by Denise Thompson
Illustrations by Katie Borud
Current food law is a bewildering mix of disconnected and outdated regulations.
Three UW Law School professors are proposing new policies and frameworks to ensure food safety, safeguard the environment, and protect farmers and other food workers. Their goal is to prepare and serve a safe and balanced food future.
By examining the health, environmental, and economic impacts of laws and policies that shape our food systems, food law specialists at UW Law School are stirring things up from field to fork. As a former adviser to the FDA, Professor Alta Charo has worked to create a menu for the approval and labeling of genetically engineered foods. Professor Peter Carstensen is addressing the super-sized buying power of a few big players in the food industry and the impact they have on the choices that consumers find at their local grocery. Professor Stephanie Tai is helping to create a new framework that she calls food systems law, a blend of public health, environmental, and labor scholarship that would better integrate how we regulate food.
Is Genetically Engineered Food Safe?
Genetically engineered foods have stirred up controversy around the glove, and Alta Charo says it’s no wonder. “The very word genetics conjures up potent associations: eugenics and the Nazi era, personal identity, and genetic diseases.”
Charo, the Warren P. Knowles Professor of Law and Bioethics, holds appointments in both the law and medical schools at Wisconsin. While serving as a senior policy adviser at the FDA from 2009 to 2011, she helped coordinate the agency’s ongoing regulatory analysis of genetically engineers salmon, among other consumable products.
Despite public disagreement over its safety, FDA studies have shown that genetic engineering of food is not inherently dangerous. Charo argues that biotechnology has been used to produce safe food for hundreds of years. For example, beer is a product of an older type, in the form of fermentation.
“Nor is modern genetic modification entirely new. We used to create desirable hybrids by crossing species, generation after generation. Now we identify the trait we want, insert genes to produce it, and get the desired effect without generations of trial and error. The real difference is that biotechnology has gotten faster and more precise,” Charo says.
Until now, only genetically engineered plant-based foods have been marketed, and the FDA has concluded they are not intrinsically dangerous. Indeed, for the past two decades, people in the US have been eating engineered corn or soybean products in this country.
But genetically engineered salmon represents the first time the United States has considered selling an animal-based food. The process involves inserting genes from other fish to extend the life of the salmon’s normal growth hormones from six to twelve months, causing the salmon to grow faster. The plan is to grow the all-female population to guard against escape into the wild, and avoid the water pollution associated with some open-ocean farming.
Charo explains that introducing the genetic construct, which is considered the equivalent to administering a veterinary drug, puts the salmon into a new and more stringent regulatory category. To ensure the safety of the animal, the human consumer, and the environment, veterinary drugs used in food animals must undergo painstaking review, with each step of the process offering opportunities for public comment.
For more than fifteen years, genetically engineered salmon has been undergoing this methodical review. Under current consideration: should the food be approved at all, and if so, should it be labeled as genetically engineered when it goes to your local supermarket as a salmon filet?
“The FDA is a science-based agency, and outside of its authority to insist that product names not conceal an economic fraud—such as calling something fresh when it was frozen—the federal courts have held that it may not force manufacturers to put information on their labels unless it is related to such things as nutritional value, taste, texture, allergenicity, other other such qualities of the food,” Charo says.
She sees voluntary labeling, which is already occurring for many foods, as a practical solution.
“Look in your refrigerator. You may have items that are genetically engineered sitting beside Ben & Jerry’s ice cream, which promises it was made without milk from cows treated with recombinant bovine growth hormone,” she explains.
“The labeling can’t claim that the product is safer because there is no evidence of that. But what else can it say? In my opinion, the FDA should clarify rules for voluntary labeling so companies that avoid genetically engineered components int heir food know how to say so on their labels, without fear of penalties for being misleading.”
The voluntary organic label is a lesson in consumer demand and market response, Charo says: people understand that if the package doesn’t say a product is organic, then it isn’t organic. She envisions the same thing happening in the area of genetically engineered foods.
Food safety isn’t the only issue. There are also concerns about economic effects on small farmers, as well as environmental impacts. Some genetically engineered crops don’t need to be sprayed with the kind of pesticides that may endanger both animals and agricultural workers, but these crops might out-complete other plants and upset the balance in complex ecosystems.
“We aren’t able to model every possible effect, so we need to continue the cautious approach that started in the 1980s with the adoption of a federal framework for regulating biotechnology,” Charo says.
How Does Super-Sized Buying Power Influence Farming and Production?
Peter Carstensen approaches the legalities of genetically modified crops from another perspective. An expert in antitrust law, he studies how food policy and regulation can promote fair competition that benefits both producers and consumers.
Carstensen came to UW Law School after serving as an attorney at the Antitrust Division of the United States Department of Justice, where he focused on applying competition policy and law to regulated industries. Now a senior fellow at the American Antitrust Institute, he became interested in food law about fifteen years ago, when former students invited him to Washington, DC, to answer questions about competition law as it relates to agriculture.
He found that his expertise in antitrust law fit in well with the commercial side of agriculture that deals with access to and use of genetically modified seeds. Seeds are intellectual property that can be patented, so producers who harvest and replant them the following season could be sued for patent infringement. Such was the case in last year’s Bowman v. Monsanto, in which the US Supreme Court ruled unanimously in favor of the agricultural giant Monsanto over an Indiana soybean farmer.
According to Carstensen, “Large companies like Monsanto have adopted contracting terms that exploit farmers quite unreasonably—in particular, denying farmers the right to save and replant seed, even if they offer to pay a royalty to the patent owner.”
Carstensen believes the courts got it wrong. Preliminary studies suggest that a single soybean may contain as many as 66,000 genes, more than twice the number identified in the human genome sequence.
Two of those soybean genes may represent a patented component, and the courts have said that once any gene in a seed has been modified, then the patent owner has control over the entire seed.
“That’s partly because the Supreme Court consists of city folks who didn’t have a clue about seed genetics,” he continues. “That was evident in the decision of the Bowman case in which I was involved. They just don’t understand how seeds function. It’s an ongoing struggle.”
Carstensen has been working with open-source seed advocates who are trying to safeguard the genetics that go into seeds so that they can be shared freely among farmers, gardeners, and plant breeders.
Competition law has also taken Carstensen into the controversies surrounding the marketing of agricultural commodities. He has been involved in a years-long effort to create a better market system for dairy farmers.
“It’s so complicated that I would put everybody to sleep or drive them crazy if I tried to explain the milk market system, and it’s made much worse by the reduction in the number of major buyers of milk,” he says.
Carstensen says a single company, Dean, after merging with Suiza Foods, now controls about a third of the fluid milk purchased in the United States. The Justice Department permitted the merger, even though it had correctly predicted that the merger would leave farmers with fewer wholesale buyers for their milk and would ultimately mean higher prices for consumers.
“This is an example of misuse of buyer power, the power of a large processor or assembler of products over its suppliers,” says Carstensen.
“The rule of thumb in milk was that if farmers had five or six possible buyers for milk, they were in good shape because they had the option of taking their milk elsewhere if they weren’t treated fairly. When you get down to three or four buyers, those buyers don’t tend to compete with each other because that reduces their profit margin.”
Carstensen cites Walmart as a classic example of buyer power. Once suppliers become dependent on a single, large buyer, losing that buyer can destroy them. At that point, he says, Walmart shifts costs and risks upstream to, for example, Tyson Chickens, which turns around and exploits its suppliers. The small-input supplier and farmers bear the ultimate burden.
“Concentrated buyer power places our food chain increasingly in the hands of a very small number of companies that are making decisions that affect us all,” says Carstensen.
Carstensen says that with seeds specifically, three or four companies are choosing the kinds of crops that are grown and the kind and quality of food that will be available. In meat and fluid milk, there are just a few companies deciding what kind of milk consumers will drink and what kind of chicken consumers will eat. Without a robustly competitive market with lots of players, Carstensen worries about the risks to the food supply.
“We have lost a lot of variety in the food system and are left with a very narrow set of hog, cattle, and chicken types,” he says. “These are the same conditions that resulted in the Irish potato famine. A fungus attacked the single type of potatoes they were all growing, and the whole crop was gone.”
Can Food, Labor, and Environmental Agencies Take a Cue from the Farm-to-Fork Movement?
Steph Tai developed her taste for food law from two different perspectives. An earlier focus on environmental law led to an interest in agricultural law because of the effect that agriculture has on the environment—specifically, water pollution. Around the same time, she started exploring food safety law with a group of industrial engineers.
Looking into these separate aspects of food law, she observed how bifurcated the two areas are. “The legal system basically addresses food production differently than it does food consumption. It’s the opposite of the developing farm-to-fork movement, which takes an overarching, holistic perspective on the topic of food,” she says.
The federal agencies that oversee what ends up on consumers’ plates are not well coordinated, Tai says. The US Department of Agriculture monitors meat, poultry, and eggs. The Food and Drug Administration covers everything else. The Environmental Protection Agency monitors pesticides, while the US Centers for Disease Control and Prevention are responsible for preventing foodborne infections. And beyond federal agencies, much of the oversight in food production is administered by state agencies. This multi-agency structure can make it hard for farmers to get the knowledge they need to comply with existing food laws.
“Today, our current food-production system is much more integrated than it was in the last century when a lot of current laws were written,” Tai says. “Now we have many producers who work with all aspects—from the farmers’ field to packaging in one single company. Yet that single food processor might be affected by a number of different agencies in a very piecemeal way.”
Supporters of the farm-to-fork movement, however, view the food system as an integrated system. They say consumers should be aware of where their food comes from, and likewise, those who produce food should be familiar with their consumers. Tai wants to incorporate that approach into the food law system.
“A lot of the reason why the regulation of these different areas is split and piecemeal is because of the way the statutes are currently structured. Ideally, Congress would revisit some of these core statutes and restructure the agencies in a more logical and cohesive way. That’s a congressional question,” she says.
Tai does not anticipate any kind of legislative reform in the near term that will knit these fields together, but she thinks that growing public interest will force the issue in the long run.
For the present, she’s focusing her efforts on ways to establish working groups and cross-agency collaborations so that when a problem arises because of a split between the EPA and FDA, there will be some way for them to reach a consistent approach. But her long-term goals are more ambitious.
As Tai started her research into current food-safety areas of state cooperation, she discovered that nobody in the legal academic area had been looking theoretically at inter-agency collaboration. She has taken on this task.
Tai coined the term food systems law, rather than simply food law, to recognize differing interests and concerns. She envisions the field expanding to encompass public health, the environment, and labor impacts. “There are unique labor issues involved along the farm-to-fork chain, from agricultural workers to food production workers to restaurant workers,” she says.
It’s an exciting area of law, she says. Law schools are becoming more involved, and an academic community is forming around this area. Tai helped set up the first email list for food law professors two years ago. More than one hundred professors now subscribe to the list, and it hosts a vigorous exchange of information, she says.
“Students are really interested in food law now, and there is more public attention being paid to food production and food safety in general,” she adds. With all the interest in the topic, Tai says the time is ripe for the legal academy to give it scholarly attention, too.
“We have a good opportunity to lay the legal and research groundwork for future action.”