Research Handbook on International Food Law 1800374666, 9781800374669

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RESEARCH HANDBOOK ON INTERNATIONAL FOOD LAW

RESEARCH HANDBOOKS IN INTERNATIONAL LAW This highly original series offers a unique appraisal of the state-of-the-art of research and thinking in international law. Taking a thematic approach, each volume, edited by a prominent expert, covers a specific aspect of international law or examines the international legal dimension of a particular strand of the law. A wide range of sub-disciplines in the spheres of both public and private law are considered: from international environmental law to international criminal law, from international economic law to the law of international organisations, and from international commercial law to international human rights law. The Research Handbooks comprise carefully commissioned chapters from leading academics as well as those with an emerging reputation. Taking a genuinely international approach to the law, and addressing current and sometimes controversial legal issues, as well as affording a clear substantive analysis of the law, these Research Handbooks are designed to inform as well as to contribute to current debates. Equally useful as reference tools or introductions to specific topics, issues and debates, the Research Handbooks will be used by academic researchers, post-graduate students, practicing lawyers and lawyers in policy circles. For a full list of Edward Elgar published titles, including the titles in this series, visit our website at www​.e​-elgar​.com.

Research Handbook on International Food Law Edited by

Michael T. Roberts Executive Director, Resnick Center for Food Law and Policy, and Professor of Policy, UCLA School of Law, USA

RESEARCH HANDBOOKS IN INTERNATIONAL LAW

Cheltenham, UK · Northampton, MA, USA

© The Editor and Contributors Severally 2023 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system or transmitted in any form or by any means, electronic, mechanical or photocopying, recording, or otherwise without the prior permission of the publisher. Published by Edward Elgar Publishing Limited The Lypiatts 15 Lansdown Road Cheltenham Glos GL50 2JA UK Edward Elgar Publishing, Inc. William Pratt House 9 Dewey Court Northampton Massachusetts 01060 USA

A catalogue record for this book is available from the British Library Library of Congress Control Number: 2023945335 This book is available electronically in the Law subject collection http://dx​.doi​.org​/10​.4337​/9781800374676

ISBN 978 1 80037 466 9 (cased) ISBN 978 1 80037 467 6 (eBook)

EEP BoX

Contents

viii ix xiv

List of tables List of contributors Acknowledgment 1

Introduction: making a case for international food law Michael T. Roberts

1

PART I   DEVELOPMENT OF INTERNATIONAL FOOD LAW ROLE OF LAW IN GLOBAL GOVERNANCE OF FOOD  2

What’s the use of food regime analysis for international law? Anne Saab

3

Food law’s agrarian question: capital, global farmland, and food security in an age of climate disruption William Boyd

29

The intersection of international, European, and global food law: rules, trends, and challenges Ferdinando Albisinni

63

4

17

DEVELOPMENT OF FOOD LAW AND GOVERNANCE STRATEGIES  5

Drafting national food laws in a globally connected world Jessica Vapnek and Melvin Spreij

6

The future of planning for food system governance Laurie J. Beyranevand and Emily M. Broad Leib

95 117

CULTURAL PRESERVATION IN DEVELOPMENT OF INTERNATIONAL FOOD LAW 7

The food–water nexus in the post-revolutionary Mexican Supreme Court Peter L. Reich

8

Food law and third-world approaches to international law (TWAIL): ingredients in a movement, techniques for analysis, recipes for reform, and a future menu Ernesto Hernández-López

v

148

166

vi  Research handbook on international food law 9

Community and geography in a holistic approach to food law Marsha A. Echols

183

COMPARATIVE LAW APPLIED TO FOOD LAW 10

Comparative food law Bernd van der Meulen and Bart Wernaart

199

PART II  INTERNATIONAL FOOD GOVERNANCE AND LAW FRAMEWORKS FOOD TRADE AND SAFETY  11

12

Global governance of food safety: the role of the FAO, WHO, and Codex Alimentarius in regulatory harmonization Neal D. Fortin

227

Interactions between food safety protection and trade liberalization in the WTO and FTAs Ching-Fu Lin

243

13

The Food Safety Modernization Act and international trade rules David A. Wirth

14

ESG, supply chain due diligence and food systems transformation: changes and challenges Uché Ewelukwa Ofodile

261

291

15

The regulation of insects as food Steph Tai

315

16

Food safety governance and good practices for better rulemaking Juanjuan Sun

332

17

Codex Alimentarius at home and abroad: the regulatory costs of developing and implementing international and national food-safety standards Brian A. Fink

347

LABELING AND CERTIFICATION 18

Sugar labeling: challenges and approaches Alexia Brunet Marks

369

19

Private third-party verification of product claims: lessons from kosher certification 387 Timothy D. Lytton

Contents  20

vii

Class action litigation targeting the food industry: U.S. and international perspectives 409 Tommy Tobin

ENVIRONMENTAL LAW AND FOOD 21

Climate change issues in international food law Francesco Bruno

427

22

Bodies as food system sacrifice zones Margot J. Pollans

443

TECHNOLOGY AND SCIENCE 23

The digital food economy, from food regulation to data governance Pinghui Xiao and Vicki Waye

471

24

International regulation of genetically engineered food Joanna K. Sax

498

ANIMAL WELFARE 25

Using the law to enhance the welfare of food-producing animals: recognising sentience, raising standards Caoimhín MacMaoláin

515

HUMAN RIGHTS AND FOOD SOVEREIGNTY 26

When crits go to the UN: conversations with Olivier De Schutter, Hilal Elver and Michael Fakhri about the right to food Amy J. Cohen and Nadia C.S. Lambek

Index Prepared by Michael T. Roberts

534 552

Tables

10.1 Game-changing events in food law globally 10.2 A framework for comparative food law 10.3  Food definitions 10.4 Definitions of food additives 10.5 Mandatory particulars in food labelling 10.6 Lists of allergens in food labelling 14.1 Employment in agriculture (% of total employment – selected countries) 19.1 Typology of credence qualities in food products 20.1 U.S. food litigation class action filings per year

viii

207 213 216 219 221 222 296 389 415

Contributors

Ferdinando Albisinni is a Food and Agricultural Law Professor at Mercatorum University, Rome, and previously Full Professor at Tuscia University, Viterbo. A recognized leader in food law in Europe, Albisinni has authored several food and agricultural law books and was appointed Director of the Advanced Master’s in Food Law at University Rome III. He is President of the Italian Food Law Association, Director of the Italian Journal of Food Law, and an Emeritus Member of the Academy of Georgofili, Florence. Laurie J. Beyranevand is the Director of the Center for Agriculture and Food Systems and a Professor of Law at Vermont Law School. She is an appointed member of the Food and Drug Law Journal Editorial Advisory Board, a founding member of the Academy of Food Law and Policy, and former chair of the Agriculture and Food Law Section of the American Association of Law Schools. A first-generation Iranian American with Appalachian roots, Beryanevand recognizes the power of food in bringing people together. William Boyd is the Michael J. Klein Chair and Professor of Law, UCLA School of Law, and Professor, UCLA Institute of the Environment and Sustainability. Boyd also serves as Faculty Co-Director of the Emmett Institute on Climate Change and the Environment at UCLA Law and Project Lead for the Governors’ Climate and Forests Task Force. Emily M. Broad Leib is a Clinical Professor of Law and Founding Director of the Harvard Law School Food Law and Policy Clinic, the nation’s first law school clinic devoted to providing legal and policy solutions for our food system. Working directly with clients and communities, she champions community-led food system change, access to healthy foods, and sustainability and equity in food production. Broad Leib received a BA from Columbia University and JD from Harvard Law School. Alexia Brunet Marks is a Professor and Associate Dean for Academic Affairs at the University of Colorado Law School. Brunet Marks is a leading food law scholar who combines her legal training (JD, Northwestern University Pritzker School of Law) with her training in Agricultural Economics (Ph.D., Purdue University) to research the connections between the food system and its effects on food safety, nutrition, agricultural labor, and climate change. She teaches torts, international economic law, and food law and publishes in leading journals and books. Francesco Bruno is a full Professor at the University Campus Bio-medical of Rome and an attorney qualified for the Higher Courts. He was a Visitor at Columbia Law School (Center of Climate Change Law), Visiting Scholar at UCLA School of Law, and Visiting Researcher at Florida International University. He is the author of over 100 scientific publications, books, papers, essays, and articles. Bruno is the first jurist member of the Italian National Food Safety Committee. Amy J. Cohen is the Robert J. Reinstein Chair at Temple University Beasley School of Law and honorary professor at UNSW Sydney Faculty of Law and Justice. Cohen writes on informal justice and negotiation, including among people building alternative forms of production ix

x  Research handbook on international food law and exchange, and law and economic development, including the law and political economy of agriculture and food. Marsha A. Echols is a Professor at Howard University School of Law and Directs the World Food Law Institute, an NGO. Renowned in food law, Echols speaks and lectures internationally, participates in domestic and international food advisory committees, and follows standard setting at the Codex Alimentarius Commission. She is an expert in international dispute settlement, having been a Member of the UN Administrative Tribunal and a WTO Panelist. Echols holds several degrees, including a doctorate in law (JSD) from Columbia University. Brian A. Fink is an attorney who focuses his practice on legal and regulatory matters facing the food and beverage industries. Fink is also a research affiliate at the Resnick Center for Food Law and Policy at UCLA School of Law. He previously held legal fellowships at Yale Law School and Harvard Law School. Fink’s scholarship has appeared in the Journal of Food Law and Policy and other publications, and he has presented worldwide on international foodsafety regulation. Neal D. Fortin is the Director of the Institute for Food Laws & Regulations (at Michigan State University and a Professor in the Department of Food Science and Human Nutrition. He teaches United States Food Law, International Food Law, Codex Alimentarius, and Regulatory Leadership courses. He is the author of Food Regulation: Law, Science, Policy, and Practice (www.foodregulation.us) and Advanced Introduction To International Food Law. Ernesto Hernández-López is a Professor of Law at Fowler School of Law, Chapman University (United States). He researches agriculture, food, and international law. Hernández-López’s research appears in the Journal of International Economic Law, World Trade Law, UC Irvine Law Review, ASU Law Journal, Vanderbilt Journal of Transnational Law, and European and South American journals. He has written op-eds for the Chicago Tribune, Inter Press Service (Rome, Italy), Orange County Register, U-T San Diego, Latino Rebels, and La Opinión. Nadia C.S. Lambek is an Assistant Professor, Western University Faculty of Law. Lambek’s research explores the law’s constitutive role in shaping our food systems, the engagement of social movements in law-making, and international law. She is a founding member and co-chair of the Canadian Association for Food Law and Policy. Her publications include Rethinking Food Systems: Structural Challenges, New Strategies and the Law. Lambek received a JD from Yale Law School and is completing an SJD at the University of Toronto. Ching-Fu Lin is a Professor of Law at National Tsing Hua University, where he teaches international law and global governance, food law, global health law, artificial intelligence law and policy, and law and technology. Lin received an LLM and SJD from Harvard Law School, with the honor of the John Gallup Laylin Memorial Prize and Yong K. Kim Memorial Prize. He also holds a double degree in law (LLB) and chemical engineering (BS) from National Taiwan University. Timothy D. Lytton is a Regents’ Professor and Professor of Law at Georgia State University College of Law, where he currently serves as the Associate Dean for Research and Faculty Development. He is the author of numerous articles and books on food regulation, including Kosher: Private Regulation in the Age of Industrial Food (Harvard University Press 2013) and Outbreak: Foodborne Illness and the Struggle for Food Safety (University of Chicago Press 2019).

Contributors 

xi

Caoimhín MacMaoláin is a Professor in Law and Head of the Law School, Trinity College Dublin. He holds a PhD and has published three books on European Union Food Law, English Food Law, and Irish Food Law, and numerous articles in leading international journals, including the European Law Review, the Common Market Law Review, European Public Law, and the European Journal of Consumer Law. He currently teaches Food Law, EU Law, and International Trade Law to undergraduate, postgraduate, and doctoral students. Uché Ewelukwa Ofodile teaches at the University of Arkansas, where she focuses on food law and law involving international investment and trade, intellectual property, international dispute settlement, corporate social responsibility, and technology. Ofodile has authored numerous publications and serves on the Editorial Advisory Committee of International Legal Materials. Ofodile is a recognized leader in food law in Africa, updating, revamping, and transforming the continent’s food law. She has advised numerous governments, international organizations, businesses, and public interest organizations on food and agriculture. Margot J. Pollans is a Professor of Law and the Shamik and Adrienne Trivedi Faculty Scholar at the Elisabeth Haub School of Law at Pace University. She is also the Faculty Director of the Pace Food Law Center. Pollans’ work examines the macro structures of food law and has appeared in the Michigan Law Review, the California Law Review, and the Harvard Environmental Law Review, among other places. Peter L. Reich received his JD at UC Berkeley and PhD in Modern Latin American History at UCLA. As Lecturer in Law and Academic Director of the Law and Communication Intensive at UCLA School of Law, he teaches Constitutional Law, Evidence, and Public Law. Reich’s research focuses on the natural resources law of Latin America and the U.S. Southwest, and his most recent book is The Law of the United States–Mexico Border: A Casebook (Carolina Academic Press, 2017). Michael T. Roberts is a Professor of Policy and UCLA Law School’s Founding Executive Director of the Resnick Center for Food Law and Policy. He is a global thought leader in food law, having led the development of the Journal of Food Law and Policy, authored Food Law in the United States, and co-edited Food Law: Cases and Materials. He is currently studying for a DPhil in Modern History at Oxford University, focusing on the genesis of global food governance. Anne Saab is an Associate Professor of International Law at Geneva Graduate Institute. She obtained a PhD in International Law from the London School of Economics and worked as legal advisor at the Ministry of Agriculture and the Foreign Office in The Hague. Her areas of interest and expertise include food and agriculture, climate change, intellectual property, emotions, and international law. Her first monograph is entitled Narratives of Hunger in International Law: Feeding the World in Times of Climate Change. Joanna K. Sax is the E. Donald Shapiro Professor of Law at California Western School of Law in San Diego, California. She is the author of numerous articles addressing food regulation, especially genetically engineered food and dietary supplements. Her work has appeared in scientific journals such as Nature Biotechnology and peer-reviewed legal journals such as the Journal of Law, Medicine and Ethics and the American Journal of Law and Medicine. Melvin Spreij is the Counsellor and Head, Standards and Trade Development Facility (STDF) at WTO. He is a trade and development expert in WTO’s Agriculture and Commodities

xii  Research handbook on international food law Division and previously at FAO. He holds a civil and business law degree from State University Leiden and has published widely on sustainable development and natural resources. He manages STDF’s global partnership and knowledge platform and oversees STDF’s Trust Fund at WTO, supporting over 200 projects in Africa, Asia-Pacific, Latin America, and the Caribbean. Juanjuan Sun is an Associate Law Professor at Heibei Agricultural University and a Research Fellow of the Center for Coordination and Innovation of Food Safety Governance at the Law School of Renmin University, China. Her research focuses on regulatory theory, food law, and agricultural law. Sun has edited books and translated books into Chinese, including publications on a comparative study, EU food safety regulation and governance, EU food law in general, and private food law. Steph Tai is the Associate Dean for Faculty and Education at the University of Wisconsin Nelson Institute for Environmental Studies and Professor of Law at the University of Wisconsin Law School. They study the intersections between environmental, food, and health sciences and administrative law. Tai has a chemistry background (MIT undergraduate, Tufts University Ph.D.) and a JD from the Georgetown University Law Center. Before teaching, they worked as an appellate attorney at the U.S. Department of Justice. Tommy Tobin is an Associate at Perkins Coie, focusing on class action litigation and regulatory counseling for food, cosmetics, and cannabis companies. He is a Lecturer at UCLA Law School and Affiliate Instructor at the University of Washington School of Law. He sits on the Board of Directors of Hunger Free America and the Advisory Board of the UCLA Resnick Center for Food Law and Policy. Tommy earned degrees from Stanford University, the Harvard Kennedy School, and Harvard Law School. Bernd van der Meulen teaches food law at the University of Copenhagen, several other universities, and through the Food Law Academy. He is a former Professor of Comparative Food Law Law at Renmin University of China Law School (Beijing) through the Program of Top-Level Foreign Experts of the State Administration of Foreign Experts Affairs of the PRC. He is director and food-legal consultant at the European Institute for Food Law and a prolific author of books and articles on food law. Jessica Vapnek is a graduate of Yale University and Berkeley Law School, where she was Editor-in-Chief of the California Law Review. She served for almost 15 years as a Legal Officer with the United Nations Food and Agriculture Organization (FAO) in Rome, providing policy advice to member countries and drafting legislation on agriculture and natural resources. She is the author, co-author, or editor of numerous books and articles on food, agriculture, and legislative drafting and speaks French, Spanish, and Italian. Vicki Waye is a Professor of Law at the University of South Australia: Justice and Society. Professor Waye was Chair of the Academic Board of the University of South Australia and a member of the University Council, and is currently Dean of Law. She has over 30 years of experience teaching and researching at the undergraduate and postgraduate levels. Professor Waye’s expertise includes Civil Process, Arbitration Law (domestic and international), Evidence, Procedure, Corporate Law, Contract Law, and Wine Law. Bart Wernaart is a Professor of Moral Design Strategy at Fontys University of Applied Sciences, the Netherlands, specializing in human rights law and ethics. He received his PhD at Wageningen University. Wernaart is also a professional drummer, conductor, and composer.

Contributors 

xiii

David A. Wirth is a Professor of Law and Dean’s Distinguished Scholar, Boston College Law School. He is former Attorney-Adviser, Office of the Legal Adviser, U.S. Department of State, for international environmental issues, and Senior Attorney and Co-Director, International Program, Natural Resources Defense Council. He received a JD from Yale and was a law clerk, U.S. Court of Appeals for the Second Circuit. He has authored over six dozen books and articles on international law and is a life member of the Council on Foreign Relations. Pinghui Xiao is a senior lecturer at Law School, Guangzhou University, China, and holds a PhD in Law from the University of South Australia. Previously, Xiao worked in the former China Food and Drug Administration (CFDA), where he was involved in drafting food and drug regulatory policy. Xiao is directing two major research projects concerning food e-commerce, sponsored by China’s National Social Science Foundation and Ministry of Education.

Acknowledgment

The idea for this book has long occupied my mind, and there are many people to credit for its realization. First, I am grateful to the publisher Edward Elgar Publishing, specifically Senior Editor Laura Mann, for reaching out to me to lead on this book, giving me the space to develop it, and patiently supporting and guiding me through the process. Second, I am grateful to the talented scholar authors carefully selected to contribute to this book. Most are colleagues whom I have known for some time, and I am aware of their busy schedules and personal challenges in their lives that made contributing a chapter no small feat. I sincerely appreciate their courtesy and kindness to my student team and their willingness to endure several rewrites and edits. This book could not have met the highest standards of excellence without the help of two remarkable UCLA students, Lauren Mansy and Karen Meacham. Lauren is a senior ungraduated student whose maturity, communication, and organizational skills surpass her age. Karen is a third-year law student whose careful editing, citation checking, and overall competency were invaluable and instrumental in shaping the final product. The contribution of these two students cannot be overstated. I also express gratitude to other UCLA student editors who helped edit citations, including Laurel Hunt, Shreeja Athota, and Victoria Russell. I am also grateful for much background support in conceiving international food law. First, special thanks to my food-law friends and colleagues, too many to list here, who have recognized the emerging importance of international food law and who have invited me to visit their universities in other countries, and whose rich collaboration has helped build my appreciation for the complexities involved in international food law. Next, I am grateful to José Graziano da Silva, the most recent former Director General of the Food and Agriculture Organization (FAO) of the United Nations, whose agreement on the need for the scholarship of food governance at the international level has motivated me. In addition, I also express gratitude to the Development Law Service of the FAO, whose lawyers, through our association, have taught me much about the workings of international food law and development. Finally, I acknowledge Patricia Clavin, Professor of Modern History, who supervises my part-time DPhil study at Oxford, focusing on the early history of FAO and the development of international food law. Professor Clavin’s generous sharing of her deep historical expertise in food governance in a broad social and economic context during this time has helped me connect the dots between concepts. On a personal note, I thank Diana Winters, Deputy Director of UCLA Law’s Resnick Center for Food Law & Policy, who is always a good sounding board and who has stepped in to assume much of the administrative work for the Center, allowing me to find the space and time to work on the book. I also express my deepest gratitude to my spouse, Nancy Walker, and dedicate this book to her, who, as a Professor of Teacher Education, is no stranger to what goes into producing a book. Nancy has been encouraging and supportive beyond anything I deserve. Finally, I thank Rowan, our loyal cat who kept me company during the odd hours of editing and writing. xiv

1. Introduction: making a case for international food law Michael T. Roberts

PURPOSE, SCOPE, AND ASPIRATION OF THE BOOK This book showcases emerging scholarship on international food law. Thirty-one scholars and experts worldwide have been selected to reflect on their current research and work on international food law. The result is a broad array of chapters that explore the dimensions of international food law, engage in comparative analysis, and address significant food law and policy topics on a global platform. Despite this wide coverage, the book is intended to be something other than a treatise or encyclopedia of international food law. Instead, the goal is to explore the possibilities of international law in dealing with the consequences of a complex, modern global food system. The value of this book will be gauged to the extent scholars reflect beyond its pages to plumb the problems of the global food system deeply and recommend governance and legal mechanisms to solve them. What will be these mechanisms moving forward? As illustrated in this book, legal mechanisms could come from several sources: bilateral, regional, or multinational treaties; international conventions; new innovative international instruments or the reshaping of existing instruments; national constitutions; national law with extra-jurisdictional effects; model national legislation refined by comparative analysis; development of best or good regulatory practices by governments or industry or a combination of both; international institution goal setting, training, and nudging; adjudication with international implications; global certification programs; and transnational private regulation or self-governance.

A. THEMES 1. Taming an Unruly Emerging Discipline When I published a legal treatise on food law in 2017 – Food Law in the United States – Joseph A. Page, Professor Emeritus at the Georgetown University Law Center, generously noted the book’s “admirable effort to impose intellectual discipline on a field marked by unruly growth and yet to emerge from a formative stage.”1 Even if still “unruly,” from all appearances, food

1

 Joseph A. Page, “Book Review,” 72 Food & Drug L.J. 361 (2017) (reviewing Michael T. Roberts, Food Law in the United States [2016]).

1

2  Research handbook on international food law law has continued its “rise both as an area of academic study and as a field of legal practice.”2 In this growth, it has become clear that the full scope of food law in conceptual and practical ways must include international food law. As I postulated in the treatise, food law is an example of modern law adapting to changing social conditions.3 International food law is the same. This point underlies William Boyd’s assertion that the emerging field of international food law has an important role to play in uncovering the deep structures of the global agro-food system, paying specific attention to the role of law and legal arrangements in creating a global political economy in which close to one billion people do not get enough to eat. (Chapter 3)

This “important role” for food law in various facets of the modern global food system is repeated throughout the chapters. International food law – like domestic food law – is multi-doctrinal, covering various topics. The value in harnessing this expansive approach to a discipline is to promote a holistic role for international law in governing food from the farm to the table and to motivate and facilitate a global systems-thinking approach to solving complex problems that transcend national boundaries.4 This harnessing is aided by recognizing certain organizing concepts and international legal frameworks. Part I of this book articulates these organizing concepts of international food law by exploring approaches to the discipline and the role of institutions, legal instruments, culture, and comparative methodologies. Part II of the book sets forth the legal frameworks of international food law by addressing major issues in regulating the modern global food system. This introduction will review the development of these two parts of the book by referring to specific chapters and highlighting both the intersection and overlap of concepts and frameworks and the competing interests and values that lead to tensions, making international food law challenging and endlessly fascinating. 2. Addressing the Tensions and Power Dynamics in the Complex Global Food System The notion that there is a global food system hinges on the interlinkage of activities involving food, as explained by a group of scientists in connection with the UN Food Systems Summit: Food systems embrace the entire range of actors and their interlinked value-adding activities involved in the production, aggregation, processing, distribution, consumption, and disposal (loss or waste) of food products that originate from agriculture (including livestock), forestry, fisheries, and food industries, and the broader economic, societal, and natural environments in which they are embedded.5  Jacob Gersen, Margot Pollans, and Michael Roberts, Food Law: Cases and Materials (2018). See also Emily M. Broad Leib and Baylen J. Linnekin, “Food Law and Policy: An Essential Part of Today’s Legal Academy,” 13 J. Food L. & Pol’y 228, 260 (2018); Stephanie Tai, “Food Systems Law From Farm to Fork and Beyond,” 45 Seton Hall L. Rev. 109 (2015). 3  Michael T. Roberts, Food Law in the United States 2 (2016). 4   Id. at 10. 5  Joachim von Braun et al., “Food System Concepts and Definitions for Science and Political Action,” 2 Nature Food 748 (2021), https://doi​.org​/10​.1038​/s43016​-021​-00361​-2. This same report affirms Boyd’s point about the biases embedded in food-systems framing (Chapter 3) by the report’s 2

Introduction 

3

The overarching tension that surfaces in this book is the battle over what type of international food system will prevail. The current neo-liberal food regime is the first of two models that dominate the discussion. This model is anchored to free trade and a dependency on the market. The model has been in place long enough to ascertain its benefits and costs. The second model is more challenging to name and define. It is a combination of concepts percolating in legal frameworks of food security,6 human rights, and sovereignty. This second model is largely a reaction to the neo-liberal model and, at this juncture, is truly unruly. Fortunately, the chapters in this book are replete with nuances to remind scholars that viewing the world in dichotomies does not always result in thoughtful policymaking. In other words, the global food system is complicated, and scholars may want to consider concepts in both models and the in-between space, especially as climate disruption, AI, and other forms of technology disrupt and change the entire food system. Anne Saab contextualizes the interlinkage in the UN definition of “food system” by reiterating that “[t]he global food system is an enormously complex web of intricately related and highly interdependent parts” and concluding that “[c]onsidering the highly interdependent nature of the global food system, every area of international law is in some way connected to food” (Chapter 2). Saab suggests that food regime theory – an analytical tool used primarily by sociologists to study the role of agriculture in the global capitalist economy – can be used in developing the field of international food law. Building on this theory, Saab, like other authors in this book, frames the study and operation of international food law in terms of power. William Boyd builds on Saab’s food-regime theory by focusing on the “agrarian question,” which “suggests a wider field of vision for international food law – one that looks upstream and investigates how land and farming are being incorporated into the larger global agro-food system” (Chapter 3). Boyd invites scholars in food law and agrarian political economy to engage beyond international trade to counter-movements, such as the right to food and food sovereignty, and even to “the role of law in contributing to global hunger, as well as giving particular attention to financialization and the role of financial derivatives and speculation in contributing to food price spikes.” Boyd concludes that integrating food regime theory with agrarian political economy will provide insights and use of methodology to evaluate “the diversity of ways that farming and agriculture are being pushed and pulled into larger economic structures.” A slightly different take on the power dynamics in the global food system includes a meshing of cooperative food governance model building. EU food law pioneer, Ferdinando Albisinni, observes that law applied to the “complex dynamic” in food-sector globalization results in “emerging new models of food governance” that defy traditional hierarchies and build cooperation in the regulatory framework (Chapter 4). Albisinni observes that these new models “involve adopting external sources in other systems, rendering geography and sovereignty more fluid.” How this meshing might apply in other jurisdictions is an open question. Still, Albisinni notes that in the EU, the result is a broadening of food law where it integrates

definition of “sustainable food system” as “one that contributes to food security and nutrition for all in such a way that the economic, social, cultural, and environmental bases to generate food security and nutrition for future generations are safeguarded.” Id. 6  The relationship between free trade and food security is not always easy to establish one way or another. See e.g., Vincent H. Smith and Joseph W. Glauber, “Trade, Policy, and Food Security,” 51 Agric. Econ. 159 (2020), https://doi​.org​/10​.1111​/agec​.12547.

4  Research handbook on international food law with agricultural law into what Albisinni and others term “Agri-Food Law,” a term that comports with William Boyd’s characterization of the “agro-food system.” 3. Developing Purposeful Governance Strategies For the law to adapt to the complexities and power dynamics in the global food system, several authors recommend effective governance strategies predicated on cooperative, coordinated, and unified approaches. Jessica Vapnek and Melvin Spreij state that “effective food legislation must account for global trends and developments” (Chapter 5). These authors emphasize that a key global development is the UN Sustainable Development Goals, which “call for a major transformation of agriculture and food systems by 2030 to end hunger, achieve food security, and improve nutrition and food safety.” For governments to effectively meet these goals, Vapnek and Spreij recommend that countries “take a more holistic and coordinated approach, involving public and private sector stakeholders at local, national, regional, and global levels and across sectors and disciplines.” The authors note that the Food and Agriculture Organization of the United Nations (FAO) and the World Health Organization (WHO) stand by, ready to help member countries draft, amend, and update national food laws and regulations, and point to international agencies, treaties, legal instruments, and Good Regulatory Practices as part of the resource pool to help countries respond. Vapnek and Spreij also identify another key global developmental trend – the One Health approach, which means “protection from the environmental, economic, and human health risks of potentially harmful plant and animal pests and diseases and alien invasive species.” This approach assumes that these sectors are “inextricably linked and that the similarities in their regulatory frameworks argue for a unified and coordinated approach.” Laurie J. Beyranevand and Emily M. Broad Leib continue this theme of cooperation and opine that to achieve effective food legislation or “best practices,” countries must move away from entrenched, fragmented, and siloed policymaking and towards developing national food strategies that “demonstrate intersectional and interjurisdictional approaches to food system governance to achieve the broader goals related to the environment, economic justice, food security, public health, and equity” (Chapter 6). To reach these goals, the authors recommend “a focus on process” where “effective discussions and decision-making … centers on broad representation and civic participation,” resulting “in a comprehensive, equitable, legitimate, and lasting national food strategy.” Determining the optimal relationship between industry and government to achieve effective cooperation in food governance is no easy task. Juanjuan Sun provides an interesting case study in China (Chapter 16). Sun reflects on the concept in China’s Food Safety Law that all stakeholders are responsible for food safety and suggests that this expansive responsibility encourages the sharing of ideas by industry with the government to achieve best or “good” practices. Sun does not resolve whether this shared approach can be achieved in other regulatory regimes but instead suggests that it is a useful model to consider. 4. Preserving Food Culture Resistance to the neo-liberal food regime requires recognition of its power and costs and the role of international food law in preserving food heritage and culture.

Introduction 

5

Peter L. Reich offers an instructive example of a national food regime adapting to global trends and market incentives at the expense of doctrinal traditions (Chapter 7). In this interesting historical account, Reich assesses the extent to which the Mexican Supreme Court’s decisions from the 1920s to the 1950s enforced agrarian reform and facilitated local food production in the aftermath of the 1910 Revolution. The agrarian reform addressed the problem of pervasive rural drought and starvation by nationalizing water sources and land distribution into collective farms. Reich notes that “although the Court and public officials effectively implemented the agrarian goals of the Revolution, market forces and international agreements moved Mexico’s rural food system to a more export-oriented system rather than a subsistence economy.” Reich does not claim that adapting to global markets is inevitable. Still, the chapter is a good reminder of the pull of neo-liberalism, as well as the fundamental connection between water resources and food policy. Ernesto Hernández-López warns that “international food law could have the tendency to prioritize uniformity by claiming universal rules” and urges holistic approaches via the Third World Approaches to International Law movement (TWAIL) (Chapter 8). The strategy with TWAIL, in this instance, is to create a unique legal approach for the Global South to preserve food culture via institutions, trade, intellectual property, and food sovereignty. HernándezLópez notes that “the conceptual starting point for TWAIL is that centuries of colonialism and empire intimately depended on international norms and institutions, claimed to be universal and neutral amongst equal states.” The chapter comports with the recommendation by Anne Saab (Chapter 2) and William Boyd (Chapter 3) that legal scholars examine the development of international food law from perspectives that may depart from established economic goals. Marsha A. Echols argues that international food law should take a holistic approach and reflect cultural aspects of food, including unique traditions, geography, food customs, and historical community-based practices and beliefs, most of which have unique geographical links (Chapter 9). Echols points to hard and soft law sources that can incorporate this holistic foundation: UN human rights law, international conventions, national laws about geographical indicators, the WTO’s SPS and TBT Agreements, and the CISG’s Article 9. Echols also points to national laws, such as dietary guidelines and case law, as possible contributors to holistic food law. Echols specifically calls attention to the “geographical approach” that is “reflected in UNESCO’s recognition of local foods as intangible cultural heritage.” 5. Utilizing International Organizations International organizations play a vital role in the global governance of food, so it is no surprise that the chapters refer to numerous international institutions. Many of the neo-liberal policies addressed in this book – industrial production, global food trade, complex global food supply chains, and their countervailing policies, including food security and human rights – are rooted in discussions about the role of international food institutions starting in the 1930s and earlier. The intersection of these policy formations with international institutions makes for a rich history beyond this book’s purview but is captured in various segments in several chapters. One of the more prominent governing institutions is the Rome-based FAO, formed in 1945 as the first and the largest of 17 specialized UN agencies. The role of FAO and the other major international institutions, including the WTO, the WHO, Codex Alimentarius, and World Organization for Animal Health (WOAH) (also referred to as OIE), are explained and

6  Research handbook on international food law contextualized by Vapnek and Spreij (Chapter 5) and Beyranevand and Broad Leib (Chapter 6) and referenced in several other chapters. Although these international institutions have little to no enforcement authority, certain institutions, such as Codex and WOAH, in concert, respectively, with FAO and WHO, have a critical role to play in making food safety and quality standards that are replicated or referred to by countries worldwide (Chapter 11, Fortin). As Neal D. Fortin explains, these standards are an important lynchpin in facilitating trade and keeping food safe. In addition, these organizations facilitate cooperation, generate information, and assist in the organization and performance of national food governance systems. For example, as noted by Fortin, the FAO and WHO jointly established the International Food Safety Authorities Network (INFOSAN) “to facilitate and improve information exchange and cooperation between countries on food safety issues and emergencies.” Not to be overlooked in the book are large, sophisticated international organizations that play an important role in food governance, especially food safety. Vapnek and Spreij reference the Global Food Safety Initiative (GFSI), an organization that brings together leading retail, manufacturing, and food service companies to work on mutual acceptance of GFSI-recognized certification programs across the industry (Chapter 5). 6. Using International Legal Instruments and Sources of Law The legal instruments that intersect with these international institutions and frame food governance include the SPS, TBT, OIE, and IPPC instruments, covered in detail in Chapters 11 (Fortin), 12 (Lin), and 13 (Wirth). Additional international legal instruments that help frame food governance include the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), which requires WTO members to protect geographical indications (GIs) to avoid misleading the public and to prevent unfair competition, the International Plant Protection Convention (IPPC) for phytosanitary plant-health standards, and the Trade Facilitation Agreement (TFA) designed to expedite trade. Finally, Lin analyzes new regional and bilateral free trade agreements reshaping the SPS Agreement and food safety governance. While most of the chapters rely on public law sources in the form of international treaties and international legal instruments, interspersed through the book are references to private law, which plays an increasingly important role in international food law. For example, in a chapter devoted to private law, Timothy D. Lytton analyses the global private third-party certification system governing kosher food (Chapter 19). Lytton explains how private third-party certification works and offers “a model for governments and industry stakeholders to consider when contemplating the role of private third-party certification in preventing consumer fraud.” David A. Wirth explains the food industry’s “complex system of private voluntary standards, including third-party audits, in place for some time before FSMA’s enactment, a phenomenon that has frequently been underappreciated in the legal community” (Chapter 13). Wirth concludes that private standards play an essential role in FSMA, significantly affecting the global food trade. Steph Tai speculates that certification schemes for insects as food are a possible outcome of greater accountability demand from consumers and civil society concerned about the environmental footprint of food (Chapter 15). 7. Engaging in Comparative Law Analysis It stands to reason that comparative law analysis is necessary for developing effective governance strategies in a complex, changing global food system. Examples of comparative law

Introduction 

7

analysis abound in this book. First, Alexia Brunet Marks compares nutrition labeling in the US to innovative front-of-package (FOP) approaches in the EU, Chile, and Australia, leading Marks to conclude that in the United States, “pressing issues and regulatory gaps remain” (Chapter 18). Second, Margot J. Pollans engages in a comparative analysis of the taxonomy of agricultural exceptionalism, leading Pollans to describe two hierarchal axes, one that impacts “racial and socioeconomic hierarchies,” while the other exports “food law and food values,” thus providing an interesting companion analysis to the chapters on food-law cultural preservation strategies (Chapter 22). In addressing emerging models of food regulation, Albisinni suggests that the unique structure of “agri-food law” requires knowledge about different models and “leads to the use of the comparative method not as an academic curiosity, but as a valuable tool for all those seeking to ‘ask the appropriate questions’” (Chapter 4). Finally, Joanna K. Sax takes on one of the most divisive issues in international food law by comparing divergent approaches in the US and EU to the regulation of genetically engineered (GE) food, drawing sharp contrasts in the application of science by two of the largest food regulatory systems (Chapter 24). Bernd van der Meulen and Bart Wernaart speak to the importance of following a systematic approach to the comparative analysis of food law and outline the traditional methodology of comparative law (Chapter 10). These authors also highlight three unique features that make comparing food law unique, including the Codex Alimentarius provision of a “ready-made nomenclature of food law that is understood globally.” Second is the reactionary nature of food law, elaborated on by van der Meulen and Wernaart in recent examples. A third feature is the “use of product standards and positive list.” The authors avoid dogmatic approaches to comparative law and acknowledge that there is much to learn. Still, they suggest a “structured approach” to ensure “compatibility of the generated data” and invite the sharing of alternative approaches in the spirit of “learn[ing] from one another in an open and constructive academic atmosphere true to the short academic tradition in comparative law.”

B. GOVERNANCE FRAMEWORKS As previously mentioned, the governance frameworks organized in this book are distinctive and interrelated. The frameworks have evolved incrementally and generally in response to changes in the global food system or societal values. The frameworks are not always in sync; tensions exist, especially between the embedded neo-liberal norms and the counterconcepts, and will likely continue to foster over time, providing a platform for the law to make a difference. 1. Food Trade The free trade legal framework in the global food system governs food trade and shapes food safety and labeling regulations. It is the core of the neo-liberal global food system and is often lauded and criticized. Neal D. Fortin lays out a cogent foundation for this legal framework (Chapter 11). Fortin notes that the foundational agreement in trade – the General Agreement on Tariffs and Trade of 1947 (GATT) – was an international agreement that created a multilateral trading system and established rules among participating nations for the international trade of goods, including food products. Next, Fortin explains the roles that international bodies such as the WHO,

8  Research handbook on international food law FAO, and the Codex Alimentarius Commission play in the WTO agreements, including the SPS agreement and the standard-making process. Fortin closes with observations about the need for this legal trade apparatus today and in the future. Ching-Fu Lin addresses trade liberalization as the backdrop to food safety regulation (Chapter 12). Lin refers explicitly to the crucial role of the SPS Agreement in governments’ design and adoption of regulatory measures and introduces the key pillars of the SPS Agreement, including the requirements of scientific justification and risk assessment; incentives to harmonize with relevant international standards, recommendations, and guidelines; transparency and equivalence mechanisms; and precautionary, provisional measures. Lin further discusses the challenges faced by the international trading regime in striking an appropriate balance between trade liberalization and health protection after the advent of the SPS Agreement and explores how recent FTAs might reconfigure SPS rules in innovative ways. David A. Wirth discusses how the global food trade regime might be reset by accountability. Wirth starts by connecting the trade regime to the planet: “[t]he planet desperately needs a new law of sustainable trade to supplant the current deregulatory model, not just for food safety but also in analogous fields, such as trade in goods manufactured with climatedisrupting fossil fuels” (Chapter 13). Wirth realistically opines that there is no choice but to live with domestic and international law and institutions as they currently exist and that “given the immense complexity of the situation in both settings and limited transparency, particularly on the international level, the only real choice is constant vigilance and demands for accountability.” Uché Ewelukwa Ofodile broadens the focus on the power dynamics and hierarchies in the global food system and examines international food trade law in connection with investment law and business law as they relate to environmental, social, and governance (ESG)-related challenges (Chapter 14). Ofodile predicts that pressure from stakeholders such as investors, consumers, and others will pressure food systems transformation. The expectation is for dominant food and agriculture enterprises to step up and for international law to develop policy coherence. In alignment with Hernández-López in Chapter 8, Brian A. Fink examines the costs of harmonization, particularly with standards developed by the Codex Alimentarius Commission, on food safety regulation (Chapter 17). Fink notes that due to its role in trade, Codex Alimentarius standards are treated “as the de facto food law” and suggests that the costs of compliance with Codex Alimentarius “manifest as an erosion of legal sovereignty and a threat to community values.” Fink’s exhaustive list of the costs to the international regulation of food safety includes public health, the efficiency of trade, national and local self-determination, ethics, environmental concern, and cultural identity. Fink notes that the EU’s so-called Farm to Fork Food Strategy, published in May 2020, attempts to incorporate some of these costs into the trading bloc’s regulation of food. Fink wonders whether the Codex Alimentarius could be susceptible to some level of change given the EU strategy in mitigating the costs, thereby helping trade members and its people achieve their goals. 2. Food Safety These chapters tackle how best to forward science-based food safety regulation in a complex global food trade system. In addition, these chapters address several practical governance issues.

Introduction 

9

Neal D. Fortin describes the historical connection between food trade and food safety, from the Code of Hammurabi to the Codex Alimentarius Commission, established in 1963 (Chapter 11). After setting out the fundamentals of modern international food safety regulation, Fortin concludes that “[w]hile it is common to attack globalization, the world food trade regime of WTO and Codex Alimentarius has been a positive force for global food safety.” Fortin describes WTO as “a force for the rule of law, international cooperation, and harmonization” and Codex Alimentarius as “a force for transparency, stakeholder involvement, and harmonization to science-based food safety standards,” giving consumers a bounty of foods year-round at “better prices than would be available if local producers were shielded from international competition.” Ching-Fu Lin analyzes food safety governance under the multilateral trading system, particularly the WTO and its SPS Agreement, and the evolving landscape formed by the recent free trade agreements (FTAs) (Chapter 12). Lin assesses how the increase in “SPS-Plus” provisions is “reshaping global food safety governance and striking a renewed balance between trade liberalization and health protection in the context of bilateral and regional cooperation.” Lin opines that innovative approaches in these FTAs are reconfiguring rules in the SPS Agreement and “will serve as a basis for future regulatory dialogue and draw the first line of the trajectory for closer collaboration” and eventually “impact the SPS jurisprudence.” David A. Wirth addresses the unique impact of the Food Safety and Modernization Act (FSMA) in the US on global food trade (Chapter 13). Wirth characterizes FSMA as novel for its “elaborate architecture for addressing food safety risks of imported food through private voluntary standards, operating largely independently of express regulatory supervision.” Wirth holds that “FSMA has reshaped the global food trade, serving as a legislative benchmark establishing standards for imports into the large US market that has significantly affected countries of export.” The irony, of course, as Wirth points out, is that the US “was a principal driver behind the WTO SPS Agreement.” The uniqueness of FSMA, as noted by Wirth, is that it is “fundamentally process-based, addressing the entirety of the manufacturing process and not just the content of the product in international trade.” Wirth leaves open the question as to how this process orientation will play out in the long run in the global food system, noting that the absence of the release of comments from foreign governments in response to the public notice of FSMA serves as a reminder of the questions that continue to surround FSMA. In their introduction to the One Health approach, Vapnek and Spreij note that the “international instrument closest to the One Health approach is the SPS Agreement, under which international standards for food safety, animal, and plant life and health are provided by Codex, WOAH, and the IPPC, respectively” (Chapter 5). This approach demonstrates the global trend toward the integration of governance frameworks. These authors further expand the regulatory field for food safety by discussing the growing pressure on businesses to guarantee food safety while preserving brand integrity, leading to larger private companies creating and adopting their standards for food safety and quality, which are imposed on producers as a precondition to purchasing. Steph Tai illustrates how food regulation adapts in response to an emerging, novel food product, insects, which, as Tai points out, double as a traditional and novel food and food ingredient (Chapter 15). Tai examines regulatory developments of insects as food in multiple countries and notes that despite the growing demand for insects for planet health, countries

10  Research handbook on international food law which lack a significant prior history of insect consumption are struggling to fit the regulation of insect and insect-based food consumption with their already-established food safety law frameworks, partially due to their existing food safety law structures addressing insects as food contaminants, rather than foods or intended ingredients for food products themselves.

Tai also raises questions about food fraud particularized to insects, given the complexities of insect composition and categorization.7 Tai references other chapters in the book, thereby connecting the chapters on the methods of effective rulemaking in a global food system, the relationship between culture and global regulation, and the importance of comparative analysis to develop and improve regulation in meeting changes. Juanjuan Sun demonstrates the application of public-private participation in food safety regulation (Chapter 16). Sun benchmarks the goal of Chinese food safety regulation to establish trust between government and industry in correcting market failures and building food safety policies. Sun relies on a case study in China where food companies share with government officials their “good practices” developed to improve food safety. Sun expects this sharing will enhance trust between government and industry, and consumers will benefit from “a mixed approach of government regulation, industry self-regulation, and academic research and contributions.” However, Sun leaves open the question of whether other countries and legal systems can build on this concept, underscoring the need for comparative law approaches. 3. Nutrition Before the formation of FAO, nutrition policy emerged as an important discussion topic amongst nation-states. As a result, nutrition became coupled with agriculture production, and the nutrition work by the League of Nations combined with severe hunger and malnutrition during World War II. This coupling helped pave the way for the Freedom from Want of Food campaign by the UN and President Franklin D. Roosevelt, sparking a chain of events that led to the development of the FAO.8 General Comment No. 12 to the 1999 UN Committee on Economic, Social and Cultural Rights (CESCR) extends the right to food to food “in a quantity and quality sufficient to satisfy dietary needs” (Chapter 26, Cohen and Lambek). Indeed, FAO and international institutions have demonstrated a growing interest in nutrition policy and legal strategies. For example, in recent years, the Codex Alimentarius Commission has set guidelines for certain types of nutrition labeling.9 Moreover, FAO’s Zero Hunger program, referenced in Chapter 5 in connection with FAO’s food systems development, has been launched with many tools to eliminate all forms of malnutrition, including hunger, obesity, and vitamin deficiencies. Included in the Zero Hunger advisory committee notes is a recommended policy and legal framework

 Food fraud could easily be another food governance framework. See, e.g., Michael T. Roberts, Teemu Viinikainen and Carmen Bullon, International and National Regulatory Strategies to Counter Food Fraud (FAO and UCLA, 2022), https://doi​.org​/10​.4060​/cb9035en. 8  Michael T. Roberts, “Understanding Modern History of International Food Law is Key to Building a More Resilient and Improved Global Food System,” 17 J. Food Law & Pol’y 56 (2021), https:// scholarworks​.uark​.edu​/jflp​/vol17​/iss1​/6/. 9  See id. at 61. 7

Introduction 

11

to eradicate hunger and malnutrition, including a review of policies and legislation supporting food access and improved access to healthy food.10 4. Labeling and Certification This framework overlaps with several other frameworks, especially those that involve making claims. For example, Marks demonstrates the wide array of nutrition labeling used in countries (Chapter 18). In recent years, this framework has broadened to include product information beyond nutrition information and health claims to include credence qualities on various social issues, including the environment (Chapter 14, Ofodile). A unique predicament for food safety regimes is that “greater sophistication and improved access to information have sharpened consumer demands for safer food while food contamination problems have weakened consumer confidence” (Chapter 5, Vapnek and Spreij). Timothy D. Lytton analyzes the global system of kosher food certification to develop a “general model of reliable third-party verification of credence qualities” (Chapter 19). Lytton notes that third-party certification resolves the information problem whereby asymmetric information between producers and buyers regarding the presence of credence qualities in products leads to adverse selection and deception. It also makes it harder for producers to defect from providing reliable verification of product claims. Lytton points out that the “essential condition for reliable private third-party certification is consumer demand.” Lytton points out that this demand can come from various sources, including a large group of individual consumers, as in kosher certification, or powerful commercial buyers, such as retail stores or food service operations. Lytton explains that this demand by retail supermarkets and restaurant chains “has given rise to a highly developed global infrastructure of private third-party food safety certification.” Tommy Tobin points to another unique legal tool unique for conveying and arbitrating consumer information – the class action lawsuit in which a putative class representative brings a case (Chapter 20). Class action food litigation has recently seen tremendous growth in the US, especially to challenge alleged false or misleading labeling claims. Tobin observes the global implications of these suits, especially when they “attempt to litigate global supply chain concerns occurring outside the country.” Tobin refers to a recent US Supreme Court case ultimately dismissed on procedural grounds, where alleged human rights abuses occurred on foreign soil. Still, the food company was subject to US jurisdiction. Tobin refers to a few countries with “similar class-action ecosystems” and notes that the UK “has also seen an increase in collective action proceedings after the enactment of the Consumer Rights Act of 2015.” Tobin mentions, however, that not all countries view class action as a desirable tool, calling attention to the EU’s concerns over the “risk of abusive litigation” posed by the US system of class actions. 5. Environment and Climate Change As any law professor teaching food law can attest, there is a growing interest amongst students in the intersection between environmental law and food law. Several authors note the interrelationship between food law and environmental law. Reich illustrates this by documenting  See id.

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12  Research handbook on international food law the tight nexus between water and food law in twentieth-century Mexico (Chapter 7). Pollans notes that historically, exemptions favoring agriculture practices limit direct regulation of food production for environmental controls (Chapter 22). Tai addresses legal concerns about greenwashing claims of environmental sustainability (Chapter 15). Finally, Vapnek and Spreij remind us that the private standards governing food producers go beyond food safety and include environmental and social aspects of food production (Chapter 5). In a chapter dedicated to the new role of climate change in international food law, Francesco Bruno explores the obligations of the state and the constraints on food-producing firms in the EU, leading up to the Paris Agreement of 1997 (Chapter 21). Bruno also examines where courts may oblige states to adhere to international obligations regarding climate change. Bruno focuses on emerging food regulation of the environment from two standpoints: agrofood production methods, which damage the environment, and climate changes that damage the food supply chain. Finally, referring to the power dynamics in the global food system, Bruno notes the “dominance of the world of economics over that of politics (and of law).” 6. Technology and Science Technology is changing food and food systems in diverse ways at a rapid pace. Pinghui Xiao and Vicki Waye describe a global transformation occurring in the food sector – the digital economy – that is being facilitated at the international level, with FAO’s e-Agriculture projects and the promotion by the World Bank and the Organisation for Economic Co-operation and Development (OECD) of public–private collaboration (Chapter 23). The authors discuss the potential impacts of technology on efficiency, equity, and the environment as well as risks “related to data privacy, data monopoly, cyber-security and exclusion of the disadvantaged.” Finally, these authors note that “within the digital food economy, the food supply chain is overlaid by two digital components: the consumer-oriented digital component (also called consumer internet or food e-commerce); and the other component, which is industrially based (also called the industrial internet).” The authors demonstrate how these two components work, using China as a dominant player in the digital economy as the subject of analysis. The authors caution that “[i]t is too early to tell whether China’s relatively comprehensive regulatory mechanism for data governance works and whether it can be a model in other jurisdictions” and encourage a continuing study of this emerging transformation, especially with the rise of AI. Arguably the most hotly contested food-safety issue in modern times – genetically engineered food – is in the spotlight for Joanna K. Sax (Chapter 24). Sax frames an analysis of GE food safety narrowly as a matter of interaction between science and regulation, asserting that “supporting science favors the development of this technology.” Sax believes that there are “enormous consequences” in the differing policies towards GE food in the US and EU. The difference maker for Sax currently is climate change, calling it “the existential crisis of our time; while the food supply cannot solve climate change, the science of how we grow our crops can certainly contribute to lessening the impact of climate change.” Sax proposes a trade policy negotiated by members of the WTO that would “cite guiding principles, relying on science” for GE food. In support of the chapter’s general theme on the nexus between law and science, Sax relies on recent lessons learned from the use of vaccines to protect against serious illness of the COVID-19 virus as a scientific way out of the pandemic to employing science in the food sector.

Introduction 

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7. Animal Welfare Caoimhín MacMaoláin asserts that international measures are “modest at best” in protecting animals (Chapter 25). MacMaoláin threads a legal maze by starting with “[t]he baseline for international animal welfare standards” – the International Office for Epizootics (OIE) Agreement, which was agreed by 28 States in 1924 through negotiations at the League of Nations and FAO and WHO – to the OIE (or WOAH, the preferred acronym in Chapter 4). MacMaoláin notes that OIE now has over 180 Member Countries, but its remit “has been more on the side of animal health and disease prevention than the promotion of international animal welfare standards,” even though the OIE and all its Member Countries adopted a Global Animal Welfare Strategy in 2017. MacMaoláin links this limitation of international legal safeguards for animals to “[i]nternational trade agreements and the desire to produce plentiful supplies of cheap food.” Pollans expands on this notion via the special exceptions for farm animals from welfare legislation in developed countries that increase the concentration of animal production, which in turn “enhances profitability and reduces consumer prices, but it magnifies the extent of animal suffering and multiplies environmental externalities” (Chapter 22). MacMaoláin concludes by criticizing the WTO for recognising the protection of animal health as an influential aspect of international trade law, but deliberately overlooking how animals used in the production of food are treated in that process, encapsulat[ing] all that is wrong about the way in which the law has developed in this area.

8. Food Security By some estimations, food security is emerging as the dominant governance framework for food systems. The definition of food security is broad enough to claim an overarching position. In assessing the impact of climate change on food security, Bruno repeats the FAO’s definition of food security: “food security ‘exists when everyone, all the time, has physical, social, and economic access to safe and nutritional food, that satisfies their dietary needs, and food preferences, so as to have an active, healthy life’” (Chapter 21). Saab proclaims food security as integral to “human rights law, especially in the articulation of the right to food” (Chapter 2) Boyd encourages scholars to avoid viewing hunger or food security as a technical problem and to view it as a “problem of political economy—a question, as Anne Saab puts it, of ‘who gets to eat and why’” (Chapter 3). Boyd also notes that this framing removes food as a trade issue. Saab reaffirms this counter to the neo-liberal idea by advocating that “[f]ood regime analysis can aid those engaging with human rights law and particularly with the right to food to push for a global food system that puts food security at its centre rather than free trade.” 9. Human Rights Amy J. Cohen and Nadia C.S. Lambek weave together a fascinating glimpse of the thinking on the right to food by three of the past UN Special Rapporteurs (Chapter 26). Cohen and Lambek start with recognizing the right to food in 1948 when the UN community recognized this right as part of the right to an adequate standard of living in the Universal Declaration of Human Rights. The authors then move to the codification of the right in 1966 in the International Covenant on Economic, Social, and Cultural Rights (ICESR) to its adoption by international and regional instruments, as well as domestic constitutions and laws. The authors

14  Research handbook on international food law then report from their interviews “three distinct understandings of the right to food and its role in governing food systems that nevertheless all share radical ambitions to advance systemwide transformations, including how human rights themselves are understood.” Interestingly enough, as pointed out by the authors, the Special Rapporteurs’ visions for human rights were less focused on liberal legalism than on redistributing legal entitlements. Following nuanced assessment, Cohen and Lambek conclude that by focusing on the “power of claiming a right” and dismissing constraints, the Special Rapporteurs, in various ways, have contributed to making the right to food counterhegemonic. In their years as mandate holders, they offered visions for alternative food systems and, with them, alternative legal arrangements that better account for our planetary boundaries, redistribute legal entitlements more justly, and allow for those so often subordinated in our societies to exercise political agency.

Ofodile points to the broad sweep of human rights in the food supply chains, including “economic, social and cultural rights issues, as well as civil and political rights issues” (Chapter 14). Ofodile extends the call for transformation in human rights to “meaningful action from all food system participants, including business” and urges new approaches to corporate and social responsibility strategy that “demands businesses do more to address human rights and environmental abuses in their supply chains and that governments do more to support and compel these efforts.” This sort of collective effort echoes Sun’s description of food safety being a collective responsibility for all stakeholders (Chapter 16). Ofodile includes workers’ rights as an indispensable part of the global agro-economy and deserving recognition. 10. Food Sovereignty La Vie Campesina first introduced the concept of food sovereignty in 1996 at the World Food Summit. The concept was presented as “an alternate paradigm to frame issues about food and agriculture” and has since come into vogue as an alternative framework for the modern food system.11 Food sovereignty includes the right to food security, but it also “entails peoples’ right to participate in decision making and define their own food, agriculture, livestock and fisheries systems.”12 The call by Michael Fakhri, current UN Special Rapporteur for Right to Food, to establish “communion” at the food policy table resonates closely with this concept (Chapter 26, Cohen and Lambek). Where food sovereignty takes root as a definable regime is a question for international lawyers to grapple with “in their quest to contribute to ending global hunger and realizing food security” (Chapter 2, Saab). Noted by Saab and other authors and scholars, the relationship between food security, the right to food, and food sovereignty challenges the neo-liberal food regime.

  See Nora McKeon, Food Security Governance 81 (2015).  Nyéléni, Forum for Food Sovereignty 13 (2007), https://nyeleni​.org​/ DOWNLOADS​/ Nyelni​_ EN​ .pdf.

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PART I DEVELOPMENT OF INTERNATIONAL FOOD LAW

ROLE OF LAW IN GLOBAL GOVERNANCE OF FOOD 

2. What’s the use of food regime analysis for international law? Anne Saab

1. ‘INTERNATIONAL FOOD LAW’: IS THERE SUCH A THING? Food is everything and everywhere: it is at the centre and the heart of life. The global food system is an enormously complex web of intricately related and highly interdependent parts. The current conflict between Russia and Ukraine highlights blatantly this global complexity and interdependence of the food system. The most obvious casualties of this war are civilians whose lives are destroyed and displaced. But the ripple effects across the interconnected globe are far greater still. Russia and Ukraine together account for one-quarter of the global export of wheat, and some countries in the Middle East, Asia, and Africa are particularly dependent on these wheat exports. Conflict affects the production of food, as farmers may not be able to plant and harvest. High uncertainty and increasing competition in global markets increase prices. Rising fuel prices, destruction of infrastructure during conflicts, and economic sanctions all affect food security in indirect but very real ways. It is precisely those regions and peoples who were already most vulnerable to food insecurity and hunger who will suffer the worst consequences.1 The broad field of international law – including international lawyers and legal scholars from various perspectives and approaches – takes an interest in matters of food and food security. The question of food security most conspicuously features in the field of human rights law, especially in the articulation of the right to food. Food security has also come increasingly to the fore in international trade law, particularly since the inclusion of agriculture under the purview of the World Trade Organization at its creation in 1995. Considering the highly interdependent nature of the global food system, every area of international law is in some way connected to food: laws of war, use of force, economic law, migration, investment law, law and technology, environmental law, etc. A Research Handbook titled International Food Law implies that there is such a thing as ‘international food law’. But is there? And, if so, what is international food law? Many of the authors contributing to this book are involved in food law at the domestic level, a field that is much more developed both at the level of academia and at the level of practice than international food law is. One might consider ‘international food law’ to encompass international trade, the human right to food, food safety questions, and intellectual property rights as

1

 Joseph Glauber and David Laborde, ‘How Will Russia’s Invasion of Ukraine Affect Global Food Security’, (International Food Policy Institute [IFPRI] blog, 24 February 2022) ; Emma Simpson, ‘Ukraine War “Catastrophic for Global Food”’(BBC, 7 March 2022) ; World Food Programme, ‘Food Security Implications of the Ukraine Conflict’ (March 2022) .

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18  Research handbook on international food law applied to agriculture. My intention with this reflective contribution is not to argue that there should be a discipline or sub-discipline called ‘international food law’, but rather that all work that international lawyers do is related to food. When I refer to ‘international food law’ in this contribution, I therefore refer to international law in its entirety as a broad field.2 An important assumption that I make in this writing is that the purpose of any work we do as international lawyers is unrelated to international law in and of itself. International law is a tool, a language, and a vector through which to understand and organize our world. The underlying and fundamental objective of every international lawyer engaging with ‘food’ explicitly should, in my view, be to improve the global food system, contribute to achieving global food security and to ending global hunger. This may well be an ambitious (at best) and naïve (at worst) assumption, but it is my assumption here. In this contribution, I reflect on my own experiences as an international law scholar engaging with questions about food. It is important to specify that my experiences are from a European perspective, which I am aware may differ from other academic cultures and experiences. Questions that I have frequently received along my path of engaging with matters of food as an international law scholar include: what does food have to do with international law? Is there such a thing as international food law? Are you really a lawyer, or more of a sociologist/geographer/[fill in any discipline that engages with food and is not law]? My objective in this contribution is to argue that international law has everything to do with food, that there are good reasons to label all international law ‘international food law’, and that international lawyers can learn from other disciplines to study and understand the role of the international legal discipline in global food systems more effectively. Specifically in this contribution, I introduce food regime theory, developed and used mostly in the field of sociology, and contend that food regime analysis can be incredibly valuable for international lawyers dealing with food from diverse perspectives. If we assume that there is or ought to be something called ‘international food law’, then food regime analysis is one tool that can help in guiding legal explorations into the exciting realm of food. It is important to note upfront that international law is already deeply involved in the constitution of food regimes, despite a paucity of attention for food governance in traditional international legal scholarship. My introduction to food and agriculture as topics of study came, as many things in life do, rather coincidentally. After having completed an LLM with a specialization in International Law, I was offered a position at the Ministry of Agriculture in The Hague as part of a traineeship intended to prepare recent graduates for a career in civil service. My initial response to the job offer was surprise and – it embarrasses me to write it now – disappointment. Like many peers who had studied public international law, I had my eyes set on working at the Foreign Office, particularly in the International Law division. I did end up being seconded for six months to the International Law division of the Foreign Office, but I spent most of my two years working on topics of food and agriculture including consumer policy on sustainable food consumption.

2

 An analogy can be made to international environmental law. One can view international environmental law as a distinct field, encompassing the growing number of environmental agreements. But a broader definition of international environmental law would encompass all fields of international law that interact in some way with ‘the environment’.

What’s the use of food regime analysis for international law?  19 The topic of food never featured during my legal studies, neither in my undergraduate degree nor in my graduate degree specializing in international law. The exposure that I had to various topics related to food and agriculture during my time working for the Ministry of Agriculture roused my interest and inspired the topic of my PhD proposal. Rather than pursuing a career in civil service, I commenced my doctoral research immediately following the two-year traineeship. In my doctoral research, I explored the role of international law in shaping narratives on climate change-induced hunger. The immediate inspiration for this research project came from a former colleague who was an expert on plant variety rights. I became fascinated with questions of ownership and control over agriculture and the role that international law plays therein.3 One of the challenges that I faced during my doctoral research was finding what could be called a ‘theoretical framework’ within which to situate my study. This is especially a challenge in somewhat more eclectic and less traditional research topics. I was unable to find tools that I felt were adequate and suitable to study the broad issue of global hunger in the context of climate change within the field of international law. With encouragement from my supervisors, I spent some time navigating literature and scholarship in the broad field of food studies to gather inspiration. It was when I looked beyond the boundaries of the legal discipline that I came across food regime theory and began delving into this fascinating world. I then used food regime analysis – which I will explain in more detail in the second section of this chapter – as a tool to study the role of international law in shaping narratives of hunger in the context of climate change. The real introspection on what it means to study ‘food’ as an international lawyer began after completing the PhD and starting my first academic position. There is an expectation that academics position themselves within an institution, a department, or a discipline. And I was and continue to be faced with the question of what ‘international food law’ is and if it is even a ‘real thing’. The most immediate areas that come to mind when one thinks of ‘international food law’ include food as a human rights issue, food as a matter of international trade law (especially under the umbrella of the law of the World Trade Organization), and food as a niche area of intellectual property law. These are precisely some of the issues I explored also in my PhD. We might also think of ‘international food law’ from a governance perspective, focusing on international institutions such as the World Health Organization and the Food and Agriculture Organization. A more technical and legalistic understanding of ‘food law’ is the food safety angle, for instance, extensive EU legislation on food and agriculture. There is enormous value in each of the sub-disciplines and particular areas of expertise and perspectives from which international lawyers engage with food, many of which are illustrated excellently by the many colleagues who contributed to this book. International law has played and continues to play a role in constituting global food systems, and various areas of international law push and pull food regimes in different directions. This is evident in the incorporation of food and agriculture in international trade law, the development of the human right to food, and environmental law at various sites interacting with matters of food and agriculture, to name a few. Opinions differ on which global food systems are best and how food governance is best regulated, for instance, the clash between viewing food as a commodity under trade law or instead framing food as a human right. Whatever the opinion, the 3

 In the Prologue of my book Narratives of Hunger in International Law: Feeding the World in Times of Climate Change (Cambridge University Press 2019), I set out my research journey in more detail.

20  Research handbook on international food law consensus is that international law plays an important role in constituting food systems and regulating global food governance. As important and necessary as each of these explorations of food in international law is, it is also fundamentally important to understand the linkages between these areas and beyond the field of international law. In the introductory paragraphs of this chapter, I highlight the complexity of the global food system and iterate my starting assumption that the purpose of this thing we might call ‘international food law’ is to work towards achieving food security and ending hunger globally. So how might we study this international food law that is everything and everywhere? How can we situate all the important and various work that international lawyers do in relation to food within some broader structures and frameworks? In what follows, I want to offer a suggestion of how international law as a broad field can seek to understand the intricate connections between the various issues included under the purview of ‘international food law’. Food regime theory offers an analytical tool that allows us to connect the many different angles through which international law deals with food. Food regime analysis views food as a form of power and lends itself well to understanding the role of international law in the power play involved in the global food system. In this chapter, I will present a brief introduction to the rich and exciting world of food regime theory and suggest ways in which international lawyers can benefit from the analytical tools that it offers. This is not intended as a suggestion for the only way to understand and explore food systems and international law’s relation to food, but rather to present an example of how international lawyers might more meaningfully and more deliberately engage with tools outside of the discipline to contribute more effectively to achieving food security and ending hunger.

2. FROM FOOD REGIME THEORY TO FOOD REGIME ANALYSIS Food regime theory is an approach to theorizing global food systems that originated in the 1980s. Pioneers of food regime theory are sociologists Harriet Friedmann4 and Philip McMichael.5 Food regime theory has strong Marxist influences, and it can be described most simply as a way through which to structure and understand the strategic role of food and agriculture in the development of a global capitalist economy. Henry Bernstein identifies driving questions of food regime analysis as follows: • • •

Where and how is (what) food produced in the international economy of capitalism? Where and how is food consumed, and by whom? What types of food? What are the social and ecological effects of international relations of food production and consumption in different food regimes? 6

The normative underpinnings of food regime theory were a sense of unease and efforts to resist the rise of neoliberal tendencies in the global food system, notably increasing commodification and privatization of food and agriculture. Since Friedmann’s and McMichael’s

 See, for Harriet Friedmann’s profile: .  See, for Philip McMichael’s profile: . 6  Henry Bernstein, ‘Agrarian Political Economy and Modern World Capitalism: The Contributions of Food Regime Analysis’ (2016) 43 The Journal of Peasant Studies 611, 613. 4 5

What’s the use of food regime analysis for international law?  21 seminal texts,7 work on food regime theory has developed significantly and the tools offered by this approach have been used to highlight a range of issues in global food systems. In this contribution, I prefer the term ‘food regime analysis’ over ‘food regime theory’ to emphasize the analytical tools that it offers rather than suggesting that there is a static or a singular clearly defined theory. One does not need to subscribe to the Marxist underpinnings of food regime theory or be a sociologist or an expert in food regime theory to use the analytical tools to better understand, situate, and ultimately shape the role of international law in contribution to tackling the enormous and pressing problems of global hunger and food insecurity. While I personally share the deep concern with the ‘neoliberalization’ of the global food system and its consequences, my intention here is not to add to the normative justifications for using food regime analysis to push any change to global food systems. My point in this contribution is to argue that as an analytical tool food regime analysis can be hugely valuable to international lawyers engaging with matters of food and agriculture. An important starting point for food regime analysis is the Marxist-informed idea that capitalist economies are inherently unstable because of over-accumulation. These instabilities then cause struggle and resistance. Food regime analysis draws from a combination of regulation theory and world systems theory. Regulation theory broadly seeks to study the ways in which societies deal with the instabilities in capitalist economies. Law, including international law, plays an important role in creating the rules and the framework for food regimes. World systems theory puts the analytical lens on global systems and networks. Food regime analysis then seeks to understand how food is implicated in creating capitalist systems and in dealing with the instabilities and tensions that are inherent in them. A common line of critique against food regime analysis focuses on the world systems approach that some critics argue neglects important local realities. It is important therefore to view food regime analysis for what it is: an analytical tool to study global food systems, without suggesting that a single analytical tool can uncover all levels of food dynamics, local and global. McMichael on this point has emphasized that food regime analysis ‘makes no claim to comprehensive treatment of different agricultures across the world’.8 There is a strong historical component to food regime analysis, and Friedmann and McMichael began their important work by retrospectively identifying periods of relative stability they labelled food regimes. Periods of instability and crisis marked transitions from one regime to the next. Professor of geography Bill Pritchard has written that: The essential feature of the food regimes approach is that it is best used as a tool of hindsight. It can help order and organize the messy reality of contemporary global food politics, but applications are necessarily contingent upon an unfolding and unknowable future.9

As a tool of hindsight, Friedmann and McMichael initially identified two food regimes. The first food regime was labelled the colonial-diasporic food regime and it ran from 1870 to 1914.  Harriet Friedmann, ‘International Regimes of Food and Agriculture Since 1870’ in Teodor Shanin (ed.) Peasants and Peasant Societies (Oxford: Basil Blackwell 1987); Harriet Friedmann and Philip McMichael, ‘Agriculture and the State System: The Rise and Fall of National Agricultures, 1870 to the Present’ (1989) 29 Sociologia Ruralis 93. 8  Philip McMichael, ‘A Food Regime Genealogy’ (2009) 36 The Journal of Peasant Studies 139, 140. 9  Bill Pritchard, ‘Food Regimes’ in Rob Kitchin and Nigel Thrift (eds) The International Encyclopedia of Human Geography (Elsevier 2009), 225. 7

22  Research handbook on international food law The context of this first food regime was European colonialism. Key features of the first food regime were the distribution of seeds and crops from the colonies to Europe, the dissemination of farming practices from Europe to the colonies, and wheat production and export from settler colonies to Europe. The first food regime marked a period of increasing specialization in agricultural production and the rise of nation states in Europe. A growing European population and labourers were supplied with cheap food from the colonies, and there was growing competition for trade between European states. The colonial-diasporic food regime focused on the development of exchange in food and agricultural production from the colonies for capital goods in the form of labour and expertise to the colonies.10 The period of stability that marked the first food regime collapsed as a result of a constant decrease in food prices, which led small farmers in Europe to leave their land and migrate to North America where wheat was produced and exported at a large scale. After a period of instability that included the First and the Second World Wars, the second food regime identified by Friedmann and McMichael materialized in 1945. They coined this second food regime the mercantile-industrial food regime. Key features of the second food regime were decolonization and the emergence of independent nation-states, increased agricultural specialization, growing surplus of food and consequently increased global trade, and displacement of national agricultural markets (especially in the recently decolonized Third World) because of cheap US wheat and food aid (or dumping). The second food regime took place in the context of the Cold War and the hegemony during this period of relative stability was with the US. During the second food regime, food and agriculture were increasingly ‘industrialized’ with rapid developments in agricultural technologies under the banner of the Green Revolution.11 McMichael coined the term ‘food from nowhere’, which signifies the globalization and uniformity in food products across the globe that started during this food regime.12 In their 1989 article, Friedmann and McMichael denote the beginning of the end of the second food regime to be 1973. This period was marked by a global food crisis that saw prices of basic foodstuff soar and countries unable to keep up with demand. The first World Food Summit took place in 1974 in which food insecurity was framed as a global problem, as opposed to a national/domestic issue. Friedmann in a later article noted that the contours of the second food regime became clear in this period of crisis. Unlike the first food regime, however, there are different views on when and how the second food regime precisely ended. In later articles, Friedmann suggests that the second food regime was definitively over with the creation of the World Trade Organization in 1995,13 while McMichael refers to the creation of the WTO as the ‘the institutionalization of the corporate [third] food regime’.14 Other

 Friedmann and McMichael 1989 (n7) 95–103.   Ibid., 103–110. 12  Philip McMichael, ‘Global Development and the Corporate Food Regime’ in Frederick H. Buttel and Philip McMichael (eds) New Directions in the Sociology of Global Development (Elsevier 2005), 283. 13  Harriet Friedmann, ‘From Colonialism to Green Capitalism: Social Movements and Emergence of Food Regimes’ in Frederick H. Buttel and Philip McMichael (eds) New Directions in the Sociology of Global Development (Elsevier 2005), 246. 14  McMichael 2005 (n12), 274. 10 11

What’s the use of food regime analysis for international law?  23 authors contend that the second food regime ended in 1996 with the FAIR Act that ended price supports in US agriculture.15 Getting a sense of how food regime pioneers identify food regimes is important in understanding the role that international law plays in constituting food regimes and in the transitions from one regime to the next. A historical perspective is also informative in getting a sense of how food regime analysis might be used more deliberately by international lawyers. It is important to emphasize here that the precise period of a food regime and the identification and labelling of food regimes is not the main objective, and these first and second food regimes as identified by Friedmann and McMichael are certainly not the only food regimes. The aim is to demonstrate how food regime analysis can be used to understand linkages and features of time periods, and with this historical knowledge to aim to make changes in current global food relations. The historical perspective of food regime analysis allows us to see and seek to understand global power relations and the role of agriculture as well as the role of international law in shaping these power relations. Since setting the fundaments of food regime theory and demonstrating how food regime analysis might be applied through the identification of the first and the second food regimes, the debate in recent years has focused on the possible emergence of a third food regime and its contours and implications. The third food regime has been labelled the ‘corporate food regime’, ‘corporate-environmental food regime’, and ‘neoliberal food regime’, among other names. Some of the main features of the third food regime are increasing privatization and corporatization of global food systems. With the establishment of the World Trade Organization in 1995, agriculture came under the umbrella of global trade. Food and agriculture became tradeable commodities, particularly with the creation of the Agreement on Agriculture, which aims to reconcile the objectives of free trade with food security.16 Periods of instability marked by tensions and opposition are central to food regime analysis. Opposition against the neoliberal features of current global food relations – whether we label this a third food regime, and precisely by what name – can be brought under the umbrella heading of food sovereignty movements. The concept of food sovereignty was initiated as a peasants’ movement, with a common narrative being that the peasant movement La Via Campesina coined the term at the World Food Summit of 1996.17 Food sovereignty had been broadly defined as ‘the right of peoples to healthy and culturally appropriate food produced through sustainable methods and their right to define their own food and agriculture systems’.18 There are by now many varied definitions of food sovereignty and ways in which various actors push food sovereignty movements.19 The importance of food sovereignty is that

 Ángel Luis González-Esteban, ‘Patterns of World Wheat Trade, 1945–2010: The Long Hangover from the Second Food Regime’ (2017) Journal of Agrarian Change 18, 87. 16  ‘Agreement on Agriculture’, 15 April 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1a, in The Legal Texts: The Results of the Uruguay Round of Multilateral Trade Negotiations 33, 1867 U.N.T.S. 410 (1999). 17  Note, though, that the term has been used prior to this time by different actors. See, for more information: Marc Edelman, ‘Food Sovereignty: Forgotten Genealogies and Future Regulatory Challenges’ (2014) 41 Journal of Peasant Studies 959. 18  Declaration of the Forum for Food Sovereignty, Nyéléni 2007 (Nyéléni Declaration) . 19  Raj Patel has referred to food sovereignty as a ‘big tent’ concept: Raj Patel, ‘What Does Food Sovereignty Look Like?’ (2009) 36 The Journal of Peasant Studies 663, 666. 15

24  Research handbook on international food law it serves as a hard push-back against the third/neoliberal food regime and seeks to promote a different understanding of what food security means and how it ought to be achieved.20 We are living in a time of enormous challenges facing the global food system and the dominant global economic model of neoliberalism is under intense pressure from various fronts. It is difficult to define the contours of the third food regime while in the midst of instability, but food sovereignty activists are putting various options on the table, from further consolidation of corporate control over global food systems to a radical overhaul based on the idea of food as a right instead of a commodity.21 Friedmann has astutely noted that ‘When names catch on, it is a sign that the regime is in crisis’.22 It seems evident that both the names ‘neoliberal’ and ‘food sovereignty’ have caught on, and there seems no doubt that the global food system as it is currently organized is in crisis. There are many different approaches to studying the dynamics of current global food relations through regime analysis, regardless of one’s position on whether a third food regime has materialized and what its main features might be. Countless different angles to studying the global food system exist, including the role of supermarkets, a focus on corporate actors, an environmental/climate change angle, a human rights focus, labour, the role of the state, different geographies, food waste, traditional knowledge, food safety questions, rising issues linked to obesity and non-communicable diseases, digitalization and food regime, to name just a few.23 One can imagine the application of food regime analysis in many ways, not exclusively those that subscribe to the perspectives and experiences of its pioneers. And each of these applications is closely related to fields of international law: trade law, human rights law, environmental law, labour law, health law, internet law, etc. What analytical tools can food regime analysis then offer, regardless of one’s normative positions about how the global food system is and ought to be? A crucial insight is that food regime analysis is not centrally about food, but rather about power. It is about seeking to uncover and understand the role that food and agriculture play in power relations, which is precisely where the analytical potential of food regime analysis lies. Friedmann and McMichael looked to history to identify trends and shifts in global power structures and the role of agriculture

 Hannah Wittman, ‘Food Sovereignty: A New Rights Framework for Food and Nature?’ (2011) 2 Environment and Society: Advances in Research 87. 21  Eric Holt-Giménez and Annie Shattuck, ‘Food Crises, Food Regimes and Food Movements: Rumblings of Reform or Tides of Transformation?’ (2011) 38 The Journal of Peasant Studies 109. 22  Friedmann 2005 (n13) 232. 23  See, for instance: David Burch and Geoffrey Lawrence, ‘Towards a Third Food Regime: Behind the Transformation’ (2009) 26 Agriculture and Human Values 267; Bill Pritchard, Jane Dixon, Elizabeth Hull, and Chetan Choithani, ‘“Stepping Back and Moving In”: The Role of the State in the Contemporary Food Regime’ (2016) 43 The Journal of Peasant Studies 693; Henry Bernstein, ‘Agrarian Political Economy and Modern World Capitalism: The Contributions and Food Regime Analysis’ (2016) 43 The Journal of Peasant Studies 611; Hugh Campbell, David Evan, and Anne Murcott, ‘Measurability, Austerity and Edibility: Introducing Waste into Food Regime Theory’ (2017) 51 Journal of Rural Studies 168; Jostein Jakobson, ‘Neoliberalising the Food Regime “Amongst Its Others”: The Right to Food and the State in India’ (2019) 46 The Journal of Peasant Studies 1219; Philip McMichael, ‘Does China’s “Going Out” Strategy Prefigure a New Food Regime?’ (2020) 47 The Journal of Peasant Studies 116; Jostein Jakobsen, ‘New Food Regime Geographies: Scale, State, Labor’ (2021) 145 World Development 1; Louisa Prause, Sarah Hackfort, and Margit Lindgren, ‘Digitalization and the Third Food Regime’ (2021) 38 Agriculture and Human Values 641. 20

What’s the use of food regime analysis for international law?  25 therein, with the normative objective to find ways to improve our current global food system and ultimately find the best answer to the question ‘How to feed the world?’.

3. HOW WE MIGHT USE FOOD REGIME ANALYSIS IN INTERNATIONAL LAW Having provided an overview of what food regime analysis is and the various ways it has been used, the final question in this contribution is what use food regime analysis may have for international law. I return to my starting assumption that the principal purpose of international lawyers engaging with questions of food and agriculture is to contribute to a better global food system to achieve food security and work towards ending global hunger. This purpose can be pursued through various angles and fields of international law, as the chapters in this book demonstrate. Whether as a labour lawyer considering the working conditions for food producers, a human rights activist fighting for recognition of indigenous rights and respect for indigenous food culture, or a trade lawyer negotiating how best to regulate agricultural subsidies, international law is working in the sphere of food and food security. There is no singular path to achieving food security, and each investigation and application of international law will bring a particular perspective on what food security entails and how to achieve it. This can be through promoting free trade, through a human rights lens, through a gender lens, or through the lens of international institutions and global governance. With the assumptions that international law engages with food continually and in various ways and that the ultimate purpose of this engagement is a contribution towards realizing food security, food regime analysis can serve as a connecting point. Food regime analysis as a tool can help to situate and connect explorations of international law to food matters with the bigger picture of the global food system. It can help to connect the various ways in which international lawyers engage with food to each other and with the overarching global power play in which food is so centrally implicated. Each area of international law that engages with food in some way deals with parts of the power of food, and the historical perspectives offered by food regime theory help in understanding how food regime analysis may position the place of international law in this overarching power perspective. Some specific examples of the questions and linkages that food regime analysis may raise for international law include: what are the effects of agricultural subsidies (international trade law) on what types of food are produced, at what prices, and available to whom (centrally relevant to global health law)? What role does or should traditional knowledge about food play in developing and enforcing intellectual property rights in agriculture? How can these former questions be meaningfully linked to issues related to the environment and environmental law broadly, for instance, looking at the role of agriculture in the causes and effects of climate change? What might we be able to learn from traditional ways of growing food in a more environmentally sustainable manner? How do various international institutions dealing with food, such as the FAO, the WHO, and the WTO, draw on international law, and what do they contribute to shaping the global food system? As a teacher of international law and especially one at an institution with interdisciplinary research and matters of international relations and development at its core, I see an increasing interest in young generations of scholars and practitioners with a strong interest not so much in one discipline but in big issues. This includes a growing interest in studying global food

26  Research handbook on international food law systems and engaging with the role of international law therein, without necessarily becoming an international lawyer or – if one is an international lawyer – limiting the engagement to one perspective. This interest from students is an important indication of the direction that the study of food in international law, or international food law, could and in my view should take.24 The central interest is on global issues, including the question of food security, and the role that various disciplines including international law play in creating and tackling these global issues. My suggestion that food regime analysis can be a useful tool to understand and situate various engagements of international law and international lawyers with food is not to suggest that international law as a distinct discipline does not matter. On the contrary, I am a strong believer in international law and the many functions that international law performs in all matters relating to food. My strong belief and confidence in the discipline of international law is precisely the reason why I argue for the need to connect the work of international law more closely with the (changing) realities of the world. It is necessary and valuable to study and regulate the many facets of food and agriculture through international law as distinct fields. But given the reality of globalization and the immense interconnectedness of the world, including, at the centre, our global food system, it does not suffice to limit ‘international food law’ to its distinct and separate parts. In the first part of this chapter, I mentioned the enormous and varied direct and indirect effects of the Russia/Ukraine conflict on global food systems, not only on the most evident effects on wheat production and price but on the entire infrastructure of the global food system. This example demonstrates that food is everything, every single area of international law relates to the global food system, and what we might refer to as ‘international food law’ is in fact the entirety of international law. The discipline of international law and each sub-field of international law and its engagement with questions of food will gain relevance and value if we can situate this within larger dynamics. Food regime analysis is one way for international law to understand, structure, mobilize, and reorient global food systems. What would an overarching, connecting function that food regime analysis can offer look like in studying various food issues in international law? I will present some specific ways in which food regime analysis can add a useful lens to existing work under the banner of ‘international food law’. I will focus on international trade law, human rights law, and the role of the state and non-state actors in international law. I will draw on the work of the UN Special Rapporteur on the Right to Food to demonstrate the value of food regime analysis in engaging with the many questions of food within international law. International trade law, and more especially the law of the World Trade Organization (WTO), is often viewed as standing apart from other ‘softer’ areas of international law. With an advanced dispute settlement procedure, WTO law behaves more like ‘hard law’ than, for instance, human rights law does. The establishment of the World Trade Organization and particularly the inclusion of agriculture in its agreements is also at the core of the ‘neoliberal food regime’ that dominates the current global food system. When international lawyers engage

24

 I started teaching a course called Global Food Systems from a Legal Perspective aimed at the interdisciplinary MA programmes at the Graduate Institute in my first year on the faculty in 2015/2016. In the years since, the class size has grown from between 10 and 15 students to around 40 students per year. This includes not only students in the interdisciplinary programmes but also students in international law programmes.

What’s the use of food regime analysis for international law?  27 with matters of food, it is almost unavoidable to engage with WTO law. The WTO system has played and continues to play a crucial role in the organization and regulation of global food: from viewing agriculture as a tradeable commodity under the Agreement on Agriculture and highlighting the free trade perspectives in questions relating to food safety and agricultural subsidies under the Agreement on Sanitary and Phytosanitary Measures (SPS) and the Agreement on Technical Barriers to Trade (TBT) to inviting the private sector into patenting plant genetic resources for food and agriculture under the Agreement on Trade-Related Aspects of Intellectual Property (TRIPS). I was not trained as an international trade lawyer, but when I ventured into the world of food there was no other choice but to engage with WTO law. Much of the debate within food regime theory today engages with the question of how to move towards a more effective global food system, whether this is in the form of entrenching further neoliberal trends or radically moving towards a ‘food sovereignty’ regime. International lawyers also engage with these questions in their quest to contribute to ending global hunger and realizing food security. Food regime analysis can be enormously helpful in understanding the context in which the current dominant global food system has come about, and especially in appreciating the central role of international law – and particularly WTO law – therein. Without an understanding of the history and the power dynamics involved in the constant shaping and reshaping of food regimes, it will be difficult to offer effective challenges to a neoliberal regime. Human rights law is most often used to challenge what are viewed as undesirable features of the current global food system. The most immediately obvious venue is that of the right to food. The right to food is frequently presented as a central part of food sovereignty movements that challenge and seek to offer alternatives to the neoliberal food regime. Whereas WTO law frames food as a tradeable commodity, the right to food instead frames food as a right in itself – not as a tool in the achievement of maximum free trade. Food regime analysis can aid those engaging with human rights law and particularly with the right to food to push for a global food system that puts food security at its centre rather than free trade. Food regime analysis is valuable in understanding the role and the position of food sovereignty movements. An important insight of food regime analysis is that it is not really about food but about power relations. In this sense, food regime analysis is also relevant in understanding that the whole set of human rights are implicated, not only the right to food. The current UN Special Rapporteur on the Right to Food, Michael Fakhri, is doing an impressive amount of work in engaging actively with connecting themes and utilizing the tools of food regime analysis. Since commencing his position in May 2020, he published a first report that sets out clearly the trade/economy-focused dominant global food system and highlights the inadequacies of human rights policies in providing an institutional alternative.25 In a later 2021 report, Fakhri focuses on food systems and lays bare the structural changes that are required to address the unfair power dynamics in current global food relations.26 While not  UN Special Rapporteur on the Right to Food, ‘Interim report of the Special Rapporteur on the right to food: The right to food in the context of international trade law and policy’, UN General Assembly A/75/219, 22 July 2020 . 26  UN Special Rapporteur on the Right to Food, ‘Interim report of the Special Rapporteur on the right to food: The right to food’, UN General Assembly A/76/237, 27 July 2021 . 25

28  Research handbook on international food law mentioning food regime analysis explicitly, the Special Rapporteur effectively engages with precisely the overarching analysis of food systems that food regime analysis offers. It would be useful for the work of the Special Rapporteur, but also for anyone engaging with matters of food from the perspective of international law, to draw on food regime analysis more explicitly. This allows more space to engage with and seek to understand the role that international law plays in the power relations of food. A last example of how food regime analysis can aid international lawyers engaging with questions of food is through an understanding of the role of the state and non-state actors. This is another point on which the UN Special Rapporteur on the Right to Food is focusing his current work, pushing for ‘meaningful space for participation by communities and civil society’, for instance.27 States are central to international law, but the role of non-state actors has become increasingly important and relevant and is one of the big challenges facing the field of international law today. Questions about the role and power of various actors also feature prominently in food regime analysis. Friedmann and McMichael’s seminal article from 1989 is entitled ‘Agriculture and the State System’.28 Anne Orford has written about questions of food security and global food systems essentially being about the role of the state.29 Food regime analysis offers a tool for international lawyers grappling with the role and responsibility of corporations, international organizations, civil society, local governments, media, etc. and the role of the state in regulating global food systems. I have no illusions that food regime analysis will offer some magical insights or silver bullet solutions to achieving an improved food system, achieving food security, and ending global hunger. I do strongly believe that if we as international lawyers – in whichever way we are engaging with food and agriculture – want to genuinely contribute to achieving great food security in any and all its forms, it is necessary to find and use tools to allow us to understand the complex dynamics of global food systems and the role that international law plays therein. I hope that what I have contributed with this chapter is an encouragement to look beyond the confines of what one might consider a narrowly defined field of ‘international food law’, and to demonstrate that food is everywhere and everything and therefore all of international law is international food law. I encourage fellow international lawyers to use all tools that can be used to explore and understand the ways in which international law engages with food and to contribute towards achieving global food security and ending global hunger.

  Ibid., 2.  Friedmann and McMichael 1989 (n7). 29  Anne Orford, ‘Food Security, Free Trade, and the Battle for the State’ (2015) 11 Journal of International Law and International Relations 1. 27

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3. Food law’s agrarian question: capital, global farmland, and food security in an age of climate disruption1 William Boyd

I. INTRODUCTION In January 2021, it was widely reported in the press that Bill and Melinda Gates had become the largest private farmland owners in the United States, with total holdings of more than 240,000 acres across 18 states.2 Using a series of shell companies, the former couple’s investment group, Cascade Investments, had been quietly buying large tracts of land over the previous decade, often from big institutional investors such as John Hancock Life Insurance or the Canada Pension Plan Investment Board.3 When the story first hit, Gates was busy promoting his new book, How to Avoid a Climate Disaster, which includes a chapter on “how we grow things.”4 Pressed as to why he was buying so much farmland and whether it was connected to his concerns about climate change, Gates stated emphatically that there was no connection between his land purchases and the climate crisis.5 He did acknowledge, however, the link between agriculture and climate change and pointed out that the Gates Foundation had recently established a new non-profit agricultural research institute, known as Gates Ag One, that will focus on “smallholder farmers in developing countries” and “help the foundation deliver on its mission to empower smallholder farmers with the affordable, high-quality tools, technologies, and resources they need to lift themselves out of poverty.”6 While there is nothing particularly novel about the super-rich buying massive spreads of land, the Gates anecdote is indicative of something more: the emergence of global farmland as an asset class for the blue-chip investment community. In fact, investments in farmland by  Special thanks to Addie Black, Kimberly Turner, Daniel Alleva, and Samantha Lusher for excellent research assistance. Drafts of this Chapter were presented at faculty workshops at UCLA and the University of California at Santa Barbara. Thanks to the participants for valuable feedback. Thanks also to Margot Pollans for helpful comments and to Michael Roberts for important feedback and for the opportunity to contribute to this Research Handbook. 2   See Eric O’Keefe, Bill Gates: America’s Top Farmland Owner, The Land Report (Jan. 11, 2021), https://landreport​.com ​/2021​/01​/ bill​-gates​-americas​-top​-farmland​-owner/. 3   Id. 4   Bill Gates, How to Avoid a Climate Disaster: The Solutions We Have and the Breakthroughs We Need (2021). 5   See Jake Ellis, Bill Gates Tells Reddit Why He’s Bought So Much Farmland, AgroFunder News (Mar. 22, 2001), https://agfundernews​.com ​/ bill​-gates​-tells​-reddit​-why​-hes​-acquired​-so​-much​-farmland​.html. 6   See Bill & Melinda Gates Foundation Statement on Creation of Nonprofit Agricultural Research Institute (Jan. 20, 2021), www​.gatesfoundation​.org​/ Ideas​/ Media​-Center​/ Press​-Releases​/2020​/01​/ Gates​-Foundation​-Statement​-on​-Creation​-of​-Nonprofit​-Agricultural​-Research​-Institute. 1

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30  Research handbook on international food law large institutional investors and wealthy individuals—both in the US and around the world— have surged since the financial crisis.7 Between 2005 and 2017, the number of investment funds specializing in farmland grew more than ten-fold, with some $73 billion in assets under management.8 Although the overall numbers are quite small compared to the finance sector as a whole, the significant increase in these investments and the proliferation of new investment vehicles over such a relatively short period of time has led to an extensive amount of scholarship and popular commentary (most of it outside of law) on the “financialization” of farmland, its role in a new “global land rush,” and what this all means for the world food economy.9 Much of this is being driven by large institutional investors, pension plans, and endowments. TIAA, the large US-based teachers’ retirement fund, launched its first global farmland fund in 2010 and within a decade had become the largest private farmland owner in the world.10 Along with the Harvard Endowment, TIAA has acquired substantial landholdings in Brazil using various shell companies and joint ventures.11 Both have been linked to deforestation and local land grabbing according to reports from INCRA, the Brazilian land agency, and at least one Brazilian court has found that some of their lands were acquired illegally.12 As an asset, global farmland is viewed not only as strong on fundamentals given expected increases in the global demand for food but also as a reliable hedge against inflation and a diversification strategy given its low correlation with other assets.13 The Savills global farmland index, which covers Australia, Eastern and Western Europe, North America, and South   See HighQuest Partners & Julie Koeninger, History of Institutional Farmland Investment (2017); see also Madeleine Fairbairn, Fields of Gold: Financing the Global Land Rush 21–49 (2020) (tracing history of institutional investment in farmland and documenting surge in investment in the mid-2000s and after the global financial crisis).  8   See Stefan Ouma, This Can(’t) be an Asset Class: The World of Money Management, “Society,” and the Contested Morality of Farmland Investments, 52 Env’t Plan. A: Society & Space 66, 67 (2020). See also Tim Gray, Farmland Is Valuable, But Buying It Is Tricky for Fund Investors, N.Y. Times, 8 Oct. 2021.  9   See, e.g., Saskia Sassen, Land Grabs Today: Feeding the Disassembling of National Territory, 10 Globalizations 25 (2013); Fairbairn, supra note 7; Jennifer Clapp & S. Ryan Isakson, Speculative Harvests: Financialization, Food, and Agriculture (2018); Ben White, Saturnino M. Borras Jr., Ruth Hall, Ian Scoones & Wendy Wolford, The New Enclosures: Critical Perspectives on Corporate Land Deals, 39 J. Peasant Stud. 619 (2012); Lorenzo Cotula, The International Political Economy of the Global Land Rush: A Critical Appraisal of Trends, Scale, Geography and Drivers, 39 J. Peasant Stud. 649 (2012); Andrea P. Sosa Varrotti & Carla Gras, Network Companies, Land Grabbing, and Financialization in South America, 18 Globalizations 482 (2021). See also special symposium issues devoted to land grabbing in the Journal of Peasant Studies, Development & Change, and Globalizations. 10   See TIAA/Nuveen/Westchester, 2021 Farmland Report 6–7 (2021). 11  By 2016, the Harvard Management Company had acquired some 40 different properties covering more than 400,000 hectares of land in the Matopiba region of Brazil. See Associa o de Advogados de Trabalhadores Rurais, GRAIN and Rede Social de Justi a e Direitos Humanos, TIAA and Harvard’s Brazilian Farm Deals Judged Illegal 7 (Dec. 2020). 12   See, e.g., Simon Romero, TIAA-CREF, U.S. Investment Giant, Accused of Land Grabs in Brazil, N.Y. Times, Nov. 16, 2015; Tatiana Freitas, U.S. Pension Fund TIAA Embroiled in Brazil LandBuying Probe, Bloomberg, Dec. 17, 2020; Associa o de Advogados de Trabalhadores Rurais, GRAIN and Rede Social de Justi a e Direitos Humanos, TIAA and Harvard’s Brazilian Farm Deals Judged Illegal (Dec. 2020). 13   See OECD, Private Financial Sector Investment in Farmland and Agricultural Infrastructure, OECD Food, Agriculture and Fisheries Working Papers, No. 33 at 13–18 (2010); HighQuest Partners, Global AgInvesting Rankings & Trends Report 49 (2019).  7

Food law’s agrarian question  31 America, achieved a 10% compound annual growth rate between 2002 and 2020, outperforming the S&P 500 index as well as bonds and other commodities.14 And, of course, in addition to appreciating as an asset over time, farmland can also generate rent paid by farmers: “gold with a coupon” as one observer put it.15 Creating this new asset class has taken an enormous amount of work—technical, legal, financial, and political—across different jurisdictions around the world.16 Longstanding practices of classifying land in terms of ownership, occupancy, and utilization, which have been used to justify colonial rule and dispossession for centuries, have persisted in national land systems and are being updated and revised to justify new investments, often in “under-utilized” or “marginal” lands.17 Multilateral institutions such as the UN Food and Agriculture Organization (FAO) and the World Bank have developed global maps of soil conditions and arable lands that can be overlayed with data on farming practices and yields to indicate where there are “yield gaps” that translate into opportunities for investment.18 Standard financial models have been combined with large amounts of data on soil conditions, weather trends, climate forecasts, and market access to estimate future returns.19 Careful assessments of political risk have been used to evaluate potential investments and design insurance instruments.20 And new satellite monitoring capabilities now provide access to high-resolution images of the entire surface of the earth on a daily basis.21 In short, the overall goal of making global farmland legible for the investment community seems well within reach. But farmland is peculiar and subject to uncertainties in ways that other assets are not, especially in an era of climate disruption.22 This creates both risks and opportunities. Indeed, notwithstanding Gates’s claims regarding the lack of any connection between his farmland investments and the climate crisis, the global farmland investment opportunity has increasingly been framed against a stark neo-Malthusian backdrop of overpopulation, accelerating climate change, a shrinking base of arable land, and inefficient smallholders.23 Much of the farmland investment literature, for example, starts with the widely cited United Nations   See Savills, Global Farmland Index 2 (Sep. 2021).   See David Kesmodel, Farmland Investments Take Root; TIAA-CREF Gets $3 Billion for New Cropland Fund; “Gold with a Coupon,” Wall St. J., Aug. 4, 2015. 16   See Tania Murray Li, What Is Land? Assembling a Resource for Global Investment, 39 Transactions Inst. British Geog. 589, 593 (2014); Ouma, supra note 7. 17   See Li , supra note 16 at 593 (“‘Underutilised land’ as a category has existed in many national land systems since colonial times, making relevant maps and numbers readily available to be drawn into the global land investment assemblage”). 18   See Perrin Selcer, Fabricating Unity: The FAO-UNESCO Soil Map of the World, 40 Hist. Soc. Rsch. 174, 180 (2015); See Li , supra note 16 at 593. 19   See Fairbairn, supra note 7, at 91–92; Ouma, supra note 7; Phillipe Le Billion and Melanie Sommerville, Landing Capital and Assembling “Investible Land” in the Extractive and Agricultural Sectors, 82 Geoforum 212, 215–219 (2017). 20   See, e.g., Celine Tan, Risky Business: Political Risk Insurance and the Law and Governance of Natural Resources, 11 Int’l J. L. Context 174 (2015). 21   See, e.g., P. Arévalo et al., A Suite of Tools for Continuous Land Change Monitoring in Google Earth Engine, Frontiers Climate (2020). 22  Land, as Karl Polanyi famously observed, cannot be produced like other commodities; it is instead a “fictitious commodity” that can be damaged and degraded. See Karl Polanyi, The Great Transformation: The Political and Economic Origins of Our Time 72–73 (1944). 23   See, e.g., Highquest Partners, History of Institutional Farmland Investment, supra note 7 at 1; Eric F. Lambin and Patrick Meyfroidt, Global Land Use Change, Economic Globalization, and the 14

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32  Research handbook on international food law estimate that the world will need to produce 60% to 70% more food by 2050 to feed a world of more than nine billion people.24 Much of the attention is directed to better inputs (seeds, fertilizers, etc.) and better management that will increase yields and enable the world to meet this growing demand even as climate change disrupts agriculture and farming in some parts of the world. Put simply, feeding a hungry world in an era of climate disruption means that arable land is increasingly scarce and increasingly valuable. Investing in global farmland makes good economic sense and, its promoters claim, can provide much-needed capital to purchase better inputs and new technologies to create a more resilient, higher-yielding “climate smart agriculture.”25 Viewed in this way, the growth of new investment in global farmland since the financial crisis promises to bring finance to underdeveloped regions and inefficient farmers. This view has, not surprisingly, been embraced by the investment community, mainstream development organizations and professionals, and parts of the climate policy community.26 A contrary view sees the recent global land rush as the latest chapter in the long, brutal history of land grabbing and dispossession, perhaps as part of “a new phase of advanced capitalism” driven by finance and the “predatory formations” that result from financialization.27 Yet another related interpretation suggests that the current interest in farmland investment reflects the expanding power of the rentier class that has driven extreme levels of inequality over the last several decades, with rich investors looking to farmland as one more asset for storing wealth.28 Without question, financial institutions and markets have played a significant role in the surge in global farmland investment since 2006, and a substantial part of this has enabled (and been enabled by) the rise and consolidation of a new rentier class of farmland owners. Whatever one thinks about Bill Gates, it is hard to imagine he has any interest in actually farming his lands. Like absentee landowners of yesterday, wealthy individuals and large institutional investors see great value in owning the asset and renting it out to others to do the actual farming. But financialization and the rentier dynamic only explain part of the story. Since 2006, sovereign governments from food-insecure countries and their proxies have also been acquiring Looming Land Scarcity, 108 PNAS 3465 (2011); Paul R. Ehrlich and John Harte, To Feed the World in 2050 Will Require a Global Revolution, 112 PNAS 14743 (2015). 24   U.N. FAO, High-Level Expert Forum: How to Feed the World in 2050 at 2 (2009) (“The projections show that feeding a world population of 9.1 billion people in 2050 would require raising overall food production by some 70 percent between 2005/07 and 2050”). 25   See, e.g., World Bank: Future of Food: Shaping a Climate-Smart Global Food System (2015); L. Lipper et al., Climate-Smart Agriculture for Food Security, 4 Nature Climate Change 1066 (2014). 26   See K. Deininger et al., Rising Global Interest in Farmland: Can it Yield Sustainable and Equitable Benefits (2011). 27   See Laurence Roudart & Marcel Mazoyer, Large-Scale Land Acquisitions: A Historical Perspective, in Large-Scale Land Acquisitions 3 (Gironde et al. eds., 2016); Saskia Sassen, Expulsions: Brutality and Complexity in the Global Economy 13, 80–81 (2014). See also Fairbairn, supra note 7, at 133–136; Stefan Ouma, Situating Global Finance in the Land Rush Debate: A Critical Review, 57 Geoforum 162 (2014). 28   See A. Gunnoe, The Political Economy of Institutional Landownership: Neorentier Society and the Financialization of Land, 79 Rural Soc. 478 (2014); Brett Christophers, Rentier Capitalism: Who Owns the Economy and Who Pays for It (2020); Brett Christophers, The New Enclosure: The Appropriation of Public Land in Neoliberal Britain (2018).

Food law’s agrarian question  33 large amounts of land, often to create export-oriented food estates to supply their domestic markets.29 The growth and consolidation of global value chains in the agro-food sector over the last couple of decades have likewise been major drivers of land acquisitions and new systems of vertical coordination (such as contract farming) that bind agricultural producers (large and small) to these global supply chains.30 There is also a great deal of land consolidation and land grabbing happening within countries such as Brazil as a result of dynamics in domestic land markets.31 And, in some countries such as Indonesia, national imperatives of ensuring domestic food security have been used to justify massive new food estates managed in part by the military.32 Finally, there is a significant amount of illicit finance, various forms of money laundering, and organized criminal activity fueling land grabbing in some tropical frontiers.33 In short, it is difficult to find a single overarching pattern, tendency, or logic that would explain the current political economy of what the World Bank and others call “large land transactions” or what critics call “land grabbing.”34 But some things are clear. Land inequality is rising globally and is exacerbating and further entrenching existing structures of inequality tied to class, race, and gender in many parts of the world.35 Smallholders, local communities, and indigenous people are being dispossessed and displaced, sometimes violently, in a continuation of the great de-peasantization of the twentieth century.36 Millions of rural people are continuing to move to urban areas, adding to the ranks of the urban poor.37 Hunger and food  These countries include Saudi Arabia and several other Gulf States as well as China, Japan, South Korea, and India. See Philip McMichael, Land Grabbing as Security Mercantilism in International Relations, 10 Globalizations 47, 50–51 (2013); Cotula, supra note 9, at 657. 30   See Gustavo de L.T. Oliveira et al., Beyond Land Grabs: New Insights on Land Struggles and Global Agrarian Change, 18 Globalizations 321, 324–326 (2021). 31   See, e.g., Brenda Brito et al., Stimulus for Land Grabbing and Deforestation in the Brazilian Amazon, 14 Env’t Rsch. Letters 1 (2019). Domestic investors account for a significant share (even a majority) of large land investors in several African countries as well. See Cotula, supra note 9, at 656; Deininger et al., supra note 26. 32   See, e.g., Natasha Hamilton-Hart, Indonesia’s Quest for Food Self-Sufficiency: A New Agricultural Political Economy?, 49 J. Contemp. Asia 734 (2019); Hans Nicholas Jong, Indonesia’s “Militarized Agriculture” Raises Social, Environmental Red Flags, Mongabay (Oct. 27, 2020). 33   See, e.g., Beth Tellman et al., Understanding the Role of Illicit Transactions in Land Change Dynamics, 3 Nature Sustainability 175 (2020); Human Rights Watch, Rainforest Mafias: How Violence and Impunity Fuel Deforestation in Brazil’s Amazon (2019). 34   See Dieinger et al., supra note 26; Stefano Liberti, Land Grabbing: Journeys in the New Colonialism (2013); Fred Pearce, The Land Grabbers: The New Fight Over Who Owns the Earth (2012). See also Sassen, supra note 9 (arguing that all of these different buyers—governments, sovereign wealth funds, foreign firms, nationally based foreign corporations, and investments banks—are part of a “new phase” of land acquisitions in the Global South). 35   See, e.g., Ward Anseeuw & Giulia Maria Baldinelli, Uneven Ground: Land Inequality at the Heart of Unequal Societies, Research Findings from the Land Inequality Initiative (2020). See also Sarah K. Lowder et al., Which Farms Feed the World and Has Farmland Become More Concentrated? 142 World Dev. 1 (2021) (reporting new FAO data on farm size distribution finding that smallholder farms [less than one hectare] account for 70% of all farms and operate 7% of global farmland whereas the top 1% of farms [more than 50 hectares] control more than 70% of the world’s farmland). 36   See, e.g., Farshad A. Araghi, Global Depeasantization, 1945–1990, 36 Soc. Q. 337 (1995). 37   See Tania Murrary Li, To Make Live or Let Die? Rural Dispossession and the Production of Surplus Populations, 41 Antipode 66 (2009); Farshad A. Araghi, Accumulation by Displacement: Global Enclosures, Food Crisis, and the Ecological Contradictions of Capitalism, 32 Review (Fernand Braudel Center) 113 (2009). 29

34  Research handbook on international food law insecurity are rising after decades of decline, with some 800 million people now suffering from hunger and more than 2.3 billion people classified as food insecure, all of which has been compounded by the COVID-19 pandemic.38 And, of course, the acceleration of climate disruption is raising the stakes.39 Over the last decade, these developments have elicited widespread protests about land grabbing, dispossession, and the structural violence of permanent scarcity. Social movements of various stripes are asserting a right to food, often as part of a broader movement for food sovereignty and often framed in opposition to the largely technocratic discourse of food security embraced by international development institutions.40 Food riots and protests have also been common around the world during recent price spikes, often feeding into larger dynamics of political unrest, and serving as a reminder that there is a deeply held moral economy of food built in part on strong commitments to a just or fair price for necessities.41 Stepping back, it is clear that the world food economy has been in a state of crisis for more than a decade, with no obvious path forward to a more equitable and environmentally sustainable future. Russia’s early 2022 invasion of Ukraine has further compounded the situation, raising the prospects of the worst global food crisis since World War II.42 This chapter seeks to understand some of the structural aspects of this deepening crisis and its implications and relevance for the emerging field of international food law. The chapter has two main objectives:  Global hunger and food insecurity have been rising for the last seven years. See UN FAO, The State of Food Security and Nutrition in the World 2021, at xv to xvi (2021). 39   See, e.g., IPCC, Climate Change 2022: Impacts, Adaptation, and Vulnerability, Summary for Policymakers at SPM-14 (2022) (“Climate change will increasingly put pressure on food production and access, especially in vulnerable regions, undermining food security and nutrition (high confidence)”). 40  La Via Campesina introduced the concept of food sovereignty at the World Food Summit of 1996: “the right of peoples to healthy and culturally appropriate food produced through sustainable methods and their right to define their own food and agriculture systems.” See also Joanna BourkeMartignoni, The Right to Food, in Research Handbook on Economic, Social, and Cultural Rights as Human Rights (Dugard et al. eds., 2020); Philip McMichael, Historicizing Food Sovereignty, 41 J. Peasant Stud. 933 (2014). Since 2000, the office of the United Nations Special Rapporteur on the Right to Food has provided an important platform for some of these claims. See, e.g., Report of the Special Rapporteur on the Right to Food, Olivier De Schutter, Final report: The Transformative Potential of the Right to Food, UN Gen Ass. A/HRC/25/57 24 Jan. 2014. See also Carmen G. Gonzalez, International Economic Law and the Right to Food, in Rethinking Food Systems: Structural Challenges, New Strategies, and the Law (Lambek et al. eds., 2013). 41  Food price spikes in 2007–08 led to food riots across almost two dozen countries. See Michael Klare, The Hunger Wars in Our Future, Al Jazeera, 11 Aug 2012; Naomi Hossain & Devangana Kalita, Moral Economy in a Global Era: The Politics of Provisions During Contemporary Food Price Spikes, 41 J. Peasant Stud. 815 (2014). In 2020–21, protests and riots were reported in India, Lebanon, Turkey, Colombia, Haiti, Cuba, and South Africa. See Agnieszka de Sousa & Jeremy Diamond, Priciest Food Since 1970s Is a Big Challenge for Governments, Bloomberg 14 Sept. 2021. On the relationship of just price to moral economy and food riots in eighteenth-century England, see E.P. Thompson, The Moral Economy of the English Crowd in the Eighteenth Century, 50 Past & Present 76 (1971). On the longer history of just price, see William Boyd, Just Price, Public Utility, and the Long History of Economic Regulation in America, 35 Yale J. Reg. 721 (2018). 42   See, e.g., Edith M. Lederer, U.N. Food Chief: Ukraine War’s Food Crisis Is Worst Since WWII, Associated Press (29 Mar. 2022), https://apnews​.com​/article​/russia​-ukraine​-business​-africa​ -europe​-united​-nations​-c0a​a092​15a9​9cb6​25c5​7fcb​40f7df8bf. 38

Food law’s agrarian question  35 to map some of the contemporary dynamics of the global agro-food system, including the rise of global farmland as a new asset class and the broader recent global land rush of which it is part, and to argue for a law and political economy approach to international food law that engages with these dynamics and situates them within the accelerating climate crisis. As a preliminary matter, this chapter will not try to define the field of food law (domestic or international). As an outsider, I use the term here simply to denote a set of largely sectoral concerns with the governance of agriculture and food as key systems of provisioning.43 If pushed and at the risk of engaging in tautology, one might think of international food law as a field of law concerned with the governance of the global agro-food system.44 But that framing carries its own set of biases and, of course, there are many different dimensions to this that would be relevant—food safety, labeling and certification, regulation of new technologies, environmental impacts, trade rules, and the right to food (among others). While taxonomy is important for any effort to mark and map a field, other contributors to this volume are surely better placed to advance that effort. Instead, I want to start with an old question that in my view should be part of any approach to international food law: the so-called agrarian question, which refers to a series of debates in the late nineteenth and early twentieth centuries about the fate of the peasantry in various European countries during the transition to industrial capitalism.45 Some versions of the question emphasized the distinctive challenges that agriculture posed for the transition to industrial capitalism and the capitalist transformation of agriculture.46 Other versions focused on the class identity and political potential of the peasantry and the possibility of coalitions between peasants and workers.47 Much of this was rooted in distinctly national contexts and concerns.48 But the agrarian question, as part of a broader field of agrarian political economy, has continued to motivate research across the social sciences on a diverse range of issues for much of the last half-century, and it continues to hold great relevance for the current moment.49 To that end, one can rephrase and broaden the agrarian question to ask how capital (public and private) is taking hold of agriculture and land-based production, what this means for the organization  For an overview of the range of topics that are germane to domestic food law in the United States, see Michael T. Roberts, Food Law in the United States (2016). 44   Cf. Anne Saab, An International Law Approach to Food Regime Theory, 31 Leiden J. Int’l L. 251, 262 (2018) (“International food law is … not a distinct field of law, but a ‘regime complex for food security,’ ‘a set of loosely coupled regimes’ rather than one ‘integrated, comprehensive regime’”) (citing Raustiala and Victor, The Regime Complex for Plant Genetic Resources, 58 Int’l Org. 2 [2004]). 45   K arl Kautsky, The Agrarian Question, 2 vols. (Burgess trans., 1988 [1899]). See also A. V. Chayanov, Peasant Farm Organization, in The Theory of Peasant Economy (Smith trans., Thorner et al. eds., 1986 [1925]); Max Weber, Capitalism and Rural Society in Germany, in From Max Weber: Essays in Sociology (Gerth & Mills trans. and eds, 1946 [1906]); V.I. Lenin, The Development of Capitalism in Russia (Progress Publishers trans. and ed., 1974 [1897]). 46  Kautsky, supra note 45. 47   See, e.g., Frederick Engels, The Peasant Question in France and Germany (Progress Pub. Trans ed., 1976 [1894]). 48   See Philip McMichael, Rethinking Globalization: The Agrarian Question Revisited, 4 Rev. Int’l Pol. Econ. 630, 631 (1997) (“The late-nineteenth-century agrarian question (what are the political consequences of capitalist transition in the countryside?) was formulated within the metropolitan political framework of nation building”). 49   See A. Haroon Akram-Lodhi & Cristobal Kay, Surveying the Agrarian Question (Part 2): Current Debates and Beyond, 37 J. Peasant Stud. 255 (2010). 43

36  Research handbook on international food law of farming and food systems, for who gets to eat and who goes hungry, and for a world facing an unprecedented climate crisis.50 Framed in this way, the agrarian question suggests a wider field of vision for international food law—one that looks upstream and investigates how land and farming are being incorporated into the larger global agro-food system. The goal is not only to convince food law scholars of the benefits that might come from more explicit engagement with the agrarian question and the concerns and methods of agrarian political economy but also to convince scholars working within the tradition of agrarian political economy of the value of more attention to the role of law.51 Paying more attention to law means going beyond efforts to understand the role of the state in land grabs to uncover the various ways that law and legal arrangements both structure and facilitate access to land and the mobilization of land-based production.52 Such a perspective, it is argued, has much to gain by engaging the emerging field of law and political economy as well as some of its precursors in legal realism and the old institutional economics and more recent critical approaches to international law.53 By putting these fields in conversation with

 This version of the question is quite similar to the way that Kautsky framed it at the end of the nineteenth century: “whether, and how, capital is seizing hold of agriculture, revolutionizing it, making old forms of production and property untenable, and creating the necessity for new ones.” Kautsky, supra note 45, at 12. 51   Cf. Saturnino M. Borras Jr. et al., Transnational Land Investment Web: Land Grabs, TNCs, and the Challenge of Global Governance, 17 Globalizations 608, 608–609 (2020) (observing that the role of actors and institutions, including the role of “state and non-state rules, norms and procedures … that are used to facilitate, expedite, smoothen, or legitimize land grabbing … remains relatively under-studied”). 52   See David Kennedy, Law in Global Political Economy: Now You See It, Now You Don’t, in The Law of Political Economy: Transformation in the Function of Law 128 (Kjaer ed., 2020) (proposing that “we learn to see legal arrangements more as strategic actors already do—as tools of combat and records of gains and losses rather than as bricks in an evolving system”). 53   See, e.g., Jedediah Britton-Purdy, David Singh Grewal, Amy Kapczynski & K. Sabeel Rahman, Building a Law-and-Political-Economy Framework: Beyond the Twentieth-Century Synthesis, 129 Yale L.J. 1784 (2020) (arguing for a new “law-and-political economy” approach to legal scholarship built upon a reorientation from twentieth-century concerns with efficiency, neutrality, and antipolitics toward power, equality, and democracy); David Kennedy, Law and the Political Economy of the World, 26 Leiden J. Int’l L. 7, 8 (2013) (“It is now clear that the elements of economic life— capital, labour, credit, money, liquidity—are creatures of law. The same can be said for the elements of political life—power and right. Law not only regulates these things, it creates them. The history of political and economic life is therefore also a history of institutions and laws. Law constitutes the actors, places them in structures, and helps set the terms for their interaction”); Robert Lee Hale, Bargaining, Duress, and Economic Liberty, 43 Colum. L. Rev. 603, 625–626 (1943) (“The market value of a property or a service is merely a measure of the strength of the bargaining power of the person who owns the one or renders the other, under the particular legal rights with which the law endows him, and the legal restrictions which it places on others”); John R. Commons, Institutional Economics, 26 Am. Econ. Rev. 237, 242 (1936) (“[I]nstitutional economics is the field of the public interest in private ownership”); Anthony Anghie, Imperialism, Sovereignty and the Making of International Law 269 (2005) (“[W]hile international law proposes systems of government designed ostensibly to further the well being of Third World peoples, to enhance their prosperity and protect them against tyrannical leaders, the theme that repeats itself over the centuries is that government must further and enhance commerce and trade in ways that protect and advance the interests, on the whole, of the West. Whatever the rhetoric, as to humanism and the welfare of the non-European peoples, commerce has been the controlling preoccupation of colonial governance. The situation is not significantly different now”). 50

Food law’s agrarian question  37 agrarian political economy, we can begin to unpack the ways that law shapes the structuring mechanisms that operate through the rules governing international trade, sovereign debt, and foreign investment while also attending to the specific legal techniques that enable actual land deals in particular places.54 Viewed in this way, law operates less as a set of constraints on economic actors (through rules and regulations) than as a constitutive force creating assets, structuring economic relationships, and shaping the distributional struggles around land, food, and other necessities—all of which serve as building blocks for the larger political economy of the global agro-food system.55 System and governance in this view are both outcomes of these distributional struggles as well as conditioning factors for the next round of struggle.56 As discussed in the following section, there are a handful of international legal scholars already working on aspects of this.57 But there is much more to be done as the field of international food law takes shape. The chapter proceeds as follows. The next section briefly traces some of the intellectual history of agrarian political economy, discusses recent efforts by international legal scholars to engage with the literature on international food regimes, and argues for a complementary approach that takes the agrarian question as a point of departure. The following section uses the case of the recent global land rush to investigate the contemporary agrarian question and its implications for the global agro-food system. It highlights the role of law in enabling capital to take hold of agriculture and land-based production at two levels: the macro-level structuring mechanisms that have created the conditions for these large land transactions (namely, international trade law, foreign investment law, and debt and structural adjustment) and the more micro-level legal techniques that have enabled such transactions in particular places (namely, property, contract, and corporate law). The last part then investigates some of the implications of these large land transactions and the agrarian question more generally in the face of increasing food insecurity and climate disruption.

  See Kennedy, supra note 52 at 142 (calling for more attention to the “routine legal work” that constitutes “global patterns of distribution”). Following Katarina Pistor, one might go further to say that law makes or codes capital—that is, it transforms assets (tangible and intangible) into capital through various “legal modules” (contract, property, collateral, trust, corporate, and bankruptcy law)—and in doing so constitutes these distributional struggles. See Katharina Pistor, The Code of Capital: How the Law Creates Wealth and Inequality (2019). 55   Cf. Kennedy, supra note 52, at 147 (“Thinking this way turns our attention to law’s background role in the foundations of political and economic life in the shape of credit, property, money, capital, labour, citizenship, sovereignty. Law’s distributional significance is most pronounced here: not in the way it ‘regulates’ or ‘administers,’ but in the way it puts the pieces together in the first place”). 56   See David Kennedy, A World of Struggle: How Power, Law, and Expertise Shape Global Political Economy (2016). 57   See, e.g., Anne Orford, Food Security, Free Trade, and the Battle for the State, 11 J Int’l Law & Int’l Rel. 1 (2015); Saab, supra note 44; Anna Chadwick, Law and the Political Economy of Hunger (2019); Umut Ozsu, Grabbing Land Legally: A Marxist Analysis, 32 Leiden J. Int’l L. 215 (2019); Olivier De Schutter, The Green Rush: The Global Race for Farmland and the Rights of Land Users, 52 Harv. Int’l L. J. 503 (2011). A handful of legal scholars working on food and environmental justice have also investigated some of these issues. See, e.g., Carmen G. Gonzalez, The Global Food Crisis: Law, Policy, and the Elusive Quest for Justice, 13 Yale Human Rights & Dev. L. J. 462 (2010); Carmen G. Gonzalez, Food Justice: An Environmental Justice Critique of the Global Food System, in International Environmental Law And The Global South (Alam et al. eds., 2015). 54

38  Research handbook on international food law

II. AGRARIAN QUESTIONS, FOOD REGIMES, AND THE GLOBAL AGRO-FOOD SYSTEM The classical agrarian question asked how capital was taking hold of agriculture and what this meant for rural producers in the transition to industrial capitalism. The assumption in much of this early literature was that peasant agriculture was a relic of a pre-capitalist past that would soon give way in the face of the world-historical powers of modern bourgeois society. Through a process of differentiation and land consolidation, peasant agriculture would be replaced by larger capitalist farming operations based on wage labor. While a few peasants might make it into the ranks of capitalist farmers, the vast majority would end up as rural wage laborers working on farms or part of a growing urban proletariat. Unable to recognize their fate, peasants were viewed as a backward class not long for this world, epitomized by Marx’s dismissal of the French peasantry as a “sack of potatoes”—isolated and ignorant of the larger forces around them, incapable of forming any sort of class consciousness, and unable to operate as a political force.58 To be sure, some of the classical agrarian question literature did emphasize the resistance of farming and agriculture to full-scale capitalist transformation (grounded in the diversity of social formations and the biological distinctiveness of farming), while other early scholars pointed to the surprising ability of peasant households to survive the vagaries of markets, weather, political upheaval, and economic transitions.59 By the middle decades of the twentieth century, moreover, it was abundantly clear that peasants were not only a class of survivors, but also a potent political force—as evidenced by the fact that virtually all major wars for national liberation and anti-imperial struggles during the twentieth century were peasantbased.60 These facts gave rise to a vibrant field of peasant studies and, more generally, agrarian political economy starting in the 1960s.61 Over the following decades, historians and social scientists of various stripes addressed all manner of different aspects of agrarian change, often on the basis of extensive field work, including the role of agrarian class structure in the   See Karl Marx, The Eighteenth Brumaire of Louis Bonaparte 124 (1869).   See Kautsky, supra note 45; Chayanov, supra note 45. See also John Berger, Pig Earth xi (1979) (“Peasant life is a life completely committed to survival. Perhaps this is the only characteristic fully shared by peasants everywhere. Their implements, their crops, their earth, their masters may be different, but whether they labor within a capitalist society, a feudal one or other which cannot be so easily defined, whether they grow rice in Java, wheat in Scandinavia or maize in South America, whatever the differences of climate, religion and social history, the peasantry everywhere can be defined as a class of survivors. For a century and a half now the tenacious ability of peasants to survive has confounded administrators and theorists”). 60   See Eric R. Wolf, Peasant Wars of the Twentieth Century (1969). See also Barrington Moore, Jr., Social Origins of Dictatorship and Democracy: Lord and Peasant in the Making of the Modern World 453 (1966) (“No longer is it possible to take seriously the view that the peasant is an ‘object of history,’ a form of social life over which historical changes pass but which contributes nothing to the impetus of these changes. For those who savor historical irony it is indeed curious that the peasant in the modern era has been as much an agent of revolution as the machine, that he has come into his own as an effective historical actor along with the conquests of the machine”). 61   See, e.g., Eric R. Wolf, Peasants (1966); Theodor Shanin, Short Historical Outline of Peasant Studies, in Peasants and Peasant Societies 2nd ed. at 470 (Shanin ed., 1987 [1971]) (discussing “explosion of peasant studies in the late 1960s/early 1970s” in response to major peasant movements and conflicts). 58 59

Food law’s agrarian question  39 transition to capitalism, the strategies deployed by peasant households in the face of subsistence crises, the moral economies and forms of resistance peasants mobilized in the face of political and economic domination, and the larger social and economic forces driving land degradation and food insecurity in particular places.62 The world food crisis of the early 1970s, precipitated by the Soviet Union’s massive secret grain purchases during 1972–73 (what came to be known as the Great Grain Robbery), stimulated substantial scholarly attention to the place of agriculture and food in the broader world economy.63 Among other things, the crisis indicated a rupture with the previous organization of the international food system around national farm surpluses in the US and Europe (much of which was the result of the earlier crisis of the 1930s). Taking their cues from world systems theory and the French Regulation School, social scientists introduced the concept of international food regimes as a way to periodize the historical evolution of the global agro-food system and define the dominant configurations within each period.64

  See, e.g., Robert Brenner, Agrarian Class Structure and Economic Development in Pre-Industrial Europe, 70 Past & Present 30 (1976); T.H. Aston & C.H.E Philpin eds., The Brenner Debate: Agrarian Class Structure and Economic Development in Pre-Industrial Europe (1985); Alain De Janvry, The Agrarian Question and Reformism in Latin American (1981); James C. Scott, The Moral Economy of the Peasant: Subsistence and Rebellion in Southeast Asia (1976); James C. Scott, Weapons of the Weak: Everyday Forms of Peasant Resistance (1985); Michael J. Watts, Silent Violence: Food, Famine, and Peasantry in Northern Nigeria (1983); Piers Blaikie & Harold Brookfield eds., Land Degradation and Society (1987). 63  In the 1972–73 crop year, the Soviet Union quietly bought some 30 million metric tons of grain— roughly three quarters of all commercially traded grain in the world—creating “a sudden unprecedented shortage and skyrocketing prices.” See Harriet Friedmann, The Political Economy of Food: A Global Crisis, 197 New Left Rev. 29, 40 (1993); Harriet Friedmann, The Political Economy of Food: The Rise and Fall of the Postwar International Food Order, 88 Am. J. Soc. S248 (1982). See also Dan Morgan, Merchants of Grain 120 (1979) (“The ‘grain robbery’ of 1972 was one of those economic events that, like the OPEC oil embargo the following year or the repeal of the Corn Laws more than a century earlier, can truly be said to have changed the world”). 64  Harriet Friedmann formally introduced the international food regime concept in 1987. See Harriet Friedmann, The Family Farm and International Food Regimes, in Peasants and Peasant Societies 251–254 (Shanin ed., 1987). One can find in some of her earlier work hints of the concept, its links to world systems theory and the regulation school, and much of the basic periodization that she develops in later work. See, e.g., Harriet Friedmann, The Political Economy of Food: The Rise and Fall of the Postwar International Food Order, 88 Am. J. Soc. S248 (1982) (employing the concept of an “international food order” and developing periodization of successive international food orders). In her 1982 article, Friedmann also acknowledges and provides a brief, sympathetic critique of efforts to use international regime theory to develop a concept of the “global food regime” in the late 1970s. See, e.g., Raymond F. Hopkins & Donald J. Puchala, Perspectives on the International Relations of Food, 32 International Organization 581, 598 (1978) (introducing concept of “global food regime” and directing attention to the “set of rules, norms, or institutional expectations that govern” the global food system). In Friedmann’s view, the emphasis on rules and norms in this earlier literature proved unable to accommodate economic structures of production and distribution in the global food system. Friedmann and Philip McMichael then elaborated the food regime concept and explicitly linked it to the regulation school concept of regimes of accumulation in a widely cited 1989 article. See Harriet Friedmann & Philip McMichael, Agriculture and the State System: the Rise and Decline of National Agricultures, 1870 to the Present, 29 Sociologica Ruralis 93, 95 (1989) (“We organize our argument around the concept of the food regime, which links international relations of food production and consumption to forms of accumulation broadly distinguishing periods of capitalist transformation since 1870”). See also Philip McMichael, A Food 62

40  Research handbook on international food law According to their schema, the first international food regime, which lasted from the 1870s to World War I, was organized around European imports of staples (grain and meat) from settler colonial states in North America and Australia to provide cheap “wage foods” for the European working class and imports of tropical and sub-tropical commodities (sugar, coffee, tea, tobacco, cocoa) from colonial territories to the metropolitan centers in Europe.65 Starting in the 1920s, this regime entered a prolonged crisis that lasted until the end of World War II.66 A second food regime consolidated after the war on the basis of growing national agricultural surpluses (mainly grain) as a result of US domestic agricultural support programs and similar policies adopted in Europe.67 Extensive US “food aid,” first to Europe through the Marshall Plan and then to the Third World via US Public Law 480 of 1954, provided the means of disposing of these surpluses in a manner that advanced US geopolitical interests.68 Growing dependence on cheap imports and shifting diets turned former food exporters in the Global South into food importers, creating substantial exposure to the economic disruptions of the 1970s. This second food regime also saw the rise of “durable foods”—heavily processed, industrial foods—and the rise of national supermarket chains that provided the basis for an era of cheap standardized food in the United States and other rich countries.69 As suggested, the second international food regime entered a period of prolonged crisis starting in the early 1970s, as prices for food and other commodities skyrocketed in the wake of the Soviet grain purchases and the first oil shock.70 This contributed to a substantial rise in food insecurity across the Global South as newly independent states struggled to secure sufficient food imports, leading to a series of severe subsistence crises and growing debt burdens. The debt crisis of the 1980s and the structural adjustment programs that followed worked to further discipline many of these states, pushing them to lower trade barriers and open their

Regime Genealogy, 36 J. Peasant Stud. 139, 144 (2009) (discussing influence of regulation theory and world systems theory on food regime concept). 65   See Friedmann & McMichael, supra note 64, at 95–103 (describing first global food regime). 66   See Friedmann, The Rise and Fall of the Postwar International Food Order, supra note 63, at S257 (“The prewar international food order, along with the gold standard and world trade, collapsed during the 1930s and World War II”); Friedmann, The Family Farm and International Food Regimes, supra note 64, at 252 (observing that international food regime that began in 1870 “went into crisis after the First World War”). 67   See Friedmann, The Political Economy of Food: A Global Crisis, supra note 63, at 32–39 (discussing consolidation, development, and key features of the post-WWII global food regime). 68  P.L. 480 allowed recipient countries to pay for food imports from the US in local currency, allowing them to import large quantities of American grain at discounted rates without needing access to US dollars. This provided much of the basis for the US “food weapon” up until the crisis of the 1970s. See Friedmann, The Rise and Fall of the Postwar International Food Order, supra note 63, at S262–271 (discussing P.L. 480 and its impact on food import dependency in third world countries). See also Nick Cullather, The Hungry World: America’s Cold War Battle Against Poverty in Asia 142–146 (discussing impacts of P.L. 480 surpluses on Indian agriculture and food imports). 69   See Friedmann, The Family Farm and International Food Regimes, supra note 64, at 252 (discussing adoption of mass-produced highly processed, standardized, and durable foods in the advanced capitalist world as a key feature of the second international food regime). 70   See Friedmann, The Political Economy of Food: A Global Crisis, supra note 63, at 40 (“In the 1972–73 crop year, the Soviet Union bought 30 million metric tons of grain, which amounts to three quarters of all commercially traded grain in the world. The scale of that transaction created a sudden, unprecedented shortage and skyrocketing prices”).

Food law’s agrarian question  41 markets. In the years that followed, agriculture became a major focus (and sticking point) for international trade negotiations. Some scholars have suggested that the ongoing project of agricultural trade liberalization through the WTO has ushered in a new third “corporate food regime” organized around the rights of private capital and a politically constructed division of agricultural labor with northern exports of staple grains to the Global South in return for high-value products (meats, fruits, and vegetables), often organized through highly structured global value chains.71 Others have pointed to the collapse of the Doha Round in 2008 as evidence of the failure to consolidate a third international food regime.72 And some, including one of the original proponents of the food regime concept, have questioned its utility to explain the current moment.73 As a macro-historical framework, the food regime concept has proved immensely useful for organizing investigations into the structural features of the world food economy. As with any such effort, however, the concept can also obscure the complexity and diversity that marks any particular “regime,” leading to a neglect of certain actors or tendencies that might not fit within the regime as defined. Put another way, these phases or regimes can sometimes take on a life of their own, asked to do more explanatory work than might be justified.74 Like much of agrarian political economy, the food regime literature has also tended to relegate law to the sidelines, viewing it largely as a set of background conditions or as the formal juridical expression of deeper structures and relationships. Several international law scholars have started to change this, however, pushing for more attention to law in the study of food regimes and using the food regime concept as a possible anchor for international food law.75 Much of this work, not surprisingly, has focused on international trade and the treatment of agriculture under the WTO, as well as the counter-movements that have emerged around the right to food and food sovereignty.76 Some of it has also focused specifically on the role of law

  See Philip McMichael, Global Development and The Corporate Food Regime, in New Directions in the Sociology of Global Development (Buttel & McMichael eds., 2005); McMichael, Food Regime Genealogy, supra note 64. 72   See Bill Pritchard, The Long Hangover from the Second Food Regime: A World-Historical Interpretation of the Collapse of the WTO Doha Round, 26 Agric. Hum. Values 297 (2009). 73   See Harriet Friedmann, Food Regime Analysis and Agrarian Questions: Widening the Conversation, 43 J. Peasant Stud. 671 (2016). 74   Id. For an earlier general critique of the food regime concept, see David Goodman & Michael Watts, Reconfiguring the Rural or Fording the Divide?: Capitalist Restructuring and the Global Agro‐Food System, 22 J. Peasant Stud. 1 (1994). 75   See Saab, supra note 44, at 252 (arguing “that food regime theory—an analytical tool developed and used mostly in the field of sociology—can provide a useful means through which to explore the role of international law in constituting global food relations”); Orford, supra note 57, at 19 (asking “what it might mean to think about the role of international law in constituting a global food economy and how one would go about studying a phenomenon like food insecurity across time and on a global scale”); Chadwick, supra note 57, at 3 (arguing “that law has been a key factor in contributing to the persistence of hunger in a world of plenty”). 76  Saab, supra note 44, at 259–260 (“Resistance against the neoliberal tenets of the third food regime is principally articulated through the concept of ‘food sovereignty’ and propelled by social movements”); Orford, supra note 57, at 22 (observing that “while human rights lawyers argue that food security should be founded upon the right to food, trade lawyers and economists assume that food security should be founded upon free trade liberalisation and market oriented agrarian reform”); Olivier De Schutter, The Right to Food: Fighting for Adequate Food in a Global Crisis, 31 Harv. Intl Rev. 38, 39 (2009) (“Unless the right to food is placed at the very center of the efforts of the 71

42  Research handbook on international food law in contributing to global hunger, as well as giving particular attention to financialization and the role of financial derivatives and speculation in contributing to food price spikes.77 All of this is welcome and important as a step toward integrating these fields. This chapter suggests that this integration effort would also benefit from more specific attention to some of the insights and methodological commitments of the agrarian question literature. Although it shares a great deal of common ground with the food regime literature, the agrarian question starts in a different place.78 By asking how different forms of capital are taking hold of agriculture and land-based production, it makes more room for the diversity of ways that farming and agriculture are being pushed and pulled into larger economic structures.79 In doing that, it also allows for more attention to the constitutive role of law in shaping distributional struggles around land and food—a perspective that is quite useful in investigating the contemporary global land rush.

III. UNDERSTANDING THE CONTEMPORARY GLOBAL LAND RUSH We now have more than a decade of research on the global land rush that began around 2006 as food prices started to rise, with several distinct waves of scholarship.80 As noted in the introduction, much of the initial focus was on the role of finance and financialization in facilitating large land transactions. The standard explanation went something like this: as global food prices began to rise in the early 2000s, farmland became increasingly attractive to investors. Meanwhile, the substantial growth of finance over the previous decades had created new investment tools and vehicles that could be mobilized in the constant search for new investment opportunities. With the financial crisis of 2008, there was a general “flight to quality,” manifest in a preference for tangible assets such as land. Taking advantage of the ongoing liberalization of markets and the opening of national economies, foreign investors began to move into domestic land markets in the Global South. The financial sector, of course, has long been involved in agriculture—from the provision of credit and mortgages to insurance and commodity derivatives.81 Typically, though, financial institutions like other agribusiness corporations have stopped at the farm gate.82 Given the international community to address the structural causes which have led to the global food crisis we will repeat our past mistakes”). 77   See, e.g., Anna E. Chadwick, Gambling on Hunger? The Right to Adequate Food and Commodity Derivatives Trading, 18 Human Rights L. Rev. 233 (2018). 78   See Goodman & Watts, supra note 74. 79  Friedmann, supra note 73, at 684 (“Capital itself has made land central again and food a major sector of investment, speculation and technical change. Now it is crucial to ask how changing class, sectoral and regional organizations of capital reshape food, land and farming and how food and farming politics intersect with wider politics of change”). 80   See Gustavo de L.T. Oliveira et al., Beyond Land Grabs: New Insights on Land Struggles and Global Agrarian Change, 18 Globalizations 321 (2021). See also Bin Yang & Jun He, Global Land Grabbing: A Critical Review of Case Studies Across the World, 10 Land 324 (2021). 81   See Fairbairn, supra note 7. 82   See Fairbairn, supra note 7, at 9 (“Until recently, . . . the steady creep of finance capital appeared to stop at the farm gate”). See also Susan Archer Mann, Agrarian Capitalism in Theory and Practice 28–46 (1990) (discussing natural obstacles to capitalist development of agriculture).

Food law’s agrarian question  43 vagaries of farming, in other words, there has been limited appetite for owning farmland as an asset. What seemed novel, then, about the post-2006 surge in farmland acquisitions, was the scale and pace compared to earlier waves, the actors involved, and the fact that these involved ownership or control of land itself (whether outright or through various leasing arrangements). As one might expect, the data on large land deals are uneven and incomplete, with widely varying estimates depending on how land deals are characterized. The Land Matrix, which tracks land deals above 200 hectares in size, is the most comprehensive and widely cited database of global land deals.83 According to the database, the peak years for the global land rush appear to have been 2006 and 2013.84 Since 2006, close to 100 million hectares of land have been the subject of more than 2,500 large-scale land transactions with known buyers and sellers.85 This is almost certainly an underestimate, with some suggesting estimates of more than double the Land Matrix estimate.86 Eastern Europe, Africa, and Latin America have been the top regions in terms of the number and size of transactions.87 A significant portion of large land deals in the post-2006 period have been in Africa, and much of the initial wave of scholarship focused on the so-called African land grab, often framed as a venture into neo-colonialism.88 Along with much of Latin America, many African countries suffered extreme hardship as a result of the international debt crisis of the 1980s and the structural adjustment that followed.89 Africa is also where most of the world’s additional population growth is expected to take place in the coming decades, and it has the highest rates of food insecurity and hunger in the world.90 In terms of crops, much of the land subject to large land deals during the post-2006 period has been dedicated to food crops for export, “flex crops,” and biofuels—despite the fact that there is very little evidence of any climate benefit from growing crops in faraway places to produce biofuels to meet policy targets in Europe or the US (especially if it involves the

  See Land Matrix, https://landmatrix​.org (last visited May 17, 2022). For an early discussion of the approach of the Land Matrix and the challenges associated with collecting data on global land deals, see Ward Anseeuw, Jann Lay, Peter Messerli, Markus Giger & Michael Taylor, Creating a Public Tool to Assess and Promote Transparency in Global Land Deals: The Experience of the Land Matrix, 40 J. Peasant Stud. 521 (2013). 84   See Jan Lay et al., Taking Stock of the Global Land Rush: Few Development Benefits, Many Human and Environmental Risks, Land Matrix Analytical Report III at 23 (2021) (“The area under LSLAcontracts increased most quickly between 2006 and 2013”). 85   See Global Observatory Overview, Land Matrix https://landmatrix​.org​/observatory​/global/ (last visited May 17, 2022). 86   See Sassen, supra note 9, at 26 (citing estimates of reported sales of land of over 200 million hectares). But see Marc Edelman, Messy Hectares: Questions About the Epistemology of Land Grabbing Data, 40 J. Peasant Stud. 485, 485–490 (2013) (citing widely varying estimates of land area subject to large scale land deals, the unevenness of data on such deals, and the challenges this poses for research and advocacy). 87   See Global Observatory Map, Land Matrix https://landmatrix​.org​/map (last visited May 17, 2022). 88   See Lorenzo Cotula, The Great African Land Grab? Agricultural Investments and the Global Food System (2013); Klaus Denniger et al., Rising Global Interest in Farmland: Can it Yield Sustainable and Equitable Benefits? XXXI to XXXII (2011) (“The 2008 commodity boom dramatically increased interest in agricultural land as a potential investment, especially in Sub-Saharan Africa”). 89   See Thandika Mkandawire & Charles C. Soludo, Our Continent, Our Future: African Perspectives on Structural Adjustment (1999). 90   See FAO, supra note 38, at 17, table 3. 83

44  Research handbook on international food law clearing of intact forests).91 It also appears that many of the biofuel ventures launched in the mid-2000s have subsequently failed, as have a substantial number (perhaps as much as 20%) of other large land deals.92 Much of the early scholarship and media reports on the post-2006 global land rush identified two main categories of buyers, operating on the basis of different motivations. The first included national governments and government-backed entities from food-insecure states seeking to enhance their own food security.93 Thus, for example, the Saudi government has invested heavily in Ethiopia to grow food crops for export back to Saudi Arabia.94 China, India, South Korea, and the UAE have also been active in large land deals, particularly in Africa, Latin America, and Southeast Asia.95 The second category of buyers receiving significant early attention included investors (private, quasi-public, and public) looking for returns, including private equity groups, pension funds, and other institutional investors.96 Starting in the mid-2000s, various new global farmland funds began emerging, pioneered by retirement funds like TIAA and major university endowments such as Harvard’s, that have come to see agricultural land as a promising financial investment that belongs in a diversified portfolio.97 Despite restrictions on foreign investments in certain countries (such as Brazil), these investors have used complex deal structures and shell companies to take ownership stakes in farmland around the world.98 In addition to these two categories of buyers, a range of different entities, both foreign and domestic, have been involved in large land transactions around the world, with various objectives.99 Indeed, the initial focus on large land transfers initiated by food-insecure governments or their proxies and financial institutions has tended to obscure the extent to which large transnational agribusiness firms have continued to extend their own spheres of influence in key producing regions, pulling farmers (large and small) into transnational supply chains for key commodities.100 It has also tended to miss some of the more local dynamics of land speculation and illicit activities that contribute to changing patterns of land ownership and occupation in various tropical frontiers. That said, it is clear that large land deals have been a prominent feature of the recent global land rush, with the size of some deals reaching truly staggering proportions. In 2008, for   See Cotula, supra note 87, at 67–68 (discussing large proportion of land deals devoted to biofuels in Africa); Saturnino M. Borras Jr. et al., The Rise of Flex Crops and Commodities: Implications for Research, 43 J. Peasant Stud. 93 (2016) (discussing rise of flex crops).  92   See Lay et al., supra note 84, at 30–33 (discussing high number of failed land deals in the biofuels sector, particularly involving jatropha).  93   See, e.g., McMichael, supra note 29.  94   See Liberti, supra note 34, at 10–12; Christian Henderson, Land Grabs Reexamined: Gulf Arab Agro-Commodity Chains and Spaces of Extraction, 53 Envt & Plan. A. 261 (2021).  95   See Cotula, supra note 9.  96   See Fairbairn, supra note 7.  97   Id.  98   Id.  99   See Deininger et al., supra note 26 (reporting that in some countries in sub-Saharan Africa, domestic investors account for the majority of large land deals). See also Cotula, supra note 9, at 656. Given restrictions on foreign ownership and the use of joint venture arrangements between domestic and foreign entities, however, it can sometimes be difficult to determine the precise identity of purchasers. 100   See Jennifer Clapp, The Problem with Growing Corporate Concentration and Power in the Global Food System, 2 Nature Food 404 (2021).  91

Food law’s agrarian question  45 example, a South Korean company (Daewoo Logistics) was in negotiations with the government of Madagascar to purchase a 99-year lease for roughly a third of the arable land of the entire country (about 1.3 million hectares) in order to grow maize and oil palm for export back to South Korea.101 When news of the deal broke, widespread public protests eventually brought down the government, and the deal was canceled.102 Reported land deals in Africa, Latin America, and Southeast Asia routinely range from tens of thousands to multiple hundreds of thousands of hectares. The largest foreign land acquisition recorded in Ghana on the Land Matrix database, for example, was a leasing arrangement for 400,000 hectares with INGA Farms Limited (a Ghanaian subsidiary of an Indian company).103 TIAA and Harvard have each acquired several hundred thousand hectares of farmland in Brazil, a substantial portion of which was found by a Brazilian state court and the Brazilian government to have been acquired illegally.104 And in Indonesia, the government continues to promote massive new food estates, some of which exceed one million hectares, as a means of achieving its goal of food self-sufficiency.105 For comparison purposes, all of Bill Gates’s reported farmland holdings in the United States add up to around 100,000 hectares (~250,000 acres). While the pace of land deals appears to have slowed since 2010, substantial recent increases in global food prices suggest the possibility of another surge in land deals. From 2020 to January 2022, global food prices increased by more than 30%.106 By March 2022, the FAO Food Price Index had reached an all-time high, surpassing the previous high set during the food crisis of the mid-1970s,107 and pushing millions of additional people further into food insecurity.108 If the past is any guide, moreover, these price increases will almost certainly fuel renewed investor interest in global farmland.

  See Vivienne Walt, The Breadbasket of South Korea: Madagascar, Time, 23 Nov. 2008.   See Tom Burg & Javier Blas, Madagascar Leader Cancels Daewoo Farm Deal, Fin. Times (March 18, 2009). 103   See Deal 3393, Land Matrix https://landmatrix​.org​/deal​/3393/. The lease appears to be for the maximum 50-year duration, with an option to renew for a second term of 45 years. 104   See Chain Reaction Research, TIAA’s Farmland Funds Linked to Fires, Conflicts and Legacy Deforestation Risks in Brazil, (Jan. 2020), https://cha​inre​acti​onre​search​.com​/wp​-content​/uploads​ /2020​/01​/ Radar​-company​-report​-2​.pdf; Tatiana Freitas, U.S. Pension Fund TIAA Embroiled in Brazil Land-Buying Probe, Bloomberg, 17 Dec. 2020; ActionAid, Brazilian Government Finds that TIAA and Harvard Violated Law in Acquiring Half a Million Acres of Farmland (Dec. 17, 2020), www​.actionaidusa​.org​/news​/ brazilian​-government​-finds​-tiaa​-harvard​-violated​-law​-acquiring​-half​-million​-acres​-farmland/. 105   See Hamilton-Hart, supra note 32; Jong, supra note 32. 106  The FAO Food Price Index, which is an average of price indices across five commodity groups: meat, dairy, cereals, vegetable oils, and sugar, was higher in real terms during 2021 and early 2022 that any time since 1961 with the exception of the world food crisis years of 1974 and 1975. Notably, the index was higher in real terms during the second half of 2021 than it was during the last price spike from 2008–2011 and was up by 30% compared to the same period from the previous year. By March 2022, in the wake of the Russian invasion of Ukraine, the index had reached an all-time high (in real terms), increasing an astonishing 12.6 percent from the previous month. See FAO, World Food Situation: FAO Food Price Index, www​.fao​.org​/worldfoodsituation​/foodpricesindex​/ en/ (last visited May 17, 2022). 107   Id. 108   See, e.g., Saeed Shah, Luciana Magalhaes & Nicholas Bariyo, Food Prices Soar, Compounding Woes of World’s Poor, Wall St. J. (May 20, 2021); Editorial Board, Russian Aggression May Cause Global Starvation, Fin. Times (April 19, 2022). 101

102

46  Research handbook on international food law Notwithstanding the challenges involved in acquiring an accurate picture of what is happening, the growth in large land deals over the last 15 years raises an important set of questions for international food law. How did these transactions become possible? What role has law played in making them possible? What implications do these large land deals have for the global agro-food system? How should public international law together with domestic legal reform efforts respond? This section addresses these questions. It develops a possible framework for research in international food law that focuses on both the macro-level structuring mechanisms that have created the conditions for large foreign land transactions and the micro-level techniques that have enabled these transactions in particular places. The following section will then address some of the implications of the recent wave of large land acquisitions for smallholders and food security in the face of the accelerating climate crisis. A. Structuring Mechanisms Recent research, much of it by historians, has revealed the manner in which the foundations of the global “neoliberal” order that emerged in the last quarter of the twentieth century were established during the post–World War II period and the era of decolonization.109 The dominant storyline, perhaps best illustrated by Quinn Slobidian’s work, shows a deliberate strategy to undermine the authority of nation-states over their economies in the interest of advancing global trade and investment.110 Threatened by the organized demands of the newly independent post-colonial nations of the Global South for reparations, sovereignty over their own natural resources, stabilized commodity prices, and the regulation of transnational corporations, the Geneva neoliberals sought to “circumvent the authority of national governments,” encase the global economy in law, and protect the rights of private capital.111 The goal was to create a system of institutions and laws that would tame and even override where necessary national legislation that might impede the mobility of private capital.112 Assertions of national sovereignty—projects that sought to protect domestic industries or limit foreign investment, regardless of motive or rationale (be it social justice, redistribution, growth promotion, or the home market)—were seen as a common enemy. While the success and longevity of this project are ongoing subjects of debate, the tangible effects are clearly evident in some of the most important governing institutions of the global economy. Any effort to understand the global agro-food system and the ways in which capital is taking hold of land-based production thus needs to engage with these institutions. This chapter suggests that three such institutions or domains—those governing international trade, foreign investment, and debt—have been particularly important as structuring mechanisms shaping the global agro-food system over the last half-century.

  Quinn Slobodian, Globalists: The End of Empire and the Birth of Neoliberalism 24–25 (2018) (“[Q]uestions of empire, decolonization, and the world economy were at the heart of the neoliberal project from its inception”). 110   Id. 111   Id. 112   Id. at 12–13. 109

Food law’s agrarian question  47 1. International trade Agriculture has always been treated as special under the rules governing the international trading system. National food security has long been considered a “non-trade” issue that, according to critics, has sometimes served as cover for various forms of protectionism.113 While the WTO Agreement on Agriculture (1995/96) was considered an important step forward in reducing agricultural protectionism, domestic agricultural policies and national food security concerns have continued as major sticking points in international trade negotiations. Notwithstanding these challenges, the WTO’s core commitment to trade liberalization and the constant attention to “trade distorting” national regulations has worked to discipline states and partially dismantle efforts to protect domestic agriculture. The overall goal has been to push for a global agricultural division of labor where farmers (large and small; North and South) concentrate or specialize in producing those crops for which they have a comparative advantage, all premised on the view that the overall efficiency of the world food economy requires locating production where it is cheapest. Import tariffs on agricultural commodities and food products have declined since the implementation of the WTO Agreement on Agriculture in 1995/96.114 Compared to other economic sectors, however, agriculture continues to enjoy relatively high levels of protection, with average tariffs on agricultural commodities and food around three times higher than those imposed on other goods.115 Non-tariff barriers such as technical regulations and standards, and sanitary and phytosanitary measures directed at food safety often have a greater impact on trade than tariffs.116 And, of course, longstanding US and EU agricultural subsidies have persisted and even increased.117 But, in general, the push to liberalize agricultural trade over the last half century has worked to pull farmers into an export-oriented world food economy. Since 1995, global agricultural exports have more than tripled in value and more than doubled in volume.118 This has increased the dependence of some countries on imported food and has made many smallholders in the Global South more dependent on formal cash markets for food, further exposing them to global price shocks.

  See Michael Fakhri, A History of Food Security and Agriculture in International Trade Law, 1945–2017, in New Voices and New Perspectives in International Economy Law 59–60 (Haskell & Rasulov eds., 2020) (“[F]ood security and freer trade policies often tend to find themselves in a direct, tense relationship. Throughout the history of agricultural debates in the GATT, the question of food security has traditionally been as a ‘non-trade’ issue. To a large extent, this still remains the case today”). 114  Import tariffs applied to food and agricultural commodities decreased steadily in low- and middleincome countries from an average of around 17% in 1995 to approximately 10% in 2018. Average agricultural tariffs in high-income countries decreased from 9% in 1995 to 6% in 2018. See FAO, State of Agricultural Commodity Markets 2020, at 20–21 (2021). 115   Id. at 44. 116   Id. See also J. Gourdon et al., Non-Tariff Measures in Agriculture, OECD Food, Agriculture and Fisheries Papers, No. 147 (2020). 117  US farm subsidies rose dramatically during the Trump administration, partly to cushion the blow of the administration’s various trade disputes and tariff wars. Europe’s Common Agricultural Policy (CAP) still accounts for more than one-third of the entire EU budget. See European Parliament, Fact Sheets on the European Union: Financing of the CAP, www​.europarl​.europa​.eu​/factsheets​/en​ /sheet​/106​/financing​-of​-the​-cap (last visited May 20, 2022). 118   WTO, World Trade Statistical Review (2019). 113

48  Research handbook on international food law It has also had some unexpected outcomes, as the global economy has morphed from a system of national economies integrated through trade agreements into a series of tightly coordinated transnational production networks. By unbundling the production process into stages and identifying the lowest cost location for each one, global firms have organized dedicated supply chains stretching across multiple countries. These so-called Global Value Chains (GVCs) now account for roughly half of world trade, and about one-third of agricultural and food exports.119 Today, wheat produced in Australia and Ukraine might be processed into flour in Indonesia and Turkey, and then exported to make noodles in China and bread in Africa and the Middle East.120 The rise of GVCs has also corresponded with a noticeable shift from commoditybased trading to increased trade of high-value products such as fruits and vegetables, meat, dairy, and fish.121 Innovations and advances in transport and logistics (e.g., cold chains, bulk transport and storage), as well as information and communications technologies, have facilitated a booming trade in fragile and perishable agro-food products.122 These new agro-food GVCs have also put a premium on skilled labor, farm size, and access to credit, and they increasingly include stringent requirements for food quality and food safety.123 More recently, GVCs have become targets of advocacy campaigns orchestrated by northern NGOs to pressure companies to clean up their supply chains and embrace new traceability and certification schemes.124 All of this can lead to the exclusion of smallholders, further reinforcing existing power imbalances within global supply chains.125 Several international law scholars have engaged in detail with international trade law and its implications for food systems and food security, often in the context of the international food regime framework discussed in the previous section.126 In addition, a group of scholars from law and related disciplines have started to investigate some of the ways that law  FAO, supra note 114, at 32.   See OECD, Global Value Chains in Agriculture and Food: A Synthesis of OECD Analysis, OECD Food, Agriculture and Fisheries Papers, No. 139 (2020). 121   Id. 122   Id. 123  FAO, supra note 114, at xii (2021). 124   See, e.g., T.A. Gardner et al., Transparency and Sustainability in Global Commodity Supply Chains, 121 World Dev. 163 (2019) (reviewing supply chain sustainability initiatives, particularly in agriculture); Anne-Kathrin Weber & Lena Partzsch, Barking Up the Right Tree? NGOs and Corporate Power for Deforestation-Free Supply Chains, 10 Sustainability 1 (2018) (critically assessing various northern NGO initiatives on global supply chains); Peter Dauvergne, The Global Politics of the Business of “Sustainable” Palm Oil, 18 Glob. Env’t Pol. 34, 35 (2018) (discussing widespread commitment by consumer-oriented multinationals to remove deforestation from their supply chains in response to activist concerns and the many challenges of realizing these commitments in practice). 125  Weber & Partzsch, supra note 124, at 12. See also Oliver De Schutter, The Political Economy of Food Systems Reform, 44 Eur. Rev. Agric. Econ. 705, 713 (2017) (“A narrow set of large firms increasingly act as gate-keepers to the high-value markets of rich countries, weakening the position of small-scale suppliers of raw agricultural products, and in many cases excluding them from access to modern supply chains”); J.D. Watts et al., Challenges Faced by Smallholders in Achieving Sustainable Palm Oil Certification in Indonesia, 146 World Dev. 105565 (2021) (discussing challenges of oil palm certification for smallholders). 126   See, e.g., Orford, supra note 57; Saab, supra note 44; Anna Chadwick, World Hunger, the “Global” Food Crisis, and (International) Law, 14 Manchester J. Int’l Econ. L. 92, 103–106; De Schutter, supra note 125; Gonzalez, supra note 40; Fakhri, supra note 113. 119

120

Food law’s agrarian question  49 structures GVCs across multiple domains.127 Bringing these together trains attention to the role of law and legal arrangements in constituting the global trade regime while also attending to the organization of transnational supply chains within that regime. Such a perspective opens up a number of possible directions for future research in international food law. 2. Foreign investment The consolidation of international investment law during the post-WWII period complemented the international trade regime, focusing on rules to safeguard the rights of foreign investors.128 Much of this was in response to the push by newly independent states for a New International Economic Order (NIEO) in the 1960s, founded on permanent sovereignty over natural resources, a right to expropriation, control over foreign investment, price supports and stabilization mechanisms for raw materials and commodities, debt relief, non-conditional foreign aid, and access to developed country markets.129 Not surprisingly, investor states pushed back against the NIEO and the effort to enshrine its key principles in multilateral institutions that would reshape the law of international investment to accommodate these newly independent states.130 As an alternative to the NIEO agenda, investor states worked to internationalize investment contracts and protect them through a web of Bilateral Investment Treaties and arbitration before the International Centre for the Settlement of Investment Disputes (ICSID).131 Today, international investment law operates through a network of more than 3,000 bilateral or regional investment treaties and the evolving jurisprudence of ICSID arbitrations.132 As a formal matter, these treaties are concluded between two or more states and aim to promote investment flows by establishing obligations about how investments by nationals of one state will be admitted and protected in the territory of the other state. In practice, they often impose

  See IGLP Law and Global Production Working Group, The Role of Law in Global Value Chains: A Research Manifesto, 4 London Rev. Int’l L. 57, 59 (2016) (noting “that there is as yet no welldeveloped account of the role of law in the structure, operation, and governance of GVCs”); id., at 60–61 (arguing “that law resides at the heart of GVC phenomenon—it is the vehicle through which value is generated, captured and distributed within and between organizational and jurisdictional domains, and diverse and geographically disparate business operations are coordinated and governed”). See also Kevin B. Sobel-Read, Global Value Chains: A Framework for Analysis, 5 Transnat’l Legal Theory 364 (2014); Kevin B. Sobel-Read, Reimagining the Unimaginable: Law and the Ongoing Transformation of Global Value Chains into Integrated Legal Entities, 16 Eur. Rev. Contract L. 160 (2020). 128   See Kate Miles, The Origins of International Investment Law: Empire, Environment and the Safeguarding of Capital 74–75 (2013). 129   Id. See also Vanessa Ogle, State Rights against Private Capital: The “New International Economic Order” and the Struggle over Aid, Trade, and Foreign Investment, 1962–1981, 5 Humanity: An International Journal of Human Rights, Humanitarianism, and Development 211 (2014); Anthony Anghie, Legal Aspects of the New International Economic Order, 6 Humanity: An International Journal of Human Rights, Humanitarianism, and Development 145 (2015). 130   See Miles, supra note 128. 131   Id. 132   See Borzu Sabahi et al., International Investment Law and Arbitration: History, Modern Practice, and Future Prospects, in Brill Research Perspectives in International Investment Law and Arbitration 1, 1 (Laird & Sabahi eds., 2018). 127

50  Research handbook on international food law significant constraints on the ability of so-called host country governments to govern large sectors of their economy. A handful of scholars have recently begun investigating the connections between international investment law and the recent wave of large land transactions, following critical international legal scholars in pointing to the ways that the law of foreign investment privileges and protects investors over communities and the broader public in host countries.133 But there is much more to be done on this, including detailed investigation of specific bilateral investment treaties and their application to specific land deals, the role of various investor protections in de-risking these deals, and the many legal arrangements (public and private) that accompany them. 3. Debt and structural adjustment The debt crisis of the 1980s and the structural adjustment regime that followed had a profound impact on many countries across the Global South. This story has been told many times. As the crisis of the 1970s unfolded in the wake of oil shocks and soaring food prices, these countries were forced to borrow extensively, including from Western private banks looking to recycle the vast flow of petrodollars generated by the oil price shocks. By the end of the 1970s, in the wake of the second oil shock and rampant inflation, the Federal Reserve under Paul Volcker dramatically increased US interest rates, which crushed many highly indebted countries, leading to the debt crisis of the 1980s and the IMF structural adjustment programs that followed.134 Left with little choice but to take on the new IMF conditionalities, countries in Africa and Latin America suffered a “lost decade,” marked by a dramatic contraction of public spending and public systems of provisioning, a massive retreat of state intervention in the economy, and very low growth rates.135 This forcing house of austerity and public asset stripping—“one of the largest transfers of property in history” according to one historian—not only opened these economies to private investment on terms much more favorable to investors but also increased the dependence of their governments and their populations on the global economy.136 While the specific impacts of debt and structural adjustment on agriculture and land markets have   See, e.g., Lorenzo Cotula, “Land Grabbing” and International Investment Law: Toward a Global Reconfiguration of Property?, in Yearbook on International Investment Law & Policy 2014–2015, at 192 (Bjorklund ed., 2016) (noting that “preliminary evidence indicates that a large share of agribusiness investments initiated during the recent surge in land deals are protected by investment treaties”); Borras et al., supra note 51, at 618 (“The current international investment regime, as promoted by the EU and its member states, contributes to an enabling international environment for land grabbing. One central concern is the imbalance between the protection offered to foreign investors and to communities negatively affected by foreign investments. Investment treaties are typically one-sided, and only investors can invoke treaty protections and issue claims against states—even using ISDS [Investor State Dispute Settlement] mechanisms to sue them. No similar mechanism exists at the international level for individuals or communities affected by land grabbing to hold foreign investors accountable”). 134   See Alexander E. Kentikelenis et al., IMF Conditionality and Development Space, 1985–2014, 23 Rev. Int’l Pol. Econ. 543 (2016). See also Alexander E. Kentikelenis and Sarah Babb, The Making of Neoliberal Globalization: Norm Substitution and the Politics of Clandestine Institutional Change, 124 Am. J. Soc. 1720, 1751 (2019). 135  This marked the definitive and painful end of more than two decades of struggle by Third World states to establish a new international economic order. See Ogle, supra note 129, at 225. 136   Id. 133

Food law’s agrarian question  51 varied across countries, several scholars have argued that these programs have operated as a “disciplining regime” that enabled extensive foreign land purchases in the mid-2000s.137 To the extent that international food law takes seriously the commitments of agrarian political economy, part of its agenda will necessarily entail careful investigation of the specific impacts of debt and structural adjustment on public systems of provisioning, on the opening up of land as a new asset class for private investors, and on the implications for people, communities, and local food systems. *** While each of these structuring mechanisms can be investigated on its own terms and across different national and subnational contexts, it is their combined effect that needs to be kept in view. International trade law worked to lower barriers to trade in agricultural products and pull more local food producers into the global trading system. International investment law worked to safeguard the rights of capital in making foreign investments in land and agriculture. And structural adjustment greatly diminished the public sector and hampered the ability of governments to regulate foreign investment. Together, these structuring mechanisms created an enabling environment for large land transactions, preparing the ground for the deployment of various micro-level techniques to carry out specific land deals in particular places. B. Techniques Acquiring large areas of farmland in the Global South entails a range of legal techniques, especially when it involves foreign entities. This includes dealing with very specific features of domestic legal systems governing land and real property, foreign investment, business organization, and contracts (among others). Taken together, these largely private law techniques are what allow land to be made into an investible asset or what Katarina Pistor might call a form of capital.138 Understanding these techniques and their entailments thus requires detailed investigation of specific transactions in specific jurisdictions involving a range of different actors (state and non-state) at multiple levels. In the context of foreign investment, this has all too often also involved the offshore world of tax havens and corporate secrecy that has grown up alongside the more formal institutions of the global economy—the world of “archipelago capitalism” to use Vanessa Ogle’s phrase.139 While this world is complex and largely hidden by design, recent document leaks such as the Paradise Papers and the Panama Papers have provided some insight into the use of these offshore techniques and the role of tax havens in channeling land and agricultural investments to Brazil, Indonesia, and other countries. One recent study, for example, found that 70% of

  See, e.g., Sassen, supra note 9, at 40.   See Pistor, supra note 54. 139   See Vanessa Ogle, Archipelago Capitalism: Tax Havens, Offshore Money, and the State, 1950s–1970s, 122 Am. Hist. Rev. 1431 (2017); Vanessa Ogle, “Funk Money”: The End of Empires, the Expansion of Tax Havens, and Decolonization as an Economic and Financial Event, 249 Past & Present 213 (2020). See also Borras et al., supra note 51, at 611–614 (describing the complex layers of ownership and control through various offshore holdings and companies in the specific corporate entities that are involved in specific land transactions on the ground). 137

138

52  Research handbook on international food law all investigated foreign capital invested in the soy and beef sectors in Brazil was transferred through one or more tax havens.140 Yet, while the offshore world provides a conduit for foreign investment and the means to conceal ownership, local land deals still require extensive engagement with widely varying domestic laws governing land and agricultural investment in so-called host countries. These laws determine who can own and/or use land, over what time frames, and under what conditions. In Ghana, for example, 80% of land is owned by local councils, known as stools, and the Ghanaian Constitution only allows foreign investors to acquire land through leasehold interests of limited duration (e.g. maximum 50-year terms that can be renewed, typically for an additional 45 years).141 In Mozambique, by contrast, the state holds title to all land under the Land Act of 1997, requiring domestic and foreign investors to acquire 50-year land use rights.142 In Brazil, restrictions on foreign land ownership were reintroduced in 2010 in response to widespread concerns about large-scale land deals by foreign investors. Notwithstanding the fact that the vast majority of large landholdings in Brazil are owned by Brazilians (and that Brazil has some of the highest levels of land concentration in the world), the measure had the effect of forcing foreign investors to work through companies and investment vehicles registered in Brazil, which in turn has obscured the true extent of foreign ownership interests in Brazilian farmland without doing much of anything to stop large land transactions.143 In Indonesia, by contrast, large land deals in the oil palm and pulp and paper sectors often involve the granting of government concessions to a handful of major players, some of which are partly owned by foreign entities, which then give rise to various negotiations, transactions, revisions, and sometimes forced removals of smallholders and others living on and asserting customary rights and claims to these lands.144   See Victor Galaz et al., Tax Havens and Global Environmental Degradation, 2 Nature Ecology Evolution 1352 (2017). 141   Ghana Constitution § 266 (1992). 142   See, e.g., Christopher Tanner, Land Rights and Enclosures: Implementing the Mazombican Land Law in Practice, in The Struggle Over Land in Africa: Conflicts, Politics & Change (Anseeuw & Alden eds., 2010); Isilda Nhantumbo and Alda Salomão, Biofuels, Land Access, and Rural Livelihoods in Mozambique, (International Institute for Environment and Development, 2010). 143   See, e.g., Nicolás Marcelo Perrone, Restrictions to Foreign Acquisitions of Agricultural Land in Argentina and Brazil, 10 Globalizations 205, 207 (2013) (discussing 2010 restrictions on foreign land ownership in Brazil and noting that “the use by foreign actors of Brazil-based and registered firms to hide foreign ownership is considered a serious problem that makes it very difficult for the state to determine how much land is under foreign control”); John Wilkinson et al., Concentration and Foreign Ownership of Land in Brazil in the Context of Global Land Grabbing, 33 Can. J. Dev. Stud. 417 (2012) (detailing history of restrictions on foreign ownership of land in Brazil); Fairbairn, supra note 7, at 106–131 (discussing the development of land law in Brazil and the perverse consequences of trying to limit foreign land ownership). 144   See, e.g., John F. McCarthy & Kathryn F. Robinson, Land, Economic Development, Social Justice and Environmental Management in Indonesia: The Search for the People’s Sovereignty, in Land and Development in Indonesia: Searching for the People’s Sovereignty 12–14, 20–22 (McCarthy & Robinson eds., 2016); Tania Murray Li, Commons, Co-Ops, and Corporations: Assembling Indonesia’s Twenty-First Century Land Reform, 49 J. Peasant Stud. 613, 626–629 (2021) (discussing role of corporations holding state-issued timber, mining and plantation concessions in Indonesian land conflicts); Christian Lund, Predatory Peace: Dispossession at Aceh’s Oil Palm Frontier, 45 J. Peasant Stud. 431, 438–443 (2018) (discussing how smallholder claims over land were diminished and absorbed into oil palm plantation schemes). See also Laura Schoenberger, 140

Food law’s agrarian question  53 These varied and variable features of domestic land laws have in turn given rise to a host of different corporate forms, special purpose vehicles, and joint ventures, often with complicated ownership structures intended to comply with formal legal requirements, to acquire farmland in specific countries. In Brazil, for example, international investors such as TIAA have worked through various Brazilian affiliates to create operating companies that satisfy domestic ownership requirements and that engage with local actors at arm’s length, who then use a range of legal and extra-legal means, including fraud and even violence, to amass large landholdings in highly productive regions such as the Brazilian Cerrado.145 As noted previously, INCRA, the federal Brazilian land agency, and at least one Brazilian state court have found that some of the land acquired by TIAA-backed investment funds, along with land acquired by Brazilian affiliates of the Harvard Endowment, was acquired through illegal land grabbing.146 Ghana is another jurisdiction that has seen extensive interest from foreign investors. Between 2006 and 2010, several large biofuel ventures were undertaken in Ghana, stimulated in part by the demand created by EU biofuel mandates.147 Investors from Canada, India, the United States, Norway, and other European countries developed multiple joint ventures with Ghanaian companies that transacted directly with local councils to secure large land leases.148 Profit-sharing arrangements were sometimes included (75% to the investors; 25% to the local council).149 Many of these deals were in the multiple tens of thousands of hectares.150 The largest Derek Hall & Peter Vandergeest, What Happened When the Land Grab Came to Southeast Asia, 44 J. Peasant Stud. 697, 706–708 (2017) (discussing land grabbing and oil palm expansion in Indonesia and Malaysia). 145   See, e.g., Bruno Rezende Spadatto et al., Unpacking the Finance-Farmland Nexus: Circles of Cooperation and Intermediaries in Brazil, 18 Globalizations 461, 463–470 (2021) (discussing different ownership structures used by TIAA and other foreign investors to acquire minority ownership stakes in Brazilian farmland and various techniques used on the ground to amass large landholdings); Fairbairn, supra note 7, at 123–127 (discussing use of corporate form and other techniques used by foreign investors such as TIAA to acquire large landholdings). 146   See, e.g., Simon Romero, TIAA-CREF, U.S. Investment Giant, Accused of Land Grabs in Brazil, N.Y. Times (Nov. 16, 2015); Tatiana Freitas, U.S. Pension Fund TIAA Embroiled in Brazil LandBuying Probe, Bloomberg (Dec. 17, 2020); Associa o de Advogados de Trabalhadores Rurais, GRAIN and Rede Social de Justi a e Direitos Humanos, TIAA and Harvard’s Brazilian Farm Deals Judged Illegal (Dec. 2020). 147  Ivan Nygaard & Simon Bolwig, The Rise and Fall of Foreign Private Investment in the Jatropha Biofuel Value Chain in Ghana, 84 Env’t Sci. & Pol’y 224, 226 (2018). 148   See, e.g., Kristina Lanz et al., Land Grabbing, the State and Chiefs: The Politics of Extending Commercial Agriculture in Ghana, 49 Dev. & Chg. 1526, 1528 (2018) (noting that the majority of large land deals in Ghana have been negotiated directly between foreign investors and traditional authorities, often bypassing state authorities and local communities). See also id., at 1533 (noting that “[i]n the 1980s, President Jerry Rawlings implemented one of Africa’s first and most far-reaching structural adjustment programmes, which opened the Ghanaian market to foreign investment”). 149   See, e.g., Festus Boamah, How and Why Chiefs Formalise Land Use in Recent Times: The Politics of Land Dispossession Through Biofuels Investments in Ghana, 41 Rev. African Pol. Econ. 406, 413 (2014) (discussing profit sharing arrangement in biofuels land deal in Ghana). 150  In 2007, for example, ScanFarm Ghana entered into a Head of Agreement for 303,514 hectares in the Ashanti region (Agogo and Asante Akyim North) as well as several other smaller leases. See Deal # 2241, Land Matrix https://landmatrix​.org​/deal​/2241/ (last visited May 17, 2022). ScanFarm is wholly owned and operated by ScanFuel AS Norway. ScanFarm Ghana offered 1 Ghanaian cedi (about 17 cents at the time) for each acre of stool land it leased. However, it is unclear how much was actually paid for the land, with some reports suggesting that only 50%

54  Research handbook on international food law reported deal was a leasing arrangement for 400,000 hectares with INGA Farms Limited in the Ashanti region with an unknown lessor.151 The lease appears to be for the maximum 50-year duration, with an option to renew for a second term of 45 years.152 Several of these large land deals have been quite controversial in Ghana because of an alleged lack of consultation with community members and smallholders, many of whom were dispossessed without any notice or payment. Litigation in Ghanaian courts has been ongoing since at least 2012.153 In all of these cases, there is a need to attend closely to the various actors, institutions, and techniques on the ground in order to understand how land is actually grabbed in specific places. All of this raises important questions about ongoing efforts to formalize land rights and secure title in many countries throughout the Global South—an effort that one scholar refers to as the “emerging orthodoxy” on land governance.154 By providing clear title and making land alienable, efforts to formalize land rights have long been viewed by the mainstream development community as one of the most critical institutional and legal reforms necessary to provide a stable domestic legal environment for land transactions, particularly when they involve foreign buyers, and to thereby promote investment and economic growth.155 Careful investigation of various land tenure reform efforts, however, indicates that efforts to secure “clean and clear title” and the concomitant ability to sell or lease land can generate unintended consequences and reinforce existing structures of inequality.156 Clear title in the absence of land redistribution and agrarian reform, in other words, does little to address the deeper structural inequalities that often pervade the land sector. Clear title, moreover, is hardly a prerequisite for large land transactions, as various case studies of large land deals that exploit the ambiguity inherent in customary land claims make clear. Moreover, in some frontiers, such as

of the initial offer was paid to the Agogo Traditional Council. ScanFarm’s annual rent started at USD $1 per acre, which increased by USD $0.50 each year for 12 years. See Elias Danyi Kuusaana, Large-Scale Acquisitions for Agricultural Investments in Ghana – Implications for Land Markets and Smallholder Farmers 1, 10–11 (Sept. 30, 2016) (PhD dissertation, Universität Bonn). 151   See Deal 3393, Land Matrix https://landmatrix​.org​/deal​/3393/ (last visited May 17, 2022). 152   Id. 153  One of Scan Farm’s smaller leasehold interests, for example, resulted in the dispossession of 75 usufructuary rights holders and migrant farmers. Community consultation did not occur at any stage of the contract process. Following demonstrations, ScanFarm paid approximately USD $41.60 per acre of dispossessed land to the usufruct holders. Those who refused the compensation still lost use of their land regardless. By contrast, migrant workers were not offered anything for their losses. See Kuusaana supra note 150, at 11. 154   See Laura German & Carla Braga, Decentering Emergent Truths on Tenure Security: Archaeology of a Global Knowledge Regime, 48 J. Peasant Stud. 1228, 1244 (2021) (referring to the “emergent land governance orthodoxy” around titling and secure tenure). 155   See, e.g., Hernando De Soto, The Mystery of Capital: Why Capitalism Triumphs in the West and Fails Everywhere Else (2000). 156   See, e.g., German & Braga, supra note 154, at 1241 (“[T]here is ample evidence to question the role of titling in advancing tenure security for women and customary rights holders”); Tor A. Benjaminsen et al., Formalisation of Land Rights: Some Empirical Evidence from Mali, Niger and South Africa, 26 Land Use Pol. 28, 33–34 (2009) (discussing reasons why formalization efforts “may breed exclusion and fail in a distributional sense”); Willem Assies, Land Tenure, Land Law, and Development: Some Thoughts on Recent Debates, 36 J. Peasant Stud. 573, 582–583 (2009) (reviewing and challenging the argument that formal titling facilitates access to credit).

Food law’s agrarian question  55 parts of the Brazilian Amazon, land grabbing (grilagem) is often the road to clear title rather than a product of land titling.157 C. Governance In the wake of the post-2006 global land rush, various international institutions sought to develop a range of soft law principles of “responsible agricultural investment” intended to guide investors seeking to do large land transactions in the Global South.158 In 2009, for example, the UN Food and Agriculture Organization (FAO), the International Fund for Agricultural Development, the UN Conference on Trade and Development (UNCTAD), and the World Bank formed an Inter-Agency Working Group on Responsible Agricultural Investment that resulted in a set of Principles of Responsible Agricultural Investment (PRAI) that were later taken over by the FAO’s Committee on World Food Security and formally adopted in 2014.159 At roughly the same time, the FAO also began consultations on what would become the Voluntary Guidelines on the Responsible Governance of Tenure of Land, Fisheries, and Forests in the Context of National Food Security (VGGT).160 Unlike the process that led to the PRAI, the VGGT discussions were considered to be more “bottom-up” as they included civil society organizations such as La Via Campesina, at least in the initial iterations.161 Finally, the office of the UN Special Rapporteur on Food has also been active in developing a set of “core principles” on large foreign land transactions and has worked to open up space for various

 By clearing public forestland to create pasture, local land grabbers stake their claim on land, initiating a chain of events resulting in clear legal title and sale and purchase in the local domestic land market. See, e.g., B. Probst et al., Impacts of a Large-Scale Titling Initiative on Deforestation in the Brazilian Amazon, 3 Nature Sustainability 1019 (2020) (employing extensive survey of landholders to find that small and medium landholders increased deforestation in response to the government’s Terra Legal land titling program and concluding that titling alone without greater coordination with other policies will not yield the expected environmental benefits). 158   See, e.g., Principles for Responsible Investment in Agriculture and Food Systems, jointly developed in 2010 by FAO, IFAD, the World Bank, and UNCTAD; the FAO’s 2012 Voluntary Guidelines on the Responsible Governance of Tenure; and the UN Special Rapporteur on the Right to Food’s 2009 core principles on large land transactions and leases. 159   The Inter-Agency Working Group, Food and Agriculture Organization of the United Nations, www​.fao​.org​/economic​/est​/issues​/investment​/iawg​/en/ (last visited Mar. 11, 2022). See also About the IAWG, Responsible Agricultural Investment, https://res​pons​ible​agro​inve​ stment​.org​/about​-the​-iawg/ (last visited Mar. 11, 2022); Preeti S. Ahuja, Empirical Research on Application of Responsible Investments (RAI) Principles: Lessons & Findings from the Field, World Bank Group 3–4 (Oct. 25, 2016), www​.mofa​.go​.jp​/files​/000198916​.pdf. See also Principles for Responsible Investment in Agriculture and Food Systems, Committee on World Food Security 5 (2014), www​.fao​.org​/3​/au866e​/au866e​.pdf. 160   Understanding the VGGT, Land Portal https://landportal​.org​/fr​/voluntary​-guidelines​/understanding​-the​-vggt (last visited Mar. 11, 2022). See also Voluntary Guidelines on the Responsible Governance of Tenure of Land, Fisheries and Forests in the Context of National Food Security, Food and Agriculture Organization of the United Nations vi (2012), www​.fao​.org​/3​/ i2801e​/i2801e​.pdf. 161   Responsible Farmland Investing? Current Efforts to Regulate Land Grabs Will Make Things Worse, Grain 5 (Aug. 22, 2012), https://grain​.org​/e​/4564; Understanding the VGGT, Land Portal https://landportal​.org​/fr​/voluntary​-guidelines​/understanding​-the​-vggt (last visited Mar. 11, 2022). 157

56  Research handbook on international food law rights-based counter-movements seeking to articulate a more grounded approach rooted in notions of food sovereignty and control over land by indigenous and local communities. None of these efforts have any binding effect and there are serious questions about whether public international law is even capable of a meaningful response to the many concerns about large land transactions. Some have argued in fact that these voluntary efforts may do more harm than good in that they tend to legitimize and normalize large land deals under a rubric of corporate social responsibility. All of this suggests more attention to domestic law and the ability (and political will) of host country governments seeking to regulate private economic investments in land and agriculture. To date, much of this discussion has operated at a fairly high level of abstraction, focused on the contradictory roles of the state in facilitating large land deals on the one hand while also trying to offer some protections for smallholders and local communities.162 Consistent with the framework proposed here, there is much more to do in this area and international food law scholars are well placed to investigate the possibilities and limits of public international law on the one hand and the challenges of using domestic law on the other to govern large land deals in ways that recognize and take seriously law’s constitutive role in these distributional struggles over land.163

IV.

LAND, FOOD SECURITY, AND THE CLIMATE CRISIS

It is difficult to write about agriculture and food today without engaging with the climate crisis. Currently, agriculture, forestry and other land use (AFOLU in UN speak) account for about a quarter of global greenhouse gas (GHG) emissions.164 Agricultural expansion— mainly for the big global commodities (soy, beef, and palm oil)—is the largest driver of tropical deforestation globally,165 which by itself accounts for a significant amount of global GHG emissions (around 10%) and is the leading threat to the world’s biodiversity as well as many of the world’s remaining indigenous cultures and millions of local forest-dwelling people.166   See, e.g., Wendy Wolford et al., Governing Global Land Deals: The Role of the State in the Rush for Land, 44 Dev. & Change 189 (2013) (discussing the contradictory role of the state in land grabs). 163   Cf. Kennedy supra note 52, at 143 (“[F]ocusing on the promise of ‘human rights’ or ‘corporate social responsibility’ or the ‘precautionary principle’ as limits on political and economic activity encourages the notion that states and corporations are otherwise natural phenomena subject only to such weak limitations, rather than being legally constructed in ways which could be changed”). 164   IPCC, Climate Change and Land: Summary for Policymakers 8 (2020) (“An estimated 23% of total anthropogenic greenhouse gas emissions (2007–2016) derive from Agriculture, Forestry and Other Land Use (AFOLU)”). See also Francesco N. Tubiello et al., Greenhouse Gas Emissions from Food Systems: Building the Evidence Base, 16 Env’t. Rsch. Letters 065007, at 2 (2021) (citing estimates of GHG emissions from global food system as accounting for a third or more of global GHG emissions). 165   See Florence Pendrill et al., Agricultural and Forestry Trade Drives Large Share of Tropical Deforestation Emissions, 56 Glob. Env’t Change 1 (2019). 166  Estimates of the contribution of tropical deforestation to global GHG emissions vary significantly due to different definitions and included processes, different methods, and large uncertainties. See, e.g., E.T.A. Mitchard, The Tropical Forest Carbon Cycle and Climate Change, 559 Nature 527 (2018) (discussing variability of estimates). The widely cited Global Carbon Budget, for example, estimates that land use change currently accounts for about 10% of global anthropogenic greenhouse gas emissions, with the vast majority of these emissions coming from tropical deforestation. 162

Food law’s agrarian question  57 Viewed as a whole, the global agro-food system is thus a major source of GHG emissions, the main driver of tropical deforestation and biodiversity loss, and one of the most vulnerable economic sectors to climate disruption. While the global food system has achieved high levels of productivity over the last 50 years, in part as a result of improved seeds and other green revolution technologies and heavy inputs of fossil hydrocarbons, land degradation together with prolonged drought, water scarcity, and extreme weather associated with climate change have begun to slow the rate of productivity growth. Most studies investigating the effect of climate change on food production indicate an aggregate reduction in future agricultural productivity, particularly in low-latitude regions. One recent study, for example, found that since 1960 anthropogenic climate change has reduced global agricultural productivity by 21%— the equivalent of seven years of productivity growth.167 Reductions were greater in warmer regions such as Africa (34%) and Latin America and the Caribbean (25.9%) than in North America (12.5%) and Europe and Central Asia (7.1%).168 This exposure of the global food system to intensifying climate disruption together with the structural vulnerabilities embedded in the world food economy are combining to generate a staggering level of human suffering that has been steadily worsening for much of the last decade. At the extremes, hundreds of millions of people face deepening subsistence crises and massive displacement that manifest in chronic hunger, starvation, forced migration, and violence.169 In 2020, for the seventh year in a row, the number of people in the world suffering from chronic hunger increased in absolute terms, rising to an estimated 768 million (about one out of every ten human beings on the planet).170 Almost a third of the entire global population today lives in a state of severe or moderate food insecurity, including 60% of Africans and 40% of Latin Americans.171 Globally, more than one in five children under the age of five are stunted.172

See Global Carbon Budget 2021, Global Carbon Project (2021). A more recent study using different methods indicates that the Global Carbon Budget estimates significantly understates the true contribution and points to substantial increases in carbon losses from tropical forests over the last two decades. See Y. Feng et al., Doubling of Annual Forest Carbon Loss Over the Tropics During the Early Twenty-First Century, Nature Sustainability (2022), https://doi​.org​/10​.1038​ /s41893​- 022​- 00854​-3. See also Rajeev Pillay et al., Tropical Forests are Home to Over Half of the World’s Vertebrate Species, 20 Frontiers Ecology Env’t 10 (2022) (discussing importance of tropical forests for biodiversity); J.E.M. Watson et al., The Exceptional Value of Intact Forest Ecosystems, 2 Nature Ecology & Evolution 599, 603–604 (2018) (discussing importance of forests for indigenous peoples). 167   See IPCC, supra note 39, at SPM-14; Ariel Ortiz-Bobea, Anthropogenic Climate Change has Slowed Global Agricultural Productivity Growth, 11 Nature Climate Change 306 (2021); C. Zhao et al., Temperature Increase Reduces Global Yields of Major Crops in Four Independent Estimates, 114 PNAS 9326 (2017); S. Asseng et al., Rising Temperatures Reduce Global Wheat Production, 5 Nature Climate Change 143 (2015); David B. Lobell & Christopher B. Field, Global Scale Climate–Crop Yield Relationships and the Impacts of Recent Warming, 2 Env’t Rsch. Letters 014002 (2007). 168  Ortiz-Bobea supra note 167, at 310. 169   See, e.g., Christian Parenti, Tropic of Chaos: Climate Change and the New Geography of Violence (2011). 170   See FAO, supra note 38, at xv. 171   Id. 172   Id.

58  Research handbook on international food law And yet, even though the world produces enough calories for 12 to 14 billion people, roughly 70% of the two-plus billion people in the world suffering from hunger and food insecurity are food growers: small farmers and agricultural laborers in the Global South.173 Perhaps most disturbing of all, more than a third of food produced globally is lost or wasted on the supply chain from farms to traders, food processors, stores, and supermarkets.174 More than enough to feed the world’s hungry, much of this wasted food rots in garbage heaps and landfills, producing substantial amounts of greenhouse gas emissions.175 According to the FAO, the main causes of the sustained recent increases in global hunger and food insecurity are conflict, climate change, and economic crises—a toxic cocktail that has been brutally on display in the context of the Russian invasion of Ukraine.176 Although much of the increase has been concentrated in sub-Saharan Africa and Latin America, hunger is also on the rise in Asia, Europe, and North America.177 For many millions of people, widespread loss of economic opportunity translates into diminished livelihoods, material deprivation, and displacement. Worldwide, the UN and others have estimated that the number of “climate migrants” could reach more than one billion by 2050.178 Even if the real number is a small fraction of that,179 it represents an astonishing number of people on the move that will create enormous strains not only on the resources but also on the capacity for mercy in the places where they will seek refuge. To say that the world food system is in crisis and uniquely vulnerable to climate disruption is to state the obvious. Finding ways to enhance food security is once again moving to the top of the international agenda. But the stakes seem far more serious now in the wake of the COVID-19 pandemic and as conflict and climate change compound the deepening subsistence crises confronting hundreds of millions of people around the world. The Paris Agreement on Climate Change acknowledges this, noting “the fundamental priority of safeguarding food security and ending hunger, and the peculiar vulnerabilities of food production systems to the adverse impacts of climate change.”180 And, of course, the   See UNCTAD, Trade and Environment Review 2013: Wake Up Before it is Too Late: Make Agriculture Truly Sustainable Now for Food Security in a Changing Climate (2013). 174   See, e.g., Ivar Vågsholm et al., Food Security, Safety, and Sustainability—Getting the Trade-Offs Right, 4 Frontiers Sustainable Food Sys., 1, 3 (2020) (citing estimates that more than one-third of food is lost or wasted along the production chain). 175   Id. (noting that “foodstuffs lost and wasted represent around 28% of the world agricultural area and 8% of global greenhouse emissions” and that this lost and wasted food could feed more than one billion additional people). 176   See id. at xiv (“Climate variability and extremes are a key driver behind the recent rises in global hunger and one of the leading causes of severe food crises”). See also FAO, The State of Food Security and Nutrition in the World: Building Climate Resilience for Food Security and Nutrition, at xii (2018). 177   Id. 178   See Jon Henley, Climate Crisis Could Displace 1.2bn People by 2050, Report Warns, The Guardian (Sept. 9, 2020). 179   See Ingrid Boas et al., Climate Migration Myths, 9 Nature Climate Change 901, 901–902 (2019) (raising concerns about the “false narrative that predicts large numbers of ‘climate refugees’” that works to “entrench[] climate migration as a looming security crisis without an empirical scientific basis”). 180   Paris Agreement to the United Nations Framework Convention on Climate Change, Dec. 12, 2015, T.I.A.S. No. 16-1104.

173

Food law’s agrarian question  59 international climate regime has long recognized the role of agriculture, forests, and land use in contributing to climate change as well as their potential role as part of a portfolio of socalled natural climate solutions.181 But any honest assessment of the international climate regime makes clear that there is no real appreciation for the structures and institutions that have created the current food crisis.182 Indeed, much of the standard climate policy discourse privileges markets and technological solutions aimed at increasing yields and enhancing resilience, all too often premised on the widespread (if unstated) conviction that smallholder agriculture, particularly in sub-Saharan Africa, is “inefficient” and “backward.” “Climate smart agriculture” has emerged as the new frame for this undertaking among international donors, transnational agribusiness, and much of the philanthropic community.183 This is, as noted in the introduction, the Gates Ag One vision.184

 It is also important to recognize the various ways that agriculture, forests, and land use are being targeted for climate mitigation. Biofuels mandates are one obvious example, where policy targets in Europe and the US have driven substantial investments in new crops that compete with food crops and undermine local food production. But these concerns are also apparent in the substantial attention of the climate policy community to restoration and reforestation of degraded and “marginal” lands and the growing enthusiasm among large corporate emitters to use forest carbon offsets to achieve their net-zero targets. See, e.g., Tomoko Hasegawa et al., Risk of Increased Food Insecurity Under Stringent Global Climate Change Mitigation Policy, 8 Nature Climate Change 699 (2018); Shinichiro Fujimori et al., Land-Based Climate Change Mitigation Measures Can Affect Agricultural Markets and Food Security, 3 Nature Food 110 (2022); OXFAM, Tightening the Net: Net Zero Climate Targets—Implications for Land and Food Equity (2021). 182  This is arguably true of international law more generally. See, e.g., Anne Saab, Narratives of Hunger in International Law: Feeding the World in Times of Climate Change 1 (2019) (arguing that the dominant narratives of hunger in international law are based on the same underlying assumptions and “inherently narrow” and limited in their understanding and approach to feeding the world). 183   See, e.g., Leslie Lipper et al., Climate-Smart Agriculture for Food Security, 4 Nature Climate Change 1068, 1068 (2014) (“Climate-smart agriculture (CSA) is an approach for transforming and reorienting agricultural systems to support food security under the new realities of climate change”). CSA has received considerable attention and enthusiasm from the mainstream climate policy community. See, e.g., UNFCCC, Climate Smart Agriculture (15 Oct. 2021), https://unfccc​.int​/blog​/climate​-smart​-agriculture. For more critical assessments, see Jennifer Clapp, Peter Newell & Zoe W. Brent, The Global Political Economy of Climate Change, Agriculture and Food Systems, 45 J. Peasant Stud. 80, 83 (2018) (arguing that the dominant “technology plus markets” approach to agricultural development policy over the last 50 years “is now being justified as more urgent than ever because of climate challenges” and rebranded as climate-smart agriculture); Peter Newell & Olivia Taylor, Contested Landscapes: The Global Political Economy of Climate-Smart Agriculture, 45 J. Peasant Stud. 108, 109–111 (2018) (“The majority of CSA literature is policyoriented, articulated through a language of ‘toolkits’ and ‘pathways’, rather than engaging with issues of power, authority, and equity. Moreover, there is an unusual degree of blurring in CSA debates between policy and academic literature; a large number of journal articles about CSA authored by agricultural scientists working for the institutions which are most influential in driving the agenda. … [C]ritical attention to the underlying politics and political economy of CSA is still lacking”). 184   See Gates Ag One, www​.gatesagone​.org/ (last visited May 17, 2022); World Bank Group, ClimateSmart Agriculture, www​.worldbank​.org​/en​/topic​/climate​-smart​-agriculture (last visited May 17, 2022). 181

60  Research handbook on international food law To be clear, smallholders all over the world do need investment, extension services, enhanced credit and insurance, and access to markets. These have been core challenges for rural development for decades. And it is surely too early to say whether the widespread (and understandable) enthusiasm for more resilient approaches to farming and agriculture will work to empower smallholders and reduce their vulnerability or whether the push for more capital, more technology, and better inputs will further entrench the power of large agribusiness companies at the expense of smallholders and rural communities. From the perspective of agrarian political economy, the key question is how the agenda of climate smart agriculture will get adopted or perhaps even appropriated by foreign and domestic interests seeking to take hold of land-based production. Rather than simply accepting that this could all end up as a win-win, as boosters suggest, there is a pressing need to investigate in detail how climate smart agriculture is driving the development of new legal and economic relationships. Here again, international food law has an opportunity not only to contribute to but also to lead the way in critically assessing how the growing enthusiasm for climate smart agriculture will shape the inevitable distributional struggles over the organization and governance of food systems in a climate-changed world. In all of this, it is critical to avoid the long-standing tendency to view hunger as a technical problem – a problem of technology, productivity, and investment. As decades of research on famine and subsistence crises have made clear, hunger and food insecurity stem not from lack of food but from lack of the means to acquire enough food.185 Put another way, hunger is fundamentally a problem of political economy—a question, as Anne Saab puts it, of “who gets to eat and why.”186

V. CONCLUSION: FOOD LAW’S AGRARIAN QUESTION It is a mistake to reduce the post-2006 global land rush to a story of privatization or financialization or commodification—all ways of talking about the penetration of market logics— without also attending to the ways in which these processes were enabled by law at multiple levels and without recognizing the diversity of ways that capital is taking hold of land-based production around the world. Put another way, the simple story of dispossession embraced by some of the early literature on land grabbing needs to be qualified with more attention to the diversity of ways that farmers (large and small) are being pulled into new market relationships in some cases, excluded in others, and dispossessed without necessarily being displaced. Understanding these dynamics means paying attention to markets and supply chains and the different ways that corporate actors and governments are taking hold of land-based production in different jurisdictions all over the world. But it also means paying attention to the macro-level structuring mechanisms that have shaped the larger political economy of the   Amartya Sen, Poverty and Famines (1981); Michael Watts, Silent Violence: Food, Famine, and Peasantry in Northern Nigeria (1984); Mike Davis, Late Victorian Holocausts: El Niño Famines and the Making of the Third World (2002). 186   See Saab, supra note 44, at 257. See also id. (discussing how the climate regime has contributed to “a global food economy characterized by neoliberalism” that “constructs a specific understanding of hunger and food insecurity as primarily problems of production, and presents technological innovations, private sector engagement, and economic market-based mechanisms as primary solutions”). 185

Food law’s agrarian question  61 global agro-food system and “prepared the ground,” as Saskia Sassen observes, for large land deals.187 That means working across substantive legal domains and legal systems. It means studying up and studying down, trying to grasp the whole, rather than repairing back to our usual areas of specialization. Perhaps most importantly, it means getting out and working in diverse and complicated places, getting out and understanding how global projects are being worked out in concrete institutional settings all over the world. The agrarian question and the field of agrarian political economy that grew out of it provide some purchase on this effort. In seeking to understand the place of agriculture within a larger world economic system and the distinctive challenges involved in the capitalist transformation of agriculture, it brings with it a broad view of political economy. Lawyers and legal scholars interested in food and agriculture have much to gain by engaging the concepts, methods, and commitments of this field. But they also have much to offer. Indeed, it is clear that the long tradition of agrarian political economy has a radically underdeveloped understanding of the role of law and lawyering in enabling the ability of capital to take hold of agriculture and land-based production in different ways, across different geographies, and in different historical eras. Perhaps this is a residue of the crude base-superstructure models that have haunted political economy for too long, where law is reserved for the superstructure and taken to be a reflection of the real material conditions and social relations of the base. As E.P. Thompson once said in his own unsparing critique of such models: “law [does] not keep politely to a ‘level’ but [is] at every bloody level.”188 Law has been central in structuring the relationships between states, the balance of power in the interstate system, the rights of capital, and the ability of investors to take hold of land in faraway places. Law also offers a set of resources or tools—the bread and butter of everyday private lawyering—to create new business arrangements, new forms of capital, and new ways of accessing and taking hold of land and integrating it into transnational value chains. In all of these ways, law can and does operate as an instrument of dispossession and structural violence. Throughout the long history of enclosures and dispossessions, countless millions of smallholders have lost their land through formally legal means.189 Many millions more will likely experience a similar fate.190 Unpacking the legal arrangements by which this   See Sassen, supra note 9.   E.P. Thompson, The Poverty of Theory and Other Essays 96 (1978). See also David Kennedy, Law, Expertise and Global Political Economy, 23 Tilburg L. Rev. 109, 117 (2018) (“The world is awash in legal norms and claims and procedures and institutions which are tools for distributive struggle, records of past victories and defeats, a vocabulary of assertion and dispute with its own blindspots and biases. Legal rules, arguments and institutions make it possible for people to exclude others, capture and retain the gains from economic, political, or cultural activity, legitimating the outcome as order rather victory. That is why people struggle over these things so insistently, As a result, legal arrangements offer a red thread to unravel the mystery of the world’s great disparities”). 189   Cf. Stuart Banner, How the Indians Lost Their Land (2005). 190   See German & Braga, supra note 154, at 1247 (“[N]arrow conceptions of rights and the instruments through which they are deployed play a crucial role in assembling land as a resource that may be disentangled from the web of relationships in which it is embedded, and thereby alienated for the purposes of investment”). See also id. at 1250 (referring to the “emergent land governance orthodoxy” around titling and secure tenure as “instruments of polite dispossession”). 187

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62  Research handbook on international food law happens—unmasking the structures of the global economy and uncovering the techniques used to shape and succeed in distributional struggles over land—does not provide any sort of recipe or roadmap for changing these outcomes. But it does allow us to begin to see that things could have been—and still could be—different. As the climate crisis accelerates and as the world’s population continues to grow, arable land will only become more valuable in the years ahead. For asset managers and wealthy investors, this will continue to present an important investment opportunity. For corporate actors in the global agro-food system, it will strengthen the incentives to find ways to take hold of farmland and integrate it into transnational supply chains to serve distant markets. Those endowed with the knowledge, skills, and resources needed to make this happen will continue to enjoy a huge advantage in the ongoing struggles over access to and control over farmland and the food that is produced on that land. International food law has an opportunity, perhaps even an obligation, to understand these struggles and the stakes involved and to make visible the many ways that law shapes and constitutes them.

4. The intersection of international, European, and global food law: rules, trends, and challenges Ferdinando Albisinni

1. THE ORIGINS Over the past 30 years, food law has provided a lens through which to evaluate regulatory innovations and the role of science in its multiple declinations. Such evaluation reminds us that technical and legal innovations are in constant relation, even if Montesquieu’s observation that “laws are the necessary relations arising from the nature of things” does not always appear true.1 Nowadays, the national dimension2 in the European Union framework appears no more sufficient to answer problems and cases of real-world challenges (“the nature of things”), and we are facing a global dimension, which expresses a growing tendency to share models and answers. This tendency is the result of a process that saw the interaction of a multiplicity of actors: legislators, judges, and law scholars, all facing the same challenges, even when located within jurisdictions not necessarily homogeneous. The traditional approach of legislation, mainly consisting of administrative rules operating within the political borders of national states, has been substantially subverted in the last decades due to global trade and new sources of regulation that transcend national borders. As a result, in recent years, the study of food regulation, for a long time in Europe confined to non-legal curricula for non-legal recipients, has found general acceptance in the legal curricula. This acceptance includes attracting the attention of legal scholars with the introduction of courses in food law in a growing number of European law schools, as in the United States,3 Asia, and South America. Agricultural law scholars, traditionally approaching topics enclosed within the borders and barriers of domestic territory (agricultural structures and production, access to land and land use, contracts, rights, and privileges), are progressively attracted to investigate the new emerging legislation regulating food products, food producers, and more generally the entire agri-food chain “from farm to table.”4 The emergence from agricultural law of a systemic approach to food law is evidenced by several developments, including the publication of the  As L. de Montesquieu assumed in De l’esprit des lois, 1748.  By “national dimension” I refer to the traditional state dimension of the rule of law, qualified as hard law. The rise of modern states in Europe has seen the rise of national rules and the disapplication of the middle age “jus commune” (distinguished from British common law). See Gino Gorla, Diritto comparato e diritto comune europeo, Milano, Giuffrè, 1981; and Paolo Grossi, L’ordine giuridico medievale, Laterza, Bari, 2017. 3  Michael T. Roberts, Food Law in the United States, Cambridge University Press, 2016, 6. 4  As defined by the well-known formula adopted by the European Commission in the document, “White paper on food safety”, Brussels, 12 January 2000, COM (1999) 719 final. 1 2

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64  Research handbook on international food law first manuals on food law written by agricultural scholars,5 the reference to food in titles of existing journals on agricultural law,6 the establishment of food law associations,7 and the publications of new journals on food law8 explicitly addressed to an audience of legal scholars,9 rather than just technicians or scientists. Multiple legal bases, goals, and legal tools may challenge the notion of a systemic approach; however, it is difficult to dispute that food law is increasingly integrated. One could characterize food law as an open laboratory, with crossing tensions and unconventional methods of rule-making, where international, regional, and national levels intersect, and private and public responsibilities are unified through vertical and horizontal cooperation and subsidiarity. From a European perspective, the complexities of this regulatory regime are evident by the growing trend to share models and answers with legal systems outside the European Union, implementing what comparative scholars call “legal transplants.”10 An apt descriptor for this agricultural and food law integration is “agri-food law.” As a concept, agri-food law continues to evolve in a European and global context due to communication and integration among legal systems. In this space, non-traditional sources play a decisive role in establishing rules regulating the daily life of food producers and consumers.11 This evolution is a break from the past where agricultural law and food law have been traditionally locally oriented regarding rules, attitudes, and formulas.12 Due to the complexities of this evolution, it is not surprising that in the European Community legislative harmonization and unification of rules in the agriculture and food sectors moved much slower than in other sectors involving production and consumption. It

 Just to mention the first food law manuals published in the domestic experience of this author, see L. Costato, Compendio di diritto alimentare, Cedam, 2002; S. Masini, Corso di diritto alimentare, Giuffré ed., 2008; F. Albisinni, Strumentario di diritto alimentare europeo, Utet, 2009. A similar process may be seen in other Mediterranean countries, like France and Spain, where agricultural lawyers addressed their studies to the new area of food law; see L. Lorvellec, Écrits de droit rural et agroalimentaire, Dalloz, 2002; V. Rodríguez Fuentes (ed.), El derecho agroalimentario, Bosch ed., Barcelona, 2003; while in the northern part of Europe, studies on food law attracted mainly scholars of administrative law or of European community law: see B. van der Meulen and M. van der Velde, Food Safety Law in the European Union – An Introduction, Wageningen Publ., 2006; C. MacMaoláin, EU Food Law, Hart Publ. 2007.  6  Among the Italian law journals, the Rivista di diritto agrario, published since many decades, added to its title Agricoltura – Alimentazione – Ambiente; the journal Diritto e Giurisprudenza agraria changed its title in Diritto e giurisprudenza agraria, alimentare e dell’ambiente.  7  As the European Food Law Association, established in Brussels, already on 4 May 1973 at the Institut d’Études Européennes of the Free University of Brussels, www​.efla​-aeda​.org; and the Italian Food Law Association, established on 20 December 2004, www​.aida​-ifla​.it.  8  See the German European Food and Feed Law Review, which started to be published on 2006; and the Italian Rivista di diritto alimentare, online with free access at www​.riv​ista​diri​ttoa​limentare​.it, which started to be published on 2007.  9  In 2003 the Italian Rivista di diritto agrario published a commentary of the new Regulation (CE) No 178/2002 on food safety. 10  See infra section 7. 11  See infra section 8. 12  For further references see R. Budzinowski (ed.), XV World Congress of Agricultural Law – Contemporary Challenges of Agricultural Law among Globalization, Regionalisation and Locality, Poznan, 2018; AA.VV., Storia dell’agricoltura europea, BNA, Milano, 1980; Accademia dei Georgofili, Storia dell’agricoltura italiana, Firenze, 2008.  5

The intersection of international, European, and global food law  65 is also not surprising that in recognition of lasting differences among national legislations on food products, the Court of Justice has built and introduced original doctrines to overcome such differences.13

2. A DATING TRADITION OF COMPARATIVE STUDIES These developments in Europe, including domestic and international legislation and jurisdiction, point to the emergence of a multilevel framework of principles and rules addressed to an agri-food system, which, taken as a comprehensive whole, refers to a framework where public and private responsibilities operate through vertical and horizontal cooperation and subsidiarity. The peculiar structure of agri-food law in Europe, marked by multiple polycentric sources of law, integrated under models vastly different from the traditional paradigm general-special, rule-exception, imposes the use of the comparative method not as a scholarly curiosity but as a necessary tool to operate in the real world. This effort to better know and understand domestic law14 is part of a dating tradition of studies both in food law15 and agricultural law, as underscored by reference to food law by US scholars already in the 1960s.16 Comparative tools were primarily used in Europe in the eighteenth and nineteenth centuries by scholars of the Accademia dei Georgofili in Florence, working on writing an “Agricultural code of Tuscany” in an ongoing dialogue with French scholars working on the new “Code rural.”17 Later, agricultural lawyers in the Istituto di Diritto Agrario Italiano e Comparato (IDAIC), founded in 1957, studied international and comparative dimensions of agricultural law.18

3. THE EUROPEAN COURT OF JUSTICE, THE “MUTUAL RECOGNITION,” AND THE COMPARATIVE APPROACH In Europe, the development of a unified food law system moved along stages largely marked by judicial rulings. First, the Court of Justice’s decisions affirm the doctrine of mutual recognition based on a comparative interpretation of the prohibition of “measures having an  See infra section 2.  As pointed out by G. Gorla, already in the preface to Il contratto. Problemi fondamentali trattati con il metodo comparativo e casistico, I, Milano, Giuffré ed., 1955. In critical perspective see P.G. Monateri, Methods in Comparative Law: an Intellectual Overview, in P.G. Monateri (ed.), Methods of Comparative Law, Edward Elgar, 2013, where he underlines “how Comparative Law was historically used to define, or better to construct and assert national identities.” 15  M. Roberts, Foreword, in G. Steier and K.K. Patel (eds.), International Food Law and Policy, Springer, 2016, X. 16  E.J. Bigwood and A. Gerard, Fundamental Principles and Objectives of a Comparative Food Law, New York, 1967. 17   See F. Colao, Un diritto per l’agricoltura. Itinerari giuridico-economici nella Toscana dell’Ottocento, Giuffré ed., 2021, analyzing the research jointly made in that period by French and Tuscany scholars toward the adoption of rural codes. 18  On the story of IDAIC, see A. Germanò, L’Istituto di diritto agrario internazionale e comparato: la storia, Editoriale Scientifica, Napoli, 2017. See the catalogue of publications of IDAIC, from its foundation until its merger in the National Council of Researches, at www​.isgi​.cnr​.it​/daic​-isgi/. 13 14

66  Research handbook on international food law equivalent effect” to quantitative restrictions on imports and exports, established by Articles 31 and 34 TEEC. With the mutual recognition principle, the Court of Justice introduced an effective legal tool, resolving the substantial stalemate position in the regulatory strategy intended to ensure the free circulation of goods in the European Community. Moreover, this doctrine was initially declared concerning food products but rapidly applied to all goods and services, thereby underscoring food law as a laboratory of legal innovation. The case which opened the way was a well-known decision of 1974, the Dassonville case, which – judging on a Belgian law that required importers of Scotch whisky to possess a certificate of origin from the British customs authorities even in the case of Scotch whisky already in free circulation in France – declared that: The requirement of a member state of a certificate of authenticity which is less easily obtainable by importers of an authentic product which has been put into free circulation in a regular manner in another Member State than by importers of the same product coming directly from the country of origin constitutes a measure having an effect equivalent to a quantitative restriction as prohibited by the Treaty.19

Starting from the rationale of this case, in 1979, the leading case Cassis de Dijon20 introduced the principle of “mutual recognition,” adopting the “equivalence” principle as the basis to unify the internal market while respecting diversities. It was disputed whether it was possible to authorize the import and sale in Germany of a French liqueur, the Cassis de Dijon, with an alcoholic grade (between 15° and 20°) inferior to the minimum (25°) required by German law to authorize the sale of fruit liqueurs. In a historic decision, the Court of Justice affirmed that any product admitted for sale in any MS might be sold freely in any other MS based on “mutual recognition” under Article 30 TEEC. Furthermore, the Court of Justice determined that under Article 36, any limitation to import and sale would be “a measure having an effect equivalent to a quantitative restriction,” save for prohibitions and restrictions justified on the grounds of public morality, public policy, or public security, protection of health and life of humans, animals, or plants, protection of national treasures of artistic, historic, or archaeological value, or protection of industrial or commercial property. The principle of mutual recognition effectively opened national markets, obtaining through equivalence the result that previously could not be obtained through legislative harmonization. During the 1980s, mutual recognition, initially applied to objective characteristics of food products, was progressively extended to the use of names. The Court of Justice concluded that a food product sold in one MS with a certain name must be admitted for sale with the same name in any other MS, even when it does not have the characteristics and qualities required by the national law of the MS where it is imported, save the introduction of additional indications and information on the label. Subsequent judgments applied and clarified this principle of mutual recognition. A wellknown decision of 1988 declared that a product made in the UK and named “pasta” in the country of origin must be admitted for sale with the same name also in Italy, even if prepared with flour not obtained from durum wheat, contrary to long-lasting Italian legislation permitting only durum wheat flour to produce “pasta” in conformity to the traditional method of

 ECJ, 11 July 1974, Case 8/74, Dassonville.  ECJ, 20 February 1979, Case 120/78, Rewe Zentral.

19

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The intersection of international, European, and global food law  67 getting this typical Italian product.21 Another judgment held that a beverage made in France and named “bier,” according to French law, may be sold with the same name in Germany, even when obtained with methods and materials different from those strictly prescribed by long-lasting German legislation.22 In other words, the mutual recognition principle, affirmed by the Court of Justice concerning food product recipes during the 1980s, was rapidly extended to cover issues related to language and communication. This line of cases on mutual recognition confirms the relevance of comparative law in this area of experience: essential principles of European food law have been identified and affirmed by the Court of Justice through decisions adopted looking through the lens of comparison, considering differences and similarities among food legislation in different Member States.23 This is true not only for European law as much as: Most important principles of United States constitutional law have been developed in the context of food regulation … The power of both state and federal governments to regulate private business in order to protect not only the public health and safety, but also the economic stability of the industry, and the power of the federal government over intrastate as well as interstate commerce, have all been adjudicated by the Supreme Court in the context of food legislation. In Europe, the authority of the new European Union to override national law in order to achieve a common marketplace was decided by the European High Court of Justice in the context of a sixteenth century German statute regulating beer.24

Food law, in this sense, stands as an exemplary laboratory in quantitative terms due to a large number of judicial decisions on the subject and on a systemic level due to the interstitial and plural nature of this field of legal experience, characterized by the interaction between legal systems that have very different histories, structures, and paradigms.

4. FOOD LAW AND AGRICULTURAL LAW: AN INTIMATE RELATIONSHIP During the last decades, food law and agriculture law shaped themselves as machine shops, where new legal tools and institutes are created and tested, and from where have been (and are, even at present) drawn models of general application.25 The regulatory process in this area is mainly due to the plurality of objects involved in the relation between law and science (e.g., novel foods or new cultivation techniques) in the areas of agriculture and food, influenced by the trends characterizing “law in the knowledge  ECJ, 14 July 1988, Case 90/86, Zoni.  ECJ, 12 March 1987, Case 178/84, Commission of the European Communities v Federal Republic of Germany. 23  For further references, see L. Costato and F. Albisinni (eds.), European and Global Food Law, 2nd ed., Wolters Kluwer, Milano, 2016. 24  P.B. Hutt, Food Law and Policy: An Essay, in Journal of Food Law & Policy, 2005, 1. 25  For an analysis of those trends see the contributions in V. Rodriguez Fuentes (ed.), From Agricultural to Food Law – The New Scenario, Wageningen Academic Publishers, 2014; L. Costato and F. Albisinni (eds.), European and Global Food Law, cit.; L.A. Bourges (ed.), UE: sociología y derecho alimentarios. estudios jurídicos en honor de Luis González Vaqué, Thomson Reuters Aranzadi, 2013. 21

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68  Research handbook on international food law society,”26 sharing a feature identified as central and common to the entire range of agri-food law today, namely that of the relation between technological and legal innovation.27At the same time, “Law, as well as food, becomes an expressional code apt to capture the profound correlation between the meaning of taste, and the taste of meaning.”28 Over the years, debate on agriculture and food law has focused on a multiplicity of topics, from traditional products to brands and labels signs, from GMOs in agriculture and the food chain to liability and responsibility, from the precautionary principle to the new rules on safety and traceability, from advertising to recognition of the territorial identity of products and production processes within the framework of international trade, from the role of the organization of producers to the special regime of contractual relationships within the agrifood market, and from producers’ liability to the peculiar role assigned to consumers of food products as leading actors of food safety.29 Within this traditional framework, the relationship between food law, agricultural law, and innovation, both technological and legal,30 has taken on specific and characteristic content with the rapid transition from food legislation (taken in a sense, already mentioned, of the juxtaposition of detailed precepts, to a large extent based on sanctions and prescriptive rulings), and from agriculture legislation (broadly identified with provisions on ownership and lease of land and on incentives and financial support) to an agri-food law based on a systemic approach. Identifying the area of regulation as the entire agri-food chain, taken as a whole, and characterized by the necessary interaction and responsibility of all the players of the chain,

 On the special relationship characterizing the “model of the relation between science and policy incorporated in the ‘modern’ conception of science,” and more generally on the “knowledge society,” see the analysis set in a historical-comparative perspective by M. Tallacchini, Sicurezze e responsabilità in tempi di crisi, in Riv​.dir​.al​im., www​.riv​ista​diri​ttoa​limentare​.it, No 1-2012, p. 14. 27  For a historical analysis of the relation between technological innovation and foodstuff availability, in reference to production and conservation techniques, see, with extensive references, M. Montanari, La fame e l’abbondanza. Storia dell’alimentazione in Europa, Roma-Bari, 1993; in legal perspective, see F. Albisinni, Transparency, Crisis and Innovation in EU Food Law, in Rivista della Regolazione dei Mercati, 2015, p. 97. 28  C. Costantini, Geo-Food and Normative Identities. Power and Privilege across Competing Traditions, in The Cardozo Electronic Law Bulletin, 2015, XXI, 1, at p.8, who underlines how food symbolism played a central role in assessing peculiarities and differences among legal systems in England and in France. 29  On trends in EU food law, see A. Germanò and E. Rook Basile, Definitions of European Food Law, in L. Costato and F. Albisinni (eds.), European and Global Food Law, Cedam, Wolters Kluwer, 2nd ed., 2016, p. 173; M. Giuffrida, Liability for Defective Food Products, ivi, p. 263; S. Carmignani, Consumer Protection, ivi, p. 237; F. Bruno, Patents and Vegetable Inventions, ivi, p. 409; E. Sirsi, GM Food and Feed, ivi, p. 425; S. Rizzioli, Novel Foods, ivi, p. 487; C. MacMaoláin, EU Food Law. Protecting Consumers and Health in a Common Market, Hart Publishing, Portland, 2007; B. v. der Meulen and M. Van der Velde, European Food Law Handbook, Wageningen Academic Publishers, 2008. 30  On the relation between technological and legal innovation in the area of Agri-Food Law, see F. Albisinni, Agriculture and Food Law as Innovation Engines of European Law: The New Scenario, in From Agricultural to Food Law, 2014, cit., p. 225; F. Leonini, M. Tallacchini and M. Ferrari (eds), Innovating Food, Innovating the Law, Libellula Edizioni, 2014; and recently the papers published in Aida-Ifla (ed.), Innovation in Agri-Food Law between Technology and Comparison, Wolters Kluwer, 2019. 26

The intersection of international, European, and global food law  69 starting with farmers and ending with consumers,31 has led to the systemic legal approach, not confined to single steps or single products. This systemic legal approach mirrors the systemic approach of science, conscious that the safety of food may be obtained only through active cooperation along all the steps of the chain, recognizing that the production and trade of food is part of a complex process, where any step intimately and necessarily relates with all the other steps. This systemic approach has led scholars to observe: Initially just a set of rules – mainly based on national sources – which established prohibitions, mostly assisted by criminal sanctions, today food law is also, or rather first and foremost, aimed at prevention, controls and, in general, at guaranteeing the free and safe movement of foodstuffs and drink not only within the EU but in the whole world.32

It is further noted: Sometimes a distinction is made between “food law” on the one hand and “agricultural law” on the other. The distinction is not a watershed however. Food and agricultural law overlap in that food chain (or agri-food chain) fully includes primary production of food. Thus this primary production of food is fully within the scope of food law. 33

Along these lines, this author has previously noted: We can therefore speak of a Food Law only assuming it is a food production chain law. But, if it is a food production chain law, then by its very nature, it is an Agri-Food Law, which adopts the primary production stage as a necessary and characterizing element.34

In 2000 the EU Commission White Paper on Food Safety, and then in 2002 Regulation (EC) No 178/2002 of the European Parliament and the Council,35 expressly adopted this approach. The new regulation, not by chance known as the European Food Law System, aimed to provide the basis for the assurance of a high level of protection of human health and consumers’ interest in food, taking into account, in particular, the diversity in the supply of food including traditional products, whilst ensuring the effective functioning of the internal market.36

The Regulation declared that for those purposes it “lays down the general principles governing food and feed in general, and food and feed safety in particular, at Community and

 See the definitions of food business and of final consumer of foodstuff introduced in European law by Art. 3 of Regulation (EC) No 178/2002. 32  L. Costato, Principles and rules of European and Global Food Law System, in European and Global Food Law, cit., p. 3. 33  B. Van der Meulen (ed.), Private Food Law, Wageningen Academic Publishers, 2011, 33. 34  F. Albisinni, From Legislation to Food Law: The New Actors, in V. Parisio (ed.), Food Safety and Quality Law: A Transnational Perspective, Giappichelli, Torino, 2015, 21. 35  It is the well-known Regulation (EC) No 178/2002 of the European Parliament and of the Council of 28 January 2002, laying down the general principles and requirements of food law, establishing the European Food Safety Authority and laying down procedures in matters of food safety. 36  Art. 1.1. of Regulation (EC) No 178/2002. 31

70  Research handbook on international food law national level,”37 so that “[t]his Regulation shall apply to all stages of production, processing and distribution of food and feed,”38 including “primary production.”39 The preamble of the regulation indicates as legal bases, in one single context, Articles 37 (CAP), 95 (Approximation of national provisions), 133 (Common commercial policy), and 152(4)(b) (Health protection), thereby evidencing – even at formal level – the diversity of objects, values, interests, and goals affected by food law legislation. The multiplicity of legal bases confirms the plurality of objects and goals dealing with multiple areas and needs and the innovative character of Regulation (EC) No 178/2002, adopting new or newly designed legal models and tools. As a result, traditional borders between production and communication rules are weakened, and the main regulatory criteria is that of public and private responsibilities, with a functional governance design.40 Undertakings and business operators are called to operate within an integrated framework of regulatory competencies, which includes innovative rules, working together with the traditional rules on production and products, and expressing the proactive, innovative approach of the European legislator. As well observed by an authoritative scholar, Regulation No 178/2002 operates on different levels: that of law sources, … [where it] introduces general principles … establishes rules directly applicable, which do not need national execution measures; … that of the institutional design to be adopted by any Member State; … that of cooperation to provide among national organizations and Community organisation.41

5. TOWARD EUROPEAN CODES OF AGRI-FOOD LAW Within this movement towards an integrated framework in Europe, some new and original emphases have emerged over the last few years in the European Union and, more generally, globally: •

Food law discovered the primary agricultural sector as a fundamental element of food safety in the 1990s with the “Mad Cow” crisis. Before this safety crisis, which originated in the animal breeding sector, the EU food safety legislation did not include the agricultural sector. The farmer was not included in the EU legal definition of “food business” and was not subject to related duties, like HACCP. After the “Mad Cow” crisis, the European legislator addressed its attention and provisions to the entire Agri-Food Chain. Recently, EU legislation has taken a further crucial step, addressing its attention and its rules to all agricultural activity, even if not addressed to produce food products, as recently stated by Regulation (EU) 2017/625.42

 Art. 1.2. of Regulation (EC) No 178/2002.  Art. 1.3. of Regulation (EC) No 178/2002. 39  Art. 3, No 16 of Regulation (EC) No 178/2002. 40  See Art. 17, entitled “Responsibilities” of Reg. No 178/2002. 41  S. Cassese (ed.), Per un’autorità nazionale della sicurezza alimentare, Milano, 2002, introd. 42  Regulation (EU) 2017/625 of the European Parliament and of the Council, of 15 March 2017, on official controls and other official activities performed to ensure the application of food and feed 37

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The intersection of international, European, and global food law  71 •

•

•

Agri-food markets are getting special attention from EU institutions. Art. 39 TFEU on the objectives of CAP, centered on food security and with non-express reference to food safety,43 has been rediscovered by EU Commission, Parliament, and Council, as the proper legal basis for rules involving competition within the entire agri-food chain as stated in the new Directive on UTP in the agri-food chain.44 Local dimension, including the agricultural and rural dimension, is increasingly relevant at law in Europe and in countries like the United States and China. For example, in China, new models and tools have been recently introduced to face the challenge of guaranteeing the food safety of agri-food products obtained by a multiplicity of small producers and offered in large markets with final destinations far from the origin.45 At the same time, the growing attention to the peculiar local dimension of food induced the US46 and some EU Member States to adopt particular rules on origin labeling, with the controversial tendency to what has been called a renationalization or re-localization of rules.47 Sources of law are increasingly subject to relevant innovations. The traditional border between public and private law sources is becoming difficult to trace, and in many areas (not only commercial but also involving food safety issues) is emerging a sort of primacy of contract over the body of legislation itself, even if these sorts of contracts often include non-negotiated contents.48 The law generated through these pathways becomes ultra-national and introduces what has been called “Global power.”49 This is particularly true for agri-food law, where regulatory authorities, technical rules, and standards are typically transnational, and standards of private-law origin significantly influence sector governance, giving rise to the “Hybridization of Food Governance.”50

law, rules on animal health and welfare, plant health and plant protection products. For a comment of this new legislation see F. Albisinni, Regulation (EU) 2017/625: Official Controls, Life, Responsibilities, and Globalization, in European Food and Feed Law Review, 2019, p. 118. 43  Art. 39 TFEU of 2007, with a text identical to Art. 39 TCEE of 1957, reads: “1. The objectives of the common agricultural policy shall be: (a) to increase agricultural productivity by promoting technical progress and by ensuring the rational development of agricultural production and the optimum utilisation of the factors of production, in particular labour; (b) thus to ensure a fair standard of living for the agricultural community, in particular by increasing the individual earnings of persons engaged in agriculture; (c) to stabilise markets; (d) to assure the availability of supplies; (e) to ensure that supplies reach consumers at reasonable prices.” 44  Directive (EU) 2019/633 of the European Parliament and of the Council, of 17 April 2019, on unfair trading practices in business-to-business relationships in the agricultural and food supply chain. 45  On those new tendency in Chinese legislation and practice see Ruan Zualin and Yu Yangyao, Small Farmers Big Markets and Agricultural Food Safety, in Innovation in Agri-Food Law between Technology and Comparison, cit., 104. 46  With the US legislation on COOL. 47  On recent legislation of some MS on the origin of food, see M. Holle, Globalisation of Innovation. (Re-)Localisation of Food Law?, in Innovation in Agri-Food Law between Technology and Comparison, cit., 125. 48  B. Van Der Meulen, Private Food Law, Wageningen Academic Publishers, The Netherlands, 2011; P. Verburggen, Enforcing Transnational Private Regulation – A Comparative Analysis of Advertising and Food Safety, Edward Elgar, 2014; T. Havinga, F. van Waarden and D. Casey (eds.), The Changing Landscape of Food Governance. Public and Private Encounters, Cheltenham, 2015. 49  L. Casini, Potere globale. Regole e decisioni oltre gli Stati, Il Mulino, 2016. 50  P. Verburggen and T. Havinga (eds), Hybridization of Food Governance. Trends Types and Results, Edward Elgar, 2017.

72  Research handbook on international food law A relevant element is increasingly present in recent EU legislation: the move towards a unified and systemic perspective within the codification process. Over the last 20 years, this emerging perspective has shaped the European legislator’s action in Common Agricultural Policy and agri-food markets from the point of view both of food security and food safety. The European reforms of CAP of this century, before and after the Lisbon Treaty, the revision of CAP in December 2013 and the “omnibus” regulation of December 2017,51 new regulations on food information to consumers,52 quality products,53 official controls,54 transparency in risk assessment in the food chain;55 and additional reform of CAP in December 2021,56 all marked the progressive emergence of European agri-food Codes. Those are not single uniform codes, but rather common codes, where needs and subjects, national, regional and local, occupy a prominent place alongside the disciplinary choices expressed centrally insofar as the Code is a communication system that requires a shared common language. Until the adoption of new European agri-food Codes, many European countries, despite having dating food legislation, did not define in national rules basic terms like “food,” “food business,” “final consumer of food,” and “food labeling.” Instead, this type of national food legislation was mainly based on traditional ideas and concepts shared by that country’s culture because food had strong local roots. Faced with a dimension of food production and distribution much larger than the national dimension, European food law in the last 30 years necessarily moved toward a unified model based on the recognition of the agri-food chain as a single field of regulation, and identifying  With this name is commonly designated – by reason of its wide spectrum of intervention on different crucial junctions of the CAP discipline – Regulation (EU) No 2017/2393 of the European Parliament and of the Council of 13 December 2017, amending the four basic regulations of 2013 on CAP. 52  Regulation (EU) No 1169/2011 of the European Parliament and of the Council, of 25 October 2011, on the provision of food information to consumers. 53  Regulation (EU) No 1151/2012 of the European Parliament and of the Council, of 21 November 2012, on quality schemes for agricultural products and foodstuffs. 54  Regulation (EU) 2017/625 of the European Parliament and of the Council, of 15 March 2017, on official controls and other official activities performed to ensure the application of food and feed law, rules on animal health and welfare, plant health, and plant protection products. 55  Regulation (EU) 2019/1381 of the European Parliament and of the Council of 20 June 2019, on the transparency and sustainability of the EU risk assessment in the food chain. On this regulation see the comments and papers discussed in the annual Congress of AIDA-IFLA, University of Napoli Federico II – Portici, 11–12 October, 2019, published in Riv. Dir. Alim. www​.riv​ista​diri​ttoa​limentare​.it, No 3-2019, 4-2019. 56  Regulation (EU) 2021/2115 of the European Parliament and of the Council of 2 December 2021 establishing rules on support for strategic plans to be drawn up by Member States under the common agricultural policy (CAP Strategic Plans) and financed by the European Agricultural Guarantee Fund (EAGF) and by the European Agricultural Fund for Rural Development (EAFRD) and repealing Regulations (EU) No 1305/2013 and (EU) No 1307/2013; Regulation (EU) 2021/2116 of the European Parliament and of the Council of 2 December 2021 on the financing, management and monitoring of the common agricultural policy and repealing Regulation (EU) No 1306/2013; Regulation (EU) 2021/2117 of the European Parliament and of the Council of 2 December 2021 amending Regulations (EU) No 1308/2013 establishing a common organization of the markets in agricultural products, (EU) No 1151/2012 on quality schemes for agricultural products and foodstuffs, (EU) No 251/2014 on the definition, description, presentation, labeling, and protection of geographical indications of aromatised wine products and (EU) No 228/2013 laying down specific measures for agriculture in the outermost regions of the Union. 51

The intersection of international, European, and global food law  73 self-responsibility (and not only liability) of food business operators as a founding principle that is in a constant relation along the food chain and with consumers and public institutions. This relational structure within the unified model depends on single rules within a shared framework of principles. And not by chance, Regulation (EC) No 178/2002, known as “General Food Law,” solemnly declares in Art. 1, “this Regulation lays down the general principles governing food and feed in general, and food and feed safety in particular.” The uniqueness of this codification model appears even more evident when compared to the trends in other areas of relevant European legislation, such as that of consumer protection or of producer’s liability, where Europe still faces a process of harmonization of rules through the adoption of directives that each member state will implement with national features. In contrast, in agri-food law, regulations with unified singles rules replaced the previous directives in the last 20 years.57 This process of sharing models and institutions included mutual communication between technical language (related to the “nature of things” concerning food and food production processes) and legal terminology. Not by chance, names of innovative legal rules borrowed by innovative technics, like “traceability,” have been adopted in most European official translations of the EU relevant documents, just transliterating the word into “tracciabilità” (in Italian), “traçabilité” (in French), and “trazabilidad” (in Spanish).58 The process of codification of European law (in general, and specifically concerning agriculture and food) implies, by its very nature, in a European Union that still has 27 Member States, a multilevel regulation, establishing principles, aims, methods, institutions, and integrating them through the cooperative contribution of several subjects: • • •

The European Commission, through the use of delegated powers and enforcement powers, as provided for by Art. 290 of the TFEU; The Member States, through the adoption of national provisions in the exercise of the powers and competencies recognized by several provisions of recent EU legislation;59 The international organizations, such as the World Health Organization; the Codex Alimentarius Commission; the World Organization for Animal Health (OIE); the European and Mediterranean Plant Protection Organization and any other regional plant protection organization established under the International Plant Protection Convention (IPPC); the IPPC Secretariat; the Organization for Economic Cooperation and Development; the UN/ECE – United Nations Economic Commission for Europe; the Secretariat of the Cartagena Protocol on the prevention of biotechnological risks related to the Convention on Biological Diversity; all expressly referred to by EU agri-food legislation, within the scope of their respective competences.

This model of codification and codes differs from the codes of the nineteenth century. It is marked by innovation within a framework where the sources of law are different and plural.

 See e.g. Regulation (EC) No 852/2004 on food hygiene, which introduced a unified regulation of HACCP, repealing Council Directive 93/43/EEC of 14 June 1993 on the hygiene of foodstuffs, and Regulation (EU) No 1151/2011 on food information, which replaced the directives on food labeling. 58  Only in the German official translation of EU documents, the word traceability has been translated as “Rückverfolgbarkeit” and not simply transliterated. 59  See, e.g., with reference to different topics, Reg. (EU) No 1169/2011, and Reg. (EU) 2017/625. 57

74  Research handbook on international food law Nevertheless, an essential role remains assigned to interpretation, to ius dicere, in its judicial, administrative and doctrinal declinations.

6. LIFE CYCLE: A HOLISTIC APPROACH FROM SCIENCE TO LEGAL REGULATION Those lines of progressive integration of objects, goals, and responsibilities in the EU and global dimensions have been recently strengthened by Regulation (EU) 2017/625 on official controls,60 which positions topics and rules of food safety within general themes of integrity and wholesomeness, lending particular attention to the authenticity and integrity of the global dimension of the agri-food chain, merging in innovative law rules the scientific consciousness on the interrelation of all aspects and forms of life. The progressive systemic and institutional unification of official controls in the agri-food sector is undoubtedly one of the identifying elements of this critical reform of 2017, but it is not the only one. A short title of this regulation could be The Regulation of Globalization, Complexity, and Life Cycle. It is the regulation of globalization, not only with reference to the geographic dimension immediately and openly connected to markets and international trade in the global market but regarding the thematic and institutional perimeter, enhancing “the global that is in us”61 even in terms of the binding legal rules. At the same time, it is the regulation of complexity and life cycle, not only for the dimension62 and the many areas involved in substantive rules and institutional subjects and procedures but mainly for the complex and ambitious goals. Art. 1 on “Subject matter and scope” jointly mentions “food safety, integrity and wholesomeness.” Such joint approach is confirmed in the institutional section of the regulation, which provides, inter alia, the “Designation of European Union reference centres for the authenticity and integrity of the agri-food chain,”63 as well as a “European Union reference laboratory” and “European Union reference Laboratories.” These reference laboratories aim to ensure quality, uniformity, and reliability of analysis, testing, and diagnosis and improve and standardize the activities of national laboratories.64 The identification of multiple goals, among them interacting, proposes an original holistic approach to the entire life cycle (not limited to food production), giving attention within this unified perspective also to the environment and any form of life, including any sort of animals

 See note 42 supra.  For further indications on issues related to the growing domestic globalization of European food law, and so to the “global that is in us,” please refer to the reports discussed during the Conference organized by the Italian Food Law Association on 14–15 October 2015, in Milan, in occasion of the Expo, published in Riv​.dir​.a​lim. www​.riv​ista​diri​ttoa​limentare​.it, No 1-2016, with the introduction Bricks and Stones of the GFL Laboratory; and refer to L. Costato and F. Albisinni (eds.), European and Global Food Law, cit., and there to the introduction The Road to Global Food Law, and to chapter II, The Path to the European and Global Food Law System. 62  By this author’s count,142 pages, 167 articles, five annexes. 63  See Arts. 97, 98. 64  See Arts. 92, 93, 94. 60 61

The intersection of international, European, and global food law  75 and plants, regardless of their destination.65 This holistic approach is reinforced by the call for the guarantee of authenticity and integrity of the food supply chain, with the provision of the establishment of appropriate centers of reference and the adoption of new definitions of hazard, risk, and operator.66 Controls on animals and plants are intended to guarantee the safety of food and feed products addressed to enter the human food consumption chain, but at the same time: • •

Assign to animal welfare and the protection of plants from harmful organisms a proper value ex se, regardless of the reference to the safety and quality of food;67 and Assign to green areas, the Union’s forests, biodiversity, and the environment, an attention absent in the previous Regulation (EC) on controls No 882/2004.68

Consistent with this broader thematic perimeter, which invests all forms of life, the definitions of hazard and risk are rewritten. In Regulation (CE) No 178/2002, hazard is defined as “a biological, chemical or physical agent in, or condition of, food or feed with the potential to cause an adverse health effect,”69 where the reference to health is intended as a reference to human health under Art. 1 of that regulation, which states: “This Regulation provides the basis for the assurance of a high level of protection of human health and consumers’ interest about food,”70 and risk is defined as “a function of the probability of an adverse health effect and the severity of that effect, consequential to a hazard.”71 In the new regulation of 2017, a hazard is defined as “any agent or condition with the potential to have an adverse effect on human, animal or plant health, animal welfare or the environment,”72 and consequently risk is defined as “a function of the probability of an adverse effect on human, animal or plant health, animal welfare or the environment, and of the severity of that effect, consequential to a hazard.”73 Hazards and risks, which must be considered during official controls under the new regulation, are no longer only those that can affect human health directly or indirectly. Hazards and risks can affect animal or vegetable health, animal welfare, or the environment: in other words, those hazards and risks affect the life cycle as a whole. If Regulation (EC) No 178/2002 marked, in an express and declared way, the transition to a supply chain approach,74 looking, however, only to the “food production chain,”75 the new regulation on controls of 2017 expresses the awareness that attention to the agri-food chain  See “Reference Centers of the European Union for Animal Welfare” defined by Arts. 95, 96, and 97. 66  See Art. 3. 67  See recital (7) of Reg. 2017/625. 68  See recital (8) of Reg. 2017/625. 69  Art. 3.1. No 14 of Reg. No 178/2002. 70  Art. 1.1. of Reg. No 178/2002. 71  Art. 3.1. No 9 of Reg No 178/2002. 72  Art. 3(23) of Reg. 2017/625. 73  Art. 3(24) of Reg. 2017/625. 74  See Art. 1 and 3 of Reg. No 178/2002. 75  See recital (12) of Reg. No 178/2002, which states: “In order to ensure the safety of food, it is necessary to consider all aspects of the food production chain as a continuum from and including primary production and the production of animal feed.” 65

76  Research handbook on international food law (and not just to food chain76) necessarily implies more widespread attention to everything that in various ways is connected to the life cycle, and to all the phases of use of products of plant or animal origin, even if not immediately or linked to the cycle of food production and distribution. Consistent with this new approach, the operators to whom the new system applies are not identified with the “food business operators” referred to in Regulation (EC) No 178/200277 and in Regulation (EC) No 882/2004,78 but with a formula that exceeds the perimeter of the “food sector” and identifies the operator in “any natural or legal person subject to one or more of the obligations provided for in the rules referred to in Article 1 (2).”79 The operator identified by Regulation (EU) 2017/625 includes those who work within the agri-food supply chain, “from farm to table,” but also anyone who has to do with the cycle of life, regardless of the declared location within or outside the food chain. Thus, an operator is anyone involved in animal health or welfare,80 protection against harmful organisms for plants,81 plant protection products and pesticides,82 and environmental profiles. This path of EU legislation, expressly related to goals and tools of food safety, finds a significant correspondence in the evolution of CAP, which led to a systemic definition of agricultural activity with Regulation (EC) No 1782/200383 and with subsequent reforms of 200984 and 2013.85 After the Middle Term Review (MTR) of CAP86 of 2003, the declared objects of the CAP intervention are no longer the products nor the production but the agricultural activity as such.

 See recital (3) of Reg. 2017/625 and the numerous recitals that follow it in the same perspective, and which stress among other things that the overall dimension of agri-food chain involves many aspects and objects untreated by the previous Reg. 882/2004 (thus, among others, recitals 17 and 19). 77  Pursuant to Art. 3, par. 1, n. 3, of Reg. No 178/2002. 78  See Art. 2.1. of Reg. No 882/2004, which refers to the definitions introduced by Arts. 2 and 3 of Reg. No 178/2002, and Art. 3 of Reg. No 882/2004, which provides for the application of the controls envisaged by the regulation to “feed or food business operators” and to “feed and food businesses.” 79  Art. 3.1. (29) of Reg. 2017/625. 80  Art. 1.2. lett. d) and f) of Reg. 2017/625. 81  Art. 1.2. lett. g) of Reg. 2017/625. 82  Art. 1.2. lett. h) of Reg. 2017/625. 83  Council Regulation (EC) No 1782/2003 of 29 September 2003, establishing common rules for direct support schemes under the common agricultural policy and establishing certain support schemes for farmers. 84  Council Regulation (EC) No 73/2009 of 19 January 2009, establishing common rules for direct support schemes for farmers under the common agricultural policy and establishing certain support schemes for farmers. 85  Regulation (EU) No 1307/2013 of the European Parliament and of the Council of 17 December 2013, establishing rules for direct payments to farmers under support schemes within the framework of the common agricultural policy and repealing Council Regulation (EC) No 637/2008 and Council Regulation (EC) No 73/2009. 86  With MTR the European Commission identified the proposals which led to the approval of the new Council Regulation (EC) No 1782/2003 of 29 September 2003 establishing common rules for direct support schemes under the common agricultural policy. In fact, it was not a simple review, but a radical reform, which modified the basic framework of financial aids for farmers, shifting from a system linked to the quantity produced to a decoupled system, of aids paid with reference to the land involved on not to the quantity of products obtained. 76

The intersection of international, European, and global food law  77 Placing “maintaining the land in good agricultural and environmental conditions” within the definition of “agricultural activity”87 is not an accidental provision but emphasizes the absence of any direct link with production. The activity is qualified agricultural because of the relationship with the land and with the organisms that populate it, and not simply by reason of the use of it for production. The regulation on controls in 2017 builds, to some extent, a bridge between these two paths, food safety and the CAP, in the direction of a systemic framework, enhancing the responsibility of any subject that in any way operates within the biological cycle or the environment, regardless of the final goal of such activity. Explicit confirmation of these connections comes from the new provisions of Regulation (EU) 2017/625 dedicated to wood and its possible pathologies and plant diseases.88 In a regulation that has multiple legal bases in Art. 43(2) (CAP), Art. 114 (internal market), and Art. 168(4)(b) (protection of public health in the veterinary and phytosanitary sectors), specific rules are laid down on the import of wood and wood logs, wood packaging materials, trees, shrubs, and forest reproductive material. The recent spread of serious plant diseases, although not dangerous for human health but highly harmful to trees, such as the red palm weevil and the xylella for olive trees, has increased the attention to these diseases. However, it appears relevant that – within the systemic approach of Regulation (EU) 2017/625 – the answer to these pathologies has not been researched only in specific and exceptional measures (such as those adopted a few years ago after the crisis triggered by infected seed sprouts).89 The care of wood and forest products has been brought into a regulation on controls aimed to ensure the joint application of food and feed law (but also of rules on animal health and welfare, plant health and plant protection products),90 which places attention to human health into a broader perspective of attention to life in all its aspects, adopting a scientific systemic consideration of life and environment as foundation canon. The holistic approach of putting the whole cycle of life at the center of the legislative attention, and assuming wholesomeness and integrity as fundamental parameters of any action along the agri-food chain, links the new EU food law regulation on controls to the current framework of EU agricultural law centered on environmental awareness. At the same time, it also rediscovers some paradigms of national agricultural law, dating back to the first half of the twentieth century, for a long time shadowed at the EU level by the prevailing attention given in the first decades of CAP to production and products. Reference is made here to a central figure in the Italian legal system: the agricultural entrepreneur introduced by the Civil Code of 1942, and specified in 2001 with the decrees reforming national agricultural legislation.91 The present wording of Art. 2135 of the Italian Civil Code stipulates that are considered essentially agricultural “the activities directed to the care  See Art.2(c) of Reg. No 1782/2003.  See Art. 3, par. 1, n. 21 and 22, of Reg.2017/625, on the broad definition of plant products and the possible vectors of plant diseases. 89  On the four special regulations adopted after the crisis triggered by the seed sprouts, see V. Paganizza, Les quatre Mousquetaires (ou mousquetons) contre E. Coli: i Regolamenti (UE) 208/2013, 209/2013, 210/2013, 211/2013 e gli “eccessi” nella sicurezza, in Riv​.dir​.a​lim., www​.riv​ ista​diri​ttoa​limentare​.it, No 2-2013, p. 36. 90  As specified already in the title of the Regulation; see supra note 42. 91  Leg. Dec. 228/2001. 87 88

78  Research handbook on international food law and the development of a biological cycle or a necessary phase of the same cycle, of vegetal or animal character.” The explicit assumption among the essential agricultural activities of any activity related to the biological cycle moved from the consideration that the cycle of life cannot be reduced to individual moments but, by its nature, requires attention to the entire agri-food activity chain, considered not only vertically, from farm to table as understood by European food law, but also horizontally, about all that pertains to life, even if not directly placed in the path that leads to final food or feed. This perspective characterizing the mentioned recent EU legislation on official controls is a significant expression in a framework that shifts from the protection of human health to the systemic protection of the whole life cycle. The European legislator arrived at this result through a plurality of paths articulated along several steps, distinct but to some extent convergent. The path observed here is the one linked to food safety, to the hygiene and health safety of products intended for human consumption, which from products has been extended to the whole food business, including in this definition even the primary production.92 Today, with Regulation 2017/625, EU legislation on food safety is still expanding to include also what does not directly affect food as such but affects the life cycle of a plant or animal organisms and the environment, in clear awareness that attention to human health cannot be taken by itself alone. Still, it is necessarily part of the attention to the health of all that is living. In this perspective, the regulation is part of a world-wide trend that enhances the authenticity, wholesomeness and integrity of agri-food products as a necessary element of a scientific notion of food safety as a whole, necessarily located within the general attention to life safety in its wholesomeness.93

7. THE TRANSNATIONAL DIMENSION The innovative trends in European agri-food legislation have given rise to a polycentric regulatory system both for the sources (European, national, and international; legislative, administrative, judicial, and private) and for the goals, objects, and interests. But European food law (EFL) is also increasingly taking on a transnational dimension in two aspects: acting as the source of rules producing effects well beyond the borders of the European Union, and being open to the operation of external authorities within the EU legal system. These measures have been introduced through International Agreements or Association Accords, but even through the adoption of internal rules, projected into an external dimension.94 Along this path, institutions springing from within the European market acquired  See Art. 2 of Council Directive 93/43/EEC of 14 June 1993 on the hygiene of foodstuffs, which for the first time introduced a general definition of food business to cover the entire chain from processing and manufacturing to distribution and sale, nevertheless excluding the primary production, and Art. 3 of Reg No 178/2002, which extended the definition to also include the primary production. 93  M.T. Roberts and W. Turk, The Pursuit of Food Authenticity, UCLA School of Law, 2017. 94   With reference to IGs and to the peculiar different national approaches, see M.A. Echols, Geographical Indications for Food Products. International Legal and Regulatory Perspectives, Wolters Kluwer, International 2008, who underlines in the Introduction, at p. 3: “The TRIPs Agreement leaves each WTO Member with the flexibility to decide how to apply and enforce its GI commitments. Consequently, there are two principal regulatory approaches to implementing the TRIPs rules about geographical origins for foods. One approach is to create sui generis system, 92

The intersection of international, European, and global food law  79 a transnational dimension. They conveyed their original models to other legal systems. Reciprocally foreign sources are operating within the EU legal order, in some cases as leading references and in some cases as elements of binding rules. A relevant example is the extension of rules on Protected Designations of Origin (PDO) and Protected Geographical Indications (PGI) to non-EC products and the adoption of the European model of PDO and PGI in several non-EU countries. Introduced in EEC in 1992 by Regulation (EEC) No 2018/92, PDO and PGI protected European agricultural products or foodstuffs originating in a region, specific place, or country and having peculiar qualities linked to that origin.95 The 1992 regulation theoretically admitted registration in the European register of PDO and PGI products from third countries, granting them the same legal protection as EEC products. But in fact, the provision introduced in 1992 with reference to non-EEC products was no more than the statement of a principle, not accompanied by operative rules, as shown by the circumstance that no third country did use this opportunity in the first decade after the approval of Regulation (EEC) No 2081/92. More than ten years later, Regulation (EC) No 692/2003,96 modifying Regulation (EEC) No 2081/92, provided a specific operative procedure for registration and protection, as PDO or PGI, of agri-food products from third countries. The regulation of 2003 introduced innovative provisions, adopting specific detailed procedures, identifying the subjects admitted to benefit from this protection, and setting the rules for conflict resolution.97 On the other hand, under the new regulation of 2003, a reciprocity rule required that interested third countries should grant analogous protection to agri-food products coming from EC. In 2005 a decision of the WTO Panel deciding a controversy on geographical indications between the United States and the European Community declared unlawful the reciprocity clause as inconsistent with the TRIPS Agreement.98 One year later, Regulation (EC) No 510/200699 cancelled the

which applies only to the recognition and protection of geographical indications for foods. The European Communities is the paradigm, but India, and the People’s Republic of China, among others, also have adopted sui generis systems. The second approach is to include the recognition and protection of geographical indications for foods within the trademark law. Here the United States is the paradigm, but many other jurisdictions follow the approach including Canada, Japan, the Russian Federation and South Africa.” 95  Council Regulation (EEC) No 2081/92 of 14 July 1992 on the protection of geographical indications and designations of origin for agricultural products and foodstuffs, which defined PDO as “the name of a region, a specific place or, in exceptional cases, a country, used to describe an agricultural product or a foodstuff: – originating in that region, specific place or country, and – the quality or characteristics of which are essentially or exclusively due to a particular geographical environment with its inherent natural and human factors, and the production, processing and preparation of which take place in the defined geographical area,” and PGI as “the name of a region, a specific place or, in exceptional cases, a country, used to describe an agricultural product or a foodstuff: – originating in that region, specific place or country, and – which possesses a specific quality, reputation or other characteristics attributable to that geographical origin and the production and/or processing and/or preparation of which take place in the defined geographical area.” 96  Council Regulation (EC) No 692/2003 of 8 April 2003 amending Regulation (EEC) No 2081/92 on the protection of geographical indications and designations of origin for agricultural products and foodstuffs. 97  See Articles 12a, 12b, 12c, 12d, added to Regulation No 2081/92 by Regulation No 692/2003. 98  WTO Panel Report, United States v. European Communities, 15 March 2005, DS174. 99  Council Regulation (EC) No 510/2006 of 20 March 2006 on the protection of geographical indications and designations of origin for agricultural products and foodstuffs.

80  Research handbook on international food law reciprocity clause, shaping European rules in conformity with the decision of the WTO panel. The possibility to grant protection to products obtained outside the EU, even in the absence of any reciprocity, has been confirmed by Regulation (EU) No 1551/2012,100 which repealed Regulation (EC) No 510/2006 and is currently in force. As a consequence of such reforms, in a short number of years, many geographical designations of agri-food products obtained in non-EU countries, from Colombia coffee to tea from some areas of India to numerous Chinese products, have obtained registration and legal protection within the EU,101 or have applied for registration, including among others products from Turkey, Armenia, Cuba, Morocco, Indonesia, Russian Federation, Brazil, Venezuela, and recently the United States.102 On the other hand, models springing from European agri-food regulation are increasingly acquiring a transnational dimension, spreading well beyond EU borders. Therefore, the EU lays down original rules to qualify and protect its products, but at the same time protects products obtained beyond its borders, promoting a model which by itself has transnational elements and has been primarily borrowed by third countries. During the last decade, the European model of PDO and PGI has been voluntarily adopted by many third countries and introduced within national legal systems,103 not only through partnership and association agreements but also through the adoption of internal rules projected into an external dimension.104 A similar trend may be observed in the crucial area of food safety. Anyone who wishes to export to Europe must conform to the European technical rules and health and hygiene requirements, e.g., adopting systems of traceability for bovine meats, thereby putting into effect the model of the law that becomes “another country’s national law.”105 At the same time,

 Regulation (EU) No 1151/2012 of the European Parliament and of the Council of 21 November 2012 on quality schemes for agricultural products and foodstuffs. 101  The updated list of designations, applied, published, and registered, is published at https://ec​.europa​ .eu ​/info​/food​-farming​-fisheries​/food​-safety​-and​- quality​/certification ​/quality​-labels​/geographical​ -indications​-register/. Among the oldest registrations of non-EU products may be mentioned Café de Columbia (PGI), entered in the Register of PDO and PGI by Commission Regulation (EC) No 1050/2007 of 12 September 2007. Since then many Chinese products designations have been filed in the Register of PDO and PGI: Jinxiang Da Suan PGI (garlic); Guanxi Mi You PDO (kind of fruits); Lixian Ma Shan Yao PGI (tuber called igname); Longjing cha PDO (thé); Shaanxi ping guo PDO (apple); Longkou Fen Si PGI (vermicelli); Zhenjiang Xiang Cu PGI (vinegar); Yancheng Long Xia PGI (shrimp); Pinggu Da Tao PDO (peach); Dongshan Bai Lu Sun PGI (fruit). 102  It is the case of Alaska Pollok, applying for registration as PGI in the class 1.7. Fresh fish, molluscs, and crustaceans and products derived therefrom; the application has been filed on 10/05/2021 with the No PGI-US-2771. 103  See M. Ferrari and U. Izzo, Diritto alimentare comparato, Il Mulino, Bologna, 2012; and with specific reference to the recent Turkish legislative reforms introducing protection for GIs for agri-food and artisanal products, see A. Şule Songül and E. Selin Cila, Geographical Indications for Traditional Food Products in Turkey, in Riv​.dir​.al​i m. www.rivistadirittoalimentare, No 1-2014, 15. 104  For further indications on those experiences, see F. Albisinni, Strumentario di diritto alimentare europeo, Utet, Wolters Kluwer, 4th ed., 2020, Chap. I, par. 11. 105  F. Galgano, La globalizzazione nello specchio del diritto, Il Mulino, Bologna, 2005. 100

The intersection of international, European, and global food law  81 regulatory tools introduced by EU food safety law – like HACCP or traceability – have been adopted during the years by many other legal systems.106

8. LEGAL TRANSPLANTS As evidenced by the mentioned experiences on geographical indications and food safety models, Europe is facing a growing tendency to legal transplants in agri-food law through communication and contamination among legal systems, with all the uncertain consequences which may result from use and misuse107 of such legal techniques.108 Within the present shared dimension of global agri-food law, many sources of law (not necessarily binding, but nonetheless relevant) cooperate to establish common rules regulating the daily life of food producers and consumers, building new governance models in this sensitive area of experience. Globalization appears to be a relevant engine of legal innovation in the European agri-food law system, linked to “the proliferation, as a functional response to the changing needs of the world community, of global regulatory systems by sector.” It is bringing radical changes in the traditional law-making process, since “the announced change cannot fail to imply a reconsideration of the method applied in drawing up our rules, on the sources of such rules,” on the “relation between production and food, or rather, between agricultural product and foodstuff.”109 International agreements certainly have played and are still relevant in the globalization of the European agri-food law system. It is sufficient here to mention the WTO agreement, the well-known cases discussed before the WTO panels (from the use of hormones in bovine meat to GMOs to GIs), the treaty signed by the EU and Vietnam, the CETA, the negotiations on the TTIP even if not arrived to a final result, and recently Regulation (EU) 2019/1753 on international protection of European PDOs and PGIs.110 Together with international agreements, a relevant role also is played, within food law, by recommendations of international organizations and institutions, such as the Codex

 See M.T. Roberts, US Food Law: Responding to Changing Social Conditions, in European and Global Food Law, cit., 57; Sun Juanjuan, Evolution and Recent Update of Food Safety Governance in China, in European and Global Food Law, ibidem, 87; L. González Vaqué and H.A. Muňoz Ureňa, Trends in Food Legislation in Latin America, ibidem, 107. 107  Reference is made to O. Kahn-Freund, On Uses and Misuses of Comparative Law, in 37 Modern Law Review, 1974, and to A. Watson, Legal Transplants: An Approach to Comparative Law, 1974, Edinburgh; more recently on those topics see M. Zongling Shen, Legal Transplant and Comparative Law, in Revue international de droit comparé, 1999, vol. 41, n. 4, 853; and J.W. Cairns, Watson, Walton, and the History of Legal Transplants, in Georgia Journal of International and Comparative Law, vol. 41, No 3, 2013, p. 637. In a different perspective, on the share of legal tools and models see G. Gorla, Il ricorso alla legge di un “luogo vicino” nell’ambito del diritto comune europeo, in Foro it., 1973, V, 89; R. Sacco, Legal Formants: A Dynamic Approach to Comparative Law, in 39 American Journal of Comparative Law, 1991, 1–34. 108  Techniques not neutral by themselves, as observed by P.G. Monateri, Methods in Comparative Law, cit. 109  A. Jannarelli, Il diritto dell’agricoltura nell’era della globalizzazione, 2nd ed., Bari, 2003. 110  Regulation (EU) 2019/1753 of the European Parliament and of the Council, of 23 October 2019, on the action of the Union following its accession to the Geneva Act of the Lisbon Agreement on Appellations of Origin and Geographical Indications. 106

82  Research handbook on international food law Alimentarius Commission, UN/ECE, and the OIV-International Organisation of Vine and Wine,111 as sources of soft law and in some cases of something near to hard law. Several European provisions offer clear evidence of this experience of communication and contamination: •

•

Article 2(3) of Regulation No 178/2002, on the definition of “food,” refers to EEC directives for medical products, cosmetics, tobacco, and tobacco products to establish their difference from food products, but refers to two United Nations conventions for “narcotic or psychotropic substances,” ruling that “‘Food’ shall not include: … g) narcotic or psychotropic substances within the meaning of the United Nations Single Convention on Narcotic Drugs, 1961, and the United Nations Convention on Psychotropic Substances, 1971.” The European Union is not a part of those conventions, but as an effect of Regulation No 178/2002, those international sources operate within the EFLS. It remains open the crucial question whether this is a static reference to the content of the mentioned conventions in their historical text, or whether the provision of Article 2(3)(g) of Regulation No 178/2002 must be interpreted as a mobile reference including all the subsequent modifications of the text and annexes of the Conventions, thereby introducing those UN conventions as sources of law directly operating within the EU legal system.112 The Single CMO Regulation of 2007,113 confirming a guide-line introduced by Regulation (EC) No 1182/2007,114 established that marketing standards to be adopted by the EU Commission should be drafted “taking into account, in particular … as regards the fruit and vegetables and the processed fruit and vegetables sectors, the Standard recommendations adopted by the UN-Economic Commission for Europe (UN/ECE).”115 UN/ECE was created in 1947 as one of the five regional commissions of the United Nations to promote; it includes 56 member states in Europe, North America, and Asia.116 By its nature, UN/ ECE tends to favor uniformity and standardization, so “taking into account” UN/ECE recommendations could imply introducing within the EU law-making process an external source operating along lines and priorities which may be quite different from those of the representative EU institutions.

 OIV is an intergovernmental organization of a scientific and technical nature, created because of an international agreement signed in 2001, in force from 1 January 2004, which on 1 January 2021 includes 48 member states, and includes some observers, among which are the European Union, Yantaï (China), prefecture-level municipality, and Ningxia Hui autonomous region, China; see www​.oiv​.int. 112  The European Parliament underlined in its document of 4 February 2003 (DT\488454IT​.d​oc in www​.europarl​.europa​.eu) the “illogical effects” and the uncertainty arising from the missing coordination between the two UN Conventions and the EU provisions. 113  Reg. No 1234/2007, later repealed by Reg. No 1308/2013, presently in force. 114  Council Regulation (EC) No 1182/2007 of 26 September 2007 laying down specific rules as regards the fruit and vegetable sector, which extended to processed fruit and vegetables a rule previously introduced by Reg. No 2200/96 only for fresh fruit and vegetables. 115  Art. 113(2)a(v) of Reg. No 1234/2007, as modified by Reg. No 361/2008 of 14 April 2008. See now Reg. No 1308/2013, which more generally refers to “developments in relevant international standards” (Art. 75.2.) and to “(e) the standard recommendations adopted by international bodies” (Art. 75.5.). 116  See www​.unece​.org. 111

The intersection of international, European, and global food law  83 •

•

With specific reference to the wine sector, both the Single CMO of 2007117 and the present Single CMO of 2013118 expressly underline that “[w]hen authorising oenological practices in accordance with the procedure referred to in Article 195(4), the Commission shall: (a) base itself on the oenological practices recommended and published by the International Organisation of Vine and Wine (OIV).”119 OIV-recommended practices also establish methods of analysis for oenological products120 and rules to accept the oenological practice of imported products.121 Even in this case, recommendations of an international voluntary organization, adopted without any clear disclosure of interests involved, may operate directly within the EU law-making process. Commission Regulation No 606/2009,122 laying down detailed rules on oenological practices, expressly assigned direct application within the EU legal system to the oenological method approved by OIV concerning the purity and identification specification of substances used in oenological practices.123

Through mechanisms of direct or indirect referral within sensitive areas of regulation, soft law originating within institutions of globalization is therefore progressively influencing EU law, acquiring, in some cases, the proper nature of hard law. The European dimension is no longer sufficient to comprehend the complexity of the real world, and it is forced to consider a global dimension, which expresses a conscious tendency to share models and answers based on shared experiences.

9. PRIVATE FOOD LAW AND FOOD GOVERNANCE The overlapping of an assortment of sources, national, European, international, and global, operating within the day-to-day life of agri-food producers and traders, puts under stress the traditional framework of food regulation: acts of foreign authorities operating outside EU territory are assumed as a basis for decisions of EU authorities, and international acts until a few years ago considered not directly effective within internal legal systems, are adopted by the Courts as rationes decidendi in cases of labeling, without any previous formal recognition of such external acts as sources of internal regulation.124

 Reg. No 1234/2007.  Reg. No 1308/2013. 119  Art. 120f of Reg. No 1234/2007; see also, with similar wording, Art. 80(3)a of Reg. No 1308/2013. 120  Art. 120g of Reg. No 1234/2007; see also, with similar wording, Art. 80 of Reg. No 1308/2013. 121  Art. 158a of Reg. No 1234/2007; see also, with similar wording, Art. 90(2) of Reg. No 1308/2013. 122  Commission Regulation (EC) No 606/2009 of 10 July 2009 laying down certain detailed rules for implementing Council Regulation (EC) No 479/2008 as regards the categories of grapevine products, oenological practices and the applicable restrictions; recently repealed by Commission Delegated Regulation (EU) 2019/934, of 12 March 2019, supplementing Regulation (EU) No 1308/2013 of the European Parliament and of the Council as regards wine-growing areas where the alcoholic strength may be increased, authorized oenological practices and restrictions applicable to the production and conservation of grapevine products, the minimum percentage of alcohol for by-products and their disposal, and publication of OIV files. 123  Art. 9 of Reg. No 606/2009. 124  See infra section 10. 117

118

84  Research handbook on international food law All those phenomena, even if relevant and strongly innovative compared to the tradition, share one element: in all those cases, the global sources, admitted to operate directly within national borders of food governance, share a public or quasi-public nature. Conventions of the United Nations, recommendations of the Codex Alimentarius Commission, UN/ECE, and OIV, and decisions of international courts are all coming from organizations set up by states, having public nature and status. But those global “public” sources do not exhaust the list of new sources operating in food law. For scholars and operators, private regulatory and governance centers in food law have emerged, operating mainly through contractual and voluntary tools. This trend has led scholars to consider the emergence of quasi- or even pseudo-states and the rise of the Tripartite Standards Regime (TSR).125 The regime is built around the three poles of standards, certifications, and accreditation, with problems of legitimation and accountability of the subjects who took over the government of these three poles through an assortment of legal tools, formally on a contractual and consensual basis, but in fact an expression of conditions of economic constraint. The governance by large distribution chains has imposed proprietary standards and specific certifications linked to standards.126 This imposition has been described as a scenario “in which the large food retailers act more and more like latter-day feudal lords, using their market power both to enact favourable state policies and to bind suppliers to their particular supply chains.”127 This scenario is increasingly getting attention by the EU legislator, which recently adopted a special directive on unfair commercial practices within the agri-food supply chain,128 aimed at “combating practices that grossly deviate from good commercial conduct, … and that are unilaterally imposed by one trading partner on another.”129 Private food law regulation and governance interfere with the traditional legal principle of certainty as a public good. In continental Europe, scholars of administrative and public law during the twentieth century have seen in “Public certainties … one of the salient features of the modern world.”130 Moving from the consideration that the “myth of truth” was being replaced by the “problems of certainty,” scholars underlined that “Public certainties are therefore the content of an act that has particular authority because it emanates from public authorities, which is the result of a clarification in a material sense, and which externalizes perceptive or representative judgments,” where “[t]he starting point is that the private cannot establish juridical qualifications that impose themselves on the observance of generality, and therefore cannot create effective certainties towards third parties: therefore there are no legal certainties of private source”;131 “[t]his means that the instruments of certainty necessarily consist of signs or documents. The coinage, the mark, the stamp, the punch are signs, which express in a perceptible and  L. Busch, Quasi-States? The Unexpected Rise of Private Food Law, in B. van der Meulen (ed.), Private Food Law, Wageningen Academic Publishers, 2011, pp. 51, 59. 126  In general terms on the EU experience see V. Rubino, The Impact of EU Public Organizational Rules and Private Standards on Official Food Controls, cit. 127  L. Busch, Quasi-States?, cit., p. 69. 128  See supra note 44. This Directive has been applied in all the Member States not later than 1 November 2021 (art. 13). 129  Art. 1.1. of Directive (EU) 2019/633, cit. 130  M.S. Giannini, Certezza pubblica, in Enc. dir., VI, 1960, Milano, p. 769. 131  M.S. Giannini, op. cit., pp. 774–775. 125

The intersection of international, European, and global food law  85 permanent way the facts that the public authority makes certain.”132 The result is a qualification of certainty as an asset, specifically identifiable on the market, accompanied by distinctive signs; a good which, by its very nature, responds to the needs of the general public, thus displacing itself on the side of public goods. But if certainty and the connected food safety are traditionally qualified as public goods, in the present world the certifying function is assuming plural contents, so that: “the activities that produce certainties [are placed] between authoritative functions and the provision of services.”133 Traditional public certainties, coming from public entities, are today matched by other certainties, private for the sources from which they come, but which still respond to general needs, carrying out central functions in providing guarantees and assurances on quality and safety of food – functions that place self-regulation in the context of several subsets, by reason of the relationship, separation, integration, presupposition, or reference with respect to the intervention of public regulation. In this scenario, the traditional hierarchy of sources has to deal with a process of de-nationalization of law, which has seen the entry of new regulators, lacking the traditional requisites of democratic legitimacy, but variously accredited in the global markets with an established competence on the technical side. The transition from a democratic legitimacy to a primacy of technology, not always transparent,134 has been accompanied by a different dislocation of regulatory power, and therefore of governance of interests, transferred to a significant extent from subjects of public nature and structure (bound by the principles of administrative action),135 to “private” players in the market (with what it follows in terms of competition of interests between shareholders, stakeholders, and decision-making elites), whose action in different ways interacts and intersects with the performance of public function and the operation of public bodies, producing what has been named “hybridization of food governance” or hybrid form of governance” in the “interplay between different public and private actors.”136 Within this framework, only partially subject to public regulation but at the same time systematically connected to public action, the character of exemplary experiences has been taken both by provisions on food markets (including food safety and food quality rules) and by provisions on financial markets, due to the assignment of public tasks to private subjects in both those areas of economic activity (such as controls, the attribution of certain qualities and suitability, etc.). Here, the primary aim of recovering conditions of uniformity, and therefore of certainty and guarantee, crucial in polycentric systems, is no longer governed by the sole and exclusive presence of the state. Hence the role played by private entities (such as rating companies and food product certification companies), which sometimes operate with de facto powers, can be greater than those of the states themselves. In fact, within the shared label of private food law live together many experiences, quite different among them.137 One relevant  M.S. Giannini, op. cit., p. 777.  A. Benedetti, Certezza pubblica e certezze private. Poteri pubblici e certificazioni di mercato, Milano, 2010, p.12. 134  See supra note 30. 135  S. Cassese, Advanced Introduction to Global Administrative Law, Edward Elgar, 2021. 136  P. Verbruggen and T. Havinga, Hybridization of Food Governance, An Analytical Framework, cit., pp. 3–5. 137  See T. Appelhof and R. van den Heuvel, Inventory of Private Food Law, in B. Van der Meulen (ed.), Private Food Law, cit., p. 113. 132 133

86  Research handbook on international food law example is that of international standards, mentioned already in Art. 13 of Regulation (EC) No 178/2002, which refers to those standards both to contribute to their development and to promote consistency with them. Within this wide inventory, goals and structure of standards show a significant variety. They include standards promoted by large trading companies, aimed essentially to support their commercial policies, and translated into contractual clauses, which smaller actors of the agri-food chain are bound to accept – a practice which recently European Union decided to combat with Directive (EU) 2019/633,138 and which has seen some significant examples during the COVID-19 pandemic, with the adoption of rules which established that it is an unfair trading practice to require a certification related to the COVID-19 as a precondition to sell agri-food products.139 But international voluntary standards on food safety and food quality also include standards, which have been created by cooperative action of a number of private actors and which have gained a strong reputation and a large application, that largely overcome their private origin. A significant experience in this area is that of GLOBALGAP.140 This organization has its roots in some groups of fresh product buyers who started to work together in 1996. The organization has later taken the present name of GLOBALGAP and has seen “the transformation of what was an informal grouping of retailers, into a highly elaborate regulatory organization consisting of formal governance structures, standard-setting procedures, and monitoring and enforcement systems.”141 Today GLOBALGAP operates in constant relation with public authorities, opening to transparency its standard-setting procedures to overcome past critics. In a quite different area, more related to production and prices, another experience emerging in EU legislation assigns relevance to private organizations as actors of agri-food markets regulation. Reference here is made to the innovative EU discipline on contractual regulation of agri-food markets, originally introduced in 2012 for milk and dairy products,142 and after a short time extended as a rule of general application to many other sectors by the CMO of 2013143 and by the Omnibus regulation of 2017.144 Among those regulatory innovations, two in particular subverted the traditional approach to two dating taboos that seemed indisputable: • •

The dating prohibition of preventive agreements between producers for the regulation of the offer; The dating prohibition of prior agreements for the determination of prices.

 See supra note 44.  See M. Ferrari, Managing the Covid Emergency in the Global Food Market: The Role of Private Regulation, in Riv. dir. alim., www​.riv​ista​diri​ttoa​limentare​.it, No 1-2021, p. 24; F. Albisinni, Rules, Responsibilities and Governance Facing Covid-19 in the AgriFood Sector: EU and Italian Perspectives, in Riv​.dir​.al​im., www​.riv​ista​diri​ttoa​limentare​.it, No 1-2021, p. 11. 140  See D. Casey, Structuring Private Food Safety Governance: GLOBALGAP and the Legitimating Role of the State and Rule Intermediaries, in P. Verbruggen and T. Havinga (eds.), Hybridization of Food Governance, Edward Elgar, 2017, p. 31. 141  D. Casey, op. cit., p. 31. 142  Regulation (EU) No 261/2012. 143  Regulation (EU) No 1308/2013 of the European Parliament and of the Council, of 17 December 2013, establishing a common organisation of the markets in agricultural products. 144  See supra note 51; commonly known as Omnibus regulation for the large number of topics involved. 138 139

The intersection of international, European, and global food law  87 Assigning to the producers’ organizations, recognized as representatives by Member States, the competence to regulate the supply of PDO or PGI cheese (and later of many other products) opens the way to self-regulation of the offer, introducing a hybrid model of cooperation of public and private actors, which replaces centralized planning of prices and quantities (as traditionally governed by the Common Agriculture Policy with quotas and plant rights) and adopts self-managed programming by producers. As a result, starting from the reforms of 2012 and the following years, EU food law assigned to collective bargaining, and therefore to private actors operating in intimate cooperation with public authorities, a regulatory function that directly affects a vast plurality of subjects, through: • • •

The Member States, called to a cooperative relationship with producers; Producer organizations, vested with regulatory functions, representing interests not necessarily connected to commercial operations; and, Individual producers and traders included in a network that enhances their role.

Finally, in the inventory of experiences which can be located under the label of private food law, self-regulating codes on advertising may also be mentioned, with the creation of private boards called to evaluate messages and communications. These private boards propose a viable alternative to public control, broadening the borders of the discipline from rules limited to specific illicit acts to a more general consideration of misleading marketing communication, including overall fairness in trade and considering behavior, values, and habits of the consumers.145 As effectively underlined by scholars with a tradition of research in this area: across a wide variety of contexts public and private actors are engaging with each other to enhance their individual or combined regulatory capacity,” moving to the conclusion that “contemporary food governance, and in particular the development of hybrid governance arrangements, is in a state of flux.146

10. RIGHTS AND REMEDIES: ADMINISTRATION AND JURISDICTION FACING GLOBALIZATION The innovative trends emerging in the area of food law underline the crucial importance of the provision of effective remedies when applying new rules and new duties. No remedy, no rights is a principle dating back to equity, which common law scholars have always considered essential for protecting individual freedom, identifying its roots in the old principle of Roman Law Ubi Jus Ibi Remedium. But the transnational dimension of agri-food trade and regulation puts under stress the traditional categories of national remedies. Some measures adopted by the EU Commission and  F. Albisinni, A Long Lasting Path of Competition/Co-operation of Public and Private Food Law: The Case of Self-Regulation Codes, in Riv. dir. alim. www​.riv​ista​diri​ttoa​limentare​.it, No 1-2011, p. 14. 146  P. Verbruggen and T. Havinga, Hybridization of Food Governance, An Analytical Framework, cit., pp. 26–27. 145

88  Research handbook on international food law some cases decided by the Court of Justice, dealing with the sensitive topic of the operation of transnational institutions and sources, well illustrate critical issues in food law. a.

The EU Commission and the International Trade of Agri-Food Products

Regulation 2017/625,147 in one of its first articles, states: “The decisions taken by the competent authorities in accordance with Article 55, Article 66(3) and (6), Article 67, point (b) of Article 137(3), and Article 138(1) and (2), concerning natural or legal persons shall be subject to such persons’ right of appeal in accordance with national law.”148 But this is a provision placed within Title II, dedicated to “Official controls and other official activities in the Member States,” which does not seem to add any significant protection tools compared to what is already guaranteed by the national laws and by the European Treaties. On the other hand, the possible remedies granted to operators concerning the new data processing system (IMSOC)149 are not explicitly provided; the new regulation provides only that ratings of individual operators may be communicated to the public, subject to the conditions that “(a) the rating criteria are objective, transparent and publicly available; and (b) appropriate arrangements are in place to ensure the fairness, consistency and transparency of the rating process.”150 The limited scope of Regulation 2017/625 leaves open the question of the use of such data by public authorities. If a particular evaluation rating (by national, EU, or authorities outside the EU) may lead to sanctions on operators,151 what remedy can the operator use to modify the unfavorable rating? It is possible to apply to the Court of Justice against measures taken by the European Commission as the subject responsible for maintaining the data processing system (IMSOC), but areas of evident uncertainty remain open. It is largely uncertain which remedies the interested parties may use to challenge not how the Commission processed the data received, but the same accountability of the data entered, communicated to the Commission by national administrations, EU and non-EU. A recent administrative measure of the EU Commission well illustrates this point. The case concerned importing meat products from non-EU countries in the EU. Regulation No 854/2004152 provides at Art. 12.1. that products of animal origin may be imported into the Community only if they have been obtained in establishments registered in a list updated by the EU Commission based on the guarantees provided by the authorities of third countries of origin and the information provided by the authorities of the Member States. In May 2018, the Commission amended this list, adopting an implementing regulation153 that excluded some Brazilian establishments previously included. After this decision, products from those Brazilian factories were no longer admitted into Europe. The Commission decision was expressly adopted based on the following:  See supra Part 4.  Art. 7.1. 149  IMSOC is the Information management system for official controls, introduced by Art. 131 of Reg. (EU) 2017/625, and managed by the EU Commission, collecting all information from EU and non-EU authorities on any single agri-food operators and assigning a rating to each operator on the basis of such information. 150  Art. 11.3. 151  As provided by Arts. 9, 44, 54, 79, 138. 152  Regulation (EC) No 854/2004 of the European Parliament and of the Council of 29 April 2004. 153  Commission Implementing Regulation (EU) 2018/700 of 8 May 2018. 147

148

The intersection of international, European, and global food law  89 • • •

Notification from Member States of cases of the presence of Salmonella in poultry meat and poultry meat preparations, originating from several establishments in Brazil; “Information provided by the Brazilian competent authorities” on cases of fraud found in Brazil concerning laboratory certification for meat and meat products exported to the Union; “Ongoing investigations and recent action of the judiciary in Brazil.”154

The Commission’s decision was therefore adopted not only based on the reports by Member States on the controls carried out at the Union’s borders but also based on the information provided by the “Brazilian competent authorities” on “cases of fraud,” as well as on “ongoing investigations and recent interventions of the judiciary in Brazil.” It is thus recognized relevance, as a basis for the adoption of the EU decision of excluding these establishments “from imports into the Union of specified products of animal origin,”155 to acts of authorities of non-EU countries, without specifying whether the interested parties have been admitted to participating in the proceedings, which rights (if any) have been guaranteed to them, who performed the tests, what have been the analytical results of microbiological checks. Judicial action against EU exclusion of establishments should therefore pass through prior judicial or administrative action at the national level (in this case: in Brazil concerning the acts of Brazilian authorities, and in each MS concerning the notification to the Commission of cases of Salmonella) against the acts, and the authorities accounted for by the Commission. The dimension of mutual interaction between institutions of sovereign jurisdictions, distinct but all operating in the shared arena of the “space” of production and trade,156 is strongly enhanced by Regulation 2017/625 through the establishment of a shared and unitary database and the assignment of a rating to each operator. But the severe problems such interaction can cause in terms of the effectiveness of the protection of the operators in this global arena – as evidenced by the case of the Brazilian meat – remain unresolved even after the adoption of the new regulation. b. The Court of Justice, Biotechnological Inventions, and the Rio de Janeiro Convention A case decided in 2001,157 at the beginning of the century, well illustrates the critical challenges arising from the intersection of international treaties with the domestic EU legal system. The Court of Justice was called to decide on the petition of the Kingdom of Netherlands for the annulment of the EC Directive of 1998158 on the legal protection of biotechnological inventions. The Netherlands, the only MS that voted against the Directive’s approval, applied for the annulment based on seven different pleas. All those pleas are interesting, as they involve basic principles of EC law. Still, regarding the transnational and international  See recitals (4), (5), (6) of Reg. 2018/700.  See Art. 1 of Reg. 2018/700. 156  N. Irti, Norma e luoghi. Problemi di geo-diritto, Laterza, Bari-Roma, 2001. 157  Court of Justice, 9 October 2001, C-377/98, Kingdom of Netherlands v. European Parliament. Council of European Union, Commission of European Communities. 158  Directive 98/44/EC of the European Parliament and of the Council, of 6 July 1998, on the legal protection of biotechnological inventions. 154 155

90  Research handbook on international food law dimensions of sources of law discussed here, the relevant points are those submitted in the fourth plea based on the alleged duty to comply with international conventions. European Community had approved the Agreement on Trade-Related aspects of Intellectual Property Rights (TRIPs)159 and the Convention on Biological Diversity signed in Rio de Janeiro on 5 June 1992 (CDB).160 Art. 1.2. of Directive 98/44/EC, states, “This Directive shall be without prejudice to the obligations of the Member States under international agreements, and in particular the TRIPs Agreement and the Convention on Biological Diversity,” but omits any specific indication on the criteria to follow in the event of a conflict between the principles proper to the TRIPs Agreement and those appropriate to the Rio Convention. The Netherlands application pleaded that Directive 98/44/EC violated both those international agreements. The Court of Justice rejected all the arguments of the applicant, with a decision relevant to the arguments and the consequences, even if concise.161 Concerning the TRIPs Agreement, the Court recognized that the MS may exclude patents of living matter but declared that this is simply a faculty, which can be waived. According to the Court, the Directive precisely expresses this waiver and is binding for all Member States, as adopted by the Council with the majorities prescribed by Art. 100/A of the Treaty.162 The result is a declared compression of the autonomous choices of a single MS, compared to what the TRIPs agreement had guaranteed. Equally relevant are the reasons affirmed by the Court to reject the plea relating to the failure to comply with the Rio Convention. The Netherlands argued that the Directive would run counter to the principle of equitable sharing of the benefits arising out of the utilization of genetic resources.163 The Court of Justice rejected this argument: Moreover, while Article 1 of the CBD states that its objective is the fair and equitable sharing of the benefits arising out of the utilisation of genetic resources, including by appropriate access to genetic resources and by appropriate transfer of relevant technologies, it specifies that this must be done taking into account all rights over those resources and technologies. There is no provision of the CBD which requires that the conditions for the grant of a patent for biotechnological inventions should include the consideration of the interests of the country from which the genetic resource originates or the existence of measures for transferring technology.164

Thus arguing, the 2001 judgment introduced an authentic (and binding) interpretation not only of the 1998 directive but of the same contents of the TRIPs Agreement and the Convention on the protection of biological diversity, denying to those documents the legal capacity to guarantee protection to the interests of the countries of origin of genetic resources. The principles stated in the recitals and in Art. 1 of the Directive are reduced to a political emphasis destined

 Agreement on Trade-Related Aspects of Intellectual Property Rights, 1994, approved on behalf of the European Community by Council Decision 94/800/EC of 22 December 1994. 160  Convention on Biological Diversity, United Nations, Rio de Janeiro, 1992, approved on behalf of European Community by Council Decision 93/626/EEC of 25 October 1993. 161  As Gino Gorla pointed out in his lessons on jurisprudence as source of law, it must be noticed that in some cases the brief dimension of the reasons of a judicial decision may reflect the lack of full agreement of the entire judging panel on the conclusions reached, so that persuasiveness is sacrificed to the assertiveness of decisum. 162  Point 58 of the decision. 163  Point 63 of the decision. 164  Point 66 of the decision. 159

The intersection of international, European, and global food law  91 to yield before a different hierarchy of interests privileged by the content of the operative provisions introduced by the Directive. If, in other cases in the past, the recitals have played a decisive role in assigning actual contents to EC provisions,165 here, the interpretation moved in the opposite direction. c. The Court of Justice, the Indication of Origin of Food, and the International Humanitarian Law An entirely different approach to the relevant topic of the interaction between EU and International rules came recently by a decision of the Court of Justice, called to judge the case of the indication of origin on foodstuffs originating in Palestinian territories occupied by the State of Israel since June 1967.166 A notice published by the French Minister for the Economy and Finance on 24 November 2016 specified: under international law the Golan Heights and the West Bank, including East Jerusalem, are not part of Israel. Consequently, in order not to mislead the consumer, the labelling of food products must accurately indicate the exact origin of the products, whether their indication is mandatory under Community rules or voluntarily affixed by the operator. For products from the West Bank or the Golan Heights which originate in settlements, an indication limited to “product originating in the Golan Heights” or “product originating in the West Bank” is not acceptable. Although these terms do refer to the wider area or territory in which the product originates, the omission of the additional geographical information that the product originates from Israeli settlements is likely to mislead the consumer as to the true origin of the product. In such cases, it is necessary to add, in brackets, the term “Israeli settlement” or equivalent terms. Thus, terms such as “product originating in the Golan Heights (Israeli settlement)” or “product originating in the West Bank (Israeli settlement)” may be used.167

In a judicial proceeding of the Organisation juive européenne and Vignoble Psagot Ltd against the French Minister, the legality of this notice was challenged, and the case was sent to the Court of Justice for a preliminary ruling on the legality of this French Notice when compared to the provisions of Regulation (EU) No 1169/2011 on food information to consumers.168 The Court of Justice decided on the legitimacy of the French Notice on the basis of those reasons: In the present case, the referring court states that the foodstuffs at issue in the main proceedings originate in “territories occupied by the State of Israel since 1967” and, more specifically, as stated in the Ministerial Notice, in the West Bank, including East Jerusalem, and the Golan Heights.169

 See the decision of the Court of Justice, 4 April 2000, C-269/97, on Regulation (CE) No 820/97 on traceability and origin labelling of bovine meat. 166  Court of Justice, 12 Novembre 2019, C-363/18, Organisation juive européenne, Vignoble Psagot Ltd v. Ministre de l’Économie et des Finances. 167  Point 17 of the decision. 168  Regulation (EU) No 1169/2011 of the European Parliament and of the Council, of 25 October 2011, on the provision of food information to consumers. 169  Point 33. 165

92  Research handbook on international food law Under the rules of international humanitarian law, these territories are subject to a limited jurisdiction of the State of Israel, as an occupying power, while each has its own international status distinct from that of that State …170 Consumers cannot be expected to guess, in the absence of any information capable of enlightening them in that respect, that that foodstuff comes from a locality or a set of localities constituting a settlement established in one of those territories in breach of the rules of international humanitarian law.171 To that extent, the omission of the indication that a foodstuff comes from an “Israeli settlement” located in one of the territories referred to in paragraph 33 above is likely to mislead consumers, by suggesting that that food has a place of provenance other than its true place of provenance.172

International humanitarian law, and an Advisory Opinion of the International Court of Justice on the right to self-determination of the Palestinian people,173 are recognized by the Court of Justice in this decision as sources directly operating within the European agri-food law, adopting a paradigm quite different from that followed by the Court in the decision of 2001 on Directive 98/44/EC.

11. COMPARATIVE TOOLS AND GLOBAL AGRI-FOOD LAW An analysis, albeit brief, of experiences and trends of these years in European, domestic, and international legislation and jurisdiction allows us to identify the emergence, with increasing evidence, of a multilevel framework of principles and rules, addressed to the agri-food system taken as a comprehensive whole. This framework – as anticipated in the introduction – includes structures, activities, and relationships, subject to multilevel regulatory interventions and moving towards a complex polycentric system, where Global, European, and domestic levels are intertwined. Production and trade make up a single body, which by its nature is global, equipped with principles, rules, and procedures, not reduced to the agricultural and food legislation or the single hygiene-health regulations of the products considered as such, but identifying, representing, and governing the origin (the farmer), the supply chain (the food industry), and the result (the food product and its placement on the consumption market) – therefore the whole agri-food system – that finds essential identity in the systemic formula of global agri-food law. The result is a growing tendency to a common disciplinary area, looking as a whole to agriculture, foodstuff, environment, and any form of life, and therefore addressed to players having different legal statuses,174 thus posing further questions to law scholars, due to the persistent distinction of legal regime between agricultural and commercial undertakings. This framework is growing through communication and contamination of models to share answers and possible solutions based on everyday experiences and needs in the two aspects  Point 34.  Point 50. 172  Point 51. 173  International Court of Justice, Advisory Opinion of 9 July 2004, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory; point 35 of the decision of the EU Court of Justice. 174  See supra section 6. 170 171

The intersection of international, European, and global food law  93 of introducing external sources within the internal legal systems and spreading internal rules and models far beyond national borders. On the other hand, in today’s experience, we must recognize that there cannot be an agri-food law that is not by its nature open to the winds of globalization. From this perspective, the unique structure of agri-food law, characterized by the simultaneous action of a multiplicity of sources and models quite different from the traditional ones, requires knowledge tools suitable for this complex diversity and leads to the use of the comparative method as a valuable tool for all those seeking to “ask the appropriate questions”175 and to “move out from ideological mechanism,”176 searching for consistent answers to critical questions. We may conclude that – if “history involves comparison, and comparison involves history,” as Gino Gorla loved to say, citing Maitland177 – agri-food law, by its actual nature of global and comparative law, involves history and comparison.

 As observed by V. Zeno-Zencovich, in the conclusion of Comparative Legal Systems. A Short and Illustrated Introduction, Roma-Tre Press, 2019, p. 105. 176  P.G. Monateri, Methods in Comparative Law, cit. 177  G. Gorla, Il Contratto. Problemi fondamentali trattati con il metodo comparativo e casistico, Giuffrè ed., Milano, 1954, Prefazione. 175

DEVELOPMENT OF FOOD LAW AND GOVERNANCE STRATEGIES 

5. Drafting national food laws in a globally connected world Jessica Vapnek and Melvin Spreij

I. A NEW APPROACH TO FOOD LEGISLATION Globalization and dramatic increases in the volume of food trade over the last few decades have made food safety an issue of global concern. As we have noted in a previous publication, “[n]ew technologies allow food products to travel farther and stay fresh longer, paradoxically posing an increased risk of the spread of biological, chemical, and physical food hazards.”1 At the same time, advances in technology have helped governments improve their means of detection, investigation, and control of these potential threats.2 Technology is also allowing companies to create new foods, raising questions about how they should be regulated. Meanwhile, companies increasingly sell and consumers purchase food online, adding new challenges and risks. Increasing world populations are placing greater demands on world food systems, especially in developing countries and urban areas, where higher population densities increase the risks of food-borne disease. The World Health Organization (WHO) estimates that more than 600 million people fall ill and 420,000 die every year from eating food contaminated with bacteria, viruses, parasites, toxins, or chemicals.3 The World Bank Group estimates that unsafe food costs low- and middle-income economies US$110 billion in lost productivity and medical expenses each year.4 In many countries, greater sophistication and improved access to information have sharpened consumer demands for safer food, while food contamination problems have weakened consumer confidence. Although some outbreaks were accidental and unforeseen, others could have been predicted and avoided through proper monitoring and early warning mechanisms and controls. But while some food chain sectors (such as slaughterhouses and dairies) are routinely subject to more preventive action and oversight, others are not. Change is needed.

  Jessica Vapnek & Melvin Spreij, FAO Development Law Service, Perspectives and Guidelines on Food Legislation, With a New Model Food Law, at 7 (2005), www​.fao​.org​/3​/ a0274e​/a0274e​.pdf. 2   See Robert V. Tauxe & Emilio J. Esteban, Advances in Food Safety to Prevent Foodborne Diseases in the United States, in Silent Victories: The History and Practice of Public Health in Twentieth Century America 18 (John W. Ward & Christian Warren eds., 2006), DOI:1​0.109​3/ acp​rof:o​so/97​80195​15069​8.003​.02. 3   Food Safety, World Health Organization [WHO] (May 19, 2022), www​.who​.int​/news​-room​/ fact​-sheets​/detail ​/food​-safety. 4   See Steven Jaffee et al., The Safe Food Imperative: Accelerating Progress in Low- and Middle-Income Countries xxiv (2019), https://openknowledge​.worldbank​.org​/ handle​/10986​ /30568. 1

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96  Research handbook on international food law The UN Sustainable Development Goals call for a major transformation of agriculture and food systems by 2030 to end hunger, achieve food security, and improve nutrition and food safety. A growing international movement seeks to reshape the food system to become more productive, inclusive of poor and marginalized populations, environmentally sustainable and resilient, and able to deliver healthy and nutritious diets to all. This will require countries to take a more holistic and coordinated approach, involving public and private sector stakeholders at local, national, regional, and global levels and across sectors and disciplines. Food legislation, which regulates the production and handling of food across the entire food chain, from farmer to consumer,5 must reflect this broader food systems approach. National food systems are governed by various laws and regulations which set out the government’s requirements that food chain operators must meet to ensure food safety and quality, protect human health, facilitate trade, and preserve the environment. Recent events – the COVID-19 pandemic and climate change impacts foremost among them – have led more governments and individuals to recognize the interconnections among agriculture, food, the environment, and human health. Many governments are increasingly embracing a One Health approach, which recognizes the interdependence of human, animal, and environmental health. Just as food systems are interconnected across human, plant, and animal health, so are they interrelated around the world. Because many policymakers strive to reflect these links and connections in national legislation (while also accounting for their regional and international obligations), this chapter aims to collect information and provide guidance to policymakers based on the authors’ decades of international work. The chapter first sets the stage by introducing the international organizations and initiatives that form the backdrop to national legislative frameworks for food. Next, the chapter describes the key considerations national policymakers must consider and weigh as they revise and update their national food laws. The chapter concludes by highlighting some emerging trends and developments in the food regulatory area in the third decade of the 21st century. The overall theme of this chapter is that national food legislation is not narrow, parochial, or static; rather, it is dynamic and continually changing. The authors believe the best approach to tackle the world’s complex food-related threats is to treat food legislation as part of a continuous regulatory management cycle. Governments should take stock of existing rules and regulations, eliminate ineffective or inefficient ones, and decide whether to develop new or revised rules to meet emerging risks and challenges.6

II.

INTERNATIONAL CONTEXT

National governments join international organizations to influence and contribute to consensus on myriad food policy issues. Most relevant for this chapter are the Food and Agriculture Organization of the United Nations (FAO), WHO, the World Organization for Animal Health (WOAH), and the World Trade Organization (WTO). Whereas FAO addresses food safety issues along the food supply chain, WHO works with the public health sector to lower the instances and burden of food-borne diseases. The WOAH addresses terrestrial and aquatic   See Food Safety and Quality: Food Laws & Regulations, Food & Agric. Org., www​.fao​.org​/food​ -safety​/food​-control​-systems​/policy​-and​-legal​-frameworks​/food​-laws​-and​-regulations​/en/ (last visited July 17, 2023). 6   See Standards & Trade Dev. Facility, Good Regulatory Practices to Improve SPS. 5

Drafting national food laws in a globally connected world  97 animal health, including its intersection with and impact on human health, while the WTO works to facilitate global trade, including in food. These organizations support governments, mostly in developing countries, wishing to review and update their legislative frameworks for food. For example, FAO and WHO have developed a tool for governments to self-assess their national food control systems, including reviewing their food policies and legislation.7 Upon request, FAO and WHO help member countries draft, amend, and update national food laws and regulations. Teams of international legal advisors work closely with national food safety and food law experts to tailor the support to the specific needs and legal systems of the member countries requesting assistance. The WOAH, as well, has put in place a program to assist its member countries in methodically reviewing their legislation in the veterinary domain. Recently, FAO, WOAH, and WHO began joint work preparing a tool for countries to self-assess their legislative frameworks to ensure that they have appropriate tools to tackle antimicrobial resistance at all stages of the food chain. These same three agencies, together with the World Bank Group and the WTO, collaborate in the Standards and Trade Development Facility (STDF), a global partnership to help developing countries meet sanitary and phytosanitary (SPS) requirements for agri-food trade based on international standards.8 Several treaties and instruments comprise international food law, and sound national food legislation must reflect these international obligations – while respecting national circumstances. The next sections review key international instruments that provide the context for revising national food laws. A. WTO Agreements The World Trade Organization (WTO), established in 1995, is the global organization mandated to establish trade rules between nations. These rules are captured in international trade agreements adopted by the WTO’s 164 members. During the post-war negotiation of the instrument that gave rise to the WTO (the General Agreement on Tariffs and Trade, or GATT), the focus was on lowering ordinary customs duties (tariffs). Today, the WTO’s mandate has broadened to include other types of non-tariff measures that affect trade, such as regulations and standards. Two WTO agreements are particularly relevant to food, the Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement) and the Agreement on Technical Barriers to Trade (TBT Agreement). Both aim to strike a balance between WTO members’ right to regulate for legitimate objectives, such as food safety or consumer protection, and the need to ensure that any such regulations do not become unnecessary or discriminatory barriers to trade.9 The SPS Agreement sets out the basic rules for food safety and animal and plant health measures. It recognizes the right of governments to provide the level of health protection they deem appropriate while ensuring that this right is not misused for protectionist purposes and does not result in unnecessary barriers to international trade. Measures to ensure food safety should be based on scientific findings and applied only to the extent necessary to protect human health from food-borne risks or from animal diseases and plant pests. The SPS   FAO & WHO, Food Safety & Quality Series No. 7.1, Food Control System Assessment Tool: Introduction and Glossary (2019). 8   See Standards & Trade Dev. Facility, www​.standardsfacility​.org/ (last visited July 17, 2023). 9   FAO & WTO, Trade and Food Standards, at vii (2017), www​.wto​.org​/english​/res​_e​/ booksp​_e​/ tradefoodfao17​_e​.pdf. 7

98  Research handbook on international food law Agreement covers all types of measures to achieve these purposes, including requirements for final products and processing, as well as inspection, certification, treatment, packaging, and labeling requirements that are directly related to food safety.10 Whereas the SPS Agreement applies to measures addressing specific health-related risks, the TBT Agreement covers a broader range of products and policies – including food. It recognizes the right of governments to adopt and enforce measures to achieve legitimate public policy objectives, such as protecting human health and safety, conserving the environment, providing consumer information, or ensuring product quality. Although governments are free to decide how to regulate products to achieve these objectives, again, they must do so in a way that does not discriminate between trading partners or unnecessarily restrict trade. The TBT Agreement applies to three categories of measures: technical regulations, standards, and conformity assessment procedures. Both the SPS and TBT Agreements strongly encourage WTO members to use international standards, guidelines, and recommendations as the basis for their national measures. The SPS Agreement explicitly recognizes three standard-setting bodies that correspond to the areas covered by the agreement: • • •

The Codex Alimentarius Commission (the Codex), for food safety standards; The WOAH, for animal health standards and zoonoses (i.e., diseases that can be transmitted from animals to humans); and The International Plant Protection Convention (IPPC) for phytosanitary (plant health) standards.11

In contrast, the TBT Agreement does not recognize any particular standard-setting body. Yet, WTO member countries rely on and deem Codex standards highly relevant in critical TBT areas such as food labeling and health and nutrition claims. BOX 5.1  THE INTERNATIONAL PLANT PROTECTION CONVENTION (IPPC) Plants make up 80% of the food we eat. They are under constant and increasing threat from pests and diseases, which can negatively affect food security, biodiversity, and economic prosperity. The IPPC, the international treaty for protecting plant resources (including forests, aquatic plants, non-cultivated plants, and biodiversity), brings countries together to tackle plant threats. It has 183 contracting parties, and its implementation is governed by the Commission on Phytosanitary Measures (CPM). The CPM identifies actions to control the spread of pests into new geographic areas; it also develops and adopts international plant health standards and recommendations to harmonize international trade in plants and plant products. The IPPC Secretariat coordinates and supports the IPPC’s work program.1 Note:

1

 ee International Plant Protection Convention [IPCC], wwwippc.int/en/ (last visited S July 17, 2023).

  See Understanding the WTO Agreement on Sanitary and Phytosanitary Measures, WTO, www​.wto​ .org​/english​/tratop​_e​/sps​_e​/spsund​_e​.htm (last visited July 17, 2023). 11  SPS Agreement, Annex A, Definitions, 1.1 ¶ 3(c). 10

Drafting national food laws in a globally connected world  99 Both the SPS and TBT agreements promote harmonization by “freeing” WTO members from the burden of proving the necessity of their measures if those measures are closely aligned with relevant international standards. If the national measures are aligned, they are presumed to comply with the agreements. However, the agreements also permit WTO members to choose not to use international standards if they wish to impose higher standards. For example, under the SPS Agreement, a WTO member may want to achieve a higher level of protection than what is reflected in a Codex standard. This is permissible if the member country provides a scientific justification for the measure based on an appropriate assessment of the risks and if the approach taken is consistent, not arbitrary. The Trade Facilitation Agreement (TFA), which entered into force in 2017, is another WTO Agreement relevant to food legislation, as it contains provisions to expedite the movement, release, and clearance of goods, including goods in transit. The TFA also includes special provisions for perishable goods, such as food products. Some provisions in the TFA, for example, on pre-arrival processing and on publishing import and export requirements, add specific rules over and above provisions in the SPS and TBT Agreements. The TFA also calls for cooperation between customs departments and other appropriate authorities, such as food agencies operating at borders.12 BOX 5.2  GEOGRAPHICAL INDICATIONS The WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) requires WTO members to protect geographical indications (GIs) to avoid misleading the public and to prevent unfair competition. A GI is generally defined as a sign used on a product that has a specific geographical origin and possesses qualities or a reputation due to that origin. The majority of GIs in the world are applied to food and agricultural products, including wine and spirits, as these products typically have qualities that derive from their place of production and stem from specific local, geographical factors such as climate and soil. GIs can be useful tools in marketing strategies to inform and attract consumers. Well-known examples of GIs are South African “Rooibos” tea, Brazilian “Robusta” coffee, and French “champagne.” Several countries protect GIs through a special system for such indications. Others protect GIs through certification marks or laws that focus on business practices, such as consumer protection or labeling laws.1 Note:

1

S ee TRIPS – Trade-Related Aspects of Intellectual Property Rights, WTO, www​ .wto​.org​/english​/tratop​_e​/trips​_e​/trips​_e​.htm (last visited July 17, 2023). See also Geographical Indications: An Introduction, World Intell. Prop. Org. (2017), www​.wipo​.int​/edocs​/pubdocs​/en​/wipo​_pub​_952_2021.pdf.

B. Codex Alimentarius The Codex Alimentarius, or “Food Code,” is a compilation of international standards, guidelines, and codes of practice. Collectively, these Codex texts are designed to protect consumer 12

  See Trade Facilitation, WTO, www​.wto​.org​/english ​/tratop​_e​/tradfa ​_e​/tradfa ​_e​.htm (last visited July 17, 2023).

100  Research handbook on international food law health and promote fair practices in food trade. Codex standards are developed by representatives of 188 Codex member countries (plus the European Union) and numerous independent experts. The Codex Alimentarius Commission, established by FAO and WHO in 1963, leads the implementation of the Joint FAO/WHO Food Standards Program. Codex standards are based on scientific evidence from risk assessments provided by independent expert advisory bodies hosted by FAO and WHO: the Joint FAO/WHO Meeting on Pesticide Residues (JMPR), the Joint FAO/WHO Expert Committee on Food Additives (JECFA), the Joint FAO/WHO Expert Meeting on Microbiological Risk Assessment (JEMRA), and the Joint FAO/WHO Expert Meetings on Nutrition (JEMNU). In addition to these formal structures, FAO and WHO convene more informal consultations and meetings when necessary to address issues falling outside these entities’ mandates.13 Codex includes standards for all foods, whether processed, semi-processed, or raw, for distribution to consumers. It includes provisions related to food hygiene, food additives, pesticide and veterinary drug residues, contaminants, labeling and presentation, analysis and sampling methods, and import and export inspection and certification. All Codex texts are freely available on the Codex website. Although these Codex instruments are used worldwide to harmonize national food safety legislation, they are advisory, not compulsory. For Codex instruments to become legally enforceable, countries must adopt them in national laws or regulations, in whatever manner fits their unique environment and challenges. Because of the role of Codex in the SPS Agreement,14 WTO members in particular should align national food laws and regulations with the goals of Codex, ensuring that food production systems adequately protect human health.15 C. World Organization for Animal Health (WOAH) To ensure the safety of products of animal origin, government oversight is essential at all stages of the food chain from production at the farm through human consumption. The World Organization for Animal Health (WOAH) is the intergovernmental organization responsible for animal veterinary public health, including food safety in animal production. The WOAH’s highest authority is the World Assembly of Delegates, comprised of representatives from all 182 WOAH members. One of its main functions is to adopt international standards for animal health, especially for international trade. Whereas the Codex sets standards from primary processing to consumption, WOAH standards aim to mitigate food safety risks arising at the pre-slaughter or pre-processing stage. Since 2002, a Working Group at the WOAH has been developing science-based standards and guidelines on animal production safety while avoiding overlaps with Codex standards. All WOAH standards in the WOAH Terrestrial Animal Health Code and the WOAH Aquatic Animal Health Code are freely available online. Like Codex standards, they are

 FAO & WTO, supra note 9, at 9.   See supra text accompanying note 11. 15   Codex Alimentarius Commission, Guidelines for the Design and Implementation of National Regulatory Food Safety Assurance Programme Associated with the Use of Veterinary Drugs in Food Producing Animals, at 4, CAC/GL 71-2009 (2014). 13 14

Drafting national food laws in a globally connected world  101 voluntary and must be incorporated into national legislation to become enforceable.16 Also, like Codex standards, they are particularly important to WTO members and signatories of the SPS Agreement. The WOAH also plays an important role in advising national veterinary services on food safety. At the national level, veterinary services units or departments conduct checks on the farm and in places of processing, such as slaughterhouses, where they apply WOAH standards during antemortem inspections to check the health and welfare of animals and postmortem inspections to monitor the safety of animal products. In some jurisdictions, the veterinary services control the safety of animal products from farm to fork, i.e., starting at the farm and running through slaughter, transport, distribution, sale, and handling.17 D. Other Relevant Instruments A country’s national food legislation may have to reflect rights and obligations stemming from other international treaties and instruments in addition to those just reviewed. For example, WHO coordinates the implementation of the International Health Regulations (2005), which form an overarching and legally binding framework defining countries’ rights and obligations in handling public health events and emergencies that have the potential to cross borders. Under this framework, national governments report food safety incidents of a certain gravity through appropriate channels.18 In addition, FAO and WHO established the International Food Safety Authorities Network (INFOSAN) to facilitate and improve information exchange and cooperation between countries on food safety issues and emergencies.19 The right to adequate food is enshrined in article 11 of the International Covenant on Economic, Social, and Cultural Rights and is thus a legally binding human right for the ratifying parties. In 2004, FAO member countries adopted the Right to Food Guidelines, which provide non-binding guidance to countries on ways to implement the right to adequate food. Currently, more than 30 countries explicitly recognize the right to food in their constitutions.20 Recently, the Committee on World Food Security, hosted by FAO, endorsed Voluntary Guidelines on Food Systems and Nutrition to support countries as they develop coordinated, multi-sectoral policies, laws, and investment plans related to national food systems and nutrition.21

  See World Organisation for Animal Health, www​.woah​.org​/en​/home (last visited July 17, 2023). 17  WOAH, Food Safety (2015), www​.woah​.org​/app​/uploads​/2021​/03​/food​-en​.pdf. 18   International Health Regulations, WHO, www​.who​.int​/ health​-topics​/international​-health​-regulations​# tab​=tab_2 (last visited July 17, 2023). 19   See FAO & WHO, The International Food Safety Authorities Network (INFOSAN) Progress Report 2004–2010, at 7 (2011), www​.fao​.org​/3​/i2002e​/i2002e​.pdf. 20   See The Right to Food, FAO, www​.fao​.org​/right​-to​-food​/ background​/en/ (last visited July 17, 2023). 21  Comm. on World Food Security, CFS Voluntary Guidelines on Food Systems and Nutrition, FAO, www​.fao​.org​/cfs​/vgfsn (last visited July 17, 2023). 16

102  Research handbook on international food law BOX 5.3  REGIONAL ORGANIZATIONS AND INITIATIVES The desire to join or trade with regional economic organizations may spur countries to update and conform their food legislation to those organizations’ requirements and standards. An important example is the European Union (EU), which has developed an extensive set of EU-wide laws that cover the entire food processing chain from “farm to fork” and also apply to food products imported into the EU. In some sectors, developing countries consider meeting EU regulations more important than meeting Codex standards as they seek to gain and maintain access to the EU market.1 The Association of Southeast Asian Nations (ASEAN) is another example, where a food safety regulatory framework is emerging to protect consumer health and promote the free movement of safe food products among ASEAN members. The new framework aims to harmonize SPS measures and standards, lower technical barriers to trade, and reduce differences among national laws regulating food safety.2 In Africa, the policy landscape is dominated by multiple regional economic communities, often with overlapping memberships.3 To deepen economic integration on the continent, African Union member states in 2018 founded the African Continental Free Trade Area (AfCFTA), covering a market of more than 1.2 billion people. More recently, FAO/WHO Coordinating Committee for Africa, established by Codex, began preparing new regional harmonized food law guidelines to assist African countries in developing national food laws.4 The capacity to meet harmonized food safety requirements and standards is widely recognized as a major challenge to increasing intra-African trade in agri-food commodities. Notes: 1   See Akiko Yanai, Diffusion Mechanisms for Regulating Fishery Products: The Cases of Tanzania, Madagascar and Mauritius, in. The Diffusion of Public and Private Sustainability Regulations: The Responses of Follower Countries 75 (2021). 2   See Ching-Fu Lin, The Emergence of ASEAN Regional Food Safety Governance: Structure, Substance, and Context, 74 Food & Drug L. J. 80, 84 (2019). 3  E.g., Community of Sahel-Saharan States (CEN-SAD), Common Market of Eastern and Southern Africa (COMESA), East African Community (EAC), Economic Community of Central African States (ECCAS), Economic Community of West African States (ECOWAS), Intergovernmental Authority on Development (IGAD), South African Development Community (SADC), Arab Maghreb Union (UMA). 4  Personal communication between FAO and authors.

III.

NATIONAL FOOD LAWS22

In our interconnected world, the international organizations and instruments just reviewed guide countries’ efforts to update national food laws. Policymakers setting out to revise and update their national frameworks for food must review their international commitments, both binding and non-binding. Membership in or the desire to join an international or regional  The material in this section draws from Vapnek & Spreij, supra note 1, and Vapnek & Spreij, infra note 32.

22

Drafting national food laws in a globally connected world  103 body brings many benefits but also obligations, such as the need to align national legislation with international standards. For this reason, national policymakers must periodically review their national policy and legal frameworks to determine what legislative changes are required. At a national level, regulatory frameworks governing the food sector vary widely in sophistication and scope. Some countries have no specific food legislation but instead employ general public health or consumer protection legislation; others may directly apply international instruments, such as Codex standards, guidelines, and codes of conduct. Still others may enact various laws and regulations to address specific food issues or assign food-related responsibilities to particular government units, creating a maze of conflicting or overlapping rules. In addition, legislation may have been in place for decades and may not reflect modern concepts, principles, or definitions or may have been amended or added to in some parts and not others, creating inconsistencies. In such circumstances, updating the national legal framework for food is essential. A. Evaluating Existing Legislation After reviewing the international context, the next step for a government seeking to revise its food legislation is to identify and analyze the existing constellation of legal provisions governing food. Evaluating the existing rules helps define the range of reforms that will be necessary while outlining the parameters within which any new regulation will take place. In rare cases, a jurisdiction may have no basic food law, so new legislation must be drafted. In other cases, there may be an existing legal framework for food, but it may be outdated or insufficient or rife with overlaps and gaps, thus calling for a complete overhaul. In other cases, only minor changes may be necessary, for example, to add a few specific obligations or enhance coordination. Analyzing the existing framework serves yet one more purpose: if it leads to the conclusion that the current legislation is good enough, time may be better spent on other matters, such as improving the implementation and enforcement of existing laws. A review of the existing framework should begin with the constitution, if any, which defines how the country’s legislative, executive, and judicial functions and responsibilities are assigned. The constitution may allocate some powers to the national authorities (or federal authorities, in a federal system), some to state or provincial governments, and some to local or municipal authorities. In a few cases, the constitution may contain an explicit reference to food, such as the right to food. After examining the constitution, if any, it is important to review the many pieces of legislation directly addressing food control, food safety, and food trade in all its various forms. This includes legislation targeting particular kinds of food or regulating harmful substances in food, as well as all legislation not specifically addressing food but having an impact on it. This would encompass legislation regulating animal feed and other agricultural inputs such as pesticides, fertilizers, and veterinary drugs, since their improper use or disposal may leave residues in food and affect public health and the environment. Among other concerns, the improper or unregulated use of antimicrobial drugs can cause harmful impacts on human health.23

 For example, in the United States, over 2.8 million antibiotic-resistant infections occur every year due to food-borne illness, resulting in the death of more than 35,000 people. Ctrs. for Disease Control & Prevention, Antibiotic Resistance Threats in the United States, 2019, at 3 (2019), www​.cdc​.gov​/drugresistance​/pdf​/threats​-report ​/2019​-ar​-threats​-report​-508​.pdf.

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104  Research handbook on international food law BOX 5.4  ANTIMICROBIAL RESISTANCE Antimicrobial resistance (AMR), originating in food-producing animals, can cause antibiotic-resistant intestinal infections in humans and affect the environment.1 For this reason, AMR is a global health issue that requires a coordinated and multisectoral One Health approach. Although the primary purpose of antimicrobials is medical, they are also used in many countries for non-medical purposes, such as promoting growth in livestock and aquaculture. This increases overall use, creating more opportunities for pathogens to be exposed to antimicrobials and to develop AMR. Antimicrobials are also sometimes used to compensate for unsanitary conditions and improper animal health management. For example, they may be administered to livestock through feed or water even though many of the animals receiving the drugs are not displaying signs of infection. The use of organic fertilizer from these animals and the application of the resulting contaminated wastewater for irrigation are also mechanisms of unnecessary and excessive spread of antimicrobials. Similarly, in aquaculture, antimicrobials are commonly administered to fish as a feed additive, and since many aquaculture farms are in the ocean, the food the fish do not consume can flow into the open ocean, leading to bacterial resistance. The resistant bacteria then act as a reservoir of resistant genes that can spread, with the acquired resistance affecting aquatic animals and humans (e.g., with more severe infections and treatment failures). Because water bodies are interconnected (ocean/freshwater; surface/groundwater), the impacts of aquaculture-related AMR can be far-reaching. The tripartite (WOAH, FAO, WHO) is working on various issues and initiatives around AMR. As of late 2022, the tripartite had completed the draft methodology and tool, which is intended to equip countries to evaluate their national legislative frameworks across all One Health sectors to improve regulation of AMR. Note:

1

Antibiotic Resistance, Food, and Food Animals, Ctrs. for Disease Control & Prevention (July 13, 2022), www​.cdc​.gov​/foodsafety​/challenges​/antibiotic-resistance.html.

B. Reviewing Institutional Mandates National control over food can be weak due to legislative gaps, but the institutional setup for food regulation can also undermine it. One common problem observed at the national level is the failure to identify which ministry, agency, or organization has the ultimate power to make decisions on food policy and food control, inspect food products or businesses, and set and enforce food standards. Confusion over roles and functions can also arise from the failure to properly allocate powers among different levels of government in a decentralized system or from assigning powers to different sub-agencies that do not function well together and seek to preserve their perceived or actual spheres of influence. Worse, provisions within the applicable legislation may appear to, or may actually, give the same powers to different entities. Import and export inspection systems, for instance, are often located in the ministry responsible for commerce or trade, while the import and export of food products may also fall within the ambit of the basic food law enforced by the ministry responsible for agriculture or public health. Similarly, the consumer protection law, which is usually enforced by the ministry responsible for trade, usually applies to the labeling and

Drafting national food laws in a globally connected world  105 advertising of food, while the basic food law may do the same. Other topics relevant to food safety, such as application and use of pesticides, might be allocated to the ministry in charge of the environment or agriculture, but the ministry of health may also have a role. Overlapping responsibilities are among food control systems’ most prevalent and harmful weaknesses worldwide. Affected systems are bedeviled by duplication of resources (e.g., where two or three different agencies inspect one food business) and burdensome bureaucracies (e.g., where a potential food producer must apply to two or three agencies for a license or permit). Meat inspection and fish inspection are common areas of overlap, with enforcement powers often exercised by the veterinary or fisheries department, the ministry responsible for public health, and sometimes customs officials. Other potential flashpoints are the control of food businesses in cities, which may be subject to inspection by the central ministry responsible for public health, the municipal authorities, and the tourism authority. Grocery stores and markets may be subject to inspection by the food authority, the municipal authorities, the consumer protection department, and the standards bureau, with some inspections focusing on weights and measures, others on containers and labels, and others on the ingredients of the products on offer. There is no “one size fits all” approach to these institutional challenges: the solution differs from country to country. To avoid choosing from among the many government units with legitimate roles and interests in the food control system and having to iron out the conflicts among them, several countries have opted to restructure their institutional framework entirely to establish an autonomous national food authority with responsibility for coordinating and overseeing all food control activities in the country.24 But when creating a single agency is not practical, governments can revise institutional mandates to identify boundaries and delineate powers and responsibilities as specifically as possible. These clear assignments of authority (in legislation) can be bolstered where necessary by carefully drafted memoranda of understanding which are agreed between and among the various ministries or agencies involved in food control. C. Assessing Implementation of Existing Laws A thorough analysis of the regulatory framework consists not only of a review of relevant legislation and institutions. It is also important to assess the implementation and actual effect of relevant laws and regulations, examining how (and whether) they are applied in practice and how they influence the behavior of individuals and institutions. Often, there are gaps between the objectives of legislation and what is achieved once it is enacted. Laws may be internally coherent and technically well drafted but not be implemented or have quite unintended secondary effects. This aspect of the national policymakers’ analysis and review is important because if the flaws in the current legislation and setup are not addressed, then new legislation is unlikely to work any better. In some cases, legislation may not be implemented because of a lack of resources or the failure to anticipate the pragmatic details of putting the law into effect. For example, in many

24

  U.S. Gov’t Accountability Off., GAO-05-212, Food Safety: Experiences of Seven Countries in Consolidating Their Food Safety Systems (2005), www​.gao​.gov​/assets​/gao​- 05​ -212​.pdf.

106  Research handbook on international food law countries, good laws may not be enforced because the court system is overburdened and underfinanced, while alternatives to the traditional court system may be few or non-existent. Legislation may also fail to be implemented if it creates various food boards, commissions, and procedures (in an attempt to coordinate and structure food control activities in the country), but the government lacks the financial and human resources to stand up these entities. The law should reflect the government’s current capacity to monitor the food production and distribution process. For instance, inspection services are often understaffed and lack basic infrastructure, such as buildings, equipment, and vehicles. Even where laboratories exist, they may not have the appropriate means to analyze pesticide residues, hormones, mycotoxins, chemical contaminants, or other specific substances. Governments should also look closely at legislation and rules that may have unintended effects or impose unnecessary or excessive costs on food businesses. As suggested earlier, some regulatory obstacles may be indirect but may affect food-related activities by increasing costs, for example, through bureaucratic rules and procedures. Similarly, establishing adequate scientific justification for food-related regulations through research can be time-consuming and costly. The analysis of the existing framework will identify such costs, as well as the types of overlaps and gaps just reviewed, so that they can be resolved, insofar as possible, in the revision or creation of an effective regulatory framework for food. D. Preparing New Legislation Once the decision is made to update the food law framework, governments have two key obligations. First, they must engage civil society and other stakeholders. The quality of any new legislation depends in large part on such engagement. In the food area, stakeholders include governmental and nongovernmental actors, central and local authorities, farmers, producers, traders, consumers, scientific and academic interests, as well as the tourism industry. Some stakeholders may be organized into lobbying groups, such as consumer protection organizations, farmers’ or producers’ associations, or labor unions, or they may participate as individuals in the consultation process that should accompany the development of the law. In some instances, when the law is enacted, such stakeholders may also have a formal role in the institutional structures established (e.g., they may be included among the members of the country’s food board or council). Stakeholders may also contribute during a public comment period, which may be required under the law before any new laws or regulations can be adopted. Broad participation not only improves the quality of the law but also improves implementation.25 Creating a consensus in favor of the law fosters a sense of ownership. It may therefore inspire organized support of the law and active pressure for its enforcement, as opposed to indifference or passive resistance, either of which can impede implementation as effectively as active opposition. The second obligation that the government has when preparing new legislation is to provide notice to stakeholders. As just reviewed, in most jurisdictions, governments are obliged to notify the public and solicit comment on draft legislation. In addition, countries may have an obligation to notify the WTO about certain draft regulations affecting trade in food products to give trading partners an opportunity to comment on and raise any concerns about a planned  Jessica Vapnek & Melvin Spreij, Making National Food Laws, 84 Rivista di Diritto Agrario 515 (2005).

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Drafting national food laws in a globally connected world  107 regulation. Except in emergencies, governments should notify the WTO at a stage when amendments to a draft can still be introduced and comments taken into account. Countries may have to respond to comments from other WTO members before adopting the new regulation. This response may mean amending the draft regulation or postponing its entry into force, for example, to give other members time to adapt their production systems to the new regulation’s requirements.

IV.

GLOBAL TRENDS AND DEVELOPMENTS

Because all countries have their own policy priorities and political realities, they will develop national food legislation in light of their circumstances. Nonetheless, in an increasingly interconnected world, national governments cannot ignore global trends affecting food production, food safety, and food trade. The next sections highlight several key trends and developments at the international level that must be accounted for at a national level. A. Integration/One Health To rationalize their legal frameworks for food, many countries have recognized the importance of integrating the activities and sectors that make up the national regulatory system. Too often, experts in animal health are housed in one ministry or department, experts in agricultural production in another, and experts in fisheries products in yet another (to mention only a few), making communication and coordination difficult. Fostering cross-sectoral coordination brings many benefits to governments, including the ability to conserve and efficiently target resources and exchange essential information. In several countries, governments have gone even further, vesting food safety, veterinary, and phytosanitary authority in a single executive agency that carries out inspections “from farm to fork” and aims to protect animal, plant, and human life and health.26 The trend toward integration can be observed in the burgeoning interest in a One Health approach. One Health is generally understood to mean protection from environmental, economic, and human health risks of potentially harmful plant and animal pests, diseases, and alien invasive species.27 The assumption is that all these sectors are inextricably linked and that the similarities in their regulatory frameworks argue for a unified and coordinated approach. Developing countries, countries with economies in transition, and small island states, some of which have vulnerable ecosystems, benefit from a One Health approach, as they may not otherwise be able to afford the investments in infrastructure and human resources needed to cover all of these sectors effectively. Yet these countries may need capacity building to meet international standards and take advantage of trade opportunities. Many international and national organizations have adopted One Health as a multidisciplinary and integrated approach to health issues. The international instrument closest to the One   See, e.g., Belize Agricultural Health Authority. https://baha​.org​.bz​/faq​/general​-questions/ (“The Belize Agricultural Health Authority is the Competent Authority for agricultural health and food safety in Belize”). 27   What Is One Health, One Health Commission, www​.onehealthcommission​.org​/en​/why​_one​ _health​/what​_is​_one​_ health/ (last visited July 17, 2023). 26

108  Research handbook on international food law Health approach is the SPS Agreement, under which international standards for food safety, animal and plant life and health are provided by Codex, WOAH, and the IPPC, respectively.28 These three international standard-setting organizations are frequently referred to as “the three sisters” because of their close relationship under the SPS Agreement. Another relevant instrument is the Convention on Biological Diversity, which contains guidelines for managing invasive alien species. Its supplementary agreement, the Cartagena Protocol, addresses biosafety, i.e., protecting the environment and human health from the effects of modern biotechnology. A One Health approach aims to manage the risks associated with introducing plant pests and animal diseases, introducing and releasing genetically modified organisms and their products, and introducing and managing invasive alien species and genotypes. Countries achieve this risk management by using a “whole cycle” approach that recognizes the sequential stages of hazard identification and risk analysis. Coordination of risk analysis is the most important unifying concept across the relevant One Health sectors. Risk analysis consists of identifying and assessing risks, managing these risks using laws, regulations, and other measures, and communicating the risks to stakeholders, including producers, traders, industry, and consumers. Although risk analysis procedures may differ depending on the hazards addressed, the general principles for risk analysis in food and agriculture are the same. Cross-sectoral coordination in risk analysis and information exchange is particularly useful since a breakdown in security at one point in the food chain has consequences at other points in the chain. Many forces drive the heightened interest in a One Health approach, including increasing and more globalized trade in food and agricultural products and expanding populations. In addition, countries must take account of advances in communications and technology, changing consumer patterns, rising popular awareness of sanitary and phytosanitary issues, and greater attention to biodiversity and the environment. When this chapter was written, the COVID-19 pandemic and a more sophisticated understanding of the links between human and animal health and agriculture were spurring attention to One Health. In fact, it is the increasing interdependence among the animal, human, and environmental sectors that has caused new diseases such as COVID-19 to appear in humans as a result of multi-host pathogens moving across species lines.29 Increasingly, many national policymakers are shifting the focus from regulating food and agriculture sectors individually to ensuring confidence in the overall regulatory framework for One Health. Thus, a country’s adoption of a basic framework law for food control, food safety, and food trade can be the first step toward fully integrating the national regulatory framework for food safety and animal and plant life and health. B. Producer Responsibility Another important trend is the growing recognition that the traditional pattern of food safety enforcement – ex-post facto controls on the finished product – is not satisfactory for various reasons. First, if the product has already reached the marketplace, ex-post controls mean taking remedial action after the harm from unsafe food has already occurred. Not only is   See supra text accompanying note 11.   See Am. Veterinary Med. Ass’n, One Health: A New Professional Imperative 3 (2008), www​.avma​.org​/sites​/default ​/files​/resources​/onehealth​_final​.pdf.

28 29

Drafting national food laws in a globally connected world  109 this course of action unacceptable conceptually (since the goal of food safety enforcement is to prevent harm), but it can also lead to greater costs in health care, lost worker time, and product recalls. Second, end-product testing wastes resources: by the time an unsatisfactory product is discovered, most of the resources needed to produce and prepare it have already been expended on its harvest, processing, preparation, packaging, and labeling. Removing the product earlier costs less and prevents contamination throughout the food chain. Third, expost facto controls misplace the burden by placing responsibility on government authorities rather than on the actors that produce and distribute the unsafe product. Although states are obligated to protect consumers’ health, private actors also bear responsibility for providing safe food.30 For all these reasons, many governments have started implementing several changes in the food safety area. Developed countries in particular have shifted the focus of enforcement from a system of purely government-run inspections to a system of government oversight that monitors controls that food businesses establish and implement themselves. In many jurisdictions, legislation now requires companies to implement their own food safety systems, which government authorities then audit and certify. Inspectors function less like enforcers and more like extension agents (i.e., civil service staff who travel to farms to work with farmers and livestock owners), in this case educating food business owners and helping companies implement their own food safety controls and comply with established standards. Of course, a legislatively implemented enforcement and penalty system is still required, but the conceptual shift has been dramatic. In many cases, food policies and food legislation state unequivocally that the primary responsibility for placing safe food on the market lies with the food producers themselves.31 In developing countries, food legislation may have to accommodate and account for different realities and market segments. For some types of food produced by large international companies and intended for export markets, governments tend to play a facilitating and supervising role while the companies control the supply chain. Staff in these companies often have more resources and knowledge than government staff (which can sometimes lead to friction). Even where companies raise prices to cover this added expertise and control, buyers in most countries are still willing to pay a premium for traceability, safety, and quality. At the other end of the spectrum are traditional food markets, with many small and informal players, including street food vendors, who are not well organized and have no price-based incentive to implement safety assurance systems. In this segment, governments, out of necessity, exercise a much greater role in preventing food supply chains from becoming contaminated with prohibited substances such as pesticides and other chemicals. This is a complex task and resources are limited, with governments typically able to control only a limited number of hazards.  The limited scope of this chapter does not allow for a more detailed exploration of the link between regulation and the responsibility burden, which is explored, e.g., in Timothy D. Lytton, Kosher: Private regulation in the Age of Industrial Food (2013). 31   Cf. Food Safety Law of the People’s Republic of China (promulgated by the Standing Comm. of the Nat’l People’s Cong., Feb. 28, 2009, amended Apr. 24, 2015), article 4 (“Food producers and distributors shall be liable for the safety of food they produced or distributed”), translated in U.S. Dep’t Agric. Global Agric. Info. Network, China’s Food Safety Law (2015), https://apps​.fas​.usda​ .gov​/newgainapi ​/api ​/report ​/dow​n loa​d rep​ortb​yfilename​?filename ​=Amended​%20Food​%20Safety​ %20Law​%20of​%20China​_Beijing​_China​%20-​%20Peoples​%20Republic​%20of​_ 5​-18​-2015​.pdf. 30

110  Research handbook on international food law Many developing countries also face an emerging domestic market driven by urbanization, a burgeoning middle class, and tourism. In venues such as small supermarkets, restaurants, local food retail chains, and the like, public demand for safety assurance is increasing, but businesses still struggle to recover the full cost of food supply chain coordination. In this growing middle segment, governments should consider taking a more proactive stance and support adopting good hygiene and manufacturing practices and safety and quality management systems based on Hazard Analysis and Critical Control Point (HACCP).32 C. Private Standards Historically, food safety and quality control have been underpinned by public regulation, with the Codex issuing standards and guidelines to support countries as they develop their national food legislation. The importance of Codex standards further expanded in 1995 following the adoption of the SPS Agreement, which resulted in many more countries using Codex standards as the benchmark for their national food laws and regulations. Since then, the role of private institutions in the governance of food safety and quality has increased dramatically. This heightened role is largely due to the devolving responsibility for ensuring food safety from the government to the private sector (as discussed in the previous section), the continuing globalization and increased complexity of food supply chains, and more awareness and anxiety among producers and consumers over food safety and quality issues. This puts pressure on businesses to balance guaranteeing food safety while also preserving their brand integrity across multiple jurisdictions.33 For these reasons, many larger private companies have created and adopted their own standards for food safety and quality, which they impose on producers as a precondition for purchase. Such standards may relate to how animals are raised, crops are planted, or fish are culled from the sea. The standards may go beyond food safety and quality to include environmental and social aspects of food production. Such standards are generally monitored and enforced through third-party certification. The Global Food Safety Initiative (GFSI), an organization established and managed by the Consumer Goods Forum, brings together the world’s leading retail, manufacturing, and food service companies to work on mutual acceptance of GFSI-recognized certification programs across the industry under a “once certified, recognized everywhere” approach. GFSI also promotes and implements a capacity-building program for smaller companies that lack resources to build food safety systems. A key difference between public and private standards is how fast they can be issued or amended in response to new challenges. Codex and other international standards organizations require significant time and resources to elaborate new or revised standards, due to their collaborative decision-making processes. It is not unusual for a Codex standard, guideline, or recommendation to take a number of years to be finally adopted by all 189 Codex members. In

  See Kees van der Meer & Laura Ignacio, Sanitary and Phytosanitary Measures and Border Management, in Border Management Modernization 263, 266 (Gerard McLinden et al. eds., 2011). 33   See Spencer Henson & John Humphrey, The Impacts of Private Food Safety Standards on the Food Chain and on Public Standard-Setting Processes, FAO/WHO, at iv (2009), www​.fao​.org​/3​/i1132e​ /i1132e​.pdf. 32

Drafting national food laws in a globally connected world  111 contrast, individual companies and private standard-setting bodies can quickly establish new or revised standards even in emerging areas. Private standards have proliferated for several reasons. First, such standards are not limited by the parameters set by public bodies. Private standards can be more stringent, for example, setting a lower threshold on pesticide residues than that required by governmental regulation. This makes private standards better able to respond to changes in global food markets, such as more sophisticated customer demands concerning the quality of food products. Second, private standards can address concerns not addressed by public bodies. As just one example, the Smithsonian Migratory Bird Center established a regulation on shade-grown coffee,34 which outperforms sun-grown coffee on various sustainability measures.35 Proponents argue that private standards can better respond to the globalization of agri-food chains, in which increased export between nations creates new sources of food safety risk. But although private standards may bring benefits, many developing countries have concerns about their proliferation. For example, the enormous purchasing power of large companies means that the standards they create, which embody their own policy preferences, often have a level of influence equal to or greater than that of governments. Other critics argue that the proliferation of private standards harms small producers who do not have the capacity and resources to compete in export food chains that increasingly adhere to private standards. In particular, the additional and recurring cost of certification, sometimes for multiple sets of standards for different buyers, is of great concern. Another criticism is that private standards do not meet WTO requirements, such as transparency and scientific justification of food safety measures, and are more trade-restrictive than necessary to protect health, undermining the SPS Agreement’s legitimacy. Many developing country governments believe that the proliferation of private standards is undermining the relevance, credibility, and value of standards set by the Codex and other international bodies.36 On the other hand, the line between public and private standards is beginning to blur, with governments increasingly recognizing voluntary third-party assurance (vTPA) programs, i.e., formal and documented food safety and quality management systems developed and implemented by private companies. A wide range of these programs exists, from national industry association-owned schemes like the United Kingdom’s “Red Tractor” scheme37 to international programs like the BRCGS Global Food Safety Standard,38 GLOBALG.A.P.,39 and  Shade-grown coffee, as the word suggests, is grown under a canopy of trees and is known for its environmentally sustainable cultivation and its contribution to biodiversity conservation. Juan Nicolás Hernández-Aguilera et al., The Economics and Ecology of Shade-Grown Coffee: A Model to Incentivize Shade and Bird Conservation, 159 Ecological Econ. 110 (2019). 35   Ecological Benefits of Shade-grown Coffee, Smithsonian’s Nat’l Zoo & Conservation Biology Inst., https://nationalzoo​.si​.edu​/migratory​-birds​/ecological​-benefits​-shade​-grown​-coffee (last visited July 17, 2023) (“While sun-grown systems can have higher yields, shaded farms easily outperform them in sustainability measurements. In study after study, habitat on shade-grown coffee farms outshone sun-grown coffee farms, with increased numbers and species of birds, improved bird habitat, soil protection/erosion control, carbon sequestration, natural pest control and improved pollination”). 36   See Henson & Humphrey, supra note 40, at vi. 37   Red Tractor Certified Standards, https://redtractor​.org​.uk/ (last visited July 17, 2023). 38   Food Safety, BRCGS, www​.brcgs​.com​/our​-standards​/food​-safety/ (last visited July 17, 2023). 39   Welcome to GLOBALG.A.P. – a Trademark and Set of Standards for Good Agricultural Practices, GLOBALG.A.P, www​.globalgap​.org​/uk​_en/ (last visited July 17, 2023). 34

112  Research handbook on international food law FSSC (Food Safety System Certification) 22000.40 As part of their national food safety regulatory oversight, regulatory authorities are assessing the industry’s use of such programs and certification schemes. For example, the authorities in Belgium, France, the Netherlands, and the UK recognize and incorporate the results of certain vTPA programs into their regulatory decisions.41 Dividing companies into those in compliance with these programs and those not in compliance allows enforcement officials to better distinguish between high- and low-risk food establishments and to target their inspection efforts accordingly. The use of vTPA programs as a monitoring and enforcement mechanism is likely to increase as governments, especially in developing countries, continue to search for alternative modes of regulation that are less resource intensive.42 In November 2021, the Codex adopted new principles and guidelines to assist regulators in assessing and using vTPA program information and data in support of their national food control system objectives. Although the guidelines do not oblige regulatory authorities to use vTPA data, they help authorities understand the programs operating in their jurisdictions, including how the standards used in these schemes are based on international standards, notably, Codex standards. The STDF has initiated pilot projects in Africa and Central America to explore how vTPA programs can be used in developing country contexts focused on particular value chains.43 D. Good Regulatory Practices (GRPs) Countries increasingly apply Good Regulatory Practices (GRPs) for all types of regulatory activities, including the regulation of food. GRPs are internationally recognized processes, systems, tools, and methods used to improve the quality of regulatory measures and ensure that regulatory outcomes are effective, transparent, and inclusive. They support better policymaking by allowing trade, economic, health, gender, and other possible impacts of regulation to be properly considered when regulatory measures are developed and implemented. GRPs ensure that regulations are fit for purpose, do not impose unnecessary costs or administrative burdens, and are more easily enforced. Using GRP principles and mechanisms makes for more open, effective, and responsive regulatory systems. Beyond improving policy outcomes, GRPs also encourage good governance and have the potential to strengthen public and investor confidence. There is no pre-defined list of GRPs nor a single, ideal GRP implementation model for countries to replicate. GRPs incorporate internal coordination of regulation (“whole-of-government” approach), international regulatory cooperation, consultations and other forms of stakeholder engagement,

 FSSC 22000, www​.fssc22000​.com/ (last visited July 17, 2023).  Gabor Molnar & Marlynne Hopper, Public Private Partnerships for Safer Food, Food Safety Mag. (July 17, 2023), www​.food​-safety​.com​/articles​/7189​-public​-private​-partnership​-for​-safer​ -foods. 42   See Melvin Spreij, Standards & Trade Dev. Facility, Fourth Global Annual Review of Trade: PublicPrivate Partnerships to Enhance SPS Capacity: What Can We Learn From This Collaborative Approach? (July 2013), www​.standardsfacility​.org​/sites​/default ​/files​/STDF​_ Presentation​_ July​ -2013​_0​.pdf. 43   Piloting the Use of Voluntary Third Party Assurances (vTPAS) in West Africa, Standards & Trade Dev. Facility (July 17, 2023), www​.standardsfacility​.org​/ PG​-665 (Mali and Senegal); Piloting the Use of vTPA Programmes to Improve Food Safety Outcomes in Central America, Standards & Trade Dev. Facility (July 17, 2023), www​.standardsfacility​.org​/ PG​-682 (Belize and Honduras). 40 41

Drafting national food laws in a globally connected world  113 mechanisms to take stock of and assess existing regulatory measures, forward-looking regulatory agendas, regulatory impact assessments, and monitoring and evaluation tools.44 Using certain GRP mechanisms may be mandated by law at the country level in some or all areas of regulatory activity or may be required by international trade agreements. (For example, many international agreements include consultation or notification requirements.) Some countries have tasked an oversight body to promote, facilitate, and monitor regulatory initiatives and GRPs. This could be a single central oversight body or multiple bodies operating under the supervision of a coordinating entity. Oversight bodies are generally responsible for coordinating the use of GRPs and enhancing the quality of regulatory processes, including regulatory processes for food, across government agencies. Increasingly, governments approach food legislation as part of a continuous regulatory management cycle, which starts with evaluating existing rules and regulations, eliminating ineffective or inefficient ones, and finally, developing new or revised rules and regulations. A review of existing rules and regulations or the need to design new ones can be triggered by an emerging food safety risk or challenge or can arise during periodic oversight efforts. Governments are encouraged to use various techniques, including horizon scanning and foresight, to identify and explore novel and unexpected food safety issues as well as persistent problems or trends.45 For example, climate change, new technologies, evolving trade patterns, new trade agreements, or scientific progress can be drivers of change in the food safety area. The next section reviews some examples of technological impacts on food regulation. E. Innovation and Technology There are many technology issues relevant to food, but this section begins with food delivery because recent years have seen a rapid expansion of online food delivery services that connect consumers with local restaurants, allow easy ordering via apps, and transport prepared food from restaurants to the consumer’s home. These services are particularly popular with young urban professionals with disposable income, who cite convenience, time constraints, and limited available cooking space as reasons for using these services. The popularity of online food delivery services surged further during the COVID-19 pandemic in 2020 and 2021 when many countries imposed stay-at-home orders. Regulatory responses to the rise in online food delivery vary significantly by country. In China, the government addressed food safety issues with a regulation entitled “Measures for the Supervision and Administration of Food Safety in Online Catering Services,” which took effect in January 2018 and required online food businesses to follow certain standards, acquire a license, and publish information online.46 China has also promulgated regulations   See generally Standards & Trade Dev. Facility, Good Regulatory Practices to Improve SPS Measures: A Practical Guide (2021), www​.standardsfacility​.org​/sites​/default ​/files​/STDF​ _GRP​_Guide​_ EN​.pdf. 45   Food Safety Technical Workshop, FAO Early Warning/Rapid Alert and Horizon Scanning (Background Paper 2), U.N. Doc. I4061E/1/09.14 (Oct. 22–25, 2013), www​.fao​.org​/3​/ I4061E​/i4061e​ .pdf. 46  Measures for the Supervision and Administration of Food Safety in Online Catering Services (promulgated by the Instrumentalities of the State Council, All Administrations, Nov. 6, 2017, effective Jan. 1, 2018; rev’d by the State Admin. for Mkt. Regul. Oct. 23, 2020), CLI.4.304640(EN) (Lawinfochina), www​.lawinfochina​.com​/display​.aspx​?id​=27012​&lib​=law​&EncodingName​=big5; 44

114  Research handbook on international food law regarding delivery practices, including requiring delivered food to be sealed to prevent contamination during transport. Few countries other than China have been as proactive in regulating this emerging sector of the food service industry. Online food delivery companies operate in a gray area, some categorized as manufacturers, others as retailers, and still others as food service businesses, and for this reason, these companies often fall outside of existing regulatory schemes. In addition, such services change rapidly in response to technological developments. For example, some delivery services in the United States employ ground robots to run deliveries in downtown areas and on university campuses. Governments must keep pace with these advances to regulate these delivery services effectively and ensure food safety. Another example of technological innovation in the food area responds to the need to move food products more quickly and efficiently across borders. One option is the electronic exchange of SPS certificates required when trading food and agriculture products. Going paperless can improve efficiency and security, cutting clearance times and reducing transaction costs. The IPPC has created a system that allows for the electronic exchange of phytosanitary certificates (“ePhyto”) from the competent authority of the exporting country to the competent authority of the importing country, based on guidance from the United Nations Centre for Trade Facilitation and Electronic Business.47 The Codex Committee on Food Import and Export Systems recently finalized a guidance document to facilitate the paperless exchange of electronic certificates for food traded between countries, and this was adopted by Codex members in November 2021.48 One major challenge in moving paperless is that older national laws may not support the issuance and receipt of electronic documents. Innovation and technology play an increasingly important role in other parts of the food system, and national food legislation must catch up. After the experience of COVID-19 restrictions, for example, some countries began to explore the feasibility of virtual inspections of (low-risk) food establishments. In addition, blockchain is gaining momentum in the food sector, and companies such as Carrefour, Nestlé, Unilever, and Walmart are involved in blockchain food traceability projects. Blockchain enhances governments’ ability to quickly identify potential contamination sources and prevent, contain, or rectify outbreaks. Additional benefits include the possibility to better validate and authenticate food origin, prevent fraud, and improve brand credibility. However, limited capacity in developing countries (sometimes referred to as the “digital divide”) may hamper the adoption of these solutions because of the inability to both implement the new systems fully and guarantee data integrity. Digital transformation of the food system is raising new legal issues, including data ownership, protection, veracity, and validation. Laws addressing the ownership of data from digital agriculture are missing or inadequate or tend to be fragmented and not systematic. In practice, the definitions of ownership, access, and control rights are often left to contractual agreements between food businesses and entities along the food chain, but there are inherent power imbalances. For example, farmers have less negotiating power than the entities to whom they see also Xueyin Zhao et al., The Online-to-Offline (O2O) Food Delivery Industry and Its Recent Development in China, 75 Eur. J. Clinical Nutrition 232, 235 (2021). 47   See Electronic SPS Certification, Standards & Trade Dev. Facility, www​.standardsfacility​.org​ /SPS​-eCert (last visited July 17, 2023). 48   FAO-WHO 44th Session of Codex Alimentarius Commission Adopts New Standards as Part of the Session from 8 to 18 November, Food & Agric. Org. (Oct. 11, 2021), www​.fao​.org​/newsroom​/ detail​/ live​-updates​-on​-adopted​-standards​/en.

Drafting national food laws in a globally connected world  115 send their data. Theoretically, farmers may be able to reduce transaction costs and boost their bargaining power by digitally empowered collective action. In reality, however, regulatory frameworks are inadequate to support digitally enabled governance mechanisms. The last area of technological innovation concerns food itself. Scientific advances have made it possible to produce foods from unconventional sources or through new techniques. For example, although nanomaterials are already present in many natural and processed foods, some nanoparticles are now being specifically designed to be incorporated into foods as a delivery system.49 As another example, in some parts of the world, companies are exploring 3D printing of food. Potential applications include producing food for people with special nutritional and dietary needs (for example, for people with illnesses) or substituting food materials.50 How to regulate these types of foods will challenge lawmakers. Are they “novel foods” within the meaning of the EU’s Novel Food Regulation or various countries’ food legislation? Are they “imitation” food and should they be labeled as such? Is lab-grown bacon kosher? The food industry has grown immensely over the past decade due to the need to feed a growing world population using less land, water, and other natural resources. Ultimately, policymakers have the difficult task of balancing the need to regulate while not stifling innovation and creativity.

V. CONCLUSION Each country has its own history, politics, traditions, international obligations, legislation, institutions, and resources, all of which will affect its priorities and strategies for food regulation. Above all, governments must weigh the policies captured in the legislation to guide implementation. This includes a country’s food policy, if it has one, and policies that are more tangentially related. For example, agricultural policy has broad implications for food regulation, and in many ways, food and agriculture are inextricable.51 Equally, food regulation cannot be addressed without considering environmental, public health, land use, and development policies, among many others. Good regulatory practices and policies, such as stakeholder consultation, transparency, and accountability, may also affect legislative design and influence how governments interact with civil society on food-related matters. Globalization and regionalization may also have an impact. For example, policies related to a country’s integration into and participation in the global economy and international organizations such as the WTO or in regional trade blocs will affect the design of the national food law and encourage countries to use Codex standards, guidelines, and codes of conduct in drafting their food legislation. In many cases, governments will have to choose between conflicting goals. A desire to protect health may conflict with the desire to facilitate trade or to develop a certain industry or sector. For example, the goal of expanding export markets may conflict with the desire  Ksenia Takhistova, Note, Food Nanotechnology – In Search of a Regulatory Framework, 35 Rutgers Comput. & Tech. L. J. 261, 265 (2009). 50  Jessica Vapnek, Kai Purnhagen & Ben Hillel, Regulatory and Legislative Framework for Novel Foods, in Food Formulation: Novel Ingredients and Processing Techniques 285, 298–299 (Shivani Pathania & Brijesh K. Tiwari eds., 2021). 51  Jessica Vapnek & Tiffany Wang, Food and Agriculture Policy, in Handbook of Business and Public Policy 325 (Aynsley Kellow et al. eds., 2021). 49

116  Research handbook on international food law to conserve water or reduce pesticide use. Economic considerations, including cost-benefit analyses and resource constraints, will come into play, informing the choices to be made from among alternatives. As another pressing example, efforts to target the rising problem of obesity and its related health impacts by regulating nutrition and health claims may increasingly lead to concerns from trading partners, as can be witnessed in WTO’s TBT Committee.52 National policymakers must account for all of these different interests and prioritize where there are conflicts. Food law is changeable. Governments must continually evaluate their legislative and policy frameworks for food, striving to address emerging food issues and challenges. Food legislation is best viewed as the lynchpin of a continuous regulatory management cycle. The sequence to be followed by countries wishing to update their legal frameworks for food is first to analyze the existing legislation, next to define the universe of food-related activities being carried out in the country, next to identify the implicated institutions and personnel, then to assess resources and capabilities, next to conceptualize the ideal deployment of resources in light of the government’s goals and priorities, and then finally to temper that ideal conception based on the empirical circumstances and limitations identified. Once this analysis is completed, governments can begin deciding what institutions, coordination mechanisms, policies, and philosophical approaches to include in their food law while accounting for international obligations, regional commitments, and emerging technologies. This will help governments revise their food legislation to meet the challenges of a globally connected world.

52

  See Nutrition Labelling as a Trade Policy Issue, Obesity Evidence Hub (2021) (some WTO members raised Specific Trade Concerns about Chile’s imposition of mandatory warning labels for packaged foods exceeding specified amounts of calories, saturated fat, sodium, or sugar), www​ .obesityevidencehub​.org​.au​/collections​/prevention​/nutrition​-labelling​-as​-a​-trade​-policy​-issue.

6. The future of planning for food system governance Laurie J. Beyranevand and Emily M. Broad Leib

I. INTRODUCTION The global food and agricultural system has long been recognized as far-reaching due to its impacts on the environment, economy, human health, and social justice. However, despite the interconnected nature of these issues, the dominant approach to food system policymaking and governance has been fragmented and piecemeal. In many countries, food safety is addressed by one ministry while agriculture falls to another, and environmental protection is within the jurisdiction of yet a different body. Despite the interconnectedness of these issues, laws and policies designed to regulate food safety fail to account for environmental or food and nutrition security impacts, among other issues. While some countries have developed national food and nutrition security plans, these plans generally do not reflect a comprehensive approach that accounts for the interrelated issues of economic development, environmental protection, equity, and public health. However, as this chapter documents, countries are beginning to move beyond these fragmented policy approaches by comprehensively analyzing and strategically addressing their food system challenges. These countries have done so by creating national food strategies—governance approaches that utilize coordination among various governmental entities and participatory policymaking to develop long-term strategic plans for the health and sustainability of their national food system. These national strategies are driven by global and national trends that reflect a growing understanding of the limitations of considering interrelated sectors of the food system in silos. Based on the increase demonstrated by these trends, the use of national food strategies as a law- and policy-making tool will only intensify in the coming years. This chapter analyzes the growing global trend toward developing national food strategies that embody an intersectional and inter-jurisdictional approach to food system governance to achieve broader goals related to the environment, economic justice and prosperity, food security, public health, and equity. First, this chapter explains the historical trend of countries developing single-issue national food security plans to address food security through measures to increase agricultural production. The chapter next makes the case for prioritizing and considering the food system holistically by illustrating some of the major challenges that plague the global food system, including environmental degradation and climate change, poor health outcomes, unstable economies, food insecurity, and labor inequities. It then describes intergovernmental and national trends toward consideration of food and agricultural issues using a broader food system lens. The chapter ends by discussing the best practices for processes and procedures governments can utilize as more countries take steps to create such national food strategies. While much of the debate over national food strategies centers on the substance of these strategies—the specific policy goals and priorities—a focus on process is essential in providing a meaningful blueprint for effective discussions and decision-making. 117

118  Research handbook on international food law A strong process that centers on broad representation and civic participation can result in a comprehensive, equitable, legitimate, and lasting national food strategy.

II.

EARLY PHASES OF NATIONAL FOOD SYSTEM POLICYMAKING

The origins of planning and setting priorities to address food system challenges took root in the 1930s when the Health Division of the League of Nations first documented data and statistics regarding hunger and malnutrition worldwide.1 The 1935 report, entitled Nutrition and Public Health, studied nutrition policies in various countries and concluded nutrition is an “economic—agricultural, industrial and commercial—problem.”2 The report largely focused on the role of nutrition concerning public health and suggested a move away from the historical approach of considering production, consumption, and distribution as solely economic issues and toward viewing them as public health issues as well.3 In many ways, this report suggested what advocates, researchers, and experts would later call for in consideration of food system planning and governance—a more holistic approach based on recognizing that they are interconnected issues requiring multi-faceted solutions. Unfortunately, despite the report’s newfound focus on health and nutrition, it ultimately translated to continued support for global policies that prioritized the long-standing approach of increasing food production to expand the agricultural sector, stabilize prices, and ultimately address food insecurity. However, these policies deemphasized the move toward developing policy that accounted for the multidisciplinary aspects of nutrition and food systems, namely public health.4 This historical focus on agricultural productivity as a means of addressing food security is reflected in the stated objectives of the Food and Agriculture Organization of the United Nations (FAO), created just a decade later. Specifically, FAO’s mission focused on “helping to build a food secure world for present and future generations” in part by providing assistance to member countries in developing food and agriculture policy and regulatory frameworks5 to meet the organization’s mandate to “improve nutrition, increase agricultural productivity, raise the standard of living in rural populations and contribute to global economic growth.”6 Some suggest this mission reflects an embedded tension within FAO, which operates based on two conflicting assumptions. On the one hand, FAO’s work embodies a longstanding emphasis on trade and increasing market access to food as the primary means to eradicate global hunger.7 This focus leads FAO to devote tremendous resources to increasing agricultural   D. John Shaw, World Food Security: A History Since 1945, at 6 (2007).  Tech. Comm’n of the Health Comm., The Problem of Nutrition: Volume II, Report on the Physiological Bases of Nutrition, League of Nations Doc. A.12(a).1936.II.B.4 (1936), https://ia903101​.us​.archive​ .org​/12​/items​/pro​blem​ofnu​trit​i02l​eaguoft​/pro​blem​ofnu​trit​i02l​eaguoft​.pdf. 3   Id. 4   Shaw, supra note 1, at 7. 5  Food and Agric. Org. of the United Nations [FAO], The Strategic Framework for FAO 200-2015: A Summary, Overall Strategic Framework (2000), www​.fao​.org​/3​/x3551e​/x3551e02​.htm. 6  United Nations, Office of the Secretary’s Envoy on Youth, FAO: Food and Agriculture Organization of the United Nations, www​.un​.org​/youthenvoy​/2013​/09​/fao​-food​-and​-agriculture​-organization​-of​ -the​-united​-nations/. 7  Lucy Jarosz, The Political Economy of Global Governance and the World Food Crisis: The Case of the FAO, 32 Review (Ferdinand Braudel Center): Political Economic Perspectives on the World Food Crisis 37–38 (2009). 1 2

The future of planning for food system governance  119 productivity through technical assistance, research, and technology.8 On the other hand, however, FAO has historically recognized that food and nutrition security is grounded in the right to food, acknowledging that addressing global hunger requires a shift away from agricultural productivity to increase economic growth and trade and toward democratically and more locally governed food systems that are environmentally and socially sustainable, equitable, and ensure access to food for all.9 According to some, these tensions are reflected in FAO’s approach to governance since its creation.10 This focus on agricultural productivity, trade, and economic approaches to food security persisted throughout the last century. In response to a major world food crisis in the 1970s, the United States convened the United Nations’ World Food Conference to address massive global food shortages and dangerously unstable commodity prices.11 As an outcome of this conference, FAO advanced a Food Security Assistance Scheme (FSAS) to aid developing countries in creating and implementing national food strategies to tackle chronic food security issues.12 This work began on a pilot basis in four countries in 1989—Chad, Niger, Tanzania, and Zambia—using three phases of work: (1) first, FAO assessed the national food security situation in the country; (2) second, FAO proposed a comprehensive food security strategy with alternatives based on the objectives identified during the assessment phase; and (3) finally, FAO assisted with the formulation and implementation of a comprehensive national food security plan to implement the strategy.13 While this process created some flexibility for countries to determine specific policies based on their individual circumstances, FAO identified a key set of policies that would apply to all, which largely address food security through the lens of economics and trade to prioritize increased productivity.14 This approach of assisting countries in developing food security-focused national strategies that prioritized agricultural production and marketability persisted for many decades, despite the growing recognition that food security is multi-faceted and requires consideration of other food system challenges. Additionally, this assistance failed to include considerations related to the right to food, such as equity, heritage, access, sustainability, and participation. Acknowledging that its efforts to address hunger have failed to achieve long-term goals, FAO has broadened its policy assistance approach over the past decade to include food and nutrition security as part of larger national policy and planning processes.15 For example, recognizing the need for multi-dimensional approaches, FAO has worked with some countries to include broad nutrition and food security goals in national strategies addressing poverty reduction or agriculture and water.16 Many countries’ national strategies on food and nutrition security have also begun to stress the need for long-term coordinated approaches across

  Id.   Id. 10   Id. 11   Shaw, supra note 1, at 121. 12  Barbara Huddleston, FAO’s Overall Approach and Methodology for Formulating National Security Programmes in Developing Countries, 21 IDS Bulletin 72 (1990), https://core​.ac​.uk​/download​/pdf​ /43540472​.pdf. 13   Id. at 75. 14   Id. 15  FAO, Enhancing Food Security and Nutrition Policy Assistance. Lessons from Experience. Policy Assistance Series 5, at iii, U.N. Sales No. E.09.I.25 (2009), www​.fao​.org​/3​/i0925e​/i0925e​.pdf. 16   Id. at 3.  8  9

120  Research handbook on international food law several different governmental actors to achieve food and nutrition security goals, starting to account for factors such as economic development, environmental protection, and public health, depending on the national priorities of specific countries.17 These strategies and the slow but certain shift in FAO’s approach reflect the arc of food system planning and governance that are moving toward more comprehensive national food strategies. Moreover, as discussed in more detail in the following, governmental and non-governmental actors increasingly recognize the need to consider the multi-sectoral nature of food system governance planning, which requires coordination among actors, laws, policies, and levels of government. Yet only a small—but growing—number of countries have engaged in developing coordinated national food strategies that account for the entirety of the food system.

III.

GROWING FOOD SYSTEM CHALLENGES

At the same time that much of the global focus related to food has been on food insecurity, the global food system has begun to face multiple concurrent and interrelated crises—not only hunger but also food-related inequality, diet-related disease, and environmental and climate disruption. Unfortunately, the systemic lack of coordinated, strategic and comprehensive food system planning across most sectors at the international, regional, and national levels has, in no small part, allowed the challenges we face as a global community to persist and escalate. Moreover, while the inequities, challenges, and inconsistencies endemic to the global food system have long been recognized, the COVID-19 pandemic greatly exacerbated them. The sections below offer a sampling of the key statistics that showcase these interrelated and growing challenges. A. Major Food System Challenges 1. Hunger and food insecurity Despite local and multinational efforts to improve food access,18 food and nutrition insecurity remains a critical issue worldwide. In 2019, 690 million people, or 8.9% of the world’s population, suffered from hunger.19 These numbers increased to an estimated 720–811 billion people in 2020.20 At the same time, two billion people, or one in three, in the world were “food insecure,” meaning they lacked regular access to adequate or safe, nutritious and sufficient food.21 Although the prevalences of hunger and food insecurity vary by region, both challenges impact all countries and regions of the globe. According to Economist’s Global Food

  See generally FAO Comm. World Food Sec., FAO Food Security Assistance Scheme: A Review of its Progress and Future Evolution, U.N. Doc. CFS 78/9 (1978), www​.fao​.org​/3​/ bn120e​/ bn120e​.pdf; Huddleston, supra note 12. 18   See, e.g., FAO Comm. World Food Sec., Global Strategic Framework for Food Security and Nutrition (2017), www​.fao​.org​/3​/ MR173EN​/mr173en​.pdf. 19   FAO, IFAD, UNICEF, WFP & WHO, The State of Food Security & Nutrition in the World: Transforming Food Systems for Affordable Healthy Diets 3 (2020), www​.fao​.org​ /3​/ca9692en ​/ca9692en​.pdf. 20   Id. 21   Id. 17

The future of planning for food system governance  121 Security Index, only 14 countries are rated as “best performing” in terms of food insecurity.22 Even in the United States, which ranked third out of 113 nations when considering food security, 10.5% of households were food insecure in 2019.23 The COVID-19 pandemic has only exacerbated the problem of food insecurity leading the UN’s Food and Agriculture Office to warn that global disruptions associated with the COVID-19 pandemic could have lasting impacts on food insecurity worldwide.24 Food insecurity is problematic for myriad reasons. One primary concern facing foodinsecure individuals is related to poor health and nutrition outcomes. On the other end of the spectrum, a lack of nutritionally adequate food leads to additional health consequences. For example, stunting, a lack of physical growth and cognitive development, occurs during pregnancy and early childhood if a child does not receive enough nourishment.25 In 2019, stunting affected a staggering 21.3% of children under five globally.26 Additionally, prolonged malnourishment results in wasting, a life-threatening condition that weakens the immune system and causes developmental delays in children.27 In 2019, 7% of children under the age of five were at risk of death from wasting.28 Even more alarming, tens of thousands of people starve to death every day.29 Food insecurity is also associated with other negative health outcomes, including developmental abnormalities in children, diet-related diseases, and mental health conditions such as depression and anxiety.30 These undesirable health outcomes not only place an unjust burden on food-insecure families but impose economic costs on society more broadly. In the United States, for example, an estimated $52.9 billion in annual healthcare expenditures is attributed to food insecurity.31 Many variables play a role in food insecurity. Population distribution is changing as urban populations far outpace rural populations. The global urban population is expected to increase by 65% by 2050, potentially impacting reliance on imports and outsourced foods.32 At the same time, incomes are growing, which could lead to a 110% increase in global demand for food products over the next 30 years.33 While demand for food is increasing, the capacity to   The Global Food Security Index, Economist Grp., https://foodsecurityindex​.eiu​.com/ (last visited Nov. 28, 2020). 23   U.S. Dep’t of Agric. Econ. Rsch. Serv., ERR-275, Household Food Security in the United States in 2019 (2020), www​.ers​.usda​.gov​/webdocs​/publications​/99282​/err​-275​.pdf. 24   UN Agriculture Agency Calls for Global Response to the Food Security Crisis, UN News (Oct. 29, 2020), https://news​.un​.org​/en ​/audio​/2020​/10​/1076482. 25   U NICEF, WHO & World Bank Grp., Levels and Trends in Child Malnutrition 2 (2020), www​.who​.int​/publications​/i​/item​/jme​-2020​-edition. 26   Id. at 1. 27   Id. at 2. 28   Id. at 1. 29  John Holmes, Losing 25,000 to Hunger Every Day, UN Chron., www​.un​.org​/en​/chronicle​/article​/ losing​-25000​-hunger​-every​-day (last visited Nov. 28, 2020). 30  Craig Gundersen & James P. Ziliak, Food Insecurity and Health Outcomes, 34 Health Affs. 1830, 1839 (2015). 31  Seth A. Berkowitz et  al., State-Level and County-Level Healthcare Costs Associated with Food Insecurity, 16 Preventing Chronic Disease (July 11, 2019), www​.cdc​.gov​/pcd​/issues​/2019​/18​ _0549​.htm. 32  Joint Research Centre, Foreign & Behavioural Insights Unit, Global Food Security 2030: Assessing Trends with a View to Guiding Future EU Policies, EUR 27252 (2015), https://publications​.jrc​.ec​ .europa​.eu​/repository​/ bitstream​/JRC94867​/ lbna27252enn​.pdf. 33   Id. 22

122  Research handbook on international food law produce food is further eroded by environmental limitations and degradation, as described in the following. 2. Public health In addition to the burden of hunger and food insecurity, globally, 20% of deaths are linked to poor diet and nutrition, characterized as underconsumption of nutritious food groups like fruits and nuts and overconsumption of unhealthy ingredients like trans-fats and sugar.34 While some describe obesity as a result of lifestyle choices, this ignores deep inequities that prevent access to healthy and nutritious foods. In 2019, approximately 6% of children under five were overweight.35 An inadequate diet also contributes to various non-communicable diseases, including cardiovascular disease, cancers, and type 2 diabetes.36 In 2016, the WHO identified diabetes as the seventh most common cause of death, having killed 1.6 million people worldwide.37 In 2017, poor diet accounted for 11 million deaths or 22% of all deaths among adults.38 Overall, diet has a larger impact on health than tobacco.39 Food safety is another pervasive food system problem with significant public health impacts. Every year, 420,000 people worldwide die from exposure to contaminated food.40 Food contaminated with bacteria, viruses, parasites, or chemical substances collectively causes over 200 diseases that range widely in severity.41 Medical expenses and lost productivity from unsafe food result in a loss of $110 billion yearly for low- and middle-income countries.42 3. Climate change and environmental degradation The food system is responsible for a range of negative environmental impacts. Because the food system is designed to drive demand, it causes biodiversity loss through the conversion of land and the use of agricultural practices that degrade the environment, which is both impacted by and leads to climate change.43 Activities across the food supply chain contribute to climate change; the food system accounts for approximately 30% of global greenhouse gas (GHG) emissions.44 Experts suggest that even if emissions from fossil fuels were eliminated,  Jamie Ducharme, Poor Diets Are Linked to 20% of All Deaths Worldwide, Study Says. But These Foods Could Help, Time (Apr. 3, 2019, 6:30 PM), https://time​.com​/5562994​/diet​-disease​-mortality/. 35   U NICEF, supra note 25, at 1. 36  GBD 2017 Diet Collaborators, Health Effects of Dietary Risks in 195 Countries, 1990–2017: A Systematic Analysis for the Global Burden of Disease Study 2017, 393 The Lancet 1958, 1961 (2019). 37   The Top 10 Causes of Death, WHO (May 24, 2018), www​.who​.int​/news​-room​/fact​-sheets​/detail​/the​ -top​-10 ​-causes​-of​-death. 38  GBD 2017 Diet Collaborators, supra note 36. 39  Allison Aubrey, Bad Diets Are Responsible for More Deaths than Smoking, Global Study Finds, NPR (Apr. 3, 2019, 6:31 PM), www​.npr​.org​/sections​/thesalt​/2019​/04​/03​/709507504​/ bad​-diets​-are​ -responsible​-for​-more​-deaths​-than​-smoking​-global​-study​-finds. 40   Food Safety, WHO, www​.who​.int​/ health​-topics​/food​-safety/ (last visited Nov. 28, 2020). 41   Id. 42   Id. 43  Tim Benton et  al., Food System Impacts on Biodiversity Loss, Chatham House (Feb. 3, 2021) www​.chathamhouse​.org​/2021​/02​/food​-system​-impacts​-biodiversity​-loss​/02​-how​-todays​-food​-system​-drives​-biodiversity​-loss. 44  Barrett Colombo et al., How Does Agriculture Change Our Climate?, Univ. Minn. Env’t Reps. Food Matters, www​.environmentreports​.com​/ how​-does​-agriculture​-change/ (last visited Sept. 29, 2021). 34

The future of planning for food system governance  123 global food system emissions could prevent the world from meeting the goal in the Paris Agreement to hold global warming to below 1.5° or 2° C.45 These emissions include carbon dioxide from tropical deforestation, methane from livestock and rice production, and nitrous oxide from fertilizing or burning cropland.46 For example, agriculture accounts for half of global methane emissions, mostly from livestock, and 60% of all anthropogenic nitrous oxide emissions.47 A substantial portion of GHG emissions from the food system is unnecessary: by weight, approximately one-third of all food is lost or wasted.48 Food waste accounts for 4.4 gigatons of GHG emissions each year, more than the yearly GHG emissions from every country besides China and the United States.49 According to the UN Intergovernmental Panel on Climate Change’s 2019 report on Climate Change and Land, global food loss and waste contribute 8–10% of global anthropogenic emissions.50 Although waste occurs in every step of the food supply chain, ton-for-ton, food wasted at the end of the chain produces the largest climate impact, as it has undergone the most processing and transport.51 Food production negatively impacts water quality and availability. Globally, agriculture accounts for 70% of human freshwater consumption.52 This is particularly concerning, as climate change increasingly impacts water scarcity. Farms regularly discharge agrochemicals, organic matter, animal drug residues, sediments, and saline drainage into water sources.53 These pollutants harm aquatic ecosystems, degrade human drinking water quality, and reduce availability of clean water.54 These pollutants, and fertilizer chemicals in particular, also make their way to the ocean, where they threaten marine animals.55 The presence of these pollutants in oceans is further compounded by climate change, which causes ocean acidification56 leading to declining shellfish populations, some of which constitute a large portion of the food supply for certain communities.57   See Michael A. Clark et al., Global Food System Emissions Could Preclude Achieving 1.5⁰ and 2⁰ Climate Change Targets, 370 Science 705 (2020), https://science​.sciencemag​.org​/content​/370​/6517​ /705. 46   Id.; Colombo, supra note 44. 47  Colombo, supra note 44. 48  Craig Hanson et al., What’s Food Loss and Waste Got to Do with Climate Change? A Lot, Actually, World Res. Inst. (Dec. 11, 2015), www​.wri​.org​/ blog​/2015​/12​/whats​-food​-loss​-and​-waste​-got​-do​ -climate​-change​-lot​-actually. 49   Id. 50   UN Intergovt’l Panel on Climate Change, Climate Change and Land Report: Summary for Policymakers, at 24 (Jan. 2020), www​.ipcc​.ch​/site​/assets​/uploads​/sites​/4​/2020​/02​/SPM​_Updated​ -Jan20​.pdf. 51   FAO, Food Wastage Footprint & Climate Change, at 3, bb144e/1/11.15, www​.fao​.org​/3​/a​ -bb144e​.pdf. 52   Environmental Impacts of Agricultural Modifications, Nat’l Geographic (May 11, 2020), www​ .nationalgeographic​.org​/article​/environmental​-impacts​-agricultural​-modifications/. 53   FAO & Int’l Water Mgmt. Inst., Water Pollution from Agriculture: A Global Review: Executive Summary, at 2, I7754EN/1/08.17 (2017), www​.fao​.org​/3​/a​-i7754e​.pdf. 54   Id. 55   Agriculture, Nutrients and the Health of Fish, U.N. Env’t Programme [UNEP] (Oct. 27, 2016), www​.unenvironment​.org​/news​-and​-stories​/story​/agriculture​-nutrients​-and​-health​-fish. 56   Id. 57  Press Release, Oceania, Global Food Security Threatened by Ocean Acidification (July 13, 2011), (available at https://oceana​.org​/press​-center​/press​-releases​/global​-food​-security​-threatened​-ocean​ -acidification). 45

124  Research handbook on international food law The global food system also contributes to desertification or “land degradation in arid, semi-arid, and dry sub-humid areas resulting from climatic variations and human activities.”58 Land degradation has significant production and economic costs as it reduces the agricultural productivity of 23% of the world’s land while contributing billions of dollars in risk to crops due to significant pollinator loss.59 Agricultural production in dry areas increases desertification due to removing natural vegetation, plowed farmland, and grazing livestock.60 Desertification makes once-fertile land difficult or impossible to cultivate, increasing the risk of malnutrition and hunger and forcing people to migrate in search of food.61 4. Labor inequities The global food system’s social impacts are far-reaching. Labor conditions within the agriculture and food production sectors significantly impact workers’ lives, which form the backbone of the world’s food supply. Unfortunately, food system workers frequently experience grossly insufficient wages, unfair treatment, dangerous working conditions, substandard housing, and inadequate or nonexistent medical care that seriously threaten their living standards. Globally, gender inequality presents a substantial concern in the agricultural sector. Although women constitute 43% of the agricultural labor force in developing countries—and more in many countries—they control a much smaller share of land and financial resources.62 Like other occupations, women working in agriculture are frequently paid less than men performing similar labor.63 Additionally, women are often limited in their ability to access resources needed to participate in agriculture. Many countries, either through explicit policy or social custom, limit the ability of women to own land, access credit, or work the same jobs as men.64 These inequities not only harm female workers but also limit the development of agricultural economies.65 Additionally, migrant workers across the globe face further challenges. In many wealthy countries, migrant workers from poorer countries perform a large percentage of agricultural labor.66 Many of these workers receive few jobs or safety protections and face uncertain working conditions.67 As is the case for many food system issues, COVID-19 exacerbated the

 R. Adam Dastrup, Environmental Impact of Agriculture, in Introduction to Human Geography, https://humangeography​.pressbooks​.com​/chapter​/6​-5/ (last visited Sept. 29, 2021). 59   Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Services [IPBES], Summary for Policymakers of the Global Assessment Report on Biodiversity and Ecosystem Services 2–3 (May 6, 2019). 60  Dastrup, supra note 58. 61   Climate Change: Land Degradation and Desertification, World Health Organization [WHO] (Oct. 26, 2020), www​.who​.int​/news​-room​/q​-a​-detail​/climate​-change​-land​-degradation​-and​ -desertification. 62  Marcela Villarreal, Decreasing Gender Inequality in Agriculture: Key to Eradicating Hunger, 20 Brown J. World Affs. 169 (2013). 63   Id. 64   Id. at 171–172. 65   Id. at 169. 66   Philip L. Martin, Int’l Labour Org., Migrant Workers in Commercial Agriculture (2016), www​.ilo​.org​/wcmsp5​/groups​/public/--​-ed​_protect/--​-protrav/--​-migrant​/documents​/publication​/wcms​_ 538710​.pdf. 67   Id. 58

The future of planning for food system governance  125 challenges faced by these workers; for example, thousands of migrant workers in Myanmar, China, and Thailand were stranded due to COVID-related factory closures.68 B. Impacts of the Global COVID-19 Pandemic These major food system challenges existed at crisis levels prior to the COVID-19 pandemic but were greatly exacerbated, drawing fresh or renewed attention from the public and policymakers. For example, as noted earlier, hunger and food insecurity drastically increased due to COVID-19 and its related economic fallout. Moderate or severe food insecurity increased from 26.6% in 2019 to 30.4% (an increase in one year that was greater than the previous five years’ increase combined).69 FAO modeling shows that undernourished70 individuals likely increased from 650 million pre-pandemic to between 720 and 811 million.71 Food security is further hampered due to rising food prices, which have reached their highest level globally since 2014.72 In Brazil, for example, while inflation rose by 4.5% in 2020, food prices rose by a shocking 14.1%.73 Food banks across the globe reported a doubling in the number of individuals served, with increases of “169% in Africa, 138% in Asia and Oceania, 138% in Europe, 157% in Latin America, and 100% in the Middle East.”74 COVID-19 also heightened health and safety risks to food and agricultural workers, many of whom were required to continue to work as “essential” workers, despite being at high risk for the spread of COVID-19.75 One study conducted in the United States found that the jobs with the highest relative excess risk of COVID-19 mortality were jobs in food and agriculture; the level of risk in that category outranked that of jobs in transportation and logistics, manufacturing, and even health and emergency workers.76 Across the globe, food and agricultural workers often were not offered hazard pay commensurate with the heightened COVID-19 risk. In most cases, they were also unable to access sick or paid leave to care for ailing family   Int’l Panel of Experts on Sustainable Food Sys. [IPES-FOOD], COVID-19 and the Crisis in Food Systems: Symptoms, Causes, and Potential Solutions (Apr. 2020), www​.ipes​-food​ .org/​_img​/upload​/files​/COVID​-19​_CommuniqueEN​.pdf. 69   FAO, IFAD, UNICEF, WFP & WHO, supra note 19, at xv–xvi. 70  FAO defines undernourishment as meaning “a person is not able to acquire enough food to meet the daily minimum dietary energy requirements, over a period of one year. FAO defines hunger as being synonymous with chronic undernourishment.” FAO, Sustainable Development Goals- Indicator 2.1.1—Prevalence of Undernourishment (Sept. 6, 2021), www​.fao​.org​/sustainable​-development​ -goals​/indicators​/211​/en/. 71   FAO, IFAD, UNICEF, WFP & WHO, supra note 19, at 10. 72   Global Food Prices Rise for 10th Month in a Row, FAO (Apr. 8, 2021), www​.fao​.org​/news​/story​/en​ /item​/1393083/​%20icode/. 73   Brazilian 2020 Inflation 4.5%, But Food Prices Skyrocketed 14.1%, MercoPress (Jan. 13, 2021, 9:11 AM), https://en​.mercopress​.com ​/2021​/01​/13​/ brazilian​-2020 ​-inflation​- 4​-5​-but​-food​-prices​-skyrocketed​-14​-1. 74   Harv. L. Sch. Food L. & Pol’y Clinic, Strengthening Food Donation Operations During COVID-19: Key Issues and Best Practices for Governments Around the Globe 1 (Aug. 2021), www​.foodbanking​.org​/wp​-content​/uploads​/2021​/08​/ Food​-Policy​-Atlas​-COVID​-Update​ -August​-FINAL​.pdf. 75  IPES-Food, supra note 68, at 3. 76   Yea-Hung Chen et  al., Excess Mortality Associated with the COVID-19 Pandemic among Californians 18–65 Years of Age, by Occupational Sector and Occupation: March through November 2020, 16 PLoS ONE e0252454, https://doi​.org​/10​.1371​/journal​.pone​.0252454. 68

126  Research handbook on international food law members.77 At the same time, these workers face chronically low wages and unsafe conditions; more than 50% of rural and farm workers live below the poverty line, particularly in countries with large rural populations.78 Farmers and food producers, who face routine risks due to weather and market uncertainty, also faced severe challenges to their economic stability during COVID-19, resulting from government shutdowns, market closures, and other restrictions. The pandemic created relatively unprecedented market uncertainties for farmers and food producers globally, disrupting supply chains and making it difficult to access needed inputs.79 FAO focused efforts on family farmers, particularly during the height of COVID-19, due to their unique vulnerability to the effects of the pandemic.80 Family farms make up an estimated 90% of farms in the world; however, these farms face continuous challenges, including limited access to resources and low productivity.81 These same shutdowns and market disruptions also vastly increased food waste, which was already at shocking levels, leading to enormous piles of produce going to waste.82 In the United States, the largest dairy cooperative estimated that farmers were dumping as much as 14 million liters of milk each day,83 about 5% of the nation’s milk supply.84 The COVID-19 pandemic dramatically heightened and exacerbated each of these food system challenges, illustrating the vast complexities associated with addressing them and drawing the attention of the public and policymakers to a food system in crisis. As a result, the COVID19 response accelerated public pressure to address these deep-seated food system challenges while illuminating opportunities. In several countries, states, and provinces around the globe, COVID-19 stimulated the development of new or updated coordinated food strategies. For example, as discussed in the following, the rapid onset of COVID-19 led England to bifurcate its national food strategy development process into two parts so it could rapidly develop a national food strategy in response to specific COVID-19-related food system challenges. C. International and National Trends in Considering Food through a Systems Lens in Law and Policymaking The substantial challenges facing the food system—public health, social justice, food security, economic stability, and environmental sustainability—are issues of vital importance that have only intensified due to the COVID-19 pandemic. The pandemic illustrated the critical lack of  IPES-FOOD, supra note 68.  IPES-FOOD, supra note 68, at 4. 79   Global Agriculture Industry in 2020—Impact of Coronavirus on the Market, GlobalNewswire (Feb 4, 2021, 5:53 AM), www​.globenewswire​.com​/en​/news​-release​/2021​/02​/04​/2169678​/28124​/en​/ Global​-Agriculture​-Industry​-in​-2020 ​-Impact​-of​-Coronavirus​-on​-the​-Market​.html. 80   See generally FAO, Coronavirus Disease 2019 (COVID-19) and Family Farming (2020), www​ .fao​.org​/family​-farming​/detail​/en​/c​/1300574/. 81   FAO, The State of Food and Agriculture 2014: Innovation in Family Farming 3 (2014), www​.fao​.org​/3​/i4040e​/i4040e​.pdf. 82  Emma Charlton, Here’s How COVID-19 Creates Food Waste Mountains that Threaten the Environment, World Economic Forum (Jun. 30, 2020), www​.weforum​.org​/agenda​/2020​/06​/covid​ -19​-food​-waste​-mountains​-environment/. 83   Id. 84  Helena Bottemiller Evich, USDA Let Millions of Pound of Food Rot While Food Bank Demand Soared, Politico (Apr. 26, 2020, 7:00 AM), www​.politico​.com ​/news​/2020​/04​/26​/food​-banks​-coronavirus​-agriculture​-usda​-207215. 77 78

The future of planning for food system governance  127 comprehensive and coordinated food system law and policymaking as countries struggled to provide reliable access to food. In response, a growing number of countries are prioritizing these issues, and leaders on both the national and global stages are beginning to acknowledge the interrelationship between food system issues and the resulting need for more harmonized and holistic policymaking and governance. Globally, one pervasive challenge associated with food-related policymaking is the diffusion of policy and regulations affecting the food system. In many countries, food safety is handled by one ministry or department, agriculture is typically covered by another, and environmental protection is handled by yet a separate one. Many countries also include ministries of social welfare or social development in food law and policy making. As one example, in the United States, more than 15 administrative agencies implement 30 different statutes to regulate and oversee various aspects of the food system, sometimes with overlapping or conflicting mandates and authorities from the US Congress.85 Even food safety itself is split across multiple agencies, with the US Food and Drug Administration (within the Department of Health and Human Services) overseeing the safety, wholesomeness, sanitation, and labeling of approximately 80% of the food supply,86 while the US Department of Agriculture serves the same function for commercial meat, poultry, and certain egg products.87 The US Environmental Protection Agency regulates pesticide registrations and pesticide residues on food, as well as some farms that are considered environmental “point sources” under the law.88 Similarly, in England, various departments play vital roles in the food system. The Food Standards Agency is responsible for food safety and food labeling.89 The Department for Environment, Food and Rural Affairs is responsible for environmental protection, as well as supporting the food, farming, and fishing industries.90 The Department of Health and Social Care includes a committee dedicated to examining chemicals in food and consumer products.91 In Argentina, the Ministry of Agriculture, Livestock and Fisheries92 and the Ministry

  U.S. Gov’t Accountability Off., GAO-15-290, High Risk Series: An Update 262 (Feb. 2015), www​.gao​.gov​/assets​/670​/668415​.pdf. For example, the regulation of pepperoni pizza is frequently cited as an example of inefficacy in food safety oversight. Under current law, the Food and Drug Administration (FDA) regulates cheese pizza and its ingredients. However, if more than 50% of the pizza has pepperoni or other meat, the USDA Food Safety and Inspection Service (FSIS) regulates the meat ingredients. Daniela Galarza, USDA vs. FDA: What’s the Difference? Eater (Mar. 24, 2017, 1:32 PM), www​.eater​.com​/2017​/3​/24​/15041686​/fda​-usda​-difference​-regulation. 86   Renée Johnson, Cong. Rsch. Serv., RS22600, The Federal Food Safety System: A Primer 4 (2016), https://sgp​.fas​.org​/crs​/misc​/ RS22600​.pdf. 87  U.S. Dept. of Agric., Health and Safety, www​.usda​.gov​/topics​/ health​-and​-safety (last visited Dec. 7, 2022). 88   See generally 7 U.S.C. § 136 et seq.; 33 U.S.C. § 1344. 89  Gov’t. of UK, Food Standards Agency, http://food​.gov​.uk/ (last visited Aug. 6, 2022). 90  Gov’t. of UK, Dep’t for Env’t, Food & Rural Affs., www​.gov​.uk ​/government ​/organisations​/ department​-for​-environment​-food​-rural​-affairs (last visited Aug. 6, 2022). 91  Gov’t of UK, Dep’t of Health & Social Care, www​.gov​.uk ​/government ​/organisations​/department​-of​-health​-and​-social​-care (last visited Aug. 6, 2022). 92   Agricultura, Ganadería y Pesca [Agriculture, Livestock, and Fisheries], Argentina.Gob.Ar, www​.argentina​.gob​.ar​/agricultura (last visited Aug. 6, 2022). 85

128  Research handbook on international food law of Health divide regulatory control for food safety.93 The Ministries of Economy94 and Public Works also play a role in food distribution and food security. In Peru, ministries that impact the food system include the Ministry for Agriculture and Irrigation; the Ministry of Health; the Ministry of the Fisheries; the Ministry of the Environment; and the Ministry of Development and Social Inclusion.95 South Africa has separate Ministries of Agriculture, Land Reform and Rural Development; Health (which oversees food safety); Social Development; and Water and Sanitation.96 In Brazil, 15 different agencies, ranging from the Ministry of Health to the Ministry of Fisheries and Agriculture, form the Interministerial Chamber on Food and Nutrition Security.97 These examples underscore why the lack of coordination in food system governance is so problematic. In most nations, food and agricultural law and policymaking are within the jurisdiction of numerous governmental authorities. The system can be even more complex in a federal system, where law and policymaking authority over food may also reside with state, provincial, or local governments. In several countries, such as the United States, scholars and policymakers have debated the wisdom of collapsing food safety functions into a single Food Agency,98 yet in that country and most others, food system issues continue to span myriad departments and levels of government. Despite the vital importance of the food system, until recently, most countries have failed to utilize any governance structure or strategy to address the interconnected economic, health, and environmental issues facing the food system, nor developed a plan to improve these outcomes.

  Ministerio de Salud [Ministry of Health], Argentina.Gob.Ar, www​.argentina​.gob​.ar​/salud (last visited Aug. 6, 2022). 94   Ministerio de Economía [Ministry of Economy], Argentina.Gob.Ar, www​.argentina​.gob​.ar​/ economia (last visited Aug. 6, 2022); Ministerio de Obras Públicas [Ministry of Public Works], Argentina.Gob.Ar, www​.argentina​.gob​.ar​/obras​-publicas (last visited Aug. 6, 2022). 95   Entidades del Poder Ejecutivo [Entities of the Executive Branch], GOB.PE (Peru), www​.gob​.pe​/ estado​/poder​-ejecutivo (last visited Aug. 6, 2022). 96   Ministers, Parliament of the Republic of S. Africa, www​.parliament​.gov​.za​/ministers (last visited Aug. 6, 2022). 97  The complete list includes: Ministry of Social Development and Fight against Hunger, Ministry of the Cities, Ministry of Planning, Budget and Management, Ministry of Health, Ministry of Agriculture, Livestock and Supply, Ministry of Finance, Ministry of Science and Technology, Ministry of Education, Ministry of Fisheries and Aquaculture, Ministry of National Integration, Ministry of Agrarian Development, Ministry of the Environment, Ministry of Labor and Employment, Ministry of Foreign Relations. 98   See e.g., Safe Food Act of 2015, S. 287, 114th Cong. (2015); Richard J. Durbin, Food Safety Oversight for the 21st Century: The Creation of a Single Independent Federal Food Safety Agency, 59 Food & Drug L.J. 383, 385 (2004); Timothy M. Hammonds, It is Time to Designate a Single Food Safety Agency, 59 Food & Drug L.J. 427, 432 (2004); Richard A. Merrill & Jeffrey K. Francer, Organizing Federal Food Safety Regulation, 31 Seton Hall L. Rev. 61, 67 (2000); Michael R. Taylor, Lead or React? A Game Plan for Modernizing the Food Safety System in the United States, 59 Food & Drug L.J. 399, 401 (2004); Note, Reforming the Food Safety System: What If Consolidation Isn’t Enough?, 120 Harv. L. Rev. 1345 (2007); Diana R. H. Winters, Putting Humpty Dumpty Together Again: Consolidating Regulatory Authority Over Food Safety, Health Aff. (Feb. 23, 2015), www​ .healthaffairs​.org​/do​/10​.1377​/forefront​.20150223​.044806. 93

The future of planning for food system governance  129

IV. SHIFTING GLOBAL AND NATIONAL TRENDS TOWARD MORE COMPREHENSIVE SYSTEMS APPROACH Due to growing data and knowledge related to the key food system challenges outlined earlier, in conjunction with the urgency spurred by COVID-19, there is a growing trend toward using a food systems lens as the best means to examine, analyze, and govern the food supply. Because the food and agricultural sectors are part of a complex, interconnected system, law and policymaking models that employ lessons from “systems thinking” to more fully understand these relationships are particularly relevant.99 As described in this section, the growing trend toward recognizing that systems thinking reflects the best approach at both the intergovernmental and national levels and across scholars, policymakers, and the general public. As an example of the call for this kind of coordinated approach at a regional level, the International Panel of Experts on Sustainable Food Systems (IPES-Food) released a report advocating for a common food policy for the European Union (EU) to “coordinate and align actions across different policy areas and levels of [food system] governance.”100 While the report acknowledges the EU has made progress toward more coordinated food system governance, it concluded the EU needs a common food policy for several key reasons: (1) to align and eliminate conflicting and inefficient policies; (2) to integrate and elevate innovative policies developed across all levels of government; (3) to encourage long-term, coordinated food system governance rather than responsive policymaking; and (4) to rebuild participatory democratic food system governance and engage a broader range of stakeholders as co-creators of policy rather than consultants.101 A. The Global Call for Coordinated and Comprehensive Food System Framework At the global level, the United Nations’ Sustainable Development Goals reflect the trend toward systems thinking as a means to address major global challenges as interrelated issues. Launched in 2015, the goals are part of the 2030 Agenda for Sustainable Development, which was the successor to the Millennium Development Goals.102 The Sustainable Development Goals set targets for all countries to meet toward more sustainable development by 2030;103 while several targets explicitly reference food (such as Target 2: Zero Hunger and Target 12: Responsible Consumption and Production), every single development goal has a nexus to the food system.104 The High-Level Political Forum on Sustainable Development provides a

  See generally Donella H. Meadows, Thinking in Systems: A Primer (Diana Wright ed., 2008); a Framework for Assessing the Health, Environmental, and Social Effects of the Food System 28 (Malden C. Nesheim et al. eds., 2015). 100  Olivier De Schutter et al., Towards a Common Food Policy for the European Union: The Policy Reform and Realignment That Is Required to Build Sustainable Food Systems in Europe, Int’l Panel of Experts on Sustainable Food Syss. 11 (2019), www​.ipes​-food​.org/​_img​/upload​/files​/ CFP​_ FullReport​.pdf (describing how IPES-Food is comprised of an independent panel of experts from 16 different countries). 101   Id. 102   FAO, The Future of Food and Agriculture: Trends and Challenges 118 (2017). 103   The 17 Goals, U.N. Dept. Econ. & Soc. Affs., https://sdgs​.un​.org​/goals (last visited Aug. 6, 2022). 104  Food Systems Summit 2021, Food Systems Summit x SDGs, U.N., www​.un​.org​/en​/food​-systems​ -summit​/sdgs (last visited Aug. 6, 2022).  99

130  Research handbook on international food law voluntary platform for follow-up and review of progress toward achieving these goals, which is assessed annually.105 More recently, in 2019, the UN Secretary-General António Guterres announced that the UN would hold the first-ever UN Food Systems Summit (UNFSS) as part of the “Decade of Action” to achieve the Sustainable Development Goals.106 The Summit is focused specifically on the food system because of its fragility in many parts of the world and its tremendous impact on human life.107 The Summit is broken into five Action Tracks: (1) Ensure Access to Safe and Nutritious Food for All; (2) Shift to Sustainable Consumption Patterns; (3) Boost Nature-Positive Production; (4) Advance Equitable Livelihoods; and (5) Build Resilience to Vulnerabilities, Shocks, and Stress.108 In the lead-up to the Summit, the UN Secretary-General (through a Special Envoy and Secretariat) invited many national food system dialogues as well as cross-border meetings, dialogues, and planning groups.109 UNFSS encouraged and provided a platform for three types of dialogues: Member State Summit Dialogues (hosted by national governments), Global Summit Dialogues (aligned with global events), and Independent Summit Dialogues (hosted by individuals). The Member State Dialogues in particular offered a chance for national governments to begin to hold integrated food systems discussions across government departments and stakeholders that often do not align to discuss key challenges and develop national pathways for sustainable food systems. Member state dialogues were suggested to include at least three national convenings and convenings at the subnational level to be held between the stage 1 and stage 2 national meetings.110 More than 100 countries discussed the results of these national dialogues during the UNFSS pre-Summit held in August 2021.111 The UNFSS has generated notable backlash amongst scholars and civil society.112 One critique is that it has offered a large platform for industry, including partnership with the   Id.  Food Systems Summit 2021, About the Summit, U.N., www​.un​.org​/en ​/food​-systems​-summit ​/about (last visited Aug. 6, 2022). 107   Id. 108  Food Systems Summit 2021, Action Tracks, U.N., www​.un​.org​/en​/food​-systems​-summit​/action​ -tracks (last visited Aug. 6, 2022). 109  Food Systems Summit 2021, Food System Summit Dialogues, U.N., www​.un​.org​/en​/food​-systems​ -summit​/dialogues (last visited Aug. 6, 2022). 110   Member State Dialogues, Food System Summit 2021 Dialogues Gateway, https://summitdialogues​.org​/overview​/member​-state​-food​-systems​-summit​-dialogues/ (last visited Aug. 6, 2022). 111  Press Release, Food Systems Summit 2021, More than 100 Countries Discuss Visions for National Food Futures to Accelerate Global Action Ahead of September Summit, U.N. (July 28, 2021), www​ .un​.org​/en ​/food​-systems​-summit ​/news​/more​-100 ​-countries​-discuss​-visions​-national​-food​-futures​ -accelerate​-global. 112  Teresa Welsh, The UN Food Systems Summit’s Biggest Challenge? Accountability, Devex (July 16, 2021), www​.devex​.com ​/news​/the​-un​-food​-systems​-summit​-s​-biggest​-challenge​-accountability​-100397; Withdrawal from the UN Food Systems Summit, Int’l Panel of Experts on Sustainable Food Syss. (July 26, 2021), www​.ipes​-food​.org/​_img​/upload​/files​/ UNFSS​ %20Withdrawal​%20Statement​.pdf; Marion Nestle, The UN Food Summit on Food Systems 2: The Critique, Food Politics (July 14, 2021), www​.foodpolitics​.com​/2021​/07​/the​-un​-summit​-on​-food​ -systems​-2​-the​-critique/; Elizabeth Mpofu & Edgardo Garcia, Here is Why We are Boycotting the UN Food Systems Summit, Aljazeera (July 25, 2021), www​.aljazeera​.com​/opinions​/2021​/7​/25​/ here​-is​-why​-we​-are​-boycotting​-the​-un​-food​-systems​-summit. 105

106

The future of planning for food system governance  131 World Economic Forum. A similar critique argues that the placement of the UNFSS outside of the U.N. Committee on World Food Security (UN CFS) is misguided.113 The UN CFS was reformed in 2009 to make it “the foremost democratic space for discussing the future of food systems,”114 and the UN CFS has a robust mechanism for involvement of civil society that has not been replicated by the UNFSS. In addition, some have argued the Summit’s shift in forum away from the UN CFS, coupled with experts that diverge in their understandings of equity, may decrease rights- and equity-based approaches in the absence of a “normative and multidisciplinary understanding of equity.”115 One result of the UNFSS is that it has raised the profile of food systems, planning for food systems, and the global urgency of policymaking in this area. The opening plenary emphasized the need for comprehensive food system governance. Additionally, governance emerged as a cross-cutting action area during the dialogues, partly to address governance challenges in the UNFSS itself and to focus more broadly on governance of the food system.116 A set of governance propositions came from these discussions that emphasize national food strategies as a tool to achieve the SDGs, capacity for governments to share information about governance practices, and broad stakeholder engagement and participation in policy development.117 The substance of the dialogues, identified solutions, and the participation of governments and stakeholders in the UNFSS constellation of events—as well as the UNFSS-led creation of national food systems dialogues—reflect a broader global trend toward coordinated planning and governance across the food system. Further, in recent years, FAO has begun to change its focus, leaning into the importance of using a broader food systems lens to address challenges in the food system. In a 2018 publication, FAO noted: “[t]he complexity of food systems requires a more holistic and coordinated approach … many food security and nutrition challenges are complex problems whose solutions are contested and which transcend disciplinary, divisional, and institutional boundaries.”118 FAO’s most recent report on the State of Food Security (2021) states: [a] food systems lens is critical to address the drivers of recent food security and nutrition trends … these major drivers are unique but not mutually exclusive, as they interact to the detriment of food security and nutrition by creating multiple, compounding impacts at many different points within our food systems.119

 Nestle, supra note 112.   Int’l Panel of Experts on Sustainable Food Syss., supra note 112. 115  Nicholas Nisbett et  al., Equity and Expertise in the UN Food Systems Summit, 6 BMJ Glob. Health 1 (2021). 116   Action Area 6.1 Governance, Food Systems Summit 2021 Cmty., https://foodsystems.community/action-area-6-1/ (last visited Aug. 6, 2022). 117   Id. 118   FAO, Sustainable Food Systems: Concept and Framework, U.N. Doc. CA2079EN/1/10.18, at 2 (2018). 119   FAO, IFAD, UNICEF, WFP & WHO, supra note 19, at xviii. 113 114

132  Research handbook on international food law B. National Actors Expand Approaches to Food System Planning and Governance Over the past few decades, governments worldwide have begun to use national food strategies to address complex food system issues. Stated simply, a national food strategy is a coordinated strategic national approach to food system law and policymaking.120 This systems approach provides a framework to both acknowledge and address the disparity between the fundamental significance of the food system and the lack of attention and coordination focused on its governance. These national strategies provide processes for developing and implementing priorities and goals to address existing food system challenges and shape future decisionmaking. Typically, these strategies respond to a specific set of concerns unique to a country’s particular challenges and priorities. The actual governance structure that could support a national food strategy may differ greatly from country to country—for example, some include an advisory council or lead official, and many but not all entail a written strategy document—but the common elements are a focus on coordination across the food system and development of short- and long-term goals for the food system. In many countries—particularly those with low and lower middle incomes—holistic national food strategies have grown from the national implementation of FAO-inspired food and nutrition security strategies. However, a growing number of countries—particularly many in Europe and North America—have developed national strategies in response to a broader set of food system challenges or have developed strategies that from the outset adopted a broad intersectional food systems lens, perhaps to respond to the lack of food system coordination. 1. Countries begin to adopt intersectional national food security strategies Early efforts at food system governance and planning largely took shape in national policies and plans focused on hunger and food insecurity, given the prevalence and crisis levels of these issues in many low and lower-middle-income countries. Even with their more discrete focus, some of these national strategies have evolved to reflect these individual food system challenges in the broader food system context. Notably, some reflect what we would consider best practices for comprehensive national food strategies in terms of their coordination, participation, and accountability but also demonstrate the problems associated with failing to provide transparency and durability. a. Brazil Brazil’s path to developing a National Food and Nutrition Security Policy was marked by strong civil society leadership and pressure on the government. Brazil’s approach to developing national policies addressing food and nutrition security programs has historically been grounded in intersectionality. From the early twentieth century, Brazil recognized that the approach often espoused to address hunger—increasing agricultural productivity—was insufficient without simultaneously improving distributional models and developing other policies 120

 Laurie J. Beyranevand & Emily M. Broad Leib, Making the Case for a National Food Strategy in the United States, 72 Food & Drug L. J. 225, 225 (2017).

The future of planning for food system governance  133 targeted at poverty.121 This perspective is reflected in the many actions undertaken by Brazil over the years to consider food security and nutrition from a broader lens that requires engagement from multiple governmental agencies and departments. In the 1980s, Brazil transitioned from military dictatorship to civilian rule. This change created new opportunities for increased public participation in social issues affecting Brazilians, including those related to food and nutrition.122 As early as 1986, non-governmental organizations (NGOs) and various advocacy groups organized Brazil’s first National Food and Nutrition Conference.123 The conference embodied what was then novel coordination between the fields of food and nutrition and public health reform and resulted in a number of proposals that set the stage for food and nutrition security policy in Brazil.124 Ultimately, the conference culminated with a report recommending the creation of a National Food and Nutrition Security System that included both a national nutrition policy to guide law and policymaking and a national coordinating council that could serve to advise the president.125 Civil society led the effort to establish the National Food and Nutrition Security Council (Conselho Nacional de Seguranca Alimentar or CONSEA), an advisory body that promotes participatory democracy by facilitating communication between civil society and government on policies related to food and nutrition security.126 To that end, CONSEA comprises representatives from civil society and government. Reflective of the political realities of changed administrations with different priorities, the CONSEA was disbanded just one year after its creation.127 Several years later, the Ministry of Health released the country’s National Food and Nutrition Security Policy (PNAN), notable because it reflected the principle of the Human Right to Adequate Food, broadening existing concepts of food security to account for nutrition, in addition to taking a coordinated intersectoral approach to law and policymaking.128 Following the creation of this national policy and at the time of President Luiz Inacio “Lula” da Silva’s election, the food and nutrition security movement was deeply embedded in Brazil’s civil society. Consequently, President Lula reestablished the CONSEA to implement the Zero Hunger project, which served as the “main governmental strategy [to guide] economic and social policies.”129 For many years, Brazil employed Councils on Food and Nutrition Security  Marianna Santarelli et al., Learning from Brazil’s Food and Nutrition Policies, Inst. Dev. Stud. 16 (Feb. 2018), https://foodfoundation​.org​.uk​/wp​-content​/uploads​/2018​/02​/ Learning​-from​-Brazilian​ -Food​-and​-Nutrition​-Security​-Policies​_final​_clean​_ rev​_ FF​.pdf. 122  Marília Mendonça Leão & Renato S. Maluf, Effective Public Policies and Active Citizenship: Brazil’s Experience of Building a Food and Nutrition Security System, Brazilian Action for Nutrition & Human Rights 15, www​-cdn​.oxfam​.org​/s3fs​-public​/file​_attachments​/rr​-brazil​ -experience​-food​-nutrition​-security​-19​0214​-en​_1​_0​.pdf (last visited Aug. 7, 2022). 123  Patricia Constante Jaime et al., A Look at the Food and Nutrition Agenda Over Thirty Years of the Unified Health System, 23 Ciência & Saúde Coletiva [Science & Health Collective] 1829, 1830 (2018). 124   Id. 125  Leão & Maluf, supra note 122, at 17. 126  Cecilia Rocha, Developments in National Policies for Food and Nutrition Security in Brazil, 27 Dev. Pol’y Rev. 51, 60 (2009). 127  Constante et al., supra note 123, at 1834. 128   Id. at 1831. 129  Lei No. 10,683 de 28 de Maio de 2003, Diário Oficial da Uniáo [D.O.U.] de 28.3.2003 (Braz.), repealed by Lei No. 13,502 de 1 de Novembro de 2017, Diário Oficial da Uniáo [D.O.U.] de 121

134  Research handbook on international food law at every level of government.130 President Lula also developed national policies, including the Framework Law on Food and Nutrition Security (LOSAN), which formalized the National Food and Nutrition Security System (SISAN), an entity that coordinates food and nutrition security policy among different levels of government and across different departments.131 The Framework Law on Food and Nutrition Security also recommended creating the National Food and Nutrition Security Policy (PNSAN), which constitutionally recognized food access as a human right and established a general policy framework to be further developed and implemented by multiple government agencies alongside civil society.132 Finally, the National Food and Nutrition Security Plan (PLANSAN) identified specific goals and targets to be achieved per timelines aligned with the federal budget and revisited every three years.133 Consequently, the governance framework consists of three main laws: (1) LOSAN, which lays out the overarching principles; (2) PNSAN, which creates implementation guidelines, evaluation procedures, and obligations for other levels of government; and (3) PLANSAN, which allocates resources, sets goals and timelines, and delegates responsibility to specific entities.134 Importantly, many of the programs and initiatives intersect with several responsible ministries and governmental offices.135 Unfortunately, Brazil has experienced a backslide in food law and policymaking over the last few years due to political corruption and changed administrations, which includes the elimination of the CONSEA.136 This measure by President Bolsonaro significantly reduced public participation and federal coordination on food security issues, calling into question whether the government will articulate a new iteration of PLANSAN for 2020–2023 following the last plan’s expiration in 2019 and demonstrating how strategies developed through the executive branch may suffer from changing political climates ultimately impacting their durability.137 While nominally only a food and nutrition security policy (rather than a national food strategy) and primarily focused on addressing food and nutrition security due to the prevalence of hunger and poverty in Brazil, the government’s development of its National Food and Nutrition Policy reflects a strong commitment to systems thinking as compared to other food 9.11.2018 (Braz.); Leão & Maluf, supra note 122 at 30; José Graziano da Silva et al., The Fome Zero (Zero Hunger program): The Brazilian Experience, FAO 10, www​.fao​.org​/3​/i3023e​/i3023e​ .pdf. 130  Leão & Maluf, supra note 122, at 36–39. 131   Id. at 30; Decreto No. 6.273 de 23 de Novembro de 2007, Diário Oficial da Uniáo [D.O.U.] de 26.11.2007 (Braz.) (instituting the Inter-Ministerial Chamber for Food and Nutrition Security within the National System for Food and Nutrition Security—SISAN). 132  Lei No. 10,683 de 28 de Maio de 2003, Diário Oficial da Uniáo [D.O.U.] de 28.3.2003 (Braz.), repealed by Lei No. 13,502 de 1 de Novembro de 2017, Diário Oficial da Uniáo [D.O.U.] de 9.11.2018 (Braz.). 133  Leão & Maluf, supra note 122, at 28. 134   Id. at 29. 135  Constante et al., supra note 123, at 1834. 136   L et’s Defend Brazil’s Food Security, Slow Food (Jan. 24, 2019), www​.slowfood​.com​/ lets​-defend​ -brazils​-food​-security/; Leandro Melito, Bolsonaro Promove Desmonte das Políticas de Combate à Fome [Bolsonaro Promotes Dismantling of Policies to Fight Hunger] (Feb. 4, 2020, 9:21 AM) (Braz.), www​.brasildefato​.com​.br​/2020​/02​/04​/ bolsonaro​-promove​-desmonte​-das​-politicas​-de​-seguranca​-alimentar. 137  Melito, supra note 136.

The future of planning for food system governance  135 and nutrition security policies. Foundationally, Brazil’s national policy works to integrate food and nutrition issues into all governmental entities and policies at all levels of government, with broad representation from civil society organizations that can contribute practical knowledge to policy development. Largely, this is due to the recognition of food as a human right, which shifts the focus of policymaking from economics and trade to equitable access to ensure the implementation of what has been determined a fundamental right for the people of Brazil. In essence, Brazil’s food and nutrition security policy is more like other countries’ coordinated national strategies and reflects the trend of broadening food system governance to address a critical but isolated issue—food and nutrition security—through a law and policy framework that requires consideration of interrelated causes and effects. b. South Africa Like Brazil, South Africa’s food law and policymaking approach is rights-based, stemming from the recognition of the right to sufficient food within the country’s constitution.138 South Africa’s food system faces a number of challenges, including the duality of the agricultural system as a legacy of Apartheid with some well-resourced commercial farms and many substantially under-resourced smallholder farms; increased urbanization which has caused an increase in food purchasing and a shift from self-production; consolidation that has led to declines in consumer choice; nutrition transition; long-term impacts from stunting and other nutritional deficiencies; scarcity and decline of natural resources; vulnerability and unpredictability of climate change; and massive amounts of food waste.139 Adopted in 2013, South Africa’s National Policy on Food and Nutrition Security was intended to respond to a number of food security challenges, providing a national framework to harmonize and coordinate among various government agencies and civil society.140 In the policy, South Africa explicitly recognizes that food and nutrition security are intersectional issues that require “the genuine integration of existing policies and programmes in health, education, and environmental protection, as well as in agrarian reform and agricultural development.”141 The policy states that it will be implemented and overseen by government with the input of a National Food and Nutrition Advisory Committee chaired by South Africa’s Deputy President and composed of “experts from organized agriculture, food security and consumer bodies, as well as climate change and environmental practitioners and representatives of organized communities.”142 The policy also suggests these committees could be developed at the provincial and local levels and “should be supported by relevant government departments.”143 Additionally, the policy explicitly recognizes FAO’s recommendation

  S. Afr. Const., Chapter 2: Bill of Rights, 1996.  Casey Delport, Food and Nutrition Policy in South Africa: the National Vision, Policy Space and Policy Alignment 6 (Apr. 2019) (Master of Commerce thesis, Stellenbosch University, Dept. Agric. Econ.), https://core​.ac​.uk ​/download ​/pdf​/196259838​.pdf. 140   National Policy on Food and Nutrition Security, Dept. Social Dev. & Dept. Agric., Forestry, & Fisheries, www​.nda​.agric​.za​/docs​/media​/national​%20policyon​%20food​%20and​ %20nutrirition​%20security​.pdf. 141   Id. at 6. 142   Id. at 18. 143   Id. 138 139

136  Research handbook on international food law to enact legislation to implement the right to food and contemplates the policy as a first step toward developing a Food and Nutrition Security Act with legal effect.144 While functionally, South Africa’s policy appears similar to Brazil’s in its focus on the intersectional nature of the food system, the need for policy coordination, and a strong emphasis on public participation, practically, the policy differs in some key respects. First, although the policy recognizes the need for civil society and private sector engagement, it provides no specifics regarding how these actors provide consultation and advice. In contrast to the CONSEA in Brazil, members of which received their appointments through specifically designated processes and which met at regularly scheduled intervals, South Africa’s policy provides only the broad strokes of its vision for policy leadership and coordination. For example, while the policy calls for the creation of an advisory committee, currently no such committee exists despite having been partially established in 2015 as part of the Food and Nutrition Security Implementation Plan.145 In other African countries that have experienced success in reducing hunger and malnutrition, national food security councils served an essential role by providing “leadership and coordination” between policies, programs, government entities, and other stakeholders.146 Without the benefit of meaningful consultation, some have expressed concerns that law and policymakers possess limited knowledge of the myriad issues intersecting with the food system, which has resulted in policies many deemed insufficient.147 In many ways, however, South Africa’s approach to food and nutrition security law and policymaking also reflects a trend toward recognizing the fundamental need for coordination on food system challenges and applying a high-level systems thinking approach, even if the particulars have yet to be sorted out. Given the specific challenges faced by these two countries, their approach to food system governance with a particular emphasis on food and nutrition security is expected. However, like Brazil, while South Africa’s policy is centered on food and nutrition security, its national strategy also embodies the view that food and nutrition security are issues within the food system that require law and policy interventions in other sectors, making its approach to governance another example of a forward-looking trend toward comprehensive and coordinated food system law and policymaking. 2. Other countries adopt comprehensive national food strategies Since the mid-1970s, although with more prevalence in recent years, middle- and high-income countries, largely in Europe and North America, have created comprehensive national food strategies that reflect a coordinated approach to food system law and policymaking. These countries recognize the benefits associated with holistically planning and implementing laws and policies that address food system issues in a coordinated manner rather than maintaining the traditional piecemeal approach. In some instances, these countries were galvanized to look at the food system due to a very particular issue or set of issues within the food system. Given their global status, most such countries developed national food strategies that centered on   Id.  Sheryl Hendriks, South Africa Needs a National Food Security Council to Fend Off Starvation, Malabo Montpelier Panel (May 12, 2020), www​.mamopanel​.org​/news​/ blog​/2020​/may​/12​/ south​-africa​-needs​-national​-food​-security​-council-/. 146   Id. 147  Delport, supra note 139, at 21. 144 145

The future of planning for food system governance  137 four major strategic objectives: (1) sustainability, climate change, and food system resilience; (2) economic development; (3) health and nutrition; and (4) food access and food security.148 Depending on the goals and priorities of the specific country, one or more of these themes may be prioritized over others. Common to most is the understanding that law and policy decisions impacting one will likely have an effect on another, and thus they all acknowledge the need to review these topics holistically. a. The food policy for Canada Advocates in Canada worked for decades to press government to develop a national food strategy that addressed deep-seated food and nutrition security issues. Released in 2019, the Food Policy for Canada149 responded to these calls and represented a substantial step toward making coordinated food system law and policymaking a priority for the Canadian government. However, Canada has a long history of engaging in food system planning, including its creation of an Action Plan for Food Security in 1998, which it considered a building block toward developing a “national approach” to food insecurity in Canada and around the world.150 This Action Plan represented a blueprint for a further set of implementation conversations that embodies many of the components ultimately included in Canada’s national food policy—an overarching recognition that food security as a food system challenge intersects with a number of other important issues, a strong commitment to civil society engagement and participation, the need for intersectoral coordination, a set of identified priorities, and flexibility and adaptability to remain responsive.151 A few years after the release of the Action Plan, the NGO Food Secure Canada emerged by resolution out of a conference focused on gathering input on food security issues from civil society152 and has since played a tremendous role in shaping Canadian food policy through its alliance of organizations and people working across the food system. In 2015, Food Secure Canada released a People’s Food Policy, entitled Resetting the Table, a grassroots response to the crises faced by the Canadian food system (e.g., hunger, diet-related disease, the declining number of farmers and fishers) calling for “a whole-of-government commitment” to address these challenges and strategically plan to strengthen Canada’s food system.153 This policy resulted from years of collaborative grassroots dialogues that resulted in ten detailed policy discussion papers with policy recommendations and guidelines for

  Emily Broad Leib et al., Blueprint for a National Food Strategy (2017), https://foo​dstr​ ateg​yblu​eprint​.org​/wp​-content​/uploads​/2020​/10​/ Food​-Strategy​-Blueprint​.pdf. 149  2020-21 Departmental Plan, Agric. & Agri-Food Canada, https://agriculture​.canada​.ca​/sites​ /default ​/files​/ legacy​/resources​/prod ​/doc​/pdf​/dp​-pm ​_2020 ​-21​-eng​.pdf; Food Policy for Canada, Agric. & Agri-Food Canada, www​.canada​.ca​/en​/agriculture​-agri​-food​/news​/2019​/06​/food​-policy​-for​-canada-​-backgrounder​.html (last modified June 17, 2019). 150   Off. Prime Minister, Canada’s Action Plan for Food Security, https://publications​.gc​.ca ​/ collections​/collection​_2013​/aac​-aafc​/A2​-190​-1999​-eng​.pdf. 151   Id. at 6. 152   Our Story, Food Secure Can., https://foodsecurecanada​.org​/who​-we​-are​/our​-story (last visited Aug. 7, 2022). 153   Food Secure Can., Resetting the Table: A People’s Food Policy for Canada (2011), https:// foodsecurecanada​.org ​/sites​/foodsecurecanada​.org ​/files​/ FSC​-resetting2012​-8half11​-lowres​-EN​ .pdf. 148

138  Research handbook on international food law implementation.154 Food Secure Canada’s grassroots people-centered participatory engagement process serves as a model for democratic food system policymaking by recognizing that those most affected by certain issues possess the knowledge to develop lasting and informed solutions.155 These efforts ultimately led to the adoption of the Food Policy for Canada, which embodies many of the recommendations in Resetting the Table. The Canadian government developed the Food Policy for Canada with significant public input from stakeholders such as industry, various food system advocates, and indigenous populations.156 Efforts to seek input included an online survey, a national summit focused on food policy, regional and local town hall and consultation events organized by various members of Parliament, community events led by civil society groups, and self-led discussions through National Indigenous Organizations.157 The consultations focused on four themes: (1) increased food access and security; (2) health and food safety; (3) natural resource conservation; and (4) producing high-quality food products.158 To conduct outreach and ensure input from traditionally marginalized and underserved groups, the Canadian government engaged Food Secure Canada159 and commenced bilateral conversations with National Indigenous Organizations that resulted in self-led discussions with governmental support.160 Additionally, the Canadian Federation of Agriculture, Canada’s largest farm and agribusiness organization, held many outreach meetings with government, civil society, industry, Indigenous Organizations, and members of academia to find areas of common interest.161 Importantly, as one key outcome of the Food Policy for Canada, the Canadian government allocated funding to a number of

  Id. at 2.  Charles Z. Levkoe & Amanda Sheedy, A People-Centered Approach to Food Policy Making: Lessons from Canada’s People’s Food Policy Project, 14 J. Hunger & Env’t Nutrition 318, 326 (2017). 156   Food Policy for Canada, supra note 149, at 3. 157  2020–21 Departmental Plan, supra note 149. 158   Agric. & Agri-Food Can., What We Heard: Consultations on a Food Policy for Canada 3, https://agriculture​.canada​.ca ​/sites​/default ​/files​/ legacy​/pack ​/pdf​/20181025​-en​.pdf. 159   Jennifer Reynolds, Food Secure Can., What’s Your Recipe: A Better Food System Final Report 15 (2018), https://foodsecurecanada​.org​/sites​/foodsecurecanada​.org​/files​/attached​_files​/ final​_ report​_whats​_you​_ recipe​_for​_a​_better​_food​_system​_fsc​_march122018​.pdf. 160   Agric. & Agri-Food Can., supra note 158, at 3; The Launch of the First “Food Policy for Canada—Everyone at the Table,” Food Secure Can. (June 17, 2019), https://foodsecurecanada​ .org​/first​-national​-food​-policy​-for​-canada. 161   Can. Fed’n of Agric., Finding Common Ground: A Collaborative Discussion on Shaping Canada’s National Food Policy 3, www​.cfa​-fca​.ca​/wp​-content​/uploads​/2017​/07​/ Finding​ -Common​-Ground​-Summary​-of​-Discussion​_ Final2​.pdf. 154 155

The future of planning for food system governance  139 programs over several years, signaling its commitment to implementing the policy.162 The initial funding allocation was over $134 million.163 Advocates in Canada have long pressed the need for democratized and coordinated food system governance, suggesting that diverse stakeholders needed to be engaged in co-developing food system policy and overseeing its implementation.164 In response to calls for democratized and coordinated food system governance, the Food Policy for Canada provides for ongoing representation of food system stakeholders through the Canadian Food Policy Advisory Council (CFPAC).165 CFPAC reports to the Minister of Agriculture and Agri-Food and will

  See William Francis Morneau, House of Commons, Investing in the Middle Class: Budget 2019, 161–63 (2019) (Can.), https://budget​.gc​.ca​/2019​/docs​/plan​/ budget​-2019​-en​.pdf; specifically, the Canadian government has allocated $50 million to the Local Food Infrastructure Fund, which is divided into two “streams”—the Infrastructure and Equipment Improvement Projects and Projects to Strengthen Local Food Systems. The first directs funds to local entities to improve infrastructure and enable equipment purchases that provide better access to local, healthy, and nutritious food. The second funds “groups of community, private, academic and other organizations” whose collective goal is to lessen food insecurity through sustainable methods by creating or bolstering local food systems. Stream one is currently in its application phase, stream two was scheduled to roll out in early 2020, but has not yet moved forward. Agric. & Agri-Food Can., Local Food Infrastructure Fund: Infrastructure and Equipment Improvement Projects Applicant Guide (2019) (Can.), https://epe​.lac​-bac​.gc​.ca​/100​/201​/301​/weekly​_acquisitions​_ list​- ef​/2019​/19​-34​/publications​.gc​.ca​/collections​/collection​_ 2019​/aac​-aafc​/A118​-54​-2019​ -eng​.pdf; $15 million has been allocated to the Northern Isolated Community Initiatives Fund to strengthen its arctic communities food security, and will be spent on locally led projects like “greenhouses, community freezers, and skills training,” as well as generally addressing challenges northerners face to healthy food access. Id. at 6. Funding will be delivered by the Northern Economic Development Agency. See Ministerial Transition Binder, Can. N. Econ. Dev. Agency (last modified Mar. 18, 2020), www​.cannor​.gc​.ca​/eng​/1580328887358​/1580328902237. $25 million was allocated to the Buy Canadian Promotion Campaign, which was designed to raise the profile of the country’s agricultural food brand and the Canadian Food Inspection Agency, in addition to expanding the use of “Product of Canada” stickers. Amanda Connolly, Ottawa Getting Ready to Launch Multimillion-dollar ‘Buy Canadian’ Food Campaign, Global News (Jan. 20, 2020, 2:34 PM), https://globalnews​.ca​/news​/6435463​/ buy​-canadian​-promotional​-campaign/. $26 million was allocated to Reducing Food Waste, 6.3 million dollars of which was set aside for the government’s self-analysis, with the remaining 20 million awarded based on proposals that effectuate waste reduction in the aforementioned sectors. This portion of the plan was scheduled to roll out in early 2020, but action is yet to be taken. See Morneau, supra. Finally, $24 million was allocated to Tackling Food Fraud. The Launch of the First “Food Policy for Canada—Everyone at the Table,” supra note 160. 163   See Morneau, supra note 162, at 161–63. 164   Food Secure Can., From Patchwork to Policy Coherence: Principles and Priorities of Canada’s National Food Policy 6 (2017) (Can.), www​.pivotandgrow​.com​/wp​-content​/uploads​ /2017​/06​/principles​-and​-priorities​-of​-canadas​-national​-food​-policy​.pdf. 165  Council members represent interests from academic, non-profit, public, and agricultural sectors to advocate for a fair, inclusive food system that also accounts for commercial and economic wellbeing. See id.; The Canadian Food Policy Advisory Council, Gov’t. of Can., https://agriculture​ .canada​.ca ​/en ​/about​-our​-department ​/ key​-departmental​-initiatives​/food​-policy​/canadian​-food​-policy​-advisory​-council. The Council’s reports are to be submitted to the Minister of Agriculture and Agri-Food to provide advice on novel challenges while enabling a persistent dialogue among all interested parties. See id. 162

140  Research handbook on international food law work with a senior-level inter-departmental committee on food policy166 or an interagency group working across government departments to ensure law and policy coordination.167 Members of the Advisory Council are appointed either after nomination or through an open application process so that all Canadians can participate in ongoing policy discussions about the food system.168 Despite these efforts, some have suggested CFPAC should be elevated to play more than an advisory role and actively contribute to reflect participatory governance principles.169 Canada’s national food policy offers a leading example of the coordinated, holistic, and participatory approach to national food law- and policy-making that is taking shape in many nations. It represents one of the most recent national food strategies, as it was published in 2019. However, as noted earlier, the policy was built on years of grassroots advocacy and work and demonstrates further evidence of the trend toward developing comprehensive national strategies to govern the food system. b. England’s national food strategy The United Kingdom has long valued comprehensive, coordinated national strategies as a tool to address complex, interrelated food system challenges. Over the past few years, the government in the UK has been in a state of transition since its withdrawal from the European Union but has continued to emphasize law and policy coordination across the food system. The pandemic and England’s radical shift in governance provided a strong impetus for a renewed commitment to national-level food system law and policymaking. The financial crises of 2007–2008 led the government in the United Kingdom to release the country’s first food strategy paper entitled Food 2030 in 2010.170 This strategy articulated  It has been suggested that the following departments could form this committee, as they all play a role in national food policy development: Agriculture and Agri-Food Canada; Canadian Food Inspection Agency; Canadian Institutes of Health Research; Canadian Northern Economic Development Agency; Employment and Social Development Canada; Environment and Climate Change Canada; Finance Canada; Fisheries and Oceans Canada; Global Affairs Canada; Health Canada; Indigenous and Northern Affairs Canada; Innovation, Science and Economic Development; Public Health Agency of Canada; Privy Council Office; Statistics Canada; and Transport Canada. Food Policy for Canada, Federal Government, York U. (Can.), https://foodpolicyforcanada​.info​ .yorku​.ca​/policy​-actors​/federal​-government/ (last visited Aug. 7, 2022). 167   Food Secure Can., supra note 164, at 5–7. 168  Criteria for selection includes factors such as: experience with resolving food-oriented opportunities and challenges through a systematic approach; success in the application of “strategic, forward looking … solutions-based” tactics when confronted with food-based opportunities and challenges; experience with building relations among stakeholders and governments both vertically and horizontally to “achieve positive results across social, health, environmental, and/or economic food-related outcomes”; and a history of credibility with the agriculture and food industries, the professional health community, indigenous communities, academic institutions and individuals and/or society at large. It is anticipated that terms on the Council will range from two to three years. See The Canadian Food Policy Advisory Council, Gov’t. of Can., www​.canada​.ca ​/en ​/campaign​/food​-policy​/the​cana​dian​food​poli​cyad​viso​r ycouncil​.html (last modified Oct. 2, 2019); Food Secure Can., supra note 164, at 6. 169   See Food Policy for Canada, Two Pieces Added to National Food Policy: Many Parts Still Missing, Yᴏʀᴋ U. (June 19, 2019) (Can.), https://foodpolicyforcanada​.info​.yorku​.ca​/2019​/06​/two​-pieces​ -added​-to​-national​-food​-policy​-many​-parts​-still​-missing/. 170   Dep’t for Env’t, Food, & Rural Affairs, HM Gov’t, Food 2030 (2010) (U.K.) [hereinafter Food 2030], https://nourisheu​.com​/wp​-content​/uploads​/2015​/02​/food2030strategy​.pdf; Tim Lang 166

The future of planning for food system governance  141 the government’s vision for a “sustainable and secure food system for 2030” with an emphasis on the UK, although it was also intended to showcase global leadership on food security and climate change challenges.171 It was largely prompted by the acknowledged lack of coordination on food system law and policymaking172 highlighted by the Cabinet Office’s Food Matters report that analyzed various related “UK government policies on food security, energy, climate change, environment, economy, technology, technology [sic], and human and animal health.”173 In 2011, the UK released its Future of Food and Farming report, which was focused on food security challenges, but concluded it was imperative for government to engage in “interconnected policy-making.”174 These reports provided the foundation of a comprehensive food strategy for the UK; however, the government subsequently abandoned the effort.175 Following the beginning of the UK’s formal withdrawal process from the European Union, the Department for Environment Food and Rural Affairs (DEFRA) Secretary of State resurrected these efforts with a focus on England in 2019 by appointing an independent lead, Henry Dimpleby, who also serves as a non-executive board member of DEFRA, to undertake the first comprehensive review of the food system in England in 75 years.176 In response to the COVID-19 pandemic, the team quickly adjusted its focus and released Part One of England’s National Food Strategy, which detailed recommendations to address urgent food system disruptions caused and exacerbated by the pandemic in conjunction with the UK’s transition from the EU.177 To review and inform the content of both parts of the Strategy, an advisory panel—comprised of food system stakeholders representing agriculture, industry, non-governmental organizations and entities, and researchers—was assembled.178 Additionally, the Food and Drink Sector Council, a collaboration between industry and government formed of senior industry officials, played a role in “support[ing] the Food Strategy as Ambassadors” and was in regular contact with Henry

et al., A Food Brexit: Time to Get Real—A Brexit Briefing, City: Univ. of London 25 (2017), https://openaccess​.city​.ac​.uk ​/id​/eprint​/18655/. 171   U.S. Dep’t. of Agric., Foreign Agric. Serv., No. UK10001, Food 2030 A UK Vision for a Secure Sustainable Food Supply 1 (2010), http://agriexchange​.apeda​.gov​.in ​/ MarketReport ​/ Reports​/ UK​%20Report​.pdf. 172   Food 2030, supra note 170, at 5. 173   Id. at 2. 174   Gov’t. Off. for Science, HM Gov’t., The Future of Food and Farming: Challenges and Choices for Global Sustainability 12 (U.K.), https://assets​.publishing​.service​.gov​.uk ​/government ​/uploads​/system ​/uploads​/attachment ​_ data ​/file​/288329​/11​-546 ​-future​- of​-food​-and​-farming​ -report​.pdf. 175  Tim Lang & Victoria Schoen, Food, the UK and the EU: Brexit or Bremain?, Food Rsch. Collaboration (2016); Lang et al., supra note 170. 176   Dep’t for Env’t, Food, & Rural Affairs, HM Gov’t, National Food Strategy: Call for Evidence (2019) (U.K.), https://consult​.defra​.gov​.uk​/agri​-food​-chain​-directorate​/national​-food​ -strategy​-call​-for​-evidence​/supporting​_documents​/nat​iona​lfoo​dstr​ateg​ycal​lfor​evidence​.pdf; Our Approach and Principle, Nat’l Food Strategy, www​.nat​iona​lfoo​dstrategy​.org​/approach​-2021/ (last visited Aug. 7, 2022). 177   Henry Dimpleby, National Food Strategy: Part One (2020), www​.nat​iona​lfoo​dstrategy​.org​/ wp​-content​/uploads​/2020​/07​/ NFS​-Part​-One​-SP​-CP​.pdf. 178   Advisory Panel, Nat’l Food Strategy, www​.nat​iona​lfoo​dstrategy​.org​/advisory​-panel​-2021/ (last visited Aug. 7, 2022).

142  Research handbook on international food law Dimpleby as the Strategy was formed.179 Given its impetus, the Part One report is centered on two main themes: (1) addressing issues faced by the UK’s most “disadvantaged children”; and (2) sovereignty, trade, and standards of quality.180 Under the first theme, Part One includes several directives focused on expanding food assistance programs.181 Under the second theme, the strategy proposed restrictions on imports that fail to conform to England’s rigorous environmental and animal welfare standards, in addition to creating a set of core certification standards developed by a newly created Trade and Agriculture Commission.182 Following the release of this report, the National Food Strategy Team began work on Part Two—The National Food Strategy Plan. Initial plans contemplated the creation of a Citizens’ Assembly composed of individuals of varying demographics to provide input and participate in the formulation of the plan. However, because of social distancing requirements and a perceived barrier that it would be too difficult to engage a Citizens’ Assembly online, the team abandoned that approach in favor of “smaller deliberative public engagements with citizens selected to reflect the demographics of the country.”183 However, older adults, individuals with disabilities, BIPOC individuals, and non-citizens have suggested their voices were not adequately represented.184 Released in July 2021, Part Two provides 14 substantive recommendations to transform England’s food system, focused largely on the causes and effects of inequities associated with diet-related disease, land use, and shifting the food culture in England to support healthy and sustainable food production and consumption.185 According to the Plan, England’s “food system of the future” has to achieve the following: (1) promote health; (2) achieve resilience to climate change and other “global shocks”; (3) regenerate nature and prevent climate change; and (4) fulfill consumer expectations related to “health, environment, and welfare.”186 Despite its far-reaching goals, some have suggested the Plan falls short both in failing to address labor inequities and the need to create a new food position or agency to enable government coordination on the food system.187 DEFRA committed to responding to the Plan with a white paper outlining the next steps for the government to be completed by January 2022.188

  Food and Drink Sector Council, Nat’l Food Strategy, www​.nat​iona​lfoo​dstrategy​.org​/fdsc​ -2021/ (last visited Aug. 7, 2022); see generally Food and Drink Sector Council, Summary of Meeting, Wednesday 1 May 2019, GOV.UK, https://webarchive​.nationalarchives​.gov​.uk​/ukgwa​ /20191205185946​/ https:/​/www​.gov​.uk ​/government​/groups​/food​-and​-drink​-sector​-council; Food and Drink Sector Council, GOV.UK, http://fdsc​.org​.uk​/fdsc​/documents​.aspx (last visited Aug. 7, 2022). 180   Dimpleby, supra note 177, at 9–10. 181   Id. 182   Id. 183   Id. at 48–49. 184  Maddie Guerlain, National Food Strategy: Who’s Missing from the Table?, Sustain (Aug. 17, 2020), www​.sustainweb​.org​/ blogs​/aug20​-national​-food​-strategy​-missing​-from​-table/. 185   Nat’l Food Strategy, The Plan (2021), www​.nat​iona​lfoo​dstrategy​.org/. 186   Id. at 144. 187  Kelly Parsons & David Barling, What Is the National Food Strategy and How Could It Change the Way England Eats?, The Conversation (July 21, 2021, 10:26 AM), https://theconversation​.com​/ what​-is​-the​-national​-food​-strategy​-and​-how​-could​-it​-change​-the​-way​-england​-eats​-164410. 188   National Food Strategy for England, GOV.UK, www​.gov​.uk​/government​/publications​/national​ -food​-strategy​-for​-england (last modified July 15, 2021). 179

The future of planning for food system governance  143 Similar to Canada’s approach, England’s process and commitment to developing a national food strategy reflect a new and growing paradigm. England’s current strategy is quite recent, but like Canada’s, it builds on years of research, planning, and organization, both internal and external to the government. The strategy similarly addresses myriad issues and regulations relevant to the food system in a comprehensive and coordinated manner building a path for improved health outcomes, resilience, sustainability, and welfare.

V. THE PATH FORWARD The global food system is contributing to crises in health, environment, and equity. As illustrated by the examples in this chapter, the future of food system governance is comprehensive, coordinated, and strategic. Even those countries that developed national strategies initially tailored to address food and nutrition security challenges have begun to do so with a focus on systems to achieve resilience, sustainability, and sovereignty. While only a small number of countries have developed comprehensive national food strategies, based on the pace of change seen in the past few years, this chapter posits that this international trend will continue to grow. As the global community responds to the COVID-19 pandemic and ongoing threats presented by climate change, the need for coordinated and comprehensive food system governance has never been so apparent. As more countries implement national food strategies, there is much to learn from peer nations regarding the elements of a process that can ensure such strategies are comprehensive, holistic, legitimate, and grounded in the needs of various stakeholders. Those best practices are evident in the national strategies researched for this chapter and based on prior research conducted by the authors, including the 2017 Blueprint for a National Food Strategy189 and the 2020 Urgent Call for a U.S. National Food Strategy.190 While focused on recommendations for the United States, the research for these two reports analyzed national strategies created in the United States that addressed other issues of national concern in addition to national food strategies developed by other countries to lay the foundation for more effective laws and policy creation, and ultimately, a stronger food system. These principles of good food law and policy governance apply globally and can be broken into four main categories. A. Leadership and Coordination As described previously, many nations employ various agencies and ministries to regulate the food system. Greater cooperation between these agencies is achieved when a national food strategy identifies all relevant agencies and requires participation in both strategy creation and implementation. For example, this could take the form of an interagency working group that would coordinate governmental entities responsible in some manner for the food system,

189

  Emily Broad Leib et al., supra note 148.   Emily M. Broad Leib et al., The Urgent Call for a U.S. National Food Strategy: Update to the Blueprint (2020), https://foo​dstr​ateg​yblu​eprint​.org​/wp​-content​/uploads​/2020​/10​/food​ -strategy​-report​-update​-2020​.pdf.

190

144  Research handbook on international food law communicate with stakeholders, and oversee the implementation of the strategy. State, local, and territorial governments should also be key partners. Because there may be many different governmental entities at the table, the strategy should also name a lead government official, office, or agency to spearhead the national food strategy. The lead official or agency should be able to convene governmental and non-governmental stakeholders, gather information through outreach and consultation, and compel other agencies to engage in the strategy creation and implementation process. In some countries, the national government employed an external individual or NGO to play a key role in strategy drafting; for example, in England, DEFRA appointed an independent leader who created an independent review body to undertake a comprehensive assessment of the food system and its needs. By contrast, Canada named the Minister of Agriculture and Agri-Food as the lead to implement its national food policy. B. Participation A successful national food strategy must have the trust and support of the public to be considered legitimate and responsive. To advance that goal, creating and implementing the national food strategy should be advised by a committee that engages stakeholders outside the federal government, including state and local government officials, as well as professionals in the public health, agricultural, food security, and environmental sectors. The countries described in this chapter illustrated various means to accomplish this goal, including a National Food and Nutrition Advisory Committee (South Africa), National Food and Nutrition Security Council (Brazil), and Food Policy Advisory Council (Canada). Additionally, the national strategy should create meaningful opportunities for broad-based public input, including through online comments, focus groups, regional summits, or other culturally appropriate means of seeking input. These mechanisms should include a particular focus on marginalized communities, such as Indigenous peoples or historically underserved populations. Canada, in particular, offered various mechanisms for public input, including an online survey, a national summit, local events, and events held in partnership with National Indigenous Organizations. C. Transparency, Accountability, and Enforceability To further build public trust and increase transparency and accountability for future governmental and private sector actors, the national food strategy should be enshrined in a written document that details priorities, goals, expected outcomes, implementation measures, and concrete metrics for measuring progress. The written strategy need not be a lengthy and unwieldy document—for example, Canada’s strategy is less than 15 pages—but it should serve as an accessible document that makes it easy for all stakeholders to see the goals and track implementation. To aid in accountability, the lead official or agency should regularly publish public-facing progress reports, as contemplated by Canada’s national food policy, to keep the public informed and hold government agencies accountable to the goals set in the strategy. In addition, to ensure the strategy is enforceable, the lead official or governmental department should have the power to compel action by other departments or ministries participating in the

The future of planning for food system governance  145 strategy to push governmental bodies to develop enforceable regulations and create opportunities for citizens to hold government accountable. D. Durability Addressing the food system holistically necessitates long-term planning. It may take many years—if not decades—for the full effects of the public health, environmental, social justice, and economic development policies that impact the food system to bear out. Yet, long-term progress can often be frustrated by political factors, such as a new administration or a lack of political will. For example, as described above, Brazil illustrates a country where a robust National Food and Nutrition Security Council was eliminated due to changes in administration. Therefore, a national food strategy must include mechanisms to endure to maintain focus on long-term priorities. At the same time, our understanding of the food system—including scientific knowledge, technology, global challenges, and consumer preferences—constantly evolves. Consequently, a national food strategy must be flexible. It must provide the space to identify changes in science, technology, markets, and consumer preferences and respond accordingly. Thus, a national food strategy should be dynamic and include a requirement that it undergoes revision and updating to reflect changing social, economic, scientific, and technological factors, as Canada’s policy envisions through its emphasis on resilience and adaptability.

VI. CONCLUSION The past two years have called into stark focus an issue advocates have been focused on for decades—the food system needs long-term, coordinated, strategic solutions to address the challenges plaguing the global community. Yet historically, most countries developed no governance structure to address the food system’s interconnected economic, health, and environmental effects, nor a plan to improve these outcomes. The trends illustrated and discussed in this chapter demonstrate that advocates, NGOs, international organizations, and governments around the world are beginning to respond. Some countries are still evolving in their approaches to food system governance—prioritizing a specific challenge yet addressing it through a systems lens that considers the interconnectedness to other major issues of national concern and develops an approach for governmental entities to coordinate law and policy responses. Other countries have recognized and embraced the tremendous value of developing informed, comprehensive national food strategies targeted at a number of goals and priorities determined by the public. These trends signal a fundamental shift in governance focused on food and agriculture that moves away from its primary emphasis on prioritizing agricultural production and increasing access to markets and toward strategic consideration of specific food system challenges with responses targeted at holistic consideration of the impacts and tradeoffs associated with solutions. A thriving global food system is essential due to its implications for the global economy, individual and communal health, environment, and social equality. As illustrated by the examples provided here, a national food strategy can take shape in several ways. Civil society can initiate the process, developing national food policy proposals to guide government, or

146  Research handbook on international food law governments can start the process independently. For countries receiving technical assistance from organizations like FAO, providers can emphasize the benefits of considering food system challenges outside the traditional silos and enable governments to develop the structures needed to successfully develop, implement, and monitor a comprehensive national food strategy. As we head out of the world’s first UN Food Systems Summit, which provides an opportunity for the global community to consider how we govern our food systems in a manner that achieves the interrelated goals and commitments of governments around the world, national food strategies can and should serve as the foundation of governance pathways to sustainable food systems.

CULTURAL PRESERVATION IN DEVELOPMENT OF INTERNATIONAL FOOD LAW

7. The food–water nexus in the post-revolutionary Mexican Supreme Court Peter L. Reich

I. INTRODUCTION This chapter shows how water law became food law in twentieth-century Mexico. The 1910 Mexican Revolution and its Constitution of 1917 addressed recurrent nationwide drought and starvation by nationalizing water and distributing land to the rural peasantry in the form of ejidos, or collective farms. The post-revolutionary process of water allocation has been analyzed by historians of Mexico on national and regional levels, but little research has investigated its legal aspects, including the role of the courts.1 The project expands this author’s previous study of post-revolutionary water decisions by the Mexican Supreme Court (the Suprema Corte de Justicia de la Nación, or SCJN) by focusing specifically on cases involving ejido water supply in the key years 1925–54 when agrarian reform was being implemented.2 It also examines archival sources on local water dispute resolution in an important state, Sinaloa. These analyses demonstrate that the Supreme Court facilitated government water allocation to craft Mexico’s food production landscape. In a broader sense, the research addresses the legal-historical question of the extent to which courts respond to their external context or autonomously follow traditional doctrine.3  For national studies, see, e.g., Luis Aboites Aguilar, El agua de la nación: una historia política de méxico 1888–1946 (1997); Gustavo Armando Ortíz Rendón, Evolución y perspectivas del marco jurídico del agua en México: nuevos retos y oportunidades para la gestión integrada del recurso hídrico, in Agua: aspectos constitucionales 17 (Emilio Rabasa & Carol B. García eds., 2011); Alejandro Tortolero Villaseñor, El agua y su historia: México y sus desafíos hacia el siglo XXI (2000); Mikael D. Wolfe, Watering The Revolution: An Environmental and Technological History of Agrarian Reform in Mexico (2017). For regional research, see, e.g., Agua e historia: experiencias regionales, siglos XIX y XX (María Concepción Martínez Omaña & Lourdes Romero Navarrete eds., 2015); Agua y tierra en México, siglos XIX y XX (2 vols.) (Antonio Escobar Ohmstede et al., eds., 2008); Rocío Castañeda González, Irrigación y reforma agraria: las comunidades de riego en del valle de Santa Rosalía, Chihuahua, 1920–1945 (1995); Lourdes Romero Navarrete, El río Nazas y los derechos de agua en México: conflicto y negociación en torno a la democracia, 1878–1939 (2007). 2  Peter L. Reich, El derecho al agua en la Suprema Corte de Justicia de la Nación durante la época posrevolucionaria: 1918–1946, in Estudios sobre la Suprema Corte de Justicia realizados en Estados Unidos 119 (William J. Suárez-Potts et al. eds., 2017). 3   Compare, e.g., Morton J. Horwitz, The Transformation of American Law, 1780–1960 (1977) (nineteenth-century US courts adjusted legal rules to facilitate contemporary economic growth) with Alan Watson, The Evolution of Western Private Law (2001) (law not shaped by societal needs but evolves from legal tradition). Mexican legal historiography contains elements of both approaches. See generally, Peter L. Reich, Recent Research on the Legal History of Modern Mexico, 23 Mexican Studies/Estudios Mexicanos 181 (2007); see, e.g., Linda Arnold, Política y Justicia: La Suprema Corte Mexicana (1824–1855) (1996). 1

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The food–water nexus in the post-revolutionary Mexican Supreme Court  149

II. THE HISTORICAL RELATIONSHIP BETWEEN WATER ACCESS AND FOOD PRODUCTION Agricultural societies commonly recognize the connection between a reliable water supply and the ability to produce sufficient food.4 Ancient Roman agricultural law prescribed different amounts of irrigation for different crops and established the principle of equitable division among farmers having access to a common source.5 Irrigators’ water rights were expressed in temporal terms (seasons and days); for example, the lease of a meadow was coordinated with periods when pear trees bloomed and neighbors were flooding their land.6 These traditions continued into medieval Europe, with technologies such as the watermill for flour production sparking conflicts over use or dues, which sometimes accelerated into peasant rebellions against landlords.7 Time-regulated irrigation in this era has been studied in Spain, where priority was assigned based on crops’ economic importance: during droughts, cereals and vegetables received water before grapevines.8 Schooled by this background, the Spanish recognized the sensitivity of the food–water nexus to particular times and places but, when colonizing Mexico, often imposed their own water-delivery methods with deleterious environmental effects. At the time of the sixteenthcentury conquest, the Aztecs grew crops in chinampas, beds on artificial lake islands—a highly productive technique.9 The Spanish introduction of domestic grazing animals (the “plague of sheep”) significantly degraded this agricultural system, eroding soil and drying up springs and wells.10 Environmental deterioration increased during the later colonial period as European methods of capturing water in reservoirs and basin-flooding in central Mexico displaced traditional rainfed corn production.11 After independence from Spain in 1821, the Mexican republic went further by draining lakes and building transportation infrastructure, such as canals and railroads, that eliminated much subsistence hunting and farming.12 New industries, notably sugar-growing in the state of Morelos, were highly irrigation-intensive. And with hacendados (owners of large estates) monopolizing water access, less financially

 Recent analyses stress the critical importance of water security to sustainable agriculture. See World Economic Forum, Water Security: The Water-Food-Energy-Climate Nexus 17–43 (Dominic Waughray ed., 2011). For a statistical overview of the contemporary links between water, food, and economic development in Latin America, see Water for Food Security and WellBeing in Latin America and the Caribbean 177–212 (Bárbara A. Wilaarts et al. eds., 2014).  5   K.D. White, Roman Farming 152–53, 157–60 (1970).  6   Cynthia Jordan Bannon, Gardens and Neighbors: Private Water Rights in Roman Italy 89 (2009).  7   Marc Bloch, Land and Work in Medieval Europe 143, 158 (1969).  8   Thomas F. Glick, Irrigation and Society in Medieval Valencia 29–30, 242, 248–49 (1970).  9   la agricultura chinampera: compilación histórica (Teresa Rojas Rabiela ed. 1993). 10   Elinor G.K. Melville, A Plague of Sheep: Environmental Consequences of the Conquest of Mexico 120–23, 154–55 (1994). 11  Martín Sánchez Rodríguez, Mexico’s Breadbasket: Agriculture and the Environment in the Bajio, in A Land Between Waters: Environmental Histories of Modern Mexico 50, 68–69 (Christopher R. Boyer ed., 2012). 12   Tortolero Villaseñor, supra note 1, at 71–73, 99.  4

150  Research handbook on international food law and politically powerful peasant villages holding property in common had trouble competing and even surviving.13

III.

DROUGHT, REVOLUTION, AND THE EJIDO SOLUTION

During the late nineteenth century, severe droughts in various regions of Mexico drastically reduced harvests (mainly corn, beans, and wheat) and caused widespread starvation.14 One of these, in the west-central state of Michoacán in 1876–77, so obliterated the ordinary yield that the population was reduced to eating cactus leaves and wild plant roots.15 The repeated food scarcity, coupled with the concentration of land and water in large estates, helped spark local uprisings by rural workers, which coalesced into the 1910 Revolution against the Porfirio Díaz dictatorship.16

How radical the Revolution actually was has been highly contested by political factions and historians, but the middle-class lawyers who drafted the Constitution of 1917 at least addressed inequities in the electoral process, labor relations, Catholic Church power, control over natural resources, and the need to remedy food shortages in the countryside.17 Land reform, a direct response to nineteenth-century elites’ land- and water monopolization at the expense of the rural masses, was a principal goal of the Revolution. Thus Article 27 of the Constitution nationalized watercourses and authorized the executive to expropriate private property and distribute the land to communities in collective ownership.18 These communal  Alejandro Tortolero Villaseñor, Water and Revolution in Morelos, 1850–1915, in A Land Between Waters: Environmental Histories of Modern Mexico 124, 125–26 (Christopher R. Boyer ed., 2012). Mexico was not alone in the nineteenth century in suffering environmental harm from accelerated agricultural development. In British-controlled India, canal irrigation to produce indigo and sugar resulted in flooding, soil hardening, and salination. Ranajit Guha, The Agrarian History of Northern India, in Ranajit Guha, The Small Voice of History: Collected Essays 119, 120 (Partha Chatterjee ed., 2009). 14   Enrique Florescano & Susan Swan, Breve historia de la sequía en México 56–57 (1995). For an analysis that relates Mexican events in this period with climate-induced droughts and food shortages worldwide, see Mike Davis, Late Victorian Holocausts: El Niño Famines and the Making of the Third World 260–62 (2001). 15   Luís González, Pueblo en vilo: microhistoria de San José de Gracia 72–73 (3rd ed. 1979). 16  Tortolero Villaseñor, supra note 13, at 126, 145. 17   See Alan Knight, Revisionism and Revolution: Mexico Compared to England and France, 134 Past & Present 159 (Feb. 1992). See also Paul J. Vanderwood, Comparing Mexican Independence with the Revolution: Causes, Concepts, and Pitfalls, in The Independence of Mexico and the Creation of the New Nation 311–22 (Jaime E. Rodríguez O. ed., 1989) (assessing longstanding societal fissures over governance, foreign investment, relative economic deprivation, and land dispossession as causes of the Revolution). 18   Constitución Política de los Estados Unidos Mexicanos [CP] Art. 27, Diario Oficial de la Federación [DOF] 05-02-17 (Mex.). “Small property” of 50 hectares (123.5 acres) or less was exempt from expropriation if distributed under previous reform laws or in undisputed ownership for more than ten years. Id. For a detailed discussion of the provision’s legislative history, see E.V. Niemeyer, Revolution at Querétaro: The Mexican Constitutional Convention of 1916– 1917 134–65 (1974). See also Kenneth L. Karst & Keith S. Rosenn, Law and Development in Latin America 276–86 (1975) (reprinting revolutionary land distribution documents that inspired Article 27, including Emiliano Zapata’s 1911 Plan of Ayala, and Venustiano Carranza’s 1915 Agrarian Law). Initially, the article’s drafters assumed that the courts could block the expropriation of private property in specific cases via amparo proceedings. Ignacio Burgoa, El amparo 13

The food–water nexus in the post-revolutionary Mexican Supreme Court  151 holdings, called ejidos in an earlier draft of the Constitution, could be created as restitution (restitución) if a community could prove it had been dispossessed or as an outright gift to the landless (dotación).19 Land rights sometimes included water rights, and from the beginning of the agrarian reform, the government promoted the construction of dams and irrigation works, although these were not always intended to benefit ejidatarios (ejido members).20 Historians of twentieth-century Mexico have divided land reform into phases, corresponding to the evolving responses of the Revolution’s various constituencies. Initially, between 1920 and 1934, only 15% of the nation’s cultivated land was transferred to ejidos.21 Arguably the presidential administrations of this era were more interested in developing capital-productive foods for export than in supporting peasant self-sufficiency.22 The more activist regime of Lázaro Cárdenas (1934–40) stepped up distribution so that by 1940 ejidos owned 47% of cultivated land and the population living on them had doubled.23 This administration saw the ejido as a means to free the rural peasantry from exploitation and starvation by creating a permanent economic base for it in the countryside.24 Indeed, between 1936 and 1938, wheat en materia agraria 35–36 (1964). For more detailed explanation of amparo and the shifting views of legislators on its use in the agrarian context see infra text accompanying notes 40–43. 19   Susan R. Walsh Sanderson, Land Reform in Mexico: 1910–1980 7 (1984). For the ejido reference, see Niemeyer, supra note 18, at 248. The standard contemporaneous works on the ejido are Eyler Newton Simpson, The Ejido: Mexico’s Way Out (1937), and Nathan L. Whetten, Rural Mexico 182–281 (1948). For a retrospective, critical view of the program, see Dana Markiewicz, The Mexican Revolution and the Limits of Agrarian Reform, 1915–1946 (1993). Regional variations in ejido distribution and management are explored in Iván Restrepo & José Sánchez Cortés, La reforma agraria en cuatro regiones: El Bajío, Michoacán, La Laguna y Tlaxcala (1972). In some areas, such as parts of rural Michoacán, collective land ownership had never existed and the ejido was seen as an alien import. González, supra note 15, at 251–52. Duncan Kennedy has claimed that the ejido was viewed as “a return to pre-Columbian modes of social organization.” Duncan Kennedy, Three Globalizations of Law and Legal Thought: 1850–2000, in The New Law and Economic Development: A Critical Appraisal 19, 49 (David M. Trubeck & Alvaro Santos eds., 2006). There is no evidence for this assertion in the literature. Rather, Article 27 was an attempt to address contemporary land, water, and food problems. See sources cited supra notes 17–19. 20  On the different categories of water grants, see Sanderson, supra note 19, at 7. Much hydraulic infrastructure in the 1920s was built to facilitate commercial agriculture rather than to water newly distributed community land. See John Tutino, The Revolutionary Capacity of Rural Communities: Ecological Autonomy and Its Demise, in Cycles of Conflict, Centuries of Change: Crisis, Reform, and Revolution in Mexico 211, 243 (Elisa Servín et al. eds., 2007). To break down who was served by this infrastructure, by 1944 approximately 60% of newly irrigated land had gone to ejidos and 40% to private owners. Whetten, supra note 19, at 172–73, 229. See also Luis Aboites Aguilar, La irrigación revolucionaria: historia del sistema nacional de riego del Río Conchos, Chihuahua, 1927–1938 (1987) (a case study of one irrigation project). 21  Jean Meyer, Revolution and Reconstruction in the 1920s, in Mexico Since Independence 201, 234 (Leslie Bethell ed., 1991). 22  For more detail on this phase see generally Jean Meyer, Estado y sociedad con Calles 85–96 (1977); Lorenzo Meyer, El conflicto social y los gobiernos del maximato 173–229 (1978). 23  Alan Knight, The Rise and Fall of Cardenismo, c. 1930–c. 1946, in Mexico Since Independence 241, 258 (Leslie Bethell ed., 1991). For more detail, see generally Luis González, Los días del Presidente Cárdenas 89–163 (1981). 24   See Knight, supra note 23, at 257; Whetten, supra note 19, at 127–28. Historians debate whether Cárdenas’s policies were a response to existing peasant mobilization or whether he promoted it to leverage political power. See Romana Falcón, El surgimiento del agrarismo cardenista—Una revision de las tesis populistas, 27 Historia Mexicana 333 (1978). However mixed the government’s

152  Research handbook on international food law production on ejidos almost doubled, corn harvests increased by 18%, and the country became self-sufficient in beans.25 By 1940, ejidos collectively accounted for 51% of the value of agricultural products nationally.26 Yet by the end of this period, problems were becoming evident as ejidatarios increasingly had to compete with private growers for credit and scarce water.27 In Juan Rulfo’s 1945 story on this era, when peasants were given land they often found, in the words of one of the disappointed, that “there isn’t even a mouthful of water.”28 Under the presidency of Manuel Ávila Camacho (1940–46), the pace of distribution slowed in the face of private-sector demands that its land be protected, weakened peasant political influence, and the government’s increased preference for export crops.29 Large commercial holdings benefited disproportionately from publicly financed dams and irrigation works in non-ejido areas.30 In 1946, Article 27 was revised to grant landowners more legal recourse against seizure, as well as increased area parameters for the “small property” exempt from conversion to ejidos.31 This change, along with the overtly developmentalist regime of Miguel Alemán (1946–52), inaugurated a period of accelerated commercial food production, including high-value fruits and vegetables destined for the United States and Mexican middle-class urban markets.32 The “Green Revolutions” of the 1950s and 1960s enhanced production even further via pesticides, intensive watering techniques, and new high-yield crops.33 However, their benefits were distributed unequally, with the bulk of price and water subsidies going to the politically

motives for agrarian reform may have been, rural peasants were strongly motivated to join ejidos due to hunger, the desire to remain in their native localities, and the need to possess land of their own (though not necessarily on an individual basis). See González, supra note 15, at 220. 25   José Antonio Martínez Álvarez, Crisis alimentarias y subsistencias populares en México: desde la época prehíspanica hasta el siglo XX 334 (summarizing government reports on crop production). 26   Cynthia Hewitt De Alcántara, La modernización de la agricultura mexicana 21 (1978) (summarizing agrarian censuses on agricultural-sector contributions to GNP). 27  Knight, supra note 23, at 260–63. 28  Juan Rulfo, Nos han dado la tierra, in Juan Rulfo, El Llano en llamas 109, 113 (Ediciones Cátedra 2017) (1945). The story, translated as “They Have Given Us the Land,” involves a group of ejidatarios granted a completely dry, useless plot that even buzzards avoid. 29  Knight, supra note 23, at 263–64, 312–13. More detailed coverage of this period can be found in Luis Medina, Del cardenismo al avilacamachismo 231–81 (1978). 30  Knight, supra note 23, at 312. 31   See Blanca Torres Ramírez, Hacia la utopia industrial 60 (1979). These reforms have been described as culminating the “rectification” of Cárdenas’s policies. See Markiewicz, supra note 19, at 67. For an explanation of the change in landowners’ remedies, see infra text accompanying note 40. 32  Peter H. Smith, Mexico Since 1946: Dynamics of an Authoritarian Regime, in Mexico Since Independence 321, 328–29, 340–41 (Leslie Bethell ed., 1991). For more on this era, see Torres Ramírez, supra note 31, at 57–86. 33   See generally Billie R. DeWalt & David Barkin, Mexico’s Two Green Revolution: Feed for Food, in Anthropology and Food Policy: Human Dimensions of Food Policy in Africa and Latin America 12 (Della E. McMillan ed., 1991). The first Green Revolution in the 1950s and 1960s focused on wheat and corn productivity; the second concentrated on sorghum in the latter decade. Wheat and sorghum yields have been substantially increased through artificial methods, while that of corn has remained primarily a subsistence, rainfed crop grown largely by ejidatarios and other small farmers without access to irrigation or modern techniques. Id. at 14–34.

The food–water nexus in the post-revolutionary Mexican Supreme Court  153 connected non-ejido exporters in the northwestern states of Sinaloa and Sonora.34 Replacing food grains with livestock feed also led to widespread malnutrition by the 1990s.35 The government’s response to these problems in 1992 was amending Article 27 to allow ejidos to privatize, make agreements with investors, and end public water subsidies in the following year.36 These two measures effectively ended agrarian reform by incentivizing the sale of communal land, which primarily benefitted export-oriented agribusiness.37 In 1994, the North American Free Trade Agreement (NAFTA) between Mexico, the United States, and Canada consolidated the primacy of food exports over locally consumed crops, spurring northward migration by farmers no longer able to support themselves in the countryside.38 Mexico’s agrarian reform, initially a response to drought-induced food scarcity, succeeded when land and water redistribution had political support among the disenfranchised rural peasantry but ultimately failed when that base’s influence waned in the face of international market pressures.39 Analysis of the judicial and administrative role in controlling access to water yields further insight into why the ejido rose and fell.

IV.

MEXICAN SUPREME COURT CASES, 1925–1954

Judicial intervention in ejido water disputes occurred when parties challenged specific government actions using the amparo remedy. Amparo is a Mexican federal court proceeding by which an individual or entity can claim that a law, court judgment, or act by a public authority should be nullified as unconstitutional; it usually has no precedential effect.40 An amparo   Id. at 20–21.   Id. at 34–39. A major reason for this shift was the pressure from wealthy and middle-class Mexicans, whose income increased substantially in the 1970s, for a meat-based diet. Id. at 34. For discussion of the reactions of peasant families and ejidatarios to increased commercialization and demographic pressure in one region, see Laura González Martínez, Respuesta campesina a la Revolución Verde en el Bajío (1990). 36  Laura Randall, Introduction, in Reforming Mexico’s Agrarian Reform 3, 8 (Laura Randall ed., 1996). See also Scott Whiteford & Francisco A. Bernal, Campesinos, Water, and the State: Different Views of La Transferencia, in Reforming Mexico’s Agrarian Reform 223 (Laura Randall ed., 1996). 37  Willem Assies and Emilio Duhau, Land Tenure and Tenure Regimes in Mexico: An Overview, in Legalising Land Rights: Local Practices, State Responses and Tenure Security in Africa, Asia and Latin America 355, 382 (Janine M. Ubink et al., 2009). For varieties of regional responses to the 1992 legislation, see The Transformation of Rural Mexico: Reforming the Ejido Sector (Wayne A. Cornelius and David Myhre eds., 1998). 38   See generally Alyshia Gálvez, Eating Nafta: Trade, Food Policies, and the Destruction Of Mexico (2018). Within food regime theory, this trend in Mexico may be situated within the emerging neoliberal, corporate domination of global agriculture, including the application of exclusive patent rights, that has been called the “third food regime.” See Gabriela Pechlaner & Gerardo Otero, The Third Food Regime: Neoliberal Globalism and Agricultural Biotechnology in North America, 48 Sociologia Ruralis 351, 362–66 (2008); Anne Saab, An International Law Approach to Food Regime Theory, 31 Leiden J. Int’l L. 251, 259 (2018). 39  For an analysis linking the trajectory of government support to abandonment of the ejido with Mexico’s need for political stability, see generally Markiewicz, supra note 19. 40   See generally Héctor Fix-Zamudio, A Brief Introduction to the Mexican Writ of Amparo, 9 Cal. W. Int’l L.J. 306 (1979). See also José María Serna de la Garza, The Concept of Jurisprudencia in Mexican Law, 1 Mexican L. Rev. 131, 137–38 (2009). After 1882, five successive amparo 34 35

154  Research handbook on international food law petition against administrative officials is initially filed in a lower federal court and can be appealed to the Supreme Court.41 Following the Revolution, agrarian laws, anticlerical restrictions, and labor legislation were all attacked via amparo, with varying degrees of success.42 Significantly, in 1931 Mexico’s Congress statutorily barred most property owners from using amparo to invalidate ejido grants and then reversed itself by amending Article 27 in 1946 to reinstate the remedy in agrarian proceedings.43 These legislative parameters served as markers of government ideological shifts, but the Supreme Court still retained considerable discretion, as will be apparent.44 The 25 Supreme Court amparo cases related to ejido water rights that appear in the Court’s official reporter, the Semanario Judicial de la Federación y su Gaceta (SJFG), during the post-revolutionary period provide a window into how the judiciary approached the various phases of agrarian reform.45 To focus on the connection between ejidos and water access, the author conducted a search of the hard copy and the online versions of the Court’s digest, looking for decisions where the words “aguas” and “ejidos” appeared in the same opinion

judgments on the same point of law established jurisprudencia (binding precedent). Id. at 132–35. In 2021 the Constitution was amended to provide that jurisprudencia would be created by majorities of eight out of 11 ministros (justices) sitting in plenary session, or four out of five in a panel. CP Art. 94, DOF 05-02-1917, últimas reformas DOF 11-03-2021 (Mex.). For more detailed historical analyses and critiques of amparo, see M.C. Mirow, Marbury in Mexico: Judicial Review’s Precocious Southern Migration, 35 Hast. Const. L.Q. 41 (2007); Stephen Zamora Et al., Mexican Law 257–74 (2004). Versions of amparo as a check on official action have been adopted in other Latin American countries, including Argentina, Brazil, Colombia, Nicaragua, and Venezuela, as well as in Spain. See generally H. Fix-Zamudio, El juicio de amparo en Latinoamérica (1978), reprinted in Latinoamérica: constitución, proceso y derechos humanos 273 (H. Fix-Zamudio ed., 1988); Eduardo Ferrer Mac-Gregor, La acción constitucional de amparo en México y España: estudio de derecho comparado (2000). A sampling of Mexican and Argentine amparo cases can be found in Karst & Rosenn, supra note 18 at 127–82. 41  The amparos discussed here are considered “indirect” because challenges to laws or official acts must initially proceed through a federal District Court before being appealed, while “direct” amparos challenging court decisions (federal or state) are filed in an appellate tribunal. See Zamora et al., supra note 40, at 266–68. The indirect/direct categories were an innovation of the Constitution of 1917. See CP Art. 107, DOF 05-02-1917 (Mex.). For discussion of this provision and subsequent amendments, see José María Serna de la Garza, The Constitution of Mexico: A Contextual Analysis 118–23 (2013). 42   See, e.g., Timothy M. James, Mexico’s Supreme Court: Between Liberal Individual and Revolutionary Social Rights, 1867–1934 75–104 (2013) (land redistribution); Peter L. Reich, Mexico’s Hidden Revolution: The Catholic Church in Law And Politics Since 1929 81v89, 114 (1995) (limitations on religion); William J. Suárez-Potts, The Making of Law: The Supreme Court and Labor Legislation in Mexico, 1875–1931 (worker organizing protections). 43   See Burgoa, supra note 18, at 47–54, 79–81. 44   See James, supra note 42, at 76–77; Markiewicz, supra note 19, at 167. During the period under discussion the Court had some institutional independence from the executive and legislative branches: although ministros, or justices, were appointed by the President and confirmed by the Senate, they held life tenure except from 1934 to 1944, when they had six-year terms. SERNA DE LA GARZA, supra note 41, at 106–09. 45  Copies of SJFG judgments were obtained from the University of Arizona Law Library, the Los Angeles County Law Library, and the UCLA Law Library.

The food–water nexus in the post-revolutionary Mexican Supreme Court  155 beginning in 1918.46 The published opinions retrieved cover the years 1925–54. The number of ejido water supply cases dropped significantly after 1948, and none existed from the mid1950s through the late 1960s when in an increasingly privatized food production environment, landowners no longer needed to litigate against ejidatarios over water. Amparo petitions to the Court came from various states, their geography and crops affecting the amount of water necessary for irrigation. Arid northern Mexico has traditionally required substantially more irrigation than the South, with the central region somewhere in between.47 During the period studied, farm products in the North included beef, wheat, vegetables, poultry, sugar, and cotton; the Center grew beans, corn, agave, and wheat; and the South raised coffee, rice, tobacco, henequen, and bananas.48 These variations affected the relative competition for water, with ejidos concentrated in the Center vying with a range of private owners of various-sized plots, while the North, with fewer ejidos but also less water, became the recipient of government infrastructure primarily benefitting larger estates.49 Of the 25 case decisions surveyed, 13 favored an ejido position, and the others found for private property owners. Towards the end of the period, studied pro-landowner results became predominant, although, throughout these years, the Court consistently manifested concerns about economic efficiency and accepted legal doctrine. In a general sense, the trend in the case law reflects the Mexican Revolution’s later move to privatize water rights and increase food production. Pro-Ejido Decisions Beginning with the judgments favoring ejidos, in Espinosa, Agustín (decisions are named for the complainant), a 1925 case from the Estado de México (the State of Mexico, surrounding but not including Mexico City), the Court’s Pleno (plenary panel of all ministros, or justices) unanimously denied the amparo petition of a hacienda owner challenging the National Agrarian Commission’s grant of a local stream to the ejido of San Lorenzo Octeyuru. The opinion stated that both “society and the state are very interested in the resolution of the agrarian problem.” Nevertheless, the hacienda was allowed to continue using water not affected by the ejido grant.50 The following year, in Fábrica de Papel de San Rafael y Anexas, S.A., another case arising from the Estado de México, the Pleno unanimously denied a paper manufacturing company’s  Digest topic indices appear in the SJFG’s hard copy volumes, and the online digest is searchable by key word in https://sjf​.scjn​.gob​.mx under “Búsqueda de tesis.” The author eliminated decisions in which “aguas” and “ejidos” were merely cited in statutory language but not addressed as substantively linked. 47   See James B. Pick & Edgar W. Butler, The Mexico Handbook: Economic and Demographic Maps And Statistics 251 (1994) (map of regions’ irrigable land areas). See also David Barkin & Timothy King, Regional Economic Development: The River Basin Approach in Mexico 41–71 (1970) (discussing variations in development potential). 48   See generally Claude Bataillon, Las regiones geográficas de México (3rd ed. 1976) (mapping crops grown by region). 49   See Meyer, supra note 21, at 234; Tortolero Villaseñor, supra note 1, at 100–03. 50  Amparo administrativo. Revisión del incidente de suspension. Pleno de la SCJN, SJFG, Quinta Época, tomo XVI, febrero de 1925, Tesis 1111/20, Página 430 (Mex.). The Comisión Nacional Agraria (National Agrarian Commission) had authority to recommend to the president that ejido grants be approved, so was often the target of amparo requests. See Simpson, supra note 19, at 58. 46

156  Research handbook on international food law amparo claim that water granted to several ejidos for times during the week when its factory was not operating constituted an unconstitutional expropriation. Affirming that “the settlement of the agrarian problem is of vital importance to the entire nation, and the rightful appropriation of waters is indispensable to resolve this problem,” the Court also refused to indemnify the company.51 In a further 1926 case, again from the Estado de México, Albarrán, Viuda de Silva, Josefa, the Pleno unanimously denied the complainant’s amparo challenge to the grant of a spring to the ejido of Santiago Yeché. And again, the ministros were careful to maintain landowner rights not interfering with those of the ejido, in this case, to maguey (agave) already planted and unused spring water.52 Vives, Antonio, y Coagraviados, a 1928 dispute from the central state of San Luis Potosí, gave the Pleno another opportunity to deny, unanimously, an amparo request. An hacendado complained that the National Agrarian Commission wrongfully approved irrigation rights for the Palo Seco ejido. As in previous cases, the Court rejected the requested amparo but preserved the landowner’s right to irrigate using excess water.53 A more complicated dispute arose in Hidalgo, a central state, in 1929. In Sociedad de Liquidación Martínez de la Concha y Zenil, an hacendado’s creditors challenged the Secretary of Agriculture for reducing the water quantity that could be taken to serve the hacienda from an irrigation canal linked to the Tepeji River. A federal district judge granted amparo, but in a 3/2 split decision, a panel of the Supreme Court reversed. The majority stated that the Secretary did not deprive the complainants of property or possession because the reduction corresponded to the proportion of land transferred from the hacienda to the ejido.54 The Court again reversed a lower ruling in a 1931 decision, Amezcua, Viuda de Cobía, Encarnación, this time unanimously. After the state authorities in Michoacán (Center-west) and the National Agrarian Commission allowed the ejido of Curimeo water rights to a local river and a spring arising on the complainant’s land, the District Judge issued an amparo as to the latter. But the Supreme Court panel disagreed, considering that the same legal principle “applied to springs as to rivers.” That is, the landowner had to have acquired the water by accession (natural increase), which the Court held had not occurred.55 Less contentious was a 1936 judgment, Agraz, Viuda de Baez, Virginia y Coagraviados, in which the Secretary of Agriculture refused to confirm the complainant’s water rights because they had been awarded to the ejido of Acatlán de Juárez, Jalisco (Center-west) by presidential resolution. The Supreme Court panel agreed with the lower tribunal’s denial of the amparo

 Amparo administrativo en revisión. Pleno de la SCJN, SJFG, Quinta Época, tomo XIX, Agosto de 1926, Tesis 1322/24, Página 266 (Mex.). The “agrarian problem” appears to refer to the national question of land inequity; redistribution was pointless without ejidos being supplied with the water they needed for agricultural production. 52  Amparo administrativo en revisión. Pleno de la SCJN, SJFG, Quinta Época, tomo XIX, Septiembre de 1926, Tesis sin número, Página 419 (Mex.). 53  Amparo administrativo. Revisión del incidente de suspension. Pleno de la SCJN, SJFG, Quinta Época, tomo XXII, abril de 1928, Tesis 883/28, Página 942 (Mex.). 54  Amparo administrativo en revisión. Segunda Sala de la SCJN, SJFG, Quinta Época, tomo XXV, enero de 1929, Tesis 1374/21, Página 19 (Mex.). 55  Amparo administrativo en revisión. Segunda Sala de la SCJN, SJFG, Quinta Época, tomo XXXI, enero de 1931, Tesis 3583/28, Página 260 (Mex.). 51

The food–water nexus in the post-revolutionary Mexican Supreme Court  157 and unanimously held that “supposed rights to private property must give way to Article 27’s absolute precept regarding agrarian matters.”56 In Compañía Colonizadora de Tlahualillo, S.A., a conflict between a cotton-growing company and a Ciudad Lerdo, Durango (Northwest), the District Court issued an amparo against the authorities’ prohibiting non-ejido use of the Nazas River for irrigation. A Supreme Court panel reversed unanimously in 1936, ruling that protecting the ejidatarios was of “particular interest to society and the State.”57 As the Cárdenas administration continued to expropriate haciendas, especially foreign ones, two U.S. companies whose holdings in the northeastern border state of Tamaulipas had been seized challenged the government’s refusal to indemnify them. Complainants in Mexican Realty Company & Mexican Land Company, a 1939 case, requested payment in the form of local water use, but the District Court denied amparo, and a Supreme Court panel unanimously affirmed the ruling. In its opinion, the latter emphasized the importance of preserving ejido water rights.58 The Court maintained its generally pro-ejido stance during this period in another 1939 decision, Córdova, Elías C., from San Luis Potosí (Center). A lower judge denied amparo, and a Supreme Court panel unanimously agreed when authorities allowed ejidatarios to draw from a reservoir on the complainant’s property. The Court ruled that the government could regulate the amount of water available for irrigation, and in this case, the landowner still had “adequate use” for his needs.59 A similar case came to the Court the following year from the central state of Querétaro, Loyola de Vicente, Consuelo y Coagraviados. The Agrarian Department granted an ejido 21% of the water behind a dam owned by the complainant, and the latter’s amparo petition was rejected by both the District and Supreme Courts. In their unanimous opinion, the panel of ministros cited the current version of Article 27, which barred amparos against ejido grants, and emphasized the assumption that all waters were considered federal unless otherwise allocated.60 Sometimes the Court sided with an ejido on a narrow, technical basis, as in the 1943 decision in Sainz Trinidad, Irene y Coagraviados. Puebla (Center) hacendado José Antonio Sainz brought an amparo action on behalf of his minor daughters, who were to inherit his estate, claiming that they owned seven days per month of water seepage which the state Agrarian Commission had wrongfully granted to two nearby ejidos. The District Court and a unanimous Supreme Court panel denied the petition on the ground that, since the president could still modify the Commission’s decree, the order was only “provisional” and not yet subject to

 Amparo administrative en revisión. Segunda Sala de la SCJN, SJFG, Quinta Época, tomo LXIX, Agosto de 1936, Tesis 2536/75, Página 1141 (Mex.). 57  Amparo administrativo. Revisión incidente de suspension, Primera Sala de la SCJN, SJFG, Quinta Época, tomo L, diciembre de 1936, Tesis 563/23, Página 1852 (Mex.). For further context on disputes over the Nazas River in the Laguna District straddling the northern states of Coahuila and Durango, see generally Romero Navarrete, supra note 1; Wolfe, supra note 1. 58  Amparo administrativo en revisión. Segunda Sala de la SCJN, SJFG, tomo LIX, enero de 1939, Tesis 8080/38, Página 728 (Mex.). 59  Amparo administrativo. Revisión incidente de suspension. Primera Sala de la SCJN, SJFG, Quinta Época, tomo LIX, febrero de 1939, Tesis 6433/38, Página 1046 (Mex.). 60  Amparo administrativo. Revisión del auto que desecho la demanda. Segunda Sala de la SCJN, SJFG, Quinta Época, tomo LXX, abril de 1940, Tesis 1642/39, Página 4749 (Mex.). 56

158  Research handbook on international food law challenge by amparo.61 Such modifications were extremely unlikely, but this ripeness argument was a way the Court could easily dispose of the matter and achieve a desired result. Culminating its series of pro-ejido decisions in the post-revolutionary decades, the Court ruled on an unusual amparo request from Puebla (Center), brought by a member of an ejido which had allowed him an extra six water hours for irrigation, only to have the municipal authorities prevent the allocation. In Garibay, César, the District Court sided with the town. But in 1944, a Supreme Court panel unanimously reversed, granting the amparo because the ejidatario’s water turn constituted property of which the city had dispossessed him.62 In fact, by the mid-1940s, ejidos were beginning to incentivize their members’ entrepreneurial initiative, so this judgment simultaneously promoted their collective water rights and economic efficiency. Anti-Ejido Decisions Judgments disfavoring ejidos began appearing in the 1920s alongside pro-ejido ones, occurred more frequently towards the end of the period studied, and usually relied on economic and equitable arguments rather than agrarian policy. As early as 1926, the case of Succesiones acumuladas de Rangel, Francisco y Gómez de Rangel, Concepción exemplified this trend. Here, state and local authorities awarded an Aguascalientes (Center) ejido ownership of certain private reservoirs and canals, enabling it to irrigate non-ejido plots to the detriment of a neighboring hacienda. The District Court granted amparo, and the Supreme Court’s plenary panel affirmed in a seven-to-three judgment. The SCJN majority held that the infrastructure grant exceeded the ejido’s current needs, so it harmed its neighbor’s interests unnecessarily, while the dissenters thought the state decree was only provisional and could not yet be challenged.63 Most of the ministros thus evinced a willingness to give a landowner the benefit of the doubt and construe the ejido grant narrowly in the interests of efficiency and fairness. Rather than a conflict over actual water usage, García Pimentel, Luis, a Morelos (Center) case in 1928, presented a starker contrast between water necessity and non-necessity. State and local officials had ordered the transfer of a canal from which the complainant was irrigating to an ejido, drawing sufficient water from another source. Both the District and Supreme Courts granted the amparo petition, the latter unanimously.64 Similarly, in Sucesiones de Cosío, Francisco G. de y otros from Querétaro (Center), the National Agrarian Commission gave spring water with which complainants were irrigating to an ejido with no immediate plan to do so. Although the District Court denied amparo, in 1930, a Supreme Court panel unanimously reversed. The ministros grounded their judgment on the technicality that at the time

 Amparo administrativo en revisión. Segunda Sala de la SCJN, SJFG, Quinta Época, tomo LXXV, febrero de 1943, Tesis 10125/42, Página 4824 (Mex.). 62  Amparo civil. Revisión del incidente de suspensión. Primera Sala de la SCJN, SJFG, Quinta Época, tomo LXXX, abril de 1944, Tesis 9138/43, Página 707 (Mex.). 63  Amparo administrativo en revisión. Pleno de la SCJN, SJFG, tomo XVIII, marzo de 1926, Tesis 2697/25, Página 651 (Mex.). 64  Amparo administrativo. Revisión del incidente de suspensión. Pleno de la SCJN, SJFG, tomo XXIII, junio de 1928, Tesis sin número, Página 415 (Mex.). 61

The food–water nexus in the post-revolutionary Mexican Supreme Court  159 of the grant, only the president and the state government were empowered to transfer water. But the result clearly favored efficient use.65 The Court combined its efficiency concern with promoting agricultural productivity in Valle, Viuda de Mier y Terán, María del, a 1931 Estado de México (Center) decision. National, state, and local authorities granted spring water being used by the complainant to an ejido, even though irrigating the latter’s hilly terrain would require “very costly and antieconomic” construction of pumps and an aqueduct. Further, the landowner needed considerable water to support its newly planted wheat, which demanded far more irrigation than corn. Although the District Court denied amparo, the Supreme Court’s panel reversed unanimously. In the opinion’s language, sustaining the order would provide “practically no benefit” to the ejido but “would cause notable prejudice to the private properties.”66 During the later years of the Cárdenas presidency, the Court became increasingly sympathetic to developmentalist arguments, calibrating its holdings when both ejidos and landowners were actively using water. In Vega Almada, José de la, a 1937 case from Sinaloa (Northwest), the National Agrarian Commission and its state representative confirmed an ejido’s grant of water for irrigation, which flow was then used to power the complainant’s sugar mill. The District Court issued an amparo guaranteeing water to the landowner’s entire tract, but the Supreme Court unanimously limited the order to ensure supply to the portion where the mill was operating, but still allowing the ejido to continue irrigating with the remainder.67 For the Court, promoting agricultural production justified depriving an ejido of some of its water, but not what was unnecessary for that goal. In a reprise of the medieval disputes over water and grain milling, local authorities in La Laguna, Coahuila (North) ordered a landowner’s noria (watermill) conveyed to an ejido, initiating González Fariño, Eduardo in 1938.68 Although the District Court refused to award amparo, a Supreme Court panel unanimously reversed, considering that the owner here fell within the exemption for “small proprietors” under the then-current version of Article 27.69 A watermill in use counted as a valuable economic activity that would not benefit the nation more if an ejido rather than a private owner operated it. An unusual 1939 case involving an ejido seeking amparo against the government, Comisariado Ejidal del Poblado de “Emiliano Zapata” y Coagraviados, involved a spring in Hidalgo (Center). The Secretary of Agriculture and the town council of Tulancingo had declared it to be “national waters” and ordered the construction of capture works to benefit the owner of the land where the water arose. The District Court denied amparo on two grounds: the body representing the ejido was not properly constituted, and the ejido’s original title had not included the spring, so it could not claim the water. A Supreme Court panel unanimously

 Amparo administrativo en revisión. Segunda Sala de la SCJN, SJFG, Quinta Época, tomo XXX, septiembre de 1930, Tesis 3450/24, Página 559 (Mex.). 66  Amparo administrativo en revisión. Segunda Sala de la SCJN, SJFG, tomo XXXI, enero de 1931, Tesis 2125/27, Página 253 (Mex.). 67  Amparo administrativo en revisión. Segunda Sala de la SCJN, SJFG, tomo LI, enero de 1937, Tesis 1327/36, Página 72 (Mex.). 68   See Bloch, supra note 7. 69  Amparo administrativo. Revisión del auto que desecho la demanda. Segunda Sala de la SCJN, SJFG, tomo LV, marzo de 1938, Tesis 5035/37, Página 3109 (Mex.). 65

160  Research handbook on international food law affirmed, in line with its greater readiness to construe ejido grants narrowly in favor of private owners.70 In Herrejón, Francisco y Sucesores, a 1940 case from Michoacán (Center-west), the Court explicitly elevated landowners’ rights. The Secretary of Agriculture ordered the owner of a sugar plantation near Morelia, the state capital, to cease operating his mill using the Huarimeo River because its water was part of an ejido grant. Although the District Judge recognized this title and refused the amparo petition, a Supreme Court panel reversed unanimously because the ejido had not presented any proof of prejudice, and it was necessary to respect “private property as set out in the Constitution.”71 Here the panel backed up the ideology of efficient use with legal principles. After the Cárdenas era, the Court intervened even more aggressively to limit ejido water access. A 1943 dispute from Colima (Center-west), “Vergara y Rangel,” S. en N.C., arose when state authorities attempted to enforce an agreement between an agricultural company and an ejido to allow the latter to divert the entire flow of three streams. The District Court granted amparo, and a Supreme Court panel unanimously assented, holding that the order deprived the company of the water volume to which it had confirmed title.72 In this case, the parties’ consent (given, perhaps, because of their relative ability to utilize the rivers’ flow) yielded to the Court’s preference for private-sector development. By 1948, water privatization was in full swing. In Comisariado Ejidal del Poblado “La Plata,” a Durango (Northwest) ejido sought amparo against national and local hydraulic authorities for cutting off its irrigation access to the Nazas and Aguanaval Rivers. The District Court denied the request, and a Supreme Court panel agreed unanimously: the ejido’s grant did not include any water title, its property was not classified as irrigable but rather as “working pasture and wastelands,” and it had taken stormwater overflow from the rivers only in a “temporary, sporadic, and precarious fashion.” With the completion of the Lázaro Cárdenas dam on the Nazas in 1946, the government solely managed water allocation in the Laguna sector, and the ejido’s occasional use did not establish a permanent right.73 The judgment demonstrates the Court’s complete reversal of the pro-ejido stance seen in its 1936 Tlahualillo decision regarding the Laguna; the Cárdenas administration had initiated the dam that year to benefit ejidatarios, but the developmentalist Alemán regime turned it to the advantage of landowners.74 A pair of 1954 cases from Durango (Northwest) and San Luis Potosí (Center), respectively, were the last ejido water matters the Supreme Court decided during the period of agrarian reform. In Parra, Rafael de la, the Court unanimously issued an amparo against officials who permitted an ejido to occupy land and divert water not part of its grant, to the prejudice of a neighboring landowner, where the ejido had not acquired any prior servitude for these

 Amparo administrativo en revisión. Segunda Sala de la SCJN, SJFG, Quinta Época, tomo LX, abril de 1939, Tesis 1022/39, Página 722 (Mex.). 71  Amparo administrativo. Revisión incidente de suspensión. Segunda Sala de la SCJN, SJFG, Quinta Época, tomo LXV, julio de 1940, Tesis 1209/40, Página 102 (Mex.). 72  Amparo administrativo en revisión. Segunda Sala de la SCJN, SJFG, Quinta Época, tomo LXXV, marzo de 1943, Tesis 3053/42, Página 6377 (Mex.). 73  Amparo administrativo en revisión. Segunda Sala de la SCJN, SJFG, Quinta Época, tomo XCVII, septiembre de 1948, Tesis 2451/48, Página 2300 (Mex.). 74   See Wolfe, supra note 1, at 221–22. 70

The food–water nexus in the post-revolutionary Mexican Supreme Court  161 uses.75 In the other decision, Rodríguez Cabo, José y Coagraviados, the Court granted an amparo against authorities allowing ejidatarios to interfere with the construction and repair of hydraulic works on the Choy River. The Court’s panel ruled unanimously that the Agrarian Department could not impose an additional requirement of ejido consent for an approved infrastructure project to move forward.76 These holdings show that the Court’s bureaucratic oversight no longer permitted officials any discretion to favor ejidos during the nation’s transition from communal to corporate water control and, hence, food production. This lack of legal traction for pro-ejido arguments explains why such water matters dropped off the Supreme Court’s docket after the mid-1950s—private landowners now benefitted from a more favorable regulatory environment. Reviewing the Supreme Court’s ejido water cases indicates that they trended pro-ejido in the 1920s and 1930s and became increasingly pro-landowner in the 1940s and 1950s. The regions where disputes were appealed seem not to correlate significantly with their substantive resolution. Of the pro-ejido decisions, 12 came from the Center and one from the North, while the pro-landowner judgments responded to eight and four requests from those areas, respectively. This slight difference in ratio may be explained by the North’s more agribusiness orientation—larger estates and fewer ejidos. Still, historical context mattered a great deal concerning the results, and geographical differences were not as much. Notably, none of the cases retrieved arose in the South; arguably, that region’s numerous rivers and heavy rainfall made water controversies less likely, or in remoter areas, disputes may have been settled locally without recourse to the formal legal system. In all the reviewed cases, the Court seems to have weighted agrarian policy, economic efficiency, and legal doctrine more to suit the phase of the land reform process than the location. Nor did any decisions cite previous holdings that would have triggered jurisprudencia or binding precedent once five consistent rulings had been made.77 These findings bear out the observation of Mexican historian Daniel Cosío Villegas regarding the Constitution of 1917 generally: despite that revolutionary document’s adding several new legal rights, “the judicial power has rarely felt free and distinct from the executive.”78

V. WATER ADMINISTRATION AND FOOD PRODUCTION IN SINALOA Having surveyed Supreme Court decisions on ejido water access permits zeroing in below the judicial level by examining archival records revealing the importance of local administrators in one state. Sinaloa, in mostly arid northwestern Mexico, is striated with 11 fertile river valleys, which became the locus of foreign investment in cotton, sugar, tobacco, and other export crops.79 As in other states, the Revolution arose against a background of deplorable  Amparo administrativo en revisión. Segunda Sala de la SCJN, SJFG, Quinta Época, tomo CXX, junio de 1954, Tesis 3584/53, Página 883 (Mex.). 76  Amparo administrativo en revisión. Segunda Sala de la SCJN, SJFG, Quinta Época, tomo CXXXI, diciembre de 1954, Tesis 4126/53, Página 1578 (Mex.). 77  See explanation of precedent, supra note 40. 78   Daniel Cosío Villegas, 1 Ensayos y notas 374 (1966). 79   See Sergio Ortega Noriega, Historia breve de Sinaloa 15–27 (3rd ed. 2011); Arturo Carrillo Rojas, Situación de la agroindustria en Sinaloa de 1911 a 1940, in Debates sobre el noroeste 75

162  Research handbook on international food law rural and urban labor conditions but included a rebellion by the indigenous Mayo people, who allied themselves with revolutionary leader Francisco (“Pancho”) Villa before being crushed by the victorious constitutionalist faction.80 Under the Cárdenas presidency’s pro-subsistence agrarian policies, many large haciendas were expropriated and transferred to ejidos, although landowners often could sell to other private parties.81 By the 1940s, Sinaloa’s agricultural economy was primarily export-oriented, with sugar, garbanzos, vegetables, and other food products grown for the US market.82 In the next several decades, the state received more federal investment in hydraulic infrastructure than any other, and by 2012 contained 40% of all irrigated land in the country.83 Sinaloa documents from the Archivo Histórico de Agua (AHA), Mexico’s national repository of manuscript sources on water, shed light on how agrarian reform was managed at the local administrative level.84 Twelve of its 381 items, administrative proceedings covering roughly the same period as the judicial decisions, deal with many of the same issues and occasionally the same stakeholders that figure in the cases. They also reveal similar trends in the regulation of ejido water access. Initially, the government (mainly at the national level) actively helped ensure water supplies to Sinaloa users. In 1920, one of the expropriated haciendas, El Aguila, was partially converted into an ejido, and a manuscript map displays different land use categories according to readiness for crop planting: ploughed, cross-ploughed, and irrigated.85 Such property distribution aimed to facilitate subsistence food production, so in a 1924 order, the Secretary of Agriculture required a local landowner to cease requiring neighboring ejidatarios to sell him an “exaggerated” portion of their harvest in exchange for water access via a canal he controlled.86 Similarly, four years later, the Secretary ordered the Almada Company (a party in the 1937 Vega Almada mill case discussed earlier) to prevent a river on its property from changing course and interfering with a canal supplying smaller irrigators, both ejidos and others.87 An engineer’s report setting forth technical reasoning supplemented the requirement.88 By the late 1920s, the national government was closely monitoring the water supply for Sinaloa agriculture to respond to ejidatarios’ needs. For example, an Agriculture Department inspector sent an extensive report to his superiors in 1929 detailing available infrastructure

de México: agricultura, empresas y banca (1906–1940) 109, 132–33 (Jesús Méndez Reyes & Gustavo Aguilar Aguilar eds., 2012). 80   See Ortega Noriega, supra note 79, at 263–74. 81   See id. at 283–87; César Aguilar Soto, Marco jurídico, política agrarian y sistemas de propiedad en Sinaloa (1915–1934), in Debates sobre el noroeste de México: agricultura, empresas y banca (1906–1940) 137, 152 (Jesús Méndez Reyes & Gustavo Aguilar Aguilar eds., 2012). 82  María de Jesús López López, Agricultura de irrigación y empresas en Sinaloa (1930–1940), in Debates sobre el noroeste de México: agricultura, empresas y banca (1906–1940) 177, 178 (Jesús Méndez Reyes & Gustavo Aguilar Aguilar eds. 2012). 83   Id. at 178–85. 84   Historia del agua en Sinaloa, Siglo XX: Catálogo de documentos históricos del Archivo Histórico Del Agua (Arturo Carrillo Rojas et al. eds., CD-ROM 2012). 85  AHA, Aprovechamientos Superficiales, caja 152, expediente 3623, f. 37 (1920). 86  AHA, Aprovechamientos Superficiales, caja 1126, expediente 15809, f. 194 (1924). 87  AHA, Aprovechamientos Superficiales, caja 522, expediente 8064, fs. 389–90 (1928). For the Vega Almada decision, see supra text accompanying note 67. 88  AHA, Aprovechamientos Superficiales, caja 975, expediente 13731, fs. 477–83 (1928).

The food–water nexus in the post-revolutionary Mexican Supreme Court  163 and labor conditions in the Río San Lorenzo Valley.89 Following up the next year, an engineer analyzed the water necessary to support various crops for each canal in the area and feasible reductions in times of drought.90 Once Lázaro Cárdenas took power, the administration pursued a more aggressive policy supporting ejido irrigation. In 1935 the National Agrarian Credit Bank (a government financial institution) requested a technical study of the dam and canal construction necessary to provide water to six ejidos in the Río Presidio Valley.91 Ejidatarios continued to find a receptive ear to their requests. In 1939, the Cultivadores de Caña de Azucar, a group of sugargrowing collectives, petitioned the president to expropriate a canal belonging to the Almada family, arguing that “we do not doubt that as always you try to protect the interests of the working class of the countryside.”92 And indeed, most of the Almada sugar hacienda was ultimately seized and distributed.93 Manifesting the government’s pro-ejido plans, a lengthy 1940 internal memorandum laid out the legal rights and water needs of seven communities in the Río Sinaloa Valley and the infrastructure available to address them.94 However, the 1940s began an era of official withdrawal from ensuring water access and promotion of private irrigators’ agreements. With less direct government aid, groups of users, including ejidos, created irrigation districts for self-governance and financing improvements, as seen in an agreement signed in Bamoa, Sinaloa, in 1942.95 Secretary of Agriculture Marte R. Gómez encouraged such self-help with economics in mind when he formed a 1946 commission composed of Sinaloa ejidatarios and private owners to “better use waters, more efficiently manage irrigation works, adequately conserve, and protect rural workers’ rights.”96 A 1950 water-sharing agreement in the Río Sinaloa Valley among local users, with provisions for drought reductions, exemplifies this shift from public to private allocation.97 Sinaloa’s administrative records demonstrate a trajectory from the government’s promotion of ejido water access to its encouragement of voluntary, private-sector distribution rights similar to that reflected in the Supreme Court cases. They thus show that the Court did not operate in isolation and that legal and local officials’ actions were mutually reinforcing within the changing political context of Mexican agrarian reform. Further, certain solutions were not always offered through judicial proceedings: In Vergara y Rangel, the Court blocked an ejido-landowner water-sharing contract, an example of an informal, local arrangement.98 This flexibility allowed stakeholders to adjust their water demands and produce food crops according to conditions only sometimes recognized or responded to by the legal system.

 AHA, Aprovechamientos Superficiales, caja 4886, expediente 68126, fs. 320–25 (1929).  AHA, Aprovechamientos Superficiales, caja 540, expediente 8121, fs. 303–22 (1930). 91  AHA, Aprovechamientos Superficiales, caja 1976, expediente 29605, fs. 2–8 (1935). 92  AHA, Aprovechamientos Superficiales, caja 979, expediente 13782, fs. 93–99 (1939). 93   See López, supra note 82, at 183. 94  AHA, Aprovechamientos Superficiales, caja 1125, expediente 15807, fs. 352–82 (1940). 95  AHA, Aprovechamientos Superficiales, caja 546, expediente 8139, fs. 209–19 (1942). 96  AHA, Aprovechamientos Superficiales, caja 553, expediente 8176, f. 198 (1946). 97  AHA, Approvechamientos Superficiales, caja 546, expediente 8139, fs. 343–44 (1950). 98   See supra text accompanying note 72. Compare Reich, supra note 42 (extralegal religious tolerance existed locally despite official post-revolutionary anticlericalism). 89

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VI. CONCLUSION The Supreme Court decisions examined in this chapter illustrate the relationship between Mexico’s post-revolutionary jurisprudence and the phases of its agrarian reform. The Court’s judgments tilted in favor of ejido water access in the 1920s and 1930s and changed course to privilege agricultural privatization in the 1940s and 1950s. The phases of land reform seem to have been more important in this shift than were the cases’ regions of origin. Some opinions explicitly referred to legal doctrines (such as prescription) and specific constitutional or statutory language, but these citations still tended to accord with the ministros’ evolving policy preferences. The Court also omitted mention of any prior rulings that would have created precedent after five similar judgments. In the debate over the relative impact of historical context versus legal autonomy, the former seems to have had the edge. The administrative record seen in the Sinaloa documents reinforced the judicial approach with another decision-making level—one more flexible in addressing local water-sharing necessities. By the mid-1950s, both these institutions had set the stage for Mexico’s current emphasis on food production for export, along with its consequences of water distribution inequities and environmental degradation.99 Additional research, particularly in manuscript case files, could unearth specific regional factors and disputes at play but not obvious from the published judgments.100 As well, useful comparisons might be made to the relationship between water and food in agrarian reform elsewhere, particularly in twentieth-century Latin America. For example, Colombia, beginning in the 1930s, and Peru, from 1969 onward, pursued land expropriation, taxation, and settlement programs, including government efforts to ensure water access.101 Finally, examining the effects of climate change on different Latin American ecosystems may illustrate the

  See generally Christian Zlolniski, Made in Baja: The Lives of Farmworkers and Growers Behind Mexico’s Transnational Agricultural Boom (2019) (discussing the contemporary agricultural economy of the Northwest, dominated by large agribusiness). 100  The Archivo Central Histórico de la Suprema Corte de Justicia de la Nación holds these records. For examples of research based in part on this material, see Kif Augustine-Adams, Por un solo voto: Quong Fat y el amparo de personas de origen chino ante la Suprema Corte de Justicia de la Nación, de 1917 a 1932. Los casos de la Ley de trabajo y prevision social del Estado de Sonora, in Estudios sobre la Suprema Corte de Justicia, supra note 2, at 53; María José García Gómez, Seguridad jurídica y pequeña propiedad en los amparos revisados por la Suprema Corte de Justicia de la Nación (1870–1976), in EL MUNDO DE DERECHO: APROXIMACIONES A LA CULTURA JURÍDICA NOVOHISPANA Y MEXICANA (SIGLOS XIX Y XX) 415 (Jaime Del Arenal & Elisa Speckman Guerra eds., 2009); James, supra note 42; Suárez-Potts, supra note 42. 101  Both nations built massive hydraulic infrastructure projects for irrigation and power generation. See Albert O. Hirschman, Journeys Toward Progress: Studies of Economic PolicyMaking in Latin America 135–38 (W.W. Norton & Co. 1973) (1963) (Cauca Valley, Colombia); David W. Guillet, Covering Ground: Communal Water Management and the State in the Peruvian Highlands 99–116 (1992) (Colca Valley, Peru). Note political economist Albert O. Hirschman’s caveat that not all river valley development schemes can be easily compared, due to factors unique to each situation, such as available raw materials and market demand. Albert O. Hirschman, Development Projects Observed 19, 182 (Brookings Institution Press 1995) (1967). See also Peter L. Reich, Comparative Latin American and United States Water Law, in Research handbook in comparative environmental law (forthcoming, 2024) (tracing ideological trends in seven Latin American countries’ water jurisprudence).  99

The food–water nexus in the post-revolutionary Mexican Supreme Court  165 future importance of water supplies to agriculture as temperatures rise and droughts become more frequent.102 Beyond the region, evaluating other nations’ water and food policy trajectories may reveal commonalities with or differences from Mexico. The Platform of Chinese Land Law, adopted by the Communist government in 1949, distributed land yet retained much water ownership, so analyzing legal cases could show how this principle worked in practice.103 Algeria’s agrarian reform of the 1970s transferred water rights to some communities, but an increased emphasis on export production in the latter part of the decade raises the question of whether its judiciary enabled this shift, as did Mexican courts.104 Post-revolutionary Mexico made the relationship between water and food into an explicit connection between water law and food law. Whether its experience proves paradigmatic for other parts of the world awaits further investigation.

ACKNOWLEDGMENT The author would like to thank Michael Roberts and the students in his UCLA Law seminar, Emerging Scholarship in International Food Law, and William Boyd, for their insightful comments on earlier versions of this chapter. At the Association of American Law Schools 2022 Annual Meeting, participants in the Natural Resources and Energy Law Section’s Works-in Progress Workshop provided helpful input. Christopher Whytock and fellow members of the Southern California International Law Scholars 2022 Workshop contributed a close reading. Much of the rare material for the project was obtained through the diligent and gracious efforts of UCLA’s law librarians. All translations are by the author.

  See Water for Food Security and Well-Being in Latin America and the Caribbean: Social and Environmental Implications for a Globalized Economy 49 (Bárbara A. Willaarts et al. eds., 2014) (mapping observed and expected climate change impacts). 103   See Li Ping et al., Land reform and tenure security in China: History and current challenges, in Legalising Land Rights, supra note 37, at 409, 411–12 (rural residents received land but irrigation projects and lakes were state-owned). 104   See Karen Pfeifer, Agrarian Reform Under State Capitalism in Algeria 11–12, 186, 190, 209, 238 (1985) (water shortages and ownership concentration increased pressure on family farms to reduce basic food production in favor of export commodities). 102

8. Food law and third-world approaches to international law (TWAIL): ingredients in a movement, techniques for analysis, recipes for reform, and a future menu Ernesto Hernández-López

I. INTRODUCTION Some cooks prepare meals and closely focus on following the recipe. They avoid deviations in ingredients, measurements, timing, or technique. In this vein, some governments, associations, or businesses try to standardize recipes as “official,” “authentic,” permanent, and universally accepted. In such cases, the push is to memorialize the recipe as something standard or something that is required. In a similar manner, farmers, ranchers, and food producers look to analogous methods, used to standardize methods to make food, overlooking the natural demands of their locations. Accordingly, a drive to standardize affects foodways. In each of these scenarios, the priority is on formulas at the cost of on-the-ground needs. In the real world though, cooks and food growers operate in different weather, terrain, and socioeconomic realities, not to mention that they grow, shop, and cook for provisions amidst varied cultural beliefs and religious communities. In short, tastes and local demands are far from uniform. Instead, foodways and preferences are extremely diverse. Maybe recipes and food production methods are not as universal as they claim to be. The point here is that mistakes transpire when claiming something is universal or uniform. International law, especially when applied to food, risks similar errors. These dangers are commonplace given international law’s menu is expansive. It governs relations amongst states, public obligations owed to individuals, cross-border trade and finance, environmental harms, and multilateral institutions. Meanwhile, all humans need food, but legal instruments do not really protect access to food in the same way across the globe. International lawyers and policymakers face the same choices as cooks, food producers, governments, and standardizing bodies. Put simply, lawyers and policymakers can see recipes called doctrine as universally accepted and uniform or acknowledge diversity in tastes, location, culture, religion, and socio-economic contexts. The Third World Approaches to International Law movement, commonly known as TWAIL, prepares the latter menu option.1 TWAIL does this by identifying international law’s shortfalls when it emphasizes uniformity; moreover, TWAIL seeks to improve the law’s role with more just, accessible, and legitimate food regimes. TWAIL researches, practices, and promotes international law, with an emphasis on incorporating Global South perspectives.2 Perhaps more importantly, TWAIL 1 2

  See Makau Mutua, What is TWAIL?, 94 Am. Soc’y Int’l L. Proc. 31 (2000).   See B.S. Chimni, Third World Approaches to International Law: A Manifesto, 8 Int’l Cmty. L. Rev. 3 (2006).

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Food law and third-world approaches to international law (TWAIL)  167 stresses the problems when these viewpoints are overlooked. There is a long history and a critical presence with international law subordinating communities along race, class, religion, gender, and sexual orientation lines. TWAIL traditionally focuses on themes identified in non-law disciplines as post-colonial, Third World, development, non-aligned, colonialism, or empire. The conceptual starting point for TWAIL is that centuries of colonialism and empire intimately depended on international norms and institutions, claimed to be universal and neutral amongst equal states. This use of international law justified and worked in the service of myriad oppressive episodes in world history, such as the slave trade, arbitrary international borders, race-based classifications, cultural destruction, armed conflicts, and economic exploitation. This past informs our current legal options. Whether it is colonialism, migration, or economic disruption, history is still very legally present in the Global South. As legal issues, we see emigration, territorial occupation, armed conflict, international sanctions, and sovereign debt impacting current experiences in 2021 for Central America, Palestine, Ethiopia, Iran, and Pakistan, respectively. As these communities face these macro cross-border challenges, they undoubtedly and more immediately find that these experiences impact their access to food and ability to produce food. Suggesting how international food law may benefit from TWAIL insights,3 I describe five courses in this chapter. To relate the viewpoints of a family cook, home or commercial shopper, or agricultural grower, I use these terms, “ingredients,” “techniques,” “recipes,” and “menu plan,” as reference points to frame the food law inquiries. First, the chapter introduces TWAIL and its approach. I call this “ingredients” in a movement. For the second and third courses, the chapter describes a few TWAIL methods. I call this “technique” for analysis. A second course provides examples of TWAIL perspectives on traditional international law doctrines, such as international institutions, trade, and intellectual property. The chapter’s third course presents research methods on food law’s ingrained socio-economic complexity with multiple legal regimes. As such, TWAIL perspectives focus on both formal legal doctrine and the context wherein legal instruments operate. A fourth course presents TWAIL’s efforts to change international food policies. I call this “recipes” for reform. The fifth course is a “menu plan,” which points to potential food law subjects for future inquiry. The chapter ends with a conclusion and lists some relevant international law sources.

II. INGREDIENTS: TWAIL AS A SCHOLARLY AND REFORM MOVEMENT TWAIL had its genesis in 1997 when Harvard Law School graduate students organized a conference examining international law’s neutrality and universality in light of its support of imperialism. Critical legal perspectives of the time, focusing on race, gender, and legal studies motivated these international law inquiries. Soon after these early discussions, TWAIL participants, colloquially called TWAILers, set a path that continues to grow over a quarter

3

 This chapter focuses primarily on scholarship written in English, since the chapter is part of a book intended for readership in English. TWAIL publications, though, are not limited to English. Likewise, not all of the authors cited and mentioned would associate themselves with TWAIL for their perspectives or for roles in the movement. But, their work does reflect approaches critical of international law or seek to reform the doctrine consistent with TWAIL perspectives.

168  Research handbook on international food law century later. Since then, TWAIL conferences, meetings, and publications have increased in frequency and global scope. Several points characterize this path.4 First is an emphasis on appreciating the prior efforts of international lawyers and legal positions. Early TWAIL scholarship prioritized examining the perspectives of lawyers from the Global South working in diplomatic corps, multilateral institutions, and international tribunals. Many of the perspectives of these attorneys were decades old, if not older, and often central to decolonization and legitimizing the global nature of the post–World War II legal order. Nonetheless, international law’s traditional view, before TWAIL, was that these participants practiced international law, something universal without any regional variation. The traditional view is that there is no regional variation of international law and any Global South effort articulates a neutral goal that lacks any local perspective. Second, TWAIL sought the participation of scholars and practitioners working and living in the Global South. Foreign students, many from such countries, were participants in the initial meetings in the United States and other Global North locales. As TWAIL conferences and workshops became more frequent, TWAILers from the Global South increasingly contributed to and hosted these fora, in places as diverse as Bangladesh, Sri Lanka, Colombia, Egypt, Brazil, and elsewhere, and continue to do so. Next, TWAILers operate as a network or movement without any centralized institutional structure. This decentralized nature fosters inclusivity, and no one body or set of persons formulates any potential TWAIL tenets. As a leaderless grouping, much of the organization emphasizes themes as opposed to strict agreement, a developed canon, or chiseled normative positions. Recently, TWAIL’s agenda has been described as comprised of common themes by James Thuo Gathii and as mapped out with coordinates by Luis Eslava. These descriptions eschew any principles, tenets, or ordained canon for TWAIL. Like many TWAILers, Gathii and Eslava present the agenda as agreeing on broad strokes. One common theme regards the notion of empire. Empire illustrates the power that the Global North exerts across borders. Empire does not need to be a formal colony-center association, i.e., colonialism. It can be informal or between politically independent states and often reflects power relations between geographic regions or communities. With empire changing and moving, so does the subaltern or the oppressed. Empire adapts, and different groups of persons and different locations are impacted. In this light, legal, political, and economic means of disenfranchising co-exist and contribute to exclusion regarding race, religion, caste, class, gender, and sexual identity. Focusing on these moving targets, TWAIL scholarship and advocacy are intersectional, emphasizing that multiple identities and legal doctrines work together to subordinate. As for methods to chart these changes, TWAILers identify how international law projects the interests of richer states as “universal ideal and goals.”5 This notes how the concentration of power changes. For instance, in the past, power emanated from an imperial capital while currently it can be diffused amongst public and private actors. Common examples of  These points paraphrase what James Gathii describes as themes and what Luis Eslava describes as coordinates. See James Thuo Gathii, The Agenda of Third World Approaches to International Law, in International Legal Theory: Foundations and Frontiers (Jeffrey L. Dunoff & Mark A. Pollack eds., forthcoming 2022), https://papers​.ssrn​.com​/sol3​/papers​.cfm​?abstract​_id​=3304767; Luis Eslava, TWAIL Coordinates, GroJIL-Blog (Apr. 1, 2019), https://grojil​.org​/2019​/04​/01​/twail​ -coordinates/. 5  Gathii, supra note 4, at 13. 4

Food law and third-world approaches to international law (TWAIL)  169 this include how corporations, financial institutions, multilateral organizations, and regional states exert cross-border influence. In this light, international power is exerted and contested through various legal instruments and doctrines. The law at play is not just the center–periphery or empire–colony relationship, often regarded as constitutional or imperial doctrine, but can include contracts, loans, corporate control, and intellectual property licenses, along with traditional public ordering in multilateral and state-to-state agreements. For a second TWAIL theme, international law plays a constitutive role in the international order and its disorder. Legal doctrine and practices entrench power and divisions with instruments like treaties, rights and obligations, treaty demarcations, and the rules governing international institutions and cross-border transactions. By setting rights and obligations belonging to states, individuals, or communities, law benefits select groups and harms other groups. Specific to this inequality coordinate, TWAIL scholarship looks to various methods. One variant examines how doctrine and legal practices prioritize the interests of capital over human rights and the interests of richer states over poorer ones.6 Another charts how specific legal doctrine supports capitalism by developing customary rules7 and by spreading neo-liberal policies across borders.8 TWAIL methods show how this results in the protection of markets at the expense of poorer economies while also legitimizing and sustaining unequal legal structures.9 Another TWAIL viewpoint is to focus on the “‘material practice’ in the everyday operation and application of its rules, doctrines and practices.”10 Accordingly, these methods look at international law as top-down and on-the-ground subjects. A third TWAIL theme is that history matters for international law. It frames options. It creates present limits. It creates a normative path for the future. Past legal designations have this effect. Examples include dividing communities with international borders, states losing territories, violent armed conflict, race-based classifications for denizens, or economic debts passed on to later generations. A central belief for TWAIL is that international law’s claims of sovereign equality or liberal rights applied neutrally painfully ignore realities faced by Global South states, migrants, and indigenous communities. While lawyers in cosmopolitan capitals talk of sovereign autonomy between states, individual rights enjoyed by all humans, and the free choice of nations to enter into treaties and trade arrangements, many Third World populations find that their ongoing predicaments are the result of past events. Put simply, when parties agree to a public or private legal arrangement, context and history matter. International law rarely benefits treaty parties, organization members, creditor and debtor, shipper and buyer, or investor and host equally. Context informs this inequality. TWAILers examine this inequality, the weight of its legal past, and the present doctrinal challenges. Looking at law’s historical present, multiple methods exemplify this TWAIL theme. Scholars have shown how examining history isolates untold truths and the social functions   See id. at 12–13.   See B.S. Chimni, Customary International Law: A Third World Perspective, 112 Am. J. Int’l L. 1 (2018).  8   See B.S. Chimni, Capitalism, Imperialism, and International Law in the Twenty-First Century, 14 Or. Rev. Int’l L. 17 (2012).  9   See B.S. Chimni, supra note 2, at 4. 10  Gathii, supra note 4, at 17; see also Luis Eslava & Sundhya Pahuja, Beyond the (Post)Colonial: TWAIL and the Everyday Life of International Law, 45 Verfassung Und Recht in Übersee/Law & Pol. Afr., Asia & Lat. Am. 195, 203 (2012); Luis Eslava, The Materiality of International Law: Violence, History and Joe Sacco’s The Great War, 5 London Rev. Int’l L. 49 (2017).  6  7

170  Research handbook on international food law of international law.11 Examples include Eurocentric objectives of legal practice presented as universal, the non-European world suffering from lost territory, and guaranteed economic rights for foreigners.12 For instance, present exclusion resulting from international law’s history is: only five states sit as permanent members of the UN Security Council, Bretton Woods institutions like the World Bank and International Monetary Fund utilize weighted voting structures, customary international norms of pacta sund servanda bind new states to international agreements reached before they existed, and the subordination of self-determination in many post-colonial states and for minority communities.13 Looking at these inequalities on the world stage, TWAIL scholars examine how international legal concepts evolve to continue these inequities. International law claims to operate neutrally and to work for state equality, but subordination has persisted long after colonialism or informal empires of past centuries. The key international law concept of sovereignty is intimately related to global inequality. Antony Anghie examines how sovereignty, a state’s claim to legal authority and to participate in the international system, evolved from the sixteenth century to the present.14 Law’s long durée is that Global South communities are denied full sovereign authority. This occurred when Spanish monarchs justified, with natural law reasoning, occupying territories in the Americas over five centuries ago. It persists by carving legal exceptions during the War on Terror, justifying military intervention and denial of human rights for suspects for over two decades. Ntina Tzouvala provides a similarly sophisticated analysis of the notion of civilization.15 A civilizing mission justified colonialism across the globe, especially in the nineteenth century as liberal states benefitted from overseas territorial expansion. Empires claimed to benefit those who were ruled over by pursuing a civilizing mission. Tzouvala illustrates how by the mid-twentieth century, when decolonization became the norm, the notion of civilization transformed into new legal justifications. International law moved to oscillate between conditional inclusion and emphasizing inferiority. This ambivalence continues with Global South states. In sum, Anghie and Tzouvala illustrate how international law still relies on legal concepts that on their face appear neutral and relevant, such as sovereignty, or relegated to past historical influence, such as civilization. As described in the following, international food law must confront legal barriers to implement sovereign choices, while these perspectives regard agriculture practices or domestic food policies in the Global South as inferior. A fourth theme develops in TWAIL objectives to reform international law. TWAILers, through advocacy and scholarship, push to have international legal understandings, doctrines, and practices to pursue a more progressive world. By noting the problems created by past actions and their current manifestations, obligations and rights can be seen as diverging from exclusionary pasts. This includes litigation, proposing new modes of legal reasoning, and scholarship. Similarly, TWAIL scholars have served as judges, United Nations Special Rapporteurs, and leaders of legal societies and institutions of legal education.

  See Karin Mickelson, Rhetoric and Rage: Third World Voices in International Legal Discourse, 16 Wis. Int’l L.J. 353, 406 (1998). 12   See James Thuo Gathii, Imperialism, Colonialism, and International Law, 54 Buff. L. Rev. 1013 (2007). 13   See Gathii, supra note 4, at 24–25. 14   Antony Anghie, Imperialism, Sovereignty and the Making of International Law (2005). 15   Ntina Tzouvala, Capitalism as Civilisation: A History of International Law (2020). 11

Food law and third-world approaches to international law (TWAIL)  171 In terms of TWAIL legal reform themes, scholars rely on multiple methods. Historically, Global South lawyers would reason through sovereignty-based doctrine to increase their international autonomy. A good example of these took place in the early twentieth century when Argentine jurists developed the Calvo and Drago doctrines as ways to defend decisions by domestic courts and offset international law claims to intervene militarily in Latin American states. Another example lies in TWAIL scholars identifying human rights-based claims as a way to mobilize political movements, seeking improvements beyond just the rights sought.16 Balakrishna Rajagopal, in his writings on international law from below, has shown how popular movements use international law as an oversight mechanism for their national leaders.17 In sum, a look at international law from Global South emphasizes four themes. I called them ingredients for a scholarly and reform movement. They are: 1) cross-border power relationships are eschewed to favor certain actors, showing how the notion of empire evolves; 2) international law plays a formative and often decisive role in this international order; 3) history matters to international law and creates the stage when rules, procedures, and institutions operate; and 4) TWAIL seeks to reform international law as more inclusive and just and undoing its support for inequality. As described in the following, these international law insights illustrate how the food system currently operates to disenfranchise or subordinate Global South, be they food producers (farmers or purveyors), consumers seeking groceries for households and provisions for businesses, or policymakers working to ensure food supplies domestically.

III. TECHNIQUE: TWAIL LOOKS AT FOOD BY EXAMINING MULTILATERAL INSTITUTIONS, INTERNATIONAL TRADE, AND INTELLECTUAL PROPERTY Global food production increases farming and processing of foods, but food insecurities persist. National and local experiences illustrate that hunger, malnourishment, and famine plague many communities, often for years if not decades. Law steps into this dilemma, ordering how production, distribution, sale, preparation, and consumption occurs. International law traditionally impacts food supplies with international institutions and trade law focused on agriculture and intellectual property. TWAILers have analyzed these orthodox examples of international law. TWAIL scholarship identifies the harms felt by Global South states and communities with multilateral organizations, focused on development and international efforts. It similarly shows how international agreements to export and import foodstuffs disenfranchise the Global South with legal instruments protecting intellectual property. Moreover, these treaties have exceptions from free trade policies for agriculture. In these examples, TWAIL methods focus on inequality and analyze international legal doctrine.

  See Paulina García-Del Moral, Feminicidio: TWAIL in Action, 110 AJIL Unbound 31 (2016).   Balakrishnan Rajagopal, International Law from Below: Development, Social Movements, and Third World Resistance (2003); Property Rights From Below: Commodification of Land and the Counter-Movement (Olivier De Schutter & Balakrishnan Rajagopal eds., 2020).

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172  Research handbook on international food law a.

Food Inequality Simmers in International Institutions

B.S. Chimni, one of TWAIL’s most prolific and early innovators, has written extensively about the imperial nature of international institutions and the multilateral system. For instance, he describes the importance post-colonial states placed on agriculture, in terms of labor needs and food production, in their participation during the Bandung Conference (1953–1960).18 This Conference represented an ideological and reform milestone for international law with numerous Third World states articulating their international law perspectives. This took place during the Cold War and soon after the formation of the United Nations. Many of the topics and positions presented then became key parts of development and state-led efforts. More recently, Chimni notes how international institutions continue to prioritize Global North or private interests, but in more de-centralized or regional manners.19 Regarding food, he shows how the uniform trade standards required by membership in the WTO, for instance, erode the sovereign control that Global South states have over agriculture. For these countries, agriculture is an important source of food production and invaluable for combatting unemployment and urban growth. b. Farmers and Consumers Feel the Consequences of Agriculture’s Place in International Law Agriculture is another area where TWAIL scholars note how the food interests of the Global South are disenfranchised. One important way that these interests transpire is with international trade law. Carmen Gonzalez illustrates how the WTO Agreement on Agriculture institutionalizes inequality by allowing richer states to subsidize their agriculture production while requiring that developing states open their domestic markets to these imports.20 In short, richer states gain new access, secured by treaty law, and poorer states are obligated to provide this access, secured by the same treaties. Importantly, Gonzalez shows this exclusion by free trade agreements as continuing a historical trend, predating the WTO’s formation in 1994. Michael Fakhri shows how international trade regimes, primarily in the WTO, claim to seek free trade, but in reality, they emphasize market stabilization and exclude food security from their focus.21 In this light, Third World food security objectives are de-prioritized so that the Global North experiences less disruption in its food imports. These challenges stand out when looking at specific agriculture products. Legal examinations show how legal trade obligations disrupt food production and consumption. Charting international law and sugar, Fakhri provides an analysis of long-term exclusions for Third World farmers and their governments trying to support them.22 Fakhri describes a series of  B.S. Chimni, Anti-Imperialism: Then and Now, in Bandung, Global History, and International Law 35, 41–46 (Luis Eslava, Michael Fakhri & Vasuki Nesiah eds., 2017). 19  B.S. Chimni, International Institutions Today: An Imperial Global State in the Making, 15 Eur. J. Int’l L. 1, 7 (2004). 20  Carmen G. Gonzalez, Institutionalizing Inequality: The WTO Agreement on Agriculture, Food Security, and Developing Countries, 27 Colum. J. Env’t L. 433 (2002). 21  Michael Fakhri, A History of Food Security and Agriculture in International Trade Law, 1945– 2017, in New Voices and New Perspectives in International Economic Law, European Yearbook of International Economic Law 55 (John D. Haskell & Akbar Rasulov eds., 2020). 22   Michael Fakhri, Sugar and the Making of International Trade Law (2017). 18

Food law and third-world approaches to international law (TWAIL)  173 international trade agreements since 1902 to the WTO in 1994, to illustrate how international law repeatedly benefits the domestic sugar politics of the Global North, be it described as an imperial power, industrialized state, or WTO member. These politics work for both sugar producers and sugar consumers in the Global North. In Sugar and the Making of International Trade Law, he explains how private commercial interests and public state-to-state agreements work together to blur doctrinal lines and exclude sugar production in places like the Caribbean and Africa. Focusing on a more isolated period, I have written on the exclusionary effect of trade policies for corn consumers in Mexico.23 In 2007–2008, corn prices spiked dramatically in Mexico. Neo-liberal policies since 1988 eliminated tariff protections for corn, while also abrogating domestic corn price controls. This made the majority of Mexicans, who look to corn as the most consumed crop, highly vulnerable to global price spikes. At this point, global fuel price spikes and over a decade of the North American Free Trade Agreement (NAFTA) created a “tortilla crisis” in the country. Domestic protections for corn consumers and growers in Mexico were eroded by membership in the WTO, implementation of NAFTA, and domestic liberalization of the corn sector (for growers, consumers, and grocers). c.

Imbalances Heat up When the Priority is Protecting Intellectual Property

Intellectual property is another international law regime that impacts Global South food interests. For farmers, intellectual property protects genetic material in plants, more precisely seeds, belonging to transnational corporations. These designations for ownership rights in plants deeply implicate agricultural practices, such as growing rice, corn, wheat, cotton, soybeans, etc. Various international trade agreements require that party-states protect these rights. Such protections allow licenses to control what Third World farmers plant in their plots, by prohibiting seed-saving and by mandating the toxic use of herbicides or pesticides. These agreements extend monopoly protections for time periods far beyond what national laws require. In this light, to benefit from free trade in goods and services, a country must incorporate into its domestic law the protections that favor foreign seed companies. TWAILers have shown that with intellectual property protection, private actors, usually from the Global North, acquire the legal means to compel states. In the TWAIL Manifesto, Chimni described the WTO TRIPS (Trade-Related Aspects of Intellectual Property Rights) Agreement as an example of global property rights for corporations.24 Gathii explains that the effect of two decades with TRIPS is uniform standards applied globally while curtailing innovation locally in the global south.25 Titilayo Adebola shows how in Africa TRIPS benefits corporate plant breeders at the expense of local growers.26 In these examples, we see that international law provides a way to more than commodify plants and seeds, intellectual property law limits what farmers can do and limits the options that states have to regulate seed use.  Ernesto Hernández-López, Law, Food, and Culture: Mexican Corn’s National Identity Cooked in “Tortilla Discourses” Post-TLC/NAFTA, 20 St. Thomas Law Rev. 573 (2008). 24  Chimni, supra note 2, at 8–9. 25   See James Thuo Gathii, Strength in Intellectual Property Protection and Foreign Direct Investment Flows in Least Developed Countries, 44 Ga. J. Int’l & Compar. L. 499 (2016). 26  Titilayo Adebola,Africa and Intellectual Property Rights for Plant Varieties, Oxford Bibliographies, www​.oxf​ordb​ibli​ographies​.com ​/view​/document​/obo​-9780199796953​/obo​-97801 99796953​- 0210​.xml (Apr. 22, 2020). 23

174  Research handbook on international food law I have shown how TRIPS and NAFTA rights, by protecting GMO corn imports, have contributed to a loss of biodiversity in corn in Mexico, the grain’s center of origin and diversity.27 Collective action litigation has looked to the Precautionary Principle in international biosecurity laws to detain this loss. For years after 2013, Mexican courts enjoined the release of any GMO corn seeds in Mexico, out of concern for biodiversity. Since then, the United States-Mexico-Canada Agreement (USMCA) has moved to roll back these efforts to secure non-GMO corn supplies. The USMCA requires Mexico to sign on to new intellectual property agreements for plants, defer to United States or Canadian regulators, and not detain any trade in biotechnology, including new forms of gene editing.28 In sum, TWAIL scholarship on food law looks at traditional doctrines, such as multilateral institutions, agriculture, trade, and intellectual property. The foregoing brief description illustrates how international law not only facilitates but often legally cements inequality in the global food system. The TWAIL technique that stands out is to identify where legal rules and doctrine fail to benefit Global South communities. Noting how diverse nodes exert this type of influence on worldwide food supplies and food consumption, TWAIL scholars employ interdisciplinary methods to chart these harms and seek reform.

IV. TECHNIQUE: ANALYZING GLOBAL FOOD CHALLENGES AS PART OF MULTIPLE SOCIO-ECONOMIC FORCES AND LEGAL REGIMES TWAIL scholarship also looks at non-law factors that impact how food is consumed, produced, and sold in the Global South. Here, research emphasizes multi-discipline approaches to evolving food rights, food insecurity, and private law. This research illustrates how law alone cannot improve food security and production globally. Legal claims of food rights or state obligations cannot improve the food system for the larger part of the globe. Instead, this scholarship suggests that law shapes the economics of trade and food production. Food insecurity is a global problem characterized by imbalances. These disparities are experienced in their harms and in the capacity of states to respond to them. TWAIL scholarship examines these dynamics by emphasizing that any progress in international law addressing food insecurity must confront a variety of economic and political forces. These forces extend beyond what is traditionally seen as food system actors, like farmers, merchants, grocers, and consumers. Instead, economic and corporate actors deeply contribute to the causes of food insecurity. Any remedies in international law directed at global hunger must confront these forces. Along these lines, TWAIL scholarship looks at the development of a right to food, the causes of food insecurity, the role of financial speculation, and the influence of private ordering. TWAILers look at the political challenges confronting international food law. One example is how the right to food has developed in international law with the aim to decrease food insecurity. If viewed formally, it is a legal right with a long history. Smita Narula charts this  Ernesto Hernández-López, GMO Corn, México, and Coloniality, 22 Vand. J. Ent. & Tech. L. 725 (2020). 28   See Ernesto A. Hernández-López, GMO Corn in México: Precaution as Law’s Decolonial Option, 2 Law, Tech. & Hums. 97 (2020), https://doi​.org​/10​.5204​/ lthj​.1479. 27

Food law and third-world approaches to international law (TWAIL)  175 doctrine as beginning with the Universal Declaration of Human Rights in 1948 (UDHR) and codified in the International Covenant on Economic, Social, and Cultural Rights in 1966 (ICESCR).29 But, a series of non-legal factors constrain its progress. Narula describes the right to food’s limited normative result since there are few recourses to enforce the right.30 She adds that these rights are hampered by the international trade obligations of states and the fact that this right is limited to state action.31 Michael Fakhri adds to this analysis by describing the institutional challenges of the Food and Agriculture Organization (FAO).32 Affiliated with the United Nations, the FAO was organized to make the right to food central to its mission, but this has been hampered. The FAO is primarily a development organization focused on building capacities for states. This is quite distinct from human rights focused on individuals, where the right to food could help address hunger. These are two examples of how politics and institutional challenges impact the right to food. In this light, this research shows that additional resources and means to enforce rights are needed. Another way to critically examine food insecurity is by looking at the objectives of legal instruments. Anne Saab, in Narratives of Hunger in International Law: Feeding the World in Times of Climate Change, focuses on how international law, primarily neo-liberal mechanisms, fuels hunger.33 Legal instruments do this by assuming increased production is needed to combat hunger. Their foci consequently support biotechnologies to meet this objective. Emphasizing what causes insecurity, Saab illustrates how hunger rises as biodiversity is depleted. Saab’s approach emphasizes the language and rhetoric of international law’s impact on food. Deft legal analysis shows how the purported claims of legal doctrine give way to more powerful interests. This research reflects the TWAIL technique of identifying what actors benefit from the legal doctrine despite its objectives; here, it is food security. The role of private interests, with financial transactions and supply contracts, similarly impacts food security. In this vein of scholarship, the examination looks at how international law protects economic interests. The result is limiting food supplies or the ability to sell foodstuffs, with Global South farmers and consumers losing out. Anna Chadwick illustrates this with the global food crisis of 2007–2008.34 In Law and the Political Economy of Hunger, she describes how financial deregulation allows for speculation in food prices. Buyers secure future food supplies or current quantities for resale when demand increases, capitalizing on far more lucrative prices. Importantly, these transactions involve food items, but legal instruments do not identify them as crops or food but call them a commodity. In rhetorical terms or seen as the legal scope, interests in crops and food (needed for consumption) take a back seat to commodities (used for financial gain). The result is farmers and buyers in the Global

  See Smita Narula, Reclaiming the Right to Food as a Normative Response to the Global Food Crisis, 13 Yale Hum. Rts. & Dev. L.J. 403, 404 (2010) (citing art. 25(1), G.A. Res. 217A, at 76, U.N. GAOR, 3d Sess., 1st plen. mtg., U.N. Doc. A/810 (Dec. 12, 1948); art 11 G.A. Res. 2200 (XXI), U.N. GAOR, Supp. No. 16, U.N. Doc. A/6316 (Dec. 16, 1966). 30   See id. 31   See Smita Narula, The Right to Food: Progress and Pitfalls, 2 Canadian Food Stud. 41 (2015), https://doi​.org​/10​.15353​/cfs​-rcea​.v2i2​.130. 32   See Michael Fakhri, The International Political Economy of the Right to Food, in Human Rights and Global Governance (Nehal Bhuta ed., forthcoming). 33   Anne Saab, Narratives of Hunger in International Law: Feeding the World in Times of Climate Change (2019). 34   Anna Chadwick, Law and the Political Economy of Hunger (2019). 29

176  Research handbook on international food law South lose out to capital clout that is privileged by legal access. Chadwick notes that financial regulation, a legal regime seen as separate from food, helps constitute the market that sets up these risks. Importantly, changes in finance laws incentivize speculation and profits from these transactions. This differs from regulations allowing for increased production and trade to consumers. Chadwick offers an example of identifying the harms of closed-off access by noting the privileges afforded by other legal doctrines. While finance secures profit from price fluctuations, supply chain contracts guarantee food supplies for the parties involved. These guarantees can be seen as benefitting the parties involved, but with bargaining disparities, they can hurt Third World producers. Supply chains are a way to secure the production and purchase of a particular item. Procurement and production solely focus on the transaction, usually for one retailer overseas counting on one producer in one country. The focus for a supplier, merchant, and buyer is to work with dedicated end-to-end actors. These contracts eliminate the risks of shopping around for buyers or producers. This lowers prices. But the legal guarantees create their own risks by eliminating flexibility. Legal scholars have looked into the food problems posed for producers with supply chains.35 Importantly, this research suggests that private and public international law creates rights and obligations, but they in turn frame market vulnerabilities. Supply chain, also called global value chain, research has described this for years. A global pandemic since 2020 points to these disruptions in food and non-food markets worldwide. In sum, these examples point to a few TWAIL techniques that focus on the interdisciplinary nature of food challenges in the global system. They suggest that lawyers and policymakers look at how more than one legal regime operates to disenfranchise Global South consumers and producers. The overarching technique is that private legal rules, usually called private international law, significantly influence public food needs in the Global South. The private/ public distinction in international law does not stand critical inquiry when looking at why food insecurity plagues so much of the world.

V. RECIPES: REFORMING LAW’S FOOD ROLE BY RE-CONCEIVING AND REPLANTING NORMS TWAIL also offers hope for where to move forward. Research on the causes of food insecurity in the Global South informs proposals for how to reform the food system. This takes two shapes: proposals to limit corporate control and bolster food sovereignty. Carmen Gonzalez argues that corporate domination of the food system is the main cause of trade in unhealthy foods, insecurity in food supplies, and in environmental degradation.36 She proposes smallscale agriculture to offset the interrelated climate, food, and agro-biodiversity crises. In particular, Gonzalez calls for enforcing the right to food as a human right when applying legal   See Amy J. Cohen, Negotiating the Value Chain: A Study of Surplus and Distribution in Indian Markets for Food, Law & Soc. Inquiry, 460 (2020); Tomaso Ferrando, Local Interventions to Destabilize the Global Chain of Value: Song Mao v. Tate & Lyle (Jan. 13, 2017) (unpublished manuscript), https://papers​.ssrn​.com​/sol3​/papers​.cfm​?abstract​_id​=2898780; IGLP L. & Glob. Prod. Working Grp., The Role of Law in Global Value Chains: A Research Manifesto, 4 London Rev. Int’l L. 57 (2016). 36  Carmen G. Gonzalez, Climate Change, Food Security, and Agrobiodiversity: Toward a Just, Resilient, and Sustainable Food System, 22 Fordham Env’t L. Rev. 493 (2011). 35

Food law and third-world approaches to international law (TWAIL)  177 rules governing trade, aid, and finance in cross-border settings. Along these lines, another proposal is for developing countries to have environmental exceptions included in trade and investment agreements that they negotiate. Further, suggestions include international antitrust regulation of seed companies and supermarket chains and secure policy space for domestic governments to support small-scale farmers. This aid could provide credit, use price controls and farming input subsidies, and re-orient export-based farming. Gonzalez similarly describes these suggestions as part of the quest for justice implicit in the international right to food.37 For specific regions or particular crops, Titilayo Adebola and I make similar claims for smaller-scale food farming, in contrast to corporate agriculture, for Africa and non-GMO corn in Mexico, respectively.38 With many of the same objectives as Gonzalez, i.e., to de-link corporate domination from the food system, food sovereignty is another way to frame TWAIL food reforms. James Gathii writes that pursuing food sovereignty results in less dependency. His focus is on the displacement of domestic farms that grow subsistence foods.39 Trade agreements and open access to corporate actors limit what local growers can compete with. After this displacement, domestic consumers are dependent without much control over what they need to eat and have limited abilities to regulate the trade in these items.

VI. MENU PLAN: INTERNATIONAL LAW’S ROLE IN CONSUMER CHOICES, GEOPOLITICAL CONSEQUENCES, AND FOOD POLICIES Looking to the future, as international regulation applied to food production and trade in foodstuffs becomes increasingly common, there is no limit to when TWAIL insights could be valuable. I list eight areas for research on international food law, a sort of menu planning on international law’s impact on food consumption, production, and policies. I break this research into two selections: research into the direct impacts on consumers and food producers and research into forming domestic and international food policies. First is food labeling. Many countries use food labels as a way to encourage healthier eating and to offset the influence of corporate marketing. Successful examples include Peru, Chile, Uruguay, and Brazil, while options have been proposed in India and other states.40 This raises the issue of inequality since Global North export interests see domestic food labels as  Carmen G. Gonzalez, The Global Food Crisis: Law, Policy, and the Elusive Quest for Justice, 13 Yale Hum. Rts. & Dev. L.J. 462 (2010). 38   See Adebola, supra note 26; Hernández-López, supra note 27. 39  James Thuo Gathii, Food Sovereignty for Poor Countries in the Global Trading System, 57 Loy. L. Rev. 509 (2011). 40   See Interview Summary, E44: Chile’s Health Strategy: Warning Labels, Soda Taxes, and Marketing Limits, Duke Univ. Sanford World Food Pol’y Ctr. (June 14, 2019), https://wfpc​.sanford​ .duke​.edu ​/podcasts​/chile​%E2​%80​%99s​-health​-strategy​-warning​-labels​-soda​-taxes​-and​-marketing​-limits; Niamh Michail, An “Outstanding Contribution” to Health: Peru Wins United Nations Award for Nutrition Label, Food navigator​-latam​.​com (Sept. 26, 2019, 13:19 GMT), www​ .foodnavigator​-latam​.com ​/Article​/2019​/09​/26​/ United​-Nations​-awards​-Peru​-for​-nutrition​-label#; Niamh Michail, ANVISA Unveils Brazil’s Nutrition Warning Label, Food navigator​-latam​.​com (Sept. 20, 2019, 21:02 GMT), www​.foodnavigator​-latam​.com​/Article​/2019​/09​/18​/ANVISA​-unveils​ -Brazil​-s​-nutrition​-warning​-label; Richa Pande et al., Front-of-pack Nutrition Labelling in India, 37

178  Research handbook on international food law protectionist and limiting market access.41 Here, domestic sovereign efforts to decrease public health expenses and increase life expectancy run into trade law rules on market access. Similarly, this has a gendered impact when examined on the microeconomic level. Many home-shopping and family meal-planning choices rest on women. Conceivably, a domestic sovereign choice to address public health is motivated to help women, children, and families. But international trade law, focused on market access for Global North exporters, is blind to this. A TWAIL examination would focus on trade laws inhibiting public health measures. Second, international sanctions try to compel states to change their policies, be it weapons programs, repressive security policies, or armed conflict. They specifically limit trade or investments in these states. A usual critique of these international efforts is that political leaders and government institutions suffer from them far less than ordinary consumers or producers in the Global South.42 When sanctions cut off access to trade in commodities, tools, or farming inputs, domestic food supplies are severely limited. Here, the geopolitics driving sanctions, usually with long-term goals, face immediate consequences for shopping lists, exporters and importers, and home pantries. A TWAIL view isolates the subordination of the Global South state and those directly impacted by the sanction. Like with labels, consumers here are most immediately impacted, and this disproportionately affects women and families. Third, similarly but even more dire, is food insecurity caused by armed conflict or environmental crises. States and non-state actors engage in violent struggles, but the larger and more immediate impact for communities near the fighting is that food cannot be grown, produced, distributed, imported, or sold. Aid organizations and governments work to secure food that can be accessed even when fighting persists.43 The long civil war in Yemen (2014 to the present 2021) exemplifies this reality of conflict-created famine. More long-term are the crises of starvation caused by environmental crises. This year, drought has led to food shortages and

5 Lancet: Public Health e195 (Apr. 2020), www​.thelancet​.com​/pdfs​/journals​/ lanpub​/ PIIS2468​ -2667(20)30031​-1​.pd​f. 41   See e.g. Letter from American Farm Bureau Federation et al. to Thomas Vilsack, Secretary, U.S. Dept. Agriculture and Katherine Tai, U.S. Trade Representative, Office of the U.S. Trade Representative (Mar. 22, 2021) (on file at www​.fb​.org​/files​/ Vilsack​_Tai​-Letter​_USDA​-Mexico​ -issues​.pdf) (describing Mexican food labels as lacking “sound, scientific basis” and “attacking reputation of imported products” and also criticizing Mexico’s GMO corn and glyphosate ban, standards of identity for dairy, organic certification requirements, and geographic indication for meat and poultry, signed by over 20 food and agriculture organizations); Honor May Eldridge, NAFTA 2.0 – What Does USMCA Mean for Food?, Sustainable Food Tr. (Mar. 13, 2020), https://sus​tain​able​ foodtrust​.org​/articles​/nafta​-2​- 0 ​-what​-does​-usmca​-mean​-for​-food/ (describing the conflict between Mexico’s food label program and the USMCA). 42   See Grégoire Mallard et al., The Humanitarian Gap in the Global Sanctions Regime, 26 Glob. Governance 121 (2020), https://doi​ .org​ /10​ .1163​ /19426720​ - 02601003; Jalal Hejazi & Sara Emamgholipour, The Effects of the Re-Imposition of US Sanctions on Food Security in Iran, 11 Int’l J. Health Pol’y Mgmt. 651 (Nov. 2, 2020), www​.ijhpm​.com​/article​_3947​_a91​9902​5fdc​5797​ 850f​25cc​c4442c7fa​.pdf; Press Release, U.N. Hum. Rts. Off. High Comm’r , COVID-19: Economic Sanctions Should Be Lifted to Prevent Hunger Crises – UN Expert, (Mar. 31, 2020) (on file at www​ .ohchr​.org ​/en ​/press​-releases​/2020​/03​/covid​-19​-economic​-sanctions​-should​-be​-lifted​-prevent​-hunger​-crises​-un​-expert​?LangID​=E​&NewsID​=25761) (describing sanctions on Syria, Venezuela, Iran, Cuba, and Zimbabwe). 43   See Kaysie Brown, Conflict and Hunger: A Worsening Trend, U.N. Found. (Mar. 27, 2018), https:// unfoundation​.org​/ blog​/post​/conflict​-hunger​-worsening​-trend/; FAO, Food Security and Peace: Discussion Note, I5649E/1/05.16, https://www​.fao​.org​/3​/i5649e​/i5649e​.pdf.

Food law and third-world approaches to international law (TWAIL)  179 farming crises in Madagascar in 2021.44 Already independent of food insecurity, environmental crises have a disproportionate impact on Global South communities.45 A TWAIL insight could help identify ways to secure food access or motivate political negotiation to avoid these food crises. Fourth, the influence women exert on food systems provides fertile ground for TWAIL research. TWAILers have explained that gender roles and the need to reform these can be quite distinct for women and families in the Global South. Adrien Katherine Wing and Vasuki Nesiah describe how multiple or intersectional challenges discriminate against Global South women.46 This contrasts the goals of feminist advocacy in the Global North. It adds to the disinterested perspective international law can generally have toward women.47 The economic influence of women as food producers, sellers, and consumers points to places to examine how law can remedy some harms. Vivienne Bennett, Sonia Dávila-Poblete, and María Nieves Rico illustrate how women have been key to water rights advocacy at both grassroots and policy levels in many Latin American countries.48 This echoes some economic trends from the past. I have described how participation in labor-saving technologies or export farming provides women food workers political influence.49 A TWAIL approach to food could look at the economic participation of women as food workers and as a food demand market. Fifth, agrarian reform in the Global South points to important historical lessons for an issue that remains timely if not more urgent than before. Put simply, efforts to change land tenure rights can increase peasant control of food production, providing them agency in the food system. Last century, land reform in Latin America became a food-meets-international law story. Greg Grandin explains how in Guatemala land redistribution and access to credit coupled with demands for labor rights to become a species of organization for economic and political inclusion. This transpired during early Cold War tensions, felt locally, nationally, and globally. For campesino Guatemaltecos, the result was “experience[s] of individual sovereignty and social solidarity.”50 Grandin explains how legal changes throughout the region led to constitutional protections for land reform. Starting with México in 1917, similar rights, in Colombia, Brazil, Argentina, El Salvador, Venezuela, Paraguay, Honduras, Haiti, Panama, and Bolivia, challenged American conceptions of sovereignty that shield individual property rights.51

  See Kaamil Ahmed and Rivonala Razafison, At Least 1m People Face Starvation as Madgascar’s Drought Worsens, The Guardian (May 10, 2021, 1:00 AM) , www​.theguardian​.com​/global​-development ​/2021​/may​/10​/at​-least​-1m​-people​-facing​-starvation​-madagascar​-drought​-worsens. 45   See International Environmental Law and the Global South (Shawkat Alam et al. eds., 2015). 46   See Adrien Katherine Wing, Global Critical Race Feminism Post 9-11: Afghanistan, 10 Wash. U.J.L. & Pol’y 19, 20 (2002); Vasuki Nesiah, Toward a Feminist Internationality: A Critique of US Feminist Legal Scholarship, 16 Harv. L. Women’s L.J. 189, 189–90 (1993). 47   See Hilary Charlesworth, Talking to Ourselves? Feminist Scholarship in International Law, in Feminist Perspectives on Contemporary International Law: Between Resistance and Compliance? 17 (Sari Kouvo & Zoe Pearson eds., 2011). 48   See Opposing Currents: The Politics of Water and Gender in Latin America (Vivienne Bennett, Sonia Dávila-Poblete & María Nieves Rico eds., 2005). 49   See Ernesto Hernández-López, Escogedoras and Molineras in Veracruz, Mexico (1928–32), (July 13, 2006) (on file at https://papers​.ssrn​.com​/sol3​/papers​.cfm​?abstract​_id​=916009). 50   See Greg Grandin, The Last Colonial Massacre: Latin America in the Cold War 4 (2004). 51   See Greg Grandin, The Liberal Traditions in the Americas: Rights, Sovereignty, and the Origins of Liberal Multilateralism, 117 Am. Hist. Rev. 76 (2012). 44

180  Research handbook on international food law Agrarian reform remains a timely issue in Latin America52 and throughout the Global South.53 As an example, rejuvenated demands for reform in Colombia refer to contemporary influences in calls for food sovereignty and sustainability and addressing gender inequality, violence, and poverty.54 Resistance to land reform persists and adapts to contemporary demands. For example, in Sierra Leone, farmers lose land with international legal instruments pointing to investment justifications in agriculture.55 TWAIL food research could look into the competing pressures for production and investment as they serve foreign interests or local food producers, merchants, and consumers. In sum, these five examples, labeling, sanctions, food insecurity, agrarian reform, and gender roles, inspire examining a menu plan for how international law impacts food consumers and food producers. Sixth, international food aid is an important foreign policy goal for receiving states and an influential diplomatic instrument for states or organizations providing it. A TWAIL perspective would question the expressed humanitarian claims of aid programs and examine who benefits from the provider and the receiver of this aid. Food aid has a history of compelling states to take certain actions or favor particular political leaders.56 Importantly, this aid can lead to dependency by disincentivizing food production in receiving states. Seen in economic terms, aid that is exported economically benefits food producers in the sending state. Their goods are bought and sold. In short, the humanitarian claim of aid has economic and political consequences in the Global South. Seventh, food prices and predicted shortages in food supply suggest another subject for TWAIL examination. Many countries depend on trade imports for key items like wheat, corn, cooking oil, or rice, but economic disruptions, weather-related or from a natural disaster, or pandemics limit what is available for domestic consumption.57 Multilateral organizations work to ensure that price fluctuations or panic buying do not close off food supplies for these import-dependent countries. A TWAIL perspective would examine the objectives, incentives, and effects of these international efforts. As global or macro forces increase prices and limit the availability of supplies, TWAIL perspectives would examine how this has disparate impacts per socio-economic class and different genders.

  See Cristóbal Kay, Land Reform in Latin America: Past, Present, and Future, 54 Latin American Rsch. Rev. 747–755 (2019). 53   See Legalising Land Rights: Local Practices, State Responses and Tenure Security in Africa, Asia and Latin America (Janine M. Ubink et al. eds., 2010). 54   See Gabe Levine-Drizin & Margarita Martínez-Osorio, Under Petro, Hope for Rural Reform in Colombia, NACLA (Aug. 9, 2022), https://nacla​.org​/under​-petro​-hope​-rural​-reform​-colombia. 55   See Ntina Tzouvala, A False Promise? Regulating Land-grabbing and the Post-colonial State, 32 Leiden J. Int’l Law 235 (2019). 56   See Barry Riley, The Political History of American Food Aid: An Uneasy Benevolence (2017). 57   See Agnieszka de Sousa & Megan Durisin, Global Food Prices at Six-Year High Are Set to Keep on Climbing, Bloomberg (Jan. 7, 2021, 3:01 AM), www​ .bloomberg​ .com​ /news​ /articles​ /2021​ -01​- 07​/global​-food​-prices​-at​-six​-year​-high​-are​-set​-to​-keep​-on​-climbing; Yaroslav Trofimov & Lucy Craymer, Soaring Prices, Rotting Crops: Coronavirus Triggers Global Food Crisis, Wall St. J. (May 13, 2020, 2:52 PM), www​.wsj​.com​/articles​/coronavirus​-global​-food​-crisis​-shortages​ -11589385615; Abdolreza Abbassian, Quelling Future Panic over Global Food Security, Austl. Inst. Int’l Affs. (Sep. 30, 2014), www​.int​erna​tion​alaffairs​.org​.au​/australianoutlook​/quelling​ -future​-panic​-over​-global​-food​-security/. 52

Food law and third-world approaches to international law (TWAIL)  181 Eighth, farmer and peasant rights have developed an international policy space distinct from legal norms focused on agriculture. With farmer and peasant rights, the focus is more open to sustainability and livelihood of farming versus an “agriculture” focus on export or industrial farming. In 2020, the recently appointed United Nations Special Rapporteur on the right to food, Michael Fakhri, explained how seed rights and farmers’ rights were a priority issue regarding the right to food.58 This vision of the Special Rapporteur emphasizes how international food law is not limited just to laws focused on growing or consuming food goods, but it also includes a focus on multiple legal regimes, the socio-economic context, and examining the food system. The international peasants’ movement La Via Campesina commends this approach since this perspective identifies the harms caused by trade and agriculture law regimes while it also argues for a right to food as part of a human right.59 La Via Campesina adds that these efforts increase dignity and a voice to peasants as part of the fight for the right to food. The efforts are consistent with TWAIL-inspired reforms regarding multiple legal regimes and addressing subordination. This differs from a more doctrinaire or formal perspective, seeing intellectual property, food policy, poverty, and individual rights as distinct and not overlapping.

VII. CONCLUSION In conclusion, in this chapter, I have described five courses on international food law and TWAIL. As a legal movement, TWAIL emphasizes the dangers of myopically seeing international law as uniform and as neutral to the known global harms, like climate change, armed conflict, forced migration, poverty, economic dislocation, and racism. TWAIL seeks to reform international law to work for Global South persons. In this regard, the chapter has explained how TWAIL perspectives can inform how international law applies to the food system in the Global South, for farmers, consumers, merchants, shoppers, and households. For its five courses, I described TWAIL’s critical perspectives as its “ingredients.” These are: cross-border power relationships favor a small number of actors, illustrating how empire evolves; international law plays a formative role in this global order; history creates the stage for when international law (its rules, procedures, and institutions) operates; and international law should be reformed as more inclusive to undo its support for global inequality. For TWAIL, “techniques” consist of analyzing traditional legal doctrine like institutions, international trade, and intellectual property and of examining how non-legal forces and legal reasoning work together to disenfranchise food consumers and producers in the Global South. TWAIL “recipes” work to reform international law, specifically striving to minimize corporate control of the food system and to bolster food sovereignty for Global South communities. Lastly, the

 Michael Fakhri (Special Rapporteur on the Right to Food), Rep. of the Special Rapporteur on the Right to Food, U.N. Doc. A/HRC/46/33 (Dec. 24, 2020), at 3, 15–17, https://undocs​.org​/A​/ HRC​/46​ /33. Other priorities include focusing on the COVID-19 pandemic and hunger crisis, global governance, and food in armed conflict, see id. 59   L a Via Campesina Backs the UN Special Rapporteur’s Observation that WTO Policies Have Marginalized People’s Human Rights Concerns, La Via Campesina (Oct. 8, 2020), https:// viacampesina​.org ​/en ​/ la​-via​- campesina​-backs​-the​-un​-special​-rapporteurs​- observation​-that​-wto​ -policies​-have​-marginalised​-peoples​-human​-rights​-concerns/. 58

182  Research handbook on international food law chapter’s “menu plan” flags future areas for TWAIL research and reform in food law, focused on consumer choices, gender, land reform, geopolitical consequences, and food policies. In sum, all humans need food, but international food law does not protect access to food in the same way across the globe. Ideally, these five TWAIL courses on international food law inspire lawyers and policymakers to see ingredients, techniques, recipes, and future menus as ways to make the food system more just and inclusive, while distancing themselves from the dogma and fiction that international law, like a recipe, is neutral and uniform.

9. Community and geography in a holistic approach to food law Marsha A. Echols

I. INTRODUCTION Food is a biological necessity recognized in human rights law, but the biology of food is not always the paramount consideration.1 Instead, many food traditions, practices and laws are traceable to historical, community-based practices and beliefs, most of which have unique geographical identities.2 Cultural traditions and geography influence our diets – what we eat – and also food law. This chapter urges a holistic approach to food law in today’s multicultural world in which communities of consumers are increasingly influencing food policy and regulation. A holistic approach extends beyond legal principles alone to more purposefully join considerations of community or society and geography or place. All are necessary for a proper interpretation and application of food “law” in today’s world. A few lesser-known legal and soft law sources are helpful. A community approach can be found in social interactions at meals and their preparation as encouraged by some recent food-based dietary guidelines, such as those from Brazil.3 A geographical approach is reflected in UNESCO’s recognition of local foods as intangible cultural heritage. Both community and geography are implicit in geographical indications, a form of intellectual property with regional features as recognized by the World Trade Organization. These sources imply the often unspoken belief that food is life – life as nourishment and enjoyment – that may be included or implied in relevant sources of food law. A holistic understanding of food law and regulation might begin with a consideration of various international resolutions and conventions, regional and national laws, judicial rulings, and standards. Both African and Latin American human rights courts have favored a broad interpretation of the applicable conventions and other guidance. The African Court on Human and Peoples’ Rights4 considered food a human right through the regional right to

 “Food changes into blood, blood into cells, cells change into energy which changes up into life … food is life,” Vertamae Smart-Grosvenor. 2   See generally Reay Tannahill, Food in History, (Stein and Day, 1973); Evan D.G. Fraser & Andrew Rimas, Empires of Food: Feast, Famine and the Rise and Fall of Civilizations 13–40 (2010). 3   Ministry of Health of Brazil, Dietary Guidelines for the Brazilian Population 91, 96–97 (2015) https://bvsms​.saude​.gov​.br​/ bvs​/publicacoes​/dietary​_guidelines​_brazilian​_population​ .pdf. 4   African Court on Human and Peoples’ Rights, www​.african​-court​.org​/wpafc/# (last visited July 11, 2022). 1

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184  Research handbook on international food law natural resources.5 In contrast, the Organization of American States texts refer only to food. The Inter-American Court of Human Rights, which interprets the Charter of the Organization of American States6 and the American Convention on Human Rights,7 also draws on the American Declaration on the Rights and Duties of Man, in which Article 1 refers to the right to life and Article XI to food: “Every person has the right to the preservation of his health through sanitary and social measures relating to food, … to the extent permitted by public and community resources.”8 Regional courts in Africa and Latin America have consistently and uniquely interpreted food law under international conventions. They have particularly required the protection of Indigenous communities and the local land used to provide nourishment for the community. Finally, unknown to many, community, culture, and geography are present, although not referenced expressly, in the trade usage provisions of commercial or sales law such as the UN Convention on the International Sale of Goods (CISG).9 The CISG is both international law and an element of many national laws.10 A complete understanding of food “law” should not overlook the extensive “soft” law on which many communities and some governments rely. For example, the 1972 UNESCO Convention Concerning the Protection of the World Cultural and Natural Heritage, which seeks to recognize and conserve “cultural and natural heritage of outstanding universal value,”11 includes food traditions on its Representative List of the Intangible Cultural Heritage of Humanity.12 Food-based dietary guidelines like those of Brazil and Canada recognize the importance of community to our meals. Another example is found in a statement by Dr Jean Ziegler, the former UN Special Rapporteur on the Right to Food, who makes clear that cultural aspects of food and tradition are inherent in that right, repeating that people have a

 Ricarda Roesch, The Ogiek Case of the African Court on Human and Peoples’ Rights: Not So Much News After All?, EJIL: Talk! (June 16, 2017), www​.ejiltalk​.org​/the​-ogiek​-case​-of​-the​-african​-court​ -on​-human​-and​-peoples​-rights​-not​-so​-much​-news​-after​-all/.  6  Charter of the Organization of American States, Apr. 30, 1948, 119 U.N.T.S. 3; 2 U.S.T. 2394.  7   Organization of American States, American Convention on Human Rights, Nov. 22, 1969, O.A.S.T.S. No. 36, 1144 U.N.T.S. 123.  8  American Declaration on the Rights and Duties of Man, Res. XXX, Final Act of the Ninth International Conference of American States (Pan American Union), Bogota, Colombia, Mar. 30– May 2, 1948, at 38, reprinted in Handbook of Existing Rules Pertaining to Human Rights, OEA/ Ser.L/V/II.23 Doc. 21 Rev. 6, at 5 (1979); 1 Annals of the O.A.S. 130 (1949); Basic Documents Pertaining to Human Rights in the Inter-American System, OAS/Ser.L/V/I.4 Rev. 9 (2003); and 43 Am. J. Int’l L. Supp. 133 (1949).  9  United Nations Convention on Contracts for the Intenational Sale of Goods, Apr. 11, 1980, U.N. Doc. A/CONF.97/18 (1980); 19 I.L.M. 668 (1980); 1489 U.N.T.S. 3, 59; S. Treaty Doc. 98-9 (1983); see also U.N. Comm’n on Int’l Trade L. [UNCITRAL], United Nations Convention on Contracts for the International Sale of Goods, U.N. Sales No. E.10.V.14 (2010), https:// uncitral​.un​.org​/sites​/uncitral​.un​.org​/files​/media​-documents​/uncitral​/en ​/19​- 09951​_e​_ebook​.pdf. 10  Albert Kritzer, CISG: Table of Contracting States, Pace Univ. Inst. of Int’l L., https://iicl​.law​ .pace​.edu​/cisg​/page​/cisg​-table​-contracting​-states (May 5, 2022). 11  Convention Concerning the Protection of the World Cultural and Natural Heritage, Nov. 16, 1972, 1037 U.N.T.S. 151. 12  Convention for the Safeguarding of the Intangible Cultural Heritage, art. 2 ¶ 1, Oct. 17, 2003, 2368 U.N.T.S. 3; see Lists of Intangible Cultural Heritage and the Register of Good Safeguarding Practices, UNESCO, https://ich​.unesco​.org​/en​/ lists (last visited June 6, 2022).  5

Community and geography in a holistic approach to food law  185 right to “food corresponding to the cultural traditions of the people to which the consumer belongs.”13

II. COMMUNITY Food is tied to community through common geography, culture, goals, and understanding, among other manifestations.14 A community (or “people”) is a group that follows a social structure within a society (culture, norms, values, status).15 A community also has a geographical aspect. It is all the people who live in a particular area, country, region, or other space. Communities of people and places help us to understand food and its historical role as a biological (nutritional) and cultural necessity.16 A community has its own food traditions and culture that help create its identity. They are evidenced in customary long-standing beliefs and practices expected to be followed within the community. At the same time, they might also be reflected in formal law and even become the subject of disputes. Formal community, notably the governmental or regulatory community of laws and governance, is creating today’s version of the “social contract.”17 In political science, the social contract exists between the government and the people as a group or community for the good or welfare of the national community. The social contract should promote the common good of the community.18 Food is essential to life and the common good, as recognized in

 Jean Ziegler (Special Rapporteur on the Right to Food), Preliminary Report on the Right to Food, ¶ 22, U.N. Doc. CHR/RES/2001/25 (July 23, 2001); see also U.N. Comm’n on Econ., Soc. & Cultural Rts., General Comment 12, The Right to Adequate Food, U.N. Doc. E/C.12/1999/5 (May 12, 1999). 14  “Foodways” is another term used to describe community and its geography. “[F]ood serves to define individual and group identities; culturally acquired and nurtured matters of taste demark ethnic, regional, racial, and spiritual differences.” See Charles Camp, Foodways, in Handbook of American Popular Culture 475 (M. Thomas Inge ed., 2nd ed. 1989). 15  David M. Chavis & Kien Lee, What Is Community Anyway? Stan. Soc. Innovation Rev. (May 12, 2015), https://ssir​.org​/articles​/entry​/what​_is​_community​_anyway. FAO (Samina Raja, Erin Sweeney, Yeeli Mui, Emmanuel Frimpong Boamah), “Food comes to people via a complex and rich web: a community’s food system.” Local Government Planning for Community Food Systems: Opportunity, innovation and equity in low- and middle-income countries, www​.fao​.org​/3​/cb3136en​ /cb3136en​.pdf, visited July 9, 2022. 16   Samina Raja, Erin Sweeney, Yeeli Mui & Emmanuel Frimpong Boamah, Local Government Planning for Community Food Systems: Opportunity, Innovation and Equity in Low- and Middle-Income Countries, at 1, CB3136EN/1/02.21 (FAO 2021), https:// www​.fao​.org​/3​/cb3136en​/cb3136en​.pdf (“Food comes to people via a complex and rich web: a community’s food system”). 17   Contemporary Approaches to the Social Contract, Stan. Ency. of Phil. (Sept. 27, 2021), https:// plato​.stanford​.edu​/entries​/contractarianism​-contemporary/ (“The basic idea seems simple: in some way, the agreement of all individuals subject to collectively enforced social arrangements shows that those arrangements have some normative property (they are legitimate, just, obligating, etc.)”); see generally Jean-Jacques Rousseau, The Social Contract, Book 3 (1762), www​.earlymoderntexts​.com ​/assets​/pdfs​/rousseau1762​.pdf (government in general). 18   See Mark Retter, Jus Cogens: Towards an International Common Good?, 2 Transnat’l Legal Theory 537 (2011), www​.academia​.edu​/2081474​/Jus​_Cogens​_Towards​_an​_International​_Com mon​_Good?. 13

186  Research handbook on international food law the 1948 Universal Declaration of Human Rights19 and the 1966 International Covenant on Economic, Social, and Cultural Rights (ICESCR).20 Of course, communities and their traditions have evolved or weakened with global social and economic changes. According to one sociologist, the modern state’s emphasis on individualism has lessened the influence of the family, local neighborhood or geographical region, church, and commercial association, all traditional roots of community.21 He posited that as the traditional ties of community were eroded, the human need for community led people to rely more on the government, whose role has grown. Another possible description of this process of change is globalization.22 As noted, community interests in food and culture are reflected in regional constitutions and jurisprudence, including in Africa and Latin America, alerting global actors to consequential communities and their cultures. Cases from regional human rights courts in Africa and Latin America (described in the following) emphasize the essential importance of community, particularly Indigenous communities. A. The UNESCO Convention and Food as Intangible Cultural Heritage Perhaps UNESCO’s recognitions of intangible cultural heritage in food are the proper starting point to illustrate community as culture and geography through food and food traditions.23 Intangible cultural heritage, like Indigenous heritage, must be viewed holistically.24 Intangible cultural heritage is “practices, representations, and expressions, and knowledge and skills which are transmitted from generation to generation and which provide communities and groups with a sense of identity and continuity.”25 A role for communities is written into the Convention, encouraging the “widest possible participation” of communities and others that create, maintain, and transmit the heritage and their involvement in its management.26  Universal Declaration of Human Rights, Dec. 8, 1948, G.A. Res. 217A (III), U.N. Doc. A/810 at 71 (1948). 20  International Covenant on Economic, Social and Cultural Rights, Dec. 16, 1966, 993 U.N.T.S. 3; S. Exec. Doc. D, 95-2 (1978); S. Treaty Doc. No. 95-19; 6 I.L.M. 360 (1967). 21   Robert Nisbet, The Quest for Community: A Study in the Ethics of Order and Freedom (1953). 22   See generally Jürgen Osterhammel & Niels P. Petersson, Globalization: A Short History 130–139 (2005) (“Sociocultural Globalization?”). 23  Convention for the Safeguarding of the Intangible Cultural Heritage, supra note 12. Article 1 states the purposes of the Convention as “(a) to safeguard the intangible cultural heritage; (b) to ensure respect for the intangible cultural heritage of the communities, groups and individuals concerned; (c) to raise awareness at the local, national and international levels of the importance of the intangible cultural heritage, and of ensuring mutual appreciation thereof; (d) to provide for international cooperation and assistance.” The “domains” of international cultural heritage are (a) oral traditions and expressions, including language as a vehicle of the intangible cultural heritage; (b) performing arts; ( c) social practices, rituals and festive events; (d) knowledge and practices concerning nature and the universe; and (e) traditional craftsmanship. Id. art. 2.2. 24   Lucas Lixinski, Intangible Cultural Heritage in International Law 8 (2013). 25  Convention for the Safeguarding of the Intangible Cultural Heritage, supra note 12, art. 2. 26  Janet Blake, UNESCO’s 2003 Convention on Intangible Cultural Heritage: The Implications of Community Involvement in “Safeguarding”, in Intangible Heritage (Laurajane Smith & Natsuko Akagawa eds., 2008). Article 15 (Participation of communities, groups and individuals) adds that “[w]ithin the framework of its safeguarding activities of the intangible cultural heritage, 19

Community and geography in a holistic approach to food law  187 Intangible cultural heritage is Traditional, contemporary and living at the same time: intangible cultural heritage does not only represent inherited traditions from the past but also contemporary rural and urban practices in which diverse cultural groups take part; … intangible cultural heritage can only be heritage when it is recognized as such by the communities, groups or individuals that create, maintain and transmit it – without their recognition, nobody else can decide for them that a given expression or practice is their heritage.27

Many food traditions are recognized on UNESCO’s Representative List of the Intangible Cultural Heritage of Humanity.28 Through resolutions and its Article 16 List, the United Nations acknowledges global food traditions, most of which are local or regional. Among foods on the list are Belgian beer, couscous, Neapolitan pizza, and Nsima (a culinary tradition of Malawi).29 A special example of community and food tradition is the gastronomic meal of the French – a “customary social practice” that “draws circles of family and friends closer together and, more generally, strengthens social ties.”30 The gastronomic meal emphasizes togetherness, the pleasure of taste, and the balance between human beings and the products of nature. Important elements include the purchase of food, preferably local products whose flavors go each State Party shall endeavour to ensure the widest possible participation of communities, groups and, where appropriate, individuals that create, maintain and transmit such heritage, and to involve them actively in its management.” Convention for the Safeguarding of the Intangible Cultural Heritage, supra note 12, art. 15. 27  Convention for the Safeguarding of the Intangible Cultural Heritage, supra note 12, art. 2. 28   Lists of Intangible Cultural Heritage and the Register of Good Safeguarding Practices, supra note 12. In 2022 the Culture of Ukrainian borscht cooking was inscribed on the UNESCO list, recognizing its importance in community meals and traditions and its geographical identity. “An expression of hospitality, Ukrainian borscht unites people of all ages, genders and backgrounds at the table. It is also used in ritual practices, such as in the region of Podillia, where the third day of the wedding has maintained its ritual name do nevistky – na borshch, meaning ‘visit daughter-in-law to eat borscht’. It is lauded in tales, folk songs and proverbs and viewed as a lifestyle and identity marker. The viability of the element, however, is threatened by various factors since the beginning of the armed conflict in February 2022, including the displacement of bearers from their communities of origin and from the cultural contexts necessary for the cooking and consumption of borscht in Ukraine. Moreover, destruction to the surrounding environment and traditional agriculture has prevented communities from accessing local products, such as vegetables, needed to prepare the dish. Despite these difficulties, communities across Ukraine have united around the element.” Culture of Ukrainian Borscht Cooking – Ukraine: Inscribed in 2022 (5.EXT.COM) on the List of Intangible Cultural Heritage in Need of Urgent Safeguarding, UNESCO, https://ich​.unesco​.org​/en ​/ USL​/culture​-of​-ukrainian​-borscht​-cooking​- 01852 (last visited July 16, 2022). 29   See Sophie Friedman, Nine Foods On UNESCO’s Intangible Cultural Heritage List, Michelin Guide (May 17, 2021), https://guide​.michelin​.com ​/us​/en ​/article​/features​/foods​-on​-unesco​-intangible​-cultural​-heritage​-list; Nicola Twilley, UNESCO Culinary Heritage Sites, Edible Geography (Feb. 9, 2010), www​.ediblegeography​.com​/unesco​-culinary​-heritage​-sites/ (last visited Feb. 18, 2022). Aanchal Mathur, Top 3 Culinary Traditions from Around the World by UNESCO, Slurrp (Jan. 27, 2022), www​.slurrp​.com​/article​/top​-3​-culinary​-traditions​-from​-around​-the​-world​-by​-unesco​-1642597249371 (“UNESCO recognised 25 food and drink-related traditions as of January 2022, as part of its Representative List of the Intangible Cultural Heritage of Humanity”). 30  Gastronomic Meal of the French – France: Inscribed in 2010 (5.COM) on the Representative List of the Intangible Cultural Heritage of Humanity, UNESCO, https://ich​.unesco​.org​/en​/ RL​/gastronomic​ -meal​-of​-the​-french​- 00437 (last visited Feb. 18, 2022).

188  Research handbook on international food law well together. Proponents of this communal meal with deep knowledge of the tradition hope to preserve its memory, watch over the living practice, and transmit the “rites” or art of good eating and drinking.31 According to UNESCO, the importance of intangible cultural heritage is not the cultural manifestation itself but rather the wealth of knowledge and skills that is transmitted through it from one generation to the next. The social and economic value of this transmission of knowledge is relevant for minority groups and for mainstream social groups within a State and is as important for developing States as for developed ones.32

B.

Indigenous Communities and Food – Selected Regional Conventions

Community and geography have been recognized in international conventions as interpreted by regional courts in Africa (African Commission and African Court on Human and Peoples’ Rights under the African Charter)33 and Latin America (the Inter-American Commission on Human Rights and Inter-American Court of Human Rights of the Organization of American States).34 In disputes regarding food and the right to food, such as those discussed in the following, both courts interpret their laws to understand a fundamental relationship between a people or community, their land, and their food supply. When addressing conflicts between States and their peoples, particularly Indigenous communities, the rulings protect the Indigenous communities and their traditional practices to provide nourishment.35 The African Commission and Court have addressed community and food in land and human resources disputes. For example, in the Ogiek dispute, the African Commission and African Court on Human and Peoples’ Rights considered a community’s right to food in cases under the African Charter on Human and Peoples’ Rights (African Charter).36 In Ogiek, the African Court on Human and Peoples’ Rights found a violation of the right to natural

  Id.  The principal elements of intangible cultural heritage are that it is traditional, contemporary and living at the same time, inclusive, representative, and community-based. What Is Intangible Cultural Heritage?, UNESCO, https://ich​.unesco​.org​/en​/what​-is​-intangible​-heritage​- 00003 (last visited Mar. 23, 2022). 33  African Charter on Human and People’s Rights, June 27, 1981, 1520 U.N.T.S. 217; 21 I.L.M. 58 (1982); see Afr. Comm’n on Hum. and People’s Rts., https://achpr​.org/ (last visited Dec. 28, 2022); Afr. Court on Hum. and Peoples’ Rts., supra note 4. 34  Charter of the Organization of American States, supra note 6; see Inter-Am. Comm’n on Hum. Rts., www​.oas​.org​/en​/iachr/ (last visited Mar. 10, 2022; Inter-Am. Court of Hum. Rts., www​ .corteidh​.or​.cr​/index​.cfm​?lang​=en (last visited Mar. 10, 2022). 35  “Indigenous peoples are inheritors and practitioners of unique cultures and ways of relating to people and the environment. They have retained social, cultural, economic and political characteristics that are distinct from those of the dominant societies in which they live. Despite their cultural differences, indigenous peoples from around the world share common problems related to the protection of their rights as distinct peoples.” Indigenous Peoples at the United Nations, U.N. Dep’t of Econ. & Soc. Affs., www​.un​.org​/development​/desa​/indigenouspeoples​/about​-us​.html (last visited July 13, 2022). 36  African (Banjul) Charter on Human and Peoples’ Rights, June, 27, 1981, OAU Doc. CAB/LEG/67/3 rev. 5; 1520 U.N.T.S. 217; 21 I.L.M. 58 (1982), entered into force 21 October 1986; see U.O. Umozurike, The African Charter on Human and Peoples’ Rights, 77 Am. J. Int’l L. 902 (1983). 31

32

Community and geography in a holistic approach to food law  189 resources,37 as the Ogiek people were deprived of the traditional food resources produced on their ancestral land.38 The African Commission and Court “take the view that natural resources vest in [I]ndigenous peoples inhabiting the land.”39 Often they found a geographical link between a people, its land, and food for the community.40 In doing so, they have looked beyond the wording of the African Charter, e.g., to UN and international law, to determine and interpret the human rights, including food rights, of people in this geographical region.41 As stated in a separate case before the African Commission brought by the Ogoni People, “[t]he right to food is inseparably linked to the dignity of human beings and is therefore essential for the enjoyment and fulfillment of such other rights as health, education, work and political participation.”42 As a second judicial example, the Inter-American Court on Human Rights, in interpreting the American Convention on Human Rights (American Convention),43 sometimes in  The African Charter on Human and Peoples’ Rights, supra note 36, art. 21 recognizes the right to natural resources as a stand-alone right. “Article 21. 1. All peoples shall freely dispose of their wealth and natural resources. This right shall be exercised in the exclusive interest of the people. In no case shall a people be deprived of it. 2. In case of spoliation the dispossessed people shall have the right to the lawful recovery of its property as well as to an adequate compensation. 3. The free disposal of wealth and natural resources shall be exercised without prejudice to the obligation of promoting international economic cooperation based on mutual respect, equitable exchange and the principles of international law. 4. States parties to the present Charter shall individually and collectively exercise the right to free disposal of their wealth and natural resources with a view to strengthening African unity and solidarity. 5. States parties to the present Charter shall undertake to eliminate all forms of foreign economic exploitation particularly that practiced by international monopolies so as to enable their peoples to fully benefit from the advantages derived from their national resources.” Id. 38   Afr. Comm’n on Hum. and Peoples’ Rt.s v. Republic of Kenya, No. 006/2012, Judgment, African Court on Human and Peoples’ Rights [Afr. Ct. H.P.R.] (May 26, 2017), www​.escr​-net​.org​/sites​/ default​/files​/caselaw​/ogiek​_case​_full​_ judgment​.pdf; African Commission of Human and Peoples’ Rights v Kenya (the ‘Ogiek case’), Minority Rts. Grp. Int’l (Nov. 16, 016), https://minorityrights​ .org​/ law​-and​-legal​-cases​/the​-ogiek​-case/. 39  Ricarda Rösch, Indigenousness and Peoples’ Rights in the African Human Rights System: Situating the Ogiek Judgement of the African Court on Human and Peoples’ Rights, 50 Verfassung und Recht in Übersee / L. & Pol. Afr., Asia & Lat. Am. 242, 254 (2017), www​.jstor​.org​/stable​ /26429241. 40  “It follows in particular from Article 26 (2) of the Declaration that the rights that can be recognised for indigenous peoples/communities on their ancestral lands are variable and do not necessarily entail the right of ownership in its classical meaning, including the right to dispose thereof (abusus). Without excluding the right to property in the traditional sense, this provision places greater emphasis on the rights of possession, occupation, use/utilization of land.” Afr. Comm’n on Hum. and Peoples’ Rt.s v. Republic of Kenya, No. 006/2012, ¶ 127. 41   See Fons Coomans, The Ogoni Case before the African Commission on Human and Peoples’ Rights, 52 Int’l & Compar. L. Q. 749, 756–757 (reading a right to food into the Charter even though it is not explicitly present in a case brought by the Ogoni People in Nigeria). 42   Social and Economic Rights Action Center (SERAC) and Center for Economic and Social Rights (CESR) v. Nigeria, Communication 155/96, Afr. Comm’n on Hum. & Peoples’ Rts. [Afr. Comm’n H.P.R], ¶ 65 (May 27, 2002), www​.escr​-net​.org​/sites​/default​/files​/serac​.pdf. 43  American Convention on Human Rights “Pact of San Jose, Costa Rica,” Nov. 22, 1969, S. Treaty Doc. No. 95-21; 1144 U.N.T.S. 123; O.A.S.T.S. No. 36; 9 I.L.M. 99 (1970). The American Convention builds on the Charter of the Organization of American States, 119 U.N.T.S. 3, entered into force December 13, 1951; amended by Protocol of Buenos Aires, 721 U.N.T.S. 324, O.A.S.T.S. No. 1-A, entered into force Feb. 27, 1970. 37

190  Research handbook on international food law combination with other laws, has been extremely forward-looking in protecting the rights of communities and Indigenous peoples. The American Convention does not confer an explicit right to food, yet the OAS Court found the equivalent in Article 26 of the American Convention combined with international, regional, and national laws.44 In Indigenous Communities of the Lhaka Honhat (Our Land) Association v. Argentina,45 the OAS Court found this right among other rights of an Indigenous community.46 After finding an infringement of law, the Court ordered reparations to the Indigenous people.47 Among the reparations ordered by the Court were actions for access to adequate food and water. C. Dietary Guidelines and Community A less frequently considered example of community and food can be found in selected dietary guidelines. Dietary guidelines are intended to offer government guidance to nutritionists, dietitians, manufacturers, and other specialists concerning the elements of a healthy diet, usually for various population groups. Their focus is on the science of the proper nutrients for a population, which is then illustrated on nutrition labels and, often, a dinner plate graphic with suggested menu items.48 There are signs that the focus is shifting away from singular nutrient-based guidelines or nutrition facts: “many countries are now moving towards more holistic perspectives by addressing food combinations (meals), eating modalities, food safety

 Article 26 of the Convention is under Chapter III, Economic, Social and Cultural Rights. Article 26, Progressive Development, states “The States Parties undertake to adopt measures, both internally and through international cooperation, especially those of an economic and technical nature, with a view to achieving progressively, by legislation or other appropriate means, the full realization of the rights implicit in the economic, social, educational, scientific, and cultural standards set forth in the Charter of the Organization of American States as amended by the Protocol of Buenos Aires.” The Court also referred to the United Nations Declaration on the Rights of Indigenous Peoples, Sep. 13, 2007, G.A. Res. 61/295 (Sept. 13, 2007; 46 I.L.M. 1013 (2007), and a statement concerning Indigenous peoples by the UN Special Rapporteur on the right to food. Jean Ziegler (Special Rapporteur on the Right to Food), Fifth Interim Report on the Right to Food, ¶ 23, U.N. Doc. A/60/350 (Sept. 12, 2005). 45   The Indigenous Communities of the Lhaka Honhat (Our Land) Association v. Argentina, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 400, ¶¶ 210-221 (Feb. 6, 2020), www​.corteidh​.or​.cr​/docs​/casos​/articulos​/seriec​_400​_ing​.pdf. 46  As in Ogiek, the Lhaka opinion considers at length the rights of an Indigenous people under international, regional, and soft law. Id. ¶¶ 247–254. 47   Id. ¶¶ 306–307 and 326–369. 48   See e.g., What Is MyPlate, U.S. Dep’t of Agric., www​.myplate​.gov​/eat​-healthy​/what​-is​-myplate (last visited July 16, 2022); Make Health Meals with Canada’s Food Guide Plate, Gov’t of Can., https://food​-guide​.canada​.ca ​/en ​/tips​-for​-healthy​- eating ​/make ​-healthy​-meals​-with​-the ​- eat​-well​ -plate/ (last visited July 16, 2022); The Eatwell Guide, U.K. Nat’l Health Serv., www​.nhs​.uk​ /live​-well​/eat​-well​/food​-guidelines​-and​-food​-labels​/the​-eatwell​-guide/ (last visited July 16, 2022). To see the policy issues involved in developing national dietary guideless, contrast the US and Canadian plates treatment of protein, recommending about a quarter of the plate for protein, with the UK plate, recommending less. The Dietary Guidelines for Americans, 2020–2025, are typical of the traditional nutrient-based approach to dietary guidelines, although the 2020–2025 edition emphasizes its focus on dietary patterns. U.S. Dep’t of Agric. & U.S. Dep’t of Health & Hum. Serv., Dietary Guidelines for Americans, 2020–2025 (2020), www​.dietaryguidelines​.gov/. 44

Community and geography in a holistic approach to food law  191 considerations, lifestyle and sustainability aspects in their FBDGs [Food Based Dietary Guidelines].”49 The FAO identifies the regions and particular countries in regions of the world with standard national dietary guidelines, including countries in Africa, Asia and the Pacific, Europe, North America, Latin America, and the Caribbean.50 Those of Brazil and Canada are exceptions, as they extend beyond the usual focus on nutrients to highlight the importance of food and community for our diets and health. The 2006 Dietary Guidelines for the Brazilian Population were an early example of this novel approach to dietary guidelines. The fifth of their Ten Steps to Healthy Diets – reminiscent of the French meal – is “Eat regularly and carefully in appropriate environments and, whenever possible, in company.”51 Social changes in Brazilian society that affect people’s health and nutrition, plus extensive public consultations and the commitment of the Brazilian Ministry of Health, led to new guidelines in the 2015 edition.52 A goal was the development of strategies for the “promotion and realization of the human right to adequate food.”53 Their purpose is to promote the health and well-being of people, families, communities, and the whole Brazilian population.54 The 2015 Dietary Guidelines for the Brazilian Population contain recommendations about eating beyond the nutrients we should or should not consume. They emphasize that eating with others, i.e., in community, can bring enjoyment to healthy eating and can foster connections between generations and cultures.55 Canada’s dietary guidelines mention a link between cultural preferences, food traditions, and health, noting that nutritious foods can reflect cultural preferences and food traditions.56 Canada’s recent dietary guidelines also advise eating together, i.e., in community. They encourage eating in families and other groups for its health and social benefits: “Healthy eating is about more than just eating certain types and amounts of food. In all cultures, food is an integral part of social interactions and celebrations. Eating together can help to reinforce positive eating habits.”57

  Food-Based Dietary Guidelines [FBDGs]: Background, Food & Agric. Org., www​.fao​.org​/nutrition​/education​/food​-dietary​-guidelines​/ background​/en/ (last visited July 9, 2022); see also Healthy Diet, World Health Org., www​.who​.int ​/news​-room ​/fact​-sheets​/detail ​/ healthy​-diet (last visited July 9, 2022) (“The exact make-up of a diversified, balanced and healthy diet will vary depending on individual characteristics (e.g. age, gender, lifestyle and degree of physical activity), cultural context, locally available foods and dietary customs. However, the basic principles of what constitutes a healthy diet remain the same”). 50   Food-Based Dietary Guidelines, Food & Agric. Org., www​.fao​.org​/nutrition​/education​/food​ -based​-dietary​-guidelines (last visited July 9, 2022). 51   Dietary Guidelines for the Brazilian Population, supra note 3, at 126. 52   Dietary Guidelines for the Brazilian Population, supra note 3. 53   Id. at 6. 54   Id. at 11. 55   Id. at 16. 56   Health Canada, Canada’s Dietary Guidelines for Health Professionals and Policy Makers 19 (2019), https://food​-guide​.canada​.ca​/sites​/default​/files​/artifact​-pdf​/CDG​-EN​-2018​.pdf (“Traditional food improves diet quality among Indigenous Peoples … Traditional food[s]—and the way they are obtained—are intrinsically linked to culture, identity, way of life, and thus overall health”). 57   Id. at 18. 49

192  Research handbook on international food law

III.

GEOGRAPHY AND FOOD

Although community and informal community relationships are weakening in the face of globalization, there are notable exceptions.58 Regarding food, two trending exceptions touch on the geographical aspect of culture: interest in “local” foods in the United States and interest in geographical indications both internationally and increasingly among developing countries. Communities still add their unique voices and interests to the world of global trade and commerce, as the growing interest in and controversy about geographical indications illustrates on a grand scale and commercial (sales) law about trade usage standards shows on a smaller scale. Community and geography are foundations for a people’s attitude about food and what to eat. The geographical aspect of food is reflected in laws like the US Farm Bill’s definition of “local.” An international example is the inclusion of “geographical indications” in the World Trade Organization’s Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement),59 coupled in part with many nations’ production of transformed and high-value foods. Local food and geographical indications form legal bridges between community and geography. Geographically “local” in the United States and “geographical indication” worldwide are examples of the joining of community with strong geographical parameters. Underlying each is interest in the commercial value of the foods within these categories. A. Local There is no generally accepted definition of “local” within the food community. The word carries a geographic connotation, but no consensus exists regarding the distance between production and consumption. According to the 2008 Farm Act, which the US Department of Agriculture implements, the total distance that a product can be transported and still be considered a “locally or regionally produced agricultural food product” is less than 400 miles from its origin, or within the state in which it is produced.60 Under another law, implemented by the US Food and Drug Administration, “local” relates to business relationships. It refers in part to producers located 275 miles or less from their customers or within the same state.61 Definitions based on market arrangements, including direct-to-consumer arrangements at

 Some authors acknowledge tensions between local cultures and universal human rights, e.g., conflicts regarding geographical indications, but argue that these issues can be addressed within specific countries. See generally Abdullahi A. An-Na’im, Cultural Transformation and Human Rights in Africa (2002). 59  Agreement on Trade-Related Aspects of Intellectual Property Rights, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1C, 1869 U.N.T.S. 299; 33 I.L.M. 1197 (1994) [hereinafter TRIPS Agreement]. 60  “The term ‘locally or regionally produced agricultural food product’ means any agricultural food product that is raised, produced, and distributed in – (I) the locality or region in which the final product is marketed, so that the total distance that the product is transported is less than 400 miles from the origin of the product; or; (II) the State in which the product is produced.” Food, Conservation, and Energy Act of 2008, 7 U.S.C. § 1932(g)(9). 61  FDA Food Safety Modernization Act, 21 U.S.C. § 350g(l)(4). 58

Community and geography in a holistic approach to food law  193 farmers’ markets, or direct-to-retail/foodservice arrangements such as farm sales to schools, are well-recognized to represent local relationships.62 There has been minimal judicial interpretation of “local” in the United States. A trademark case – Bimbo Bakeries – is one.63 The lower court said that a reasonable person would have expected that the tagline “Fresh. Local. Quality” on bakery products, regardless of where the products were baked, was not just an expression of the seller’s opinion or puffery. But the Appellate court found that while its use may indicate to some consumers that the bread was baked within a certain vicinity of where it was sold, the statement did not rise to the level of a factual assertion that represented false advertising.64 “Local” is not a per se false designation of origin. Case law like Bimbo Bakeries illustrates the commercial value of the lawful use of a “local” claim.65 B. Geographical Indications Geographical indications (GIs) use a name (and more) to evince community and geography in a food product. According to Article 22 of the TRIPS Agreement,, geographical indications “identify a good as originating in the territory of a Member, or a region or locality in that territory, where a given quality, reputation or other characteristic of the good is essentially attributable to its geographical origin.”66 There is a clear local or geographical component of a GI (“originating in the territory of a Member, or a region or locality in that territory”), which contrasts WTO Article 22 GIs and Article 15 trademarks.67 “Each Member applies the definition of GIs with respect to its own territory so that the question whether the indication is generic [private] or otherwise not entitled to protection” is subject to possible disagreement.68  The interest in local foods is a focus on geographically nearby foods. In contrast country of origin labeling (COOL) is to identify geographically distant products. Either might touch consumers’ right to know either positively (local) or negatively (COOL). See Am. Meat Institute v. U.S. Dept. of Agric., 760 F.3d 18 (2014) (government’s interests in making information available to consumers were sufficient to uphold country of origin labeling). 63   Bimbo Bakeries USA v. Sycamore, 29 F.4th 630 (10th Cir. 2022). 64   See id. at 642–647 (“Without any consensus definition of what ‘local’ objectively means, we are unable to conclude that a claim of locality admits of being proven true or false”). 65  In Bimbo Bakeries, the Issue of whether “local” in a tag line used by bakery operator’s competitor in advertising was a geographically descriptive term that would confuse consumers about a competitor’s bread’s origin was a question of fact for a jury in a claim of false advertising in violation of § 43 of the Lanham Trademark Act, 15 U.S.C. § 1125(a)(1). 66  TRIPS Agreement, supra note 59, art. 22. The text reads: “Protection of Geographical Indications, 1. Geographical indications are, for the purposes of this Agreement, indications which identify a good as originating in the territory of a Member, or a region or locality in that territory, where a given quality, reputation or other characteristic of the good is essentially attributable to its geographical origin.” Article 22 is consulted with regards to the protection of food and non-alcoholic beverages, but it also is interpreted to cover other goods. Article 23 provides additional protections for geographical Indications for wines and spirits. See generally Marsha A. Echols, Geographical Indications for Food Products (2d ed. 2016). 67  TRIPS Agreement, supra note 59, Trademarks, art. 15.1 (“Protectable Subject Matter: Any sign, or any combination of signs, capable of distinguishing the goods or services of one undertaking from those of other undertakings, shall be capable of constituting a trademark”). 68  Panel Report, EC – Protection of Trademarks and Geographical Indications for Agricultural Products and Foodstuffs (Australia), ¶ 7.715, WTO Doc. WT/DS290/R (Mar. 15, 2005) [hereinafter EC-Trademarks/GIs]. 62

194  Research handbook on international food law Nearly mirroring an issue in Bimbo Bakeries, for GIs the TRIPS agreement requires that all WTO members provide means to prevent the use of any indication that misleads the consumer as to the origin of goods and any use which would constitute an act of unfair competition.69 For a local community, the unique GI, or identifying name, like a local advertising claim, might be of significance both culturally and commercially, as noted by the number of communities and governments interested in adopting GIs.70 In contrast, commercial interests of competitors using the generic term have a substantial commercial interest in the protection and treatment of generic terms, as evidenced by litigation like Gruyere.71 The TRIPS Agreement attempts to bridge the cultural and commercial divide between a GI with its geographical fundamental (“originating in” and “geographical origin”) and a generic name which has evolved from a GI but now is considered an international trading name. The generic product does not claim a special geographical base or a related quality, reputation, or other characteristic “essentially attributable to its geographical origin.” This GI–generic dichotomy continues to be a source of commercial and trade competition and disagreements.72 The Gruyere litigation illustrates that competition and its geographical aspect. In that dispute, the plaintiffs held a geographic certification mark (a type of US trademark) which was challenged by the holders of an EU GI certification for Gruyères. The Court described the central issue in the dispute as whether cheese purchasers in the United States understand the term GRUYERE to refer only to a specific type of cheese produced in the Gruyère region of Switzerland and France or whether cheese purchasers in the United States instead understand GRUYERE as a generic term which refers to a type of cheese regardless of where the cheese is produced.73

The Court, ruling in favor of the US parties using the same criteria used in trademark analyses, decided that US consumers do not link cheese labeled Gruyère with a particular region in Switzerland or France.74  TRIPS Agreement, supra note 59, art 22.3.   See e.g., SunHee Park, Taking Cultural Goods Seriously: Geographical Indications and the Renegotiation Strategies for the Korea-EU FTA, 11 Glob. Pol’y supp. 2, 1 (2020) (“GIs have been gaining greater importance as a way to safeguard cultural goods in the global trade market against the impact of globalization”); Dersu Figueroa Zárate, Geographical Indications in Mexico, A Comparative Assessment, Part I, Medium (Sept. 29, 2017), https://medium​.com​/inteliprix​/geographical​-indications​-in​-mexico​-a​-comparative​-assessment​-part​-i​-1f44ca18ef1d. 71   Interprofession du Gruyère v. U.S. Dairy Export Council, No. 1:20-cv-1174 (E.D. Va. Dec. 15, 2021),  www​.docketalarm​.com ​/cases​/ Virginia ​_ Eastern ​_ District ​_ Court ​/1- ​-20 ​- cv​- 01174​/ Inter profession​_du​_Gruyere​_et​_al​_v.​_International​_ Dairy​_ Foods​_ Association​_et​_al​/106/. “A term which was once non-generic and conveyed the quality or origins of good can become generic over time through a process called genericide, which occurs when a generic term ‘ceases to identify in the public’s mind the particular source of a product or service but rather identifies a class of product or service, regardless of source.’” Id. at 14. 72  “[I]t suffices to note that Article 22.2 applies to geographical indications that satisfy the definition in Article 22.1. Article 22.2 does not apply to generic terms, as confirmed by Article 24.6.” EC – Trademarks/GIs, supra note 68, at ¶ 7.715. Another important dichotomy exists between the food and non-food products covered by Article 22.1 and the wines and beverages covered by Article 22:2–4. 73   Gruyère v. U.S. Dairy , No. 1:20-cv-1174, at 2. 74  Evidence included: “(1) existing U.S. regulations permitting the use of the term GRUYERE on cheese regardless of where the cheese is produced; (2) commercial and government data showing 69 70

Community and geography in a holistic approach to food law  195

IV.

COMMERCIAL COMMUNITY AND TRADE USAGE

The law of commercial trade usage brings together new aspects of community and geography. Interestingly, in a traditional commercial context, we can find a legal approach to a food law issue in international and national laws and judicial interpretations. The starting point is the UN Convention on the International Sale of Goods [CISG].75 The CISG recognizes and enforces the customs followed by a particular commercial community. Its Article 9, found under Chapter II, General Provisions, concerns “trade usage” – a commercial custom or culture in a sale of goods context. A trade usage is unique because it may automatically become an implied term in a contract for the sale of goods.76 A trade usage is the established conduct or established practices of a particular group, e.g., an industry group or a trade group.77 Trade usage is not defined in the CISG’s Article 9.78 CISG, with its inclusion of trade usage, “intends to deal with a broad concept that embraces at least those business conducts routinely adopted by a certain group or category of business players, taken as a whole.”79 For this chapter, the relevant CISG provision is Article 9(2): The parties are considered, unless otherwise agreed, to have impliedly made applicable to their contract or its formation a usage of which the parties knew or ought to have known and which in international trade is widely known to, and regularly observed by, parties to contracts of the type involved in the particular trade concerned.80

The trade usage automatically becomes an implied term of the contract of sale and prevails over contrary terms of the Code.81 The usage is a contract term even when the parties did not negotiate or expressly include it.

the widespread sale and import of GRUYERE cheese produced outside the Gruyère region of Switzerland and France; and (3) evidence showing that the term GRUYERE is commonly used in dictionaries, media communications, and cheese industry events and materials to refer to a type of cheese without respect to where the cheese is produced.” Id. at 16–17. 75  UNCITRAL, supra note 9. 76  This automaticity couples with but at the same time surpasses the Code’s Article 6 principle of party autonomy. The most widely known examples are the delivery and banking terms created through the International Chamber of Commerce and popularly known as Incoterms (International Commercial Terms) and UCP (Uniform Customs and Practice for Documentary Credits) respectively. See William P. Johnson, Analysis of Incoterms as Usage under Article 9 of the CISG, 35 U.Penn. J. Int’l L. 2013 (2020); CISG-AC Opinion No. 16, Exclusion of the CISG under Article 6, Rapporteur: Doctor Lisa Spagnolo, Monash University, Australia. Adopted by the CISG Advisory Council following its nineteenth meeting, in Pretoria, South Africa on 30 May 2014. 77   See generally Patrick X. Bout, Trade Usages: Article 9 of the Convention on Contracts for the International Sale of Goods (1998), https://iicl​.law​.pace​.edu​/sites​/default​/files​/ bibliography​/ bout​ .pdf. 78   See id.; Leonardo Graffi, Remarks on Trade Usages and Business Practices in International Sales Law, 29 J. L. & Com. 273 (2011). 79  Graffi, supra note 78. 80  The trade usage language is similar in other international codes. See e.g., UNIDROIT Principles of International Commercial Contracts, article 1.9(2) (2016); Principles of European Contract Law, art. 1:105 (2002). 81  Bout, supra note 77, at 4.

196  Research handbook on international food law Article 9(2) specifies “in international trade.” Trade usage is “widely known” and “regularly observed” in international trade by parties to like contracts.82 According to a comment to the UNIDROIT Principles, parties to international business are bound by trade usages “even if they did not positively know them, as long as they ought to have known them.”83 People who conduct international business are presumed to have “professional competence.”84 This “presumption of professional competence” means that businesspersons “must accept that they are bound by trade usages which they knew or ought to have known.”85 As noted in an Austrian Supreme Court case summary on timber trade practices: A usage is widely known and regularly observed when it is recognized by the majority of persons doing business in the same field. To be applicable such usages must be known or at least should have been known by the parties having their place of business in the “area” of the usages. A party is deemed to know or ought to know of a particular usage if the party either had its place of business in the geographical area where the usage was applicable, or if the party permanently deals within the area where the usage is applicable.86

The possible geographical range of a trade usage can be local, regional, or international. The Court of Appeal of Graz, Austria, declared that Article 9(2) “could not be interpreted as barring the application of national or local usage.”87 Accordingly, a seller who has been engaging in business in a country for many years and has repeatedly concluded contracts of the type involved in the particular trade concerned must consider that national usage.88 Article 9(2) recognizes a commercial community of “parties to contracts of the type involved,” including communities related to food. A trade usage exhibits a community’s commercial culture and behavior that parties know or ought to know. Similarly, a community’s traditions and culture about food and what we eat exist even without an explicit individual undertaking. Trade usage brings together community, commercial culture, and understandings in an implied geographical context both locally and globally.

V. CONCLUSION Food is essential to physical life and cultural life, as reflected in international human rights laws such as the Universal Declaration of Human Rights and in “soft” laws like national dietary guidelines. Its cultural importance is recognized by many, including UNESCO and  UNIDROIT, supra note 80, at princ. I.2.2.   Id. at cmt. 1. 84   Id. 85   Id. During meetings to draft the CISG, delegates from Socialist countries and developing countries opposed accepting a rule about trade usages because most are developed by commercial interests in developed and market economy countries. The requirement of “known or ought to have known” in Article 9(2) CISG entails that there should be an effective link between the application of the usage and the parties’ intention. 86  CLOUT Case No. 425 [Oberster Gerichtshof [OGH] [Supreme Court] Mar. 21, 2000, 10 Ob 344/99g (Austria)] (finding that “widely known” and “regularly observed” Bavarian timber trade practices prevailed over CISG provisions). 87  CLOUT Case No. 175 [Oberlandesgericht Graz [OLG] [Court of Appeal] Nov. 9, 1995, 6 R 194/95 (Austria)]. 88   Id. 82 83

Community and geography in a holistic approach to food law  197 the UN Special Rapporteur on the Right to Food. All of these elements should be considered in determining what comprises food law.89 Throughout this chapter, the reader has been encouraged to consider food law in a “holistic” manner to encompass the non-traditional legal and soft law semi-legal influences. The word describes a way that is characterized by comprehension of the parts as intimately interconnected and explicable only by reference to the whole or in a way that deals with or treats the whole of something or someone and not just a part.90 This approach was implicit in the Lhaka decision, which referred to international law: CESCR has also pointed out that: the right to adequate food is […] indispensable for the fulfilment of other human rights [… and] also inseparable from social justice, requiring the adoption of appropriate economic, environmental and social policies, at both the national and international levels, oriented to the eradication of poverty and the fulfilment of all human rights for all.91

A holistic reading of food law can achieve the meaning intended by communities rather than courts and regulators. This would be in keeping with the intense interest of today’s consumers in all aspects of what people eat and its description.

 For comparison, a similar approach has been suggested by a group of legal defenders who promote holistic defense – a holistic and interdisciplinary approach. It combines legal analysis with social and other considerations to address the immediate and longer term or societal aspects of a dispute. See James M. Anderson, Maya Buenaventura & Paul Heaton, The Effects of Holistic Defense on Criminal Justice Outcomes, 132 Harv. L. Rev. 819 (2019). 90   Holistic, Oxford Languages Dictionary, https://languages​.oup​.com​/google​-dictionary​-en. 91   Lhaka Honhat v. Argentina, (ser. C) No. 400, ¶ 246. 89

COMPARATIVE LAW APPLIED TO FOOD LAW

10. Comparative food law Bernd van der Meulen and Bart Wernaart

1. INTRODUCTION The aim of this chapter is to propose an approach to the comparative analysis of food law. Although in most countries in the world, food law itself is a young academic discipline, its scope and content have become sufficiently clear to submit to a comparative analysis. How does food law in different jurisdictions relate to each other? Comparative food law is an iterative process. It starts by asking questions on food law to two or more legal systems. The content of the answers and the extent to which the questions can be answered concerning a given legal system provides feedback to improve the framework of questions. In section 2 we reflect on the purpose of legal comparison in food law. In section 3 we evaluate methodological considerations and our approach toward comparative food law. In section 4 we discuss some general features of food law, sources of food law and game-changing events that have been specific social triggers for developing food law in various jurisdictions further. In section 5 we discuss important contextual legal concepts that shape food law in a legal order. In section 6 we explore the importance of the Codex Alimentarius as a point of reference in comparing food law. In section 7 we distil various food-related problems societies seek to solve through regulation. In Section 8 we analyse the legal responses to these problems in the USA, the EU and China compared to the Codex Alimentarius through our framework. In section 9 we draw conclusions and look ahead.

2. THE PURPOSE OF COMPARATIVE FOOD LAW It is important to ask ourselves why we would compare law. A comparist will compare for a reason and with an agenda: it makes a difference whether an academic compares two legal constructions to gain knowledge, a court compares to substantiate its verdict, or a lawmaker compares to establish what legal structure would fit best within the domestic legal system. The objectives of comparative food law are not different from the objectives pursued by comparative legal analysis in general. These purposes were defined by Zweigert and Kötz: knowledge, evaluation, interpretation, education and unification.1 This classification is still widely used amongst comparative lawyers.2  Konrad Zweigert and Hein Kötz, An Introduction to Comparative Law, Oxford: Oxford University Press, 1998, chapter 2. 2  Catherine Valcke, Comparing Law, Comparative Law as Reconstruction of Collective Commitments, Cambridge: Cambridge University Press, 2018, Prologue; Bart Wernaart, The Enforceability of the Human Right to Adequate Food, A Comparative Study, Wageningen: Wageningen Academic Publishers, 2013, chapter 2. 1

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200  Research handbook on international food law 1) Knowledge: Comparative analysis can be a way to acquire knowledge and understanding of a foreign legal system by taking one’s legal system as a starting point. In this case the researcher aims to understand to what extent the foreign system is similar to and different from one’s system. 2) Evaluation: Comparative analysis can be a way to reflect on one’s system by placing models and solutions chosen face-to-face with different models and solutions chosen elsewhere. 3) Interpretation: Comparative analysis can be used to understand legal constructions better. For example, it is an established practice amongst courts in the Common Law domain to compare case law from other common law countries in support of their verdicts.3 4) Education: Comparative law has a didactic goal to broaden the minds of those who participate in legal education (including those who teach) and to equip students to understand the interplay between domestic legal orders and the relationship between international law and national law.4 5) Unification: Comparative analysis can provide a starting point for the harmonisation of legislation. Harmonisation can be attempted among trading partners such as within the EU and between the EU and its neighbours, but even at the global level such as through the Codex Alimentarius. In food law, harmonisation can also be undertaken by private standards, aiming to bridge the gap between food legal systems in countries where products are exported and the food legal system in the importing countries. They ensure that products produced outside the scope of a legal system may still be acceptable within such a system. When performing a legal comparison, it is important to reflect on the comparative law agenda. In academia, the level of neutrality or subjectivity that comes with pursuing one of these purposes is widely discussed. For instance, some scholars reject the idea of evaluating the law, arguing that this would imply there can be such a thing as ‘the better law’, which could favour one legal culture over the other based on subjective criteria.5 On the contrary, it can be argued that evaluation is an essential purpose of comparative law: it is exactly the role of a legal comparist not only to collect and understand legal data but also to have an informed opinion on it and put this to good use.6 Yet another viewpoint could be that evaluation does not necessarily have to result in determining the better law but instead can be used to find the most appropriate legal solution when compared in light of well-defined outcome goals.7 This example underlines the necessity to be transparent about the agenda of a comparist that seeks  Mads Andenas and Duncan Fairgrieve (editors), Courts and Comparative Law, Oxford: Oxford Scholarship Online. DOI:1​0.109​3/acp​rof:o​so/97​80198​73533​5.001​.0001​. 4  Catherine Valcke, Global Law Teaching, Journal of Legal Education, 54, 2004, SSRN: . 5  H. Patrick Glenn, Com-paring, in: Esin Őrűcű and David Nelken (eds.), Comparative Law, A Handbook, Portland: Hart Publishing, 2007, chapter 4; Ralf Michaels, The Functional Method of Comparative Law, in: Mathias Reimann and Reinhard Zimmermann (eds.), The Oxford Handbook of Comparative Law, Oxford: Oxford University Press, 2019, chapter 10. DOI: 10.1093/ oxfordhb/9780198810230.013.11. 6  Konrad Zweigert and Hein Kötz, An Introduction to Comparative Law, Oxford University Press, 1998, chapter 2, section II. 7  Sagi Peari, Better Law as a Better Outcome, The American Journal of Comparative Law, 63(1): 155–195, 2015 . 3

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to compare legal systems and how the purpose of comparing is understood in relation to that agenda.

3. METHODS OF COMPARATIVE FOOD LAW Comparative law as an applied method existed before it was considered an academic discipline.8 One of the first known comparists was the Greek lawmaker Solon, who compared the law of neighbouring city-states before drafting laws for Athens.9 Lawmaking and comparing have always been connected, e.g., comparing legal constructions in the context of transferring law to other legal systems, borrowing legal concepts from other – related – legal systems or comparing laws for unification purposes. As an academic discipline, however, the 1900 Congress for Comparative Law in Paris is often considered an important starting point. Ever since then the discipline of comparative law has been received with mixed feelings in academia. On the one hand, comparative law as a legal practice is indispensable, especially in an increasingly globalised world where legal systems continuously interact, considering the post–Second World War international and regional harmonisation agendas. On the other hand, comparative law has always been criticised for lacking a clear methodology of its own10 integrating elements of law, sociology, anthropology, political science, history and other disciplines. This could indicate that comparative law is not an academic discipline in its own right but rather a result of multidisciplinary endeavours.11 For a while, the comparative method, as proposed by Zweigert and Kötz, has had some sort of a monopoly position in defining methods for law comparists. In a very short chapter on methodology, they introduced a functional approach to comparative law.12 Ever since many scholars have emphasised the flaws of this approach, and at the same time the proposed alternatives have had their shortcomings as well,13 such as the use of immanent or conceptual concepts (Idealtypus) in  George Mousourakis, Tracing the Early Origins of Comparative Law, in: Comparative Law and Legal Traditions, Cham: Springer, 2007. https://doi​-org​.fontys​.idm​.oclc​.org​/10​.1007​/978​-3​- 030​ -28281​-3​_3; Charles Donahue, Introduction, Comparative Law before the Code Napoléon, in: Mathias Reimann and Reinhard Zimmermann (eds.), The Oxford Handbook of Comparative Law, Oxford: Oxford University Press, 2006; K. Zweigert and H. Kötz, An Introduction to Comparative Law, Oxford University Press, 1998, chapter 34.  9  René David, Historical Development of Comparative Law, Britannica . 10  George A. Bermann, The Discipline of Comparative Law in the United States, Revue Internationale de Droit Comparé, 51(4): 1041–1052, 1999; Esin Őrücü, Developing Comparative Law, in: Esin Őrűcű and David Nelken (eds.), Comparative Law, A Handbook, Portland: Hart Publishing, 2007, chapter 2. 11  David Nelken, Comparative Law and Comparative Legal Studies, in: Esin Őrűcű and David Nelken (eds.), Comparative Law, A Handbook, Portland: Hart Publishing, 2007, chapter 1. 12  Konrad Zweigert and Hein Kötz, An Introduction to Comparative Law, Oxford: Oxford University Press, 1998, chapter 3. Ralf Michaels, The Functional Method of Comparative Law, in: M. Reimann and Z. Zimmermann (eds.), The Oxford Handbook of Comparative Law, Oxford: Oxford University Press, 2006; Ralf Michaels, Two Paradigms of Jurisdiction, Michigan Journal of International Law, 27(4), 2006. . 13  Bart Wernaart, The Enforceability of the Human Right to Adequate Food, A Comparative Study, Wageningen: Wageningen Academic Publishers, 2013, chapter 2.  8

202  Research handbook on international food law law,14 the analysis of legal transplants,15 the use of legal formants16 a dialogic approach,17 a factual method,18 a dogmatic approach,19 a vertical comparative law method (in the context of international law),20 the analysis of legal style21 or a hybrid method.22 In the discourse, some recurring topics are fiercely debated:23 is law a concept that can (or should) be separated from its social and cultural environment? Should we focus on similarities or differences? Should we focus on macro (legal families) or micro (legal constructions) comparison? What is the role of international law in law comparison? Based on what criteria do we select the materials for comparison? In this contribution, we will translate this continuing discourse into a methodological framework that seems to fulfil the particular needs of the functional field of food law. As we will set out in the following, the Codex Alimentarius is an internationally recognised framework of food standards. This can be used in a comparative setting as a so-called tertium comparationis:24 a point with which we can compare other (e.g., national or regional) legal constructions in food law.

 Oliver Brand, Conceptual Comparisons: Towards a Coherent Methodology of Comparative Legal Studies, Brooklyn Journal of International Law, 32(2): article 3, 2007; Coen J.P. van Laer, The Applicability of Comparative Concepts, Electronic Journal of Comparative Law, 2(2), 1998. Coen J.P. van Laer, Comparative Concepts and Connective Integration. Paper to be presented at the Fifth Benelux-Scandinavian Conference on Legal Theory: European Legal Integration and Analytical Legal Theory, Maastricht, 28–29.10.2002. 15  Michele Graziadei, Legal Transplants and the Frontiers of Legal Knowledge, Theoretical Inquiries in Law, 10(2): 723–743, 2009; Alan Watson, Legal Transplants: An Approach to Comparative Law, Athens and London: The University of Georgia Press, 1993. 16  Rodolfo Sacco, Legal Formants: A Dynamic Approach to Comparative Law (Installment I of II), The American Journal of Comparative Law, 39(1): 1–34, 1991. www​.jstor​.org​/stable​/840669. 17  David S. Law, Generic Constitutional Law, Minnesota Law Review, 89: 652, 2005; San Diego Legal Studies Paper No. 05-28; Washington University in St. Louis Legal Studies Research Paper No. 11-04-04, 2012, SSRN: ; Vicki C. Jackson, Constitutional Comparisons: Convergence, Resistance, Engagement, Harvard Law Review, 119(1): 109–128, 2005 . 18  H. Patrick Glenn, Com-paring, in: Esin Őrűcű and David Nelken (eds.), Comparative Law, A Handbook, Portland: Hart Publishing, 2007, chapter 4. 19  Alexander V. Petrov and Alexey V. Zyryanov, Formal-Dogmatic Approach in Legal Science in Present Conditions, Humanities & Social Sciences, 6(11): 968–973, 2018. DOI: 10.17516/1997-1370-0285. 20   Aleksandar Momirov and Andria N. Fourie, Vertical Comparative Law Methods, Tools for Conceptualizing the International Rule of Law, Erasmus Law Review, 2(3), 2009. 21  Catherine Valcke, Comparing Legal Style, International Journal of Law in Context, 15: 274–279, 2019. doi:10.1017/S1744552319000284; Péter Cserne, Why Care about ‘Style’ in Legal Scholarship? International Journal of Law in Context, 15(3): 241–245, 2019. doi:10.1017/S1744552319000259. 22  Catherine Valcke, Comparing Law, Comparative Law as Reconstruction of Collective Commitments, Cambridge: Cambridge University Press. 23  See for an overview: Catherine Valcke, Comparing Law: Comparative Law as Reconstruction of Collective Commitments, Cambridge: Cambridge University Press, 2018, prologue; Mark Van Hoecke, Legal Doctrine: Which Method(s) for What Kind of Discipline? in: Mark Van Hoecke (ed.), Methodologies of Legal Research Which Kind of Method for What Kind of Discipline? Oxford and Portland: Heart Publishing, 2011; Peter Birks and Arianna Pretto, Themes in Comparative Law, Oxford: Oxford University Press, 2002. 24  Mark van Hoecke, Methodology of Comparative Legal Research, Law and Method, 12, 2015. DOI: 10.5553/REM/.000010; Ralf Michaels, The Functional Method of Comparative Law, in: Mathias Reimann and Reinhard Zimmermann (eds.), The Oxford Handbook of Comparative Law, Oxford: Oxford University Press, 2019, chapter 10. DOI: 10.1093/oxfordhb/9780198810230.013.11; Ernst 14

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Comparative food law

Game changing events

Codex Alimentarius (T.C.)

Social problems (food) Legal Style

U.S.A.

Legal sources

E.U.

Legal sources

China

Legal sources

Conceptual concepts Game changing events

Food law scope

Figure 10.1  Comparative food law methodology Furthermore, particular legal styles are used to regulate food law that direct food law in legal systems. These include the legislative style, the vertical and horizontal regulation of food law and the use of positive lists. Furthermore, food law usually addresses particular problems that society would want to solve through food regulation. These are mapped in a systematic – functional – approach. Finally, three politically dominant food legal systems in the world will be compared with the Codex Alimentarius, and used to formulate conceptual concepts in comparative food law. This methodological approach is visualised in Figure 10.1. It is important to reflect on the identity of the comparist: she will be most familiar with her own legal system, speak the languages required to understand legal sources within that legal system and understand the social and cultural particularities in which the laws operate.25 In jurisdictions where we do not speak the language, we have to rely on translations26 of sources of law, secondary sources (scholarship, policy papers, media) and social science methods of research, including expert interviews. Ideally, one cooperates with native (food) legal scholars in comparative research. ‘Native’ means people who speak the national language and are schooled in national (food) law and its methods. Only an insider to the legal system can fully understand how the law works, how it should be understood, the relevant sources and the accepted methods of interpretation/construction. In addition, the comparist will need to reflect Rabel, Aufgabe und Notwendigkeit der Rechtsvergleichung, Rheinische Zeitschrift für Zivil- und Prozessrecht: 279–301, 1924. 25  Nils Jansen, Comparative Law and Comparative Knowledge, in: Mathias Reimann and Reinhard Zimmermann (eds.), The Oxford Handbook of Comparative Law, Oxford: Oxford University Press, 2019; DOI:1​0.109​3/oxf​ordhb​/9780​19881​0230.​013.1​0; Wouter Devroe, Rechtsvergelijking in een context van europeanisering en globalisering, Uitgeverij Acco, 2010. 26  An important source of information on many food legal systems in the world is provided by the US Department of Agriculture: .

204  Research handbook on international food law continuously on possible research biases that may occur when the comparist’s legal-cultural background affects how the comparison is performed and how legal sources are understood. As we will discuss in section 6, using generally accepted, legal-culturally neutral language (ontology) as a reference point in the comparison may help overcome these possible biases.

4. FOOD LAW A guiding thought in this chapter is that to compare food law, the food legal systems subject to the comparison should, as much as possible, be described on equal terms. First and foremost, the question needs to be answered on how we delineate food law. Second, we must reflect on locating the relevant sources of food law. Third, in many jurisdictions, food law is shaped in response to crises or other game-changing events that have significantly impacted food safety. To fully understand the societal meaning of food law, one needs to interpret food law in the context of these historical events. a. Scope It is worth considering that the label ‘food law’ is used for at least two different phenomena. Food law is a functional field of research and teaching.27 Food law can also be part of a legal system designed to deal with food and the food sector, which may be labelled as ‘food law’. The latter may or may not exist in a given legal order. The EU and China have specific legislation on food. In the USA a wider area of food and drugs is covered. In other countries, such as the Russian Federation and South Africa, one will not find a distinguishable area of food law within the legal system. In so far as food law is visible within the legal order, its scope will depend on choices made by the legislator. By contrast, the scope of food law as an activity in research and teaching is a matter of choice for the researcher. To perform comparative food law in a meaningful way, it is essential to make this choice consistently. While it may be an important finding whether the scope of ‘food law’ within the legal system does or does not conform to the chosen scope of the research, the choice should not be dictated by this scope. In research and teaching, food law is a so-called functional (or multi-doctrinal) field. In legal scholarship we find fields based on legal dogma, such as constitutional law, private/civil law, administrative law and penal law. We also find fields based on societal phenomena such as environmental, labour and food laws. The latter is the functional field of law. Thus, food law is both a way of looking as well as what the researcher is seeking.28 It is a way of looking when researchers set the boundaries of their research area (the functional field of food law). It is an object of research when the legislature has put in place a branch of legislation referred to as food law. In the first instance ‘food law’ is what the researchers decide it to be. In the latter it is what the legislature decides it to be. The functional field of food law covers all laws within the chosen legal system specifically relevant to food and the food sector. For comparative research, it is important to specify the  A. Urazbaeva et al., The Functional Field of Food Law: Reconciling the Market and Human Rights, Wageningen: Wageningen Academic Publishers 2019. 28  For an elaboration on this approach to food law, see: Bernd van der Meulen, The Functional Field of Food Law. The Emergence of a Functional Discipline in the Legal Sciences, European Institute for Food Law working paper 2018/02 . 27

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scope of the research further.29 Among the first choices to be made is whether to include the human right to food and its implementation within the legal order. The right to food entails law relevant to food and the food sector. It can be observed, however, that the worlds of research and scholarship on the right to food are largely separated from those of research and scholarship on food regulatory affairs. Although elsewhere we strongly argue in favour of integrated research and – indeed – of positioning the right to food as the constitutional foundation of all of food law,30 for the present moment in this chapter, we choose to limit ourselves to the more technical relation of food production and distribution. b. Sources of Food Law Law is found in sources of law which – depending on the jurisdiction – usually include legislation (sometimes the constitution is considered a separate source), case law and general principles. Within the legal order under review, a selection must be made of the sources of law relevant to food law. In legal orders that have set aside a branch of food law, a selection may be readily available. In other countries, a careful assessment needs to be made of sources that may or may not affect food and the food sector. It must be borne in mind that sources at different levels may play a role. Federal states, but also other states, may have sources at central and at decentralised levels. The vast majority of food law in the member states of the EU originates from the Union. National and decentralised law in the member states only plays a supplementary role. In the Russian Federation, technical regulations from the Eurasian Economic Union (EAEU) are direct sources of food law. Policy documents and other sources often referred to as ‘soft law’ may play an important role in practice. Private standards may constitute a parallel universe of private food law – and can be subject to comparative study – but they can also be embedded within public law.31

 Some scholars align themselves with the scope of the regulatory affairs function in food businesses, while others throw their net much wider to include topics such as food security, sustainability, litigation, sovereignty, et cetera. There is nothing inherently right or wrong with such choices. The fact, however, that the scope of food law is not in the nature of the subject matter but is open to choice makes it crucial for researchers to state explicitly where they place the boundaries of their field of research. 30  Bernd van der Meulen and Bart Wernaart, Food and Agricultural Organisation (FAO) and Codex Alimentarius Commission, in: Ramses A. Wessel and Jed Odermatt (eds.), Research Handbook on the European Union’s Engagement with International Organizations, Cheltenham: Edward Elgar Publishing, 2009. Bart Wernaart performed a comparative study between the Netherlands and Belgium on the right to food (Bart Wernaart, The Enforceability of the Human Right to Adequate Food, A Comparative Study, Wageningen: Wageningen Academic Publishers. The European Council for Rural Law twice dedicated part of a conference to the right to food, in 2005 in Røros (Norway) and in 2019 in Poznan (Poland). The country papers are available at: and . The UN special rapporteurs on the right to food provide country reports here: . FAO provides much information on the right to food here: . 31  Rozita Spirovska Vaskoska and Bernd van der Meulen, Private Food Law, in: Bernd van der Meulen and Bart Wernaart (eds.), EU Food Law Handbook (European Institute for Food Law series, Volume 13), Wageningen: Wageningen Academic Publishers, 2020. DOI:10.3920/978-90-8686-903-9_23. 29

206  Research handbook on international food law c. Game-Changing Events Many important changes to the form and content of food law in various countries have come about in response to game-changing events, often crises. To understand why legislators have made certain choices, it may be essential to understand what kind of problem they set out to solve. In other words, history is an important key to understanding food legal systems. The first major food and drug act in the USA, the Pure Food and Drug Act (PFDA), was enacted in 1906. An important factor in providing the urgency to legislate was the public outcry in response to the novel The Jungle by investigative journalist Upton Sinclair.32 The book exposes horrendous practices in the Chicago meat industry. The cause of the problem was the mentality of the businessmen involved. This may contribute to explaining the penal law type of language in the PFDA that still today is present in the Food Drug and Cosmetic Act (FFDCA). The greatest reform in the EU (from 2000 onwards) followed the BSE crisis.33 Among other things, the BSE crisis can be seen as ‘an act of God’. Later, under the influence of the horse meat scandal (horse meat was commercialised as beef), it became visible that the BSE crisis had caused a blind spot in EU food law for intentional criminal human behaviour. Salmonella outbreaks in the USA increased awareness of the importance of full process control. The Food Safety Modernization Act of January 2011 was enacted to ensure this is in place.34 The great reform of food law in China followed the melamine crisis of 2008.35 The melamine fraud was pure malice by businesses enabled by failing oversight from the authorities.36 More than any other food legal system known to us, the Chinese Food Safety Law includes liability for failing public officials.37 Table 10.1 presents an overview of game-changing events, the characterisation thereof and the nature of the response in the involved jurisdictions. An important common factor in these major events was the public outcry.

5. CONTEXT OF COMPARATIVE FOOD LEGAL RESEARCH In general, we can reflect on how food law is organised in societies. Some general legal styles can be recognised that are structural features of the legislative character of food law that can  Upton Sinclair, The Jungle, New York: Doubleday, Page & Co, 1906 (still in press).  Bernd van der Meulen, Food Law: Development, Crisis and Transition, in: Bernd van der Meulen and Bart Wernaart, EU Food Law Handbook (European Institute for Food Law series, Volume 13), Wageningen: Wageningen Academic Publishers, 2020. DOI: 10.3920/978-90-8686-903-9_6. 34  See for more backgrounds: Neil Fortin, The US Food Safety Modernization Act: Implications in Transnational Governance of Food Safety, Food System Sustainability, and the Tension with Free Trade, Duke Environ Law Policy Forum 25(2): 313–337, 2015 . 35  Xiaofang Pei et  al., The China Melamine Milk Scandal and Its Implications for Food Safety Regulation, Food Policy, 36(3): 412–420, 2011 . 36  See for an overview: Adam K. Ghazi-Tehrani and Henry N. Pontell, Corporate Crime and State Legitimacy: The 2008 Chinese Melamine Milk Scandal, Crime Law and Social Change 63: 247– 267, 2015 . 37  Chenhao Jia and David Jukes, The National Food Safety Control System of China – A Systematic Review, Food Control, 32(1): 235–245, 2013 . 32 33

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Table 10.1  Game-changing events in food law globally Jurisdiction

Event

Characterisation

Response

Characterisation

USA

1905 exposure of business practices

Business mentality

PFDA

Focus on undesired behaviour

EU

1990s BSE

Accident

General Food Law

Risk reduction

China

2008 melamine crisis Fraud

2009 FSL

Command and control

USA

Salmonella

Accident

FSMA

Risk reduction

EU

2012 horse meat

Fraud

Official Controls Regulation

Command and control

be identified in all food legal systems known to us: the legal approach towards food law (for example, administrative or criminal law-oriented), the legal direction of food law (horizontal or vertical) and the relative importance of the use of positive lists. These styles are contextual concepts that may, for example, follow from the aforementioned game-changing events and greatly influence how food law evolves in a given legal system. In comparative law, using legal style as part of a comparison is a relatively new and unexplored (perhaps also overlooked) concept.38 In this context, we consider legal style a priori when functionally comparing more specific elements of food law to gain a better systematic understanding of the legal characteristics of food law in a given legal system. a. Legislative Approach Food law is part of the legal system under scrutiny. The legal culture will influence its form and content at its inception. If one looks, for example, at the PFDA and the current FFDCA in the USA, one can observe that it is phrased in terms of don’ts. The act expresses what should not be done concerning food. This suggests a legislative tradition linked to criminal law. The law defines the ‘crime’ (i.e. the objectionable behaviour) and then provides instruments to act against their occurrence.39 In this way, the two core concepts in US American food law are ‘adulteration’ and ‘misbranding’. All objectionable conditions and behaviours about food are translated into one of these two concepts. In comparison, where food law in the Codex Alimentarius, China and the EU simply lists what should be included on a food label, the FFDCA states that a food is misbranded except when it provides the required information.40  Catherine Valcke, Comparing Legal Styles, International Journal of Law in Context, 15, 274–229, 2019 doi:10.1017/S1744552319000284. 39  Also the Food and Drugs Act in Canada expresses itself in terms of don’ts. Possibly this results from inspiration provided by legal comparison with the legislation of the USA. 40  USC 21 §343. ‘Misbranded food: A food shall be deemed to be misbranded – […] (f) Prominence of information on label: If any word, statement, or other information required by or under authority of this chapter to appear on the label or labeling is not prominently placed thereon with such conspicuousness (as compared with other words, statements, designs, or devices, in the labeling) and in such terms as to render it likely to be read and understood by the ordinary individual under customary conditions of purchase and use’. 38

208  Research handbook on international food law b. Vertical and Horizontal Legislation Food law may use a product-by-product approach, setting standards for individually named types of food products, or an approach focusing more on dealing with problems from the perspective of food in general. In the EU the former approach would be labelled ‘vertical’ and the latter ‘horizontal’. ‘Vertical’ legislation is also often referred to as ‘product standards’ (as opposed to general standards). ‘Vertical’ approaches are also known as ‘standard based’. So far, in all systems we have studied, we have found mixes of both approaches. The distinction is never black or white, but some systems seem more vertical in their approach (China, Russia, German-speaking countries) and others more horizontal (USA, EU). c. Positive Lists A vital style in legislating on food uses general prohibitions from which exemptions can be given. In Germanic food law, this is perceived as a ‘principle’ (‘the prohibition principle with reservation of permission’, in German ‘Verbotsprinzip mit Erlaubnisvorbehalt’). This principle is juxtaposed with the principle of abuse. Under the latter, the starting point is not a general prohibition of certain food categories but is limited to prohibiting specific named issues that leave everything else open.41 The prohibition approach is sometimes labelled as ‘precautionary’ and by opponents as ‘Napoleonic’. Usually, to acquire an exemption, an applicant must provide evidence of safety. The prohibition approach is related to ‘positive lists’. A positive list is a list where all products are included that are exempted from the general prohibition to commercialise products that fulfil the definition of the prohibited category. We would not be inclined to consider these ‘principles’. Instead, they represent legislation methods that are used in all jurisdictions known to us. In particular, the use of positive lists stands out as significant. In all systems known to us,42 the prohibition approach with positive lists applies to food additives. Although it is politically heavily contested, outside the USA, all food legal systems known to us apply the prohibition approach to genetically modified foods.  In one of the oldest publications on comparative food law, it is expressed as follows. H. Frenzel, Basic Principles of Food Laws Divergences and Harmonization, in Food Law in the Europe of To-Morrow, publication de l’Institut d’Études Européennes 1965, pp. 127–150 at p. 134: ‘According to the principle of prohibition, everything is forbidden which is not expressly permitted. The burden of proof is on the subjected to the law, who must in each case supply the proof that it is essential for a given situation to be expressly authorized and that for this reason this situation must be incorporated in the list of those things which are permissible. Following the principle of abuse, everything is [allowed] which is not expressly prohibited. The burden of proof is on the authorities which must demonstrate, in each case, that a de facto situation not expressly forbidden constitutes an “abuse” and must for this reason be prohibited’. 42  In this chapter we loosely refer to systems known to us. About most countries in the world, we know next to nothing. The level of knowledge of other countries varies considerably. We have deep and detailed knowledge of food law in the EU, and among its member states, of the Netherlands. We have more limited knowledge of food law of other member states including Germany and Italy. We are involved in textbooks on food law in China and Russia. Jasmin Buijs, Bernd van der Meulen, Juanjuan Sun and Li Jiao (eds.) Chinese Food Law. Legal-Systematic Analysis, Wageningen: Wageningen Academic Publishers 2023 DOI: 10.3920/978-90-8686-941-1. We have taught international food law and food law in the USA. We have edited research chapters (Development of Food Legislation Around the World, in: Boisrobert et  al. [eds.], Ensuring Global Food Safety: 41

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6. INTERNATIONAL FOOD LAW We find international food law in a variety of sources. These include international treaties such as the WTO Agreement on the Application of Sanitary and Phytosanitary Measures (the SPS Agreement). These also include sources of a softer legal nature, such as model legislation provided by, for example, the FAO43 and first and foremost in the standards and other documents provided by the Codex Alimentarius Commission: i.e., the Codex Alimentarius. International food law can provide one or more legal systems in comparison.44 However, it can also be more than this. The Codex Alimentarius is an advanced system of model legislation for food law.45 Many countries consider the Codex in developing their legislation. Some even declare certain elements in the Codex directly applicable.46 Practically all countries in the world contribute to the development of the Codex Alimentarius. Work on the Codex Alimentarius takes place in Codex committees in many different countries. Codex members are often represented in the committees by civil servants who at home are responsible for legislation on food. In their work preparing legislation, they are likely to be aware of the Codex, its concepts and structure. Consequently, many practitioners and researchers worldwide interested in food law will have some knowledge of the Codex Alimentarius. In this way, the Codex may provide a standard nomenclature for comparative food legal research. As discussed earlier, to compare, one will often need a reference point – a tertium comparationis – that uses a language that is not infected by social and cultural values from domestic legal systems. In a functional approach, this is usually understood as the formulation of a social problem to which law can respond.47 Exploring Global Harmonization, Elsevier 2010, addressing international food law, India, South Africa, Eastern Africa, Australia and New-Zealand, the USA and Canada, Latin America, the EU, the Near East, Northeast Asia, China and the Russian Federation). In the second edition (forthcoming) the chapter on law shifts focus from development to systematic analysis. The chapter covers international food law, the USA, Canada, Latin America, the EU, Turkey, the Russian Federation, Azerbaijan, Australia, New Zealand, PRC, the Republic of Korea, Japan, India, Pakistan, Eastern Africa, South Africa and private food law. Seunghye Wang wrote an interesting chapter on Korean Food Law and Governance in Food Certification System, in: Altinay Urazbaeva, Anna Szajkowska, Bart Wernaart, Nikolaas Tilkins Franssens and Rozita Spirovska Vaskoska (eds.) The Functional Field of Food Law: Reconciling the Market and Human Rights, Wageningen: Wageningen Academic Publishers 2019. In the same book, Sebastian Romero Melchor, Lara Skoblikov and Béatrice Schütte wrote a chapter The Regulatory Framework for the Use of Probiotics Claims in Food and Food Supplements around the World: A Comparative Analysis. This chapter includes in this very specific comparison the EU, the USA, Russia, China, Japan, Brazil, Mexico, Argentina and Colombia. 43  Jessica Vapnek and Melvin Spreij, Perspectives and Guidelines on Food Legislation, with a New Model Food Law, FAO Legislative Study 87, Rome 2005 . 44  Dario Bevilacqua, Introduction to Global Food-Safety Law and Regulation, Europa Law Publishing 2015. 45  Anna Szajkowska and Bernd van der Meulen, International Food Law, in: Bernd van der Meulen and Bart Wernaart, EU Food Law Handbook (European Institute for Food Law series, Volume 13), Wageningen: Wageningen Academic Publishers. DOI: 10.3920/978-90-8686-903-9_3. 46  For instance; Bernd van der Meulen, Impact of the Codex Alimentarius, European Food and Feed Law Review, 14(1): 29–50, 2019. 47  Catherine Valcke, Comparing Law, Comparative Law as Reconstruction of Collective Commitments. Cambridge: Cambridge University Press, 2018; Ralf Michaels, The Functional Method of Comparative Law, in: Mathias Reimann and Reinhard Zimmermann (eds.) The

210  Research handbook on international food law However, also – widely accepted – international standards can provide such a language and are therefore suitable as a reference point for comparison.48 The Codex Alimentarius can thus be used as a common language, an ontology, in comparative food law and will be used in this chapter accordingly. The scope of the Codex Alimentarius is relatively narrow. It focuses on food safety, food quality and consumer information. Topics such as the human right to food, food security, food sovereignty and sustainability are not included. In this sense, the current chapter is closely aligned with the Codex.

7. A SYSTEMATIC APPROACH Traditions in approaches to legal scholarship differ considerably. This is nicely illustrated by the following quote from M.A. Gledon et al.:49 one of the greatest differences between legal education in common law and civil law systems appears in the manner in which the student is initiated into the study of law. While an American law student typically spends the first days of law school reading cases and having his or her attention directed over and over again to their precise facts, a student of the civil law is provided at the outset with a systematic overview of the framework of the entire legal system. The introductory text (a treatise, not a casebook) may even include a diagram depicting ‘The Law’ as a tree, with its two great divisions, public and private, branching off into all their many subdivisions and categories – each of which will become, in turn, the subject of later study.50

Such systematisation in civil law countries is not limited to education. Gledon et al. state: all other actors in the legal system receive their training from the scholars who transmit to them a comprehensive and highly-ordered model of the system that to a great extent controls how they organise their knowledge, pose their questions and communicate with each other. This model is not only taught in the universities but constitutes the latent framework of the treatises and articles produced by the professors. Furthermore, legal periodicals, which in civil law countries are run by professors rather than students, play a much more important role there than in common law countries in bringing new legislation and court opinions to the attention of the profession.

In this chapter we propose a systematic legal approach to comparative food law. We acknowledge that there is a bias here. The systematic legal tradition is part of the culture in which we were born and raised. So, in effect, we propose to do things our way. However, there are objective reasons for proposing this approach. A systematic approach makes it possible to present Oxford Handbook of Comparative Law, Oxford: Oxford University Press, 2019. DOI: 10.1093/ oxfordhb/9780198810230.013.11. 48  Anthea Roberts, Paul B. Stephan, Pierre-Hugues Verdier and Mila Versteeg, Conceptualizing Comparative International Law, in: Comparative International Law, Oxford: Oxford University Press, 2018. Bart Wernaart, The Enforceability of the Human Right to Adequate Food, A Comparative Study, Wageningen: Wageningen Academic Publishers, 2013, chapter 2. 49  M.A. Gledon, M.W. Gordon and P.G. Carozza, Comparative Legal Traditions, West Nutshell Series, St. Paul, 2015, chapter 3. 50  For examples from the field of food law of the law represented as a tree, see: Bernd van der Meulen and Bart Wernaart, EU Food Law Handbook, Wageningen: Wageningen Academic Publishers 2020, pp. 49 and 163.

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food legal systems in common terms enabling comparison. We propose based on a structure we initially developed for research and teaching of EU Food Law.51 It has been adapted by Jasmin Buijs for the analysis of Chinese Food Law.52 As indicated in the introduction, comparative food law should be approached as a reiterative process. This means that the research should also feed back into the system to make it more relevant and general. The structure is designed in response to three structuring questions. These are the questions ‘who’, ‘what’ and ‘how’ in food law. These questions are translated to immanent concepts in food law, compared in light of the Codex Alimentarius. a. Who is Who The who question helps to set out the institutional framework. Which institutions play a role in food law? b. The Addressees of Food Law The who question further identifies the addressees of food law. Generally speaking, in most systems known to us, four groups of addressees can be identified. First, the legislator addresses the legislator (i.e., itself and delegated/implementing regulators). This may take the form of principles, objectives, definitions and the like. The most important group of stakeholders outside the legislature is food businesses. Those who produce and distribute food are the ones best placed to ensure the safety and quality of the food. Next, public authorities are granted implementing and executive powers, including enforcement and risk management. In this category, one will find the largest differences among countries, as it is intrinsically connected to the structure of the state: federal or unitary, centralised or decentralised. The last group consists of consumers. To a large extent food law can be understood as consumer protection law. The level of empowerment of consumers differs very much among countries. In the EU their empowerment is mostly economic. Food law helps them to make informed choices about the food they purchase and consume. In so far as they have standing in a court of law, they have to rely on consumer law more in general rather than on food law. In China, consumers are also legally empowered. China has introduced in the Food Safety Law the option to sue for punitive damages. Findings in China furthermore suggest that this last group of addressees should be expanded beyond consumers and encompass civil society more at large.  This framework has gradually developed. See B.J.M. Van der Meulen and M. Van der Velde, Food Safety Law in the European Union, Wageningen: Wageningen Academic Publishers, 2004, p. 146; B.M.J. Van der Meulen and M. Van der Velde, European Food Law Handbook, Wageningen: Wageningen Academic Publishers, 2008, p. 251. We discussed the concept as such in B.M.J. Van der Meulen, The System of Food Law in the European Union, Deakin Law Review, 14(2): 305–339, 2009, and in B.M.J. Van der Meulen, The Structure of European Food Law, Laws, 2: 69–98, 2013. We have taken it beyond a framework for analysis in: I. Scholten-Verheijen, T. Appelhof, R. Van den Heuvel and B.M.J. Van der Meulen, Roadmap to EU Food Law. The Hague: Eleven International Publishing/Sdu, 2011. 52  Jasmin Buijs, The Structure of Chinese Food Law, in: Altinay Urazbaeva et al., The Functional Field of Food Law: Reconciling the Market and Human Rights, Wageningen: Wageningen Academic Publishers 2019. Jasmin Buijs, Bernd van der Meulen, Juanjuan Sun and Li Jiao (eds.) Chinese Food Law: Legal-Systematic Analysis, Wageningen Academic Publishers 2023. DOI: 10.3920/978-90-8686-941-1. 51

212  Research handbook on international food law c. The Issues in Food Law The ‘what’ question in food law aims to identify the issues addressed. For the legislature, these are concepts, principles, objectives and the like. The most important issues for businesses cover rules for the product, rules for the process in production and distribution and rules on communication about food products, for example, in labelling and advertisement. Rules may also address the premises used for food activities. For authorities, issues addressed may include risk assessment, decision-making, risk management, risk communication and law enforcement. Finally, consumers may have rights to report, complain and sue. Under German legislation, consumers have been given a type of freedom of information rights not as is more common regarding government-related information but regarding business-related information.53 In Chinese food law, a principle of social governance applies. Under this principle, civil society has been given rights and obligations regarding food. Civil society includes not only consumers but also business associations and the press. d. The Content of Food Law Finally, the how question goes into the details of how the different issues are regulated. Examples will be provided here in section 8. e. Framework The framework described here can be depicted as shown in Table 10.2. We have limited the graphic design to a minimum.54 It is just a straightforward table. One could argue about the chosen sequence. Requirements on food businesses can be seen as primary in food law, and requirements on authorities as secondary. Businesses have to ensure food safety. Authorities have to ensure that companies do indeed ensure food safety. Nevertheless, we have chosen to place authorities ahead of companies because of possible overlaps with and continuations from requirements on the legislature. This chart can be used to design a table of contents for a paper presenting information on a certain food legal system. Such papers then provide the data for comparison in the next paper discussing similarities and differences.

8. WORKING WITH THE FRAMEWORK In this section we provide a sketch of what working with the framework may entail. We use the framework as a table of subsections. Under each heading we share some preliminary comparative observations.

  Markus Grube and Gerd Weyland, VIG: Gesetz zur Verbesserung de gesundheitsbezogenen Verbraucherinformationen – Verbraucherinformationsgesetz. Kommentar: BOD 2008. 54  For more creative designs see the sources mentioned in footnote 51. 53

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Table 10.2  A framework for comparative food law Addressee (‘who’)

Issue (‘what’)

Content (‘how’)

Details

Legislature Objectives of food law Protect consumers Principles Risk analysis Prevention Concepts Food Food safety Public authorities Institutional framework Competent authorities

Independent agencies?

Executive powers Risk assessment Role of science Risk communication Naming and shaming Risk management Regulations Decisions Enforcement Incident management Food businesses The business Registration Premises The product Standards Authorisation/positive lists Food additives GMOs Novel Foods Safety objectives Pathogens Residues Contaminants The process Prevention Hygiene HACCP Preparedness Traceability Response (Continued)

214  Research handbook on international food law Table 10.2   (Continued) Addressee (‘who’)

Issue (‘what’)

Content (‘how’)

Details Recall

Presentation Labelling Mandatory Allergens Protected designations Advertisement Claims Consumers/civil society Rights Access to information Access to procedures Financial compensation

a. Food Law Do the legal orders included in our analysis dedicate specific legislation to food? The Codex Alimentarius addresses nothing but food. It represents the core of substantive food law at the international level.55 In the USA, the FFDCA combines the field of food with drugs and cosmetics. In further regulations from the FDA, however, these three fields are distinguished (although not always separated). In this sense, it seems justifiable to say that food law is part of positive law in the USA.56 The same holds for the EU with its basic Regulation (EC) 178/2002, informally referred to as the General Food Law (GFL).57 As of the 2009 Food Safety Law (currently the 2015 Food Safety Law), also with regard to China, there can be no doubt that ‘food law’ is part of the legal system.58 As indicated earlier, situations are different, for example, in South Africa and the Russian Federation. Provisions of relevance for the food sector in Russia can be  On the Codex Alimentarius, see for example Bernd van der Meulen, Codex Alimentarius: The Impact of the Joint FAO/WHO Food Standards Programme on EU Food Law, European Institute for Food Law Working Paper Series 2018/04 . The FAO and WHO have developed a training package on the Codex Alimentarius . Mariëlle D. Matthee wrote her PhD thesis on The Codex Alimentarius Commission and Its Standards, Netherlands: T.M.C. Asser Press 2007. 56  Leading textbooks on US American food law are Michael T. Roberts, Food Law in the United States, Cambridge University Press 2016 and Neal Fortin, Food Regulation: Law, Science, Policy, and Practice, 2nd ed. Wiley 2016. 57  For a textbook see Bernd van der Meulen and Bart Wernaart (eds.) EU Food Law Handbook, Wageningen: Wageningen Academic Publishers 2020. 58  On Chinese food law see: Jasmin Buijs, Bernd van der Meulen, Juanjuan Sun and Li Jiao (eds.) Chinese Food Law. Legal-Systematic Analysis, Wageningen: Wageningen Academic Publishers 2023. DOI: 10.3920/978-90-8686-941-1. Francis G. Snyder, Food Safety Law in China: Making Transnational Law, Leiden: Koninklijke Brill nv 2016; Jérôme Lepeintre and Juanjuan Sun (eds.) Building Food Safety Governance in China, Luxembourg Publications Office of the European 55

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found within a system of so-called technical regulations and technical standards. This system covers products more in general, including – but not limited to – food products. b. Addressing the Legislature: Principles and Concepts i. Risk analysis Globally, food law increasingly faces requirements from international food law to provide scientific underpinning for its safety measures. The SPS Agreement speaks in this context of ‘risk assessment’. The concept of risk assessment was elaborated into a risk analysis framework connecting to risk assessment the concepts of risk management and risk communication. Ground-breaking work in this regard was performed in the USA by the American National Academy of Sciences’ National Research Council in 198359 and 1989.60 The Codex Alimentarius has adopted the risk analysis methodology.61 In the EU the General Food Law positions risk analysis as a principle of food law in the EU and the Member States.62 ii. Food If food law is the law related to food, then the way the concept of food is understood is of utmost importance for the scope of food law. Most legal systems provide a definition (see Table 10.3). One must be careful in drawing conclusions from the naked text of definitions without considering how they are used and understood in their proper context. With this proviso, nevertheless, some interesting observations can be made based on these definitions. It is easy to see that the definition in the FFDCA is by far the oldest. It seems to have influenced the definition used by neighbouring Canada. It stands apart from the other three. It seems evident that the EU and Chinese definitions are based on the Codex. From an outside perspective, a certain sense of humour cannot be denied in the American legislation presenting humans as just another kind of animal. In this approach, food for humans and feed for animals are not distinguished as in the EU. All five definitions seem to include food ingredients and are – thus – not limited to finished products. All five include drink in the definition. There appear to be interesting nuances in the approach to medicinal products. The EU rigorously excludes medicinal products from the food definition, whereas the other definitions seem to allow for a certain overlap. The Codex and the Chinese definition only exclude those substances that are exclusively used for medicinal purposes. The USA and Canada do not refer to medicinal products, at least not in their definition of food.

Union 2018; and Ines Härtel (ed.) Handbook of Agri-Food Law in China, Germany, European Union: Food Security, Food Safety, Sustainable Use of Resources in Agriculture, Springer 2019. 59  National Research Council, Committee on the Institutional Means for Assessment of Risks to Public Health, Commission on Life Sciences, Risk Assessment in the Federal Government: Managing the Process, 1983 (popularly known as the ‘Red Book’), available at . 60  National Research Council, Committee on Risk Perception and Communication, Improving Risk Communication, 1989, available at . 61  Procedural Manual 26th edition, section IV pp. 123–208. 62  Article 6 of Regulation 178/2002 (the General Food Law).

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Notes: a Procedural manual of the Codex Alimentarius Commission. b USC Title 21 § 321(f). c Article 2 Regulation (EC) 178/2002. d Article 150(1) of the 2015 FSL, translated by Peking University.

‘Food’ means the finished products and raw materials for people to eat or drink, as well as items which are traditionally both food and Chinese medicinal materials, excluding items used for the purpose of treatment.

For the purposes of this Regulation, ‘food’ (or ‘foodstuff’) means any substance or product, whether processed, partially processed or unprocessed, intended to be, or reasonably expected to be ingested by humans.‘Food’ includes drink, chewing gum and any substance, including water, intentionally incorporated into the food during its manufacture, preparation or treatment. It includes water after the point of compliance as defined in Article 6 of Directive 98/83/EC and without prejudice to the requirements of Directives 80/778/ EEC and 98/83/EC.‘Food’ shall not include:

Any article manufactured, sold or represented for use as a food or drink for human beings, including chewing gum, and any ingredients that may be mixed with food for any purpose whatever.

The term ‘food’ means (1) articles used for food or drink for man or other animals, (2) chewing gum, and (3) articles used for components of any such article.

For the purposes of the Codex Alimentarius: Food means any substance, whether processed, semiprocessed or raw, which is intended for human consumption, and includes drink, chewing gum and any substance which has been used in the manufacture, preparation or treatment of ‘food’ but does not include cosmetics or tobacco or substances used only as drugs. (a) feed; (b) live animals unless they are prepared for placing on the market for human consumption; (c) plants prior to harvesting; (d) medicinal products […]; (e) cosmetics […]; (f) tobacco and tobacco products […]; (g) narcotic or psychotropic substances within the meaning of the United Nations Single Convention on Narcotic Drugs, 1961, and the United Nations Convention on Psychotropic Substances, 1971; (h) residues and contaminants.

FSL (China)d

GFL (EU)c

Food and Drugs Act (Canada)

FFDCA (USA)b

Codex Alimentariusa

Table 10.3   Food definitions

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c. Addressing Public Authorities Under this heading we address the institutional design – i.e. who are the competent authorities – and then the competencies provided to these authorities. i. Institutional design In many countries, food-related competencies are allocated to the ministerial department of public health or agriculture. Often they are shared among both departments. Instead, or in addition, regulatory agencies may play a role. Globally attention is given to the FDA model used in the USA and the EFSA model used in the EU. These models relate to the embeddedness of food law and the relation between science and decision-making. In the FDA food is related to drugs. A possible advantage could be that this may help navigate borderline issues between food and medicine. In many countries, for example, in the Middle East, we find Food and Drug Authorities/Administrations. In the EU, competencies regarding medicines are allocated to different institutions than competencies regarding food. The most important difference between the FDA and the EFSA model, however, is the role of science. Increasingly globally food law aspires to be science based. Related to this ambition is how to connect science to decision making. In the FDA, science and the power to decide are in the same hand. This is efficient from the perspective of coordination. In the EU (and also under the Codex Alimentarius) it is considered a matter of principle that science should be independent of decision-making (which is considered the realm of politics). For this reason, EFSA is exclusively charged with science and almost fully devoid of decision-making powers. In this way, the scientific assessment is thought to be protected from political opportunism. After the food legal reform in China resulting in the 2009 Food Safety Law, important competencies had been allocated to the CFDA, the China Food and Drug Administration. Risk assessment, however, was the competence of China’s National Center for Food Safety Risk Assessment (CFSA) under the Ministry of Health. China has changed its institutional design more frequently than its substantive food law. At the time of the 2015 Food Safety Law, competencies in food law were combined with competencies in other fields of consumer protection and market governance into a newly formed entity at the ministerial level called State Administration for Market Regulation (SAMR). Risk assessment remains with the CFSA. d. Addressing Food Businesses i. Product requirements Product standards In most countries, we find standards addressing individual foods setting out their composition and many other aspects. The Codex Alimentarius includes a long list of product standards. In some countries such as the Russian Federation, the People’s Republic of China and Germanspeaking countries,63 these standards represent the most important approach to food.  In Germany, Austria and Switzerland one finds so-called food books (Lebensmittelbuch). These aim at exhaustively describing the foods on the market. In current food legal theory they are seen as codifications of consumer expectation. It is not mandatory for a product to comply with the book, but if it does not this should be made explicit on the label.

63

218  Research handbook on international food law But also in countries where their role is more marginal, we find them. In the EU they are informally referred to as verticals. In the USA they are known as standards of identity. Product standards are usually linked to the product name. The protected name (such as ‘chocolate’) may be used only for products that comply with the standard. Sometimes the use of this name is even mandatory. Positive lists Another type of requirement addressing the product relates to which ingredients can be used freely and which types of ingredients require prior authorisation. In most countries, the most common foods can be freely used as food ingredients. A possible exception is Indonesia. As far as we understood, in Indonesia, to be fit for the market, food products must be registered. Products not covered by registration are considered illegal. In more countries, registration requirements apply to imported foods. Most countries require prior authorisation for food additives. The definitions in Table 10.4 suggest that the concept of ‘food additive’ is understood in a much wider sense in the USA (‘any substance’) than in the other jurisdictions (‘added for a technological purpose’). To make up for this difference in scope, the EU and China have brought additional categories of foods under authorisation requirements, including GMOs and Novel Foods (EU) and New Food raw materials (China). The USA has added an interesting element. Products that are ‘GRAS’ (Generally Recognised as Safe) are outside the scope of the definition and, therefore, outside the scope of authorisation requirements. In other countries, we have not found such categories of ‘no concern’ that do not have to be submitted to the usually heavy authorisation procedures. In our view, it makes the more common systems rigid that the authorisation requirement continues to apply to all products covered by the definition, even those where there is no reason for concern. The Codex Alimentarius has developed an international numbering system (INS) for food additives.64 All additives included in the Codex list receive a number. The EU uses the same numbers adding an ‘E’ to the numbers of additives authorised in the EU (therefore: ‘E-numbers’).65 A third type of legislation on the product sets limits to the presence of chemical or microbiological contaminants. From the perspective of comparative food law, this type of legislation has a specifically interesting feature. This feature is that the law expresses itself in numbers. Numbers provide a basis that makes it much easier to assess in which country the law is more or less strict. Moreover, if the factors that are considered in setting the numbers are known, the comparatists’ efforts may be supported by science. Limits may apply to substances naturally present in the environment or due to pollution. These limits are often referred to as maximum limits (MLs). Limits may also apply to residues of substances intentionally introduced, such as veterinary drugs and pesticides. These limits are often referred to as maximum residue limits (MRLs). The Codex Alimentarius refers to these limits together as ‘food safety objectives’.66

 CXG 36-1989.  Regulation 1333/2008 on food additives. 66  The Codex Alimentarius Procedural Manual (27th edition 2019, p. 129 available on the FAO website) provides the following definition: ‘Food Safety Objective (FSO) The maximum frequency and/ 64 65

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Table 10.4  Definitions of food additives Codex Alimentarius

FFDCA (USA)

Reg. 1333/2008 (EU)

FSL (China)

Food Additive means any substance not normally consumed as a food by itself and not normally used as a typical ingredient of the food, whether or not it has nutritive value, the intentional addition of which to food for a technological (including organoleptic) purpose in the manufacture, processing, preparation, treatment, packing, packaging, transport or holding of such food results, or may be reasonably expected to result, (directly or indirectly) in it or its by-products becoming a component of or otherwise affecting the characteristics of such foods. The term does not include ‘contaminants’ or substances added to food for maintaining or improving nutritional qualities.

The term ‘food additive’ means any substance the intended use of which results or may reasonably be expected to result, directly or indirectly, in its becoming a component or otherwise affecting the characteristics of any food (including any substance intended for use in producing, manufacturing, packing, processing, preparing, treating, packaging, transporting, or holding food; and including any source of radiation intended for any such use), if such substance is not generally recognised, among experts qualified by scientific training and experience to evaluate its safety, as having been adequately shown through scientific procedures (or, in the case of a substance used in food prior to January 1, 1958, through either scientific procedures or experience based on common use in food) to be safe under the conditions of its intended use; except that such term does not include […]

‘Food additive’ shall mean any substance not normally consumed as a food in itself and not normally used as a characteristic ingredient of food, whether or not it has nutritive value, the intentional addition of which to food for a technological purpose in the manufacture, processing, preparation, treatment, packaging, transport or storage of such food results, or may be reasonably expected to result, in it or its by-products becoming directly or indirectly a component of such foods; The following are not considered to be food additives: […]

Food Additive means any synthetic or natural substance used to improve the quality, colour, fragrance, and flavour of food, and which is added to the food or contained together with the food to prevent corrosion, maintain freshness or due to processing technology requirements, including nutrient supplements.

ii. Process requirements Process requirements focus on what businesses have to do. In food safety, process requirements can be subdivided into prevention, preparedness and response. Prevention requirements aim to ensure as much as possible that food safety problems will not occur. In the language of the Codex Alimentarius and of EU food law, this is referred to as ‘hygiene’. or concentration of a hazard in a food at the time of consumption that provides or contributes to the appropriate level of protection (ALOP)’.

220  Research handbook on international food law ‘Hygiene’ means all the measures that must be taken to ensure food safety. The word does not seem to be used in the USA. The USA does use a more narrow ‘sanitation’ concept. ‘Sanitation’ focuses on cleaning activities in food businesses which obviously are an important part of hygiene. In the USA, in space travel, a food safety methodology has been developed known as HACCP (Hazard Analysis and Critical Control Point). HACCP has been adopted and developed by the Codex Alimentarius. Its use is mandatory over the board in the EU. It is recommended in China. In Canada, HACCP is mandatory in some sectors and recommended in others. HACCP was never fully adopted in the USA. The Food Safety Modernization Act has opted for a slightly different approach: HARPC (Hazard Analysis and Risk-Based Preventive Controls).67 Preparedness relates to actions undertaken to be ready to deal with food safety incidents. Among these, the implementation of traceability systems is important in the EU, China and the USA. In case of food safety incidents, measures can be taken by different stakeholders. Authorities may issue public warnings and undertake enforcement actions. For businesses, the key obligation in the USA, China and the EU is to recall the affected products. The Codex Alimentarius does not distinguish preparedness and response from hygiene. Both traceability and recall are included in the General Principles of Food Hygiene (CXC 1-1969). iii. Presentation requirements Regulation of the communication from food businesses to consumers usually covers both food labelling and advertisements. It covers information that must be provided, information that may be provided if certain requirements are met, and information that is prohibited. By way of example, in this section, we provide two tables on mandatory information: first, the list of issues that must be mentioned on every food label (Table 10.5); next, the list of allergens that must be highlighted on the label (Table 10.6). As allergies and intolerances are responses of the body rather than intrinsic properties of the food (like toxicity) it is not possible to create an exhaustive list. The occurrence of allergies and intolerances differs between countries. The Codex Alimentarius has created a list of the most common globally. China and the USA have followed the Codex, while the EU has expanded the list. The most important example of regulated voluntary information would be nutrition and health claims. As this topic is very complex, we choose not to include it now in this general account of comparative food law.68 The most important example of prohibited information would be therapeutic (or medicinal) claims. In most countries of the world it is forbidden to claim that foods can be used to treat or cure a human disease.69

 USC 21 § 350g.  For an example, see: Anita Kušar et  al., Comparison of Requirements for Using Health Claims on Foods in the European Union, the USA, Canada, and Australia/New Zealand, Comprehensive Reviews in Food Science and Food Safety, Wiley 2021 . 69  Alie de Boer, Interactions Between Nutrition and Medicine in Effect and Law, PhD thesis Maastricht University, 2015, p. 131. 67

68

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Table 10.5  Mandatory particulars in food labelling Codex Alimentariusa

USAb

EUc

Chinad

Name of the food

Statement of identity of the food

Name of the food

Name of the food

List of ingredients

Designation of ingredients

List of ingredients

List of ingredients

The following foods and ingredients are known to cause hypersensitivity

Major allergen identification

Any ingredient or processing aid listed causing allergies or intolerances, used in the manufacture or preparation of a food and still present in the finished product, even if in an altered form

Net contents and drained Net contents weight

Net quantity of the food

Name and address

Name or business name and Name and place address of the food business of business of manufacturer, packer, operator or distributor

Country of origin

Country of origin

Net quantity Contact details of the food producer

Country of origin or place of provenance where provided for

Lot identification

Lot identification

Date marking and storage instructions

Date of minimum durability or ‘use by’ date

Instructions for use

Any special storage conditions and/or conditions of use; instructions for use where it would be difficult to make appropriate use of the food in the absence of such instructions

Quantitative ingredients declaration

Quantity of certain ingredients or categories of ingredients

Production date, date of minimum durability, and storage requirements

Code of product standard(s) Production license number Nutrition facts

Nutrition declaration

Nutrition informatione

Notes: a General Standard for the Labelling of Prepackaged Foods Codex (Stan 1-1985). b CFR Title 21 – Food and Drugs; Part 101 Food Labeling. So far, we have not found in the law or in regulations in the USA a straightforward listing of mandatory particulars for food labels in general. c Article 9 Regulation (EU) 1169/2011 on food information to consumers. d Article 67 of the 2015 FSL. e Note that nutrition information is not listed as a mandatory particular in Article 67 of the 2015 FSL. However, this Article does refer to other requirements as stipulated by other relevant legal provisions. This includes the Standard for Nutrition Labeling of Pre-packaged Foods (GB 28050-2011), according to which nutrition information is mandatory for all regular pre-packaged foods. While health foods and pre-packaged foods for special dietary uses are excluded from the scope of the GB 28050-2011, they are subject to nutrition information requirements under their own regulatory regime.

222  Research handbook on international food law Table 10.6  Lists of allergens in food labelling Allergen

Codex Alimentariusa

USA

EU b

China

Cereals containing gluten

+

+

+

+

Crustaceans

+

+

+

+

Eggs

+

+

+

+

Fish

+

+

+

+

Peanuts

+

+

+

+

Soybeans

+

+

+

+

Milk

+

+

+

+

Tree nuts

+

+

+

+

Sulphite in concentrations of 10 mg/kg or more

+

–

+

–

Celery

–

–

+

–

Mustard

–

–

+

–

Sesame

–

–

+

–

Lupin

–

–

+

–

Molluscs

–

–

+

–

Notes: a General Standard for the Labelling of Prepackaged Foods Codex (Stan 1-1985). b Regulation (EU) 1169/2011 on food information to consumers.

A contested element in food labelling relates to protected geographic indications. The EU strongly advocates the protection of reputation of speciality products originating from a certain geographically indicated area. At WTO level the TRIPs Agreement allows for the protection of geographical indications. The USA strongly opposes this approach and is much more inclined to see food names as generic and protection limited to trademarks. Should, for example, the indications such as ‘Bordeaux’ or ‘Champagne’ be reserved for wines from certain regions in France, or can they be used to indicate any wine of the same style? Apparently, in the Russian Federation, the Russian word ‘shampanskoye’ (the equivalent of champagne) has recently been reserved for a Russian product, imposing on other products, including the French original, the label ‘sparkling wine’.70 At the global level, a tug of war emerged between the USA and the EU, both trying to bring their trading partners to their point of view. The EU has concluded a comprehensive agreement with China.71 As a consequence, as of 1 March 2021, the EU register of protected designations now holds a great number of Chinese indications. On the other hand, we have witnessed concerning wines in the market a shift from an

 BBC News, France in a Fizz over Russia’s Champagne Label Law, 6 July 2021 . 71  See: EUChina Agreement Protecting Geographical Indications Enters into Force . 70

Comparative food law 

223

emphasis on origin (‘Bordeaux’) to type of grape (‘Chardonnay’). This may well indicate an influence of US thinking in food law on day-to-day practices globally. e. Addressing Civil Society Probably everywhere in the world, at least one of the purposes of food law is to protect consumers. Most of this protection will be in the safety of the food and the reliability of food labels. It is a different matter to what extent consumers are empowered with legal instruments and, if they are, if this can be considered part of food law or rather finds its basis in more general consumer protection legislation. If they have instruments, can they use them against food businesses, or are they (also) entitled that authorities take action on their behalf? In the EU consumers can sue under general product liability law.72 Whether they have rights in relation to food safety authorities is a matter of national administrative law and may vary among member states.73 In China, the 2015 Food Safety Law gives consumers the right to sue for punitive damages.74 In this way, they are enlisted in inspection and the enforcement of food law. One of the principles of the 2015 FSL in China is the principle of social governance. Under this principle, civil society is provided a place in food law. Enterprise standards, for example, are embedded in the food legal system. The press is responsible for providing food safety information. It is not allowed for the press to disseminate false or alarming information. In India and also in China75 celebrities endorsing a food product in advertisements can be held personally liable in case of advertising false information. The part of food law addressing consumers and civil society may at present be the least developed part of comparative food law.

9. CONCLUSION Comparative food law is in its infancy. This chapter should not be understood as setting out rules that have to be followed in comparative food legal research. Rather it is a proposal and an invitation to our colleagues to consider preparing papers for comparative food legal research along the lines set out here. The advantage of following the same structured approach is in the compatibility of the generated data. In applying the system, the system itself will be changed, modified and further developed as well. Aspects of law found in legal systems submitted to study that cannot easily be fitted into the system may inspire the addition of new angles to the structure.  Directive 85/374/EEC.  It seems that mostly consumers complaining about food businesses are considered a source of information that authorities can use at their discretion, rather than rights holders. 74  Under Article 148 of the 2015 FSL, consumers are entitled to claim from food producers or distributors, in addition to the losses suffered, ten times the amount paid or three times the losses suffered. At least the amount of RMB 1,000 (≈ EUR 130) shall be compensated. For an assessment of case law, see Zheng Yu, Xiao Pinghui and Yang He, The Flaws of Food Labels and the Application of the Punitive Damages Principle, in: Altinay Urazbaeva et al. (eds.) The Functional Field of Food Law, Wageningen: Wageningen Academic Publishers 2019, chapter 24, pp. 365–380. 75  Article 56 and 62 of the Advertisement Law (2015). 72 73

224  Research handbook on international food law There is always the possibility that researchers may reject the proposed system in whole or in part. We invite these researchers to make explicit what they consider a better way of doing things, so we can learn from one another in an open and constructive academic atmosphere, true to the short academic tradition in comparative law. Worldwide, food law is an emerging field of law. Approaching it comparatively will contribute to its growth, development and understanding.

PART II INTERNATIONAL FOOD GOVERNANCE AND LAW FRAMEWORKS 

FOOD TRADE AND SAFETY 

11. Global governance of food safety: the role of the FAO, WHO, and Codex Alimentarius in regulatory harmonization Neal D. Fortin

I. INTRODUCTION: THE HISTORY AND NEED FOR GLOBAL GOVERNANCE OF FOOD SAFETY This chapter explains how the system of global governance of food safety operates. First, however, the chapter lays a foundation explaining the need for global governance of food safety. In short, history illustrates and emphasizes the importance of global governance of food safety through food safety scandals reverberating across time. This is the price paid for the periodic lack of appreciation for or remembrance of the need for global governance of food safety. The chapter closes with observations about the need today and in the future. A. Early History The need for food laws is as old as the trade in food.1 Food laws are found in the earliest ancient writings of many cultures. These laws express concern with the fundamentals: honesty and wholesomeness. That is, do not cheat and do not adulterate food. The Code of Hammurabi, the ancient Babylonian written law, which dates to 1755–1750 BCE, provides that a tavern keeper who short measures the beer is to be punished by being thrown into the water.2 In the second century BCE China, market agents had a duty “to prohibit the making of spurious products and the defrauding of purchasers.”3 Later, in the Tang Dynasty, the legal code punished the selling of meat that caused an illness with a flogging of 90 strokes or hanging if the consumer died. Sanskrit law from 300 BCE imposed fines for the adulteration of grains, oil, or salt.4 Many ancient Greek and Roman writings indicate widespread adulteration of food. In particular, wine was a concern. Pliny the Elder complained of Gallic wine, “the dealers have set up regular factories where they receive a dark hue to their wine by means of smoke, and, I regret to say, employ noxious herbs.”5 Pliny also spoke of the adulteration of flour with chalk to increase its whiteness.6  F. Leslie Hart, A History of the Adulteration of Food before 1906, 7 Food Drug Cosm. L.J. 5 (1952).   The Code of Hammurabi, § 108 (L.W. King trans., The Yale Avalon Project 2008), https://avalon​ .law​.yale​.edu​/ancient​/ hamframe​.asp. 3  Hart, supra note 1, at 7. 4   Id. 5  John Bostock, Translator; Riley, H. T., Translator. Natural History of Pliny, Book XIV, 243 (1855–1857). 6   Id., Book XVIII, at 42. 1 2

227

228  Research handbook on international food law The earliest laws were simple because the earliest adulteration was simple. Adulteration was limited because the food was largely unprocessed. Whole coffee beans, for instance, provide less opportunity for adulteration than ground coffee. It is difficult to adulterate whole beans, but ground coffee has a history of adulteration with everything from floor sweepings to nutshells.7 Early food trade consisted mostly of raw and unprocessed foods, such as whole grains and spices that the purchaser would grind when needed. Fruits and vegetables were fresh or dried but whole. In these circumstances, consumers served as their own food inspectors, sniffing fish and meat for freshness, checking fruit and vegetables for spoilage, and examining grain for mold.8 As food commodities were processed, for instance, grain ground into flour and flour baked into bread, the opportunities for adulteration increased. Bread, wine, and beer were three of the earliest manufactured foods, so it is no surprise that some of the earliest food laws apply to these foods.9 In those early times, wine, beer, bread, honey, and oils were the few foods that presented a ready opportunity for intentional adulteration. In addition, as trade increased, the opportunity for adulteration also increased. Quite simply, the longer the supply chain and the more hands involved, the more opportunity for intentional and unintentional adulteration. Moreover, consumers can better assess the reputation of purveyors of food when production is local. Nonetheless, reputation is a porous proxy for wholesome and honest sources of food. Under most circumstances, consumers cannot directly examine and ensure the food’s safety or honest presentation. Pathogens and toxins can be odorless and tasteless. Many forms of economic adulteration are only detectable with sophisticated analytical chemistry. For example, consumers may not be able to taste the dilution of orange juice with sugar and pulp wash, and a fillet of zander cannot be distinguished from a fillet of lake perch without sophisticated DNA testing. Nor is eliminating trade a remedy. The Dark Ages after the fall of Rome saw a collapse of trade, yet the time is known as a tumultuous period, facing struggles with pestilence, hunger, and wars. Local trade still faced problems with adulteration and short measure. Pillories were used to punish the sellers of bad meat, poultry, and fish. For selling short weight, a baker might have a loaf hung around his neck while in the pillory. Putting good grain on the top of a sack and bad grain below was a documented problem.10 False weights, false measures, and false pretenses were so common that no buyer could trust a seller.11

  See Peter Barton Hutt & Peter Barton Hutt II, A History of Government Regulation of Adulteration and Misbranding of Food, 39 Food Drug Cosm. L.J., 2, 19 (1984); Hart, supra note 1, at 16–17 (noting common coffee adulteration with chicory, roasted wheat, corn, acorn, coconut shell, dogbiscuit, and the weirdest, roasted ox or horse liver).  8  Wallace F. Janssen, America’s First Food and Drug Laws, 30 Food Drug Cosm. L.J. 665 (1975).  9   Id. at 666. 10  Hart, supra note 1, at 9 (citing Pike, History of Crime in England [1873]). 11   Id.  7

Global governance of food safety  229 B. Evolution of International Food Trade While chalk and alum and plaster are sold to the poor for bread. Alfred Lord Tennyson, Maud (1855)12

The sixteenth through the eighteenth centuries were an era of colonial expansion that coincided with increased demand for trade in agricultural goods from around the world.13 As demand for and value of imported goods rose, so did the incentive to adulterate and the opportunity to sell adulterated food. During this period, food production began shifting from the home to manufacturers. As a larger population moved to the cities, they needed more manufactured foods, which increased opportunities for adulteration. Laws were enacted to prohibit adulteration, but without methods of detection, the laws provided minimal protection. With the development of analytical chemistry in the 1800s and the application of the microscope to food examination, adulteration and foreign substances were identified and quantified in a scope unimagined in the past. The publication of Frederick Accum’s A Treatise on Adulterations of Food and Culinary Poisons in 1820 unveiled widespread and common adulteration.14 Accum noted, “Indeed, it would be difficult to mention a single article of food which is not to be met within an adulterated state; and there are some substances which are scarcely ever to be procured genuine.”15 Accum documented pickles made green with copper and vinegar sharpened with sulfuric acid. He wrote of cream adulterated with rice powder and arrowroot, custard poisoned with laurel leaves, tea falsified with other leaves, pepper mixed with floor sweepings, and candies dyed red with lead. “Good Heaven!” exclaimed one reader, “Is there no end to these infamous doings?”16 Although Accum detailed the adulteration in England, his treatise was a worldwide success.17 The extent of adulteration uncovered was and still is startling. The success and attention created by the treatise inspired further investigation. For instance, in the United States, Dr. E.D. Faust published the article, “Original and Select Observations on the Detection of Adulterations.”18 Accum’s work detailed the dangers, including death, from adulteration; nonetheless, no legislative reform occurred.19 The early nineteenth century was the height of laissez-faire capitalism, which called for eliminating government regulation of business. This economic philosophy held sway even when proven unrealistic as scientists found additional ways to detect adulteration of food.

  Alfred Tennyson, Maud and Other Poems 12 (1855).  Hart, supra note 1, at 11. 14   Frederick Accum, A Treatise on Adulterations of Food and Culinary Poisons (1820). 15  Hutt & Hutt II, supra note 7, at 33 (quoting Accum, supra note 14, at 3). 16   Bea Wilson, Swindled: The Dark History of Food Fraud, From Poisoned Candy to Counterfeit Coffee 3 (2008). 17   See id. 18  Hart, supra note 1, at 15; J. Edwin D. Faust, Original and Select Observations on the Detection of Adulterations, 19 Am. J. Sci. & Arts 70 (1831). 19  The cover leaf of the accum treatise bears the quote, “There is Death in the Pot,” from II Kings 4:40. 12 13

230  Research handbook on international food law Although the microscope had been available for two centuries, it was not until the nineteenth century that scientists began to use it to show the adulteration of food. In particular, the works of Dr. A.H. Hassall in the 1850s, primarily employing a microscope, showed widespread foreign matter and substitution in foods. Additional scientists documented adulteration and the public health consequences in the latter half of the nineteenth century.20 Although adulteration of food had been a centuries-old concern, the exposure of the problem by scientists eventually made legislative action unavoidable. In the period around 1880, over 73 percent of the milk in Buffalo, New York, was watered; 41 percent of the samples of ground coffee in New York were adulterated; and 71 percent of the olive oil in New York and Massachusetts was adulterated with cottonseed oil.21 Consequently, the latter half of the nineteenth century was one of increased legislative activity in the US states.

II.

THE NEED FOR INTERNATIONAL LEADERSHIP Food regulations in different countries are often conflicting and contradictory. Legislation governing preservation, nomenclature and acceptable food standards often varies widely from country to country. New legislation not based on scientific knowledge is often introduced, and little account may be taken of nutritional principles in formulating regulations. Report of the First Meeting of the Joint FAO/WHO Expert Committee on Nutrition, 195022

The latter half of the nineteenth century and the twentieth century saw an evolution of food laws and food control systems. This was largely to keep pace with the evolution of the food systems. Food chemistry and analytical chemistry also increased in sophistication and usefulness for distinguishing safe food from unsafe food and for identifying economically adulterated food. Accordingly, the number and complexity of national food laws increased. This independent development of food laws in various countries created a mismatch of different standards globally. Disparate standards create barriers to trade. Trade associations reacted to these barriers by lobbying for harmonized food standards. A prominent example of such an association is the International Dairy Federation, which was founded in 1903. The International Standards Organization (ISO), which first met in 1947, was also important in harmonizing standards. Heading into the latter half of the twentieth century, there was both growing analytical ability and scientific understanding of the quality and safety of food and related health hazards. There was also an increasing consumer awareness and interest in the quality and safety of their food. As the public’s understanding of food safety grew, consumers’ consciousness

  Lewis C. Beck, Adulteration of Various Substances Use in Medicine and the Arts (1846); M.L. Byrn, Detection of Fraud and Protection of Health: A Treatise on the Adulteration of Food and Drink (1852); T.H. Hoskins, What We Eat: An Account of the Most Common Adulterations of Food and Drink (1861); P.H. Felker, What the Grocers Sell Us: A Manual for Buyers (1880); E.H. Richards, Foods Materials And Their Adulterations (1886); and J.P. Battershall, Food Adulteration and its Detection (1887). 21  Hart, supra note 1, at 21. 22   Joint FAO/WHO Expert Committee on Nutrition: Report on the First Session, Geneva, 24–28 October 1949, 16 World Health Org. Tech. Rep. Series 24 (1950). 20

Global governance of food safety  231 expanded beyond what they could see to include concerns over pathogens, pesticide residues, environmental contaminants, and chemical food additives. Informed and concerned consumers pressured their governments to increase their protection against hazardous or misrepresented food. This led to countries acting independently and creating rules without any effort at harmonization. Not only did this impede trade, but it also provided haphazard protection for consumers. Regulators, consumers, and traders, in particular, looked for international leadership. Food trade had increased beyond what could have been imagined before. At the same time, there was a growing recognition that a large portion of the world did not get enough of the right type of food. There was an increasing understanding of the importance of good nutrition for public health and well-being. Against this background, the Food and Agriculture Organization (FAO) and the World Health Organization (WHO) were founded. A. The FAO was Established in 1945 In 1943, US President Franklin Roosevelt invited allied governments to a United Nations Conference on Food and Agriculture held in Hot Springs, Virginia.23 They set up a United Nations Interim Commission on Food and Agriculture, which led to the formal establishment of the Food and Agriculture Organization (FAO) on October 16, 1945, at the first session of the FAO conference in Quebec. The organization had responsibilities covering world hunger, nutrition, and associated international food standards. The preamble of the FOA constitution reads in part as follows: [T]o promote the common welfare by further separate and collective action on their part for the purpose of: Raising the levels of nutrition and standards of living of the peoples under their respective jurisdictions; Securing improvements in the efficiency of the production and distribution of all food and agricultural products; Bettering the condition of rural populations; And thus contributing toward an expanding world economy and ensuring humanity’s freedom from hunger; Hereby establish the Food and Agriculture Organization of the United Nations.

B. WHO was Established in 1948 The United Nations (UN) was set up at a conference held in San Francisco, California, in April of 1945. At that meeting, the representatives of Brazil and China proposed an international health organization. In 1946 a proposal for a Constitution of the World Health Organization was drafted, and an interim commission was created to carry out certain health-related activities until the World Health Organization was active. The Constitution of the World Health Organization came into effect on April 7, 1948. The first Health Assembly opened in Geneva on June 24, 1948. The interim commission ceased to exist at midnight on August 31, 1948, and was immediately succeeded by WHO.   Ralph Phillips, FAO: Its Origins, Formation, and Evolution 1945–1981, at 5 (FAO 1981). Note that these “united nations” were united allies during the world war. The United Nations as an international body was established in 1945.

23

232  Research handbook on international food law Because both the World Health Organization and Food and Agriculture Organization have related responsibilities for food standards, it was natural that the organizations convene joint activities. In the early 1950s, there was a concern over the increasing use of chemicals in food, and the two organizations proposed conducting joint studies on the public health implications. The FAO and WHO convened the first joint FAO/WHO Conference on Food Additives in 1955. That conference led to the creation of the Joint FAO/WHO Expert Committee on Food Additives (JECFA). The committee serves as a scientific advisory body on the safety of food additives, food contaminants, and residues of veterinary drugs in food. The committee also served as a model for later joint FAO and WHO scientific advisory bodies that followed. The JECFA continues to hold importance in the development of international standards for food additives, contaminants, and drug residues. At this time, the FAO and WHO continued to work together on food-related matters. Nongovernmental organizations also worked to create international standards for food commodities. For example, the International Dairy Federation was founded in 1903 to work on harmonizing standards for milk and milk products. The International Dairy Federation and other international trade associations formed committees, which developed model international standards and then lobbied governments to adopt these harmonized standards. Due to their involvement in international trade, these associations recognized that differing national food laws and standards imposed barriers to trade. As international trade increased, the burden of these trade barriers grew. These activities led to a growing awareness of the need for international standards and also the need for an international body to create harmonized international food standards. This growing awareness extended beyond trade to include a recognition of the increasing importance of food and agriculture trade to the economies of nations. Moreover, model international food standards were a means to help ensure safe and wholesome food and to protect consumers.24 C. Codex Alimentarius Commission was Founded in 1963 Against this background of recognition of the desirability of international agreement on minimum food standards as an important factor for protecting the consumers’ health and for reducing trade barriers, in 1961 the FAO and the WHO discussed proposals for the establishment of an international food standards program. Discussions included the United Nations Economic Commission for Europe, the Organization for Economic Co-operation and Development (OECD), and the Council of the Codex Alimentarius Europaeus. In November 1961, the FAO Conference passed a resolution to set up the Codex Alimentarius Commission.25 In May 1963, the World Health Assembly approved the establishment of the Joint FAO/WHO Food Standards Programme and adopted the Statutes of the Codex Alimentarius Commission.26 The Codex Alimentarius Commission held its first meeting in Rome, from June 25 to July 3, 1963.

  Id. at 127.  Food and Agriculture Organization [FAO] Res. 12/61 (Nov. 24, 1961). 26  World Health Assembly Res. WHA16.42 (May 23, 1963). 24 25

Global governance of food safety  233

III.

THE CODEX ALIMENTARIUS COMMISSION

A. What Codex Alimentarius is In the time since 1963, the Codex Alimentarius Commission has become the world’s principal international food standard-setting body. The two primary objectives of the Codex Alimentarius Commission are protecting consumers’ health and ensuring fair practices in the food trade. To accomplish these objectives, the Codex Alimentarius Commission develops and publishes international food standards and guidelines. These published standards are referred to collectively as the Codex Alimentarius or simply Codex. “Codex Alimentarius” is Latin for the “Food Book” or “Food Code.” As explained in the Codex Alimentarius Commission Procedural Manual: Purpose of the Codex Alimentarius 1. The Codex Alimentarius is a collection of internationally adopted food standards and related texts [such as codes of practice, guidelines, and other recommendations]. presented in a uniform manner. These food standards and related texts aim at protecting consumers’ health and ensuring fair practices in the food trade. The publication of the Codex Alimentarius is intended to guide and promote the elaboration and establishment of definitions and requirements for foods to assist in their harmonization and in doing so to facilitate international trade. Scope of the Codex Alimentarius 2. The Codex Alimentarius includes standards for all the principle foods, whether processed, semi-processed or raw, for distribution to the consumer. Materials for further processing into foods should be included to the extent necessary to achieve the purposes of the Codex Alimentarius as defined. The Codex Alimentarius includes provisions in respect of food hygiene, food additives, residues of pesticides and veterinary drugs, contaminants, labelling and presentation, methods of analysis and sampling, and import and export inspection and certification.27

1. Broad involvement The Codex Alimentarius is voluntary, and the standards and related texts serve as models. Nations must adopt or translate the Codex Alimentarius into national legislation before it can be enforced. This voluntary nature requires that the Codex Alimentarius Commission ensure that Codex standards are credible and authoritative. This requires extensive consultation, which takes time. Information must be collected, discussed, and evaluated to ensure sound scientific positions. Specialists from numerous scientific disciplines are consulted. For their scientific expertise, the Codex Alimentarius Commission relies heavily on the joint committees of the WHO and FAO.

27

  Codex Alimentarius Commission, Procedural Manual 29 (27th ed. 2007) [hereinafter Manual].

234  Research handbook on international food law In addition, the Codex Alimentarius Commission must ensure that the standards protect consumers and ensure fair trade practices. This endeavor requires not only specialists in food safety but also consumers’ organizations, those in the food businesses, and government administrators. Finally, the Codex Alimentarius Commission must ensure broad participation from nations around the globe. To do this, it is necessary to ensure that the standards are feasible and applicable in the many varied conditions around the world. Being voluntary standards, broad involvement in the creation of the standards contributes to broad adoption. Such broad involvement has a collateral benefit in creating a global interchange of scientific research and increasing awareness of issues related to food safety and wholesomeness. One means for fostering broader involvement is through the creation of the six Codex regional coordinating committees. These committees provide geographical coverage that allows for defining regional needs and concerns. The regional committees also are designed to encourage countries to participate more actively and effectively in Codex. The FAO/WHO regional coordinating committees are Africa, Asia, Europe, Latin America and the Caribbean, Near East, North America, and the South West Pacific. In 2021, Codex Alimentarius Commission had 189 members composed of 188 countries and one member organization (the European Community).28 This represents 99 percent of the world’s population. Membership is open to all Member Nations and Associate Members of the FAO and WHO interested in international food standards.29 2. Scientifically sound standards While a major impetus for the Codex Alimentarius was to facilitate international fair trade, protecting consumers’ health and safety has been another major factor. Often dual objectives result in one being primary and the other secondary. However, there is little conflict between the two primary goals of the Codex Alimentarius Commission because absent food safety, food trade is disrupted. Accordingly, the foundation of Codex standards is sound scientific evidence. The first statement of principle concerning the role of science in the Codex decision-making process says, “The food standards, guidelines and other recommendations of Codex Alimentarius shall be based on the principle of sound scientific analysis and evidence, involving a thorough review of all relevant information, in order that the standards assure the quality and safety of the food supply.”30 3. The legitimacy of Codex Alimentarius The legitimacy of the Codex Alimentarius rests its reliance on sound science and its inclusiveness and openness. Stakeholders are able to participate in Codex’s development of standards. This includes an exceptional opportunity for participation by consumer and industry representatives as well as government officials. In addition, there is the opportunity for nations of all sizes and stages of development. Consumer organizations have been represented at Codex sessions since 1965. Industry representatives also have an exceptional opportunity to participate. Consumer and industry   Members, FAO, www​.fao​.org​/fao​-who​-codexalimentarius​/about​-codex​/members​/en/ (last visited July 1, 2021). 29  Article 2 of the Statutes for the Commission defines eligibility for membership on the Commission. 30   Manual, supra note 27, at 194. 28

Global governance of food safety  235 representatives and other members of the public cannot vote and officially are “observers,” but in practice, they are typically allowed to participate in discussions and receive all working documents in advance of the meetings. The Codex Alimentarius Secretariat disseminates Codex documents, including working papers, information papers, and meeting reports to international organizations and member nations’ Codex contact points. National Codex contact points are also expected to disseminate this information to interested stakeholders. In addition, these documents are readily available on the Codex website. B. How Codex Works 1. The committee structure of Codex Alimentarius Most of the work of Codex is completed through committees and other subsidiary bodies. The four types of committees are general subject committees, commodity committees, ad hoc intergovernmental task forces, and regional coordinating committees. a. General subject committees As the name implies, the general subject committees work on topics with a general scope that applies to all foods. These committees are known as horizontal committees because their work applies across the various specific commodities and committees. The general subject committees are the following: • • • • • • • • • •

General Principles Food Additives Contaminants in Foods Food Hygiene Food Labelling Methods of Analysis and Sampling Pesticide Residues Residues of Veterinary Drugs in Foods Food Import and Export Inspections and Certificate Systems Nutrition and Foods for Special Dietary Uses

b. Codex commodity committees The Codex commodity committees work on matters that relate to a specific food commodity rather than across different commodities. For example, the Committee on Processed Fruits and Vegetables works on standards for processed fruits and vegetables. The terms of reference for each Codex commodity committee are detailed in the Codex Procedural Manual. The Codex commodity committees are known as “vertical” committees because of their responsibility vertically over a specific commodity but not horizontally across other food commodities. The Codex committee meetings are held typically every year but sometimes up to two-year intervals. Attendance at some of the committee meetings nearly matches the attendance at the sessions of the Codex Alimentarius Commission. The Codex committees are, of course, essential for carrying out the work of Codex. They are also key to the success of the Codex Alimentarius Commission on a limited budget. The operating expenses of the Codex Alimentarius Commission are borne in the budgets of the FAO and WHO, but the expenses of the Codex committees are borne by the member country that hosts the committee.

236  Research handbook on international food law The active Codex commodity committees are: • • • •

Codex Committee on Fish and Fishery Products (CCFFP) Codex Committee on Fresh Fruit and Vegetables (CCFFV) Codex Committee on Fats and Oils (CCFO) Codex Committee on Spices and Culinary Herbs (CCSCH)

Codex commodity committees that have adjourned sine die remain adjourned until the Codex Alimentarius Commission requires further work on an issue. There are eight commodity committees adjourned sine die, which are the following: • • • • • • • •

Codex Committee on Cocoa Products and Chocolate (CCCPC) Codex Committee on Cereals, Pulses and Legumes (CCCPL) Codex Committee on Milk and Milk Products (CCMMP) Codex Committee on Meat Hygiene (CCMPH) Codex Committee on Natural Mineral Waters (CCNMW) Codex Committee on Processed Fruits and Vegetables (CCPFV) Codex Committee on Sugars (CCS) Codex Committee on Vegetable Proteins (CCVP)

Five Codex commodity committees were abolished: • • • • •

Codex Committee on Edible Ices (CCIE) Codex Committee on Meat (CCM) Codex Committee on Processed Meat and Poultry Products (CCPMPP) Codex Committee on Soups and Broths (CCSB) Joint CODEX/IOOC Meeting on the Standardization of Table Olives (CXTO)

c. Ad hoc intergovernmental task forces In 1999, the Codex Alimentarius Commission created a third category of Codex subsidiary body, the ad hoc intergovernmental task force. These are established for a designated period of time to accomplish a specific task. The Codex Alimentarius Commission has established the following ad hoc intergovernmental task forces: • • • • •

Task Force on Animal Feeding, 2000–2004 and 2011–2013 Task Force on Foods Derived from Biotechnology, 1999–2003 and 2005–2008 Task Force on Fruit and Vegetable Juices, 1999–2005 Task Force on the Handling and Processing of Quick Frozen Foods, 2006–2008 Task Force on Antimicrobial Resistance, 2006–2011

2. The eight-step procedure for approval of Codex standards Before beginning the development of a standard, a proposal is typically discussed in a Codex committee, where a discussion paper is produced. Proposals are then sent to the Codex Executive Committee for review and approval according to an eight-step procedure:31   Manual, supra note 27, at 23–25.

31

Global governance of food safety  237 Step 1: The proposal is reviewed by the Executive Committee or the Codex Alimentarius Commission and evaluated according to the criteria and priorities established by the commission. Step 2: The Codex Secretariat prepares a proposed draft standard. Step 3: A draft text is circulated to member countries and all interested parties for comment. Step 4: The draft and the comments are reviewed by the applicable committee, and, if necessary, a revised draft is prepared. The draft may also be sent at this point to related Codex committees for special review; for example, a commodity standard might be sent to the labeling committee for review of any labeling provisions. Step 5: The Commission reviews the progress and must agree that the draft should go forward toward finalization. After this stage, the draft must also be endorsed by the relevant general subject committees so that it is consistent with Codex general standards. Step 6: The approved draft is sent again to governments and interested parties for comment. Step 7: Any comments are reviewed by the assigned Codex committee. If needed, the draft is amended and finalized by that committee. Step 8: Following a final round of comments, the draft is submitted to the Codex Executive Committee for review. The Executive Committee forwards the draft to the Codex Alimentarius Commission. If the commission adopts the draft as a formal Codex text, the standard, guideline, or other text is published by the Codex Secretariat as part of the Codex Alimentarius. Sometimes to expedite the process a draft standard might skip a step. In particular, steps six and seven may be omitted, resulting in faster adoption. However, a draft standard might also go backward one or more steps when further work is necessary. Moreover, a draft can be broken into parts, and the parts may progress separately and be at different steps. For instance, an appendix may advance in steps while the main draft remains behind for further work. 3. Reliance on consultation of expert scientific bodies Codex relies on independent expert scientific bodies for scientific risk assessments and other scientific advice. In particular, Codex relies on the joint FAO and WHO expert bodies. Although they have the same parent organizations, the joint FAO and WHO expert bodies are independent of the Codex Alimentarius Commission. These expert bodies contain scientific experts who come from many different nations. These scientists are appointed in their personal capacity and do not represent their nation’s interest. The main FAO-WHO expert scientific bodies significant to Codex are the Joint FAO/WHO Expert Committee on Food Additives (JECFA), the Joint Meeting on Pesticide Residues (JMPR), and the Joint FAO/WHO Expert Meetings on Microbiological Risk Assessment (JEMRA). a. JECFA The Joint FAO/WHO Expert Committee on Food Additives (JECFA) was established in 1955. Since then, JECFA has evaluated the safety of more than 2,500 food additives. While JECFA was established initially to evaluate the safety of food additives, its work now also encompasses the risk assessments and safety evaluations of flavorings, veterinary drug residues in animal products, contaminants, and natural toxins. The committee has also developed general principles for the safety assessments of chemicals in food.

238  Research handbook on international food law b. JMPR The Joint Meeting of Pesticide Residues (JMPR) was established in 1963. This committee conducts scientific evaluations of pesticide residues in food. It also works to harmonize the risk assessment of pesticide residues. JMPR provides the basis for the Codex maximum residue levels (MRLs) for pesticides in food and agricultural commodities. c. JEMRA The Joint FAO/WHO Expert Meetings on Microbiological Risk Assessment (JEMRA) was established in 2000. This committee was established in response to the requests from the Codex Alimentarius Commission and FAO and WHO member countries for risk-based scientific advice on microbiological food safety issues. FAO describes the role of the committee as “JEMRA aims to develop and optimise the utility of Microbiological Risk Assessment (MRA) as a tool to inform actions and decisions aimed at improving food safety and to make it equally available to both developing and developed countries.”32 d. Other scientific bodies In addition to FAO and WHO advice, Codex may and does seek other scientific advice. For instance, the International Atomic Energy Agency provides advice and support on levels of radionuclide contamination in foods and on food irradiation. The World Organization for Animal Health (OIE) provides advice on animal diseases affecting humans and on the connections between animal health and food safety.

IV.

TRADE AGREEMENTS AND CODEX

Global trade in food and agricultural goods has increased in value and volume over the past few decades.33 In 2019 agricultural goods represented 22 percent of all international trade and US$1.2 trillion. The largest exporters are Brazil, Mexico, Canada, the Netherlands, and the United States.34 For these countries, the export of food and agricultural goods are major contributors to their national economies. However, for many developing countries, the trade in food and agricultural goods is critical to their economies, even if they export smaller absolute quantities. A. WTO The global harmonization of food standards can contribute to protecting consumers as well as facilitating trade. Of course, the harmonization of food standards reduces the transaction costs of international trade. It reduces the cost traders face when required to meet different and diverse standards. However, harmonization around scientifically sound standards can contribute to protecting consumers. Because a primary concern of national governments is that food  FAO, Microbiological Risks and JEMRA, www​.fao​.org​/food ​/food​-safety​-quality​/scientific​-advice​/ jemra​/en/ (last visited July 7, 2021). 33   Agricultural Products Global Trade Through 2019, Chatham House Resource Trade Data, https:// resourcetrade​.earth/​?year​=2019​&category​=1​&units​=value​&autozoom=1 (last visited July 1, 2021). 34   Id. 32

Global governance of food safety  239 imported from other countries should be safe, this can also reduce the cost to national governments in regulating importers and imported foods through more efficient regulatory oversight of imported goods. Thus, it is not surprising that when the WTO sought to facilitate international food trade, it looked to the Codex Alimentarius as a means toward harmonizing food standards. Member nations of the Codex Alimentarius Commission are not required to adopt the Codex. Nor does the WTO agreement require the adoption of the Codex. However, the WTO agreements have made the Codex Alimentarius more than a model. The WTO agreements make Codex the presumptively valid international standards. Codex Alimentarius is accepted as providing necessary levels of health and safety protection. On the other hand, if a WTO member wishes to adopt a standard more restrictive than the Codex, it may do so, but it must be able to justify the increased restriction based on sound science and risk assessment. The GATT Uruguay Round Agreements in 1986–1994 first included agriculture and food trading rules. Then the 1994 Marrakesh Agreement, which established the World Trade Organization, included the Application of Sanitary and Phytosanitary Measures (SPS) Agreement and the Agreement on Technical Barriers to Trade (TBT). These agreements acknowledge the Codex Alimentarius as presumptively valid for health and safety standards. B. The SPS Agreement The SPS Agreement covers government measures taken to protect animal, plant, or human health. The agreement recognizes that governments may impose sanitary and phytosanitary restrictions that are necessary to protect health and safety. However, national measures to protect human, animal, and plant health must be based on scientific assessment of risk. Annex A.1 of the SPS Agreement defines an “SPS measure” as Any measure applied: (a) to protect animal or plant life or health within the territory of the Member from risks arising from the entry, establishment or spread of pests, diseases, disease-carrying organisms or disease-causing organisms; (b) to protect human or animal life or health within the territory of the Member from risks arising from additives, contaminants, toxins or disease-causing organisms in foods, beverages or feedstuffs; (c) to protect human life or health within the territory of the Member from risks arising from diseases carried by animals, plants or products thereof, or from the entry, establishment or spread of pests; or (d) to prevent or limit other damage within the territory of the Member from the entry, establishment or spread of pests.

Under the SPS Agreement, national SPS measures must be applied only to the extent required to protect human, animal, or plant health. Additionally, governments must apply their standards in a uniform, nondiscriminatory manner so as not to discriminate between countries with similar or identical conditions. SPS measures that exceed the necessary restriction or are discriminatory are deemed to be disguised barriers to trade.

240  Research handbook on international food law The SPS Agreement states that “as possible Members shall base” their standards on international standards.35 Nothing requires nations to adopt international standards, but if a nation chooses to adopt standards, the nation is expected to base its law on any applicable international standards. However, exceptions are permitted for health and safety. If a nation’s sanitary and phytosanitary requirements conform to international standards, the soundness of their scientific basis is presumed valid.36 The so-called three sisters of the SPS Agreement—Codex, OIE, and IPPC—set the most important international standards for SPS purposes.37 Thus, the standards established by the Codex Alimentarius Commission for food additives, veterinary drug and pesticide residues, contaminants, methods of analysis and sampling, and codes and guidelines of hygienic practice are recognized by the SPS Agreement as presumptively valid SPS measures. If a nation applies import requirements that are stricter than Codex, OIE, or IPPC standards, applies more stringent requirements to imported products than to domestic products, or establishes SPS measures in areas where no international standards exist, the national government must be prepared to justify its actions with a scientific assessment of the risks. In addition, these requirements cannot be more restrictive than necessary to protect health and safety. C. The TBT Agreement The TBT Agreement applies to technical regulations and standards, such as labeling requirements and analytical procedures for assessing conformity with technical regulations and standards. The TBT Agreement applies to all government regulations of products and is not specific to food. Annex 1.1 of the TBT Agreement defines a “technical regulation” as the following: Document which lays down product characteristics or their related processes and production methods, including the applicable administrative provisions, with which compliance is mandatory. It may also include or deal exclusively with terminology, symbols, packaging, marking or labelling requirements as they apply to a product, process or production method.

Technical barriers may have important functions, such as informing consumers, preventing deceptive practices, and protecting the environment. However, technical requirements can also be a form of hidden protectionism. The TBT Agreement states that nations may not create unnecessary obstacles to trade. TBT Agreement Article 2.1 requires that: [I]n respect of technical regulations. Products imported from the territory of any Member shall be accorded treatment no less favourable than that accorded to like products of national origin and to like products originating in any other country.

Article 2.2 requires that WTO members shall ensure that technical regulations “are not prepared, adopted or applied with a view to or with the effect of creating unnecessary obstacles  Agreement on the Application of Sanitary and Phytosanitary Measures, art. 3.1, April 15, 1994 [hereinafter SPS Agreement]. 36  SPS Agreement, art. 3. 37  The following is a brief summary. See Understanding the SPS Agreement, WTO (May 1998), www​ .wto​.org​/english ​/tratop​_e​/sps​_e​/spsund​_e​.htm for additional details. 35

Global governance of food safety  241 to international trade.” Article 2.2 provides that for this purpose, “technical regulations shall not be more trade-restrictive than necessary to fulfill a legitimate objective, taking account of the risks non-fulfilment would create.” The TBT Agreement states that member nations “shall use” the relevant international standards “as the basis for their technical regulations” (with exceptions), which implies the Codex Alimentarius (and the World Organization for Animal Health [OIE] and the International Plant Protection Convention [IPPC]).38 Several TBT disputes have resulted in findings that WTO members had acted inconsistently with their TBT Agreement obligations.

V. OBSERVATIONS AND CONCLUSIONS This chapter began with ancient history. Why does history matter to us today? Through all recorded history, through all the ages of written law, for thousands of years, honesty and wholesomeness of food and drink have been vital concerns of society and the law. Unfortunately, amnesia for this history periodically has resulted in periods of deregulation, such as the laissez-faire era of nineteenth-century America. Deregulation of food safety inevitably resulted in market failures with consequential illness, suffering, and death. These market failures also threw sand into the economic engine of free enterprise. Businesses cannot be rewarded for providing the safety consumers want and must also divert resources from safety measures to compete with lower-cost competitors. Lack of governance of food safety creates market pressure downward in safety because scrupulous providers are undercut by competitors willing to cut corners on food safety. Although repeated again and again, many still do not understand this history. As the prudent have noted, those who fail to learn from history are condemned to repeat it.39 It is so easy to think that our modern age is different—consumers are more aware; consumers have tools to make discerning choices, the speed of modern communications, and so forth. Prominent authority figures have opined that we do not need food safety law because businesses will self-police.40 The ideology has an allure. The proponents of laissez-faire cited the idealism of Jefferson for small property owners free from big government interference, as well as Adam Smith, who was cited for unfettered individualism as the greatest good. If all men were saints, those ideals might be achieved in pure form, but food safety governance is needed because not all men are saints. If one believes in free markets, one must also understand that government regulation is necessary to correct market failures. Prudent food safety governance is necessary to preserve the free market. An unbroken history of thousands of years demonstrates the vital and never-ending need.  Agreement on Technical Barriers to Trade, art. 2.4, April, 1994.  “Those who cannot remember the past are condemned to repeat it.” George Santayana, The Life of Reason (1905); and in a 1948 speech to the House of Commons, Winston Churchill said, “Those who fail to learn from history are condemned to repeat it.” 40  E.g., economist Milton Friedman called for the abolishment of the FDA because he thought the food and drug industry would police themselves. What would protect the public from dangerous or ineffective drugs? “It’s in the self-interest of pharmaceutical companies not to have these bad things,” he insisted in a 1999 interview. Peter Robinson, Uncommon Knowledge, Take It to The Limits: Milton Friedman on Libertarianism, Hoover Institution (December 20, 2010), www​.hoover​.org​ /research​/take​-it​-limits​-milton​-friedman​-libertarianism. 38 39

242  Research handbook on international food law Global trade in food requires global governance of food safety. As food and agricultural goods move across national borders, government regulators and food businesses cannot simply think in national terms but must consider the challenges that come with international trade. Although there are many cultural and other differences regarding the regulation of food, governments and consumers should embrace a common need for food safety regulation. International harmonization of food standards is desirable from a global trade and economic perspective and is an important tool for improving food safety and consumer protection. National food and agriculture systems are porous to global risks. And the number and scale of the risks are daunting, including microbial pathogens, parasites, prions, unlabeled allergens, chemical contaminants, food fraud, pesticide residues, illegal colorings, unapproved food additives, animal drug residues, and environmental contaminants. Importers and importing nations can test goods as they come into ports of entry; however, border checks will never fully ensure food safety. It is impossible to use testing as a substitute for sound processing practices. At the same time, as a practical matter, government regulators cannot inspect the practices of food establishments in all foreign operations. Therefore, fostering good food production practices globally has no substitute. The harmonization of international food standards is difficult and time-consuming. Nonetheless, governments, traders, and consumers should embrace the efforts to harmonize regulatory and food safety standards. These efforts can also help reduce unjustified regulations that fail to improve food safety or protect consumers and improve international food safety through science-based standards. There is no global food safety regulator. Nor are nations likely to yield sovereignty to create a global food safety regulatory body. Therefore, a voluntary system is what is achievable. Therefore, the Codex Alimentarius Commission and the World Trade Organization are the best means to improve global food safety while removing unjustified regulations and facilitating international trade. The Codex Alimentarius includes Hazard Analysis and Critical Control Point (HACCP) guidelines and codes of practice. The Codex codes of practice, such as General Principles of Food Hygiene41 and Code of Hygienic Practice for Aseptically Processed and Packaged Low-Acid Foods,42 recognize that food safety is built into the process. While it is common to attack globalization, it is clear that globalization, WTO, and Codex Alimentarius thus have been a positive force for global food safety. The WTO has been a force for the rule of law, international cooperation, and harmonization. Codex Alimentarius has been a force for transparency, stakeholder involvement, and harmonization of sciencebased food safety standards. At the same time, consumers have a rich variety of foods all year round and at better prices than would be available if local producers were shielded from international competition.

 Codex Alimentarius Commission, General Principles of Food Hygiene, CXC 1-1969. Adopted in 1969. Amended in 1999. Revised in 1997, 2003, 2020. Editorial corrections in 2011. 42   Codex Alimentarius Commission, Code of Hygienic Practice for Aseptically Processed and Packaged Low-Acid Foods, CAC/RCP 40-1993. 41

12. Interactions between food safety protection and trade liberalization in the WTO and FTAs Ching-Fu Lin

I. INTRODUCTION With the rapid globalization of the production, distribution, and consumption of food against the background of trade liberalization in recent decades, food safety issues have crossed state borders and pose significant governance challenges to economic development and public health.1 Food safety is a multi-level, multi-faceted, and interdisciplinary field of regulation and governance, extending into sensitive policy areas that have significant economic, public health, social, and political ramifications.2 While such ramifications go way beyond international trade, the rubrics of World Trade Organization (WTO) law, particularly the Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement),3 have played a crucial role in governments’ design and adoption of regulatory measures. The decade-long WTO dispute settlement mechanism between the European Union and the United States over the prohibition of market placing and the importation of meat and meat products treated with certain hormones – known as the Hormones case – highlights the controversial aspects of international standardization, science-based risk assessment, and the precautionary principle (or lack thereof) under WTO law.4 More recently, the dispute between   See e.g., Organization for Economic Co-operation and Development, Economic Outlook for Southeast Asia, China and India 2017: Addressing Energy Challenges 118 (2017). 2   See generally Ching-Fu Lin, Global Food Safety: Exploring Key Elements for an International Regulatory Strategy, 51 Va. J. Int’l L. 637 (2011). 3  Agreement on the Application of Sanitary and Phytosanitary Measures, Annex 1A, The Legal Texts: The Results of the Uruguay Round of Multilateral Trade Negotiations 59 (2000), 1867 U.N.T.S. 493 (1994) [hereinafter SPS Agreement]. Since most countries are Members of the World Trade Organization (WTO), their regulatory measures on food safety and other plant or animal health issues, potentially having an effect on international trade, fall within the scope of these WTO rules. For a comprehensive analysis of the SPS Agreement, see Joanne Scott, The WTO Agreement on Sanitary and Phytosanitary Measures: A Commentary (2007); Lukasz Gruszczynski, Regulating Health and Environmental Risks under WTO Law: A Critical Analysis of the SPS Agreement (2010). 4  In the area of health, environment, and food safety, the precautionary principle is a broad legal and policy approach to harnessing emerging technologies or innovative applications which have potential for causing significant or irreversible harm when sufficient scientific knowledge and certainty on their risks is lacking. The WTO SPS Agreement, as clarified by the Appellate Body in its jurisprudence, does not uphold the “precautionary principle” per se, but only reflects the “precautionary approach” in Article 5.7 of the Agreement. See European Communities – Measures Concerning Meat and Meat Products (EC – Hormones), WTO Panel Report, WT/DS26/R, WT/ DS48/R, as modified by WTO Appellate Body Report, WT/DS26/AB/R, WT/DS48/AB/R, adopted 13 February 1998; European Communities – Measures Affecting the Approval and Marketing of Biotech Products (EC – Biotech (GMOs)), WTO Panel Report, WT/DS291/R, WT/DS292/R, 1

243

244  Research handbook on international food law Korea and Japan over the legality of regulatory measures in response to the 2011 Fukushima Dai-ichi Nuclear Power Plant accident – known as the Fukushima case – not only intensifies the tension between a country’s regulatory autonomy and international trade rules but also raises important questions about emergency measures, proportionality, and science-oriented disciplines.5 These controversies and debates remain unresolved even a decade after the Fukushima accident,6 especially when Japan decided in early 2021 to release contaminated water that originated from the destroyed nuclear power plant into the Pacific Ocean, which again led to food safety concerns at the domestic and global levels.7 At the heart of food safety issues with cross-border implications, the international regulatory landscape built on the SPS Agreement, as well as recent free trade agreements (FTAs, and as will be discussed, the SPS Chapters contained therein), are of paramount importance and relevance. The SPS Agreement recognizes the fundamental right of WTO Members to “take SPS measures necessary for the protection of human, animal or plant life or health, provided that such measures are not inconsistent with the provisions of this Agreement.”8 While this dual purpose underlines the SPS Agreement, how are international trade rules designed and implemented to strike a proper balance, if any, between trade and health? What potential friction points pose challenges to the WTO regime and call for changes in its institutional design? Are there emerging spheres of global governance that could potentially complement the multilateral trading system with a better equilibrium? Indeed, the dynamic interactions between food safety protection and trade liberalization, particularly in the context of the WTO and FTAs, merit careful scholarly and practical assessment. This chapter therefore aims to examine the key pillars of the WTO SPS Agreements in section II, including inter alia the requirements of scientific justification and risk assessment; incentives to harmonize with relevant international standards, recommendations, and guidelines; transparency and equivalence mechanisms; and precautionary, provisional measures. Section II also discusses the challenges faced by the international trading regime in striking an appropriate balance between trade liberalization and health protection after the advent of the SPS Agreement. These challenges have led to increased friction among countries and called for innovative ways to reconfigure the existing rules. Important developments in recent FTAs

WT/DS293/R, adopted 21 November 2006; and United States/Canada – Continued Suspension of Obligations in the EC – Hormones Dispute, WTO Panel Report, WT/DS320/R, WT/DS321/R, as modified by WTO Appellate Body Report, WT/DS320/AB/R, WT/DS321/AB/R, adopted on 10 November 2008. 5   Korea – Import Bans, and Testing and Certification Requirements for Radionuclides (Korea – Radionuclides), WTO Panel Report, WT/DS495/R, as modified by WTO Appellate Body Report, WT/DS495/AB/R, adopted 26 April 2019. 6  On 11 March 2011, an earthquake of magnitude 9.0 in the region of East Japan led to a 15-meter tsunami that disabled the power supply and cooling of three Fukushima Daiichi reactors, causing a series of major nuclear accidents. Because of the high radioactive release over a long timeframe, the Fukushima Dai-ichi Nuclear Power Plant accident was rated level 7 on the International Nuclear and Radiological Event Scale, and official figures show that there have been at least 2,313 accidentrelated deaths in addition to the about 19,500 indivudials killed by the earthquake or tsunami. World Nuclear Association, Fukushima Daiichi Accident (updated April 2021), https://world​-nuclear​.org​/ information​-library​/safety​-and​-security​/safety​-of​-plants​/fukushima​-daiichi​-accident​.aspx. 7   Fukushima: Japan Approves Releasing Wastewater into Ocean, BBC News (14 April 2021), www​ .bbc​.com​/news​/world​-asia​-56728068. 8  SPS Agreement, art. 2.1.

Food safety protection and trade liberalization in the WTO and FTAs  245 include the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP, formally known as Trans-Pacific Partnership, a mega-FTA initiative led by the United States), the United States-Mexico-Canada Agreement (USMCA), and the EU-Canada Comprehensive Economic and Trade Agreement (CETA). This chapter analyzes these in section III regarding their implementations for global food safety governance. Another dimension of analysis is the active steps taken by major players in global agri-food trade, particularly the United States and the European Union, to export their food safety (and SPS more broadly) regulatory models to other countries. Efforts such as these can set an important premise for regulatory convergence and collaboration. Section IV concludes by offering a normative outlook.

II.

KEY PILLARS OF THE WTO SPS AGREEMENT

The SPS Agreement is one of the WTO-covered agreements negotiated by Members during the Uruguay Round and constitutes an integral part of the WTO law. The SPS Agreement is designed to discipline the way WTO Members adopt and maintain sanitary or phytosanitary (SPS) measures because such measures could become unjustifiable non-tariff barriers to trade. In addition to animal and plant health measures, food safety law and regulations that could affect international trade – such as approval procedures for genetically modified organisms (GMOs), maximum residue level (MRL) for the use of ractopamine in beef and pork products, quarantine restrictions on imported apples against fire blight, and any other foodborne health risks such as additives, contaminants, toxins, and disease-causing organisms, all fall under the scope of the SPS Agreement. At the Uruguay Round, the negotiators sought to address the insufficiency of the General Agreement on Tariffs and Trade (GATT) 1947 and harness agricultural protectionism under the guise of domestic health regulation, turning to science as an objective benchmark that could regulate arbitrary and unjustifiable measures.9 By upholding the role of science in the policymaking process, the SPS Agreement is designed to strike a balance between two competing objectives: to protect human, animal, and plant life and health while also ensuring fair trade practices and non-discrimination among WTO Members.10 Anchoring science as a benchmark to evaluate the WTO Members’ regulatory measures that fall under its auspice, the SPS Agreement imposes new requirements on risk assessment, harmonization, and transparency, among others. Considered together, the SPS Agreement represents the collective effort of WTO Members to close the gap between genuine health-protection measures and protectionist technical regulations “through the regulation of regulation and by defining the limits to legitimate diversity.”11

 Ching-Fu Lin, Scientification of Politics and Politicization of Science: Reassessing the Limits of International Food Safety Lawmaking, 15 Colum. Sci. & Tech. L. Rev. 1, 1–5 (2013). 10  Jeffery Atik, Trade and Health, in Oxford Handbook of International Trade Law 598, 599 (Daniel Bethlehem et al. eds., 2009). 11  Scott, supra note 3, at 44.  9

246  Research handbook on international food law Harmonization of Regulatory Measures through Reference to International Standards The SPS Agreement explicitly underlines a preference for the use of international standards, guidelines, and recommendations, particularly those adopted under the “three sisters” organizations – the Codex Alimentarius Commission (Codex or CAC), the International Office of Epizootics (OIE), and the International Plant Protection Convention (IPPC) framework.12 While Members are entitled to adopt food safety measures to protect human life and health, they are required to base their SPS measures on international standards, guidelines, or recommendations, where they exist, so as to “harmonize [SPS] measures on as wide basis as possible.”13 In this regard, food safety measures are deemed “necessary to protect human, animal, or plant health” and presumed to be consistent with the SPS Agreement and GATT 1994 if they conform to relevant international standards, guidelines, and recommendations.14 An SPS measure that is merely based on but has yet to conform to the relevant international standard, however, does not receive this presumption of legality. When a WTO Member decides to deviate from a relevant international standard and pursues a different level of protection, or when no relevant international standards are in place, the SPS Agreement requires the WTO Member to provide scientific evidence and risk assessments to justify its SPS measures if challenged before the WTO dispute settlement body (see the following in Science as the Cornerstone of Regulatory Measures).15 These requirements of scientific evidence and risk assessments often prove formidable, and the defending Members in the majority of the past disputes were found inconsistent with these requirements.16 The tension between scientific justification requirements and WTO Members’ regulatory autonomy has been demonstrated evidently in the previous disputes on GMOs and hormones.17 The WTO’s mandatory dispute settlement system makes binding adjudicatory decisions, potentially with retaliation authorizations, which present weighty legal consequences to the defending Member.18 Regarding food safety standards, the WTO generally refrains from participating in the standard-setting process yet explicitly refers to the CAC as the default reference.19 Increasingly, the CAC has become an influential anchor in most food-safety-related SPS disputes.20 As

 SPS Agreement, annex A.  SPS Agreement, art. 3.1. 14  SPS Agreement, art. 3.2. 15  SPS Agreement, arts. 3.3 and 5. 16   See generally Ching-Fu Lin & Yoshiko Naiki, An SPS Dispute without Science? The Fukushima Case and the Dichotomy of Science/Non-Science Obligations under the SPS Agreement, 33(2) Eur. J. Int’l L. 651 (2022). 17   See disputes and relevant jurisprudence in EC – Hormones and EC – Biotech (GMOs), supra note 4. 18   See, e.g., Mitsuo Matsushita et al., The World Trade Organization: Law, Practice, and Policy (2nd ed. 2006); WTO, Understanding the WTO (5th ed. 2008), at 103–140. 19  SPS art. 3.1 and annex A.3. The SPS Agreement specifically refers to three international standard-setting bodies, now as the oft-called “Three Sisters”: the Codex dealing with food safety, the International Plant Protection Convention (IPPC) dealing with plant health, and the World Organization for Animal Health (OIE) dealing with animal health. 20  Alberto Alemanno, Trade in Food: Regulatory and Judicial Approaches in the EC and the WTO 262–267; Bruce Silverglade, The WTO Agreement on Sanitary and Phytosanitary Measures: Weakening Food Safety Regulations to Facilitate Trade? 55 Food & Drug L.J. 517, 518–524 (2000). 12 13

Food safety protection and trade liberalization in the WTO and FTAs  247 some commentators have pointed out, the CAC might be regarded as the international quasilegislator in food safety,21 as its SPS standards, guidelines, and recommendations have become de facto mandatory for many WTO Members.22 Some controversies have emerged over the Codex’s shift from a technical body unaffected by political or commercial interests to an increasingly politicized trade battlefield,23 with problems arising such as recurrent use of majority voting rather than consensus in the proceedings,24 weak participation of developing countries,25 and deficits in legitimacy and scientific authority.26 Such issues could render the Codex unbalanced regarding its two (competing) mandates: protecting consumer health and ensuring fair food trade practices. In light of this development, it is crucial that all WTO Members be able to participate meaningfully in the work of the three-sisters organizations involved in setting international SPS-related standards, recommendations, and guidelines and that a proper mechanism and process for deliberation and standard-setting be ensured.27 Science as the Cornerstone of Regulatory Measures If no relevant international standards or recommendations exist or if a WTO Member aims to achieve a higher level of protection28 that cannot be met by the existing international  Joel P. Trachtman, The World Trading System, the International Legal System and Multilevel Choice, 12 Eur. L.J. 469, 480 (2006); Frode Veggeland & Svein Ole Borgen, Changing the Codex: The Role of International Institutions 10 (Norwegian Agric. Econ. Res. Inst., Working Paper No. 2002-16, 2002), http://tinyurl​.com ​/235njpz. 22  Steve Charnovitz, Triangulating the World Trade Organization, 96 Am. J. Int’l L. 28, 51 (2002). 23   See Alberto Alemanno, Trade in Food: Regulatory and Judicial Approaches in the EC and the WTO 262–263 (2007). As put by Alemanno, the express reliance on the Codex standards, guidelines, and recommendations has “an impact not only on their functioning but also on their nature.” Id. at 262. As the Codex standards directly or indirectly play a role in the results of WTO disputesettlement cases, “WTO members have incentives to make sure that the new standards of the Codex, IPPC and OIE find inspiration in their current or future national SPS measures.” See also Lin, supra note 9. 24   Id. at 263–267. This tactic, in turn, renders the recent Codex standards short of consensus and weakens their legitimacy and scientific authority. 25   See Michael A. Livermore, Authority and Legitimacy in Global Governance: Deliberation, Institutional Differentiation, and the Codex Alimentarius, 81 NYU L. Rev. 766, 781–789 (2006); Sara Poli, The European Community and the Adoption of International Food Standards within the Codex Alimentarius Commission, 10(5) Eur. L. J. 613 (2004). 26   See David Jukes, The Codex Alimentarius Commission – Current Status, 12 Food Sci. & Tech. Today 207 (1998). Jukes discusses the growing realization that the Codex may become politicized as it loses its ability to make decisions based strictly on science. For a comprehensive analysis on the challenges and opportunities of the Codex, see Thorsten Hüller & Matthias Leonhard Maier, Fixing the Codex? Global Food Safety Governance Under Review, in Constitutionalism, Multilevel Trade Governance and Social Regulation 267–299 (Christian Joerges & Ernst-Ulrich Petersmann eds., 2006). 27  In this vein, the work of the Standards and Trade Development Facility (STDF), which was established by the Food and Agriculture Organization, the World Health Organization, and the WTO, together with the OIE and the World Bank, seems to be on the right track. 28  Under the SPS Agreement, it is a “prerogative” of WTO Members to determine their own appropriate level of protection, which can be determined in either quantitative or qualitative terms. Australia – Measures Affecting Importation of Salmon (Australia – Salmon), WTO Appellate Body Report, WT/DS18/AB/R, adopted 6 November 1998, paras. 199 and 206. A WTO Member usually enjoys significant discretion and considerable flexibility in setting its appropriate level of SPS protection. 21

248  Research handbook on international food law instruments, as noted, the WTO Members can exercise their right to adopt SPS measures “to the extent necessary to protect human, animal, or plant life or health.”29 However, the WTO Member bears an obligation to ensure that such SPS measures are “based on scientific principles” and “not maintained without sufficient scientific evidence.”30 This marks the SPS Agreement’s normative baseline, which requires the measure to be based on sound science.31 The fundamental rule of sound science is further explored in Article 5 of the SPS Agreement, requiring that there be a rational relationship between the SPS measure in question and the risk assessment conducted and that Members take into account the available scientific evidence, relevant processes, and production methods as well as the relevant economic factors such as the cost-effectiveness of alternative approaches to limiting SPS risks.32 The SPS Agreement defines “risk assessment” in two forms. First, an SPS risk assessment is the evaluation of the likelihood of entry, establishment, or spread of a pest or disease within the territory of an importing Member, according to the sanitary or phytosanitary measures which might be applied, and of the associated potential biological and economic consequences.33

Second, it refers to “the evaluation of the potential for adverse effects on human or animal health arising from the presence of additives, contaminants, toxins or disease-causing organisms in food, beverages, or feedstuffs.”34 Both involve a science-oriented process and evaluation of specific types of risks. As science is the normative anchor of the SPS Agreement, numerous claims have been brought under the provisions of Article 5, and controversies have continued regarding the limitations of the role science plays in the WTO dispute settlement process, especially under circumstances of scientific uncertainties and complexities. To a certain degree, the disputes reflect anxieties and controversies about the compatibility of food safety, environmental, labor, and human rights protections with WTO norms more broadly.35 Notably, debates have arisen over whether the WTO has become a “science court” that relies exclusively on scientific principles and evidence as the sole benchmark to discipline Members’ SPS measures and the extent to which science may or may not serve as a “neutral arbiter” in the context of the tension between uncertainty, precaution, and cost-effectiveness.36 See Lukasz Gruszczynski, Regulating Health and Environmental Risks under WTO Law: A Critical Analysis of the SPS Agreement 226 (2010). 29  SPS Agreement, art. 2.2. 30   Id. 31   See Scott, supra note 3, at 81, 139; Peter Van den Bossche & Werner Zdouc, The Law and Policy of the World Trade Organization: Text, Cases, and Materials 955–961 (2017). 32  SPS Agreement, arts. 5.1–5.3. See also European Communities – Measures Concerning Meat and Meat Products (Hormones), WTO Appellate Body Report, WT/DS26/AB/R, WT/DS48/AB/R, adopted 13 February 1998, paras. 178–209. 33  SPS Agreement, annex A, para. 4. 34   Id. 35   See Atik, supra note 10, at 598. 36  In addition to the development of case law in the area of SPS, there has been a rich body of literature on the issues of science in the WTO. See e.g., Robert Howse, Democracy, Science, and Free Trade: Risk Regulation on Trial at the World Trade Organization, 98 Mich. L. Rev. 2329 (2000); Vern R. Walker, The Myth of Science as a Neutral Arbiter for Triggering Precautions, 26 B.C. Int’l & Comp. L. Rev. 197 (2003); Andrew T. Guzman, Food Fears: Health and Safety at the WTO, 45 Va. J. Int’l L. 1 (2004); Mary E. Footer, Post-Normal Science in the Multilateral Trading System: Social Science Expertise and the EC-Biotech Panel, 6 World Trade Rev. 281 (2007); Alexia

Food safety protection and trade liberalization in the WTO and FTAs  249 This debate has become particularly heated in light of the EC – Hormones and EC – Biotech Products disputes and even more so after the more recent Fukushima case. As argued by Robert Howse, the WTO Appellate Body, the final adjudicator in the multilateral trading system, has “found more subtle and indirect ways of avoiding the WTO judiciary being turned into a science court for domestic regulations.”37 I also argue elsewhere with Yoshiko Naiki that the heavy reliance on science in the SPS Agreement reflects the dynamic and complex nature of the issue area of human, animal, and plant life or health, which touches upon the very sensitive gravity center of a country’s regulatory autonomy.38 We argue that the normative integrity of the SPS Agreement lies in the inseparable relationship between science-based and nonscience-based obligations, and such inextricable nexus (and hence the inevitable consideration of science in every SPS dispute) is the raison d’être of the SPS Agreement.39 Precautionary Approach and Provisional Measures The notion from the Appellate Body that WTO Members can invoke the precautionary principle under the SPS Agreement to justify their regulatory measures in times of scientific uncertainty has been rejected.40 Rather, the Appellate Body has stated that Article 5.7 of the SPS Agreement reflects the precautionary principle in its unique ways, and this precautionary approach applies only when scientific insufficiency (when relevant scientific evidence is not sufficient) arises.41 More specifically, in EC – Hormones, Appellate Body rejected the argument that the precautionary principle can be applied to justify the ban on the use of growth hormones in beef production since the precautionary principle is not part of the applicable WTO rules.42 In Japan – Agricultural Products II, the Appellate Body rejected Japan’s argument on grounds of scientific uncertainty and held that Article 5.7 is triggered not by the existence of scientific uncertainty but rather by the insufficiency (both quantitatively and qualitatively) of scientific evidence.43 Since the precautionary principle is not directly applicable under WTO law to the extent that the precautionary principle finds reflection in the SPS Agreement, it operates through the rights and obligations contained in Article 5.7.44 Article 5.7 sets out four cumulative requirements for adopting and maintaining provisional measures. First, the measure is initiated when “relevant scientific evidence is insufficient.” Second, the measure is adopted “on the basis of available pertinent information.” Third, the WTO Member which adopted the measure must “seek to obtain the additional information necessary for a more objective assessment of risk.” Herwig, Whither Science in WTO Dispute Settlement? 21 Leiden J. Int’l L. 823 (2008); Markus Wagner, Law Talk v. Science Talk: The Languages of Law and Science in WTO Proceedings, 35 Fordham Int’l L. J. 151 (2016); Ming Du, Re-Conceptualizing the Role of Science in International Trade Disputes, 52 J. World Trade 697 (2018). 37  Robert Howse, The World Trade Organization 20 Years On: Global Governance by Judiciary, 27 Eur. J. Int’l L. 9, 57 (2016). 38  Lin & Naiki, supra note 16, at 653. 39   Id. at 654. 40  Appellate Body Report, EC – Hormones, supra note 4, para. 124. 41   Id. 42   Id. 43   Japan – Measures Affecting Agricultural Products (Japan – Agricultural Products II), WTO Appellate Body Report, WT/DS76/AB/R, adopted 19 March 1999, paras. 80–82. 44   See Atik, supra note 10, at 604–605.

250  Research handbook on international food law Fourth, the Member must “review the … measures accordingly within a reasonable period of time.”45 The case law remains underdeveloped regarding whether and how the WTO adjudicators respond to the adoption of SPS measures in the context of scientific uncertainty. Importantly, Article 5.7 of the SPS Agreement can be interpreted as referring to both quantitative and qualitative insufficiency of scientific evidence, and a loose form of the latter notion can accommodate cases of scientific uncertainty. In this manner, WTO Members enjoy more opportunities to maneuver to design and adopt measures to address emerging or rapidly evolving SPS risks. Unfortunately, WTO panels and the Appellate Body have strictly followed the specific language of SPS Agreement Article 5.7, sticking to a textual interpretation and therefore limited implementation of the provisions. Members would be directed to regular provisions of the SPS Agreement in times of scientific uncertainty, namely risk assessment and scientific justification requirements. A caveat should be noted here. Despite the explicit reference to science, risk assessment, and precaution, the SPS Agreement is not a food safety agreement, but a trade agreement, and the WTO is a regime formed by a set of trade agreements. Therefore, while the SPS Agreement aspires to strike a balance between trade liberalization and health protection, rigorous food safety governance is not the core and ultimate objective of the treaty system.46 The SPS Agreement does not require WTO Members to take regulatory steps to actively enhance their food safety regulations, but technically speaking, it only represents rules and mechanisms to discipline WTO Members’ food safety laws and regulations out of concern over their trade implications.47 Some unbalanced requirements in the SPS Agreement can even create barriers to governments genuinely aiming at protecting public health rather than taking protectionist actions.48 The bottom line is food safety is usually treated as a trade issue under the WTO (and FTAs),49 in which trade rules and mechanisms do not aim primarily to improve global food safety.

III. TRADE LIBERALIZATION AND FOOD SAFETY PROTECTION: RECENT DEVELOPMENTS IN FTAS Nearly three decades after the advent of the SPS Agreement, the globalization of economic activities, advancements in food science, development of transportation technology, and integration and consolidation of multinational agri-food businesses have transformed the

 SPS Agreement, art. 5.7.   See Lin, supra note 2, at 665–669. 47   See Bruce A. Silverglade, The WTO Agreement on Sanitary and Phytosanitary Measures: Weakening Food Safety Regulations to Facilitate Trade?, 55 Food & Drug L.J. 517, 518–524 (2000). 48   See, e.g., Alan O. Sykes, Exploring the Need for International Harmonization: Domestic Regulation, Sovereignty, and Scientific Evidence Requirements – A Pessimistic View, 3 Chi. J. Int’l L. 353, 354 (2002); cf. Tracey Epps, International Trade and Health Protection: A Critical Assessment of the WTO’s SPS Agreement (2008) (viewing the SPS Agreement as an appropriate balance between international trade and public health). 49   See generally Mitsuo Matsushita et al., The World Trade Organization: Law, Practice and Policy 103–140 (2d ed. 2006). See also Lin, supra note 2, at at 648. 45

46

Food safety protection and trade liberalization in the WTO and FTAs  251 production, distribution, and consumption of food worldwide.50 Challenges arising from the complex nature of food technology,51 the lack of related scientific consensus,52 and political bottlenecks in WTO negotiations53 have remained in the global governance landscape. This development collectively has further posed new challenges to global food safety governance, evidenced in the intensified scale, severity, and frequency of foodborne illness outbreaks, with not only health but trade implications.54 Foodborne risks can originate from a producer along the global supply chain and rapidly spill over to others through international trade channels. In light of the elevated risks and heightened public criticism,55 there has been increasing demand for regulatory actions.56 In response to this changing environment, governments increasingly cooperate via the channel of bilateral or regional FTAs, with innovative SPS-Plus rules and institutional designs that go beyond those under the WTO SPS Agreement to meet their emerging regulatory needs. Through these FTAs, it can also be observed that the United States and the European Union have been working to export their regulatory models and preferences to other partnering countries to strengthen (global) food safety and SPS governance. SPS-Plus Provisions in the Recent FTAs Adopting new food safety regulations involves several SPS considerations, and various proposals have been made to incorporate SPS-Plus or SPS-Minus rules into new treaty endeavors that extend beyond the rights and obligations under the SPS Agreement.57 As noted earlier, there has been an increasing number of FTAs recently, such as the CPTPP, the USMCA, and the CETA, which incorporate innovative rights and obligations that aim to address food safety and more broadly SPS risks in innovative ways. Premised upon yet moving beyond the WTO

  See generally Lin, supra note 2.   See generally Marion Nestle, Safe Food: The Politics of Food Safety (2010). 52   It is reflected in many cases of political and scientific contests in the Codex Alimentarius Commission, see e.g., Livermore, supra note 21; Sara Poli, The European Community and the Adoption of International Food Standards within the Codex Alimentarius Commission, 10(5) Eur. L. J. 613 (2004). 53  Many have discussed the political barriers to as well as momentum for the current WTO negotiations, see e.g., Pitou van Dijck & Gerrit Faber, How to Save the Doha Round: A European Perspective, 11 Eur. Foreign Aff. Rev. 291 (2006); Dilip K. Das, The Doha Round of Multilateral Trade Negotiations and Trade in Agriculture, 40(2) J. World Trade 259 (2006); and Denise Prévost & Mariëlle Matthee, The SPS Agreement as a Bottleneck in Agricultural Trade between the European Union and Developing Countries: How to Solve the Conflict, 29(1) Legal Issues of Econ. Integration 43 (2002). 54  Lin, supra note 2. 55   See, e.g., Ed Randall, Food, Risk and Politics: Scare, Scandal and Crisis – Insights into the Risk Politics of food Safety (2009); Nestle, supra note 51. 56   See e.g., Alberto Alemanno, The European Food Import Safety Regime under a “Stress Test”: The Melamine Contamination of the Global Food Supply Chain, 3(4) Erasmus L. Rev. 203, 213–215 (2010). 57   See Lee Ann Jackson & Hanna Vitikala, Cross-Cutting Issues in Regional Trade Agreements: Sanitary and Phytosanitary Measures, in Regional Trade Agreements and the Multilateral Trading System 230–315 (Rohini Acharya ed., 2016); Ching-Fu Lin, SPS-Plus and Bilateral Treaty Network: A “Global” Solution to the Global Food Safety Problem?, 29(4) Wis. Int’l L.J. 694, 714 (2012); Markus Wagner, The Future of Sanitary and Phytosanitary Governance: SPS-Plus or SPS-Minus? 51(3) J. World Trade 445 (2017). 50 51

252  Research handbook on international food law SPS Agreement, these FTAs will further reshape global food safety governance in the long run.58 For instance, concerning the harmonization of regulatory measures through reference to international standards, guidelines, and recommendations, the CPTPP marks a notable deviation from the common practices of existing FTAs that do not go far beyond the provisions of the SPS Agreement.59 The SPS Chapter of the CPTPP reaffirms the importance of international standards, guidelines, and recommendations adopted by the “three sisters organizations,” and further urges its Parties to “take into account the relevant guidance of the WTO SPS Committee” in areas including equivalence determination,60 risk analysis procedures,61 audit and certification,62 and transparency.63 The CPTPP also requires Parties to “conform to” international standards, guidelines, or recommendations or otherwise undergo the venue of risk assessment and “documented and objective scientific evidence,”64 thus limiting the range of options and discretion of the Parties as compared to that of the SPS Agreement under which WTO Members’ SPS measures need only be based on such harmonization instruments.65 Similar provisions can be found in the EU-Singapore FTA and EU-Mercosur Trade Agreement, which requires its Parties to take into account the guidance from the three sisters and the WTO SPS Committee in the process of determining equivalence.66 All such institutional design greatly increases the reference power and harmonization impact of non-binding instruments, such as the decisions and guidelines adopted by the WTO SPS Committee. Another SPS-Plus element in the recent FTAs is the strengthened reference to scientific principles and evidence. Many FTAs mirror the scientific risk assessment provisions of the SPS Agreement, while some include temporal limits and additional procedures.67 The CPTPP takes a progressive position in this case and raises the level of obligation by laying out more specific components of risk analysis vis-à-vis those of the SPS Agreement. Under the SPS Agreement, WTO Members shall consider available scientific evidence when conducting risk

  See generally Manfred Elsig & Sebastian Klotz, Behind-the-Border Measures and the New Generation of Trade Agreements, in Behind-the-Border Policies: Assessing and Addressing NonTariff Measures (Joseph Francois & Bernard Hoekman eds., 2019); Ching-Fu Lin, Megaregional Transformation of Global Food Safety Governance: Normative Roots and Ramifications, in Governing Science and Technology under the International Economic Order 232 (Shin-yi Peng et al. eds., 2018). 59   See Jackson & Vitikala, supra note 57, at 324–327. 60  Comprehensive and Progressive Agreement for Trans-Pacific Partnership [hereinafter CPTPP], art. 7.8.1. 61  CPTPP, art. 7.9.6(a). 62  CPTPP, arts. 7.10.3 and 7.12.6. 63  CPTPP, art. 7.13. 64  CPTPP, art. 7.9.2. 65  SPS Agreement, art. 3. For a discussion on the difference between “based on” and “conform to,” see e.g., Scott, supra note 3, at 199–200; Dale E. McNeil, The First Case Under the WTO’s Sanitary and Phytosanitary Agreement: The European Union’s Hormone Ban, 39 Va. J. Int’l L. 89, 123 (1998); Ryan David Thomas, Where’s the Beef: Mad Cows and the Blight of the SPS Agreement, 32 Vand. J. Transnat’l L. 487, 509 (1999). See also Lin, supra note 58, at 247. 66  EU-Singapore FTA, art. 5.14.6; EU-Mercosur Trade Agreement, art. 9.2. 67  Jackson & Vitikala, supra note 57, at 334. 58

Food safety protection and trade liberalization in the WTO and FTAs  253 assessments.68 The CPTPP asks Parties to take a more specific look and consider “documented and objective scientific evidence that is rationally related to the measures.”69 Furthermore, throughout the regulatory process, the CPTPP Parties shall document the entire course,70 offer other Parties and interested persons “an opportunity to comment,”71 and again, “take into account the relevant guidance of the WTO SPS Committee and international standards, guidelines, and recommendations.”72 Similarly, the EU-Singapore FTA requires that both States not adopt measures or procedures “without scientific and technical justification,”73 and imposes more specific timelines (such as the requirement to notify of serious or significant SPS risks and food emergencies within two calendar days),74 among others. These kinds of FTA rules elaborate the rights and obligations under the SPS Agreement by referring to a narrower scope of scientific principles and evidence and limiting the discretion enjoyed by governments in adopting regulatory measures that do not conform to international standards, guidelines, and recommendations. Notably, in light of the regulatory challenges confronted by importing governments in the face of the complex global food supply chain, the recent FTAs incorporate innovative SPSPlus provisions that allow governments to design and adopt border measures efficiently and transparently. The CPTPP, the USMCA, the CETA, and many others indicate different measures (not specified by the SPS Agreement) that their Parties might adopt to ensure food safety protection, such as import checks, audits, and certification. The CPTPP, for instance, explicitly lists importing Parties’ right to conduct system-based audits to evaluate the effectiveness of the regulatory system of the exporting Party, including an assessment of control programs, a review of audit mechanisms, and on-site inspection of facilities.75 For import checks, the CPTPP asks the Parties to base their measures on the risks associated with the imported products, carry out import checks without undue delay, and make available relevant information, including sampling procedures, the rationale for determining the frequency of checks, analytical methods, and even the facilities that they use to test.76 Importing Parties conducting such import checks shall also ensure that final decisions regarding a finding of nonconformity are reasonable and necessary and are “rationally related to the available science.”77 For certifications, the CPTPP requires that “the certificate requirement [be] applied … only to the extent necessary to protect human, animal, or plant life or health.”78 Importantly, the CPTPP Parties are encouraged to work cooperatively in developing model certificates and promoting electronic certification or other technologies to facilitate trade and ensure food safety.79 As the SPS Agreement does not seem to give the WTO Members ample room to adopt regulatory measures efficiently enough to respond to problems of uncertainty or emergency,

 SPS Agreement, art. 5.2.  CPTPP, art. 7.9.2. 70  CPTPP, art. 7.9.4(b). 71   Id. 72  CPTPP, arts. 7.9.6(a), 7.9.7. and 7.9.8. 73  EU-Singapore FTA, art. 5.6(d). 74  EU-Singapore FTA, art. 5.12.1. 75  CPTPP, art. 7.10.1. 76  CPTPP, arts. 7.10.1, 7.10.2 and 7.10.4. 77  CPTPP, art. 7.11.5. 78  CPTPP, art. 7.12.2. 79  CPTPP, arts. 7.12.6 and 7.12.7. 68 69

254  Research handbook on international food law the recent FTAs have included SPS-Plus provisions that allow for such measures. The CPTPP first reaffirms the Parties’ right under the SPS Agreement to adopt provisional measures80 and further specifies that the Parties can take the emergency measures necessary for the protection of human, animal, or plant life or health.81 When adopting an emergency measure, the Party shall promptly notify the other Parties and consider any information they provided in response to the notification.82 Furthermore, the Party adopting the emergency measure “shall review the scientific basis of that measure within six months and make available the results of the review to any Party on request” and periodical review afterward.83 The explicit exclusion of a right to adopt emergency measures is also followed by the European Union and Canada, whereas the CETA allows both Parties to implement emergency SPS measures.84 Similarly, a Party which decides to adopt an emergency SPS measure shall notify the other Party “within 24 hours of its decision” and “consider the information … provided in a timely manner by the exporting Party.”85 Furthermore, the affected Party can request a technical consultation with the importing Party to address the emergency measures, and such consultation shall be held within ten days of the notification of the emergency measures.86 The USMCA contains similar provisions that allow Parties to take emergency measures under certain circumstances.87 As we can see here, more and more FTAs have incorporated provisions on emergency SPS measures that give governments more room to respond to food safety crises or other animal and plant disease outbreaks, with the specific transparency, consultation, and procedural requirements that make the provisions more operational. However, the CPTPP and CETA do not take steps to clarify the relationship (likely difference) between provisional measures under the SPS Agreement as well as emergency measures under the FTAs, which might lead to grey areas in terms of applications and dispute settlement. Lastly, it is common for the recent FTAs to have strengthened transparency obligations for importing Parties that go beyond the scope and depth of those under the SPS Agreement. Some FTAs even include a general and separate chapter on transparency, such as the US-Australia, US-Bahrain, CPTPP, CETA, and US-Chile Agreements.88 For instance, the CPTPP has a separate chapter on regulatory coherence that includes specific and detailed obligations on transparency issues in a more general sense.89 Under the CPTPP SPS Chapter, a range of new transparency obligations are included that exceed the existing requirements in the SPS Agreement.90 The SPS Agreement merely requires WTO Members to notify the multilateral system of their measures in cases in which no relevant international standards, guidelines, or recommendations exist or the SPS measures are not substantially the same as such  CPTPP, art. 7.9.3(c).  CPTPP, arts. 7.14.1 and 7.14.2. 82   Id. 83   Id. 84  CETA, art. 5.13. 85   Id. 86   Id. 87  USMCA, art. 9.14. 88  Over 70 FTAs include SPS-specific transparency provisions, many of which exceed WTO commitments. See Jackson & Vitikala, supra note 57, at 341. 89  CPTPP, chapter 25. 90  For relevant discussions, see Terry Collins-Williams & Robert Wolfe, Transparency as a Trade Policy Tool: The WTO’s Cloudy Windows, 9(4) World Trade Rev. 551 (2010). 80 81

Food safety protection and trade liberalization in the WTO and FTAs  255 international instruments.91 The CPTPP requires notification regarding all measures, and the Parties must provide relevant documentation, such as scientific evidence, taken into consideration during the process if they choose not to conform to relevant international standards, guidelines, or recommendations.92 To further strengthen transparency, the CPTPP asks that the Party adopting SPS measures provide access to all interested persons to provide comments and obtain information.93 The CETA has similar provisions that urge the governments of the European Union and Canada, with their best effort, to exchange information when it presents a change to the existing SPS measures, a significant structural or organizational change to a Party’s regulatory authority, an import check result that leads to rejection of import, or a risk analysis or scientific opinion that a Party has made in response to relevant SPS issues.94 Similar provisions and institutional designs can also be found in the USMCA.95 What is rather uncommon is that the CPTPP incorporates SPS-Plus provisions that impose notification responsibility on exporting Parties to prevent the entry, establishment, and spread of food safety risks and other SPS hazards. An exporting Party shall notify the others when a significant SPS risk is presented related to its exportation of goods, urgent situations of change in animal or plant health status within an exporting Party’s territory, a major change in regionalization, new and important scientific findings related to food safety, pest or disease regulation, or a substantial change in food safety or other SPS risk management policies or practices.96 The CETA contains similar provisions that require the governments of the European Union and Canada to notify each other without undue delay when there is a “significant change to pest or disease status,” “finding of epidemiological importance with respect to an animal disease,” and “significant food safety issues related to a product traded between the Parties.”97 The USMCA also includes a set of similar provisions that require the exporting Party to notify the importing party “in a timely and appropriate manner” when “it has knowledge of a significant [SPS] risk,” when there is “significant changes in the status of a regionalized pest or disease,” when “new scientific findings of importance” becomes available, among others.98 Compared to the common practice of FTAs requiring importing Parties to notify exporting Parties of applicable rules and procedures (i.e., SPS measures) in the wish to reduce restrictions on trade,99 such notification requirements placed on the exporting countries to inform importing countries and exchange information to ensure more effective and efficient food safety governance are remarkably progressive.

 SPS Agreement annex B para. 5. See also Committee on Sanitary and Phytosanitary Measures (SPS Committee), Recommended Procedures for Implementing the Transparency Obligations of the SPS Agreement, WTO Doc. G/SPS/7/Rev.3 (20 June 2008). 92  CPTPP, art. 7.13.3 and 7.13.6. 93  CPTPP, art. 7.13.4. 94  CETA, art. 5.11.2. 95  USMCA, art. 9.13. 96  CPTPP, art. 7.13.11. 97  CETA, art. 5.11.2. 98  USMCA, art. 9.13.12. 99  Very few RTAs include such a notification obligation on exporting Parties, yet a few similar practices exist, as the Chile-Mexico and Hong Kong-Chile RTAs include provisions on notification of disease breakout. See Jackson and Vitikala, supra note 57, at 344. 91

256  Research handbook on international food law Attempts of the US and the EU to Export Regulatory Models through FTAs Another dimension to note is how major players in global agri-food trade, particularly the United States and the European Union, have been actively taking steps to export their food safety (and SPS more broadly) regulatory models to other countries. Although the United States withdrew from the TPP negotiation (which was later concluded by the rest of the countries as CPTPP), “there are fingerprints of the United States throughout the [agreement], including the SPS Chapter,” because it played a leading role in setting the agenda and even crafting the texts.100 It appears clear that the CPTPP embraces a few key elements of the Food Safety Modernization Act (FSMA)101 of the United States. The FSMA was signed into law in 2011 and aimed to revamp the outdated provisions of the 1938 Food, Drug, and Cosmetics Act (FDCA)102 and the 1906 Pure Food and Drug Act.103 The FSMA marks a major reform to the FDCA and expands the FDA regulatory toolbox by stipulating provisions such as preventive control and industry responsibility, enforcement tools, import safety and international cooperation, and Foreign Supplier Verification Program, Voluntary Qualified Importer Program, and third-party certification mechanisms, among others.104 The FSMA expands the FDA’s food safety authority and addresses the problem of the traditional heavy reliance on border inspection by significantly strengthening the agency’s power over food imports in Title III, “Improving the Safety of Imported Food.”105 The Foreign Supplier Verification Program requires food importers to assess and verify that their upstream suppliers in other jurisdictions have designed and implemented risk-based preventive control plans to maintain a level of food safety protection equivalent to that of the United States.106 The FDA has the authority to require certifications from importers as a condition for entry, and accredited third-party auditors can issue such certifications.107 Furthermore, the FSMA authorizes the FDA to establish the Voluntary Qualified Importer Program to reward some importers for taking more rigorous food safety measures by offering preferential treatments such as expedited review and entry of their shipments.108 While the FSMA might encounter challenges in front of the WTO dispute settlement system,109 all such regulatory tools have found their way – both explicitly stipulated or implicitly recognized – into the CPTPP,  Lin, supra note 58, at 254.  Food Safety Modernization Act (FSMA), Pub. L. No. 111-353, 124 Stat. 3885 (2011). For an introduction, see e.g., Debra M. Strauss, An Analysis of the FDA Food Safety Modernization Act: Protection for Consumers and Boon for Business, 66 Food & Drug L.J. 353 (2011). 102  Federal Food, Drug, and Cosmetics Act, Pub. L. No. 75-717, 52 Stat. 1040 (1938). 103  Pure Food and Drug Act, Pub. L. No. 59-384, 34 Stat. 768 (1906). 104  Margaret A. Hamburg, Food Safety Modernization Act: Putting the Focus on Prevention, White House Blog (3 January 2011, 4:53 p.m.), www​.whitehouse​.gov​/ blog​/2011​/01​/03​/food​-safety​-modernization​-act​-putting​-focus​-prevention (last visited 26 August 2017). 105  FSMA, Title III. 106  FSMA, Title III § 301. 107  FSMA, Title III § 303. It should be noted that the scope of accredited third-party auditors includes foreign governments, foreign cooperatives, or other third parties. See FSMA, Title III § 307. 108  FSMA, Title III § 302. 109  After the FSMA was enacted, China, Brazil, Belize, and Korea have raised specific trade concerns over FSMA – in particular its outsourced audits and certification – consistent with the obligations under the SPS Agreement. See WTO, Record Number of Concerns Raised on Food Safety, AnimalPlant Health Measures, WTO News, 16–17 October 2013. See also Ching-Fu Lin, FDA Food Safety Modernization Act Might Raise Trade Concerns?, Bill of Health Blog (6 November 2013), 100 101

Food safety protection and trade liberalization in the WTO and FTAs  257 particularly the import check, preventive control, and certification provisions. Given that the CPTPP Parties are a handful of major trade players in the Asia-Pacific region, this FSMA approach could spill over across borders and become entrenched into the Parties’ domestic regulatory systems in the long run. The United States could have attempted to export its regulatory models to other CPTPP Parties out of rational self-interest considerations, but pushing trading partners to adopt the FSMA approach will likely have constructive impacts on food safety governance in the region.110 While the United States has aggressively exported its food safety regulatory models to other countries, particularly those in the Asia Pacific, this could be even more so for the European Union.111 As Bradford argues, “the EU is an influential global player with the ability and the willingness to shape the international order to its liking,”112 and the so-called “Brussels Effect” provides a useful analytical framework to examine the EU’s potential effect on the global SPS order.113 Especially, the European Union’s market power, regulatory capacity, preference for strict rules, predisposition to regulate inelastic targets, and non-divisibility of standards form the basis for its active export of norms globally.114 The European Union’s growing interactions with the Association of Southeast Asian Nations (ASEAN) (and its Member States) in shaping SPS rules and practices within and beyond the WTO through various channels is an apt example. The European Union takes a global approach to food safety governance (and other issues areas), prompting itself to actively export its SPS regulatory models to assist other partnering governments to strengthen their regulatory systems as well as to help the EU businesses enter non-EU markets more smoothly.115 By exporting its governance models to other countries (especially the ASEAN Member States) and shaping bilateral as well as region-toregion cooperation, the EU has sought to establish its role as a global rule-maker in the SPS issue area.116

https://blog​.petrieflom​.law​.harvard​.edu​/2013​/11​/06​/fda​-food​-safety​-modernization​-act​-might​-raise​ -trade​-concerns/. 110  Having said that, one caveat is that given the massive diversity of the CPTPP Parties in terms of legal systems, administrative capacity, market structure, technical capacity, and stages of development, the real impacts remain to be seen. See Lin, supra note 58, at 256. 111   See, e.g., Ching-Fu Lin, A Preliminary Analysis of the Import Safety Regulatory Framework under the United States Food Safety Modernization Act, 47(3) EurAmerica 345 (2017); Ching-Fu Lin, Outsource Power, Import Safety? Challenges and Opportunities of the US-China Food Safety Regulatory Cooperation, 72(1) Food & Drug L.J. 32 (2017). 112  Anu Bradford, The Brussels Effect, 107(1) Nw. U. L. Rev. 1, 35 (2012). 113   Id. at 10–19. 114   Id. The European Union can effectively act to shape the international norms in a way conforming to its preferences through different means. See also Anu Bradford & Eric A. Posner, Universal Exceptionalism in International Law, 52 Harv. Int’l L.J. 1, 53 (2011). 115  Maria Weimer & Ellen Vos, The Role of the EU in Transnational Regulation of Food Safety: Extending Experimentalist Governance?, in Extending Experimentalist Governance? The European Union and Transnational Regulation 51, 52–53 (Jonathan Zeitlin ed., 2015). 116  Ching-Fu Lin, The Emergence of ASEAN Regional Food Safety Governance: Structure, Substance, and Context, 74 Food & Drug L.J. 80, 101–104 (2019). For instance, ASEAN, with considerable assistance of and consultation with the EU, established the ASEAN Rapid Alert System for Food and Feed (ARASFF), modeled after the EU’s Rapid Alert System for Food and Feed (RASFF). Through the ASEAN Regional Integration Support from the EU (ARISE Program), the EU’s RASFF has actively provided assistance to the ARASFF with respect to its continuing development, operation, and crisis management when facing food safety crises. Id.

258  Research handbook on international food law The European Union, like the United States, has incorporated SPS-Plus provisions in its FTAs with trading partners, including approvals, certification, authorization procedures, trade facilitation, strengthened transparency, consultation mechanisms and regular dialogues, and the precautionary principle.117 The European Union’s active export of food safety regulatory models and rules can be seen in the CETA, EU-Singapore FTA, the EU-Vietnam FTA, and even EU-Mercosur Trade Agreements (as discussed earlier) and will likely inform the ongoing ASEAN-EU trade negotiations.118 Furthermore, in the past decade, the European Union has assisted the ASEAN and its Member States by institutional mimicking, regulatory learning, and trust building between the two regions to improve SPS and food safety governance. For example, with the financial assistance and technical consultancy provided by the European Union, the ASEAN has instituted essential forms and substances for its regional food safety governance, including the ASEAN Food Safety Policy, the ASEAN Food Safety Regulatory Framework (AFSRF), the ASEAN Rapid Alert System for Food and Feed (ARASFF), and the ASEAN Risk Assessment Centre for Food Safety.119 These ASEAN instruments and mechanisms for food safety governance consciously follow the European Union model through regulatory learning and institutional reproduction. A salient example is the ARASFF, established by the ASEAN in 2009 to mimic the European Union’s Rapid Alert System for Food and Feed (RASFF) with support from the European Union’s ARISE Program.120 The ARASFF aims to enhance the consolidation and exchange of information in case of food safety and human health-related risks or incidents within and beyond the region, just like its counterpart institution in the European Union. In 2016, the ASEAN instituted the ASEAN Risk Assessment Centre for Food Safety, which was modeled after the European Food Safety Authority (EFSA), to serve as an independent institution to carry out scientific-based food risk assessments in a transparent and timely manner and to encourage gradual harmonization of food safety standards in the region.121 The decade-long regulatory learning and institutional mimicking process has allowed the European Union and the ASEAN to exchange best practices, formulate common languages, and build mutual trust and institutional familiarity in food safety. This is in line with the European Union’s enhanced partnership strategy with Asia to revitalize interregional relationships122 and export regulatory models, particularly the ASEAN, and build a solid foundation for future FTAs and food safety cooperation.

IV. CONCLUSION The production, distribution, and consumption of food have become globalized in the context of trade liberalization, and food safety issues have crossed state borders, posing significant   See generally Chris Downes, Managing Post-Brexit UK-EU Food Trade: How Deep Can “Deep Regulatory Cooperation” Be?, 15 Eur. Food & Feed L. Rev. 35 (2020). 118   See generally Ching-Fu Lin, The Roadmap to the ASEAN-EU FTA: Reimagining SPS Cooperation in the Interregional Context, 49(2) Legal Issues Econ. Integration 169 (2022). 119   Id. 120  ASEAN Regional Integration Supported by EU (ARISE), Overall Work Plan (1 May 2013 to 31 October 2016), Project No. DCI-ASIE/2010/021-657 (2013); Lin, supra note 116, at 88–89, 98. 121  ARAC Brochure, ARAC: ASEAN Risk Assessment Centre for Food Safety, [https://perma​.cc​/ NC2S​-E8ES]; Lin, supra note 116, at 90, 98. 122   See generally Pasha Hsieh, New Interregionalism: Rethinking the ASEAN-EU FTA after EU Trade and Investment Agreements with Singapore and Vietnam (on file with author). 117

Food safety protection and trade liberalization in the WTO and FTAs  259 challenges to governments worldwide with public health, economic, social, and political ramifications. This chapter analyzes the governance of food safety under the multilateral trading system, particularly the WTO and its SPS Agreement, as well as the evolving landscape formed by the recent FTAs. This chapter discusses the key dimensions of interactions between trade liberalization and food safety protection under the SPS Agreement, including provisions and institution designs on the harmonization of regulatory measures through reference to international standards, recommendations and guidelines, science and risk assessment as a basis for regulatory measures, transparency and equivalence mechanisms, precautionary approaches, and provisional measures. The recent development surrounding major FTAs, such as the CPTPP, CETA, and USMCA, among others, are further examined to assess how the increase in SPS-Plus provisions is reshaping global food safety governance and striking a renewed balance between trade liberalization and health protection in the context of bilateral and regional cooperation. There are also governance nodes in which major players in global agri-food trade, particularly the United States and the European Union, have been actively taking steps to export their food safety (and SPS more broadly) regulatory models to other countries. As noted in this chapter, some innovative approaches in emerging FTAs to reconfigure the existing rules, particularly those under the SPS Agreement, will serve as a basis for future regulatory dialogue and draw the first line of the trajectory for closer collaboration.123 Looking forward, despite the growing number of FTAs incorporating SPS-Plus provisions that go beyond the existing rules under the WTO SPS Agreement, the multilateral baseline will likely continue to play an indispensable role in the global trading system.124 While the recent criticisms have pressured the WTO to respond to Members’ preferences for freer and fairer trade, the lowest common denominator that provides stability, efficiency, and effectiveness in addressing food trade and food safety issues remains in the WTO SPS Agreement. The various institutional designs of the multilateral trading system, including inter alia the SPS Committee, consultation and dispute settlement, and peer-review activities under the Trade Policy Review Mechanism, enable the SPS Agreement to develop, adapt, and respond to changing circumstances (to some extent) without overhauling the treaty texts.125 Most importantly, most, if not all, FTAs have used the SPS Agreement as the common basis to accommodate additional SPS-Plus rights and obligations. The reference to science as the normative yardstick for disciplining SPS measures is the core of the SPS Agreement and entrenched in most if not all FTAs, and the international standards, guidelines, and recommendations  For further discussion, see Mengyi Wang & Ching-Fu Lin, Toward a Bottom-up SPS Cooperation: An Analysis of Regulatory Convergence in Food Safety Regimes, 8(1) Trade, L. & Dev. 29 (2016). 124  While this chapter does not specifically address whether and to what extent China has been inserting its food safety modeling into future FTAs, it is important to underline that China has a proactive and strategic approach to taking advantage of WTO law and institutions as part of its food safety governance as well as domestic reform, with a special attention to the consultation functions, and to making transnational law in similar sense. See generally Francis Snyder, Food Safety Law in China: Making Transnational Law (2016); see also Michael T. Roberts & Ching-Fu Lin, China Food Law Update: The 2015 Food Safety Law and Social Governance on Food Safety, 12(2) J. Food L. Pol’y 238 (2016). 125  It should be noted, nevertheless, that the recent emergence of disruptive technologies, such as distributed ledger technology (commonly referred to as “blockchain”) may lead to supply chain revolution and turn a new chapter in the landscape of global food safety governance, posing pressure to update the multilateral and bilateral rules. I have evaluated the promises and challenges of “blockchainizing” food law elsewhere. For more discussion, see Ching-Fu Lin, Blockchainizing Food Law? Promises and Perils of Incorporating Distributed Ledger Technologies into Food Safety, Traceability, and Sustainability Governance, 74(4) Food & Drug L.J. 586 (2020). 123

260  Research handbook on international food law developed in the sphere of the Codex, OIE, and IPPC will remain as a benchmark for assessing SPS measures and influence governance initiatives in the issue area. Notably, in addition to the three sisters, the relevance and the importance of the multilateral norm-setting activities of the WTO SPS Committee, frequently referred to in the recent FTAs, will likely grow over time. Lastly, the developments in the recent FTAs practically reflect the present-day regulatory philosophy and preferences of the major trading players. Innovative rules and institutional designs in the recent FTAs will evolve and progress and gradually find their space in the WTO and impact the SPS jurisprudence.

13. The Food Safety Modernization Act and international trade rules David A. Wirth

I. INTRODUCTION The Food Safety Modernization Act (FSMA) revolutionized the United States’ approach to food safety in sweeping fashion. While the statute’s new emphasis on anticipating and preventing risks to food safety is innovative, the Act’s most aggressive provisions arguably relate to the even more difficult regulatory challenge of assuring the integrity of imported foodstuffs. FSMA has reshaped the global food trade, serving as a legislative benchmark establishing standards for imports into the large U.S. market that has significantly affected countries of export. Although FSMA broke considerable new regulatory ground, it did not write on an entirely clean slate. Industry over the course of decades had erected an elaborate architecture for addressing food safety risks of imported food, operating largely independently of express regulatory supervision. At the same time, international trade rules have evolved to address food safety interventions such as FSMA in an ever-tightening wave of constraints designed to discipline the abuse of food safety measures as trade barriers. This chapter addresses the largely underappreciated and potentially uncomfortable tension between FSMA and FDA’s implementation of the statute and international trade-based rules that might tend to undermine its efficacy. Accordingly, the chapter first summarizes the statute’s requirements, with an emphasis on its provisions relating to imports and its attributes that might render it particularly susceptible to a trade-based challenge. Next, the piece addresses the little-noticed phenomenon of industry-based private voluntary standards that preceded FSMA, again with a particular focus on imported food. After identifying the fundamentally different purposes of trade-based rules for food safety measures and the jurisprudence that has evolved, the chapter evaluates the potential for FSMA to run afoul of those strictures, a phenomenon that in turn has serious implications for the shape of global food trade both within and beyond the United States. The chapter concludes by highlighting significant questions of U.S. administrative and foreign relations law, potentially of Constitutional dimension.

II. THE FOOD SAFETY MODERNIZATION ACT AND IMPORTED FOOD SAFETY The Food Safety Modernization (FSMA, statute, or Act),1 signed into law by President Obama in 2011, represents a fundamental shift in United States food safety law and practice toward 1

 FDA Food Safety Modernization Act, Pub. L. No. 111-353, 124 Stat. 3885 (2010) (codified as amended in scattered sections of 21 U.S.C.) [hereinafter FSMA or Act].

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262  Research handbook on international food law preventive, proactive, and process-based life-cycle regulation. The challenges addressed by the new law are particularly acute concerning imported food, which by definition originates beyond U.S. domestic jurisdiction. The statute contains no formal Congressional findings, and there was no Senate committee or Conference report. The statute nonetheless is widely understood to be motivated by several highly publicized cases of food contamination or “outbreaks” in the previous decade, with imported foodstuffs and animal feed featuring prominently among them. A. Statutory Structure FSMA is generally regarded as the most significant expansion of food safety requirements and FDA food safety authority since the original enactment of the Federal Food Drug and Cosmetic Act (FFDCA) in 1938.2 Motivated in part by a number of high-profile cases of contamination and poisonings from adulterated food, the Act grants FDA significant new powers, including mandatory recall authority. FSMA contains three principal titles: one devoted to the prevention of food safety problems, a second devoted to the detection of and response to food safety problems, and a third to imported foods. This section describes the first two titles, with the third, the subject of this study, set out in greater detail in section II.B. As a principal strategy in the regulatory scheme, Congress imposed new regulatory requirements directly on private parties: foreign and domestic food processing facilities are required to register with FDA biennially.3 Food from an unregistered food processing facility may not be imported into the United States or introduced into interstate or intrastate commerce.4 From the point of view of regulatory design, this requirement is the principal workhorse of the statute, from which flow other obligations on the regulated community.5 Under Title I of FSMA, food processing facilities must develop and implement a written risk-based, preventive control plan, another key provision of the statutory scheme, titled Hazard Analysis and Risk-Based Preventive Controls, or HARPC.6 This food safety plan must include (a) a hazard analysis; (b) preventive controls; (c) monitoring; (d) provision for corrective actions; and (e) verification of compliance. The HARPC plan is largely analogous to a Hazard Analysis and Critical Control Point (HACCP) plan and relies on the same principles and approaches.7

 21 U.S.C. §§ 301–392.  FSMA § 102, 21 U.S.C. § 350d(a). 4   Id. § 350d(b)(4). The authority of the U.S. Federal Government to regulate interstate and intrastate commerce derives from Article 1, Section 8, Clause 3 of the U.S. Constitution. The Commerce Clause provides that “The Congress shall have power … [t]o regulate commerce with foreign nations, and among the several states, and with the Indian tribes.” 5  The “regulated community” refers to food processing facilities as defined in the statute. See id. § 350d(c). 6   See FSMA § 103, 21 U.S.C. § 350g. 7  HACCP (Hazard Analysis Critical Control Point), the predecessor to HARPC (Hazard Analysis Risk-Based Preventive Controls), relies on identifying critical control points within a process where contamination may occur and establishing limits. HARPC builds on the foundational principles of HACCP, adding procedures for developing food safety plans. HACCP is recognized internationally as the top method for food safety risk management. See generally Luke F. LaBorde, The Hazard Analysis Risk-Based Preventive Controls, in Food Safety Engineering 205 (Ali Demirci et al., eds., 2020). 2 3

The Food Safety Modernization Act and international trade rules  263 Per FSMA Title II, the plan must also include recordkeeping provisions, particularly data, to assist FDA in tracking high-risk foods.8 Laboratories performing analyses required for regulatory purposes must either be federal or accredited non-federal laboratories.9 Results must be sent directly to FDA. The statute substantially expands the Agency’s powers and regulatory mandates. FDA now has the express authority to order a recall of food products.10 Before FSMA, FDA relied on voluntary recalls except in cases of infant formula. The Agency also now has the power to administratively detain food based on only a “reason to believe” basis that the food is adulterated or misbranded.11 This stands in contrast to the “credible evidence or information” regarding a serious threat to health or life required before FSMA. FDA may suspend the registration, and hence the operations, of a food processing facility if the Agency determines that food manufactured, processed, packed, or held by the food processing facility has a reasonable probability of causing serious adverse health consequences or death to humans or animals.12 The Agency is mandated to review relevant health data every two years and to issue guidance documents or regulations setting contaminant-specific performance standards for the most significant foodborne contaminants.13 FDA is now required to establish a product tracing system to improve the Agency’s capacity to effectively and rapidly track and trace food.14 B. Title III: Imports Fundamentally, FSMA shifts food safety in the United States from reactive to proactive and preventive. This is a particular challenge concerning imported foodstuffs, which by definition originate from outside the direct regulatory jurisdiction of the United States as a state which is a subject of public international law. FSMA approaches this through three main avenues: the Foreign Supplier Verification Program (FSVP), the Voluntary Qualified Importer Program (VQIP), and private third-party audits. Both public international15 and domestic16 law establish that the regulatory jurisdiction over food processing facilities is territorially constrained. That is, the United States, as a state governed by international law, lacks direct regulatory authority over facilities in other states.   Id. § 350g(g).  FSMA § 202, 21 U.S.C. § 350k. 10  FSMA § 206, 21 U.S.C. § 350l. 11  FSMA § 207, 21 U.S.C. § 334. 12  FSMA § 102 (b)(1), 21 U.S.C. § 350d. 13  FSMA § 104(a) and (b), 21 U.S.C. § 2201. 14  FSMA § 204(c), 21 U.S.C. § 2223. 15   See Restatement (Third) of the Foreign Rels. L. § 414 & cmt. c (Am. L. Inst. 1987) (jurisdiction over primarily local issues, such as labor and environment, confined to home state). The material in this section is not covered in the Restatement (Fourth) of the Foreign Relations Law of the United States (2018). 16   See, e.g., Microsoft Corp. v. AT&T Corp., 550 U.S. 437, 454 (2007) (referencing “presumption that United States law governs domestically but does not rule the world”); EEOC v. Arabian American Oil Co., 499 U.S. 244, 248 (1991) (presumption against extraterritorial application of U.S. requirements for non-discrimination in labor “serves to protect against unintended clashes between our laws and those of other nations which could result in international discord”).  8  9

264  Research handbook on international food law Those facilities are subject to the exercise of regulatory jurisdiction by the states in which they are located as a fundamental attribute of those foreign states’ sovereignty. Although this principle has operated for centuries to minimize conflicts of jurisdiction in the international system, it means that imported food as a product formally becomes subject to U.S. jurisdiction only when it enters the territory of the United States at the border. Critically, FSMA’s HARPC plans address the entirety of the production process, including in the country of origin, and not just the composition of the product, whether a raw agricultural commodity or processed foodstuff. More specifically, they also fundamentally address the process by which food is produced as a necessary component of a proactive, precautionary approach to guaranteeing the safety of imported food. This dichotomy presents a significant challenge regarding FSMA’s regulatory design and compatibility with basic principles of public international law, including multilateral rules addressing trade in goods.17 1. Foreign Supplier Verification Program (FSVP) As with the other portions of the Act, the Foreign Supplier Verification Program establishes that the importer is responsible for compliance with all regulatory requirements.18 In other words, the importer must ensure that the food is not adulterated or misbranded, complies with substantive food safety standards, and has been produced in conformity with HARPC requirements.19 As part of the FSVP, FDA may require certification20 provided by the importer as a condition for granting entry of imported food products into the United States.21 The form of the certification, as determined by FDA, may depend on the circumstances. For example, it may or may not be shipment specific and may require a listing of approved food processing facilities. Among the factors that may suggest the need for certification are: (1) the known safety risks

 One question that has emerged in the course of this study is the extent of the risk presented by imported, as opposed to domestically produced, food. The public seems to believe that imported food is riskier than domestically processed analogs, a conclusion supported in part by research on the imported food supply contemporaneous with the adoption of FSMA. See, e.g., U.S. Gov’t Accountability Off., GAO-11-286, Seafood Safety: FDA Needs to Improve Oversight of Imported Seafood and Better Leverage Limited Resources (2011). However, it does not necessarily go without saying that imported foods pose risks to the safety of the American food supply that are different to or greater than domestically produced foods. For example, in response to infant formula shortages in 2022 resulting from contamination in domestic facilities, FDA encouraged the importation of foreign products. See, e.g., Food & Drug Admin., FDA Encourages Importation of Safe Infant Formula and Other Flexibilities to Further Increase Availability (May 16, 2022), www​.fda​.gov​/news​-events​/press​-announcements​/fda​-encourages​-importation​-safe​-infant​-formula​ -and​-other​-flexibilities​-further​-increase​-availability. The statute contains no express findings on this point, but the inclusion of Title III as a distinct provision is a clear indication of Congressional intent expressly to address foreign sources of risk to the U.S. food supply. 18  FSMA § 301, 21 U.S.C. § 384a. 19   Id. § 384a(c). 20  In the language of private voluntary standards, particularly ISO, “certification” and “audit” are often used interchangeably. The FSMA term “certification” in Title III refers to an entirely different concept, more akin to an affidavit or attestation. To avoid confusion, this chapter consequently confines the use of terms such as “certification” and “certificate” to their statutory meanings under FSMA Title III. Similarly, all references to private, third-party facility inspections are described by the term “audit.” This usage of both “certification” and “audit” tracks the statutory language. 21  FSMA § 303, 21 U.S.C. § 381(q). 17

The Food Safety Modernization Act and international trade rules  265 of the food; (2) the known safety risks of the country, territory, or region of origin of the food; and (3) the inadequacy of the food safety programs, systems, and standards in the country, territory, or region of origin, as contained in a finding by FDA.22 The certification may be supplied either by “an agency or a representative of the government of the country from which the article of food at issue originated, as determined by [FDA],” or by an accredited private third-party auditor.23 For the former option—reliance on foreign government inspections—section 306 of FSMA authorizes FDA to enter into agreements and arrangements with foreign governments to facilitate inspection of foreign food processing facilities.24 FDA often refers to the foreign governmental entities with which it has these institutional relationships as “regulatory partners.” Food from a food processing facility that has refused inspection will be denied admission to the United States. FSMA section 201 required FDA to inspect at least 600 foreign food processing facilities during the first year following the date of enactment and to inspect twice the number as in the previous year for each subsequent year in each of the next five years.25 In year six, beginning in January 2016, this amounted to more than 19,000 inspections. Particularly for the later years of the schedule, the statutory mandate has been widely viewed as unrealistic, and FDA has fallen well short of meeting the targets.26 FDA has stated that its ability to implement this provision depends on the level of Congressionally-appropriated resources.27 2. Voluntary Qualified Importer Program (VQIP) Section 302 of FSMA requires FDA to establish a new Voluntary Qualified Importer Program (VQIP).28 Exporters that qualify receive expedited movement of food through the import process. In reviewing applications, FDA is directed to consider factors such as the following, in addition to any others the Agency might consider relevant: (1) the known safety risks of the food; (2) the compliance history of the foreign suppliers used by the importer; (3) the capability of the regulatory system of the country of export to ensure compliance with U.S. food safety requirements for a designated food; (4) the importer’s compliance with requirements under the FSVP; (5) the adequacy of the importer’s recordkeeping requirements; and (6) the potential risk for intentional adulteration of the food.29 Per FSMA requirements, FDA issued

  Id.; FSMA § 201, 21 U.S.C. § 350j.  FSMA § 303, 21 U.S.C. § 381(q)(3); FSMA § 307, 21 U.S.C. § 384d. 24  FSMA § 306, 21 U.S.C. § 384c. 25  FSMA § 201, 21 U.S.C. § 350k. 26   See U.S. Food & Drug Administration, Food Safety Modernization Act Public Meeting: PreventionOriented Import System Regulations and Implementation, at 17 (Mar. 21, 2016), www​.fda​.gov​/media​ /96831​/download (statement of Michael Taylor, FDA Deputy Commissioner for Foods) (“[W]e’re very, very far short now of the 19,200 inspections, annual foreign food inspections that Congress envisioned. We’re less than 2,000 now. We’re working to increase that gradually. That’s a very resource-dependent thing”). See also id. at 246 (statement of Tony Corbo, Public Interest Advocacy Group, Food and Water Watch) (“The latest registration figures show that there are 120,000 foreign food facility registrations. So at this pace, we’re going to be taking 100 years to visit all of the foreign facilities”). 27   See statement of Michael Taylor, supra note 26. 28  FSMA § 302, 21 U.S.C. § 384b(a). 29   Id. § 384b(d). 22

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266  Research handbook on international food law a guidance document identifying requirements for participation, revocation of participation, reinstatement, and compliance.30 3. Private third-party audits An innovative feature of FSMA is the use of private third-party audits (i.e., inspections) of food processing facilities as a component of the statutory scheme. Private third-party audits in the form of inspections feature only in Title III, the portion of the statute addressing inspection of foreign food processing facilities.31 There are two operational junctures at which the statute identifies the potential use of private third-party audits: (1) in the certification requirement, which FDA, in its discretion, may require as an additional component of the basic requirements for all importers in the Foreign Supplier Verification Program (FSVP); and (2) in the Voluntary Qualified Importer Program (VQIP). As discussed, the certifications that FDA may require under FSMA section 303 as part of the FSVP may be provided either by an agency or representative of the government of the country from which the food originates or by an accredited private third-party auditor.32 To this end, there are two layers of discretion on FDA’s part as to whether to make use of the private, third-party option: (1) whether to require a certificate in addition to the other requirements of the FSVP for certain food products imported from certain countries or regions; and (2) whether to rely on certifications issued by private third-party auditors as opposed to those from foreign governments or agencies. By contrast, as set out in the statute, the only avenue available for eligibility for participation in the voluntary scheme, the Voluntary Qualified Importer Program (VQIP), is to obtain a private third-party audit leading to a food processing facility certification that satisfies the statutory and regulatory requirements.33 Consequently, the implementation of this program by necessity addresses the utility and contours of private, third-party food processing facility audits. Section 307 of FSMA provides for the creation of a new system for FDA recognition of accreditation bodies. In turn, these bodies, whose functions and duties are also addressed by this section, accredit private third-party auditors who perform inspections of foreign food processing facilities.34 This section sets out a structure familiar to private third-party auditing schemes such as ISO (section III.B.2) but relatively unfamiliar to statutory law, and certainly so in the case of the inspection of foreign food processing facilities.35 The statutory language mandates FDA to recognize private accreditation bodies or to perform that function itself. Except for “limited circumstances,”36 FDA has elected to delegate   Id. § 384b(a)(2); U.S. Food & Drug Admin., OMB Control No. 0910-0842, Voluntary Qualified Importer Program: Guidance for Industry (2022), www​.fda​.gov​/media​/92196​/ download. 31   See FSMA §§ 301–302, 21 U.S.C. §§ 384a–b. 32  FSMA § 303, 21 U.S.C. § 381(q)(3). 33  FSMA § 302, 21 U.S.C. § 384b. 34  FSMA § 307, 21 U.S.C. § 384d. 35  For example, FSMA § 307 is similar to the analogous provision in the Consumer Product Safety Improvement Act of 2008, 122 Stat. 3016, § 102, 15 U.S.C. § 2063, which appears to have served as a model for FSMA § 307. 36  Accreditation of Third-Party Certification Bodies to Conduct Food Safety Audits and to Issue Certifications, 80 Fed. Reg. at 74,570, at 74,571 (Nov. 27, 2015) (to be codified at 21 C.F.R. pts. 1, 11 & 16). 30

The Food Safety Modernization Act and international trade rules  267 the accreditation of certification bodies to private registrars, but under FDA oversight pursuant to the statute. FDA is also instructed to revoke the recognition of an accreditation body not in compliance with FDA requirements and to establish procedures for the reinstatement of recognition.37 Finally, FDA must reevaluate each recognized accreditation body every four years.38 The statute directs FDA to establish “model standards” for accreditation, i.e., the requirements that private third-party auditors/inspectors must meet to be authorized to perform those functions. In implementing this section, FDA “shall look to standards in place [on the date of the enactment of this section] for guidance, to avoid unnecessary duplication of efforts and costs.” This presumably refers to voluntary systems such as ISO that are already in place (section III.B.2). The statute also sets out some procedures for preparing audit reports39 and directly establishes some requirements for auditors. These requirements include (1) mandatory reporting of “a serious risk to the public health” discovered in the course of a regulatory audit; (2) a requirement that audits be unannounced; and (3) avoidance of conflicts of interests or financial affiliations with audited food processing facilities by individual auditors or the entities engaging in audits. FDA is required to withdraw accreditation from a private third-party auditor if (1) food certified by a private third-party auditor is linked to an outbreak of foodborne illness; (2) the auditor no longer meets the accreditation requirements; (3) the auditor refuses to allow U.S. officials to conduct investigations to assure continued compliance; or (4) the auditor was accredited by an accreditation body whose recognition by FDA was revoked, as discussed earlier.40 FDA is also required to establish a schedule of fees for those applying for accreditation as private third-party auditors so that the accreditation system is revenue-neutral.41 Although FSMA generally and its provisions governing imports, in particular, press the outer edges of prior regulatory interventions, the third-party certification provisions are worthy of particular mention. There are prior precedents for the incorporation into U.S. law in primarily non-regulatory settings such as procurement, consumer products, and domestic medical devices.42 But FSMA represents a quantum leap, where the implications are literally life and death. So far as can be determined, no other country uses private inspections on this scale for regulatory purposes in a public law mode. The implications for consumers and the public are pervasive, from the largest suppliers and retailers to the corner grocery. The prior industry experience has been with voluntary certification to private standards (section III) and not to governmentally established requirements. The effectiveness of the program is self-evidently limited by the availability and adequacy of personnel, especially abroad.

 FSMA § 307(b), 21 U.S.C. § 384d(b).   Id. § 384d(f); U.S. Food & Drug Admin., Third-Party Certification Body Accreditation for Food Safety Audits: Model Accreditation Standards: Guidance for Industry and Food and Drug Administration Staff (2022), www​.fda​.gov​/media​/92999​/download. 39  FSMA §307(c), 21 U.S.C. § 384d(c). 40   Id. § 384d(c)(6). 41   Id. § 384d(c)(8). 42   See generally Lesley K. McAllister, Regulation by Third-Party Verification, 53 B.C. L. Rev. 1 (2012) (report to Administrative Conference of the United States). 37

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268  Research handbook on international food law Transparency through vehicles such as freedom of information requests is a huge question, as private audits have previously been treated as proprietary. There is also the question of audits’ availability in enforcement proceedings. Last, the negotiation and conclusion of international agreements and understandings on such questions as equivalence and mutual recognition—expressly encouraged if not mandated by the WTO Agreement on the Application of Sanitary and Phytosanitary Standards (section IV.B)—are typically undertaken without public notice or input.43 These factors tend to decrease the potential for citizen and public oversight into the implementation of the statute and its regulations by comparison with analogous functions performed by a public body such as FDA.44 C. Implementing Rules FDA has implemented the statute in seven “foundational” rules,45 of which the last two are of particular interest from the point of view of the safety of imported food: • • • • •

Current Good Manufacturing Practice and Hazard Analysis and Risk-Based Preventive Controls for Human Food;46 Current Good Manufacturing Practice and Hazard Analysis and Risk-Based Preventive Controls for Food for Animals;47 Standards for the Growing, Harvesting, Packing, and Holding of Produce for Human Consumption;48 Sanitary Transportation of Human and Animal Food;49 Mitigation Strategies to Protect Food Against Intentional Adulteration;50

 WTO Agreement on the Application of Sanitary and Phytosanitary Measures, Annex 1A, Apr. 15, 1994, 1867 U.N.T.S 493 [hereinafter SPS Agreement]. 44   See generally McAllister, supra note 42. 45  FDA was sued concerning its failure to meet the statutory deadlines in FSMA for publishing implementing regulations and entered into a consent decree containing a judicially mandated schedule. See Ctr. for Food Safety v. Hamburg, No. 12-cv-04529-PJH (N.D. Cal. Aug. 29, 2012), www​.centerforfoodsafety​.org​/files​/2014​-2​-20 ​-dkt​-82​-1-​-joint-​-consent​-decree​_26503​.pdf. See generally Joella Roland, The Hang-Up with Hamburg: How Center for Food Safety v. Hamburg will Alter the Food Industry, 9 J. Bus. & Tech. L. 357 (2014). 46  Current Good Manufacturing Practice, Hazard Analysis, and Risk-Based Preventive Controls for Human Food, 80 Fed. Reg. 55,908 (Sept. 17, 2015) (to be codified at 21 C.F.R. pts. 1, 11, 16, 106, 110, 114, 117, 120, 123, 129, 179 & 211) (Docket no. FDA-2011-N-0920). 47  Current Good Manufacturing Practice, Hazard Analysis, and Risk-Based Preventive Controls for Food for Animals, 80 Fed. Reg. 56,170 (Sept. 17, 2015) (to be codified at 21 C.F.R. pts. 11, 16, 117, 500, 507 & 579) (Docket no. FDA–2011–N–0922). 48  Standards for the Growing, Harvesting, Packing, and Holding of Produce for Human Consumption, 80 Fed. Reg 74,354 (Nov. 27, 2015) (to be codified at 21 C.F.R. pts. 11, 16 & 112) (Docket no. FDA–2011–N–0921). 49  Sanitary Transportation of Human and Animal Food, 81 Fed. Reg. 20,092 (Apr. 6, 2016) (to be codified at 21 C.F.R. pts. 1 & 11) (Docket no. FDA-2013-N-0013). 50  Mitigation Strategies to Protect Food Against Intentional Adulteration, 81 Fed. Reg. 34,166 (May 27, 2016) (to be codified at 21 C.F.R. pts. 11 & 121) (Docket no. FDA–2013–N–1425). 43

The Food Safety Modernization Act and international trade rules  269 • •

Foreign Supplier Verification Programs for Importers of Food for Humans and Animals; and51 Accreditation of Third-Party Auditors/Certification Bodies to Conduct Food Safety Audits and to Issue Certifications.52

A number of the final rules have been amended since publication and supplemented with regulatory guidance from FDA.53 The last two rules are discussed in detail in section V, by reference to WTO rules.

III. PRIVATE VOLUNTARY STANDARDS AND THIRD-PARTY AUDITS Although FSMA revolutionized food safety requirements, particularly for imported food, it did not break new ground. The food industry has had a complex system of private voluntary standards, including third-party audits, in place for some time before FSMA’s enactment, a phenomenon that has frequently been underappreciated in the legal community. Many of these schemes have been applied to imported food and hence are important in establishing the background against which Title III of FSMA was enacted. Anecdotal reports suggest that FSMA was partly motivated by the proliferation of private voluntary standards, and the FSMA rulemakings repeatedly reference them.54 The schemes addressed in this section share one attribute: all are voluntary or non-binding, so compliance is not required by a governmental authority.55 In addition, some, although not  Foreign Supplier Verification Programs for Importers of Food for Humans and Animals, 80 Fed. Reg. 74,226 (Nov. 27, 2015) (to be codified at 21 C.F.R. pts. 1, 11 & 111) (Docket no. FDA– 2011–N–0143) [hereinafter FSVP Final Rule]. 52  Accreditation of Third-Party Certification Bodies to Conduct Food Safety Audits and to Issue Certifications, 80 Fed. Reg. 74,570 (Nov. 27, 2015) (to be codified at 21 C.F.R. pts. 1, 11, & 16) (Docket no. FDA–2011–N–0146). 53   See FSMA Rules & Guidance for Industry: Guidance for Industry & Others, U.S. Food & Drug Admin., www​.fda​.gov​/food ​/food​-safety​-modernization​-act​-fsma ​/fsma​-rules​-guidance​-industry​ #Guidance (last visited July 19, 2021). 54  The preamble to the final FSVP rule contains the following passage: Some comments recommend that when third-party audits are used, FDA should require that audits be conducted in accordance with nationally or globally accepted standards, such as schemes that are benchmarked in accordance with the Global Food Safety Initiative (GFSI). … We understand that, as of the publication of this document, many of the widely used food safety auditing schemes are considering whether and how to revise their practices in light of the requirements of FDA regulations, including our new FSMA regulations. We further understand that the updating of schemes is a lengthy process that often involves engagement with experts and other stakeholders. … Over time, we expect that scheme owners and benchmarking organizations will develop tools to assess their schemes against FDA requirements to demonstrate the levels of health protection their schemes provide. We believe there is value in such efforts and foresee possible implications for the Agency’s work. FSVP Final Rule, supra note 51, at 74,288. Cf. Accreditation of Third-Party Auditors/Certification Bodies to Conduct Food Safety Audits and to Issue Certifications, 78 Fed. Reg. 45,782 (July 29, 2013) (proposed rule on third-party certification, containing multiple references to ISO standards) [hereinafter Accreditation Proposed Rule]. 55  Substantive standards established under FSMA are of governmental origin, and consequently are binding. 51

270  Research handbook on international food law all, of these substantive standards are “auditable,” meaning that conformity to them can be verified through a third-party process. “Third-party” in this sense indicates an arms-length evaluation by a neutral, independent assessor, presumptively involving an on-site inspection, similar in structure to financial audits performed by certified public accountants.56 A. General Attributes of Private Third-Party Standards Private voluntary schemes typically share several features, including the establishment of substantive standards, which may or may not be auditable and hence subject to verification by third-party processes. A useful typology for addressing private voluntary initiatives is to start by identifying the incentives for creating and deploying such schemes. For example, industryadopted standards are typically expected to be responsive to a perceived need on the part of the business community because they are highly incentivized to do so. 1. Incentives for industry standard-setting The percentage of the American diet represented by imported foods, both raw and processed, has increased dramatically in recent years. Well before the adoption of FSMA, private-party importers and retailers voluntarily sought out the services of private third-party auditors to assure the integrity of their supply chains. There are strong incentives for many segments of the food industry to ensure the safety of imported foods, including the need to: (1) protect brand and market share; (2) avoid costly recalls, which also tend to affect brand reputation and market share adversely; (3) enhance consumer confidence; and (4) avoid liability. In the case of suppliers, adherence to privately established standards may have particular benefits, including satisfying the quality and safety requirements of purchasers. Additionally, it may enhance access to specific markets or purchasers by providing assurances of equivalence of process, quality, and safety. There are also assertions that producers adhering to voluntary standards are more disciplined, efficient, and profitable. In other words, there may be internal management benefits from deploying commonly shared industry standards. Finally, importers and retailers benefit from uniform standards as assurances of the integrity of the product they are purchasing.57 The most significant question for the substantive requirements of voluntary standards is their degree of rigor. Depending on the context and the entity adopting the standards, competing dynamics may create incentives for more demanding standards out of concern for public health considerations and less stringency to promote trade. Reliance on standards adopted by

 In the terminology of private voluntary standards, verification of compliance is known as “conformity assessment,” of which third party audits are one variety. Evaluations may also be subject to verification by those making them, a situation known as a “first party process.” Or, alternatively, compliance could be evaluated by those with existing business relationships, as in the case of a purchaser verifying performance by a supplier. These situations are known as “second-party” processes. Of the three, third-party audits are generally thought to offer the greatest potential for a neutral, unbiased, objective assessment. 57   See, e.g., Global Food Safety Initiative, Case Study Booklet (2019), http://mygfsi​.com​/wp​ -content​/uploads​/2019​/09​/GFSI​-Case​-Study​-Booklet​.pdf. 56

The Food Safety Modernization Act and international trade rules  271 and addressed to the business community invites questions about the relationship of those standards to public law requirements, as well as broader public policy goals.58 2. Private third-party audits of foreign food processing facilities Private third-party audits are one element of a multi-component strategy for implementing voluntary standards. Even absent regulation, the food industry has used private inspectors’ services to ensure the integrity of food products. Retailers or processors may rely on the services of private third-party auditors to ensure the integrity of products further up the supply chain. Similarly, food processors may find it necessary or desirable to have their food processing facilities inspected to enhance their competitiveness, or their customers may insist on private third-party audits. Prior experience and basic public policy considerations have demonstrated some of the challenges of relying on private third-party audits. Among the potential structural weaknesses in a system of private third-party audits are the following:59 • • • • • • • • • • •

Competence and training of the auditors/inspectors; Supervision of the auditors/inspectors; Accreditation and supervision of the firms carrying out the audit/inspection; Potential for forum shopping among auditors/inspectors of varying quality and price; Incentives for auditors/inspectors to cut corners or ignore violations; Conflicts of interest between auditors and audited parties; Particular problems that arise when an auditor has only one client, such as a large food retailer, importer, or supplier; Definition of the scope of the inspection (an auditor cannot find, nor necessarily be expected to find, what it is not looking for or not instructed to look for); Assurance of ongoing compliance through surveillance of audited food processing facilities; Adequacy of remedial measures such as suspension of accreditation in reducing or eliminating the potential for abuse or lax practices; and The appropriate role of transparency and public participation in private third-party audits as part of a public regulatory initiative such as FSMA.

These concerns can be more difficult to address when the food processing facility in question is overseas and the connections among the relevant parties—retailer, importer, food processing facility, auditor—are physically and figuratively more distant. Private, third-party inspection of overseas food processing facilities can also raise additional concerns depending on the context, such as language impediments or the potential for bribery. The potential for fragmentation of the supply chain is also presumably greater than that domestically, meaning that the benefits of food safety efforts may be attenuated by the time food products reach the point of purchase, particularly at small retailers that do not have the wherewithal to verify the integrity of all their sources.

  See generally David A. Wirth, The International Organization for Standardization: Private Voluntary Standards as Swords and Shields, 36 B.C. Env’t Aff. L. Rev. 79 (2009). 59   See McAllister, supra note 42. 58

272  Research handbook on international food law B. Existing Voluntary Schemes for Food Safety Although perhaps little-known among legal practitioners and the public more generally, existing voluntary food safety schemes are important to understand the genesis of FSMA’s export provisions and its current operations. Although all share a common non-binding character, there are significant variations among them with respect to other attributes. One, Codex Alimentarius, includes a governmentally established series of non-binding standards representing the highest level of governmental involvement. Another, the International Organization for Standardization (ISO), is a hybrid, with mixed business and governmental inputs, with the relative proportions varying from country to country. Both Codex and ISO are global in scope, as are some business-initiated voluntary programs. And some firms, such as Costco60 —one of the biggest food retailers in the U.S.—have their own programs and do not participate in larger consortia. Although there are some significant differences in overall approach and detail, these private schemes largely mirror FSMA’s structure of establishing substantive standards, with the potential for verification through private third-party audits. Indeed, FSMA was enacted and implemented against a conscious awareness of the existence of these private schemes as a precursor to FSMA’s legally binding, mandatory requirements.61 1. Codex Alimentarius Codex Alimentarius is an international standard-setting body whose members are states. The Codex Alimentarius Commission was created in 1962 as a joint undertaking of the UN Food and Agriculture Organisation (FAO) and the World Health Organization (WHO). The Commission, open to all FAO and WHO member states, now numbering 189, has a dual function: “protecting the health of the [sic] consumers and ensuring fair practices in the food trade.”62 To this end, the Commission is charged explicitly with adopting advisory multilateral “good practice” standards on the composition of food products, food additives, labeling, food processing techniques, and inspection of foodstuffs and processing facilities. By 2006, Codex had published standards for 218 pesticides (in the form of maximum residue limitations), 292 food additives, and 49 veterinary drugs in food (also in the form of maximum residue limitations). Codex standards are primarily intended as hortatory guidance to governments in establishing their own national regulations. By contrast, while a secondary goal of standards adopted by industry consortia may ultimately be to influence national legislation, their primary motivation is to standardize business practices internally, from firm to firm.63 Although it performs various functions and reaches a range of constituencies, Codex tends to be an institutional  Costco was approved as the first participant in the voluntary VQIP program. See Costco Wholesale Corporation is Approved as First Participant in FSMA Voluntary Qualified Importer Program, U.S. Food & Drug Admin. (Feb. 21, 2020), www​.fda​.gov​/food​/cfsan​-constituent​-updates​/costco​ -wholesale​-corporation​-approved​-first​-participant​-fsma​-voluntary​-qualified​-importer​-program. 61   See supra text accompanying note 54. 62  Statutes of the Codex Alimentarius Commission, art. 1, para. a, reprinted in Codex Alimentarius Commission, Procedural Manual 4 (19th ed. 2010), www​.fao​.org​/3​/a​-i1400e​.pdf. 63   See generally Spencer Henson & John Humphrey, The Impacts of Private Food Safety Standards on the Food Chain and on Public Standard-Setting Processes (FAO/WHO May 2009), www​.fao​.org​/ docrep​/012​/i1132e​/i1132e00​.pdf. 60

The Food Safety Modernization Act and international trade rules  273 setting to which developing-country agricultural exporters, typically small and without much political leverage, can look for assistance in creating export markets. Indeed, concern has recently been voiced about the capacity of private voluntary standards established by industry consortia to operate as trade barriers, constricting market access for agricultural exporters in developing countries.64 The variety of influences on Codex, including its intergovernmental consensus nature and its industry influence, has led to concerns about the rigor of its standards.65 Because of its global influence, FSMA mandates consideration of “whether and how to harmonize requirements under the Codex Alimentarius.”66 2. ISO 22000 The International Organization for Standardization (ISO), created immediately after World War II with headquarters in Geneva, is an international federation of standardizing bodies from 167 countries. ISO is not an intergovernmental organization such as the United Nations, which is constituted by a multilateral agreement whose members are states represented by governmental authorities. Although the ISO member from some countries is a governmental entity, such as a national standardizing body, ISO is primarily a forum for coordinating standardizing efforts by private businesses. The U.S. member of ISO is the American National Standards Institute (ANSI), a private entity. In the United States, the primary, although not sole, participants in ISO processes are representatives of private industry.

  See, e.g., Comm. on Sanitary & Phytosanitary Measures, Summary of the Meeting of 30–31 March 2011, ¶¶ 132–146, WTO Doc. G/SPS/R/62 (May 27, 2011) (expressing concern about private and commercial standards for food). See also Members Take First Steps on Private Standards in Food Safety, Animal-Plant Health, WTO News (Mar. 30 & 31, 2011), www​.wto​.org​/english​/news​_e​ /news11​_e​/sps​_30mar11​_e​.htm; Voluntary Pilot Program to Evaluate Alignment of Third-Party Food Safety Standards with FSMA Rules, U.S. Food & Drug Admin. (Oct. 23, 2020), www​.fda​ .gov​/food ​/new​- era​-smarter​-food​-safety​/voluntary​-pilot​-program​- evaluate​-alignment​-third​-party​ -food​-safety​-standards​-fsma​-rules. Since the mid-1990s, Codex standards have received enhanced attention because of their express identification as “international standards” in two Uruguay Round agreements: the Agreement on the Application of Sanitary and Phytosanitary Standards (SPS Agreement), Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1A, 1867 U.N.T.S. 493, and the Agreement on Technical Barriers to Trade (TBT Agreement), id., 1868 U.N.T.S. 120. As described in other portions of this chapter, harmonized international standards operate to promote trade by assuring market access for exporters. In the context of the SPS and TBT Agreements, as well as in other free trade agreements, Codex standards operate as outer limits of rigor for governmental regulation; mandatory governmental requirements more stringent than Codex are subject to challenge as trade barriers. See, e.g., Appellate Body Report, European Communities—Trade Description of Sardines, WTO Doc. WT/DS231/AB/R (Sept. 26, 2002) (successful challenge to EU’s labeling requirements for sardines by reference to Codex standard). The WTO reports and press release cited at the beginning of this note go one step further in identifying private standards as potential trade barriers. See generally Wirth, supra note 58. 65   See, e.g., Sam F. Halabi & Ching-Fu Lin, Assessing the Relative Influence and Efficacy of Public and Private Food Safety Regulation Regimes: Comparing Codex and GlobalG.A.P Standards, 72 Food & Drug L.J. 262 (2017); Sam F. Halabi, The Codex Alimentarius Commission, Corporate Influence, and International Trade: A Perspective on FDA’s Global Role, 41 Am. J.L. & Med. 406 (2015). 66  FSMA § 305(c)(5). See generally U.S. Food & Drug Admin., FDA’s International Food Safety Capacity-Building Plan: Food Safety Modernization Act Section 305 (2013), www​.fda​ .gov​/media​/124268​/download (report mandated by FSMA § 305). 64

274  Research handbook on international food law ISO’s principal work product consists of voluntary standards adopted by consensus. In contrast to some of the output of intergovernmental organizations, ISO standards are strictly hortatory and are not binding under international law. ISO standards are both adopted by and addressed to private parties. ISO has adopted its 22000 series of standards on food safety, which are “auditable” or subject to verification by appropriately accredited private, third-party auditors or certifiers (inspectors in the current context), for which there is an elaborate system already in place. ISO’s 17000 series establishes standards for “conformity assessment,” including testing and inspection. The preamble to FDA’s third-party certification final rule contains over a hundred references to ISO 17000 series standards. 3. Global Food Safety Initiative The Global Food Safety Initiative (GFSI) is an industry-initiated effort that commenced in 2000 after a number of food safety scares and was organized as a Belgian non-profit. The original members were eight major retailers: Carrefour, Tesco, ICA, Metro, Migros, Ahold, Wal-Mart, and Delhaize. Others that have since joined include Cargill, Coca-Cola, Starbucks, and McDonald’s, although the latter has since withdrawn. Initially European in its focus, GFSI subsequently became increasingly accepted in the United States, to the point that it is now arguably the principal scheme for coordinated industry action on voluntary food safety standards in North America. GFSI responded to the concern that many of the larger food suppliers and retailers were simultaneously complying with and being audited by reference to various private voluntary food safety standards. Instead of attempting to harmonize these standards or “schemes,” GFSI “benchmarks” existing food safety schemes. “Benchmarking” is “the method by which a food safety scheme is compared to defined [GFSI] requirements … to determine equivalence.”67 Currently, there are six benchmarked private voluntary schemes (i.e., determined by GFSI to be equivalent), including FSSC 22000, based on ISO standards.68 GFSI has a defined internal governance system addressing the roles of participating industry members. One of GFSI’s principal missions is to reduce costs by minimizing duplication of audits, as suggested by its slogan, “once certified, accepted everywhere.” GFSI does not perform any audits or certifications, but it has adopted and enhanced the requirements of ISO standards as a model for audits of GFSI standards.69   See Global Food Safety Initiative, GFSI Benchmarking Requirements: Key Changes V7 to Version 2020 (2020), https://mygfsi​.com ​/wp​-content​/uploads​/2020​/02​/ Benchmarking​_ KeyChanges​_v2020​_WEB​-1​.pdf. Earlier versions of the full text of the GFSI Guidance Document, now known as the Benchmarking Requirements, setting out detailed standards for the benchmarking process, were publicly available, although that no longer seems to be the case. 68   See Shamonique Schrick, A Guide to Choosing Between GFSI Schemes in 2021, Safety Chain (Sept. 2, 2021), https://blog​.safetychain​.com​/gfsi​-schemes (last visited July 7, 2022) (discussing SQF Program, FSSC 22000, BRC Global Standards, PrimusGFS, IFS Food Standard, GlobalG.A.P.). 69   See section III.B.2 supra. These include ISO Guide 65 (general requirements for bodies operating product certification systems); ISO 17021 (conformity assessment—requirements for bodies providing audit and certification of management systems); ISO 17000 (conformity assessment— vocabulary and general principles); and ISO 17011 (conformity assessment—general requirements for accreditation bodies accrediting conformity assessment bodies). See id. Despite their significant public law significance, as a result of FSMA and other statutory enactments, ISO documents are not publicly available, even through libraries. See ISO Standards, Standards Stores, https://standards​-stores​.com​/certification​-products​/iso​-standards/ (last visited July 7, 2022) (“Many people are 67

The Food Safety Modernization Act and international trade rules  275 4. Other voluntary food safety standards In addition to the six GFSI-benchmarked schemes, there are various sets of private, voluntary food safety standards. One important one is GlobalG.A.P., roughly an analog of GFSI and now benchmarked to it, including both producers/suppliers and retailers.70 Additionally, various industry sectors have undertaken to establish private voluntary standards, and the universe is very large.71

IV. INTERNATIONAL TRADE RULES AND FOOD SAFETY MEASURES In applying U.S. standards to trade originating from foreign facilities, FSMA’s assertive reach up the supply chain has reshaped the global food trade. The statute’s identification of the U.S. importer as the principal point of regulation obviates questions under public international law of the potential extraterritorial application of domestic law.72 The statute’s effect is nonetheless to create standards that foreign exporters must meet to access the large and desirable U.S. market. In applying that leverage to imported food, FSMA in effect creates something approaching global food safety standards.73 U.S. standards for imported food have encouraged regulatory cooperation with foreign governments.74 But those requirements also have the potential to create international tensions.75 To private-party exporters and the governments of states of export, FSMA and the regulations looking for a copy of the full text of ISO standards in electronic format … [W]hat they really want is a free copy of the full text of the standard in electronic format. But this is impossible to find. ISO standards are not free, and are subject to strict copyright restrictions by ISO. The only way to legally obtain a copy of an ISO standard is by purchasing it from an authorized reseller of ISO Standards. … Someone has to pay”). 70  See Who We Are, GlobalG.A.P., www​.globalgap​.org​/cms​/front​_content​.php​?idcat=2 (last visited July 7, 2022). 71   See, e.g., Am. Spice Trade Ass’n, Clean, Safe Spices Guidance from the American Spice Trade Association (2017), www​.astaspice​.org​/download ​/129. 72   Restatement (Third), supra note 15, § 414. 73   See, e.g., Michael R. Taylor, FDA Deputy Comm’r for Foods and Veterinary Med..& Howard R. Sklamberg, Deputy Comm’r for Global Regul. Operations and Pol’y, Internationalizing Food Safety: FDA’s Role in the Global Food System, 37 Harv. Int.l Rev. 32 (2016). See also Reba A. Carruth, Federal Rulemaking and the US Food and Drug Administration: International Regulatory Policy Cooperation in the 21st Century, 20 Geo. Pub. Pol’y Rev. 61 (2015); Larry Keener, Sophia Nicholson-Keener & Tatiana Koutchma, Harmonization of Legislation and Regulations to Achieve Food Safety: US and Canada Perspective, 94 J. Sci. Food & Agric. 1917 (2014). 74   See, e.g., Ching-Fu Lin, Outsource Power, Import Safety? Challenges and Opportunities of the U.S.-China Food Safety Regulatory Cooperation, 72 Food & Drug L.J. 32 (2017); Sam F. Halabi, Global Administrative Law and the FDA’s Collaborative Agreements with International Regulatory Partners, in Food and Drug Regulation in an Era of Globalized Markets 135 (Sam F. Halabi ed. 2015). 75   See, e.g., Neal Fortin, The U.S. Food Safety Modernization Act: Implications in Transnational Governance of Food Safety, Food System Sustainability, and the Tension with Free Trade, 25 Duke Env’t L. & Pol’y F. 313 (2015); Jessica Hopton Youngberg, U.S. Food Safety vs. An International Agreement: The FDA Food Safety Modernization Act in the Context of the World Trade Organization’s Sanitary and Phytosanitary Agreement, 8 J. Health & Biomedical L. 507 (2013).

276  Research handbook on international food law promulgated pursuant to its authority may appear to be trade barriers that impede access to U.S. markets. Reduced to its essence, the question then becomes whether FSMA establishes a scheme of legitimate food safety standards designed to protect public health in the United States or whether, alternatively, the statutory regime erects unjustified trade barriers that penalize exporters, potentially to the benefit of U.S. competitors. The law of international trade originates entirely from express agreements, including those that apply to the 164 members of the World Trade Organization (WTO)76 and parties to regional (sometimes called “preferential”) trade agreements such as the recent United-StatesMexico-Canada Agreement (USMCA)77 and its predecessor the North American Free Trade Agreement (NAFTA).78 By and large, the core trade disciplines of the WTO suite of agreements and regional trade agreements do not contain any affirmative obligations to protect the environment or public health.79 Indeed, international trade agreements may potentially impede the efforts of individual states or groups of states to address the problems of food safety, global climate change, and other challenges to environmental integrity, public health, and sustainability. While there are limited exceptions for a number of domestic policy goals including human health and safety, international obligations or “disciplines” on trade are almost exclusively “negative” in the sense that they place constraints on governmental action. Trade agreements by and large identify food safety measures as potential trade barriers, encouraging liberalized trade through requirements that limit governmental intrusion into what otherwise would be a free market. From the point of view of policies to ensure food safety, environmental integrity, and sustainability, this phenomenon is the equivalent of deregulation—in the sense of reducing the level of governmental intervention in the market in the form of tariffs, governmentally imposed regulations, or other prescriptive requirements—and trade agreements by their negative obligations are inherently deregulatory. This momentum largely explains the phenomenon of globalization, at least as it has been defined for the past three decades or so: disabling governments from impeding private interactions and transactions, thereby facilitating their global reach.

  See Final Act Embodying the Results of the Uruguay Round of Multilateral Trade Negotiations, Apr. 15, 1994, 1867 U.N.T.S. 14; 33 I.L.M. 1143 (1994); Marrakesh Agreement Establishing the World Trade Organization, 1867 U.N.T.S. 154; 33 I.L.M. 1144 (1994). 77  United States-Mexico-Canada Agreement (USMCA), including Protocol of Amendment, entered into force Jul. 1, 2020, https://can​-mex​-usa​-sec​.org​/secretariat ​/agreement​-accord​-acuerdo​/index​ .aspx​?lang​=eng (last visited July 7, 2022). 78  North American Free Trade Agreement, Dec. 17, 1992, 32 I.L.M. 289. 79   But see USMCA, supra note 77, ch. 24 (“Environment”) (establishing affirmative environmental protection agenda). Sustainability and environment are increasingly included in regional trade agreements, especially those negotiated by the EU, in what the European Court of Justice has identified a “new generation” of comprehensive trade agreements with Canada, Singapore, and potentially the U.S. that must be “mixed,” in the sense of expressly incorporating EU member states as parties. Opinion 2/15, Pursuant to Article 218(11) TFEU, ECLI:EU:C:2017:376 (May 16, 2017). See, e.g., Comprehensive Economic and Trade Agreement (CETA) between Canada, of the One Part, and the European Union and Its Member States, of the Other Part, 2017, O.J. (L 1) 23 (EU), http:// data​.europa​.eu​/eli​/agree​_internation​/2017​/37​/oj. It is not yet clear how those affirmative obligations might affect the application of the negative trade-based disciplines in the event of overlap, inconsistency, or outright conflict. 76

The Food Safety Modernization Act and international trade rules  277 Food safety protection, by contrast, anticipates affirmative, prescriptive governmental interventions in the marketplace to offset market failures. That explains the potential tension between the two approaches: one operates to disable governmental action, while the other depends on invigorating government. Obligations in trade agreements proscribe certain governmental behavior that impedes trade, while food safety laws prescribe affirmative governmental actions to protect public health and ecosystems. International trade agreements generally contain no rule-making authority that might be employed to protect the public from unsafe food, and they consequently do not require states to achieve any minimum level of protection of public health. Put bluntly, the surest way for a state to assure full compliance with international disciplines on food safety would be to have no regulation. By contrast, in domestic legal systems, such as that established by the U.S. Constitution, there is normally some affirmative governmental regulatory power to offset the externalities created by market liberalization. International trade agreements instead operate asymmetrically only in the direction of relaxing the rigor of food safety measures, with no offsetting requirements to meet minimum standards of social welfare in such areas as the protection of public health. A. GATT Basic Disciplines At a more technical level, the 1947 General Agreement on Tariffs and Trade (GATT), incorporated into the WTO suite of agreements, articulates three basic disciplines primarily based on principles of non-discrimination in international trade. These are roughly analogous to the U.S. Dormant Commerce Clause80 and, as there, designed to prevent the erection and maintenance of unilateral trade barriers: • • •

National treatment, contained in Article III of GATT, requiring non-discrimination between foreign and domestic products; The most-favored-nation (MFN) principle, contained in Article I of GATT, specifying non-discrimination among imported products on the basis of their national origin; and A prohibition on quantitative restrictions for imports or exports contained in Article XI of GATT.

Additionally, Article XX of GATT establishes exceptions for measures “necessary to protect human, animal or plant life or health” and “relating to the conservation of exhaustible natural resources.” Analytically, these provisions justify a national measure that would otherwise violate a trade agreement’s negative disciplines. Despite frequent misconceptions to the contrary, they are not affirmative obligations to regulate in these areas. Although the analogy is less than perfect because of its existence within a municipal governmental structure of a federal state, the U.S. Dormant Commerce Clause jurisprudence offers a potentially useful conceptual reference point.

 The U.S. Dormant Commerce Clause is inferred from the Commerce Clause in that because interstate commerce is governed federally, states may not enact laws that would discriminate against or unduly burden interstate commerce; see also supra text accompanying note 4.

80

278  Research handbook on international food law 1. The tuna-dolphin dispute and PPMs The celebrated “tuna-dolphin” dispute presents the general case in microcosm.81 This controversy concerned tuna fishing in the Eastern Tropical Pacific Ocean (ETP), where schools of tuna often travel below pods of dolphins. Fishing boats employ the practice of “setting on dolphins,” encircling the dolphins with a “purse-seine” net to capture the tuna below. The United States established industry-wide practices regulating U.S. flag vessels operating on the high seas, designed to prevent the incidental “taking” of species of dolphins. As an ancillary strategy, the U.S. adopted the measure at issue in the dispute: as set out in the governing statute, “a ban on the importation of commercial fish or products from fish which have been caught with commercial fishing technology which results in the incidental kill or incidental serious injury of ocean mammals in excess of United States standards.” Some foreign governments and fleets, such as those of Costa Rica, adopted policies that eliminated setting on dolphins, assuring continued access to the U.S. tuna market. But because no findings of comparability could be made in the policies of Mexico, Venezuela, Vanuatu, Panama, and Ecuador, tuna imports from these countries were prohibited. Mexico initiated a dispute settlement process under the auspices of the General Agreement on Tariffs and Trade (GATT), then the principal multilateral instrument governing international trade relations among states. After considering Mexico’s complaint, a three-member GATT dispute settlement panel’s report concluded that the U.S. embargo had violated Mexico’s trading rights. The panel reached two important conclusions relevant to the present analysis. First, rejecting the argument of the U.S. as responding party, the panel concluded that tuna caught with purse-seine nets was “like” tuna captured through alternative methods. Indeed, the two are identical as a matter of the composition of the product and indistinguishable based on the method by which they were harvested. Second, the GATT panel rejected the applicability of the exceptions in GATT article XX for measures to protect human, animal, or plant life or health on the one hand and for exhaustible natural resources on the other. The panel’s analysis of this question fundamentally turned on the availability of less trade-restrictive measures, such as technology transfer and foreign assistance, to defray the costs of adopting alternatives to purse-seine net fishing. Among the alternatives identified, the panel expressed a particular preference for an international agreement among the disputing parties, by definition, consensual.82 By comparison, the unilateral embargo in effect eliminated all market access and, along with it, Mexico’s GATT-based rights.83   United States—Restrictions on Imports of Tuna, DS21/R (Sept. 3, 1991) B.I.S.D. (39th Supp.) , at 155, reprinted in 30 I.L.M. 1594 (1991). 82  Soon after the imposition of the tuna embargo, ten states, negotiating under the auspices of the Inter-American Tropical Tuna Commission, entered into an agreement to reduce dolphin mortality, the so-called “La Jolla Agreement.” Agreement for the Reduction of Dolphin Mortality in the Eastern Pacific Ocean, June 1992, 33 I.L.M. 936. Among other things, this instrument was intended to phase down the maximum permissible take of dolphins in the Eastern Pacific Ocean to 5,000 in 1999 while continuing to allow the practice of dolphin sets. 83  Presumably because negotiations on the North American Free Trade Agreement were occurring simultaneously, Mexico did not present the panel report to the GATT Council, representing all the contracting parties to that instrument, for adoption. A second complaint initiated by the European Communities and the Netherlands, challenging the secondary ban which was intended to prevent “tuna laundering,” reached a similar result. United States—Restrictions on Imports of Tuna, DS29/R (June 16, 1994) , reprinted in 33 I.L.M. 839 (1994). This report remained unadopted by Council when the GATT ceased to exist at the end of 1994, and like the first tuna panel report 81

The Food Safety Modernization Act and international trade rules  279 The validity of regulation based on process and production methods (PPMs) has persisted in the law and policy debates surrounding application of trade-based rules that address not only the product as such but other attributes of its manufacture, such as life-cycle analysis. 2. PPMs in the WTO A subsequent dispute presenting essentially the same issues of law and policy in the WTO was initiated in the then-new WTO by India, Malaysia, Pakistan, and Thailand against the United States. The measure, analogous to that in the tuna/dolphin dispute, was an embargo on importing shrimp harvested in nets that did not utilize “turtle excluder devices” (TEDs) designed to protect sea turtles, all species of which are endangered. Like the tuna embargo, this was a PPM-based measure. In an analysis similar to that in the prior GATT panel, the WTO Appellate Body held that both forms of shrimp, those captured with and without TEDs, were “like products.” The Appellate Body, in contrast to the GATT panel and the suggestions of prior GATT jurisprudence, concluded that the requirements of the specific article XX exceptions for human, animal, or plant life or health and exhaustible natural resources had been met. The Appellate Body nonetheless found that the means of implementation of the program contravened the “chapeau” (introductory paragraph) of the article prohibiting “arbitrary or unjustifiable discrimination.” Among the deficiencies identified by the Appellate Body were the following: (1) the U.S. failure to accord “due process” to the complaining states, by comparison with its treatment of others; (2) the U.S. insistence on TEDs as the only acceptable technology, by comparison with other approaches that might also protect sea turtles; (3) the U.S.’s refusal to consider particular product streams, instead requiring certification of entire countries, such as the complaining parties; and (4) discriminatory treatment in technology transfer among shrimp-exporting WTO members. As with the prior GATT panel, the Appellate Body identified the failure of the United States to engage in negotiations to reach an international agreement as a deficiency.84 After the U.S. Department of State responded to the defects in implementation identified by the Appellate Body,85 Malaysia nonetheless initiated a follow-up dispute, complaining that no international agreement had in fact been concluded. The Appellate Body responded that in view of the serious, good faith efforts made by the United States to negotiate an international agreement [even in the absence of its conclusion, the statutory program] is now applied in a manner that no longer constitutes a means of unjustifiable or arbitrary discrimination, as identified by the Appellate Body in its Report.86

consequently never became GATT law. See David A. Wirth & Douglas J. Caldwell, Unilateral Trade-Based Measures for Protection of the Marine Environment: A Legal and Policy Perspective, in Values at Sea: Environmental Ethics for the Marine Environment 147 (Dorinda G. Dallmeyer ed. 2003). 84   Appellate Body Report, United States—Import Prohibition of Certain Shrimp and Shrimp Products, WTO Doc. WT/DS58/AB/R (Oct. 12, 1998). See also Gregory C. Shaffer, The WTO Shrimp-Turtle Case (United States—Import Prohibition of Certain Shrimp and Shrimp Products), 93 Am. J. Int’l L. 507 (1999). 85  Department of State, Revised Guidelines for the Implementation of Section 609 of Public Law 101-162 Relating to the Protection of Sea Turtles in Shrimp Trawl Fishing Operations, 64 Fed. Reg. 36,946 (July 8, 1999). See Sean D. Murphy, Contemporary Practice of the United States Relating to International Law, 94 Am. J. Int’l L. 348, 361 (2000). 86   Appellate Body Report, United States—Import Prohibition of Certain Shrimp and Shrimp Products, Recourse to Article 21.5 of the DSU by Malaysia, ¶ 134, WTO Doc. WT/DS58/AB/RW

280  Research handbook on international food law As a result, the PPM-based measure in the dispute ultimately survived Appellate Body review. Another related dispute concerns the “dolphin safe” label employed within the United States. Labeling is disciplined in the WTO by the Uruguay Round Agreement on Technical Barriers to Trade (TBT Agreement) in a manner not dissimilar in some respects to the Agreement on the Application of Sanitary and Phytosanitary Standards (section IV.B). Mexico challenged the label, which had survived review in the original GATT tuna/dolphin dispute by reference to the 1947 basic disciplines before adopting the TBT Agreement. Like the substantive embargo, the label is also a PPM-based measure in that its application turns on the method by which tuna is produced. In applying the TBT’s requirement in article 2.1 that foreign products be accorded treatment “no less favourable” than “like” domestic products, the Appellate Body in the dispute, typically known as “Tuna II,” concluded that the United States had failed to demonstrate that “the detrimental impact of the US measure [the label] on Mexican tuna products stems exclusively from a legitimate regulatory distinction [the method by which the product is harvested].”87 Although in the view of one knowledgeable observer, the Tuna II Appellate Body report “leaves a crack for PPMs,”88 the jurisprudence on this question is at best jumbled. If nothing else, the jurisprudence concerning PPM-based measures—a process-based, life cycle approach to regulation analogous to FSMA’s HARPC measures—demonstrates the unpredictability of results in an adversarial adjudicatory setting such as the GATT or WTO. Moreover, as with any such system of adjudication based on an accretion of “caselaw” over time, the WTO jurisprudence is in a constant state of evolution whose direction may be difficult or impossible to predict.89 B. Trade-Based Disciplines on Sanitary and Phytosanitary Measures The WTO Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement), adopted during the Uruguay Round, is a “post-discriminatory” instrument designed to address measures that may not be inconsistent with the 1947 GATT basic disciplines but that nonetheless may operate as trade barriers. The Agreement governs measures, such as those adopted pursuant to FSMA, applied to protect human, animal, or plant life or health from pests, disease-causing organisms, additives, contaminants, and toxins. The agreement consequently disciplines or governs both food safety measures and agricultural quarantines.

(Oct. 22, 2001).  Appellate Body Report, United States—Measures Concerning the Importation, Marketing and Sale of Tuna and Tuna Products, ¶ 297, WTO Doc. WT/DS381/R (May 16, 2012). See Gregory Shaffer, The WTO Tuna-Dolphin II Case: United States—Measures Concerning the Importation, Marketing and Sale of Tuna and Tuna Products, 107 Am. J. Int’l L. 192 (2013). 88  Elizabeth Trujillo, The WTO Appellate Body Knocks Down U.S. “Dolphin-Safe” Tuna Labels But Leaves a Crack for PPMs, 16 ASIL Insights 25 (July 26, 2012), www​.asil​.org​/insights​/volume​ /16​/issue​/25​/wto ​-appellate​-body​-knocks​- down​-us-​%E2​%80​%9Cdolphin​-safe​%E2​%80​%9D ​-tuna​ -labels​-leaves (last visited July 25, 2021). 89  There is no rule of stare decisis in the international system or in WTO jurisprudence. Nonetheless, in a pattern familiar from common law systems, the Appellate Body tends to refer to its prior jurisprudence in addressing disputes before it. One of the primary purposes of the Appellate Body is to signal to panels the current state of WTO law to assist in their treatment of subsequent disputes. 87

The Food Safety Modernization Act and international trade rules  281 The core of the SPS text is a series of science-based disciplines. An SPS measure not based on international standards must be supported by “a scientific justification” (article 3.3). A challenged measure must be “based on scientific principles” (article 2.2), must not be “maintained without sufficient scientific evidence” (article 2.2), and the regulatory process leading to the measure must “take into account available scientific evidence” (article 5.2). A central feature of the SPS Agreement, found in article 5.1, is a requirement for a risk assessment, and the principal operative test in the agreement is the need for the measure to be “based on” that risk assessment. The SPS Agreement consequently codifies requirements for an approach to regulation roughly commensurate with the familiar risk assessment/risk management duality. An early dispute initiated under the SPS Agreement was a challenge by the United States and Canada to the European Communities’ prohibition on the sale of imported and domestically manufactured meat and meat products derived from cattle treated with three natural and three synthetic growth-promoting hormones.90 This dispute was hardly a surprise, coming as it did after years of transatlantic tensions over the hormone ban. Indeed, the inclusion of the SPS Agreement as a component of the Uruguay Round was motivated in large measure as a generic effort to address the EC’s across-the-board hormone ban, which did not appear to be susceptible to challenge by reference to the non-discrimination tests in the 1947 GATT. In ruling against the EU, the Appellate Body concluded that the measure was not “based on” the risk assessment because the level of risk identified did not justify the total ban, the most aggressive of regulatory interventions. Importantly, the Appellate Body found that an acceptable risk assessment need not rely on majority or undisputed science and need not necessarily be quantitative. The Appellate Body, however, conclusively rejected the application of the precautionary principle or approach as a defense originating from sources extrinsic to the Agreement.91 After the dispute continued to fester in light of the EU’s refusal to remove the measure, a second dispute initiated by the EU a decade later in response to the complaining parties’ retaliatory tariffs left the core SPS jurisprudence in some disarray.92 Another major SPS dispute related to food safety measures, known as EC—Biotech, was also initiated against the EU for its failure to approve genetically modified foods and crops for entry into the single market. This dispute concerned a process of prior approval, in contrast to that in the hormones dispute, subject to the discipline of “undue delay.”93 While the EU lost with respect to 24 of the 27 “notifications” regarding food safety then in the pipeline, it chose not to appeal. Again, the panel decisively rejected the application of precaution as a regulatory

 Appellate Body Report, EC Measures Concerning Meat and Meat Producrs (Hormones), WTO Doc. WT/DS26/AB/R, WT/DS48/AB/R (Jan. 16, 1998). See David A. Wirth, European Communities— Measures Concerning Meat and Meat Products, 92 Am. J. Int’l L. 755 (1998). 91   See generally David A. Wirth, The World Trade Organization Dispute Over Genetically Modified Organisms: The Precautionary Principle Meets International Trade Law, 37 Vermont L. Rev. 1153 (2013). 92  Appellate Body Report, United States—Continued Suspension of Obligations in the EC-Hormones Dispute, WTO Doc. WT/DS320/AB/R (Oct. 16, 2008). 93  Panel Report, European Communities—Measures Affecting the Approval and Marketing of Biotech Products, WT/DS291/R, WT/DS292/R, WT/DR293/R (Sept. 29, 2006). See Daniel Bodansky, European Communities—Measures Affecting the Approval and Marketing of Biotech Products: WT/DS291/R, WT/DS292/R, & WT/DR293/R, 101 Am. J. Int’l L. 453 (2007). See generally Sean D. Murphy, Biotechnology and International Law, 42 Harv. Int’l L. J. 47 (2001); Wirth, supra note 91. 90

282  Research handbook on international food law methodology, concluding that the legal status of precaution had not changed in the intervening time since the hormones dispute.

V. FSMA, THE FDA RULEMAKINGS, AND THE WTO From the point of view of WTO law, FSMA was destined from its inception to attract attention. Similar to the other challenged measures described in the preceding section, FSMA and its associated rulemakings are affirmative regulatory measures designed to protect food safety and public health. FDA’s risk-based preventive controls required in HARPC plans qualify as SPS measures. FSMA and the regulations adopted under its authority are, moreover, fundamentally process-based, addressing the entirety of the manufacturing process and not just the content of the product in international trade. Indeed, operating through the FSVP, those requirements are expressly intended to reach up the supply chain to the processing site in a foreign country. Additionally, the statute’s reliance on private, third-party certification is arguably disciplined by the TBT Agreement as well. After some concerns had been raised during Congressional debate on the statute,94 in February 2011, the United States formally notified FSMA as enacted into law95 to the WTO Committee on Sanitary and Phytosanitary Standards. This committee is a non-adjudicatory body charged with “provid[ing] a regular [i.e., standing] forum for consultations … [including to] encourage and facilitate ad hoc consultations or negotiations among Members on specific sanitary or phytosanitary issues.”96 The United States subsequently provided separate notices of both the FSVP and third-party certification rulemaking.97 FDA in its notice of proposed rulemaking on third-party certification expressly referenced the formal reactions of other WTO members as represented by foreign governments.98 That   See, e.g., Comm. on Sanitary and Phytosanitary Measures, Summary of the Meeting of 29-30 June 2010, ¶¶ 21–23, WTO Doc. G/SPS/R/59 (Aug. 23, 2010) (concerns of China). 95   Committee on Sanitary and Phytosanitary Measures, Notification—United States—Food for Human and Animal Consumption, Except for Meat, Poultry, and Egg, WTO Doc. G/SPS/N/ USA/2156 (Feb. 14, 2011). 96  SPS Agreement, supra note 43, at art. 12 (1) & (2). 97   Committee on Sanitary and Phytosanitary Measures, Notification—United States—Foreign Supplier Verification Programs for Importers of Food for Humans and Animals, Proposed Rule, WTO Doc. G/SPS/N/USA/2569 (July 30, 2013) (FSVP proposed rule); Committee on Sanitary and Phytosanitary Measures, Notification—United States—Accreditation of Third-Party Auditors/ Certification Bodies to Conduct Food Safety Audits and to Issue Certifications, Proposed Rule, WTO Doc. G/SPS/N/USA/2570 (July 30, 2013) (third-party accreditation proposed rule). Because those proceedings are the ones, among the seven foundational regulations, with the most obvious implications for trade rules, the subsequent discussion is confined to those two rulemakings. 98  FSMA was notified to the WTO on February 14, 2011, to provide information on the FD&C Act to WTO members. The notification included an electronic mailbox link to receive comments from members. Several comments have been received via the mailbox. The comments note a high degree of interest in FSMA implementation, particularly with respect to how implementation will impact developing countries. Committee on Sanitary and Phytosanitary Measures, Notification—United States—Food Safety Modernization Act, WTO Doc. G/SPS/N/USA/2156 (Feb. 11, 2011); see also Accreditation Proposed Rule, supra note 54, at 45, 785—786 (describing comments received as a result of WTO notification). The author in July 2021 made a request for these documents to the FDA contact identified in the notice, which does not appear in the docket. As of this writing, there has been no reply to that request. 94

The Food Safety Modernization Act and international trade rules  283 documentation, however, does not seem to be publicly available. The reactions of WTO members can nonetheless be gleaned from various other sources, including: (1) reports of WTO SPS committee meetings; and (2) comments of foreign governments directly to FDA in its rulemaking proceedings, particularly those on FSVP and third-party certification. A. WTO Discussions Related to FSMA and Its Rulemakings FSMA and the associated rulemakings, including those concerning FSVP and private thirdparty certification, have been identified as a cause for concern by other WTO members in SPS Committee meetings with sufficient frequency that they have been assigned entries in the Committee’s “List of Specific Trade Concerns.”99 Reports of the SPS Committee100 identify the following issues, largely raised by India and China, with support from Belize, Brazil, Costa Rica, Jamaica, Mexico, Pakistan, the Philippines, and the Republic of Korea: • • • • • • • •

Required registration for food export companies located in foreign states; On-site inspections, including the absence of advance notification; Compulsory certification for high-risk imported products; Consistency with international standards, such as Codex Alimentarius principles and guidelines for the design, operation, assessment, testing, and accreditation of food import and export inspection and certification systems; The substantive requirements of preventive controls; The relationship between FSMA and food safety requirements in countries of export, including testing and inspection; The potential for discriminatory treatment of imported foodstuffs; The identity, eligibility, and functioning of registration entities for private food certification bodies;

  FSMA-related concerns have been assigned the numbers STC 299 (US 2009 Food Safety Enhancement Act, the pre-passage name for FSMA), STC 352 (US proposed rule on good manufacturing practice for human food), and STC 357 (accreditation of third-party bodies to conduct food safety audits and to issue certifications). See SPS Comm., Note by the Secretariat, Specific Trade Concerns, tab. 1, ¶ 3.14, U.N. Doc. G/SPS/GEN/204/Rev.14 (Mar. 4, 2013). According to the WTO, the first two issues have been raised again by China as recently as November 2020 but have since been resolved or partially resolved. United States—US Food Safety Management Act (ID 299), SPS&TBT Platform, https://eping​.wto​.org​/en​/ TradeConcerns​/details​?imsId​=299​&domainId​=SPS (last visited Dec. 23, 2022); Comm. on Sanitary and Phytosanitary Measures, Update on Specific Trade Concerns (STCs) Resolved/Partially Resolved, U.N. Doc. G/SPS/GEN/2062/Rev.1 (Nov. 8, 2022). 100  Committee on Sanitary and Phytosanitary Measures, Summary of the Meeting of 16–17 October 2013, ¶ 2.1, WTO Doc. G/SPS/R/73 (Jan. 15, 2014); Committee on Sanitary and Phytosanitary Measures, Summary of the Meeting of 27–28 June 2013, ¶¶ 4.3 & 4.4, WTO Doc. G/SPS/R/71 (Aug. 28, 2013); Committee on Sanitary and Phytosanitary Measures, Summary of the Meeting of 19–20 October 2011, ¶¶ 52–54, WTO Doc. G/SPS/R/64 (Jan. 17, 2012); Committee on Sanitary and Phytosanitary Measures, Summary of the Meeting of 27–28 March 2012, ¶¶ 61–63, WTO Doc. G/SPS/R/66 (May 23, 2012); Committee on Sanitary and Phytosanitary Measures, Summary of the Meeting of 30 June–1 July 2011, ¶¶ 42–45, WTO Doc. G/SPS/R/63 (Sept. 12, 2011); Committee on Sanitary and Phytosanitary Measures, Summary of the Meeting of 30–31 March 2011, ¶¶ 43–47, WTO Doc. G/SPS/R/62 (May 27, 2011); Committee on Sanitary and Phytosanitary Measures, Summary of the Meeting of 29–30 June 2010, ¶¶ 21–23, WTO Doc. G/SPS/R/59 (Aug. 23, 2010).  99

284  Research handbook on international food law • • • • • • • •

The potential impact on small producers in states of export; The scientific justification, or absence, for the statute and implementing regulations, particularly those that are more demanding than international standards, including but not limited to HACCP; Disparate impact on developing countries, including those with which the U.S. has bilateral SPS protocols; Concerns about a phase-in period, without which developing country exporters could be adversely affected; The availability of technical assistance to countries of export, in particular, to alleviate the cost of new regulatory burdens, especially in light of user fees anticipated by FSMA; The availability of mutual recognition agreements to other WTO Members, particularly developing country exporters, on such issues as reciprocal acceptance of test results; The apparent absence of attempts at equivalence and harmonization with food safety requirements in countries of export in light of the treatment of those issues in the SPS Agreement; Transparency, in the sense of the advance availability of FSMA’s requirements for comment by other WTO Members in advance of adoption.

These issues are still considered pending. A number go considerably beyond the existing SPS jurisprudence, meaning that it is not now possible to anticipate how they might be evaluated by WTO panels and the Appellate Body if U.S. practice were to be challenged in a formal dispute settlement proceeding. B. WTO Disciplines and Foreign Governments in the FDA Rulemakings FDA received at least nine comments from foreign states and governmental entities in each of the FSVP101 and third-party certification102 rulemakings. Those comments largely track the litany of by-now-familiar objections: non-discrimination; scientific justification; reference to internationally harmonized norms, including non-binding and purely private standards (e.g., Codex and ISO); and a preference for international agreement over unilateral measures among them. The Agency engaged with comments advocating the need for “special and differential treatment” and technical assistance to help exporters from developing countries, a topic on which it had specifically invited comments.103 FDA also responded substantively to comments concerning the availability of documentation in the WTO languages of Spanish and French. Otherwise, it rejected comments cautioning about the potential for the FSMA regime to run afoul of WTO trade-based disciplines.  Canada, China, European Commission, Jamaica, Republic of Korea, Japan, Mexico, New Zealand, Taiwan, and Thailand. See U.S. Food & Drug Admin., Rulemaking Docket: Foreign Supplier Verification Program, Docket ID FDA-2011-N-0143, www​.regulations​.gov​/docket​/ FDA​-2011​-N​ -0143​/comments (last visited July 4, 2022) (comments in FSVP rulemaking). 102  Canada, China, European Commission, Italy, Jamaica, Republic of Korea, New Zealand, South Africa, and Thailand. See U.S. Food & Drug Admin., Rulemaking Docket: Accreditation of ThirdParty Auditors, Docket ID FDA-2011-N-0146, www​.regulations​.gov​/docket​/ FDA​-2011​-N​- 0146​/ comments (last visited July 4, 2022) (comments in third party certification rulemaking). 103   See FSVP Final Rule, supra note 51. 101

The Food Safety Modernization Act and international trade rules  285 While the concerns of third states have not yet resulted in a formal dispute settlement proceeding, these comments and the analogous objections on the WTO Committee on Sanitary and Phytosanitary Standards suggest the continuing vulnerability of FSMA and its associated rulemakings to a trade-based challenge. As in EC—Biotech, challenges may be founded both on the basic disciplines (GATT articles I, III, XI, and XX) as well as the SPS Agreement. The third-party rulemaking also raises questions about processes such as conformity assessments using ISO standards, incorporated by reference in the TBT Agreement. Interestingly, the life-cycle, explicitly process-oriented nature of HARPC plans seems not to have featured prominently in the objections of foreign states, either in the SPS Committee or in the comments of foreign governments on the FSVP and third-party certification rulemakings. Perhaps that is because the PPM distinction has not—at least not yet—penetrated the SPS jurisprudence, despite its prominence in disputes under the 1947 GATT basic disciplines and the TBT Agreement. FSMA section 404104 explicitly specifies that FSMA and FDA’s implementation of the statute should be harmonized with GATT/WTO rules. So it is perhaps not surprising that FDA’s two final rules summarily swatted aside comments objecting to the WTO consistency of its new regulations, many of them specific to the commenter concerned. But neither did the Agency mount a full-bore defense of the WTO consistency of those regulations that would have addressed all the potential inconsistencies, instead responding to the objections piecemeal.

VI.

IMPLICATIONS FOR DOMESTIC LAW

In the early 1990s, around the time of NAFTA and the Uruguay Round, the concept of a twolevel negotiation inspired by game theory gained attention in political science literature.105 The analogy is particularly apt in addressing trade negotiations and free-trade agreements. A. A “Two-Level Game” Consistent with the British doctrine of the supremacy of Parliament from which the U.S. legal system is derived, the United States is primarily a dualist system. The international and domestic legal orders do not intersect except through the operation of some mechanism linking the two. Binding international agreements, whose parties are states, operate as the legal equivalent of a contract or compact in international law, both creating rights and obligations and also making law for the states who are parties to them. Treaties, subordinate to the Constitution, also have a binding effect at the domestic level.106  “Nothing in this Act (or an amendment made by this Act) shall be construed in a manner inconsistent with the agreement establishing the World Trade Organization or any other treaty or international agreement to which the United States is a party.” FSMA § 404, 21 U.S.C. § 2252. 105   See, e.g., Double-Edged Diplomacy: International Bargaining and Domestic Politics (Peter B. Evans, Harold K. Jacobson & Robert D. Putnam eds. 1993); Steven Tadelis, Game Theory: An Introduction (2013); Robert D. Putnam, Diplomacy and Domestic Politics: The Logic of Two-Level Games, 42 Int’l Org. 427 (1988). 106   U.S. Const. art. VI, § 2 (“[A]ll treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land”). 104

286  Research handbook on international food law The analogy is especially appropriate for free trade agreements such as the WTO suite of agreements. Since the mid-1970s,107 all free trade agreements have been negotiated as so-called “Congressional-Executive Agreements,” relying for their legal authority not on the treatymaking power under Article II, Section 2 of the Constitution but instead on prior statutory authorizations and subsequent adoption of domestic implementing legislation.108 Previously known as “fast track,” this process—now called “trade promotion authority”—anticipates the adoption of implementing legislation on a yes-no, up-or-down simple majority vote in each of the two Chambers of Congress. After adoption, domestically within the U.S., the implementing legislation serves as the rule of law, while the international agreement proper creates rights and obligations under international law. Trade rules in the WTO are consequently embedded in two rule-of-law systems, one the familiar domestic Constitutional regime that includes the constraints of administrative law, and the other an international, multi-tier rulemaking and adjudicatory setting, with appellate processes in both. The situation is further complicated by the disparate, if not conflicting, purposes of both: at the domestic level to protect public health and the environment; and at the international to target unjustified trade barriers, which may well include those domestic interventions adopted to further the public interest through collective governmental action. B. Domestic Administrative vs. Foreign Relations Law Regulatory interventions such as the FSMA rulemakings operate simultaneously on domestic and international levels. The United States Government acknowledged this in notifying the WTO of both FSMA and the then-pending rulemakings, pursuant to its obligations under the WTO SPS Agreement. Those notifications, of necessity, invited responses from foreign governments, including other WTO members, giving rise to further discussions still pending—at least as a matter of principle—in the SPS Committee.109 Those communications were initiated and continued by the Executive Branch, relying at least in considerable part on the President’s powers as diplomat-in-chief for the Nation.110 As such, they are intergovernmental and diplomatic in nature, a category of communications typically conducted in secrecy, and have not been made public.111 At the same time, responses from foreign governments are self-evidently relevant to the rulemakings but have not been placed in the public record.112 Those communications may or may not be reflected, most likely imperfectly, in the WTO Secretariat’s summary reports of the meetings of the WTO SPS Committee, where other WTO members are not obliged to speak. Moreover, foreign

 Trade Act of 1974 § 101, 19 U.S.C. § 2111 (authorizing negotiation of trade agreements, including Tokyo Round of Trade Negotiations in GATT and United States Canada Free Trade Agreement). 108   See, e.g., Harold H. Koh, The Fast Track and United States Trade Policy, 18 Brook. J. Int’l L. 143 (1992). 109   See Update on Specific Trade Concerns, supra note 99. 110   See, e.g., United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 319 (1936) (President as the “sole organ” of the Nation in foreign affairs.) 111   See supra text accompanying note 98 (lack of response to author’s request to FDA for responses to WTO notifications). 112  Some foreign governments, such as China through its WTO/SPS National Notification & Enquiry Center, appear to have re-submitted its responses to the WTO notifications as comments in the FDA rulemakings. 107

The Food Safety Modernization Act and international trade rules  287 governments such as India that have expressed serious concern in the WTO do not appear to have made submissions to the FDA in the rulemakings. Foreign governments with rights under the WTO suite of agreements are not bound by U.S. administrative law that applies to rulemakings such as those under FSMA. For example, there is no functional need to submit publicly available comments in administrative proceedings to preserve their rights to domestic subsequent judicial review, an avenue largely duplicated as a practical matter by the possibility of a WTO challenge in diplomatic proceedings. While in principle the results of WTO dispute settlement do not have the effect of domestic law,113 the limited jurisprudence on the subject suggests that reviewing courts are inclined to give them considerable deference.114 There could also be significant diplomatic and international legal difficulties created by a domestic process, such as the FDA rulemakings, that in effect require foreign sovereigns to participate in U.S. domestic legal processes, at risk of potentially forfeiting their rights under public international law for failing to do so.115 Moreover, the secrecy of diplomatic channels creates opportunities for privileged access by foreign governments to U.S. decision-making processes out of the public eye, without the necessity for initiating a formal international dispute. The mere threat of a conflict, as opposed to an actual dispute, may also act to dampen national regulatory efforts. Employing an approach that might be called the “raised eyebrow,” a state skeptical of another’s need for a regulatory intervention may influence the other state’s policy, whether for trade reasons or otherwise, in a manner that never reaches the public. While FDA informed the public of the WTO notifications, it did not describe the results of inputs from foreign governments.116 Its responses to comments were confined strictly to those received through the formal administrative process and not through the WTO channel—at least not those that were not re-submitted by governments in the rulemakings. In terms of basic principles of administrative law—notice, opportunity to comment, adequacy of the administrative record, requirements for exhaustion of administrative remedies, availability of judicial review—there is good reason to question the fundamental adequacy of these rulemakings concerning the input of other WTO member governments. At the same time, there is

  See e.g., Uruguay Round Agreements Act, §§ 102, 123(g), Pub. L. No. 103-465, 108 Stat. 4809 (1994). 114  E.g., George E. Warren Corp. v. EPA, 159 F.3d 616, 623–624 (D.C. Cir. 1998), amended by 164 F.3d 676 (D.C. Cir. 1999) (judicial review of reformulated gasoline rule promulgated under Clean Air Act after successful WTO challenge and adverse WTO Appellate Body report). Compare Timken Co. v. United States, 354 F.3d 1334 (Fed. Cir. 2004) (WTO Appellate Body jurisprudence not relevant to interpretation of domestic statutory law). See generally Jeanne J. Grimmett ,Cong. Rsch. Serv., RS22154, World Trade Organization (WTO) Decisions and Their Effect in U.S. Law (2011). 115  For example, the U.S. domestic scheme applied in the turtle/shrimp dispute required foreign governments, including WTO members, to apply to a federal agency to secure a certification that would permit access to the U.S. market. See United States—Import Prohibition of Certain Shrimp and Shrimp Products, supra note 84. The Appellate Body did not address potential objections that this regime amounted to a situation of one sovereign subjecting another to its domestic jurisdiction, a concern sounding in sovereign immunity, based on the sovereign equality of states. Rather, the Appellate Body concluded that the U.S. statutory and administrative process amounted to “arbitrary or unjustifiable discrimination” proscribed by the chapeau to article XX. Id. 116   See Accreditation Proposed Rule, supra note 98. 113

288  Research handbook on international food law no obvious vehicle under present law and jurisprudence to reconcile these concerns with the foreign relations component of these rulemakings.117 C. An Unsatisfactory Standoff For decades, the U.S. Government, and FDA in particular, has reflexively assured the public of the impermeability of domestic regulation on food, public health, and environment to a WTO challenge. That confidence, however, was severely upended in 2012, just after the enactment of FSMA, when the U.S., in the space of fewer than three months, lost three major challenges to domestic regulations in the WTO Appellate Body, including one promulgated by FDA: on flavored cigarettes,118 tuna labeling,119 and country of origin labels for meat.120 As such, there is no longer reason for full confidence in the capacity of FDA’s FSMA regulations to survive WTO attack. Moreover, the experience of these three contemporaneous disputes demonstrates the fundamental lack of predictability surrounding litigation, including WTO dispute settlement, in which previously unanticipated legal theories might find some traction. It is not clear whether the intervening period of a decade or more indicates that concerns have subsided. Another scenario could be that the dynamics festering below the surface erupt in an individual case when a particular product stream from an identifiable country sufficiently constricts market access to make a challenge worthwhile. Any number of attributes of FSMA, including the crucially important life cycle nature of the principle workhorse of risk-based preventive control, remain untested in the WTO. A WTO member’s willingness to initiate a formal dispute settlement proceeding in that organizational setting reflects political as well as legal considerations. The momentum to challenge what appear to be legitimate food safety measures may be dampened by other, perhaps unrelated, foreign policy concerns. At the same time, a dispute simmering beneath the surface, out of the public eye, could erupt at any time, potentially without warning. The numerous grievances identified by states of export in the WTO SPS Committee, concerned about access to the lucrative U.S. market, provide ample notice of the legal risks. That said, there is still reason for optimism. This chapter surveys only the publicly available information relating to the objections of foreign states to FSMA and its implementing regulations, and it is difficult or impossible to document communications that may have been made  For example, the Administrative Procedure Act’s exemption for military or foreign affairs functions, 5 U.S.C. § 552(b)(1), is clearly too broad to encompass the entirety of the FSMA rulemakings, even those such as the FSVP and third party certification regulations that have an international reach. 118  Appellate Body Report, United States—Measures Affecting the Production and Sale of Clove Cigarettes, WTO Doc. WT/DS406/AB/R (Apr. 4, 2012). See Tania Voon, The WTO Appellate Body Outlaws Discrimination in U.S. Flavored Cigarette Ban, 16 ASIL Insights 15 (Apr. 30, 2012), www​.asil​.org​/insights​/volume​/16​/issue​/15​/wto​-appellate​-body​-outlaws​-discrimination​-us​ -flavored​-cigarette​-ban. 119  Shaffer, supra note 87. 120  Appellate Body Report, United States—Certain Country of Origin Labelling (COOL) Requirements, WTO Doc. WT/DS384/AB/R, WT/DS386/AB/R (June 29, 2012). See Joshua Meltzer, The WTO Ruling on U.S. Country of Origin Labeling (“COOL”), 16 ASIL Insights 23 (2012), www​.asil​.org​ /insights​/volume​/16​/issue​/23​/wto​-ruling​-us​- country​-origin​-labeling-​%E2​%80​%9Ccool​%E2​%80​ %9D. 117

The Food Safety Modernization Act and international trade rules  289 informally through diplomatic channels, behind closed doors, with no public record. Over time, FSMA’s transformational nature is likely to have been acknowledged, if not necessarily accepted, by the U.S.’s trading partners. If a formal challenge to FSMA’s basic structure were lurking, it likely would have matured into a full-blown formal dispute a decade after the statute’s enactment and half as long since the adoption of FDA’s final regulations. The overall system is, moreover, immensely complex, involving as it does the interaction with private voluntary standards, themselves transnational in nature. Further adding to both the domestic and international mix, private voluntary standards have themselves been identified as potential trade barriers by states of export.121 There is, however, always the possibility that the treatment of a particular product stream from an identifiable foreign source could trigger a conflagration without warning. Opportunities for discrimination in implementation are built into the statute’s structural design for good reason, and the SPS jurisprudence counsels constant vigilance as to scientific justification for all of FDA’s actions. Even then, there is a continuing risk, as suggested by the GMO dispute, that the WTO’s dispute settlement apparatus could be mobilized to review the totality of the regulatory architecture from the ground up.

VII. CONCLUSION The need for an analysis like the present one is emblematic of dysfunction in the international system addressing food safety. The first preambular paragraph of the Agreement Establishing the World Trade Organization acknowledges the importance of “optimal use of the world’s resources in accordance with the objective of sustainable development.”122 But the remainder of the enormous corpus of GATT/WTO rules, at least as they currently stand, is deregulatory in character. This architecture sets up the equivalent of a joust, in which unilateral, tradebased measures such as FSMA and its rulemakings are figuratively in combat with multilateral constraints, the equivalent of trial-by-trade agreement. Consistent with the metaphor, the forum in which these disputes are resolved is asymmetric, adjudicatory, adversarial litigation, with the WTO Appellate Body awarding the prize of market access to a victorious challenger. Successful respondents, by contrast, are rewarded only by having survived the challenge, with their food safety, public health, and environmental measures having emerged unscathed. The real party to these disputes is the public interest in food safety, public health, and environmental integrity, which only stands to lose and never to gain, regardless of the outcome. While the ostensible purpose of the trade-based disciplines is to suppress domestic protectionist interests, the asymmetrical nature and very real potential for abuse of the aggressive trade disciplines by special interests seeking deregulatory outcomes is largely unappreciated. An additional concern is not just that of actual, transparent WTO litigation, in which the public around the world can examine the positions of the governmental parties to the dispute. Rather,

  See Wirth, supra note 58. See, e.g., Michael M. Du, The Regulation of Private Standards in the World Trade Organization, 73 Food & Drug L.J. 432 (2018); Eva van der Zee, Disciplining Private Standards Under the SPS and TBT Agreement: A Plea for Market-State Procedural Guidelines, 52 J. World Trade 393 (2018). 122  Marrakesh Agreement Establishing the World Trade Organization, Oct. 30, 1947, 61 Stat. A-11, 55 U.N.T.S. 194, pmbl. para. 1. 121

290  Research handbook on international food law the potentially dampening effect of the “raised eyebrow” dynamic of backroom discussions in fora such as the WTO SPS Committee can never really be assessed. The one thing we know is that the weapons in the toolbox of foreign governments uniformly press in the direction of less rather than greater rigor. The system itself is responsible for those structural considerations, and no one state has entirely clean hands. The United States was a principal driver behind the WTO SPS Agreement. Even as of this writing, FDA has not released the comments from foreign governments in response to its notice of FSMA to the Committee, despite expressly referencing them in its third-party audit rulemaking. It need not be this way. Instead of treating food safety measures as presumptive trade barriers as a target in the form of potential non-tariff trade barriers, with a bounty to be claimed through WTO processes, adjudicatory and otherwise, the failure to maintain minimum protections for food safety could readily be treated as an actionable subsidy. There is already a precedent for something along these lines in the treatment of geographical indications (GIs) in the WTO and regional trade agreements negotiated by the EU. In contrast to generic food safety measures promulgated under FSMA, GIs are privileged monopolies on a precisely categorized group of luxury goods in international trade protected by those agreements’ rules on intellectual property. Much work is currently underway in FAO and elsewhere to harness these monopolies to realize the benefits of sustainability to the benefit of food safety goals, public health protection, and environmental integrity.123 The planet desperately needs a new law of sustainable trade to supplant the current deregulatory model, not just for food safety but also in analogous fields, such as trade in goods manufactured with climate-disrupting fossil fuels. In the meantime, there is no choice but to live with domestic and international law and institutions as they currently exist. Given the immense complexity of the situation in both settings and limited transparency, particularly on the international level, the only real choice is constant vigilance and demands for accountability.

123

  See, e.g., David A. Wirth, Geographical Indications, Food Safety, and Sustainability: Conflicts and Synergies, 5 Bio-Based & Applied Econ. 135 (2016).

14. ESG, supply chain due diligence and food systems transformation: changes and challenges Uché Ewelukwa Ofodile

INTRODUCTION On June 17, 2021, the United States (US) Supreme Court threw out a lawsuit that accused US-based companies Nestlé USA, Inc., and Cargill, Inc., of knowingly helping perpetuate slavery at cocoa farms in Côte d’Ivoire.1 The plaintiffs in Nestlé USA, Inc. v. Doe (Nestlé) were individuals from Mali who were trafficked to Côte d’Ivoire as child slaves to work on cocoa farms. The defendants in the case are companies that do not own or operate cocoa farms in Côte d’Ivoire but routinely buy cocoa from farms located there and provide those farms with technical and financial resources. The plaintiffs alleged that the defendants aided and abetted their slavery by providing the farms that held them with technical and financial resources despite knowing or having reason to know that the farms were using children as slaves. In Nestlé, the Supreme Court took up, for the third time, the question of corporate liability for human rights violations under an 18th-century statute, the Alien Tort Statute (ATS).2 The Supreme Court dismissed the case on extraterritoriality grounds without addressing the core issue of companies’ liability for human rights violations abroad. In an 8–1 ruling authored by Justice Clarence Thomas, the Supreme Court reversed a decision of the Ninth Circuit Court of Appeals that had allowed the lawsuit.3 “Nearly all the conduct that they say aided and abetted forced labor – providing training, fertilizer tools, and cash to overseas farms – occurred in [Côte d’Ivoire],” Justice Thomas wrote. Nestlé exposes some of the ESG-related risks in the food and agriculture supply chains, highlights the governance gaps that enable human rights and environmental violations to occur along the food and agriculture supply chains, shows both the limits of voluntary corporate social responsibility (CSR) action to address problems in global supply chains and underscores the urgent need for more effective approaches to implementing ESG-related due diligence practice in the global supply chains. Nestlé also highlights the problems that may arise when businesses do not frame business decisions regarding human rights and environmental impacts and do not implement comprehensive and effective mitigation processes for adverse human rights and environmental impacts in their supply chains. The problem of slavery and human trafficking in the cocoa/chocolate supply chains4 and the food and agriculture

 Nestlé USA, Inc. v. Doe, 141 S.Ct. 1931 (2021).  Alien Tort Statute, 28 U.S.C. § 1350. 3  Doe v. Nestle USA, Inc., 766 F.3d 1013 (9th Cir. 2014) (“Nestle I”). 4  Liz Blunt, The Bitter Taste of Slavery, BBC News (Sept. 28, 2000, 5:43 PM), http://news​.bbc​.co​.uk​ /2​/ hi​/africa ​/946952​.stm. 1 2

291

292  Research handbook on international food law sector more broadly is well documented.5 More than 40 million globally are living in modern slavery, many in the food and agricultural sector according to The Global Slavery Index 2018. Between 2012 and 2017, some 89 million people experienced some form of slavery, according to the Global Estimates of Modern Slavery published in 2017. Today, the list of food and agriculture industries linked to slavery grows ever longer and includes the fishing industry, the shrimp industry, the sugar industry, the palm oil industry and many more industries. Essentially, more than 200 years after the abolition of slavery, slave labor is still embedded in the global food system, and the world appears unwilling or unable to address this massive atrocity in global supply chains effectively. Human rights issues in the supply chains of food and agriculture companies are wideranging and include economic, social and cultural rights issues, as well as civil and political rights issues. On the economic, social and environmental front, issues such as poor working conditions, child labor, inadequate workplace health and safety, human trafficking, land grabs, entrenched discrimination and environmental impacts like pollution, greenhouse gas emissions and ecosystem degradation loom very large. On the civil and political front, agribusinesses have been accused of, among other things, extra-judicial killing, torture, forced disappearances, crimes against humanity and war crimes, violation of trade union rights,6 as well as inhuman and degrading treatment.7 Sadly, slavery is not the only challenge confronting the chocolate/cocoa industry and the food and agriculture sector more broadly. Among the environmental, social and governance (ESG) issues facing the food and agricultural sector, the climate crisis looms very large. The link between food production and climate change is well established. The food and agriculture sector accounts for about a quarter of global greenhouse gas emissions. The chocolate/cocoa sector contributes to the climate crisis through massive deforestation.8 In turn, the climate crisis is devastatingly impacting the agricultural sector, particularly in poor countries.9 Developments in the last two decades are prompting businesses in every industry and economic sector to evaluate their human rights and environmental impacts critically. Among other things, the past two decades saw (i) the growth of global and regional standards of responsible business conduct; (ii) increased concern about the impact of the food and agricultural sector on climate change; and (iii) a growing pressure on businesses to implement mitigation processes for adverse human rights and environmental impacts in their value chains.10  Eliza Barclay, Why Slave Labor Still Plagues the Global Food System, NPR (June 20, 2013, 1:04 PM), www​.npr​.org​/sections​/thesalt​/2013​/06​/19​/193548623​/why​-slave​-labor​-still​-plagues​-the​-global​ -food​-system; Caro Meldrum-Hanna & Ali Russell, Slaving Away, ABC Four Corners (May 3, 2015), www​.abc​.net​.au​/news​/2015​- 05​- 04​/slaving​-away​-promo​/6437876.  6  Aldana v. Del Monte Fresh Produce, N.A., Inc., 416 F.3d 1242, 1246 (11th Cir. 2005).  7  See Doe v. Chiquita Brand International, EarthRights Int’l, https://earthrights​.org​/case​/doe​-v​ -chiquita​-brands​-international/, for a timeline of ongoing litigation.  8   Bittersweet: Chocolate’s Impact on the Environment, World Wildlife Found. (Spring 2017), www​.worldwildlife​.org​/magazine​/issues​/spring​-2017​/articles​/ bittersweet​- chocolate ​-s​-impact​- on​ -the​-environment; Michon Scott, Climate and Chocolate, NOAA (Feb. 10, 2016), www​.climate​.gov​ /news​-features​/climate​-and ​/climate​-chocolate.  9  Jonathan Woetzel et al., How Will African Farmers Adjusr to Changing Patterns of Precipitation?, McKinsey & Co. (May 18, 2020), www​.mckinsey​.com​/capabilities​/sustainability​/our​-insights​/ how​ -will​-african​-farmers​-adjust​-to​-changing​-patterns​-of​-precipitation. 10   See, e.g., OECD, OECD Guidelines for Multinational Enterprises (2011), https://doi​.org​/10​ .1787​/9789264115415​-en.  5

ESG, supply chain due diligence and food systems transformation  293 Regarding responsible business conduct, one significant development was the adoption, in 2011, of the “Guiding Principles on Business and Human Rights: Implementing the United Nations ‘Protect, Respect and Remedy’ Framework” (“UNGPs” or “Guiding Principles”).11 Although a voluntary instrument, the UNGPs have been widely embraced by states and non-state actors. For example, in 2012, the American Bar Association endorsed the Guiding Principles.12 In March 2014, the Law Society of the United Kingdom issued recommendations on how members can integrate the Guiding Principles into their practices.13 Europe’s Council of Bars and Law Societies have also embraced the Guiding Principles.14 In 2014, the International Bar Association (IBA) published guidance for bar associations and business lawyers on implementing the Guiding Principles.15 In 2016, the IBA released the IBA Practical Guide on Business and Human Rights for Business Lawyers.16 Against the backdrop of increased CSR expectations for all businesses and a growing standardization and legalization of CSR principles, this chapter generally explores the implications of the UNGPs for enterprises in the food and agricultural sector. Drawing on the plight of agricultural workers and focusing on the chocolate industry, the chapter explores the limits of voluntary CSR initiatives and the growing demand for laws that impose mandatory ESG obligations on businesses. However, an exhaustive assessment of all the ESG risks in the supply chains of companies in the food and agriculture sector is beyond this chapter’s scope.

I. RESPONSIBLE BUSINESS CONDUCT AND THE UNITED NATIONS GUIDING PRINCIPLES ON BUSINESS AND HUMAN RIGHTS A. About the United Nations Guiding Principles For a very long time, despite years of debates and discussions, the world lacked a single, coherent and widely accepted global framework for addressing the interaction of business and human rights. In 2005, at the request of the UN Commission on Human Rights (the predecessor of the

 John Ruggie (Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises), Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy” Framework, U.N. Doc. A/HRC/17/31 (Mar. 21, 2011) [hereinafter UNGPs]. 12   A Lawyer’s Guide to Key Business and Human Rights Documents, Am. Bar Ass’n, www​.americanbar​.org​/groups​/ human​_ rights​/ business​-human​-rights​-initiative​/ key​-business​-and​-human​-rights​ -documents/ (last visited Dec. 21, 2022). 13   The Law Society, Business and Human Rights Advisory Group: Recommendations (March 2014), https://communities​.lawsociety​.org​.uk ​/download​?ac​=9376. 14   CCBE, Corporate Responsibility and the Role of the Legal Profession (2013), www​ .ccbe​.eu​/fileadmin ​/speciality​_distribution ​/public​/documents​/CSR ​/CSR ​_ Position​_papers​/ EN​_CSR​ _20130207​_CSR​-and​-the​-role​-of​-the​-legal​-profession​.pdf. 15   International Bar Association, Business and Human Rights Guidance for Bar Associations (2014), www​.ibanet​.org​/document​?id​=Business​%20and​%20Human​%20Rights​%20 Guidance​%20for​%20Bar​%20Associations. 16   International Bar Association, Practical Guide on Business and Human Rights for Business Lawyers (2016), www​.ibanet​.org​/ MediaHandler​?id​=d6306c84​-e2f8​- 4c82​-a86f​-93940 d6736c4. 11

294  Research handbook on international food law United Nations Human Rights Council), the UN Secretary-General appointed Professor John Ruggie to serve as the “Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises.”17 In 2008, Ruggie presented a report entitled Protect, Respect and Remedy: A Framework for Business and Human Rights (the UN Framework) to guide thinking about the relationship between business and human rights.18 In Resolution 8/7, the UNHRC unanimously endorsed the UN Framework and tasked the SRSG with providing recommendations for its practical implementation and operationalization.19 In June 2011, Ruggie released The Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy” Framework,20 which elaborated on how the UN Framework could be implemented. On 16 June 2011, the Human Rights Council unanimously endorsed the UNGPs.21 The UNGPs are built on three pillars: the state duty to protect (Pillar 1), the business responsibility to respect (Pillar 2) and access to remedy (Pillar 3).22 The UNGPs consist of 31 principles that set out “the respective duties and responsibilities of governments and business enterprises to prevent and address [adverse impacts] on people resulting from business activities.”23 B. The Business Responsibility to Respect Human Rights The baseline responsibility of companies is to respect human rights.24 UNGP 11 declares that “[b]usiness enterprises should respect human rights,” which means that they should avoid infringing on the human rights of others and address adverse human rights impacts with which they are involved. The range of rights that fall within the responsibility to respect is quite broad. UNGP 12 clarifies that the responsibility of business enterprises to respect human rights refers to internationally recognized human rights – understood, at a minimum, as those expressed in the International Bill of Human Rights and the principles concerning fundamental rights set out in the International Labour Organization’s Declaration on Fundamental Principles and Rights at Work.

The UNGPs clarify unequivocally that the responsibility to respect “is a global standard of expected conduct for all business enterprises wherever they operate.”25 According to UNGP 14, the responsibility of business enterprises to respect human rights “applies to all enterprises  Commission on Human Rights Res. 2005/69, ¶ 1 (Apr. 20, 2005), http://ap​.ohchr​.org​/documents​/ E​/ CHR ​/resolutions​/ E​-CN​_4​-RES​-2005​-69​.doc. 18  John Ruggie (Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises), Protect, Respect and Remedy: A Framework for Business and Human Rights, U.N. Doc. A/HRC/8/5, (April 7, 2008) [hereinafter U.N. Framework]. 19  Human Rights Council Res. 8/7 (June 18, 2008). 20   UNGPs, supra note 11. 21  Human Rights Council Res. 17/4, U.N. Doc. A/HRC/RES/17/4, at ¶ 4 (July 6, 2011). 22   Gwynne Skinner et al., The Third Pillar: Access to Judicial Remedies for Human Rights Violations by Transnational Business (2013). 23  Rep. of the Working Group on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises, ¶ 1, U.N. Doc. A/73/163 (July 16, 2018). 24   U.N. Framework, supra note 18, at ¶ 54. 25   Guiding Principle 11 Commentary, Nat’l Action Plans on Bus. & Hum. Rts., https://globalnaps​.org​ /ungp​/guiding​-principle​-11/ (last visited Dec. 21, 2022) (emphasis added). 17

ESG, supply chain due diligence and food systems transformation  295 regardless of their size, sector, operational context, ownership and structure.” This responsibility exists independently of states’ abilities and willingness to fulfill their human rights obligations and does not diminish those obligations. Moreover, the responsibility to respect exists over and above compliance with national laws and regulations protecting human rights.26 The responsibility to respect invokes several key concepts, such as due diligence, impact assessment, tracking performance and remediation. The responsibility to respect human rights also requires companies to avoid complicity and establish effective grievance mechanisms. UNGP 22 affirms that “[w]here business enterprises identify that they have caused or contributed to adverse impacts, they should provide for or cooperate in their remediation through legitimate processes.”

II. AGRICULTURAL WORKERS IN THE GLOBAL SUPPLY CHAINS Agricultural workers are among the most marginalized constituencies in the world, even though they are central to the growth and success of the agri-food sector in particular and the global economy in general. There is a growing recognition, particularly in Europe, that with the connection of the global economy with millions of workers worldwide through global value chains comes a responsibility to address adverse impacts on the rights of these workers. A. Agricultural Workers: Numbers Agricultural workers are the backbone of the food and agricultural industry. Although the percentage of the global population employed in agriculture is on a downward trajectory – 28% in 2018, down from 44% in 1991 – millions around the globe still work in the food and agricultural sector.27 According to data from the World Bank, about one billion people (28% of the population) worked in the agricultural sector globally in 2018.28 In 2019, agriculture employed about 27% of the global workforce. In sum, 884 million, or 27% of 3.3 billion workers in 2019, worked in the agricultural sector, according to the Food and Agriculture Organization.29 The gender dimension of employment in the agriculture sector cannot be overlooked. Globally, women were 37% of those employed in agriculture in 2019. In some countries, women account for over 50% of those employed in agriculture.30 There are stark differences in agriculture employment between developed and developing countries; more people are employed in agriculture in poor countries (see Table 14.1).31

  Id.   Employment in Agriculture, World Bank (Jan. 2021), https://data​.worldbank​.org​/indicator​/SL​ .AGR​.EMPL​.ZS; Emily Cassidy & Amelia Snyder, Map of the Month: How Many People Work in Agriculture, Resource Watch (May 30, 2019), https://blog​.resourcewatch​.org​/2019​/05​/30​/map​-of​ -the​-month​-how​-many​-people​-work​-in​-agriculture/. 28  Cassidy & Snyder, supra note 27. 29   FAO: Ag Employs 27% of World’s Workers, Generates 4% of GDP, Rural Migration News (Jan. 12, 2021), https://migration​.ucdavis​.edu​/rmn​/ blog​/post/​?id​=2510. 30   Id. 31  Cassidy & Snyder, supra note 27. 26 27

296  Research handbook on international food law Table 14.1  Employment in agriculture (% of total employment – selected countries) Country

Year

% of the total employment

Bahrain

2019

1%

Croatia

2019

6%

United States

2019

1%

United Kingdom

2019

1%

Tajikistan

2019

45%

Tanzania

2019

65%

Zimbabwe

2019

66%

Burundi

2019

86%

Source:   The World Bank, Employment in Agriculture, see note 27.

B. The Plight of Agricultural Workers Agricultural workers face human rights challenges ranging from violations of their civil and political rights to marginalization of their economic and social rights. Regarding economic and social rights, agricultural workers routinely experience violations of their right to food, right to social security, right to education and right to adequate health.32 In her 2018 annual report, the former United Nations Special Rapporteur on the Right to Food, Hilal Elver, observed that agricultural workers, including women, children and migrants and plantation workers, “are increasingly faced with low wages, part-time work, informality, and a lack of social and economic protections” and “are further faced with dangerous working conditions owing to regular exposure pesticides and too long hours spent in extreme temperatures without adequate access to water.”33 Although agricultural workers play a critical and very crucial role in achieving food security in most countries, they are “among the most food insecure” and “fac[e] formidable barriers to the realization of their right to food.”34 Slavery thrives in the food and agricultural sector. Indeed, the agriculture sector has a long and ugly track record regarding slavery and human trafficking. According to The Global Slavery Index 2018, in 2016, 40.3 million people lived in modern slavery.35 Of the 40.3 million people living in modern slavery, about 70% are women and girls.36 As was the case centuries ago, products and proceeds of modern slavery are crossing national and regional borders through global trade and commerce. With a focus on G20 countries, studies show that businesses and governments in G20 countries “are importing products that are at risk of modern slavery on a significant scale.”37 Collectively, G20 countries import US$354 billion worth of

 Press Release, Human Rights Council, Agricultural Workers are Among World’s Hungriest, Says UN Expert (Oct. 23, 2018), www​.ohchr​.org​/en​/ NewsEvents​/ Pages​/ DisplayNews​.aspx​?NewsID​ =23754. 33  Interim Rep. of the Special Rappoteur on the Right to Food, U.N. Doc. A/73/164 (2018). 34   Id. at ¶ 1. 35   Walk Free Foundation, The Global Slavery Index 2018, at 2 (2018). 36   Id. 37   Id. at vii. 32

ESG, supply chain due diligence and food systems transformation  297 at-risk products annually. Agricultural products feature prominently on the list of products at risk of modern slavery. Of the top five products at risk of modern slavery imported into the G20 (by US $ value), three are from the food and agricultural sector: fish (#3), cocoa (#4) and sugarcane (#5). C. Lawsuits Centered around the Rights of Farmers and Agricultural Workers Lawsuits by and on behalf of agricultural workers alleging violations of their rights are growing.38 The last two decades witnessed significant increases in the number of lawsuits instituted against agribusinesses, increases in violent actions against the property and staff of agribusinesses, as well as increases in campaigns, protests, strikes and blockades against these companies.39 Lawsuits have been filed accusing agribusinesses of aiding and abetting extrajudicial killings, torture, inhumane and degrading treatment, eco-genocide and other atrocities.40 Although foreign plaintiffs have won some victories through transnational litigation,41 access to justice and remedy remain elusive for the vast majority of agricultural workers and their families.42 Exposure to pesticides and resulting consequences are the focus of a growing number of lawsuits against agribusinesses.43 In Jose Adolfo Tellez, et al., v. Dole Food Company, Inc., et  al., over 20,000 agricultural workers from 13 countries brought an action against Dole Food Company, Inc., claiming that the use of the pesticide dibromochloropropane (DBCP) on banana farms in Latin America, Africa and the Philippines during the 1970s caused adverse health effects.44 In Patrickson v. Dole Food Co., nearly 700 Ivorian banana and pineapple workers’ brought an action under the ATS claiming, among other things, that the use of DBCP on banana and pineapple farms in Côte d’Ivoire constituted genocide, crimes against

 Sean Kelly, Banana Workers Sue Dole, Dow & Chiquita, Courthouse News Serv. (June 6, 2012), www​.courthousenews​.com ​/ banana​-workers​-sue​-dole​-dow​-chiquita/. 39  Oxfam launched its “Behind the Brands” campaign in February 2013. The campaign scored the ten largest food and beverage firms on their policies in seven areas that, according to Oxfam, are “critical to sustainable agricultural production, yet historically neglected by the food and beverage industry.” Beth Hoffman, Oxfam, Food Justice and the “Big 10” Food and Beverage Companies (2013). See Issues, Behind the Brands, www​.behindthebrands​.org​/actnow. 40   See, e.g., Complaint & Demand for Jury Trial, Doe v. Chiquita Brands Int’l, Inc., No. 2:20-cv03244 (D. N.J. Mar. 25, 2020), https://earthrights​.org​/wp​-content​/uploads​/Jane​-Doe​-8​-v.​-Chiquita​ -Complaint​-New​-Claims​-March​-2020​.pdf (discussing effort by family members of trade unionists, banana workers, political organizers and social activists who were targeted and killed by paramilitary groups to hold Chiquita accountable for the violations they suffered). 41   See John Spano, Dole Must Pay Farmworkers $3.2 Million, L.A. Times (Nov. 6, 2007), artic​​les​ .latime​​s​.com ​​/2007​​/nov/​​06​/ lo​​cal​​/m​​e​-dol​​e6; Banana Workers Win $2.5M in Dole Lawsuit, CBS News (Nov. 16, 2007), www​.cbsnews​.com ​/news​/ banana​-workers​-win​-25m​-in​-dole​-lawsuit/. 42   See generally Erin Foley Smith, Note, Right to Remedies and the Inconvenience of Forum Non Conveniens: Opening U.S. Courts to Victims of Corporate Human Rights Abuses, 44 Colum. J.L. & Soc. Probs. 145 (2010). 43   See generally Farmworker Justice, Exposed and Ignored: How Pesticides are Endangering our Nation’s Farmworkers (2013), https://kresge​.org​/sites​/default​/files​/ Exposed​-and​-ignored​ -Farmworker​-Justice​-KF​.pdf. 44  Tellez v. Dole Food Co., L.A. S.Ct. Case No. BC 312852. See generally, Armin Rosencranz & Stephen Roblin, Tellez v. Dole: Nicaraguan Banana Workers Confront the U.S. Judicial System, 7 Golden Gate U. Env’t L.J. 113 (2014), http://digitalcommons​.law​.ggu​.edu​/gguelj​/vol7​/iss2/4. 38

298  Research handbook on international food law humanity and systematic racial discrimination.45 In 2019, Central American agricultural workers brought suit in France against three big agrochemical industries to recover hundreds of millions of dollars in damages awarded to them by Nicaraguan courts but never paid.46 Child slave-labor disclosure class action lawsuits are also growing. Whether corporations have a duty to disclose the existence of child labor and forced labor in their supply chains is a question that courts in the US are increasingly called upon to answer. In cases such as McCoy v. Nestlé,47 Wirth v. Mars,48 Hodsdon v. Mars,49 Dana v. Hershey,50 Sud v. Costco51 and Tomasella v. Nestle USA, Inc.,52 the issue was whether major chocolate brands have a duty to disclose, on their labels, the existence of child labor in their supply chain. In McCoy v. Nestlé, for example, McCoy argued that by not labeling its products, Nestlé misled purchasers and thereby violated California’s consumer protection laws.53 In sum, a growing number of companies in the food and agriculture sector are associated with adverse human rights and environmental impacts. Across the globe, agribusinesses are coming under increased public scrutiny concerning human rights and sustainability issues in their value chains, are facing intrusive investigations and high-value litigations, and are under increased pressure to transition towards more humane and more sustainable business practices. The pressure comes from all quarters, including governments, investors, civil society organizations, smallholder farmers, Indigenous groups, consumers and local communities.54 With increased concern about risks related to environmental, social and governance (ESG) issues, there is a growing consensus among stakeholders that effective due diligence must be at the center of the food industry’s effort to combat the climate crisis and address slavery and other ESG-related risks in supply chains.55 Attorneys at Norton Rose Fulbright have rightly observed that “governments everywhere are aligning themselves with a strong consumer push for greater transparency and accountability of commercial organisations in the area of human rights”56 and that “[c]ommercial organisations are now expected to focus on continuous  Dole Food Co. v. Patrickson, 538 U.S. 468 (2003). See also Mejia v. Dole Food Co., L.A. S.Ct. Case No. BC340049. 46  Liz Alderman, Sterilized Workers Seek to Collect Damages Against Dow Chemicals in France, N.Y. Times (Sept. 19, 2019), www​.nytimes​.com​/2019​/09​/19​/ business​/energy​-environment​/dow​ -chemical​-pesticide​-banana​-workers​.html. 47  McCoy v. Nestlé USA, Inc., No. 3:2015cv04451 (N.D. Cal. Mar. 29, 2016). 48  Wirth v. Mars, Inc., No. 8:2015cv01470 (C.D. Cal. Feb. 5, 2016). 49  Hodsdon v. Mars, Inc., No. 4:2015cv04450 (N.D. Cal. Feb. 17, 2016). 50  Dana v. Hershey Co., No. 3:2015cv04453 (N.D. Cal. Mar. 29, 2016). 51  Sud v. Costco Wholesale Corporation No. 3:2015cv03783 (N.D. Cal, Jan. 24, 2016). 52  Tomasella v. Nestle USA, Inc., 962 F.3d 60 (1st Cir. 2020). 53  Specifically, McCoy brings suit under (1) California Civil Code §§ 1750, et seq., the Consumers Legal Remedies Act; (2) California’s Business & Professions Code §§ 17200, et seq., the Unfair Competition Law; and (3) California’s Business & Professions Code §§ 17500, et seq., the False Advertising Law. 54   See The Cerulli Report, European Environmental, Social, and Governance Investing 2021 (2021). 55  European Commission, Directorate-General for Justice and Consumers, Study on Due Diligence Requirements through the Supply Chain: Final Report (Feb. 20, 2020), https://data​.europa​.eu​/doi​ /10​.2838​/39830. 56   Above and Beyond: Human Rights Due Diligence Across Businesses and Supply Chains, Norton Rose Fulbright (June 2017), www​.nortonrosefulbright​.com​/en​/ knowledge​/publications​/c22baced​ /above​-and​-beyond​-human​-rights​-due​-diligence​-across​-businesses​-and​-supply​-chains. 45

ESG, supply chain due diligence and food systems transformation  299 improvement in the area of corporate social responsibility, in order to tackle their environmental, social and governance impacts.”57 Although agribusinesses are not responsible for and cannot address most of the numerous factors that contribute to modern slavery in the food and agriculture supply chains, they have a responsibility, grounded in domestic, regional and international law, to address human rights issues in their supply chains while also responding decisively to the climate crisis. Over and above annual CSR reports, leadership speeches and other CSR-related campaigns and statements, businesses are expected to proactively address the risk of modern slavery and climate change in their supply chains and to be transparent to governments, investors, their workers and their consumers.

III. COCOA SECTOR AND THE LIMITS OF CORPORATE SOCIAL RESPONSIBILITY Human trafficking, child slavery and abusive labor practices are heavily present in the cocoa industry.58 Accusations of labor rights violations, low incomes, exposure to hazardous working conditions, child labor, gender discrimination, ethnic discrimination and environmental devastation are rife in the cocoa sector.59 Child labor is prevalent on cocoa farms in Africa60 which, in turn, fuels the trafficking of children in the region.61 Over two million children work on cocoa plantations in Côte d’Ivoire and Ghana, and more than 500,000 work in exploitative conditions. Although in the last two decades, the chocolate/cocoa industry has implemented numerous voluntary CSR initiatives, the plight of farmers and workers on cocoa farms in West Africa remains extremely bleak and appears to have gotten worse. Cocoa ranks number four on The Global Survey Index 2018’s list of top five products of modern slavery imported into the Group of Twenty (G20) (by US $ value); G20 countries import about US$3.6 billion worth of cocoa annually. A. CSR in the Chocolate Supply Chain: Relevant Norms and Standards The cocoa/chocolate industry initially denied that child slavery occurred on cocoa farms in Africa. In 2001, following wide media exposure of child labor on cocoa farms in West Africa, United States Representative Eliot Engel (D-NY) introduced a bill that would have empowered the Food and Drug Administration to develop a “No child slavery” labeling requirement for chocolate products sold in the US62 Although the bill was approved by the US House of   Id.  Christian Parenti, Chocolate’s Bittersweet Economy, CNN Money (February 15, 2008), https:// money​.cnn​.com ​/2008​/01​/24​/news​/international​/chocolate​_bittersweet​.fortune/. 59  Patrick Wintour, Slave Warning for Chocolate Firms, The Guardian (Apr. 27, 2001), www​.theguardian​.com ​/uk ​/2001​/apr​/28​/world; Child Labour in Ivory Coast an Ongoing Problem, CBC News (May 11, 2001), www​.cbc​.ca​/world​/story​/2001​/05​/11/ childlabour​_ km​_010511​.h​tml. 60   Lotte Griek, Jennifer Penikett & Esther Hougee, Bitter Harvest: Child Labour in the Cocoa Supply Chain (2010); see also, Orla Ryan, Labouring for Chocolate, BBC News (April 27, 2007). 61   Tracing the Bitter Truth of Chocolate and Child Labour, BBC Panorama (Mar. 24, 2010, http:// news​.bbc​.co​.uk ​/panorama ​/ hi​/front​_page​/newsid​_8583000​/8583499​.stm. 62  Sumana Chaterjee, U.S. Chocolate Firms Launch Fight Against “Slave-Free” Labels, Philadelphia Inquirer (Aug. 1, 2001), www​.commondreams​.org​/ headlines01​/0801​- 03​.htm. 57

58

300  Research handbook on international food law Representatives by a vote of 291–115, it failed to pass the Senate after an intense lobby by the industry. At the time, Rep. Eliot Engel expressed major disappointment at the industry’s effort to ward off the bill. “I am disappointed in the industry because I would have thought they would have some sort of social conscience,” Rep. Engel announced in 2001. Rep. Engel added that instead of addressing the problem, “they are pouring God only knows how much money to continue their profits on the backs of children, and I think they should be ashamed of themselves.”63 Instead of binding legislation, the chocolate and cocoa industries agreed to address child slavery in the cocoa sector through voluntary actions that included: (i) a 2001 agreement, “Protocol for the growing and processing of cocoa beans and their derivative products in a manner that complies with ILO Convention 182 concerning the prohibition and immediate action for the elimination of the worst forms of child labor” (the Harkin-Engel Protocol or Protocol);64 (ii) a 2010 Framework of Action to Support Implementation of the Harkin-Engel Protocol (Framework);65 (iii) a 2010 Declaration of Joint Action to Support Implementation of the Harkin-Engel Protocol (Declaration);66 and (iv) other CSR standards and initiatives. The Protocol is a voluntary agreement involving chocolate and cocoa industry representatives and developed in partnership with Senator Tom Harkin and Representative Eliot Engel. The goal is to eliminate the worst forms of child labor (defined according to the International Labor Organization (ILO)’s Convention 182) in the growth and processing of cocoa in Côte d’Ivoire and Ghana. The Protocol put in place a certification process that does not involve product labeling but rather involves government reporting, an audit system and poverty remediation initiatives. The Protocol prescribed a six-point problem-solving approach and a timebound process for addressing “the worst forms of child labor” in the chocolate supply chains.67 The six key action plan steps are: 1. Public statement of the need for and terms of an action plan – The cocoa industry publicly acknowledged the problem of forced child labor and pledged to “continue to commit significant resources” to address the problem. 2. Formation of multi-sectoral advisory groups – By 1 October 2001, an advisory group will be formed to investigate labor practices in West Africa. By 1 December 2001, industry will form a broad consultative group to advise in the formulation of appropriate remedies to address the worst forms of child labor in the growing and processing of cocoa beans. 3. Signed joint statement on child labor to be witnessed at the ILO – By 1 December 2001, a joint statement must be made recognizing the need to end the worst forms of child labor and identify developmental alternatives for the children removed from labor.   Id.  U.S. Dep’t of Labor, Harkin-Engel Protocol (Sept. 19, 2001), www​.dol​.gov​/sites​/dolgov​/files​/ ILAB​/ legacy​/files​/ Harkin​_ Engel​_ Protocol​.pdf. 65  U.S. Dep’t of Labor, Framework of Action to Support Implementation of the Harkin-Engel Protocol (Sept. 13, 2010), www​.cocoainitiative​.org​/sites​/default ​/files​/resources​/Cocoa ​_ Framework ​_of​_ Action​_9​-12​-10​_ Final​-1​-1​.pdf. 66  U.S. Dep’t of Labor, Declaration of Joint Action to Support the Implementation of the Harkin-Engel Protocol (Sept. 13, 2010), www​.dol​.gov​/sites​/dolgov​/files​/ ILAB​/ legacy​/files​/Gha​naSi​gned​Decl​a ration​.pdf. 67  Protocol, supra note 65. 63

64

ESG, supply chain due diligence and food systems transformation  301 4. Memorandum of cooperation – By 1 May 2002, there will be a binding memorandum of cooperation among the major stakeholders that establish a joint action program of research, information exchange, and action to enforce standards to eliminate the worst forms of child labor. 5. Establish a joint foundation – By 1 July 2002, industry will establish a joint international foundation to oversee and sustain efforts to eliminate the worst forms of child labor in the growing and processing of cocoa beans. 6. Building toward credible standards – By 1 July 2005, the industry, in partnership with other major stakeholders, will “develop and implement credible, mutually-acceptable, voluntary, industry-wide standards of public certification, consistent with applicable federal law, that cocoa beans and their derivative products have been grown and/or processed without any of the worst forms of child labor.”68 Other certification schemes and voluntary CSR initiatives continue alongside the Protocol. For example, most major chocolate companies have adopted CSR/sustainability/human rights policies. Launched in 2017, the Cocoa & Forests Initiative is a collaboration between top cocoa-producing countries worldwide and leading chocolate and cocoa companies in the world and is aimed at ending deforestation and restoring forest areas.69 Many chocolate and cocoa companies have also adopted individual CSR/sustainability plans and programs. The goal of Mars Inc. is, by 2025, “to implement robust child labor and forced labor monitoring and remediation systems for 100% of at-risk families in our cocoa supply chains.”70 In 2017 Mars released its “Sustainable in a Generation Plan.”71 In its report, Respecting Human Rights in the Cocoa Supply Chain Report,72 Mars highlights the company’s progress and the effort to achieve its 2025 human rights goals. On its website, Nestlé acknowledges that “cultivating cocoa presents numerous challenges, like deforestation, child labor risks and a lack of living incomes for cocoa farming households.”73 The company believes that the Nestlé Cocoa Plan and Rainforest Alliance certification allows it to address its supply chain’s social and environmental issues to create a responsible cocoa supply chain. The company has committed to sourcing 100% of its cocoa through the Nestlé Cocoa Plan by 2025.74 Through the Nestlé Cocoa Plan, the company has implemented a Child Labor Monitoring and Remediation System. Mondelēz International (Mondelēz) has “a clear and distinctive approach to ESG,” according to information on the company’s website.75 Mondelēz is a member of the Dow Jones Sustainability Indices. On the 2021 S&P Global Corporate Sustainability Assessment76 which   Id.   Cocoa & Forests Initiative, www​.idhsustainabletrade​.com ​/initiative​/cocoa​-and​-forests/ (last visited Dec. 22, 2022). 70   Cocao for Generations: Responsible Cocoa Today, Mars, www​.mars​.com​/sustainability​-plan​/ cocoa​-for​-generations​/responsible​-cocoa​-today (last visited Dec. 22, 2022), 71   Mars Sustainability Plan, Mars, www​.mars​.com​/sustainability​-plan (last visited Dec. 22, 2022). 72  https://lighthouse​.mars​.com​/adaptivemedia​/rendition​/id​_ 4ec​65ff​85a2​3332​e111​d166​4 66e​dcba​ d8d9e7a02​/name​_out ​/ Respecting. 73   Sustainable Cocoa, Nestlé, www​.nestle​.com ​/sustainability​/sustainable​-sourcing​/cocoa (last visited Dec. 22, 2022). 74   Id. 75   ESG Reporting & Disclosure: 2021 Snacking Made Right Rep., Mondelēz, www​.mon​dele​zint​erna​ tional​.com​/Snacking​-Made​-Right​/ Reporting​-and​-Disclosure (last visited Dec. 22, 2022). 76  https://www​.spglobal​.com ​/esg​/scores​/results​?cid​= 4060931. 68 69

302  Research handbook on international food law assesses companies across five criteria – Environmental Reporting, Water Related Risks, Social Reporting, Materiality and Health and Nutrition – Mondelēz had an ESG score of 73.77 B. CSR in the Chocolate Supply Chains: An Assessment The Protocol marked an important first: “an entire industry including companies from the United States, Europe and the United Kingdom, taking responsibility for addressing the worst forms of child labour in its supply chain.”78 One of the Protocol’s strengths is that the business explicitly acknowledged International Labor Organization (ILO) Convention 182 and made commitments pursuant to the Convention. Significantly, the Protocol did not commit the industry to end all child labor in cocoa production, only the worst forms of child labor (according to ILO’s Convention 182) and forced labor (according to ILO Convention 29). Sadly, the Protocol has not lived up to its promise to “to eliminate the worst forms of child labor … the cocoa sectors of Ghana and Côte d’Ivoire.” Although industry groups such as World Cocoa Foundation believe that the Protocol has led to “good results” in reducing hazardous child labor,79 most independent analysts disagree. In 2008, the International Labor Rights Forum concluded that “[t]he original intent of the ‘protocol’ has not been achieved, and consumers today have no more assurance than they did eight years ago that trafficked or exploited child labor was not used in the production of their chocolate.”80 A 2015 report from the Payson Center for International Development and Technology Center at Tulane University found that in 2013/14, 2.26 million children were working in cocoa production, 2.12 million children were working in child labor in cocoa production and 2.03 million children were working in hazardous work in cocoa production in Côte d’Ivoire and Ghana combined.81 According to the report, “[i]n the aggregate the numbers of children working in cocoa production, in child labor in cocoa production, and in hazardous work in cocoa production increased by about 440,000, 360,000, and 310,000 respectively.”82 A study published in Fortune magazine in 2016 observed that “[f]or a decade and a half, the big chocolate makers have promised to end child labor in their industry – and have spent tens of millions of dollars in the effort” and concluded that “as of the latest estimate, 2.1 million West African children still do the dangerous and physically taxing work of harvesting cocoa.”83 “What will it take to fix the problem?” the study asked. The limited success of voluntary CSR initiatives in the cocoa/chocolate sector raises many serious and timely questions. Does voluntary CSR initiative work? Can voluntary CSR work   Mondelez Int’l, Inc., S&P Global, www​.spglobal​.com ​/esg​/scores​/results​?cid​= 4060931 (last visited Dec. 22, 2022). 78   Harkin-Engel Protocol, Int’l Cocoa Initiative, www​.cocoainitiative​.org​/ knowledge​-hub​/ resources​/ harkin​-engel​-protocol (last visited Dec. 22, 2022). 79  Empowered Communities, World Cocoa Found., www​.wor​ldco​coaf​oundation​.org​/focus​-areas​/ empowered​-communities/ (last visited Dec. 22, 2022). 80   Int’l Labor Rts. Forum, The Cocoa Protocol: Success or Failure? (2008), https://laborrights​.org ​/sites​/default ​/files​/publications​-and​-resources​/Cocoa​%20Protocol​%20Success​%20or​ %20Failure​%20June​%202008​.pdf. 81   Payson Ctr. for Int’l Dev., Final Report: Survey Research on Child Labor in West African Cocoa Growing Areas 4 (2015). 82   Id. 83  Brian O’Keefe, Bitter Sweets, Fortune (March 1, 2016, 3:30 AM), https://fortune​.com​/longform​/ big​-chocolate​-child​-labor/. 77

ESG, supply chain due diligence and food systems transformation  303 in the food and agriculture sector, and if so, under what circumstances? Is it the “volunteer” nature of an initiative that undermines success, the way it is set up and the failure to implement certain structures? Are voluntary CSR initiatives in the food and agriculture supply chain sustainable in the long run?

IV. ESG IN THE GLOBAL FOOD SUPPLY CHAINS: A LOOMING CRISIS A. Introduction Although many companies in the cocoa/chocolate industry have embraced the concept of responsible business conduct and CSR, most are yet to implement due diligence and risk assessment in their supply chains, and most are yet to embrace the UNGPs fully. B. Major ESG-Related Risks in Food and Agriculture Supply Chains Studies suggest that companies in the food and agricultural sector lag behind in incorporating ESG into their strategies and corporate governance structures. The 2021 Food and Agriculture Benchmark (Benchmark) paints a bleak picture of voluntary CSR initiatives in the food and agriculture sector. The Benchmark report, the first-ever food and agriculture benchmark, measures and ranks 350 of the world’s most influential food and agriculture companies on their contributions to transforming our global food system. Collectively, the benchmarked companies account for more than half of the world’s food and agriculture revenue and directly employ over 23 million people. The study found that the food and agriculture sector is not on track for transitioning to a sustainable food system84 and that there were worrying gaps in the industry’s preparedness for climate change, progress on human rights and contribution to nutritious diets.85 Of major concern is the finding in the report that the companies that dominate our global food system “are not putting people at the heart of their business or addressing their environmental impact.” Specifically, of the 350 companies in scope, only 11 scored over 50/100 in their assessment. Worse, 229 of all companies assessed were found to be performing below 25/100. Of the 229 companies that scored below 25/100 on the benchmark, 78 companies scored below 10/100 and an additional 32 companies scored 0/100.86 The Benchmark report found that major food and agriculture companies are performing poorly on critical social issues. According to the report, most food and agriculture companies “lack comprehensive commitments and procedures prohibiting child and forced labour in their operations and supply chain.” Specifically, “[l]ess that 10% of companies demonstrate having a full human rights due diligence mechanism in place.”87

  2021 Food & Agriculture Benchmark, World Benchmarking All. (Sept. 2021), www​.wor​ldbe​ nchm​a rki​ngal​liance​.org​/publication​/food​-agriculture/. 85   Id. 86   Id. 87   Id. 84

304  Research handbook on international food law Food and agriculture companies perform poorly as regards the rights and welfare of farmers and agricultural workers. Although studies show that providing sustainable livelihoods for farmers, decent employment for workers and nutritious choices for consumers – without depleting natural resources – is essential for the SDG agenda, the Benchmark report found that the majority of companies in the food and agriculture sector perform very poorly on these indicators. Particularly disturbing is the failure of these companies to disclose pertinent ESGrelated information to stakeholders.88 Specifically, most of the companies in scope “choose to disclose little or no information and do not publicly acknowledge the impact they have on the environment, their workers and supply chain partners and the nutritional intake of people who eat their food,” the study found.89 The Benchmark report found that companies in the sector also perform poorly when it comes to greenhouse gas emissions (GHG). More than one-quarter of the world’s GHG emissions stem from activities associated with agriculture, forestry and land-use change. Experts agree that unless actively and urgently addressed, GHG emissions from the food and agriculture sector will increase due to growing demands for food. The Benchmark report found that “only 26 of the largest 350 food and agriculture companies in the world are actively working to reduce emissions from their direct activities … through science-based targets, aligned with the 1.5-degree trajectory as recommended by the Paris Agreement.”90 Significantly, the study found that although indirect emissions from supply chains account for over 80% of total emissions for food companies, “over 202 companies do not publicly calculate these, let alone set targets for reduction.”91 Among companies involved in the downstream value chain segments, such as food and beverage processors and retailers, only six companies in the Benchmark report comprehensively report progress towards reducing emissions in their value chains. C. Addressing ESG-Related Risks and Opportunities in Supply Chains The UNGPs underscore that businesses can be causally linked to adverse human rights and environmental impact directly or indirectly. It is imperative that companies assess, understand and address ESG-related risks at all levels of their supply chain regardless of territory or jurisdiction. First, as noted by the World Business Council on Sustainable Development (WBCSD), “[d]isruptions of markets, shifts in global economic power and changes in internal and external stakeholder expectations are driving the need to demonstrate stronger, more transparent and robust management of ESG-related risks across business activities and operating models.” Second, in a growing number of jurisdictions, policymakers are moving beyond voluntary CSR initiatives and are imposing or seeking to impose mandatory ESG-related due diligence obligations on companies.92

  Id.   Id. 90   The Sector Is Not Taking Environmental Responsibility, World Benchmarking All. (2021), www​.wor​ldbe​nchm​a rki​ngal​liance​.org ​/publication ​/food​-agriculture​/findings​/the​-sector​-is​-not​-taking​-environmental​-responsibility/. 91   Id. 92   World Bus. Council for Sustainable Dev. [WBCSD], Applying Enterprise Risk Management to Environmental, Social and Governance-Related Risks (2018), www​ .wbcsd​.org​/erm. 88 89

ESG, supply chain due diligence and food systems transformation  305 In conclusion, considering that governance and strategy are the cornerstones of companies’ actions toward more responsible business, businesses must reevaluate their approach to ESG-related risks and integrate supply chain risks into their governance structure and operating strategy. Companies must adopt the right strategy and integrate their ESG strategy into their overall corporate structure. Significantly, the Benchmark report found little correlation between adopting sustainability strategies and overall high performance in the benchmark. Out of the companies with the best performance in formulating a sustainable development strategy, the average score is around 35/100, showing that while companies are taking the first steps towards identifying the topics where they have the most material impact, more action is needed to translate these strategies into measurable results,

the report found.93 Conducting ESG-related risk assessments and proactively managing those risks is not an easy endeavor. For one thing, ESG-related risks are increasingly complex and are not always easy to identify, assess and prioritize. For another, many companies are yet to integrate ESGrelated risks into their existing risk management process. The good news is that at the domestic level, laws that encourage and mandate human rights and environmental due diligence are beginning to emerge in some jurisdictions. The good news also is that guidance and practical tools to help companies confront, assess and manage the increasing prevalence and severity of ESG-related risks are beginning to emerge. Most important, at the international level, the UNGPs offer a very useful framework for governments and businesses interested in implementing supply chain due diligence.

V. HUMAN RIGHTS AND ENVIRONMENTAL DUE DILIGENCE: DEFINITION, RATIONALE AND BEST PRACTICE A. Human Rights and Environmental Due Diligence: An Introduction The United Nations Working Group on Business and Human Rights (Working Group), the body responsible for monitoring the implementation of the UNGPs, defines Human Rights Due Diligence (HRDD) as “the processes that all business enterprises should undertake to identify, prevent, mitigate and account for how they address potential and actual impacts on human rights caused by or contributed to through their own activities, or directly linked to their operations, products or services by their business relationships.”94 Human rights due diligence, the Working Group explains “is the primary expectation of behaviour for any business with respect to its responsibilities concerning the adverse impacts on human rights that it causes, contributes to or to which it is directly linked.”95 HRDD is a key component of the UNGPs, is a critical part of fulfilling the “corporate responsibility to respect” as defined in the UNGPs, and is a key tool in the global efforts to get companies to focus their attention on the most severe human rights risks and identify the human rights impacts of their operations.

  Id.  A/73/163, supra note 23, at ¶ 2. 95   Id. at ¶ 16. 93

94

306  Research handbook on international food law HRDD enables a company to identify, prevent, mitigate and account for how they address their adverse human rights impacts. HRDD forces companies to do more than pay lip service to human rights issues in their supply chain.96 It “provides the backbone of the day-today activities of a business enterprise in translating into practice its responsibility to respect human rights” and is essentially “a way for the enterprise to proactively manage the potential and actual risks of adverse impacts on the rights and dignity of people.”97 How to get businesses to build supply chain CSR into their overall CSR strategy is a growing concern of investors, governments and civil society organizations. In the last few years, some countries have introduced laws to encourage or mandate companies to carry out HRDD. B. Human Rights and Environmental Due Diligence: Emerging Legal Frameworks Over the past two decades, three types of supply chain due diligence laws – in terms of the degree of intensity – have emerged: (1) mandatory transparency/reporting/disclosure laws; (2) mandatory due diligence laws strictly defined; and (3) human rights due diligence and liability laws. 1. Mandatory transparency/disclosure laws In a growing number of jurisdictions, governments have adopted laws requiring companies to disclose information regarding human rights in their supply chains. While some laws address specific human rights issues (e.g., slavery), others target specific sectors (e.g., extractive industry). Examples include the California Transparency in Supply Chains Act (2010),98 the UK Modern Slavery Act 2015, Norway’s Transparency Act (2021), Section 1502 of the Dodd-Frank Act, the European Union Directive 2014/95 on Disclosure of Non-Financial Information, the EU Corporate Sustainability Reporting Directive99 and Australia’s Modern Slavery Bill 2018.100 The general purpose of these laws is to require companies to disclose specific human rights risks. While some of the laws are backed by sanctions, some are not. EU Directive 2014/95 applies to all big companies in any sector, not only in the agri-food sector. The Directive applies to all public-interest entities which are parent undertakings of a large group exceeding on its balance sheet dates, on a consolidated basis, the criterion of the average number of 500 employees during the financial year. The Directive requires the companies to include in the consolidated management report a consolidated non-financial statement “containing information to the extent necessary for an understanding of the undertaking’s

 Olga Martin-Ortega, Human Rights Due Diligence for Corporations: From Voluntary Standards to Hard Law at Last?, 32 Neth. Q. Hum. Rts. 44 (2017).  97  A/73/163, supra note 23, at ¶ 10.  98  California Transparency in Supply Chains Act of 2010, Cal. Civ. Code § 1714.43.  99   Proposal for a Directive of the European Parliament and of the Council Amending Directive 2013/34/EU, Directive 2004/109/EC, Directive 2006/43/EC and Regulation (EU) No 537/2014, as Regards Corporate Sustainability Reporting, COM (2021) 189 final. 100   See Norton Rose Fulbright, Modern Slavery and Human Trafficking: A Comparative Analysis of Existing and Emerging Legislation in the United Kingdom, Australia, Hong Kong and Singapore (2018), www​.nortonrosefulbright​.com/-​/media​/files​/nrf​/nrfweb​/ imported ​/modern​-slavery​-and​-human​-trafficking​.pdf ​?la​= de​- de​&revis​​ion​=9​​4ff60​​4e​-92​​6 e​- 45​​ae​ -92​​8e​-c8​​60790​​0d9eb​.  96

ESG, supply chain due diligence and food systems transformation  307 development, performance, position and impact of its activity, relating to, as a minimum, environmental, social and employee matters, respect for human rights, anti-corruption and bribery matters.” Among the goals of the EU Regulation 2019/1381 “on the transparency and sustainability of the EU risk assessment in the food chain” are the goals of “ensur[ing] appropriate involvement of consumers, feed and food businesses, the academic community and all other interested parties,” and also “ensur[ing] that accurate and all appropriate information is exchanged in an interactive and timely manner with all interested parties, based on the principles of transparency, openness, and responsiveness.” Largely as a result of new laws and regulations, as well as increasing recognition that ESG issues impact financial performance, corporate sustainability disclosure is now in vogue.101 According to the KPMG Survey of Sustainability Reporting 2020,102 80% of major global companies report on sustainability compared with only 12% in 1993, when the company first began tracking sustainability reporting.103 Despite the increased popularity of sustainability disclosure, only a fraction of global corporations reports some aspect of their social and environmental impact. 2. Mandatory supply chain due diligence laws In a growing number of jurisdictions, states are enacting due diligence reforms to promote corporate accountability in the supply chains by adopting laws that impose mandatory due diligence requirements on companies that meet a specified threshold. These laws typically describe the conduct companies must implement to be in compliance and usually specify sanctions to be imposed in the event of non-compliance. Examples include Germany’s Supply Chain Due Diligence Act (2021), the Dutch Child Labor Due Diligence Bill and the European Regulation 2017/821.104 Supply chain due diligence requirements limited to specific sectors (e.g., the timber sector) are also emerging.105 More comprehensive due diligence laws are also emerging in a handful of jurisdictions. On 23 February 2022, the European Commission adopted a proposal for a Directive on corporate sustainability due diligence (Draft Directive).106 Should it pass, the Draft Directive will be the first regional liability regime to oblige EU companies and some

 Addisu Lashitew, The Risks of US-EU Divergence on Corporate Sustainability Disclosure, Brookings (Sept. 28, 2021), www​.brookings​.edu​/ blog​/future​-development​/2021​/09​/28​/the​-risks​ -of​-us​-eu​-divergence​-on​-corporate​-sustainability​-disclosure/. 102  https://assets​.kpmg​/content​/dam​/ kpmg​/xx​/pdf​/2020​/11​/the​-time​-has​-come​.pdf. 103  Kristen Beckman, Dramatic Increase in Sustainability Reporting Due to Generational Attitudes, ESG investing, Benefits Pro (Dec. 9, 2020), www​.benefitspro​.com ​/2020​/12​/09​/dramatic​-increase​-in​-sustainability​-reporting​- due​-to ​-generational​-attitudes​- esg​-investing/​?slreturn​ =20220306114215. 104  Press Release, Int’l Fed’n of Hum. Rts., Germany: Call for an Improvement of the Supply Chain Due Diligence Act (Nov. 15, 2021) (on file at www​.fidh​.org​/en​/issues​/globalisation​-human​-rights​/ germany​-call​-for​-an​-improvement​-of​-the​-supply​-chain​-due​-diligence​-act). 105   Illegal Logging and Prohibition Act 2012 (Cth) (Austl.). Timber is the focus of the Lacey Act of 1900, 16 U.S.C. §§ 3371–3378, which requires US manufacturers to ensure that their wood products are not produced using illegal timber by implementing specified supply chain due diligence procedures to. See also 16 U.S.C. § 3372(a)(2)(A) (addressing fish and wildlife). 106   Proposal for a Directive of the European Parliament and of the Council on Corporate Sustainability Due Diligence and Amending Directive (EU) 2019/1937, COM (2022) 71 final (Feb. 23, 2022) [hereinafter Draft Directive]. 101

308  Research handbook on international food law third-country companies to protect people and the environment adversely affected by their global supply chains. The Draft Directive imposes mandatory HRDD obligations on EU and third-country companies that meet a specified threshold. According to Article 1, the Draft Directive lays down rules on obligations for companies regarding actual and potential human rights adverse impacts and environmental adverse impacts, with respect to their own operations, the operations of their subsidiaries, and the value chain operations carried out by entities with whom the company has an established business relationship107

and “on liability for violations of the obligations mentioned above.”108 3. Human rights due diligence liability regimes Corporate liability laws for human rights abuses in the supply chain are beginning to emerge. Typically, these laws define and prescribe when a corporation can be held civilly or criminally liable for human rights violations in its supply chain and for failure to carry out prescribed due diligence. Article 22 (Civil liability) of the EU Draft Directive obliges Member States to ensure that companies are liable for damages if: (a) they failed to comply with the obligations laid down in the Directive and; (b) as a result of this failure an adverse impact that should have been identified, prevented, mitigated, ended or its extent minimized through the appropriate measures occurred and led to damage. C. The Case for Mandatory Due Diligence Laws Several arguments can be advanced to support the growing call for mandatory due diligence legal frameworks. First, for businesses, value chain due diligence can be used effectively to proactively identify risks in the value chain and build resilience to changes in the value chain. Second, mandatory HRDD laws can help level the playing field for all businesses by ensuring that most businesses abide by the same rules. Third, mandatory HRDD is necessary because voluntary CSR initiatives have proved to be largely ineffective in effectively addressing human rights and climate issues in the supply chains. Studies suggest that even favorable listings in databases and indices such as the Dow Jones Sustainability Index do not always mean that human rights issues in a company’s supply chain have been addressed. Indeed, many sustainability databases and listings overlook human rights and do not adequately address slavery and human trafficking. Regarding climate change and the transition to net zero, reports that companies “are … less rigorous in tracking and addressing their indirect emissions produced by their value chains and products” are deeply concerning.109 According to the World Economic Forum (WEF), “[t]oo few companies are acting decisively,” few companies report targets, and “even where companies do report targets, most still fall below the requirements set in the Paris Agreement.”110 The WEF warns that “time has run out” and that “[v]oluntary action and unregulated markets  Id., Article 1(1)(a). Emphasis added.  Id., Article 1(1)(b). 109   World Econ. Forum, The Net-Zero Challenge: Fast-Forward to Decisive Climate Action 9 (2020), www3​.weforum​.org​/docs​/ WEF​_The​_ Net​_ Zero​_Challe​nge​.pdf. 110   Id. 107 108

ESG, supply chain due diligence and food systems transformation  309 will not deliver that shift. Hence, governments need to step in to drive the change.”111 Finally, experts agree that the food system requires urgent transformation. Essentially, the world needs to change how it produces, transports and consumes food. According to the foreword in the report Creating a Sustainable Food Future: A Menu of Solutions to Feed Nearly 10 Billion People by 2050: Farmers must provide enough food for a population that is expected to reach nearly 10 billion people by 2050. Employing around 2 billion people today, agriculture must continue to be an engine of inclusive economic and social development that contributes to poverty reduction, even as many small farmers transition into other forms of employment. At the same time, agriculture must lighten its environmental footprint. The impacts of agriculture are large and growing, to the point where they are already undermining food production through land degradation, water scarcity, and adverse impacts of climate change.112

To be effective, it is important that mandatory due diligence laws specify the types of conduct that are expected of businesses. It is equally important that mandatory due diligence laws fully reflect the three pillars of the UNGPs – the state duty to protect, the business responsibility to respect and access to remedies. Guidance that provides support for businesses on the implementation of due diligence and support for states on the design of due diligence laws are becoming increasingly available.113

VI. SUPPLY CHAIN DUE DILIGENCE REGIMES: A PRELIMINARY ASSESSMENT AND FUTURE POTENTIAL The idea of value chain due diligence is still in its infancy in most jurisdictions. Depending on how they are structured, implemented and enforced, supply chain due diligence requirements could go a long way toward remedying some of the problems associated with voluntary compliance failure. However, there are real challenges to implementing effective and comprehensive value chain due diligence frameworks.114

  Id. at 23.   Tim Searchinger et  al., World Resource Institute, Creating a Sustainable Food Future: A Menu of Solutions to Feed Nearly 10 Billion People by 2050, at iv, https:// research​.wri​.org​/sites​/default ​/files​/2019​- 07​/ WRR​_ Food​_ Full​_Report​_0​.pdf. 113   See generally OECD/FAO, OECD-FAO Guidance for Responsible Agricultural Supply Chains (2016), www​.oecd​-ilibrary​.org​/agriculture​-and​-food ​/oecd​-fao​-guidance​-for​-responsible​ -agricultural​-supply​-chains​_9789264251052​-en; OECD, OECD Due Diligence Guidance for Responsible Business Conduct (2018), www​.oecd​.org​/investment​/due​-diligence​-guidance​-for​ -responsible​-business​-conduct​.htm. 114   See Norton Rose Fulbright & British Inst. of Int’l & Compar. L., Making Sense of Managing Human Rights Issues in Supply Chains: 2018 Report and Analysis (2018), www​.biicl​.org​/documents​/1939​_ making​_ sense​_of​_ managing​_ human​_ rights​_ issues​_ in​_ supply​ _chains_-​_2018​_ report​_and​_analysis_-​_full​_text​.pdf. 111

112

310  Research handbook on international food law A. Challenges to Effective Due Diligence in the Supply Chains There are challenges to implementing an effective and comprehensive value chain due diligence framework; four challenges are examined in this section.115 First, only a handful of countries have passed mandatory due diligence laws, and existing laws target only the largest corporations and companies in a limited number of sectors. Second, although it is accepted that the scope of HRDD will ultimately depend on the size, nature and context of a company’s operations, there is a lack of clarity around the nature and extent of corporate due diligence obligations. The EU Draft Directive targets only the largest corporations and companies in a handful of specified “high-risk” sectors. Small and medium-sized enterprises are completely excluded from the ambit of the Draft Directive even though these companies account for around 99% of all companies in the EU. After all is said and done, the Draft Directive will likely apply to only about 1% of EU companies, critics charge.116 France’s Duty of Vigilance law only applies to French companies with more than 5,000 employees in the company’s direct or indirect French-based subsidiaries and with more than 10,000 employees if including direct and indirect subsidiaries globally. Third, there is lack of clarity and controversy around whether value chain due diligence laws should target activities across the entire supply chain or be limited to a discrete aspect of the supply chain. The EU Draft Directive adopts an “entire supply chain” approach. Under the Draft Directive, the supply chain is defined as “activities related to the production of goods or the provision of services by a company, including the development of the product or the service and the use and disposal of the product as well as the related activities of upstream and downstream established business relationships of the company.”117 Fourth, factors such as costs, market pressures, complexity of value chains and information deficiencies are also likely to affect the effectiveness of the value chains’ due diligence laws. Ideally, businesses and other stakeholders should be involved in the design and implementation of due diligence laws. Moreover, capacity building, technical assistance and additional support should be available to small- and medium-sized enterprises to enable them to implement an appropriate due diligence system. Attorneys at Norton Rose Fulbright warn, rightly, that “[m]apping human rights risks and impacts across complex cross-border supply chains is no easy or short-term task” and is a task that “requires a concerted and collaborative multiyear effort across internal and external stakeholders, and a long-term organisational commitment to improving cultures and processes.”118 B. The Future of ESG-Related Due Diligence in the Food and Agriculture Supply Chains Most of the recent due diligence laws are yet to pass or enter into force. Moreover, it will be several years before the emerging due diligence frameworks are fully implemented and can be

  Id.  János Allenbach-Ammann & Silvia Ellena, LEAK: EU Due Diligence Law to Apply Only to 1% of European Companies, Euractive (Feb. 21, 2022), www​.euractiv​.com​/section​/economy​-jobs​/news​ /leak​-eu​-due​-diligence​-law​-to​-apply​-only​-to​-1​-of​-european​-companies/. 117   Draft Directive, supra note 104, at art. 3(g). 118   See Above and Beyond, supra note 57. 115 116

ESG, supply chain due diligence and food systems transformation  311 thoroughly evaluated. The effectiveness of emerging due diligence laws would largely depend on how they are enforced and the cost of non-compliance for businesses. Laws backed by strong, effective and dissuasive sanctions are likely to prove more effective than those that do not impose sanctions on violators.119 One goal of this chapter is to establish the framework on which future scholarship can address thorny ESG-related issues in the global supply chains of agribusinesses. Future scholarship will need to examine and evaluate the functioning and effectiveness of recent due diligence laws. Mandatory due diligence regimes will not and cannot be expected to address all the ESG issues and challenges in the food and agriculture supply chains. Consequently, it is important that future research and scholarship address enduring and deeply embedded issues in the supply chains of food and agriculture companies, including issues that plague the entire food and agricultural sector, such as imbalances of power, market concentrations, unfair distribution of resources down the chain, cheap consumer prices, repressive regimes, the changing dynamics of the climate crisis and the lack of voice and effective remedies for marginalized workers and communities. Businesses in the food and agriculture industries are well-advised to implement their own individualized due diligence process. There are at least three reasons a business may wish to be proactive about implementing voluntary due diligence initiatives in its supply chain. First, businesses in the food and agricultural sector that fail to integrate effective due diligence strategy into their operation expose themselves to considerable risks, including social, legal and reputational risks. Second, a growing number of institutional investors are demanding that business enterprises explain how they manage their risks to human rights.120 Third, businesses that are proactive about implementing supply chain due diligence processes will likely be better positioned to adapt to new due diligence laws that are popping up in various jurisdictions. For businesses interested in implementing a due diligence process, the UNGPs offer a useful starting point. Under the UNGPs, the due diligence process encompasses four key steps: (i) assessing actual and potential human rights impacts; (ii) integrating and acting upon the findings; (iii) tracking responses; and (iv) communicating how impacts are addressed.121 In some cases, old CSR policies will need to be significantly updated, and in other cases, brand new policies will need to be developed. How comprehensive and complex human rights due diligence should be is determined by the size of an enterprise, the risk of severe human rights impact, and the nature and context of the company’s operation.122 HRDD is not a one-time process but “[s]hould be ongoing, recognizing that the human rights risks may change over time as the business enterprise’s operations and operating context evolve.”123 Most important,   See Draft Directive, supra note 104, at art. 20(2). Article 20(1) of the Draft Directive requires Member States to lay down the rules on sanctions applicable in the event of infringement and to take all measures necessary to ensure that they are implemented. While it is up to EU Member States to lay down rules on sanctions, the Draft Directive requires that the sanctions provided “be effective, proportionate and dissuasive.” 120   See, e.g., Letter from the Inv. All. for Hum. Rts. to the U.N. Working Grp. on Hum. Rts. & Transnat’l Corps. & Other Bus. Enters. (2018) (on file at www​.ohchr​.org /Docu​ments​/Issu​es/Bu​ sines​s/WGS​ubmis​sions​/2018​/ Inve​​storA​​llian​​ce​​.pd​f ); see also Human Rights, Norges Bank Inv. Mgmt.,  www​.nbim​.no​/en ​/the​-fund ​/responsible​-investment ​/principles​/expectations​-to​-companies​ /human​-rights/ (Dec. 20, 2022). 121   UNGPs, supra note 11, at ¶ 17. 122   U.N. Framework, supra note 18, at ¶ 17(b). 123   Id. at ¶ 17(c). 119

312  Research handbook on international food law HRDD cannot be limited to the human rights impact that an enterprise may cause or contribute to directly but should cover even adverse human rights impact that the business “may be directly linked to [in] its operations, products or services by its business relationships.”124

VII. CONCLUSIONS The interaction between business, human rights and the environment is one of the defining issues of our time. It is increasingly acknowledged that corporate social responsibility and corporate accountability are valid and legitimate business concerns and that modern slavery and other pressing ESG-related risks and opportunities are broad issues, and strategic direction at a broad level is required. The food system is in crisis and requires urgent transformation to meet effectively and sustainably the needs of the world’s growing population. The number of people who are hungry and malnourished in the world continues to rise. Worse, food systems contribute up to one-third of greenhouse gas emissions, up to 80% of biodiversity loss, and use up to 70% of freshwater withdrawals. To accelerate the transformation of food systems to address complex global challenges, food and agriculture companies must address a growing list of complex ESG-related risks in the agri-food value chains. The UNGPs provide a useful framework that companies can and should use to drive effective performance of the whole food and agriculture sector value chain. Nestlé has broad implications for the future of the extraterritorial doctrine in the United States.125 Although the Supreme Court granted certiorari in Nestlé to address the question of domestic corporate liability under the ATS, the majority opinion avoided the issue, deciding instead on the grounds that the ATS did not extend to extraterritorial conduct. On the issue of corporate liability, Nestlé was not a complete loss for the plaintiffs. The good news is that in Nestlé, five justices – a majority of the Court – indicated that they would reject corporate immunity from liability under the ATS. The bad news is that ATS lawsuits are very complex and time-consuming, and it may be years before the Supreme Court addresses this matter again. Although the future of corporate liability under the ATS is highly uncertain, renewed attempts to use the ATS and other domestic legislation to attach liability to US firms for acts occurring in their global supply chain can be expected. In Keo Ratha et  al. v. Phattsana Seafood Co., a group of Cambodian villagers who worked in Thailand producing shrimp for export to the US brought a lawsuit in California alleging that Thai and US companies had violated the Torture Victim Protection Act of 1991.126 For agricultural workers in the global food and agriculture value chains, the question of domestic, regional and international corporate liability for human rights violations and environmental pollution in global value chains is a question that demands urgent attention.   Id. at ¶ 17(a).   See, e.g., William S. Dodge, The Surprisingly Broad Implications of Nestlé USA., Inc. v. Doe for Human Rights Litigation and Extraterritoriality, Just Security (June 18, 2021), www​.justsecurity​.org​/77012​/the​-surprisingly​-broad​-implications​-of​-nestle​-usa​-inc​-v​-doe​-for​-human​-rights​ -litigation​-and​-extraterritoriality/. 126   Complaint & Demand for a Jury Trial, Keo Ratha v. Phatthana Seafood Co., No. 2:16-cv04271-JFW-AS, (C.D. Cal. June 15, 2016), https://storage​ .courtlistener​ .com​ /recap​ /gov​ .uscourts​ .cacd​.650526​/gov​.uscourts​.cacd​.650526​.1​.0​.pdf. 124 125

ESG, supply chain due diligence and food systems transformation  313 An inclusive, equitable, sustainable and transformative food system is possible but requires meaningful action from all food system participants, including businesses. A “business as usual” attitude cannot deliver the urgently needed transformation. As aptly noted in the Statement of Action on United Nations Food System Summit (2021): Transformative action demands the engagement and close participation of the people who drive our food systems, such as farmers, herders, food workers and fisher folk. In addition to Governments, the business community – from small and medium enterprises to multinational corporations – has an important role to play through responsible business practices and innovative solutions to make food systems more sustainable, resilient and equitable, while adapting their practices to ensure all people can access a nutritious and healthy diet.127

The good news is that on paper, food and agriculture companies recognize the urgent need to transform the food system to avoid severe environmental and human risks for all people, our planet and business. The bad news is that most of the commitment from food and agriculture companies is yet to be translated into practice. In the Business Declaration on Food Systems Transformation (2021), some of the world’s leading food and agriculture companies committed “to help lead the food system transformation by implementing actions in [their] companies, value chains and sectors.” The businesses committed, inter alia, to “[c]ontribute to improved livelihoods and wellbeing across food value chains by strengthening human rights, decent work, and income opportunities in line with the SDGs and promoting a living wage for farmers and workers everywhere.”128 They also pledged to “[c]reate transparency by integrating environmental and social risks and impacts in governance, understanding externalities through the principles of true value of food, and reporting in line with emerging ESG standards to provide greater clarity to capital markets.”129 According to Peter Bakker, President and CEO of WBCSD, “Business understands it will, and it must, be held accountable for its impacts … Transparency through ESG disclosures and the development of a system wide approach to the true value of food will be the way forward.”130 The UNGPs usher in a new approach to CSR strategy – proactive rather than reactive. The UNGPs offer a useful framework that businesses can use to identify, assess and mitigate system risks. Law firms, attorneys and bar associations have a critical and necessary role in helping businesses implement comprehensive and effective due diligence strategies. It is important that law firms recognize the changing legal landscape and advise their clients accordingly. “With the link between ESG factors and risks becoming increasingly explicit, companies must find ways to bring new functions and leaders into the ESG conversation,” the

 Press Release, Secretary-General’s Chair Summary, Statement of Action on United Nations Food Systems Summit, U.N. Press Release SG/2258 (September 23, 2021), www​.un​.org​/press​/en​/2021​/ sg2258​.doc​.htm. 128  Food Systems Summit, Business Declaration on Food Systems Transformation (July 26, 2021), https://foodsystems.community/wp-content/uploads/2021/09/FSS​-Business​-Declaration​- 477​8cce​ c3ff​0e33​b41e​cb0d​dece1​8ed8​.pdf. 129   Id. 130   World Bus. Council for Sustainable Dev. [WBCSD], An Enhanced Assessment of Risks Impacting the Food and Agriculture Sector ¶ 3.1 (2022), www​.wbcsd​.org​/contentwbc​/download​/13750​/199446​/1. 127

314  Research handbook on international food law WBSCD advised.131 Significantly, bar associations in different parts of the world are gradually embracing the UNGPs. Businesses in the agri-food sector have yet to integrate UNGPs into their operations fully. While many businesses mention sustainability and climate change in their CSR reports, few take a due diligence and risk assessment approach in responding to human rights issues in their supply chains. It must be noted that the responsibility to carry out human rights due diligence applies regardless of any “business case” argument.132 According to the Working Group, “the most significant contribution most business enterprises can make towards sustainable development is to prevent and address adverse impacts on human rights through effective human rights due diligence.”133 In light of the risk of modern slavery, deforestation and pollution inherent in the supply chains of major food and agriculture companies, agribusinesses are well-advised to review their operations and implement measures aimed at identifying and addressing all ESG-related risks in their supply chain. Supply chain due diligence is not a cure-all for all the human rights and environmental challenges that face the food and agricultural sector. However, in the face of massive atrocities occurring in the supply chains, UNGPs’ responsibility to respect principle demands that businesses do more to address human rights and environmental abuses in their supply chains and that governments do more to support and compel these efforts. The human rights issues in the global food supply chain will expand significantly in the coming years and grow even more complex. Emerging legal frameworks on corporate due diligence must be constantly interrogated and evaluated. More voices need to be brought into the debates and discussions about ESG-related risks and opportunities in the global food system. This chapter offers a rich, interesting but brief picture of emerging international policies on corporate responsibility of companies operating within the global agri-food chain. Although beyond the scope of this chapter, a more detailed analysis of the legal basis of responsibility (and on the effects in terms of liability) of such companies for damages to the environment and violations of human and worker’s rights, even if resulting from the behavior of other legal entities in some way connected to such large companies, is necessary. There is also a need for more empirical studies, surveys, case studies and disaggregated data on the ESG performance of major food and agriculture companies. Whether progress is occurring and where exactly it is occurring must be constantly evaluated. There are numerous questions that beg for answers and will likely fuel debates. For example: do food companies have a responsibility to address the ESG-related risks in their operation and value chains? What is the reach of the business and human rights framework in the global food industry? How wide is the gap between rules and compliance? Is the business and human rights framework helping or hurting small farmers and agricultural workers? What are the barriers to implementing the business and human rights framework in the food and agriculture industry? Is the industry proactively driving the agenda for change or is the industry retaining a reactive and defensive strategy? Overall, is it possible to feed a growing global population while protecting the planet and respecting fundamental human and peoples’ rights?

  Id. at ¶ 2.1.   Id. at ¶ 5.7.5(3). 133   Id. at ¶ 5.7.5(4). 131

132

15. The regulation of insects as food Steph Tai

I. INTRODUCTION Cricket bars and mealworm lollipops: to many English-language readers, consuming insects may seem disgusting,1 or at least novel. However, there is a long global history of people with traditions of eating insects, even as significant parts of their diets. But many of these people live in countries with less developed food regulatory structures and cohesive national food policies.2 What this means is that many of the current national policy developments in the regulation of insects as food are in countries where eating insects is novel, rather than traditional. That said, a few countries with traditional foods containing insects, such as China and Mexico, have developed food regulatory structures. This context is necessary to understand some important aspects of the developing regulations on insects as food or food products because the “traditionality” or “novelty” of insects as food is a significant factor in their regulatory pathway in many countries. This chapter will first briefly overview insects as traditional and novel foods. Then it will discuss various food safety issues involving insects and food, including a brief discussion of insects as contaminants for food products as well as food safety issues with insects as food or food ingredients. After that, it will discuss current regulatory developments in countries where insects are seen as novel foods or food ingredients and in some countries where insect consumption is more traditional. The chapter will then conclude with some thoughts on potential regulatory developments— based upon other histories of food regulatory development—of insects as food. A brief caveat: because of the complicated dynamics outlined here, with respect to the somewhat—but not complete—inverse relationship between traditional insect consumption and the existence of comprehensive national food policy structures, this chapter cannot capture the state of international insect-based food regulations, since the “snapshot” of the law is rapidly changing. However, this chapter can and does attempt to provide researchers with perspectives for future research and analyses.

II.

HISTORY OF INSECTS AS FOOD

As the introduction suggested, there are—though this is a simplification—two basic tracks for insect eating. First, there are countries with peoples who eat or have eaten insects as food. But there are also countries with peoples who have had very little consumption of insects in their   See Esther Landhuis, Why Don’t More Humans Eat Bugs?, Sapiens (Nov. 30, 2018), www​.sapiens​ .org​/culture​/eat​-bugs/. 2   See, e.g., Saliou Niassy et  al., Legislation for the Use of Insects as Food and Feed in the South African Context, in Edible Insects in Sustainable Food Systems, 457, 467 (Afton Halloran et al., eds., 2018). 1

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316  Research handbook on international food law traditional diets but are now approaching them as novel foods or food products due to various contemporary demands. These tracks do indeed overlap, as readers will see in the regulatory spectrum presented in this chapter. But this section will discuss them both as distinct entities—recognizing that these tracks are not wholly distinct—to provide background for the developing state of modern food safety regulation of insects as food. A.

Insects as Traditional Foods

The consumption of insect-based proteins, or entomophagy, might seem novel to some readers, but it has a long global history.3 As observers have put it, “[f]rom the earliest Chinese annals to Mexican codices, through the chronicles of naturalists and travelers and the old papyrus of ancient Egypt, we have records of insect-eating peoples.”4 Even now, researchers estimate that over three thousand ethnic groups in 130 countries worldwide consume insects as “essential elements of their diet.”5 The particular role of insects in peoples’ diets varies from people to people, location to location, and time period to time period. That is, for some people, insects are a staple part of their diets; for others, a more supplemental part; and for even others, mostly used as flavoring. For example, members of the Adi community in North-East India specifically harvest different types of insects at different seasons throughout the year and eat them alone or as ingredients in other dishes.6 In contrast, historically, the Inuit people ate, as a sort of supplemental treat, Oestridae larvae collected in the hides of caribou that they were already hunting for meat and fur,7 although this practice has faded over time.8 And in Vietnam, essence of the giant water beetle is extracted to be used as a flavoring in soups.9 Even more broadly, today in Oaxaca, Mexico, people harvest and consume a great variety of insects, which are sold in markets, restaurants, and companies.10 Some of these insects (for example, crickets, or chapulines) are eaten alone (or with spices) or as prepared foods in moles or tacos, while others, such as flying fleas or chicatanas, are used primarily as sauce ingredients.11

  See E.M. Costa-Neto & F.V. Dunkel, Insects as Food: History, Culture, and Modern Use Around the World, in Insects as Sustainable Food Ingredients 29, 29 (Aaron T. Dossey et al., eds., 2016).  4   Id.  5   Id.  6  Karsing Megu et al., An Ethnographic Account of the Role of Edible Insects in the Adi Tribe of Arunachal Pradesh, North-East India, in Edible Insects in Sustainable Food Systems, supra note 2, at 48–49.  7  Maria Pontes Ferreira et al., Insect Consumption in the Arctic, in Edible Insects in Sustainable Food Systems, supra note 2, at 23–25.  8   Id. at 24.  9   See Mike Sula, Add the Scent of Wild Water-Bug Love to Your Dips and Sauces, Chicago Reader (Mar. 25, 2014), www​.chicagoreader​.com ​/ Bleader​/archives​/2014​/03​/25​/add​-the​-scent​-of​-wild​-water​ -bug​-love​-to​-your​-dips​-and​-sauces. I added this citation as a pure note of tribute to my mother, who waxes fondly about this taste from her youth. I have yet to try it. 10   See Marianne Shockley et al., Edible Insects and Their Uses in North America; Past, Present and Future, in Edible Insects in Sustainable Food Systems, supra note 2, at 58–59. 11   See id. Also, yum.  3

The regulation of insects as food  317 There are, however, relatively few regulations regarding the safety of insects as food or food ingredients in countries where entomophagy is traditionally practiced.12 This is likely due to a strong overlap between countries, with people who traditionally eat insects or insect-based foods having fewer food regulations in general. Nevertheless, this chapter will discuss the regulatory approaches of the few countries with developed food regulatory systems that also have traditional practices of eating insects. B. Insects as “Novel” Foods A growing number of countries with little history of insect consumption have recently faced the introduction of insects as “novel” food or food products. Drivers for this include desires for food sustainability, nutrition, versatility, taste, “animal welfare,” or simply novelty. One consulting firm recently described the growth in the edible insects market is mainly driven by factors such as growing greenhouse gas emissions from livestock and poultry, high nutritional value of insects, low environmental impact over their entire life cycle, and low risk of transmitting zoonotic diseases.13

This firm projects the market to reach a value of $9.6 billion by 2030.14 One of the strongest drivers appears to be insects’ anticipated environmental benefits as a protein source.15 As the Food and Agricultural Organization of the United Nations (FAO) pointed out, Insects promoted as food emit considerably fewer greenhouse gases (GHGs) than most livestock (methane, for instance, is produced by only a few insect groups, such as termites and cockroaches) … The ammonia emissions associated with insect rearing are also far lower than those linked to conventional livestock, such as pigs. [And b]ecause they are cold-blooded, insects are very efficient at converting feed into protein (crickets, for example, need 12 times less feed than cattle, four times less feed than sheep, and half as much feed as pigs and broiler chickens to produce the same amount of protein).16

  See Darja Dobermann et al., Opportunities and Hurdles of Edible Insects for Food and Feed, 42 BNF Nutrition Bull. 293, 304 (2017) (“For countries where eating insects is traditional, there are no regulatory hurdles to their production, marketing and consumption”). 13   Edible Insects Market by Product (Whole Insect, Insect Powder, Insect Meal, Insect Oil), Insect Type (Crickets, Black Soldier Fly, Mealworms), Application (Animal Feed, Protein Bar & Shakes, Bakery, Confectionery, Beverages), and Geography—Forecast to 2030, Meticulous Rsch. (May 2022), www​.meticulousresearch​.com ​/product ​/edible​-insects​-market​-5156. 14   Id. 15   See Arnold van Huis & Dennis G. A. B. Oonincx, The Environmental Sustainability of Insects as Food and Feed: A Review, 37 Agronomy for Sustainable Dev. 43, 7 (2017); Afton Halloran et al., Comparing Environmental Impacts for Feed and Food as an Alternative to Animal Production, in Edible Insects in Sustainable Food Systems, supra note 2, at 163, 166; Christian Gamborg et  al., Sustainable Proteins? Values Related to Insects in Food Systems, in Edible Insects in Sustainable Food Systems, supra note 2, at 199, 204–206; David Waltner-Toews, Eat the Beetles!: An Exploration into Our Conflicted Relationship with Insects 29–48 (2017) (describing environmental benefits of eating insects versus livestock). 16   Arnold van Huis et al., Edible Insects: Future Prospects for Food and Feed Security, at 2, FAO Forestry Paper 171 (2013) www​.fao​.org​/docrep​/018​/i3253e​/i3253e​.pdf [hereinafter FAO Insect Report]; see also Huis & Oonincx, supra note 15, at 6–7 (“When compared to chicken, 1 g 12

318  Research handbook on international food law Insect-based protein marketers are using environmental claims to advertise their food products.17 For example, Exo Protein, one of the main marketers of insect-based protein bars in the United States, markets its bars as providing “Maximum Nutrition, Minimal Resources.”18 Among the various statistics it delivers, its page notes that cricket protein requires “a tiny fraction of the water that cows do to make the same amount of protein,” and that crickets “produce 1% of the greenhouse gases that cows produce.”19 Another company, Cricket Flours, which also sells cricket protein products, describes its protein as less environmentally damaging in terms of water use and greenhouse gas generation.20 Yet another company, Chirp, which sells cricket protein chips, protein powder, and cookie mix, describes crickets as “the most sustainable protein on the planet,” citing lowered greenhouse gas emissions and deforestation.21 In sum, a significant part of the marketing focus on non-livestock-based proteins appears to be based on environmental considerations.22 Despite the new demand, countries which lack a significant prior history of insect consumption are struggling to fit the regulation of insect and insect-based food consumption with their already-established food safety law frameworks, partially due to their existing food safety law structures addressing insects as food contaminants, rather than foods or intended ingredients for food products themselves.

III. AN OVERVIEW OF FOOD SAFETY REGULATORY ISSUES INVOLVING INSECTS AS FOOD The food safety legal world presents two main issues with insects and food: safety concerns of insects as contaminants of food and safety concerns with insects marketed as food or food of edible protein requires two to three times as much land and 50% more water compared to mealworms. A gram of edible protein from beef requires 8–14 times as much land and approximately 5 times as much water compared to mealworms. Also with respect to greenhouse gas emissions, mealworms have a lower environmental impact than convention livestock systems. Broiler chickens are associated with 32–167% higher emissions, and beef cattle emit 6–13 times more CO2 equivalents, when compared to mealworms on an edible protein basis”). 17  This may change, however, as market surveys suggest that unfamiliar consumers may be more accepting of insect proteins in a preparation such as an insect burger, rather than with the “presentation of visible insects.” Rudy Caparros Megido et al., Insects, The Next European Foodie Craze?, in Edible Insects in Sustainable Food Systems, supra note 2, at 356. 18   Why Crickets, Exo Protein, available at https://exoprotein​.com​/pages​/why​-crickets (last visited May 27, 2022). 19   Id. 20   Cricket Flour Frequently Asked Questions, Cricket Flours, www​.cricketflours​.com​/faq/ (last visited May 27, 2022). 21   Why Crickets?, Chirps, https://eatchirps​.com​/pages​/why​-crickets-1 (last visited May 27, 2022). 22   See Melissa A. Baker et al., Customer Acceptance, Barriers, and Preferences in the U.S., in Edible Insects in Sustainable Food Systems, supra note 2, at 391 (describing “an important market segment to target [for insect consumption] are those individuals who are environmentally friendly. More specifically, edible insects can be targeted to environmentally conscious consumers as they have a low environmental impact”); see also Hui Shan Grace Tan & Jonas House, Consumer Acceptance of Insects as Food: Integrating Psychological and Socio-cultural Perspectives, in Edible Insects in Sustainable Food Systems, supra note 2, at 380 (“The Dutch participants— whether or not they had tasted insects before—reported motivations to eat that were largely dominated by what they had learned about insects’ nutritional and environmental value”).

The regulation of insects as food  319 ingredients. Although these are two distinct concerns, with the first being less a focus of this chapter, this chapter still presents both so that readers will understand the complications that exist in the development of regulatory mechanisms for addressing food safety in insects as food or food ingredients. A. Concerns with Insects as Contaminants As mentioned earlier, many countries with robust food safety regulations treat insects and insect parts as “contaminants” or “adulterants” or “foreign materials” of non-insect-based foods due to health-based concerns.23 For example, insects can carry bacteria due to their lifecycle processes, leading to the transmission of foodborne illnesses.24 They may even contribute to antibiotic resistance in livestock operations.25 They may also deposit fecal matter (or carry the fecal matter of other animals) onto foods or food products.26 Moreover, insects may be allergens, thus presenting concerns of adulteration in foods.27 Finally, the presence of insects or insect parts may indicate a generally lax approach to sanitation.28 Moreover, some countries treat insects as contaminants regardless of health-based concerns. Part of this is driven by the relationship between the presence of insects and the absence of other sanitation-based controls.29 Part of this is also driven by a desire to protect consumers from ingredients to which they did not affirmatively assent. For example, the US Food and Drug Administration (USFDA) has a Food Defect Levels Handbook that provides guidance on insects or insect parts as “contamination” and “extraneous materials.”30 It notes that even if there are no health hazard concerns, contamination above guidance levels creates “defects” in the food such that consumers may be harmed. The takeaway from this subpart is that countries where insects are not traditionally consumed as food may also happen to have a number of pre-existing food regulations (prior to the introduction of insects as “novel” foods) that prohibit or restrict the presence of insects or insect parts in processed foods.

  See Marie C. Boyd, Cricket Soup: A Critical Examination of the Regulation of Insects as Food, 36 Yale L. & Pol’y Rev. 17, 38–44 (2017). 24   See, e.g., Jeffrey Blazar et al., Insects as Vectors of Foodborne Pathogenic Bacteria, 4 Terrestrial Arthropod Rev. 5 (2011). 25  Ludek Zurek & Anuradha Ghosh, Insects Represent a Link between Food Animal Farms and the Urban Environment for Antibiotic Resistance Traits, 80 Applied & Env’t Microbiology 3562, 3563 (2014). 26   See Blazar, supra note 21, at 3563–3564. 27   See, e.g., Mario Sanchez-Borges et al., Mite-Contaminated Foods as a Cause of Anaphylaxis, 99 J. Allergy & Clinical Immunology 738 (1997). 28  Jim Fredericks & Missy Henriksen, Pests: Everyday Threats to the Human Food Supply, Food Safety Mag. (Aug. 1, 2012), www​.food​-safety​.com​/articles​/3768​-sanitation​-pests​-everyday​-threats​ -to​-the​-human​-food​-supply. 29  Sophia Gaulkin, Calls for Regulatory Approval of Edible Insects, The Regul. Rev. (May 6, 2020), www​.theregreview​.org​/2020​/05​/06​/gaulkin​-calls​-regulatory​-approval​-edible​-insects/. 30   U.S. Food & Drug Admin., Food Defect Levels Handbook (2018), www​.fda​.gov​/food​/ingredients​-additives​-gras​-packaging​-guidance​- documents​-regulatory​-information ​/food​- defect​-levels​ -handbook. 23

320  Research handbook on international food law B. Food Safety Concerns with Insects as Food or Food Ingredients Insects as food can also present a few food safety issues.31 These include the presence of allergens, pesticide residues, mycotoxins, heavy metals, pathogenic microtoxins, and parasites. This subsection will provide a brief overview of these safety issues. However, this discussion is not meant to suggest that insects present food safety concerns greater than other foods; instead, it is presented to introduce readers to food safety issues regarding insects with which they may not have been previously familiar. 1. Allergens Insects as food or food ingredients have the potential to trigger allergic reactions. The close relationship between insects and crustaceans can mean a higher probability of eliciting in consumers similar allergic responses they might have to crustaceans.32 Allergic reactions to the consumption of insects have been documented in both countries where insects are traditionally eaten and in countries where insects are novel foods. Such allergic reactions have been documented in the consumption of mealworms, silkworms, sagoworms, caterpillars, grasshoppers, locusts, bees, cicadas, Bruchus lentis, Clanis bilineata, and female cochineal insects used in food dyes. However, observers agree that more research needs to be conducted to develop a more thorough picture of the scope and types of allergic reactions. 2. Pesticide residues Insects may also contain pesticide residues, especially when harvested in the wild, where their feed may not be tightly controlled.33 This is similar to other wild-caught or wild-harvested foods and produce. The presence of pesticide residues may lead to adverse reactions in consumers. Such pesticide poisonings (as a result of ingesting pesticide residue present on insects) have been documented in Thailand and Kuwait.34 3. Mycotoxins The potential presence of mycotoxins provides another source of food safety concerns for insects.35 As with pesticides, edible insects may carry mycotoxins as a result of their presence in the insects’ feed; the United Nations Food and Agriculture Organization (FAO) has suggested that this mycotoxin presence may derive from contamination of feed substrate by three predominant types of molds.36 The most problematic mycotoxin presence in edible insects are aflatoxins, which are carcinogens, with edible insects sometimes containing over the regulatory limit for aflatoxins. 4. Heavy metals Heavy metal contamination is another potential food safety issue raised by insect consumption (as it can be with other wild-caught foods like fish, mollusks, and crustaceans). Ingestion   See, e.g., Samuel Imathiu, Benefits and Food Safety Concerns Associated with Consumption of Edible Insects, 18 NFS J. 1, 4–7 (2020). 32   Id. at 5. 33   Id. 34   See id. 35   See id. at 5–6. 36   See FAO Insect Report, supra note 16, at 119–120. 31

The regulation of insects as food  321 of even relatively low amounts of heavy metals can lead to neurological problems and damage to internal organs. While insects do not inherently contain heavy metals, they may again carry toxic heavy metals as a result of feed contamination.37 Indeed, studies have shown toxic heavy metals such as cadmium, lead, mercury, and arsenic can accumulate in insects depending on the types of insects and their growth conditions. 5. Pathogenic microtoxins Pathogenic microtoxins are an understudied area concerning insects as food but are a food safety issue in many other areas of food. Pathogenic microtoxins include pathogenic bacteria such as E. coli, Staphylococcus, and Bacillus, all of which can create significant food safety issues and be present in livestock and produce-based foods when appropriate controls are not in place.38 Studies suggest that many of these bacteria can infect insects as well as mammals, but the extent of this infection is not fully understood.39 This suggests that further study is warranted. And the fact that pathogenic microtoxin concerns in other areas of food safety are addressed by process-based controls suggests that the development of process-based controls for insects might be necessary to make the production, processing, preservation, and handling procedures for edible insects safe. 6. Parasites Finally, insects, like other food sources, can carry parasites, leading to negative health effects in human consumption, including nausea and diarrhea. Foodborne and waterborne parasites have indeed been detected in insects intended for human consumption.40 As with other contaminants, the presence of parasites is mostly related to the degree of control that those raising/collecting the insects have over their feed since the primary mode of parasite contamination of insects is through their feed.41 As with many other areas of entomophagy safety, this is relatively understudied, and providing a better understanding of the safety of farm-raised insects versus wild-caught insects is important.

IV.

CURRENT REGULATORY DEVELOPMENTS

The following section discusses various regulatory developments regarding insects as food in five regions: the United States, the European Union, Australia/New Zealand, China, and Mexico. These countries are not selected to provide a comprehensive contemporary outlook but rather to provide readers with a sampling of the variety of ways in which regions are approaching the food safety of edible insects and insect-based food products, as well as structural aspects that regulatory bodies are tackling in terms of addressing food safety issues with the insect and insect product market. Discussion of these approaches is ordered so readers can see the spectrum of regulatory approaches ranging from areas where entomophagy is more “novel” to areas where they are more traditional.   See Imathiu, supra note 31, at 6.   Id. 39   See id. 40   Id. at 7. 41   Id. at 6. 37

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322  Research handbook on international food law A. United States The United States is a country where eating insects is relatively novel for much of its current population.42 It currently does not have a systematic regulatory approach addressing insects as food.43 Instead, it appears to recognize informally the use of insects as food or food ingredients through a series of independent case-by-case decisions. For example, although the US agency responsible for relevant aspects of food safety concerning insects and insect products—the US Food and Drug Administration (USFDA)—gave a warning letter to a company selling “Sugar-Free Hotlix Flavored Candy with Genuine [W]orm[s]” on the grounds of failure to structure its ingredient label adequately, the agency did not challenge the sale of insects as a food ingredient.44 Moreover, the USFDA has also provided response letters to inquiries regarding raising insects as food with guidance about following good manufacturing practices.45 The United States, unlike many other countries discussed later, does not have a “novel” food regulatory structure. Thus, the United States currently addresses the safety of edible insects under its general regulatory system established under the Food, Drug, and Cosmetics Act.46 These include provisions for avoiding adulteration and misbranding, provisions directed towards “food additives,” and provisions excepting foods “generally recognized as safe.”47 However, due to the lack of clarity in the USFDA’s approach to the safety of insects as food, and the potential negative impacts on the edible insect market, several observers have called for the USFDA to develop a more systemic regulatory approach.48 B. European Union The European Union expressly treats insect foods and insect-based foods as “novel” foods under its Novel Food Regulation.49 This regulation, Regulation (EU) 2015/2283, was adopted in November of 2015; it created a centralized assessment and authorization procedure for approving novel foods for sale in the European Union.50 Under the EU Novel Food Regulation, two classes of foods are established: (1) foods consumed by humans within the EU before  Indigenous peoples in the United States do have traditions of eating insects. See Joohi Schrader et al., North American Entomophagy, 2 J. Insects as Food & Feed 111 (2016). 43   See Boyd, supra note 23, at 50. 44   Id. at 51. 45   See U.S. Food & Drug Admin., Opinion Letter on Raising, Processing, and Labeling of Insects for Human Consumption (July 3, 2013), https://the​futu​reof​edib​leinsects​.files​.wordpress​.com​/2015​ /07​/fda​-edible​-insect​-response​-regulation​.jpg. In the United States, the USFDA is the agency in charge of regulating insects as food, rather than the US Department of Agriculture (USDA). This is because of a complicated split between the jurisdiction of the USDA and USFDA and the USDA, where—roughly speaking—the USDA has jurisdiction over livestock and fresh produce, and the USFDA has jurisdiction over other foods. See, e.g., Steph Tai, Whole Foods: The FSMA and the Challenges of Defragmenting Food Safety Regulation, 41 Am. J. L & Med. 447 (2015). 46  21 U.S.C. § 301. 47   See Boyd, supra note 23, at 52–65. 48   See Gaulkin, supra note 29. 49   See Council Regulation 2015/2283, ¶ 8, 2015 O.J. (L 327) 1 (EU) (“it is appropriate to review, clarify and update the categories of food which constitute novel foods. Those categories should cover whole insects and their parts”), https://eur​-lex​.europa​.eu​/ legal​-content​/ EN​/ TXT​/ PDF/​?uri​= CELEX​ :32015R2283​&from​=EN. 50   See id. 42

The regulation of insects as food  323 May 15, 1997, and (2) foods that have not been traditionally consumed by humans within the EU before May 15, 1997 (the “novel” foods). Included as novel foods are foods that have been consumed traditionally in countries outside the European Union. This regulation also requires pre-market approval for novel foods.51 Marketers of such foods must demonstrate that the foods are (1) safe for consumers, (2) properly labeled to avoid consumer confusion, and (3) if intended to replace another food, be not nutritionally disadvantageous for the consumer.52 These safety evaluations are to be conducted by the European Food Safety Authority (EFSA).53 Post-market monitoring requirements may also be required.54 On June 1, the European Commission approved the first insect as a novel food under the EU Novel Food Regulation. This insect is the dried yellow mealworm, which is intended “to be used as a whole, dried insect in the form of snacks, and as a food ingredient, in a number of food products.”55 The regulation implementing this approval stated that upon application for review by the marketing company—the SAS EAP Group—EFSA “concluded that dried Tenebrio molitor larva (yellow mealworm) is safe under the proposed uses and use levels.”56 In reaching this conclusion, EFSA evaluated potential allergic reactions and determined that existing studies documented very few such reactions. It did, however, recommend further study and monitoring of allergic reactions and required labeling of dried yellow mealworms in a manner consistent with products labeled to warn consumers with crustacean allergies. C. Australia/New Zealand Australia/New Zealand is a region that does have a tradition of entomophagy among their indigenous peoples.57 Most commonly eaten have been witjuti grubs, bardi grubs, honey ants, Bogong moths, and sugar bags (native bees).58 Entomophagy, even among indigenous peoples in the region, however, has decreased with the adoption of European diets.59 Like the European Union, Australia/New Zealand also have a food safety law directed towards “novel” foods called Standard 1.5.1—Novel Foods.60 The Standard defines a “novel” food as a non-traditional food that requires an assessment of the public health and safety considerations having regard to: (a) the potential for adverse effects in humans; or (b) the composition or structure of the food; or (c) the process by which the food has been prepared; or (d) the source from which it is derived; or (e) patterns and levels of consumption of the food; or (f) any other relevant matters.61   Id. ¶ 21.   Id. ¶ 20. 53   Id. ¶ 23. 54   Id. ¶ 28. 55   See Commission Implementing Regulation 2021/882, ¶ 3, 2021 O.J. (L 194) 16 (EU), https://eur​-lex​ .europa​.eu​/ legal​-content​/ EN​/ TXT/​?uri​= CELEX​:32021R0882. 56  Id. at ¶ 6 57  Alan Louey Yen, Edible Insects and Other Invertebrates in Australia: Future Prospects, in Forest Insects as Food: Humans Bite Back. Proceedings of a Workshop on Asia-Pacific Resources and Their Potential for Development at 66–68, FAO RAP Publ’n 2010/02 (Patrick B. Durst et al., eds., 2010). 58   Id. at 67. 59   Id. at 69. 60   Food Standards Australia New Zealand Act 1991 (Cth) s 1.5.1 Novel Foods, www​.legislation​.gov​ .au​/ Details​/ F2017C00324. 61   Id. at 1.5.1–2(1). 51

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324  Research handbook on international food law It also defines the broader category of “non-traditional” foods as (a) a food that does not have a history of human consumption in Australia or New Zealand; or (b) a substance derived from a food, where that substance does not have a history of human consumption in Australia or New Zealand other than as a component of that food; or (c) any other substance, where that substance, or the source from which it is derived, does not have a history of human consumption as a food in Australia or New Zealand.

Novel foods require specific pre-approval and safety evaluations by the Food Standards Australia New Zealand (FSANZ) agency, while “non-traditional” foods that are not “novel” do not require such safety evaluations. FSANZ, however, recommends sellers submit inquiries to FSANZ as to the status of their products.62 Australia/New Zealand have thus far addressed five inquiries regarding edible insects: Zophobas morio (super mealworm), Achaeta domestica (house crickets), Tenebrio molitor (mealworm), Prionoplus reticularis (hu-hu grub), and tequila worm in lollipops in their “Record of Views Formed in Response to Inquiries.”63 FSANZ determined that the first three were “non-traditional” in Australia and New Zealand but also not “novel.”64 The agency identified no safety concerns with these three insects but required labeling of the nature of the foods and also recommended labeling to warn consumers with crustacean allergies since crustacean allergies can overlap with insect allergies. In contrast to the first three insects, FSANZ determined that the hu-hu grub and tequila worms in lollipops were traditional and not novel, finding a tradition of safe eating of hu-hu grubs by Maori in New Zealand,65 as well as a history of safe consumption of tequila worms based on their use in alcoholic beverages.66 The availability of additional categories (beyond “novel” and non-“novel”) appears to shape the insect food safety regulatory regime in Australia/New Zealand quite differently from the EU. D. People’s Republic of China The People’s Republic of China (PRC) is another country with a long entomophagy history, which may be even more extensive than that of Australia/New Zealand. My own father67 told me stories of consuming insects as parts of Chinese68 traditional medicine. And that is an aspect of entomophagy in the PRC that makes it unique compared to the other regions described in this chapter. The tradition of eating insects in China is substantially intertwined

 NSW Food Authority, Edible Insects (NSW/FA/FI306/2109, September 2021) www​.foodauthority​ .nsw​.gov​.au​/sites​/default ​/files​/2020 ​-10​/edible​-insects​.pdf. 63  FSANZ, Record of Views Formed in Response to Inquiries (June 2021) www​.foodstandards​.gov​.au​ /industry​/novel​/novelrecs​/ Documents​/ Record​%20of​%20views​%20updated​%20June​%202021​.pdf. 64   Id. at 13. 65   Id. at 19. 66   Id. at 36. 67  Technically he is not “from China”; he hails from Hong Kong, currently a special administrative region of China and at the time a British colony. But he is of Chinese descent. 68  Note: I am using “China” and “Chinese” to refer to a broader understanding of the Chinese peoples, which can include areas of debated status, such as Taiwan or even Hong Kong, versus politically defined nation states. I am using PRC to refer specifically to the nation-state of the People’s Republic of China. 62

The regulation of insects as food  325 with China’s tradition of using insects as medicine.69 Thus it is not surprising that the main regulatory overlap with respect to insects consumed in the PRC is with its general food safety laws and its “traditional Chinese medicine” safety laws. Moreover, the PRC, compared to other countries with relatively long histories of entomophagy, has a relatively robust food regulatory system, at least in terms of laws and regulations on the book. For example, the PRC, like the EU and Australia/New Zealand, has a “novel” foods law in its general food safety laws.70 But it also has a “traditional medicine law,” which is different from some of the other states/regions discussed earlier. The PRC’s novel food regulation, the Administrative Measures for Safety Review of New Food Materials, defines novel foods as foods that have not been traditionally consumed in the PRC, with “traditionally consumed” meaning that the material “has not been produced or distributed, either as pre-packed or nonprepacked food, in [the PRC] at province level or at the level of special municipalities in the last 30 years and that it is not listed in the Pharmacopoeia of the People’s Republic of China.”71 Moreover, “foods that were locally produced and that were only regulated by local standards may be considered novel and then have to be assessed according to modern and nationally applicable safety requirements.”72 Foods that fall under the new food materials category must receive authorization from the Health Administration under the State Council before being placed on the market.73 As with the EU and Australia/New Zealand, the PRC, through its Administrative Measures, has created an application and approval process for producers marketing novel food materials.74 This process involves demonstrating that “the novel food material complies with relevant nutritional requirements, is free of toxins and harmless, and does not cause any other acute, subacute, chronic or other latent health hazard.”75 Moreover, even if a material does get approved, the Health Administration under the State Council can revoke the authorization if it later determines that the food material no longer meets the safety requirements. The Administrative Measures addressing novel food materials, however, do not apply to “health foods,” due to the PRC’s acknowledgment of its extended history of traditional Chinese medicine (TCM) as involving food.76 Instead, the PRC regulates “health foods” under its “Administrative Measures on Health Food Registration and Filing.”77 Under these health

  See Yin Feng et al., Research and Utilization of Medicinal Insects in China, 39 Entomological Rsch. 313 (2009). 70  Administrative Measures for Safety Review of New Food Materials (promulgated by the Nat’l Health & Fam. Plan. Comm’n, May 31 2013, effective Oct. 1, 2013; rev’d Dec. 26, 2017) http://en​ .pkulaw​.cn ​/display​.aspx​?id​=e5d​4615​9d95​67833bdfb​&lib​=law (China); see also Juanjuan Sun, The Regulation of “Novel Food” in China: The Tendency of Deregulation, 10 Eur. Food & Feed L. Rev. 442 (2015). 71  Jasmin Buijs et al., Pre-market Authorization of Food Ingredients and Products in Chinese Food Law, 11 (Eur. Inst. for Food L. Working Paper Series, No. 2018/06, 2018), https://papers​.ssrn​.com​/ sol3​/papers​.cfm​?abstract​_id​=3266135. 72   Id. at 12. 73   Id. 74   Id. 75   Id. at 13. 76   See Sun, supra note 70, at 444 (“[T]he rule excludes GM food, health food and food additive as its regulated targets”). 77   See Health Food in China: Know the Market and Regulatory Compliance Requirements, Cekindo (Nov. 3, 2021), www​.cekindo​.vn ​/ blog​/ health​-food​-china​-market​-regulatory. 69

326  Research handbook on international food law food Administrative Measures, marketed health foods also require a pre-approval process involving health and safety reviews, but one which is conducted through a different administrative track than novel foods.78 Moreover, the PRC has a law devoted to supporting and expanding TCM.79 This means that the PRC’s approach to regulating the food safety of insect consumption involves some case-specific determinations concerning particular insects at issue: whether the consumption is novel or traditional and whether the insects are consumed as health foods or not. Under this mixed regime, the PRC has approved a number of applications for insects as health foods.80 E. Mexico Finally, like China, Mexico has a long history of entomophagy, with chapulines (crickets), maguey worms, and escamol (ant eggs) readily available for consumption in many areas of the country. Much of the insect consumption in Mexico, however, is less for insects’ medicinal properties and more out of traditional consumption patterns. One academic article has observed that “Available resources indicate that some 35 to 45% of its population consumes edible insects regularly or occasionally.”81 Mexico does not, however, have a novel food regulation as part of its general regulatory structure. Instead, the most relevant Mexican laws concerning insects are its laws regulating food products labeled “organic,” as well as laws relating to genetically modified organisms as food. So, Mexico presents a helpful illustration of a regulatory approach taken by a country where insects are already both a traditional source of food and widely recognized within the country as a traditional source of food. First, Mexico has a law for foods labeled “organic.”82 This system of laws, regulations, and guidelines creates a structure for implementing and monitoring the general standards created in Mexico’s Organic Products Law. To the extent that any marketer of insects as food desired to label those foods as “organic,” they would be governed by this system. Similarly, Mexico has used its regulatory authority to address genetically modified foods. To be precise, Mexico has restricted certain genetically modified agricultural products

  See id.  Law of the People’s Republic of China on Traditional Chinese Medicine (promulgated by the Standing Comm. of the Nat’l People’s Cong., Dec. 25, 2016, effective July 1, 2017), http://en​.pkulaw​ .cn​/display​.aspx​?id​=321​68b6​5b0d​af341bdfb​&lib​=law. 80   See Anu Lähteenmäki-Uutela et  al., Insects as Food and Feed: Laws of the European Union, United States, Canada, Mexico, Australia, and China, 12 Eur. Food & Feed L. Rev. 22, 34 (2017). 81   Id. at 29. 82  Ley de Productos Orgánicos (Organic Products Law) [LPO], Diario Oficial de la Federación [DOF] 07-02-2006, www​.gob​.mx​/senasica ​/documentos​/ ley​-de​-productos​-organicos​?state​=published; Reglamento de la Ley de Productos Orgánicos (Regulation of the Organic Products Law), Diario Oficial de la Federación [DOF] 01-04-2010; Lineamientos para Operación Orgánica (Guidelines for Organic Operation), Diario Oficial de la Federación [DOF] 29-10-2013; Acuerdo por el que se da a conocer el distintivo nacional de los productos orgánicos y se establecen las reglas generales para su uso en el etiquetado de los productos certificados como orgánicos (General Rules for Use of the National Seal), Diario Oficial de la Federación [DOF] 25-10-2013. 78

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The regulation of insects as food  327 legislatively, for example, through its statutory provisions on genetically modified corn.83 Again, to the extent that marketed insects are found to be genetically modified, they could run into Mexico’s overall regulatory framework for genetically modified organisms in food. Nevertheless, despite longstanding traditions of entomophagy in Mexico, as well as the existence of food safety/food labeling laws that could apply to insects, “regulation lags behind the daily practices of harvesting and consuming insects.”84 That said, what is also notable in this overview of Mexico’s approach towards regulating insects as food is that it ends up being similar to the United States’ approach, even though Mexico has a long-acknowledged history of entomophagy, while the United States does not acknowledge any such history. Both of these contexts seem to have led the countries to take similar approaches: regulating insects as food primarily through already-existing food safety laws. F. Summary As readers can see from this survey, state approaches to the food safety regulation of insects can vary in many ways. Some of these variations are driven by their history of eating insects, while others are also driven by their prior structures of food safety regulations. These overlapping spectra of histories with entomophagy and pre-existing food safety regulations present an exciting area for future research by food law academics. Moreover, what is also interesting is that these dynamics have led some countries with nearly opposite histories for entomophagy and food regulatory structures to adopt similar approaches, as seen with the case studies of the United States and Mexico, which both rely upon pre-existing food safety regulatory structures to regulate the sale of insects as food and food ingredients rather than using creating more insect-specific (or “novelty”-specific) regulatory structures.

V. FUTURE DEVELOPMENTS Even the most developed regulatory structures concerning edible insects and insect-based foods are rudimentary compared to some of the regulatory structures for other foods presented in this book, as seen earlier. Many state bodies instead rely upon existing food safety regulatory structures—such as general food safety regulatory structures or novel or health food regulatory structures—to provide safety protections for eaters of insects rather than using insect-specific structures. That said, as the consumption of insects grows, as some observers predict, state bodies may be pressured to develop more insect-specific regulatory structures, partly to protect consumers and partly to present regulatory certainty to producers of edible insects and insect-based foods. This section draws from both observations generally regarding the dynamics and safety of insect consumption as well as other areas of more developed food law to provide readers with focal points for future research regarding insects as foods. It points to five areas ripe for exploration: the regulation of insect feed for insects as food or food products; the development   See David Alire Garcia, Mexico Pressing Ahead with GMO Corn, Glyphosate Bans, Says Key Official, Reuters (Feb. 19, 2021, 10:34 AM), www​.reuters​.com​/article​/us​-mexico​-agriculture​/ mexico​-pressing​-ahead​-with​-gmo​-corn​-glyphosate​-bans​-says​-key​-official​-idUSKBN2AJ27Q. 84  Lähteenmäki-Uutela, supra note 80, at 35. 83

328  Research handbook on international food law of allergen-focused regulations concerning insects as food or food products; the regulation of food fraud concerning insects as food or food products; animal welfare regulations concerning insects as food or food products; and the regulation of sustainability labels for insects as food or food products. A. Regulation of Insect Feed for Insects as Food or Food Products As described earlier in this chapter, one of the main sources of microbial contamination of insects as food is the insects’ own food sources. Insect food sources can also contribute to their potential to trigger allergic reactions in consumers. Few state regulations currently address distinctions between wild-harvested and farmed insects, except on very case-specific bases. This may be a safety concern, especially regarding wild-caught insects, given the lower extent of control of insect feed for wild-caught insects versus farmed insects. As such, this may be a source of regulatory development in the future, as marketers and consumers of insects may demand more certainty concerning these foods. I therefore urge future researchers to explore developments in the regulation of wild-harvested insects versus farmed insects and the safety of harvesting/feed approaches with respect to both microbial contamination and allergic reactions on consumption. These developments will likely depend not only on producer/consumer demand but also on developing research on food safety related to the feed of insects designated for food. Again, this provides promise for an exciting area for future food research. B. Allergen-Focused Regulations with Respect to Insects as Food or Food Products While the allergenic properties of particular insects designated for consumption have been recognized by regulatory bodies, they have not been studied as extensively by researchers as other foods. But more data will be available for allergenic reactions as insect consumption increases for reasons described earlier in this chapter. Moreover, because allergic reactions to the consumption of insects often depend upon the food sources of insects, continuing research observations could lead to more context-specific regimes of regulation to edible insect feed. This data may lead to more regulatory developments, especially in states with robust food allergen regulations and in states with robust regulations concerning livestock feed. Food law researchers will find fertile ground exploring this intersection of developing scientific studies and regulatory development, especially given how allergic reactions to insects as food are more dependent on the particular feed used for insects than many other foods. The ways in which such allergen labeling could or should be structured can be a regulatory issue, as seen in the chapter on sugar labeling.85

  See Alexia Brunet Marks, Sugar Labeling: Challenges and Approaches, Chapter 18 in this volume.

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The regulation of insects as food  329 C. Food Fraud Regulation Food fraud is also a general concern for eaters.86 And edible insects are no exception. That is, consumers may be concerned that the insects they purchase for food contain other materials—materials they did not intend to buy or consume. These may be other insects or even other fillers for which sellers have an economic incentive to use if they are lower in price than the marketed insects. This could present an even more pressing issue with insects than other foods, as many insects are being marketed not in whole form but as “flour” or “meal,” where the opportunity for fraud can be even greater. The takeaway for readers here is that researchers should be alert for potential developments on this front for insects as food. Another question related to fraud for food law researchers is the question of categorization. For example, is the food being marketed as crickets comprised of what consumers understand to be edible crickets? There are, for example, over 900 species of crickets in the world,87 but only 62 have been documented to be traditionally consumed as food.88 However, due to a lack of extensive study, many more species may indeed be edible. So, what should “count” under the category of edible crickets? A potential regulatory analogue might be the Codex Alimentarius, which provides various standards of identity for food.89 For example, the Codex Standard for Canned Sardines and Sardine-Type Products (CXS 94—1981) lists particular fish species that can be considered “sardines” for canned sardines and sardine-type products.90 It also contains process, presentation, composition, and quality standards. Should the consumption of crickets become more predominant, it is possible that similar international regulatory regimes could develop. D. Animal Welfare with Respect to Insects as Food States’ animal welfare approaches may also begin to affect the regulation of insects as food.91 Already there are several scholarly papers examining animal welfare concerning the farming of edible insects.92 Often raised are the “five freedoms”: freedom from hunger and thirst;

  See generally Michael T. Roberts et al., U.N. Food & Agric. Org. [FAO], International and National Regulatory Strategies to Counter Food Fraud (2022). 87  Erin W. Hodgson & Jessie Trina, Crickets, Utah St. U. Extension Publ’n, Factsheet 890 Sept. 1, 2008, at 1, https://digitalcommons​.usu​.edu​/extension​_curall​/890. 88  Henlay J. O. Magara et al., Edible Crickets (Orthoptera) Around the World: Distribution, Nutritional Value, and Other Benefits—A Review, 7 Frontiers Nutrition 1, 2 (2021), www​.ncbi​.nlm​.nih​.gov​ /pmc​/articles​/ PMC7835793/. 89  The Codex Alimentarius Commission maintains the Codex, and was established by FAO and WHO to protect consumer health and promote fair practices in food trade. 90  FAO & WHO, Codex Alimentarius, Standard for Canned Sardines and Sardine-Type Products, CXS 94—1981, at 2.1 (1981) www​.fao​.org​/fao​-who​-codexalimentarius​/sh​-proxy​/en/​?lnk​=1​&url​ =https​%253A​%252F​%252Fworkspace​.fao​.org​%252Fsites​%252Fcodex​%252FStandards​%252FCXS​ %2B94​-1981​%252FCXS​_094e​.pdf. 91   Cf. Donald M. Broom, Animal Welfare: An Aspect of Care, Sustainability, and Food Quality Required by the Public, 37 J. Veterinary Med. Educ. 83 (2010) (discussing public animal welfare demands in livestock generally). 92   See, e.g., Arnold Van Huis, Welfare of Farmed Insects, 5 J. Insects as Food & Feed 159 (2019). 86

330  Research handbook on international food law from discomfort; from pain, injury, or disease; to express normal behavior; and from fear and distress.93 However, existing state and regional approaches to animal welfare with respect to insects are rather mixed. For example, the European Animal Welfare Directive 98/58/EC for animal farming does not apply to insects because they are non-vertebrates.94 Canada, however, has a much broader animal welfare statute that could potentially regulate the welfare of insects as food, despite their invertebrate status.95 Nevertheless, many countries treat animal welfare in food production as a relatively low priority generally.96 Given these dynamics, animal welfare for insects as food will be an interesting area for researchers to observe develop. E. Regulation of Sustainability Claims Finally, as described earlier in this chapter, the recent rise of insects as food is often based upon marketers’ claims of the environmental sustainability of these food products. But concerns about “greenwashing” may arise.97 To the extent that consumers and civil society organizations demand greater accountability for the environmental footprint of edible insects and insect-based foods, certification schemes may arise.98 Moreover, some countries with more comprehensive greenwashing guidelines, such as Denmark, with its Danish Consumer Ombudsman’s Guidance from the Consumer Ombudsman on the Use of Environmental and Ethical Claims, etc., in Marketing,99 may attempt to apply their guidelines to edible insects and insect products. Indeed, to the extent that labeling may be deemed inadequate to address concerns regarding the actual sustainability of insect supply chains, governments may end up seeing fit to engage in deeper regulation of such claims.100

  See Rosangela Poletto & Maria J. Hötzel, The Five Freedoms in the Global Animal Agriculture Market: Challenges and Achievements as Opportunities, 2 Animal Frontiers 22, 25 (2012).  94  Council Directive 98/58/EC of 20 July 1998 concerning the protection of animals kept for farming purposes, 1998 O.J. (L 221) 23.  95   See Lähteenmäki-Uutela, supra note 80, at 29 (citing personal communication with Alia’a Ghiba, CFIA, 2016).  96  Eur. Parliament, Comm. on Agric. and Rural Dev., Comparative Analysis of EU Standards in Food Safety, Environment, Animal Welfare and Other Non-Trade Concerns with Some Selected Countries, at 15, IP/B/AGRI/IC/2011-069 (May 2012), www​.europarl​.europa​.eu​/ RegData​/etudes​/ etudes​/join​/2012​/474542​/ IPOL​-AGRI​_ ET(2012)474542​_ EN​.pd​f.  97   See, e.g., Greg Northen, Greenwashing the Organic Label: Abusive Green Marketing in an Increasingly Eco-Friendly Marketplace, 7 J. Food L. & Pol’y 101 (2011).  98   Cf. Timothy D. Lytton, Private Third-Party Verification of Product Claims: Lessons from Kosher Certification, Chapter 19 in this volume.  99   Danish Consumer Ombudsman, Guidance from the Consumer Ombudsman on the Use of Environmental and Ethical Claims, etc., in Marketing (Aug. 2014), www​.consumerombudsman​.dk​ /media​/49009​/vejledning​-om​-miljoemaessige​-paastande​-engelsk​-udgave​-2​.pdf. 100   See Uché Ewelukwa Ofodile, ESG, Supply Chain Due Diligence and Food Systems Transformation: Changes and Challenges, Chapter 14 in this volume.  93

The regulation of insects as food  331

VI.

CONCLUSION

The food safety regulation of insects is an exciting area of food regulation. This is because it brings into play understandings of “tradition” and “novelty” as well as underpinnings for insect consumption, be it protein-based, health-based, or sustainability-based. Moreover, if growth in the consumable insect industry is as has been estimated, the growth will likely pressure countries to develop more consistent food safety regulations in this area. As readers use this handbook for their research needs, I urge you to consider all these underlying dynamics in developing your particular approaches.

16. Food safety governance and good practices for better rulemaking1 Juanjuan Sun

1. INTRODUCTION As an essential legal principle, the Chinese Food Safety Law provides for dynamic governance processes among public and private stakeholders to strengthen food safety regulation and protect public health. Participation in such governance processes, furthered by the legislative system based on the Chinese Food Safety Law, arises from and is sustained by institutional incentives and consequences for the different stakeholders involved in food safety governance.2 For example, in addition to well-known punitive damages that encourage consumers’ participation, a so-called dual administrative punishment has been introduced by revised Implementing Regulation for Food Safety Law to impose a fine on the company in violation and the person or persons at the company who is or are responsible for decisionmaking or daily management over food safety. Simultaneous punishment of the business entity and responsible persons for violations aims to encourage company leaders to stress food safety responsibility and to implement responsibility from top down in daily management. Theoretically, regulation and governance are distinguishable when considering the involvement of stakeholders and their interaction with important matters. From theory to practice, Chinese food safety regulation aspires to establish trust between the government and regulators and between industry and regulatees in correcting market failures, and the governance processes are intended to provide a space for participation among regulators, regulatees, and other stakeholders. Regarding food safety assurance between regulators and regulatees, an epitomizing Chinese sentiment is that food safety is primarily guaranteed at the production stage, but producers still need government regulation to deter bad behavior and enforce against violations. This sentiment comports with the policy of the European General Food Law, which provides that food business operators, especially food producers, assume primary responsibility for food safety. Increasingly, however, food safety has been regarded as everyone’s business, not just those of producers and regulators, as claimed during World Food Safety Day and consistent with other Chinese national and regional food governance systems.3 Notwithstanding this expansion of responsibility for food safety, the primary responsibility is still assumed by food business operators since they are best placed to devise a safe  This chapter is based on ideas expressed in a book on Food Safety Regulation and Compliance: Theories, Norms and Cases, edited by Jinguang Hu and Juanjuan Sun, China Customs Press, 2021. 2  Jerome Lepeintyre and Sun Juanjuan, Building Food Safety Governance in China, Luxembourg Publications Office of the European Union, 2018. 3  Dayuan Han, To Promote National Strategy on Food Safety by Rule of Law, Legal Daily, December 23, 2015, p. 9. 1

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Food safety governance and good practices for better rulemaking  333 system for supplying safe food and preventing food-borne risks, particularly because of their advantage of having access to information and technology. To that end, Chapter 3 and Chapter 4 of the Chinese Food Safety Law have clarified an array of legal responsibilities for operators, in particular, food companies that operate on a large scale. Among other things, they are required to establish food safety management systems and institutions, such as capacity building, self-inspection, and reporting. Accordingly, food companies are obliged to put these requirements into practice and fulfill their primary responsibilities as compliance management. Otherwise, food companies face the potential of severe administrative, criminal enforcement, and civil penalties. In view of this, food business operators have increasingly prioritized regulatory compliance and have tried to reinforce co-regulation in the form of management-based regulation. The emphasis on food safety compliance management has shifted from internal arrangements by food business operators to external alliances that promote close cooperation. A result is a mixed approach of government regulation, industry self-regulation, and academic research and contributions. The project-oriented outcome can be used to refine existing or will-be political or legal arrangements and make them consistent with industry practice. The integration among academic institutions, industry, and government has become an increasingly important roadmap to boost co-regulation as well as governance in China. As an example, the Center for Coordination and Innovation of Food Safety Governance, established at Renmin University, regularly organizes a Food Safety Workshop for both regulators and regulatees to discuss solutions to food safety problems of all kinds, with engagement and participation from governments, industry members, and academic communities. These interactive seminars among diverse stakeholders provide a platform to increase mutual understanding and research common issues. Legal researchers, for instance, increasingly assist and inform government regulators in their decision-making process. As a practical matter, though, recommendations from legal researchers are often difficult for regulators to adopt because the proposals tend to be overly theoretical or rely solely on foreign experiences without care for how they would work in China. On the other hand, industrial practices can provide a wealth of case materials for theoretical research and practical rule-making. However, cross-disciplinary and cross-sectoral cooperation is challenging as gaps arise in professional exchanges. This chapter recommends three approaches to bridging these gaps. First, academic research in food safety regulation and best practices should be practice-oriented. Second, government regulation should be responsive to industry development. Third, food companies need to appreciate that food safety is non-competitive and cooperation is essential in promoting the highest levels of food safety. This chapter illustrates these recommendations through real-world cases. Specifically, this chapter presents these cases in the form of government and industry good practices for food safety assurance, the purpose of which is to identify successful experiences in daily food safety regulation and governance. Good practices refer to the successful experiences of others that have been tested and applied to different contexts and facts and can be recommended as a model due to their successes. This process has several benefits. First, for sharers, it presents an opportunity to help others’ regulatory compliance management systems. It also aims to build a high level of compliance within the whole industry and a process for self-checking and corresponding correction during the summarization of good practices. Second, for potential learners, good practices can be used as a model for learning how to tailor the legally provided rules to meet their own needs. Third, good practices can be tested further to see whether they

334  Research handbook on international food law apply or extend to other scenarios and evolve to general rules of self-regulation by industry or could be institutionalized as a national or international rule to promote harmonization. This is why international organizations such as the Food and Agriculture Organization of the United Nations use best practices to generate changes based on sharing successful experiences.4 In view of the foregoing, one of my contributions that links regulatory theories with practice in China by presenting good practices in the food industry is the book, Food Safety Regulation and Compliance: Theories, Norms and Cases. Based on a good-practices project from the perspective of policy introduced by the Center for Coordination and Innovation of Food Safety Governance, that book bridges the gaps between different stakeholders on the role of regulation and compliance, especially among the regulators and regulatees. Certainly, the shared experiences are points of reference for other food companies to refine their self-regulation and compliance management, such as labeling design or quality control. Meanwhile, it also presents a chance for regulators to understand the institutional and procedural arrangements inside companies in line with different scales, food categories or business models. Such transparency is important for building trust between regulators and regulatees, which both groups appreciate. This is why the second casebook is underway, to keep such expertise exchange going. Compared to the first one, the second book will demonstrate the value of practical experiences in solving regulatory challenges, such as preventive measures through new technologies and capacity-building for small food operators. To this purpose, the goodpractices cases are limited to the food industry and apply to local regulators. While such interaction plays a role in carrying out food safety governance in China, it exemplifies the common recognition that Food Safety Is Everyone’s Responsibility and puts it into practice for other countries or regions. As learned in China, regulation is an evolving theory in which government regulation, selfregulation, and co-regulation play different roles in promoting cooperation between public and private partners. And such cooperation is essential to ensure food safety since safe food can only be guaranteed if food operators fulfill their primary responsibility while government regulators intervene proactively, given that food safety risks may result from market failures. This chapter addresses governance from the perspective of self-regulation, government regulation, and co-regulation. Taking food safety regulation and governance in China as a specific context, on the one hand, the theories on regulation are examined to see how imported theories on regulation evolve in China in general within the food domain in particular. Cases of good practice are provided to present the progress of regulatory compliance by food companies, establishing their contribution to co-regulation or governance. The theoretical underpinnings of food safety regulations and governance, namely the concepts of governmental regulation, private self-regulation, and cooperative co-regulation, are summarized in section 2. These provide context to the cases that follow. Given the difference between individual self-regulation and collective self-regulation (also called self-regulation on the group), section 3 addresses self-regulation by an individual company to see how the food business operator fulfills its obligations regarding food safety assurance, in particular the rules proscribed by food laws and standards. Section 4 illustrates self-regulation from the perspective of collective coordination. Section 5 emphasizes the interaction between public and private parties in standard formulation and implementation, especially focusing on 4

 FAO, How to Capture and Share Your Good Practices in Order to Generate Change? www​.fao​.org​/ capacity​-development​/resources​/practical​-tools​/good​-practice​-tool​/en/.

Food safety governance and good practices for better rulemaking  335 government’s responsiveness in rule-making to adapt to the practical needs of the industry development. Section 6 outlines certain new developments and challenges in which self-regulation is essential to deal with risks in a preventive way and to promote co-regulation or governance in a friendly cooperative way.

2. REGULATION THEORY IN GENERAL Regulation as a government intervention necessary to correct market failure is an established worldwide policy. Regulation, however, need not be a strictly governmental activity. From theoretical guidance to practical insight and interaction in between, government regulation and self-regulation have formed a so-called regulation spectrum in which particularized, public command-and-control regulation and purely private self-regulation are at opposite ends.5 Notably, they are not dichotomous but incremental to presenting different forms of self-regulation or co-regulation in terms of the degree of government involvement. For example, possible enforced self-regulation or co-regulation may refer to the cooperation between regulator and regulatee for shared regulatory goals or the combination of public and private rules. As in the case of food safety regulation, its evolution demonstrates that government intervention is continuously under development. Over time, as industry needs and practices change, traditional, detailed government command-and-control regulation has been improved to respond to those practices with so-called responsive regulations; in turn, industry self-regulation adapts to its need for food safety assurance and results in a so-called management-based regulation. Such development shows that the market and government both need assurance of a safe food supply. Business operators self-regulate for at least three reasons. First, government alone is not capable of preventing risks. Private actors are well suited to calculating and managing risks in a sustainable environment. Second, private actors have advantages in standards-setting, which target risk prevention and advanced development for market reputation. Third, the success of self-regulation can also provide opportunities for responsive co-regulation, reducing the cost of compliance management.6 Self-regulation by business operators will further rely on internal controls to carry out production or distribution. Internal controls are under development according to risk prevention or regulatory compliance needs. For example, food safety is the bottom line for sustainable development, and food quality continually provides this development with a comparative advantage, further increasing its market share. To this end, one internal control is to carry out a quality-management or quality-assurance system to ensure food safety while pursuing food quality based on comparative advantage. The implementation of quality management includes three parts. First is the research and development of a new product or process that continues to stratify customers’ changing needs with the advancement of technology. Second is quality assessment for process-based risk prevention. Third is quality control to confirm the quality by means of laboratory tests. When quality management has shifted from quality control towards research and development, both

 Neil Gunningham and Joseph Rees, Industry Self-Regulation: An Institutional Perspective, Law & Policy, 19(4), 1997, p. 366. 6   高秦伟： 《私人主体与食品安全标准制定》,《中外法学》2012年第4期. 5

336  Research handbook on international food law regulator and regulatee should focus on processed-based management, as addressed by the Hazard Analysis and Critical Control Point (HACCP) system.7 As a unique commercial system, the food supply follows basic market rules while also presenting unique challenges to maintaining market order and protecting public health. An ideal market can match the need and the supply through competition and thus promote the development of high-quality goods by supporting the survival of comparative advantage. However, the food supply is threatened by market failures in information asymmetry and negative externalities. This is why government regulation must prioritize safety guarantees and facilitate the positive role of the market. For a long time, government has employed strict accountability and enforcement tools like licensing, inspection, and penalties, which disregard the difference in the food industry from the perspective of scale, compliance capacity and compliance willingness. This is especially challenging in China since the difference in scale within the food industry has brought barriers to standardization. In view of this, the purpose of regulation should not only target the market failures unique to the food industry but also promote the industry’s development and take advantage of the participation of multiple stakeholders to provide safe, high-quality food. That is to say, the logic of better regulation is to integrate the idea of governance and balance the necessary standards and regulations against safety guarantees and industry development.8 In practice, policies on food safety already emphasize the shift from regulation to governance in China. Also driving this shift are the capacity limitations of government to improve the precision of regulation. Thus, co-regulation is considered a smart approach to modernizing food safety regulation, while de-regulation has been the default pathway for administrative reform.9 Interestingly, there is no common recognition of the concepts and forms connected to government regulation and self-regulation. Practice has shown that the relationship between them is coordination in different forms of co-regulation, rather than replacement of one for the other. In China, co-regulation is usually characterized by a two-tier regulatory form in which the first level is management-based self-regulation while the second is responsive government regulation.10 The combination of them aims to ensure the former functions well within the jurisdiction of a given business operator. Notably, so-called meta-regulation specifically refers to co-regulation between government and associations invited by business operators or brought in by governments who can help regulate at the latter level. This opens the regulatory space for stakeholder participation, leading to improved and more diverse food safety governance. China well illustrates how meta-regulation works by adapting to the practice of the business operator, as they are obliged to build internal food safety controls, which the regulator can then adopt to formulate regulatory requirements. The Chinese Food Safety Law provides system management, regular self-checks, and reporting as essential tools for self-regulation.

  张鹏等： 《食品行业质量管理模型研究》， 《食品安全质量检测学报》2019年第5期.   胡颖廉： 《新时代国家食品安全战略：起点、构想和任务》， 《学术研究》2019年第4期.  9   徐国冲、霍龙霞： 《食品安全合作监管的生产逻辑》， 《公共管理学报》2020年第17（1）期. 10   杨柄霖： 《后设监管的中国探索: 以落实生产经营单位安全生产主体责任为例》， 《华中师范大学 学报（人文社会科学版）》2019年第5期.  7  8

Food safety governance and good practices for better rulemaking  337

3. INDIVIDUAL SELF-REGULATION AND THE CASE OF WALMART The complexity of economic and social issues in modern society makes it difficult for government to prevent technological risks. Self-regulation is a better and more cost-effective regulatory approach to managing these risks. Traditional regulation in the form of commandand-control has already introduced and reinforced regulatory compliance through deterrence. This rigid and prescriptive approach to regulation in pre-market and process controls has provided insufficient flexibility. It does not allow industry to quickly adapt to changing technological developments, particularly sudden or unexpected ones. It has also led to an adversarial relationship between regulator and regulatee, resulting in a broad negative attitudes toward regulatory effectiveness. Because of this, the advantage of self-regulation has been emphasized to complete and even cooperate with government regulation to satisfy both private and public interests, as in the case of cooperation between private food safety certifiers and public accreditors of such certifications for either private or public standards.11 The emergence of self-regulation is driven by external regulation, and management-based regulation is designed to promote co-regulation between private and public efforts. As a kind of enforced self-regulation, food companies tend to prefer carrying out self-regulation after a regulatory framework has been enunciated and provided by government. Food companies can further define detailed regulatory rules in line with their facts and needs, including the degree and substance of compliance management and self-checks or the frequency of reliance on third-party inspections designed to promote effective internal controls. As a result, food producers and distributors can ensure quality control through such self-regulation and obtain and foster a good reputation resulting from maintaining high food quality and professional food safety management. Such self-regulation, however, is not purely free but still subjected to government regulation to avoid market failures due to insufficient motivation for self-regulation. That is to say, to make sure the contribution of self-regulation for the sake of public interest, a precondition is that government can provide a regulatory framework in advance. When self-regulation is based on such a framework, post-regulation must also ensure that private and public regulatory goals are targeted. Otherwise, violations should be punished to correct failures in self-regulation.12 External regulation at the stages of production or distribution lacks professional knowledge and information. Standard-setting in rigid regulatory frameworks like the commandand-control model has also restrained private autonomy, which allows industry to consider its advantages and flexibility in self-regulation. Consequently, reforms to government regulation spurred by a serious food safety crisis shift government-oriented control to co-regulation and governance. It is a common recognition that food safety is not only everyone’s business but also that its primary responsibility rests primarily with food business operators. Under the Chinese Food Safety Law, food business operators bear primary responsibility for food safety because they profit and bear responsibility equal to their power and benefit. Moreover, food business operators are aware of the procurement and use of raw materials and other constituents of their food products, and they can control food production, administer sample testing,   高秦伟： 《社会自我规制与行政法的任务》， 《中国法学》2015年第5期.   金健： 《德国食品安全领域的元规制》， 《中德法学论坛》第15辑，2018年.

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338  Research handbook on international food law facilitate storage, and largely manage transportation throughout the food supply chain. In other words, food operators are best positioned to use their professional knowledge and insider information to prevent or minimize food safety risk factors at critical points through each step of their processes.13 Walmart is a helpful case study in developing a culture that supports and innovates food safety. The global company has adopted steps that can be used as a benchmark for other retailers. Walmart has implemented standards for compliance management by carrying out a multiple-level management system for food safety, following the principles of a whole-food supply chain from farm to folk, and monitoring stages of primary production, storage, transportation, distribution, as well as confirmation of legally required documents at key points like food purchase. The first key feature is the supportive arrangement of the organizational setting. As a basic part of compliance management, Walmart clarifies job responsibility to make sure that the persons responsible for compliance management can fully understand what to do and how to do it. For example, the manager responsible for verifying whether the compliance-management program functions well is liable to the organization, communication, and inspection, to ensure the achievement of strategic compliance goals and specific business plans specified by headquarters. Besides, in line with legal requirements and company-specific rules, the manager is also empowered to site-check food safety work carried out by different branches in shopping malls and to identify and record potential risks in their work. The second key feature of Walmart’s organizational approach to food safety self-regulation is its cultural construction, which is also an important supportive arrangement. Currently, food safety culture has integrated into corporate culture. With continuing efforts to promote a food safety culture, Walmart’s employees can be aware of the importance of food safety, particularly the so-called food safety behavior addressed by the former Vice President of Food Safety to enhance employee compliance with desired food safety behavior.14 Based on this, the achievement and improvement of compliance management is not only a job of managers but also a cooperative undertaking among all employees. For instance, concerning individuals, serving customers and pursuing excellence are core tenets of Walmart. These tenets are now viewed through the lens of food safety assurance: to put food safety into practice by everyone at every stage at all times. The third and final key feature is process construction. Ensuring food safety is a complex and systematic project, it is aimed at ensuring that only safe products of high quality can be allowed access to the market. The Chinese Food Safety Law requires retailers to check identity documents like licenses for products or business operators. Suppliers are asked to prepare all legal papers needed for identity verification and testing reports for concerned products at the contract negotiation stage. With the digitization of retail-business innovation, more convenient shopping experiences will be brought to customers while food safety remains a high priority. Taking the development of cold-chain logistics as an example, Walmart will continue to strengthen its capacity for cold-chain logistics and management for upstream suppliers’ operations, which will improve the latters’ fresh food supply to better match Walmart’s highly private requirements. By ranking supplies with their capacities on service, differentiated   任端平、郗文静、任波： 《新食品安全法的十大亮点》， 《食品与发酵工业》2015年第7期.  Frank Yiannas, Food Safety = Behavior: 30 Proven Techniques to Enhance Employee Compliance, Springer, 2015.

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Food safety governance and good practices for better rulemaking  339 management ensure food safety and quality to the greatest extent at the stage of product exchange.

4. COLLECTIVE SELF-REGULATION AND THE CASE OF MEITUAN Like individual self-regulation exemplified by Walmart, collective self-regulation also includes different forms of cooperation. For example, the arrival into China of large retailers has introduced the so-called private food in which they impose private standards and third-party certification on suppliers to carry out compliance management. As another example, industry associations play active roles in guiding, consulting, and training their members to promote self-regulation at the individual and industry levels. Compared with internal controls, individual self-regulation and collective self-regulation align with the principles of cooperation and coordination, and they give a comparative advantage to the food company by increasing its reputation for safety and high quality. Importantly, food safety compliance management includes not only mandatory legal or technical norms but also private norms imposed by contracts and commitments made by industry associations or companies, like minimum technical standards and the imposition of a food safety culture. Collective self-regulation relies on multiple entities coming together to benefit compliance management. The initiating party can be a food industry association, third-party online platform, operator of a centralized trading market or agricultural market, or another stakeholder with a substantial interest in the success and marketing of the affected goods. It is typical in China for a newly emerged e-commerce online platform to be responsible for verifying identification documents of food products at the stage of online-market access, both online and offline inspections, and reporting violations. It is prudent for platforms, therefore, to establish internal controls not only to meet their regulatory responsibilities but also to develop their own rules and protocols. It is no surprise, then, that the rise of online platforms has motivated both regulatees and regulators to promote co-regulation with the government and for platforms to increase the overall regulatory effectiveness.15 The government expects the modernization of online regulation, in particular data collection and sharing, to boost the precision of regulation. For example, the information on business licensing collected by local governments has been shared with online platforms to facilitate their document checks and reviews at the stage of online-market access controlled by each platform. This has led government regulators to recognize the role of platforms as an important partner in food safety governance rather than simply a regulatee subject to traditional command-and-control regulation.16 As a leading e-commerce platform for online meal ordering in daily life, Meituan is an example of how to address platform-based collective self-regulation for both online and offline food safety assurance. The Food-Plus platform has become a strategic part of Meituan’s operations. Its purpose is to build a multiple-level technical service for daily eating to serve both the demand and supply sides. Meituan has emphasized the importance of food safety by calling for smart regulation based on technology-driven and process-concerned coordinative  Juanjuan Sun and Jasmin Buijs, Online Food Regulation in China: The Role of Online Platform as a Critical Issue, European Food and Feed Law Review, 6, 2018, pp. 1–11. 16   刘金瑞， 《网络食品交易第三方平台责任的理解适用与制度创新》， 《东方法学》2017年第4期. 15

340  Research handbook on international food law governance in which the idea of a HACCP system has been integrated to deal with food safety risks at key points. Simply put, the platform carries out legally required food safety management. It also includes setting up detailed rules and updating them regularly in line with practice, such as Food Safety Management Rules for Online Ordering Comments and Registration Rules for Online Catering Service Providers. At this point, experts and other professionals are needed to promote food safety mechanisms that serve different needs for multiple levels of business operations, including logistics and customer service. Moreover, several measures have been taken to provide food safety assurance at delivery service. For example, the control of temperature, speed, and personal health has been regarded as key points during this delivery stage, and thus the application of food safety mechanisms ensures a high level of food safety from catering kitchen to home table. A real-time and intelligent distribution system that matches the online orders and delivery service from the time of ordering to delivery logistics helps the delivery to be achieved in a timely and safe way. Additionally, smart regulation integrates into the management of the online catering-service provider, in particular, the confirmation of its business licensing and service quality when it engages in online services. For example, a so-called Sky Net has been developed based on big data to integrate the regulation of entrance and exit as well as in-between for online cateringservice providers in which certain data can exchange directly with local governments to verify the service provider’s documentation authenticity, such as its business license. Food delivery initiated and managed over the internet has become a new business model, but its success relies on the marriage between traditional industry and internet service rather than substitution. That is to say, whether a catering service is provided directly offline or using an online ordering service, food safety always remains a deep concern for consumers. Compared with online regulation, it is still offline regulation in a coordinated way that contributes to the meal’s safety at the stage of catering preparation. For this reason, Meituan has found a distinctive way to use technology in a cooperative approach to enhance its food safety self-regulation system.

5. CO-REGULATION IN STANDARDS SETTING AND THE CASE OF BIANLIFENG As mentioned in section 2, co-regulation exists on a spectrum, with a governmental command-and-control approach on one end and a private management-based self-regulation approach on the other. The combination of self-regulation and government regulation can be further refined to identify the appropriate level of cooperation that serves both private and public interests. In so-called management-based regulation, there exist a responsive regulator and adapting regulatee. In determining the appropriate level of cooperation, one must assess the types of market failures and government failures before establishing corresponding countermeasures. From a governmental perspective, public resources are often limited, and there are challenges in enforcing licensing requirements against all members of a section of industry, in gathering information on all activities and actors, and in post-market regulation. It is understandable, then, that the government welcomes social participation via third-party certification for standards implementation or even rulemaking, as in the case of private regulation. This practice has encouraged cooperation between government and other stakeholders in standards set up and implementation.

Food safety governance and good practices for better rulemaking  341 As a regulatory tool, standards-setting is widely used in the social regulation of food safety. Compared with licensing as a premarket regulatory tool or the information-driven post-market disclosure-through-labeling rules and norms, the extent of intervention introduced by standards is moderate. Moreover, standards per se can be regarded as a toolbox and be divided further into identity standards, performance standards and target standards, which vary by the degree of government intervention. Standards are, however, a costly set of tools, given the expenses incurred in gathering information, analyzing that information, and organizing it into meaningful and actionable processes. Private standards are sometimes at odds with public standards, though they are not necessarily incompatible in such instances. Government regulations focused on standardization may restrain consumers’ choices since they are characterized by differentiation.17 Therefore, it is proper to rely on standardization to guarantee food safety as a bottom line. But when it comes to quality attributes other than health issues, standards of information regulation can be much more adaptive to require business operators to provide certain information. Moreover, public standards can be informed by private standards and a diverse array of stakeholders. Under the Chinese Food Safety Law, standardization provides an essential institutional arrangement for food safety assurance. Decision-makers who engage in standards-setting face challenges in providing cost-effective standards for both compliance and regulation. For this reason, stakeholders are invited to participate in an open process, which can help improve the responsiveness and effectiveness of regulation.18 This process helps bring in experts in food science, law and regulation, and other professionals familiar with food technology, logistics, and supply chains. Nowadays, considering experts’ opinions has become a formal procedure embedded in government decision-making. Yet, experts from the academic community may lack experience in the food industry. This creates the need for industry stakeholders to express concerns or interests in different decision-making stages. This participation can promote the design and implementation of rules practically and cost-effectively. This process permits technology, knowledge, and information of business stakeholders, including those inside and outside China, to improve regulation. In practice, regulatory departments have increasingly paid attention to stakeholders during the decision-making process in developing both legal and technical rules. For example, the Measures on Food Safety Standard Management in China provide procedural requirements for participation by stakeholders. Any human or legal entity has the right to propose a project on national food safety standards. When the regulatory authority decides to establish or revise a national food safety standard, the concerned project must be publicly published. This is followed by the calling for collaboration among research institutions, educational institutions, and academic and industry associations to draft a national food safety standard. The drafted national food safety standard is then published for public comments after an internal review. Accordingly, food business operators can participate in the different stages for standards setting if there is a technical need for a newly developed product or production process. It can be said that the increasing openness and transparency of the decisionmaking process of standards expanded consideration of the practical needs of industry in the formulation of a rule. For this reason, the people responsible for compliance management at food companies handle 17

  赵鹏： 《风险社会的行政法回应》 ，中国政法大学出版社，2018年.   应飞虎： 《公共规制中的信息工具》， 《中国社会科学》2010年第4期.

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342  Research handbook on international food law both internal and external communications. The input of this type of manager in the standards-making process can help promote rational consideration in rulemaking and increase the operability of the rules. A helpful case study on this dynamic in standards-making involves the Beijing-based convenience store Bianlifeng, which provides self-manufactured perishable and non-perishable food. Its specialty is to optimize big data for in-store management and supply-chain management. Given the challenges caused by perishable foods and their brief shelf lives, Bianlifeng has established a cold-chain logistics system to ensure food products, such as ready-to-eat foods, reheated foods, and foods prepared in stores, maintain their safety and integrity until they reach the end consumer. Further, strict controls on temperature and climate during storage and distribution have been provided to ensure the food products’ sustained freshness and nutrition. These technical inputs are an advantage of Bianlifeng, and it develops and uses them systemically. For instance, the company applies them to building smart controls to bolster and manage whole-process traceability, real-time temperature controls based on electronics, and data-sharing and automation, all of which are integrated into cold-chain logistics. As a result, food safety is secured throughout the whole supply chain, and food waste is reduced significantly. A national mandatory standard on Hygiene Practice on Food Cold Chain as a national food safety standard has been drafted by the National Food Safety Assessment Center together with the Cold Chain Committee of the China Federation of Things in 2019 and made available for public comment. This standard provides rules on cold-chain management from the perspective of equipment, delivery, storage, personnel and internal systems, product traceability, and recalls. Its scope covers temperature controls from post-production to marketability for all food products, provided they are in transportation or storage. As the first national food safety standard on cold-chain logistics, it has received considerable attention from the food industry. A communication platform has been provided for companies to participate in discussions about the standard, including a workshop with experts from academic communities and regulatory departments. Taking advantage of the communication platform, Bianlifeng, as a newly emerged retailer, organized a workshop and spot visits to assist experts in understanding the status quo of cold-chain management in retailing businesses and the keys to smart self-regulation. For example, through these collaborations, participants came to understand that the cold chain can contribute to restraining the growth and reproduction of microorganisms rather than killing them directly. Through its innovation and process developments, Bianlifeng has been able to standardize much of its transportation and storage operations, which have become key indicators in ensuring food safety and quality. Bianlifeng has also recognized that temperature zones could improve the effectiveness of cold-chain management, and consequently, it has adopted updated standards to ensure this would happen. This case demonstrates the importance of participation by the food industry to promote cooperation with the government. The unique aspect of China is that since national food safety standards are compulsory, responsiveness to challenges in business practice is a precondition for an effective application. Thus, formulation and revision of national food safety standards is a mission of the government to modernize its food safety regulatory approach and the food industry’s business to make it adaptive to the industry’s characteristics and development.

Food safety governance and good practices for better rulemaking  343

6. STATE OF THE ART IN SELF-REGULATION AND THE CASE OF CARGILL For many in the food industry, it is commonly believed that food safety is non-competitive. Still, food industry efforts to provide safer food are a never-ending pursuit. Notably, emerging technologies are used by food companies in their self-regulation to ensure food safety or fight against new or potential dangers that directly or indirectly affect food. Undoubtedly, food safety will continue to evolve as companies adapt and respond to different issues that pose safety risks to human health and life. It is sensible, then, that the concept of food safety in the Chinese Food Safety Law has integrated the idea of nutritional safety. As defined in Article 150, food safety means the assurance that the food is nontoxic, harmless, and compliant with reasonable nutritional requirements and will not cause any acute, chronic, or potential hazards to human health. For example, Measures on School Food Safety and Nutritional Health deals with nutrition. Compared with other hazards, like chemical or biological hazards, government regulation is still lacking, but with the introduction of blockchain-based traceability, the so-called One Health concept has made many in the food industry aware that food safety cannot be ensured if the health of the environment, animals, or plants is in danger. So, the food industry now considers a broad concept of food safety: caring for animal health is a sustainable way to ensure food safety and satisfy different consumer demands. This is illustrated in foods of animal origin. Food of animal origin refers to food produced from animals and animal products and is an important source of protein. With the increasingly available income and improved living conditions throughout China, the demand for food of animal origin, like meat and dairy products, raises food security and food safety concerns. It is thought in China that the supply of pork and staple foods is a core issue of food security due to Chinese consumption trends. That is to say, raising pigs and other animals provides an important source of income while ensuring nutritional self-sufficiency for farmers. Meanwhile, the outbreak of animal diseases may result in economic loss and occupational risks for farmers and foodborne diseases for the public. Foodborne diseases caused by Salmonella are common health issues for both animal and human health since if Salmonellacontaminated foods, like eggs or chicken, enter the supply chain, the consumption of these foods without proper preparation and cooking can cause illness. Historically, food crises have caused public concern for food safety, and many are directly linked to foods of animal origin, including the mad cow disease crisis in the European Union and the melamine incident in China. The African swine fever and ongoing COVID-19 pandemic have demonstrated the complex connection between animals and humans from the perspective of food security and food safety. In view of this, one of the better government actions regarding health in general and food in particular is to improve the regulation of animal health and welfare, including feed safety and animal disease prevention and control. The concept of One Health was created to emphasize the connection between public health, animal health, and environmental health, including the relationship between the cause, host, and environment in disease ecology. For instance, many zoonotic diseases are acquired through contact between humans and animals, animal products, or common carriers, like foods of animal origin. Therefore, health issues also require a comprehensive perspective and multidisciplinary cooperation. Similarly, the idea of One Health has been applied to food safety to discuss the perspective of health, given the concern between human health and

344  Research handbook on international food law animal health.19 More importantly, such methodology can provide a platform to promote coordination among the different organizations involved in food safety and solve problems related to food safety and climate change in an integrated way. For example, the traditional role of veterinarians is to set standards for animal health, monitor compliance management at the primary production stage, and prevent and control animal diseases. With the idea of One Health, these veterinarians can play a much more active role in health protection and environmental protection, such as by providing professional advice on the use of antibiotics, environmental pollution, good hygiene practices, and sustainable breeding methods. Additionally, biosecurity is becoming increasingly important in animal health management, and it has been regarded as vital in protecting animal health and welfare. In this aspect, biosecurity mainly refers to protecting animals from human behavior. In China, legislation has been promulgated to protect animal health after the outbreak of the COVID-19 crisis, including the newly established Biosecurity Law, which aims to prevent and control animal epidemics, and the revised Animal Epidemic Prevention Law, which attempts to improve existing institutional arrangements. Based on this new legislation, the emphasis on animal health and food of animal origin at the stage of primary production can reduce animal diseases and the resulting economic risks, and they ensure food safety and the prevention of foodborne health risks from farm to folk. Moreover, as food systems increasingly focus on sustainable development, the food-supply-chain-based management from farm to fork should integrate the idea of One Health to regulate better animal health, environmental health, and human health systemically. Cargill provides a real-world example of how the One Health paradigm can succeed. Established in 1865, Cargill is a diversified multinational enterprise group that aims to provide food, agriculture, finance, and industrial products and services across the globe. In China, Cargill Animal Protein (Anhui) Co., Ltd. (CPC) is set up to provide products and services along the whole supply chain, such as feed production and incubation breeding for chickens, primary poultry production, and deep processing. Its core goal is to become a leader in China in providing high-quality animal protein at affordable prices. In recent years, different customers and the whole industry have continuously increased their requirements on animal welfare in the process of broiler feeding and management to improve the health of chickens and to enhance food product quality, thus promoting the sustainable development of broiler farming in a cost-effective way. Generally speaking, CPC implements Cargill’s global strategy on animal health when it conducts business in China, such as through engagement in animal-welfare protection in compliance with current laws and regulations. These measures can provide a suitable growth environment for animals and aid them in meeting their health and nutritional needs. CPC has set up a detailed management system covering the whole supply chain that puts into practice the so-called Five Freedoms20 addressing animal rights and rules in China. First, it relies on prescribed, top-down standards to ensure animal-welfare standards can be integrated into daily management. For example, CPC has set up a professional group dedicated to promoting the implementation of Cargill’s animal-welfare standards. This group has introduced   孙娟娟： 《食品安全的立法发展：基本需求、安全优先与“同一健康”》， 《人权》2016年第5期.  The globally recognized Five Freedoms in animal welfare are: freedom from hunger and thirst; freedom from discomfort; freedom from pain, injury, or disease; freedom to express normal and natural behavior; and freedom from fear and distress.

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Food safety governance and good practices for better rulemaking  345 advanced ideas on animal welfare to improve the level of animal protection in China, and it actively deliberates with domestic industry associations. Internally, the group implements animal-welfare standards and improves regulatory compliance by providing training on animal welfare and related standards. Such concurrent external and internal efforts have played essential roles in promoting the development of the CPC business from the perspective of animal-welfare protection. Second, there is a strict management model for animal health. CPC has an advanced animal-protection testing laboratory and a professional team of veterinarians for farm service. For example, they can formulate and implement complete immunization procedures, feeding management, and medication management to support breeding, while veterinarians can take advantage of HTSi smart management systems to evaluate the health status of chickens at different stages and responsively improve management. Third, CPC has compressive measures for biosecurity, including strict vehicle disinfection protocols, personnel controls, screening of vaccine drug suppliers, and pest prevention and control procedures. CPC conducts regular training and biosecurity examination for its employees, and it conducts an annual comprehensive review of on-site implementation of biosecurity for its farmers. Finally, CPC uses advanced technology and external cooperation to build its animal-welfare system. CPC has also established long-term cooperation with China Animal Health and Food Safety Alliance to promote its food safety business from the perspective of animal health and welfare, such as through tracing the production process by blockchain technology and, in particular, the use of antibiotics and product safety.

7. CONCLUSION As shown in the historical evolution of food safety regulation, whether regulators engage in regulation and intervene in the activities of regulatees may be decided by economic and social developments and then updated accordingly. Government intervention is unavoidable in the case of market inefficiency, such as the failure of self-regulation concerning consumers’ rights and interests around animal welfare or nutrition or preventing serious food safety issues. Command-and-control regulation is sometimes necessary to specify what can be done by business operators, including standards of identity to restrain the composition of food or detailed hygiene rules related to equipment, grounds and facilities, personnel, and the activities of companies throughout the supply chain. The external pressure from government’s command-and-control regulation can push business operators to take compliance seriously and improve internal controls. But when regulation in the form of one-size-fits-all leaves less flexibility for business operators, food companies frequently turn to self-regulation and co-regulation to build a friendly and effective regulatory environment and promote regulation of tit-for-tat. Furthermore, either for regulators or regulatees, newly advanced technology can improve regulation. Comparatively, a regulatee may take advantage of technology and information to innovate a new product or business model, thus creating regulatory gaps. When regulators have to consider whether it is necessary to fill such gaps and how to fill them, self-regulation and its contribution to positively serving public interests are important factors for the government in adopting some form of deregulation in exchange for co-regulation. To promote co-regulation in such a situation,

346  Research handbook on international food law communication between the regulatee and regulator can help the latter make a responsive regulatory decision while enhancing its understanding of the unique challenges facing the food industry. The good practice of certain food companies from the perspective of regulatory compliance illustrates the necessity of communication between regulator and regulatee. Comparatively, sharing the experiences from the cases in this chapter concretely provides food business operators, food policy experts, food safety regulators, and others with the various regulatory approaches available. As a common recognition, food business operators bear primary responsibility for food safety. So ever-increasing strict obligations in legal and technical rules are provided to encourage them to carry out internal controls, which should transform these external, government-imposed rules into internal self-regulation and cooperative co-regulation. Each form of regulation must be carried out as part of a robust compliance management system. Combined with periodic government inspections, cooperation between regulatee and regulator is supposed to ensure food safety. That is to say, regulatory compliance is driven by government regulation but mainly implemented by the business operator on its own, which is not only aimed at ensuring food safety by introducing organizational arrangements and compliance processes but also through innovation in improving food quality or nutrition that go beyond minimum safety requirements. As a trend in China, government regulation focuses on pre-market activities and shifts to co-regulation for post-market activities, which lowers compliance costs for the business operator with a good reputation. These good practices can assist regulators in their public health mandates and help them to understand food industry internal controls and management-based regulations. Last but not least, good industry practice also provides insight for researchers to figure out how regulatory theory is applied in China, such as in the case of meta-regulation or management-based regulation. The aforementioned cases are, after all, such regulatory theories in action.

17. Codex Alimentarius at home and abroad: the regulatory costs of developing and implementing international and national food-safety standards Brian A. Fink

I. INTRODUCTION Food supply chains are complicated. They are often connected by links located in different corners of the world. Growers may produce a raw agricultural commodity in Colombia, an aggregator in Brazil may import that commodity for export to Canada, manufacturers and processors there may alter or incorporate that commodity into a processed food product, which itself comprises other ingredients traveling around the globe, and those Canadian companies may sell their products to an importer in Japan. In the end, consumers in Tokyo may acquire those products from store shelves or a school cafeteria. At each link, something may occur to jeopardize the safety of that commodity. Disease, spoilage, foreign debris, toxins, and other hazards may unintentionally wind up without notice in a batch of the commodity, a batch of the altered commodity, or a batch of the final product. Actual oversight by any one company or government is impractical and impossible, but the potential for harm is not merely ineluctable. It is a reality that must be confronted. This chapter documents how nations are confronting this fact through the global regulation of food safety. The international trade of food is largely governed by multilateral agreements, the principal objectives of which are to ensure that national food-safety regulations do not unjustifiably hamper the movement of food across borders while also ensuring such food is safe for consumption. These agreements do not themselves establish the global regulation of food safety; rather, they incorporate food-safety rules, standards, and guidelines established through consensus by trade members and embodied in the Codex Alimentarius. In this global context, food safety is most aptly viewed through the commitment of trade members to free trade. For this chapter, food safety refers to the standards, guidelines, and recommendations established by the Codex Alimentarius Commission relating to food additives, veterinary drug and pesticide residues, contaminants, methods of analysis and sampling, and codes and guidelines of hygienic practice.1 In other words, food safety in international trade deals with all those hazards, whether acute or chronic, that can make food injurious to the health of the consumer.2  Agreement on the Application of Sanitary and Phytosanitary Measures, annex A, Apr. 15, 1994 [hereinafter SPS Agreement], www​.wto​.org​/english​/tratop​_e​/sps​_e​/spsagr​_e​.htm (definition of “International standards, guidelines and recommendations”). 2   Food and Agric. Org. of the United Nations & World Health Org., Assuring Food Safety and Quality: Guidelines for Strengthening National Food Control Systems 3 (2003). 1

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348  Research handbook on international food law The Codex Alimentarius, therefore, is the primary focus of this chapter, as well as its use in international trade agreements. The Codex Alimentarius, which generally comprises voluntary food-safety standards, is developed bit by bit. Representatives from nations discuss discrete food-safety problems, offer solutions grounded ostensibly in science, refine those solutions through multilateral dialogue, and decide whether to adopt those solutions as a standard, policy or guideline under the Codex Alimentarius’ auspices. Guided by the principle of regulatory harmonization, these representatives work toward developing a food-safety code that nations may adopt themselves as national legislation. Even nations that do not adopt Codex Alimentarius standards may still find themselves bound by them when trade disputes arise. International trade agreements bolster the prominence of Codex Alimentarius by treating it as the de facto food law. But as this chapter shows, these global efforts to produce and trade safer food through adherence to Codex Alimentarius come with costs borne by national and local lawmakers and standards-setters. Specifically, these costs manifest as an erosion of legal sovereignty and a threat to community values. This chapter does not attempt to reconcile this apparent battle over norms and policies, nor does it prioritize one set of costs over another. Rather, it demonstrates how these costs are becoming more obvious not just in one nation or among one industry but among numerous nations and industries.

II. CODEX ALIMENTARIUS AND THE HARMONIZATION OF NATIONAL FOOD-SAFETY LAWS Food has been an object of international trade for millennia. Consequently, those who regulate trade have long been concerned with the safety of food imports and exports. Some of the earliest extant historical sources refer to the regulation of food safety, food purity, and fair dealing in food.3 With the advent of industrial and scientific breakthroughs in food manufacturing, such as canning, pasteurization, and food chemistry, these regulations have undergone comprehensive and tremendous transformation. The Codex Alimentarius, which drew directly and indirectly from these historical food laws, has been at the heart of that transformation.4 A. Codex Alimentarius’ Historical Roots in Scientific Policy With the growing industrialization of the food supply, a set of food standards arose in the Austro-Hungarian Empire between 1897 and 1911. Known as the Codex Alimentarius Austriacus, or Austrian Food Code, these voluntary standards, codified in various chapters, were used by courts to determine the standards of identity for foods and to help facilitate trade within the monarchy.5 In coordination with pharmacists and doctors, food chemists and   See, e.g., Michele Mariano Arpaia, The Right to Safe Food: A Short Path to the Roots of the International Protection of Food Safety, 12 Eur. Food & Feed L. Rev. 335, 335–36 (2017) (providing examples from ancient Egypt, ancient Greece, and ancient Rome). 4   Food & Agric. Org. & World Health Org., Understanding Codex, at 1, U.N. Sales No. CA1176EN/1/09.18 (5th ed. 2018) [hereinafter Understanding Codex 5th ed.], www​.fao​.org​/3​/ ca1176en​/CA1176EN​.pdf. 5   Food & Agric. Org. & World Health Org.Understanding Codex, at 2, U.N. Sales No. I5667E/1/05/16 (4th ed. 2016), www​.fao​.org​/3​/i5667e​/i5667e​.pdf; Katharina Koßdorff, The New Austrian Food Safety and Consumer Protection Act, 5 Eur. Food & Feed L. Rev. 286, 287 (2006). 3

Codex Alimentarius at home and abroad  349 other scientists combined more-established food standards from Germany and Britain with their comprehensive accumulation of examination methods, quality grades, and food denominations.6 Relying on these food standards, the monarchy could develop and execute analysis procedures, regulate food production, standardize packaging, ban the use of food additives, and define the composition of food.7 As a pharmacopeia classifies medicines, chapters of the Codex Alimentarius Austriacus established scientific standards for fats and oils, bread, milk, cheese, meat and meat products, and cereals, as well as formal definitions of “adulteration,” “deception,” and “hazard to human health.”8 During World War II, the Codex Alimentarius Austriacus gave way to the German Food Code, but after 1945 it returned and was applied until 1951. Having undergone numerous amendments, it was consolidated and published as a new piece of legislation.9 The legacy of the Codex Alimentarius Austriacus eventually became memorialized in the Codex Alimentarius. Not until the twentieth century, with the explosive advent of industrialized and increasingly global supply chains, as well as a more sophisticated understanding of pathogens and poisons, did national governments coalesce and attempt to create a unified regulatory system for the international trade of food. The Codex Alimentarius represents a deliberate effort among sovereign nations to bring economic fairness and trustworthiness to the cross-border transportation of food products. It is rooted in the dual purpose of protecting consumer health and removing barriers to the trade of food products.10 The Codex Alimentarius was established by the Food and Agriculture Organization of the United Nations (“FAO”) and the World Health Organization (“WHO”) in 1963.11 Thus, from its very beginning, in order to achieve these purposes, Codex Alimentarius has been a science-based activity among scientific experts across an array of disciplines. It comprises expertise from food chemists, food microbiologists, mycologists, food technologists, and myriad other food scientists. The FAO and WHO, meanwhile, act as facilitators and supporters of the food-related scientific research and investigation undertaken by these experts, and that inform and inspire Codex Alimentarius’ food-safety standards we can now trust today.12 B. Codex Alimentarius and the Pursuit of Legal and Regulatory Harmonization The Codex Alimentarius compiles harmonized international food standards, guidelines, and codes of practice.13 The food-safety standards discussed in this chapter constitute many of these standards, guidelines, and codes of practice. With scientific policy as the foundation of the Codex Alimentarius, harmonization is a central goal of its development and  Uwe Spiekermann, Redefining Food: The Standardization of Products and Production in Europe and the United States, 1880–1914, 27 Hist. & Tech. 11, 17 (2011).  7   Id. at 17–18.  8  Rep. of the Nineteenth Session of the Joint FAO/WHO Codex Alimentarius Comm’n, Statement by the Delegation of Austria, Ref. No. ALINORM 91/40 (July 10, 1991), www​.fao​.org​/3​/T0490E​/ T0490E07​.htm​#app5.  9  Koßdorff, supra note 5. 10   Codex Alimentarius Commission, Procedural Manual 20 (21st ed. 2013), www​.fao​.org​/3​/ i3243e​/i3243e​.pdf. 11   Understanding Codex 5th ed., supra note 4, at 3. 12  Food & Agric. Org. & World Health Org., Codex and Science, Understanding the Codex Alimentarius, M-83 (1999), www​.fao​.org​/3​/w9114e​/ W9114e07​.htm. 13   Understanding Codex 5th ed., supra note 4.  6

350  Research handbook on international food law implementation.14 The Codex Alimentarius may be the only sustained global effort among governments, industry, and other stakeholders to harmonize national laws and regulations at a global scale.15 Food-safety laws and regulations of trading nations that are harmonized with one another generally reduce barriers to trade, thereby promoting it and protecting the health and safety of consumers, who increasingly consume food products grown, manufactured, and distributed within global supply chains.16 At its core, harmonization means the establishment, recognition, and application of common sanitary and phytosanitary measures by different members to trade agreements.17 For purposes of this chapter, the trade agreements of most relevance to Codex Alimentarius standards are the Agreement on the Application of Sanitary and Phytosanitary Measures (“SPS Agreement”) and the Agreement on Technical Barriers to Trade (“TBT” Agreement). i. SPS Agreement The SPS Agreement is concerned specifically with measures to protect human, animal, and plant health. In the realm of food safety, the SPS Agreement refers to codes and guidelines for hygienic practices, contaminants, food additives, methods of analysis and sampling, and veterinary drug and pesticide residues. This agreement identifies Codex Alimentarius standards, guidelines, and recommendations in these areas to be the international benchmark for food-safety standards.18 Therefore, trading nations must account for the SPS Agreement’s benchmark mandate as they develop and refine their own food-safety standards and are strongly encouraged to base these standards on those contained in the Codex Alimentarius. ii. TBT Agreement The TBT Agreement refers more broadly to technical regulations and standards designed to protect human health and safety, especially through transparency and information. A technical regulation is a document that “lays down product characteristics or their related processes and production methods, including applicable administrative provisions, with which compliance is mandatory.”19 It could also include terminology, symbols, packaging, marking, or labeling requirements applied to a product, process, or production method.20 A standard is similar to a technical regulation but is characterized by its common and repeated use rather than a compulsory requirement to comply with it.21 These regulations apply not only to food but to all commodities. Such regulations aim to prevent deceptive trade practices and include labeling requirements, fair-trade practices,   See J. H. V. Davies, The Future of the Codex Alimentarius Commission, 21 Food, Drug & Cosmetic L. J. 201 (1966). 15  Bernd van der Meulen, Codex Alimentarius: The Impact of the Joint FAO/WHO Food Standards Programme on EU Food Law (Eur. Inst. for Food L., Working Paper Series 2018/04, 2018), https:// papers​.ssrn​.com ​/sol3​/papers​.cfm​?abstract​_id​=3192451. 16   Neal D. Fortin, Food Regulation: Law, Science, Policy, and Practice 482 (2d ed. 2017). 17  SPS Agreement, supra note 1, at art. 3.3. 18   Food & Agric. Org. & World Health Org., Enhancing Participation in Codex Activities: An FAO/WHO Training Package, at 71–73 (2005), www​.fao​.org​/3​/y5884e​/y5884e00​.pdf. 19  Agreement on Technical Barriers to Trade, annex 1, para. 1, Apr. 1994 [hereinafter TBT Agreement], www​.wto​.org​/english ​/docs​_e​/ legal​_e​/17​-tbt​_e​.htm. 20   Id. 21   Id. at para. 2. 14

Codex Alimentarius at home and abroad  351 classifications and definitions, essential composition and quality factors, and packaging and measurement requirements.22 Conformity assessment procedures are technical procedures, such as sampling, testing, verification, inspection, registration, and certification, which, whether used directly or indirectly, help determine whether products fulfil the requirements of relevant regulations and standards.23 Article 2.6 of the TBT Agreement requires members to harmonize technical regulations to the extent feasible.24 This includes the Codex Alimentarius. iii. Harmonizing food safety regulations for the benefit of trade As enforced through these agreements—the SPS Agreement and the TBT Agreement—harmonization of food-safety regulations occurs primarily in two ways: global standard-setting and equivalency.25 Because the primary objective of both pathways is to achieve reductions in trade barriers, innovations in food-safety regulation, at least initially, occupy a secondary set of values and may be procedurally dismissed as a threat to the free movement of foods across the globe. The first primary method of harmonization is global standard-setting. The SPS and TBT Agreements require international standards as the basis for domestic measures, with deviation from such standards tolerated in only limited circumstances.26 The pertinent standards are those contained in the Codex Alimentarius, made actionable through the SPS and TBT Agreements. Both of these agreements are annexed to the Marrakesh Agreement, which was signed by 124 national governments and the European Union on April 15, 1994, and which, building on the multilateral trade negotiations of the Uruguay Round, created the WTO.27 Through its annexed trade agreements, the Marrakesh Agreement established a comprehensive legal framework for facilitating and adjudicating international trade, reducing tariffs and reforming their implementation, and creating a multilateral framework for trade in services and goods.28 Because of its emphasis on more open trade, the TBT Agreement lays out the basic rules by which members of the trade agreements may restrict trade. Particularly, it seeks to keep relevant regulations, standards, testing, and certification procedures implemented by such members free from unnecessary trade obstacles.29 Notwithstanding this, members are permitted some leeway when confronted with developing and adopting technical regulations to fulfill a legitimate purpose, such as for national security, the prevention of deceptive practices, and the protection of human health or safety, animal or plant life or health, and the environment. In

  Enhancing Participation in Codex, supra note 18, at 73.  TBT Agreement, supra note 19, at para. 3; Technical Information on Technical Barriers to Trade, World Trade Org., www​.wto​.org​/english​/tratop​_e​/tbt​_e​/tbt​_info​_e​.htm (last visited Dec. 18, 2022). 24  TBT Agreement, supra note 19, at art. 2.6. 25   See, e.g., Lori M. Wallach, Accountable Governance in the Era of Globalization: the WTO, NAFTA, and International Harmonization of Standards, 50 U. Kan. L. Rev. 823, 832 (2002). 26   Understanding Codex 5th ed., supra note 4, at 16; SPS Agreement, supra note 1, at para. 2 (definition of “Harmonization”). 27  Marrakesh Agreement Establishing the World Trade Organization, Apr. 15, 1994, 1867 U.N.T.S. 154, www​.wto​.org​/english​/docs​_e​/ legal​_e​/04​-wto​_e​.htm. 28   Id. 29   Understanding the WTO: The Agreements: Standards and Safety, World Trade Org., www​.wto​ .org​/english ​/thewto​_e​/whatis​_e​/tif​_e​/agrm4​_e​.htm (last visited Dec. 18, 2022). 22

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352  Research handbook on international food law these situations, the TBT Agreement permits technical regulations to be trade-restrictive, but only to the extent necessary.30 The SPS Agreement also looks to global standard-setting. It permits members to harmonize their food-safety laws and regulations with the Codex Alimentarius in three ways: (1) by basing their laws and regulations on the Codex Alimentarius; (2) by conforming their laws and regulations to the Codex Alimentarius; and (3) by introducing science-justified laws and regulations that result in a higher level of protection than that afforded by the Codex Alimentarius.31 Thus, if a member seeks to implement relevant laws and regulations outside the Codex Alimentarius, it has only one route to ensure harmonization. If the Codex Alimentarius standard provides one level of public-health protection, a member may deviate from that standard with its own similar regulations, provided those regulations have higher levels of protection and are based on a scientific justification.32 The second primary method of harmonization is equivalency. For myriad reasons, importing and exporting countries administer and operate under different food inspection and certification systems, such as because of differences in the prevalence of certain food-safety hazards, differences in national agenda-setting, differences in national regulation and management of food-safety risks, and differences in the historical development of food-safety regimes.33 An importing country could choose to require an exporting country to adopt specific means for achieving certain food-safety outcomes. This may require, however, a complete overhaul of the exporting country’s existing food-safety legal system and processes. The expenses of establishing and managing this overhaul, which industry and consumers would certainly bear, and the loss of efficiency in forcing its implementation and execution could be substantial. Permitting the recognition of legal and regulatory equivalence avoids these potential economic setbacks and allows an importing country to better allocate its importation resources, including inspections, sampling, and record verification, to concerns of higher priority. Moreover, as trade relationships between nations develop, those trading partners can build knowledge of and trust in the other’s protections and procedures. To promote trade while protecting the health and safety of consumers, the SPS Agreement allows importing countries to achieve their food-safety requirements through a demonstration by the exporting country that the exporting country’s food-safety requirements are just as protective as the importing country’s measures.34 Put differently, equivalence allows the competent authority or authorities of an exporting country to determine the most efficient and cost-effective methods of satisfying the agreed-upon food-safety requirements of importing countries.

 TBT Agreement, supra note 19, at art. 2, para. 2.2.  SPS Agreement, supra note 1, at paras. 1–3. 32  The SPS Agreement further provides that distinctions member states make in their levels of protection must not be arbitrary or unjustifiable. SPS Agreement, supra note 1, at art. 5, para. 5. 33  Codex Alimentarius, Guidelines on the Judgement of Equivalence of Sanitary Measures Associated with Food Inspection and Certification Systems, CAC/GL 53-2003, at sec. 1, para. 1 (2008), www​ .fao​.org​/input ​/download ​/standards​/10047​/CXG​_053e​.pdf. 34  The SPS Agreement refers to these food-safety requirements as “appropriate level of sanitary and phytosanitary protections,” which is often abbreviated as ALOP. SPS Agreement, supra note 1, at art. 4, para. 1. 30 31

Codex Alimentarius at home and abroad  353 The SPS Agreement encourages harmonization by presuming that national standards aligned with Codex Alimentarius standards conform with the agreements’ various obligations.35 National food regulations equivalent to the relevant international food standards in the Codex Alimentarius are considered harmonized with one another.36 Equivalence can be codified in bilateral and multilateral trade agreements among nations in connection with specified sanitary or phytosanitary measures.37 For instance, the New Zealand Ministry for Primary Industries (“MPI”), which is responsible for, among other things, implementing and administering New Zealand’s food-safety regulatory system, has entered into numerous equivalence agreements with various nations. In 2012, it signed the Food Systems Recognition Arrangement with the U.S. Food and Drug Administration (“FDA”) and in 2015 signed a Cooperative Arrangement with the FDA.38 These arrangements represent a shared, science-based, risk-based approach to import inspections and export confidence based specifically on sanitary measures defined in the SPS Agreement. Among the stated purposes of these arrangements are each country’s intention to “take into consideration, as appropriate, international standards developed by the Codex Alimentarius Commission and the World Trade Organization for Animal Health Guidelines” and to “maximize, where appropriate, the use of existing regulatory assurance mechanisms in the exporting country to provide assurances for the safety of imported products from the exporting country.”39 MPI has entered into similar equivalence agreements with Australia, Brunei, Chile, China, the European Union, Hong Kong, Malaysia, and Singapore.40 This example illustrates a localized effect of the equivalence pathway. Namely, the formalization of equivalence agreements between trading nations can lead to improvements in national food-safety regulations at the same time it facilitates free trade. The exchange of information and resources between trading partners naturally incentivizes self-reflection. Moreover, agreements like the cooperative arrangement between MPI and FDA allow each nation to establish working groups or other deliberative bodies to address product- or commodity-specific issues and collaborate on solutions to problems arising from such issues. Harmonization of national food safety is a vital component of the international trade in food products, particularly as supply chains increasingly comprise global suppliers and manufacturers. Consumers in importing countries have few if any other means to trust that the foods they consume are free or should reasonably be free from biological, chemical, and physical hazards. Minimum international standards, as structured by the harmonization provisions of international trade, can provide that trust. Whether covering raw agricultural products or manufactured food products, these minimum standards aim to ensure the domestic standards of one supplying country may not end up tainting multi-ingredient foods sold to an importing   Understanding Codex 5th ed., supra note 4; SPS Agreement, supra note 1, at art. 4, para. 1.  Wallach, supra note 25, at 833. 37  SPS Agreement, supra note 1, at art. 4, para. 2. 38   FDA-New Zealand Cooperate in the Interest of Safety and Defense of Human Food and Animal Feeds, U.S. Food & Drug Admin. (Jan. 31, 2018), www​.fda​.gov​/international​-programs​/cooperative​-arrangements​/fda​-new​-zealand​- cooperate​-interest​-safety​-and​- defense​-human​-food​-and​-animal​-feeds. 39   Id. 40   New Zealand Food Safety Authority, NZFSA Policy on Food Safety Equivalence: A Background Paper 6 (2010), www​.mpi​.govt​.nz​/dmsdocument​/23110​-Policy​-Statement​-Food​ -safety​-equivalence​-A​-background​-paper. 35

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354  Research handbook on international food law country.41 Harmonization’s contribution to self-determined national food-safety regulations can be significant but is largely a byproduct of its goal of maintaining free trade in food.

III. COMPETING FOOD-SAFETY STANDARDS: INTERNATIONAL HARMONIZATION VS. NATIONAL POLICIES Nations that are members of the World Trade Organization (“WTO”) rely on the Codex Alimentarius to assist with resolving disputes about the trade in food products. As discussed in section II, the Codex Alimentarius performs as a set of baseline food standards by which WTO nations must abide concerning the import and export of foods. Due to its placement in the SPS Agreement, the Codex Alimentarius acts as “the world’s reference point for international food trade” and the “benchmark against which national food regulations are evaluated within the legal parameters of the [WTO].”42 The Codex Alimentarius’ very nature, then, requires multiple levels of decision-making and consensus to be effective as a global regulatory tool. Its inputs require the contributions from WTO nations, which an intergovernmental body called the Codex Alimentarius Commission (“CAC”) receives and uses to create eventually adopted standards. Its outputs require the WTO nations to ensure their food-safety regimes align or are not inconsistent with such standards. These standards must be based on and justified by science. Consequently, standards not based on science are generally deemed unjustifiable and risk legal challenge and international admonishment, despite their no less legitimate value to the nations proposing or adopting them. A. The Internationalization of Food-Safety Standards The CAC is an intergovernmental body responsible for implementing the Joint FAO/WHO Food Standards Programme, which was created in the early 1960s to develop international standards to protect public health and minimize disruption of the international food trade. The Codex Alimentarius was established to administer this program.43 Article 1 of the Statutes of the Codex Alimentarius Commission outlines the CAC’s purposes, among which are protecting the health of consumers and ensuring fair practices in the food trade, in line with the Joint FAO/WHO Food Standards Programme.44 Membership to the CAC is open to all member nations and associate members of the FAO and WHO that are interested in international food standards.45 The CAC’s Executive Committee, which comprises the chair, three vice chairs, six regional coordinators, and seven elected representatives from the different geographical groups of the Codex Alimentarius, helps provide even representation among the CAC members.46 Moreover, the CAC may create   Fortin, supra note 16, at 482.   Fortin, supra note 16, at 483. 43   The WTO and the FAO/WHO Codex Alimentarius, World Trade Org. (last visited Dec. 18, 2022), www​.wto​.org​/english​/thewto​_e​/coher​_e​/wto​_codex​_e​.htm. 44  Codex Alimentarius Commission [CAC] Statutes, art. 1, www​.fao​.org​/3​/w5975e​/w5975e02​.htm. 45   Id. at art. 2. 46   Id. at art. 6; Executive Committee, Food & Agric. Org. & World Health Org., www​.fao​.org​/fao​ -who​-codexalimentarius​/committees​/executive​-committee​/about ​/en/ (last visited Dec. 18, 2022). 41

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Codex Alimentarius at home and abroad  355 subsidiary bodies as it deems necessary, subject to available funding,47 and the Executive Committee may create sub-committees to carry out various Executive Committee tasks.48 Subsidiary bodies include sub-committees on general subjects, such as food additives and food labeling; specific commodities, such as fresh fruits and vegetables and fats and oils; ad hoc intergovernmental task forces; and regional coordinating committees.49 The Statutes also provide means for other member and non-member nations to participate in CAC activities.50 As of August 2021, the CAC had 189 members, including 188 nations and one member organization (the European Union), covering more than 99 percent of the world’s population.51 The CAC’s mandates include preparing, drafting, and finalizing the international food standards to which the SPS and TBT Agreements refer.52 Codified procedures lay out eight steps by which the CAC elaborates such standards, which, on their face, provide transparency to the standard-setting process and are designed, in part, to give interested parties notice of upcoming topics. An accelerated five-step process is alternatively available, provided twothirds of voting members approve it.53 Though formalized, these procedures are often preceded by informal discussions among subsidiary bodies and other stakeholders. This allows opportunities for members and nonmembers to express their interests and reasonings.54 During these informal discussions, the Executive Committee conducts ongoing critical reviews to ensure that proposals for new work and draft standards meet the strategic priorities of the CAC and can be developed within a reasonable timeframe, with access and availability of scientific advice in mind.55 In general, the procedures for elaborating an international food standard, which often lasts several years,56 are as follows. Step 1: Considering the Executive Committee’s critical review, the CAC elaborates a standard and decides which subsidiary or other body should undertake it. That body becomes responsible for guiding the standard through development. Step 2: The Secretariat coordinates the preparation of a proposed draft standard, sometimes with recommendations from relevant stakeholders, depending on the nature of the draft standard.

 CAC, supra note 44, at art. 7.   Codex Alimentarius Commission, Procedural Manual, at rule V(4) (15th ed. 2005), www​.fao​ .org​/3​/a0247e​/a0247e02​.htm. 49   Subisidiary Bodies of the Codex Alimentarius Commission, Food & Agric. Org. of the United Nations & World Health Org., www​.fao​.org​/3​/y2200e​/y2200e0j​.htm. 50  CAC, supra note 44, at arts. 3–4. 51   Codex Alimentarius International Food Standards: Members, Food & Agric. Org. & World Health Org., (2001), www​.fao​.org​/fao​-who​-codexalimentarius​/about​-codex​/members​/en/. 52  CAC, supra note 44, at art. 1. 53   Procedures for the Elaboration of Codex Standards and Related Texts, Procedural Manual, at art. 4 (2005), www​.fao​.org​/3​/a0247e​/a0247e02​.htm. 54   Tom Heilandt et al., Institutions Involved in Food Safety: FAO/WHO Codex Alimentarius Commission (CAC), in Encyclopedia of Food Safety Vol. 4, at 348 (Yasmine Motarjemi ed., 2014). 55   Procedures for the Elaboration of Codex Standards, supra note 53, at art. 2. 56  Heilandt et al., supra note 54 at 349. 47

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356  Research handbook on international food law Step 3: The proposed draft standard is sent to CAC members and interested international organizations for comments. These comments cover all aspects, including potential economic implications. Step 4: Comments are sent to the Secretariat, who in turn sends them to the subsidiary or other body that has the power to consider such comments. Based on comments received, the subsidiary or other body may amend the proposed draft standard. Step 5: The proposed draft standard, which may have been amended, is sent to the Executive Committee for critical review and the CAC with a view to its adoption as a draft standard. In deciding whether to adopt the proposed draft standard, the CAC will consider the outcome of the Executive Committee’s critical review and comments from members and stakeholders. Debates may take place, as well. Step 6: Another round of comments ensues with the circulation of the draft standard by the Secretariat to members and interested international organizations. Step 7: Comments are again sent to the Secretariat, who in turn sends them to the subsidiary or other body responsible for considering such comments and amending the draft standard. Step 8: Having completed another round of review, comment, and amendment, the draft standard is sent to the Executive Committee for critical review and the CAC, along with any written proposals from members and interested parties for further amendments, with a view to adopting the draft standard. If adopted, the draft standard becomes a Codex standard and is subsequently published.57 With this formalized system of standard-setting, the CAC appears to operate like other advanced rules-bound administrative bodies. Namely, governments and national decisionmakers join the body through membership to the CAC, the body is organized into numerous specialized subsidiary bodies, the body is managed by an executive committee, and members enjoy equal access to proposing and voting on standards. Moreover, as an ongoing information-exchange platform, the elaboration process allows CAC members to stay abreast of technological progress, new products entering the global marketplace, and up-to-date food-safety and food-quality measures.58 Nevertheless, though the elaboration procedures overtly provide for member and stakeholder input, they have been criticized for their decision-making opacity, heavy reliance on scientific justifications, and lacking robust democratic participation. Because the SPS and TBT Agreements essentially result in binding global food-safety standards on importing and exporting countries, the CAC’s elaboration procedures may rightly be viewed as creating a sort of transnational governance. For some critics, this means “a form of legal regulation of globalisation which is neither public nor private, nor purely international, supranational nor totally denationalised.”59   Procedures for the Elaboration of Codex Standards, supra note 53, at arts. 3 and 5.   Enhancing Participation in Codex , supra note 18, at 4–5. 59  Dario Bevilacqua, The Codex Alimentarius Commission and Its Influence on European and National Food Policy, 1 Eur. Food & Feed L. Rev. 3, 8 (2006) (quotation marks omitted) (quoting Christia Joerges et al., Transnational Governance and Constitutionalism X (2004)). See, e.g., Alexia Herwig, The Application of the SPS Agreement to Transnational, Private Food 57

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Codex Alimentarius at home and abroad  357 In other words, the development of Codex Alimentarius standards does not occur linearly and strictly between CAC members. They originate from myriad public and private sources and are necessarily influenced by trade disputes among nations. Regardless, once set, these standards become the international benchmarks in food-safety disputes and associated national food-safety legislation and regulation. B. Codex Alimentarius Standards and National Food-Safety Policies When an importing country denies entry to the food products of an exporting country, that denial must generally be based on a Codex Alimentarius standard or its equivalent. On their own, Codex Alimentarius standards are voluntary, but through the SPS and TBT Agreements, these standards contain the de facto minimum food-safety requirements of international food trade. As discussed in section II, WTO members may adopt legislation and regulations that vary from Codex Alimentarius standards insofar as they provide a similar or greater level of protection or are otherwise scientifically justified. While the Codex Alimentarius recognizes that sovereign nations have their own unique food-safety regulatory regimes, it encourages members to harmonize their regimes with those of other members. These harmonization efforts are made more forceful by the SPS and TBT Agreements’ mandate that trading nations may not unnecessarily burden the trade of food and must justify any more restrictive deviation from the food-safety standards of the Codex Alimentarius based on scientific evidence. Food-safety standards tend to be numerical standards or process standards.60 Numerical standards refer to quantifiable limits and levels. For example, the numerous Codex Alimentarius maximum residue limits (“MRLs”) for pesticide residues in specific commodities or commodity groups are numerical standards based on reviews of appropriate toxicological literature and residue field data. Other numerical standards include MRLs for veterinary drug residue, contaminants, and food additives.61 Process standards refer to controls and safeguards set at a particular step or series of steps in the growing, harvesting, manufacturing, distribution, storage, or sale of foods. Risk-based preventive controls applied to the production of food, such as those found in Hazard Analysis and Critical Control Points (“HACCP”) systems or current good manufacturing practices (“CGMPs”), are examples of process standards. Standards may include characteristics of both numerical and process standards, as well as other classifications, but this academic distinction can help inform how countries rely on or are influenced by the Codex Alimentarius when developing and implementing their own foodsafety standards. Numerical standards are, by their nature, simpler than process standards to quantify. MRLs, for example, are calculable and measurable. Because the SPS Agreement considers analytical and sampling methods and MRLs based on the Codex Alimentarius to be scientifically justified and, therefore, legitimate barriers to trade, members may freely adopt them as part of their national food-safety standards. The Codex Alimentarius MRLs are established by the Codex Committee on Pesticide Residues, following review and evaluation by the Joint FAO/WHO Meeting on Pesticide Residues of toxicology and data obtained Standards, 7 Eur. J. Risk Regul. 610 (2016) (analyzing transnational private standards under the SPS Agreement); Wallach, supra note 25 (discussing the undemocratic nature of food standards made binding through the SPS Agreement). 60  Alexia Brunet Marks, A New Governance Recipe for Food Safety Regulation, 47 Loy. U.. Chi. L. J. 907, 915–17 (2016). 61   Id. at 915.

358  Research handbook on international food law primarily from supervised trials and nomination of a particular MRL by a member.62 This process involves the participation and coordination among scientific and agricultural experts and is resource intensive. Because of this, many countries explicitly incorporate the Codex Alimentarius MRLs into their national food-safety standards, including Argentina, Brazil, Israel, the Philippines, South Africa, Thailand, and Vietnam.63 Other countries explicitly incorporate the Codex Alimentarius MRLs into their national food-safety standards while also deferring to the MRLs established by the United States and the European Union, including the Dominican Republic, Egypt, Honduras, Panama, Paraguay, and the United Arab Emirates.64 In setting their own MRLs, Canada, the United States, the European Union, South Korea, and others may consider Codex Alimentarius MRLs in addition to numerous other standards or the works of other bodies.65 Sometimes it is necessary or desirable for nations to harmonize their numerical standards with those of frequent trading partners and neighbors. For example, Canada collaborates extensively with the United States to support the harmonization of its MRLs, and Australia collaborates extensively with New Zealand on MRL issues. Coordination with private actors, especially in nations with more nascent regulatory infrastructure, is also important. Through its market transition, South Korea worked closely with industry and grower groups to set its own permanent MRLs.66 Process standards can be more difficult to harmonize than numerical standards, and they incorporate traits that numerical standards may lack, de-prioritize, or otherwise inadequately articulate. The national adoption of process standards highlights trade disputes’ role in international food-safety standard harmonization. This is especially illustrated in the longstanding dispute between the United States and the European Union over the importation into the European Union of U.S. bovine meat and meat products made from cattle treated with growth-promoting hormones. At its core, the dispute involved process standards associated with the production of livestock. In the early 1980s, the European Commission enacted a ban on producing and importing meat made from livestock treated with growth-promoting hormones.67 These bans were later superseded in 1996 by a new ban, which consolidated the prior bans and expanded the ban’s scope.68 Just before this new ban came into effect, the CAC had, in 1995, approved the use

  Pesticides, Food & Agric. Org. & World Health Org., www​.fao​.org​/fao​-who​-codexalimentarius​/thematic​-areas​/pesticides​/en/ (last visited Dec. 18, 2022); Codex Committee on Pesticide Residues (CCPR), Food & Agric. Org. & World Health Org., www​.fao​.org​/fao​-who​-codexalimentarius​/committees​/committee​/en/​?committee​= CCPR (last visited Dec. 18, 2022). 63   U.S. Int’l Trade Comm’n, Global Economic Impact of Missing and Low Pesticide Maximum Residue Levels, Vol. 1, Pub. No. 5071, at 73 (June 2020), www​.usitc​.gov​/publications​/332​/pub5071​.pdf; Kimberly Berry, Global MRL Database, Codex MRLs—Use and Trends (2016), https://bcglobal​.bryantchristie​.com​/downloads​/whitepaper​_Codex​_ MRLs​_Use​ _and​_Trends​_globalmrl​.pdf. 64  Berry, supra note 63. 65   U.S. Int’l Trade Comm’n, supra note 63. 66   Id. 67  Council Directive 88/299/EEC, O.J. (L 128) 36, https://eur​-lex​.europa​.eu​/ legal​-content​/ EN​/ TXT/​ ?uri​=celex​%3A31988L0299; Council Directive 88/146/EEC, O.J.(L 70) 16, https://eur​-lex​.europa​ .eu​/ legal​-content​/ EN​/ALL/​?uri​= CELEX​%3A31988L0146; Council Directive 81/602/EEC, O.J. (L 222) 32, https://eur​-lex​.europa​.eu​/ legal​-content​/en​/ALL/​?uri​= CELEX​%3A31981L0602. 68  Council Directive 96/22/EC, O.J. (L 125) 3, https://eur​-lex​.europa​.eu​/ legal​-content​/en​/ALL/​?uri​ =CELEX​%3A31996L0022. 62

Codex Alimentarius at home and abroad  359 of some of these hormones pursuant to step 8 of the elaboration of international standards (see section III.A).69 Initially, the European Union’s 1996 ban covered six hormones, which had been approved for sub-therapeutic uses in the United States, but the European Union in 2003 permanently banned only one hormone and provisionally banned the use of the five others.70 This evolution of the hormone ban represents the European Union’s general approach to food safety, which is encapsulated in the so-called precautionary principle. The precautionary principle is integrated with the European Union’s General Food Law. Article 7 of the General Food Law provides that, in certain circumstances where, after considering available information, there is an identified possibility of harmful effects on health, but scientific uncertainty about that possibility persists, the competent authority may take provisional risk measures necessary to uphold the high level of protection while that scientific uncertainty is resolved.71 Under a policy reminiscent of Article 2.2 of the TBT Agreement, measures adopted pursuant to this precautionary principle must be proportionate and no more restrictive to trade than is required to achieve a high level of health protection.72 Protection of the public health is at the heart of the European Union’s hormone-ban policy. As the recitals to the 2003 ban proclaim, The proposed amendments to [the 1996 ban] are necessary to achieve the chosen level of health protection from the residues in meat of farm animals treated with these hormones for growth promotion purposes, whilst respecting the general principles of the food law set out in [the General Food Law] and the international obligations of the Community.73

The ban is the Community’s attempt to balance its national policies established under law with its obligations under international agreements, particularly the TBT Agreement, which involves the movement of goods subject to those policies. The United States responded to the European Union’s ban in the 1980s by initiating an international dispute and threatening to implement retaliatory tariffs on itemized European Union imports. Once the ban became effective on January 1, 1989, the United States made good on its threat. The retaliatory tariffs remained in effect until 1996. By then, the United States and the European Union had requested consultation from the WTO to help the two parties resolve their dispute.74 Australia, Canada, and New Zealand later joined the United States in its complaint against the European Union. In 1997, the WTO Dispute Settlement Body (“DSB”) tasked with adjudicating the issue concluded in a panel report that the European Union’s ban violated provisions of the SPS Agreement, including (1) Article 3.1, which requires food-safety measures be based on international standards, guidelines, and recommendations;  Report of the Panel, EC Measures Concerning Meat and Meat Products (Hormones) Complaint by the United States, 7, WTO Doc. WT/DS24/R/USA (Aug. 18, 1997), www​.wto​.org​/english​/tratop​_e​ /dispu​_e​/26rusa​.pdf. 70  Directive 2003/74/EC, O.J. (L 262) 17, https://eur​-lex​.europa​.eu​/ legal​-content​/en​/ALL/​?uri​ =CELEX​%3A32003L0074. 71  Regulation (EC) 178/2002, O.J. (L 31) 1, art. 7(1), https://eur​-lex​.europa​.eu​/ legal​-content​/ EN​/ALL/​ ?uri​= CELEX​:32002R0178. 72   Id., at art. 7(2). 73  Directive 2003/74/EC, supra note 70, at recital 13. 74   Renée Johnson, Cong. Rsch. Serv., R40449, The U.S.-EU Beef Hormone Dispute 5 (2015), https://sgp​.fas​.org​/crs​/row​/ R40449​.pdf. 69

360  Research handbook on international food law (2) Article 5.1, which requires such measures be based on a risk assessment, especially one using techniques developed by relevant international organizations, such as the CAC; and (3) Article 5.5, which requires such measures avoid arbitrary and unjustifiable distinctions resulting in discrimination or a disguised barrier to international trade. The European Union appealed the findings, and the WTO Appellate Body (“AB”) upheld the DSB’s conclusion that the ban was inconsistent with Article 5.1, but it reversed the conclusions concerning Articles 3.1 and 5.5. The DSB adopted the AB’s report in 1998.75 The European Union was thus left to conduct a new risk assessment of the growth hormones on public health. The European Union did not complete its risk assessment by the WTO-mandated deadline and, consistent with the precautionary principle, maintained the ban. The United States responded with another round of retaliatory tariffs on certain European Union imports. Over the next few years, the European Union conducted research and presented evidence that at least one banned hormone was carcinogenic. It also announced that there was insufficient scientific evidence to provide a quantitative assessment of the impact of the five other hormones on public health.76 This research gave rise to the 2003 permanent ban and provisional bans. Nevertheless, the dispute between the trade members continued, and despite memoranda of understanding that have somewhat eased the restrictions on bans, tensions between the United States and the European Union over bovine meat and meat products remain.77 The result of this dispute involving the European Union’s commitment to uphold its national food-safety policies and the United States’ commitment to international agreements has been a costly one for both parties. Economically, both parties suffered massive costs, whether in the form of the United States’ lost opportunities to export its products to an importing nation or in the form of retaliatory tariffs imposing higher costs on the European Union’s products that it exports to an importing nation. In U.S. dollars, estimates of these costs are in the tens of millions.78 The dispute may also have left many European consumers devaluing the quality of U.S. beef, which could have far-reaching effects on the efforts of U.S. cattle ranchers to market their products across the Atlantic.79 Policymaking costs have also resulted. In particular, the European Union, claiming that its risk assessments and approach were consistent with Article 5.7 of the SPS Agreement, which provides additional time to members while they conduct a good-faith investigation into the information necessary to form an objective risk assessment, found itself at the center of a values-laden legal battle. The European Union may have maintained its ban, but it effectively  Joint Communication from the European Union and the United States, European Communities— Measures Concerning Meat and Meat Products (Hormones), WTO Doc. WT/DS26/29 (Apr. 17, 2014), www​.wto​.org​/english​/tratop​_e​/dispu​_e​/cases​_e​/ds26​_e​.htm. 76  European Commission Press Release IP/02/604, Growth Promoting Hormones Pose Health Risk to Consumers, Confirms EU Scientific Committee (Apr. 23, 2002), https://ec​.europa​.eu​/commission​/ presscorner​/detail​/en ​/ IP​_02 ​_604. 77   See, e.g., Philip Blenkinsop, EU Lawmakers Clear U.S. Beef Imports but Fault U.S. Tariffs, Reuters (Nov. 28, 2019, 3:02 AM), www​.reuters​.com​/article​/us​-usa​-trade​-eu​-idUKKBN1Y2185; Obama Administration Takes Action to Address European Union’s Unfair Trade Practices Against U.S. Beef Industry, Office of the U.S. Trade Representative (Dec. 22, 2016), https://ustr​.gov​ /about​-us​/policy​- offices​/press​- office​/press​-releases​/2016​/december​/obama​-administration​-takes​ -action. 78   Johnson, supra note 74, at 17–19. 79   See, e.g., Frode Alfnes & Kyrre Rickertsen, European Consumers’ Acceptance of US HormoneTreated Beef, 3 EuroChoices 18 (2008). 75

Codex Alimentarius at home and abroad  361 had to pay sanctions for doing so; the tariffs imposed on its exported products, normally prohibited under international agreements, were otherwise a justified punishment. Lifting those sanctions would have required the lifting of the ban. Put differently, the international standards of the Codex Alimentarius, voluntary in nature, were de facto requirements placed on the European Union’s food-safety legislation as a result of this dispute. Moreover, those standards—the approval of certain growth-promoting hormones in bovine meat and meat products—came about by a secret ballot and at the objection of the European Commission, who had implemented the European bans.80 What should have been a democratic process, putatively guided by transparency, came to resemble the strongarming of an international community attempting to determine its own science-based foodsafety goals and policies. Both sets of standards, though covering the same subject and arguably doing so in similar ways, bring to light the significance of the numerical–process distinction of food-safety standards. While these Codex Alimentarius standards centered around MRLs for growthpromoting hormones, and so were numerical standards, the European bans’ blanket prohibition centered around production techniques, and so were process standards. The MRLs are easily quantifiable and nuanced by degree, but the prohibition of a production technique, even if based equally on scientific evidence, is more difficult to convert to data points and justify. Perhaps most notably, though, the setting of process standards may be motivated by either an unscientific justification or an expansive understanding of scientific justification. Rooted in scientific inquiry, the precautionary principle represents one approach to protecting public health in the face of scientific uncertainty. But a particular process standard, such as how meat from a species of livestock must or must not be produced, although justified by the precautionary principle, may also be based on other justifications, including ethics, environmental sustainability, economics, and so forth. These justifications, however, are deprioritized under international agreements because the pathways to international regulatory harmonization, whether global standard-setting or equivalence, are so firmly rooted in science-based policymaking.

IV. HARMONIZATION AND FRAGMENTATION: A PERSISTENT TENSION The international push to harmonize food-safety standards is a vital and imperative feature of increasingly globalized food supply chains. Food-safety regulatory harmonization provides the trust required by trading nations to facilitate the free movement of foods across borders. Governments, private actors, consumers, and nongovernmental organizations demand that sourcing be more transparent, manufacturing and logistics be guaranteed sanitary, information be truthful and not misleading, and finished products be safe and free from hazards. The efforts of the CAC and all relevant stakeholders in the development of Codex Alimentarius standards seek to minimize and eliminate these exigent concerns. Because pursuant to the SPS Agreement, these standards are benchmarks for national food-safety legislation, food in   Food & Agric. Org. & World Health Org., Codex Alimentarius Commission Report of the Twenty-First Session, ALINORM 95/37, at 9 (July 8, 1995), www​.fao​.org​/input​/download​/ report​/516​/al95​_37e​.pdf.

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362  Research handbook on international food law international trade carries a minimum level of certainty based on science that it is safe for consumption. But this certainty can frustrate government attempts to regulate the safety of foods culturally and economically important when producing those foods contravenes the Codex Alimentarius. In such situations, maintaining the free and trustworthy movement of foods in the global marketplace can easily trump the promotion of local economies. A. The Influence of Harmonization on National Food-Safety Regulation This reliance on science-based, harmonized standards, while a sufficient, if not superior method for achieving a safer global food supply, necessarily impacts the ability of a nation or a community to determine its own food-safety regulations. This is illustrated in the decadeslong, expensive growth-hormone dispute between the United States and the European Union (see section III.B), as well as numerous other trade disputes. On one hand, these impacts materialize as the Codex Alimentarius’s direct influence on national legislation. As already mentioned, nations incorporate various MRL standards for goods established under the Codex Alimentarius into their own MRL standards. These numerical standards, based on scientific research and understanding, are often easily and without controversy adopted by those nations. The extent to which other Codex Alimentarius standards have been incorporated into national food-safety legislation is difficult to ascertain and measure. After all, the very process of establishing and elaborating a Codex Alimentarius standard, as outlined above, is often a cooperative and reiterative process influenced by existing national legislation and norms. Occasionally, national legislation explicitly refers to the incorporation of specific Codex Alimentarius standards or guidelines, such as the European Union’s Directive 1999/2/EC or the United States’ 21 C.F.R. § 130.6. But influence is not usually so apparent. When nations agree to non-binding Codex Alimentarius standards, they develop and use a common set of guidelines that affects their approach in developing their own regulatory approaches. For instance, in 1993, with Resolution 1469/93, Argentina repealed a 1978 food-safety law and established new risk controls for hermetically sealed foods based on its modern understanding of technological and thermal-processing methods.81 In 1997, the CAC adopted the HACCP guidelines and included them in the Annex to the Recommended International Code of Practice—General Principles of Food Hygiene.82 That same year, Argentina passed Resolution 624/97, which introduced the HACCP principles into the nation’s food-safety regulatory lexicon and exempted certain foods covered by HACCP plans from some requirements of the 1993 law.83 Within a decade, HACCP and its scientific procedures became standard vocabulary in the regulation of domestic and

 Control de productos envasados herméticamente y sometidos a proceso térmico, Resolución N° 1469/93 (1993) (Arg.), www​.ecofield​.net​/ Legales​/Sanidad​_vegetal​/rz​_1469​_93​.htm. 82  Codex Alimentarius, General Principles of Food Hygiene, CXC 1-1969 (2011), www​.fao​.org​/fao​ -who ​- codexalimentarius​/sh​-proxy​/en/​?lnk​=1​&url​=https​%253A​%252F​%252Fworkspace​.fao​.org​ %252Fsites​%252Fcodex​%252FStandards​%252FCXC​%2B1​-1969​%252FCXC​_001e​.pdf. 83  Exclúyense a aquellas líneas de producción de productos termoprocesados que cuenten con sistemas “HACCP” de la obligación a que se refiere el artículo 2° de la Resolución N° 1469/93 exSENASA, Resolución N° 624/97 (1997) (Arg.), http://servicios​.infoleg​.gob​.ar​/infolegInternet​/anexos​/45000​ -49999​/45592​/norma​.htm. 81

Codex Alimentarius at home and abroad  363 exported foods from South America.84 The extent to which South American nations would have developed their own system of controls absent the HACCP protocols may be impossible to determine, but there is at least some evidence of a shift in a regulatory approach because of the adoption of HACCP guidelines by the CAC. Other Codex Alimentarius standards appear to have influenced the national food-safety legislation of trading nations, and commendable scholars have contributed important research to uncovering the degree of that influence, particularly in the European Union.85 The etymology of Codex Alimentarius illuminates two of its characteristics, one direct and the other indirect. Both words are Latin. Codex is a variant of caudex. In antiquity, this referred to a tree trunk or a block of wood, especially one to which a person might be tied, as a form of punishment.86 Wooden tablets covered in wax (tabulae), when bound together in a single volume, became known in ancient Rome as a codex. A codex could include bills on which the Roman senate would vote or laws associated with emperors, such as the consolidated Codex Justinianeus, or Code of Justinian.87 Alimentarius relates to welfare, though a related word, alimentum, refers to nourishment, food, and provisions.88 In modern times, Codex Alimentarius has come to mean a set of voluntary codes relating to food. This is the direct characteristic. But codex also connotes constraint. Though not literally tied to the codex, nations and communities seeking a self-determined food-safety regulatory system are nonetheless bound and constrained by it. This indirect characteristic illustrates, at least symbolically, the impact of harmonization on many national food-safety legislative processes. B. Harmonization at Odds with Food-Safety Regulation Motivated by Cultural Preservation Certain foods have unique cultural, historical, or geographic distinctions that cause them to be regarded by relevant stakeholders as necessary to preserve. Such preservation can be challenging in a regulatory climate that favors certain scientific methods or policy values over others. A notable example is the array of artisanal cheeses produced in Brazil. Perhaps the most famous of these cheeses is Canastra, a semi-hard or slightly soft, buttery cheese made

  See, e.g., Aprueba norma técnica para la determinación de implementación del análisis de peligros y de puntos críticos de control (HACCP) en establecimientos de alimentos, Resolución N° 187 Extenta de 2008 (Chile), www​.bcn​.cl​/ leychile​/navegar​?idNorma​=270485; Por el cual se establece el reglamento técnico a través del cual se crea el Sistema Oficial de Inspección, Vigilancia y Control de la Carne, Productos Cárnicos Comestibles y Derivados Cámicos Destinados para el Consumo Humano y los requisitos sanitarios y de inocuidad que se deben cumplir en su producción primari, beneficio, desposte, desprese, procesamiento, almacenamiento, transporte, comercialización, expendio, importación or exportación, Decreto N° 1500 de 2007 (Colom.), https://corponarino​ .gov​.co​/expedientes​/juridica​/2007decreto1500​.pdf; Aprobacion del reglamento para el control de higiene y sanidad de los productos de la pesca y caza acuatica, Decreto N° 213/997 (1997), www​ .impo​.com​.uy​/ bases​/decretos​/213​-1997/1 (Uru.). 85   See, e.g., van der Meulen, supra note 15; Chris Downes, The Impact of WTO SPS Law on EU Food Regulations (2014). 86   John C. Traupman, The New College Latin and English Dictionary 91, 101 (3d ed. 2007). 87  A.P. Montague, Writing Materials and Books among the Ancient Romans, 3 Am. Anthropologist 331, 335–36 (1890). 88   Traupman, supra note 86. 84

364  Research handbook on international food law from raw cow’s milk in the State of Minas Gerais.89 Under the Minas Gerais State Law 23,157, Canastra and other Minas Gerais artisanal cheeses must be composed of fresh and raw whole cow milk and harbor specific identity and quality characteristics.90 In 2008, Canastra was recognized by the National Historic and Artistic Heritage Institute, a heritage register of Brazil’s federal government, as Cultural Property of Immaterial Nature, a status conferred upon it because of its traditional, cultural, and economic importance to Minas Gerais and Brazil.91 It has been honored with similar special statuses and recognition.92 Though Canastra is a significant cultural icon of Brazil, it is also valued in the international community. In 2019, Canastra producers took home 24 medals from a world cheese competition in France.93 Despite its significance, Canastra producers and marketers have faced enormous difficulties in permissibly selling their cheeses within Brazil. Recognizing the need to amend its foodsafety regulations, Brazil passed Law 13,680 in 2018 and Law 13,860 in 2019. Law 13,680 authorized the interstate marketing of food products with distinct traditional or regional characteristics produced in an artisanal way, using good agricultural and manufacturing practices, subject to public health inspections. It created a stamp and registration system, which would provide important traceability information in the event of a foodborne-illness outbreak that may be linked to such artisanal food products.94 Law 13,860 established legal parameters for the manufacture and sale of artisanal cheeses made by traditional methods according to a specific elaborated protocol established for each type and variety of cheese.95 Importantly, Law 13,860 provides that the production of these raw-milk cheeses is restricted to cheesemakers located in rural establishments that have been certified, based on standardized measurements and procedures, as free from tuberculosis and brucellosis. In December 2020, Brazil’s Ministry of Agriculture, Livestock, and Supply/Agricultural Defense (“MAPA”) published a public notice seeking comments on the implementation of Law 13,860.96 The cheese standards, codes, and guidelines of the Codex Alimentarius are generally related to either standards of identity or food safety. Codex Alimentarius does not have any specific standard of identity for Canastra as it does for other cheeses, such as mozzarella, edam, or brie.97 It generally categorizes cheeses into different classes of moisture.98 The Code   Ana Paulina Arellano Pineda et al., Brazilian Artisanal Cheeses: Diversity, Microbiological Safety, and Challenges for the Sector, 12 Frontiers Microbiology 666922, at 3–5 (2021), www​. frontiersin​.org​/articles​/10​.3389​/fmicb​.2021​.666922​/full. 90  A copy of this law can be found at FAOLEX Database, Brazil (Minas Gerais): Law No. 23.157 Providing for the Production and Marketing of Artisanal Cheese within the State of Minas Gerais, Food & Agric. Org. (2021), www​.fao​.org​/faolex​/results​/details​/en​/c​/ LEX​-FAOC184823/. 91  Pineda et al., supra note 89, at 4–5. 92   Id. at 5. 93   Id. 94  Lei N° 13,680, de 14 de Junho de 2018, Diário Oficial da União [D.O.U.] de 15.6.2018 (Braz.), www​ .planalto​.gov​.br​/ccivil​_03/​_ato2015​-2018​/2018​/ lei​/ L13680​.htm. 95  Lei N° 13,860, de 18 de Julho de 2019, Diário Oficial da União [D.O.U.] de 19.7.2019 (Braz.), https:// www​.in​.gov​.br​/web​/dou/-​/ lei​-n​-13​.860​-de​-18​-de​-julho​-de​-2019​-198615138. 96  Portaria N° 186, de 9 de Dezembro de 2020, Diário Oficial da União [D.O.U.] de 11.12.2020 (Braz.), www​.in​.gov​.br​/en ​/web​/dou/-​/portaria​-n​-186 ​-de​-9​-de​-dezembro​-de​-2020 ​-293520939. 97   See Gateway to Dairy Production and Products, Food & Agric. Org. (2019), www​.fao​.org​/dairy​ -production​-products​/products​/codex​-alimentarius​/en/. 98   CXS 283-1978: General Standard for Cheese (amended 2018), www​ .fao​ .org​ /fao​ -who​ -codexalimentarius ​/sh​-proxy​/en/​?lnk​=1​& url​= https​%253A​%252F​%252Fworkspace​.fao​.org​%252Fsites​ %252Fcodex​%252FStandards​%252FCXS​%2B283​-1978​%252FCXS​_283e​.pdf. 89

Codex Alimentarius at home and abroad  365 of Hygienic Practice for Milk and Milk Products, which applies the recommendations of the Recommended Code of Practice: General Principles of Food Hygiene specifically to milk and milk products, provides limited guidance for Canastra cheesemakers.99 This code was developed to be somewhat flexible to account for the myriad cheesemaking techniques. For raw-milk cheeses specifically, the Code notes, A wide range of food safety approaches exist for the production of raw milk products. As is the case with the rest of this code, the approach taken in this section is intended to be flexible enough to take into account the different approaches used in different countries regarding the manufacture and marketing of raw milk products.100

The code does not mandate any specific control measures for cheeses but repeatedly emphasizes the importance of control measures to be established, implemented, and validated. Though not specifically covering milk products, the Guidelines for the Validation of Food Safety Control Measures, which are meant to act as guidance to industry and governments, refer to the importance of relying on “scientific organizations, competent authorities, process control experts or related sources of scientific expertise that can provide the specific principles and best practices upon which the validation of a specific control measure should be based.”101 The principles upon which Law 13,680, Law 13,860, and Minas Gerais State Law 23,157 are created are not well accounted for in the relevant Codex Alimentarius standards, codes, and guidelines. As MAPA and relevant stakeholders develop and implement their regulations, and as competent authorities and relevant stakeholders in Minas Gerais develop and implement their regulations, they may feel pressure from the SPS Agreement’s harmonization push. After all, Brazil is one of the major competitors of U.S. agricultural exports, and it is among the world’s largest exporters of soybeans and meat.102 In essence, it must now confront the management of two distinct and, in some ways, sequestered food-safety regulatory regimes: the regulation of artisanal foods and the regulation of exportable foods. In 2019, the CAC published its Codex Strategic Plan 2020–2025. The purpose of this document is to publicize the CAC’s mission and outline its strategic goals and the metrics it will use to measure the progress of those goals. One of the five CAC goals presented is to “[i]ncrease impact through the recognition and use of Codex standards.”103 The objectives enumerated to achieve this goal are, first, to raise awareness of Codex standards, second, to support initiatives to enable the understanding and implementation of Codex standards, and

 Codex Alimentarium, Code of Hygienic Practice for Milk and Milk Products, CAC/RCP 57-2004, at 2 (2004), www​.fao​.org​/fao​-who​-codexalimentarius​/sh​-proxy​/en/​?lnk​=1​&url​=https​%253A​%252 F​%252Fworkspace​.fao​.org​%252Fsites​%252Fcodex​%252FStandards​%252FCXC​%2B57​-2004​ %252FCXC​_057e​.pdf. 100   Id. 101  Codex Alimentarium, Guidelines for the Validation of Food Safety Control Measures, CAC/GL 69-2008 (2008), www​.fao​.org​/fao​-who​-codexalimentarius​/sh​-proxy​/en/​?lnk​=1​&url​=https​%253A​ %252F​%252Fworkspace​.fao​.org​%252Fsites​%252Fcodex​%252FStandards​%252FCXG​%2B69​ -2008​%252FCXG​_069e​.pdf. 102  Joana Colussi, Brazilian Agribusiness Exports Set a Record, as Domestic Supply Difficulties Begin, Farm Policy News (July 13, 2020), https://farmpolicynews​.illinois​.edu​/2020​/07​/ brazilian​ -agribusiness​-exports​-set​-a​-record​-as​-domestic​-supply​-difficulties​-begin/. 103   Food & Agric. Org. & World Health Org., Codex Strategic Plan 2020–2025, CA5645EN/1/08.19, at 14 (2019), www​.fao​.org​/3​/ca5645en​/CA5645EN​.pdf.  99

366  Research handbook on international food law third, to recognize and promote the impact of Codex standards. Among the metrics used to measure the success of this goal is the extent to which Codex standards are incorporated into national legislation and implemented among food companies and organizations.104 This strategic plan is noteworthy for its attempt to pair CAC goals with the United Nations Sustainable Development Goals (“SDG” or “SDGs”). The 17 SDGs, adopted by all United Nations Member States in 2015, are a “blueprint for peace and prosperity for people and the planet, now and into the future” that aspires to eradicate poverty and bring freedom to people and communities around the globe.105 As explained in the United Nations 2030 Agenda for Sustainable Development, to which the SDGs are integral, achieving sustainable development requires effective measures and actions to be taken, in conformity with international law, to remove the obstacles to the full realization of the right of self-determination of peoples living under colonial and foreign occupation, which continue to adversely affect their economic and social development as well as their environment.106

One SDG is especially relevant to this chapter’s discussion: SDG 12, “Ensuring sustainable consumption and production patterns.” The United Nations identifies several factors that contribute to unsustainable consumption and production patterns, including climate change, biodiversity loss, pollution, food waste, limited natural resources, mismanaged electrical waste, and so on.107 The CAC’s strategic plan, however, refers to only one: food waste.108 As this chapter has discussed, food-safety regulation has more in its purview than simply the physical safety of food. Enveloped within it are community norms, scientific consensus, cultural preservation, consumer demands, economic diversification, and environmental sustainability. If the CAC is serious about aligning its mission with the SDGs, it must consider this reality. Narrowly defining food safety risks not only fails to achieve SDG 12 or the other SDGs, but it risks clawing back advances made in national legislation and local efforts to tether foodsafety regulation to self-determination. It risks the Codex Alimentarius becoming a constraint forced upon WTO members and their people. How SDG 12 or the other SDGs fit into the Codex Alimentarius and the international-trade paradigm is, at least now, unknowable. But the CAC has shown a willingness for flexibility in its endeavor to realize these goals.

V. CONCLUSION Across the world, communities—municipalities, states and provinces, or nations—are formalizing food-safety regulatory schemes for foods that are geographically, historically, or culturally important to those communities. At the same time, there has been a decades-long effort, built on more than a century of structured international trade in food, to harmonize national   Id. at 15.   Do You Know All 17 SDGs?, U.N. Dep’t of Econ. & Social Affs., https://sdgs​.un​.org​/goals (last visited Dec. 19, 2022). 106   Transforming Our World: The 2030 Agenda for Sustainable Development, U.N. Dep’t of Econ. & Social Affs., https://sdgs​.un​.org​/2030agenda (last visited Dec. 19, 2022). 107   12: Ensure Sustainable Consumption and Production Patterns, U.N. Dep’t of Econ. & Social Affs., https://sdgs​.un​.org​/goals​/goal12 (last visited Dec. 19, 2022). 108   Codex Strategic Plan 2020–2025, supra note 103, at 5. Related to food waste, the CAC also refers to food loss. 104 105

Codex Alimentarius at home and abroad  367 food-safety legislation. Some nations have attempted to reconcile the otherwise conflicting regulatory approaches to food safety. In the United States, the Food Safety Modernization Act of 2011, which required the FDA to promulgate and implement comprehensive risk-based regulations, founded in large part on international food-safety standards, created partial and total exemptions from those regulations for certain classes of food companies or activities that are unlikely to enter international trade.109 In Brazil, however, just as it had been in preHACCP Argentina or the anti-growth-hormone European Union, the food-safety regulations may amount to more than mere exemptions to regulations. Rather, they may create entirely new regulatory processes and values. If such regulations come into being, they will almost certainly come so at a cost: that of maintaining and striving for a safe global food supply. It is impossible to know how these strands of food-safety regulations will evolve or whether they will ever be reconciled. Each strand is vital to the relevant standard-setting community and, from the relevant community’s perspective, legitimate. Moreover, these strands may represent a dualistic approach to food-safety regulation and food systems more broadly. Culturally relevant food production techniques, like those found among certain cheesemakers in Minas Gerais, Brazil, could represent a food system bound by the nation’s borders. Although national laws are seeking to legitimize and regulate these techniques, the foods produced by those techniques may ultimately fail to enter the global marketplace, or they may do so only piecemeal through narrowly tailored bilateral trade agreements. Put differently, harmonization incentivizes certain production techniques over others, and those foods produced using non-harmonized techniques may, at best, be tolerated by a handful of trading nations and, at worst, condemned. What is clear, however, is that there are costs to the regulation of food safety—public health, efficiency of trade, national and local self-determination, ethics, environmental concern, and cultural identity. In May 2020, the European Union published a so-called Farm to Fork Food Strategy, which attempts to incorporate some of these costs into the trading bloc’s regulation of food.110 Though aspirational, it seeks to identify concrete steps for such a transformation. The Codex Alimentarius may not be the ideal target for such a transformation of the global regulation of food safety, especially given its role in the SPS and TBT Agreements. But considering Codex Alimentarius’ legal and taxonomical roots in the Codex Alimentarius Austriacus and its etymological roots in caudex, it is not a stretch to expect its evolution to continue. How that evolution takes shape will depend in part on the costs we are willing to pay.

  See, e.g., 21 U.S.C. § 350g(l); 21 U.S.C. § 350h(f).   Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions: A Farm to Fork Strategy for a Fair, Healthy and Environmentlly-Friendly Food System, COM (2020) 381 final (May 20, 2020), https://eur​-lex​.europa​.eu​/ legal​-content​/ EN​/ TXT/​?uri​= CELEX​:52020DC0381.

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18. Sugar labeling: challenges and approaches Alexia Brunet Marks

1. INTRODUCTION: A WALK DOWN THE FOOD AISLE Food has the potential to fight disease, tackle obesity, and strengthen overall immunity, and yet, statistics show that consumers are not buying it, so to speak. Take sugar consumption, for example. The United States consumes more sugar than any other country in the world in per capita terms1 – an average of 126.4 grams of sugar per day, or four times the daily recommended amount for an adult2 – despite evidence that links sugar intake with high blood pressure, inflammation, Type 2 diabetes, and heart disease.3 In a 15-year study published by the American Medical Association, adults who consumed 17–21% of their calories from added sugar were 38% more likely to die from heart disease than those who consumed only 8% of their calories from added sugar.4 Using this pattern in the United States as a case study, what explains the disconnect? Food labeling may be one explanation. Ideally, consumers read food labels to identify healthful choices. Recent studies, however, show that walking down the food aisles, 80% of shoppers encounter nutritional information that is inconsistent, and 59% leave the store skeptical of the purchases they have made.5 Constitutional free speech protections in the United States protect food manufacturers’ right to advertise to the detriment of consumers. For example, the new and improved Nutritional Fact Panel (NFP) requirement on packaged foods was intended to provide consumers with more information to make healthy choices. Its placement – on the side or back side of a food package – hides important nutritional facts from a consumer’s first glance.6 When critical information is not visible on the front of the package, and when advertising overstates health claims and glycemic information is omitted altogether, consumers naturally make calculated guesses – often inaccurately – on how much sugar and what kind of sugar is in a food.

 Average Per Capita Consumption of Sugar as of 2016, By Country, Statista (Mar. 31, 2016), www​ .statista​.com​/statistics​/535219​/global​-sugar​-per​-capita​-consumption​-by​-country/. 2   How Much Sugar is Too Much?, Am. Heart Ass’n, www​.heart​.org​/en ​/ healthy​-living​/ healthy​-eating​ /eat​-smart​/sugar​/ how​-much​-sugar​-is​-too​-much (last visited July 29, 2021). 3   See Harv. Health Publ’g, The Sweet Danger of Sugar, Harv. Med. Sch. (Jan. 6, 2022), www​.health​ .harvard​.edu​/ heart​-health ​/the​-sweet​-danger​-of​-sugar. 4   Id. 5   See How Much Sugar Is Too Much?, supra note 2. 6  See Mike Bartels, Katherin Tillack & Chung-Tung Jordan Lin, Communicating Nutrition Information at the Point of Purchase: An Eye-Tracking Study of Shoppers at Two Grocery Stores in the United States, 42 Int’l J. Consumer Stud. 557 (2018), https://doi​.org​/10​.1111​/ijcs​.12474 (applying eyetracking methodology to explore consumer visual and choice behavior in a real shopping environment, finding that consumers use what “catches their eye” – claims and front-of-package nutrition symbols – to make purchase decisions, more than the Nutrition Facts label). 1

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370  Research handbook on international food law This chapter uses a comparative law approach to examine sugar labeling. Two defining features make the United States a fitting case study: its growing concern for health-related consequences of sugar consumption and its complex regulatory environment (i.e., powerful food industries and constitutional challenges). Throughout this chapter, food labeling litigation is used to unpack the debates and compromises made among consumers, federal agencies, and food industry participants as they shape nutritional labeling around sugar. Other country approaches to nutritional labeling – from adopting guideline daily amounts (GDAs) to colorcoded GDAs, glycemic index indicators, and traffic light symbols – are reviewed for what may or may not work in the United States. Ultimately, this chapter’s comparative law approach challenges conventional thinking on nutritional labeling and questions whether existing rules in the United States and elsewhere go far enough to help consumers select healthy foods.

2. SUGAR LABELING IN THE UNITED STATES: HISTORY AND ORIGINS Sugar has been part of the American diet for centuries. In the late 1700s, the average American consumed about six pounds of sugar per year.7 Much of this sugar was sucrose (table sugar) and other sugars naturally occurring in foods such as fruit, which includes fructose and glucose, as well as milk which contains lactose.8 As food production became more industrialized, sugar was frequently added to foods during preparation or throughout processing to: extend the shelf life of packaged goods, provide baked goods with their color and texture, aid in fueling fermentation, serve as a bulking agent, or flavor and balance the acidity of foods.9 Today, common added sugars include but are not limited to, agave, corn sweetener, dextrose, fructose, glucose, honey, malt syrup, molasses, and sorghum.10 Over time, added sugars became more sophisticated. As the sugar beet industry grew and alcohol was banned during the Prohibition era, consumption of sugary drinks surged so much that by 1925, vending machines began dispensing soda, which raised sugar consumption dramatically.11 These trends continued, and by 1962, nearly 13% of American adults were considered obese.12 In 1967, Japanese scientist Yoshiyuki Takasaki invented high fructose corn syrup as a cost-effective alternative to sugar.13 Derived from corn, it was produced by using

 Jennie Rothenberg Gritz, The Unsavory History of Sugar, the Insatiable American Craving: How the Nation Got Hooked on Sweets, Smithsonian Mag. (May 2017), www​.smithsonianmag​.com​/ history​/unsavory​-history​-sugaramerican​-craving​-180962766/.  8   See Harv. Health Publ’g, supra note 3.  9   Added Sugars: Don’t Get Sabotaged by Sweeteners, Mayo Clinic (Apr. 3, 2021), www​.mayoclinic​ .org​/ healthy​-lifestyle​/nutrition​-and​-healthy​-eating​/in​-depth ​/added​-sugar​/art​-20045328. 10  Hope Warshaw & Steven Edelman, Practical Strategies to Help Reduce Added Sugars Consumption to Support Glycemic and Weight Management Goals, 39 Clinical Diabetes 45, 47 tbl.1 (2021). 11  Gritz, supra note 7. 12  Cheryl D. Fryar, Margaret D. Carroll & Cynthia L. Ogden, Prevalence of Overweight, Obesity, and Extreme Obesity Among Adults: United States, 1960–1962 Through 2011–2012, CDC Nat’l Ctr. Health Stat. (2014), www​.cdc​.gov​/nchs​/data​/ hestat​/obesity​_adult​_11​_12​/obesity​_adult​_11​ _12​.htm. 13  Evelyn Kim, The Amazing Multimillion-Year History of Processed Food, Sci. Am. Sept. 2013, at 50, 55.  7

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enzymes to convert glucose in cornstarch to fructose.14 Before the commercialization of high fructose corn syrup, sucrose was the main sweetener used in soda in the United States.15 It was not until sugar became more expensive relative to corn that high fructose corn syrup quickly gained popularity in America.16 In 1980, soda giant Coca-Cola began to produce its beverages using high fructose corn syrup, and most other soft drink companies followed suit switching to high fructose corn syrup before 1990.17 In 2001, the U.S. Surgeon General raised concerns about obesity in the United States,18 noting a need for food options that are not only low in sugar but specifically low in added sugar.19 The announcement came at a time when the overconsumption of added sugar, especially in sugary beverages, was identified as a significant contributor to Americans’ weight gain and the growing obesity epidemic in the United States.20 Added sugars in foods are dangerous because high levels of sugar overload the liver and, over time, are more likely to turn into fatty liver disease that can lead to diabetes and heart disease.21 It is projected that by 2030, close to half of adults will be obese, and close to one-quarter will be severely obese.22 2.1 Nutrition Labeling and Sugar Food labeling regulations are found in the United States Federal Food, Drug, and Cosmetic Act (FD&C Act), passed in 1938.23 The FD&C Act gives authority to the Food and Drug Administration (FDA) to ensure that foods sold in the United States are safe, wholesome, and properly labeled.24 In 1990, Congress passed the Nutrition Labeling and Education Act (NLEA), giving the FDA proper authority to require nutrition labeling on food packaging.25 Specifically, it amended the FD&C Act and aimed to “clarify and … strengthen the [FDA’s] legal authority to require nutrition labeling on foods, and to establish the circumstances under

 Alex Reshanov, A Brief History of High-Fructose Corn Syrup, EarthSky (June 7, 2012), https:// earthsky​.org​/ human​-world ​/a​-brief​-history​-of​-high​-fructose​-corn​-syrup/. 15   Id. 16  Roy Ballinger, U.S. Dep’t of Agric., Econ. Rsch. Serv., AER No. 382, A History of Sugar Marketing Through 1974, at 32 (1978), www​.ers​.usda​.gov​/webdocs​/publications​/40532​/aer​-382​.pdf​?v​= 0. 17   See Reshanov, supra note 14. 18   Centers for Disease Control, The Surgeon General’s Call To Action To Prevent and Decrease Overweight and Obesity (2001), www​.cdc​.gov​/nccdphp​/dnpa ​/pdf​/calltoaction​.pdf. 19   Id. at 20, 35. 20   See Warshaw, supra note 10. 21   See Harvard, supra note 3. 22  Jane E. Brody, Half of Us Face Obesity, Dire Projections Show, N.Y. Times www​.nytimes​.com​ /2020​/02​/10​/well​/ live​/ half​-of​-us​-face​-obesity​-dire​-projections​-show​.html (Feb. 10, 2021). 23  Federal Food, Drug, and Cosmetic Act of 1938 (FD&C Act) 9, Pub. L. No. 75-717, 52 Stat. 1040, (codified as amended at 21 U.S.C. §§ 301–99). 24   Guidance for Industry, U.S. Food & Drug Admin. (Sept. 6, 2018), www​.fda​.gov​/regulatory​-information​/search​-fda​-guidance​-documents​/guidance​-industry​-food​-labeling​-guide. 25  Nutrition Labeling and Education Act of 1990 (NLEA), Pub. L. No. 101-535, 104 Stat. 2353 (codified in part at 21 U.S.C. § 343). 14

372  Research handbook on international food law which claims may be made about nutrients in foods.”26 Part of its purpose was to “create uniform national standards regarding the labeling of food.”27 The FD&C Act was an improvement in that prior rules only required nutritional information on foods that made a nutrition claim or for foods that were fortified with vitamins, minerals, or protein.28 The FDA requires food manufacturers to label prepared foods, including breads, snacks, drinks, cereals, and canned foods, while allowing voluntary labeling for raw produce and fish.29 Exemptions were made for foods sold for immediate consumption in restaurants, foods that are processed and prepared primarily in a retail establishment and not for immediate consumption in the establishment, certain infant formulas, and anything considered a “medical” food.30 The FD&C Act regulations require that basic nutritional facts – such as the amount of sugar, calories, fat, ingredients, and other information – be displayed on the Nutrition Facts Panel (NFP) on the side or back of the food package. In this way, federal labeling rules do not require food manufacturers to disclose sugar content on the primary (front) panel of food packages. The placement of the NFP on the side or back panel of a package has been controversial. While it remains debatable what consumers want to see on a label,31 numerous studies find that consumers are more likely to base purchasing decisions on what they see on the frontof-package (FOP) – the advertising, trademarks, and claims designed by food companies to maximize profit – rather than what they see on the back or side of a package. To help consumers maintain healthy dietary practices,32 the FDA updated the NFP in 2016 (with the original compliance date in 2019), requiring food manufacturers to present added sugar in total grams and as a percent daily value.33 The rule requires manufacturers to change “Sugars” to “Total Sugars” and requires that the line “Includes ‘X’ g Added Sugars” be indented and declared directly below “Total Sugars” on the nutrition label.34 The FDA has authority to make such revisions as provided by section 403(q) of the Federal FD&C Act.35 Section 403(q)(1) of the FD&C Act states that a food shall be deemed to be misbranded if, with certain exceptions, it fails to bear nutrition labeling and identify specific nutrient and calorie information required in its labeling.36 The American Heart Association praised the disclosure as “good news” in the fight against heart disease.37   H.R. Rep. No. 101-538, at 7 (1990), reprinted in 1990 U.S.C.C.A.N. 3336, 3337.  Bruton v. Gerber Prods. Co., 961 F.Supp.2d 1062, 1079 (N.D.Cal.2013) (quoting In re Farm Raised Salmon Cases, 42 Cal.4th 1077, 1086, 72 Cal.Rptr.3d 112, 175 P.3d 1170 (2008)). 28  Alyssa Pike et al., The Nutrition Facts Label: Its History, Purpose, and Updates, Food Insight (March 9, 2020), https://foodinsight​.org​/the​-nutrition​-facts​-label​-its​-history​-purpose​-and​-updates/. 29   Food Labeling and Nutrition, U.S. Food & Drug Admin. (May 16, 2022), www​.fda​.gov​/food​/food​ -labeling​-nutrition. 30   See NLEA, supra note 25, at § 2(a)(5)(A). 31  Lucia A. Reisch et al., What Do People Want to Know? Information Avoidance and Food Policy Implications 102 Food Pol’y 102076 (2021). 32   See NLEA, supra note 25. 33  Food Labeling: Revision of the Nutrition and Supplement Facts Labels, 21 C.F.R. § 101 (2016) (“The compliance dates of this final rule were originally July 26, 2018 for manufacturers with $10 million or more in annual food sales and July 26, 2019 for manufacturers with less than $10 million in annual food sales but were extended to 2020 and 2021 under a revision in 2018”). 34   Id. 35   Id. 36  21 U.S.C. § 343(f). 37   See How Much Sugar Is Too Much?, supra note 2. 26 27

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In 2020, the federal government’s scientific committee issued a new recommendation limiting added sugars in the diet from 10% to 6% of daily calories.38 This time, despite this recommendation, the U.S. Departments of Agriculture (USDA) and Health and Human Services (HHS) decided not to include the lower limits because the new evidence was, according to the USDA Deputy Undersecretary for Food, Nutrition, and Consumer Services, “not substantial enough to support changes to quantitative recommendations for either added sugars or alcohol.”39 Even though over 100 million U.S. adults are now living with diabetes or prediabetes,40 the new limits, he said, failed to meet a “preponderance of the evidence” standard required by law which involves convincing the fact finder that there is a greater than 50% chance that the claim is true.41 Even with guidelines as they are, the transparency that consumers need to make healthy choices when walking down the food aisles is lacking. 2.2 Constitutional Limits to Nutritional Labeling Studies show that the first two items that consumers scan for on food packaging are sugar and calories.42 And yet, the NFP, which contains the most accurate information on sugar and calories, is located on the side or back panel of the package.43 Why is this so? Food labeling is a compromise between consumers, regulators, and food industry participants. FOP nutritional labeling was first discussed in 2009 after an Institute of Medicine report recommended using front labels to emphasize nutrients that consumers should limit because of their contribution to diet-related chronic diseases.44 The FDA was initially interested in FOP labeling, but U.S. food industry members resisted such a display.45 Multiple voluntary FOP schemes emerged creating consumer confusion: with multiple schemes existing in the marketplace, consumers were left to determine whether a product did not meet the criteria for one FOP scheme or whether the manufacturer or retailer did not participate in the scheme.46 While a mandatory FOP scheme could potentially reduce this confusion, any FOP scheme would have to clear a Constitutional hurdle.

 Andrea Petersen, New U.S. Dietary Guidelines Reject Recommendation to Cut Sugar, Alcohol Intake Limit, Wall St. J. (Dec. 29, 2020, 3:50 PM) www​.wsj​.com​/articles​/new​-u​-s​-dietary​-guidelines​-reject​-recommendation​-to​-cut​-sugar​-alcohol​-intake​-11609254000. 39   See id. 40   New CDC Report: More Than 100 Million Americans Have Diabetes or Prediabetes, Ctrs. for Disease Control (July 18, 2017), www​.cdc​.gov​/media ​/releases​/2017​/p0718​-diabetes​-report​.html. 41   Preponderance of the Evidence, Cornell L. Sch. Legal Info. Inst., www​.law​.cornell​.edu​/wex​/ preponderance​_of​_the​_evidence (last visited July 29, 2021). 42  Press Release, NPD Group, New Year, New Nutrition Facts Label on Food: Most U.S. Consumers Read the Nutrition Facts Label and the Top Items They Look for Are Sugars and Calories (Jan. 13, 2020), www​.prweb​.com​/pdfdownload​/16830108​.pdf. 43   U.S. Food & Drug Admin., Guidance for Industry: A Food Labeling Guide 25 (2013), www​ .fda​.gov​/media​/81606​/download [hereinafter FDA Labeling Guidance]. 44   Inst. of Med., Front-of-Package Nutrition Rating Systems and Symbols: Promoting Healthier Choices, 12 (Ellen A. Wartella et al. eds., 2011). 45   See generally Mark W. Becker et  al., Front of Pack Labels Enhance Attention to Nutrition Information in Novel and Commercial Brands, 56 Food Pol’y 76 (2015) (noting GMA’s opposition to FOP color-coded labeling). 46   See Sophie Hieke and Jennifer L. Harris, Nutrition Information and Front-of-Pack Labelling: Issues in Effectiveness 19 Pub. Health Nutrition 2103 (2016). 38

374  Research handbook on international food law The First Amendment of the U.S. Constitution protects companies from laws that restrict and compel certain types of speech, including factual information in the commercial context; on food labels that seems to compete or conflict with manufacturers’ desired statements or claims. The First Amendment, Commercial Speech Doctrine, protects a company’s commercial speech – or speech that proposes a commercial transaction, such as advertising and labeling.47 The food industry has challenged a wide range of labels under the First Amendment, including calorie disclosure, sodium warning labels on menus,48 genetically modified organisms, and country-of-origin labels on food products.49 Requiring an FOP disclosure of total sugar and added sugar quantities could lead to a legal challenge. Any federally mandated FOP scheme would be subject to and would need to meet the test developed in the Supreme Court case, Zauderer v. Office of Disciplinary Counsel.50 Under the Zauderer test, the Supreme Court held that commercial disclosure requirements, including warnings and disclaimers, are constitutional if they (a) are “reasonably related to the State’s interest in preventing deception of consumers,” (b) require purely factual, accurate, and uncontroversial information about the product or service itself, and (c) are not “unjustified or unduly burdensome.”51

3. SUGAR LABELING IN THE UNITED STATES: CHALLENGES Several issues with sugar labeling have emerged since 2009 when the FDA initially contemplated mandatory FOP nutritional labeling. Despite the new NFP and the added sugar presentation, recent class action litigation and industry letters highlight four concerns with sugar labeling in the United States: (1) added sugars created during food processing are not included as “added sugars” on the nutritional label, (2) even when sugar is identified, food packages do not reveal the glycemic loads associated with different sugars, (3) total sugar and added sugar labeling on the NFP is inconsistent with unauthorized and implied “low sugar” claims on the front of the package, and (4) nutritive and non-nutritive sweeteners (like aspartame, saccharin, etc.) are not labeled as “sweeteners” on the ingredients label. Each issue is discussed in turn in the following. Notably, the following paragraphs question whether and to what extent additional formal regulation is necessary. It could very well be that in some countries, other legal and nonlegal mechanisms exist to fill regulatory gaps, so additional regulation is unnecessary. The U.S., for instance, has a unique tradition of class action litigation which often fills regulatory gaps short of direct regulation. In the U.S., when a small number of plaintiffs represent a much larger number of injured victims in a lawsuit, the legal action is called a “class action lawsuit.” The number of people included in a class action lawsuit can range from several dozen to several million. These lawsuits are appropriate and useful for holding companies accountable in cases where the harm caused to each individual is very small – so small that it may not be worthwhile for any one person to sue over it. Class action lawsuits, verdicts, and settlements play a necessary  Zauderer v. Off. of Disciplinary Couns. of Sup. Ct., 471 U.S. 626 (1985).   See N.Y. State Rest. Ass’n v. N.Y.C. Bd. of Health, 556 F.3d 114 (2d Cir. 2009); Nat’l Rest. Ass’n v. N.Y.C. Dep’t of Health & Mental Hygiene, 148 A.D.3d 169 (N.Y. App. Div. 2017). 49   See Grocery Mfrs. Ass’n v. Sorrell, 102 F.Supp.3d 583 (D. Vt. 2015); Am. Meat Inst. v. U.S. Dep’t of Agric., 760 F.3d 18 (D.C. Cir. 2014). 50   See Zauderer, 471 U.S. 626. 51   Id. at 268–69. 47

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regulatory “gap-filling” role in society: they influence corporate behavior short of direct regulation and formal rule-making.52 3.1 Disclosing Added Sugars Created during Food Processing on Nutritional Labeling The FDA requires producers to list all sugars and added sugars used in packaged foods. The FDA also requires the non-incidental sugars that are created in the process of making foods to be presented as added sugars on the NFP.53 This means that sugars produced through the controlled hydrolysis of starch or other complex carbohydrates in the production of plant-based beverages, including those made from oats and rice, and other foods need to be declared as added sugars on the Nutrition Facts label.54 There are numerous examples of foods that create sugar in the production process, including the popular health drink kombucha.55 Originating from China, this sparkling fermented beverage is made from tea and sugar mixed with a symbiotic culture of bacteria and yeast (SCOBY).56 Controlled hydrolysis begins when the bacteria turn the ethanol into acetic acid, while the yeast turns the initial sugar into ethanol and carbon dioxide.57 Since the hydrolysis process is controlled, the manufacturer can determine the amount of sugars created and present them in the final food that reaches the consumer.58 However, some producers, as seen below, ignore this requirement and list zero grams of added sugar on their nutritional labeling even when they use these processes. The story of Oatly oat milk. Oatly is a popular brand of oat milk used in many national coffee shops and oat milk is generally considered a healthy alternative.59 Oatly is lauded as environmentally friendly in terms of water used because compared to almond milk – which requires 15.3 gallons of water to produce 16 almonds (considered a single serving) – oat milk requires far less water to produce.60 This specific brand markets its oat milk as “it’s like milk,

  See generally Alexia Brunet Marks, A New Governance Recipe for Food Safety Regulation, 47 Loy. U. Chi. L. J. 907 (2016). 53   U.S. Food & Drug Admin., Guidance For Industry: Nutrition and Supplement Facts Labels Questions and Answers Related to the Compliance Date, Added Sugars, and Declaration of Quantitative Amounts of Vitamins and Minerals 20–22 (2019), www​.fda​ .gov​/media ​/117402​/download [hereinafter FDA 2019 Guidance]. 54   Id. 55  Karolina Jakubczyk et al., Chemical Profile and Antioxidant Activity of the Kombucha Beverage Derived from White, Green, Black and Red Tea, 9 Antioxidants 447 (2020), www​.ncbi​.nlm​.nih​ .gov​/pmc​/articles​/ PMC7278673/. 56  Dawn MacKeen, Are There Benefits to Drinking Kombucha? N.Y. Times (Oct. 16, 2019), www​. nytimes​.com ​/2019​/10​/16​/style​/self​-care​/ kombucha​-benefits​.html. 57  David Disan, Kombucha as a Model for Fermentation, The Rockefeller Univ., https://rockedu​. rockefeller​.edu​/component​/ kombucha​-model​-fermentation/ (last visited July 23, 2022). 58   See FDA 2019 Guidance, supra note 53, at 20. 59  Kelly Oakes, Which Milk Alternative Should We Be Drinking?, BBC (Feb. 10, 2020), www​.bbc​.com​ /future​/article​/20200207​-which​-milk​-alternative​-should​-we​-be​-drinking. 60  Larry Buchanan, Josh Keller & Haeyoun Park, Your Contribution to the California Drought, N.Y. Times (May 21, 2015), www​.nytimes​.com​/interactive​/2015​/05​/21​/us​/your​-contribution​-to​-the​-california​-drought​.html. See also Clara Guibourg & Helen Briggs, Climate Change: Which Vegan Milk Is Best?, BBC (Feb. 22, 2019), www​.bbc​.com​/news​/science​-environment​- 46654042. 52

376  Research handbook on international food law but made for humans.”61 Oatly posts its sustainability report on its website.62 Oatly used to pride itself on producing its oat drinks with no added sugar. On its international webpage, it boasts that “there is no added sugar whatsoever” in its oat milk.63 In the U.S., however, Oatly used to include zero grams of added sugars on its packaging until the Campbell Soup Company raised a claim against Oatly in June 2019 on behalf of its subsidiary Pacific Foods of Oregon LLC, which also sells oat milk.64 The claim against Oatly was brought to the National Advertising Division (NAD), an industry organization that monitors and evaluates truth and transparency in national advertising.65 The NAD does not impose rules, but rather serves as a branch of self-regulation for independent advertising to “hold companies to established standards for claim substantiation.”66 The NAD challenged Oatly’s claim of “no added sugars” for their Barista Edition Oatmilk, Oatmilk Chilled, Low-Fat Oatmilk Chilled, and Chocolate Oatmilk Chilled.67 The NAD contended that the “0 grams of added sugar” claims on the NFP for Oatly’s oat milk products were misleading due to the hydrolysis process that breaks down oats into their loose fibers and mixes them together, creating sugar in the process.68 After the NAD claim was brought forward, Oatly willingly adjusted its labeling to reflect the 7 grams of added sugar per serving in its oat milk products, stating that it “supports the self-regulatory process and agrees to comply with NAD’s recommendations.”69 3.2 Disclosing the Glycemic Index of Different Sugars The Oatly example illustrates another nuance with sugar labeling rules – that no two sugars are alike. Food science is so sophisticated, making it difficult to regulate and list the ingredients that undergo chemical changes and are transformed or created through processing. In the Oatly example, the controlled hydrolysis process that converts oats into oat milk creates a sugar called maltose.70 With the NAD claim, Oatly now presents 7 grams of added sugar  Abigail Macklin, “It’s Like Milk But Made for Humans”: Oatly Capitalizes on Controversy in GC Distinctiveness Decision, D Young & Co. (March 23, 2021), www​.dyoung​.com​/en​/ knowledgebank​ /articles​/tm​-oatly​-general​-court. 62   Annual Reports, Oatly (Apr. 6, 2022), https://investors​.oatly​.com​/financial​-information​/annual​ -reports. 63   Oat Drink, Oatly Int’l, www​.oatly​.com​/stuff​-we​-make​/oat​-drink​/oat​-drink​-1l (last visited July 23, 2022). 64  Cathy Siegner, Oatly Stops Advertising “No Added Sugars” After Challenge From Campbell, FoodDive (July 2, 2019), www​.fooddive​.com​/news​/oatly​-stops​-advertising​-no​-added​-sugars​-after​ -challenge​-from​-campbell​/558016/. 65   Id. 66   La Toya Sutton, Truth-in-Advertising: Who Makes the Rules?, Better Bus. Bureau Nat’l Programs (Apr. 29, 2021) https://bbbprograms​.org​/media​-center​/ bd​/insights​/2021​/04​/29​/truth​-in​ -advertising​-rules. 67   See Siegner, supra note 64. 68   So, Where Does the Sugar in Your Oatmilk Come From?, Oatly: Random Answers, www​.oatly​ .com​/en​-us​/en​-us​/random​-answers (last visited July 23, 2022). 69  Elaine Watson, Oatly Challenged Over “No Added Sugars” Claim on Unsweetened Oatmilk, FoodNavigator-USA (June 28, 2019), www​.foodnavigator​-usa​.com ​/Article​/2019​/06​/29​/Oatly​ -challenged​-over​-no​-added​-sugars​-claims​-on​-unsweetened​-oatmilk. 70  Inés Oort Alonso, Oat Milk: How Its Made, Food Unfolded (Dec. 27, 2021), www​.foodunfolded​ .com​/article​/oat​-milk​-how​-its​-made. 61

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per serving on the NFP. It does not, however, present on the package the type of sugar that was created. While the FDA guidance for industry requires that manufacturers disclose added sugars created through controlled hydrolysis71 on the NFP – the FDA does not require manufacturers to disclose the type of sugar created. For this reason, maltose is not on the ingredients label. Those familiar with maltose know that it has a very high glycemic index, with a rating of 105 out of 100,72 compared to table sugar (sucrose), which has a moderate rating of 65.73 A glycemic index measures the relationship between carbohydrates and blood glucose levels over two hours on a scale of 1 to 100, with 55 or less (low) and 70 and above (high).74 Adjusting for the higher glycemic index of maltose, drinking a 12-ounce latte made with Oatly equates to adding nearly a tablespoon of table sugar into your drink.75 This example provides three points for reflection. First, should the rules provide more transparency in production processes – could the FDA rules be updated to include a disclosure for produced sugars? Second, should manufacturers, through advances in food science and technology, reformulate foods to avoid creating added sugars? Interestingly, a competing brand of oat milk, Quaker-Brand Oat Beverage,76 replaced raw oats with oat bran concentrate as the base for its beverage so that the product could list zero grams of natural or added sugars. Third, what role do consumers play in advancing regulatory change and manufacturing reformulation? Consumers, one would argue, need to demand foods lower in sugar content to drive reformulation. Only when consumer tastes and preferences shift to unsweetened products will manufacturers react and produce more of those products; if, however, consumers continue to crave sugar, the market will continue to deliver foods to fill those needs. 3.3 Regulating Total Sugar and Added Sugar Content on the Front-of-Package The FDA is responsible for regulating food labeling and packaging.77 The FD&C Act authorizes the FDA to issue regulations for food product labeling and claims.78 It enables the FDA “to protect the public health by ensuring that foods are safe, wholesome, sanitary, and properly

  See FDA 2019 Guidance, supra note 53.   Alan Barclay et al., The Ultimate Guide to Sugars & Sweeteners: Discover the Taste, Use, Nutrition, Science, and Lore of Everything from Agave Nectar to Xylitol 43 (2014). 73  Fiona Atkinson et al., International Tables of Glycemic Index and Glycemic Load Values: 2008, 31 Diabetes Care 2281, 2282 (2008). 74  Lester Wan, Australia Still Leading the Way with Low-GI Products but Hopes Are High that Asia Can Follow Suit, FoodNavigator-Asia (June 19, 2018, 2:54 AM), www​.foodnavigator​-asia​.com​ /Article​/2018​/06​/19​/Australia​-still​-leading​-the​-way​-with​-low​- GI​-products​-but​-hopes​-are​-high​-that​ -Asia​-can​-follow​-suit#. 75  Nat Eliason, Oatly: The New Coke, Every (Aug. 7, 2020), https://every​.to​/almanack​/oatly​-the​-new​ -coke​-821556. See also Jeff Nobbs, Oatly Responds In Defense of Its Ingredients, Jeff Nobbs (Feb. 13, 2020), www​.jeffnobbs​.com​/posts​/oatly​-responds​-in​-defense​-of​-its​-ingredients (discussing calculations that equate Oatly to a tablespoon of sugar). 76  Sam Danley, PepsiCo Discontinues Quaker Oat Beverage, Food Bus. News (Nov. 18, 2019), www​. foodbusinessnews​.net ​/articles​/14912​-pepsico​-discontinues​-quaker​-oat​-beverage. 77   Food Ingredients & Packaging, U.S. Food & Drug Admin. (Apr. 21, 2021), www​.fda​.gov​/food​/ food​-ingredients​-packaging. 78  21 U.S.C. § 321(m). 71

72

378  Research handbook on international food law labeled.”79 The FD&C Act explicitly bans the “misbranding” of food in interstate commerce.80 Section 343 of the FD&C Act details under what conditions food is deemed misbranded, including rules to identify claims that are “false or misleading in any particular.”81 Food industry participants, regulators, and consumers are aware that food advertisements and claims on the FOP are intended to sway food choices, especially in children and adolescents.82 Naturally, after the FDA required an added sugar presentation on the NFP, food manufacturers shifted their marketing approach to understate sugar amounts by: (1) using different names for what was essentially sugar, (2) using unauthorized or implied “low sugar” claims on the front of packages, and (3) using alternative no-calorie sweeteners but not labeling them as added sweeteners. The first two approaches are related to the litigation featured next, and the third approach is the topic of the following section. The story of Whole Foods breakfast cereal and Kind Clusters. Several examples illustrate the extent to which the food industry obscures sugar content by using different names for sugar.83 The first example is the ingredients list of the chain supermarket Whole Foods’ breakfast cereal, which lists “organic dehydrated cane juice solids” as the second ingredient on its popular instant oatmeal packaging.84 In a class action suit against the company, the plaintiffs argue that this is an attempt to trick health-conscious consumers into purchasing a product that has sugar as one of its main ingredients.85 The FDA speaks directly to this issue in its Food Labeling Guide, where it states that companies are expected to list the common name for ingredients unless there is a regulation that provides for a different term – i.e., “sugar” should be listed instead of “sucrose,” its scientific name.86 A second similar example can be found in the ingredients list of Kind Clusters. In a complaint brought against Kind, LLC,87 a company that produces granola bars and other “healthy” snacks, the plaintiffs alleged that the label on one of the products, the Vanilla Blueberry Clusters, is deceptive because it lists “evaporated cane juice” (another name for sugar cane syrup)88 as an ingredient.89 Ironically, in 2015, the products’ promotional materials prided the clusters on containing “no refined sugars,” “ingredients you can see and pronounce,” and “no secret ingredients.”90 The claims against Kind and Whole Foods were dismissed; nonetheless,  Lockwood v. Conagra Foods, Inc., 597 F.Supp.2d 1028, 1030 (N.D. Cal. 2009) (quoting 21 U.S.C. §393(b)(2)(A)). 80  21 U.S.C. § 331(a). 81   Id. § 343(a)(1). 82  Ctr. for Nutrition in Schs., How Can Advertisements Influence Your Food Choices?, Univ. Of Cal. Davis (January 22, 2020), https://cns​.ucdavis​.edu​/news​/ how​-can​-advertisements​-influence​-your​ -food​-choices. 83  Julie Steinberg, Whole Foods Hides Instant Oatmeal’s Sugar, Suit Says, Bloomberg (Nov. 15, 2019, 10:32 AM), https://news​.bloomberglaw​.com​/product​-liability​-and​-toxics​-law​/whole​-foods​ -hides​-instant​-oatmeals​-sugar​-suit​-says. 84  Warren v. Whole Foods Market Group Inc., No. 1:19-cv-06448 (E.D. N.Y. filed Nov. 15, 2019). 85   See Steinberg, supra note 83. 86   See FDA Labeling Guidance, supra note 43, at 7. 87  KIND, www​.kindsnacks​.com/ (last visited August 27, 2022). 88  David Schultz, Evaporated Cane Juice: Sugar in Disguise?, NPR: The Salt (October 18, 2012, 2:06 PM), www​.npr​.org​/sections​/thesalt ​/2012​/10​/18​/163098211​/evaporated​-cane​-juice​-sugar​-in​ -disguise. 89  Ibarrola v. Kind, LLC, 83 F.Supp.3d 751 (N.D. Ill. 2015). 90  Elaine Watson, Judge Tosses “No Refined Sugars” Case vs KIND Healthy Snacks, but Attorney Says It Had a Lucky Escape, Bakery & Snacks (Mar. 23, 2015, 3:25 AM), www​.bakeryandsnacks​.com​/ Article​/2015​/03​/23​/Judge​-tosses​-no ​-refined​-sugars​- case​-vs​-KIND ​-Healthy​-Snacks.  See KIND Promise, KIND, www​.kindsnacks​.com​/promise​.html (last visited July 26, 2022). 79

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these types of suits demonstrate the variety of confusion different sugars cause and mounting consumer frustration with misleading claims. The story of Snapple Beverage. As the United States per capita consumption of refined sugars continues on an upward trend,91 the number of unauthorized and implied “low sugar” claims on packaged foods has trended in the same direction.92 The problem is that consumers are misled by unauthorized or implied “low sugar” claims made on the front of packages which, if they took the time to look, would not match up with the information on the NFP. The FDA specifies in its Food Labeling Guide that the claim, “low sugar” is not defined and may not be used on packaging.93 Despite this, companies like Snapple market their products as being less sweet than the level of added sugar in the beverage. Such claims are not only violative but also particularly misleading and pose a specific risk of harm to consumers seeking to lower their sugar consumption, including those with diet-related diseases, such as Type 2 diabetes. In Sommer v. Snapple Beverage Corp.94 – the latest in a line of implied low sugar claim cases95 – plaintiff consumers asserted that Snapple’s claim, “Sorta Sweet,” on the front label of Snapple’s Straight Up Tea, is an implied “low sugar” claim.96 While there is no set standard for what is considered low sugar, as a general guide, a 5% daily value or less of a nutrient per serving is considered low.97 One bottle contains 22 grams of added sugar98 which, compared to the American Heart Association’s recommended daily value of added sugar for women (24 grams per day) and men (35 grams per day),99 makes drinking one of these beverages almost 92% of a woman’s recommended added sugar for a single day. Snapple argues that advertising the beverage as “Sorta Sweet” on the label merely refers to the drink’s taste, not any particular level of sugar content.100 Interestingly, the company has stated that “No reasonable consumer goes through the mental gymnastics of redefining the puffery of ‘Sorta Sweet’ to mean ‘low in sugar’ while simultaneously ignoring the portions of the label that undo that implausible interpretation.”101 This suggests that consumers take the time to look at the nutrition facts label before purchasing packaged foods and

 Econ. Rsch. Serv., Food Availability (Per Capita) Data System:Sugars and Sweeteners Data Set, U.S. Dep’t of Agric. (Jan. 5, 2021), www​.ers​.usda​.gov​/data​-products​/food​-availability​-per​-capita​ -data​-system/ (data found on spreadsheets reveals the historic rise in sweetners per capta).  92  Todd Harrison, Kristen Klesh, Olisa Onyiuke & Melanie English, Sugar Content Claim Litigation on the Rise, Neutraceuticals World (March 14, 2022), www​.nutraceuticalsworld​.com​/issues​ /2022​- 04​/view​_columns​/sugar​-content​-claim​-litigation​-on​-the​-rise/.  93   See FDA Labeling Guidance, supra note 43, at 90.  94  Sommer v. Snapple Beverage Corp., No. 20-cv-04181-JST, 2021 WL 6754525, at *1 (N.D. Cal. 2021).  95   See, e.g., Salazar v. Honest Tea, Inc,, 74 F. Supp.3d 1304 (E.D. Cal. 2014); Hadley v. Kellogg Sales Co., 273 F.Supp.3d 1052 (N.D. Cal. 2017); Krommenhock v. Post Foods, LLC, 255 F.Supp.3rd 938 (N.D. Cal. 2017).  96  Snapple, All-Natural Sorta Sweet Tea, Straight Up Tea, www​.straightuptea​.com​/straight​-up​ -sorta​-sweet​-tea (last visited July 29, 2021).  97  Nutrition Source, Added Sugar, Harv. T.Chan Sch. of Pub. Health, www​.hsph​.harvard​.edu​/ nutritionsource​/carbohydrates​/added​-sugar​-in​-the​-diet/ (last visited July 29, 2021).  98  Snapple, supra note 96.  99  Nutrition Source, supra note 97. 100  Mike Curley, Snapple Looks to Escape ‘Sorta Sweet’ Tea False Ad Suit, Law360 (Jan. 15, 2021 7:07  PM),  www​.law360​.com ​/articles​/1345644​/snapple​-looks​-to ​- escape​-sorta​-sweet​-tea​-false​ad​-suit. 101   Id.  91

380  Research handbook on international food law beverages – which evidence shows is not the case – only 57% of consumers who read the NFP look for sugars.102 3.4 Accurately Labeling Sweeteners, Aspartame, Saccharin, and Others on Food Packaging The new NFP and the added sugar line prompted consumer groups and industry participants to monitor ingredients found in packaged foods. The added sugar disclosure, they feared, would lead to a rise in sugar substitutes. Consumers have little idea that when they purchase a no/reduced sugar product, they may buy a food that contains alternative sweeteners or highly processed or artificial substances. Low-calorie (nutritive) and no-calorie (non-nutritive) sweeteners include aspartame, saccharin, acesulfame potassium, neotame, sucralose, and steviol glycosides (stevia), to name a few. The problem with sugar substitutes is that they are not clearly identified as sweeteners on food labels. In 2020 the Sugar Association, representing 142,000 sugar beet and cane growers, processors, and refiners in the United States, asked the FDA to require complete and accurate labeling of alternative sweeteners on food packages.103 Food and beverage manufacturers who make deceptive claims implying that their products are free of sugar alternatives need to comply with Section 403(a)(1), which defines “misleading” claims under the FD&C Act.104 Even when manufacturers list the names of alternative sweeteners in the ingredient list, consumers may still be misled by ingredient names that they do not recognize as sweeteners.105 Since many of these sweeteners are appearing in children’s products, the citizen petition calls for children’s food and beverages to indicate the type and quantity of non-nutritive sweeteners in milligrams per serving, on the front of food packages. In addition, the Sugar Association is also requesting products making a sugar content claim (i.e., no/low/reduced sugar) to require the disclosure, “Sweetened with [name of Sweetener(s)]” beneath the claim.106 In sum, this section raises the question: what should a consumer read on a product label? To answer this question, courts normally apply the reasonable consumer standard – that is, whether there is a probability that a significant portion of the general consuming public or targeted consumers, acting reasonably in the circumstances, could be misled. From the foregoing examples, would a reasonable consumer be misled by the stories, and if so, is there a need for more regulation?

4. SUGAR LABELING: OTHER COUNTRY APPROACHES With class actions and industry letters, regulators and others are invariably contemplating future regulation – but what kind of regulation? This section aims to present some potential  NPD Group, supra note 42.  Citizen Petition, Sugar Association, Docket No. FDA-2020-P-1478 (June 3, 2020), www​.sugar​.org​ /wp​-content​/uploads​/Sugar​-Assoc​-Citizen​-Petition​-to​-FDA​-June​-3​-2020​.pdf; see also Letter from Susan T. Mayne, Ctr. for Sci. in the Pub. Int., to the U.S. Food & Drug Admin. (Jan. 9, 2020) (on file at www​.cspinet​.org​/sites​/default​/files​/attachment​/ Low​_ Sugar​_ Letter​-1​.9​.20​.pdf). 104  Citizen Petition, supra note 103, at 3. 105   Id. 106   Id. at 5. 102 103

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solutions by introducing other country approaches to sugar labeling. First, as used throughout Australia, glycemic labeling and certifications could address the concern that food labeling does not reveal the glycemic loads associated with different sugars. Second, FOP nutritional labeling approaches used in Europe (NutriScore) and Chile (Stop Sign Warning Labels) could validate and correct inconsistent sugar labeling in the United States. A mandatory FOP could address the issue that total and added sugar labeling on the NFP is sometimes inconsistent with unauthorized and implied “low sugar” claims on the front of the package. Finally, the European system for labeling nutritive and non-nutritive sweeteners (e.g., aspartame, saccharin, etc.) as “sweeteners” on the ingredients list is mentioned to address the concern in the United States that the chemical names for sweeteners are listed without their intended function on the ingredients label. Each of these approaches is discussed in the following. Some countries are moving toward FOP food labels – mandatory (Chile) and voluntary (Australia, France, Spain, Belgium, Netherlands, Germany) – that incorporate symbols, schemes, or systems designed to communicate concise and useful nutrition-related information to consumers to facilitate healthier food choices.107 This section presents examples of FOP approaches to labeling sugar using guideline daily amounts (GDAs), color-coded GDAs, glycemic index indicators, traffic light symbols, and warning labels. 4.1 Color-Coded Nutritional Labeling Systems in Australia and Europe Countries are experimenting with color-coded systems in different ways. Australia launched its “Smart Choices” movement in 2005 to combat childhood overweight and obesity.108 Smart Choices are school nutrition standards that separate foods and drinks into three categories “green, amber and red,” based on their energy, saturated fat, sugar, sodium, and fiber content.109 Items in the green category include foods and drinks that children should “have plenty” of; while items in the amber category include foods and drinks that children should be “selected carefully”; items in the red category are foods and drinks that should be sold on no more than two occasions per term.110 Smart Choices ensures that “red” foods and drinks, those high in saturated fat, added sugar, or salt, are eliminated across the entire school environment, and in these places, soft drinks, energy drinks, deep-fried foods, sweet pastries, and large servings of cakes and muffins are not served more than twice per school term.111 Implementing the Smart Choices program was challenging. Some school canteens reported decreased profits and less satisfaction with the new limited range of healthy products.112 There was also a concern that nutrient-based standards might simply lead to the replacement of

 Jennifer L. Pomeranz et al, Mandating Front-of-Package Food Labels in the U.S. – What Are the First Amendment Obstacles?, 86 Food Pol’y 101722 (2019). See generally Alexia Brunet Marks, Taming America’s Sugar Rush: A Traffic-Light Label Approach, 62 Ariz. L. Rev. 683 (2020). 108   State of Queensland, Smart Choices: Healthy Food and Drink Supply Strategy for Queensland Schools (2020), https://education​.qld​.gov​.au​/student​/ Documents​/smart​-choices​ -strategy​.pdf (Austl.). 109   See id. at 6. 110   Id. 111   Id. 112  M. Dick et  al., Evaluation of Implementation of a Healthy Food and Drink Supply Strategy Throughout the Whole School Environment in Queensland State Schools, Australia 66 Eur. J. Clinical Nutrition 1124 (2012). 107

382  Research handbook on international food law foods with similar foods that are lower in “bad” nutrients but still of poor nutritional value, as seen in California’s statewide school nutrition policy.113 It was also difficult to monitor this system as there was no evaluation tool to verify that the policy was working, a factor that could ultimately prevent the program from reaching its intended impact.114 Studies show, and experiences suggest, that a simple, color-coded system for labeling packaged foods increases consumers’ attention to the nutritional value of their food choices.115 Several European countries have also experimented with similar traffic-light nutritional labeling programs, this time on the FOP. The United Kingdom was the first to develop a voluntary traffic-light FOP nutritional labeling program.116 The FDA exhibited interest in the approach in 2009,117 but the United States food industry resisted such a display.118 Soon thereafter, France, Spain, Belgium, the Netherlands, and Germany adopted the same FOP system, the NutriScore, another voluntary FOP traffic-light nutritional label approach.119 While the NutriScore is one among several voluntary nutritional labeling approaches used in Europe, the European Commission is due to select one competing front-of-package nutritional label for European Union-wide adoption.120 All of these approaches are voluntary. Generally, the use of nutrient warning labels on packaged foods and drinks has become an emerging area of interest for many countries as more studies show that food labeling supports informed consumer choice, which can effectively change consumer behavior and lead food industry participants to reformulate successfully (remove or change ingredients through changing recipes on their products).121 While food reformulation is often a realistic chance to provide healthier and more sustainable food choices to consumers, it is fair to say that it presents technological problems and may be cost-prohibitive in some cases. Most ingredients in processed foods are there for a purpose, and adding or removing ingredients can change the food’s safety, texture, and taste. Some companies have been successful with reformulation, nonetheless. Danone Inc., for instance, has been able to reduce the sugar and fat content of its

  See Gail Woodward-Lopez et  al., Lessons Learned from Evaluations of California’s Statewide School Nutrition Standards 100 Am. J. Pub. Health 2137, 2142 (2010). 114  Emalie Rosewarne et al., A Comprehensive Overview and Qualitative Analysis of GovernmentLed Nutrition Policies in Australian Institutions 20 BMC Pub. Health 1038 (2020). 115   See Becker et al., supra note 48, at 82. 116  Sarantis Michalopoulos, “Traffic Light” Food Labels Gain Momentum Across Europe, Euractiv (June 19, 2017), www​.euractiv​.com​/section​/agriculture​-food​/news​/traffic​-light​-food​-labels​-gain​ -momentum​-across​-europe. 117   See Jennifer L. Pomeranz et al., Mandating Front-of-Package Food Labels in the U.S. – What Are the First Amendment Obstacles? 86 Food Pol’y 101722 (2019) (noting that the U.S. began considering FOP color coded labeling in 2009). 118   See Becker et al., supra note 45. 119   Battle of the Labels: How Should the EU Update Food Packaging Labels to Encourage Healthier Choices?, Eur. Inst. of Innovation & Tech. (April 2, 2020), www​.eitfood​.eu​/ blog​/post​/ battle​-of​ -the​-labels​-how​-should​-the​-eu​-update​-food​-packaging​-labels​-to​-encourage​-healthier​-choices. 120   See id. 121   See, e.g., Andis Robeznieks, Why Added-Sugar Nutrition Labeling Could Save Lives, Money, Am. Med. Ass’n (Apr. 19, 2019), www​.ama​-assn​.org​/delivering​-care​/public​-health​/why​-added​-sugar​ -nutrition​-labeling​-could​-save​-lives​-money. See also Siyi Shangguan et al., A Meta-Analysis of Food Labeling Effects on Consumer Diet Behaviors and Industry Practices 56 Am. J. Preventative Med. 300, 309 (2019). 113

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Brazilian children’s brand by 32% and 35%, respectively,122 to the extent that 82% of Danone’s sales volumes are now compliant with its nutritional targets.123 4.2 Stop Sign Nutritional Warning Labels in Chile A few countries have adopted mandatory FOP nutritional labeling, which uses warning stop signs for foods and beverages that have over 50% of the recommended daily value of added sugar in a single serving. Warning labels, like a traffic-light nutritional label, nudge consumers toward healthier diets because people tend to pay more attention to negative messages than positive ones.124 Behavioral economists have confirmed the principle of loss aversion, which means people are predisposed to avoid harm rather than seek gain.125 Without warning labels, people may react reflexively and select foods that provide immediate pleasure but cause long-term harm. The food environment is increasingly designed with too many stimuli and novel new foods, and an excess of complicated information ends up fostering impulsive and unhealthy choices. To encourage a change in habits, new cues like warning labels and environments conducive to choosing a healthy diet are necessary. To combat high rates of obesity and heart disease, Chile passed a food labeling law in 2012 (implemented in 2016) and other marketing restrictions on unhealthy foods and beverages, particularly as they applied to advertising aimed at children.126 A national health survey found that nearly 45% of Chilean children and almost 75% of adults were overweight or obese, with a greater prevalence among lower-class individuals.127 The food labeling law requires mandatory black stop-signs signs on packaged foods and drinks that exceed daily value limits for sugar, salt, saturated fat, or calories and bans the sale of such food and drink at schools.128 Several other Latin American countries are considering a similar approach.129 Results from a national study comparing purchases of sugary drinks before and after the introduction of the regulations in Chile suggest that these warning messages have reduced the

  See How Can We All Fight Childhood Obesity, EIT Food (Oct. 27, 2020), www​.eitfood​.eu​/ blog​/ how​-can​-we​-all​-fight​-childhood​-obesity. 123   Better Products, Danone, www​.danone​.com ​/impact​/ health ​/continuous​-improvement​-by​-design​ .html (last visited July 29, 2021). 124   See Ynte K. Van Dam & Janneke de Jonge, The Positive Side of Negative Labelling, 38 J. Consumer Pol’y 19 (2015). 125   See Daniel Kahneman et al., Experimental Tests of the Endowment Effect and the Coase Theorem, 98 J. POL. ECON. 1325, 1326–28 (1990). 126  Marcela Reyes et al., Development of the Chilean Front-of-Package Food Warning Label, 19 BMC Public Health 906, 906–07 (2019). 127   See Org. for Econ. Coop. & Dev., OECD Reviews of Public Health: Chile A Healthier Tomorrow 12 (2019), www​.oecd​.org​/ health ​/ health​-systems​/OECD​-Reviews​-of​-Public​-Health​ -Chile​-Assessment​-and​-recommendations​.pdf. 128   See Reyes et al., supra note 131. 129   See UNICEF/Instituto Nacional de Salud Pública de México, Review of Current Labelling Regulations and Practices for Food and Beverage Targeting Children and Adolescents in Latin America Countries (Mexico, Chile, Costa Rica and Argentina) and Recommendations for Facilitating Consumer Information (2016), www​.unicef​.org​/ lac​/media ​/1876​/file​/ PDF​%20An​%C3​%A1lisis​%20de​%20regulaciones​%20y​%20pr​%C3​%A1cticas​ %20para​%20el​%20etiquetado​%20de​%20alimentos​%20y​%20bebidas​%20ING​.pdf. 122

384  Research handbook on international food law purchase and consumption of unhealthy foods.130 The study reported a 25% drop in the consumption of sugar-sweetened drinks in the 18 months after the new regulations were adopted and a 5% increase in the purchase of diet soft drinks, fruit juices, and water with no added sugar.131 While successful in reducing added sugar consumption in Chile, this particular approach may not be an option in the United States. Front-of-packaging labels which only disclose nutrient-specific data would likely meet First Amendment requirements, but certain colors or shapes might not qualify as being constitutional in that they may not meet the requirement to provide “purely factual, accurate, and uncontroversial information” about the product or service itself.132 4.3 Australia’s Glycemic Index Symbol Program Given that one out of every two Americans is diabetic or prediabetic,133 one suggestion would be to provide guidance for these individuals by incorporating the glycemic index system into food packaging. In 2001, the GI Foundation was established to assist food suppliers in providing healthy and nutritious foods while assisting consumers in selecting such foods.134 A year later, a Low-Gl symbol – the world’s first FOP labeling program that helps consumers identify low-GI foods when shopping – was launched in Australia.135 Since then, the GI Foundation – in collaboration with the food industry regulator, the Food Standards Australia New Zealand – has worked closely to set a baseline GI standard in the Food Standards Code.136 Between 2011 and 2013, the Food Standards Code published testing for glycemic index as well as labeling for low glycemic index.137 Evidence from Australian studies suggests that Gl symbol labeling can potentially reduce an individual’s dietary GI. Dietary survey results show that the average dietary GI in Australia decreased by 5% from 1995 to 2012.138 Moreover, awareness of GI has climbed from 28% in 2001 to over 75% since 2011. Several other countries have registered the GI symbol (Canada, the EU, Singapore, Malaysia, Japan, India, and the United States), with approval pending in Taiwan and China.139 4.4 Sugar Additive Labeling in Europe There are many categories of food additives: colors, preservatives, antioxidants, sweeteners, emulsifiers and thickening agents, flavor enhancers, and flavorings. The European  Lindsey Smith Taillie et al., An Evaluation of Chile’s Law of Food Labeling and Advertising on Sugar-Sweetened Beverage Purchases from 2015 to 2017: A Before-and-After Study, 17 PLOS Med. e1003015, at 2 (2020). 131   Id. at 10; Andrew Jacobs, Sugary Drink Consumption Plunges in Chile After New Food Law, N.Y. Times (Feb. 11, 2020), www​.nytimes​.com ​/2020​/02​/11​/ health ​/chile​-soda​-warning​-label​.html. 132   See Zauderer v. Off. of Disciplinary Couns. of Sup. Ct., 471 U.S. 626, 651 (1985). 133   National Diabetes Statistics Report, Ctrs. for Disease Control (Jan. 18, 2022), www​.cdc​.gov​/ diabetes​/data ​/statistics​-report ​/index​.html. 134   See Wan, supra note 74. 135   About the GI Symbol, Glycemic Index Found, www​.gisymbol​.com​/about​-the​-gi​-symbol/ (last visited July 29, 2021). 136   See Wan, supra note 74. 137   See id. 138   Id. 139   Id. 130

Sugar labeling 

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Commission, Parliament, and Council regulate the use of additives, and the Commission and Member States decide which additives to use in foods and at what levels. The European Food Safety Agency (EFSA) evaluates safety prior to market authorization of food additives with a number and the prefix “E” – the E number thus refers to an approved additive.140 All food additives are included in the ingredient list of a product label which must identify both the function of the food additive in the finished food (e.g., sweetener) and the specific substance used either by referring to the appropriate E number or its name (e.g., E954 for saccharin).141

5. BENEFITS OF A COMPARATIVE APPROACH TO SUGAR LABELING Comparative approaches play a valuable role in labeling reform because they can enhance best regulatory practices and inspire new regulatory solutions. Ultimately, exchanging, borrowing, and adopting other country approaches facilitate harmonized practices across borders. As debate on food labeling intensifies across the globe, evidence suggests that many countries are already converging on FOP nutritional labeling, setting a precedent for global cooperation in this area. In Latin America, ministers of health in the Southern Common Market signed a formal agreement in 2019 to develop a harmonized FOP labeling scheme for the member states. In Europe, the European Commission is due to select one of the European Union’s competing FOP nutritional labels to create a harmonized European Union-wide scheme. To be sure, world trade and economic pressure also encourage convergence. Food labeling poses a significant and ongoing challenge for global relations. For instance, persistent differences between European Union and United States’ nutritional labeling systems complicate trade and needlessly strain diplomatic relations. Nutritional labeling rules in the European Union and the United States may be similar, but slight differences in regulatory authority have allowed a proliferation of competing nutritional labels on food packages across the European Union and the Atlantic. These differences in nutritional labeling jeopardize commercial ties which between the United States and the European Union are substantial, growing, and mutually beneficial. The transatlantic economy is the largest in the world and highly integrated due largely to a massive amount of foreign direct investment by American and European companies in each other’s markets. However, the lack of harmonized nutritional labeling between the European Union and the United States hinders further integration. To the extent that product standards differ, exporters may find their goods prohibited from certain markets or subject to expensive re-labeling, re-packaging, or re-testing. For multinational food companies, label differences raise the cost of doing business and are seen as non-tariff barriers to trade. Equally concerning, multiple labels confuse consumers leading to unhealthy food purchases. False or misleading nutritional information can be life-threatening, particularly as rising childhood obesity rates in Europe, America, and Asia risk future generations’ health and safety, and emerging studies link obesity and other diet-related chronic health diseases with COVID-19 vulnerability.   Food Additives, Eur. Food Safety Agency, www​.efsa​.europa​.eu​/en​/topics​/topic​/food​-additives (last visited July 29, 2021). 141   Id. 140

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6. CONCLUSION Across the globe, pressures related to rising obesity rates and vulnerability to global pandemics are forcing regulators to reassess approaches to nutritional labeling, particularly as it concerns sugar. The overabundance of logos, labels, and symbols used to display nutritional quality on food packages impacts public health, clouding consumers’ ability to make healthy decisions. As health systems are increasingly taxed by alarming levels of obesity and diet-related chronic health disease – all the further exacerbated by the global COVID-19 pandemic – it is all the more imperative to reach a system that empowers consumers to make healthy choices. This chapter uses a comparative law approach to challenge the conventional belief that current approaches to nutritional labeling go far enough to help consumers make healthy choices to reduce sugar consumption. The United States case study illustrates an example of a country where, despite the prevalence of obesity and rise in chronic health disease, current approaches to labeling sugar are not doing enough to inform consumers. Despite introducing a new NFP and the current voluntary FOP nutritional labeling approach, pressing issues and regulatory gaps remain. The case study showed how, easily influenced by fancy trademarks and advertising on food labels, shoppers are misled by advertising claims implying that a food is low in sugar when it contains high levels of sugar or artificial sweeteners. There are stories of added sugars that are not identified on the NFP, stories of sugars created during processing that are disclosed, stories of sweeteners that are not identified as such, and stories of food manufacturers using unregulated and implied “low sugar” claims to sway consumers. Even consumers who try to adhere to a low-sugar diet may not realize that the foods they have selected are high in sugar and sweeteners that may have high glycemic sugar loads. Class action litigation highlights a need for greater transparency in sugar labeling. Among the hundreds of false labeling class actions filed every year, claims against three popular foods, Kind Clusters, Whole Foods breakfast cereal, and Snapple’s Straight Up Tea, illustrated how food labeling rules fall short in providing consumers with the information they need to select healthy foods. Labeling approaches used in other countries were presented to illustrate how the U.S. – and other countries – can benefit from a comparative “window” into competing global practices. Competing labeling schemes, including mandatory FOP schemes, glycemic labeling, and sweetener labeling, were shared to enhance current regulatory practices, broaden the scope of alternatives, and inspire new solutions to sugar labeling in the U.S. and around the globe. And yet, certain issues demand further exploration and reflection. For instance, this chapter has not surveyed the international trade challenges that different nutritional labeling approaches have previously and may invoke in the future. Since any change to a nutritional label may be interpreted as a “trade measure” implicating World Trade Organization (WTO) Technical Barriers to Trade Agreement rules, there is widespread interest in nutritional labeling approaches that are not only consistent with WTO rules but also consistent with Bilateral Investment Treaty rules that are in place.142 It was also beyond the scope of this chapter to explore in depth the process by which harmonizing nutritional labeling rules through various treaties and regulatory bodies may occur. For instance, more research is needed to evaluate how national approaches to nutritional labeling have influenced and will continue to influence the global rules which govern labeling – the Codex Alimentarius Guidelines on Nutritional Labeling.   See Brunet Marks, supra note 107.

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19. Private third-party verification of product claims: lessons from kosher certification Timothy D. Lytton

INTRODUCTION Food consumers often desire products with attributes that are not discernable from a product’s appearance. Unscrupulous sellers may be tempted to misrepresent the presence of these “credence qualities.” In response, reputable sellers wishing to distinguish truthful product claims from spurious ones can provide verification using third-party certification. Third-party certification marks on product labels attesting to a wide variety of credence qualities are now commonplace. Examples include logos for “Whole Grain” bread, “Fair Trade” chocolate, “Dolphin-safe” tuna, “Humane” beef, “Sustainable” seafood, “Rainforest Alliance” approved coffee, and thousands of “Gluten-free” and “Certified Vegan” foods. Although government regulations prohibit misleading product claims, private certification organizations play a vital role in protecting consumers. Private certification supplements government oversight, which is limited by budgetary constraints and jurisdictional boundaries. Moreover, private certifiers often specialize in verifying certain types of product claims, which allows them to develop superior expertise and more extensive experience than government regulators. However, private third-party certification only protects consumers if it is reliable. Unfortunately, private certifiers sometimes have incentives to mislead consumers. For example, a conflict of interest arises when a private third-party certifier is paid by the seller whose products or services are being certified. The certifier may reduce the rigor of audits or lower standards to retain the seller’s business or attract additional business from other sellers, or the certifier may simply wish to obtain its fee without expending much effort. Consequently, controls are often necessary to ensure the integrity of the private third-party certification. This chapter analyzes the successful global system of private third-party certification that governs kosher food. The reliability of this system derives from structural features of the market for kosher certification and social conditions in which that market is embedded. This is not to say that kosher certification is perfect—no regulatory instrument is without weaknesses and failures. Nor do I suggest that private certification is always preferable to government regulation. Each has virtues and limitations. My aim is to explain how private third-party certification works when it works well and to affirm its potential contribution to consumer protection. By identifying the aspects of kosher certification that ensure its reliability, this chapter develops a model for governments and industry stakeholders to consider when contemplating the role of private third-party certification in preventing consumer fraud.

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VERIFICATION OF PRODUCT CLAIMS From an economic perspective, third-party product certification arises as a response to two problems. The first problem is asymmetric information between producers and buyers regarding the presence of credence qualities in products, which can lead to adverse selection. Producers typically know more than consumers about how their products are made and what is in them. This is especially true regarding credence qualities. Producers who take advantage of this informational disparity to misrepresent products lacking a desired credence quality make it less profitable to sell genuine products, thereby boosting the supply of phony products and depressing the supply of genuine products. To avoid being deceived, buyers seeking genuine products will demand that producers provide verification of their product claims.1 The second problem is the challenge of collective action among producers, each of whom has an incentive to defect from a verification system. If other producers provide reliable verification of product claims, then a producer who provides phony verification can make additional profit by selling inferior products that lack the desired credence quality. If other producers provide phony verification of product claims, then a producer who provides phony verification will at least keep pace with the competition. Thus, no matter what other producers do, each producer has an incentive to provide phony verification. Third-party certification addresses this problem by taking verification out of the hands of producers, making it harder to defect.2 Types of Credence Qualities Credence qualities that are the subject of certification can be organized into different categories. One distinction is between credence qualities that confer an immediate private benefit, such as the absence of an allergen, and those that provide diffuse public goods, such as low environmental impact.3 A second distinction is between credence qualities related to the composition of the product, such as the presence of an ingredient, and those related to the process by which the product was made or marketed, such as humane treatment of animals or adherence to fair labor standards.4 Table 19.1 illustrates the resulting typology with examples.

 George Akerlof, The Market for Lemons: Quality Uncertainty and the Market Mechanism, 84 Q. J. of Econ. 488 (1970) (explaining how asymmetric information leads to adverse selection); see also W. Kip Viscusi, A Note on “Lemons” Markets with Quality Certification, 9 Bell J. of Econ. & Mgmt. 277 (1978) (applying the theory of “lemons” markets to verification of credence quality claims). 2  Game theorists refer to this incentive structure as the “prisoner’s dilemma.” For a general introduction, see Steven Kuhn, Prisoner’s Dilemma, in The Stanford Encyclopedia of Philosophy (Edward N. Zalta ed., 2019), https://perma​.cc​/G57H​-2EML. See also Mark A. Cohen & Michael P. Vandenbergh, The Potential Role of Carbon Labeling in a Green Economy, 34 Energy Econ. S54– S55 (2012) (analyzing the verification of credence quality claims as a response to the firm incentives to engage in “greenwashing”). 3  Cohen & Vandenbergh, supra note 2, at S54. 4   Tim Bartley & Shawna N. Smith, Communities of Practice as Cause and Consequence of Transnational Governance: The Evolution of Social and Environmental Certification, in Transnational Communities 347 (Marie-Laure Djelic & Sigrid Quack eds., 2010). For an extensive analysis of this distinction, see Douglas A. Kysar, Preferences for Process: The Process/Product Distinction and the Regulation of Consumer Choice, 118 Harv. L. Rev. 525 (2004). 1

Private third-party verification of product claims  389 Table 19.1  Typology of credence qualities in food products Immediate private benefit

Diffuse public good

Product-related

Gluten-free cookies

Recycled packaging

Process-related

Free-range eggs

Fair-trade coffee

Not all certifications fall clearly or neatly into one category. For example, the characterization of humane animal treatment as an immediate private benefit might not be accurate for all consumers. For some, humane animal treatment is a personal preference, the satisfaction of which confers an immediate private benefit. However, others might view it as a diffuse public good. Nevertheless, the categories themselves help explain significant variation among certification systems. For instance, immediate private benefits typically generate greater consumer demand for certification than diffuse public benefits, and criteria related to the production process are generally more complex and harder to assess than product-related qualities. The Structure of Certification Certification has multiple components: standard setting, auditing, labeling, and governance. Standard setting encompasses substantive criteria related to product attributes and procedural norms that structure the certification process. Auditing includes inspection and monitoring. Labeling involves affixing certification marks consisting of text or images that convey information to buyers. Governance entails credentialing certifiers, overseeing their performance, disciplining misconduct, and resolving disputes. Standard setting, auditing, and labeling may be conducted by a single or by separate entities. Governance is typically administered by a professional organization or trade association.5 Certification can take several forms. First-party certification, when a producer affirms its own adherence to certification standards, is also known as a declaration of conformity. Second-party certification refers to buyer verification of a producer’s product claims. Buyer verification is common in business-to-business transactions where the buyer is a commercial entity, such as a retail seller. Third-party certification is conducted by an individual or organization independent of the producer and the buyer.6 Government agencies sometimes provide third-party certification, but private entities are more common.7

 For more detailed accounts of these activities, see Maureen Breitenberg, The ABC’s of the U.S. Conformity Assessment System, Nat’l Inst. of Standards & Tech. (1997), https://perma​.cc​ /8FXW​-KK7K; Michael E. Conroy, Branded! How the “Certification Revolution” is Transforming Global Corporations 10 (2007); Graeme Auld, Constructing Private Governance: The Rise and Evolution of Forest, Coffee, and Fisheries Certification 4 (2014). 6  Breitenberg, supra note 5, at 12; see also Mark Hammer, First-, Second- & Third- Party Audits, What Are Differences?, ISO 9001 Blog, (Feb. 24, 2015), https://perma​.cc​/ MA9F​-AZ5K. 7  Fee-for-service food safety audits of farming operations by the U.S. Department of Agriculture are one example of a government certification program. See Good Agricultural Practices (GAP) & Good Handling Practices (GHP), U.S. Dep’t of Agric., https://perma​.cc​/AT7J​-78QS. 5

390  Research handbook on international food law Private third-party certification has long operated alongside government regulation.8 The two are commonly intertwined. Government officials participate in industry technical committees that develop private standards, and industry experts serve on government advisory committees and contribute detailed comments during agency rulemaking.9 Many government regulations incorporate private industry standards.10 Private certifiers frequently include regulatory compliance in their audit criteria, and government sometimes relies on private certification as an indication of regulatory compliance.11 The Dynamics of Certification Demand for private third-party certification can come from various stakeholders. Consumers may favor products from sellers who provide reliable certification of claims regarding credence qualities.12 Commercial buyers, such as retail stores, to protect their own reputation among consumers and to reduce their liability exposure, may require suppliers to provide third-party certification of product claims.13 A producer’s shareholders may call for third-party certification to ensure faithful implementation of company policies.14 A desire to forestall new or more intrusive government regulation may prompt producers to obtain private third-party certification.15 Highly motivated activists—consumer advocates, quality assurance managers, shareholders, and government agency officials—are often instrumental in successfully

  JoAnn Yates & Craig N. Murphy, Engineering Rules: Global Standard Setting Since 1880 (2019); Ross Cheit, Setting Safety Standards: Regulation in the Public and Private Sectors (1990); Timothy D. Lytton, Outbreak: Foodborne Illness and the Struggle for Food Safety 24–64 (2019).  9   See, e.g., Lytton, supra note 8, at 69–74, 122–126, 133–147. 10  Emily S. Bremmer, Incorporation by Reference in an Open-Government Age, 36 Harv. J. of L. & Pub. Pol’y 131 (2013). 11   See, e.g., Third-Party Audits and FSMA, U.S. Food & Drug Admin. (August 20, 2018), https://perma​ .cc​/JM2U​-386Q. For more detailed analysis of the relationship between private governance and public regulation, see Tim Bartley, Transnational Governance as the Layering of Rules: Intersections of Public and Private Standards, 12 Theoretical Inquiries L. 517 (2011); Hybridization of Food Governance (Paul Verbruggen & Tetty Havinga eds., 2017); Benjamin Cashore, Graeme Auld & Deanna Newsom, Governing Through Markets: Forest Certification and the Emergence of Non-State Authority (2004). 12   Magnus Bostrom & Mikael Klintman, Eco-Standards, Product Labelling and Green Consumerism (2011). 13  Tetty Havinga, Food Retailers as Drivers for Food Safety Standards (Nijmegen Socio. of Law Working Papers Series 2013/03, Sept. 27, 2013); Maki Hatanaka, Carmen Bain & Lawrence Busch, Third-Party Certification in the Global Agrifood System, 30 Food Pol’y 354 (2005); Marcel Djama, Eve Fouilleux & Isabelle Vagneron, Standard-Setting, Certifying and Benchmarking: A Governmentality Approach to Sustainability Standards in the Agro-Food Sector, in Governing Through Standards: Origins, Drivers and Limitations (S. Ponte, P. Gibbon, J. Vestergaard eds., 2011). 14  Errol Meidinger, Governance Interactions in Sustainable Supply Chain Management, in Transnational Business Governance Interactions (Stepan Wood et al. eds., 2019). 15   Doris Fuchs et  al., Introduction to Symposium on Private Agrifood Governance: Values, Shortcomings and Strategies, 28 Agric. & Hum. Values 335 (2011); Genevieve LeBaron, Jane Lister & Peter Dauvergne, Governing Global Supply Chain Sustainability through the Ethical Audit Regime, 14 Globalizations 958 (2017).  8

Private third-party verification of product claims  391 advancing demands for private third-party certification.16 Globalization has offered opportunities to expand networks of such activists, which has fueled the proliferation of private third-party certification.17 Private third-party certification harnesses a variety of market incentives to motivate producers to submit to external oversight.18 By certifying its products, a producer can often earn a price premium while incurring fewer regulatory costs and reducing liability exposure.19 Producers who fail to obtain certification risk losing market share to competitors selling certified products.20 When large retailers refuse to purchase uncertified products, third-party certification becomes a condition of market access for producers.21 Private third-party certification is often characterized as a voluntary form of governance compared to traditional forms of government regulation such as licensing or rulemaking.22 However, the various economic incentives upon which private third-party certification relies can be as strong or stronger than the risk of civil and criminal penalties for violating government regulations. Agency Problems Agency problems can undermine the reliability of private third-party certification. When a certifier is paid by a producer, a conflict of interest arises. To maintain an ongoing relationship with the producer or attract additional business, the certifier may be tempted to lower its standards or reduce the rigor of audits that serve as the basis for certification.23 One solution to this problem is for the buyer to conduct its own second-party certification or pay for third-party certification. Such arrangements align the interest of the certifier with the interest of the buyer in maintaining standards and conducting rigorous audits. Large

  Cashore et al., supra note 11, at 6, 24, 32; see also Bartley & Smith, supra note 4, at 348; Djama et al., supra note 13, at 184–185. 17  Hatanaka et al., supra note 13, at 355; Bostrom & Klintman, supra note 12, at 20; Bartley & Smith, supra note 4, at 347–350. 18   Auld, supra note 5, at 2, 4. 19  Mark A. Cohen & W. Kip Viscusi, The Role of Information Disclosure in Climate Mitigation Policy, 3 Climate Change Econ. 1250020-5; Hatanaka et al., supra note 13, at 359–360. 20   Auld, supra note 5, at 2, 9, 133–134, 229, 234, 242; Cashore et al., supra note 11, at 4, 23, 35, 67, 71, 90, 212, 292; Djama et al., supra note 13, at 184–186; Hatanaka et al., supra note 13, at 361; Stephen M. Maurer, Public Problems, Private Answers: Reforming Industry Self-Governance Law for the 21st Century (Goldman School of Public Policy Working Paper No. GSPP14-001, 2014), https://dx​.doi​.org​/10​.2139​/ssrn​.2400619. 21  Havinga, supra note 13; Hatanaka et al., supra note 13, at 361–362; Cashore et al., supra note 11, at 238–239. 22  Tim Bartley, Certification as a Mode of Social Regulation, in Handbook on the Politics of Regulation (David Levi-Faur ed., 2013) 443–444; Auld, supra note 5, at 3; Cashore et  al., supra note 11, at 9. 23  Timothy D. Lytton & Lesley K. McAllister, Oversight in Private Food Safety Auditing: Addressing Auditor Conflict of Interest, 2014 Wisc. L. Rev. 289, 297–304; Friederike Albersmeier et al., The Reliability of Third-Party Certification in the Food Chain: From Checklists to Risk-Oriented Auditing, 20 Food Control 927 (2009); Jodi L. Short & Michael W. Toffel, The Integrity of Private Third-Party Compliance Monitoring, 42 Admin. & Regul. L. News 22 (2016). 16

392  Research handbook on international food law commercial buyers, such as retail chains, frequently conduct their own supplier audits or pay for third-party audits.24 However, this solution is not feasible when the buyer is an ordinary consumer. Individual consumers lack the expertise required to conduct these audits. Moreover, unlike retail stores, which buy in bulk, individual consumers lack sufficient buying power to obtain access to a producer’s operations, nor can they spread the cost of certification over hundreds or thousands of production units. Additionally, even if they could overcome the considerable costs of organizing a group to act on their behalf, consumers could not arrange third-party certification audits because production of the goods consumers want certified normally occurs before their decision to purchase. Another solution might be to rely on third-party certification by a government agency. However, in many cases, government agencies lack the necessary resources and expertise to verify claims regarding the extensive and growing variety of credence qualities desired by consumers.25 Moreover, government auditors are not entirely immune from conflicts of interest. Government auditors may have ongoing relationships with regulated entities that lead them to relax standards or reduce the rigor of inspections, or they may inflate compliance scores to bolster claims about the effectiveness of their oversight.26 Various forms of oversight can counteract the conflict of interest that undermines the reliability of private third-party certification paid for by producers. Some certification firms develop quality control systems to maintain the integrity of their services, using managers to oversee the work of auditors. Such internal oversight can boost the credibility of a certification firm among consumers, making it more attractive to producers. Oversight can also come from outside entities. Accreditation is a form of external oversight in which third-party accreditation organizations audit and certify certifiers.27 Competition among certifiers is an additional way to improve the reliability of private thirdparty certification, although it can cut both ways. On the one hand, competition can incentivize investment in better oversight among certifiers whose appeal to producers is based on confidence in their certification among consumers. On the other hand, competition can fuel a

  See Lytton, supra note 8 at 207–208; Ashley Palmarozzo, Jodi L. Short & Michael W. Toffel, Auditor Independence and Outsourcing: Aligning Incentives to Mitigate Shilling and Shirking (Harvard Business School Working Paper No. 21-078, 2021), https://perma​.cc​/ Y6SS​-WH82. 25  For an example of this phenomenon in food safety certification, see, e.g., Timothy D. Lytton, Using Insurance to Regulate Food Safety: Field Notes from the Fresh Produce Sector, 52 U. New Mexico L. Rev. 1 (2022). 26  Palmarozzo et al., supra note 24, at 23; Daniel Ho, Fudging the Nudge: Information Disclosure and Restaurant Grading, 122 Yale L. J. 574, 595 (2012). 27  For analysis of these and other forms of oversight, see Lytton & McAllister, supra note 23, at 304– 333. See also Margaret M. Blair, Cynthia A. Williams & Li-Wen Lin, The New Role for Assurance Services in Global Commerce, 33 J. Corp. L. 325, 334 (professionalization); Nancy A. Finney, NEHA Credential Creates a Professional Pathway for Food Safety Auditors, Food Safety Mag. August/September 2016, at 22 (credentialing); David P. Carter & Nadia Mahallati, Coordinating Intermediaries: The Prospects and Limitations of Professional Associations in Decentralized Regulation, 13 Reg. & Governance 51 (2019) (trade associations); Bartley & Smith, supra note 4, at 347–350 (communities of practice). 24

Private third-party verification of product claims  393 race to the bottom among certifiers whose appeal is based on low prices and easy certification. The net effect of competition among certifiers will vary depending on context.28 Assessing Effectiveness Several challenges make it difficult to assess the effectiveness of private third-party certification. Much information about the reliability of certification comes from certifiers, whose credibility is the subject of inquiry. Independent assessments by government agencies, accrediting organizations, the media, or consumer groups offer additional evidence regarding the effectiveness of certification when these groups can obtain information. Analyzing institutional safeguards against misrepresentation—for example, oversight mechanisms or transparency— can provide some indication of a certification system’s trustworthiness. In the end, any evaluation of the success of a private third-party certification system is likely to remain incomplete and impressionistic.

KOSHER CERTIFICATION The term “kosher” derives from the Hebrew word kasher, meaning “fit” or “proper.”29 Hebrew scripture provides the basis for kosher dietary restrictions in various passages governing food consumption and preparation. For example, the Torah prohibits eating certain species of animals, such as pork and shellfish, and it proscribes cooking a kid in its mother’s milk.30 Rabbinic law, stretching from the beginning of the Common Era to today, has elaborated these rudimentary biblical precepts into a system of detailed laws. For instance, the proscription of cooking a kid in its mother’s milk has been interpreted to impose a more general prohibition against mixing meat and dairy products in the same food or even in the same meal. Rabbinic law has developed meticulously specified modes of animal slaughter and imposed special production requirements in preparing grape products, cheese, and various types of cooked foods. Kosher restrictions apply to ingredients as well as finished products. A detailed description of the many and complex rules of kosher food preparation is beyond the scope of this chapter.31 However, this quick overview illustrates that the kosher status of a food product is in most cases a credence quality—it cannot be determined by inspection of the product. For example, nothing in the appearance of a pound of ground beef indicates the method used to slaughter the cow. Nor does the appearance or taste of a slice of cheese reveal whether it was made with rennet from a non-kosher animal. A consumer cannot tell whether potato chips were fried in kosher-certified oil. The ancient compendium of rabbinic law known as the Talmud contains records dating back to the fourth century of third-party supervision of local meat slaughter and the marking  Bartley, supra note 11, at 446–447; Yuqing Zheng & Talia Bar, Certifier Competition and Audit Grades, SSRN, April 13, 2019, https://papers​.ssrn​.com​/sol3​/papers​.cfm​?abstract​_id​=3371279 archived at https://perma​.cc​/S4EW​-YY4G; Bostrom & Klintman, supra note 12, at 190. 29  The brief overview of kosher restrictions in this paragraph draws from Timothy D. Lytton, Kosher: Private Regulation in the Age of Industrial Food 7 (2013). 30   See Exodus 23:19, 34:26; Leviticus 11:7, 11:10; Deuteronomy 14:21. 31  For a comprehensive introduction to basic concepts and rules of kosher food production, see Zushe Yosef Blech, Kosher Food Production (2nd ed. 2008). 28

394  Research handbook on international food law of kosher meat.32 From ancient times to the early 1900s, kosher certification was a local affair directed by community councils or conducted by congregational rabbis throughout the Jewish Diaspora. In the U.S., industrialization of food production gave rise in the mid-twentieth century to private kosher certification agencies that supervised production in facilities throughout the country. Globalization of food industry supply chains in the late twentieth and early twenty-first centuries expanded the reach of kosher certification around the world.33 The Market for Kosher-Certified Food Today, kosher food is a big business, especially in the U.S. An estimated 12.3 million U.S. consumers purchase kosher food because it is kosher certified. Surprisingly, only 8 percent of these consumers are religious Jews who buy exclusively kosher foods, and an estimated 80 percent are not even Jewish.34 Most kosher consumers in the U.S. are motivated by health and food safety concerns or dietary restrictions, such as vegetarianism or lactose intolerance.35 Many consumers view kosher certification as a mark of quality assurance.36 Approximately 40 percent of packaged goods in a typical U.S. supermarket are certified kosher, and more products in the U.S. are labeled kosher than are labeled organic, natural, or premium, combined.37 The U.S. kosher market is worth $12.5 billion in annual retail sales.38 Demand for kosher-certified food is not an exclusively American phenomenon. Global retail sales of kosher-certified products were valued at $19.1 billion in 2019.39 Israel provides

 Babylonian Talmud, Bechorot 29b, Chullin 95b, cited in Jeremiah Berman, Shehita: A Study in the Cultural and Social Life of the Jewish People 22, 26 (1941). 33  For additional details concerning the history of kosher food certification, see Lytton, Kosher, supra note 29, at 9–69. 34   The Kosher Food Industry Has Developed into a $12.5 Billion Industry, Lubicom Marketing Consulting (2021), https://perma​.cc​/47EZ​-KUS7; Kosher Food Q&A, IFT (Feb. 2, 2016), https:// perma​.cc​/5VWQ​-EVWK; J.M. Regenstein, M.M. Chaudry & C.E. Regenstein, The Kosher and Halal Food Laws, 2 Comprehensive Rev. in Food Sci. & Food Safety 111, 113 (2003). These and most other data related to the size and segmentation of kosher food markets—including those cited by academic publications—originate in proprietary reports by marketing firms. See Lytton, Kosher, supra note 29, at 187 n.75 (detailing the lack of methodological rigor in the gathering of some of these data). 35  Kosher food symbols indicate alternatively whether a product contains dairy ingredients or derivatives, meat or poultry ingredients or derivatives, or neither (a designation known as pareve). Blech, supra note 31, at 4. Some consumers rely on kosher labels to guide them to vegetarian or dairy-free items. Regenstein et al., supra note 34, at 112. 36  Mintel Press Team, 3 in 5 Kosher Food Buyers Purchase for Food Quality, Not Religion, Mintel (Feb. 17, 2009), https://perma​ .cc​ /4KL4​ -ZZ86; Qian Yang, Factors Influencing Kosher Food Purchase Intention: An Investigation on Non-Jewish Customers 35 (2017) (M.S thesis, Iowa State University) (on file at https://doi​.org​/10​.31274​/etd​-180810​-5086); Lytton, Kosher, supra note 29, at 209 n. 7; The Global Demand for Kosher, Star-K (2021), https://perma​.cc​/ E7V2​-T2BA. 37  Deena Shanker, Less Than 2% of the US Population is Jewish. So Why Is 41% of the Country’s Packaged Food Kosher?, Quartz (June 8, 2015), https://perma​.cc​/9UU9​-NVHJ; Kosher Food Q&A, supra note 34. Cf. Lytton, Kosher, supra note 29, at 169. 38   Kosher Foods—US—January 2009, Executive Summary, Mintel, (Jan. 2009), https://perma​.cc​/ C7HC​-CFG9; see also The Kosher Food Industry, supra note 34. 39   Kosher Food Market by Product Type, Allied Market Research (Feb. 2020), https://perma​.cc​ /27U7​-LKEW. 32

Private third-party verification of product claims  395 the second largest consumer market for kosher-certified products.40 Consumer demand for kosher-certified products in other countries is much lower.41 According to leading experts, it is primarily U.S. consumer demand that motivates more than 11,000 companies to obtain kosher certification for an estimated 280,000 products containing over one million kosher-certified ingredients sourced in more than 100 countries around the world.42 A global infrastructure of 1,427 kosher certification agencies currently supervises kosher food production.43 These agencies take various organizational forms: privately held businesses, communal organizations, individual rabbis, and, in Israel, government agencies.44 A small group of certifiers in the U.S. consisting of the Orthodox Union (OU), Organized for Kashruth Laboratories (OK), Kof-K, Star-K, and the Chicago Rabbinical Council (CRC)— known as the “Big Five”—certify 75 percent of kosher ingredients worldwide and an estimated 80 to 90 percent of kosher-certified retail products sold in the U.S. market.45 Within the Big Five, the OU predominates, certifying approximately 40 percent of ingredients worldwide and two-thirds of kosher-certified retail products sold in the U.S.46 The Big Five frequently subcontract with smaller agencies to inspect local production facilities.47 Smaller agencies also typically supervise local restaurants and caterers for their local Jewish communities.48 Industrial Kosher Certification Kosher certification can be divided into three categories: industrial food production, meat and poultry slaughter, and food service. This chapter focuses exclusively on the first—the global network of kosher certification agencies that certify industrial food production. I will not discuss the very different structure and dynamics of rabbinic supervision of meat and poultry slaughter or the local kosher supervision of restaurants and caterers. My interest here is not kosher certification per se but rather a particular sector of kosher certification that serves as a model for private third-party verification more generally. Industrial kosher certification aims to protect consumers from adulteration and mislabeling. Adulteration denotes the use of unapproved ingredients or processing methods in the production of kosher-certified foods. For example, a manufacturer might substitute a nonkosher ingredient in a product approved for kosher production, thereby rendering the product  According to a 2005 report, “Over 60 percent of the Jewish population, over 5.5 million people, maintains some degree of kosher observance in the home.” Yossi Barak, Israel, Kosher Foods, Israeli Kosher Food Market 2005, Global Agricultural Information Network Report No. IS5012 (Sept. 22, 2005), https://perma​.cc​/JCG2​-PWA9. 41  Companies that market in Europe are reportedly reticent to affix kosher symbols to their product labels for fear of offending antireligious and antisemitic sensibilities of consumers. Telephone interview with Menachem Genack, CEO, OU Kosher (Mar. 15, 2021); Telephone interview with Ruben Vis, Dir. Gen., Organization of Jewish Communities in the Netherlands (Mar. 23, 2021). 42   The Kosher Food Industry, supra note 34. 43   The Online Source for Kosher Information, Kashrus Magazine (Oct. 2020), https://perma​.cc​/ Z7Z2​-3UEY; Howard Katzenstein, Business Manager, OU Kosher, email to the author, March 16, 2021 (on file with author). 44   Lytton, Kosher, supra note 29, at 81. 45   Id. at 72–80. 46   Id. 47   Id. at 97. 48   Id. at 80. 40

396  Research handbook on international food law nonkosher. Mislabeling refers to the use of unauthorized kosher symbols on uncertified foods. For example, a company might affix an agency’s kosher symbol on a product without permission. Adulteration and mislabeling can be intentional, negligent, or innocent, and they can occur with or without the knowledge of a certification agency. Evidence of Success Any attempt to evaluate the effectiveness of kosher certification in protecting consumers from these problems faces significant challenges.49 Comprehensive data on adulteration and mislabeling in the kosher food industry do not exist. Moreover, any assessment of the deterrent effects of kosher certification is necessarily speculative. Nevertheless, available evidence suggests that adulteration and mislabeling are rare and that agencies consistently alert consumers when these problems occur. The only current government data on kosher fraud are from the Kosher Law Enforcement Division of the New York State Department of Agriculture and Markets. The state’s kosher fraud law requires that a seller’s representations regarding the kosher status of its products be truthful.50 Although 22 U.S. states have kosher fraud laws, only New York has ever conducted routine inspections of food production facilities.51 Since state inspectors merely monitor legal compliance but do not provide certification, all these facilities are concurrently inspected by kosher certification agencies. Thus, state enforcement data provide some indication of the reliability of private kosher certification. New York State data suggest that erroneous certification is rare. State records indicate that between 2005 and 2010, the Kosher Law Enforcement Division conducted more than 3,700 inspections of nearly 900 industrial kosher food production facilities but found only four violations of the state kosher fraud law and issued only 16 warnings.52 More recent comparable data are unavailable because budget cuts in 2011 eliminated the entire staff of eleven specially trained kosher inspectors, leaving the division director to rely on the state’s food safety inspectors to monitor compliance with the state’s kosher fraud law.53 Self-reported data from kosher certification agencies similarly indicate that adulteration and mislabeling are relatively rare and typically unintentional. In 2011, the OU reported that, of the half-million products it certified each year, its legal department investigated only about 500 cases of questionable use of the OU symbol, and it took corrective action in about 50.54  This analysis of kosher certification’s effectiveness draws from more detailed discussion in Lytton, Kosher, supra note 29, at 106–111. 50  N.Y. Agric. & Mkts. Law § 201A–D (McKinney 2005). 51  For further details about kosher fraud laws in the U.S., see Lytton, Kosher, supra note 29, at 112–115. By one estimate, New York State accounts for half of U.S. kosher food sales. See Breaking News: Rabbi Aaron Metzger Named Head of Kosher Law Enforcement in New York State, Kosher Today (Jan. 13, 2014), https://perma​.cc​/3U3A​-VTQT. 52  Response to Freedom of Information Law (FOIL) Request #12-63, June 6, 2012 (on file with author). For additional details, see Lytton, Kosher, supra note 29, at 200 n 21. 53  Devra Ferst, New York State Agriculture Department Dismisses Its Kosher Law Enforcement Inspectors, The Forward (Jan. 5, 2011), https://perma​.cc​/59KV​-QEU3. 54   Lytton, Kosher, supra note 29, at 75 (estimating that the OU certified 500,000 products in 2012); Howard Katzenstein, Tracking Down the Unauthorized OU, OU Kosher (Jan. 3, 2012), https:// perma​.cc​/4FPW​-DLVH (estimating 500 cases of unauthorized use and 50 instances of corrective action). 49

Private third-party verification of product claims  397 That same year, OK reported about two dozen cases of unauthorized use of its symbol annually among the 300,000 products it certified. Its longtime director recalled only “a few cases” of intentional misconduct by companies during his 37 years at the helm of the agency.55 Star-K reported that out of the 74,000 products it certified, the agency dealt with ten to 20 cases of adulteration or mislabeling each year, most of which involved innocent mistakes that were easily corrected and that companies were eager to remedy.56 Kof-K reported that out of the 193,000 products it certified, the agency encountered only two or three cases of adulteration or mislabeling each year.57 The CRC’s business manager could not recall any intentional violations and reported, at most, a few dozen unintentional violations among the 68,000 products that the agency certified.58 Recent communications with the directors of these agencies suggest that they have all increased the number of products they currently certify and that the rate of adulteration and mislabeling has remained roughly the same.59 Agencies’ willingness to voluntarily disclose problems through consumer alerts and product recalls—at significant cost to the agencies and their food-company clients—bolsters the credibility of self-reported agency data. Each of the Big Five agencies posts on its website several alerts each month warning consumers about problems with products that it certifies— for example, products that mistakenly contain nonkosher ingredients—and about products that bear unauthorized agency symbols. Each alert is based on detailed documentation of the problem in agency files.60 None of this is to suggest that agencies themselves have been free of scandal. Instances of lax oversight do occur, as do occasional instances of outright corruption.61 Moreover, the limited evidence presented here regarding the effectiveness of industrial kosher certification is far from dispositive. Self-reported data concerning adulteration and mislabeling is based on rough estimates rather than rigorous analysis, and kosher certifications agencies do not undergo external audits to independently verify their claims. Nevertheless, the evidence is sufficient to merit closer examination of how private third-party certification protects consumers from misleading claims concerning the kosher status of industrially processed foods.

  Lytton, Kosher, supra note 29, at 75 (estimating that OK certified 300,000 products in 2012); Kosher Alerts, OK (Jan. 11, 2012) (listing alerts by date), https://web​.archive​.org​/web​/20111221031829​/ http:/​/www​.ok​.org​/alerts​.asp; Telephone conversation with Don Yoel Levy, Administrator, OK (Jan. 4, 2012). 56   Lytton, Kosher, supra note 29, at 75 (estimating that Star-K certified 74,000 products in 2012); Telephone conversation with Avrom Pollak, President, Star-K (Sept. 7, 2011). 57   Lytton, Kosher, supra note 29, at 75 (estimating that Kof-K certified 193,000 products in 2012); Interview with Ari Senter, Administrator, Kof-K (May 5, 2010). 58   Lytton, Kosher, supra note 29, at 75 (estimating that the CRC certified 68,000 products in 2012); Abe Sharp, Business Manager, CRC, email to author (Jan. 24, 2012). 59  Eli Lando, Executive Manager, OK, email to author (April 14, 2021); Zvi Goldberg, Administrator, Star-K, email to author (April 9, 2021); Sholem Fishbane, Administrator, CRC, email to author (April 25, 2021). 60   See, e.g., Kosher Alerts & Advisories, OU Kosher (June 16, 2021), https://perma​.cc​/ F5LM​-KZ4H. 61   See, e.g., Lytton, Kosher, supra note 29, at 104, 121–125. 55

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A RECIPE FOR RELIABILITY Like other private third-party certifiers paid by sellers of the products they certify, industrial kosher certification agencies are subject to a conflict of interest. However, the market structure for industrial kosher certification and the social context in which that market is embedded counteract this conflict of interest.62 These conditions are not unique to industrial kosher supervision, which makes it a useful model for other forms of private third-party verification. Market Structure There are five features of the market for kosher certification that account for its reliability.63 First, sufficient consumer demand for reliable certification incentivizes manufacturers to pay for rigorous independent inspection of their production facilities. Millions of consumers seek the assurances provided by kosher certification, and companies that fail to obtain it risk losing market share. According to one leading analyst, between 2 and 20 percent of a product’s market share in the U.S. is typically attributable to kosher certification.64 Second, concentration of market power in the hands of a few large certifiers makes it easier to coordinate the development and enforcement of industrywide standards for kosher certification. Standards cover the interpretation and application of kosher law, organizational best practices to ensure quality control and professional ethics. Informal discussions and more formal deliberations among members of the Association of Kashrus Organizations (AKO), an influential trade group, allow input on standards from a wide range of agencies. In the end, however, the views of the Big Five agencies dominate and typically produce consensus. While AKO has no formal enforcement powers, it facilitates the communication of reputational information and excludes outliers, two key sources of pressure on agencies, large and small alike, to conform to industry standards. Although most agencies conform to these standards, some agencies explicitly offer certification based on less or more stringent standards, for which there is sufficient consumer demand, allowing for some market segmentation.65 Third, brand competition among certifiers based on reliability has increased agencies’ investments in professional expertise, institutional integrity, transparency, and conformity with industry standards. In the competitive scramble for business, agencies attempt to distinguish themselves based on consumer confidence in their certification mark. This has led them, especially the Big Five, to provide extensive training to their inspectors in kosher law, food chemistry, and food technology. Additionally, agencies have enhanced their brand value by developing middle management oversight, ethical codes of conduct, and institutional separation of kosher standards from business development decisions to avoid conflicts of interest.  For more detailed analysis of the relationship between market conditions and social context, see Mark Granovetter, Economic Action and Social Structure: The Problem of Embeddedness, 91 Am. J. Soc. 481 (1985); see also Mark Granovetter, The Impact of Social Structure on Economic Outcomes, 19 J. Econ. Persp. 33, 34–35 (2005). 63  The discussion in this and the next section draw from Timothy D. Lytton, Competitive Third-Party Regulation: How Private Certification Can Overcome Constraints that Frustrate Government Regulation, 15 Theoretical Inquiries in Law 556–562 (2014). 64   Id. at 557 n 81. 65  For additional details on the history and operation of AKO and the dynamics of Big Five market dominance, see Lytton, Kosher, supra note 29, at 91–103, 133 n 13. 62

Private third-party verification of product claims  399 Agencies have also boosted their brand value based on their willingness to respond openly to consumer questions and concerns. Fear of damage to an agency’s brand accounts for widespread adherence to industry standards.66 Fourth, interdependence among certification agencies creates incentives for mutual oversight. This is a prominent feature of kosher certification. The value of an agency’s certification of a food ingredient—for example, vanilla extract—depends on its acceptability to other agencies certifying products that include the ingredient downstream in the production process—for example, ice cream or cookies. This means that upstream certifiers must meet standards set by downstream certifiers. In turn, downstream certifiers are vulnerable to mistakes by upstream ingredient certifiers, which can render nonkosher all products made with improperly certified ingredients. Downstream certifiers carefully monitor upstream certifiers to ensure that their standards are acceptable and their inspection routines reliable. Since agencies typically certify products at various stages of the production process, they operate both upstream and downstream relative to each other, creating a network of interagency oversight. Agencies are also interdependent because public scandal caused by one agency tends to undermine public confidence in kosher certification more generally, which gives agencies additional incentive to monitor each other and exclude those who fail to meet industry standards.67 Fifth, a core of active and vigilant consumers produces, monitors, and disseminates reputational information. The 8 percent of U.S. kosher consumers who purchase only kosher food are highly motivated to monitor the reliability of certifications upon which they depend. They call agency hotlines to report improperly labeled products—for example, products with a certification mark indicating the absence of any milk products that list dairy ingredients elsewhere on the label, packages with agency symbols that appear to be counterfeit, or items that contain ingredients that they suspect are not kosher. Many of these consumers also closely monitor agency publications for alerts concerning improperly labeled products or unreliable certifications, and they disseminate this information through social networks. Agencies’  On the importance of brand identity in private governance, see Frederick Mayer & Gary Gereffi, Regulation and Economic Globalization: Prospects and Limits of Private Governance, 12 Bus. & Pol. 1, 9–11 (2010); Frans van Waarden, Taste, Traditions, Transactions, and Trust: The Public and Private Regulation of Food, in What’s the Beef? The Contested Governance of European Food Safety 56 (Christopher Ansell & David Vogel eds., 2006). On competition among private third-party certifiers, see Bostrom & Klintman, supra note 12, at 190. Brand competition requires agencies to be transparent regarding standards and performance. See Edward Balleisen & Marc Eisner, The Promise and Pitfalls of Co-Regulation: How Governments Can Draw on Private Governance for Public Purpose, in New Perspectives on Regulation 135 (David Moss & John Cisternino eds., 2009). On brand competition and food safety standards in Europe, see Thomas Bernauer & Ladina Caduff, Food Safety and the Structure of the European Food Industry, in What’s the Beef?, supra, at 81. 67  On supply-chain influence and interdependence generally, see Cashore et al., supra note 11, at 23; Neil Gunningham, Peter Grabosky & Darren Sinclair, Smart Regulation: Designing Environmental Policy 223–224 (1998); Tim Büthe & Walter Mattli, International Standards and Standard-Setting Bodies, in The Oxford Handbook of Business and Government 442 (David Coen, Wyn Grant & Graham Wilson eds., 2010) (discussing interdependence in terms of network externalities); van Waarden, supra note 66, at 56. For additional discussions of interdependence and mutual restraint in commercial relations, see Mitchel Abolafia, Making Markets: Opportunism and Restraint on Wall Street 173 (1996); Joseph Rees, Hostages of Each Other: The Transformation of Nuclear Safety Since Three Mile Island 2, 44–45 (1994).

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400  Research handbook on international food law relationships with their food-company clients are influenced heavily by this consumer vigilance, a triangulation of the agency–client relationship that reduces conflicts of interest that might harm consumers. While agencies receive fees from their food-company clients, their brand value depends upon their reputation among consumers, which creates an incentive not to lower standards or cut corners. From the perspective of food companies, certification is a worthwhile cost only if the company obtains a certification that is considered reliable among kosher consumers. Companies that cut corners risk a loss of credibility among kosher consumers, which would undermine their access to the kosher market.68 Social Context Kosher certification takes place in a social environment that supports reliable private certification. Kosher certification agency personnel are motivated by an industrial morality—a shared sense of mission that counteracts incentives to cut corners and promotes cooperation among competitors. Kosher certification is not just a business. For the rabbis who staff certification agencies, it is also a way to serve God and the Jewish people—a sacred trust. Agency personnel are bound by a set of cultural norms and a common ethos that define a mission that transcends interagency rivalries. The industrial morality of kosher certification is rooted in ancient Jewish theology, ethics, and religious practice, and it has been cultivated through contemporary efforts to professionalize kosher supervision. Industrial morality reinforces economic incentives to avoid misconduct and mistakes, and it fosters trustworthiness and cooperation among agencies, which are essential to the self-governance of the kosher certification industry.69 In addition to industrial morality, social networks provide a medium for trust and reputation that supports reliable private certification. At AKO meetings, participants from different kosher certification agencies socialize and pray together. The rabbis who manage these agencies also frequently hold positions of authority in their local Jewish communities, many as congregational rabbis or respected teachers, interacting closely with community members, who are also kosher consumers. Agency personnel develop relationships with their foodindustry clients, many of whom they have been working with for decades. Personal ties also exist among religiously observant kosher consumers, ranging from close connections between congregants to more extended internet exchanges in postings on kosher-food websites.

 On the role of kosher consumers, see Shayna Sigman, Kosher Without Law: The Role of Nonlegal Sanctions in Overcoming Fraud Within the Kosher Food Industry, 31 Fla. St. U. L. Rev. 584 (2004); Shana Starobin & Erika Weinthal, The Search for Credible Information in Social and Environmental Global Governance: The Kosher Label, 12 Bus. & Pol. 21–22 (2010). On active consumers and other civil-society groups in private regulation more generally, see Tim Büthe, Global Private Politics: A Research Agenda, 18 Bus. & Pol. 6, 8 (2010);12; Unni Kjaernes, Arne Dulsrud & Christian Poppe, Contestation over Food Safety: The Significance of Consumer Trust, in What’s the Beef?, supra note 66, at 62; Mayer & Gereffi, supra note 66, at 11–13. For a suggestion that consumer markets may be efficient even if only a small proportion of consumers are sophisticated in their purchasing choices, see Alan Schwartz, How Much Irrationality Does the Market Permit?, 37 J. Legal Stud. 131, 131–137 (2008). For a striking example of consumer vigilance in the kosher food industry, see Lytton, Kosher, supra note 29, at 117. 69   On industrial morality, see Neil Gunningham & Joseph Rees, Industry Self-Regulation: An Institutional Perspective, 19 Law & Pol’y 363, 376–380 (1997).

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Private third-party verification of product claims  401 These various relationships constitute a complex network that enhances the regulatory performance of the kosher certification system in several ways.70 The extent to which kosher agency senior managers know each other increases social pressure to conform to industry standards. Network theory refers to this as “network density” and defines it as the proportion of links between individuals to the total number of possible connections within the network. High network density among senior managers constitutes a “small world” that strengthens industrial morality and increases social cohesion within the group. Extensive interpersonal links within and between agencies, food companies, and consumer networks facilitate the diffusion of consumer alerts and reputational information.71 Relationships between acquaintances are especially useful in passing information between tight-knit groups that otherwise might be too insular to receive information from outside the group or to disseminate it beyond the group. Organizational sociology refers to this as “the strength of weak ties” and explains that weak ties “are much more likely than strong ones to play the role of transmitting unique and nonredundant information across otherwise largely disconnected segments of social networks.”72 From this perspective, hits on kosher websites and online exchanges constitute weak ties that greatly enhance the effectiveness of consumer alerts and reputational sanctions. To summarize, the industrial kashrus system offers a model of private third-party certification that provides reliable consumer protection from adulteration and mislabeling of kosher food. The structure of the market for certification services creates economic incentives for certifiers and food companies to maintain standards that satisfy consumers. A highly developed industrial morality among certifiers provides social norms that reinforce these economic incentives, and a complex network of interpersonal relationships puts social pressure on certifiers to adhere to these norms. This complex network also widely and rapidly disseminates consumer alerts about adulteration and mislabeling as well as reputational information about certifiers and food companies.

ENHANCING CONSUMER PROTECTION Private third-party certification offers several advantages over government regulation to address misbranding and adulteration of consumer products.73 Private third-party certification will not always have these advantages, nor will it always outweigh government regulation’s advantages. Moreover, private third-party certification and government regulation are not exclusive alternatives—they typically complement each other. Additionally, the comparative institutional analysis presented here is merely impressionistic. I offer no rigorous quantitative benchmarks or metrics to support the comparison. My aim is merely to highlight the added

 On complex social networks, see Michael Ferrary & Mark Granovetter, The Role of Venture Capital Firms in Silicon Valley’s Complex Innovation Network, 38 Econ. & Soc’y 332 (2009). 71  On social networks and reputational sanctions, see Lisa Bernstein, Opting Out of the Legal System: Extralegal Contractual Relations in the Diamond Industry, 21 J. Legal Stud. 115 (1992); Barak Richman, Stateless Commerce: The Diamond Network and the Persistence of Relational Exchange (2017); Sigman, supra note 68; Starobin & Weinthal, supra note 68. 72  On network density, see Granovetter, Impact of Social Structure, supra note 62, at 34–35. 73  This section draws from Lytton, Competitive Third-Party Regulation, supra note 63, at 564–567. For additional details, see Lytton, Kosher, supra note 29, at 115–121. 70

402  Research handbook on international food law value that private third-party certification can, under the right conditions, add to consumer protection efforts. Industrial kosher food certification exemplifies this added value. Technical Expertise Private third-party certifiers may provide superior technical expertise. In the case of industrial kosher supervision, certification agencies employ leading rabbinic authorities in Jewish law. Agencies have developed extensive experience applying ancient principles of Jewish law to modern industrial food production. By contrast, most government officials charged with enforcing consumer protection laws have little or no training in Jewish law or knowledge about kosher certification.74 Inspection Resources Private third-party certifiers can provide extensive inspection and monitoring coverage. For government regulators, inspection and monitoring strain agency budgets. By contrast, for private third-party auditors, inspection and monitoring generate fees. For example, government inspection of industrial kosher food production in New York has been drastically curtailed due to budget cuts. During this same time, private kosher certification agencies have had strong financial incentives to expand their inspection and monitoring activities, and, consequently, the number of plants under kosher supervision has grown steadily.75 Jurisdictional Barriers Private certifiers also face fewer legal obstacles to monitoring and enforcement. They are not limited by local, state, or national jurisdictional boundaries. When it comes to kosher supervision, private certification agencies provide on-site inspection worldwide without any jurisdictional limitations, allowing them to monitor transnational supply chains.76 Proactive Intervention Private certifiers are often more proactive than government regulators. Private kosher certifiers actively seek out problems before they affect consumers and establish new policies to  On expertise in private regulation, see Cheit, supra note 8, at 14–15, 196–202; Gunningham et al., supra note 67, at 200; Edward Balleisen, The Prospects for Effective Coregulation in the United States: A Historian’s View from the Early Twenty-First Century, in Government and Markets: Toward a New Theory of Regulation 454 (Edward Balleisen & David Moss eds., 2010). 75  Government agencies do, sometimes, charge fees for inspection and monitoring. Indeed, government agencies routinely charge fees for such services as permitting and licensing. However, proposals to charge regulated entities fees for government inspection and monitoring typically face stiff political resistance. Moreover, government fees are normally designed merely to cover costs. By contrast, private fees typically cover more than costs, and this revenue is used to raise salaries, invest in business development, hire more staff, and support special projects. Thus, government fees do not offer the same level of incentive as private fees to expand inspection and monitoring. 76  On the transcendence of national boundaries by private regulators, see Balleisen, supra note 74, at 464; Tim Büthe, Private Regulation in the Global Economy: A (P)Review, 12 Bus. & Pol. 4 (2010). 74

Private third-party verification of product claims  403 avoid trouble later. They are more likely to act as soon as a problem arises and to be involved on an ongoing basis to correct it. By contrast, state consumer protection officials are merely reactive to complaints about kosher fraud, and they typically wait to intervene until a major scandal attracts widespread public attention.77 Feedback and Learning Private certification may be more responsive to feedback from regulated industries and consumers. In kosher food regulation, legislators and agency officials—for whom adulteration and mislabeling of kosher food is a relatively low priority—are not likely to vigorously pursue consumer complaints, especially in places where religiously observant Jews are a small minority with little electoral influence. Moreover, legislative and administrative rulemaking processes are very slow, frequently taking years to produce results. By contrast, kosher certification agencies owe the brand value of their services to their reputation among consumers, and they are motivated by a sense of religious mission. They solicit consumer feedback and respond to concerns through public presentations, telephone hotlines, websites, newsletters, and magazines. Furthermore, kosher certification agencies can respond to consumer concerns more quickly by instituting kosher policy changes without the procedural hurdles faced by government regulators.78 Cooperative Relations Regulation by private certification facilitates cooperation between overseers and regulated entities. Certifiers burnish their brands by attending to customer service—setting clear expectations for audits, responding rapidly to company managers’ questions and concerns, and promoting the brands they certify to kosher consumers.79 For their part, manufacturers are eager to satisfy the demands of certifiers upon whom they rely for access to the kosher market.80 Consequently, companies see private agencies as marketing partners rather than police. Such cooperative relations enable private auditors to serve as what regulatory theorists Eugene Bardach and Robert Kagan refer to as “the good inspector”—who combine rigor, empathy, patience, and persistence to secure high levels of regulatory compliance.81 Efficiency Private certification can be more efficient than government regulation. Competition among certifiers provides incentives for them to cut costs to keep their fees as low as possible while  On the proactiveness of private regulators, see Cheit, supra note 8, at 202–204; Balleisen, supra note 74, at 454; Lawrence Busch, Quasi-States? The Unexpected Rise of Private Food Law, in Private Food Law 51, 63 (Bernd van der Meulen ed., 2011); Timothy Sinclair, Credit Rating Agencies, in The Oxford Handbook of Business and Government, supra note 67, at 424. 78  On learning and adaptation in policymaking, see Charles F. Sabel & William H. Simon, Minimalism and Experimentalism in the Administrative State, 100 Geo. L. Rev. 53 (2011). 79   See Lytton, Kosher, supra note 29, at 64. 80   Id. at 118. 81   Eugene Bardach & Robert Kagan, Going by the Book: The Problem of Regulatory Unreasonableness, 125–134 (2002). 77

404  Research handbook on international food law at the same time maintaining rigorous standards to protect their brand value. By relying primarily on informal sanctions—such as the refusal to certify—private certifiers do not incur the costs associated with passing legislation, making administrative rules, filing enforcement actions, establishing guilt in legal proceedings, and defending appeals. Moreover, private certifiers’ highly cooperative approach reduces time-consuming and costly disputes with the companies they regulate. In addition, since private certifiers are motivated by industry demand to regulate, they are less likely than government regulators to develop standards whose costs to the industry outweigh their benefit to consumers. There is, of course, no demand for such standards among regulated industries.

MODELING THIRD-PARTY CERTIFICATION Although kosher certification may seem exotic to some, it is by no means sui generis. Underlying what may appear to outsiders as arcane dietary laws embedded in a highly insular religious culture are features that can be replicated in other contexts. The example of kosher certification may be particularly helpful in designing reliable private third-party certification of process-related product claims—a category of credence qualities that is increasingly popular globally with the rise of consumer concerns about environmental sustainability, fair labor standards, and humane treatment of animals. Systems theory provides a way to develop from the example of kosher certification a general model of the variables and dynamics that influence the reliability of private third-party verification. Systems theory defines a system as a set of interconnected elements that serve a specific purpose. A system achieves its purpose through feedback.82 For example, the airconditioning system of a house is composed of an interconnected set of elements—thermostat, air-conditioning unit, and ducts—that is organized in such a way as to maintain a constant temperature in the house. The homeowner sets the thermostat to a desired temperature. If the desired temperature is lower than the temperature as measured by the thermostat, the thermostat signals the air-conditioning unit, which causes the unit to produce cool air, which is distributed throughout the house by the ducts. So long as there remains a negative gap between the desired temperature and the temperature measured by the thermostat, the thermostat will continue to signal the air-conditioning unit to produce cool air. When the gap is reduced to zero, the thermostat will signal the air-conditioning unit to cease producing cool air. This cycle of feedback can be represented by the causal loop diagram in Figure 19.1.83 The arrows denote causal influence between variables, which characterizes the dynamics of the system. The “+” sign indicates that the variables move in the same direction. For example, when the gap between the desired temperature and the temperature as measured by the thermostat increases, cool air production increases. The “–” sign indicates that the variables move in opposite directions. For example, as cool air production increases, the room temperature

 For an introduction to systems thinking, see Donella H. Meadows, Thinking in Systems (2008); Daniel H. Kim, Introduction to Systems Thinking, Systems Thinker (1999), https://perma​ .cc​/93XH​-ZUWY. 83  This example is from Kellie T. Wardman, Balancing Loop Basics, Systems Thinker (1994), https://perma​.cc​/3W4G​-DAHL. 82

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Figure 19.1  Causal loop diagram for air conditioning system

decreases. The B in the center of the loop stands for balancing loop to indicate that the feedback within this system maintains a stable temperature.84 The dynamics of kosher certification can similarly be modeled as a system using the causal loop diagram in Figure 19.2. The diagram depicts how consumer demand for verification generates brand competition between certifiers. Brand competition pressures certifiers to make themselves more attractive to producers by either reducing the cost of audits or improving their reputation. Reducing the costs of audits means lower investment in quality control. Improving their reputation among consumers requires higher investment in quality control. When certifiers invest less in quality control, this reduces the rigor of audits, which reduces the reliability of certification and is likely to reduce consumer demand, creating a downward spiral. By contrast, when certifiers invest more in quality control, this increases the rigor of audits, increasing the reliability of audits, and is likely to increase consumer demand, creating a feedback cycle of continual improvement. The R in the center of the loop stands for reinforcing loop to indicate that feedback within the system creates a snowballing effect.85 In this system, the snowballing effect can lead to either continual degradation or continual improvement of certification reliability, depending on how certifiers respond to brand competition.

 Kim, supra note 82, at 7–8; Wardman, supra note 83.  Kim, supra note 82, at 6–7; Kellie T. Wardman, Anatomy of a Reinforcing Loop, Systems Thinker (1994), https://perma​.cc​/5ZAV​-UNRQ.

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Figure 19.2  Causal loop diagram for kosher food certification The diagram in Figure 19.3 adds several aspects of kosher certification that pressure certifiers to respond to brand competition by improving their reputations rather than reducing their costs, making it more likely that the system will generate continual improvement. Each of these aspects—consumer vigilance, interdependence among certifiers within multiple supply chains, concentration of market power in a few large agencies, industrial morality committed to integrity, and the density of social networks connecting stakeholders—amplify the benefits of a good reputation and the costs of a bad reputation. Vigilant consumers monitor agency websites and social media for reports of unreliable certification, and they convey their findings to others. Interdependence requires each agency to uncover mistakes or misconduct by other agencies certifying ingredients upstream in the supply chain. The concentration of market power makes the refusal by any of the Big Five to accept certification by a disreputable agency a powerful sanction. Industrial morality gives priority to consumer protection. Network density facilitates the rapid proliferation of reputational information among certifiers, consumers, and companies. This last causal loop diagram suggests that the features of kosher supervision that account for its success are generic. The resulting model can be easily adapted to the private third-party certification of other credence qualities. An essential condition for reliable private third-party certification is consumer demand. That demand can come from a large group of individual consumers, as is the case in kosher certification, or it can come from powerful commercial buyers, such as retail stores or food service operations. For example, demand by retail

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Figure 19.3  Causal factors that increase reputational pressure on kosher certifiers supermarkets and restaurant chains has given rise to a highly developed global infrastructure of private third-party food safety certification.86 Other conditions support reliable private third-party certification, but they need not all be present. It may prove sufficient to have a critical mass, which may vary in its composition from case to case. In some contexts, one may find consumer vigilance among activists, whose moral commitments to such issues as animal rights, fair labor standards, or sustainable environmental practices are just as strong as adherence to kosher dietary laws among observant Jews. In other contexts, one may be more likely to find a high level of interdependence among competing certifiers working at different points along supply chains.87

  Lytton, Outbreak, supra note 8, at 127–130.  For a study comparing kosher certification with emerging markets for halal-certified foods in Europe, see John Lever & Johan Fischer, Religion, Regulation, Consumption: Globalizing Kosher and Halal Markets (2018). See also Febe Armanios & Boğaç Ergene, Halal Food: A History (2018). For examples of third-party certification of nonreligious credence qualities associated with food, see Hatanaka et al., supra note 13 (organic); Djama et al., supra note 13 (sustainable). For a wide-ranging study of eco-standards in global consumer markets, see Bostrom & Klintman, supra note 12.

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CONCLUSION Product sellers contemplating consumer fraud weigh the benefit against the risk—that is, the benefit gained by deception against the prospect of detection and the reputational cost to their brand if they are exposed. When fraud takes the form of adulteration, the benefit is the company’s savings from using less expensive ingredients. In the case of misbranding, the benefit is avoiding having to pay a certifier. Fraudulent misrepresentation regarding credence qualities is especially tempting because consumers cannot detect it by inspecting a product. Food companies occasionally engage in these forms of fraud regarding the kosher status of food to benefit from cheaper ingredients or the avoidance of certification fees, which can exceed $100,000 per year for large companies.88 However, as this chapter has demonstrated, reliable private third-party certification deters kosher fraud by increasing the prospect of detection. Additionally, the widespread consumer demand for kosher-certified food increases the reputational cost to companies that are exposed. Relying on the example of kosher certification, the model developed here identifies market structures and social conditions that, if successfully cultivated, favor reliable private third-party certification in other contexts. In the end, the model does not provide a blueprint for success. Instead, it identifies a menu of various components that one would be wise to consider when designing, constructing, or implementing a system of private third-party certification to verify product claims. When it comes to credence qualities, the proof of the pudding may not be in the eating. It may require reliable third-party certification. This chapter has offered a taste of how that might be accomplished.

  Lytton, Kosher, supra note 29, at 42.

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20. Class action litigation targeting the food industry: U.S. and international perspectives Tommy Tobin

I. INTRODUCTION Food businesses are global enterprises and are becoming even more integrated with their suppliers, customers, and partners across the globe. Food businesses operate globally, but courts are inherently limited by jurisdiction. Famously, American federal courts are restricted to act by their limited jurisdiction, presiding over justiciable “cases and controversies,” generally those between diverse parties or those cases raising federal questions.1 Indeed, the very term “jurisdiction” is defined as boundary-setting, determining whether a government or its component parts can exercise authority.2 Attorneys in the United States are well acquainted with class action procedures resulting in scores of consumer class actions filed each year. Yet, other jurisdictions do not fully embrace this approach.3 For example, the European Union (EU) has long debated a collective redress mechanism for member states to address consumer complaints.4 In a joint statement,5 the EU Commissioners for Justice, Competition, and Consumer Policy raised substantial concerns over the “risk of abusive litigation” posed by the U.S. system of class actions. Specifically, these commissioners warned that the U.S. system “contains strong economic incentives for parties to bring a case to court even if, on the merits, it is not well founded” based on a variety of factors, including “the availability of punitive damages, the absence of limitations as regards standing (virtually anybody can bring an action on behalf of an open class of injured parties) the possibility of contingency fees for attorneys and the

  Admin. Office of the U.S. Courts, Understanding the Federal Courts 6 (“The federal courts, thus, are courts of ‘limited’ jurisdiction because they may only decide certain types of cases as provided by Congress or as identified in the Constitution”). 2   Jurisdiction, Black’s Law Dictionary (11th ed. 2019) (defining “jurisdiction” as “1. A government’s general power to exercise authority over all persons and things within its territory; esp., a state’s power to create interests that will be recognized under common-law principles as valid in other states […] 2. A court’s power to decide a case or issue a decree […] 3. A geographic area within which political or judicial authority may be exercised”). 3  Christa Band, et al., Collective Redress Across the Globe, Linklaters (Jul. 1, 2020), www​.linklaters​.com ​/en ​/insights​/publications​/collective​-redress​/collective​-redress​-across​-the​-globe​/overview [perma​.cc​/Y4FS​-​S7DB] (“Although none fully embrace the US approach, all the jurisdictions featured in this Review have one or more mechanisms by which claimants can group together, either before or after proceedings have commenced, to have their claims heard by the court in one set of proceedings”). 4   See Christina Renner & Cécile Manong, Collective Actions in the EU: The Past, the Present, the Future, Practical Law UK, Westlaw w-024-5137 (Mar. 1, 2020). 5   Towards a Coherent European Approach to Collective Redress: Next Steps, SEC (2010) 1192 (Oct. 5, 2010), https://ec​.europa​.eu​/competition​/antitrust​/actionsdamages​/Commission​_2010​_information​ _towards​_european​_collective​_ redress​.pdf [perma​.cc​/7TMM​-​NRL3]. 1

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410  Research handbook on international food law wide-ranging discovery procedure for procuring evidence.”6 Because of this risk, the commissioners firmly opposed bringing the U.S. model into the EU as they argued the “class action” system was “not compatible with the European legal tradition.”7 This chapter begins with section II by defining “food litigation” as a distinct area of class action legal practice within the broader areas of food law and class action litigation and examines some of the goals of food litigation cases. Section III provides further detail on how food litigation has developed in the United States. Section IV explores various international perspectives on food litigation. Section V concludes.

II. DEFINING “FOOD LITIGATION” WITHIN CLASS ACTION PRACTICE a. What is “Food Litigation”? Much like banana peels, definitions in food law can be a slippery subject. In his leading treatise on food law in the United States, Michael Roberts wrote that food law could and should be considered a discipline in itself. The vastness of “food law” subject matter raises a legitimate question as to whether food law is not a discipline in and of itself, but merely a subsection of other forms of law—administrative, environmental, consumer protection, international, tort, zoning, animal welfare, constitutional, and intellectual property. However, the case to consider food law as a discipline (albeit multidoctrinal) in and of itself is strong. Its value lies in focusing attention on how law governs food from the field to the table. The challenges posed by a modern food system unlike anything that the world has experienced have generated attention on the governance of food to warrant a legal field and discipline such as food law. Moreover, by recognizing how law governs food, improvements can be made and dynamics can be better understood.8

Indeed, food law and policy is now “firmly rooted as a growing and thriving legal field,” and these “courses—and the faculty who teach them—are now the norm at many of America’s top schools, with more than a dozen schools offering two or more such courses each year.”9 Notwithstanding definitional issues, there is no doubt that food law has “a peel” to lawyers and law students across the country. Law firms are building out practice groups on food law matters, and law schools are developing clinics and courses on food law and policy topics.10 Food businesses are heavily regulated entities. Just in the United States, multiple government agencies regulate the food supply, namely the FDA and the U.S. Department of Agriculture (USDA). The regulation of food at the local, state, federal, and even international levels creates

  Id.   Id.  8   Michael T. Roberts, Food Law in the United States 10 (2016).  9  Emily M. Broad Leib & Baylen J. Linnekin, Food Law & Policy: An Essential Part of Today’s Legal Academy, 13 J. Food L. & Pol’y 228, 260 (2018). 10   See e.g., Law 693—Food Litigation: Consumer Protection, Regulation, and Class Actions, UCLA L. Sch., https://curriculum​.law​.ucla​.edu​/Guide​/Course​/5448 [perma​.cc​/4QD4​-​GGA8]; Food Law & Policy Clinic, Harv. L. Sch. Ctr. Health L. & Pol’y Innovation, https://chlpi​.org​/food​-law​ -and​-policy/ [perma​.cc​/88WW​-​A46E].  6  7

Class action litigation targeting the food industry  411 complex legal arrangements for food businesses to meet the needs of an ever-more discerning customer base. These complicated arrangements can lead to compliance risks for businesses, from food safety violations to disputed labeling claims. Category pioneers and market innovators can face particular challenges as they work to differentiate their food products from their competitors. Regulatory compliance actions brought by government officials can range from warning letters to investigations to even criminal sanctions.11 These might arise from substantive government regulators or attorneys general at the state or federal level. In the United States, food litigation often takes the form of a putative class representative bringing suit challenging an alleged false or misleading labeling claim on a food or beverage product.12 Generally, federal food statutes, like the Food, Drug, and Cosmetic Act and their accompanying regulations, do not contain a private right of action. Nonetheless, food litigation cases often end up in federal court. How? Plaintiffs often use the vehicle of state consumer protection law (sometimes known as Little-FTC Acts) to assert their claim, bringing suit that the alleged misrepresentation represents an unfair or deceptive trade practice in violation of state standards and justiciable in the jurisdiction’s state or federal courts. Food litigation is among the most significant trends in civil litigation across the country, especially since 2015. b. What are the Theories of “Food Litigation” within Class Action Practice? Judge Posner of the Seventh Circuit wrote that the class action represented an “ingenious procedural innovation” enabling individuals to obtain relief as a group, especially when each claim was “too small to justify the expense of a separate suit, so that without a class action there would be no relief, however meritorious the claims.”13 Indeed, Federal Rule of Civil Procedure 23, the rule governing class actions in the federal system, was designed in part to provide redress for individuals suffering discrimination, especially when members of the class were incapable of specific enumeration.14 From historical wins for racial and gender discrimination to desegregation to voting rights, class actions in the U.S. have a storied history.15 Some have likened the advent of the modern American class action to the invention of fire: “If used properly, it can significantly advance societal goals. If misused, however, it quickly degenerates into something that causes significant harm.”16 Of course, views on the social   See generally Dan Flynn, Letter from the Editor: The New Normal, Food Safety News (May 22, 2016), www​.foodsafetynews​.com ​/2016​/05​/ letter​-from​-the​-editor​-24/ [perma​.cc​/ BNU8​-​A X5B]; Tommy Tobin, Controlling Bad Eggs  ̶  On the Farm and In the C-Suite, Food Safety News (Mar. 9, 2017), www​.foodsafetynews​.com ​/2017​/03​/controlling​-bad​-eggs​-on​-the​-farm​-and​-in​-the​-c​-suite/ [perma​.cc​/QCZ4​-​P63P]. 12  Of course, other claims are possible. Civil disputes involving food businesses can take many forms, from food safety product liability matters to trademark infringement and false advertising claims brought by rival companies, such as those brought under the Lanham Act. 13  Eubank v. Pella Corp., 753 F.3d 718, 719 (7th Cir. 2014). 14   Fed.R.Civ.P. 23 advisory committee’s note to 1966 amendment (“Illustrative are various actions in the civil-rights field where a party is charged with discriminating unlawfully against a class, usually one whose members are incapable of specific enumeration”). 15   See Planet Money, Episode 696: Class Action, NPR, (Apr. 15, 2016) www​.npr​.org​/transcripts​ /474406842 [https://perma​.cc​/35PP​-TQJU]. 16  Martin H. Redish & Megan B. Kiernan, Avoiding Death by a Thousand Cuts: The Relitigation of Class Certification and the Realities of the Modern Class Action, 99 Iowa L. Rev. 1659, 1659 (2014). 11

412  Research handbook on international food law utility of using private litigation to enforce public law differ across jurisdictions and within the legal community. As noted earlier, European authorities cautioned against class actions for their “economic incentive to bring abusive claims.”17 By contrast, plaintiffs’ attorney Bill Marler’s brand of food safety litigation contributed to changes in food manufacturing and handling practices following several high-profile suits.18 In the food litigation context, consumer plaintiffs and their counsel assert various theories on behalf of a putative class. A non-exhaustive list of the varying flavors of food litigation follows: •

•

•

Slack-fill: Plaintiffs allege that the food packaging has non-functional void space, known as non-functional slack-fill.19 Examples include: Daniel v. Tootsie Roll Indus., No. 17 Civ. 7541, 2018 U.S. Dist. LEXIS 129143, at *31–34 (S.D.N.Y. Aug. 1, 2018) (holding that slack-fill “would not mislead a reasonable consumer” when the weight of the candy was prominently displayed on the front of the package); Alce v. Wise Foods, Inc., No. 17 Civ. 2402, 2018 U.S. Dist. LEXIS 54009, at *25–28 (S.D.N.Y. Mar. 27, 2018) (it “defies logic” that reasonable consumers would be deceived, since “the weight of the chips enclosed [was] prominently displayed” and consumers “expect significant slack-fill in … snack products”). “All Natural”: Among other things, these cases contend that the presence of the term “Natural” or “All Natural” is false or misleading when there is some presence of a synthetic molecule, often in minute or trace amounts. Example cases: Parks v. Ainsworth Pet Nutrition, LLC, 377 F. Supp.3d 241, 247 (S.D.N.Y. 2019) (holding that reasonable consumers “would not be so absolutist as to require that ‘natural’ means there is no glyphosate, even an accidental and innocuous amount” in processed food products); Axon v. Florida’s Natural Growers, Inc., 813 F.App’x 701 (2d Cir. 2020) (no “reasonable consumer” believes that the use of “natural” in a product’s brand name is plausibly interpreted as communicating that the food is completely free of trace pesticides). Animal Welfare and Environmental Practices: These cases contend that the labeling or marketing of food products is false or misleading in how it communicates the realities of the manufacturer’s stewardship of the animals under its care or the environment. In fact, the advocacy group the Animal Legal Defense Fund led a webinar on “how to protect animals by litigating for consumers” in recent years.20 Example Cases: Marshall v. Red Lobster Mgmt., LLC, No. 2:21-cv-4786 (C.D. Cal., filed June 11, 2021) (alleging that the restaurant chain’s representations regarding sustainable seafood sourcing were false or misleading); Greenpeace v. Walmart, Inc., No. 21-cv-00754-MMC, 2021 WL 4267536

  Public Consultation: Towards a Coherent European Approach to Collective Redress, at ¶ 22, SEC (2011) 173 final (Feb. 4, 2011) www​.europarl​.europa​.eu​/meetdocs​/2009​_2014​/documents​/itre​/dv​ /250​/250520​/25052011​_ SEC​_2011​_173​_ EN​.pdf [perma​.cc​/2YZM​-​9RW9]. 18   See Jeff Benedict, Poisoned: The True Story of the Deadly E. Coli Outbreak That Changed the Way Americans Eat (2013). 19   See 21 C.F.R. § 100.100 (2022) (providing that “a food shall be deemed to be misbranded if its container is so made, formed, or filled as to be misleading,” including for reasons of non-functional slack-fill). 20  Kelsey Eberly, False Advertising: How to Protect Animals by Litigating for Consumers 2019, Animal Legal Def. Fund (Aug. 6, 2019), https://aldf​.org​/article​/false​-advertising​-how​-to​-protect​ -animals​-by​-litigating​-for​-consumers​-2019/ [perma​.cc​/ XRW9​-​K PBC]. 17

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•

•

(N.D. Cal., Sept. 20, 2021) (dismissing suit alleging that Walmart’s private label brands were not actually “recyclable” as labeled). Vanilla: More than 130 suits have been filed since 2019, alleging that consumers expect that a product labeled “vanilla” cannot derive any flavor from sources other than pure vanilla or vanilla extract. Courts have grown increasingly impatient with these claims, repeatedly holding that when consumers read vanilla on a product label, they understand it to mean the product has a certain taste, not that it is derived exclusively from vanilla beans. Example cases: Clark v. Westbrae Natural, Inc., No. 20-cv-03221-JSC, 2021 WL 1580827, at *2 (N.D. Cal. Apr. 22, 2021); Dashnau v. Unilever Mfg. (US), Inc., 529 F.Supp.3d 235, 242–43 (S.D.N.Y. Mar. 26, 2021); Cosgrove v. Oregon Chai, Inc., 520 F.Supp.3d 562, 581 (S.D.N.Y. 2021); Parham v. Aldi, Inc., No. 1:19-cv-08975, 2021 WL 709632, at *3 (S.D.N.Y. Feb. 15, 2021). False labeling: A more general theory is that some aspect of the labeling or marketing of a food product is false or misleading. The breadth and creativity of these filings show how plaintiffs continue to scrutinize food and beverage labels for potential lawsuits.21 Example Cases: Salerno v. The Coca-Cola Co., No. 7:20-cv-05235 (S.D.N.Y., July 12, 2021) (holding that the “slightly sweet” labeling claim was not misleading to a reasonable consumer regarding the amount of sugar in a beverage); Moore v. Trader Joe’s Co., 4 F.4th 874 (9th Cir. 2021) (holding that a reasonable consumer could not plausibly believe the claim of “100% New Zealand Manuka Honey” meant that honey was derived exclusively from bees that collected nectar from the manuka flower). ***

Courts across the U.S. have seen scores of new cases filings alleging false or misleading labeling claims on food or beverage products in recent years, even during the pandemic. While overall civil litigation experienced a slowdown during the pandemic, putative class action filings against the food industry persisted and increased by about 20%.22

III. CLASS ACTIONS TARGETING THE FOOD INDUSTRY: THE U.S. SYSTEM a. Class Action Requirements Given that food litigation matters largely consist of cases brought on behalf of a putative class of consumers, the requirements necessary to certify a class are crucial components of litigating such matters. Often the class certification determination sounds “the death knell of the litigation.”23 Class certification has two key components.

  David T. Biderman et al., Perkins Coie Food and Consumer Packaged Goods Litigation Year in Review 2021, at 4 (2022). 22  Charles Sipos, Kristine Kruger & Tommy Tobin, Courts Are Right to Scrutinize Food Labeling Suits, Law360 (Aug. 4, 2020, 5:37 PM), www.law360.com/articles/1297119/courts-are-right-toscrutinize-food-labeling-suits. 23  Chamberlan v. Ford Motor Co., 402 F.3d 952, 957 (9th Cir. 2005). 21

414  Research handbook on international food law First, Federal Rule 23(a) provides four key class certification criteria. Each requirement must be satisfied. The elements of class certification required by Federal Rule 23(a) are: • • • •

Numerosity: The number of individuals must make individual joinder impractical. Commonality: The members of the class must present common questions of law or fact. Typicality: The claims or defenses of the class representatives must be typical of those of class members. Adequacy: The class representatives must fairly and adequately represent the interests of the class.

Second, the class must fit within at least one of the three permissible class categories of Rule 23(b). The first two of these categories are less common in the food litigation context: Rule 23(b)(1), or when adjudication as to some class members would be dispositive of other class members;24 and Rule 23(b)(2), or cases seeking declaratory or injunctive relief on behalf of class members.25 Rule 23(b)(3) classes are generally preferred by food litigation plaintiffs. Pursuant to Rule 23(b)(3), a court must find that common questions of law or fact predominate over questions affecting individual members and that a class action would be a superior method for fairly and efficiently adjudicating the controversy. Classes under Rule 23(b)(3) should be certified when they “achieve economies of time, effort, and expense, and promote … uniformity of decision as to persons similarly situated, without sacrificing procedural fairness or bringing about other undesirable results.”26 Rule 23, and particularly Rule 23(b)(3), has grown into a “tremendous procedural engine that would have astonished its authors.”27 Ultimately, the Rules Committee acknowledged that the “(b)(3) classes represent both the dramatic expansion of remedies for small claims that could not profitably be pursued in individual actions and the growing efforts to aggregate claims that are (or would be) brought in individual actions.”28 Indeed, U.S. courts have recognized that consumer class actions “designed to recover relatively small price premiums in comparison to the expense and burden of litigation, are clearly superior to the alternative of forcing consumers to litigate on principle.”29 Rule 23(b)(3) allows classes, and their counsel, to pursue recovery of their alleged damages. In the food litigation context, these classes often claim they are due either (i) the full purchase

  See Ortiz v. Fibreboard Corp., 527 U.S. 815, 821 (1999) (wrestling with Rule 23(b)(1) amid the “elephantine mass of asbestos cases”). 25   See Torres v. Del Toro, No. 1:21-CV-306-RCL, 2021 WL 4989451, at *5 (D.D.C. Oct. 27, 2021) (granting certification of class pursuant to Rule 23(b)(2) for military servicemembers seeking procedural redress when the Navy allegedly failed to review medical conditions as required by federal law); Wal-Mart v. Dukes, 564 U.S. 338 (2011) (the Supreme Court’s landmark 23(b)(2) decision holding that classes pursuing monetary relief could not be certified under that provision at least when the monetary relief is not incidental to the claims for injunctive or monetary relief). 26  Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 615 (1997). 27  John K. Rabiej, The Making of Class Action Rule 23—What Were We Thinking, 24 Miss. Col. L. Rev. 323, 323 (2005). 28   Id. at 335 n 46. 29  Goldemberg v. Johnson & Johnson Consumer Cos, Inc., 317 F.R.D. 374, 397 (S.D.N.Y. 2016) (quoting Amgen, Inc. v. Conn. Ret. Plans & Trust Funds, 133 S.Ct. 1184, 1202 (2013)) (“The policy at the very core of the class action mechanism is to overcome the problem that small recoveries do not provide the incentive for any individual to bring a solo action prosecuting his or her rights”). 24

Class action litigation targeting the food industry  415 price of the food item or (ii) the alleged price premium, or the price consumers would have paid but for the claimed misrepresentation. The quantum of this price premium, and indeed whether one exists, may result in a battle of economic experts. b. Class Action Filings Targeting the Food Industry: Food Litigation By The Numbers Food litigation filings have grown dramatically in recent years, as depicted in the table below. The table shows that putative class action filings targeting the food industry have seen a remarkable rise, especially since 2015.30 Since 2008, courts have seen more than 1,700 new food litigation case filings.​ Several notable trends emerge from these data. •

Remarkable growth in food litigation over time: Even with the pandemic, food litigation case filings increased by 20% between 2019 and 2020, prompting courts across the country to continue to scrutinize the substance of such cases.31 Now, in 2021, food litigation filings are higher than ever, reaching an average of nearly one filing per calendar day.

Table 20.1  U.S. food litigation class action filings per year Year

Food litigation filings

Year-on-year increase (%)

2008

19

—

2009

26

7 cases (37%)

2010

45

19 cases (73%)

2011

53

8 cases (18%)

2012

95

42 cases (79%)

2013

94

–1 case (–1%)

2014

81

–13 cases (–14%)

2015

158

77 cases (95%)

2016

145

–13 cases (–8%)

2017

145

0 cases (0%)

2018

164

19 cases (13%)

2019

179

15 cases (9%)

2020

221

42 cases (23%)

2021

325

104 cases (47%)

Source:   See Perkins Coie LLP, Food & CPG Litigation Year in Review 2021 (Feb. 2022).

  David T. Biderman et al., Perkins Coie Food and Consumer Packaged Goods Litigation Year in Review 2020, at 4 (2021). 31  Charles Sipos, Kristine Kruger & Tommy Tobin, supra, note 22. 30

416  Research handbook on international food law •

•

•

Massive rise after 2014: Between 2014 and 2015, new food litigation matters nearly doubled.32 This rapid increase in new food litigation filings is likely the effect of several reasons, and many commentators identify the Supreme Court’s decision in AT&T Mobility LLC v. Concepcion, which placed significant limitations on consumers’ ability to pursue class actions in arbitration.33 Other commenters point to other potential reasons, such as increased attention given to consumer group investigations and related media campaigns and active monitoring of the marketplace by the FDA and FTC among other regulators.34 Common venues: Federal and state courts in California and New York are the most common venues for new food litigation matters. Other courts, such as those in Illinois, Missouri, and the District of Columbia, also see many matters filed. Given the number of new food litigation matters filed there, the Northern District of California has earned the nickname as the nation’s “food court.”35 Tastes change: Food litigation case filing trends vary over time. Slack-fill, for example, constituted nearly a quarter of all filings in 2016, but this number was down to 4% of new filings in 2020.36 In 2021, two Congressional reports into the trace amounts of heavy metals in baby food resulted in over 120 cases filed against manufacturers of those food products.

Yet, the data do not tell the whole story. First, the data on case filings—by their very nature—report only cases that are actually filed. While complaints are generally thought of as the beginning of a case, many food litigation matters likely begin with pre-suit discussions over a demand letter sent by a plaintiff’s attorney to the company. State consumer protection statutes often mandate pre-suit notice prior to the filing of the case brought under the statute.37 This pre-suit notice and demand can prompt discussions before the filing of any topic and provide an opportunity for the parties (and their counsel) to address the consumer’s complaint prior to filing and reach a mutually agreed resolution of the matter through negotiation. These discussions might result in an individual, confidential suit before a complaint is filed, meaning that no public filing would appear in the collected data. Second, the data on case filings indicate that a case has started through the court system. These cases can be lengthy and complex, especially after the motion to dismiss stage. As a result, many cases might stick around the courts for years, including winding their way through the appeals courts. Third, the data on case filings do not do justice to the fact that a public filing against a wellknown consumer brand can result in a firestorm of media coverage, regardless of the claim’s   See Tommy Tobin, Food Litigation: An Emerging Field, in Food Law: A Practical Guide 23 (Tommy Tobin ed., 2021). 33  Erica A. Burgos, Selling the Footlong Short: How Consumers Inch Toward Satisfaction in Costly Food Class Action Litigation, 13 Seventh Circuit Rev. 259, 266 (2017). 34   Roberts, supra note 8, at 303. 35  Tommy Tobin, Julie L. Hussey & Carrie Akinaka, Notable Ruling: No Jury for False Advertising and UCL Suits, California Supreme Court Rules, Perkins Coie Consumer Prot. Rev. (May 12, 2020), www​.con​sume​r pro​tect​ionreview​.com​/2020​/05​/notable​-ruling​-no​-jury​-for​-false​-advertising​ -and​-ucl​-suits​-california​-supreme​-court​-rules/ [perma​.cc​/5K3Q​-​BBHA]. 36   See Tobin, supra note 32, at 26. 37   See e.g., California’s Consumer Legal Remedies Act, Cal. Civ. Code § 1750, et. seq. 32

Class action litigation targeting the food industry  417 merit. Take, for example, the Subway “footlong” lawsuit, which alleged that Subway “footlong” sandwiches were less than 12 inches long. A media sensation was borne out of a viral social media post placing a sub sandwich against a tape measurer.38 As the Seventh Circuit described, Plaintiffs’ lawyers across the United States sued Subway for damages and injunctive relief under state consumer-protection laws, seeking class certification under Rule 23 of the Federal Rules of Civil Procedure. … In their haste to file suit, however, the lawyers neglected to consider whether the claims had any merit. They did not. Early discovery established that Subway’s unbaked bread sticks are uniform, and the baked rolls rarely fall short of 12 inches. The minor variations that do occur are wholly attributable to the natural variability in the baking process and cannot be prevented. That much is common sense, and modest initial discovery confirmed it. As important, no customer is shorted any food even if a sandwich roll fails to bake to a full 12 inches. Subway sandwiches are made to order in front of the customer; meat and cheese ingredients are standardized, and “sandwich artists” add toppings in whatever quantity the customer desires.39

That case eventually resulted in a settlement that the Seventh Circuit found “hollow.” Indeed, the panel found the case was one that “seeks only worthless benefits for the class” and “yields [only] fees for class counsel” is “no better than a racket” and “should be dismissed out of hand.”40 Meanwhile, the company had endured years of litigation and media scrutiny for this alleged misrepresentation.41 c. Statutory Damages—An Unresolved Issue An emerging, and as yet unresolved, area of Rule 23(b)(3) class action practice is the question of statutory damages.42 For example, certain statutes, such as the Fair and Accurate Credit Transactions Act (FACTA) or Telephone Consumer Protection Act (TCPA), can create sizable, strict liability scenarios for companies. For example, under the TCPA, companies can be liable for $500 per unwanted text or call, and the statute further provides courts with discretion to award treble damages of up to $1,500 for willing and knowing violations. Moreover, the TCPA does not have a cap for potential strict liability recovery.43 This means that even   In re Subway Footlong Sandwich Mktg. & Sales Pracs. Litig., 869 F.3d 551, 553 (7th Cir. 2017).   Id. at 552–53. 40   Id. at 553. 41   See, e.g., Gabe Ulla, Men Sue Subway, Demand Actual 12 Inch Footlong Subs, Eater (Jan. 23, 2013, 10:25 AM), www​.eater​.com​/2013​/1​/23​/6491527​/men​-sue​-subway​-demand​-actual​-12​-inch​ -footlong​-subs [perma​.cc​/Z8SY​-​64LW]; Neetzan Zimmerman, Angry Sandwich Lovers Demand to Know Why Subway’s Footlong is an Inch Shorter Than Advertised, Gawker (Jan. 16, 2013, 10:45 AM), www​.gawker​.com​/5976400​/angry​-sandwich​-lovers​-demand​-to​-know​-why​-subways​-footlong​ -is​-an​-inch​-shorter​-than​-advertised [perma​.cc​/ T5DA​-​ZC7U]. 42   See Sheila B. Scheuerman, Due Process Forgotten: The Problem of Statutory Damages and Class Actions, 74 Mo. L. Rev. 103, 104 (2009) (“When combined with the procedural device of the class action, aggregated statutory damages claims can result in absurd liability exposure in the hundreds of millions—or even billions—of dollars on behalf of a class whose actual damages are often nonexistent”). 43  David T. Biderman, Barak Cohen, Nicola Menaldo, & Tommy Tobin, Cannabis Businesses Should Get Smart About TCPA Litigation Risks, Bloomberg L. (Jul. 6, 2020, 1:01 AM) https://news​ .bloomberglaw​.com ​/us​-law​-week ​/insight​-cannabis​-businesses​-should​-get​-smart​-about​-tcpa​-litigation​-risks [perma​.cc​/J9NJ​-​37QB]. 38 39

418  Research handbook on international food law “relatively small numbers of calls, texts, or potential claimants can result in sizeable damage awards,” for example, just one unsolicited message to 2,000 recipients could result in TCPA damages of $1 million to $3 million.44 Just whether such statutory damages in the class action offend traditional notions of due process is a looming question.45 In the food litigation context, statutory damages have been alleged under New York’s General Business Law (GBL) sections 349 and 350.46 These statutes and their interpretation pit due process against the statutory text. Under these state laws, “some courts have shown a willingness to certify damages classes in labeling cases under §§ 349 and 350 where the damages claimed would entitle plaintiffs’ attorneys and the class to recover $550 for every single New York purchase of a low-priced consumer good like cereal, breakfast bars, or even grass seed.”47 As explained by Charles Sipos and Lauren Watts Staniar, a “quirk of federal law” has “allowed Federal Rule of Civil Procedure 23 to trump the contrary legislative intent of the lawmakers who passed these laws in the first place.”48 Under a separate state rule of procedure, CPLR § 901(b), plaintiffs must waive rights to statutory damages if they pursue class claims under GBL §§ 349 and 350.49 That is, state legislative drafters placed this restriction on statutory damages in their state body of law but not explicitly in GBL §§ 349 and 350. But in 2010, the U.S. Supreme Court found that this state rule of procedure conflicted with Rule 23.50 As a result, some courts have held that statutory damages under GBL §§ 349 and 350 “are available on a class basis in federal court, even though they would be barred by section 901(b) if the same action were to proceed in state court.”51 Because of this, threatened statutory damages in New York can reach astronomical proportions of $550 per violation when courts consider every sale of a challenged product in New York state a violation of the state’s consumer protection law.52 “For consumer goods companies whose business relies on volume sales of low-cost items, the price of statutory damages gets unmanageably enormous once a class is certified

  See id.   See Scheuerman, supra note 42, at 104; Brian Fitzpatrick, The Conservative Case for Class Actions 116–17 (2019) (citing the TCPA and arguing that “extracompensatory” statutory damages should not be allowed in class actions). 46  N.Y. GBL § 349 makes unlawful “deceptive acts or practices in the conduct of any business, trade or commerce or in the furnishing of any service” in New York. N.Y. GBL § 350 makes unlawful “false advertising in the conduct of any business, trade or commerce or in the furnishing of any service” in New York. 47  Charles C. Sipos & Lauren Watts Staniar, Billion-Dollar Breakfast Bars: Statutory Damages and Unconstitutional Settlement Pressure Under New York’s General Business Laws, N.Y. L. J. (Nov. 16, 2021, 11:00 AM), www​.law​.com​/newyorklawjournal​/2021​/11​/16​/ billion​-dollar​-breakfast​-bars​ -statutory​- damages​-and​-unconstitutional​-settlement​-pressure​-under​-new​-yorks​-general​-business​ -laws/ [perma​.cc​/G6B6​-​TCNJ]. 48   Id. 49   See Rodriguez v. It’s Just Lunch Int’l, No. 07-cv-9227, 2018 WL 3733944, at *8 (S.D.N.Y. Aug. 6, 2018). 50   See Shady Grove Orthopedic Associates P.A. v. Allstate Ins. Co., 559 U.S. 393 (2010). 51  Kurtz v. Kimberly-Clark, 321 F.R.D. 482, 502 (E.D.N.Y. 2017). 52   See Famular v. Whirlpool, No. 16 CV 944, 2019 WL 1254882, at *11 (S.D.N.Y. March 19, 2019) (“The statutory damage calculation is the number of units sold in New York (15,380) multiplied by the $50 statutory minimum for GBL Section 349 violations and $500 statutory minimum for GBL Section 350 violations”). 44 45

Class action litigation targeting the food industry  419 allowing statutory damages as the model.”53 Sipos and Staniar use the following example to illustrate the scale of the problem: An example illustrates: Imagine a shampoo company is sued for false advertising because its “natural” shampoo product contains some ingredient the plaintiff claims is synthetic. Plaintiffs in these cases do not claim they were harmed by the product; they simply allege they were “tricked” into making the purchase. The company insists all ingredients in the product are natural and is willing to fight to trial. It sold two million bottles of shampoo in New York during the three-year statute of limitations period for $10 each, which amounts to gross sales of $20 million. And let’s say it sold 20 million bottles nationwide for $200 million in nationwide sales. The plaintiff nonetheless seeks statutory damages of $550 under GBL §§ 349 and 350 for each bottle sold in New York. If the court certifies a class of New York purchasers, the company faces $1.1 billion in statutory damages under GBL §§ 349 and 350. So, if the company goes to trial and loses, it is potentially on the hook for damages 55 times its gross sales figure in New York, and over five times its entire nationwide sales. For our hypothetical company, this risk is too great to bear: Even though it stands by its labeling, it is forced to settle. All from a $10 purchase and a product label the defendant maintains is accurate.

Just how U.S. courts will resolve this important issue remains uncertain; meanwhile, defendants have due process rights that require appropriate protection.54

IV.

INTERNATIONAL PERSPECTIVES

a. Applying U.S. Class Action Law to Govern Global Supply Chains U.S. class actions have been used to attempt to litigate global supply chain concerns occurring outside the country.55 Food manufacturers, namely chocolate manufacturers, have been targeted by class actions for alleged labor violations occurring in foreign countries. For example, in Nestlé v. Doe,56 a group of individuals trafficked into child labor to work on cocoa plantations in Ivory Coast alleged that they were subjected to human rights abuses by these plantation overseers. They sued Nestlé and Cargill, alleging these domestic companies made operational decisions about sourcing cocoa and provided the overseers of these plantations with financial support and supplies. After approximately 15 years of litigation, the U.S. Supreme Court was asked whether the Alien Tort Statute could be used to impose liability on domestic companies on an “aiding and abetting” theory. In its 2021 opinion, the Court rejected the law’s application to this kind of extraterritorial activity, which would result in a radical expansion of the statute. In a separate part of the opinion, Justices Clarence Thomas, Neil Gorsuch, and Brett Kavanaugh went on to explain that allowing courts to create new rights of action to reach

 Sipos & Staniar, supra note 47.   Id. (“[H]ow do we fix it? We do so by enforcing—at the class certification stage—the due process rights that defendants hold. These rights protect against a ruling that might otherwise expose a defendant to excessive damages awards”). 55   See Charles C. Sipos, Forced Labor in International Supply Chains: Class Actions Are Not the Right Tool for the Job, Nat’l L. J. (Oct. 15, 2021), www​.law​.com​/nationallawjournal​/2021​/10​/15​/ forced​-labor​-in​-international​-supply​-chains​-class​-actions​-are​-not​-the​-right​-tool​-for​-the​-job/ [perma​ .cc​/8LLP​-​2R59]. 56  Nestlé USA, Inc. v. Doe, 141 S.Ct. 1931 (2021). 53

54

420  Research handbook on international food law these issues “places great stress on the separation of powers” because Congress is best suited to decide how foreign policy concerns might be implicated.57 The U.S. Courts of Appeal for the First and Ninth Circuits reached similar conclusions when addressing claims that chocolate manufacturers had an affirmative duty under state consumer protection laws to label their chocolate products to disclose the possibility of labor abuses in their international supply chains.58 As the First Circuit explained, the exploitation of children in the supply chain from which U.S. confectionery corporations continue to source the cocoa beans that they turn into chocolate is a humanitarian tragedy. This case thus serves as a haunting reminder that eradicating the evil of slavery in all its forms is a job far from finished.59

But, the question before the court was “very narrow,” specifically “whether Defendants’ failure to include on the packing of their chocolate products information regarding upstream labor abuses in their cocoa bean supply chains constitutes an unfair or deceptive business practice within the meaning” of state consumer protection law.60 The circuits rejected plaintiffs’ theory, holding that plaintiffs’ theory would create a theory of liability “virtually beyond limits” and “a nearly boundless disclosure obligation.”61 Labor abuses abroad are of legitimate concern, but the question in Doe, Tomasella, and Hodson was whether courts are the best means of addressing this concern. As Charles Sipos noted, these courts also all appropriately deferred to Congress and state legislative efforts to address that concern as the superior way to get at the issue. Because of the threat of unchecked expanding liability, and out of a respect for other branches of government, each court ultimately decided that class actions simply are not the right tool for the job.62

b. Appreciating International Flavors The U.S. framework of class action litigation has not been fully embraced in other jurisdictions.63 That said, Canada, Australia, and Israel stand out as jurisdictions with particularly similar class-action ecosystems. The United Kingdom has also seen an increase in collective action proceedings after enacting the Consumer Rights Act of 2015. In Canada, “copycat class actions that mimic U.S. litigation are common,” as an active plaintiffs’ bar works with U.S.-based counsel.64 The recent Canada Dry class action is

 Sipos, supra note 55.  Tomasella v. Nestlé USA, Inc., 962 F.3d 60 (1st Cir. 2020); Hodsdon v. Mars, Inc., 891 F.3d 857 (9th Cir. 2018). 59   Tomasella, 962 F.3d at 65. 60   Id. 61   Id. at 73, 77. 62  Sipos, supra note 55. 63  Edward F. Sherman, Group Litigation Under Foreign Legal Systems: Variations and Alternatives to American Class Actions 52 DePaul L.Rev. 401, 401 (2002) (“The class action is a uniquely American procedural device”). 64  Glenn Zakaib, et al., Class and Collective Actions in Canada, Lexology (Mar. 1, 2019), www​.lexology​.com​/ library​/detail​.aspx​?g​=df53fca8​-7604​- 4ecb​-91b6​-bf039a0159fb [perma​.cc​/ N8CR​-​EQSQ]. 57

58

Class action litigation targeting the food industry  421 illustrative of this copycat trend. The manufacturer of Canada Dry ginger ale was sued over the labeling representation that the product was “Made With Real Ginger.” Plaintiffs alleged that the quantum of “real ginger” was so low in the products as to render the representation false or misleading. In the United States, cases on this “real ginger” theory reached a settlement valued at approximately $11.2 million.65 In Canada, this theory prompted two class action settlements, one in Quebec and one in British Columbia, for a total settlement value of $850,000 Canadian dollars.66 In these settlements, the $200,000 in settlement funds in British Columbia were provided directly to the Law Foundation of British Columbia, whereas Quebec claimants were able to claim up to $7.50 in settlement awards. In Australia, class actions are an important, albeit small, part of the legal system. Like Canada and the U.S., Australia also largely draws from the common law tradition.67 According to a leading empirical study of Australian class actions, Australian courts saw a total of 563 class actions filed between 1992 and 2018, or an average of about 21 cases per year.68 Consumer class actions are among the most common class claims brought, and the number of class actions filed in Australia is expected to grow given “the entrepreneurial pursuits of both plaintiff law firms and third party funders” although the proverbial “floodgates” have not yet burst open regarding class filings in that jurisdiction.69 Separately, Israel maintains a vibrant class action legal ecosystem. Following the enactment of the 2006 Class Action Law, class action litigation in that jurisdiction has grown considerably, with thousands of class actions filed each year.70 Whereas U.S. class action litigation tends to be diversified across subject matters and involves high-dollar judgments (or settlements), Israel’s class actions are dominated by consumer protection matters with relatively modest monetary value.71 That is, “the U.S. system is designed as a private attorney general system to enforce complex laws such as securities, antitrust, and employment,” but the Israeli system “is currently focused on deterrence in a narrow category of consumer cases, enforcing simple regulatory mandates.”72 With a small population of approximately eight million, Israel sees more class action matters than the United States on a per capita basis, although   See Fitzhenry-Russell et al. v. Keurig Dr Pepper, Inc., No. 5:17-cv-00564, 2017 WL 4224723 (N.D. Cal.).   See Cardoso v. Canada Dry Mott’s Inc., No. S190672, 2020 BCSC 1569 (Can. B.C. S.C.) (approximately CAD $200,000 settlement value); Zouzout v. Canada Dry Motts Inc., et al., No. 500-06000968-194 (Can. Qc. C. S.) (approximately CAD $650,000 settlement value). 67   See Robert Carson, Olivia Dixon & Jessica Harding, U.S. Guide to Class Actions in Canada 4 (2018), www​.osler​.com ​/osler​/media ​/Osler​/reports​/ litigation ​/ US​-Guide​-to​-Class​-Acti ons​-in​-Canada​.pdf [perma​.cc​/ T9AQ​-​DFPC] (“[C]lass actions in Canada are for the most part similar to class actions in the U.S.”); Collective Redress Across the Globe—Australia, Linklaters (July 1, 2020), www​.linklaters​.com ​/en ​/insights​/publications​/collective​-redress​/collective​-redress​-across​ -the​-globe​/australia [perma​.cc​/KJC9​-​F PHG ] (“Class actions are an established and important part of the Australian legal landscape”). Quebec is a notable exception, given that it continues to follow many civil law traditions. 68  Vince Morabito, An Evidence-Based Approach to Class Action Reform in Australia: Competing Class Actions and Comparative Perspectives on the Volume of Class Action Litigation in Australia 8 (July 11, 2018) (unpublished manuscript) (on file at https://papers​.ssrn​.com​/sol3​/papers​.cfm​?abstract​ _id​=3212527) [perma​.cc​/C7RC​-​2B6D]. 69   Collective Redress Across the Globe—Australia, supra note 67. 70  Ronen Adini, Israel, in 124 Class Actions L. Rev. (Camilla Sanger ed., 5th ed. 2021). 71  Alon Klement & Robert Klonoff, Class Actions in the United States and Israel: A Comparative Approach 19 Theoretical Inquiries L. 151, 152–53 (2018). 72   Id. at 202. 65

66

422  Research handbook on international food law Israel’s cases “are much less consequential from a monetary and subject matter perspective.”73 Claims against food and consumer goods manufacturers, distributors, and retailers comprise more than 50% of all class action proceedings in Israel.74 Much like the U.S., these suits often become newsworthy events, notwithstanding the merits of these claims.75 Similarly, the bar to filing consumer class claims is relatively low in both the U.S. and Israel.76 Specifically, the (i) use of “opt-out class mechanism,” (ii) “recovery of attorneys’ fees on a percentage basis,” and (iii) “representation of class members by the private bar” have been identified as features of both the U.S. and Israel systems that encourage class action filings in these jurisdictions.77 As for the United Kingdom, recent changes to governing law may see more class actionstyle proceedings in that jurisdiction.78 Some commentators have noted that the EU’s General Data Protection Regulation saw a private right of action prompting several high-profile group suits in British courts pre-Brexit.79 In addition, the UK adopted the Consumer Rights Act of 2015 that allowed for opt-out collective actions.80 Previously, group actions were limited to those who actively opted in to a suit; following the law’s adoption, claimants would be included in the action unless they chose to opt out. The UK’s legislative service explained the “purpose of introducing opt-out collective actions is to allow consumers and businesses to easily achieve redress for losses they have suffered as a result of breaches of competition law.”81 This means larger population sizes for suits, and potentially larger awards, which has attracted interest in third-party litigation funding in the UK.82

  Id. at 153.  Gal Rozent, Hagai Ashlagi & Ran Karmi, Class/Collective Actions in Israel: Overview, Practical Law Israel, Westlaw 8-617-6659, at ¶ 1 (2019). 75   See, e.g., Ora Coren, Creaming Off Profits? Israel’s Tnuva Dairy Sued in $142m Class Action Suit, Haaretz (Mar. 2, 2014), www​.haaretz​.com​/israel​-news​/ business​/tnuva​-dairy​-hit​-with​-142m​-class​ -action​-1​.5327808 [perma​.cc​/ NWY8​-​7BB5]; Jasmin Gueta & Nati Tucker, Class Action Sought Against Israeli Company for Sale of Olive Oil Unfit for Human Consumption, Haaretz (Apr. 25, 2013), www​.haaretz​.com​/israel​-news​/ business/​.premium​-class​-action​-olive​-oil​-not​-fit​-for​-humans​ -1​.5239597 [https://perma​.cc​/QF9M​-EA6N]. 76  Megan Poinski, Who Wins in Food Industry Class Action Cases? Food Dive (Dec. 16, 2021), (“[T] he low barrier to entry is part of the reason class action cases in the food and beverage space are so popular”). 77  Klement & Klonoff, supra note 71, at 202. 78  Indeed, some in the media heralded the law as introducing US-style class actions in the UK. See Clive Coleman, US-Style Class Actions Introduced in UK, BBC News (Oct. 1, 2015), www​.bbc​ .com​/news​/uk​-34402483. 79  Robert Weekes, Class Actions: A New Era in the UK? Crowell Litig. Forecast 2020, at 32, www​ .crowell​.com​/files​/ Litigation​-Forecast​-2020​-UK​-Litigation​-Crowell​-Moring​.pdf. 80  Consumer Rights Act 2015, c. 15 (UK), www​.legislation​.gov​.uk​/ukpga​/2015​/15​/section​/81​/notes. 81   Id. 82  Weekes, supra note 79. See also Matthew O’Regan, United Kingdom: Consumer Rights Act 2015 introduces new procedures for competition litigation, including collective follow-on damages actions Kluwer Competition L. Blog (Oct. 5, 2015) (“A major issue will remain the funding of claims; whilst damages-based agreements (where some damages are paid to the claimants’ lawyers) will not be allowed in ‘opt-out’ actions, there remains a vibrant market for the funding of competition damages actions”), http://competitionlawblog​.klu​werc​ompe​titionlaw​.com​/2015​/10​/05​ /united​-kingdom​-consumer​-rights​-act​-2015​-introduces​-new​-procedures​-for​-competition​-litigation​ -including​-collective​-follow​-on​-damages​-actions/; id. (“[I]t is clear that things will never be the same again”). 73 74

Class action litigation targeting the food industry  423 c. Factors Contributing to Fewer Class Action Matters and Proceedings Outside the United States Whereas Australia, Israel, and Canada have consumer class action litigation matters similar, at least in part, to the U.S. system, there remains a relative “dearth of class actions in most other countries around the world.”83 Why? While there is no single answer, several features could contribute to fewer class action matters and procedures in other jurisdictions. A nonexhaustive discussion of such features follows. 1. Loser pays Under the so-called “American Rule,” parties involved in litigation generally pay their own fees and costs, barring any fee-shifting provisions. Applicable in both class action and nonclass cases, the policy rationale for this approach is that it promotes access to the legal system to not discourage individuals from bringing suit, especially in class cases when a defendant’s legal bills could be “potentially enormous.”84 By contrast, a “loser pays” system depresses filings by discouraging claims with low to marginal validity from being brought. European authorities specifically called out this “loser pays” principle as “an effective safeguard” to avoid abusive collective actions to help avoid “any economic incentives to bring abusive claims.”85 In England and Wales, for example, “[g]iven that the unsuccessful party will ordinarily be ordered to pay the other side’s costs, unmeritorious class actions have traditionally been restrained,” especially in class contexts where costs are significant given the size and complexity of such actions.86 2. Limitations on who may file a class action In the United States, any consumer may file a class action on behalf of a putative class. By contrast, many jurisdictions have limited the ability to file on behalf of a collective group of plaintiffs to certain entities. For example, in Japan, particular consumer organizations certified to represent consumers’ interests may pursue claims on behalf of numerous unspecified consumers.87 Similarly, in Spain and Belgium, only authorized entities or consumer groups may bring collective actions. Across the European Union, the recently-enacted Directive (EU) 2020/1828 (Nov. 25, 2020), empowers only “Qualified Entities” to pursue collective redress on behalf of consumers in member states. “Qualified Entities” must be designated as such a member state, and member states enjoy wide discretion with regard to the criteria that qualified entities must meet to bring domestic representative actions.88 The EU’s approach

 Klement & Klonoff, supra note 71, at 202.   Id. at 170. 85   Towards a Coherent European Approach to Collective Redress, supra note 12, at ¶ 23. 86  Camilla Sanger, Peter Wickham & James Lawrence, England & Wales, in Class Actions L. Rev., supra note 70, at 57. 87  Oki Mori, Aki Watanabe & Natsumi Kobayashi, Japan, in Class Actions L. Rev., supra note 70, at 134 (detailing distinctions between qualified consumer organizations and specified qualified consumer organization in Japanese procedure). 88  Daniella Strik et al., Collective Redress Within the European Union, Linklaters (Dec. 7, 2020), www​.linklaters​.com ​/en ​/insights​/publications​/collective​-redress​/collective​-redress​-across​-the​ -globe​/eu [perma​.cc​/ RQQ8​-​7B6T]. 83

84

424  Research handbook on international food law is summarized as a belief in public institutions rather than private attorneys general. As the Humboldt University in Berlin’s Harald Koch explained, [T]here is no method of self-appointment of an individual champion (plaintiff) and no concept of an individual private Attorney General, whose initiative is fostered by fee incentives or by an alluring contingency fee arrangement. To be sure, this may be well deserved because of the risk assumed and the attorney’s hard work; however, in the European tradition—although this may be slightly oversimplified—we entrust the public interest to public institutions rather than to private law enforcers. By doing so, we must put up with all of the problems of a poorly-motivated, cumbersome, and perhaps understaffed bureaucracy, as well as the question of legitimacy of representation. Under such a system, the interests of individual victims of unlawful behavior tend to be neglected in larger and more autonomous organizations.89

3. Lack of clear standards governing class action litigation In the United States, class action matters are governed by a robust set of laws, procedures, and judicial opinions governing this aspect of civil law practice. Jurisdictions differ considerably. For example, in South Africa, the jurisdiction’s constitution and statutory law recognize that class actions may be properly maintained.90 But decades passed without clear standards for bringing and maintaining class actions in that jurisdiction, prompting landmark decisions in 2012 and 2013,91 which noted that “class actions are a particularly appropriate way in which to vindicate some types of constitutional rights, but they are equally useful in the context of mass personal injury cases or consumer litigation.”92 Additional clarity in class action standards and procedure in that jurisdiction through litigation might behoove litigants and jurists in that jurisdiction.93 Elsewhere, in New Zealand, representative actions have developed despite a lack of procedural rules or statutes.94 This lack of procedural standards contributed to the relatively slow development of representative actions in New Zealand.95 Group litigation is still in its infancy in Scotland following the enactment of a 2018 statute.96 In Ireland, a lack of statutory provisions or rules of court has deterred the growth of class actions in that jurisdiction.97

 Harald Koch, Non-Class Group Litigation Under EU and German Law, 11 Duke J. Comp. & Int’l L. 355, 357–58 (2001). 90   See S. Afr. Const., 1996, § 38(c); Companies Act, 71 of 2008, § 157. 91   Children’s Resource Centre Trust v Pioneer Food (Pty) Ltd (50/2012) [2012] ZASCA 182 (29 November 2012); Mukaddam and Others v Pioneer Foods (Pty) Ltd and Others 2013 (5) SA 89 (CC). 92   Children’s Resource Centre Trust, (50/2012) [2012] ZASCA 182 at para. 21. 93  Nick Alp & Prianka Soni, Collective Redress Across the Globe: South Africa, Linklaters (July 1, 2020), www​.linklaters​.com ​/en ​/insights​/publications​/collective​-redress​/collective​-redress​-across​ -the​-globe​/south​-africa [perma​.cc​/4MCD​-​9MJY] (“[T]he procedural mechanisms pertaining to class action litigation may be best and most clearly articulated in legislation dealing with class action litigation”). 94  Jenny Stevens & Sophie East, Class/Collective Actions in New Zealand: Overview, Practical Law New Zealand, Westlaw 3-617-6671 (Oct. 1, 2020). 95   Id. 96  Colin Hutton, Graeme MacLeod & Kenny Henderson, Scotland, in Class Actions L. Rev., supra note 70, at 173 (“At the time of writing, group procedure is still in its infancy. It remains to be seen precisely how the new rules will be interpreted and operated in practice, as well as when the [Scottish Civil Justice Committee] will consider the introduction of an opt-out mechanism”). 97  Niall Collins, Peter Johnston, Ailbhe Gilvarry & Kevin Farrell, Class/Collective Actions in Ireland: Overview, Practical Law Ireland, Westlaw 9-618-0420, at ¶ 24 (Dec. 1, 2019) (“Demand for a class 89

Class action litigation targeting the food industry  425 4. Judicial attitudes toward class action litigation American class action litigation is an accepted practice within the U.S. legal ecosystem. Other jurisdictions have not viewed class actions favorably. For example, European authorities opposed bringing the U.S. model wholesale into the EU as they argued the “class action” system was “not compatible with the European legal tradition.”98 In China, collective action procedures may be technically permissible, but in practice, are “viewed unfavorably by the courts and rarely conducted.”99 In the near future, “the courts’ attitude towards representative actions” in that jurisdiction is unlikely to change.100 Rapid economic and societal development is occurring in China, prompting increases in group economic disputes and civil disputes involving multiple participants, but in practice, “it is not common to use representative actions as most courts do not proactively employ them to resolve group disputes.”101 This practical insight may reflect judicial attitudes and social mores, particularly an approach favoring public institutions rather than private attorneys general.102

V. CONCLUSION Food litigation will continue to grow in the coming years. As it does, food companies will continue to wrestle between their global business footprint and territorial laws. As this case law develops, food businesses should work proactively to identify potential litigation risks across and within jurisdictions.

action procedure is very strong in the public interest law sector, where it is felt that the absence of this kind of procedure has negative implications for access to justice”). 98   Towards a Coherent European Approach to Collective Redress, supra note 5, at ¶ 21. 99  Zhirong Zhou, Collective Redress Across the Globe: Mainland China, Linklaters (Jul. 1, 2020), www​.linklaters​.com ​/en ​/insights​/publications​/collective​-redress​/collective​-redress​-across​-the​ -globe​/mainland​-china [perma​.cc​/3D7G​-​UCYF]. 100   Id. 101  Yao Feng & Linzhu Wang, Class/Collective Actions in China: Overview, Practical Law China, Westlaw 3-617-8302 (July 1, 2018). 102   See Harald Koch, supra note 89.

ENVIRONMENTAL LAW AND FOOD

21. Climate change issues in international food law Francesco Bruno

I. INTRODUCTION Today, uncertainty associated with economic development and technology is growing; conflict regarding the distribution of wealth (goods) has been joined by conflict regarding the distribution of “ills.” This distribution depends not only on technological, economic, social, and cultural variables but also on the political-institutional structure of the various states. Different societies and cultures (if one thinks of the North American and EU states, which, together with the Asian states, are all crucial within the balance of global powers) react differently to comparable uncertainties. Regarding this, food security is a classic example. The new factors that have appeared in recent years, which have heavily affected food laws,1 are the questions associated with climate change.2 This can be considered from two standpoints: agro-food production methods, which damage the environment, and, on the contrary, the climate changes and global warming currently underway that are, in turn, affecting and damaging both the food supply chain and agro-food biodiversity. Looking at what has been happening from the first point of view, according to the scientific literature, the entire food supply chain (agricultural production, transformation, distribution, consumption, and waste product management) has, for many years, been one of the leading causes of climate change.3 The scientific community now considers global warming undeniable and that the planet will likely have to face the severe climate changes brought about by anthropic activities over the next few decades. These changes will be hazardous for the people and the ecosystems that cohabit on the planet. Global warming happens because certain gases accumulate in the atmosphere. These gases can retain the infrared radiation emanating from Earth: changes in

 On the notions of Food Law see: F. BRUNO, Il diritto alimentare nel contesto globale: USA e UE a confronto, Cedam, Padova, 2017. 2  On the relation between climate change and (potential) payment of damages for citizens see: D.J. GRIMM, Global Warming and Market Share Liability: A Proposed Model for Allocating Tort Damages among CO2 Producers, in Columbia Journal of Environmental Law, 2007, 32, p. 209. 3  Over the last 100 years there has been an average rise in planetary surface temperatures of 0.74° C. The period between 1995 and 2006 was the hottest since temperatures began to be recorded in 1850. There has also been a rise in ocean temperatures and sea levels, and transformations in the life cycles of both animal and plant species. For more detailed information see: Food Climate Research Network (2008) Cooking Up a Storm, www​.unscn​.org​/ layout​/modules​/resources​/files​/Cooking​_up​ _a​_ Storm​.pdf. 1

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428  Research handbook on international food law the terrestrial energy balance determine the increase in global temperatures, which heavily impact food production and food security.4 Thus, both international and European regulations designed to reduce the emission of greenhouse gases into the atmosphere are being applied to the food industries, given that modern agro-food systems are largely based on the assumption that low-cost fossil fuels will always be available, which is ecologically unsustainable, with the paradox that [I]t is precisely the food industries that are the most exposed to the risks of climate changes brought about by greenhouse gases, both through alterations in the historical climate cycles and through the destruction of the environment, drought, salinisation and soil erosion, infestations and fungal and viral pathologies, and desertification.5

The second point of view is that an increase in global temperatures will soon lead to a revolution in agro-food production; some species must either be cultivated elsewhere or by adopting other techniques. Further water resources will be required, and it could be that some agricultural landscapes will disappear completely. But let us take things one at a time.

II. GREENHOUSE GAS EMISSIONS FROM FOOD PRODUCTION While the increase in emissions of CO2, the main climate-altering gas, is almost entirely the result of the use of fossil fuels and the changes in soil use (e.g., deforestation), the other two main greenhouse gases, methane (CH4) and nitrous oxide (N2O) are mainly generated by agricultural and zootechnic activities. More specifically, emissions from agricultural activities account for about 12% of the total; these are mainly due to CH4 and N20 emissions from farmed land (especially rice cultivation) and CH4 emissions from animal husbandry. CH4 and N2O are more productive at altering the climate than carbon dioxide (CO2); however, they remain in the atmosphere for a much shorter time. Thus, the problem of emissions resulting from food production is more important in the short term, whereas CO2 emissions resulting from burning fossil fuels are, in the long term, the real heart of the problem. Food production increases atmospheric CO2 directly, from using fossil fuels in agricultural activities, for the transport and refrigeration of foods and, indirectly, through deforestation to clear land for cultivation and grazing and to supplying wood for cooking food.

 Many scientific reports have confirmed the current consensus within the scientific community regarding the question of global warming and the prevalence of the anthropic role in it. Some of the most recent information is to be found in the Fifth Report of the Intergovernmental Panel on Climate Change, the UN committee on Climate Change (IPCC, 2013), a UN committee that, periodically, offers a synthesis of the available literature that is fruit of the collaboration between thousands of scientists. 5  M. MORESI, P. MASI and R. MASSINI, Industria alimentare italiana: quali prospettive di ricerca e sviluppo?, which can be found on the internet site of the Società Italiana di Scienze e Tecnologie Alimentari (SISTAL), www​.sistal​.org​/allegati​/2 ​_RELAZ​-SISTAL​-ISMEA​.pdf. 4

Climate change issues in international food law  429 Given both the current and the foreseeable increase in food consumption, projections have shown that if there is no attempt to mitigate or limit greenhouse gas emissions in the agrofood sector, they will continue to rise overall.6

III. THE CONSEQUENCES OF CLIMATE CHANGE ON FOOD PRODUCTION Agriculture and the production of foods are intrinsically sensitive to variations and climate changes, whether from natural causes or human activities. Many of the available studies have outlined the probable influence of climate changes on crops destined to produce food or forage and feedstuffs for animals, as well as other direct impacts on the health of livestock raised and on the sales of food and food products. The UN’s Fifth Intergovernmental Panel on Climate Change (IPCC) report dedicated an entire chapter, Chapter 7, Volume 2, to food security. This chapter offers a comprehensive review (about 600 bibliographic references) of the scientific literature on the impact of climate change on food production, the opportunities and possibilities for adaptation, and the vulnerability of diverse areas. According to the IPCC, one could argue, with “considerable confidence,” that the effects of climate change on crops and food production are already evident in many regions of the world. In particular, extreme weather events, such as heatwaves, drought, flooding, storms, and forest fires, have already revealed their direct impact: on living conditions, reduced crops, the destruction of housing and infrastructures, and also indirect effects in terms of rising food prices and food insecurity.7 According to the Food and Agricultural Organization of the United Nations (FAO), food security “exists when everyone, all the time, has physical, social and economic access to safe and nutritional food, that satisfies their dietary needs, and food preferences, so as to have an active, healthy life.”8 The IPCC9 (IPCC, 2014a) makes clear that climate change could have both direct and indirect effects on all four dimensions of food security as defined by the FAO: i) the availability of a sufficient amount of food of good quality, either through national production or through imports of food commodities; ii) access to sufficient resources to acquire the appropriate foods for a balanced diet, both in economic terms (purchasing power) and in terms of traditional rights to exploit common resources; iii) the use of food through a balanced diet, clean drinking water, health and hygiene services, and health care, to achieve a state of  P. HAVLIK, H. VALIN, A. MOSNIER et al., Crop Productivity and the Global Livestock Sector: Implications for Land Use Change and Greenhouse Gas Emissions, in American Journal of Agricultural Economics, 2013, 95(2), pp. 442–448. 7  For more information see: J.R. PORTER, L. XIE, A.J. CHALLINOR, K. COCHRANE et  al., Food Security and Food Production Systems, in C.B. FIELD, V.R. BARROS and D.J. DOKKEN (eds.) Climate Change 2014: Impacts, Adaptation, and Vulnerability. Part A: Global and Sectoral Aspects. Contribution of Working Group II to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change, Cambridge University Press, 2014. 8  FAO (1996) Rome declaration on world food security and World Food Summit plan of action. World Food Summit, Rome, 13–17 November. 9  IPCC, Summary for Policymakers, in C.B. FIELD, V.R. BARROS, D.J. DOKKEN et  al. (eds.) Climate Change 2014: Impacts, Adaptation, and Vulnerability. Part A: Global and Sectoral Aspects. Contribution of Working Group II to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change, Cambridge University Press, 2014. 6

430  Research handbook on international food law nutritional well-being in which all physiological needs are met; and iv) stability, or rather the ability to survive crises that may cause a population, a family, or an individual to lose, more or less temporarily, access to an adequate diet.

IV. THE RULES/LAWS REGARDING CLIMATE CHANGE IN THE GLOBAL CONTEXT: BETWEEN “SOFT LAWS” AND OBLIGATIONS FOR STATES To stabilise the concentrations of greenhouse gases in the atmosphere and, hence, the planet’s temperature, there must be a substantial reduction in the emissions of climate-changing gases in the coming decades. Policies aiming to mitigate climate change must involve all sectors, not only those that are among the most responsible for global emissions, such as the production and consumption of energy.10

Strategies for mitigating climate-changing emissions associated with food production concern various aspects of the food supply chain, from agricultural processes to changes in human diets. There are measures that affect both aspects of the production of agricultural products, i.e., the offer of (supply-side) and the demand for (demand-side) products. Even though there are already technologies and practices that help to reduce emissions, they are not often adopted:11 were they to be adopted and used by most of the world’s food producers, this alone would lead to a significant reduction in emissions.12 Adopting management systems that combine mitigation and adaptation could be advantageous for agricultural producers and improve local and global food security. One sector that is of particular importance is that of farms, where the levels of emissions (emissions per unit of animal products) vary widely from one production unit to another, even within analogous production systems. This is because of the diversity of agricultural practices and management of the supply chain, which means that substantial reductions in emissions could be achieved by adopting practices already in use in other contexts.

 IPCC, Summary for Policymakers, in O. EDENHOFER, R. PICHS-MADRUGA, Y. SOKONA et al. (eds.) Climate Change 2014, Mitigation of Climate Change. Contribution of Working Group III to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change, Cambridge University Press, 2014. 11  Some interesting examples might be climate resilient agriculture, genetic engineering, and sustainable agrifood systems to combat climate change by the adoption of more environmentally friendly farming methods (for instance regenerative agriculture). Other inspiring practices are the concept of Agrivoltaics, which creates a symbiosis between agriculture and renewable energy by making use of solar greenhouses, elevated photovoltaic panels, or ground-mounted photovoltaic panels, or vertical farming to directly connect urban farms and communities with each other, which reduces water consumption and the need for transport, the use of zero emissions farm equipment, or animal health monitoring. Further potential for reduction can be found in intelligent packaging and/or optimizing transportations networks. Technology is another source that can finally be used throughout the food supply chain to produce both safe and sustainable food; examples may be soil sensors, robotic seeders, and drones. What is certain is that agriculture and the entire food chain production take a center role in the drive to reduce emissions. 12  FAO, Mitigation Of Greenhouse Gas Emissions in Livestock Production – A Review of Technical Options for Non-CO2 Emissions, in P. J. GERBER, B. HENDERSON and H. MAKKAR (eds.) FAO Animal Production and Health, Paper No. 177, Rome. 10

Climate change issues in international food law  431 Thus, climate regulation measures must be taken at an international level, given that the environment is supranational, so it can only be regulated internationally through agreements between states. At the international level, the first attempt to combat polluting emissions was made on 9 May 1992, when, under the aegis of the United Nations, the Rio di Janeiro Convention United Nations Framework Convention on Climate Change – UNFCCC, was approved. The objectives of this document were to stabilize the concentrations of greenhouse gases in the atmosphere to prevent and avoid dangerous interference with the climate system. However, this Convention had little impact; it was efficacious in that it was a “soft law,”13 not mandatory, and called upon the parties to commit to a generic pledge to reduce CO2 emissions to their 1990 levels.14 For instance, at the Earth Summit in 1992, many environmental non-governmental organizations (NGOs) were highly critical of the soft legal form in which the commitments were expressed.15 As such, the UNFCCC is considered to have soft law commitments as the provisions are so broad that there are no specific obligations written and directed to the states signing or ratifying the agreement. However, the UNFCCC has included provisions that allow the creation of protocols in the form of hard law instruments with hard law commitments.16 Consequently, the international community has made legally binding commitments in the Kyoto Protocol, which offered the first means of actualizing the UNFCCC “Framework Agreement.” In this Protocol, the parties committed to reducing their overall greenhouse gas emissions by 5.2%, compared to 1990, in 2008–2012.17 To reduce emissions, specific “units” (called Assigned Amount Units – AAU) were allocated to each country, which had to stay within the limits of the units it had been assigned. To meet these obligatory targets, the states that had signed could use specific “credits” by  I. ALKAN OLSSON, Four Competing Approaches to International Soft Law, Scandinavian Studies in Law, 1995–2015, pp. 180–181, “The concept of ‘treaty soft law’ refers to treaties and treaty provisions that do not intend to create firm obligations despite their legally binding form and that are imprecise (in language) or flexible (in context) consequently lacking peremptory character […] Though formally binding, some treaties [as the UNFCCC] or treaty provisions may be soft in the sense that they do not involve clear and specific legal commitments nor impose real obligations on the parties in the way ‘hard law’ does”; J. PICKERING, J.S. MCGEE, S.I. KARLSSONVINKHUYZEN and J. WENTA, Global Climate Governance Between Hard and Soft Law: Can the Paris Agreement’s “Crème Brulèe” Approach Enhance Ecological Reflexivity?, in Journal of Environmental Law, Oxford University Press, 2018, “according to legalisation theory, international norms that may otherwise be considered hard law owing to their formal legal status or legal form can still be viewed as soft law, or of having soft legal character, if they are imprecise or lack mechanisms for delegating the resolution of disputes or questions of interpretation. Many multilateral environmental treaties contain provisions of this nature […] such as the UN climate regime”. 14  For international, European, and Italian law, see the research program on “Climate Change Law in the World” by the Sabin Center of Climate Change Law of the Columbia Law School: https://climate​ .law​.columbia​.edu​/content​/climate​-change​-laws​-world. 15  R. ECKERSLEY, Soft Law, Hard Politics and the Climate Change Treaty: The Politics of International Law, Cambridge University Press, 2018, p. 5. 16  P.D. FARAH and E. CIMA, Hard Law vs Soft Law in The International Climate Change Regime, Global Law Initiatives for Sustainable Development, 2017. 17  In Europe 8%. New commitments to reducing greenhouse gas emissions, in the period 2013–2015, were made in Durban, South Africa at the United Nations Climate Change Conference 2011 (COP17/CMP7), where the Kyoto Protocol was modified. Furthermore, at the Paris Conference on climate change, in 2016, a new global framework of rules was agreed, which both the US and the EU supported and adhered to. 13

432  Research handbook on international food law adopting any of three options for flexibility: joint implementation, clean development, and emission trading. Of the three, emission trading plays the most crucial role. Emission trading implies setting a cap on the emissions permitted, with a system for allocating “emission quotas” and trading them. Art. 17 of the Protocol establishes that those countries that receive these AAUs, and who can manage to keep their emissions below their target can then sell their “surplus” AAUs to other countries that, by buying them, can reduce theirs, i.e., offset their excess emissions and, by doing so, “meet” their obligatory reduction target. Nowadays, the rules and regulations for the battle against climate change are those laid out in the Paris Agreement, drawn up in December 2015.18 One hundred and seventy-five countries attended the opening ceremony, which took place on 22 April 2016, and marked the signing of the agreement.19 This was followed by a rapid ratification process, which enabled the Agreement to come into force on 4 November 2016. This Agreement marked a critical moment in the development, or evolution, of international action concerning its predecessor, the Kyoto Protocol, which later had a rigid conceptual and normative structure and, almost 20 years after its adoption in 1997, no longer reflected the needs, or aims, of the international community. Thus, the Paris Agreement overcame the rigidity of the Kyoto Protocol and began to replace it in the international community’s actions to thwart climate change by implementing the objectives and the principles sanctioned by the framework convention of 1992 on climate change that still underlies international efforts on the question. As regards the juridical nature of the Agreement, one could argue that it is a binding international treaty as defined by Art. 2, par. 1, lett. a) of the Convention of Vienna. Indeed, it can indubitably be described as a written agreement drawn up between states and regulated by international law regardless of what it has, in reality, been termed.20 This is true even though many of the provisions of the Paris Agreement do not establish precise obligations for actions or results, but it could also be defined as provisions of “due diligence,” as has been correctly noted.21 The main evidence of this is that there are no binding obligations for the parties to reduce their greenhouse gas emissions, which, in the Paris Agreement, was replaced by a system of non-binding mitigation to be set up autonomously and voluntarily by each party. Whether or not these national contributions are respected is subject only to indirect, facilitative checks carried out by the institutions provided for in the Agreement. The non-binding nature of most of the provisions of the Paris Agreement is confirmed by the fact that, as regards the non-binding national mitigation contributions, many countries have opposed the use of the word “shall” instead of “should” when establishing the obligations of the parties.22 Furthermore, with the use of the phrase “non-binding national contributions” instead of “binding obligations for reducing,” which was used in the Kyoto Protocol, there is

 Paris Agreement, adopted in Paris on the 12 December 2015, came into force on 4 November 2016.  The Paris Agreement was signed by 195 states; see the full list at http://unfccc​.int​/paris​_agreement​ /items​/9444​.php. 20  See, H. VAN ASSELT, International Climate Change Law in a Bottom-up World, in Questions of Int. Law, QIL Zoom-In 26, 2016: 5 ss; D. BODANSKY, The Legal Character of the Paris Agreement: Review of European, Comparative and Int. Environmental Law, 2016. 21  C. VOIGT, The Paris Agreement: What Is the Standard of Conduct for Parties?, in Questions of Int. Law, QIL Zoom-In 26, 2016, p. 17 ss. 22  D. BODANSKY, The Paris Climate Change Agreement: A New Hope?, in American Journal of Int. Law, 2016, p. 288 ss., p. 298. 18

19

Climate change issues in international food law  433 a clear and unequivocal desire of the parties not to be subjected to binding obligations such as those enshrined in the Paris Agreement.23 

V. THE CONSTRAINTS ON FOOD-PRODUCING FIRMS IN THE EUROPEAN UNION AND CASE LAW IN WHICH STATES AND THE EU WERE OBLIGED TO ADHERE TO INTERNATIONAL OBLIGATIONS REGARDING CLIMATE CHANGE At the European level, the Kyoto Protocol was ratified by the EU on 2 June 2002, while the Directive proposal, presented on 25 October 2001, was adopted two years later, on 13 October 2003 (Directive 2003/87/EC of the European Parliament and Council 13 10 2003 that set up a system for exchanging emission quotas of greenhouse gases in the Community which modified Directive 96/61/EC of the Council). The Directive introduced an exchange system (to become operational on 1 January 2005) based on which plant managers were assigned a certain number of quotas of emissions that they were permitted to produce. The total number of quotas assigned determined the maximum limit, the cap, of emissions that all the participants in the system could produce globally. Those who managed to stay at or below this cap were considered “emission creditors” who could concede “credits” to other states that had exceeded theirs. The reward function of this regulation is clear, in that those who do not manage to reduce their emissions must acquire “credits” from others to “achieve” their cap level, which they have exceeded. In general, the Directive rests on two pillars: the authorizations, which all plant managers participating in the system must acquire, and the emission quotas themselves, measured and expressed in equivalent tons of CO2, which allow their owner (the plant manager) to emit one ton of carbon dioxide per year. Each year, by 30 April, plant managers must declare the emissions released during the previous solar year, which must correspond to those noted in the Register. When the quotas available have been exceeded, they risk sanctions. The Directive provides for another important institute: the National Register. Since the quotas only exist in electronic form, each interested party can hold them and withdraw them from the market so long as they have an open account with the National Register. National Registers are essential, not only as a way of supervising exchanges at the level of companies but also to check that the commitments made by the member states through the Agreement to share the burdens are being respected. The 2003 Directive was subsequently modified by the “Linking Directive” emanated in 2004 (Directive 2004/101/EC of the European Parliament and Council of 27 October 2004 contains a modification of Directive 2003/87/EC that sets up a system permitting the exchange of emission quotas for greenhouse gases in the Community, in relation to the mechanisms of the project in the Kyoto Protocol) to open up the Community system of exchanging emission quotas to project-based mechanisms (JI and CDM). This attempt to link JI and CDM to the Community system of cap-and-trade has been criticized in the doctrine because, in this latter system, quotas are assigned ex-ante through the mechanism of cap-and-trade, whereas in the former, the reduction of emissions is checked ex-post, in that it is based on a baseline-and-credit approach.  D, BODANSKY, The Paris Climate Change Agreement: A New Hope? cit., pp. 294 and 297.

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434  Research handbook on international food law The 2003 Directive was further modified by the 2009/29 Directive (Directive 2009/29/EC of the European Parliament and Council of 23 April that modified Directive 2003/87/EC with the intent of perfecting and extending Community system for exchanging quotas for emissions of greenhouse gases), which sought to resolve some problematic issues that had emerged after Directive 2003/87 had been emanated, and which had sought to rationalize and extend the scope of application of the ETS system. Currently, the Emissions Trading System, as updated in the light of Directive n. 2018/40, falls within the wider circle of the 2020 Climate and Energy Package and, consequently, within that of the 2030 Climate and Energy Framework. In this latter, the European Union has committed to reducing greenhouse gas emissions to at least 40% below 1990 levels. In line with the international trend, this important mitigation plan whose measures are, on the one hand, improvements of at least 32.5% as regards energy efficiency and, on the other, an increase of at least 32% in the amount of energy from renewable sources consumed, contains a note, “European strategy for adapting to climate changes,” that seeks to minimize the economic, environmental, and social impact of climate change.24 Given the constraints and obligations that weigh upon states and the centrality of the principle of the effectiveness of the safeguards, the quaestio of the remedies for climate change is crucial. One essential aspect is the controversial opportunity for individuals to challenge international and European obligations in Courts.25 One of the principles for such judicial action can be found not only in the already mentioned international conventions,26 but also in  For an analysis of the mitigation objectives of the Paris Agreement see: J.E. VIÑUALES, The Paris Climate Agreement: An Initial Examination, in Cambridge Centre for Environment, Energy and Natural Resource Governance, C-EENRG Working Papers, 2015, n. 3, pp. 12–14, www​.ceenrg​ .landecon​.cam​.ac​.uk​/system​/files​/documents​/wp03​.pdf. 25  A. BANGIEV and L. CLARIDGE, The Right to Remedy for Indigenous Peoples in Principles and in Practice, Forest Peoples Programme, 2021, “The right to remedy is a basic legal principle. Under international human rights law, it is essential in providing effective recourse where there has been an allegation of a human rights violation”; ACTIONES PROJECT FUNDED BY THE EUROPEAN COMMISSION FUNDAMENTAL RIGHTS & CITIZENSHIP PROGRAMME, Module 3: Right to an effective remedy, “A first practical use of the principle was identified by the CJEU in the case von Colson and Kaman … A couple of years later the CJEU developed the definition including within the definition of effective judicial protection also the right to effective judicial review and access to a competent court in the landmark case of Johnston,” available at: https://cjc​.eui​.eu​/wp​ -content​/uploads​/2019​/03​/ D1​.1​.c​-Module​-3​.pdf; COUNCIL OF EUROPE, Guide to Good Practice in Respect of Domestic Remedies, Directorate General, 2013, “Repetitive cases generally reveal a failure to implement effective domestic remedies where judgments given by the Court, particularly pilot judgments, or judgments of principle, have given indications as to the general measures needed to avoid future violations”; M. WEWERINKE-SINGH, Remedies for Human Rights Violations Caused by Climate Change, Climate Law, 2019, “Increasing recognition of the threats posed by climate change to the enjoyment of human rights confirms the importance of the right to a remedy for human rights violations associated with climate change … Human rights violations associated with climate change present several barriers to justice. … the greatest burden of climate change harm falls on the global poor [… and] due to the scientific and legal complexity of climate change, not all victims will be aware of the possibility of pursuing litigation”. Available at: https://brill​.com​ /view​/journals​/clla ​/9​/3​/article​-p224​_224​.xml​?language​=en. 26  Ibid. 24; “The main international legal references codifying the right to remedy and reparations are the UN Basic Principles and Guidelines on the Right to Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law (2005). […] The UN Guiding Principles on Business and Human Rights (2011), 24

Climate change issues in international food law  435 the Oslo Principles on Global Climate Change Obligations of 1 March 2015.27 This charter of principles, drawn up by a group of internationalists from various countries, affirms that even though there are no binding treaties and that states do have a margin of discretion when deciding how they will fulfill their obligations, both international law, above all the precautionary principle, and individual national legal systems may well be able to force governments to adopt all measures that aim to prevent any climate change that could lead to a rise of more than 2° C above that of the level of the pre-industrial era. Among the various actions against governments, both those announced and those underway, is that brought before the Supreme Court of the Netherlands, which resulted in a recent sentence regarding the climate emergency.28 This sentence stated that the National Government must reduce CO2 and other greenhouse gas emissions by 25%, to 1990 levels, by the end of 2020.29 Unlike the fiscal approach, according to which an order to “create legislation” is not admissible and that it would have an impact on the system of the separation of powers,30 the Court recognized that there was a real and proper positive obligation for the state to protect the lives and health of its citizens. Furthermore, in support of the Court’s reasoning, Articles 93 and 94 of the Dutch Constitution31 establish that the state must observe every disposition of the European Court of instead, see the access to remedy for victims of business-related human rights abuses as a foundational principle. Under Principle 25, States are required to provide access to effective remedy for such abuses via judicial, legislative, administrative, or other means”; further legal references can be found under Art. 13 of the European Convention on Human Rights (ECHR) which provides that “everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity” and under Art. 47 of the EU Charter of Fundamental rights which provides that “everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article”, in M. KUIJER, Effective Remedies as a Fundamental Right, Seminar on Human Rights and Access to Justice in the EU, Barcelona Escuela Judicial Española & European Judicial Training Network, 2014. 27  For an analysis see: K.H. OLSEN, C. ARENS and F. MERSMANN, Learning from CDM SD Tool Experience for Article 6.4 of the Paris Agreement, in Climate Policy, 2017, www​.tandfonline​.com​/ doi​/full​/10​.1080​/14693062​.2016​.1277686. 28  Hoge Raad der Nederlanden, 20 December 2019, n. 19/00135. 29  On the theme of adaptations in the Paris Agreement, see, A. SHARMA, Precaution and PostCaution in the Paris Agreement: Adaptation, Loss and Damage and Finance, Climate Policy, 2017, p. 33 ss. 30  § 2.2.3 of the pronouncement: “The defences asserted by the State include the following. The requirements of neither Article 3:296 DCC (court order) nor Article 6:162 DCC (unlawful act) have been met. There is no basis in either national or international law for a duty that legally requires the State to take measures to achieve the reduction target as sought. The target laid down in AR4 is not a legally binding standard. Articles 2 and 8 ECHR do not imply an obligation for State to take mitigating or other measures to counter climate change. Granting the reduction order being sought would also essentially come down to an impermissible order to create legislation and would contravene the political freedom accruing to the government and parliament and, thus, the system of separation of powers.” 31  According to Art. 93, “Provisions of treaties and of resolutions by international institutions which may be binding on all persons by virtue of their contents shall become binding after they have been published”; according to Art. 94, “Statutory regulations in force within the Kingdom shall not be applicable if such application is in conflict with provisions of treaties that are binding on all persons or of resolutions by international institutions.”

436  Research handbook on international food law Human Rights, in that every part of these is binding; thus, since the Netherlands comes under the jurisdiction of the European Court of Human Rights (ECHR), Dutch Courts must interpret the articles of the Convention in the light of the same hermeneutic parameters as those adopted in the Court in Strasbourg.32 The guarantees enshrined in Articles 2 and 8 of the European Court of Human Rights – the right to life and to respect for private and family life – mean that there is a need to take steps to prevent, even from the standpoint of the precautionary principle, prejudices related to climate change.33 Since measures of mitigation must be taken to reduce greenhouse gas emissions by at least 25%, from the greenhouse emissions derives, according to the logic of the “thesis,” the fact that the Court can order that such measures be adopted. If it were not so, it would infringe a fundamental rule of constitutional democracies, that of the right to effective recourse: Article 8 of the UDHR. Thus an “order to create legislation” would be admissible since there is no general prohibition of interference on the part of the Courts within the political decisionmaking process so, when necessary, as laid down in Article 94 of the Dutch Constitution, “the courts must disapply legislation if any binding provisions of treaties entail such.” According to the Dutch Supreme Court, conflicts with the principle of the separation of powers would only occur if the Courts were to order the creation of legislation with a specific, concretely defined content,34 identifying the “final aim,” that of reducing greenhouse gas,  Again, the ECHR. § 5.6.1 of the sentence: “Pursuant to Articles 93 and 94 of the Dutch Constitution, Dutch courts must apply every provision of the ECHR that is binding on all persons. Because the ECHR also subjects the Netherlands to the jurisdiction of the ECtHR (Article 32 ECHR), Dutch courts must interpret those provisions as the ECtHR has, or interpret them premised on the same interpretation standards used by the ECtHR.” 33  § 5.6.2 of the pronouncement: “Pursuant to the findings above in paras. 5.2.1–5.3.4, no other conclusion can be drawn but that the State is required pursuant to Articles 2 and 8 ECHR to take measures to counter the genuine threat of dangerous climate change if this were merely a national problem. Given the findings above in paras. 4.2–4.7, after all, this constitutes a ‘real and immediate risk’ as referred to above in para. 5.2.2 and it entails the risk that the lives and welfare of Dutch residents could be seriously jeopardised. The same applies to, inter alia, the possible sharp rise in the sea level, which could render part of the Netherlands uninhabitable. The fact that this risk will only be able to materialise a few decades from now and that it will not impact specific persons or a specific group of persons but large parts of the population does not mean - contrary to the State’s assertions – that Articles 2 and 8 ECHR offer no protection from this threat (see above in para. 5.3.1 and the conclusion of paras. 5.2.2 and 5.2.3). This is consistent with the precautionary principle (see para. 5.3.2, above). The mere existence of a sufficiently genuine possibility that this risk will materialise means that suitable measures must be taken.” 34  § 8.2.4 of the decision: “The first consideration does not mean that courts cannot enter the field of political decision-making at all. In the case law referred to above, therefore, the earlier case law of the Supreme Court has been reiterated, which dictates that, based on Article 94 of the Dutch Constitution, the courts must disapply legislation if any binding provisions of treaties entail such. It has also been decided in that case law that the courts may issue a declaratory decision to the effect that the public body in question is acting unlawfully by failing to enact legislation with a particular content. The first consideration on which the but leaves the State free to choose the measures to be taken to achieve a 25% reduction in greenhouse gas emissions by 2020. This is not altered by the fact that many of the possible measures to be taken will require legislation, as argued by the State. After all, it remains for the State to determine what measures will be taken and what legislation will be enacted to achieve that reduction. The exception to Article 3:296 DCC made in the case law referred to in 8.2.2 above therefore does not apply in this case. The case law referred to in 8.2.2 is based must therefore be understood to mean that the courts should not interfere in the political 32

Climate change issues in international food law  437 which would not affect the freedom of state legislators to choose the measure or measures to be adopted to achieve their desired objectives in the best and most efficient way.35 Still in the Netherlands, in a more recent case on 26 May 2021, the District Court of Aja ordered Royal Dutch Shell to reduce its CO2 emissions by 45%, compared to 1990 emission levels, by 2030. The Judge, starting from the premise that this company is one of the main producers and suppliers of fossil fuels and that their greenhouse gas emissions significantly contribute to global warming, decided that the company was obliged to adopt a company policy that would reduce their CO2 emissions. The decision is based on the unwritten principle of due care, established by the Dutch Civil Code and interpreted by judges in the light of international soft law. The sentence is important (perhaps even revolutionary) because violation of the obligation to reduce emissions is not envisaged and, indeed, improvements in the sustainability of the activity are recognized. However, there is a perceived lack of concreteness, connected to individual responsibility for climate change. This responsibility is not linked to state actions, and it manifests as an obligation of result (meeting the objectives of reducing the group’s emissions) and of best efforts with suppliers and clients upon whom the company is asked to use its influence through the group’s internal policies. Thus, the company does have a free choice in how it will meet the objective of reducing emissions but is obliged to do so to meet the objective(s). Another landmark decision concerning climate change claims was initiated by ten families from Portugal, Italy, France, Germany, Romania, Kenya, and Fiji and the association Sáminuorra against the European Union, also known as the People’s Climate Case.36 In said case, the plaintiffs argued that the EU’s target was insufficient to prevent the climate crisis and failed to protect their human rights, such as their right to life, health, occupation, and property. The lawsuit has two major components: a nullification action against specific EU legal acts that violated higher order laws37 and an action for non-contractual liability and injunctive relief to compel the EU to set more stringent GHG emissions reduction targets. Despite all the scientific evidence provided by the plaintiffs, the European General Court refused to speak about the merits, the EU’s climate inaction, and its impacts on fundamental rights, focusing only on procedural aspects. The case was therefore brought against the decision-making process regarding the expediency of creating legislation with a specific, concretely defined content by issuing an order to create legislation. In view of the constitutional relationships, it is solely for the legislator concerned to determine for itself whether legislation with a particular content will be enacted. Therefore, the courts cannot order the legislator to create legislation with a particular content.” 35  § 8.2.7 of the sentence: “this order does not amount to an order to take specific legislative measures but leaves the State free to choose the measures to be taken to achieve a 25% reduction in greenhouse gas emissions by 2020. This is not altered by the fact that many of the possible measures to be taken will require legislation, as argued by the State. After all, it remains for the State to determine what measures will be taken and what legislation will be enacted to achieve that reduction. The exception to Article 3:296 DCC made in the case law referred to in 8.2.2 above therefore does not apply in this case.” 36  European General Court, Armando Carvalho and others v. European Parliament and European Commission, C-565/19 P; Order of the General Court of the European Union, May 8, 2019; Judgment of the ECJ March 25, 2021. 37  Such as, for instance, the EU Charter of Fundamental Rights, especially Art. 47, the UNFCCC and the Treaty on the Functioning of the European Union (TFEU).

438  Research handbook on international food law European Court of Justice, which again failed to consider the EU climate inaction and the impacts of the climate crisis. This decision, however, is of fundamental importance as it triggered several national courts to hold Member States accountable for the climate crisis and climate inaction, and in some cases, the courts are further ordering them to accelerate greenhouse gas emission reductions to protect citizens from current and future impacts.

VI. WTO, CODEX ALIMENTARIUS, CLIMATE CHANGE As an experienced scholar in environmental and food law, I believe that there are international law mechanisms that states can use to mitigate the results of climate change from agriculture production. As is well known, until a few decades ago, there was no real attempt to overcome the complexity and confusion of working through bilateral agreements between individual states. But this was a period when there was only a limited volume of foodstuffs exchanged; today, however, and over the past 20 years, markets have become increasingly globalized, thus (and no one knows whether through cause or effect of this globalization) an already existing but entirely re-formulated single mechanism was introduced at the international level to manage international trade (in this case, foodstuff). The World Trade Organization (WTO)38 was created at the end of the Uruguay Round; the Marrakesh Agreement was signed on 15 April 1994. This was drawn up to substitute the General Agreements on Tariffs and Trade (GATT) that had been drawn up during the United Nations Conference on Trade and Employment held in 1947 when an international organization was created to realize the objectives of this agreement. However, since this organization had no bodies with binding powers of obligation over the signatories, these objectives could only be achieved after interminable, complex rounds of negotiations. The final cycle of rounds under GATT was the Uruguay Round, which lasted almost eight years and concluded with the creation of the World Trade Organization (WTO), an organization that was undoubtedly less deficient and which was endorsed by the Community in the Council Decision of 22 December 1994, and then ratified, in Italy, with law 29 December 1994, n.747. Even after this last series of rounds, in this world trade code, industrial products were still clearly distinguished from the so-called “primary” products, i.e., from agricultural and forestry products, even though such products had “usually been transformed to make them marketable.” It was forbidden to give subsidies for agricultural exports, while for the  There is seemingly endless literature on the WTO; see, M. COCCIA, voce “GATT”, in Digesto delle discipline pubblicistiche, VII, Torino, 1991, p. 3; A. PETERSMANN, The Transformation of the World Trading System through the 1994 Agreement Establishing the World Trade Organization, in European Journal of International Law, 1995, p. 162; T. DILLON, The World Trade Organization: A New Legal Order for World Trade?, in Michigan Journal of International Law, 1995, p. 404; A. QURESHI, The World Trade Organization: Implementing International Trade Norms, Manchester and New York, 1996; P. RUTTLEY, I. MACVAY and C. GEORGE (eds.), The WTO and International Trade Regulation, London, 1998; J. JACKSON, The World Trade Organization: Constitution and Jurisprudence, London, 1998; A. KRUEGER, The WTO as an International Organization, London, 1998; VENTURINI (ed.), L’Organizzazione Mondiale del Commercio, Giuffrè, 2000, 113; WTO SECRETARIAT, From GATT to the WTO: The Multilateral Trading System in the New Millennium, Den Haag, 2000; K. O’ROURKE, The International Trading System, Globalization and History, Edward Elgar Publishing, 2000, p. 57.

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Climate change issues in international food law  439 latter, forestry products, it was forbidden only when the exporting country was in such a dominant position to influence the market noticeably. The agreements signed by the WTO that are of interest here are the General Agreement on Tariffs and Trade (GATT) 1994, which, in turn, encompasses GATT 1947 and subsequent integrations. The others are the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), which, by the way, is of particular interest to the agricultural sector because it concerns geographical indications; the Agreement on the Technical Obstacles to Trade (TBT) and that on the Application of Sanitary and Phytosanitary Measures (SPS); and dispute settlement (DSU). As regards the relationship between climate change and the right to food, the most important passage in the various WTO agreements, which raised doubts about several controversies (such as meat with hormones and GMOs, for example), is the relationship between Article 1 of GATT 1994 and Article XX.39 The former offers the general principle of the free circulation of foodstuffs at the global level, while XX is the “environmental clause,” i.e., the exceptions to the free circulation of products for environmental and health reasons. Let me explain differently. Article XX states that so long as these measures are not applied in such a way as either to constitute a means of arbitrary and unjustifiable discrimination between countries in which the same conditions prevail or as a veiled restriction on international trade, none of the provisions in the GATT agreement should be interpreted in such a way as to prevent any of the contracting parties from adopting or applying measures “necessary to protect the life and health of people and animals or for saving plants” (paragraph b) and “related to the conservation of depletable natural resources, so long as these measures are applied together with restrictions on national production or” (paragraph g). These measures for preserving health and the environment are identified in the Sanitary and Phyto-Sanitary (SPS) Agreement, which uses the Codex Alimentarius as an international technical reference standard. Thus, it can be affirmed that the Codex Alimentarius and the SPS Agreement are the provisions for implementing the environmental clauses (and protection of human health) in Article XX of GATT 1994. Within this mechanism the Codex Alimentarius Commission can, with fully discretionary measures, modify, integrate, and substitute the parameters of reference for applying sanitary and phytosanitary measures:40 respect for the standards laid down in the Codex Alimentarius presumes compliance with the obligations accepted when ratifying the WTO;41 however, each state can impose more restrictive sanitary or phytosanitary measures than those of the Codex

 General Agreement on Tariffs and Trade, these measures can be found at www​.wto​.org​/english​/res​ _e​/ booksp​_e​/agrmntseries2​_gatt​_e​.pdf. 40  As the doctrine had already asserted, in relation to European Law and, in particular, to reg. n. 178/2002; see P. BORGHI, Valutazione e gestione del rischio e standards del Codex Alimentarius, in Agricoltura, Istituzioni, Mercati, 2007, 3, p. 33, which reports an address given by the author at the Ain Shams University, Cairo, Egypt, in June 2007. 41  Thus, Arts. 2.4 and 3.2 of the SPS Agreement. On this point: T. BUTHE, The Globalization of Health and Safety Standards: Delegation of Regulatory Authority in the SPS Agreement of the 1994 Agreement Establishing the World Trade Organization, in Law and Contemporary Problems, 224, which states that “WTO Members who base their SPS measures on international standards, guidelines, or recommendation, where they exist ... are safe from a challenge under the GATT/WTO dispute-settlement mechanism.” 39

440  Research handbook on international food law Alimentarius, but they must be “scientifically justified” if requested by the exporting country which may consider that these further restrictions would restrict the market.42 Furthermore, whenever any SPS measures have not yet been established by either the Codex Alimentarius or by international standards, they can be adopted by states, but they must be founded upon a serious, real risk assessment carried out to identify and justify – in the case of discrimination against foreign products – the chosen level of protection of human health offered, and, “after establishing an SPS measure, a member must accept as equivalent the SPS measures of other members who objectively demonstrate achievement of the same level of protection, even if methods differ.”43 This offers importing states an opportunity to have “reasonable access” to the factories or premises where the foodstuffs they intend to import and sell in their countries are produced. The question is whether the struggle against climate change can be a valid environmental reason for international trade in food products. In my view, after analysis of various recent case studies, there is no doubt that it is. First, in the case of US – Reformulated Gasoline, the Appeals Panel implicitly endorsed it by including “exhaustible natural resources” (referred to Art. XX, lett. g), in this case, “clean air,” in its report on US legislation relating to gasoline, when it stated that “clean air” is a “natural resource that could be depleted,” and that, consequently, policies aiming to reduce “the depletion of clean water” should be considered as “a policy to conserve an exhaustible natural resource.”44 Furthermore, returning to the hermeneutic technique used by the International Courts of Justice, the appeal panel observed that the concepts incorporated in a treaty cannot be understood as being static and are “by definition evolutionary.” In other words, those who interpret an agreement must consider it in the light of contemporary concerns, such as the need to protect and preserve the environment, expressed by the Community of Nations,45 and, as we, adopting the same logic, would add, also to prevent excess global warming. Furthermore, the struggle against climate change which indubitably has a direct influence on people’s health can be found in lett. b) of Art. XX, which considers the possibility of

 According to Arts. 2.1, 3.3 and 5 of the SPS Agreement. More precisely, Art. 5.8 rules that “When a Member has reason to believe that a specific sanitary or phytosanitary measure introduced or maintained by another Member is constraining, or has the potential to constrain, its exports and the measure is not based on the relevant international standards, guidelines or recommendations, or such standards, guidelines or recommendations do not exist, an explanation of the reasons for such sanitary or phytosanitary measures may be requested and shall be provided by the Member maintaining the measure.” 43  T. BUTHE, The Globalization of Health and Safety Standards: Delegation of Regulatory Authority in the SPS Agreement of the 1994 Agreement Establishing the World Trade Organization cit., pp. 248–250. 44  “The Panel noted the US argument that clean air was an exhaustible resource within the meaning of Article XX(g), since it could be exhausted by pollutants such as those emitted through the consumption of gasoline. Lakes, streams, parks, crops, and forests were also natural resources that could be exhausted by air pollution. Measures to control air pollution were therefore measures to conserve exhaustible natural resources” (WT/DS2/R, United States-Standards for Reformulated and Conventional Gasoline, Report of the Panel, 29 January 1996, para. 6.36). 45  Cfr. Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolutions 976 (1970), Advisory Opinion, ICJ Reports, 1971, p. 16, para. 53. 42

Climate change issues in international food law  441 maintaining measures that would otherwise be incompatible with GATT, wherever or whenever they are necessary to protect the health and well-being of persons, plants, and animals. In the case denominated Brazil – Retreaded Tyres, protecting the environment is seen as a significant, fundamental “value”; few interests are more “vital” and “important” than protecting human beings from health risks, and “protecting the environment is no less important.”46 The case concerns the presumed illegality of a Brazilian contract importing reprocessed tires. The Appeals Panel of the WTO examined Brazil’s position. The reason for blocking this importation was to reduce, as far as feasibly possible, exposure to health risks – for people, animals, and plants – that could arise from toxic substances and from illnesses transmitted by the insects which thrive in dumped tires that have not been disposed of correctly. Thus, the objective was to limit the accumulation of consumed, dumped tires that could no longer be used. In the face of a dispute regarding the lack of consideration of the real and effective contribution that the Brazilian contract would have had on the number of tires that would have to be disposed of in Brazil, the Appeals Panel observed, harking back to its judgment in the afore-cited case against US – Reformulated Gasoline, that the contribution of a provision whose objective is environmental may not be “immediately observable,” and may well be able to be evaluated “only … with the benefit of time.”47 To highlight the appropriateness of its considerations on the legitimacy of considering even a “potential,” i.e., a future contribution, as valid for determining whether the measure is or is not necessary, here, in the case of Brazil, the Appeals Tribunal chose an extremely eloquent example, that of the disciplines adopted to combat global warming and climate change, as well as of preventive actions to reduce the spread of illnesses which may produce tangible results only after a period of time has elapsed.48 It seems clear that by expressly recognizing the possibility of considering, as necessary, a measure that can only produce a potential contribution to a broader stated objective, the Appeals Panel has widened the range of measures that can be justified based on lett. b) of Art. XX, and, at the same time, increased its discretionary power to evaluate such measures in light of the clause regarding general exceptions. Furthermore, recognizing that general measures aimed at attenuating global warming and climate change as potential provisions within a future scenario, i.e., provisions that will not produce immediate, “concrete” contributions but only a potential contribution, would seem to confirm our argument.

VII. CONCLUDING OBSERVATIONS Some observations can now be made regarding the relationship between climate change and the foodstuffs sector. Above all, there have been changes in the political role of states, which  The objective of protecting human life and health against such diseases “is both vital and important in the highest degree … The Panel noted that the objective of the Import Ban also relates to the protection of the environment, a value that it considered − correctly, in our view − important.” WT/ DS332/AB/R, par. 179. 47  WT/DS332/AB/R, cit., par. 151. 48  “The results obtained from certain actions − for instance, measures adopted in order to attenuate global warming and climate change, or certain preventive actions to reduce the incidence of diseases that may manifest themselves only after a certain period of time − can only be evaluated with the benefit of time.” WT/DS332/AB/R, cit., par. 151. 46

442  Research handbook on international food law are (almost) no longer the bearers of direct sovereignty but can only influence strategies dictated by the real global protagonists of the market (firms and financial institutions). This reflects the increasing dominance of the world of economics over that of politics (and of law). Problems linked to the climate do not respect national borders, and now the international community has realized this and is trying to make amends. Even some National Courts have begun to impose obligations on states and firms to save the world from desertification and rising temperatures. Second, the uniqueness of the food sector, concerning other economic sectors, cannot but be accepted; it is the only one where climate changes have an immediate, direct impact: on agricultural production, on the quality of ingredients, on the latter’s prices, and on the opportunity to corner food commodities. But on the other hand, if exercised sustainably, agricultural production could even help to reduce the amount of greenhouse gases accumulating in the atmosphere. We have tried to show how WTO norms regarding the food sector could not only be used for environmental ends but also to impose obligatory, virtuous actions that will combat climate change. Thus, agricultural activity, contemporaneously, plays a dual role in production: one negative and one positive. On the one hand, it is the target of constraints and limitations designed to protect its environment from all forms of production. On the other, it is the recipient of facilitations and norms that offer incentives designed to enhance its potential function as protector, conservationist, and regenerator of both the environment and biodiversity, thus playing a role in combatting climate change. Because food law, both at the global level and in various states, is a “law of the system,”49 it must start from this presupposition. Indeed, it offers only a narrow and insidious borderline, but it is here that the credibility of policies in the international context (above all in the USA and EU) will be tested over the coming years. 49

 Cfr. F. BRUNO, Il diritto alimentare nel contesto globale, cit., p. 345 and ss. Food law, thanks to the contribution, of the (mainly US and European) literature over the past decade, is now a law of the system “conceptualized around the unique aspects of agricultural production, the fragility of the environment, and the fundamental need for healthy food” (S.A. SCHNEIDER, A Reconsideration of Agricultural Law: A Call for the Law of Food, Farming, and Sustainability, in William & Mary Environmental and Policy Review, 2010, 34, p. 935). This passage is well illustrated by the US doctrine that, in reality, one should really speak of “food systems law” rather than simply “food law”: “traditional food law is a field of law that could be characterized as revolving around specific sets of primary interests and relationships. But these primary interests and relationships within traditional food law are broader than those within traditional agricultural law. Food law covers both the interests of food producers from the perspective of legal compliance with various food safety and labeling regulatory requirements and common law liability requirements, as well as status relationships between producers and state and federal governments and consumers” (S. TAI, Food Systems Law From Farm to Fork and Beyond, in Seton Hall Law Review, 2015, 45(3), p. 109). Moreover, this characteristic of food law (or food law and policy) necessarily requires a multidisciplinary, interdisciplinary, and multilateral approach in sources. Indeed, as has recently been said by respected doctrine: “[t]he vastness of ‘food law’ subject matter raises a legitimate question as to whether food law is not a discipline in and of itself, but merely a subsection of other forms of law – administrative, environmental, consumer protection, international, tort, zoning, animal welfare, constitutional, and intellectual property. However, the case to consider food law as a discipline (albeit multi-doctrinal) in and of itself is strong. Its value lies in focusing attention on how law governs food from the field to the table.” M.T. ROBERTS too states in Food Law in the United States, Cambridge University Press, 2016, p. 10, that “[t]he challenges posed by a modern food system unlike anything that the world has experienced have generated attention on the governance of food to warrant a legal field and discipline such as food law. Moreover, by recognizing how law governs food, improvements can be made, and dynamics can be better understood.”

22. Bodies as food system sacrifice zones Margot J. Pollans

I. INTRODUCTION “Agricultural Businesses: Same or Different?” The Cornell Cooperative Extension leaflet that poses this question explains that farms are subject to many different legal standards than other types of businesses.1 This is explicit “agricultural exceptionalism.” This kind of special legal treatment is pervasive around the world across many areas of food and agriculture law. As two scholars have observed, [t]he agricultural-policy sector [has been] characterized by a distinct set of sector-oriented institutions and ideas, well-organized and well-resourced sectoral interest groups, substantial government intervention in the market, and the potential for a significant redistribution of economic assets from the whole population (through taxes and higher consumer prices) to a relatively small group of producers and land owners.2

As justification for this exceptionalism, many point to the essential nature of food, to technical factors related to the unique nature of farming and farm economics, and to the cultural value of food, farming, and rural life. The resulting mix of these arguments “is potent and can have a significant impact on policy.”3 Scholars have debated for decades whether these justifications are sound and what their implications are for the food system’s many unregulated externalities.4 This chapter sets aside the question of whether agriculture is indeed special and  Cornell Univ. Cooperative Extension, Orange County, Agricultural Businesses: Same or Different? (on file with author) (cataloguing instances of both similar and different legal treatment). 2  Carsten Daugbjerg & Peter H. Feindt, Post-Exceptionalism in Public Policy: Transforming Food & Agricultural Policy, 24 J. Eur. Pub. Pol’y 1565, 1566 (2017) (observing that this model for agricultural policy has been under increasing pressure since the 1980s, and, in some cases, has given way to neoliberal policy ordering). 3  Linda Courtenay Botterill, Valuing Agriculture: Balancing Competing Objectives in the Policy Process, 24 J. Pub. Pol’y 199, 203 (2004); see also Daugbjerg & Feindt, supra note 2, at 1566 (observing that political science and policy scholars have repeatedly turned to “agricultural-policy making as a generative empirical example in the theoretical development of policy studies” because it is “an extreme case of a compartmentalized and ‘exceptionalist’ policy-making process”). 4  Of course, food and farming are special, and of course they are not. See J.B. Ruhl, Farms, Their Environmental Harms, and Environmental Law, 27 Ecol. L. Q. 263, 328–33 (2000) (identifying features of farming that might merit some special treatment in environmental law); Robert J. Thomas, The Mythology of Agricultural Exceptionalism: Some Comments, 9 In Defense of the Alien 18 (1986) (debunking several of the main factual bases for exceptionalism—market volatility, undifferentiated skill for farmworkers, vulnerability of farm businesses to rising labor costs—in order to argue that a guestworker program is not going to “enhance the attractiveness of agricultural employment”); Susan A. Schneider, A Reconsideration of Agricultural Law: A Call for the Law of Food, Farming, and Sustainability, 34 Wm. & Mary Envtl. L & Pol’y Rev. 935, 937–43 (2010) (situating agricultural exceptionalism in historical context); Botterill, supra note 3 (describing some of the non-economic values, such as agrarianism, that underly exceptionalism across much of the Western 1

443

444  Research handbook on international food law asks a different question. What can we learn about social and economic hierarchies in the global food system by examining the scope and limits of special treatment? This examination of exceptionalism illuminates two hierarchical axes. First, the analysis demonstrates how exceptionalism reflects and reinforces existing racial and socioeconomic hierarchies. Second, exceptionalism functions as a hegemonic tool allowing the United States, and other wealthy industrialized countries, to export not only food products but also food law and food values. Taken as a whole, food and agriculture exceptionalism facilitates concentrating wealth in the food system by systematically sacrificing the bodies of food system workers, smallholder farmers, and low-income eaters. The chapter offers a novel taxonomy of agricultural exceptionalism by examining traditional realms of special treatment and realms where treatment appears, at least at first glance, more “normal.”5 The taxonomy takes examples from various food system sectors primarily in the United States and the European Union. It also looks at the international influence of those policies and global patterns of food and agriculture law. This macro view smooths over important differences between various food industries such as dairy, corn, and food packaging production. But this high-level comparison is essential to reveal that food and agriculture exceptionalism relies, across sectors, on sacrificing human bodies. The system of special treatment for food and agriculture, at a global scale, systematically sacrifices agricultural workers, smallholder farmers, and low-income food consumers. Their bodies are what I call “exceptionalism sacrifice zones.” Claims of exceptionalism are common across many areas of law.6 Debates about its nature commonly arise in the realm of national security and rule of law in times of emergency. Within this context, exceptionalism can be defined loosely as the practice of creating individual exceptions to generally applicable rules (such as due process). It emerges in two forms: first, where statutes and regulations generate exceptions or expressly authorize the executive to declare exceptions, and second, where legal constraints on the executive are too weak to limit the executive from creating exceptions.7 Emergency exceptionalism often results in individuals or groups being singled out for worse treatment than the norm, for instance, the internment of Japanese Americans during World War II or the Trump administration ban on travel from majority Muslim countries. Outside of national security law, the form of exceptionalism world); Daugbjerg & Feindt, supra note 2, at 1568 (describing the ideas that motivate agricultural exceptionalism). In the United States, agricultural exceptionalism has its roots in Jeffersonian agrarian mythology, which espouses the core belief that farmers are uniquely positioned to be good citizens because of their connection to the land, their need to engage in stewardship, and the consequent alignment of their own self-interest with community interest. See, e.g., William P. Browne et  al., Sacred Cows and Hot potatoes: Agrarian Myths in Agricultural Policy 7–11 (1992) (describing the historical evolution of this myth and its origins in the writings of Thomas Jefferson and Ralph Waldo Emerson). “While Jefferson and Emerson selected farmers as embodying moral and political ideals that should be applied to all citizens, contemporary populists use these arguments as reasons for exempting farmers from criteria routinely applied to others.” Id. at 11. 5  A note on terminology: throughout this chapter I use the term “agricultural exceptionalism” to refer to the general phenomenon of developing industry specific special rules. I use “special treatment” to refer to the specific practice of treating food and agriculture differently. 6  Alice Ristroph, Exceptionalist Jurisprudence 3 (Working Paper) (on file with author) (listing over a dozen “exceptionalist” doctrines). 7  Noa Ben-Asher, Legal Holes, 5 Unbound: Harv. J. Legal Left 1, 1–2 (2009).

Bodies as food system sacrifice zones  445 is slightly different. Rather than focusing on whether a generally applicable rule applies in particular (often adjudicatory) circumstances, the question is whether an entire area of regulation should be designed differently. Political scientists Carsten Daugbjerg and Peter Feindt offer the following definition: Exceptionalism is a political belief system that assigns special status to a group, a sector or a country, often on the basis of a historical narrative, to justify special treatment, to claim the validity of special rules or to mobilize group pride or particular efforts for a group’s alleged mission.8

This form of exceptionalism typically results in a particular group receiving better treatment than the norm. The costs of that better treatment are often externalized. For instance, lawmakers might offer special treatment to a particular industry by exempting it from certain environmental laws; those bearing the brunt of that industry’s environmental externalities— possibly including employees, neighbors, and future generations—pay the cost of that special treatment. Exceptional legal treatment is so pervasive that claims of specialness tend to ring hollow. Indeed, macro analysis of exceptionalism suggests that what matters is not whether a particular circumstance merits special treatment but who has the authority to determine that an exception should apply.9 The same is true within agricultural exceptionalism. The contrast between areas of special treatment and areas of standard treatment illuminates the fact that exceptionalism is, at least to some extent, outcomes driven. In other words, it is not a reflection of a principled and consistent belief that farming is special.10 It is a belief that some farming is special; some farmers are special, and some food is special. Power lies in the determination of which. The resulting patterns of exceptionalism favor not only certain producers but also certain dominant food policy values. Policymakers widely consider food security, defined primarily through “productivism,” the primary goal of the food system.11 Productivism is the belief that

 Daugbjerg & Feindt, supra note 2, at 1567 (observing that the core of the concept is a “set of exceptionalist ideas which shape and legitimize compartmental institutions that provide a dedicated policy space for a policy community to adopt and implement policy instruments and programs that serve their interests and comply with their ideas”).  9  Ristroph, supra note 6, at 4–5; see also Noa Ben-Asher, The Emergency Next Time, 18 Stan. J. C.R. & C.L. 51 (2022) (suggesting that we pay attention both to the decision to treat something as an emergency and to the decision not to treat something as an emergency and that both choices effect violence); Ben-Asher, supra note 7; Aya Gruber, Sex Exceptionalism in Criminal Law, 75 Stan. L. Rev. 755 (2023) (cataloguing and tracing the history of the exceptional treatment of sex crimes in criminal law). 10  This is not to say that there are not some policymakers who do hold principled beliefs on this front. Instead, the claim is that the law as a whole is not a culmination of such principled beliefs. 11  Modern definitions of food security include a variety of elements beyond production, including food quality and cultural appropriateness, but research and investment continue to prioritize production over these other things. John Ingram, A Food Systems Approach to Researching Food Security and Its Interactions with Global Environmental Change, 3 J. Food Sec. 417, 418–19 (2011). A common refrain in powerful policy circles is about the need to increase food production. While it may be true that some increases are necessary in order to meet the needs of a growing population, setting this as the primary need shapes the debate and the nature of policy that is thereafter formed. See Olivier De Schutter, The Specter of Productivism and Food Democracy, 2014 Wisc. L. Rev. 199, 199–200 (2014); Smita Narula, Achieving Zero Hunger Using a Rights-Based Approach to Food Security  8

446  Research handbook on international food law increased food production is primary to ensuring food security.12 Productivism then feeds back into exceptionalist policies and narratives by celebrating particular types of farming—high yield, commodified food production—as allegedly the most effective approach to increasing food production.13 Although many have questioned the productivist premise, it remains a dominant narrative in both U.S. domestic and international food policy debates.14 Productivist agricultural policies have contributed to significant financial gains for certain farmers and segments of the food industry and have been enormously costly for others.15 Many of the specific sets of policies and programs espoused by the original productivist paradigm have fallen out of favor, but the core notion that increased production must be a central policy goal remains influential. I use the word throughout this chapter primarily to refer to this specific goal and not the entire set of attendant policies. Often called the “true costs” of food, the environmental and social externalities of productivist agricultural systems are well-documented.16 The neutral language of “true cost” and “externality” erases the humanity of the bearers of these costs by treating them as statistics and by hiding the causal mechanisms that generate these costs.17 These two terms accept that the imposition of these costs is unfortunate and should be addressed through food policy. But this language also resists assigning responsibility. Instead, it distributes culpability broadly across all food consumers—who are collectively at fault for failing to pay the true cost of the food that they eat.

and Sustainable Agriculture, in Fulfilling The Sustainable Development Goals (Narinder Kakar, Vesselin Popovski, & Nicholas Robinson, eds., 2021). 12   Nora McKeon, Food Security Governance: Empowering Communities, Regulating Corporations 71–73 (2015) (defining, and describing the history of, productivism). For an example of productivist policy analysis, see Robert Paarlberg, Food Politics: What Everyone Needs to Know (2010). 13   McKeon, supra note 12. In practice, the emphasis on productivism, which celebrates large scale production, is in tension with the cultural narrative celebrating the Yeoman small farmer. Yet, the two narratives coexist and even merge regularly. 14   See generally Susan George, How the Other Half Dies: The Real Reasons for World Hunger (1977); Amartya Sen, Poverty and Famines: An Essay on Entitlement and Deprivation (1981); see also Rajeev C. Patel, Food Sovereignty; Power, Gender, and the Right to Food, 9 PLoS Med. 1 (2012). To refer to productivism as the dominant narrative in agricultural policy is not at all to say that it is the only narrative or that all agricultural policy reflects productivist values. In both the United States and the European Union, other critical threads emphasizing sustainability and, sometimes, sovereignty, have emerged alongside productivism, but have not become forceful enough to effect widespread systems change. On the emergence of mainstream challenges to productivist agricultural policy in Europe, see, for example, Brian Ilbery & Lewis Holloway, Responses to the Challenge of Productivist Agriculture, 23 Built Env’t 184 (1997). 15   See generally McKeon, supra note 12, Vandana Shiva, The Violence of the Green Revolution: Third World Agriculture, Ecology, and Politics (1989). 16  Numerous businesses and non-profits are now engaged in “true cost accounting,” including the Sustainable Food Trust and the Rockefeller Foundation. See, e.g., The Rockefeller Foundation, True Cost of Food: Measuring What Matters to Transform the U.S. Food System (2021), www​.roc​kefe​l ler ​foun​d ation​.org ​/wp ​- content ​/ uploads ​/2021​/07​/ True ​- Cost​- of​-Food​-Full​-Report​ -Final​.pdf. 17  For critique of the practice and rhetoric of cost-benefit analysis, see Frank Ackerman & Lisa Heinzerling, Priceless: On Knowing the Price of Everything and the Value of Nothing (2005) and Douglas A. Kysar, Regulating from Nowhere: Environmental Law and the Search for Objectivity (2010).

Bodies as food system sacrifice zones  447 In this chapter, I instead adopt the language of “sacrifice” to describe those who bear the “true costs” of dominant food production modes. This language invites an assessment of the allocation of the burdens and the benefits of the food system in a way that modern economic language does not. The phrase “true cost of food” assumes that the benefit is food, a worthwhile cause. The “sacrifice” language invites a deeper inquiry into the benefits of exceptionalism and whether they justify the sacrifice. By renaming the true cost of food and situating it within a discussion of exceptionalism, this chapter highlights not just that modern food and agriculture policy imposes costs on certain categories of people and places but also that those costs reflect a policy determination that other people and places are more worthy. This analysis highlights the power of the Global North in shaping the rules of food governance. What is agricultural exceptionalism within the United States functions, from an international perspective, as a manifestation of American exceptionalism.18 Through narratives of exceptionalism (and unexceptionalism), international food governance favors U.S. and European food production (both the products and the production methods) at the expense of both food producers and consumers across the Global South. Section II surveys the domains of exceptionalism in food and agriculture law. This section identifies the various institutions and industrial players who determine how to wield exceptionalism and who benefit from its special treatment. Section III identifies domains of what I call “unexceptionalism.” These areas of “unexceptionalism” are partial exceptions to the exceptions, contexts in which the food system does not garner special treatment. Section III also questions the extent to which this unexceptionalism is real in practice, observing that even in areas of facial unexceptionalism, exceptionalism continues to shape food system governance. Finally, section IV contrasts exceptionalist food and agriculture law with unexceptional

18

 The phrase “American exceptionalism” is used in a variety of contexts with a range of meanings and embedded value judgments. Here, I use it to refer to the U.S. practice of “us[ing] its exceptional power and wealth to promote a double standard.” Harold Hongju Koh, On American Exceptionalism, 55 Stan. L. Rev. 1479, 1485–86 (2003) (identifying the “double standard” as one of four types of American exceptionalism). An important component of this “double standard” is American export of legal standards and enforcement of those standards against other parts of the world. Per Koh’s taxonomy, this export is particularly problematic where the U.S. exports standards to which it does not hold itself. Id. at 1486–87. A close corollary of this phenomenon is the export of standards that the U.S. itself does follow. Such export, a form of legal and cultural hegemony, is also a manifestation of exceptionalism to the extent that a belief that the U.S. approach is superior underlies export efforts. For instance, as discussed in more detail later in this chapter, the United States and European Union have played large roles in shaping international food safety standards that in turn have influenced developing food safety regulatory regimes in less wealthy countries around the world. Diahanna L. Post, Standards and Regulatory Capitalism: The Diffusion of Food Safety Standards in Developing Countries, 598 Annals Am. Acad. of Pol. & Soc. Sci. 168, 170 (2005) (arguing that “dominant states—primarily the United States and the EU but also other Organisation for Economic Co-Operation and Development (OECD) countries—are shaping the global order of food safety, in particular … they are using the international arena to project their own domestic ideas of what regulation should be”). As this second characterization of American exceptionalism implies, the United States is of course not the only country to conceive of itself as special and to use that specialness to justify giving itself special treatment or exporting its legal regimes. This chapter focuses primarily on American exceptionalism, and, to a lesser extent, on European exceptionalism. The chapter takes the United States, and the U.S. role in global agricultural markets, as its central case study for understanding the dynamics of agricultural exceptionalism but also draws on examples from the European Union and elsewhere when appropriate.

448  Research handbook on international food law food and agriculture law to assess how both together reflect hierarchies in the food system. Section IV then identifies the human sacrifice zones of global food policy.

II.

DOMAINS OF EXCEPTIONALISM

Agricultural exceptionalism fits into three main categories: insulation from regulation, income guarantees for agricultural businesses, and protection from public criticism. This section offers examples primarily from the United States for each category, but almost all are multinational phenomena. Examples come from various food system sectors, including agriculture, meat and dairy, and food processing. There is, of course, significant variation from sector to sector and jurisdiction to jurisdiction as to the type and extent of exceptional practices, but this variation does not undermine the key premise that exceptionalism is a widespread and entrenched food law phenomenon. A. Category One: Regulatory Carveouts and Light Touch Strategies Food production is insulated from many categories of generally applicable regulations. The standard rationale is that because food is so important and because farming is different from other types of businesses—the product is perishable; production is highly weather dependent, localized, and cyclical—farming should not be subject to the same regulation that applies to other industries.19 Industry lobbyists often capitalize on the essential nature of food to argue that regulation will impede the ability of farmers to “feed the world.”20 In other words, carveouts are often justified by the logic of food security; anything that will make food more expensive is undesirable. In countries with robust regulatory systems, carveouts for farming are prevalent in labor and immigration law, environmental law, antitrust law, and animal welfare law. Beyond agriculture, food also receives special treatment as a consumer product. Driven largely by narratives of consumer freedom of choice and consumer responsibility for their own bodies, nutrition regulation takes a light hand toward the unhealthiness of much of the food available for purchase today.21 The following discussion offers a brief overview of these special treatment areas.   See supra note 4 (citing a variety of sources offering more detailed discussion of these and other related rationales for regulatory carveouts). 20   Int’l Panel of Experts on Sustainable Food Systems, From Uniformity to Diversity: A Paradigm Shift from Industrial Agriculture to Diversified Agroecological Systems 54–55 (2016) (identifying “feed the world” narratives as one of the “lock-ins” that impedes systemic reform). For a specific example connecting this narrative with the need to minimize regulation, see Juan R. Luciano, Chief Exec. Off., Archer Daniels Midland, Keynote Address at the Nat’l Grain & Feed Assoc. 7 (Mar. 20, 2017), www​.ngfa​.org​/wp​-content​/uploads​/Juan​-Luciano​-NGFA​-keynote​-3​ -20​-17​.pdf (calling on the United States to lead in deregulation of the agricultural sector in order to ensure that U.S. grain production can continue to “feed the world a better diet”). 21   See P. Barlow & A.M. Thow, Neoliberal Discourse, Actor Power, and the Politics of Nutrition Policy: A Qualitative Analysis of Informal Challenges to Nutrition Labelling Regulations at the World Trade Organization, 2007–2019, 273 Soc. Sci. & Med. 113761, 113762 (2021) (observing that “scholars have identified how government action to address nutritional diseases is undermined by appeals to a neoliberal rhetoric via demands for individual freedom, personal responsibility for health, and minimal regulation to sustain economic competitiveness”). 19

Bodies as food system sacrifice zones  449 1. Labor and immigration Much has been written about poor treatment of food and agriculture workers around the world, about the persistence of slavery in various sectors of food production, and about the dearth of legal protections available to food system workers.22 The central claim of this literature is that labor and immigration law function together to support the agriculture industry by limiting the power of farmworkers to demand fair treatment. Farmworkers are often excluded from labor and workplace safety protections either as a matter of law or as a matter of enforcement discretion.23 At the same time, immigration law helps to create a body of workers who are easy to exploit, either because they are undocumented or because they have legal status only through guestworker programs.24 As a result, farmworkers suffer from high levels of wage theft, unsafe working and housing conditions, and physical and sexual abuse.25 2. Environmental protection There is widespread consensus about the scope of agriculture’s environmental impact. These costs are borne by those living near farms, by those directly dependent on natural resources   See, e.g., Guadalupe Luna, An Infinite Distance?: Agricultural Exceptionalism and Agricultural Labor, 1 U. Pa. J. Lab. & Emp. L. 487, 488 (1998) (arguing that “exclusion reinforces and promotes [farmworker status] as outsiders within mainstream agricultural law and policy”); Laura-Anne Minkoff-Zern & Christy Getz, Farmworkers—the Basis and Bottom of the Food Chain, 18 Race, Poverty & Envt. 17 (2011). 23   See generally Laurie J. Beyranevand et  al., Essentially Unprotected: A Focus on Farmworker Health Laws & Policies Addressing Pesticide Exposure and Heat-Related Illness (2021); Marie-Laure Augère-Granier, Eur. Parliamentary Rsch. Serv., Migrant Seasonal Workers in the European Agricultural Sector, PE 689.347 (Feb. 2021) (describing the scope of reliance on migrant farm labor across the E.U. and suggesting that underenforcement of protections was a key reason for exploitation and poor working conditions). 24   See S. Poverty L. Ctr., Close to Slavery: Guestworker Programs in the United States (2013), www​.splcenter​.org​/sites​/default​/files​/d6​_legacy​_files​/downloads​/publication​/SPLC​-Close​ -to​ -Slavery​ -2013​ .pdf (describing exploitation in the U.S. agricultural guestworker program); Suzanne Elizabeth Cevasco, Note, Nation of Immigrants, Nation of Laws: Agriculture as the Achilles Heel of Enforcement-Only Immigration Legislation, 37 Seton Hall Legis. J. 175 (2013) (describing the historical and political circumstances that have led to the agriculture sector’s strong reliance on an undocumented labor force); Daniel Costa & Philip Martin, Temporary Labor Migration Programs: Governance, Migrant Worker Rights, and Recommendations for the U.N. Global Compact for Migration (2018), https://files​.epi​.org​/pdf​/152373​.pdf (describing guestworker programs around the world). 25   See Kelle Barrick, Human Trafficking, Labor Exploitation and Exposure to Environmental Hazards: The Abuse of Farmworkers in the US, in Routledge International Handbook of Rural Criminology 147 (Joseph F. Donnermeyer ed., 2016); Laura-Anne Minkoff-Zern, FarmworkerLed Movements Then and Now: United Farm Workers, and the Potential for Farm Labor Justice, in The New Food Activism: Opposition, Cooperation, and Collective Action 157, 159 (Alison Hope Alkon & Julie Guthman eds., 2017) (documenting low farmworker wages, and noting that more than half are food insecure). Farmworkers also face physical risks related to chemical exposure, sexual harassment, and unsanitary living conditions. Janet K. Ehlers et al., Health and Safety Hazards Associated with Farming, 41 Am. Ass’n Occup. Health Nurses J. 414 (1993); Eyal Press, Something in the Air, Intercept (July 19, 2018, 5:00 AM), https://theintercept​.com​/2018​/07​/19​/ moroni​-utah​-turkey​-farm​-workers​-norbest/ [https://perma​.cc​/ZA36​-T37U] (investigating report on chemical exposure in poultry processing plants); Anna Mołlocznik, Time of Farmers’ Exposure to Biological Factors in Agricultural Working Environment, 11 Annals Agric. Env’t Med., 85, 86 (2004) (examining physical risks related to exposure to animal waste). 22

450  Research handbook on international food law for their livelihoods, and, of course, by the farmworkers in direct contact with agricultural pollutants. Yet, even in countries with robust environmental protection regimes, direct regulation of food production is rare or limited. In the United States, agriculture enjoys exemptions from central regimes protecting air and water and from regimes designed to limit toxic exposures.26 In the European Union, there is a lot more law on the books, but the E.U.’s Common Agricultural Policy is widely criticized from an environmental perspective.27 The most prevalent forms of agricultural environmental regulation around the world are voluntary and incentive-based. I return to these “green payment” systems as part of the discussion of financial supports in Section II.B. 3. Antitrust Since the first enactment of antitrust regulation in the United States in the early twentieth century, certain kinds of agricultural businesses have been exempt. Designed to level the playing field between farmers, who were seen to have little market power, and railroads (and other highly consolidated industries standing between farmers and buyers), these exemptions allowed farmers to form cooperatives. Today, these cooperatives are often quite powerful entities in their own right.28 “[S]pecial exemptions of the agricultural sector from the full application of competition rules can be found in many jurisdictions.”29 One study determined that in 2010, agriculture was the most commonly exempted industry from competition law.30 Among other places, exemptions exist in the European Union, the United Kingdom, Israel, and Japan.31 In Canada, the Competition Act contains an exemption for “[a]ssocations of fishermen to negotiate terms regarding buying and processing of fish.”32 In developing countries, agricultural marketing cooperatives are commonly exempt from competition laws.33 Beyond

  See, e.g., Ruhl, supra note 3, at 293–316; Margot J. Pollans, Drinking Water Protection and Agricultural Exceptionalism, 77 Ohio St. L.J. 1195 (2016). 27   See, e.g., Gerry Alons, Environmental Policy Integration in the EU’s Common Agricultural Policy: Greening or Greenwashing?, 24 J. Eur. Pub. Pol’y 1604, 1605 (2017) (observing that while environmental discourse in CAP policymaking has increased, genuine political commitment remains lacking and arguing that integration of environmental goals remains limited because of continued exceptionalism in agricultural procedures and institutions); Nicole M. Schmidt, The Impact of Climate Change on European Agricultural Policy, 18 Eur. View 171 (2019). 28   See David L. Baumer, Robert T. Masson, & Robin Abrahamson Masson, Curdling the Competition: An Economic and Legal Analysis of the Antitrust Exemption for Agriculture, 31 Vill. L. Rev. 183 (1986) (arguing that permissive application of the original exemption has allowed these cooperatives to gain monopolistic power and calling for more robust antitrust enforcement in the agricultural sector). 29  Arie Reich, The Agricultural Exemption in Antitrust Law: A Comparative Look at the Political Economy of Market Regulation, 42 Tex. Int’l L.J. 843, 844 (2007). 30  Anu Bradford et  al., Competition Law Gone Global: Introducing the Comparative Competition Law and Enforcement Datasets, 16 J. Empirical Legal Stud. 411, Figure 5 (2019). 31  Reich, supra note 29, at 844–45; R. Shyam Khemani (Director, LECG Europe), Application of Competition Law: Exemptions and Exceptions, 22, U.N. Doc. UNCTAD/DITC/CLP/Misc.25 (2002). Australia and Brazil are two exceptions to this pattern. See Practical Law Country Q&A, Agricultural Law in Australia: Overview, Westlaw 1-608-5865; Practical Law Country Q&A, Agricultural Law in Brazil: Overview, Westlaw 3-603-7265. 32  Khemani, supra note 31, at 12–13. 33   See Khemani, supra note 31, at 22–25. 26

Bodies as food system sacrifice zones  451 express exemptions for certain kinds of agricultural businesses, lax enforcement in the food space has facilitated intensive concentration in various food production sectors.34 4. Animal welfare Many farm animals around the world are excluded from anti-cruelty legislation. There are over 120 countries that have some kind of animal welfare legislation. In some of these countries, this legislation applies to all animals, but many of these laws create special exceptions for farm animals.35 In the United States, animals raised for food are excluded from the federal Animal Welfare Act, which governs the treatment of pets and lab research animals.36 Relaxation of animal welfare protections for farm animals (or rather the unwillingness to extend protections to them in the first instance) facilitates increased concentration of animal production. Concentrated animal production enhances profitability and reduces consumer prices, but it magnifies the extent of animal suffering and multiplies environmental damage.37 5. Nutrition A final example of light-touch food regulation is the relatively lax approach to nutrition, by contrast to other consumption-related public health threats such as tobacco, drugs, and alcohol. Diet-related disease is a widespread and growing cause of premature death worldwide.38 Many potential causes of this problem, including the increasingly sedentary nature of daily lives, are unrelated to food production, but many other potential causes follow directly from what kinds of food are produced, how they are produced, and how they are marketed. Nutrition policy often relies primarily on two regulatory tools: consumer education and

  See Diana L. Moss & C. Robert Taylor, Short Ends of the Stick: The Plight of Growers and Consumers in Concentrated Agricultural Supply Chains, 2014 Wisc. L. Rev. 337; Michael Fakhri, Interim Report of the Special Rapporteur on the Right to Food: the Right to Food in the Context of International Trade Law and Policy, U.N. Doc. A/75/219, ¶¶ 28–31 (Jul. 22, 2020) (summarizing corporate consolidation in the global food supply chain); Hossein Ayazi & Elsadig Elsheikh, The US Farm Bill: Corporate Power and Structural Racialization in the United States Food System 9 (2015), https://belonging​.berkeley​.edu​/sites​/default​/files​/ haa​sins​titu​tefa​ rmbi​llreport​_publish​_0​.pdf​?file​=1​&force=1 (describing levels of corporate consolidation and control in the U.S. food supply chain). 35  For instance, in Ghana, Malawi, Mauritius, and Uganda, animal cruelty laws do not render illegal acts taken to kill or prepare to kill animals for food, unless there was infliction of unnecessary suffering. In Israel, animal cruelty laws do not apply to slaughter of animals for human food. See Database Legislation, Glob. Animal L. Ass’n, www​.globalanimallaw​.org​/database​/national​/ index​.html (last visited June 17, 2021). 36  7 U.S.C. §§ 2132(g) (excluding farm animals from the definition of “animal”). David N. Cassuto & Cayleigh Eckhardt, Don’t Be Cruel (Anymore): A Look at the Animal Cruelty Regimes of the United States and Brazil with A Call for A New Animal Welfare Agency, 43 B.C. Env’t Aff. L. Rev. 1, 3 (2016). 37  Delcianna J. Winders & Elan Abrell, Slaughterhouse Workers, Animals, and the Environment: The Need for a Rights-Centered Regulatory Framework in the United States that Recognizes Interconnected Interests, 23 Harv. Health & Human Rights J. 21 (2021) (describing the intersectional problems of animal welfare, environmental protection, and workplace safety). 38   See Fact Sheet: Noncommunicable Diseases, World Health Organization [WHO] (Apr. 13, 2021), www​.who​.int​/news​-room​/fact​-sheets​/detail​/noncommunicable​-diseases; Fact Sheet: Healthy Diet, World Health Organization [WHO] (Apr. 29, 2020), www​.who​.int​/news​-room​/fact​ -sheets​/detail ​/ healthy​-diet. 34

452  Research handbook on international food law mandatory disclosures.39 Both forms of “information regulation,” these tools are considerably less invasive than strategies used in other areas of food product regulation, such as banning or capping use of particular additives.40 Information policies feature heavily in World Health Organization best practices nutrition policy recommendations.41 In many places around the world, processed food industry influence has hindered efforts to improve or implement even these informational tools.42 In the United States, some states and municipalities have experimented with more aggressive laws, such as capping soda portions, zoning restrictions on fastfood establishments, and soda taxes.43 These experiments have met with fierce resistance and many have been ended through advocacy campaigns, litigation, or preemptive state legislation.44 Around the world, the picture is more mixed with lots of creative policy-making happening but very little sweeping implementation.45

  See Emily M. Broad Leib & Margot J. Pollans, The New Food Safety, 107 Cal. L. Rev. 1173, 1186–89 (2019) (summarizing federal nutrition law in the United States). Consumer nutrition education comes in a variety of forms, including direct educational campaigns on eating balanced meals, restrictions on marketing to children, and cooking classes taught in public schools. Mandatory disclosures can include either or both nutrition facts panels and front of package labels. Nutrition facts panels typically include a long list of nutrients and may also reference recommended daily values of those nutrients. Vasanti S. Malik, Walter C. Willett & Frank B. Hu, Revised Nutrition Facts Label: A Step Forward and More Room for Improvement, 316 J. of Amer. Med. Assoc. 583 (2016) (describing recent updates to the FDA-regulated nutrition facts panel). Front of package labels are generally more succinct and often refer only to particular nutrients of concern. PanAmerican Health Org., Front-of-Package Labeling as a Policy Tool for the Prevention of Noncommunicable Diseases in the Americas (2020), https://iris​.paho​.org​/ bitstream ​/ handle​ /10665​.2​/52740​/ PAHONMHRF200033​_eng​.pdf​?sequence​= 6​&isAllowed=y (surveying different types of front-of-package label schemes); Ellen A. Wartella et al., Examination of Front-of Package Nutrition Rating Systems and Symbols: Phase I Report (2010), https://nap​.nationalacademies​.org ​/read ​/12957​/chapter​/1https:/​/www​.nap​.edu ​/ login​.php​? record ​_ id​=12957​&page​ =https​%3A​%2F​%2Fwww​.nap​.edu​%2Fdownload​%2F12957. 40  Broad Leib & Pollans, supra note 39, at 1184–89 (contrasting approaches to nutrition regulation with approaches to food safety regulation). 41   Tackling NCDs: “Best Buys” and Other Recommended Interventions For the Prevention and Control of Noncommunicable Diseases, World Health Organization [WHO] 11 (2017), https:// apps​.who​.int​/iris​/ bitstream​/ handle​/10665​/259232​/ WHO​-NMH​-NVI​-17​.9​-eng​.pdf (listing four dietrelated best buys, two of which are information-based, and nine additional recommendations, three of which are strictly information based and two of which have informational components). 42  Barlow & Thow, supra note 21 (evaluating the role of industry influence in WTO decision-making at stalling the spread of nutrition labeling around the world). 43   See Matthew J. Parlow, Healthy Zoning, 44 Fordham Urb. L.J. 33 (2017) (surveying local government strategies for improving food-related health in cities). 44  Sarah A. Roache et. al., Big Food and Soda Versus Public Health: Industry Litigation Against Local Government Regulations to Promote Healthy Diets, 45 Fordham Urb. L.J. 1051, 1061–83 (2018) (surveying industry initiatives to thwart municipal public health laws); Parlow, supra note 43, at 56 (offering some examples of state preemption of municipal health policies). 45  The World Health Organization maintains a database of nutrition policies around the world. Global Database on the Implementation of Nutrition Action, World Health Organization [WHO], https://extranet​.who​.int​/nutrition​/gina​/en​/about; see also World Health Organization, Noncommunicable Diseases: Progress Monitor (2020), https://apps​.who​.int ​/iris​/ bitstream​ /handle​/10665​/330805​/9789240000490​-eng​.pdf​?sequence​=1​&isAllowed=y(surveying progress toward implementing “best buys” referenced in note 41, supra, in 196 countries); Luke N. Allen et  al., Implementation of Non-Communicable Disease Policies: A Geopolitical Analysis of 151 39

Bodies as food system sacrifice zones  453 B. Category Two: Financial Support The second category of special legal treatment is subsidies. Although subsidies are available in many industries and thus not necessarily inherently exceptionalist, their extent and ubiquity in the agricultural sector are unusual. This form of special treatment singles out agricultural production to insulate it from financial risk and reduce production costs. I focus here on modern financial subsidies, but in the United States and elsewhere, cash payments arise against a backdrop of many centuries of other types of state support for agriculture. These include state inflation of agricultural profits through state-sanctioned slavery and other forms of forced labor and the state-sponsored extermination and forced relocation of indigenous communities that made possible the subsequent free and low-cost redistribution of land to European settlers. They also include state investment in producing and disseminating knowledge,46 state sponsorship of agricultural infrastructures such as dams, railroads, and roads, and state protection of agricultural-related intellectual property protects certain kinds of agricultural businesses at the expense of others. Many of these supports continue. For instance, by one estimate, between 2014 and 2016, public infrastructure investment totaled $46 billion U.S. dollars per year worldwide.47 Many historians and rural sociologists in the United States refer to this collective program as the “agricultural welfare state.”48 1. Commodity subsidies Widely used in wealthier nations, commodity subsidies provide farmers direct income support. These subsidies, along with other kinds of cash aid, are typically designed to stabilize farm income in the face of both real and perceived economic threats to viable farm economies.49 In some parts of the world, these payments replace older forms of income support, such as production quotas, price fixing, and tariffs.50 A handful of countries have experimented with complete liberalization of agricultural markets, ending subsidies altogether, but Countries, 8 Lancet Glob. Health e50, e53 (2020) (reviewing the WHO Progress Monitor and finding increasing adoption of nutrition-related policies). 46  In the United States, federal support for dissemination of knowledge began in the latter half of the nineteenth century with formation of the USDA and the subsequent establishment of land grant colleges and the agricultural extension services. 47   Timothy D. Searchinger et al., World Bank Grp, Revising Public Agricultural Support to Mitigate Climate Change 16 (2020); see also id. at 13 (explaining that this study excludes India, Argentina, and all of Africa except South Africa). 48   See, e.g., Kimberley S. Johnson, Racial Orders, Congress, and the Agricultural Welfare State, 1865–1940, 25 Stud. Am. Pol. Dev. 143 (2011). 49   See generally Ann-Christina L. Knudsen, Farmers on Welfare: The Making of Europe’s Common Agricultural Policy (2009); Adam D. Sheingate, The Rise of the Agricultural Welfare State: Institutions and Interest Group Power in the United States, France, and Japan (2001). 50  Daugbjerg & Feindt, supra note 2, at 1567 (characterizing this shift as part of the a move toward post-exceptionalism); Searchinger et al., supra note 47, at 15–16 (observing that despite this shift these types of supports still accounted for $300 billion per year in government support between 2014 and 2016, with the strongest interventions coming from China, Japan, and Indonesia). As discussed in section III, infra, many countries, including the U.S., have reformed subsidy systems in response to growing pressure form the World Trade Organization and other international trade bodies, but these subsidy systems remain common and only a handful of countries have abolished them entirely.

454  Research handbook on international food law some degree of economic support for farms remains the norm, particularly across the Global North.51 The primary beneficiaries of these subsidies are typically larger-scale agricultural operations growing staple commodity crops such as soy, wheat, cotton, and corn.52 In the United States, the beneficiaries are also predominantly white.53 In addition, the financial capacity of wealthy countries to provide cash support to farmers provides advantages to those farmers in global markets.54 2. Agricultural insurance and disaster relief State-subsidized agricultural insurance, including crop and livestock insurance, is increasingly common worldwide. A 2010 World Bank study of 65 countries with some form of agricultural insurance found that state subsidies support 85% of premium payments.55 As with commodity subsidies, insurance subsidies are more common and generous in wealthier countries.56 Although insurance against loss is common in many industries, agricultural insurance stands out because of the level and nature of the subsidy. In the United States, farmers receive premium assistance, and insurers receive support for administrative costs and indemnities.57 This triple subsidy is unique, and agricultural insurance is widely criticized for failing to incentivize farmers to improve resilience.58 Beyond standard crop and livestock insurance, many countries also offer farmers additional disaster relief, an extreme form of crop insurance that does not rely on ex-ante premium payments and can cover up to 100% of losses.59 As with   Searchinger et al., supra note 47, at 23 (describing New Zealand’s experience with ending subsidy programs in the 1980s). 52  Daren Bakst, What You Should Know About Who Receives Farm Subsidies, Backgrounder, no. 3306 (Heritage Found., Wash., D.C.), Apr. 16, 2018, at 2–4, www​.heritage​.org​/sites​/default​/files​ /2018​- 04​/ BG3306​_1​.pdf. 53   Ayazi & Elsheikh, supra note 34, at 50–62 (describing the racialized structures of federal support for agriculture); Johnson, supra note 48 (describing the historical origin of a two-tiered agricultural welfare state that directs the bulk of its benefits to a narrow segment of mostly white farmers). 54   See infra section IV.B (describing the ways in which patterns of exceptionalism sacrifice smallholder farmers around the world). 55  Peter Hazell, Rachel Sberro-Kessler & Panos Varangis, When and How Should Agricultural Insurance Be Subsidized: Issues and Good Practices 4 (World Bank, Working Paper, 2017), https://openknowledge​.worldbank ​.org ​/ bitstream ​/ handle ​/10986​/31438​/117363​.pdf ​?sequence ​= 4​ &isAllowed=y (summarizing available data about levels of insurance and insurance subsidies around the world). 56   Id. at 3 (noting that of the 198 million insured farmers in the developing world 2014 only 650,000 were in Africa, whereas 160 million were in China alone). 57   Farm Bill Law Enter., Crop Insurance (2018), www​.farmbilllaw​.org​/wp​-content​/uploads​/2020​ /12​/2018​-Update​_Title​-11​-Crop​-Insurance​.pdf. 58   Id. at 8–9. 59  For a comprehensive overview of both traditional crop insurance programs and post hoc disaster relief programs administered by the U.S. Department of Agriculture, see Megan Stubbs, Agricultural Disaster Assistance, Cong. Rsch. Serv. RS21212 (2020, updated 2022), https:// sgp​.fas​.org​/crs​/misc​/ RS21212​.pdf. Both ad hoc and institutionalized agricultural disaster relief are common around the world. See, e.g., Reuters Staff, China Allocates Flood Relief Fund to Farmers, Agriculture Production, Reuters (July 21, 2020, 7:38 PM), www​.reuters​.com​/article​/us​-china​ -floods​-agriculture​/china​-allocates​-flood​-relief​-fund​-to​-farmers​-agriculture​-production​-idUSKCN24N07M; Government of India, Dept. of Agric., National Agriculture Disaster Management Plan (Nov. 2020), https://agricoop​.nic​.in​/sites​/default​/files​/ NADMP​%20​%281​%29​ _0​.pdf (describing both mitigation and response measures); German Farmers to Receive Millions in Federal Aid, DW.Com (Aug. 22, 2018), https://p​.dw​.com​/p​/33ZMl. 51

Bodies as food system sacrifice zones  455 commodity subsidies, crop insurance payouts in the United States tend to flow to wealthier farmers.60 3. Green payment programs A final type of financial support available to farmers is “green payments” (sometimes called payments for ecosystem services). While many polluting industries around the world are subject to command and control legal regimes that impose fines for non-compliance, farmers can often rely on programs that cover at least some of their costs for adopting environmentally preferable production practices.61 Between 2014 and 2016, about $28 billion per year globally was directed toward some sort of conservation.62 There are many questions about the efficacy of this spending.63 One constant problem is the challenge of additionality: is money spent on practices farmers would have adopted anyway, or are payments the “but for” cause of the adoption? Another concern relates to the types of operations that payments support. Do payments invest in, allow for the expansion of, and elongate the life of ultimately unsustainable farming operations, such as concentrated animal feeding operations?64 An additional set of critiques focuses on the scope of environmental benefits that payments generate. Is money being spent on practices that generate serious environmental benefits? Perhaps most concerning is that many green payment programs fail to build in the data collection and analysis necessary to answer these and other important empirical questions. C. Category Three: Protection from Criticism A final domain of exceptionalism arises in the context of laws regulating speech. While the first two categories of exceptionalism are ubiquitous worldwide, this category originated relatively recently in the United States and has had limited spread thus far. These laws respond to the growing critique of conventional food systems and seek to quell that critique by controlling information and punishing speech.65

  Farm Bill Law Enter., supra note 57, at 7.   See Margaret R. Grossman, Agriculture and the Polluter Pays Principle: An Introduction, 59 Okla. L. Rev. 1, 40–47 (2006). The OECD, which adopted the “polluter pays principle” in 1972, waited until 1989 to extend the principle to agriculture. Subsequently, many OECD countries did increase environmental regulation in this area, but many also increased subsidies for adopting green farming practices, and the OECD eventually shifted its emphasis to the latter approach. Id. at 35–40. 62   Searchinger et al., supra note 47, at 16 (including both working lands and land retirement programs in this number). In the United States, the annual agricultural conservation budget is around $10 billion per year. This number includes a variety of green payment and technical assistance programs. It also includes funding for farmland conservation. Megan Stubbs, Agricultural Conservation in the 2018 Farm Bill, Cong. Rsch. Serv. R45698 (2019), https://crsreports​.congress​.gov​/product ​/pdf​/ R ​/ R45698. 63  For an overview of some of the information and design challenges with successful green payment programs, see Richard D. Horan, James S. Shortle, and David G. Abler, Green Payments for Nonpoint Pollution Control, 81 Am. J. Agric. Econ. 1210 (1999). 64   See Erik Lichtenberg, Conservation, the Farm Bill, and U.S. Agri-Environmental Policy, 29 CHOICES (2014), www​.choicesmagazine​.org​/ UserFiles​/file​/cmsarticle​_385​.pdf (describing the problems of additionality and what the author calls slippage). 65   See Margot J. Pollans, Eaters, Powerless by Design, 120 Mich. L. Rev. 643, 673–679 (2022). 60 61

456  Research handbook on international food law 1. Ag-gag laws Some U.S. states and a handful of other countries have passed “ag-gag” laws, which criminalize certain investigative reporting about agricultural operations. Aimed at preventing animal rights activists from revealing conditions in large-scale animal production facilities, ag-gag laws target undercover operations in particular.66 These laws have been challenged on First Amendment grounds, but their existence and the continued push to enact new ones reflect anxiety among lawmakers about efforts to publicize conditions in concentrated animal feeding operations. 2. Product disparagement laws Food disparagement laws emerged in the 1990s as an expanded product libel mechanism to protect manufacturers of perishable food products. They create a private cause of action against individuals who spread false information about the safety of perishable foods, and, relative to traditional libel, they have relaxed standards. Currently, these laws are on the books in 13 states.67 The Australian and New Zealand Food Authority considered “a proposal that an offense of publicly disparaging food be included in the food Acts.” It rejected this proposal, noting that “there is a real concern that food disparagement statutes such as those being enacted throughout the U.S. would make it harder for those outside the scientific establishment to question products and practices they consider unsafe.”68 Ag-gag and product disparagement laws chill critical speech and information sharing, potentially creating space for food producers to engage in practices that violate community preferences and morals. *** Many scholars have observed that with the rise of neoliberalism in the 1980s, agriculture exceptionalism began to wane.69 Indeed, the rise of neoliberalism shifted agricultural policy debates in many ways, perhaps, most importantly, by feeding efforts to relax trade restrictions in international agricultural markets.70 The next section takes up this trade liberalization,  Alan K. Chen & Justin Marceau, High Value Lies, Ugly Truths, and the First Amendment, 68 Vand. L. Rev. 1435, 1469 (2015). For a tracker of the current status of ag-gag laws across the country, see Issues: Ag-Gag Laws, Animal Legal Def. Fund, https://aldf​.org​/issue​/ag​-gag/; see also Dorothy Sluszka, Note, Animal Farm: The E.U.’s Move Towards Progress and the U.S.’s Slide Towards Dystopia in Farm Animal Welfare, 24 Cardozo J. Int’l & Compar. L. 423, 426 (2016) (finding no examples of ag-gag laws in Europe). 67   Rodney A. Smolla, Law of Defamation § 16:1 (2d ed. 2021) (listing Alabama, Arizona, Colorado, Florida, Georgia, Idaho, Louisiana, Mississippi, North Dakota, Ohio, Oklahoma, South Dakota, and Texas). 68  Anne Flahvin, Oprah and the Texas Cattlemen: Food Disparagement in the US and Australia, 17 Commc’n L. Bull., 20, 22 (1998) (internal quotation marks omitted). 69   See, e.g., Geoff A. Wilson, From Productivism to Post-Productivism … and Back Again? Exploring the (Un)changed Natural and Mental Landscapes of European Agriculture, 26 Transactions Inst. British Geographers 77, 82 (2001). 70   See, e.g., Clive Potter, Competing Narratives for the Future of European Agriculture: The Agri-Environmental Consequences of Neoliberalization in the Context of the Doha Round, 172 Geographical J. 190 (2006); Clive Potter & Mark Tilzey, Agricultural Policy Discourses in the European Post-Fordist Transition: Neoliberalism, Neomercantilism & Multifunctionality, 29 Progress in Hum. Geography 581 (2005) (arguing that neoliberal discourse is shaping world trade dialogues and domestic debates around agricultural policy reform in Europe); Carmen G. 66

Bodies as food system sacrifice zones  457 notes how it is limited in scope, and considers it as one example of partial un-exceptionalism in food law. The foregoing discussion demonstrates, however, that exceptionalism remains a powerful political force.

III.

DOMAINS OF PARTIAL UN-EXCEPTIONALISM

Food and agriculture are not uniformly given special legal treatment. In at least two realms, food safety and international trade, dominant narratives about the nature of food do not center stories of specialness. Although there are aspects of food safety law and international trade law that are indeed exceptionalist, both deviate in important ways.71 In other words, to a certain extent, both areas of food law are unexceptional; they treat food as “normal.” Both also parallel a key feature of exceptionalism, one that favors not food itself but industrial methods of food production. The exceptionalism described above often preferences large-scale monoculture, but this preference is not typically expressly articulated. In the contexts of food safety and trade, this preference becomes overt. A. Food Safety Whereas many states fail to protect people (in their capacity as food system laborers and farm neighbors) and the environment from the violence of food production, many of these same states provide robust protection to people in their capacity as food consumers. Consumer protection is a central goal of the modern regulatory state, and in this domain, food is no exception. Consumer safety laws aggressively regulate food and agricultural producers; all countries have some degree of regulation in this area.72 In the United States and the European Union, comprehensive regulations govern everything from produce harvesting and packing procedures to restaurant cleaning protocols to food additives.73 There is some dispute as to the effectiveness of enforcement of food safety laws, but there is no question that they stand in stark contrast to the systematic agricultural exceptionalism of environmental law and labor law.74 Exceptionalism is still present here in the sense that food safety is regulated separately Gonzalez, Trade Liberalization, Food Security, and the Environment: The Neoliberal Threat to Sustainable Rural Development, 14 Transnat’l L. & Contemp. Probs. 419, 456–471 (2004) (describing the rise of neoliberalism and its impacts on international policy debates about food production, food security, and international trade). 71  Daugbjerg & Feindt, supra note 2, at 1573–75 (characterizing the current era in food and agriculture policy as one of “post-exceptionalism,” “denot[ing] a partial transformation in which an exceptionalist policy sector has not been completely ‘normalized’ and in which old and new ideas, institutions, interests and policy instruments coexist”). 72   Food Regulations, U.N. Food & Agric. Org., www​.fao​.org​/food ​/food​-safety​-quality​/capacity​ -development​/food​-regulations​/en/ (last visited June 30, 2021). 73   See generally Michael T. Roberts, Food Law in the United States (2016); European Food Law (Luigi Costato & Ferdinando Albisinni, eds., 2012). These two places have some of the highest food safety rankings according to the Global Food Security Index. Rankings and Trends, Global Food Security Index (Sept. 2021), https://foodsecurityindex​.eiu​.com​/ Index (also ranking the UK, Canada, Japan, and Israel very highly). 74  In my previous work, I have explored some of the reasons why food safety law has evolved differently and have argued that, even from the narrow perspective of consumer protection, this

458  Research handbook on international food law from other kinds of product safety, but it is not uncommon in the field of consumer protection for different products to have safety regimes tailored specifically to the risks posed by that type of product.75 Exceptionalism is also still present in another more important way. The United States and the European Union use their stringent food safety laws to create comparative advantages for domestic food production. Many countries have food safety standards that are far weaker than those in the United States and the European Union.76 But both places explicitly seek to export their food safety standards by conditioning entry into their markets on compliance with their standards.77 Robust food safety laws thus serve as barriers to entry into these markets.78 They disadvantage both domestic and international producers who lack the capital to invest in food safety personnel, infrastructure, and recordkeeping. These laws encourage the homogenization of food production processes and function as a form of expertise colonialism, advantaging Western food safety knowledge and science.79 Export of Western expertise and practices occurs not just through the imposition of domestic food safety standards but also through widespread efforts to harmonize food safety standards worldwide.80 differential approach is irrational. Broad Leib & Pollans, supra note 39; Pollans, supra note 65 (arguing that food safety law undermines consumer power in the food system). 75  Consider, for example, product or category specific regulatory regimes for airplanes, automobiles, consumer electronics, nuclear power plants, and drugs. Some scholars have suggested that food is, in some contexts, subject to even more stringent laws than other consumer goods because of its unique characteristics, in particular the fact that is ingested. Luigi Costato, Principles and Rules in European Food Law, in European Food Law 14 (Luigi Costato & Ferdinando Albisinni, eds., 2012) (observing that some aspects of European Food Law focus only on “the safety of the food” and view as “not important” the business aspect of the industry). 76  “Development and adoption of food safety systems is very inconsistent among developing countries.” Margaret D. Weinroth et  al., History, Development, and Current Status of Food Safety Systems Worldwide, 8 Animal Frontiers 9, 13 (2018); see also Ctr. for Sci. in the Pub. Int., Global and Local: Food Safety Around the World (June 2005) (summarizing the state of food safety regulatory regimes around the world). 77  Despite functioning as barriers to trade, safety standards are typically permitted under World Trade Organization rules pursuant to the Sanitary and Phytosanitary Measures exception to the General Agreement on Tariffs and Trade. General Agreement on Tariffs and Trade art. XX(b), Oct. 30, 1947, 61 Stat. A-11, 55 U.N.T.S. 194 [hereinafter GATT]; Agreement on the Application of Sanitary and Phytosanitary Measures [hereinafter SPS Agreement], April 15, 1994, www​.wto​.org​/english​/tratop​ _e​/sps​_e​/spsagr​_e​.htm. These agreements allow countries to adopt scientifically based measures designed to protect human, plant, or animal health. 78  For instance, one study found that food safety standards had a significant and negative effect on China’s export of vegetables and seafood. Chunlai Chen, Jun Yang & Christopher Findlay, Measuring the Effect of Food Safety Standards on China’s Agricultural Exports, 144 Rev. World Econ. 83 (2008). 79  Pollans, supra note 65, at 664; European Commission, Directorate-General for Agric. & Rural Dev., Directorate-General for Trade, Ensuring Food Is Safe: The Veterinary and Phytosanitary System of the European Union Explained (2018) (providing non-E.U. food producers specific direction on how to comply with E.U. food safety standards in order to access E.U. markets). 80  Article 3 of the SPS Agreement encourages WTO members to “harmonize sanitary and phytosanitary measures on as wide a basis as possible” by basing their own domestic measures on “international standards, guidelines or recommendations, where they exist …” SPS Agreement, supra note 77, at art. 3.1. Measures that are thus harmonized are “deemed to be necessary to protect human, animal or plant life or health, and presumed to be consistent with the relevant provisions”

Bodies as food system sacrifice zones  459 B. International Trade Although in practice food continues to receive a significant level of special treatment in international trade law, the law on its face treats food just like any other commodity.81 International free trade agreements, most importantly the General Agreement on Tariffs and Trade of 1947 (GATT), apply to food and agriculture products.82 The GATT originally included a variety of loopholes that facilitated special treatment for these products; however, the 1994 Agreement on Agriculture sought to liberalize international food trade by limiting or ending export subsidies, limiting trade-distorting domestic production subsidies, and increasing international market access by reducing tariffs.83 The Agreement reflected the “Washington Consensus” view of international trade that fewer trade barriers would foster economic growth and thus reduce food insecurity.84 It is also, at least facially, contradictory with productivism because the of the SPS Agreement and GATT 1994. Id. at art 3.2. See Sam F. Halabi, The Codex Alimentarius Commission, Corporate Influence, and International Trade: A Perspective on FDA’s Global Role, 41 Am. J. Law & Med. 406, 414 (2015) (suggesting that nations with strong commercial interests in particular products tend to have outsized influence in standard setting at Codex Alimentarius, an international food safety standard setting body). 81  Destaw A. Yigzaw, WTO Agricultural Trade and the Unfulfilled Promise of Development, 11 S.C.J. Int’l L. & Bus. 163, 196 (2015) (describing the facial neutrality of trade law but observing that food trade is “substantially more distorted than trade in any other product”); Fakhri, supra note 34, at ¶ 25 (noting that the “consensus shared by both critics and champions of the WTO alike has been that in practice the Agreement on Agriculture has neither created a liberal global market nor has it benefited poorer countries”). 82  GATT, supra note 77; Michael Fakhri, A History of Food Security and Agriculture in International Trade Law, 1945–2017, in New Voices and New Perspectives in International Economic Law 63–64 (John D. Haskell & Akbar Rasulov eds., 2020) (describing how “the doctrine of food security was subordinated within the international trade regime”). 83   Trade Agreements and Negotiations, U.N Food & Agric. Org., www​.fao​.org​/economic​/est ​/international​-trade​/agreements​/en/ (last visited May 21, 2021). For a description of the agriculture-related loopholes in the original GATT, see Donald E. Buckingham, A Recipe for Change: Towards an Integrated Approach to Food Under International Law, 6 Pace Int’l L. Rev. 285, 305 (1994). See also Kelé Onyejekwe, GATT, Agriculture, and Developing Countries, 17 Hamline L. Rev. 77, 108– 16 (1993) (explaining that GATT was designed to accommodate U.S. agricultural policies in place at the time and that it did not take into account the perspective of developing countries). Between the 1930s and the end of World War II, agricultural protectionism became a firmly entrenched policy across Europe and North America, reflecting an interest in maintaining income for farmers and an adequate food source for growing urban populations. Anne Orford, Food Security, Free Trade, and the Battle for the State, 11 J. Int’l L. & Int’l Rel. 1, 51–55 (2015) (explaining that “agriculture remained the exception for trade liberalization until the 1980s”). 84  The Washington Consensus included a suite of “market-based reforms prescribed for debt-ridden developing countries by major Washington-based institutions like the [International Monetary Fund], the [World Bank], and the U.S. Treasury Department.” McKeon, supra note 12, at 20–22; Sarah Babb, The Washington Consensus as Transnational Policy Paradigm: Its Origins, Trajectory and Likely Successor, 20 Rev. Int’l Pol. Econ. 268, 269 (2013) (explaining that international lending institutions made loans and loan forgiveness conditional on compliance with reforms and that this “conditionality” “helped diffuse the Washington Consensus around the world, but also unintentionally hastened the weakening of the paradigm”). These reforms included removing trade barriers and curtailing government spending on social programs. Smita Narula, The Right to Food: Holding Global Actors Accountable Under International Law, 44 Colum. J. of Transnat’l L. 691, 712–15 (2006) (explaining that some aspects of the agenda had merit, but that it “failed to deliver, particularly with regard to improving food security in borrowing countries”). The Washington

460  Research handbook on international food law Agreement purports to reject what had been one of productivism’s key policy components— “stable government support for maximization of production through subsidization, price guarantees, and protectionist policies.”85 It is not, however, inconsistent with the core premise of addressing food insecurity by increasing global food production, as the primary logic of free trade is to facilitate more efficient production. Critics have questioned this logic, and this criticism has grown more mainstream in recent years in light of increasing concern about how global interconnectedness makes local food supplies susceptible to supply chain disruptions. Climate change, the COVID-19 pandemic, and the recent Russian invasion of Ukraine have all brought this issue starkly to the fore. In part due to widespread resistance to abandoning these kinds of state supports, implementation of the Agreement on Agriculture has stalled. It “has resulted in reforms in agricultural policies in many countries around the world and been credited with expanding the world trade of agricultural commodities and products,” but it has not fully liberalized agricultural trade.86 The 2015 “Nairobi Package,” adopted at the World Trade Organization’s Tenth Ministerial Conference, continues this agenda by, among other things, setting out a timeline for ending export subsidies entirely.87 The push toward trade liberalization reflects an attempted shift away from agricultural exceptionalism.88 But liberalization has occurred unevenly. Many wealthy places, including the United States and the E.U., continue to utilize robust domestic production subsidies. At the same time, many countries across the Global South were pushed by the Washington Consensus and its core structural adjustment policies in the 1980s and 1990s to liberalize

Consensus emerges from and helps to solidify a “corporate food regime,” and multinational food businesses are able to extract wealth from the global food system through the support of international financial institutions, liberalized food trade, and robust intellectual property protections. Philip McMichael, Food Regimes and Agrarian Questions 60 (2013). In the twenty-first century, the significance of the Washington Consensus has waned, but its effects and ethos linger. Babb, supra, at 285–89. 85  Wanki Moon, Multifunctional Agriculture, Protectionism, and Prospect of Trade Liberalization, 33 J. Rural Dev. 29, 45 (2010); see also Michael Cardwell & Fiona Smith, Renegotiation of the WTO Agreement on Agriculture: Accommodating the New Big Issues, 62 Int’l & Comp. L. Q. 865, 865–66 (2013) (suggesting that the agreement was focused almost entirely on moving toward an efficient, market-oriented agricultural trading system and that the agreement does not expressly address productive levels perhaps because it was drafted at a moment of surplus). 86  Dale E. McNiel, Furthering the Reforms of Agricultural Policies in the Millennium Round, 9 Minn. J. Global Trade 41, 45 (2000) (calling the reforms “modest”); Yigzaw, supra note 81, at 196 (describing the agreement more as a “framework for future negotiations rather than for actually integrating agriculture into mainstream GATT/WTO discipline”). For a description of post Agreement on Agriculture efforts to further liberalize agricultural trade, see id. at 213–19 (detailing Doha Round negotiations). 87   See World Trade Organization, Nairobi Ministerial Declaration, WTO Doc. WT/MIN(15)/DEC, www​.wto​.org​/english​/thewto​_ e​/minist​_ e​/mc10​_ e​/nairobipackage​_ e​.htm; Jonathan Hepburn, Evaluating Agriculture in the Nairobi Package, Bridges Africa (Mar. 10, 2016), at 8, https://ictsd​ .iisd​.org​/ bridges​-news​/ bridges​-africa ​/news​/evaluating​-agriculture​-in​-the​-nairobi​-package (describing the Nairobi Package’s agricultural components). 88  The central feature of trade liberalization is to end protectionist trade policies that favor domestic agricultural producers. See, e.g., Potter, supra note 70 (characterizing the push for liberalization in Europe as part of an effort to eliminate special supports for family farms and support the creation of a global food market).

Bodies as food system sacrifice zones  461 more completely.89 This global inequity has significantly affected food production and consumption across the Global South. First, many farmers in the Global South lost their livelihoods as they could not compete on world markets, particularly against farmers still receiving domestic production subsidies.90 Second, many countries in the Global South became net food importers and thus were susceptible to price shocks in the global food market.91 Some supporters of trade liberalization argue in response to these conditions that reforms have not gone far enough and that further liberalization would help level the playing field for less developed countries.92 But liberalization has occurred over the objection of a significant advocacy community, representing not the agribusiness interests sustained by domestic commodity subsidies but, instead, the global peasant farming community. Food, these advocates often argue, is special and should not be treated like other commodities. As the subject of the fundamental human right to food, it should not be commodified at all.93 Trade liberalization facilitates the global dominance of large-scale agribusiness. As one of a suite of policies, including robust intellectual property protections (particularly for seed manufacturers) and public investment in the Green Revolution project, trade liberalization can be understood as a pathway to spread industrial food production practices and Westernbased agribusinesses themselves around the world.94 The partial unexceptionalisms of food safety and international trade law tend to benefit the same actors who already benefit from the special treatment described in section II. The next section asks who bears the attendant costs of these governance strategies.   McKeon, supra note 12; Narula, supra note 84, at 712–15.  Carmen G. Gonzalez, Institutionalizing Inequality: The WTO Agreement on Agriculture, Food Security, and Developing Countries, 27 Colum. J. Env’t L. 433, 473–75 (2002) (arguing that the agreement allows industrialized countries to continue protectionist policies while forcing developing countries to open their markets and that this dynamic exacerbates rural poverty and food insecurity in developing countries). 91  Smita Narula, Reclaiming the Right to Food as a Normative Response to the Global Food Crisis, 13 Yale Hum. Rts. & Dev. L. J. 403, 407–13 (2010) (describing how these policies culminated in a global food crisis in 2007–2008); Fakhri, supra note 34, at ¶ 22 (describing the Agreement on Agriculture as a “barrier to fully realizing the right to food”); Gonzalez, supra note 90 (explaining why the agreement leads to growing food import rates in developing countries). International Monetary Fund structural adjustment policies also encouraged developing countries to decrease production of food crops for domestic consumption and increase production of cash crops for export; this policy, in conjunction with global trade policy, forced many countries into the position of being net food importers. Narula, supra. 92   See Yigzaw, supra note 81, at 185–92 (characterizing vast spending on domestic subsidies as a form of hypocrisy from wealthy nations advocating for free trade). 93  La Via Campesina, Declaration of Nyéléni, Feb. 27, 2007, https://viacampesina​.org​/en​/declaration​-of​-nyi/ (declaring opposition to “privatisation and commodification of food”); Fakhri, supra note 34, at ¶¶ 9–10; Vandana Shiva, Stolen Harvest: The Hijacking of the Global Food Supply (2000). For more on the global food sovereignty movement, see Raj Patel, What Does Food Sovereignty Look Like?, 36 J. of Peasant Studies 663 (2009); Food Sovereignty: Reconnecting Food, Nature, and Community (Hannah Wittman, Annette Aurélie Desmaris & Nettie Wiebe eds., 2010). 94   See Shiva, supra note 93; Wendy Brown, Undoing the Demos: Neoliberalism’s Stealth Revolution 142–50 (2015) (telling the story of the U.S.’s imposition of seed patent laws on Iraq through the Bremer Order No. 81); Potter, supra note 70, at 191–92 (explaining that agribusiness benefits from trade liberalization through increased competition and downward pressure on input prices).

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IV.

EXCEPTION SACRIFICE ZONES

Contrasting domains of exceptionalism with those of unexceptionalism reveals the fallacy of the specialness narrative. To be sure, some features of food and its production make it unique, but legal exceptionalism does not systematically track these features. Instead, legal exceptionalism patterns reflect various interrelated power dynamics in the modern food industry, prioritizing consumers and farmers over laborers, large-scale commodity producers over smallholder farmers, and industry owners and executives over low-income consumers. Each of these hierarchies also replicates patterns of racial, ethnic, and gender discrimination. If agricultural exceptionalism occurs as the result of the organized political power of certain food and agriculture interests, it should be no surprise that exceptionalist policies reflect the interests of those organizations.95 Narratives of exceptionalism justify exploitive and extractive practices across the food system. The following discussion draws on extensive literature evaluating the true costs of food, particularly on the categories of people who bear the brunt of these costs. Throughout this discussion, I reframe costs with the language of sacrifice. The term “sacrifice zones” was first used in the context of nuclear testing and was later adopted in the United States to describe lands appropriated for coal extraction.96 The environmental justice movement has seized the term, using it broadly to refer to communities that bear the burden of pollution.97 The rhetorical punch of the phrase comes from its religious undertone; certain things, such as appeasing the gods, avoiding damnation, and protecting the homeland, justify sacrifice. Sometimes the ultimate sacrifice. The language thus invites serious scrutiny: is the cause worthy? Religion historian Ivan Strenski observes that in many contexts, “‘sacrifice’ is but a cruel euphemism covering up victimization or just a device to conceal injustice.”98 I take this observation up cynically. Rather than use the concept to induce individuals to act counter to self-interest or to justify loss after the fact, I use it to reveal the scope of current injustices.99 This section summarizes what is sacrificed as a consequence of agricultural exceptionalism. The analysis focuses on bodies—workers’ bodies, smallholder farmers’ bodies, and lowincome food consumers’ bodies. These people are the food system’s human sacrifice zones. Methods of food production and systems of food system governance effect great violence, undermining the health, livelihood, dignity, and sometimes even liberty of millions (if not  This is not to say that we should necessarily reject any cultural narrative claiming there is something special about food and agriculture. Instead, we must approach, with great skepticism, any attempt to employ such narratives to channel value to powerful players in the food system. 96   Study Committee on the Potential for Rehabilitating Lands Surface Mined for Coal in the Western United States, National Research Council (U. S.), Rehabilitation Potential of Western Coal Lands, 85–86 (1974), https://archive​.org​/details​/reh​abil​itat​ionp​ o0000nati (using the phrase “national sacrifice area” to describe areas where surface mining is done without reclamation). 97   See, e.g., Steve Lerner, Sacrifice Zones: The Front Lines of Toxic Chemical Exposure in the United States (2010). 98   Ivan Strenski, Theology and the First Theory of Sacrifice 1 (2003). 99  Of course, the implicit meaning of sacrifice is in the inverse, that the loss or death or suffering is justified by the benefit it brings about, whether that be religious atonement or appeasement or, in the context of civic sacrifice, preservation of the community at large. Cf. Kathryn McClymond, Beyond Sacred Violence: A Comparative Study of Sacrifice 5–7 (2008) (summarizing the study of sacrifice as exchange). 95

Bodies as food system sacrifice zones  463 billions) of people.100 My analysis focuses on human sacrifice zones, but it is important to note that the same policies generate significant ecological sacrifice zones. In addition, animals raised for food are a sacrifice zone on an almost unimaginable scale.101 The rhetoric of agricultural exceptionalism typically defines the cause for this sacrifice as “feeding the world,” but the following synopsis reveals this cause as nonsensical. Exceptionalism does not support the development and maintenance of a nourishing food system. Instead, the primary function of these sacrifices appears to be capital accumulation.102 A. Sacrifice Zone One: Workers’ Bodies The primary sacrificial zones of agricultural exceptionalism are the bodies of food system laborers. In some contexts, they are sacrificed to serve the alleged interest of food consumers, and in other contexts, they are sacrificed to serve the alleged interests of farm owners. First, the contrast between labor and environmental law carveouts and food safety law reveals a prioritization of food consumers over the interests of food system laborers. Contrasting food safety law with environmental law and labor law demonstrates that while consumer interests are powerful enough to overcome the concentrated influence of the food industry, farmworker and farm neighbor interests are not. Both environmental contamination and foodborne illness generate significant safety risks.103 Justifications for environmental carveouts typically include concerns about the consequences of regulation for the price of food, concerns about the capacity of regulators to regulate in a context of such high variability (i.e., all farms are different), and expression of the belief that farmers themselves are in the best position and have the proper incentives to be stewards to the environment. The food safety context has parallel features, yet robust regulation exists. There is a plethora of possible explanations: food safety outbreaks are more politically salient than environmental contamination. They generate visceral disgust. They can strike broadly across income brackets, whereas the burdens of environmental contamination are typically localized and borne by low-income

 This analysis owes an intellectual debt to the critical work of Lauren Berlant and other scholars on the concepts of “slow death” and “slow violence.” Lauren Berlant, Slow Death (Sovereignty, Obesity, Lateral Agency), 33 Critical Inquiry 754, 758 (2007). Slow violence scholarship examines the ways in which “nonspectacular harm tends to injure people in disempowered communities.” Rabia Belt, The Fat Prisoners’ Dilemma: Slow Violence, Intersectionality, and a Disability Rights Framework for the Future, 110 Geo. L.J. 785, 828 (2022). It also considers the “harms that accrue to those unable to accomplish ‘the good life.’” Id. At 829. 101   See, e.g., Laura Hobgood, Culture of Sacrifice: Another Meditation on Domestication in the 21stCentury—US Anthropocene, in Encountering Earth: Thinking Theologically with a More-Than-Human World 107 (Trevor George Hunsberger Bechtel et  al. eds., 2018); Chloe Taylor, Foucault and Critical Animal Studies: Genealogies of Agricultural Power, 8 Phil. Compass 539 (2013) (describing human–nonhuman animal power relations through a Foucaultian lens). See also Carol J. Adams, The Sexual Politics of Meat: A Feminist-Vegetarian Critical Theory (1990) (exploring the close relationship between subjugation of animals and subjugation of women). 102  Of course, there are many other forces shaping the food system, including, among others, cultural biases, taste, and environmental factors. But none of these factors align with the contours of exceptionalism as comprehensively as capitalism itself. 103   See generally Broad Leib & Pollans, supra note 39 (characterizing both environmental harms and food borne illness as “food safety” concerns). 100

464  Research handbook on international food law communities.104 Ultimately, the contrast reflects the belief that one problem—safety risks for eaters—must be solved, while the other—safety risks for those living near and working in the food system—is not important enough to justify the challenges of the regulatory regime.105 Thus consumers can bite into a salad with relative confidence that they will not be poisoned with salmonella, while farmworkers face daily risk from pesticide exposure, heat exposure, and other physical injuries.106 Second, food law can be viewed as a collective statement of preference for the needs and interests of farmers over the needs and interests of farm laborers. While farmers, particularly larger-scale operations, receive subsidies and can rely on cheap labor, farmworkers have little protection from low wages, wage theft, and physical abuse.107 Why? In the United States, agricultural workers were initially excluded from workplace protections specifically (and explicitly) because they were often Black.108 In the modern era, immigration law’s special treatment of agriculture workers replicates this dynamic.109 In the environmental context, race likely plays a role as well. Environmental justice advocates argue that it is typically poor minority communities suffering the brunt of the direct environmental harms (air and water pollution) generated by factory farming, particularly concentrated animal farming.110  For a detailed discussion of this comparison, see id. at 1193–1204.  As I argue below, an additional possible explanation is that concern for consumer welfare is, at least in part, a ruse. While food safety law is framed as serving primarily consumer interests, it also serves the interests of consolidated food production businesses who can comply with food safety law comparatively cheaply. Even so, the rhetoric of consumer protection is powerful, and the history of food safety law in the United States reveals that Congress is responsive to consumer demands for more protection. Id. at 1194–99 (describing that history). 106   See Danica Li, Comment, Toxic Spring: The Capriciousness of Cost-Benefit Analysis Under FIFRA’s Pesticide Registration Process and Its Effect on Farmworkers, 103 Calif. L. Rev. 1405 (2015); Charlene Galarneau, Farm Labor, Reproductive Justice: Migrant Women Farmworkers in the US, 15 Health & Hum. Rts 144 (2013). 107   See Nathan Rosenberg & Bryce Wilson Stucki, Don’t Trust the Antitrust Narrative on Farms, Law & Political Econ. Proj. (May 5, 2021), https://lpeproject​.org​/ blog​/dont​-trust​-the​-antitrust​-narrative​-on​-farms/ (observing that farmworker wages do not rise when farmer income rises). 108   See Juan F. Perea, The Echoes of Slavery: Recognizing the Racist Origins of the Agricultural and Domestic Worker Exclusion from the National Labor Relations Act, 72 Ohio St. L.J. 95, 127, 131– 32 (2011); Marc Linder, Farm Workers and the Fair Labor Standards Act: Racial Discrimination in the New Deal, 65 Tex. L. Rev. 1335, 1341–42 (1987). Of course, if we take even a very small step back further in time, we find institutionalized wholesale sacrifice for the wellbeing of agricultural workers through the vicious institution of slavery. 109  Guadalupe T. Luna, Agricultural Underdogs and International Agreements: The Legal Context of Agricultural Workers Within the Rural Economy, 26 N.M. L. Rev. 9 (1996) (examining consequences for farmworkers at the intersections of trade liberalization and agricultural labor law). 110  Charlotte E. Blattner & Odile Ammann, Agricultural Exceptionalism and Industrial Animal Food Production: Exploring the Human Rights Nexus, 15 J. Food L. & Pol’y 92, 127 (2019) (describing how farmers’ rights come at the cost of workers’ rights). The empirical data supporting these claims paints a complicated picture. In some places, such as North Carolina, the data clearly paints a picture in which racial minorities bear the brunt of harms from industrial animal agriculture. Andie D’Angelo, Taking the Whole Hog: How North Carolina’s Right-to-Farm law Strips Access to Nuisance Suits for Vulnerable Communities, 34 Geo. Env’t L. R. 141, 146–53 (2022). In other places around the United States, the data is less clear. Id. People of color make up a disproportionate part of the workforce in slaughterhouses and meatpacking facilities. Shawn Fremstad et al., Meatpacking Workers Are a Diverse Group Who Need Better Protections, Ctr. for Econ. & Pol’y Rsch. (Apr. 29, 2020, 12:00 AM), https://cepr​.net​/meatpacking​-workers​-are​104 105

Bodies as food system sacrifice zones  465 The move toward post-exceptionalism in international trade, particularly as it has occurred without parallel moves toward post-exceptionalism in the regulatory arena, reaffirms this hierarchy. For instance, critics of the North American Free Trade Agreement observe that the agreement provides significant economic advantages for farmers in the United States, but it fails to offer parallel protections to farm workers who have not shared in the economic benefits of North American free trade.111 B. Sacrifice Zone Two: Smallholder Farmers’ Livelihoods (and Bodies) Patterns of exceptionalism have also historically favored larger-scale farmers and farmers in wealthy Western countries over smallholder farmers. Within the United States, smallholder farmers are a compelling part of the justifying narratives of agricultural exceptionalism, but, as many scholars have observed, they are not the primary beneficiaries of most exceptionalist policies.112 Further, they do not play a significant role in the food supply chain. Instead, most food produced comes from a small segment of relatively wealthy farmers.113 In the international context, however, smallholder farmers still produce significant quantities of food. According to one recent estimate, smallholder farmers grow approximately 35% of food globally, but this number varies significantly from country to country. In Europe, smallholder farmers (farming two hectares or less) generate 8% of the food production value; in China, that number is 80%, and in India, it is 47%.114 Dominant food security narratives a​-diverse​-group​-who​-need​-better​-protections/ (gathering data from the American Community Survey to show that slaughterhouse workers and meat processing industry workers are 34.9% Hispanic, 22.5% Black, and 51.5% immigrant). 111  Luna, supra note 109, at 41–44 (describing the ways in which the North American Free Trade Agreement benefited farmers but failed to address the circumstances of farm laborers in any meaningful way). 112   See supra notes 52, 53, & 60 (citing statistics on distribution of subsidies). In some cases, exceptionalist narratives do generate actual support for smallholder food production systems such as community gardens. Michael Roberts & Margot Pollans, Setting the Table for Urban Agriculture, in Urban Agriculture: Policy, Law, Strategy, and Implementation 8–9 (Martha H. Chumbler, Sorell E. Negro & Lawrence E. Bechler eds., 2015). But, as geographers Rina Ghose and Margaret Pettygrove observed, while community gardens are frequently conceived of as spaces “through which citizens can challenge dominant power relations and claim rights to the city, … this citizen participation may not be inherently transformative or empowering.” Rina Ghose & Margaret Pettygrove, Urban Community Gardens as Spaces of Citizenship, 46 Antipode 1092, 1092 (2014). Based on a study of community gardens in one Milwaukee, Wisconsin, neighborhood, they find that community gardens both “resist[] and reinforce[] hegemonic relations.” Id. at 1094, 1108 (situating community gardens against the backdrop of the neoliberal city and noting that “[w]hile community gardens enable minority citizens to counteract marginalization by improving material conditions at the neighborhood level, they can simultaneously cultivate racist agendas by masking structural inequities, and conditioning participants to pursue change through individual endeavor” (internal citations omitted)). 113  Rosenberg & Stucki, supra note 107. 114  Sarah K. Lowder, Marco V. Sánchez, & Raffaele Bertini, Which Farms Feed the World and Has Farmland Become More Concentrated?, 142 World Dev. no. 105455, at 4 (2021) (finding a parallel relationship between national wealth and farmland concentration). Others offer a much higher global estimate. ETC Group, Who Will Feed Us? The Peasant Food Web vs. The Industrial Food Chain 8, 12 (3rd ed. 2017) (estimating that about 70% of the population depends on the “Peasant Food Web,” the “small-scale producers, usually family- or women-led that include

466  Research handbook on international food law tend to erase smallholder farmers, calling instead for expanding agricultural technologies that have historically fostered increased farmland consolidation. These narratives celebrate free trade as a vehicle for spreading this technology, ignoring the costs of free trade to the individual food security of peasant farmers and assuming that increased national wealth will trickle down to these farmers when they become displaced from the land. Patterns of agricultural exceptionalism disadvantage smallholder farmers in three ways. First, the pressures of free trade undermine their economic viability. As a result, large numbers of smallholder farmers are losing control of their land.115 Many smallholders who ultimately lose control of their land then become farm workers.116 Having already sacrificed their land, we must now sacrifice their bodies. Second, and relatedly, food safety and related food fraud laws are deployed by larger-scale food producers as a barrier to entry to international markets. Many countries close their borders to food products that do not meet domestic food safety standards.117 Food identity standards, such as organic laws, serve a similar function.118 These laws privilege Western modes of food production because they rely on a narrow range of Western scientific expertise to assess and define safety.119 Finally, as industrial agricultural practices spread worldwide, largely free of environmental regulation, they undermine the viability of other agricultural practices that rely on biodiversity, particular climate conditions, and access to water.120 The environmental degradation that accompanies industrial monocultures thus has collateral consequences for the food producers around the world who were not immediately forced out of business by the dynamics of Western exceptionalism in global trade regimes. This environmental degradation also threatens food security by making food production less resilient to extreme weather, pests, and disease.121 There remains a difficult empirical question about whether the food needs of the world are better met through increased farmland consolidation or not, and this chapter does not take a

farmers, livestock-keepers, pastoralists, hunters, gathers, fishers and urban and peri-urban producers”). In China, smallholder farmers still dominate the rural landscape, but, in recent years, this has begun to shift, and average farm size is growing. Michael Schuman, China’s Small Farms Are Fading. The World May Benefit, N.Y. Times (Oct. 5, 2018), www​.nytimes​.com​/2018​/10​/05​/ business​ /china​-small​-farms​-urbanization​.html (describing the beginnings of a shift in agricultural practices and land distribution and observing very little nostalgia for agricultural life). 115  Individual farmland loss can come either from bankruptcy or from land grabs that take advantage of informal land control arrangements. Narula, supra note 11, at 79–80 (citing recent statistics on land grabs); GRAIN, Hungry for Land: Small Farmers Feed the World with Less Than a Quarter of All Farmland 8–9 (May 2014) (collecting statistics on farmland loss from around the world in recent decades); supra note 91 and accompanying text. 116  R. Dennis Olson, NAFTA’s Food and Agriculture Lessons, 20 Peace Rev. 418 (2008) (explaining why NAFTA undercut the economic viability of large numbers of small Mexican farms and noting that some of these farmers ultimately migrated north to work as farmworkers in the United States). 117   See supra note 79 and accompanying text. 118   See generally Guntra A. Aistara, Organic Sovereignties: Struggles Over Farming in an Age of Free Trade (2018); Pollans, supra note 65 (arguing that food safety and food fraud laws are deployed in ways that reduce diversity of participation in the food system). 119  Pollans, supra note 65. 120   See Gonzalez, supra note 70, at 433–51. 121  Carmen G. Gonzalez, Climate Change, Food Security, and Agrobiodiversity: Toward a Just, Resilient, and Sustainable Food System, 22 Fordham Env’t L. Rev. 493 (2011).

Bodies as food system sacrifice zones  467 position on this question. Instead, I observe that dominant food policy has assumed an answer to this question in a way that privileges one class of farmers over another. C. Sacrifice Zone Three: Low-Income Food Consumers’ Bodies The ways in which farmworkers and smallholder farmers pay the costs of agricultural exceptionalism are fairly straightforward and well-documented. But another category of people pays dearly for food and agricultural exceptionalism. These are the low-income consumers in high-income countries (and, increasingly, worldwide) whose bodies serve as calorie and obesogenic food additive dumps for the food industry. Just as traditional exceptionalist policy relieves regulatory burdens for food producers, modern neoliberal food policy alleviates producer responsibility for nutrition-related health problems.122 In the realm of nutrition regulation, food producers have been largely successful at avoiding meaningful regulation and controlling the dialogue about what constitutes good nutrition.123 Multinational food corporations have also worked to influence domestic-level understanding of international trade regulation in ways that discourage adopting more aggressive labeling requirements.124 At the same time, the productivist logic of exceptionalism fuels production of cheap calories. Producers are rewarded for producing large quantities of food without regard to the healthfulness of that food.125 Note that this is not the mostly debunked claim that corn subsidies make us fat.126 This is a more systemic claim that while many exceptionalist policies are justified in the name of food security, food markets are instead flooded with low-nutrient  Political scientists Carsten Daugbjerg and Peter Feindt have observed that neoliberalism often serves as a challenge to exceptionalism because neoliberal ideology on market liberalism is in tension with exceptionalism ideology on industry protectionism. Supra note 2, at 1570. But, outside the realm of trade regulation, the two ideologies can work in tandem as both celebrate reducing regulatory burdens. 123  Lawrence O. Gostin, “Big Food” Is Making America Sick, 94 Milbank Q. 480 (2016) (describing the influence of the food industry on the development of the Dietary Guidelines for Americans, which shape food availability in school cafeterias, prisons, and other public institutions). 124   See Tim Dorlach & Paul Mertenskötter, Interpreters of International Economic Law: Corporations and Bureaucrats in Contest over Chile’s Nutrition Label, 54 L. & Soc’y Rev. 571, 577 (2020) (observing that the structure of the WTO’s Agreement on Technical Barrier to Trade “enable[s] transnational corporations to inject their self-interested interpretations of international economic law into regulatory conversations”). Dorlach & Mertenskötter explore why Chile was able to resist this influence and implement its front of package nutrition warning system, when other countries, such as Indonesia, have abandoned plans to implement such labeling in response to input from transnational corporations that such labels would violate international trade law. Id. They hypothesize that Chile was successful in large part because of its unusually high degree of “intrastate coordination and cooperation” between social regulators and economic regulators. Id. at 581. They note that “voluntary intragovernment support from economic bureaucrats … may be the exception rather than rule,” but that “[s]ome health and environmental agencies in rich countries, such as the US Department for Health and Human Services, have reduced their dependence by hiring their own international law experts.” Id. at 600. 125   Raj Patel & Jason W. Moore, A History of the World in Seven Cheap Things: A Guide to Capitalism, Nature, and the Future of the Planet 138 (2018). 126   Food & Water Watch and The Public Health Institute, Do Farm Subsidies Cause Obesity? Dispelling Common Myths About Public Health and the Farm Bill (Oct. 2011); Julie Guthman, Weighing In: Obesity, Food Justice, and the Limits of Capitalism 118–23 (2011). 122

468  Research handbook on international food law packaged foods. As a recent Politico article observed, in 2018, USDA’s Agricultural Research Service spent 13 times more “studying how to make agriculture more productive than it did trying to improve Americans’ health or answer questions about what we should be eating.”127 Together with industry dynamics such as the development of technology, the under-regulation and subsidy systems described in section II facilitate these conditions by reducing food production costs.128 At the same time, free trade regimes facilitate the spread of this cheap calorie system (sometimes referred to as SAD, the Standard American Diet) worldwide. The contrast between nutrition regulation and food safety regulation is illuminating. Both categories deal with consumer health. Yet, food safety is addressed through “normal” laws while nutrition is exceptionalist. This distinction is partly because of the widespread belief that food safety is a category of risk over which consumers have little control.129 In the nutrition realm, consumers are deemed to have control.130 More cynically, while food safety harms strike consumers across brackets of race and class, nutrition harms tend to be concentrated on those with lower socioeconomic status. The “feed the world” rationale for exceptionalist policies also ignores a key fact. Food system workers are also food consumers. And a lot of people work in food production; in the United States, one in every six people works in the food industry.131 Globally, 26.8% of the world’s working population works in agriculture.132 Exceptionalist policies allow the food industry to keep these people in poverty wages. Poverty wages leave food system workers without the financial means (or, importantly, the time) to opt into healthier foodways.133 The burden on low-income consumers in high-income countries betrays the failure of the food security paradigm. Productivism may generate calories, but it does not generate nourishment. More fundamentally, exceptionalism generates significant wealth but does not promote the interest of most food eaters.

 Catherine Boudreau & Helena Bottemiller Evich, The Agenda: How Washington Keeps America Sick and Fat, Politico (Nov. 4, 2019, 5:05 AM)), www​.politico​.com​/news​/agenda​/2019​/11​/04​/why​ -we​-dont​-know​-what​-to​-eat​- 060299. 128   Guthman, supra note 126, at 117. 129   Cf. Pollans, supra note 65 (arguing that food safety law in the United States is justified by a myth of consumer helplessness, which the law then reinforces). 130  Broad Leib & Pollans, supra note 39, at 1184–89. 131   Food Chain Workers Alliance, The Hands That Feed Us: Challenges and Opportunities for Workers Along the Food Chain 12 (2012) (including jobs in food production, processing, distribution, service, and retail) (relying on 2010 data from the Bureau of Labor Statistics and the 2007 Census of Agriculture). 132   Employment in Agriculture (% of total employment), World Bank: Data, https://data​.worldbank​ .org​/indicator​/SL​.AGR​.EMPL​.ZS​?end​=2019​&start​=2011. 133   Guthman, supra note 126, at 118 (arguing that “[t]o the extent that many people can afford only cheaply produced food, the industrial food system has made a virtue of necessity”). Guthman also attempts to direct attention away from calories (i.e. the quantities of food that people are eating) and toward obesogenic contaminants that are widely present in many consumer goods, and, importantly, saturate the food supply chain. Id. at 109–11 (describing the prevalence of obesogens such as pesticides, BPA, PFOA, and soy). 127

Bodies as food system sacrifice zones  469

V. CONCLUSIONS Whether food and agriculture are exceptional or not is the wrong question. It is a question that distracts. The right question is who benefits from exceptional treatment and who does not. Special treatment for food and agriculture exacerbates inequality by privileging certain farmers and food producers. But ending special treatment also risks exacerbating inequality as those who have already benefited from special treatment can dictate the terms of that unwinding. The experience of efforts to dismantle exceptionalism in international trade exemplifies this concern. Less powerful and less wealthy countries were more susceptible to global pressure to liberalize the agricultural sector at great costs to their agricultural populations and to their ability to withstand supply chain disruptions related to climate, war, and pandemics. What the domains of exceptionalism and unexceptionalism have in common is that they reinforce status quo hierarchies in the food system, systematically disadvantaging subsistence farmers, low-wage laborers, and low-income consumers around the world and systemically advantaging producers in the Global North over those in the Global South. Reframing the policy analysis in these terms invites a new inquiry into the equitable allocation of the resources of the food system, one that begins and ends with building a nourishing food system.

TECHNOLOGY AND SCIENCE

23. The digital food economy, from food regulation to data governance Pinghui Xiao and Vicki Waye

1. INTRODUCTION The world has been reshaped with the advent of the internet and all kinds of other digital technologies. Digitalization of the food supply chain from farm to fork has been identified as critical for addressing pressing global problems, including the need to increase food production for a rapidly growing world population, the need to produce food more sustainably, and the need to reduce food waste.1 Digitalization comprises the application of Industry 4.0 technologies such as big data mining and predictive analysis, artificial intelligence, remote sensor devices, the internet of things (IOT), and blockchain to create highly integrated, precisiondriven networks.2 These new digital networks of farming, food manufacturing, and logistics technologies capable of exchanging, mining, and analyzing data promise to transform how the food sector3 operates and performs. Traditional relations between farmers, food manufacturers, food distributors, and consumers will no longer be constrained by lack of market and environmental information and poor communication and linkages between farm and fork.4 We call this new form of market interaction the digital food economy. The purpose of this chapter is to document how the digital food economy works and the challenges it faces regarding food regulation and data governance. The challenges relate to many aspects of food digitalization. While digitalization enhances connectivity and traceability between actors in the food supply chain, provides big data-related insights for optimizing food production and distribution, and otherwise improves efficiencies by lowering costs associated with transacting across the chain,5 it can also exacerbate the risk and extent of   World Bank Group, Future of Food: Harnessing Digital Technologies to Improve Food System Outcomes (World Bank. 2019). 2  Carsten Gerhardt et al., Framework for the Digital Transformation of the Agricultural Ecosystem, in Handbook Digital Farming: Digital Transformation for Sustainable Agriculture (Jörg Dörr & Matthias Nachtmann eds., 2022), at 2.1.3; Simon Fielke et al., Digitalisation of Agricultural Knowledge and Advice Networks: A State-of-the-Art Review, 180 Agricultural Systems, 102763 (2020). 3  Food sector in our chapter means any part of food value chain activities that represents one process or segment of the food value chain in any one of the following: agricultural production, food manufacturing, food distribution, catering, and food import and export. 4  M. Lezoche,et al., Agri-food 4.0: A Survey of the Supply Chains and Technologies for the Future Agriculture, 117 Computers in Industry 103187 (2020), at 2. 5  Fabio Sgarbossa et al., Digitalization in Production and Warehousing in Food Supply Chains, in The Digital Supply Chain (Bart L. MacCarthy & Dmitry Ivanov eds., 2022); Serafim Bakalis et al., Food Industry 4.0: Opportunities for a Digital Future, in Food Engineering Innovations Across the Food Supply Chain (Pablo Juliano et al. eds., 2022). 1

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472  Research handbook on international food law market failure related to food safety and quality and may increase the risk of abuse related to failures of data governance. Of particular concern is the lack of formal systems to manage the huge amount of mixed data generated by the many segments of the food supply chain.6 In the chapter, we explore the challenges in detail and examine how policy, law, and regulation have responded and continue to be tested by the scope and pace of digitalization in the food sector. As China is one of the world’s biggest players in the digital food economy, it is used as a vehicle for most of our illustrative analyses. For various reasons, China’s experiences and regulatory responses present a valuable benchmark for discussion. Reflecting the experience of other jurisdictions,7 historically, compliance and enforcement of food safety and quality regulation in China have been weak.8 China’s food production and distribution systems are spread over vast geographical areas and diffused among many small to medium enterprises with limited ability to invest in high-quality food safety systems. Enforcement bodies have been constrained by inadequate resourcing, and collaboration between local jurisdictional enforcement bodies has been sporadic.9 Consequently, historically there have been a significant number of high-profile cases of food adulteration and contamination in China.10 Over the last ten years, China’s digital food economy has been growing rapidly. Along with increasing digitalization, China’s food production and distribution systems have seen the mushrooming of new business models, new supply chains, and new platforms. Similar disruptions are occurring in the food sector around the globe.11 These disruptions place further pressure upon policymakers and regulators to address problems related to food safety and quality more effectively while simultaneously responding to similar challenges of enforcement and accountability arising from the use of digital technologies. As the chapter outlines, China’s innovative co-regulatory approach to its burgeoning digital food economy provides an interesting model deserving of consideration for its suitability in other jurisdictions. Under China’s co-regulatory model, digital platforms are tasked with acting as gatekeepers and monitors of food suppliers trading on their platforms. If there is a breach of China’s Food Safety Law, the platform must immediately stop providing the supplier with digital trading services. The principal question posed by this model is whether it strikes an appropriate balance between the public interest in promoting food safety and the private interests of farmers,

 Biljana Mileva Boshkoska et  al., A Decision Support System for Evaluation of the Knowledge Sharing Crossing Boundaries in Agri-Food Value Chains, 110 Computers in Industry, 64 (2019).  7  For example, a 2019 report prepared by the United Kingdom’s National Audit Office found that the UK’s food safety enforcement system was under strain due to devolved authority, inadequate resourcing, and poor intelligence; see Food Standards Agency, Ensuring Food Safety and Standards, HC 2217, (2019) . See further, Sandra Boatemaa et al., Awakening from the Listeriosis Crisis: Food Safety Challenges, Practices and Governance in the Food Retail Sector in South Africa, 104 Food Control, 333 (2019), contending that South Africa’s food safety enforcement system is not fit for purpose.  8  Zhe Liu et  al., Food Safety Governance in China: From Supervision to Coregulation, 7 Food Science & Nutrition, 4127 (2019); Fangqi Lu & Xuli Wu, China Food Safety Hits the “Gutter”, 41 Food Control, 134–138 (2014).  9   Katrin Kuhlmann et  al., China Food Safety Legal and Regulatory Assessment, Syngenta Foundation for Sustainable Agriculture: Basel, Switzerland (2017). 10  Hon-Ming Lam et al., Food Supply and Food Safety Issues in China, 381 The Lancet, 2044–53 (2013). 11   K ateryna Schroeder et  al., What’s Cooking: Digital Transformation of the Agrifood System (World Bank Publications. 2021).  6

The digital food economy, from food regulation to data governance  473 food manufacturers, technology, and platform providers. This balance is necessary to sustain a diverse, competitive, well-governed food sector.

2. BACKGROUND: RISE OF THE DIGITAL FOOD ECONOMY We contend that as the internet and other digital technologies advance, the food sector, including agri-food,12 is transforming into a digital food economy.13 This transformation is occurring at the global, supra-national, and national levels and has, in part, been supported by a range of institutions, policies, and laws. Some of the key developments are discussed below. At the World Summit on the Information Society (WSIS) in Geneva in 2003 and Tunis in 2005, a comprehensive Action Plan was created, which included an ambitious e-agriculture strategy.14 The aim was to harness and coordinate national governments, international institutions, private enterprises, and NGOs to improve access and connectivity to information and communication technologies (ICTs) and to promote the use of ICTs to achieve internationally agreed development goals. Specifically, the e-Agriculture Action Line was intended to “ensure the systematic dissemination of information using ICTs on agriculture, animal husbandry, fisheries, forestry and food, to provide ready access to comprehensive, up-to-date and detailed knowledge and information.”15 The proposed benefits of pursuing this goal included increasing food production efficiency, facilitating trading, and improving traceability.16 Following that declaration of intent, the Food and Agriculture Organization of the United Nations (FAO) was assigned the facilitation role for the e-Agriculture Action Line. The FAO and its founding partners established a community of practice that promoted a large variety of e-agriculture projects and acted as a forum for exchanging knowledge and information. A review undertaken in 2015 found that many successful e-agriculture projects had been implemented, ranging from small-scale enterprises to large-scale regional initiatives, but it also found significant information and capacity gaps and problems with scaling up that hindered achievement of the WSIS ambitions.17 More recently, and to advance matters further, in 2020, the FAO proposed that a new International Platform for Digital Food and Agriculture should be established to recommend strategic policy advice to both government and non-government actors on the digitalization  In this chapter, we distinguish between food and agri-food. Food is a broad all-inclusive term to illustrate all edible products other than medicinal substances whereas agri-food denotes non-medical edible products originating from agricultural production. For clarification, agri-food will be particularly used in the context of the agricultural production segment of the food supply chain. 13  The digital food economy comprises the entire farm to fork foodchain overlaid and connected by digital technologies. The digital food economy and its component parts are discussed in more detail in section 3 of the chapter. 14  The term e-agriculture denotes the application of Information and Communications Technologies (ICTs) to the domain of agriculture and rural development. 15  World Summit on the Information Society, Geneva 2003: Plan of Action. Paragraph 21 available at www​.itu​.int ​/net ​/wsis​/documents​/doc​_multi​.asp​?lang​=en​&id​=1160|0. 16  Pinghui Xiao, Regulating China’s Food E-commerce: Harmonization of Laws, 14 Journal of Food Law and Policy, 304–49 (2018) at 304. 17  Kristin Kolshus et al., E-agriculture 10 Year Review Report: Implementation of the World Summit on the Information Society (WSIS) Action Line C7. ICT Applications: e-agriculture (Food and Agriculture Organization of the United Nations. 2015). 12

474  Research handbook on international food law of the agri-food sector and to promote international cooperation in identifying and responding to the challenges faced when attempting to realize the potential opportunities presented by digitalization.18 The World Bank and the Organisation for Economic Co-operation and Development (OECD) are also promoting greater public–private collaboration with agri-food digitalization to ensure outcomes related to efficiency, equity, and environmental impact are met and that risks related to data privacy, data monopoly, cyber-security, and exclusion of the disadvantaged are addressed.19 However, while endorsing collective governance, neither of these bodies has developed co-regulatory models of the kind China has implemented. At the national and supra-national levels, various jurisdictions are taking steps to support food digitalization and its associated policy and regulatory development. Taking its cue from Executive Order 14017,20 the USDA, for example, has begun investigating how “to improve and reimagine the supply chains for the production, processing and distribution of agricultural commodities and food products.”21 This review, focused on outcomes such as bolstering local and regional food systems, ensuring fair and competitive markets, and promoting the overall health and well-being of the population, will examine how digital transformation can contribute to those goals. More relevantly, the US Food and Drug Administration (FDA) unveiled a blueprint for the “New Era of Smarter Food Safety” in 2020, the year of the outbreak of the COVID-19 pandemic. This blueprint recognizes that the pandemic has created “unprecedented imbalances in the marketplace, changing consumer behaviors and a rise in e-commerce, and challenges in performing inspection and compliance work in FDA’s traditional manner,” and the pandemic has demonstrated the need for more real-time, data-driven, nimble approaches which can leverage technology to create a safer and more digital, traceable food system.22 According to Mr. Frank Yiannas, Deputy Commissioner of Food Policy and Response at the FDA, smarter food safety is people-led, FSMA-based, and technologyenabled.23 Under the blueprint, Yiannas’ vision of “technology enabled” is mainly articulated as new digital technologies like artificial intelligence (AI), IoT, and blockchain, among others, which are regarded as a solution to “help us predict and prevent food safety problems and better detect and respond to problems when they do occur.”24 Yiannas highlighted that the US would need to embrace the digitalization of the food system.25

 Food and Agricultural Organization of the United Nations, Report of the Council of FAO, 164th Session, CL 164/REP (2020). 19   World Bank Group. 2019, at. 31; OECD, Digital Opportunities for Better Agricultural Policies (OECD Publishing 2019) at. [3.2.4]. 20   Executive Order 14017 on America’s Supply Chains, signed by President Biden on 24 February 2021. 21  USDA Press, USDA Seeks Comments on Food System Supply Chains in Response to President Biden’s Executive Order to Support Resilient, Diverse, Secure Supply Chains, April 21, 2021 22  US Food and Drug Administration, New Era of Smarter Food Safety: FDA’s Blueprint for the Future. (2020), at 1. 23  Thomas Burke, Blueprints to the Future of Food: The New Era of Smarter Food Safety, Forbes (2020), available at www​.forbes​.com ​/sites​/thomasburke​/2020​/07​/20​/ blueprints​-to​-the​-future​-of​ -food​-the​-new​-era​-of​-smarter​-food​-safety/​?sh​= 6c751425252f. 24  US Food and Drug Administration. 2020, at 4. 25  Thomas Burke. 2020. 18

The digital food economy, from food regulation to data governance  475 China is also advancing an ambitious digitization agenda. Driven by burgeoning online trading sales for agricultural products26 and coinciding with considerable investments in ICT infrastructure in its remote regions, China is implementing a Development Plan for Digital Agriculture and Rural Areas 2019–202527 with elements that “include strategic big data implementation, strategy for rural digital transformation, and fostering ‘Internet+’ agricultural modernization.”28 Important aims of the plan are to standardize agricultural product information across the chain, improve traceability and enhance agricultural product quality and safety administration. To that end, the Chinese government aspires to build “a unified data convergence, governance, analysis, and decision-making platform to make available data monitoring and early warning, decision support, and display sharing to provide data support for agricultural and rural development.”29 On May 19, 2015, China’s State Council issued “China Manufacturing 2025.”30 In response to that initiative, China’s Ministry of Industry and Information Technology announced a smart manufacturing pilot demonstration project in the same year. The Wahaha Group and the Yili Group, two of China’s biggest food-producing companies, were selected for the project. Both are dedicated to promoting the deep integration of informatization and industrialization by taking advantage of the industrial internet.31 Policy and strategy development are also being undertaken in the United Kingdom (UK) and the European Union (EU). On April 9, 2019, the UK and 24 EU Member States signed a Declaration on A Smart and Sustainable Digital Future for European Agriculture and Rural Areas.32 Among other things, the Declaration gives digitalization a key role in promoting sustainability goals and developing a performance-based model for a reformed Common Agricultural Policy (CAP).33 The Declaration builds upon earlier initiatives, including the  In 2019, 136.4 trillion RMB ($USD 20.8 billion) of agricultural products were sold on Pinduoduo, one of China’s largest e-commerce platforms facilitating direct farm to consumer sales. See Lee Moore, Rural ecommerce: In China farmers find new ways to grow, SupChina (2020), available at https://supchina​.com ​/2020​/11​/25​/in​-china​-farmers​-find​-new​-ways​-to​-grow/#:~​:text​=Rural​ %20ecommerce​%3A​%20In​%20China​%2C​%20farmers​%20find​%20new​%20ways​%20to​%20grow. Please note readers can see e-commerce, online trading and corresponding notions used frequently and interchangeably in this chapter. For clarification, we would like to acknowledge that there is a necessity for that treatment. In particular, as far as legal analyses relating to China are concerned, e-commerce is a legal term introduced by the E-Commerce Law while online trading by the Food Safety Law, among other pieces of legislation. However, it is beyond the scope of this chapter to examine the development of these notions and related issues. For more information about the aforesaid laws, please see later sections of this chapter. 27  Development Plan for Digital Agriculture and Rural Areas (2019-2025), LEX-FAOC193207 (2019), available at, www​.fao​.org​/faolex​/results​/details​/en​/c​/ LEX​-FAOC193207/. 28  Ibid., 5. 29  Ibid., 20. 30   国务院关于印发《中国制造2025》的通知 [Notice of the State Council on Printing and Distributing the “China Manufacturing 2025”] (Promulgated by the State Council, May 8, 2015, effective May 8, 2015). 31  China-Britain Business Council, Made in China 2025: China Manufacturing in the 21st Century— Opportunities for UK-China Partnership, at 22, available at, www​.mta​.org​.uk​/system​/files​/resource​ /downloads​/ Made​%20in​%20China​%202025​%20Booklet​%20One​.pdf (accessed 7/09/22). 32  European Commission, EU Member States Join Forces on Digitalisation for European Agriculture and Rural Areas, available at https://digital​-strategy​.ec​.europa​.eu​/en​/news​/eu​-member​-states​-join​ -forces​-digitalisation​-european​-agriculture​-and​-rural​-areas. 33  See further, Katrine Soma et al., Research for AGRI Committee—Impacts of the Digital Economy on the Food Chain and the CAP, European Parliament (2019), at 57–68. 26

476  Research handbook on international food law European Innovation Partnership on Agricultural Productivity (EIP-AGRI), which aims to boost the EU’s capacity to innovate by funding “bottom-up” collaboration projects between farmers, advisors, researchers, businesses, government, and NGOs,34 and the EU Farm to Fork Strategy, which aims “to make food systems fair, healthy and environmentally-friendly.”35 Although they focus on sustainability, both of these earlier strategies incorporate elements of digitalization, including the development of tools to help farmers assess smart farming technologies and digital skills capacity building.36 While these strategies are being developed and implemented, digitalization is rapidly becoming embedded along the whole food supply chain.37 This transformation has led to the creation of a digital food economy, comprised of a food economy in which digital technologies are applied to integrate various segments of the food supply chain and in so doing substantially reshape agri-food and food markets. As outlined, some countries like China are making substantial progress in developing national digitalization strategies and embracing the digital food economy, whereas progress in other countries is patchy.38

3. THE DIGITAL FOOD ECONOMY: DEFINITION, COMPONENTS, AND LAYERS The digital food economy is an ecosystem deeply embedded in the food supply chain, which comprises five essential segments: agricultural production, food manufacturing, food distribution, catering, and food import and export.39 The former two segments form the upstream food supply chain, whereas the latter three form the downstream food supply chain. We further propose that within the digital food economy, the food supply chain is overlaid by two digital components: (1) the digital component which is consumer oriented; and (2) the other component which is industrially based. The former component denotes the application of threshold digital technologies like the internet to the downstream food supply chain. Thus, in this component, the internet and other digital technologies are applied to food distribution, catering, and food import and export, enabling easier and more convenient access to foods for consumers. Because it is mainly aimed at facilitating food trade and enhancing the efficiency of food distribution, we have characterized this as largely a consumer internet or food e-commerce. The latter component sees the increasing use of advanced digital technologies like IoT, AI, and blockchain applied to the upstream food supply chain, which mainly serves the purpose  European Commission, About EIP-AGRI, European Innovation Partnership (2019), available at https://ec​.europa​.eu​/eip​/agriculture​/en​/about. 35  European Commission, Farm to Fork Strategy, Food Safety (2020), available at https://ec​.europa​ .eu​/food​/ horizontal​-topics​/farm​-fork​-strategy​_en. 36  See, e.g., Directorate-General for Agriculture and Rural Development European Commission, EIPAGRI: 7 Years of Innovation in Agriculture and Forestry: An Overview of EIP-AGRI Network Results, Addressing Future Challenges, and Many Network Voices from Across Europe (2020), available at https://op​.europa​.eu​/en​/publication​-detail/-​/publication​/83d06141​-5f86​-11eb​-b487​ -01aa75ed71a1​/ language​-en. 37  International Telecommunications Union and the Food and Agriculture Organization of the United Nations, Status of Digital Agriculture in 18 Countries of Europe and Central Asia (2020). 38  Ibid. 39  For a graphic illustration of food supply chain and its segments, see Pinghui Xiao, Journal of Food Law and Policy, (2018), at 303. 34

The digital food economy, from food regulation to data governance  477 of agri-food and food industry, which we call an industrial internet. That said, this does not mean that IoT, AI, and blockchain, among other advanced digital technologies, are only applicable to the upstream food supply chain, as currently, the internet and digital technologies are embedded in the whole food supply chain to support both industry and consumers. Therefore, it is more accurate to say that digital technologies converge on all the segments of the food supply chain, blurring the boundaries of the consumer internet and the industrial internet. The digital food economy differs from its non-digital traditional counterpart in that it operates across tangible food products and intangible data throughout the food supply chain. The manufacture and distribution of tangible food products within the digital food economy raise safety and public health concerns.40 In addition, other legitimate public interests relating to food quality, food fraud, and food production sustainability apply to agriculture, food manufacture, and food distribution.41 For those reasons, we need effective food regulation.42 One aspect that this chapter will therefore consider is how the digital food economy might be best regulated from the perspective of food safety and quality. We note that network and information systems, electronic communications networks, and services play a vital role in upstream and downstream food supply chains. These systems generate vast amounts of data. In upstream, data generated through IoT and remote sensors increasingly help agricultural production and food manufacturing. For downstream, data collected and processed by food e-commerce platforms have also become the backbone of food e-commerce. Information and data keep the food economy running and support the functioning of the whole food supply chain. Simply put, increased digitization improves productivity for food industries and brings more connectivity between consumers and food businesses. However, it also increases the risk of data-related market failure related to data manipulation, ownership of data, personal privacy, cybersecurity, and even national security. To mitigate those risks, governance regarding the accessibility, use, veracity, and security of digital food data also requires attention. Therefore, we contend that there are two layers in regulating the digital food economy: (1) food regulation; and (2) data governance. Both layers have unique characteristics compared with the non-digital food economy.

4. THE FIRST LAYER OF THE DIGITAL FOOD ECONOMY: FOOD REGULATION IN CHINA Food e-commerce is the most public-facing part of the digital food economy, and nowhere is this more true than in China. According to a report released by the China Academy of Information and Communications Technology, China’s digital economy stood at 35.8 trillion   Carol Ballard, Food Safety (London, England : Britannica Digital Learning. 2015), Ch 1; Norman N. Potter & Joseph H. Hotchkiss, Food Science (New York, NY: Springer US 5th ed. 1995), Ch 23. 41  For overall definitions of and interrelationship between food safety, food quality, and food fraud, please see in general, John W. Spink, Food Fraud Prevention Introduction, Implementation, and Management (Springer 1st ed. 2019). 42   Giulia Bazzan, Effective Governance Designs of Food Safety Regulation in the EU: Do Rules Make the Difference? (Cham: Springer International Publishing AG. 2021), Ch 1; Ballard. 2015, Ch 8. 40

478  Research handbook on international food law yuan ($USD 5.5 trillion) in 2019,43 second only to the United States.44 E-commerce is one of the strongest sub-sectors of the digital economy, enjoying a double-digit growth rate over the past ten years. It is said that almost 60% of global e-commerce transactions take place in China. The value of China’s e-commerce transactions is larger than that of the next five developed countries combined, including the US, the UK, Germany, France, and Japan.45 As of December 2020, 74 Chinese e-commerce companies have gone public in stock exchanges in the US and China,46 more than ten of which are running food e-commerce, representing around 20%.47 The success of China's digital economy can be attributed to forward-looking government policies to promote ubiquitous access to the internet and other digital technologies. Another factor is that many Chinese technology companies adapt to innovative digital models tailored to the local market.48 No matter if food is sold in physical shops or online, ensuring food safety is paramount. However, food safety is a big challenge for food e-commerce. Therefore, in this section, we will explore the unique features of China’s food e-commerce system, its market failures, and China’s regulatory approach to tackle those market failures. 4.1 Features of China’s Food E-Commerce Following extensive observation and analysis of how China’s food e-commerce has developed over the past ten years, it appears that China’s food e-commerce can best be framed as “Three Doubles: Double Virtualities, Double Worlds, and Double Identities.”49 Framing food e-commerce in this way identifies how virtual and physical food systems are entwined in the digital food economy and highlights the challenges faced by policymakers and regulators when designing and enforcing regulation that seeks to promote food safety and quality when  China, State Council Information Office, China’s Digital Economy Reaches 35.8 Trillion Yuan in 2019, Nov 24, 2020, available at http://english​.scio​.gov​.cn ​/ WIC2020​/2020 ​-11​/24​/content​_76942678​ .htm (accessed 8/09/22). 44  The digital economy accounted for 36.2% of China’s GDP, which contributed 67.7% to its GDP growth in the same year; see further: Yubo Chen, Future of China’s Digital Economy, China Daily (2021), available at www​.chinadaily​.com​.cn​/a ​/202101​/28​/ WS6​011f​e41a​3102​4ad0​baa5911​ .html. 45  Chuanman You & Qingxiu Bu, Transformative Digital Economy, Responsive Regulatory Innovation and Contingent Network Effects: The Anatomy of E-Commerce Law in China, 31 European Business Law Review (2020), at 735–37. 46  Yihan Ma, E-Commerce in China: Number of Listed E-Commerce Companies in China from 2018 to 2020, Statista (2022). 47   Big food e-commerce platforms which are publicly listed include Alibaba, JD​ .co​ m, Meituan, Pinduoduo, VIP​ .co​ m, Suning, babytree, gome, and kjt​ .co​ m, among others. See 2018年度中国电商上市公司数据报告 [China’s E-Commerce Public Listed Company Data Report 2018]. 48  Yubo Chen, 2021. 49  The authors would like to acknowledge that the idea of “Three Doubles” is an evolving concept developed from many inspiring conversations and enlightened people. It was first developed in the 2018 Summer School on Food Law & Policy in the University of Eastern Finland (UEF), which was organized by UEF in partnership with Guangzhou University. During the Summer School, in a podcast featuring Prof. Katja Lindroos, Dr. Nguyen Ho Bich Hang of UEF and Dr. Pinghui Xiao, this idea was discussed. Then it was further discussed and developed in the Food Fraud Workshop gathered by the Food and Agriculture Organization of United Nations (FAO), in which Dr. Xiao was invited to give a presentation on China’s food e-commerce laws in Nov 2019. 43

The digital food economy, from food regulation to data governance  479 these systems intersect. Although the focus of this discussion is on China, framing the problems that can arise in the digital food economy in this manner can also assist policymakers and regulators in other countries. 4.1.1 Double virtualities Double virtualities refer to food products or services traded as virtual information rather than tangible things. When trading on the internet, traders do not have to present themselves to each other; they can make their decisions anytime and anywhere. The food products they trade appear as information rather than as samples. However, double virtualities make information asymmetry problematic. Information can be intentionally distorted for the purpose of economic gain, and because the relationship between the parties is more attenuated online, that information is much harder to verify. For instance, food business operators could provide fake licenses to pretend to be licensed qualified operators selling food over the internet. We often see that this is the case as far as online restaurant and catering services are concerned.50 Sometimes, in terms of highly regulated food products like alcohol, fraudulent information is provided to consumers. China has passed minor protection laws that prevent alcohol retailers from selling alcohol to those under 18 years old. Meanwhile, China’s alcohol e-commerce sales are booming, posing a compliance challenge for alcohol business operators.51 Alcohol can be easily purchased over the internet by anyone because operators establish few agechecking mechanisms, and even where present, underage youths can circumvent them by providing fraudulent information.52 In addition, information about food products appearing online is inherently insufficient or misleading. For instance, it is technically impossible to make public the actual expiry date of each food product to be sold. In physical store shopping, consumers can check and know before purchasing, while for foods purchased over the internet, consumers will learn about the expiry date only when the food product is shipped and received.53 Furthermore, food e-commerce provides a perfect venue for unlawful claims. Health foods claiming to cure illnesses are a classic example, and the internet marketplace has exacerbated this illegal practice.54

 Juanjuan Sun & Jasmin Buijs, Online Food Regulation in China: The Role of Online Platforms as a Critical Issue, 13 European Food and Feed Law Review, 503 (2018), at 505. 51  Pinghui Xiao, China’s Wine and Liquor Laws in the “Internet Plus” Age, 1 Journal of Wine and Spirits Law, 11 (2018). 52  According to Hu et al., underage consumption of alcohol in China is commonplace, but it “receives insufficient attention and is poorly regulated”: Aqian Hu et al., The Transition of Alcohol Control in China 1990–2019: Impacts and Recommendations, 105 Int J Drug Policy, 103698–103698 (2022), at 4. 53  Pearly Neo, China Food Safety Sweep: Government Launches Three-Month Crackdown on Online Counterfeits, Fake Certifications, Food Navigator Asia, August 4, 2021, available at www​.foodnavigator​-asia​.com ​/Article​/2021​/08​/04​/China​-food​-safety​-sweep​- Government​-launches​-three​-month​ -crackdown​- on​- online​- counterfeits​-fake​- certifications​? utm ​_ source​= copyright​&utm ​_ medium​ =OnSite​&utm​_campaign​=copyright. 54   食品保健食品欺诈和虚假宣传典型案件公布 [Typical cases of food fraud and false advertising of health food were announced], 国家市场监督管理总局 [State Administration for Market Regulation] (2018), available at www​.gov​.cn​/fuwu​/2018​-10​/25​/content​_ 5334262​.htm. 50

480  Research handbook on international food law 4.1.2 Double worlds The concept of double worlds encapsulates food e-commerce crossing two worlds, with one representing physical food products and the other denoting virtual transactions. The seller and buyer in e-commerce do not necessarily see each other in real life, though they communicate with each other in the virtual world. Consumers read virtual information about food products from the internet but receive the goods in the physical world. These two worlds are beset with legal complexity. Whereas ensuring food safety is a paramount focus of food regulation, virtual transactions are also regulated by an increasing number of rules around data governance. Food safety from a legal point of view is already a complex area involving “agricultural production, food trade, nutrition, public health, social welfare and technological innovation … (where) different areas, such as ethics, science, politics and law, converge.”55 Overlaying that complexity with data governance, including regulations addressing cybersecurity, data security, and privacy, introduces greater duality and complexity.56 4.1.3 Double identities The concept of double identities is particularly unique to Chinese food e-commerce law, which recognizes that food e-commerce platforms serve as both regulators and the subjects of regulation. As discussed in the following, the concept of double identities signifies that China has created a brand-new framework for its food e-commerce regulation. China’s food e-commerce is inextricably tied to the platform business model, in which online food business operators, rather than establishing their own websites for selling food online, sell food via third-party online platforms.57 With tens of thousands of online food business operators, including SMEs running food businesses within these platforms, these online platforms have become economically powerful. Consequently, from the perspective of Chinese policymakers online platforms are required to take on more responsibilities and duties. Simply put, food authorities regulate food e-commerce platforms, and meanwhile, they are required to monitor online food business operators.58 4.2 Market Failure Arising from Food E-Commerce: Food Safety Concerns Like its traditional counterpart, the digital food economy also experiences market failure. Market failures particularly visible in China include food adulteration and the failure to implement robust Hazard Analysis and Critical Control Point (HACCP) control measures in food production and catering. For several reasons, these failures are exacerbated in the digital food economy. These reasons include the scale of the distribution afforded by digital food platforms, the additional attenuation along the food supply chain created by the internet (for example, online cooked meals may be delivered many kilometers away from where they were prepared), and the greater opacity between supply chain participants and consumers when

 Miguel Ángel Recuerda Girela, Food Safety: Science, Politics and the Law, 1 European Food and Feed Law Review, 33 (2006), at 33. 56  Issues related to data governance are explored in more detail in section 5 of this chapter. 57  Sun & Buijs, European Food and Feed Law Review, (2018), at 503. 58  Further analysis in this regard will be done in the section following this one. 55

The digital food economy, from food regulation to data governance  481 purchases are initially made. The power of large-scale digital platforms to influence the market has also been raised as a concern.59 Problems relating to the online marketing of health food exemplify market failure related to food adulteration. Economically motivated adulteration has long posed daunting challenges to food regulation, given “increasing imports, sophisticated technology, (and) complexities in the supply chain.”60 An ever-increasing variety of food supplements, regularly giving rise to serious health concerns, are made available online. Violators intentionally add pharmaceuticals or other substances to food to claim to cure all kinds of illnesses. Given the range of such products available and the fast growth of online sales of food, this practice is of great concern in China. These foods are often sold over the internet to avoid capture through traditional e-commerce platforms like Taobao and social media platforms like WeChat.61 As for online catering (online food delivery), in 2016, a news report revealed that many restaurants on Ele​.​me allowed unlicensed filthy kitchens to operate catering services within the platform. It also found that addresses and images of many restaurants as shown in the platform were fabricated. The employees of the platform even helped to fictionalize information about non-existing restaurants creating a public outcry for government intervention in the platform and so-called “black restaurants” or “ghost restaurants.”62 As the data reveals, the number of e-commerce lawsuits in 2017 increased by more than 40%, far higher than the average lawsuit growth rate of 13%, and more than half of these e-commerce lawsuits are related to food products.63 Eighty-three percent of food e-commerce disputes are associated with online food platforms.64 4.3 China’s Approach: Let Platforms Monitor As a result of the market failures we have outlined, food e-commerce is an area of major policy concern for China, and so the Chinese Government has created specific laws targeting third-party online food trading platforms. Reference to third-party online food trading platforms was first introduced in the 2015 Amendment to the Food Safety Law (hereinafter referred to as the 2015 FSL Amendment).65 In 2018, China enacted the E-Commerce Law, the first of its kind, which  Sun & Buijs, European Food and Feed Law Review, (2018), at 510.   Michael Roberts, Food Law in the United States (Cambridge University Press. 2016), at 43. 61  As revealed by the China’s State Administration for Market Regulation, in most typical cases of food fraud relating to health food, those health food products were normally sold over the internet through all kinds of platforms including both traditional e-commerce platforms and social media platforms. See 食品保健食品欺诈和虚假宣传典型案件公布 [Typical cases of food fraud and false advertising of health food were announced], 2018. 62  See Mandy Zuo, “Black Restaurants”: How China’s Online Delivery Websites Are Trying to Put Concerns over Food Safety behind Them, South China Morning Post (2016), available at www​ .scmp​.com ​/news​/china ​/society​/article ​/2020326​/ black​-restaurants​-how​- chinas​- online ​- delivery​ -websites​-are​-trying. See also, 高琰森 [Gao Yansen], 饿了么惊现“幽灵餐厅” 贵阳外卖族必看 [Guiyang consumers have to be fully alert to ghost restaurants in Ele​.​me Platform], Guiyang Wang (2016), available at www​.gywb​.cn​/content​/2016​- 09​/12​/content​_ 5254298​.htm. 63  Pinghui Xiao, Journal of Food Law and Policy, (2018), at 306. 64  Ibid., at 306. 65   中  华人民共和国食品安全法 [Food Safety Law of the People’s Republic of China] (promulgated by the Standing Comm. Nat’l People’s Cong., Feb. 28, 2009, rev’d Apr. 24, 2015, effective Oct. 01, 2015), 59

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482  Research handbook on international food law also applies to food e-commerce. Among other things, this law established the notion of an “e-commerce platform business” to denote a legal person or an organization without the status of a legal person, which, in e-commerce, provides both or multiple parties to trading with services, such as online places of business, match-making, and releasing information, for them to independently conduct trading activities.66 Combined, the two pieces of legislation constitute China’s relatively systematic approach to food e-commerce regulation. In a nutshell, at the heart of China’s food e-commerce regulation is the regulation of online platforms that host merchants selling food, including Taobao, Tmall, JD, and Meituan. Taobao is known as the eBay of China, whereas Tmall and JD are more analogous to Amazon.67 Under the above laws, all the aforementioned platforms are mandated with powers to and are obligated to supervise food business operators within their online marketplaces. If the marketplaces fail to ensure those operators comply with food and drug safety, the marketplaces are subject to a penalty ranging from fines to suspension or revocation of licenses.68 To date, the efficacy of these laws has not been reviewed, so the platforms’ role in co-regulating Chinese food safety remains an open question.69 Nonetheless, as public monitoring of China’s vast array of small-scale food producers remains difficult and costly and regulatory efforts remain fragmented and in some instances undermined by corruption, the co-regulatory approach is seen as a means of enhancing regulatory effectiveness.70 Under the 2015 FSL Amendment, the general monitoring responsibilities comprise four quasi-regulatory tasks assumed by platforms. First, platforms will have to conduct name registration for food business operators. Second, most Chinese food businesses will have to apply for proper business licenses before commencing operations, so the platforms will have to ensure food business operators have already obtained proper food licenses from authorities. Third, they are required to monitor food business operations and report any breaches that they discover. Fourth, when a serious breach is uncovered, platforms will have to stop providing platform access to food business operators. Measures enacted by the former China Food and Drug Administration (CFDA) substantialize the foregoing four obligations by providing detailed rules.71 Article 62. Please note, the Law has been amended for several times (e.g., in 2015, 2018 and 2021) since it was firstly introduced in 2009. The 2018 FSL Amendment and 2021 FSL Amendment only involve some minor changes on the basis of the 2015 FSL Amendment; however,they made no changes to the 2015 FSL as far as online food trading is concerned. This chapter mainly used 2015 FSL Amendment for its analysis, as it is an iconic Food Safety Law version in terms of its introducing China’s first online trading provisions. 66   中华人民共和国电子商务法 [E-Commerce Law of the People’s Republic of China] (promulgated by the Standing Comm. Nat’l People’s Cong., Aug. 31, 2018, effective Jan. 1, 2019), Article 9. 67  Pinghui Xiao, Legislative Development of Food E-Commerce Regulation in China and Its Challenges, 13 European Food & Feed Law Review, 313 (2018), at 314. 68  See, e.g., 中华人民共和国食品安全法（2015年修订）[Food Safety Law of the People’s Republic of China (Amended in 2015)], Article 131; 中华人民共和国电子商务法 [E-Commerce Law of the People’s Republic of China], Article 83. 69  Sun & Buijs, European Food and Feed Law Review, (2018), at 510. 70  Yi Kang, Food Safety Governance in China: Change and Continuity, 106 Food Control, 106752 (2019). 71  In 2018, China announced a grand ambitious government reorganization plan, in which former CFDA was dissolved and replaced by a new agency. See Pinghui Xiao & Xiaoman Liu, The Enactment of the E-Commerce Law in China and Its Impact on Food E-Commerce, 14 European Food & Feed Law Review, 257 (2019), at 259–60.

The digital food economy, from food regulation to data governance  483 Both the 2015 FSL Amendment and the E-Commerce Law create a comprehensive liability mechanism comprised of tort, administrative and criminal liabilities for online food trading platforms. (1) For tort, under certain circumstances platforms bear joint and several liability. (2) For administrative liability, penalties like fines and license revocation are established for platforms. (3) In principle, platforms can be criminally liable for criminal liability, but detailed rules are yet to develop. The adoption of China’s unique regulatory framework for food e-commerce is justified on two main grounds: social co-governance and a need to balance public and private interests.72 To establish a scientific and stringent supervision and administration system, the 2015 FSL Amendment stipulates that food safety shall first be subject to prevention, risk management, full process control, and social co-governance.73 Social co-governance aims to maximize stakeholder participation in food safety regulation. By empowering those directly working within the food distribution system to engage in food business monitoring, social co-governance has been characterized as a more transparent and effective means of securing compliance than relying upon limited government regulatory capacity alone.74 Online private platform operators such as Taobao and JD​.c​om engage in private regulation75 and, in turn, are regulated by public agencies, like the State Administration for Market Regulation (SAMR) in China.76 To further explore this unique form of public–private co-regulation and to determine the degree to which online platforms should be engaged in regulation, the balance between public and the private interest requires consideration. Most food business operators in China are SMEs, which creates great opportunities for third-party platforms like Alibaba, offering an online marketplace facilitating direct connection with millions of potential consumers. The success of this form of direct marketing has led to diversification and proliferation. From Alibaba, Taobao came into being to provide a solution for food SMEs. Gradually, Taobao became the largest C2C platform selling products ranging from clothes to home appliances and food. Shortly thereafter, Alibaba diversified further, creating the Tmall platform. Tmall only allows bigger players, while Taobao still focuses on small ones. Product ranges available on Tmall are almost the same as Taobao. Foods become ever-increasing goods sold in Tmall.77 While this diversification and proliferation generated prosperity for both online platforms and food business operators, it diminished Chinese food authorities’ ability to regulate effectively as they lacked access to information regarding online food business operators and did not control online food trading data. Online food safety became threatened by the sheer number of online food businesses and concomitant uncontrollable dataflow. In the beginning, the Chinese authorities were inclined

 Michael T Roberts & Ching-Fu Lin, 2016 China Food Law Update, 12 Journal of Food Law & Policy, 238 (2016). 73   中华人民共和国食品安全法（2015年修订）[Food Safety Law of the People’s Republic of China (Amended in 2015)], Article 3. 74  Linhai Wu et al., Social Co-Governance for Food Safety Risks, 10 Sustainability, 4246 (2018). 75   中华人民共和国食品安全法（2015年修订）[Food Safety Law of the People’s Republic of China (Amended in 2015)], Article 3. 76  Pinghui Xiao & Xiaoman Liu, European Food & Feed Law Review, (2018). 77  Pinghui Xiao, China’s Rising Online Food Trading: Its Implications for the Rest of the World, in Resource Security and Governance: Globalisation and China’s Natural Resources Companies (Xinting Jia & Roman Tomasic eds., 2017), at 128. 72

484  Research handbook on international food law to introduce a special licensing system for online food operators.78 However, this idea was rejected as it did not fit with China’s State Council’s streamlined regulation policy. To better regulate online food safety, Chinese food authorities pressed online platforms to disclose information and data about online food business operations. According to the Chinese authorities, this was a legitimate request as they needed this to ensure online food safety for the public interest. However, the online platforms were reluctant to share this information with authorities raising private interests like trade secrets, among other issues. The online platforms feared that if their business operating data was disclosed to Chinese authorities, it might be leaked to competitors. Finally, the government and online platforms reached a compromise. The Chinese authorities agreed to respect the data sovereignty enjoyed by online platforms, but in return, online platforms were required to assume certain regulatory responsibilities.79 In other words, there was a trade-off between making online food trading more accessible and making online platforms assume responsibility for food. Making online food trading more accessible is greatly beneficial to online food business operators and platforms and is private interest-oriented, whereas making online platforms take more food safety responsibilities is public interestoriented. A certain balance had to be reached between market facilitation and regulatory efficacy. Ultimately, in China, online platforms became the center of the balancing test.80 When assessing China’s social co-governance model it is important to note that co-regulation is a feature of many other countries’ food safety regimes. Globally there appears to be a consensus that collaborative engagement from government, business, and consumers is essential to achieve effective compliance monitoring and enforcement.81 Sole reliance on top-down command and control style regulation has lost favor and has been replaced with an embrace of responsive regulation.82 However, by contrast with other co-regulatory regimes like those operating in the US and the EU, what is unique about China’s approach is its focus on the platform economy and its use of those platforms as quasi-regulators. Other countries adopting co-regulation typically adopt the imposition of self-regulated risk management by food producers, distributors and retailers complemented by state-based audit and enforcement. That approach seems to have been unsuccessful in China. Yet, whether the focus on platforms will be more effective than broad-based technology-neutral obligations directly applied to producers and sellers is still to be ascertained. The transposability of China’s approach to other regimes remains an open question, given that China’s approach was driven by huge growth in the economic power of the platform economy and the weakness of its pre-existing enforcement regime. On the other hand, platform behemoths like Amazon are equally powerful elsewhere, and market failure apropos food safety and quality is not a uniquely Chinese problem.

 This is based on interviews with platforms. Further details can be provided on request.   肖平辉 [Pinghui Xiao], “互联网+”时代 新《食品安全法》大考 [2015 Amendment to Food Safety Law under “Internet Plus”], 深圳特区报 [Shenzhen Special Zone Daily], 2016. 80  Ibid. 81   Terry Marsden et  al., The new regulation and governance of food: Beyond the food crisis? (Routledge 2009), Ch 11. 82  Ibid. 78

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The digital food economy, from food regulation to data governance  485

5. THE SECOND LAYER OF THE DIGITAL FOOD ECONOMY: DATA GOVERNANCE We now consider the second layer of regulating the digital food economy, namely data governance, which also poses a substantial challenge to the digital transformation of the food sector. Concerns raised are addressed one by one in the following83 and again reflect the need to achieve an appropriate balance between the private interests of food sector participants with the public interest in maintaining an accessible and competitive market in food data, which will in turn support efficient and sustainable food production. However, unlike the previous section, which focused relatively exclusively on China’s innovative co-regulatory approach to food safety, this section takes a broader approach and considers issues related to data governance applicable in China and other jurisdictions. 5.1 Competition and Data Monopoly Disquiet has been expressed that increasing digitization in the agri-food industry may also increase the concentration of market power among agri-businesses, platform providers, and data aggregators.84 Unchecked, a highly concentrated market can impede competition and lead to low farm incomes, unduly high food prices, or lower food quality,85 ultimately adversely impacting population health.86 Putting aside digitization, there is already considerable consolidation within global agribusinesses and food wholesalers and retailers.87 However, the degree of market concentration varies from region to region and sector to sector. For example, high levels of market concentration are reported for packaged food products, EU fast service restaurants and supermarkets

 Please note that the following list of headings for the purpose of data governance is not meant to be exhaustive. 84  Sarah Rotz et  al., The Politics of Digital Agricultural Technologies: A Preliminary Review, 59 Sociologia ruralis, 203 (2019), at 208–09; World Bank Group. 2019, at 23–24; Tom Verdonk, Planting the Seeds of Market Power: Digital Agriculture, Farmers’ Autonomy, and the Role of Competition Policy, in Regulating New Technologies in Uncertain Times (Leonie Reins, ed. 2019). 85  Iris Van Dam et  al., A Detailed Mapping of the Food Industry in the European Single Market: Similarities and Differences in Market Structure across Countries and Sectors, 18 International Journal of Behavioral Nutrition and Physical Activity, 1 (2021), at 2. 86   Richard J Sexton & Tian Xia, Increasing Concentration in the Agricultural Supply Chain: Implications for Market Power and Sector Performance, 10 Annual Review of Resource Economics, 229 (2018), at 230; Xiaowei Cai et  al., Food Retail Market Structure and Produce Purchases in the United States, 34 Agribusiness, 756 (2018)—noting lower levels of fruit and vegetable consumption with more highly concentrated supermarkets. 87  Koen Deconinck, Concentration and Market Power in the Food Chain (OECD Food, Agriculture and Fisheries Papers 2021). 83

486  Research handbook on international food law in the EU,88 US meatpacking89 and corn seed,90 and China’s fresh food e-commerce market.91 By contrast, low concentration levels are typically found at the farm production level.92 At this point, however, it is difficult to determine whether digitization of the agri-food sector will increase market power or be used to offset market concentration and aid competition by broadening market access from farm to fork. In terms of the latter, governments in several countries, including India and Ethiopia, have instituted online agri-platforms that connect farmers to food processors and wholesalers to facilitate more transparent pricing and lower farmer bidding costs. Farmforce93 is an example of a non-governmental platform that helps smallholder farmers by supporting cooperatives and other out-grower schemes to manage supply chain traceability, risk profiling for access to finance, and implementing precision agriculture techniques. In other cases, private platforms like China’s Pinduoduo facilitate direct sales between small-scale farmers and consumers.94 Studies have shown that such platforms can increase returns for farmers supplying high-quality products.95 By contrast, in early 2021, China’s market regulator, the SAMR brought Meituan, one of China’s largest privately held e-commerce food delivery platforms, to brook for alleged anti-competitive behavior. The SAMR claimed that Meituan had forced exclusivity arrangements with the restaurants and other food producers using its platform. Following a SAMR

 Van Dam et al., International Journal of Behavioral Nutrition and Physical Activity, (2021). Similar levels of high concentration among supermarket chains are observed in the United States, see further Sexton & Xia, Annual Review of Resource Economics, (2018), at 233–34. 89  Deconinck, 2021, at 8. 90  Bethany K. Sumpter, The Growing Monopoly in the Corn Seed Industry: Is It Time for the Government to Interfere?, 8 Texas A&M Law Review, 633 (2021); Koen Deconinck, Concentration in Seed and Biotech Markets: Extent, Causes, and Impacts, 12 Annual Review of Resource Economics, 129 (2020). 91  Yihan Ma, Market Share of Five Leading Fresh Food E-Commerce Providers in China from 2018 to 2020, Statista (2021), available at www​.statista​.com​/statistics​/1026906​/china​-fresh​-food​ -ecommerce​-market​-concentration​-rate/. 92  Deconinck, Concentration and Market Power in the Food Chain, 2021, at 4. 93  Farmforce, Homepage, available at https://farmforce​.com/. 94  Pinduoduo, Home Page, available at https://en​.pinduoduo​.com/. In 2020, Pinduoduo processed more than a billion orders in agricultural produce, see Moore. 2020. In 2022, in the aftermath of SAMR’s competition law enforcement to Meituan, among other digital platforms, China amended its Anti-Monoply Law for the first time and introduced some provisions to tackle competition issues relating to the digital economy. These provisions lay a great foundation for data monopoly and competition related to digital economy. For instance, Article 9 of the Law stipulates, “an undertaking shall not engage in any monopolistic conduct prohibited by this Law by utilizing data and algorithm, technology, capital advantage, or platform rules, among others.” Article 22 further states that “An undertaking with a dominant market position shall not engage in any conduct of abusing a dominant market position by utilizing data and algorithm, technology, and platform rules, among others.” As of writing, however, there are no specific rules to detail how these new provisions can be implemention. See 中华人民共和国反垄断法 [Anti-Monopoly Law of the People’s Republic of China] (promulgated by the Standing Comm. Nat’l People’s Cong., Aug. 30, 2007, effective Aug. 1, 2007). 95   Retsef Levi et  al., The Impact of Unifying Agricultural Wholesale Markets on Prices and Farmers’ Profitability, 117 Proceedings of the National Academy of Sciences, 2366 (2020); International Finance Corporation, Working with Smallholders: A Handbook for Firms Building Sustainable Supply Chains (Washington, DC. 2019), at 187–88. 88

The digital food economy, from food regulation to data governance  487 investigation, Meituan pledged to cooperate and ensure it complied with China’s AntiMonoply Law.96 China’s SAMR has also been active in investigating so-called “big data price discrimination,” where online food platforms like Meituan are accused of offering different prices to different users based on their individual features ascertained from the data the platform has collected about them.97 Such activity has been characterized as an abuse of dominant market position by the SAMR.98 Others are concerned that the aggregation of large agri-food data sets drawn from material collected by IoT farm equipment suppliers, multi-national seed and chemical companies, advisory firms, and brokers has “de facto monopolized” critical data assets into the private hands of a few internet behemoths.99 To counter this market power and to take advantage of the innovation potential and synergies created by aggregating data sets, some are pushing for mandatory open-access data arrangements or, in the alternative, for governments to step in and establish open-access big data repositories.100 Nevertheless, the evidence that digital monopolies harm competition in the agri-food sector is again far from clear. Competition authorities like China’s SAMR, India’s Competition Commission, and the EU Commission do appear to be aware of the risks and have been responding accordingly when mergers and other potentially anti-competitive activities emerge. The treatment of the merger in 2017–2018 between Bayer and Monsanto by various competition authorities demonstrates how these authorities have responded. The merger created the largest global integrated seed and pesticide entity. At the time of the merger, Monsanto supplied tools for precision seed planting and weather analytics, while Bayer marketed digital tools for soil analysis, pest control, weather analytics, and crop yield. As a result of these substantial overlaps in digital agriculture business, in China, India, and the EU, the new Bayer conglomerate was required to grant a license to its entire agriculture data portfolio, digital farming products, and platforms.101 In the United States, the new conglomerate was required to divest its digital agriculture business to rival BASF.102 Moreover, apart from the scrutiny of competition authorities, it appears that the threat of data monopoly is being counterbalanced by the embrace of open access policies for agricultural data held by government103 and the establishment of various farm data co-operatives.  Chu Daye & Wang Bozun, Meituan Could Face Serious Penalties after Antitrust Probe: Experts, GLOBAL TIMES, April 26, 2021.  97  For an outline of the problem and the competition issues it raises see Wei Han et al., Algorithmic Price Discrimination on Online Platforms and Antitrust Enforcement in China’s Digital Economy, 18 ANTITRUST SOURCE, 1 (2018).  98  China, Interim Provisions on Prohibiting Abuse of Dominant Market Position, Art 19.  99  Katarzyna Kosior, From Analogue to Digital Agriculture. Policy and Regulatory Framework for Agricultural Data Governance in the EU, Governance, Regulation and Economic Integration Conference (2019), at 7. 100  Marie-Agnes Jouanjean et  al., Issues around Data Governance in the Digital Transformation of Agriculture: The Farmers’ Perspective (OECD 2020), at 21–22. 101  Reji K. Joseph, Innovation, Patents, and Competition in Modern Agriculture: A Case Study of Bayer and Monsanto Merger, 66 The Antitrust Bulletin, 214 (2021); Adrian Emch & Lin Xie, Chinese Merger Control in the Agriculture Sector, CPI Antitrust Chronicle (2020); European Commission, DG Competition, DG CASE M.8084—Bayer/Monsanto. 102   US v Bayer AG, Monsanto and BASF SE, No. 18-1241 (United States District Court, District of Columbia) Unreported 2019 WL 1431903 (2019). 103  See, e.g., EU, Directive 2019/1024 of the European Parliament and of the Council of 20 June 2019 on open data and the re-use of public sector information and 44 U.S.C. § 3511.  96

488  Research handbook on international food law Examples of the latter from the US include the Grower Information Services Cooperative and the Farmers Business Network.104 Copa-Cogeca,105 a coalition of over 22 million farmers and farmer cooperatives in the EU, and JoinData106 from the Netherlands offer similar services. Government support is also provided for open-access data sharing through initiatives such as the EU’s Support Centre for Data Sharing107 and the USDA’s AgData Commons.108 5.2 Intellectual Property Rights and Data Ownership As we have outlined, agri-food data is collected from numerous actors and agencies, which may or may not be within the same jurisdiction. The diffuse nature of these sources of data may make it difficult to determine data ownership and other intellectual property rights. The first difficulty parties are likely to encounter when attempting to ascertain their legal rights and obligations regarding agri-food data relates to whether the law recognizes data ownership. There is a view that the law does not recognize any property interest in data109 and that attempts to implicate ownership where data has been collected, manipulated and analyzed by multiple parties may render a property analysis unduly complex or, in the alternative, may not adequately reflect the asset value of the data to each of the parties involved.110 Other skeptics note that to access IoT equipment, online data-sharing platforms, and blockchains, users are usually required to sign a technology use agreement that entails their consent to the collection, use, and disclosure of business and personal data.111 Such terms may override the ability to control data that may otherwise accrue to farmers and food producers through ownership. Accordingly, some commentators have argued that it would be better to formulate binding rights to access, re-use, and transfer data rather than focusing on ownership.112 In any event, it seems unlikely that farm data will qualify for protection under patent, trademark, or copyright law.113 However, some US scholars argue that the law should reflect the commonly held view that farmers “own” the data generated by their own farming activities and have suggested that such data should be protected as a trade secret.114 While attractive, there are conceptual difficulties in classifying farm data in this way. First, not all farm data  The nature of these organisations and the data curating and analytics that they offer is outlined in Jouanjean et al. 2020, at 17. 105  Copa-Cogeca, Home Page, available at https://copa​-cogeca​.eu/. 106  JoinData, Home Page, available at https://join​-data​.nl​/en/. 107  Support Centre for Data Sharing, Home Page, available at https://eudatasharing​.eu/. 108  USDA, AgData Commons, Home Page, available at https://data​.nal​.usda​.gov/. 109  Jouanjean et al. 2020, at 12; Schroeder et al. 2021, at 148. 110  Jouanjean et al. 2020, at 13. 111  Leanne Wiseman et  al., Farmers and their Data: An Examination of Farmers’ Reluctance to Share their Data through the Lens of the Laws Impacting Smart Farming, 90 NJAS-Wageningen Journal of Life Sciences, 100301 (2019), at 2 & 7; Isabelle Carbonell, The Ethics of Big Data in Big Agriculture, 5 Internet Policy Review, 1 (2016), at 5. 112   Schroeder et al. 2021, at 148; Wiseman et al., NJAS-Wageningen Journal of Life Sciences, (2019), at 8. 113  Ashley Ellixson et al., Legal and Economic Implications of Farm Data: Ownership and Possible Protections, 24 Drake Journal of Agricultural Law, 49 (2019), at 56; Schroeder et al. 2021, at 148. 114  Ellixson et al., Drake Journal of Agricultural Law, (2019), at 56; Brian Leopold, Forecasting Change: Examining the Future of Agricultural Data Processors and Ownership Rights, 44 Journal of Corporation Law, 403 (2018), at 410–12. 104

The digital food economy, from food regulation to data governance  489 is generated by the farm business. Sometimes data will be sourced by remote sensing equipment and drones. Second, whether data constitutes a trade secret is affected by a set of interrelated factors, including whether confidentiality about the information has been maintained, the value of the information to competitors, the investment made by the farmer in creating the information, and the ease with which it might be copied by others.115 Given the varying weight that might be attached to each of these factors, the classification of farm data as a trade secret is far from certain. Notwithstanding that copyright will not apply to the data itself, some jurisdictions like Australia and the US recognize that database compilation can be subject to copyright protection.116 Nonetheless, there is doubt that copyright applies to data compilation absent any originality generated by human means,117 that is, simply unstructured digital data collected from multiple nodes. A few jurisdictions, including the EU,118 recognize a sui generis right in databases that extends to data if the data collection involves substantial investment. The right prohibits others from extracting or re-using a substantial part of the database. However, whether the Directive applies to big data sourced from multiple points is open to question.119 At the time of writing, the EU Directive was under review to determine its fitness for purpose, and to that end, in February 2022, the European Commission proposed a new Data Act. The proposed Data Act has the “aim of ensuring fairness in the allocation of value from data among actors in the data economy and to foster access to and use of data.” If enacted, among other things, the Act will clarify the Database Directive’s application to machine-generated information obtained from IoT and remote sensing devices. 5.3 Access to Data and Data Portability Access to data and data portability are commonly addressed by the terms and conditions of farmers’ and food producers’ technology use agreements with IoT suppliers, platform operators, blockchain administrators, and providers of other digitization services.120 Typically these terms and conditions are one-sided in favor of the technology providers and require farmers and food producers to cede control over their data. Consequently, as outlined earlier, there is considerable unease regarding the ability of farmers and food producers to effectively protect their interests in the data their production and transaction activities generate, and many

 See, e.g., 市场监管总局关于印发全国商业秘密保护创新试点工作方案的通知 [Notice by the State Administration for Market Regulation of Issuing the Work Plan for the Pilot Program of Innovative Protection of Trade Secrets Nationwide] (promulgated by the State Administration for Market Regulation, Mar. 2, 2022, effective Mar. 2, 2022). 116  For example, see the United States—Feist Publ’ns, Inc. v. Rural Tel. Serv., Co., 499 U.S. 340, 344–45, 111 S.Ct. 1282, 113 L.Ed.2d 358 (1991) applying 17 U.S.C. §§ 101–03; Australia—Telstra Corporation Ltd v Phone Directories Company Pty Ltd (2010) 194 FCR 142. 117   Assessment Technologies of WI, LLC v. WIREdata, Inc. 350 F.3d 640 (2003); Telstra Corporation Ltd v Phone Directories Company Pty Ltd (2010) 194 FCR 142. 118   EU Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases. 119  Matthias Leistner, Big Data and the EU Database Directive 96/9/EC: Current Law and Potential for Reform, available at SSRN 3245937 (2018). 120  Jouanjean et al. 2020, at 9–10; Carbonell, Internet Policy Review, (2016), at 3. 115

490  Research handbook on international food law farmers and food producers do not trust how their data is collected and handled by digital service providers.121 As noted earlier, there is a global patchwork of regulation regarding data rights and once again, the divide between personal and non-personal data is implicated. The EU’s General Data Protection Regulation (GDPR) and India and China’s Personal Information Protection Law mandate access to personal information for data subjects.122 Data portability is not explicitly mentioned in China’s law, but the GDPR and India’s draft law also expressly mandate data portability.123 These rights cannot be waived or excluded by agreement, but they only apply to personal information. If implemented, the European Commission’s proposed Data Act will introduce substantial change and create legally enforceable access and portability rights for non-personal data. It is further proposed that this will extend to the right of users to share their data with third parties. Additionally, proposed Article 4.6 provides that data holders cannot use the data they collect “to derive insights about the economic situation, assets and production methods of or the use by the user that could undermine the commercial position of the user in the markets in which the user is active.” Together with a proposed prohibition upon unfair contractual terms apropos micro, small, and medium enterprises, the aim is to create a fair and efficient market for data and to re-balance the rights of data users with those of data holders. Meanwhile, to fill the existing regulatory void apropos non-personal data regulation, several other jurisdictions have also developed voluntary codes of conduct and associated template licensing agreements.124 Examples include the United States,125 New Zealand,126 and Australia.127 However, given the recent nature of the codes, there is little data available regarding code efficacy,128 so we will need to wait and see whether the codes are effective in building the trust required to facilitate more widescale agri-food digitization. 5.4 Data Standards As we have already written, the uptake of cloud computing, IoT, blockchain, big data, robotics, and artificial intelligence paves the way for the integration of previously independent agri-food operations. That connectivity and productivity benefits depend on many factors,  Wiseman et al., NJAS-Wageningen Journal of Life Sciences, (2019), at 6.  Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) (GDPR), Article 15; 中华人民共和国个人信息保护法 [Personal Information Protection Law of the People’s Republic of China] (promulgated by the Standing Comm. Nat’l People’s Cong., Aug. 20, 2021, effective Nov. 1, 2021), Article 45; India, Personal Data Protection Bill 2019, Article 17. 123  GDPR, Article 20; India, Personal Data Protection Bill 2019, Article 19. 124  Jouanjean et al. 2020, at 14–15. 125  AgData, Privacy and Security Principles for Farm Data (2014) available at www​.agdatatransparent​ .com ​/principles/. 126  New Zealand Farm Data Code of Practice Version 1.1 available at www​.farmdatacode​.org​.nz/. 127  National Farmers Federation, Australian Farm Data Code (2020) available at https://nff​.org​.au​/ programs​/australian​-farm​-data​-code/. 128  It appears that there is a limited amount of information regarding parties to the various Codes. There are 37 technology companies certified under the US AgData Code and seven technology companies certified under New Zealand Code. 121

122

The digital food economy, from food regulation to data governance  491 including (as noted) the trust of agri-food actors in technology providers and interoperability between providers and systems. Many agri-food industry technology providers use their own standards and formatting to collect and share data. One study reports that there were over 450 IoT platforms on the market at the time of writing.129 The lack of interoperability between these various technology providers is a major obstacle to widescale agri-food digitization.130 It therefore also affects the ability of regulators to integrate effectively with agri-food systems. If regulators are to have access to data generated by the agri-food industry, the data will need to be created and entered in ways that allow it to be interpreted and assessed. For effective regulation, data element identifiers must be clear and consistent to understand audit trails. Blockchain interoperability is a pressing concern as it seems that blockchain is the most likely of Industry 4.0 technologies to be adopted by regulators to facilitate supply chain traceability and tamper-proof certification of agri-food standards.131 However, at this point in time, there are a variety of standards under development, including material produced by the International Telecommunications Union, the International Organization for Standardization, and the National Institute of Standards and Technology, but to date, these are largely informative and lack normative application for compliance and auditing purposes.132 The ongoing lack of maturity and therefore the continuing problem of lack of interoperability between blockchains and other digital technologies suggest a fruitful role for the proposed International Platform for Digital Food and Agriculture in developing common technical and data standards. Meanwhile, Article 29 of the proposed European Data Act will require data holders like suppliers of IoT equipment and digital market providers to facilitate data interoperability and data sharing by sufficiently stipulating the data content they hold, including its structure, format, and taxonomies as well as the technical means for accessing the data. Particularly, operators will be required to ensure that “the means to enable the interoperability of smart contracts within their services and activities shall be provided.” Of course, the feasibility of this latter provision is highly dependent on the development of such open interoperability specifications and standards. China is also working towards technical standardization and has released a National Standardization Development Action Plan,133 which, among other things, incorporates actions for the “research and development of safety, quality, service, and support standards for the entire agricultural industry chain, and builds a standard system for the entire industrial chain of modern agriculture that includes all elements, all chains, and multiple levels.” For instance,  Yalew Tolcha et al., Towards Interoperability of Entity-Based and Event-Based IoT Platforms: The Case of NGSI and EPCIS Standards, 9 IEEE Access, 49868 (2021), at 49868. 130  Ibid., at 49868; Lukas König et al., Comparing Blockchain Standards and Recommendations, 12 Future internet, 1 (2020), at 2. 131  See, e.g., Jie Xu et al., Blockchain: A New Safeguard for Agri-Foods, 4 Artificial Intelligence in Agriculture, 153 (2020); Huanhuan Feng et al., Applying Blockchain Technology to Improve Agri-Food Traceability: A Review of Development Methods, Benefits and Challenges, 260 Journal of Cleaner Production, 121031 (2020). 132  A summary and commentary on the materials can be found in König et al., Future internet, (2020). 133  China, SAMR, Notice of 16 departments including the State Administration for Market Regulation on Printing and Distributing the Action Plan for Implementing the “National Standardization Development Outline,” July 8, 2022 available at https://gkml​.samr​.gov​.cn​/nsjg​/ bzjss​/202207​/ t20220708​_348515​.html. 129

492  Research handbook on international food law the Ministry of Agriculture and Rural Affairs promulgated Sharing Technical Specification of Agricultural Data (NY/T 3501-2019) to standardize agri-data collection in 2019.134 As China positions itself to become a world leader in technical standardization, the Plan also calls for deepened international standardization cooperation and the promotion of the compatibility of Chinese standards with international standard systems. 5.5 Privacy and Data Security As outlined earlier, whether privacy protections apply to agri-food data collected by private or public agencies is unclear. However, assuming that the collection of agri-food data will implicate natural individuals’ identities to some degree or else meet with resistance from agrifood businesses concerned about dissemination of their commercially sensitive information when collecting and using agri-food data, regulators and government data repositories will need to consider privacy and other rights constraining undue surveillance. Farmers and food manufacturers are concerned that their data might be shared with third parties and sold to competitors.135 They are also concerned about misuse by overzealous government agencies or breaches of data security.136 Moreover, while using granulated farm data can increase accountability and, thus, compliance with regulation, it also can stigmatize businesses that might be characterized as polluters or agents of food wastage or animal cruelty.137 These misgivings are a significant barrier to increasing agri-food digitization and its integration with regulation. The OECD therefore makes a series of recommendations to overcome these barriers and build trust between agri-food actors and government. As privacy and surveillance concerns apply, the most important of these recommendations are anonymization and data obfuscation techniques for open-access databanks.138 More broadly the OECD recommends focusing on result-oriented mechanisms that foster stewardship rather than a compliance mentality,139 modeling good practice for responsible and transparent use of algorithms in regulatory practice,140 ensuring that algorithm designers and suppliers of agricultural digital technologies disclose any conflicts of interest that may affect the integrity or accuracy of their equipment or software,141 leading the development of high-quality data standards and data management practices,142 and investing in effective regulation about the use and protection of data.143 For the downstream digital food economy, privacy violations have become a real threat. For instance, the ubiquitous e-commerce and e-payment facilities in China bring huge privacy concerns when creating convenience. In March 2018, Yu purchased toothpaste using Alipay to pay in a shop located in Beijing. Alipay is a third-party mobile and online payment platform owned by Alibaba Group, which has become one of the world's largest mobile payment   农业农村部 [Ministry of Agriculture and Rural Affairs], 农业数据共享技术规范 (NY/T 35012019) [Sharing Technical Specification of Agricultural Data (NY/T 3501-2019)], (2019). 135  Leopold, J. Corp. L., (2018), at 406. 136  Ibid., at 408–09. 137   OECD. 2019, at 92. 138  Ibid., at 28–29. 139  Ibid., at 92. 140  Ibid., at 115. 141  Ibid. 142   OECD. 2019, at 114. 143  Ibid., at 120. 134

The digital food economy, from food regulation to data governance  493 platforms. In the aftermath of the payment, Yu logged in his Taobao and Tmall apps, two of the most popular e-commerce platforms also belonging to Alibaba Group. Yu then found that the two e-commerce apps already had the toothpaste transaction details. Yu felt his personal information was collected without his consent and filed a lawsuit against all four parties, including the shop owner, Alipay, Taobao, and Tmall. The court ruled that the acts of the four parties constituted a privacy breach.144 The above case and the “big data price discrimination” case discussed earlier demonstrate how consumers’ personal information can be manipulated at the price of privacy. These cases also seriously question data security concerning illicit data collection and processing. In 2016, China Central Television exposed a data breach involving five billion pieces of citizen data such as names, account numbers, passwords, mobile phone numbers, ID numbers, bank card numbers, addresses, and so on. Many of the five billion pieces of citizen data were data leaked from JD, one of China’s most popular e-commerce platforms selling food products, among other things. It was found that Mr. Zheng, an employee of JD, stole a large amount of data from JD users.145 In response to these challenges, apart from the Personal Information Protection Law discussed earlier, China also promulgated the Data Security Law in 2021. While the former was enacted to protect rights and interests relating to personal information, regulate personal information processing activities, and promote the reasonable use of personal information, the latter was enacted for the purposes of regulating data processing activities, safeguarding data security, promoting data development and utilization.146 However, because the above laws have only been implemented for a short period, it remains to be seen how they will transform the digital food economy. 5.6 Cybersecurity As for the remaining challenges relating to digital food economy research, we find that there is a public and national security facet, which may be problematic in the context of the growing volume and size of online food platforms. In 2016, China enacted its first Cybersecurity Law.147 Under this Law, the Cyberspace Administration of China (CAC) is mandated to take overall responsibility for cyberspace security.148 The Law recognizes that the internet has become a critical infrastructure for economic development and that cyberspace can endanger national security if not well controlled.149 In   俞延彬诉北京乐友达康科技有限公司等网络侵权责任纠纷案，北京市海淀区人民法院(2018)京0 108民初13661号 [Yu Yanbin v. Beijing Leyou Dakang Technology Co., LTD., by Beijing Haidian District People’s Court (2018)]. 145   刘四红 [Liu Sihong], 京东数据泄露内鬼被抓 涉案50亿条公民信息泄露 [Suspect of JD Data Leakage Was Caught, Involving Five Billion Pieces of Citizen Information], ifeng​.c​om (2017), available at https://finance​.ifeng​.com​/a​/20170313​/15236074​_0​.shtml. 146  See, e.g., 中华人民共和国个人信息保护法 [Personal Information Protection Law of the People’s Republic of China], Article 1; 中华人民共和国数据安全法 [Data Security Law of the People’s Republic of China] (promulgated by the Standing Comm. Nat’l People’s Cong., Jun. 10, 2021, effective Sep. 1, 2021), Article 1. 147   中华人民共和国网络安全法 [Cybersecurity Law of the People’s Republic of China] (promulgated by the Standing Comm. Nat’l People’s Cong., Nov. 7, 2016, effective Jun. 1, 2017). This law should not be confused with Data Security Law as discussed earlier. 148  Ibid., at Article 8. 149  Ibid., at Article 1. 144

494  Research handbook on international food law considering this, in principle, the Law is poised to welcome international cooperation to crack down on internet crime to promote open and collaborative cyberspace and establish a multilateral, democratic and transparent cyberspace governance system.150 However, the main brunt of the Law lies in the notion of “critical information infrastructure,” which is so broad that it encompasses not only traditional critical sectors like power and transport but also other sectors which could likely harm livelihoods. The Law requires that any entity categorized as critical information infrastructure, together with companies with significant amounts of information on Chinese citizens, can be a target for law enforcement.151 In 2017, the CAC drafted Regulations on the Security and Protection of Critical Information Infrastructure and proposed to list transportation-, food-, and drugrelated online platforms as operators of critical information infrastructure. That means food e-commerce platforms like Alibaba and Meituan can be regulated with increased cybersecurity scrutiny.152 In July 2021, the aforesaid draft Regulations were passed by the State Council. Under the Regulations, Critical Information Infrastructure (CII) is defined as any network facilities and information systems in important industries and fields—such as public communication and information services, energy, transportation, water conservancy, finance, public services, e-government, and science, technology, and industry for national defense—that may seriously endanger national security, national economy and people’s livelihoods, and public interests if they are damaged, lose their functions, or their data are leaked. Though the aforesaid Regulations do not articulate online food platforms as belonging to a CII, they can likely be classified under the definition. There are real concerns relating to national security regarding online food platforms. For instance, China’s online food delivery market reached a value of US$ 51.5 billion in 2020, exhibiting strong growth during the next five years, and representing the world’s largest online food delivery market.153 In addition, Meituan and Ele​ .​me are the two most powerful online food delivery platforms in China, controlling 98.2% market share in China.154 Every day, these platforms gather and generate huge amounts of data about public eating habits, which in our view, can be a perfect vehicle for the Chinese government’s interference in public health. So we contend that how the data will be processed and used can affect the realization of Health China 2030, a national blueprint jointly issued by the

 Ibid., at Article 7.  Carly Ramsey & Ben Wootliff, China’s Cyber Security Law: The Impossibility Of Compliance?, Forbes (2017), available at www​.forbes​.com ​/sites​/riskmap​/2017​/05​/29​/chinas​-cyber​-security​-law​ -the​-impossibility​-of​-compliance/​#73459907471c. 152  Article 18 of the Draft Regulation provided a non-exhausive list of CII operators including food and drug related research and manufacturing institutions and those public platforms involving public services. The Draft Regulation was promulgated in 2021. It, however, introduced a few critiria for those qualified as CII operators without providing a specific list of operators. See 关键信息基础设施安全保护条例 [Regulation on Protecting the Security of Critical Information Infrastructure] (Promulgated by the State Council, Jun. 30, 2021, effective Jul. 30, 2021), Article 9. 153   China Online Food Delivery Market Report 2021: A $51.5 Billion Market—Industry Trends, Share, Size, Growth, Opportunity and Forecasts, 2015–2020 & 2021–2026—ResearchAndMarkets​.c​ om, Business Wire (2021), available at www​.businesswire​.com​/news​/ home​/20210531005137​/ en​/China​- Online​-Food​-Delivery​-Market​-Report​-2021​-A​-51​.5​-Billion​-Market--​-Industry​-Trends​ -Share​-Size​- Growth​- Opportunity​-and​-Forecasts​-2015​-2020 ​-2021​-2026--​-ResearchAndMarkets​ .com. 154  Katharina Buchholz, Meituan Holds Power over Chinese Food Delivery Market, Statista (2021), available at www​.statista​.com ​/chart ​/24743​/chinese​-food​-delivery​-market​-share/. 150 151

The digital food economy, from food regulation to data governance  495 Communist Party of China (CPC) Central Committee and the State Council. Health China 2030 sets forth the objectives and tasks of construction for Health China by intensifying government interference in public health, and food and drug regulation.155 That perfectly explains the high probability that online platforms can be selected as CII operators.

6. CONCLUDING REMARKS We conclude that the digital food economy is an ecosystem comparable to but also distinct from its non-digital traditional counterpart. It is overlaid by two components: consumer internet (or food e-commerce) and industrial internet for food. In addition, there are two layers when it comes to regulating the digital food economy: tangible food products and intangible data throughout the food supply chain. There are many challenges, from food regulation to data governance. Though activities to ensure food safety have to do with the entire digital food economy, food regulation is generally visible to consumers in the food e-commerce component of the digital food economy. Food e-commerce has become more ubiquitous in the context of the COVID19 pandemic. The pandemic restrictions and worldwide fear of contraction have made many food businesses shift to offer more contactless delivery and take-out options by expanding their online sales capabilities. As a result, consumers stayed home and used various online platforms to purchase food and order meals. The pandemic has accelerated the uptake of food e-commerce, and it is projected that people will get more used to the e-commerce modality due to its convenience.156 However, there are growing consumer concerns about food safety and quality arising from food e-commerce, which are some of the main challenges. According to Jack Ma, former chairman of Alibaba Group Holding Ltd, as a resource, data is comparable to oil or water of the future.157 Data has become an enabling force to drive the entire digital food economy. China has a big vision for its data-driven economy. In 2020, the Central Committee of the Communist Party of China (CPC) and the State Council jointly issued the Opinions of the CPC Central Committee and the State Council on Improving the Systems and Mechanisms for Market-Based Allocation of Production Factors, and under this, data, alongside land, labor, capital, and technology, is treated as a production factor for the first time.158 China is dedicated to creating a market-based allocation mechanism to promote data inflow and cultivate the marketization of data. Whereas data brings fortune and hope to the economy, it also creates challenges. Data collected or generated from the digital food   健康中国2030”规划纲要[“健康中国2030”规划纲要 [Blueprint for Health China 2030] (promulgated by the Central Committee of the Communist Party of China and State Council, Oct. 25, 2016, effective Oct. 25, 2016). 156  Annie Palmer, Groceries and Sporting Goods Were Big Gainers in the Covid E-Commerce Boom of 2020, CNBC (2020), available at www​.cnbc​.com ​/2021​/02​/19​/e​-commerce​-surged​-during​-covid​ -groceries​-sporting​-goods​-top​-gainers-​.html. 157   Alibaba’s Jack Ma Says Data Resource Is Oil, Water of the Future, The Business Times (2015), available at www​.businesstimes​.com​.sg​/technology​/alibabas​-jack​-ma​-says​-data​-resource​-is​-oil​ -water​-of​-the​-future. 158   中共中央、国务院关于构建更加完善的要素市场化配置体制机制的意见 [Opinions of the CPC Central Committee and the State Council on Improving the Systems and Mechanisms for Market-Based Allocation of Factors of Production] (promulgated by the Central Committee of the Communist Party of China and State Council, Mar. 30, 2020, effective Mar. 30, 2020). 155

496  Research handbook on international food law economy has become an issue affecting consumer personal information and the way food business is conducted, among other things. Therefore, there are growing interests in data governance around the world. Data governance concerns all kinds of legal institutions related to competition, data ownership, privacy, and security. As mentioned, all the above institutional settings are comparable to traditional counterparts or brand-new by nature. Consistent with most legal development, which tends to occur incrementally and reactively rather than proactively, the legal and regulatory settings governing the digital food economy are thus running behind the pace of digitalization in the food sector. In the past when innovation was more piecemeal and not spread as diffusely across entire sectors, legal policymakers and regulators had more time to understand and adapt. The pace and scope of digital transformation of the food sector we are witnessing therefore test legal policymakers and regulators alike. Reducing the lag between technological development and legal and regulatory settings will enhance food safety and quality. China’s regulatory experiment corralling online third-party platforms as parties in social co-governance provides an innovative model for dealing with market failure in the digital food economy. More broadly it demonstrates how technological change can help to drive radical approaches to regulation. The ability to harness the monitoring and analysis of millions of data points in the digital food economy developed and owned by these online platforms provides significant affordances for regulation that state-based actors would otherwise be difficult to achieve alone. However, as we have documented, the economic power of these behemoth platforms continues to pose problems related to competition and fair dealing with their SME and consumer users. Moreover, it is far from clear that this model could be transposed elsewhere, given that it may be difficult to disentangle it from the political, economic, and institutional conditions prevailing in China. Given the relative newness of this regulatory development, however, it is likely that many jurisdictions will be watching to see whether this new approach yields results in substantial mitigation of the market failures that we have discussed. While many jurisdictions have been grappling with issues of data governance, for the most part, their attention has focused on the protection of personal integrity and autonomy rather than the governance of non-personal data creating a lacuna in the digital food economy that may constrain the potential benefits of a fully connected food supply chain. This is a concern because the widespread deployment of digital technologies and networks is regarded as a path for transforming the food sector so that it is better placed to address pressing global problems, including the need to produce sufficient food for a rapidly growing world population as well as the need to produce food more sustainably.159 As we have argued, greater progress concerning the formulation of law and policy around data rights, privacy, and security is required to achieve these development aspirations. In response to the so-called “Three Doubles” in China’s food e-commerce, from China’s experience in regulating the digital food economy, it creates specific provisions regulating online food trade under the auspices of food safety and general e-commerce laws, but there is a lack of data governance specific to the digital food economy. As of this writing, China has designed a relatively comprehensive regulatory mechanism for general data governance, which covers data generated in developing the digital food economy. While China has become an enthusiastic forerunner to introduce policies and laws to institutionalize the 159

  World Bank Group. 2019; Rotz et al., Sociologia Ruralis, (2019).

The digital food economy, from food regulation to data governance  497 digital economy, including the digital food economy, other jurisdictions such as the EU, the US, and Australia, with strong performance in their food and agriculture sectors, shall also join in shaping the future of the digital food economy. It remains to be seen to what extent China’s online food regulation model can be an option for other jurisdictions and how the institutional construct for data governance will evolve to affect the digital food economy in China and elsewhere in the world. Consequently, as digital technologies advance and further transform the digital food economy, a continuing study of its forms and regulation is a worthwhile undertaking.

ACKNOWLEDGMENT Pinghui Xiao and Vicki Waye equally contributed to this chapter. Pinghui Xiao’s work on this chapter was supported by the National Social Science Foundation of China (国家社科基金) under Award Number 19BFX164 (Research on Food Safety Legal Liability of Online Food Delivery Platforms). Pinghui would also like to acknowledge his research is in part funded by Local Government Development Research Institute of Shantou University.

24. International regulation of genetically engineered food Joanna K. Sax

I. INTRODUCTION The chicken and the egg problem of addressing the international regulation of genetically engineered food is whether to discuss the regulations first or the science first. This really identifies the central issue because many of the international regulations do not follow the science. For this reason, the development and distribution of genetically engineered food respond to the regulations. In the United States (US), for example, the overarching policy allows for the human consumption of genetically engineered food. In contrast, the European Union (EU) largely prohibits the sale of genetically engineered food for human consumption. These completely different policies have enormous international consequences. African countries who trade with the EU, for example, will not grow genetically engineered crops, even though many of these nations have significant issues with malnutrition – which can be addressed, in large part, by growing and consuming genetically engineered crops. Science matters. What this means in the context of this chapter is that societies need to utilize advancements in science to solve major problems. By analogy, societies need widespread vaccine uptake to move COVID-19 from pandemic to endemic. Vaccine hesitancy to the COVID-19 vaccines was entirely predictable, and, at least in the US, we are unprepared to handle the rejection or skepticism of vaccines. Similarly, we need to address climate change, and our food systems are a major contributor to climate change. Furthermore, climate change will likely increase global poverty, with access to food being a major contributor. We already know that consumers reject and are skeptical of genetically engineered food. But, as described in more detail in this chapter, we need the science of genetically engineered food to lessen the impact of climate change. It is entirely predictable that consumer rejection and skepticism of genetically engineered food will impact our ability to use science to lessen the impact of agriculture on climate change and to address malnutrition. This chapter serves as both a warning and a reflection on the international regulation of genetically engineered food, especially concerning climate change and malnutrition. This chapter will first describe the science of genetically engineered (GE) food. Section I will describe the historical origins of GE food, examples of different products created through genetic engineering, and conclude with the scientific consensus that GE food is as safe as conventional food. Section II will compare the different regulatory structures in the US and the EU regarding human consumption of GE food. The reason to compare the US and the EU is that the policies of these two areas significantly impact international trade. Section III reflects on the interaction of science and regulation regarding GE food. This section will also discuss the consequences of regulating GE food concerning malnutrition and climate change. In other words, supporting science is critical to combatting other enormous issues we face as a human race worldwide. 498

International regulation of genetically engineered food  499

II.

THE SCIENCE OF GENETICALLY ENGINEERED FOOD

The controversy surrounding GE crops is somewhat of a mystery, given that humankind’s manipulation of crops for human consumption dates back thousands of years.1 Not only have humans changed wild-type varieties into domesticated crops since the beginning of agriculture, humans have done so by altering the DNA of the plant even before humans knew that DNA existed.2 Even if we push forward a couple of thousand years after humankind domesticated crops, we have a long history of using large-scale mutagenic techniques to change the genetic composition of crops.3 The large-scale mutagenic techniques include irradiation, hybridization, and chemical mutagenesis.4 In these cases, the genetic changes to the crop are largely unknown, yet the safety of the resulting crop is readily determined through long-standing cultivation methods.5 Perhaps the most surprising thing for consumers to learn is that their organic food is all genetically modified – through these large-scale mutagenic techniques.6 In other words, there is significant misunderstanding of the role of genetic modification in our food supply – all domestic crops are modified, whether sold as organic, non-GMO, or under any other label.7 In the 1970s, with the discovery and development of recombinant DNA technology, the food sector developed a new method to genetically modify crops.8 In this vein, specific changes could be made to a crop without needing large-scale mutagenesis.9 Or, even better, a specific change could be made to an existing well-developed crop.10 From a scientific standpoint, this approach seemed preferential both from a technical and safety standpoint. Thus, the ensuing 40 years of debate over this is rather perplexing from a scientific standpoint.11 Or, perhaps, it

  Nat’l Acads. Of Scis., Eng’g, & Med., Genetically Engineered Crops: Experiences and Prospects 65 (2016), http://nap​.edu​/23395 [hereinafter NAS Report] (“People have been domesticating plants for at least 10,000 years”).  2   Frank Hartung & Joachim Schiemann, Precise Plant Breeding Using New Genome Editing Techniques: Opportunities, Safety and Regulation in the EU, 78 Plant J. 742, 742 (2014); cf. Natalie Weber et al., Crop Genome Plasticity and Its Relevance to Food and Feed Safety of Genetically Engineered Breeding Stacks, 160 Plant Physiology 1842, 1842 (2012).  3   See NAS Report, supra note 1, at 67.  4   See id.  5   See Gregory Conko et  al., A Risk-Based Approach to the Regulation of Genetically Engineered Organisms, 34 Nature Biotechnology 493, 494 (2016).  6   See, e.g., David Newland, Sorry Hipsters, That Organic Kale is a Genetically Modified Food, Smithsonian Mag. (Sept. 10, 2014), www​.smithsonianmag​.com​/science​/sorry​-hipsters​-organic​ -kale​-genetically​-modified​-food​-180952656/.  7   See Joanna K. Sax & Neal Doran, Food Labeling and Consumer Association with Health, Safety and Environment, 44 J. L. Med. & Ethics 630, 635–7 (2016).  8   See Paul Berg & Janet E. Mertz, Personal Reflections on the Origins and Emergence of Recombinant DNA Technology, 184 Genetics 9, 9 (2010); David A. Jackson, Robert H. Symons & Paul Berg, Biochemical Method for Inserting New Genetic Information into DNA of Simian Virus 40: Circular SV40 DNA Molecules Containing Lambda Phage Genes and Galactose Operon of Escherichia Coli, 69 Proc. Nat’l Acad. Sci. 2904, 2904–09 (1972).  9   See Nas Report, supra note 1, at 72. 10   See Steven H. Strauss & Joanna K. Sax, Ending Event-Based Regulation of GMO Crops, 34 Nature Biotechnology 474, 475 (2016). 11   See id.  1

500  Research handbook on international food law is more accurate to say that the policies have missed the mark on what the real scientific issues and concerns should be, which will be discussed in the reflection in section III. At the same time that scientists learned how to clone and mutate genes, plant scientists learned even more about the plant genome in general. The plant genome is a highly dynamic environment with many genetic changes happening all the time, including transposons and other DNA re-arrangements.12 This highly dynamic process has two main contributions to our understanding of using genetic engineering techniques in a plant. The first is that given the highly dynamic genetic changes occurring all the time, a small-scale mutation, via genetic engineering, should not be of much consequence given the larger-scale changes.13 Second, the regulatory requirements that require a demonstration that the GE crop is as safe as the conventional crop at particular time points are arbitrary and lack scientific support given the widescale changes occurring all the time.14 Specific timepoints, in other words, do not exist within the plant genome. Thus, regulatory requirements to analyze safety at specific timepoints lack evidence-based support. Our standard cultivation techniques, used in conventional mutagenesis and plant breeding, work quite well for genetic engineering. At one extreme, if a genetic change is too detrimental to the DNA of the crop, the seed will simply die.15 At the other extreme, the concern was that a change to one gene could create other deleterious events (related to consumption safety), such as the increased expression of an endogenous toxin.16 At the beginning of the introduction of this technology, this was a legitimate question that required an answer.17 Over decades, we learned that the standard cultivation techniques are quite capable of handling this issue, and to the extent that this issue even exists, the crop would not make it into the marketplace.18 To be clear, this risk exists for both traditional wide-scale mutagenic techniques and specific GE techniques – it is not a risk specific to GE technology.19 So, what are the cool things that GE technology can do? Among the products developed through GE technology include papaya that is resistant to a virus, a plum that is resistant to plum pox, commodity crops that are resistant to a pest, a commodity crop that produces additional nutrients, and commodity crops that are resistant to an herbicide.20 In short, for   See Weber, supra note 2, at 1843; Robert J. Schmitz et  al., Patterns of Population Epigenomic Diversity, 495 Nature 193, 193–98 (2013). 13   See Weber, supra note 2, at 1843–48; Strauss & Sax, supra note 10, at 476. 14   See Conko et al., supra note 5, at 494; Strauss & Sax, supra note 10, at 474–77. 15   Cf., Strauss & Sax, supra note 10, at 475. 16  Statement of Policy: Foods Derived from New Plant Varieties, 57 Fed. Reg. 22,984 (May 29, 1992). 17   See Strauss & Sax, supra note 10, at 475. 18   Id. (“Such analyses have failed to find any cases where there was elevated production of a worrisome toxin or where omic variation exceeded that resulting from conventional breeding; in fact, generally there was far less variation in the GMOs than in conventionally bred crops” (internal citations omitted)). 19  Weber et al., supra note 2, at 1842–43; Strauss & Sax, supra note 10, at 476 (“Thus, the risk of unintended expression of endogenous toxic proteins from genetic engineering is not greater than conventional breeding, and in most cases far less”). 20  William Saletan, Unhealthy Fixation: The war against genetically modified organisms is full of fearmongering, errors, and fraud. Labeling them will not make you safer, Slate (July 15, 2015, 5:45 AM), www​.slate​.com​/articles​/ health​_and​_science​/science​/2015​/07​/are​_gmos​_safe​_ yes​_the​_case​_against​_them​_is​_full​_of​_fraud​_lies​_and​_errors​.html; EPA, Notice of Pesticide Registration, C5 HoneySweet Plum, EPA (May 7, 2010), www3​.epa​.gov​/pesticides​/chem​_search ​/ ppls​/011312​- 00008​-2010​0507​.pdf; Honeysweet Plum Trees A Transgenic Answer to the Plum Pox 12

International regulation of genetically engineered food  501 crops genetically engineered to be resistant to a virus or pest, farmers can use fewer external pesticides, and those crops are less likely to be lost to pests. In addition, crops that can produce increased amounts of nutrients are important to combat malnutrition, the leading cause of death and disease worldwide. But, the crops that are “Round-Up” ready resistant have probably stolen the show and created the most controversy in such a way that it clouds the benefits of the other products.21 The Round-Up-ready crops can withstand the application of Round-Up, an herbicide.22 This allows farmers to spray the herbicide on everything in the field, and only the GE crops will survive. The controversy is about the increased use of herbicide. Without going into the science of Round-Up, this vision of dousing fields with an herbicide is likely the picture that creates the most resistance to GE crops.23 This makes it very difficult for science, which can create all sorts of important improvements to our food supply, to overcome the propaganda against GE crops. The discovery of new techniques to modify DNA allows for additional improvements to our crops. When genetic engineering techniques first started, scientists had limited options to alter the crops, such as through the introduction of a genetically modified organism, hence the name GMO.24 Newer techniques allow for site-specific mutagenesis, and the science has moved a long way from the initial GMOs.25 Site-specific mutagenesis can take a non-dominant allele and make it clonogenic for a particular type of crop.26 In less scientific terms, let’s say that a type of crop has varying degrees of resistance to a particular pest. If we understand the genetic composition of the more pest-resistant plants and assume it is an allele (a variation of a gene), then site-specific mutagenesis can make it a dominant genetic trait. The crop is then more pest-resistant through site-specific mutagenesis. This is much more difficult to accomplish through traditional mass mutagenic techniques given their lack of specificity. If a crop is more resistant to a pest, less external pesticide is needed, and the crop will likely have a higher yield, meaning less water and other externalities needed to grow the crop. The problem, however, is that it can be very difficult to track these site-specific techniques because the genetic sequence already exists; in other words, it cannot be tracked by looking for a novel trait or genetic sequence. Oddly, while many regulators focus on GMOs (discussed Problem, Agric. Rsch. Serv. U.S. Dep’t Agric. (Aug. 20, 2019), www​.ars​.usda​.gov​/oc​/ br​/plumpox​ /index/ (providing answers to frequently asked questions); Dan Charles, In a Grain of Golden Rice, A World of Controversy Over GMO Foods, NPR: The Salt (March 7, 2013, 2:59 AM ET), www​.npr​ .org​/sections​/thesalt ​/2013​/03​/07​/173611461​/in​-a​-grain​-of​-golden​-rice​-a​-world​-of​-controversy​-over​ -gmo​-foods; Recent Trends in GE Adoption, Econ. Rsch. Serv. U.S. Dep’t Agric. (last updated July 17, 2020), www​.ers​.usda​.gov​/data​-products​/adoption​-of​-genetically​-engineered​-crops​-in​-the​ -us​/recent​-trends​-in​-ge​-adoption​.aspx; Ed Regis, Golden Rice: The Imperiled Birth of a GMO Superfood ix, ix–xvii (2019). 21   See Mark Lynas, Seeds of Science: Why We Got It So Wrong on GMOs 1, 94–98 (2018). 22   See Seth J. Wechsler, Trends in the Adoption of Genetically Engineered Corn, Cotton, and Soybeans, Agric. Rsch. Serv. U.S. Dep’t Agric. (Dec. 3, 2018), www​.ers​.usda​.gov​/amber​-waves​ /2018​/december​/trends​-in​-the​-adoption​-of​-genetically​-engineered​-corn​-cotton​-and​-soybeans/. 23   See Lynas, supra note 21, at 94–98. 24   Agricultural Biotechnology Glossary, U.S. Dep’t Agric. (last visited May 20, 2021), www​.usda​ .gov​/topics​/ biotechnology​/ biotechnology​-glossary. 25   See Hartung & Schiemann, supra note 2, at 742–43. 26   See, e.g., Khaoula Belhaj et al., Plant Genome Editing Made Easy: Targeted Mutagenesis in Model and Crop Plants Using the CRSIP/Cas System, 9 Plant Methods 39 (2013); Tereza Sovová et al., Genome Editing with Engineered Nucleases in Economically Important Animals and Plants: State of the Art in the Research Pipeline, 21 Current Issues Molecular Biology 41, 41–47 (2017).

502  Research handbook on international food law more in the following), the new techniques need guidance – not to ban them, but to figure out how to track them.27 With new techniques come new potential – drought-tolerant plants, pest-resistant plants, plants with increased nutrients, and others. This technology has significant potential to increase our food supply and decrease the role of agriculture in contributing to climate change. Thus the regulation, or the disparate regulation of genetically engineered crops, has profound consequences for our planet. The next section turns to a comparison of the regulatory structures in the US and the EU. This includes discussing how these different regulatory structures impact the worldwide market for food produced from genetic engineering technology.

III. A COMPARISON OF GENETICALLY ENGINEERED FOOD REGULATION IN THE UNITED STATES AND THE EUROPEAN UNION The US and the EU have vastly different approaches to regulating GE food. The US has largely followed the science and allowed for the human consumption of GE food, although the US has an expensive structure followed by manufacturers who bring new products to the market. In comparison, the EU follows the precautionary principle and has largely banned GE food for human consumption until actual risks are determined. To date, to be clear, all the data show that the safety of GE food is the same as conventional food. A. The Regulation of GE Food in the US The US has a complicated interagency regulatory structure for GE food. In 1986, the three main agencies involved, the Food and Drug Administration (FDA), the United States Department of Agriculture (USDA), and the Environmental Protection Agency (EPA), created a Coordinated Framework to address the introduction of GE food into the marketplace.28 The Coordinated Framework underwent a significant revision in 1992, and although some changes have been made since then, the 1992 Coordinated Framework is the main regulatory structure.29 Each agency has its own particular interest, although these interests sometimes overlap.30 In brief, each agency’s role can be described as follows. The FDA cares about a food supply that is safe for consumption.31 The USDA cares about how the growing of GE crops impacts agriculture, such as creating a potential plant pest.32 The EPA cares about the use of pesticides and herbicides, including, for example, if a crop is created to have an internal pest protection  Strauss & Sax, supra note 10, at 476–77.  Coordinated Framework for Regulation of Biotechnology, 51 Fed. Reg. 23,302 (June 26, 1986). 29   See The Unified Website for Biotechnology Regulation, https://usb​iote​chno​logy​regu​lation​ .mrp​.usda​.gov​/ biotechnologygov​/about​/about (last visited May 20, 2021). 30   See Biotechnology Regulations, U.S. Dep’t of Agric., www​.aphis​.usda​.gov​/aphis​/ourfocus​/ biotechnology​/SA​_Regulations​/CT​_Regulations (last modified June 25, 2020). 31   Id. (“FDA has primary responsibility for ensuring the safety of human food and animal feed, as well as proper labeling and safety of all plant-derived foods and feeds”). 32   See id. (“APHIS, through its Biotechnology Regulatory Services (BRS) program, regulates the introduction of certain organisms developed using genetic engineering that may pose a risk to plant health”). 27

28

International regulation of genetically engineered food  503 system.33 On the FDA side, the Coordinated Framework is technically a voluntary process, but the voluntary nature of it is a farce.34 Every manufacturer goes through the voluntary process because, in reality, the risk of bringing a product to market in the absence of review by a relevant agency is way too risky from an economic standpoint.35 The process of going through an agency review allows a product to be de-regulated. In other words, the manufacturer seeks de-regulation, which means the manufacturer can grow and sell the product with little fear of a subsequent agency action, such as confiscation.36 Depending on the product, a GE food may need to go through one agency only or be subject to more than one agency. For example, a crop resistant to a pest may have to go through the EPA (as it relates to pesticides) and the FDA (to be sold on the market). To say that the scholarship in this area is heavy would be an understatement. For nearly 40 years, the debate about regulation and over-regulation has been waged in various areas of academic research and the popular press. One example that raises the hair on the back of scientists’ necks is the HoneySweet plum.37 This plum is genetically engineered to be resistant to plum pox virus.38 Since it is a pest-resistant variety, the manufacturer applied for de-regulation from the EPA. While the EPA found no safety concerns, the EPA proposed that the plum be labeled with a pesticide label.39 Now, consumers are unlikely to purchase fruit with a pesticide warning. This requirement of a pesticide label all but killed the product for consumer sale. No safety concerns exist, but the pesticide label creates a barrier to acceptance by consumers. On the other extreme, some forms of genetic engineering appear not to be covered by the current Coordinated Framework. Newer techniques, such as CRISPR/CAS-9, which allow for site-directed mutagenesis, may fall outside the regulatory scope.40 This is an interesting problem because even if no safety concerns exist, this mutagenesis is very hard to track. Even those that support the underlying science still acknowledge that we need to track what we are doing because of the recognition that there is unlikely to be global agreement on the safety or acceptability of any class of GE food; thus, especially for trade reasons, this is important.41   Id. (“EPA regulates pesticides, including plants with plant-incorporated protectants (pesticides intended to be produced and used in a living plant), to ensure public safety. That agency also regulates pesticide residue on food and animal feed”). 34  Statement of Policy: Foods Derived from New Plant Varieties 57 Fed. Reg. 22,984, 22,985 (May 29, 1992). 35  Conko et al., supra note 5, at 496 (“The FDA ‘requests’ developers of GE crops to discuss with the agency whether foods derived from those crops are ‘substantially equivalent’ to foods from the same unmodified crops … With the knowledge that the FDA has the authority to remove from commerce any foods it deems unsafe, developers of GE crops have in every case consulted with the FDA, producing extensive documentation of each new product’s safety and nutritional equivalency to a non-engineered reference food” (internal citation omitted)). 36   See, e.g., Consultation Programs on Food from New Plant Varieties, U.S. Food & Drug Admin., (Mar. 30, 2020), www​.fda​.gov​/food​/food​-new​-plant​-varieties​/consultation​-programs​-food​-new​ -plant​-varieties (describing consultation process). 37   See Brian Sparks, EPA Labels HoneySweet Plum as a Pesticide, (June 1, 2010), Growing Produce (June 1, 2010), www​.growingproduce​.com​/fruits​/epa​-labels​-honeysweet​-plum​-as​-a​-pesticide/. 38   Id. 39   Id. 40   See Alison L. Van Eenennaam, Kevin D. Wells & James D. Murray, Proposed U.S. Regulation of Gene-Edited Food Animals is Not Fit for Purpose, 3 npj Sci. Food 3, 2 (2019), www​.nature​.com​/ articles​/s41538​- 019​- 0035​-y. 41  Strauss & Sax, supra note 10, at 476. 33

504  Research handbook on international food law The consumer component adds an additional layer to this, including whether food produced from GE crops should be labeled. The history of the labeling debates in the US is recounted elsewhere, but the current regulatory structure is governed by the National Bioengineered Food Disclosure Act, which requires the USDA to create a national framework for labeling products produced from GE crops.42 In sum, the US regulatory structure allows for growing and selling GE food for human consumption. The regulatory process is cumbersome and expensive, but the US policy is largely based on science.43 B. The Regulation of GE Food in the EU The EU has its own governmental structure, in general, as well as for GE food. In 2002, the European Food Safety Authority (EFSA) was created to oversee food shortages and other food security issues.44 While the EFSA conducted its own study of GE food and recommended that new crops be approved based on methodology, not simply a whole-scale ban, it still created a cumbersome recommendation on a case-by-case basis.45 The reality is, however, even if a respected organization gave the green light for a GE crop, the member states have the autonomy to opt out and ban whatever crop or resulting product. To say that GE food for human consumption is banned in the EU is too strong language, but it certainly has the impact of a ban. Very few products are approved for human consumption, let alone for cultivation. In 2012, for example, the EU approved an Irish potato resistant to the infection that gave rise to the Great Irish Famine.46 In other words, member states have the autonomy to approve growing a GE crop, although most member states have not granted such approval. In addition, heavy regulation exists for importing and labeling GE products,  USDA National Bioengineered Food Disclosure Statement, 7 C.F.R § 66 (2018).  Among the reasons that the US system remains cumbersome could be because the major seed companies actually prefer it that way. By having an expensive and drawn-out process, this favors large corporations and keeps small biotechnology companies out of the marketplace. See Edward L. Rubin and Joanna L. Sax, Administrative Guidance and Genetically Modified Food, 60 Ariz L. Rev. 539, 590–92 (2018), for a discussion of this issue. 44   How We Work, Eur. Food Safety Auth., www​.efsa​.europa​.eu​/en​/aboutefsa (last visited May 20, 2021) (“[EFSA] was set up in 2002 following a series of food crises in the late 1990s to be a source of scientific advice and communication on risks associated with the food chain. The agency was legally established by the EU under the General Fool Law – Regulation 178/2002”). 45  EFSA Panel on Genetically Modified Organisms (GMO), Scientific Opinion Addressing the Safety Assessment of Plants Developed Through Cisgenesis and Intragenesis, 10 EFSA Journal 2561 , 2561(2012), https://efsa​.onlinelibrary​.wiley​.com​/doi​/10​.2903​/j​.efsa​.2012​.2561 (“The EFSA GMO Panel compared the hazards associated with plants produced by cisgenesis and intragenesis with those obtained either by conventional plant breeding techniques or by transgenesis. The Panel concludes that similar hazards can be associated with cisgeneic and conventionally bred plants, while novel hazards can be associated with intragenic and transgenic plants. The Panel is of the opinion that all of these breeding methods can produce variable frequencies and severities of unintended effects. The frequency of unintended changes may differ between breeding techniques and their occurrence cannot be predicted and needs to be assessed case by case”); Genetically Modified Food in the European Union, https://en​.wikipedia​.org​/wiki​/Genetically​_modified​_food​_in​_the​ _European​_Union (last visited May 20, 2021). 46   See Palash Ghosh, The Irish Potato: Will Consumers Eat Genetically-Modified Spuds, Int’l Bus. Times (July 27, 2012, 1:18.PM), www​.ibtimes​.com ​/irish​-potato​-will​-consumers​-eat​-genetically​ -modified​-spuds​-732072. 42 43

International regulation of genetically engineered food  505 which has the effect of deterring trading partners from growing GE crops used for human consumption. At the heart of the EU’s approach to GE food is the precautionary principle.47 This, in short, requires a risk assessment prior to market entry.48 The scientific risk assessment does not generally reach zero, even if it can be predicted not to have any additional risk compared to conventional food. Put differently, even food produced from conventional techniques does not have zero risk. Because scientific uncertainty exists, regardless, the precautionary principle has the practical impact of prohibiting most GE food for human consumption.49 Interestingly, the EU has approved numerous GE crops for animal consumption under the same precautionary principle. If a food product containing more than 0.9% GE food is imported, the product must be labeled as such.50 While advertised as a method of freedom of choice for consumers, the reality is that it is very hard to segregate GMO and non-GMO crops; thus, the EU rejects shipments, which may lead to shortages.51 A large body of commentary criticizing the EU’s approach to GE food for human consumption exists.52 From the scientific perspective, the EU model does not reflect the actual risk of GE food. From an international trade perspective, farmers and manufacturers who trade with the EU are unlikely to grow GE crops.53 From a societal standpoint, the EU’s position on GE food for human consumption contributes to a consumer perception that food from GE crops may be harmful.54   See, e.g., Science for Environment Policy Future Brief: The Precautionary Principle: DecisionMaking Under Uncertainty, Issue 18 (Sept. 2017), https://ec​.europa​.eu​/environment​/integration​/ research ​/newsalert ​/pdf​/precautionary​_ principle​_decision ​_ making ​_under​_uncertainty​_ FB18 ​_en​ .pdf. 48   Id. at 4. (quoting Communication on the Precautionary Principle from 2000: “Recourse to the precautionary principle presupposes that potentially dangerous effects deriving from a phenomenon, product or process have been identified, and that scientific evaluation does not allow the risk to be determined with sufficient certainty. The implementation of an approach based on the precautionary principle should start with a scientific evaluation, as complete as possible, and where possible, identifying at each stage the degree of scientific uncertainty”). 49   Cf., Hartung & Schiemann, supra note 2, at 743–44. 50  John Davison, GM Plants: Science, Politics and EC Regulations, 178 Plant Sci. 94, 94 (2010) (“The EU has the probably strictest regulations in the world for the presence of GMOs in food and feed. These require the labeling of food and feed where the level of approved GMO exceeds 0.9% of unintentional adventitious presence. For non-approved GMOs the threshold is ‘zero’ and thus requires that cargoes containing GMOs non-approved GMOs are returned to the port of origin or are destroyed”). 51   Id. (“Since current methods of cultivation, storage and transport do not permit complete segregation of GMO and non-GMO crops, some co-mingling must be expected. This leads to a peculiar situation where the EU is dependent on imports (particularly soybean for animal feed) from North and South America and yet, legally, must reject these imports since they contain low levels of unauthorized GMOs. Several authorative European reports indicate that this is not a sustainable situation and must result in feed shortages and price increases of meat and poultry”). 52   See, e.g., Henry I. Miller & Drew L. Kershen, EU Court Falls Short on Both Logic and the Law, Inv. Bus. Daily (Aug. 27, 2018, 8:13 PM), www​.investors​.com​/politics​/commentary​/eu​-court​-gmos​ -food/. 53   Lynas, supra note 21, at 157. 54   See Peter M. Wiedemann & Holger Schütz, The Precautionary Principle and Risk Perception: Experimental Studies in the EMF Area, 113 Env’t Health Persp. 402, 404 (2005). 47

506  Research handbook on international food law Overall, the different regulatory structures in different regions of the world related to GE crops have international consequences. Our food supply chain is international; thus, prohibitions in one region impact other parts of the world. This system, or lack of a system, creates global consequences, as discussed next.

IV. REFLECTIONS ON A GLOBAL SYSTEM THAT HAS DIFFERENT RULES IN DIFFERENT COUNTRIES Different countries and nations have different regulations regarding the human consumption of genetically engineered food, creating numerous issues in our global economy. This section addresses a few key problems from a lack of uniform regulations. First, the extent that regulations are not based on science has far-reaching effects on consumer perceptions of risk. Second, malnutrition is the leading cause of death and disease worldwide, so if we do not have policies that encourage a safe and sustainable food supply, people will die.55 Finally, climate change is the existential crisis of our time; while the food supply cannot solve climate change, the science of how we grow our crops can certainly contribute to lessening the impact of climate change. These are not the only issues that arise with inconsistent regulation of GE food, but they provide a glimpse into the seriousness of the problem. A. Consumer Perception of Risk and Trust in Science Over the past 50 years or so, a change in consumer trust in science and the ability for consumer perceptions of risk to align with evidence-based assessment of risk has occurred.56 The origins of this change are hard to pinpoint, but certainly, the rise of social media and the ability of interest groups to influence consumers and policymakers contributed to this change.57 In some ways, the change is understandable; examples exist in which scientists were wrong and consumers were harmed.58 In other ways, however, interest groups have taken advantage of the principle that some uncertainty exists in scientific predictions. Perhaps a combination of these experiences, along with others, help explain the tilt away from science as the foundation of regulatory policies, which are pronounced in the EU policy regarding GE food for human consumption. Consumer perception of risk is a challenging topic, if only because how people make decisions is complicated, to say the least. Several decision-making theories address consumer   See generally Regis, supra note 20, at 4 (“Vitamin A deficiency is one of the world’s biggest killers of children. In 2010, according to one estimate, this specific deficiency killed more children than HIV/AIDS, tuberculosis, or malaria – about 700,000 boys and girls under age five per year, almost 2,000 deaths per day”). 56   See Joanna K. Sax, Biotechnology and Consumer Decision-Making, 47 Seton Hall L. Rev. 433, 435 (2017) [hereinafter Sax, Biotechnology and Consumer Decision-Making]. 57   See Joanna K. Sax, The Problems with Decision-Making, 56 Tulsa L. Rev. 39, 65–73 (2020) [hereinafter Sax, The Problems with Decision-Making]. 58   See Thalidomide, Science Museum (Dec. 11, 2019), www​.sciencemuseum​.org​.uk​/objects​-and​-stories​/medicine​/thalidomide (thalidomide was approved in numerous European countries and was later shown to cause serious defects, including to unborn fetuses, but “[o]ne country that did not approve thalidomide for marketing and distribution was the USA, where it was rejected by the Food and Drug Administration”). 55

International regulation of genetically engineered food  507 perception of risk. Two theories of particular interest to help understand consumer perception of risk are ambiguity aversion and the affect heuristic.59 Ambiguity aversion explains that consumers will assign a high risk and low benefit when they receive information that creates ambiguity.60 Perhaps one of the most dangerous examples is the completely false connection between vaccines and autism.61 Parents may believe that vaccines cause autism (to be clear, there is no connection), which creates ambiguity for the decision-maker. The parents assign a high risk and low benefit to the vaccine. The evidence-based assessment of risk from vaccines is very low. First, the vaccine prevents people from serious illnesses of a vaccine-preventable disease, which is a high benefit.62 And the most common risk from vaccines is a localized reaction, such as a sore arm, which is a low risk. Ambiguity aversion may help explain why consumers decide not to buy GE food or think that GE food should be labeled.63 Consumers may believe the completely false connection between GE food and cancer. If consumers believe that eating GE food causes cancer (to be clear, there is no connection), this creates some ambiguity for the consumer. Consumers assign a high risk and low benefit. The evidence-based assessment of risk from GE food is very low, or at least the same risk as conventional food products. For some forms of GE food, there is a high benefit. This is the same analogy discussed for the anti-vaccine movement. This consumer perception of risk is not in line with an evidence-based assessment of risk. Added to this is that GE food is regulated much differently than conventional food, which also sends the message that the reason for the extra regulation is because GE food has more risk.64 The Affect Heuristic refers to a faint whisper of emotion that impacts decision-making, especially regarding risk perception. In pioneering work by Paul Slovic and colleagues, they described that forms of emotion impact risk perception.65 For example, the emotion of fear greatly impacts how people assign risk. Nuclear energy, for example, is a clean form of energy. But, this energy sector has largely been eliminated by consumer fear of cancer.66 To be fair, humans have experienced nuclear energy reactor disasters, such as Chornobyl. But, in the Three Mile Island example, statistically, no persons living near Three Mile Island experienced an increased rate of cancer.67 The evidence-based assessment of risk from nuclear power is low. The consumer fear is high, and the consumer perception of risk is high, regardless of the evidence-based assessment of risk. Consumer fear has largely driven the policy in this area.

  See Paul Slovic, Perception of Risk, 236 Sci. 280, 281 (1987) [hereinafter Slovic, Perception of Risk]; Paul Slovic, et al., The Affect Heuristic, 177 Eur. J, of Operational Res. 1333, 1333 (2007); Daniel Ellsberg, Risk, Ambiguity, and the Savage Axioms, 75 Q.J. of Econ. 643, 657 (1961). 60   See Ellsberg, supra note 58, at 650–57. 61   See Laura L. Blaisdell et  al., Unknown Risks: Parental Hesitation About Vaccination, 36 Med. Decision Making 479, 479–80 (2016). 62   Id. 63  Sax, Biotechnology and Consumer Decision-Making, supra note 56 at 453. 64   See Wiedemann & Schütz, supra note 54 at 402–03. 65  Paul Slovic & Ellen Peters, Risk Perception and Affect, 15 Current Directions in Psych. Sci. 322, 322 (2006); Ellen Peters et  al., Affect and Decision Making: A “Hot” Topic, 19 J. Behav. Decision Making 79, 80 (2006). 66  Paul Slovic, What’s Fear Got to Do with It? It’s Affect We Need to Worry About, 69 Mo. L. Rev. 971, 986–87 (2004). 67  Slovic, Perception of Risk, supra note 59, at 283. 59

508  Research handbook on international food law The Affect Heuristic may also explain consumer reactions to GE food.68 If consumers fear GE food, they will assign a high risk and low benefit. Without question, false information about the lack of safety of GE food is spread by interest groups that seek to dissuade consumers from purchasing GE food.69 At its worst, non-profit organizations have spread the completely false connection of homosexuality with the eating of GE food.70 This tactic is used as a homophobic and discriminatory rant against GE food. In addition, anti-GE food interest groups spread the false connection between disease and GE food.71 In sum, propaganda uses fear to persuade consumers that the consumption of GE food is connected with an undesirable result.72 B. Malnutrition and How to Science Our Way out of This Malnutrition is the leading cause of death and disease worldwide.73 This is caused by a lack of food and a lack of nutritious food. GE technology offers a way to alleviate this problem by creating crops that are more resistant to drought conditions and by improving the nutrition content of the crop. Perhaps the most famous example of this issue is the political game around Golden Rice. Rice is a staple part of the diet of numerous poor countries.74 Vitamin A deficiency also leads to malnutrition in these areas of the world. The Golden Rice product is genetically engineered to increase the production of beta-carotene, the precursor to vitamin A.75 The idea behind the Golden Rice development is to improve the nutritional components for those who most need

 Sax, Biotechnology and Consumer Decision-Making, supra note 56, at 453.  Sax, The Problems with Decision-Making, supra note 57, at 71–73. 70   Lynas, supra note 21, at 140 (“Another of the scientists spoke up, adding: ‘They said that with this maize, the next generation will have some sexual deformities, their children would have homosexual tendencies as a result of eating this maize. It’s really weird’”). 71   See Lynas, supra note 21. at 153. 72  Although likely less related to affect per se, consumers may also reject GE food as a corporate takeover of our food supply layered with intellectual property issues. The word “Monsanto,” for example, may bring up negative feelings due to the sense that Monsanto’s intellectual property practices hurt farmers. The intellectual property issue(s) are beyond the scope of this chapter, but they warrant acknowledgment as another form of objection. 73  Press Release, Am. Ass’n for the Advancement of Sci., Statement by the AAAS Bd. of Dir. on Labeling of Genetically Modified Foods (Oct. 20, 2012) (on file at www​.aaas​.org​/sites​/default​/files​/ migrate​/uploads​/AAAS​_GM​_statement​.pdf). 74   Regis, supra note 20, at 13 (“For the world’s poor, the ideal food to fortify is their default dietary staple, rice. Rice is eaten daily by about half of the world’s population. It’s available widely and cheaply. And so if there were ever a food tailor made to combat vitamin A deficiency, it is biofortified rice, rice that already contains the added micronutrient as it grows”). 75   Id. at ix (“The ‘gold’ was in fact beta carotene, a substance that is converted into vitamin A in the human body, thus also known as provitamin A. Conventional rice plants already contained beta carotene, but only in their leaves and stems, not in the kernels. Golden Rice also carries the substance in the endosperm, the part of the plant that people eat. This small but portentous change made Golden Rice into a miracle of nutrition: the rice could combat vitamin A deficiency in areas of the world where the condition is endemic and could, thereby, as the magazine headline said, ‘save a million kids a year’”). 68 69

International regulation of genetically engineered food  509 it.76 The same engineering technology has been applied in cassava, another staple crop in poor countries. But, the political story around Golden Rice has had profound impact. The anti-GE food campaign that effectively worked with the governments of poor nations to ban the production of Golden Rice is an example of misinformation and how interest groups effectively aim to keep GE crops out of the marketplace.77 The full story of Golden Rice is recounted elsewhere, and not surprisingly, nuances exist in this story.78 But, the long and short story is that the European influence against GE food played a large role in keeping Golden Rice banned in specific poor countries.79 Part of the reason is the practical ban against GE food in Europe; thus, if a poor country regularly exports food products to Europe, then any possible presence of GE components in those exports threatens the international trade deal.80 Many of these poor countries rely heavily on the ability to export to Europe, and thus the attendant risk is too much. The result? Golden Rice cannot be grown and people continue to suffer. In addition, interest groups push poor countries to move towards organic farming.81 Putting aside the misperception that organic farming is necessarily more eco-friendly, the push for organic farming can devastate some farmers in these poor countries. If a crop experiences a major pest infestation, then that crop is lost that year, but organic farming does not solve that problem. Without a meaningful harvest in any given year, people go hungry. There are no major grocery stores or importers of food to these poor villages. Their crops are their food. GE technology has the ability to create pest-resistant crops, which allows the crops to withstand total devastation. Even if organic farming techniques prove useful, the idea that organic farmers cannot utilize GE seeds creates a barrier to changes in farming practices.

  Id. at 14 (“This is exactly what Golden Rice is: a biofortified rice whose kernels contain enough beta carotene to prevent vitamin A deficiency by the simple means of eating the amount normally consumed on a daily basis”). 77   Id. at x (“Greenpeace, for one, was especially vocal in its condemnation of genetically engineered foods, Golden Rice in particular”). 78   See id. at ix–xx. 79  Robert Paarlberg, A Dubious Success: The NGO Campaign against GMOs, 5 GM CROPS & FOOD 223, 223 (2014) (“Much of this NGO opposition to GMOs has been led by European-based organizations such as Greenpeace-International, and Friends of the Earth International, both headquartered in Amsterdam”). 80   R egis, supra note 20, at xii (“But it was something else altogether that had the greatest power to impede the development of Golden Rice, and this was government regulation. That power resided in a complex set of operational guidelines, restrictions, and requirements that constituted an enormous set of obstacles for the Golden Rice scientists to overcome. Government imposed these constraints in the name of safety, in an attempt to protect human health and the environment. Chiefly responsible for these restrictions is an international treaty known as the Cartagena Protocol for Biosafety and its highly controversial Principle 15, otherwise known as the Precautionary Principle”). 81  Paarlberg, supra note 79, at 223 (“Some of these organizations present themselves as advocates for social justice, some as advocates for the rural poor, some as advocates for the environment, some as opponents of corporate-led globalization, and some primarily as advocates for alternative farming methods, for example organic or agroecological methods, which reject the use of GMOs”). 76

510  Research handbook on international food law C. GE Crops Present an Opportunity to Lessen the Impact of Climate Change Climate change is a significant problem of our time, the underestimation of which could lead to extreme devastation with little or no ability to undo the impact. Agriculture has a role to play in decreasing the human impact on climate change. Large-scale changes to modern-day agriculture are needed, including overhauls to our supply chains. However, within this large infrastructure is a place for GE crops. Creating crops that are more resistant to environmental changes, such as drought, will allow farmers to grow crops using less water. Creating crops that are resistant to specific types of pests is important because as our environment changes, so will the prevalence of pests. Genetic engineering technology creates an opportunity to produce more food with fewer resources.82 The idea that organic farming is the agricultural solution to climate change is incorrect. First, it is a privileged position to be able to assert that organic farming should be the primary form of farming.83 It is simply not a feasible solution, especially in poor countries. Second, organic farming uses pesticides. Organic farmers may use different pesticides, but the perception that organic farming is chemical free (and, of course, even water is a chemical) is incorrect. Third, promoting organic farming techniques in areas of extreme poverty fails to solve the problem if a farmer’s crop is lost due to disease or drought. The rejection of GE crops in organic farming is confusing. In many ways, this seems like the perfect partnership. If organic farming techniques have advantages, then the combination of drought-tolerant, pest-resistant, or more nutritious crops seems to be in line with organic farming, in general. Indeed, personal communication(s) with organic farmers reveals their support for the concept of GE crops, despite the organic industry’s position that GE crops are harmful. Mark Lynas catalogs his years as an anti-GE activist and his subsequent transition to a supporter of GE crops in his book Seeds of Science.84 Lynas recounts his participation as an extreme activist against Monsanto and others promoting GE technology. However, as a climate science reporter, ultimately, Lynas could not ignore the science of GE crops and their ability to have a positive impact to alleviate the effects of climate change. This revelation was life-changing to Mark Lynas, who recounts this in his book. Lynas exposes the tactics used by anti-GE activists to keep GE technology at bay.85 According to Lynas, this activism is largely responsible for the EU’s strict rules against GE food for human consumption as well as the impact on countries that regularly trade with the EU. However, ultimately, Lynas could not ignore the science of GE crops, especially regarding alleviating the human impact on climate change.

  See Lynas, supra note 21, at 33–49 (describing how understanding of the science of genetically engineered crops can be used to alleviate our impact on climate change). 83  Paarlberg, supra note 79, at 224 (“The single most powerful explanation for this continuing blockage of GMOs has been energetic NGO campaigns of disinformation, led and financed mostly by individuals from well-fed countries who do not need the technology themselves”). 84   Lynas, supra note 21, at 33–52. 85   See Lynas, supra note 21, at 11–32. 82

International regulation of genetically engineered food  511 D. A Path Forward The international dimension of regulating GE food for human consumption creates enormous ripple effects. Major players in international trade, such as the EU and the US, impact what other countries will grow and export. Likewise, whether an international trading partner approves GE crops for human consumption impacts what crops are grown in the US. For example, if China does not import certain GE crops, US farmers may not grow that crop. In other words, the marketplace is global, and every country’s policy impacts everyone else in that marketplace. The different regulatory structures and approvals in the international marketplace are not all based on science. The scientific community has a consensus on the safety of GE food for human consumption – at least for the products already in the marketplace. Yet, not all countries allow the importation of products containing GE crops; even if allowed, the attendant labeling of the products kills the product anyway. This is a worldwide food security issue. International cohesion is needed to support and promote a global marketplace for food products produced from GE crops.86 One pathway forward could be a type of trade policy negotiated through members of the World Trade Organization, which could perhaps adopt guiding principles to form the basis of any policy.87 Examples of guiding principles could be: (1) safety as established by scientific consensus; (2) protection of the planet’s climate; (3) health equity; and (4) addressing poverty. Additional virtuous principles can be included; this list is certainly not exhaustive and does not represent all of the plagues of the inequities in the global economy.88 Another pathway forward is moving towards authorization of GE products country by country or region by region. Turnbull et al. nicely categorize GE legislation worldwide and note that harmonization is likely among countries with an authorization process.89 Future research is needed to dissect which form of pathway forward is most productive and feasible. The larger point is that the safety of human consumption of GE crops is established, and the potential for GE crops to address or alleviate major global issues needs to be unlocked. E. The Regulatory Process Needs to Be Based on the Risk, Not Each Crop Both the regulatory structures in the EU and the US suffer from similar problems: the regulatory structures focus on each specific crop and not on the risk created by the scientific process used to make the crop.90 This is both underinclusive and overinclusive. In the US, where a more permissive policy exists, each product must undergo de-regulation under the Coordinated Framework. This is labor intensive and usually requires $136 million

 Crystal Turnbull, Morten Lillemo & Trine A. K. Hvoslef-Eide, Global Regulation of Genetically Modified Crops Amid Gene Edited Crop Boom – A Review 12 Frontiers Plant Sci. 630396, 13–14 (2021). 87   See, e.g., World Trade Organization, Agriculture Negotiations, World Trade. Org., www​.wto​.org​ /english​/tratop​_e​/agric​_e​/negoti​_e​.htm (last visited Sept. 9, 2022). 88  To date, regulation of genetically engineered crops and food remain either country specific or regional. Turnbull et al., supra note 86, at 14–15. 89   Id. at 13–14. 90   See Strauss & Sax, supra note 10, at 476–77. 86

512  Research handbook on international food law over a decade to obtain de-regulation.91 Not surprisingly, this favors commodity crops and large corporations with the assets to take on the regulatory process. It keeps out small innovative biotech companies. In addition, the current structure regulates specific scientific processes heavily while completely under-regulating other scientific processes. In other words, if a GE crop is created using a genetically modified organism, then it is within the Coordinated framework. But, if a GE crop is created using CRISPR/CAS-9, it might evade regulation (or de-regulation) altogether. The focus on the product, not the risk, is problematic. In the EU, where a less permissive policy exists, each product must be approved by either the EU or a member state. This leads to extreme disconnects. One country may allow a GE crop to be grown while others do not. But, putting aside the agriculture component, it is the importation of GE food for human consumption, or the practical prohibition thereof, that creates the greatest concern. Trading partners, such as many African nations, will simply not grow GE crops because they face such difficulty exporting those products to places in Europe. This means that some of the world’s poorest regions do not utilize the advantages of GE crops. A global compact is needed to allow farmers to take advantage of the technology and know that a marketplace exists for their products. This allows GE technology to be employed in both commodity and non-commodity crops. In particular, a global compact, based on the risk of GE technology, not each product, allows, in particular, third-world countries to have the opportunity to alleviate extreme poverty and malnutrition.

V. CONCLUDING REMARKS The world is facing major challenges, and we need to utilize science to solve some of the problems created by humankind. The population is growing; we need to feed more people. The climate is changing; we need to lessen our impact and even try to reverse the damage. The marketplace is global; we need policies that open doors and allow participation. These are big issues. The food supply is not the only variable but a major variable. Once consumers understand that the entire food supply is genetically modified, typically through mass mutagenic techniques, the more precise technology of genetic engineering may become more relatable. By analogy, the increased fear of vaccines, particularly in the US, is akin to the increased fear of our food sector. Just like the vaccine to protect against serious illness COVID-19 is the scientific way out of the pandemic, similarly, deploying science in our food sector is the scientific way out of climate change, malnutrition, and extreme poverty. Changing how we grow and eat our food is not the only solution to these major problems, but it is an important variable. Our global marketplace needs continuity to face the challenges of this century. The international regulation of genetically engineered food needs to be re-engineered to allow for consistent policies so that the agriculture and manufacturing food sectors can take advantage of the technology. But, in a concluding reflection, please allow the addition that the nexus between law and science is much bigger and much more important than the food supply chain. This chapter is but one topic in a larger career of work dedicated to promoting policies and scholarship that 91

 Jose Rafael Prado et  al., Genetically Engineered Crops: From Idea to Product, 65 Ann. Rev. Plant Biology 769, 770 (2014).

International regulation of genetically engineered food  513 incentivize the advancement of science and promote the use of science to solve problems. The recent COVID-19 pandemic is yet another global problem that requires lawmakers to cooperate and utilize science to alleviate human pain and suffering. We will face other pandemics, and how will the global community respond? What lessons have we learned from this most recent pandemic? We have increased antibiotic-resistant bacteria; this problem can also wipe out people. The list can go on, none the least of which is the problem of climate change. This book chapter seeks to highlight the important nexus of law and science in one area, the international regulation of GE food, but the theory and discussion have utility in ways to think about and approach other important topics.

ANIMAL WELFARE

25. Using the law to enhance the welfare of food-producing animals: recognising sentience, raising standards Caoimhín MacMaoláin

I. INTRODUCTION: FREE MOVEMENT OR ANIMAL WELFARE? The trade agreement reached in June 2021 between the United Kingdom and Australia has illuminated some of the difficulties that arrangements designed to facilitate the free movement of goods pose for the protection of animal welfare. In the immediate aftermath of the publication of the details of this Agreement, concerns were voiced about the impact that lower welfare standards operating in Australia may have on agricultural practices in the UK. The Animal Protection Index, operated by World Animal Protection and grading countries on their commitments to welfare, views the UK as a ‘B’ and Australia as a ‘D’.1 The UK’s Royal Society for the Prevention of Cruelty to Animals (RSPCA) immediately urged their Government not to sign up for any such free-trade arrangement with Australia. This would open their borders to importing and competing products from animals reared to lower welfare standards. Some of these Australian practices are illegal in the UK. These include the production of eggs produced by hens housed in unenriched cages, the use of growth hormones in cattle raised for the production of beef, the practice of ‘mulesing’ sheep, where skin is deliberately removed from the rear of the animal, the hot branding of animals, excessive transportation of live animals, the absence of closed-circuit television monitoring in abattoirs, the use of barren feedlots without shade for cattle and the use of sow stalls limiting the movement of gestating pigs, the latter practice being banned in the UK since 1999 but still permitted in Australia. Countries like the UK, and international organisations such as the EU, regularly classify themselves as having ‘high’ animal welfare standards.2 While, in some instances, they may have better protections for some food-producing animals, it is difficult to make a convincing argument that these jurisdictions could ever be consistently classified as ‘high’. This theme will be explored throughout this chapter. The chapter argues that the international baseline  Available at: api​.wor​ldan​imal​prot​ectio​n​.org. No country has an ‘A’ grade for animal welfare. A handful of European countries have been graded as a ‘B’. Australia, Brazil, the USA, Canada, Russia, Thailand and Turkey, amongst others, have a ‘D’ grade. Only one country has received the lowest grade, with Iran classified as a ‘G’, just behind ‘F’ grade countries like Belarus, Morocco, Ethiopia, Vietnam and Egypt. While Australia gets a ‘D’ overall for animal welfare, it scores lower, at ‘E’, for its laws protecting animals used in farming, while the UK’s overall ‘B’ grade is contributed to by a ‘D’ for the welfare of farming animals. Australia scores very badly on ‘Government accountability for animal welfare’, receiving the lowest possible ‘G’ grade. The UK at least scores a ‘B’ for the same. 2  The European Food Safety Authority, for example, has stated that ‘[s]tandards of animal welfare in the EU are among the highest in the world’, on ‘Animal Welfare’, available at: www​.efsa​.europa​.eu​/ en​/topics​/topic​/animal​-welfare. 1

515

516  Research handbook on international food law for the protection of animals in agriculture is so low that any legal intervention designed to ease suffering partially is touted as being ‘high’. Where real ‘high’ levels of animal welfare do exist, it is usually down to the initiative of individual or co-operatives of primary producers rather than any legislative intervention introduced by a state or lawmaker. Sometimes, it is done as a response to consumer demand, but mostly, consumers remain apathetic to how animals suffer in food production. There is a general unwillingness amongst consumers to pay for the additional costs which may be attached to elevating welfare standards.3 The overriding concern for many consumers remains the availability of cheap and plentiful food supplies. So far, the introduction to this chapter presents a bleak picture of how the welfare of foodproducing animals remains relatively unaffected by the law. However, as agricultural practices have intensified, some attempts have been made to improve their lot. This is partly because it is so dispiriting for those interested in animal well-being to see countries like the UK enter into liberalised trading arrangements with other countries where even some of the most basic welfare requirements do not have to be met. Post-Brexit, the UK suggested that it would now be in a position to improve animal welfare, for example, by introducing new laws setting tighter parameters around the exportation of live animals. They would not have to toe the EU line, and would therefore be free to implement higher welfare standards and prohibit unpalatable practices. To some extent, this may happen. But, overall, it may become nullified by these other Australia-style trade deals. At the same time that the UK was entering into animal welfare-threatening trade agreements, the UK government was also introducing a Bill in Parliament that would recognise animal sentience in national law. The Animal Welfare (Sentience) Bill 2021 was announced to the House of Lords as ‘opening a new chapter in this country’s proud story of protecting and promoting animal welfare [with pride in] the UK’s reputation as a nation of animal lovers’.4 For many types of animals, this mostly extends to a love of eating them, mostly after the animals have led dull, restricted and often unnaturally short and painful lives. The Bill proposes the creation of an Animal Sentience Committee, the main responsibility of which is to produce reports, and possibly recommendations, on government policy that may have

 See, for example, B.K. Boogaard and others, ‘Social acceptance of dairy farming: The ambivalence between the two faces of modernity’ (2011) 24 Journal of Agricultural and Environmental Ethics 259, which illustrates the contradiction between public criticism about modern farming practices but appreciation of the fact that it provides them with safe and cheap food; and M. Brscic, F. Gottardo and G. Cozzi, ‘Citizens’ View on Veal Calves’ Fattening System in Italy and Animal Welfare’ (2013) 78 Agriclturae Conspectus Scientificus 249, where the research found no correlations between concerns expressed for animal welfare and veal meat consumption and/or purchase. 4  As announced by Lord Benyon when commencing the Second Reading of the Bill by the House of Lords on 16 June 2021; available at: https://hansard​.parliament​.uk​/Lords​/2021​-06​-16​/debates​ /81851658​-6B9F​- 4739​-8199​-22398F81085F​/AnimalWelfare(Sentience)Bill(HL). Delusion about ‘animal loving’ and ‘high standards of welfare’ is perhaps reflected in the fact that this despatch included reference to the UK introducing the World’s first animal protection law as an example of their historical commitment to welfare. This was the Cruel Treatment of Cattle Act 1822, which despite the best efforts of animal rights champion and Irish politician Richard Martin MP, was limited to the imposition of fines for those found guilty of ‘wantonly and cruelly’ beating, abusing or ill-treating a specified set of animals, including horses, donkeys, sheep and cattle. Prosecution had to commence within ten days of the offence, otherwise there were no charges to answer. Following this, Martin’s attempts to introduce a Slaughtering of Horses Bill, which would have seen the imposition of fines for using disabled horses to haul carts, was defeated in 1824. See: S Lynam, ‘Humanity Dick Martin ‘King of Connemara’ 1754–1834’, (1989) Dublin: Lilliput Press. 3

Using the law to enhance the welfare of food-producing animals  517 an adverse effect ‘on the welfare of animals as sentient beings’.5 The responsible Secretary of State must respond before Parliament on these reports, but the Bill does not state that any recommendations of the Committee have to be acted upon. While animal sentience is recognised in this UK Bill, this has already been the case for some time in the European Union, since the introduction of the Lisbon Treaty amendments to the Treaty on the Functioning of the European Union (TFEU) and by the earlier Protocol on the Protection and Welfare of Animals annexed to the EC Treaty in 1997. The UK Bill therefore proposes an extension of the recognition of animal sentience. This was already applicable when it was a Member State of the EU. Nevertheless, the UK Bill does establish an oversight committee. However, as an examination of the self-acclaimed ‘high’ welfare laws operating in the EU will show, the mere recognition of animal sentience does not readily translate into significant improvements for the welfare of animals. This chapter commences by examining how the recognition of animal sentience was first introduced into EU law, assessing the extent to which this development can provide any meaningful additional protection for food-producing animals. It looks at specific examples from EU law to identify whether these adequately reflect this TFEU cognisance of animals’ ability to feel pain and other feelings. The legal position in the EU has been chosen as a starting point because it is regularly regarded as setting the highest animal welfare standards in the international arena – an organisation whose regulation in this area should be considered a reference standard. The chapter also assesses existing international animal welfare principles to ascertain whether recognition of animal sentience and setting minimum welfare standards have influenced the application of relevant international regulations, such as those of the World Trade Organization. Ultimately, this chapter explores whether the facilitation of freer trade and policies designed to provide plentiful supplies of cheap and safe food tend to keep animal welfare standards universally low, despite plenty of rhetoric to the contrary.

II.

LISBON AMENDMENTS ON ANIMAL WELFARE IN THE EU

Article 13 of the TFEU provides that: [i]n formulating and implementing the Union’s agriculture, fisheries, transport, internal market, research and technological development and space policies, the Union and the Member States shall, since animals are sentient beings, pay full regard to the welfare requirements of animals, while respecting the legislative or administrative provisions and customs of the Member States relating in particular to religious rites, cultural traditions and regional heritage.

The inclusion of TFEU recognition for cognisance to be paid to welfare standards in EU policy and law-making followed the original formal acceptance of animal sentience in the Protocol on the Protection and Welfare of Animals annexed to the EC Treaty in 1997.6 The 5 6

 S.2(2) of the Animal Welfare (Sentience) Bill 2021.  Treaty Establishing the European Community Protocol No 33 on Protection and Welfare of Animals, 1997. In its conclusions to its 1998 Proposal for a Directive laying down minimum standards for the protection of laying hens kept in various systems of rearing, note 44 below, the Commission noted that ‘[t]he adoption of the Protocol on Animal Welfare to the Treaty of the European Community, as provided for in the Treaty of Amsterdam, obliges the Commission to provide proposals on animal welfare issues which have a real positive effect on the welfare of animals’.

518  Research handbook on international food law wording of this Protocol and Article 13 of the TFEU are virtually identical. This TFEU provision falls into the category of ‘Provisions Having General Application’. It sits alongside other ideals like the promotion of equality;7 attaining high levels of social protection, inclusion, education, employment and health;8 combatting discrimination based on gender, race, ethnicity, religion, disability, age or sexual orientation;9 protection of the environment and sustainable development;10 consumer protection;11 and maintaining transparency and accountability in the activities of the Union’s institutions, bodies, offices and agencies.12 While these are listed as ‘general provisions’ in the TFEU, all bar one are further supported by other more specific provisions elsewhere in the TFEU.13 That one exception is animal welfare. The status of these ‘provisions having general application’, set out in Title II of the TFEU, is somewhat open to question. In all cases, bar the exception set out above, this is of lesser importance given the existence of other, more specific, and probably more persuasive, related provisions of the TFEU. In these other cases, the Institutions can rely more readily on the lawmaking powers set out therein. Take Articles 18 and 19 of the TFEU on discrimination, for example. Article 18 of the TFEU provides that: any discrimination on grounds of nationality shall be prohibited [and] the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, may adopt rules designed to prohibit such discrimination.

Article 19 of the TFEU then further strengthens this prohibition on nationality discrimination by creating provisions for: the Council, acting unanimously in accordance with a special legislative procedure and after obtaining the consent of the European Parliament, may take appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation.

These important TFEU requirements are supported by an array of secondary legislative obligations that must be applied in the EU Member States, including the Recast Directive 2006,14 the Racial Equality Directive 200015 and the Employment Equality Directive, also from  Article 8 TFEU.  Article 9 TFEU.  9  Article 10 TFEU. 10  Article 11 TFEU. 11  Article 12 TFEU. 12  Article 15 TFEU. 13  For example, weighty provisions exist on equality (Article 157 TFEU), social protection (Articles 21, 151 and 153 TFEU), education (Articles 165–166 TFEU), employment (including, for example, the promotion of free movement for workers, as set out in Article 45 TFEU and forming one of the foundations of Union law, as well as providing derogations in Article 107 TFEU from the usual rules restricting the provision of State aid where this is deemed necessary to promote economic development in underdeveloped regions), discrimination (Articles 18 and 19 TFEU), environmental protection (Article 114(3) and Article 191–193 TEFU), and consumer protection (Article 169 TFEU). 14  Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation, [2006] OJ L 204/23. 15  Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin, [2000] OJ L 180/22.  7  8

Using the law to enhance the welfare of food-producing animals  519 2000.16 More controversially, the remit of much of this secondary legislation does not extend far beyond the realms of employment protection and social security. This is despite proposals from as far back as 2008 to introduce harmonised minimum standards of protection in other areas as well.17 These have been frustrated by the unanimity requirement set out in Article 19 TFEU. Having said that, there is clear TFEU provision on equality in a range of areas, supported by significant secondary legislation providing detail and specifics on how this should be properly implemented across all EU Member States, which is now well established and fully operational in relation to employment protection and related areas. In addition to this, Article 160 of the TFEU provides that: [t]he Council, acting by simple majority after consulting the European Parliament, shall establish a Social Protection Committee with advisory status to promote cooperation on social protection policies between Member States and with the Commission [with] tasks [to include monitoring] the social situation and the development of social protection policies in the Member States and the Union, [promoting] exchanges of information, experience and good practice between Member States and with the Commission [and preparing] reports[,] opinions or undertake other work within its fields of competence, at the request of either the Council or the Commission or on its own initiative.

The Social Protection Committee now meets almost every month and at least ten times per year with two delegates from each EU Member State and the Commission addressing a range of social issues, including poverty, pensions, housing, disability and healthcare. By contrast, there is no additional provision in the TFEU on animal welfare protection. It is, to some degree, addressed in other, more general, provisions of the TFEU, but only where these are designed to promote core aims of the Union, such as the free movement of goods. Article 36 of the TFEU, for example, provides that Member States can adopt and maintain national measures that prohibit or restrict the free movement of goods where this can be justified on one or more of a set list of grounds, including ‘the protection of health and life of […] animals’. However, this covers animal protection from a health perspective and is not directed at mistreatment or poor welfare standards. Theoretically, although unlikely, it could be used for this purpose. The argument is that the recognition of animal sentience in EU law is mostly cosmetic. It is not supported by additional and specific primary law provision in the EU. There is some secondary legislation protecting the welfare of food-producing animals, and some improvements have been made. However, even the improved standards are relatively low and not universally applied. When change comes about, it tends to be very slow and heavily reliant on economic feasibility. If it is expensive or inefficient to implement, it is unlikely to make it onto the statute books. Examples of this will be seen throughout this chapter. Article 13 of the TFEU recognising animal sentience, heralding change, came into effect towards the end of 2009. However, most significant EU legislation covering the welfare of food-producing animals predates this. As we shall see, while some species-specific legislative initiatives have been introduced, the framework minimum standards introduced as far

 Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, [2000] OJ L 303/16. 17  Proposal for a Council Directive on implementing the principle of equal treatment between persons irrespective of religion or belief, disability, age or sexual orientation, COM(2008) 426. 16

520  Research handbook on international food law back as 199818 remain relatively unchanged since the sentience recognition in EU law. Also, this Framework EU Directive on the Protection of Animals Kept for Farming Purposes is largely based on the earlier European Convention for the same purpose, and all of the existing Member States had already ratified this Convention at the time.19 Save for a few specific areas, relatively little progress has been made since then.

III. EUROPEAN CONVENTION FOR THE PROTECTION OF ANIMALS KEPT FOR FARMING PURPOSES The Convention for the Protection of Farmed Animals was agreed upon by the Member States of the Council of Europe in 1978 and approved by the European Union during the same year.20 Its short preamble notes the desire ‘to adopt common provisions for the protection of animals kept for farming purposes, particularly in modern intensive stock-farming systems’. It sets the template for most animal welfare laws introduced by the European Union ever since, albeit supplemented from time to time by some species-specific initiatives designed to address particularly repugnant farming practices. The latter are outlined and discussed later in this chapter. The Convention covers animals ‘bred or kept for the production of food, wool, skin or fur or for other farming purposes’.21 ‘Modern intensive stock-farming systems’ are defined as those ‘which predominantly employ technical installations operated by means of automatic processes’. It makes no specific reference to stocking densities which, along with inappropriate housing, can significantly impact welfare standards and, increasingly, pollution and the environment.22 The main purpose behind the Convention is to set a series of principles for animal welfare. These principles, in particular, were to become reflected in the provisions of EU welfare laws. The Principles are set out in Articles 3 to 7 of the European Convention. They are broad and general in nature. For example, Article 3 provides that: [a]nimals shall be housed and provided with food, water and care in a manner which – having regard to their species and to their degree of development, adaptation and domestication – is appropriate to their physiological and ethological needs in accordance with established experience and scientific knowledge.

 Council Directive 98/58/EC of 20 July 1998 concerning the protection of animals kept for farming purposes, [1998] OJ L 221/23. 19  European Convention for the Protection of Animals Kept for Farming Purposes, [1978] OJ L 323/14. 20   Council Decision 78/923/EEC of 19 June 1978 concerning the conclusion of the European Convention for the Protection of Animals Kept for Farming Purposes, [1978] OJ L 323/12. 21  Art 1. 22  See, for example, R.C. Ilea, ‘Intensive Livestock Farming: Global Trends, Increased Environmental Concerns and Ethical Solutions’ (2009) 22 Journal of Agricultural and Environmental Ethics 153, where it is recognised (drawing on UN Reports) that livestock production alone is in the top three contributors to environmental problems globally, leading to increased greenhouse gas emissions, land degradation, water pollution and consequential health problems. 18

Using the law to enhance the welfare of food-producing animals  521 As we shall see when we examine the relevant EU animal welfare laws later on, ‘appropriate to their […] needs’ does not usually include anything like the levels of comfort, space, stimulation and interaction that ethology and scientific knowledge indicates that it should. The legislation designed to put the Convention into practice fails to meet the minimum standards in the broadest principles set over 40 years ago. The Convention more specifically prescribes ‘freedom of movement appropriate to an animal’ which ‘shall not be restricted in such a manner as to cause it unnecessary suffering or injury’.23 Incredibly, the Convention goes on to provide the most self-contradictory of requirements for animals that are ‘continuously tethered or confined’. They are also to be ‘given the space appropriate to […] physiological and ethological needs’.24 The remaining principles of animal welfare relate to housing environmental conditions,25 dangerous foods or substances26 and inspections by animal keepers.27 The remaining eleven sections of the European Convention deal with the roles of Standing Committees and Contracting Parties. One of the major shortcomings of the Convention is that it lacks all significant detail. There is only one general provision of significance, which is diluted by the fact that the resultant laws do not appropriately account for physiological and ethological needs, and there is one specific provision of principle on the issue of movement, space and confinement. The remaining principles, like that contained in Article 6 of the Convention, cover very few real situations as there is no obvious benefit to animal keepers in providing their stock with ‘food or liquid contain[ing] any substance, which may cause unnecessary suffering or injury’. There is a significant benefit for producers to be had from restricting animal movement and space, especially on intensive stock-farming systems, and that is why the employment of these systems accounts for the vast majority of food-producing animal holdings.28 Provisions in the Convention on the establishment of a Standing Committee have, however, helped to bring about some improvements for the welfare of farmed animals. Over the years, this Committee has made a series of recommendations that have been reflected in corresponding EU legislative initiatives. These have included recommendations on the welfare of pigs and calves,29 and the establishment of a definition of the important expression ‘essential needs’,30 which are deemed to be those:

 Art 4(1).  Art 4(2). 25  Art 5. 26  Art 6. 27  Art 7. 28  Food and Agriculture Organisation (FAO) estimates suggest that, while the figures are regiondependent, just under three-quarters of all poultry are reared on intensive holdings globally, with over three-quarters of pigs raised intensively. Figures from www​.fao​.org​/3​/i3460e​/i3460e​.pdf. 29  There have been several recommendations made by the Standing Committee concerning pigs, the first of which was made in 1986, and most recently in 2004. The Recommendation concerning cattle was made in 1993, Appendix C to which contains special provisions for calves. Other recommendations have been made by the Standing Committee over the years, including those related to farmed fish (2005), turkeys (2001), goats and sheep (1992) and animals farmed for fur (1990 and 1999). All recommendations are available at: www​.coe​.int​/en​/web​/cdcj​/farming. 30  Standing Committee of the European Convention for the Protection of Animals Kept for Farming Purposes, T-AP (2001) 32, Adopted 25 November 2003 and available at: www​.coe​.int​/en​/web​/cdcj​ /farming. 23

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522  Research handbook on international food law which have to be fulfilled to enable an individual animal to maintain its health and welfare by safeguarding its physiological and mental functions, including performing satisfactorily species-specific behaviour.

The extent to which these minimum needs are met by European Union law will form the focus of the next section of this chapter, which will include identification and evaluation of some of the most significant changes that have been introduced in more recent years to ensure that farmed animals are facilitated in engaging in their natural behaviour in a way that realistically protects their physiological and mental instincts.

IV. EU ANIMAL WELFARE LAWS The EU’s website opens its animal welfare section by declaring that ‘the European Commission has been promoting animal welfare for over 40 years’, admitting that steps taken to improve the lives of farm animals have been ‘gradual’.31 It has indeed been very gradual and insufficient on closer examination. As mentioned earlier, the 1998 Directive,32 based on the European Convention, is the main framework for protecting food-producing animals. The Directive, while very general, does at least set out the ‘five freedoms’ that are to underpin all EU animal welfare laws and policies. These include freedom from hunger and thirst; from discomfort; from pain, injury and disease; freedom to express normal behaviour; and freedom from fear and distress. Most of the specific details on how this can be achieved are in the Annex to the Directive. It lists staffing requirements (sufficient number; competent and knowledgeable); inspections (regular and acted upon if necessary); free movement (species-specific; avoiding unnecessary suffering or injury); accommodation (safe; ventilated; available for protection from weather, disease and predators); and adequate feed and water availability. These general principles of animal welfare were translated, mostly during the 1990s,33 into more speciesspecific legislative requirements, including those for pigs,34 calves35 and poultry.36

 ​ec​.eu​​ropa.​​eu​/fo​​od​/an​​imals​​/anim​​al​-we​​lfare​​_en.  Directive 98/58/EC, note 18 above. 33  Although the current EU Directives on the welfare of pigs and calves were introduced in 2008, these replaced the original versions from 1991, including Council Directive 91/630/EEC on pigs, [1991] OJ L 340/33; and Council Directive 91/629/EEC on calves, [1991] OJ L 340/28. These replacements were necessary due to the amendments that had been made to the original 1991 directives over the subsequent near two decades and both of which predated the Treaty Protocol, note 6 above, and the EU Framework Directive, note 18 above. 34  Council Directive 2008/120/EC of 18 December 2008 laying down minimum standards for the protection of pigs, [2008] OJ L 47/5. 35  Council Directive 2008/119/EC of 18 December 2008 laying down minimum standards for the protection of calves, [2008] OJ L 10/7. 36  Council Directive 1999/74/EC of 19 July 1999 laying down minimum standards for the protection of laying hens, [1999] OJ L 203/53; and Council Directive 2007/43/EC of 28 June 2007 laying down minimum rules for the protection of chickens kept for meat production, [2007] OJ L 182/19. 31

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Using the law to enhance the welfare of food-producing animals  523 iv.a Pigs While legislation has improved the lot of the intensively reared pig, with some specific initiatives making a real difference, the current requirements work more towards the goal of establishing ‘common minimum standards’ rather than properly addressing ‘their needs for exercise and investigatory behaviour’.37 They fall far short of facilitating natural behaviour and good husbandry. As is often the case with welfare legislation, considerations other than animal well-being dictate the degree to which the law will address the recognised needs of animals. While the Preamble to the Protection of Pigs Directive refers to the fact that ‘[t]he welfare of pigs appears to be compromised by severe restrictions of space’, it is arguably the other considerations of pigs being ‘a source of revenue’, ‘conditions of competition’ and the ‘organisation of the common market’ that has more heavily influenced the ultimate direction of these ‘common minimum standards for the protection of pigs’. Young pigs are granted as little as 0.15 square metre of floor space, rising to two-thirds of a square metre for a 100 kg pig. Even at this, these floor spaces can be slatted for waste drainage. Confining and barren farrowing crates are permitted, preventing the heavily pregnant sow from engaging in anything like her natural behaviour. However, on the positive side, the Directive prohibited tethering for female pigs from 2006 onwards.38 The use of sow stalls was banned in 2013.39 While there is recognition within the legislation that welfare issues need to be addressed, these are often held back to ensure that food produced from animals does not become significantly more expensive to produce and purchase. The Protection of Pigs Directive, for example, compels the European Commission, in conjunction with the European Food Safety Authority, to draw up reports, and possibly legislative proposals, on the need or otherwise to castrate pigs,40 the impact of stocking densities and space on welfare, the need for tail-docking, and consumers’ attitudes towards pig welfare.41 All of this was to be reported with cognisance for socio-economic implications.42 The legislative proposals that led to the revised Protection of Pigs Directive were published in 2001 after the EU Scientific Committee on Animal Health and Animal Welfare found that action needed to be taken to improve the conditions for pigs reared on intensive holdings.43 The Committee found that keeping pigs in social isolation and stalls limits possibilities for engaging in natural behaviour and that artificial and slatted floors cause injury and discomfort. They also impede natural behaviour, such as rooting. The Committee therefore recommended a ban on sow stalls (although not on farrowing crates); a ban on tethering female pigs; a minimum size for pens, which would allow turning around; and permanent access to rooting materials. The socio-economic impact was deemed to be limited. Despite the fact that several EU Member States had already gone beyond the  Preamble to Council Directive 2008/120/EC, note 34 above.  Art 3(3). 39  Art 3(9). 40  Art 7(1) of Directive 2008/120, note 34 above. This Report was due by 2005, three years before Directive 2008/120 was published. The original Protection of Pigs Directive 91/630/EEC set an earlier date for similar reporting from the Commission by 1997. 41  Art 7(2). 42  Art 7(1) and (2). 43  Proposal for a Council Directive amending Directive 91/630/EEC laying down minimum standards for the protection of pigs, COM (2001) 20, [2001] OJ C 154 E/114. 37

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524  Research handbook on international food law welfare requirements of the original Protection of Pigs Directive by banning individual stalls, for example, the proposals still allowed a lengthy transitional period for existing holdings to implement the new, somewhat modest changes for over a decade. These types of lead-in periods are common for new EU animal welfare requirements. iv.b Hens The second good example of some progress in promoting the welfare of food-producing animals is what has happened with egg-laying hens. An EU Commission Report on the protection of laying hens, which followed a Scientific Veterinary Report on the welfare standards of egg production systems,44 proposed the replacement of existing EU legislation in operation at the time,45 which would lead to an improvement in welfare standards. Unenriched cage systems would be phased out over, again, a ten-year period. The Commission Communication containing this proposal made it clear that the protection of laying hens was an exclusive competence of the EU, and a failure to act would be contrary to obligations contained in the European Convention for the Protection of Animals Kept for Farming Purposes and would also distort competition between producers in different EU Member States, consequently creating an imbalance in the operation of the internal market. Harmonised minimum standards would thus be required both to redress this competitive imbalance between those who were employing higher welfare standards and those who were not, and this would also go some of the way towards addressing the EU Commission’s recognition that ‘there is clear evidence for poor welfare in hens kept in battery cages’.46 However, as we shall see, the Commission stopped short of banning cages altogether in egg production due to recognising that there were still some disadvantages with alternative housing systems that remained unresolved at this time. In this case, there would at least be improvements to minimum space per hen in cage systems, with some enrichment or stimulation being provided for the birds to help them more readily engage in some of their natural behaviour. The result was a new directive, introduced in 1999.47 The key development made by this new directive was the eventual prohibition of the use of unenriched cages in egg production. The Directive distinguished three types of systems: the unenriched cage, the enriched cage and the alternative system. No new unenriched cages could be built for housing hens from 2003 onwards.48 However, unenriched cages were still permitted for use for another period after this, not being fully prohibited until 2012.49 The  Proposal for a Council Directive laying down minimum standards for the protection of laying hens kept in various systems of rearing, COM (1998) 135. 45  Council Directive 88/166/EEC of 7 March 1988 laying down minimum standards for the protection of laying hens kept in battery cages, [1988] OJ L 74/83. This Directive was introduced following the decision of the European Court of Justice in Case 131/86, UK v Council ECLI:EU:C:1988:86, to annul Directive 86/113/EEC, [1986] OJ L 95/45, on the grounds that the published legislation differed from the original proposal, including a deletion of a remark in the preamble to the original 1986 Directive that it constituted ‘the first step in the establishment of common minimum requirements applicable in all intensive housing systems’. 46  Proposal for Directive 1999/74/EC, note 36 above. 47  Council Directive 1999/74/EC of 19 July 1999 laying down minimum standards for the protection of laying hens, [1999] OJ L 203/53. 48  Art 5(2). 49  Art 5(2). 44

Using the law to enhance the welfare of food-producing animals  525 unenriched cage system had to provide at least 550 squared centimetres per hen of cage area, which in practice is less than 23.5 cm by 23.5 cm per hen.50 Cages would also have to be at least 40 cm high – but only over two-thirds of the cage area. Other parts of the cage could drop to a height of 35 cm.51 While the unenriched systems could continue for nearly 14 years after the Preamble to the Directive recognised the inadequacy of these cages for housing birds and meeting their needs, this still represents one of the most significant welfare developments to have been introduced into EU law since signing up to the principles of the European Convention for the Protection of Animals kept for Farming Purposes. However, it still falls short of ‘the highest possible standards’ that it purports to introduce.52 Primarily, this is because ‘enriched’ cage systems are still permitted. What makes these cages ‘enriched’ is the inclusion of additional space, rising from 550 squared cm to 750 squared cm per hen (which is still only 27.3 cm by 27.3 cm, less than what was originally proposed, and only 600 of these 750 square centimetres have to be usable, having headroom of at least 45 cm), a nest (which should be a separate space for egg-laying where the floor components do not include wire mesh – the absence of appropriate flooring being a consistent problem for birds housed within caged systems), litter that makes pecking and scratching possible and the availability of perches.53 For ‘alternative systems’ there would now have to be at least one nest for every seven hens, with at least a metre squared of nest space in group nests where these are used for up to a maximum of 120 hens.54 Perches would also have to be provided, with minimum specifications also set for these.55 The most significant feature of these ‘alternative’ systems is that they can include access to open runs with popholes providing access to these outer areas.56 The open-run areas would have to be of a size appropriate to stocking densities and equipped with a sheltered area offering protection from inclement weather and predators.57 These ‘alternative’ systems could still house a significant number of laying hens in relatively modest spaces as the maximum stocking density was set by the Directive at nine birds per metre squared of usable area.58 The Protection of Laying Hens Directive offers a good example of how EU animal welfare legislation works. A Report is published, usually identifying that a change to minimum standards needs to be made, in this case, the introduction of a prohibition on unenriched cage systems. The change is made (sometimes partially) through the introduction of new legislation, usually with a long transitional period, in this case allowing holdings 12 years to convert  Art 5(1)(1).  Art 5(1)(4). 52  Recital 7 of the Preamble to Directive 1999/74, note 36 above. 53  Art 6(1). 54  Art 4(1)(1)(c). 55  Art 4(1)(1)(d). Perches would have to provide at least 15 cm per hen and would have to be placed in a suitable position. These are similar perching requirements to those which must be available in enriched cage systems. 56  The minimum height for these popholes was set at a level only fractionally lower (35 cm) than the minimum cage height set for unenriched systems (40 cm), where the hens would, of course, spend all of their time without any access to less restrictive areas. Art 4(3)(i). 57  Art 4(3)(b)(ii). 58  Art 4(4). Although, this stocking density could be extended up to 12 hens per metre squared for 12 years after the publication of the Directive once the holding had been in operation and employing this type of system since 1999. 50 51

526  Research handbook on international food law (and some did not meet this obligation). The change is usually only considered after an investigation into the socio-economic implications making it. In this case, it was estimated that the additional costs would not be prohibitive, averaging a very small amount for consumers.59 Finally, the legislation normally contains an Annex outlining species-specific welfare requirements that are to apply in addition to and have been tailored by the framework standards set out in the 1998 EU Directive.60 In this case, these species-specific requirements include obligations related to daily inspections, sound and light levels, cleanliness, suitability of accommodation and the avoidance of unnecessary pain or suffering. On the latter point, while the Annex prohibits all mutilation, beak trimming is permitted where necessary to prevent pecking and cannibalism. If used, it must be carried out by qualified staff and only on chickens less than ten days old and intended to be used for laying eggs. iv.c Calves A third significant welfare-friendly initiative introduced by the EU since the Amsterdam Protocol has prohibited using confined individual pens for calves over eight weeks old. Following an Opinion from the European Food Safety Authority report on welfare standards in intensive calf farming systems,61 which recommended that ‘[s]ince calves are social animals, they should be kept in social groups wherever possible’, a new EU Directive was introduced to address the recognition that ‘calves should benefit from an environment corresponding to their needs as a herd-living species’.62 Calves should therefore be provided with ‘sufficient space for exercise, for contact with other cattle and for normal movements when standing up or lying down’,63 something that certain farming practices have not always provided them with, including most controversially a lot of the calves that have been reared for the production of veal. The Protection of Calves Directive prohibits using individual pens for animals after they have reached eight weeks of age.64 The only exception to this is when a veterinarian has certified that the health or behaviour of the calf means that it should be isolated in order to be able to receive appropriate treatment. Importantly, the Directive also provides that animals imported into the EU from a third country must be certified as having been reared to equivalent welfare standards to those set out in the legislation.65 Also, individual EU Member States  The analysis of the economic consequences of increasing space per bird in cages that formed part of the Proposal to change welfare requirements for egg-laying hens estimated that ‘the additional expenditure [for consumers] is very small and is estimated to amount about to 1.12–1.56 ECU per head per annum’, roughly a cent per egg. Communication from the Commission on the protection of laying hens kept in various systems of rearing, COM (1998) 135. 60  Directive 98/58/EC, note 18 above. 61  EFSA Opinion on ‘The risks of poor welfare in intensive calf farming systems. An update of the Scientific Veterinary Committee Report on the Welfare of Calves’, (2006) EFSA Journal 1. 62  Preamble recital 7 to Council Directive 2008/119/EC of 18 December 2008 laying down minimum standards for the protection of calves, [2009] OJ L 10/7. 63  Preamble recital 7 to Council Directive 2008/119/EC of 18 December 2008 laying down minimum standards for the protection of calves, [2009] OJ L 10/7. 64  Art 3(1)(a). The prohibition on new holdings using individual pens was originally introduced in 1998 under Directive 91/629/EEC, [1991] OJ L 340/28. This was extended to all holdings by the end of 2006. 65  Art 8. 59

Using the law to enhance the welfare of food-producing animals  527 are permitted to apply higher welfare standards than those set out in the Directive for calves on their own territory, provided that they inform the Commission about these measures.66 The Protection of Calves Directive also has an annex listing the species-specific welfare requirements for these animals. This includes a provision on housing standards, lighting (calves cannot be kept in permanent darkness), inspections, freedom of movement (creating the ability to lie down, rest, stand up and groom themselves), prohibitions on tethering (other than for short periods for feeding), cleanliness and feeding adequacy (at least twice per day; access to water; bovine colostrum within the first six hours of life).67 iv.d Cages In addition to full recognition of the sentience of animals in the Lisbon amendments to the TFEU, discussed earlier in this chapter, the ‘Citizens’ Initiative’ was also introduced by these changes. Article 24(1) TFEU provides that: [t]he European Parliament and the Council, acting by means of regulations in accordance with the ordinary legislative procedure, shall adopt the provisions for the procedures and conditions required for a citizens’ initiative within the meaning of Article 11 of the Treaty on European Union.

Article 11 TEU provides more detail. It sets the way for the introduction of Article 24 TFEU above and, in particular, Article 11(4) TEU provides that: [n]ot less than one million citizens who are nationals of a significant number of Member States may take the initiative of inviting the European Commission, within the framework of its powers, to submit any appropriate proposal on matters where citizens consider that a legal act of the Union is required for the purpose of implementing the Treaties.

The details of how these citizens’ initiatives can be properly introduced are set out in a 2019 EU Regulation.68 Significantly, this citizens’ initiative procedure has possibly led to one of the most important, if not the most important, changes that will likely ever be made to EU animal welfare law. It may see the end of all caged animal farming by 2027. A European citizens’ initiative to ‘end the cage age’ was organised by the non-governmental organisation Compassion in World Farming and launched in 2018. Within a year, the initiative had gathered the required one million signatures (1.4 million collected) from supporters of the campaign across 28 EU Member States. This was only the sixth European Citizens’ Initiative (ECI) to succeed, and it has the potential to lead to significant improvements for hundreds of millions of farmed animals within a decade of its initial launch. The EU Commission responded positively to the ECI with a commitment to propose legislation banning the use of cages in farming across all Member States. This proposal is expected before the end of 2023.  Art 11.  Bovine colostrum is the milk that is produced by a cow for several days after giving birth to calves, which is a source of antibodies and growth promoters that provide the newborn calf with natural protections. 68  Regulation (EU) 2019/788 of the European Parliament and of the Council of 17 April 2019 on the European citizens’ initiative, [2019] OJ L 130/55. As Art 1 of this Regulation states, it ‘establishes the procedures and conditions required for an initiative inviting the Commission […] to submit [a legislative] proposal on matters [within the EU’s competence]’. 66 67

528  Research handbook on international food law It will include a transition period, allowing existing holdings to convert to cage-free farming. It is hoped that this prohibition will be in place by 2027, but given the previous history of particularly long transition periods for improved animal welfare standards in agriculture and likely objections from some EU Member States, it would not be a surprise if an outright ban comes sometime after this. The Proposal will only be introduced after a public consultation, an impact assessment (including socio-economic factors), and the publication of scientific opinions from the European Food Safety Authority. Despite the inevitable delays that will occur, which are inherent in EU welfare law-making for various reasons, this initiative is destined to be a most significant marker of progress in protecting the welfare of food-producing and other caged farm animals. It is hoped that the legislation will finally ban the use of cages for species including hens, rabbits, broilers and other poultry, as well as end the use of farrowing crates and stalls for pigs and individual pens for calves where in those cases where this has not already been prohibited. The introduction of a legislative initiative like this, although originally emanating from citizens rather than legislators, also sits comfortably with the aims and objectives of the European Green Deal, which commits to improving animal welfare in the context of sustainability and environmental protection.69 It is hoped that by making progress on the matters of fundamental importance outlined in the Green Deal, the European Union can also influence international standards in ways that will potentially lead to improved environmental and animal welfare protection globally. Currently, international standards for protecting food-producing animals remain mostly aspirational. While these seek to make the incorporation of the ‘five freedoms’ into law the international norm, the fact that welfare standards are deliberately disregarded as a basis for a promotion or restriction on international trade means that this is largely ignored by most states. There is virtually no trading or economic benefit to be had from developing or implementing higher welfare standards – hence they tend to remain of peripheral concern to policymakers and legislators.

V. INTERNATIONAL ANIMAL WELFARE STANDARDS The International Office for Epizootics (OIE) Agreement was agreed upon by 28 states in 1924 through negotiations at the League of Nations. After the formation of the United Nations following the Second World War, the Food and Agriculture Organisation (FAO) and the World Health Organisation (WHO) came into being, and the work of these two bodies overlapped much of what the OIE was designed to do. Rather than disband, the OIE reached an Agreement with the FAO in 1952. Since then, the OIE has assisted several international organisations with harmonising their animal health legislation and standards, including the European Union, the WHO, the Inter-American Institute for Cooperation on Agriculture (IICA), the Secretariat of the Pacific Community (SPC), the Central American Organismo Internacional de Sanidad Agropecuaria (OIRSA), the Organisation of African  European Commission (2020), ‘Farm to Fork Strategy: For a fair, healthy and environmentallyfriendly food system’, available at: https://food​.ec​.europa​.eu​/ horizontal​-topics​/farm​-fork​-strategy​ _en. The Strategy notes that ‘[b]etter animal welfare improves animal health and food quality, reduces the need for medication and can help preserve biodiversity’, underlying the benefits not just for the animals themselves, but for all of us and for the planet!

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Using the law to enhance the welfare of food-producing animals  529 Unity – Interafrican Bureau for Animal Resources (OUA-IBAR), the International Federation for Animal Health (IFAH), the World Veterinary Association (WVA), and others. In 2003, the International Office of Epizootics became the World Organisation for Animal Health (still OIE). It is the World Trade Organisation’s (WTO) recognised point of reference for international sanitary and phytosanitary measures (SPS) related to animal health.70 It now has over 180 Member Countries. Throughout this time, the remit of the OIE has been more on the side of animal health and disease prevention than the promotion of international animal welfare standards. Significantly, however, the OIE and its Member Countries adopted a Global Animal Welfare Strategy in 2017. v.a

Global Animal Welfare Strategy

Animal welfare regulation is regularly, if not predominantly, developed within the context of human benefit. This is also the case for the OIE Global Animal Welfare Strategy.71 It is a relatively short document, which commences by outlining how ‘[a]nimal welfare is closely linked to animal health [and] the health and well-being of people’.72 This is a strategy that has been used in other areas as well. For example, it was recognised some time ago that possibly the most effective way of coercing humans into altering their behaviour for the benefit of the environment was to phrase climate change messaging as an individual rather than a collective benefit. It is presumed that people will be more likely to act in an environmentally friendly manner if the advantages to their own personal health and well-being of adopting a low-carbon lifestyle are portrayed to them.73 One of the primary reasons consistently given for using the law or policy to promote animal welfare is the benefit for humans by producing better quality and safer food. It is rarer that the stated raison d’etre for the adoption of animal welfare measures is the well-being of the animal. The OIE Global Animal Welfare Strategy also recognises animals as sentient beings, stating that while the use of animals for food production is legitimate, it also carries ‘an associated ethical responsibility to ensure any such use is humane’. This is to be measured according to the OIE’s international standards for animal welfare. The first OIE animal welfare standards were published in 2004 and have undergone regular updates. Although these standards are  Recital 6 of the Preamble to the WTO Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement) states that there is a desire ‘to further the use of harmonised sanitary and phytosanitary measures between Members, on the basis of international standards, guidelines and recommendations developed by the relevant international organisations, including the [International Office of Epizootics]’. Art 3(4) of the WTO SPS Agreement further provides that ‘[m]embers shall play a full part […] in the relevant international organisations [including] the International Office of Epizootics’ with Annex A to the Agreement recognising that the accepted animal health and zoonoses standards, guidelines and recommendations for international trade regulation purposes are those ‘developed under the auspices of the International Office of Epizootics’. 71  World Organisation for Animal Health, ‘OIE Global Animal Welfare Strategy’ (2017), available at: www​.woah​.org​/app​/uploads​/2021​/03​/en​-oie​-aw​-strategy​.pdf. 72  Benefits for ‘the sustainability of socio-economic and ecological systems’ are also noted in the Strategy Context. 73  A Costello and others, ‘Managing the health effects of climate change’ (2009) 373 The Lancet 1693. This message was delivered in two ways. The first was that climate change would affect the ability to produce food, leading to starvation, malnutrition, death and disease. The second was that lowercarbon emitting lifestyles are linked to lower rates of heart disease, obesity and diabetes. 70

530  Research handbook on international food law to be developed based on the most recent scientific developments, crucially, they are not recognised by the WTO SPS Agreement, leaving them without meaningful legislative support.74 The OIE Standards on animal health are, however, recognised by the WTO – again underlining the priority of safe food for humans and disease control over the welfare of the animals used to produce that food. The OIE has defined ‘welfare’ as ‘a broad term which includes the many elements that contribute to an animal’s quality of life, including those referred to in the “five freedoms”’.75 OIE Standards have been developed on animal transportation and slaughter and are contained in the Terrestrial Animal Health Code, first published in 1968 but updated regularly.76

VI.

CONCLUDING REMARKS

Welfare standards for food-producing animals have traditionally been set so low that when any respite or even modest improvement is afforded, it is proclaimed as setting the ‘highest of standards’. Despite the recognition in EU law and International OIE Guidelines and Standards that animals are sentient beings who have feelings and emotions and who can think and suffer, the drive for cheaper, more efficient ways of producing food, usually through intensive agricultural practices, has led to the employment of poor conditions being considered as more the norm. Almost all pigs reared in developed countries, for example, are deprived of the ability to engage in proper natural behaviour as they will never see the outdoors. Almost all male pigs are castrated and tail-docked, even though both EU law, and the OIE Codes,77 make it clear that these procedures should only be used when necessary. Around 1.4 billion pigs are reared for slaughter each year. Despite the welcome ban on unenriched systems, it is estimated that approximately 60 per cent of Europe’s 500 million egg-laying hens are still caged. The ‘highest of standards’ really only exist in organic farming regulations. Almost everything else falls short of being able to make such a claim. Under EU law, animals reared for the production of organic food should be done with respect for ‘high animal welfare standards’ and should

 As far back as 2004, the OIE called for the drafting of a document with the WTO ‘clarifying the international legal issues and treaty obligations associated with animal welfare and internationals trade’. Report of the Second Meeting of the OIE Working Group on Animal Welfare, February 2004, Paris, available at: https://doc​.woah​.org​/dyn​/portal​/index​.xhtml​?page​=alo​&aloId​=22882​ &espaceId​=100. In practice, this has only extended, as stated above, to animal health and not to other aspects of ‘welfare’ as defined by the OIE. 75  Appendix C to the Report of the Second Meeting of the OIE Working Group on Animal Welfare, note 74 above. 76  The 2021 Code is published online and is available at: oie​.in​t. The Code started out as mostly an address to animal health and zoonoses but has expanded in more recent years to include provisions on animal welfare. Chapter 7 specifically deals with animal welfare and includes sections on animal transportation and slaughter, as already mentioned, but also on welfare standards in pig, broiler, beef and dairy production systems. The main way that these international standards can impact upon national welfare laws is through the application of the WTO SPS Agreement, recognising OIE standards as the international norm. Again, however, this mostly relates to the protection of animal health and the prevention of the spread of disease, and not directly to the promotion of animal welfare. 77  Art 7.13.8 of the OIE Terrestrial Code. 74

Using the law to enhance the welfare of food-producing animals  531 ‘meet animals’ species-specific behavioural needs’,78 including the provision of ‘permanent access to open air areas’,79 and keeping the duration of transportation to a minimum.80 However, trade trumps animal welfare standards based on sentience. As a by-product of this, the protection of humans also does. Until a compromise is found between facilitating trade in safe food on the one hand and proper implementation of the recognition of animals as sentient beings on the other, welfare standards in many common agricultural systems are destined to remain relatively low. International trade agreements, purported to be based on scientific evidence, willingly ignore that input when it comes to the protection of animals. Exemptions are provided by law for religious and cultural traditions at the expense of animal well-being.81 As has already been noted, where laws are introduced, even those making modest improvements, like curtailing mutilation, they are often flouted. The EU Commission regularly reports to the EU Parliament and the Council on implementing the basic standards set by the 1998 Directive on the Protection of Animals Kept for Farming Purposes.82 In its most recent report,83 the Commission found non-compliance with the law on the protection of pigs in most of the Member States. Some were found to ‘be doing very little with regard to preventing routine tail-docking’, for example. Unsuitable materials for housing of pigs ‘were considered acceptable by a majority of the Member States’ officials’. In some cases, even basic manipulable material was not provided. There was also found to be non-compliance with the provisions discussed earlier in this chapter on freedom of movement for calves and tethering. On a more positive note, there was deemed to be good compliance with two of the significant initiatives discussed here, the ban on unenriched cage systems for laying hens and the use of individual stalls for sows. This underscores the principle that in many cases, it will only be  Recital 17 of the Preamble to, and Arts 3(a) and 5(h) of, Council Regulation (EC) No 834/2007 of 28 June 2007 on organic production and labelling of organic products, [2007] OJ L 189/1. 79  Art 14(b)(iii) of Regulation 834/2007, note 78 above. 80  Art 14(b)(vii) of Regulation 834/2007, note 78 above. 81  In the European Union, Recital 1 of the Preamble to Directive 2007/43 for example, note 36 above, that while the Treaty Protocol on the protection and welfare of animals, note 6 above, ‘requires that in formulating and implementing agricultural policies, the [Union] and the Member States are to pay full regard to the welfare requirements of animals’ this is subject to ‘respecting the legislative or administrative provisions and customs of the Member States relating in particular to religious rights, cultural traditions and regional heritage’. The OIE, in its 2004 Report, note 74 above, ‘considered the important issue of religious slaughter [and] recognised that the guiding principles applied equally to religious slaughter’. However, the OIE Recommendations on the Slaughter of Animals, contained in Chapter 7.5 of the Terrestrial Animal Health Code, makes no mention of slaughter processes based on religious or cultural traditions, despite the fact that the OIE has acknowledged that ‘[m]any current practices [based on religion] are not in accordance with [religious] teachings and may result in great cruelty to animals’, Foreword by the Director General to Paper on ‘Compatibility between the OIE standards and the requirements of [religious] law with special reference to the prevention of cruelty to animals during transport and slaughter’, available at: www​.woah​.org​/fileadmin ​/ Home​/eng​/Animal​_Welfare​/docs​/pdf​/Others​/ Religious​_ Slaughter​/A​ _Religious​_slaughter​.pdf. This respect for ‘religious rights’ persists despite the fact that there is scientific evidence for the suffering of animals at the hands of these practices yet there is no corresponding scientific evidence to support religious claims. 82  Directive 98/58, note 18 above. Art 5 of this Directive provides that the Commission must report in this way every five years. 83  Report from the Commission to the European Parliament and to the Council on the implementation of Council Directive 98/58/EC concerning the protection of animals kept for farming purposes, COM (2016) 558. 78

532  Research handbook on international food law an outright prohibition on a particular practice that ever works. Once exceptions are provided, the rules will be liberally interpreted or misunderstood, and the efficacy of the provision that minimises the use of an undesirable practice will diminish significantly. Internationally, legal safeguards protecting the well-being of food-producing animals are likely to remain at these relatively low levels until it is accepted that the ‘health’ of animals is only one aspect of welfare. Recognising the ‘sentience’ of animals in the law has done little to improve the situation – consider the fact that that is recognised in EU law as a ‘provision having general application’ but ultimately has very little such effect. What changes have been made to reflect this have tended to be slow in reaching fruition and modest in ambition. The fact that the WTO recognises the protection of animal health as an influential aspect of international trade law but deliberately overlooks how animals used in the production of food are treated in that process encapsulates all that is wrong about how the law has developed in this area. Proclamations are made about standards being high when in reality, they are demonstrably low. Laws are devised to protect animal health, but only to benefit human well-being. While the recognition of animal sentience initially offered some hope of improvements in this area, it is only when the public takes it upon themselves to act that meaningful change is brought about. This can be seen in the example of the Citizens’ Initiative, which may eventually lead to the banning of cage use across the EU. It can be seen in the actions of some individuals, producers and consumers, who want to see things done differently and act upon that conviction by changing their production processes or purchasing preferences. It is rarely seen in the acts of lawmakers anywhere. The political will to improve the welfare of food-producing animals where this may interfere with the cost or abundance of food would not appear to exist in any of the jurisdictions examined in this chapter.

HUMAN RIGHTS AND FOOD SOVEREIGNTY

26. When crits go to the UN: conversations with Olivier De Schutter, Hilal Elver and Michael Fakhri about the right to food Amy J. Cohen and Nadia C.S. Lambek

I. INTRODUCTION In March 2021, three international legal scholars wrote an op-ed in their capacity as the current and past UN Special Rapporteurs on the right to food. Olivier De Schutter, Hilal Elver, and Michael Fakhri warned that “global food systems have been failing most people for a long time” and that the then ongoing UN Food System’s Summit was not offering a legitimate path forward.1 The Special Rapporteurs argued that rather than a “peoples’ Summit,” as claimed by the organizers,2 the Summit was undercutting already established and participatory global governance mechanisms, privileging corporate interests over those of social movements, and failing to take human rights seriously or even address the right to food at all. The three Special Rapporteurs’ concerns about corporate capture, the false claims of participation, and an end to multilateralism were not so surprising. The Summit, branded as a multistakeholder platform, was from the very beginning a corporate and not state or movement-driven process that offered only limited and circumscribed avenues for popular participation.3 But the Special Rapporteurs’ claim that Summit organizers failed to integrate or even discuss the right to food pointed to something more striking. The right to food has been recognized in international law since 1948 and was central to the last food system summit in 1996.4 What was so controversial, so disruptive about the right to food, that in 2021 it failed to gain even the most basic, cursory, and performative support in this summit geared specifically at addressing the challenges facing contemporary food systems? In this chapter, we explore how the right to food has become legible today as something that powerful actors resist and that their critics level against them. In particular, we examine how three Special Rapporteurs have articulated and used the right to food to challenge dominant allocations of resources and power. We present a series of interviews with De Schutter, Elver,  Michael Fakhri, Hilal Elver & Olivier De Schutter, The UN Food Systems Summit: How Not to Respond to the Urgency of Reform, Inter Press Service News Agency (March 22, 2021), www​ .ipsnews​.net​/2021​/03​/un​-food​-systems​-summit​-not​-respond​-urgency​-reform/. 2  The Summit was convened by UN Secretary General António Guterres, led by the former head of AGRA (the Gates funded Alliance for a New Green Revolution in Africa), and connected to the World Economic Forum and Davos. 3  For a longer discussion of the Food Systems Summit, see Matthew Canfield et al., UN Food Systems Summit: Dismantling Democracy and Resetting Corporate Control of Food Systems, 5 Frontiers in Sustainable Food Sys. 103 (2021). 4  G.A. Res. 217 (III) A, Universal Declaration of Human Rights, (Dec. 10, 1948); FAO, Rome Declaration on World Food Security, FAO(063)F688 (Nov. 13–17, 1996); FAO, World Food Summit Plan of Action, FAO (063)F688 (Nov. 13–17, 1996), at commitments 1 and 7. 1

534

When crits go to the UN  535 and Fakhri conducted in fall 2021. In the interviews, we asked them to discuss how they understand the scope and content of the right to food as well as the underlying theories of justice, equity, law, political economy, and transformation that have informed their mandates. What emerges are three distinct understandings of the right to food and its role in governing food systems that nevertheless all share radical ambitions to advance system-wide transformations, including how human rights themselves are understood. In presenting these three interviews, we also explore why and how actors with critical, even skeptical, sensibilities about human rights as tools of emancipation nevertheless became fierce defenders of the right to food. Trained in various left critical traditions, De Schutter, Elver and Fakhri all express wariness about formal legal structures and the emancipatory possibilities afforded by labeling something a “human right.” And yet all three sought positions in the establishment—they applied, filled in a lengthy application form, sought letters of recommendation, and accepted unpaid positions—to promote and realize the right to food. Hence, we ask: what about food—the political economy of food governance and the embeddedness of food in our social, cultural, and familial realities—inspires them to mobilize human rights as a tool for political, economic, and social change? We begin with a brief discussion of the formal definition of the right to food encoded in international law as well as a description of the role of the Special Rapporteur. We then present interviews with De Schutter, Elver, and Fakhri5 that illustrate their varied approaches to subverting the right to food and channeling it to radical ends.6

II. WHAT IS THE RIGHT TO FOOD AND WHAT IS A SPECIAL RAPPORTEUR? Here is a quick and likely familiar sketch of some of the key international legal materials on the right to food. It first appeared in international law in 1948, when the international legal community (or at least those engaging in the newly formed UN) recognized the right to food as part of the right to an adequate standard of living in the Universal Declaration of Human Rights.7 In 1966, the right to food was again codified this time in the International Covenant on Economic, Social and Cultural Rights (ICESR). The ICESR recognizes “the right of everyone to an adequate standard of living for himself and his family, including adequate food”8 and “the fundamental right of everyone to be free from hunger.”9 The right to food has since

 We have edited and condensed these interviews in consultation with the Special Rapporteurs.  In offering these interviews, we of course do not wish to suggest that the Special Rapporteurs are the only actors building counter hegemonic, subversive, or radical readings of the right to food. To the contrary, and as you will see, the Rapporteurs position themselves in dialogue with other actors engaged in this project. 7   Id. 8  G.A. Res. 2200A (XXI), International Covenant on Economic, Social and Cultural Rights, December 16, 1966, 993 U.N.T.S. 3, at art. 11(1). 9   Id. At art. 11(2). 5 6

536  Research handbook on international food law been adopted into many international10 and regional instruments,11 as well as domestic constitutions and laws.12 In 1996, at the Rome Food Summit, states tasked various UN bodies to clarify the content of the right as it was presented in the ICESR.13 In response, in 1999, the UN Committee on Economic, Social and Cultural Rights (“CESCR”) published General Comment No. 12, which offers an authoritative account of the core content of the right to food—both the entitlements of rights holders and the corresponding obligations placed on states.14 In sum, rights holders are guaranteed “physical and economic access at all times to adequate food or means for its procurement.”15 Adequate food refers to food “in a quantity and quality sufficient to satisfy [people’s] dietary needs” and “acceptable within a given culture.”16 General Comment No. 12 also makes clear that the right to food should “not be interpreted … [as] a minimum package of calories, proteins and other specific nutrients”17 but instead “determined by prevailing social, economic, cultural, climatic, ecological and other conditions”18 and made accessible “in ways that are sustainable.”19 Under General Comment No. 12, states are the duty bearers responsible for progressively realizing the right to food. States are required to “provide an enabling environment in which people can use their full potential to produce or procure adequate food for themselves and their families.”20 To achieve this, states must respect21 and protect22 the right to food. States   See e.g., Convention on the Rights of the Child, art 24, Nov. 20, 1989, 1577 U.N.T.S. 3; Convention on the Elimination of All Forms of Discrimination against Women, art 12, Dec. 18, 1979, 1249 U.N.T.S. 13; Convention on the Rights of Persons with Disabilities, art. 28, Dec. 13, 2006, 2515 U.N.T.S. 3. It was most recently included in the Declaration on the Rights of Peasants and Other People Working in Rural Areas (“UNDROP”). See G.A. Res. 73/165, United Nations Declaration on the Rights of Peasants and Other People Working in Rural Areas (Dec. 17, 2018). 11   See e.g. European Social Charter, arts 4, 12, 14, May 3, 1996, 2151 U.N.T.S. 277; African Charter on Human and People’s Rights, arts 16, 22, 24, June 27, 1981, 21 I.L.M. 58; African Charter on the Rights and Welfare of the Child, OAU Doc. CAB/LEG/24.9/49, art 14 (1990), (entered into force Nov. 29, 1999); American Convention on Human Rights art 26, Nov. 22, 1969, 1144 U.N.T.S. 144; Organization of American States (OAS), Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (“Protocol of San Salvador”), 16 Nov. 1999, A-52. 12  Countries that have adopted the right to food into constitutions include: South Africa, Bolivia, Ecuador, Kenya, Mexico, and Nepal. Countries where the right to food (or elements of it) is recognized in legislation include: Argentina, Brazil, Ecuador, Cabo Verde, Dominican Republic, Guatemala, Honduras, India, Mexico, Nicaragua, and Venezuela. 13   World Food Summit Plan of Action, supra note 4, at commitment 7.4. 14  U.N. Comm. on Econ., Social & Cultural Rights [UNCESCR], General Comment No. 12: The Right to Adequate Food, U.N. Doc. E/C.12/1999/5 (May 12, 1999) [hereinafter General Comment No. 12]. 15   Id. at para. 6. Rightsholders are “every man, woman and child, alone or in community with others.” 16   Id. at para. 8. 17   Id. at para. 6. 18   Id. at para. 7. 19   Id. at para. 8. 20   U.N. Office of the High Comm. for Human Rights & FAO, The Right to Adequate Food: Fact Sheet No. 34, at 3–4 (2010). 21   General Comment No. 12, supra note 14, at para 15. Respect means that states themselves must not engage in activities that hinder the ability of people to meet their food needs. 22   Id. Protect means that states must ensure other entities do not hinder the ability of people to meet their food needs. 10

When crits go to the UN  537 must also ensure that no one goes hungry. This obligation, the obligation to fulfil, requires states to proactively “engage in activities intended to strengthen people’s access to and utilization of resources and means to ensure their livelihood, including food security” and to provide access to food or the means to procure it for individuals or groups that are unable to meet their food needs.23 Finally, the CESCR outlines the procedural obligations of states, such as ensuring transparency, participation, non-discrimination, accountability, and the rule of law, when addressing the right to food. For a critically minded lawyer, these legal materials will appear open-ended or “indeterminate” in the language of critical legal studies. That is, even with the above parameters laid out, one could imagine justifying any number of legal responses and policies. For example, the right to food could be read to support universal basic incomes, living wage regulations, comprehensive and redistributive land reform, and public investments in ecological forms of agriculture like agroecology, all as a means of increasing the livelihoods of those currently food insecure, and thus their ability to access food. At the same time, the right to food could be mobilized to support large-scale industrial agriculture through subsidies for agribusiness, investments in digitialization, and further trade liberalization aimed at increasing production and global flows of food, thereby reducing consumer prices to ensure more accessibility. As defined by the CESCR, the right to food is silent on how to create an equitable and sustainable world food system, and thus it provides little insight on how to balance competing interests— such as competing interests among states, producers, and consumers but also among the myriad other actors and institutions participating in our food system today. How should the right to food interact with trade or investment law? What is its relation to climate change negotiations? What does it mean for community urban agriculture initiatives? For racial justice? For corporate accountability? For capitalism? It’s not clear. Much political and social action is needed to interpret and animate the right to food. As we illustrate, some of the most transformative political and social readings of the right to food have been advanced by elite actors working from inside the UN system. In 2000, the then UN Commission on Human Rights (UNHRC) established the mandate of the UN Special Rapporteur to promote the “full realization of the right to food” at “national, regional and international levels.”24 Special Rapporteurs on the right to food are given official tasks, like conducting country missions, where they assess obstacles to the realization of the right to food and advise states on how they can do better, and preparing thematic reports for the UNHRC and UN General Assembly. In addition to these formal requirements, Special Rapporteurs may organize consultations, meet with movements and governments, attend a variety of UN events, negotiations, and meetings, respond to cases and events on the ground, write op-eds, and so on. They are supposed to be experts (particularly knowledgeable in the substantive field of their mandate as well as human rights) and independent (in that they are unpaid, not UN employees, free within limits to take positions of their own choosing and their positions may or may not reflect the official position of the UN human rights institutions). To date, there have been four UN Special Rapporteurs on the right to food. The first, Jean Ziegler, held the position from 2000 to 2008. A Swiss professor of sociology and a former   Id.  U.N. Human Rights Council, Mandate of the Special Rapporteur on the Right to Food, para. 2(a), Res. 6/2 (Sept. 27, 2007). The mandate on the right to food is one of 44 thematic and 11 country mandates, all now appointed by the UN Human Rights Council (UNHRC).

23

24

538  Research handbook on international food law politician, Ziegler used the platform to offer a searing critique, not just of the actions of states, but of the architecture of the international governance system and its underlying logics. In his final report, Ziegler called out the Bretton Woods institutions, the United States, and the World Trade Organization for refusing to recognize the “mere existence of a human right to food” and for imposing “liberalization, deregulation, privatization and the compression of State domestic budgets” as a model of development, despite their impact on inequality and suffering.25 He argued these processes—including the liberalization of agricultural trade and market-assisted models of land reform—“create catastrophic consequences for the right to food.”26 Ziegler looked to emerging social movements, like the global peasants’ movement La Vía Campesina, as well as novel claims, like food sovereignty,27 for alternative ideas about how the governance of food systems—and economies more broadly—could operate. In so doing, Ziegler established that the mandate could offer critical reflections on the root and enduring causes of hunger and social exclusion, that the right to food could be politically charged, and that ideas about new legal and social orders could come from the social movements demanding radical change.28 In what follows, we highlight how the three subsequent (and only other) UN Special Rapporteurs on the right to food—Olivier De Schutter, Hilal Elver, and Michael Fakhri— have continued to breathe life into the right to food from within the UN system. All three are trained as lawyers and currently hold academic positions in law schools. All three present their work as lawyers, law professors, mandate holders, and human rights activists as efforts to reconfigure institutions, governance systems, and legal instruments to advance left redistributive projects.

III.

SPECIAL RAPPORTEURS ON THE RIGHT TO FOOD

Olivier De Schutter, UN Special Rapporteur, 2008–2014 Olivier De Schutter, a Belgian lawyer and scholar, started as Special Rapporteur on the right to food in 2008, at the height of the global food prices crisis.29 Over the course of his sixyear mandate, he promoted the right to food through rising rates of food insecurity, ongoing large-scale land acquisitions, and the reform of what has become a key player in the global governance of food, the UN Committee on World Food Security (CFS). In this excerpt, De  Jean Ziegler (Special Rapporteur on the Right to Food), Promotion and Protection of All Human Rights, Civil, Political, Economic, Social and Cultural Rights, Including the Right to Development, para. 24, U.N. Doc. A/HRC/7/5 (Jan. 10, 2008). 26   Id. 27  La Vía Campesina started making claims for food sovereignty in the mid-1990s. Today, the most commonly used definition of food sovereignty, and one produced by social movement claimants, defines the term as “the right of peoples to healthy and culturally appropriate food produced through ecologically sound and sustainable methods, and their right to define their own food and agriculture systems.” World Forum for Food Sovereignty, Declaration of Nyéléni (Feb. 27, 2007), https:// nyeleni​.org​/ IMG​/pdf​/ DeclNyeleni​-en​.pdf. 28  Jean Ziegler was unable to participate in this project. He has continued to play an active role in the UN human rights system since finishing his mandate. 29  Olivier De Schutter returned to the position of Special Rapporteur in 2020, taking on the mandate of extreme poverty and human rights. 25

When crits go to the UN  539 Schutter offers an account of the right to food rooted in American legal realism and critical legal studies. He expresses the power of the right to food as flowing not from the obligations it places on states or the entitlements it affords rights holders, but rather from the redistributive change people have actually achieved by invoking it. To that end, De Schutter describes how he mobilized the right to food as a tool of negotiation rather than as a set of legal objectives and constraints. For example, rather than seeking to change a state’s behaviour by highlighting its legal obligations or human rights violations, De Schutter instead offered case studies of policy initiatives from other jurisdictions that had achieved positive results. He also used the right to food to reframe debates—at times to translate radical social movements’ demands into arguments made cognizable and potentially compelling to legal and policy elites. Finally, De Schutter describes how he used legal form performatively, building on the aspirational power of human rights to call forth the possibility of building new futures. How did you come to human rights and to the role of the Special Rapporteur on the right to food? As a law student, I did not study human rights because I felt they operated in a very traditional sphere where not much was going on. In this traditional sphere, human rights were things embodied in legal instruments that only expert lawyers could understand and decipher as oracles of the law. While in graduate school at Harvard, I was extremely influenced by critical legal studies. I eventually came to think about human rights as tools I could use with the methodologies of critical legal studies and legal realism. When I took up the mandate of Special Rapporteur, I immediately moved away from a dogmatic, traditional approach to the right to food, which was the classical approach of General Comment No. 12. My move was towards food democracy, which I used as an intentionally vague term to say people should own their food systems as agents rather than as passive recipients of solutions. This also meant moving away from preaching for a normative legal framework consistent with right to food requirements as exposed by expert lawyers, to using the right to food as a way to have a critical public discourse that is attentive to the needs of the most poor and marginalized people. Did you find yourself in a like-minded community of critical lawyers when you began the mandate? When I arrived in the field, I discovered only one small community of lawyers revolving around the right to food unit in the FAO, that were engaged with the right to food. These lawyers knew by heart General Comment No. 12 and the Voluntary Guidelines to support the Progressive Realization of the Right to Food in the Context of National Food Security of 2004. I didn’t feel this was a very productive, nor a very intellectually stimulating focus frankly. I felt that there was no point in rehearsing this normative framework or even trying to develop it further, for example by writing a subtext of General Comment No. 12. The normative work had been done by that point. And rehearsing the normative framework is not what actually moves governments into action. I know of no government who has changed a policy simply because what they were doing was against the requirements of the right to food as expressed in international instruments. No, if governments change at all, it is because their neighbors have explored new policy options, and that such options seem to work. So, when I arrived to the mandate in 2008, in

540  Research handbook on international food law the midst of a food crisis, the challenge for me was how not to repeat what my fellow lawyers had done, but how to make sure that social movements and importantly, nutritionists, agronomists, economists could be challenged to think differently about what they were doing using the right to food lens. You mention nutritionists, agronomists, and economists. Your reports are saturated with interdisciplinary empirical data. What were you hoping to achieve? I tried to use the right to food as a lens to examine the diverse issues that policymakers have to deal with when it comes to food: economic globalization, international trade and investment,30 agrofuels,31 GMOs,32 agroecology,33 and obesity.34 These reports are written as messages to diplomats and other constituencies, whom you meet, whom you interact with, and whom you must convince of doing things differently. They are not written as scholarly achievements where perhaps scientific rigor is all that matters, nor are they written as efforts to build doctrinal work. They are strategic, they are one move you make on the chess board. I wanted to recruit constituencies—economists, agronomists, nutritionists, who were not paying attention to the needs of the poorest—to start thinking about using the right to food as a frame for analysis. My reports are grounded in empirical work specifically to convince those audiences that there is something in there for them, rather than just the already converted, the human rights lawyers. How, if at all, did human rights law influence this strategic process? For me, the challenge is to maintain a link, however tenuous that link may be, between the agreed definitions of the right to food that have been negotiated by governments or exposed by the UN Committee on Economic, Social and Cultural Rights, on the one hand, and the policy implications I wanted to see happen, on the other hand. I had to keep making that link because otherwise you have no argument you can credibly present. I kept offering quasi-symbolic nods towards the received content of the right to food, but what I was really interested in was the policy implications I wanted to see happen.

  See e.g., Olivier De Schutter (Special Rapporteur on the Right to Food), Guiding Principles on Human Rights Impact Assessments of Trade and Investment Agreements, U.N. Doc. A/HRC/19/59/ Add.5 (Dec. 19, 2011); Olivier De Schutter (Special Rapporteur on the Right to Food), The World Trade Organization and the Post-Global Food Crisis Agenda: Putting Food Security First in the International Trade System (Nov. 2011), www​.srfood​.org​/images​/stories​/pdf​/otherdocuments​ /20111116​_briefing​_note​_05​_en​.pdf. 31   See e.g., Olivier De Schutter (Special Rapporteur on the Right to Food), Note on the Impacts of the EU Biofuels Policy on the Right to Food (Apr. 23, 2013), www​.srfood​.org​/images​/stories​/pdf​/ otherdocuments​/20130423​_biofuelsstatement​_en​.pdf. 32   See e.g., Olivier De Schutter (Special Rapporteur on the Right to Food), Seed Policies and the Right to Food: Enhancing Agrobiodiversity and Encouraging Innovation, U.N. Doc. A/64/170 (July 23, 2009). 33   See e.g., Olivier De Schutter (Special Rapporteur on the Right to Food), Agroecology and the Right to Food, U.N. Doc. A/HRC/16/49 (Dec. 20, 2010). 34   See e.g., Olivier De Schutter (Special Rapporteur on the Right to Food), The Right to an Adequate Diet: The Agriculture-Food-Health Nexus, U.N. Doc. A/HRC/19/59 (2011). 30

When crits go to the UN  541 What did this policy work look like? Much of my practical work involved playing the role of mediator between social movements, on the one hand, and policymakers at different levels of governance, on the other hand. But to do that, I had to dispel the suspicion among social movements that the right to food is something very top down, bureaucratic, and not empowering at all. And I also had to rephrase movement language—for example, protests in the streets with slogans like “our world is not for sale” and “food sovereignty now”—into language that policymakers could listen to and understand, with heavy use of footnotes to look well informed. For example, I tried to dispel the impression that food sovereignty was against trade, but also to show that trade as usual was simply not a solution. I wanted to sound as radical as La Vía Campesina and as credible as the World Bank. As a kind of “strategic mediator,” how did you push forward your normative agenda? I adopted a food systems approach in which you identify power relationships among different segments of the food chain. I used my role as Special Rapporteur to address those different segments and constituencies. I did speak to many people who disagreed between themselves and even disagreed with me, but I think I managed to cut myself from no important group. Take someone like Graziano de Silva, who was Director General of the Food and Agriculture Organization of the UN (FAO) and initially strongly resisted what I said about the FAO’s unwillingness to adopt a right-to-food-based approach.35 We now collaborate. The only person I really alienated for good is Pascal Lamy from the World Trade Organization (WTO), and I say this because I think he lost that battle. I think he lost that battle very clearly.36

 For examples of De Schutter’s comments on the FAO, see: Olivier De Schutter (Special Rapporteur on the Right to Food), Mission to the Food and Agriculture Organization of the United Nations, U.N. Doc. A/HRC/22/50/Add.3 (Jan. 14, 2013); Olivier De Schutter, The FAO Must Do More to Promote Food as a Basic Human Right: The UN’s Food and Agriculture Organisation Needs to Accelerate Its Movement Towards a Rights-Based Approach to Food Security, The Guardian (March 4, 2013, 4:19 AM), www​.theguardian​.com​/global​-development​/poverty​-matters​/2013​/mar​ /04​/fao​-food​-basic​-human​-right. 36  In late 2011 and into early 2012, De Schutter and Lamy, then head of the WTO, engaged in a series of public exchanges about the role of trade rules in exacerbating global food security. The public debate began when De Schutter published a briefing note that raised concerns about the impact of trade rules on food security. De Schutter, The World Trade Organization and the Post-Global Food Crisis Agenda: Putting Food Security First in the International Trade System, supra note 30. Lamy responded with a public letter rejecting De Schutters report in strong terms, including stating “I fundamentally disagree with your assertion that countries need to limit reliance on international trade to achieve food security objectives.” Attached to the letter were further arguments against De Schutter’s report from WTO staff. See Lamy Rebuts UN Food Rapporteur’s Claim that WTO Talks Hold Food Rights “Hostage”, WTO (Dec. 14, 2011), www​.wto​.org​/english​/news​_e​/news11​_e​ /agcom​_14dec11​_e​.htm​#comments. De Schutter was undeterred: “By promoting this trade-centric approach,” he shot back, “we miss the simplest of win-wins. If we were to support developing world small-holders, who are often the poorest groups, we could enable them to move out of poverty, and enable local food production to meet local needs. In this context, trade would complement local production, not justify its abandonment … This however requires policy space to limit price volatility at domestic level … It is disappointing that the WTO continues to fight the battles of the past.” Olivier De Schutter, WTO Defending an Outdated Vision of Food Security—UN Food Expert 35

542  Research handbook on international food law Earlier you described “nodding” to legal doctrine as you worked for policy change. Of course, policy work and strategic mediation can shape normative understandings of law as well as the other way around. Yes, I was also fully aware that as Special Rapporteur my positions on the right to food have a performative dimension. I was not there simply to faithfully implement what others have said about the right to food; I was there to contribute to shaping the content of the right to food. Human rights have two dimensions: the institutional—the legal instruments, the judicial settings, what governments are obliged to do—and the aspirational, the work of describing the world as it could be. Playing on this ambiguity is extremely useful, provided you do it in a way that is not too explicit: you maintain the fiction that human rights prescribe a particular solution when in fact that solution is not explicitly grounded in the normative framework but is something that would be faithful to the spirit of human rights or the idea that animated them. Would this effort have been credible if I’d been an academic writing on the right to food and international trade? Probably not. But my position as Special Rapporteur made it possible for me to play this transformative role, which I did very deliberately and purposefully. I felt this was a useful contribution that I could make. Hilal Elver, UN Special Rapporteur, 2014–2020 Hilal Elver, a Turkish lawyer, teaching in the United States, took over the mandate in 2014 in a moment of seeming calm. In the wake of the food and economic crises, rates of food insecurity were finally on the decline, and yet realization of the right to food remained a challenge, particularly in conflict zones and areas of protracted crisis around the globe. Elver approached her mandate with a set of political commitments she shared with De Shutter and Ziegler. She set her mandate against narratives of human progress that underpin faith in neoliberal capitalism and technocracy, and she constantly asked about the lived experiences of actors most marginalized in contemporary food systems. And yet Elver perhaps expressed more faith than De Schutter (and Fakhri) in formal human rights law. In the passages below, she details how the very encoding of something in law—the language and structure of written rules, even soft law instruments—offers normative force. She further asserts that one’s energy is productively spent seeking enforcement of legal rights and obligations as well as working for doctrinal change. For example, she details how during her mandate she lobbied to reform international law in order to create a new international crime to hold states (and potentially other actors) accountable when they use starvation as a political weapon. Elver is clear that legal rules alone don’t produce social change. But she suggests that sometimes activism and crises can align in ways that capacitate human rights as a compelling tool to speak truth to power. How did you come to human rights and to the role of the Special Rapporteur on the right to food?

Responds to Pascal Lamy, OHCHR (Dec. 16, 2011), www​.ohchr​.org​/en​/press​-releases​/2011​/12​/wto​ -defending​-outdated​-vision​-food​-security​-un​-food​-expert​-olivier​-de.

When crits go to the UN  543 I began my career in environmental law, exploring questions of state accountability. During my second PhD at UCLA, I was influenced by critical race theory and critical perspectives on social, cultural, and economics rights. In 2007, when the food prices crisis hit—and while I was working on the right to water and the environment—I became particularly interested in advancing the right to food. Food policies allowed me to address several issues I was already working on in new ways. They require thinking through the intersection of political, social, environmental, and economic problems and the possibility law affords to solve them. Food policies also allowed me to touch on the limits of law: when it comes to economic and social rights, and perhaps especially the right to food, a legal system is not enough—we need to change the economic order, to change the free-market system that after the 1980s and 1990s became the only game in town. As a Special Rapporteur, even in what can seem like a hopeless case, you can influence civil society, some developing countries, and maybe even mainstream human rights institutions. So, I applied to try and influence or change something. Maybe “change” is a strong and ambitious term but starting a conversation about social and economic issues from a human rights perspective is itself very rewarding. Tells us more about how you see the limits of legal change and how, at the same time, you see human rights as a useful tool to address social, political, and economic problems? When I began my mandate, I actually thought about trying to change some of the language of the right to food in the title of the mandate. I wanted to move from “the right to food” to “the right to food and nutrition.” Accessing nutritious food is a vital and universal problem, and I wanted this captured in the name of the mandate. But experts knowledgeable in human rights and in the work of the UN told me not to attempt to revise the mandate language. The UN system is a straitjacket. It is very hard to produce consensus among states and very hard to make legal change. You can make policy changes, but not legal changes. I eventually agreed with them and decided not to pursue the change but rather simply to work on advancing a wider interpretation of the right to food. Still, I wish we had more law available to us! I wish we had a binding agreement on the right to food, something like an International Right to Food Convention. There is a pyramid of laws, and a Convention is the highest level. Conventions are mandatory legal tools: states adopt them, ratify them, and must implement them. Today voluntary guidelines are the bible for the FAO and CFS, but how effective can they be on the ground? We need binding law to hold states accountable. At the same time, I don’t think voluntary declarations are unimportant. Our reports and recommendations are examples of such legal documents. If we keep repeating our messages, even if this doesn’t create a binding obligation, it does give us a little bit power, a customary way of thinking. And you never know, at some point international political interests may converge during accidents or crises, and then people start to look at the soft law documents we have created. There is always the hope to change something. One way you have tried to enact change through the right to food is by turning to international criminal law. Can you elaborate? In recent years, there has been a significant increase of famine and starvation especially in countries in Sub-Saharan Africa and in the Middle East, mostly in conflict zones. I thought

544  Research handbook on international food law one way to make the right to food stronger is through international criminal law. I proposed that the Rome Statute define starvation as a weapon of war and as a severe human rights violation.37 Think about Afghanistan, people talk about the abusive actions of Taliban, they talk about women’s rights, but hunger is very high, and yet it is not mentioned very often. I would go even one step further, to say even without a conflict, if state actors or private entities make a deliberate decision that produces starvation, then that should be considered a criminal act. Other actions by corporate actors should be criminalized as well. For example, there are rumours that when the US invaded Iraq, Monsanto seized the opportunity to take indigenous seeds and knowledge in the region. If this allegation is true, it’s an international crime. But we must know how far to push. The first step to criminal accountability for using food as a weapon of war has already come: UN Security Council Resolution 2417, which considers deliberative starvation in international conflicts a crime against humanity.38 With climate change, I think the question of famine will become more visible, and we will continue to need legal tools to address it. I thought I might have some role to articulate this accountability problem and possible solutions through the reports of my mandate. Were you able to use your mandate to challenge corporate interests? Corporate interests in food policies are huge and as long as corporations are pushing production-oriented, big agro-businesses’ agenda, the right to food will take a back seat. If I had the time, I would have written a report about the role of civil society in promoting the right to food and urged governments to support domestic NGOs. Civil society has a vital role to provide knowledge, support policies, and monitor the right to food against powerful economic interests. Although I didn’t write that report, I have worked to challenge corporate interests. When advocating in this area, I tell people to start from acknowledging human agency, to see the human faces of our food systems, to ask: who is doing the labour to keep food systems running? As my own response to this question, I wrote two reports on food systems workers,39 and one report on pesticides.40 Many small-scale farmers are workers without rights to land. Many migrant workers lack any legal protection. I live in California where problems are huge. For instance, I met workers where the government sent a Spanish translator to help them, but they speak indigenous languages! They don’t know how to use pesticides, their children get sick, there are various abuses in workplaces. I am talking about California, not India or some remote developing countries. This is a universal problem. If undocumented workers can’t use domestic labor protections and access public health and social protection, then we cannot talk about a human-rights-based approach to food systems. I also wrote a report on gender equality  See Hilal Elver (Special Rapporteur on the Right to Food), The Right to Food in Conflict Situations, para. 97(b), U.N. Doc. A/72/188 (July 21, 2017). 38   See Press Release, Security Council, Adopting Resolution 2417 (2018), Security Council Strongly Condemns Starving of Civilians, Unlawfully Denying Humanitarian Access as Warfare Tactics, U.N. Press Release SC/13354 (May 24, 2018), www​.un​.org​/press​/en​/2018​/sc13354​.doc​.htm. 39  Hilal Elver (Special Rapporteur on the Right to Food), Agricultural Workers and the Right to Food, U.N. Doc. A/73/164 (July 16, 2018); Hilal Elver (Special Rapporteur on the Right to Food), Fishery Workers and the Right to Food, U.N. Doc. A/HRC/40/56 (Jan. 25, 2019). 40  Hilal Elver (Special Rapporteur on the Right to Food), Effects of Pesticides on the Right to Food, U.N. Doc. A/HRC/34/48 (Jan. 24, 2017). 37

When crits go to the UN  545 and the role of women in food systems.41 Too often countries and powerful organizations discuss “women’s empowerment,” which they treat as a matter of strengthening women’s purchasing power and control over household decisions. I advocated for a rights-based approach that would require redressing women’s lack of collective power in food systems, including addressing structural inequalities, such as access to property rights and opportunities for women to participate into decision-making process about agriculture and food-trade policies that directly affect hunger and malnutrition. These are wonderful examples of how you insist the right to food must include the entire food system. But perhaps we can ask: in your view, what should the right to food not be about? Food security! The concept of food security was a deliberate effort by the United States to say as long as everyone is food secure, there is no need for anything more. “We feed the people,” they say. But how do we feed the people? Or some actors translate the right to food into things like food banks. The right to food is not about charity, it is about people entitled and able to feed themselves. We must think about the democratic manner in which people can make decisions to feed themselves. We are at a crossroads right now. After the Food Summit, there will be another attempt to produce a technological revolution, especially in Africa. And we will see the consequences in ten to fifteen years. Will the world take the path of GMOs, digitalization, high-tech productionism, or will we empower people to draw on traditional understandings of how to produce food, empowering agro-ecology and food sovereignty? One way is more global, more unified, the other will have more variety and diversity. Or to put it simply, can we transform food systems back from globalized to localized ones? Are human rights up to this challenge? Can they speak to the fork in this road? Ultimately, I think of the right to food as something that helps people challenge free market and corporate interests and work for human solidarity and social peace. Human rights language is still extremely strong and powerful. When you go to communities, people may say, “we have a right!” even as they may not know exactly what a “right” means in law. People understand the power of human rights and we should invoke this power. After all, what would be the alternative to a rights-based argument? Those advancing corporate interests might say, perhaps to farmers: “We will give you money, and you will get out of this place and have a future for your children.” This is a way of proposing short-term solutions through economistic tools. Rights should mean people can question their future freely, what they want for themselves and their communities in the long run. Rights should make people feel they can go their own way. I’m so glad that no Special Rapporteur on the right to food came to the job with an understanding of rights as about market-based solutions. I have hope that human rights can help people resist an abusive capitalist order. Of course, this is the minority view, but I still have hope.

 Hilal Elver (Special Rapporteur on the Right to Food), Integrating a Gender Perspective in the Right to Food, U.N. Doc. A/HRC/31/51 (Dec. 14, 2015).

41

546  Research handbook on international food law Michael Fakhri, UN Special Rapporteur, 2020–Present Michael Fakhri, the current UN Special Rapporteur, is a US-based law professor, trained in Canada with dual Lebanese Canadian citizenship. He began his mandate just as COVID-19 closed borders, disrupted supply chains, and exacerbated already existing economic, health, and food crises. His first two years of the mandate were spent negotiating the politics and intricacies of the UN Food Systems Summit, the undermining of the UN Committee on World Food Security, and the impact of COVID-19 on the realization of the right to food and on food systems and societies more broadly. Fakhri’s account of law and the right to food is grounded in sets of relations, from the intimate (how we relate to each other) to the structural (how global systems of capital, power, influence, and law work with and against the others to shape food systems and economies). He shares De Schutter’s strategic institutional sensibilities about the limits of formal rules and doctrine. But he eschews them even further suggesting not simply that they may fail to persuade but also that they don’t encompass his own understanding of the right to food. He also embraces and even radicalizes Elver’s description of the right to food as part of a broader repertoire of techniques that enable people to imagine diversity against a singular narrative of rational and technological progress (“rights should mean people can question their future freely,” recall that Elver argued). Indeed, for Fakhri, it would seem the right to food has meaning only insofar as left social movements see it as a technique for creating their desired transformative communities, which are underpinned by solidaristic and equitable food systems. What this meaning “is,” in turn, is knowable only through the movements who claim it, use it strategically, and mobilize it in resistance and hope—not through the legal doctrine offered and interpreted by states, lawyers, and international institutions. How did you come to human rights and to the role of the Special Rapporteur on the right to food? In law school, I never took any human rights courses. My first critical encounter with the limits of human rights was as a practitioner. I was a civil litigator fighting for the human rights of people held against their will in psychiatric institutions. At best, I felt like a band-aid for clients when I knew the fight was structural: against pharmaceutical companies and how they market antipsychotics. After a few years, I returned to graduate school at Harvard, and I encountered critical legal studies, TWAIL,42 and the critiques of human rights. These critiques were already very intuitive for me from practice and from the political sensibilities that I’ve always had. So, really, I start with food not human rights. My academic work on food explores the history of trade and imperialism not the history of human rights. But I distinctly remember when I encountered the debate between Olivier De Schutter and Pascal Lamy who at the time was the Director General at the WTO.43 Olivier made the debate about trade-as-usual versus  TWAIL stands for Third World Approaches to International Law and is “a movement encompassing scholars and practitioners of international law and policy who are concerned with issues related to the global South in its broad conception.” See Founding Statement, Third World Approaches to Int’l L. Rev., https://twailr​.com ​/about ​/founding​-statement/. 43  For more on this debate, see supra note 36. 42

When crits go to the UN  547 human rights. And I was like: who is this guy? And why is he allowed to do this? And then do you remember, in 2018, when we all participated in an academic conference at King’s College in London?44 Hilal was there, and I recognized her as a TWAIL comrade. I asked her: how do you become a Special Rapporteur? She gave me the best answer: you apply! When I actually got the role, I was like, “now I have to be a human rights person!” Human rights were never part of my thinking. I am institutionalist, I ask: where’s the authority, where’s the money, where’s the power, and what are the networks behind the power? When you began the mandate, how did you define the right to food? I never asked myself the question: what does the right food mean in international law? To this day, I don’t use human rights language orthodoxly. That’s not on purpose, but for me, my starting point is not the treaty, the convention, the whatever-that-thing-is. The question I asked myself was what can I do in my position to jump into the already ongoing struggle? As Special Rapporteur, what should I be able say a thousand times so that people feel as if there is something in the right to food worth fighting for? That’s how I shifted out of doctrine and described the right to food as the right of everyone to celebrate life through their meals with each other in communion. Each one of those elements was a choice: communion is about making the right to food a communal right; celebration is about reflecting the politics and culture of pleasure in eating. I don’t know exactly what this means in lawyerly terms! But I know I wanted to say something true that I believed in without a wink or as an act of strategic essentialism. Of course, I could look up doctrinal definitions about the right to food if a lawyer asked me, but if a lawyer said actually that’s in article 2a not 2b, I would just shrug my shoulders because I think that doesn’t really matter, what really matters is all this other stuff. Let’s talk about the other stuff. What do you bring to the mandate and how have your perspectives been received? I bring a political economy mindset to the mandate. For example, in my second report, I wrote that whoever controls seeds controls life, which I thought was so obvious as to almost be a throw-away line.45 But for my right to food team in Geneva, this sort of argument prompted a debate. They asked, “is what you are saying really about political economy instead of human rights?” I always laugh at questions like these, and I ask my team how we should draw distinctions. These sorts of conversations have made me realize I can speak human rights, but I speak with an accent whereas my Geneva team are native speakers. I have also realized that for some audiences there is an important boundary between human rights and political economy, and I must choose whether to cross this boundary depending on my purpose and my audience: food movement actors, the CFS, the Food System Summit people, the diplomats. Sometimes,  “We” here refers to Michael Fakhri (the interviewee) as well as Amy Cohen and Nadia Lambek (the interviewers). A special issue was produced from the conference in question. It can be retrieved at: 9 Transnational Legal Theory, Issues 3–4 (2018), www​.tandfonline​.com​/toc​/rtlt20​/9​/3​- 4​?nav​ =tocList. 45  Michael Fakhri (Special Rapporteur on the Right to Food), Right to Food, para. 78, U.N. Doc. A/ HRC/46/33 (Dec. 24, 2020). 44

548  Research handbook on international food law I choose to blur this boundary. In my newest report, I argue that human rights have a theory of change: change is in the hands of the people. Again, some of my Geneva staff pushed back: they said, “that is wrong. Human rights are about helping victims, they govern the state’s relationship with victims.”46 So we argue over human rights, but we also argue over sources of power. I think we all have power all the time and it’s about organizing this power. So here is an example me trying to articulate a different understanding of human rights. As appealing as your articulation sounds from a movement perspective, is popular organizing really a theory or practice of international human rights law? No. It’s a theory of change in which human rights are one strategic part. I mobilize a theory of change using the right to food only because social movements have given specific meaning to this right. I’m only as powerful as the movements are, and the language I use is conditioned by what the movements say and do. Most movement people are ambivalent and tactical in their use of human rights. For example, I rely on the Civil Society and Indigenous Peoples’ Mechanism47 and a network of movement friendships—these are people who might generally dismiss human rights language with all of its obligation talk, but who are nevertheless politically committed to the right to food. Another example is the unions, I have a close relationship with them, and they will say we support the right to food as a political commitment, not necessarily as a substantive doctrinal thing. Do you yourself use human rights language strategically? Do you use your training as a lawyer in your mandate? All the time. For example, all sorts of international actors say we can’t talk about trade in Rome—that is, we can’t talk about trade among the UN food agencies48—we can talk about trade only in the WTO. Many governments want to resist the power dynamics and alliances that would follow if we took trade policy out of the WTO and interjected it into other spaces. So, I make the legal argument that right to food is fundamental to the FAO and in the vision statement of the CFS.49 I also argue that in the ICESCR the right to food includes

 For a classic description and critique of this view of human rights, see Makau W. Mutua, Savages, Victims, and Saviors: The Metaphor of Human Rights, 42 Harv. Int’l L.J. 201 (2001). 47  The Civil Society and Indigenous Peoples’ Mechanism (CSM) is a space for civil society groups, social movements and organizations of Indigenous Peoples to facilitate collective participation in the UN CFS. The CSM was created alongside the reform of the CFS in 2009. For more on the CSM, see the CSM website, CSIPM, www​.csm4cfs​.org/. See also Jessica Duncan, Global Food Security Governance: Civil Society Engagement in the Reformed Committee on World Food Security (2015); Josh Brem-Wilson, La Vía Campesina and the UN Committee on World Food Security: Affected Publics and Institutional Dynamics in the Nascent Transnational Public Sphere, 43 Rev. Int’l Stud. 302 (2016); Ingeborg Gaarde, Peasants Negotiating a Global Policy Space: La Vía Campesina in the Committee on World Food Security (2017); Nora McKeon, Food Security Governance: Empowering Communities, Regulating Corporations (2015). 48  The “Rome-based agencies” include the Food and Agriculture Organization of the UN (FAO), the International Fund for Agricultural Development (IFAD), and the World Food Programme (WFP). 49  For a detailed account of Fakhri’s views on the connection between trade and the right to food, see Michael Fakhri (Special Rapporteur on the Right to Food), The Right to Food in the Context of International Trade Law and Policy, U.N. Doc. A/75/219 (July 22, 2020). 46

When crits go to the UN  549 trade as part of its definition. Therefore, I tell the FAO, you must talk about trade. The right to food obliges you—you see, I am using the language of obligation—you are obliged to talk about trade. And this is what I tell food movement lawyers: you are free, or you are free amongst a certain set of bounded things that have been created through movement struggles— UNDROP,50 UNDRIP,51 General Comment No. 12—to engage in creative acts of interpretation of lining these things up. On the one hand, you use human rights strategically. But on the other hand, you define the right to food with great sincerity: the right of everyone to celebrate life through their meals with each other in communion. This is perhaps the most deinstitutionalized definition of the right to food imaginable. Can you say more? Let me first explain that I engage with institutions but only out of necessity—not because I think there is political hope in institutions or because I think there is political hope in law, for that matter. But I don’t think we can live without institutions, that is, without some sort of shared and reasonably stable set of rules organized around certain things that a society values. At the same time, that’s not how people experience life! To go out and do something you need inspiration, you need pleasure, you need to think that there is an outside to the institutional space that is not yet another institution—even if, in the end, a new institution is what you and your comrades produce. So, by starting where I do, I intend to argue that the strategic goal is not, “let us build a new multilateral trade institution.” But rather the goal is “let us come together in the spirit of conviviality, hospitality, care, and love, and then let us generate the institutions we have in the moment of us coming together.” I always want to start with relationships. That is how people can potentially create alliances that are based on a different understanding of interests than of the antagonistic interests already structured by how existing institutions and legal rules distribute rights and power. Can you describe your experience of creating alliances as Special Rapporteur? Honestly, the feeling I have right now is serving on the frontlines of a battle. I try to avoid war metaphors, but I really feel like that. It’s fighting, fighting because the stakes are so incredibly high on everything at once. I don’t care about human rights as such, truly I don’t. What I care about is whether I can help in this moment. Can I get a multilateral conversation going about tackling the hunger crisis exacerbated by COVID by any means necessary? Everything else is secondary and it’s a collective call: human rights, trade reform, protests in the streets, whatever, truly anything. And can I hold myself accountable and responsible to everybody who is committed to using the right to food in the most progressive way possible? Even as I remain ambivalent about human rights, I defend the right to food with passion because of the changes that I’ve seen happen from a movement perspective. And that is also my definition of success: can we keep politics going, can we keep movements going? Because that is what is at stake. Particular historical trajectories end, and I can imagine a situation where there is nothing that we call a right-to-food movement. That would be the disaster. As long as the struggle continues: where there is struggle, there is hope. I didn’t always get that. I get it now. I truly get it.  G.A. Res. 73/165, United Nations Declaration on the Rights of Peasants and Other People Working in Rural Areas (Jan. 21, 2019). 51  G.A. Res. 61/295, United Nations Declaration on the Rights of Indigenous Peoples (Oct. 2, 2007). 50

550  Research handbook on international food law

IV. CONCLUSION In this Research Handbook devoted to elaborating and defining international food law, our chapter has asked why actors with critical sensibilities about the limits of human rights have nevertheless embraced the right to food. By presenting this series of interviews with De Schutter, Elver, and Fakhri, we venture that the answer in part reflects how the right to food has been mobilized in ways that exceed conventional understandings of legal expertise. Or at least we conclude by observing that all three Special Rapporteurs have themselves articulated a version of the right to food that cannot be configured in a manner easily made legible to legal experts—for example, as a set of explicit rules designed to improve human wellbeing by ensuring and regulating food availability and food safety in the world as it currently exists with our present configuration of markets, agribusiness firms, and dominant state interests.52 This would be a version of the right to food that could be easily assimilated into and made to support the vision of the UN Food System Summit. To the contrary, De Schutter, Elver, and Fakhri all instead depict hunger alongside the many pathologies of our contemporary food system as a crisis of global capitalism and political governance writ large. To that end, they use the idea of a right to food as a means of opening up political, economic, and social questions about production, ecology, climate, distribution, labor, democracy, and even the meaning of human rights. Collectively, their approaches largely reflect what Arturo Escobar describes as modernist political strategies aimed at social justice.53 In the hands of the Special Rapporteurs, the right to food comprises part of a larger politics and ethics practiced intentionally to foster social and environmental justice, to lessen poverty and inequality, and to work alongside radical social movements.54 From within this shared project, the Special Rapporteurs sometimes foreground human rights law’s claim to act as an ethical constraint on state and corporate power; sometimes, instead, they describe human rights law’s primary value as its usefulness in advancing political strategies and brokering and negotiating tactical alliances. Often, they move between these two registers. But we can also glimpse a kind of politics that Escobar calls pluriversal. Pluriversal politics are grounded in an “explicit ontological framing that advances the principles of interdependence and relationality” and are not easily incorporated into a familiar repertoire of modernist left social justice strategies.55 This is what we would surmise Fakhri has in mind when he articulates the right to food as a kind of re-communalization: the right of everyone to celebrate life through their meals with each other in communion. Here the power of claiming a right to food is not the critical-realist idea that formal legal rights can be put to a range of strategic or performative uses (or both). It is instead the power of claiming a right to mobilize popular action that nevertheless cannot be made entirely coherent in the language of liberal legalism. It is a right that—to be actualized in practice—must build instead on the relational and communal practices and the alternative imaginaries of Indigenous peoples, peasants, workers, and other members of food sovereignty movements.56

  See Arturo Escobar, Designs for the Pluriverse: Radical Interdependence, Autonomy, and the Making of Worlds, at xv (2018). 53   Id. at xvi. 54   Id. at xvi. 55   Id. at xix. 56   Id. at xxi. 52

When crits go to the UN  551 In a range of different ways, we would thus submit, the Special Rapporteurs have contributed to making the right to food counterhegemonic. In their years as mandate holders, they offered visions for alternative food systems and, with them, alternative legal arrangements that better account for our planetary boundaries, redistribute legal entitlements more justly, and allow for those so often subordinated in our societies to exercise political agency. In doing so, the Special Rapporteurs took neither the world nor human rights for granted as things that already are—perhaps serving to remind us more broadly that there is likewise no need to imagine international food law within our current constraints.

Index Prepared by Michael T. Roberts

ability of investors 61 accountability 6, 8, 84, 115, 132, 144–5, 290, 298, 307, 312, 330–31, 492, 518, 537, 543–44 Accademia dei Georgofili 65 Accum, F. 229 Adi community 316 adulteration 207, 227–30, 265, 268, 319, 322, 349, 395–98, 401, 403, 408, 472, 480–81 Advisory Opinion of the International Court of Justice 92 Africa 17, 43–45, 48, 50, 57–59, 102, 112, 125, 173, 177, 184, 186, 188, 234, 297–99, 498, 512, 534, 545 African Continental Free Trade Area (AfCFTA) 102 ag-gag laws 456 agrarian political economy 3, 35, 59 agrarian questions 3, 29, 35–42, 60–61 Agraz, Viuda de Baez, Virginia y Coagraviados 156 Agreement on Sanitary and Phytosanitary Measures (SPS) 5–6, 8–9, 27, 97–100, 102, 108, 110–11, 114, 209, 215, 239–40, 243–60, 280–87, 289–90, 350–61, 365, 367, 439–40, 529–30 Article 5 of 248, 250 Article 5.7 of 249–50, 360 Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) 6–7, 27, 79, 90, 99, 173–74, 192–94, 222, 439 agribusinesses 42, 292, 297–299, 311, 314 agricultural exceptionalism 7, 443–69 emergency exceptionalism 444–45 sacrifice zones 462–8 un-exceptionalism 457 agricultural expansion 56 agricultural law 63–65, 67–70 agricultural production 22, 107, 117, 119, 124, 145, 159, 427, 442, 453, 476–77, 480 see also productivism agri-food law, concept 4, 64, agri-food markets 71–72, 86 agri-food sector 33, 74, 295, 306, 314, 474, 486–87 Albisinni, F. 3, 4, 7 Alibaba Group 483, 492–95 Alien Tort Statute (ATS) 291, 419 allergen(s) 214–20, 222, 242, 319–20, 328, 388

Amezcua, Viuda de Cobía, Encarnación 156 Amparo petitions 155 analytical chemistry 228–30 animal welfare 13, 75, 142, 329–30, 344–45, 410, 412, 448, 451, 515—28 Animal Sentience Bill, UK 516–17 international standards 528–30 see also Lisbon Treaty amendments; Protection of Laying Hens Directive; Protection of Pigs Directive; Protocol on the Protection and Welfare of Animals anti-Ejido decisions 158–61 antimicrobial resistance (AMR) 97, 103–4 antitrust 97, 447–48, 450–51 see also market concentration Argentina 127, 362, 367 Armenia 80 artificial intelligence (AI) 471, 474, 490 Association of Southeast Asian Nations (ASEAN) 102 ASEAN-EU trade negotiations 258 ASEAN instruments 258 Asia 17, 58, 63, 82, 125, 191, 234, 258, 385 Asia Pacific 257 Central Asia 57 Southeast Asia 44, 45 Association of Southeast Asian Nations (ASEAN) 102, 257–58 ASEAN Rapid Alert System for Food and Feed (ARASFF) 258 ASEAN Risk Assessment Centre for Food Safety 258 AT&T Mobility LLC v. Concepcion 416 Australia 48, 306, 321, 323–24, 384 Australia/New Zealand 323–4 Bakker, P. 312–13 Bandung Conference 172 Bangladesh 168 Belize 283 Belgium 112, 381–82, 423 Bernstein, H. 20 Beyranevand, L.J. 4, 6 Bianlifeng 340, 342 biofuels 43 biosecurity 174, 344–45 blockchain 114, 343, 345, 471, 474, 476–77, 488–92 see also traceability

552

Index  553 Boyd, W. 25, 29 Brazil 30, 33, 44–45, 51–53, 55, 84, 88–89, 99, 125, 128, 132–37, 144–45, 168, 177–79, 183–84, 191, 231, 238, 282, 347, 358, 363–65,367, 441 national food security strategy 135–37 Brazil – Retreaded Tyres 441 British Columbia 421 Brunei 353 Brussels Effect 257 Camacho, M. Á. 152 Campesina, L. 14, 23, 55, 181, 538, 541 Canada 53, 137–40, 144–45, 153, 184, 191, 215–16, 220, 238, 254–55, 281, 330, 347, 358–59, 384, 421–22, 450 Canada Pension Plan Investment Board 29 national food security strategy 137–40, 144 Caribbean 57 Cargill 7, 274, 291, 343–44, 419 Cartagena Protocol 73, 108 Cascade Investments 29 certification agency problems 391–3 auditing 266, 389, 491 credence qualities 11, 387–90, 392–93, 404, 406–08 dynamics of certification 390–91 first-party certification 389 second-party certification 389, 391 structure of certification 389 third-party certification 6, 11, 110, 256, 267, 274, 282–85, 339–40, 387–408 Chad 119 Chadwick, Anna 175–76 Chicago Rabbinical Council (CRC) 395 child labor 292, 298–02, 419 Child Labor Due Diligence Bill 307 Child Labor Monitoring and Remediation System 301 child slave-labor disclosure class action lawsuits 298 Chile 7, 177, 254, 353, 381, 383–84 Chimni, B.S. 172–73 China 4, 10, 12, 48, 71, 113–14, 123, 125, 199, 204, 206–08, 211, 215–23, 227, 231, 283, 321, 324–26, 332–46, 353, 375, 384, 425, 465, 472, 474–97, 511 China Academy of Information and Communications Technology 477 China Animal Health and Food Safety Alliance 345 China Food and Drug Administration (CFDA) 482 China’s National Center for Food Safety Risk Assessment (CFSA) 217, 482

Ching-Fu Lin 8–9, 243 civil society 6, 28, 55, 106, 115, 130–38,145, 204, 211–12, 214, 223, 306, 330, 424, 543–44, 548 class action litigation 11, 298, 374, 378, 380, 386, 409–25 see also lawsuits clean water 123 climate change 58, 113, 117, 135, 137, 141–43, 164, 181, 292, 299, 303, 308, 314, 344, 427–97 animal welfare 529, 537, 544 climate crisis 29, 35, 56, 60 climate disruption 3, 31, 32, 57 Codex Alimentarius 438–41 and economic crises 58 and environmental degradation 122–4 environment and 11–13, 122–24 food-producing firms in EU 433–8 on food production 57, 429–30 genetically engineered food, impact of 490, 502, 506, 510, 512–13 greenhouse gas emissions 428–9 “soft laws” and obligations for states 430–33 WTO 438–41 see also National Register; Oslo Principles on Global Climate Change Obligations; People’s Climate Case climate migrants 58 climate policy community 32 climate regulation 431 climate-smart agriculture 32, 59 Cocoa & Forests Initiative 301 Code of Hammurabi 9, 227 Codex Alimentarius Commission 5–10, 73, 81– 82, 84, 99–100, 108, 199–203, 207, 209–11, 214–26, 232–38, 246, 272–73, 283–84, 329, 347–48, 366–67, 386, 438–40 ad hoc Intergovernmental Task Force 236 Code of Hygienic Practice for Aseptically Processed and Package Low-Acid Foods 242 Codex Alimentarius Guidelines on Nutritional Labeling 386 Codex commodity committees 235–6 Codex Strategic Plan 2020-2025 364–65 Committee on Food Import and Export Systems 114 committee structure 235–36 consultation of expert scientific bodies 237–8 eight-step procedure for approval of 236–7 founding in 1963, 232–33 General Principles of Food Hygiene 220, 242, 362, 365 general subject committees 235

554  Research handbook on international food law historical roots 348–49 national food-safety policies 357–61 private standards relationship to 110–12 Procedural Manual 233, 235 Recommended Code of Practice General Principles of Food Hygiene 362, 365 scientific policy 348–9 standards 98–102, 110, 115, 234, 236, 272, 365–66 trade agreements 238–42 see also harmonization Cohen, A.J. 10, 13–14, 534 Colombia 80, 180, 347 colonialism 5, 22, 43, 167–70 colonial-diasporic food regime 21–22 colonial rule 31 neo-colonialism 43 Comisariado Ejidal del Poblado “La Plata” 160 commercial community and trade usage 195–6 Committee on World Food Security 55, 101, 131, 538, 546, commodity subsidies 453–55, 461 Common Agricultural Policy (CAP) 72, 76–77, 87, 450, 475 community 183, 185 Compañía Colonizadora de Tlahualillo, S.A. 157 comparative law 1, 6–7, 10, 65–67, 92–93, 199–24 addressees of 211 food law 204–08, 211–24 international food law 209–10 methods 201–04 Competition Act (Canada) 450 Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP) 245, 251–57 Congressional-Executive Agreements 286 coordination 33, 103, 107–08, 110, 112, 116–17, 120, 128, 132–34, 136–37, 140, 142–43, 217, 334, 336, 339, 344, 348, 358 lack of 128, 132 constitution role in food regulation 103 consumer consumer choices 177–82 Consumer Goods Forum 110 consumer organizations 234, 423 consumer protection 97,99, 103, 104–06, 223, 242, 298, 387, 401–03, 406, 411, 416–18, 420–21, 457–58, 518 state consumer protection statutes 416 contaminants 10, 100, 106, 213, 218–19, 231–42, 245, 248, 263, 280, 315, 318–19, 321, 347, 350, 357 Convention on Biological Diversity 73, 90 108 Conventions of the United Nations 84 cooperation 3–4, 6, 9, 64–65, 69–70, 87, 92, 99, 101, 112, 143, 242, 256–59, 275, 301,

333–35, 337, 339–40, 342–43, 345–46, 385, 400, 403, 492, 494, 519 cooperative co-regulation 334, 346 cooperatives 450, 486, 488 corporate social responsibility (CSR) 291, 293, 299–08, 311, 313–14 2021 Food and Agriculture Benchmark (Benchmark report) 303–05 Coordinated Framework 502–03, 511–12 Costa Rica 278, 283 Court of Justice 65–7, 88–92, 438 COVID-19 12, 34, 58, 86, 96, 114, 121, 124–6, 343, 385, 460, 474, 546 Critical Information Infrastructure (CII) 494–95 Cuba 80 cultural preservation 7, 363, 366 current good manufacturing practices (CGMPs) 357 customary land claims 54 customs duties 97 cybersecurity 477, 480, 493–5 Cyberspace Administration of China (CAC) 493 Dana v. Hershey 298 data access 489–90 monopoly 12, 485–8 ownership 114, 488–9 portability 489–90 security 492–3 standards 490–92 Daugbjerg, C. 445 debt and structural adjustment 50–51 decolonization 22, 46, 168, 170 Denmark 330 Department for Environment Food and Rural Affairs (DEFRA), UK 127, 141 De Schutter, O. 538–42, 546, 550 developed countries (food legislation) 109 developing countries see Global South diabetes 122, 369, 371, 373, 379 dialogic approach 202 Dietary Guidelines 5, 183–84,190–91, 196 digital food economy 471–497 access to data and data portability 489–90 competition and data monopoly 485–8 components and layers 476–7 cybersecurity 493–5 data standards 490–92 definition 476–7 e-Agriculture Action Line 473 food safety 474 intellectual property rights and data ownership 488–9 privacy and data security 492–3 rise of 473–76

Index  555 transformation 114, 474–75. 485, 496 see also International Platform for Digital Food and Agriculture distributional struggles 37, 42, 54, 60, 62 DNA 228, 499–501 Doha Round 41 Dominican Republic 358 Dow Jones Sustainability Index 308 drought 5, 57, 148, 150, 153, 163, 178, 428–29, 502, 508, 510 Dutch Civil Code 437 Dutch Constitution 435–36 Dutch Supreme Court 436 EC—Biotech Products 281, 285 EC-Hormones 249 EC Commission Regulation No 606/2009 83 Echols, M.A. 5, 183 e-commerce 12, 339, 474–83,486, 492–96 Egypt 168, 316, 358 Elver, H. 296, 534–35, 542–6, 550 emissions (global greenhouse gas CHG) 56–8, 122–23, 292, 304, 308, 312, 317–18, 428–37 Emissions Trading System, EU 434 Climate and Energy Package 2020 434 Climate and Energy Framework 2030 434 enforcement 6, 86, 103, 105–06, 108–09, 112, 211–13, 220, 223, 256, 333, 336, 472, 484 enforceability 144–5 enforcement bodies 472 Engel, Eliot 299–300 England 126–27, 140–44, 229, 423 environmental contamination 463 degradation 117, 122, 164, 466 deterioration 149 justice 464, 550 environmental law 11, 17–19, 24–25, 448, 457, 463 Environmental Protection Agency (EPA), 127, 449–50, 502–03 environmental, social and governance (ESG) 8, 291–314 Escobar, A. 550 Ethiopia 44, 167, 486 EU-Singapore Free Trade Agreement 258 EU-Vietnam Free Trade Agreement 258 Eurasian Economic Union (EAEU) 205 European agri-food codes 70–74 European Animal Welfare Directive 98/58/EC 330 European Commission 73, 73, 88, 307, 323, 358, 361, 381, 384–5, 489–90, 522–23, 527 European Community 64, 66, 79, 90, 234

European Convention for the Protection of Animals Kept for Farming Purposes 524–525 European Court of Justice 65–7, 438 European Data Act 491 European Food Law System 69 European Food Safety Agency (EFSA) 217, 258, 323, 385, 504, 528 European Innovation Partnership on Agricultural Productivity (EIP-AGRI) 476 European and Mediterranean Plant Protection Organization 73 European Regulation 2017/821 307 European Union (EU) 64, 67, 70, 73–74, 78, 82, 86, 100, 102, 129, 140–41, 243, 245, 251, 254–59, 321–3, 343, 351, 353, 355, 358363,367, 382, 385,409, 423, 433–38, 444, 450, 457–58, 475, 498, 502, 517, 520, 522, 527–28 EU animal welfare laws cages 524–28 calves 521–22, 526–28 hens 524–6 pigs 523–4 EU-Canada Comprehensive Economic and Trade Agreement (CETA) 245, 81, 251, 253–55, 258–59 European Union Commissioners for Justice, Competition, and Consumer Policy 409 EU Commission White Paper on Food Safety 2000 69 EU Food Law 69–72, 77–78, 87, 206, 211, 219 EU Novel Food Regulation 322–23 EU General Food Law (GFL) 73, 207, 214, 332, 359 EU genetically engineered food 504–6 EU Novel Food Regulation 115, 322–23 EU-Mercosur Trade Agreement 252, 258 EU-Singapore FTA 252, 258 EU-Vietnam FTA 258 Executive Order 14017 474 Exo Protein 318 externalities 13, 277, 313, 336, 443, 446, 451, 457, 501 see also true costs Fair and Accurate Credit Transactions Act (FACTA), US 417 fair dealing 348, 496 fair trade practices 234, 245, 350 Fakhri, M. 14, 27, 172, 175, 181, 534–35, 538, 542, 546–50 Sugar and the Making of International Trade Law farmland 29–62 climate crisis 32, 56–60

556  Research handbook on international food law debt and structural adjustment 50 financialization of 30 foreign investment 37, 44, 49–51 global land rush 30, 32, 35, 37, 42–44, 47–56, 60 land grabbing and dispossession 32 see also land family farms 126 Faust, E.D. 229 Federal Food Drug and Cosmetic Act (FFDCA), US 262 Federal Rule of Civil Procedure 23, US 411 Feindt, P. 445 Fiji 437 financial crisis 2008 30, 32, 42, financial institutions 32, 42, 44, 169, 442 Fink, B.A. 8, 347 flex crops 43 food additive(s) 100, 208, 213, 218–19, 231–32, 235, 237, 240, 242, 272, 322, 347, 349–50, 355, 357, 384–85, 457, 467 see also Joint FAO/WHO Expert Committee on Food Additives (JECFA) food aid 22, 40, 178, 180 Food and Agriculture Organization of the United Nations (FAO) 4–8, 10, 12–13, 25, 31, 45, 55, 58, 96–97, 100–102, 104, 118–20, 125–26, 131–32, 135, 146, 175, 191, 209, 227, 230–35, 237–38, 272, 290, 295, 316–17, 320,334, 349, 354, 429, 473, 528, 539, 541, 543, 548–49 FAO’s e-Agriculture projects 12, 473 FAO’s Committee on World Food Security 55, 538, 546 FAO Food Price Index 45 FAO’s food systems development 5, 131 FAO/WHO Coordinating Committee for Africa 102 FAO/WHO regional coordinating committees 234 FAO’s Zero Hunger program 10, 129, 133 see also Joint FAO/WHO food and consumer goods manufacturers 422 Food and Drug Administration (FDA) 214, 217, 256, 261–69, 282–90, 319, 322, 353, 367, 371–82, 410, 416, 474, 502–03 Food, Drug, and Cosmetics Act (FDCA) 206–07, 214, 256, 322 food business(es) 69–70, 72, 76, 78, 105–06, 109, 217–19, 307, 409–11, 425 food business operators 332–34, 337, 341, 346, 479–84, 496, 113–14, 211–13, 218, 221, 223, 234, 242, 477, 480, 482–83, 492, 495 food chain 63, 68–77, 86, 95–97, 100, 108, 114, 307, 314, 541 food chemistry 230, 348, 398

food commodities 102, 228, 232, 235, 429, 442 food culture 4–5, 25, 142, 196–97 food definition 82, 215 food fraud 10, 206, 242, 328–29, 466, 477 food labeling 7, 11, 71–72, 98, 177, 207, 220–22, 223, 235, 355, 369–74, 369–74, 377–86 front-of-package 7, 372, 377–79, 381–82, 384 labeling and certification 11 nutrition labeling 7, 10, 11, 371–72 food legislation 4, 64–71, 78–81, 96–107, 204–05 Food and Nutrition Security Implementation Plan 136 food regimes 17–42, 166 food regime theory 3, 20–25 food safety 4–14, 17, 19, 27, 35, 47–48, 68–81, 85–86, 95–105, 107–14, 117, 122, 127–28, 204, 212, 220, 223, 227–348 bovine spongiform encephalopathy (BSE) (aka mad cow disease) 70, 206–07, 343 BRCGS Global Food Safety Standard 111 Center for Coordination and Innovation of Food Safety Governance 333–34 Chinese Food Safety Law (FSL)206, 332, 333, 336, 337, 341, 343 2015 FSL Amendment 481–483 Codex Alimentarius Commission 210, 233–8, 347–67 disputes 357 existing voluntary schemes for 272–5 food safety and trade liberalization 243–60 Food Safety System Certification (FSSC) 22000 112 Good Regulatory Practices (GRPs) 112–13 insects 313–331 international leadership 230–32 Meituan 339–40, 482, 486–87, 494 melamine crisis of 2008 206–07, 343 private standards 110–12 producer responsibility 108–10 regulations 351–4 regulatory harmonization 361–62 trade agreements and Codex 238–41 see also adulteration; Agreement on Sanitary and Phytosanitary Measures (SPS); antimicrobial resistance (AMR); contaminants; European Food Safety Agency (EFSA); EU Commission White Paper on Food Safety 2000; Food Safety Modernization Act (FSMA); Global Food Safety Initiative (GFSI); Hazard Analysis and Critical Control Point (HACCP); Hazard Analysis and Risk-Based Preventive Controls (HARPC); heavy metals; International Food Safety Authorities Network (INFOSAN); maximum residue

Index  557 level (MRL); microbial contamination; pathogenic microtoxins; US FDA Food Safety Modernization Act (FSMA) 206, 220, 256, 261–90 existing voluntary schemes for food safety 271–5 FDA Rulemakings 284–5 foreign food processing facilities 266, 271 Foreign Supplier Verification Program (FSVP) 256, 263–6 GATT Basic Disciplines 277–80 hygiene 78, 80, 92, 100, 110, 213, 220, 233, 235, 342, 344–45 hygienic practice 240, 242, 347, 350, 365 implementing rules 268–9 private third-party standards and audits 266–71 sanitary and phytosanitary measures 280–82 Voluntary Qualified Importer Program (VQIP) 263, 265–6 WTO related to 283–4 food security 3–5, 13–14, 17–18, 20, 23–28, 29, 33–34, 44–48, 56, 58, 71–72, 96, 98, 117–19, 121, 125–26, 128, 131, 144, 172, 174, 343, 466, 545 and climate change (crisis) 56–60, 427–30, 445 environmental degradation 466 exceptionalist policies 467–68 Food Security Assistance Scheme (FSAS) 119 GE crops 511 national food security strategies 33, 117, 119, 121, 132–43 technocratic discourse of 34 trade 47–48, 119, 172 see also FAO’s Committee on World Food Security; United Nations Committee on World Food Security (UN CFS) food sovereignty 3, 5, 14, 23–24, 27, 34, 41, 56, 176–77, 180–81, 210, 538, 541, 545, 550 Food Standards Australia New Zealand (FSANZ) 324 food supply chain 12, 75–76, 84, 96, 109, 122–23, 253, 314, 338, 427, 430, 465, 471–72, 476–77, 480, 495–96, 506, 512 food (or agri-food) system(s) 3–4, 5, 8, 14, 27–28, 65, 92, 96, 114, 117–46, 171, 176–77, 179, 181–82, 230, 309, 312–13, 344, 367, 410, 428, 443–45, 447–49, 455, 462, 476, 478, 491, 534, 539, 541–42, 544–46, 551 Business Declaration on Food System Transformation (2021) 313 climate change 122–24, 498 COVID-19 125–26

exceptionalism 462–65 FAO 10, 101, 131 food safety 457, 464, food security 13 global food (or agri-food) system, international food system, or world food system(s) 1–4, 6–10, 12–13, 17–21, 23–28, 35–39, 46, 57–58, 61–62, 95, 117–18, 120, 124 143, 174, 292, 303, 314, 444, 534 hunger and food insecurity 120–21 International Panel of Experts on Sustainable Food Systems (IPES-Food) report 129 international trade 48 labor 124, 457, 463, 468, 544 local and regional food system(s) 51, 119, 474 national food system(s) 96, 117–46 public health 118, 122 technology 12 see also United Nations Committee on World Food Security (UN CFS); United Nations Food Systems Summit (2021) (UNFSS); United Nations’ Sustainable Development Goals Food waste 24, 58, 123 Fortin, Neal D. 69, 227 France 66–67, 112, 194, 222, 298, 365, 382, 437, 478 free trade agreements (general) Congressional-Executive Agreements 286 United Nations “Protect, Respect and Remedy Framework” (UNGPs) 293 (under guiding principles) Friedmann, Harriet 20–24, 28 Fukushima case 49, 244 García Pimentel, Luis 158 Gates Foundation 29 Gates, B. 29, 32 Gates, M. 29 General Agreement on Tariffs and Trade (GATT) 7, 97, 239, 245–46, 277–81, 438–439, 441, 459 Article I 277, 285 Article III277, 285 Article XI 184, 277, 285 Article XX of 277–79, 285, 439 GATT Basic Disciplines 277–80 GATT Uruguay Round 239, 245, 280–81, 285, 351, 438 GATT/WTO rules 285, 289 General Data Protection Regulation (GDPR) 422, 490 General Food Law 73, 207, 214–16, 332, 359, genetically engineered (GE) food, genetically modified foods, or genetically modified

558  Research handbook on international food law organisms (GMOs) 7, 12, 68, 81, 108, 174, 177, 208, 213, 218, 245–46, 281, 289, 326, 374, 439, 498–513, 540, 545 climate change, the impact of 510 CRISPR/CAS-9 503, 512 consumer perception, of risk and trust 506–8 in EU 504–6 in U.S. 502–4 malnutrition 508–9 regulatory process 511–12 science of 499–502 see also National Bioengineered Food Disclosure Act, U.S. geographical identity 183 geographical indications (GIs) 6, 79, 81,99, 183, 192–94, 222, 290, 439 geography and food 192–94 geopolitical consequences 177–81 German Food Code 349 Germany 66–67, 208, 212, 349, 381, 437, 478 Ghana 52–4 Gledon, M.A. 210 Global Animal Welfare Strategy Global Estimates of Modern Slavery 292 Global Food Safety Initiative (GFSI) 6, 110, 274–75 GLOBALGAP 86 global land rush post-2006 30, 32, 35, 37, 42–44, 55, 60 global greenhouse gas (GHG) emissions 56, 122–23, 292 globalization 9, 22, 26, 74, 81, 83, 87–92, 95, 110–111, 115, 186, 192, 242–43, 250, 276, 391, 394, 438, 540 agri-food law 92–3 agro-food system 35, 38–42 animal welfare strategy 529–30 food challenges 174–6 food prices 45 food system 3 Global South or developing countries 5, 29, 40–42, 46–47, 50–51, 54–55, 58, 95, 97, 107, 109–10, 111–12, 114, 119, 124, 166–81, 192, 238, 247, 273, 284, 295, 447, 450, 460–61, 469, 543 The Global Slavery Index 2018 292, 296 Global Value Chains (GVCs) 33, 41, 48–49, 295, 312 Golden Rice 508–509 Gonzalez, C. 172, 176–77 Good Regulatory Practices (GRPs) 1, 4, 112–13, 115 Gorsuch, N. 419 governance 1, 5–9, 13, 18–20, 25, 35, 37, 60, 70, 81, 410, 538, 541, 550

agricultural exceptionalism 447, 461–62 certification 389, 391, 400 cooperative food governance 3–4, data governance 12, 471–497 FAO 119–20 governance strategies 4 global governance of food safety 227–42, 243–60, 274–75, 332 governance frameworks 7–14 GRPs Good Governance 112 hybridization of food governance 71, 85 International Panel of Experts on Sustainable Food Systems (IPES-Food) 129 land governance 54–55 national food governance 5, 117–146 political economy of food governance 535 transnational governance 356 smart self-regulation 342 social contract 185 special governance (China) 212, 223, 483–84 see also environmental, social and governance (ESG) ESG; private food law; selfregulation; voluntary regulation greenhouse gas emissions (GHG) 58, 292, 304, 312, 317–18, 428–37 green payment450, 455 Green Revolution 22, 57, 152, 461 Gruyere litigation 194 guideline daily amounts (GDAs) 370, 381 Harkin, Tom 300 harmonization 8–9, 64, 66, 73, 200, 227, 231, 233, 238, 242, 245–47, 252, 258–59, 284, 334, 348–67, 511 Hassall, A.H., 230 Hazard Analysis and Critical Control Point (HACCP) 70, 81, 110, 214, 220, 242, 262, 284, 336, 340, 357, 362–63, 367,480 Hazard Analysis and Risk-Based Preventive Controls (HARPC) 220, 262, 264, 268, 280, 282, 285 Health Division of the League of Nations 118 heavy metals 320–22, 416 Hernández-López, E. 5, 8, 166 Herrejón, Francisco y Sucesores 160 Guterres, A. 130 hierarchies 3, 7–8, 444, 448, 462, 469 Hodsdon v. Mars 298 Honduras 179, 358 Hong Kong 353 hormones 81, 106, 246, 360 Hormones case 81, 243 249, 281–2, 358–59, 361, 439 Howse, R. 249 human rights 3, 5, 11, 13–14, 19, 24–27, 169–71, 175, 183–89, 248, 291–314, 534–50

Index  559 African Charter on Human and Peoples’ Rights 188, 536 African Court on Human and Peoples’ Rights 183, 188 American Convention on Human Rights 184, 189–90 American Declaration on the Rights and Duties of Man 184 European Convention on Human Rights (ECHR) 435 European Court of Human Rights (ECHR) 436 Human Rights Due Diligence (HRDD) 305–09; 311–12 IBA Practical Guide on Business and Human Rights for Business Lawyers 293 Inter-American Court of Human Rights 184, 188–89 Universal Declaration of Human Rights 196–97 UN Commission on Human Rights 293, 537 UN Human Rights Council 294 UN “Protect, Respect and Remedy” Framework (UNGPs or Guiding Principles) 293–95, 304–05, 311, 314 UN Working Group on Business and Human Rights 305 hunger 3–4, 10, 11, 13, 14, 19, 21, 25, 28, 34, 42–43, 57–60, 96, 118–20, 120–122, 124, 129–30 FAO Zero Hunger program 10, 129, 133 hygiene see food safety Indigenous Civil Society and Indigenous Peoples’ Mechanism 548 communities 56, 169, 184, 186, 188–90, 453 cultures 56 food culture 25 heritage 186 national indigenous organizations 138, 144 organizations 138, 144 people 33, 144, 190, 298, 323, 550 populations 138 rights 25 seeds 544 Indigenous Communities of the Lhaka Honhat (Our Land) Association v. Argentina 190 India 44, 53, 80, 177, 223, 279, 283, 316, 384, 465, 486–87, 490, 544 Indonesia 33, 45, 48, 51–53, 80, 218, 283 industrial capitalism 35, 38 industry standards 270–71, 390, 398–99, 401 information and communication technologies (ICTs) 473

information regulation 341, 452 INGA Farms Limited 54–55 insects, food safety regulation of 6, 9–10, 315–31 allergens 319–320, 328 animal welfare with 329–30 contaminants 319 in European Union 322–3 food fraud regulation 329 heavy metals 320–21 history of 315–18 inspection(s) 98, 101, 105, 107, 109, 112, 114, 223, 235, 253, 256, 265–267, 270–74, 283, 336–339, 346, 351–53, 364, 389, 392–393, 396,398, 399, 402, 474 animal welfare 522, 526–27 fish 105 import and export 100, 104, 233, 283 kosher 396 meat 105 institutional design 70, 217, 244, 251–52, 255, 259–60 international food law (general) 1–5, 17–20, 26, 28, 34–7, 41, 46, 49, 51, 56, 62, 167, 174, 209–10 international institutions (general) 1, 5 institutional investors 44, 53 insurance agricultural insurance and disaster relief 454–55 instruments 31 intellectual property 5, 17, 19, 25, 167, 169, 171–74, 181, 183, 290, 410, 453, 461, 488–89 see also Trade Related Aspects of International Property Rights (TRIPS) Interafrica Bureau for Animal Resources (OUAIBAR) 529 internal controls 335 international agreements (general) 5, 78, 81, 113, 285 International Centre for the Settlement of Investment Disputes (ICSID) 49 international cohesion 511 International Courts of Justice 440 International Covenant on Economic, Social, and Cultural Rights (ICESCR), 1966 13, 101, 175, 186, 535, 548 International Dairy Federation 230, 232, 548 international debt crisis in the 1980s 43 international donors 59 International Federation for Animal Health (IFAH) 529 international food law (general) 2, 18, 19, 34, 35, 209–10 international food regimes 37, 39

560  Research handbook on international food law International Food Safety Authorities Network (INFOSAN) 6, 101 International Fund for Agricultural Development (IFAD) 55 International Health Regulations 101 international humanitarian law 91–2 International Labor Organization (ILO) Convention 300, 302 International Labor Rights Forum 302 international legal instruments 6 International Monetary Fund (IMF) 50, 170 International Office of Epizootics (OIE) see World Organization for Animal Health (WOAH) International Organisation of Vine and Wine (OIV) 82–84 International Organization for Standardization (ISO) 266–67, 272–4, 284, 491 international organizations (general) 5–6, 28, 73, 81, 96, 102, 115, 145, 235, 356, 360 International Panel of Experts on Sustainable Food Systems (IPES-Food) 129 International Plant Protection Convention (IPPC) 6, 9, 24, 73, 98, 108, 114, 240, 246 see also European and Mediterranean Plant Protection Organization International Platform for Digital Food and Agriculture 473, 491 international standardization 243, 492 International Standards Organization (ISO) 230, 266–67, 272–74, 284–85 international trade law 13, 17, 19, 25–26, 37, 48, 51, 171–72, 178, 457, 459, 461, 532 internet of things (IOT) 471 investment(s) 29–32, 42, 51, 60, 180, 405 foreign investment 37, 46, 49–52, 161, 335 government-backed investment funds 53 investment law 8, 17 37, 49, 50–51, 537 investors 8, 29–33, 42, 44, 49–53, 55, 61–2, 153, 298–99, 306, 311 Responsible Agricultural Investment – Principles of Responsible Agricultural Investment (PRAI) 55 Iran 167 Iraq 544 irradiation 499 Istituto di Diritto Agrario Italiano e Comparato (IDAIC) 65 Italy 66–67, 77, 437–38 Jamaica Japan – Agricultural Products II249 Joint FAO/WHO Expert Committee on Food Additives (JECFA) 100, 232, 237

Expert Meeting on Microbiological Risk Assessment (JEMRA) 100, 237–38 Expert Meetings on Nutrition (JEMNU) 100 Food Standards Programme 100, 232, 354 Meeting on Pesticide Residues (JMPR) 100, 237–38, 357 Jose Adolfo Tellez, et al., v. Dole Food Company, Inc., et al. 297 Kavanaugh, B. 419 Kenya 437 Kosher certification 393–408 evidence of success 396–7 industrial Kosher certification 395–6 market for 394–5, 398–400 Kosher Law Enforcement Division 396 Kötz, H. 199, 201 KPMG Survey of Sustainability Reporting 2020 307 Kuwai 320 Kyoto Protocol 431–33 labor 38, 41, 47–48, 150, 154, 162–63, 172, 179, 248, 291, 419, 420, 448–49, 457, 463–64, 495, 511, 544, 550 child labor 292, 298–302, 307, 419 fair labor standards 388, 404, 407 labor and immigration 449 labor inequities 117,124–5, 142 labor in cocoa industry 299 labor unions 106 slave (or forced) labor 292, 298, 453 see also International Labor Organization; workers laissez-faire capitalism 229, 241 Lambek, N.C.S. 10, 13–14, 534 Lamy, P 541, 546 land (or farmland) 29–62 climate crisis 32, 56–60 debt and structural adjustment 50 “financialization” of 30 foreign investment 37, 44, 49–51 global land rush 30, 32, 35, 37, 42–44, 47–56, 60 land acquisitions 9, 33,46, 51, 538 land and agricultural investments 51–52 land-based production 35–36, 37, 42, 46, 59, 60–61 land consolidation 33, 38, 466 land deals 37, 43–46, 50–56, 61 land degradation 39, 57, 124, 309 land grabbing (or large land transactions) 30, 32–37, 42–46, 53, 55, 6 land markets 33, 42, 50 Land Matrix 43, 45

Index  561 land ownership 44 land rights 54, 151 land tenure 54, 179 large institutional investors 30, 32 Latin America 43–45, 50, 57–58, 125, 164, 171, 179, 183–84, 186, 188, 191, 234, 297, 383, 385 law and political economy approach 35 lawsuits e-commerce 481 farmers and agricultural workers 297–99, 312 food and beverage 413 see also class action League of Nations 10, 13, 118, 528 Nutrition and Public Health 1935 Report 118 legal mechanisms 1 legal realism 36, 539 legal sovereignty 348 legal transplants 64, 81–3, 202 Leib, E.M.B. 4, 117 life cycle 74–78 Lisbon Treaty amendments 72, 517, 527 lobbying groups 106 local local communities 33, 56, 298, 400 local cultural heritage 183, 187 local defined 192–93 local enforcement 472 local environment 448, 463 local food (production) 5, 9, 51, 173, 228, 242, 325, 395 local food security 120, 153, 430, 460 local food systems 51, 119, 474, 545 local and geographical indications 193–94, 196 local government 28, 52–53, 103, 128, 144, 158, 161–63, 339–40, 348, 394 local interests 21, 64, 96, 106, 168, 171, 177, 180, 186–87 192, 362 local kosher 395 local land deals 52 local land grabbing 30 local law 71–72, 92, 325, 334 local retail 110, 113, 395 local self-determination 8, 366–67 Loyola de Vicente, Consuelo y Coagraviados 157 Lynas, M. 510 Lytton, Timothy D. 6, 11, 387 MacMaoláin, C. 13, 515 Malaysia 279, 353, 384 market concentration 398, 406, 485–86 see also anti-trust Marrakesh Agreement 239, 351, 438,

maximum residue level (MRL) 218, 238, 245, 272, 357–58, 361–62 McCoy v. Nestlé 298 McMichael, Philip 20–24, 28 Member State Dialogues 130 mercantile-industrial food regime 22 meta-regulation 336, 346 Mexico 12, 148–65, 173–74, 177, 179, 238, 278, 280, 283, 315–16, 321 326–7 Mexican Revolution 148 Mexican Supreme Court 5, 148, 153–61 water access 148–65 microbial contamination 328 Middle East 17, 125 Morocco 80 most-favored-nation (MFN) principle 277 Mozambique 52 multilateral agreements (general) 347 multilateral institutions (general) 31, 49, 166, 168, 171–4 mutual recognition 65–67, 268, 284 Myanmar 125 mycotoxins 106, 320 National Advertising Division (NAD) 376 National Bioengineered Food Disclosure Act 504 national food laws (general) 4, 95–97, 100–16, 232 national government(s) (general) 44, 96, 101, 107, 130, 144, 238–40, 349, 435, 473 National Register 433 national security 351, 444, 477, 493–94 National Standardization Development Action Plan 491–92 Near East 234 Neoliberal 5, 21, 24, 46, 456, 542 global food system 20 modern neoliberal food policy 467 food regime 23–24, 26–27 Nestlé USA, Inc. v. Doe (Nestlé) 291, 298, 312, 419–20 network density 401, 406 New International Economic Order (NIEO) 49 New Zealand 324, 353, 358–59, 424–456, 490 Niger 119, non-discrimination 245, 277, 281, 284, 537 non-governmental organizations (NGOs) 48, 133, 141, 144–45, 232, 431, 476, 544 non-tariff barriers 47, 245, 385 non-tariff measures 97 North America 22, 30, 40, 57–58, 82, 132, 136, 191, 234, 274, 427, 465 North American Free Trade Agreement (NAFTA) 153, 173, 276, 285, 465 Norway 53

562  Research handbook on international food law novel foods 67, 115, 213, 218, 315, 317, 319–20, 322–26 see also EU Novel Food Regulation nutrition 4, 7, 10–11, 96, 101, 117–22, 131–37, 143–44, 190–91, 221–22, 231, 235, 317, 342, 345–46, 371–75, 379, 381, 448, 451–52, 467–68, 480, 508, 543 Brazil’s nutrition security policies and councils 128, 134–36, 144–45 Canada’s nutrition security policies and councils 137–40 144 claims 11, 98, 220, 372 FAO establishment 231 labeling 10–11, 190, 221, 371–72, 375, 379 nutrition security 117, 119–20, 128, 132–37, 143–45 South Africa’s policies and councils 135–36, 144 see also Joint FAO/WHO Expert Meetings on Nutrition (JEMNU); League of Nations Obama, B 261 Oceania 125 OIE see World Organization for Animal Health (WOAH) One Health 4, 9, 96, 104, 107–8, 343–44 online food 113–14, 494, 496–97 Orford, A. 28 Organisation of African Unity 528–29 Organisation for Economic Co-operation and Development (OECD) 12, 73, 232, 474 Organized for Kashruth Laboratories (OK) 395 Orthodox Union (OU) 395 Oslo Principles on Global Climate Change Obligations 435 Pacific 191, South West Pacific 234 Page, J. 1–2 Pakistan 167, 279, 283 Panama 179, 278, 358 Paris Agreement 12, 58, 123, 304, 308, 432, 433 Paraguay 179, 358 pathogenic microtoxins 320–21 Patrickson v. Dole Food Co. 297 Payson Center for International Development and Technology Center 302 pension plans 29–30, 44 People’s Climate Case 437 Peru 128, 164, 177 pesticides 76, 103, 105, 109, 152, 173, 218, 238, 272, 296, 297, 320, 412, 501–03, 510, 544 residues 100, 106, 111, 127, 231, 233, 240, 242, 320, 347, 350, 357 see also Joint FAO/WHO Meeting on Pesticide Residues (JMPR)

philanthropic community 59 Philippines 283, 297, 358 Pinghui, Xiao 12, 471 Pollans, M. J. 7, 12, 13, 443 Portugal 437 Post-Brexit 516 power 2–4, 8, 12, 14, 20, 23–25, 27–28, 32, 48, 60–61, 67, 71, 84–85, 104, 111, 114, 144, 150, 163, 168–69, 171, 173, 181, 217, 257, 263, 277, 304, 311, 337, 392, 398, 406, 429, 445, 447, 449–50, 462, 481, 485–87, 496, 534, 539, 541–43, 545–50 precautionary principle 68, 174, 243, 249, 258, 281, 359–361, 435–36, 502, 505 Principles of Responsible Agricultural Investment (PRAI) 55 Pritchard, B. 21 privacy and data security 492–3 private actors 85–87, 109, 168, 173, 335, 358, 361 private capital 46, private economic investments 56 private equity groups 44 private finance private capital 41, 46 private investment 50 private investors 51 private food law (standards) 83–87, 110, 205, 334 private third-party audits 263, 266–8, 271 private third-party certification 6, 11, 282–83, 387, 390–3, 397, 401–02, 404, 406–08 process and production methods (PPMs) 278–80 product claims 11, 387–407 product disparagement laws 456 productivism 445–446, 459, 468 see also agriculture production Pro-Ejido decisions 155–63 professional competence 196 prohibition approach 208 Prohibition-era 370 Protected Designations of Origin (PDO) 79, 81, 87 Protected Geographical Indications (PGI) 79, 81, 87 Protection of Laying Hens Directive 525 Protection of Pigs Directive 523–24 Protocol on the Protection and Welfare of Animals 517 public health 4, 8, 67, 77, 100–05, 115, 117–18, 120, 122, 126, 133, 144–45, 178, 217, 230–32, 243, 250, 259, 267, 270, 276–77, 282, 286, 288–90, 323, 332, 336, 343, 346, 352, 354, 359–61, 364, 367, 377, 386, 451, 477, 480, 494–95, 544 public international law 18, 46, 56, 176, 263–64, 275, 287

Index  563 public investments 461, 537 public policy 66, 98, 271 public resources 340 Pure Food and Drug Act (1906) (PFDA) 206–07, 256 Rapid Alert System for Food and Feed (RASFF) 258 see also ASEAN Rapid Alert System for Food and Feed (ARASFF) Regulation (EU) 2017/625 70,74, 76–77 Regulation (EC) No 178/2002 69–70, 73, 75–76, 207, 215, 332, 359 Regulation (EC) No 692/2003 79 regulatory compliance actions 411 regulation theory 21, 335–37 reliability 398–401 renationalization 71 Republic of Korea 44–45, 244, 283, 358 reputation (market) 94, 99, 193, 222, 228, 270, 335, 337, 339, 390, 400, 403, 405–06 rights of capital 51, 61 right to food 3, 10, 13–14, 17, 19, 26–28, 34–35, 41, 103, 119, 136, 174–77, 181, 184, 188–90, 197, 205, 210, 296, 439, 461 Africa Commission and Court 188–89 FAO Guidelines 101 OAS Court 190 right to food, Special Rapporteurs on De Schutter, Olivier 538–42 Elver, Hilal 542–5 Fakhri, Michael 546–9 see also Special Rapporteur right to life 436–37 risk ambiguity aversion 507 precautionary principle 505 risk analysis 108, 213, 215, 255 risk assessment 8, 72, 212–17, 239 243–52, 259, 303, 307, 314 SPS Agreement, Article 5.1 281, 360 see also ASEAN Risk Assessment Centre for Food Safety; the Joint FAO/WHO Expert Meeting on Microbiological Risk Assessment (JEMRA) Roberts, M. 1, 4, 410 Rodríguez Cabo, José y Coagraviados 161 Romania 437 Roosevelt, F. D. 10, 231 Royal Society for the Prevention of Cruelty to Animals (RSPCA) 515 Ruggie, J. 294 Russia 17, 208, 214 Russia/Ukraine conflict 17, 26, 58

Saab, A. 3, 5, 13–14, 175 sacrifice zones 462–8 Sainz Trinidad, Irene y Coagraviados 158 Saudi Arabia44Sax, J. K. 7, 12, 498 Schutter, O. 534–35, 538–39, 542, 546, 550 science 7–8, 12, 63, 67, 69, 74, 77, 100, 145, 190, 213, 217, 218, 234, 242–50, 253, 259, 281, 348–49, 353–54, 361, 480, 498, 494, 501, 503–04, 511–13 Codex 9, 217, 234, 239, 242 348–349, 352 consumer and science 506 food safety 8–9, 78, 242, 361–62, 458 food science 341, 376–77, 499 GE food 498, 502, 510 Lynas, M. 510 Science as the Cornertone of Regulatory Measures 246 science-based risk assessment 243 scientific community 511 scientific justification 8, 99, 106, 111, 244, 246, 250, 281, 284, 289, 352, 356, 361 SPS Agreement 245–46, 248–49, 259, 281 self-determination 8, 92, 170, 366–67 Self-regulation 1, 10, 85, 87, 333–346, 376 Semanario Judicial de la Federación y su Gaceta (SJFG) 154 Silva, J 541 Sinaloa, water administration and food production in 161–3 Sinclair, U. 206 Singapore 353, 384 single food agency 128 Sipos, C. 418, 420 Sky Net 340 Slavery 291–292, 296–99, 306, 308, 312, 314, 420, 449, 453, child slavery 299–300 The Global Slavery Index 2018 292 Slovic, P. 507 smallholders 31, 33, 46–48, 52, 54, 56, 59, 60–61, 465–67 see also family farms smart choices 381 social contract 185 social externalities 446 social movements 34, 534, 538–41, 546, 548, 550 social networks 399–401, 406 Social Protection Committee 519 Sociedad de Liquidación Martínez de la Concha y Zenil 156 soft law 5, 55, 82–83, 183–84, 197, 205, 431, 437, 542–43 soil 31, 99, 149, 428, 487

564  Research handbook on international food law Sommer v. Snapple Beverage Corp 379 South Africa 128, 135–6 national food security strategy 135–6 South America 63 South West Pacific 234 sovereign debt 37, 167 sovereignty 3, 8, 46, 49, 142–43, 170–71, 179, 242, 264, 348 data sovereignty 484 specialized subsidiary bodies 356 Special Rapporteur 13–14, 26–28, 55, 170, 181, 184, 197, 296, 534–551 S&P Global Corporate Sustainability Assessment 301–02 Spreij, M. 4, 6, 9, 11–12, 95 Sri Lanka 168 Standards and Trade Development Facility (STDF) 97, 112 Staniar, L.W. 418 Star-K 395, 397 State Administration for Market Regulation (SAMR) 217, 483, 486–87 Strenski, I. 462 subsidies 25, 27, 47, 152–53, 177, 438, 453–55, 459–61, 464, 467, 537 sub-Sahran Africa 58 sugar (public health) 122 labeling 328, 369–86, 413 production 40, 149, 155, 160–63, 172–73 Sun, J. 4, 10, 14, 332 supermarkets 11, 24, 58, 110, 407, 485 supply chain 5, 11–12, 14, 33, 44, 48–49, 58, 60, 62, 75,76, 84,92, 109–10, 122–23, 126, 176, 228, 251, 270–71, 275, 282, 291–314, 330, 338, 341–45, 349–50, 353, 361, 394, 402, 406–07, 419–20, 427, 430, 460, 465, 469, 471–477, 480–81, 486, 491, 506, 510, 512, 546 supply chain due diligence 305–07, 309, 311, 314 Supply Chain Due Diligence Act 307 sustainability 12, 111, 117, 119, 126, 137, 143, 180–81, 191, 210, 276, 290, 298, 301, 305–08, 314, 317, 328, 330–31, 366, 376, 404, 437, 475–77, 528 High-Level Political Forum on Sustainable Development 129 see also International Panel of Experts on Sustainable Food Systems (IPES-Food); S&P Global Corporate Sustainability Assessment; UN Millennium Development Goals; UN Sustainable Development Goals Switzerland 194

Tai, S. 6, 9–10, 12, 315 Taiwan 384 Tanzania 119, 296 Teachers Insurance and Annuity Association of America (TIAA) 44–45, 53 Technical Barriers to Trade (Agreement) (TBT) 5–6, 27, 97–99, 102, 116, 239–41, 280, 282, 285, 350–52, 355–59, 386,439 techniques (legal) 37, 46, 51–5, 81 technology and science 12, 471–97 Telephone Consumer Protection Act (TCPA) 417–18 Tenure of Land, Fisheries, and Forests in the Context of National Food Security (VGGT) 55 tertium comparationis 202 Thailand 125, 279, 312, 320, 358 third-party certification see certification third-world approaches to international law (TWAIL) 5, 166–82, 546–47 consumer choices 177–81 food policies 177–81 geopolitical consequences 177–81 global food challenges 174–6 intellectual property 171–4 international trade 171–4 multilateral institutions 171–4 re-conceiving and replanting norms 176–7 and reform movement 167–71 Thomas, C. 291, 419 Thompson, E.P. 61 TIAA 30 Tobin, T. 11, 409 Tomasella v. Nestle USA, Inc. 298, 420 traceability 48, 68, 73, 80–81, 109, 114, 213, 220, 342–43, 364, 471, 473, 475, 486, 491 trade 3, 5–9, 12–13 17, 22–25, 35, 40–41, 46–49, 63, 68–69, 74, 87–89, 92, 95–98, 100–04, 106–08, 111–13, 118–19, 135, 142, 166–68, 169, 171–78, 180–81, 184, 192, 194–96, 227–34, 238–45, 250–51, 255–57, 259, 261, 264, 270, 272, 275–85, 287, 289–290, 347– 54, 357–60, 362, 366–67, 385–86, 438–440, 456–57, 459–60, 466–69, 476, 479–80, 496, 498, 503, 505, 509, 510–11, 515–17, 528, 531, 537–38, 541, 545–46, 548–49 African Continental Free Trade Area (AfCTA) 102 bilateral trade agreements 6, 251, 353, 367 Codex 8–9, 100–02, 115, 232, 238–42, 247, 272, 347 food safety 8–9, 253, 259, 290, 351 free trade agreement(s) 6, 9, 172, 244, 285–86, 459

Index  565 regional trade agreements 276, 290 trade blocs 115 Trade Facilitation Agreement (TFA) 6, 99 trade law 19, 24, 48, 181, 461 Trade usage 184, 192, 195–96 UK Trade and Agriculture Commission 142 World Trade Organization see WTO WTO trade-based disciplines 280, 284, 289 see also Agreement on Sanitary and Phytosanitary Measures (SPS); fair trade practices; the General Agreement on Tariffs and Trade of 1947 (GATT); international trade law; most-favored-nation (MFN) principle; non-tariff barriers; nontariff measures; multilateral agreements; mutual recognition; non-discrimination; North American Free Trade Agreement (NAFTA); trade agreements; trade liberalization; Trade-Related Aspects of Intellectual Property Rights (TRIPS) trade agreements 6, 9, 13, 48, 97, 113, 172–73, 177, 238, 244, 250, 254, 276–77, 285–86, 290, 348, 350–53, 367, 459, 516, 531 trade barriers 40, 232, 261, 273, 276–77, 280, 286, 289–90, 351, 385, 459 trade liberalization 8–9, 41, 47, 243–44, 250, 258–59, 456, 460–61, 537 trademark 194, 488 Traditional Chinese medicine (TCM) 325 transnational agribusiness 44, 59 Trans-Pacific Partnership 245, 256 transparency8–9, 72, 86, 111, 115, 132, 144, 242, 244–45, 252, 254–55, 258–59, 268, 271, 284, 290, 298, 306–07, 313, 334, 341, 350, 355, 361, 373, 376–77, 386, 393, 398, 518, 537 mandatory transparency/disclosure laws 306–7 see also blockchain transportation infrastructure 149 treaties 1, 4, 6, 89, 97, 101, 169, 171–72, 209, 285, 386, 435 bilateral 1, 49–50, 386 European Treaties 88 investment treaties 49–50 Treaty on the Functioning of the European Union (TFEU) 71, 73, 84, 517–19, 527 Tripartite Standards Regime (TSR) 84 true costs of food 446–47, 462 tuna-dolphin dispute 278–80, 288, 387 Turkey 48, 80 Tzouvala, N. 170 UNESCO Convention and Food as Intangible Cultural Heritage 184–8 unification 64, 74, 199–201

United Arab Emirates 44, 358 United Kingdom (UK) 111–12, 140, 293, 296, 302, 382, 450, 475, 515 animal welfare 529 Food 2030 (2010) Red Tractor scheme 111 voluntary FOP nutritional labeling program 382 United Nations (UN) 31, 172, 175, 187, 230–31, 273, 294, 422, 431 UN Centre for Trade Facilitation and Electronic Business 114 UN Commission on Human Rights (UNHRC) 293, 537 UN Committee on Economic, Social and Cultural Rights (CESCR) 10, 197, 536–37, 540 UN Committee on World Food Security (UN CFS) 131, 217, 538, 543, 546–48 UN Conference on Food and Agriculture 1943, 231 UN Conference on Trade and Development (UNCTAD) 55 UN Conference on Trade and Employment 438 UN Convention on Psychotropic Substances 82, 216 UN Convention on the International Sale of Goods (CISG) 5, 184, 195, 293–94 UN Conference on Trade and Development (UNCTAD) 55 UN-Economic Commission for Europe (UN/ ECE) 73, 82, 84 UN’s Fifth Intergovernmental Panel on Climate Change (IPCC) report 429 UN Food Systems Summit (2021) (UNFSS) 2, 130–2, 146, 313, 534, 546 UN Framework Convention on Climate Change (UNFCCC) 431 UN Guiding Principles on Business and Human Rights (UNGPs or Guiding Principles) 12, 293–95, 303–05, 309, 311–14, 511 UN Interim Commission on Food and Agriculture 1945, 231 UN Secretary-General 130, 294 UN Sustainable Development Goals 4, 96, 129–30, 366 UN Working Group on Business and Human Rights (Working Group) 305, 314 see also Special Rapporteurs United Nations World Food Conference 119United States (U.S.) 40, 126, 143, 204, 207, 263, 322,420, 450 US Congress 127

566  Research handbook on international food law US Department of Agriculture (USDA) 127, 373, 410, 502, 504 US Federal Trade Commission (FTC) 411, 416 US Food and Drug Administration (USFDA) 127, 214, 217, 256, 262–319, 322, 353, 367, 371–2, 374–375, 377–82, 410, 416, 474, 502–03 US – Reformulated Gasoline 440, 441 United States-Mexico-Canada Agreement (USMCA) 174, 245, 251, 253–55, 259, 276 Universal Declaration of Human Rights (UDHR) 13, 175, 186, 196, 535 Uruguay 177 Uruguay Round 351 Uruguay Round Agreement on Technical Barriers 28 see GATT US-Australia Agreement 254 US-Bahrain Agreement 254 US-Chile Agreement 254 Valle, Viuda de Mier y Terán, María del 159 van der Meulen, B. 7, 199 Vanuatu 278 Vapnek, J. 4, 6, 9, 11, 12, 95 Venezuela 80, 179 vertical legislation 208 Vietnam 316 Vignoble Psagot Ltd 91 vitamin A deficiency 508 Vives, Antonio, y Coagraviados 156 voluntary 6, 9, 56, 84, 86, 1001, 163, 233–34, 242, 256, 261, 263, 265–67, 269–75, 289, 291, 293, 299–309, 311, 348, 357, 361, 363, 372–73, 381–82, 386, 391, 450, 490, 503, 543 see also governance voluntary third-party assurance (vTPA) programs 111–12 Voluntary Qualified Importer Program (VQIP) 256, 263, 265–6 water scarcity 57, 123, 309 Walmart 114, 338–339 Waye, V. 12, 471 Wernaart, B. 7, 199 West Africa Wirth, D.A. 6, 8, 9 Wirth v. Mars 298 Women 124, 178–79, 295–96, 379, 545 workers 14, 35, 124–26, 150, 163, 179, 293, 295–99, 304, 311–14, 444, 449–51, 462–69, 544, 550 see also International Labor Organizations; labor

workers’ bodies 463–5 World Bank 12, 31, 33, 55,95, 170, 295, 474, 541 World Bank Group 95, 97 World Business Council on Sustainable Development (WBCSD) 304, World Economic Forum, 131 (WEF) 308 world food crisis 1970’s 39, 119 World Food Program 548 World Food Safety Day 332 World Food Summit, FAO 14, 22–23 World Health Organization (WHO) 4, 19, 73, 95, 230–232, 349 World Organization for Animal Health (WOAH) (aka International Office of Epizootics [OIE]) 5–6, 9, 13, 73, 96–101, 238, 240–41, 528–30 WOAH Terrestrial Animal Health Code 100, 530 WOAH Aquatic Animal Health Code 97, 100 World Summit on the Information Society (WSIS) 473 World Trade Organization (WTO) 5–6, 8–9, 12–13, 17, 19, 22–23, 25–27, 26, 41, 47, 79–81, 96–100, 106, 111, 115–16, 172–73, 183, 192–94, 222, 238–60, 276–77, 279–90, 351, 353–354, 357, 359–60, 366, 386, 438–42, 460, 511, 517, 529–30, 532, 538, 541, 548 Agreement on Agriculture 23, 27, 47, 172, 459–60 Appellate Body (AB) 249–50, 279–81, 284, 288–89, 360 Committee on Sanitary and Phytosanitary Standards 282 dispute settlement 26, 243, 246, 248, 254, 259, 278, 284–85, 287, 359 negotiations 251 WTO Discussions 283–4 see also Agreement on Sanitary and Phytosanitary Measures (SPS) World War II 10, 34, 40, 46, 168, 273, 349, 444 trade liberalization and food safety protection 250–58 World Business Council on Sustainable Development (WBCSD) 304, 313 World Veterinary Association (WVA) 529 Yemen famine 178 Yiannas, F. 474 Zambia Zauderer v. Office of Disciplinary Counsel 374 Zweigert, K. 199, 201