Food


I have been a proponent for eco-labels for food.  But I wanted to share my most recent Whole Foods experience.  I went to Whole Foods in Portland, Maine and noticed that they had animal welfare labeling.  Great…I took some photos.  Then, I asked where I could find  Number 5 meat because I was curious as to the type and source of the highest rated products.  They told me that no number 5 or 4 meat exists in the store.  The highest rated chicken is 2, and the highest beef is 3 (and beef would be lower if environmental factors would considered).  Shouldn’t bigger and more animal friendly numbers be available now, or will this eventually and effectively increase consumer demand?

At this point, I remain skeptical that sustainable seafood actually can exist at present time given the overwhelming pressures placed on the world’s oceans.  Though perhaps very saavy aquaculture coupled with limited fishing and marine reserves can lead to a future with sustainable seafood from farming and wild sources.  Monterey Bay Aquarium’s (MBA) Seafood Watch program has long been the standard for choosing sustainable seafood, and its pocket guides have been common for some time.  The Gulf of Maine Research Institute (GMRI) is now getting into the mix with its own Sustainable Seafood Initiative that employs a “Responsibly Harversted” logo and its own seafood guide, which both promote seafood in the Gulf of Maine.  What perplexes me is that the GMRI guide lists seafood “local” to the Gulf of Maine and encourages its purchase, but also uses the term sustainable….What is odd is that many local choices on the list are not sustainable, as least as defined by MBA’s Northeast Guide or me (e.g., sharks, tuna, cod) and others (read the book “Four Fish”).  So the question is, can fish be considered to be harvested sustainably by individuals if in the aggregate said fish is harvested unsustainably?

UPDATE: Based on a facebook response, I would add the following:  I’m taking issue with the GMRI Guide, not the Responsibly Harvested Label. But, if only 4 seafood items (Haddock, Northern Shrimp, American Lobster, and Cod) make the label, why create a guide that gives the impression that all “local” seafood is sustainable?  There are two things going on here: (1) the guide arguably conflates sustainability and local, and, thus, (2) as other labels do, raises a question as to the appropriate definition of sustainability (local? sustainable by what standards?). You could argue, for example, that all lawful fishing is sustainable because it conforms with scientific management practices of the federal government.  This definitional problem is further illustrated by Atlantic Cod, which can receive the Responsibly Harvested Label by GMRI but is on MBA’s Avoid List.  So, if I want to eat “sustainably,” can I eat cod?

UPDATE 2: I should also reiterate my most basic rhetorical question: “Is there such a thing as sustainable wild seafood?”

At my panel on eco-labeling yesterday, I engaged in a fascinating discussion with fellow panelist from Consumers Union (the nonprofit publisher of Consumer Reports) about whether the FDA has the authority under the Food, Drug and Cosmetic Act to require mandatory labeling on of genetically modified foods.  My initial answer is no.  It is my understanding that no federal law requires mandatory labeling of GM foods, and that the FDA will only require labeling if a health safety issue arises which the FDA has not determined to be the case for current GM foods (in which case the GM food will likely not be approved for use in the first place).  Here’s a nice article in the Post which lays it out in lay terms.

More litigation over genetically modified food is sure to arise within the next few years. Currently, the FDA is reviewing whether to approve genetically modified salmon as safe for human consumption, and salmon may change this whole debate from a political and public awareness standpoint (which GM alfalfa and sugar beets have failed to do).[1]  The farm-grown salmon contain an extra growth hormone gene that allows them to grow to a marketable size twice as fast as a conventional fish.[2] FDA analysis will primarily focus on whether genetically modified salmon are safe compared to conventional salmon, yet the ecological consequences of allowing genetically modified salmon on the market remain unclear.[3] It is clear that if these salmon do become the first genetically modified animal to enter the American food supply, they will likely pave the way for other genetically modified animals to enter the market.

What is interesting, is that while FDA, in my view, will not require labeling of GM foods in general,  salmon may create an opening for labeling if the FDA can be convinced that it is a GM food not “substantially equivalent” to a food product already in the human food supply (non-GMO salmon).[4]  What’s also unusual is that the FDA may attempt to stop ‘GM-free’ labels due to the difficulty of proving some contains absolutely no GM traits; though I imagine companies could say something like ‘not made through bioengineering.’  What is clear is that these are some initial views of mine, and I really need to sit down and do some serious statutory interpretation; especially on the narrow issue of whether the FDA could require labeling of some GM foods in some circumstances, and whether GM fish and meats could fit any such circumstances.


[1] Andrew Pollack, Panel Leans in Favor of Engineered Salmon, N.Y. Times, Sept. 20, 2010, http://www.nytimes.com/2010/09/21/business/energy-environment/21salmon.html.

[2] -“FDA regulates GE animals under the new animal drug provisions of the Federal Food Drug and Cosmetic Act (FFDCA or the Act), 21 USC 321 et seq., and the National Environmental Policy Act (NEPA). Section 201(g) of FFDCA defines drugs as “articles (other than food) intended to affect the structure or any function of the body of man or other animals.” The rDNA construct in the resulting GE animal is thus a regulated article that meets the drug definition; the GE animal itself is not a drug. As a short-hand, the agency sometime refers to regulating the GE animal. All GE animals are captured under these provisions, regardless of their intended use.”  http://www.fda.gov/downloads/AdvisoryCommittees/CommitteesMeetingMaterials/VeterinaryMedicineAdvisoryCommittee/UCM224762.pdf.

[3]  This document concludes both safe for food eating purposes and argues safe for env purposes.  http://www.fda.gov/downloads/AdvisoryCommittees/CommitteesMeetingMaterials/VeterinaryMedicineAdvisoryCommittee/UCM224762.pdf.

[4] Mary Jane Angelo, Regulating Evolution for Sale: An Evolutionary Biology Model for Regulating the Unnatural Selection of Genetically Modified Organisms, 42 Wake Forest L. Rev. 93 (2007).

See here.  There are too many scary quotes in this Times article to list, but here’s a sample:

In recent weeks, China’s news media have reported sales of pork adulterated with the drug clenbuterol, which can cause heart palpitations; pork sold as beef after it was soaked in borax, a detergent additive; rice contaminated with cadmium, a heavy metal discharged by smelters; arsenic-laced soy sauce; popcorn and mushrooms treated with fluorescent bleach; bean sprouts tainted with an animal antibiotic; and wine diluted with sugared water and chemicals.

Most food/ag gurus I know are generally supportive of farm raising tilapia given the perceived lower environmental foodprint of the fish, its use as a sustainable ag tool especially in the developing world, and the ability to more effieciently create a protein source.  Here’s a the flip side argument.

…veggie burgers are much improved, and the Times makes it official.  See here.

Today I had the pleasure of presenting my research at a “seminar” (we’d call it a roundtable or workshop) at one of the oldest universities in Europe.  Uppsala Universitet was founded in 1477.  I presented in the original and ornate law faculty room complete with chandeliers, 500 year old paintings, and amazing marble.  I presented my comparative work on eco-labeling regimes for food, and, in addition to the Uppsala Faculty of Law, many private organic certifiers were in attendance.  It was a great event followed by tea and pastries.  I have never had so much tea and coffee with colleagues ever as I have had this week–time for us to put in a free expresso machine in the hallway at Vermont Law School. 

And below is a photo of the church that I view out of my office window (my office is in the white building in the lower left hand corner).

I’ve been thinking a lot about the power of social movements to create environmental change.  I know many sociologists and political scientists have studied grassroots environmentalism as a way to generate political change, but in the U.S., major environmental legislation hasn’t been passed for decades yet some sort of local environmental social movement is afoot as it relates to food.  People are genuinely interested in local and organic foods, regional food systems, composting, and universities are creating food-related programs.  While I think many of these positives have yet to fully address the problem of making alternative agriculture affordable, food is the most initimate natural resource we all use and perhaps can be a facilatator for a greater environmental movement.

…is the title of this interesting little opinion piece in the Times, offering up some ways to improve our food system.  One idea I like, but I’ve never heard discussed from a public policy standpoint is how to encourage people to cook.  The piece says:

Encourage and subsidize home cooking. (Someday soon, I’ll write about my idea for a new Civilian Cooking Corps.) When people cook their own food, they make better choices. When families eat together, they’re more stable. We should provide food education for children (a new form of home ec, anyone?), cooking classes for anyone who wants them and even cooking assistance for those unable to cook for themselves.

Today, Vermont Law School’s Environmental Law Center launched its first annual Top 10 Environmental Watch List. Our environmental faculty and students from the Vermont Journal of Environmental Law researched more than 75 judicial, regulatory, and legislative actions before selecting what they consider the 10 most important environmental law and policy issues of 2010.   Read more at http://watchlist.vermontlaw.edu/.

With a student, I co-authored the article for No. 8 on the list, Supreme Court Reviews Genetically Modified Crops.

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