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


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.

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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.



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.



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.



Some thoughts on mandatory COOL

I’m having some trouble with the various arguments in favor of mandatory country-of-origin labeling as proposed by the 2002 Farm Bill. The groundwork is as follows:

Critics of COOL (specifically, the USDA, which will have to enforce the requirement; meat and produce processors, and grocers, who will have to institute tracking systems to ensure the accuracy of labeling information) argue that mandatory COOL imposes substantial costs on the industries. (Cost estimates to follow in subsequent post.) Some of these costs will be passed on to consumers, which means, as I understand it, that there will be some marginal reduction in demand at new consumer prices (this depends on the cross-elasticity of covered products relative to uncovered substitutes). Other of these costs will be absorbed by the channel (i.e., the processor or retailer) and will therefore come out of profits, slowing growth. To the degree that growth is slowed while demand is reduced, we should expect some firms to exit these markets. Insofar as initial compliance costs are substantial, and do not scale, small firms may be put at a disadvantage relative to larger firms, and it may be the smaller processors and grocers which are forced to exit the market.

Supporters of mandatory COOL (i.e., U.S. producers and foreign producers of goods which can command a premium due to origin labeling [e.g., New Zealand lamb]; consumers) argue variously that the compliance costs are overstated, that consumer demand for origin information is sufficient to encourage mandatory COOL, and that there exists a consumer “right to know” the origins of products one buys, and that this right is enforced on most retail products in the U.S. Additionally, some argue that COOL may correct for certain externalities such as the social costs of widespread food-borne illness (the thinking being, I suspect, that consumers can correct for news of an illness when they have origin information.)

I am supportive of COOL, and could be persuaded that it should be mandatory, but these arguments do not as yet persuade me. I will treat as a piece the arguments that a) implemenetation costs are overstated and b) consumers desire origin information, primarily because I have found that these arguments often accompany one another. To my mind, this argument fails. If the costs of providing origin labeling are low, and consumer demand for that information is high, then any firm which does not voluntarily provide such information is at a competitive disadvantage relative to firms that do. Indeed, the more strongly one argues that costs are overstated, or the demand is understated, or both, the more we should expect the market already to provide this information. Given that the market does not provide it, we require some argument c) that another, greater countervailing interest weighs against firms providing this information. Such an interest should not be primarily of a economic or indeed quantifiable nature lest it be incorporated back into argument a) costs.

Without considering the following arguments, it seems to me that spending money on providing mandatory COOL could be wasteful if consumer demand for that information is low. Consumers still need to be educated about why the origin of their food matters, and that education will, if successful, raise demand for COOL: it may be the case that education will cause the market to provide that information voluntarily. Mandatory COOL may [I stress may] be spending money that it doesn’t need to spend.

My next project is to examine the contours and nuances of what consumers in the U.S. have a “right to know” but my understanding from my one sales class is that such a right is fairly restricted. More on this shortly.

The third argument seems most persuasive: specifically, that there are social costs to the absence of providing COOL information, and that those costs are borne by neither the buyer nor the seller of unlabeled foods. Economists call these costs externalities, and mandatory labeling is one of the ways that a government can correct this sort of market failure.

The greatest cost, according to the SPARKS estimate, will be bourne by the beef industry, which will likely have to implement individual animal tracking. However, there are a number of benefits to individual animal tracking which go beyond satisfying a consumer’s right to know. The best argument for individual animal tracking, I suspect, (although my research up to now has been on the direct costs and benefits of mandatory COOL) is a food-safety argument. If the FDA were to require individual animal tracking as a means of responding to food-borne illness outbreaks, mandatory COOL could become a lot less costly.



Protect Yourself: Eat Locally
2 May 2007, 1:28 pm
Filed under: Ethics of Eating, local v. industrial, Meat

Still looking for the science on this, but I found this paragraph, which encapsulates a lot of the benefits of buying local food.

Q: How can I make sure the food I buy is safe?

A: Cattle that are fed grass instead of grain have less E. coli O157:H7 in their intestines, but most of the beef in supermarkets is from grain-fed cattle. Some ranchers are raising grass-fed cattle, but the beef is more expensive. You can purchase grass-fed beef online from specialty ranches.

In general, it is better to buy locally grown produce. Crops grown on vast industrialized farms have a greater potential for contamination, especially if they are near large cattle feedlots. Packaged spinach and salads contain products from various farms; during sorting, shipping and packaging, the bacteria from one farm can taint the produce from other farms and regions. Produce sold at local Farmers’ Markets usually comes from small farms not located near cattle feedlots. Pay attention to news bulletins if there is an outbreak of E. coli O157:H7 in your area. Throw out any food they advise may be contaminated.

The science on grain-fed beef and E. Coli O157:H7 (the nasty one, and in this post the one I mean when I write “E. Coli”) appears to come from a study published in Microbes and Infections in January 2000 (Vol. 2, Iss. 1, p. 45 ff). The idea, as far as I can tell, is that while a cow’s rumen is pH neutral, feeding it a grain-heavy diet lowers the stomach pH, changing the mix of gastro-intestinal flora in the cow’s stomach and providing a breeding-ground for acid-resistant E. Coli, which are more likely to survive in the human (rather acidic) stomach.

Feeding the cattle hay for even a brief period produced a “dramatic” decrease in both the number and acid-resistance of E. Coli in the stomachs of those cattle.

A review of related studies (J Dairy Sci. 2000 Apr, Vol. 83 Iss. 4, p. 863) confirmed this, this despite an earlier study (Appl Environ Microbiol. 1999 Jul Vol. 65 Iss. 7 p. 3233) which seems to show that hay-fed cattle shed equally acid-resistant E. Coli for a longer period of time than grain-fed cattle, and concluded that hay-fed cattle may increase the dangers of E. Coli infection in humans.

Now, as a curious non-scientist, reading the abstracts, it seems to me that the duration of shedding of E. Coli may not be as important as the number of E. Coli, given that

  1. public food-related health involves management and not elimination of risks,
  2. food-borne illness-causing bacteria are fairly omnipresent in our environemnt and it is our good fortune that they do not often exist in sufficient concentrations to overpower our natural defenses,
  3. the foods most likely to carry E. Coli seem to be perishable to highly-perishable (e.g., beef and dairy, poultry, and produce) and therefore likely to be refrigerated (which slows the spread of bacteria), cooked, and consumed before the bacteria has had a great deal of time to propagate,

I think I would rather face a low concentration of toxin-producing bacteria many times over rather than a high concentration all at once.

What does this mean? In general, it means following the advice at the beginning of this post. The advantages to eating locally, in this regard, are these:

  1. Shorter average time-to-table means less time for bacteria to reproduce on / in your food
  2. Less, and decentralized, processing means fewer post-harvest entry points for bacteria, as well as reduced exposure to bacteria from other foods
  3. Possibly, private, independent tenant ownership / management of farms provides greater incentives to produce clean food by avoidance of tainted irrigation supplies and other sources of illness-causing bacteria (i.e., aren’t you more likely to farm clean if you live on the farm? Isn’t that one of the basic ideas of the market economy — that what one owns, one tends to manage better than what one doesn’t own.)
  4. Possibly, face-to-face retail-level transactions between producer and consumer promote personal accountability to the consumer.


Is there a US Gov’t Bias against Raw Milk?
24 April 2007, 2:51 pm
Filed under: Meat, Raw Milk

This article is pretty adamant that there is. E.g.,:

Fallon cites the example of a May 1983 outbreak of illness from campylobacter in Pennsylvania, reported to be “associated” with raw milk in the CDC’s Morbidity and Mortality Weekly Report. Yet the report admits that cultures of the raw milk from the farm did not yield Campylobacter; members of the farm family routinely drank raw milk and none reported illness.

A more recent example is the March 2, 2007, recall and warning against “Tainted Raw Milk Sold by a York County Dairy,” also in Pennsylvania. Stump Acres Dairy was “linked” to two cases in a Salmonella outbreak. Although none of the dairy’s remaining 250 customers showed signs of illness, Stump Acres Dairy was ordered to suspend sales. Cultures subsequently taken from the dairy and the milk tested negative for Salmonella and the dairy has reopened.

The September 2006 E.coli spinach outbreak provides another example. Over the past eight years, Organic Pastures Dairy of Fresno, California has sold over 40 million servings of raw milk without one case of illness; during the same period the California Department of Food and Agriculture has issued at least 19 recalls of pasteurized milk products in California. Frequent testing by Organic Pastures, the state of California, and the veterinary departments of local universities has failed to detect even a single human pathogen in the milk.

It is important, in any discussion of food safety and food-bourne illness, to point out that no food is completely safe: the aim of the regulatory agencies is to manage risk, not to eliminate it. The article notes that the risk of food-bourne illness from other foods such as beef, poultry, and produce (!) are greater than the risks of food-bourne illness from raw milk, and yet raw milk is effectively banned in the U.S.

(Note: it may be the case that drinkers of raw milk are already a self-selecting group which is generally more health-conscious than the overall population. The article doesn’t explain whether the analysis took this into account.)

Still, a worthwhile starting-place for this discussion: can the ban on raw milk be justified in public health terms if foods equally or more likely to be vectors for the same illnesses are not banned?

I’m looking for data on the coincidence of raw milk and food-bourne illness (particularly the two big killers in this vector, Listeria M. and E. Coli.) Stay posted.