experience making homemade orange sherbet. From this experience he concludes that locavorism is a waste of time. The article is so badly conceived (“A Few Billion Locavores”? Really?) that I have to suspect that something like the John Dvorak Effect is at play. Still, I found some of the comments to be worthwhile.

Mea Culpa: Cowardice and Politics

Readers of this website, if indeed any remain, deserve an explanation, if not an apology, for the long, unannounced, and unjustified hiatus this website has taken. I would like to spend a few words discussing why I stopped writing and where I find myself beginning again. I would like to think that my absence has been due to overwork and to a perhaps unhealthy obsession with the U.S. Presidential races. It is true that I have been both busier and more distracted this term than ever, but the real reason is, I daresay, rather more interesting than that.


I noticed back in November that my writings here, and those thoughts that I found myself wanting to put down, had taken an unexpected turn from food law and policy particularly toward, for instance, community planning and urban design; poverty and subsistence living; feminism and the politics of domestic labor, and I didn’t like where this writing was taking me. I found myself saying in person and thinking about writing here some Unserious Ideas of the sort that No Reasonable Person Thinks. Thinking and writing against the conventional wisdom. I started to think thoughts that I worried were radical. I was worried that I could start sounding like one, or indeed that I could become one, and that following food politics as I had could easily turn my writing on food into a continuous jeremiad against contemporary modes of being and behaving rather than a discussion of law and policy.

In December I experienced, without really knowing it, a certain deeply-ingrained cowardice of thought, and it was that cowardice which has made me stop writing.

Part of it is law school, to be sure. One of my professors joked a few months ago that our law school (which, it must be said, is a rather well-regarded school) is really good at churning out insurance lawyers. Despite its rhetoric about “Making a Difference” we are all far more likely to succeed in the current system than to change that system, and therefore, to the extent that the system is not good, to be part of the problem rather than part of the solution.

Over lox and bagels one Sunday my roommate said much the same thing in a different context, about law school making cowards of us all. Law school teaches us to reflexively support the system. Show me a rule, a law, an institution, and law school has conditioned me to believe that rule, law, or institution does more good than harm. How could it not? The system works. If a law were doing more harm than good, it would be repealed. Law school teaches us to keep shifting in scope — where a policy clearly harms, for instance, a neighborhood, we shift to arguing that an alternative would harm the state. Law school makes us slippery, but it makes us a particular kind of slippery, a kind which supports the existing order in return for prestige and responsibility and a great deal of money.

All of these observations have been observed more cleverly and more convincingly elsewhere. What is bothersome to me is the realization that they could apply to me, and that they could apply unconsciously, insidiously. The choice is rarely so stark as being called into the darkened office of the powerful man and being offered a briefcase of money: that scenario is unsubtle and stupid. The choice is more often whether we will say and do the things that we think are true or right without considering whether they fit neatly into the conventional wisdom and the received order. This is the sort of lesson that we often think applies to teenagers and smoking, for instance, but I see no reason why it fails to apply to adults and professionals.

For me, I was uncomfortable presenting myself as a lawyer, even pseudonymously, who believes that our food system is dysfunctional from top to bottom. Lawyers who want to be taken seriously don’t advocate that people should cook their own meals, in their own kitchens, from food grown in their own gardens and towns and communities. Lawyers who want to be taken seriously don’t challenge the reality that all adults have to work outside the home. We don’t challenge the reality that our economy is built on our inability to say, “I have enough. I don’t need a new car, a new house, a new video game system. I don’t need a television at all.”

Lawyers don’t challenge these realities because there are no clients who represent the interests of having enough. There are no clients in favor of putting away or throwing away the television set and spending that time putting in a garden. The local economy, the family-owned restaurant, the farm, the local manufacture of goods for local consumption — these things do not support the lawyer with his three hundred dollars an hour and his very expensive suit.


I am reading a friend’s copy of Wendell Berry’s excellent collection of essays, Sex, Economy, Freedom, Community and last weekend I came across, in the final and eponymous essay, the following paragraph:

The “conservatives” promote the family as a sort of public icon, but they will not promote the economic integrity of the household or the community, which are the mainstays of family life. Under the sponsorship of “conservative” presidencies, the economy of the modern household, which one required the father to work away from home — a development that was bad enough — now requires the mother to work away from home as well. And this development has the wholehearted endorsement of “liberals,” who see the mother thus forced to spend her days away from her home and children as “liberated” — though nobody has yet seen the fathers thus forced away as “liberated.” Some feminists are thus in the curious position of opposing the mistreatment of women and yet advocating their participation in an economy in which everything is mistreated.

(To be sure, Mr. Berry is making the mistake of assuming that feminists who argue that woman should have the right to work outside the home are also arguing that woman should in fact work outside the home, however I can think of a significant number of feminists make exactly these two arguments, side by side. Mr. Berry’s greater point seems to be that participation in the larger economy opens oneself up to mistreatment, whether one is a man or a woman.)

It seemed to me that Mr. Berry was quite concisely making a point that I had clumsily hoped to make in Feminism v. Locavorism, and I felt suddenly ashamed. I had plowed through the preface to the book, “The Joy of Sales Resistance” with great relish and satisfaction (although I do not quite share Mr. Berry’s distain for hypertext). It is always heart-warming to find an author or a musician with whom one feels kinship, and I felt that in this book. But the further I read the more I realized how cowardly it was of me to have stopped writing here.


I think that as adults, we are inclined to discount the effects of peer pressure as something that only works on children. I think this is because we confuse the term “peer pressure” with the activities being pressured, and once we are no longer of an age that we can be pressured into those activities, we believe that we can no longer be pressured into any activities. We believe we are immune.

Moreover, because we associate peer pressure with teenage vices, we assume that, if an activity is good or at least morally colorable, peer pressure isn’t and can’t be the mechanism that encourages us to engage in the activity. We don’t want to think that we have to be coerced into doing what’s right. If it’s what’s right, of course we were going to do it all along, and not because we were pressured into it.

It gets a dirty name, this kind of pressure, because we are conditioned to see its presence only when its effects are bad, but the pressure has all sorts of effects. It socializes us. It protects us from offending others, and keeps us swimming with the school. I suspect that social pressures do a lot of good in the world in terms of making sure we get along as well as we do.

Wendell Berry again, from the same book:

A conservation effort that concentrates only on the extremes of industrial abuse tends to suggest that the only abuses are the extreme ones when, in fact, the earth is probably suffering more from many small abuses than from a few large ones. By treating the spectacular abuses as exceptional, the powers that be would like to keep us from seeing that the industrial system (capitalist or communist or socialist) is in itself and by necessity of all of its assumptions extremely dangerous and damaging and that it exists to support an extremely dangerous and damaging way of life. The large abuses exist within and because of a pattern of smaller abuses.

You see where this is going. What’s acceptable and unacceptable — the way we’ve been pressured into behaving — has a dark side in the area of consumption, in the way we act in an economy. Nobody wants Exxon-Valdez, but everybody wants to drive their own car. Nobody wants the last manufacturing plant keeping the small town alive to shut down but everybody wants to pay less and less and less for household goods. Nobody wants to work a 70 hour week, but everybody wants a big flat-screen tv in the living room, and surround-sound, and better clothes and a new car for every driver every couple of years, and we want to replace them all cheaply when they break or when something new or different is sold (see, e.g., the early obsoleting of DVD by Blu-Ray, or any of a thousand other consumer goods advertising arms races).

I don’t mean to say that we fail to connect the dots between cheap goods from overseas and crippled local economies. Many people are able to see the causal links, but are unwilling to pay the social costs inherent in changing their consumption habits. And those who insist that we should change those consumption habits are ridiculed as anachronistic, as unrealistic, as overburdened by an embarrassing devotion to the natural world. (See, for instance, the characters portrayed by Jason Schwartzman and Mark Wahlberg in the film “I [Heart] Huckabee’s.”) The notion that we should all stop driving, for instance, is dismissed as unrealistic without an examination of why it is unrealistic.

The dismissal extends, I should add, all the way up to policy decisions on the international financial level. According to economist Ha-Joon Chang, from his fascinating book Bad Samaritans:

“[Proponents of the neo-liberal free-trade agenda] like to present globalization as an inevitable result of relentless developments in technologies of communication and transportation. They like to portray their critics as backward-looking ‘modern-day Luddites’ who ‘fight over who owns which olive tree’ …. It is argued that there is only one way to survive the historic tidal force that is globalization, and that is to put on the one-size-fits-all Golden Straitjacket which virtually all the successful economies have allegedly worn on their way to prosperity.”


Of course, it is indeed unrealistic to suggest that USians give up their cars and stop buying so much stuff. The system has been stacked against those options, with the result that people who argue for these things come across as radicals. “I live 15 miles from where I work, and in the afternoon I drive my kids between oboe lessons and soccer practice. How can I give up my car? And who has the time, anyway, to buy and prepare local food?”

It’s a real, and valid, question, but it also reveals something of how our choices contribute to the system. The thing is circular: the system which makes unrealistic certain lifestyles is only a system because so many people are already making choices which contribute to it. I emphasize that I am not saying that there is anything wrong, in the abstract, with living 15 miles from where one works, or taking the kids to oboe lessons and soccer practice. I am, however, saying that these decisions have effects which, when aggregated, may and probably do cost more than they benefit.

However the argument that we should choose to limit our participation in “normal” activities is not an argument that people who want to be taken seriously are able to make. It is an argument against not the excesses of our economy but against its ground-state.

This is precisely the sort of argument that feels unseemly for a law-student to make, not only because it is the sort of argument that people don’t take seriously, but also because it runs against the existing order and subverts the conventional wisdom about freedom of trade and lowered transaction costs, about opening borders and the global economy. About, quite possibly, strong property ownership rights being a prerequisite for other human rights. It runs against a lot of things that I tend to believe, actually.

So I stopped writing. And while I would like to say that I stopped writing out of a genuine conflict of values, it seems to me that such a conflict would probably make for some pretty good blogging, and that the conflict wasn’t the real reason to stop writing. I think that the real reason was that, as a law student, and as someone who was, and is, looking for work in the legal community, I did not believe that I could continue to pursue this line of thinking and questioning, even in private, even under a false name like this.


The upshot of all of this — and I hasten to add this so as to avoid politically devastating charges of “elitism” — the upshot of all of this is not, I hope, for me to be relentlessly critical of virtually everything that U.S. and probably most first-world consumers (that is to say, “people” — and I often wonder at the objectification inherent in so ready a substitution) do on a day-to-day basis. I mean this on two levels. First, I would be deeply remiss, in the context of this sort of a mea culpa, to start pointing the finger around at other people for the simple fault of responding to the economic and social pressures that surround them. Certainly not after having spent so many words describing my own cowardice and how I believe it has operated in the context of writing on this website, to say nothing of how it has operated in my own consumption choices.

Second, it is important to distinguish between evaluating a person qua person and evaluating a person’s actions qua actions. This distinction is often missed in discussions of these sorts of categoric reforms by both sides, but more often (and, I suspect, deliberately) by those who argue in favor of the lifestyle quo ante. It is a rhetorical move that unfortunately seems to have a great deal of traction, and I hope to discuss it in a subsequent essay. For now suffice it to say that these arguments, the ones I have been barred by cowardice from making, should in no way be construed as critical of individuals or indeed of the larger institutions that make the first world such a varied, safe, and comfortable place to live.

The critique that others are making, and that I hope to add to, is of the systems put in place by those institutions, and of the culture fostered by those systems which serve not to increase an individual’s (particularly economic) choices but to limit them to the set of choices rigorously enforced by economic and social pressures. I hope to discuss these limitations in future essays, as they are numerous and complex.

This critique, as expressed in the world of food and food policy, has wound up creating some tentative alliances that make little sense in the current political spectrum. In an interview with “Crunchy Conservative” Rod Dreher, Michael Pollan apparently was “amused to learn that he’s got a following on the [political] Right … but he said that the more deeply he goes into writing about food culture, the more he’s discovering things that resonate with traditional conservatism.” To me, this is both intuitively correct and one of the best arguments that the traditional left-right categories are breaking down along new lines. Our politics will perforce evolve with our polities.

All of which is perhaps my way of saying that I am back. I hope to write three long-ish pieces a week and at least five smaller ones in between. I will probably have a few more editorial-type pieces to write as I try to come to terms with this new politics of food, but I have every hope of returning to writing about food and the law in short order. Thank you for coming back, and I hope you’ll stay.

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.