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.

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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.



Eating Well, Poorly

I was blessed in my childhood by having a mother who was very food-aware. We became farmers almost of necessity, as we were always very poor growing up: if we had not grown our own food, we would not have eaten. We never could afford health insurance, and because of this, my mother always sought to use food in place of medicine, and always sought prevention prior to illness rather than cure afterwards. “We can’t afford to get sick” she would joke, or half-joke anyway.

I never appreciated it at the time, because I saw our food as a mark of poverty and difference. Why should I have to suffer, i.e., not get to drink soda and eat fast food just because my parents were hippies and bad businesspeople? Field trips in school were particularly painful — other kids got to bring money and buy McDonald’s, I brought a big slab of homemade cornbread and a mason jar full of water.1 “Five dollars for lunch!” my mother would exclaim. “I can make lentil soup to feed all of us dinner and then lunch the next day for five dollars!”

My mother believes that food can replace medicine, that you could eat foods which kept up your immune system and avoid foods which depleted it. She had read studies on refined sugar, for instance, and always pointed out that not only does it rot one’s teeth, it apparently kills white blood cells. To my mother, it wasn’t that soda, for instance, or juice, was a pleasure which you should deny to avoid tooth decay and empty calories. It just didn’t make sense to drink it when water was free, for the same reason you wouldn’t pay somebody to hit you in the face with a shovel.

Naturally, I had a few years after I left home during which I ate all the foods that we kids weren’t supposed to eat. I think it’s interesting, though, how unintentionally I came back around to natural eating and food policy. I took a job at a deli in college and I loved it. It was down the street from my apartment and I was the opener; five, six days a week I would drag myself out of bed at six in the morning and run through the bitter cold (because it was always winter in those days, in my memory), and turn on the lights and make the coffee and set up the shops and do the preps and check in deliveries and try to make the morning cheerful for the early-birds and commuters. I loved it.

One thing led to another, I started working in food, and by the time I got to being a purchaser at Zingerman’s I had been cooking for a few years. I read Fast Food Nation and experienced two contradictory sensations. 1) During the act of reading the book I always really wanted a cheeseburger, and 2) every time I set the book down I didn’t want to eat anything that I hadn’t actually watched come up out of the ground. I kind of feel like that was a turning point for me. At the same time, I became very interested in the raw milk cheese ban and the science behind dairy production. What has struck me lately, thinking about this, is how holistic and connected all of these topics are. Raw milk takes you to e.coli takes you to grain feeding takes you to corn subsidy takes you to processed food and HFCS takes you to impending obesity crisis takes you to mediterranean diet takes you to local, seasonal eating and next thing you know you can’t. shut. up. about. food.

Which pretty much catches you up to the existence of Law for Food. Yesterday morning on my bike ride to school something else my mother used to say popped into my brain and stuck. Her friends used to ask how she managed to cook for all of us (and anybody else who happened by) the way she did (from scratch, often beginning with an armful from the garden or a quick trip to the root cellar) and she would explain that it was because didn’t work outside of the home. Then she would say how she believed that the peasant diet was the healthiest, most balanced diet you could eat. She would talk about how poor people can’t afford to get sick, so they don’t have the luxury of eating things that are bad for them, and she would also talk about the importance of the table, about how food builds community and how poor people have a better sense of community than the wealthy. Then she would say, and this always kind of confused me, “of course, nowadays you have to be rich to eat like a peasant.”

And it struck me how far I had come back around to seeing food the way my mother did, all those years ago when I was embarrassed to eat home-made food. It struck me that my mother’s little observation winds up being about the Farm Bill after all, and that, pace Marion Nestle, food is both love and health when your attitudes toward those things are in order.

Now, I realize how fortunate we were to have bought that farm outright, when my folks inherited some money, and that the reason we were able to eat so well was because we were land-rich and cash-poor. A lot of talk about nutrition can come across as unrealistic hectoring that doesn’t take into account the time and work constraints that we’re all under. Even if you own the land, growing your own food is a lot of work and requires a complete change in lifestyle and in attitude, and isn’t something everyone should or even can do. But we can do better than this. We can do better than inverting the economics of eating and promoting these unhealthy2 faux luxuries with the public funds.

Ultimately, the farm bill can never and should never put filet mignon on every table, but it can and does put ground beef — cheap, unsustainably-grown, overcrowded, medicated beef — in the drive-thrus and waterlogged cold cuts the lunchboxes. There are a lot of reasons, on the surface of it, to think that sustainable food, local food, and the rest of it are regressive; that what some of us are proposing is a return to the 19th century; that eliminating CAFOs and industrial food will raise the price of food, which will most hurt those who can’t afford local and sustainable food.

These objections do not make it past a surface analysis. Eliminating the farm subsidy means that the inverted food pyramid we currently consume will become a great deal more expensive; it means that Coke will no longer be price-competitive with water; it means that the marginal price difference between ethically-conscious meat and feedlot meat will diminish — reducing overall consumption of meat, making all meat more of a luxury and making ethically-conscious meat less of a luxury by comparison; it means we’ll be eating less food, but that the food we eat will be better. Most of all, it means we won’t be using federal money to make it easier for people without health insurance to buy foods that make them unhealthy, and harder for them to buy the foods that we all ought to be eating more of. It shouldn’t be necessary to own your own farm just to eat healthy.

1. This experience was formative in so many ways. For one thing, I have little patience now for parents who say that their kids just won’t eat vegetables. Eventually, they will, and even later, they will appreciate vegetables for what they are. For another, I will never be less than genuinely grateful for a home-made meal, no matter what. I resent the term “food snob” because I would rather have lentil soup with love than filet without. Because of my experiences in as a cook and seller of high-end food, and because I’m someone who frankly talks about food or food policy all the damn time, many of my friends say that they would never cook for me because they can’t cook well enough, and although I think they mean it as a compliment, it offends me a little. Early in our relationship, I was impressed when my significant other said to me, “I bet none of your friends ever cook when you’re around. I’d like to make you dinner.”

2. Lest we get into trade disparagement issues, I should point out that from a health standpoint everything is unhealthy when consumed in sufficient quantities, and that these quantities are different for different categories of food. It is simply a fact, though, that Americans in general overconsume in the fat and protien categories and underconsume in the vegetable and whole grain categories. From a health standpoint, there’s nothing wrong in principle with eating meat, just like there’s nothing wrong in principle with eating ice cream. There is, however, something wrong with eating ice cream at every meal, and the same thing is wrong with eating meat at every meal.



Objections to the Farm Bill On All Sides of the Political Spectrum

Not news, exactly, and readers of this blog probably already know all of this stuff, but a fairly conservative friend of mine asked me my opinion of the analysis contained in Michael Pollan’s recent New York Times op-ed about the 2007 Farm Bill. I wrote the following in return, and it occurs to me that I haven’t seen all of these points laid out on one page like this. Here’s a little cut ‘n paste magic from the email:

I think Pollan is exactly right, and what fascinates me about the Farm Bill debate is how it seems to have aligned so many different and traditionally opposed interests. Let me see if I have it right:

1) Fiscal conservatives, libertarians and economic commentators on the one side object to the farm subsidy because it distorts the market by causing farmers to plant more of a particular commodity than consumers would demand at the natural price and is therefore inefficient.

2) Animal welfare people object to it because the grain subsidy makes it cheaper to raise food animals in concentrated animal feeding operations (CAFOs) than via free-range. The situations at CAFOs place a great deal of strain on the cattle, which means that they require a great deal more antibiotics than they do if they are raised naturally — indeed the U.S. meat industry is the largest user of antibiotic medicine.

3) Environmentalists object to it for a number of reasons — CAFOs are terrible for the environment, for starters, and the kind of monoculture that big factory farms are planting to grow the subsidised crops destroys the soil, requires the use of ever-increasing levels of non-selective herbicides such as Round-Up as weeds develop immunity to the herbicide — and in recent times is requiring the use of genetically modified crops which are able to tolerate being grown in fields heavily laced with herbicides.

4) People who are taking a hard look at the immigration situation in the U.S. have come to discover that one of the reasons the Mexican corn industry went belly-up last year is the farm subsidy — and now there are some 170,000 Mexican agricultural workers without jobs and a lot of jobs in U.S. agriculture. The farm subsidy creates a situation in which we have to spend more money to keep immigrants out than we would if the economies of other countries were not placed at such a disadvantage.

5) On a related note, the farm subsidy is TERRIBLE for the economies of many third-world countries, for just the same reason: they have to compete with subsidised grain from the U.S.

6) Nutritionists tend to think that the farm subsidy is terrible for the American waistline because it subsidizes hydrogenated oils and animal products and high fructose corn syrup. Eliminating the farm subsidy would drive up the prices of many foods, but 1) most of those foods would be foods which are overabundant in the U.S. diet and which consumers ought to cut back on, 2) these prices are unnaturally low to begin with, and 3) the money saved on the Farm subsidy could, and should, in part be used to ensure that the truly poor do not starve. Indeed, the farm subsidy encourages all of us to eat things that are bad for us, but this encouragement become more and more pernicious the more a consumer has to stretch his or her food dollar.

The thing is, these are all sound economic arguments, and they all point to the same thing: the public interest and general welfare are not served by the farm subsidy as it is currently written. There is no metric to measure which shows that the farm subsidy is a good idea, outside of the share prices of big agribusiness. This legislation is corporate welfare in its most blatant and worst form. I highly recommend the first two sections of an essay entitled “That Which Is Seen and That Which is Not Seen” by F. Bastiat, for some traditionally conservative, laissez-faire economic reasons why this kind of spending is a terrible idea.

I have also found an op-ed by Victor Davis Hanson about why the farm bill is a terrible idea from a straightforward economic standpoint. I have no desire to discuss national politics, but I should like to say that this may be the first time I have agreed with Professor Hanson about a topic unrelated to classical philology. Opposition to this farm bill comes from all sides of the political spectrum.



Paying For It, Round 2

The following chart appears in connection with an article in Good Medicine, entitled “Why Does a Salad Cost More Than A Big Mac”

The whole article is worth reading. Also, regarding the kind of food we subsidize, I found the following bit by Bourdain to be worthwhile:

It really offends me when I hear, “What have you eaten that’s weird, strange, bizarre?” For example, Thais have a non-dairy food culture. Show them someone eating cottage cheese or the ranch dressing at the salad bar, and they’d be horrified. Or the size of our food. I mean, you see some 425-pound human being with a Stetson in the Houston airport shoving a Cinnabon into their face, you know, and a 89-pound Thai grandad seeing this just thinks he’s in another dimension — a really scary one.

Hat tip: Ethicurean

Update: There’s some informative discussion of this chart going on at Serious Eats. I confess that I am no longer sure that the above chart is accurate, striking though it may be. I am not sure it is accurate to refer to subsidies for feed as subsidies to the meat and dairy industries. I am not sure it’s inaccurate, either, because a major effect of the grain subsidy is to reduce the internal costs of producing meat and dairy. It seems a little too cute to say that we subsidize grain but not meat when most of that grain goes into meat production, but it is technically incorrect to say that we subsidise meat.

That’s what I get for posting during Federal Income Taxation.



Farm Bill Update
2 August 2007, 8:50 pm
Filed under: Development, Economics of Eating, Farm Bill, Food Policy

The always-worthwhile Ethicurean has a lot of good links to analysis and commentary about the Food and Farm Bill which recently passed the House. I found the UK Guardian’s analysis particularly compelling.

today’s agricultural programs give large commodity subsidies to less than one-third of American farmers, most of them large-scale producers who grow a limited number of crops. Such massive commodity subsidies actually fuel the consolidation of land, since family farms are forced to compete with subsidised big producers. Smaller farmers – especially those that have historically faced discrimination – face even bigger challenges in trying to make a living from the land….

By encouraging overproduction of certain crops, such as rice and cotton, commodity subsidies create a glut that drives down world prices, undermining the livelihoods of farmers and depriving developing countries of their rightful earnings and market share. Simply put, family farmers all over the world are working hard to make a decent living, but they are thwarted by the policies of governments halfway around the world.

Ag policy seems to tie in to so many other policy areas which make frequent appearances on the political stump: public health, nutrition, and care, rural domestic poverty, poverty overseas, energy. Has anybody compared the major presidential candidates’ agricultural policies?