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A Foray Into Food Law

May 28, 2015

The law school hosts its first-ever food forum, part of its emerging commitment to food law.

With a world-famous restaurant scene, the largest craft beer industry in the nation, and hundreds of wineries, food trucks, independent bakeries, and coffee houses, Portland may well be foodie heaven.

Yet at the same time, Oregon’s children are among the hungriest in the nation, with nearly a third unsure where their next meal is coming from.

That troubling contrast is just one of many challenges within our current food system.

As the exploding global population requires more food than ever, natural resources—especially water—are in severe jeopardy in California and other major agricultural states. By the year 2050, perhaps sooner, the world may experience catastrophic food shortages leading to food riots and war, according to many scientists.

Our food system is posing urgent problems—and solving them will require innovative policy and legal solutions. Into that role is stepping Lewis & Clark Law School, which is already becoming a national leader in this emerging field of law. With new food law courses on the horizon, opportunities to assist food vendors in the Small Business Legal Clinic, a new food and wine student group, and a major food law symposium that launched this year, there aren’t many law schools with as much activity in this area.

It’s a natural fit for the school—and not only because of its Portland location.

Food forum participants included legal scholars, practitioners, and food industry leaders.Food forum participants included legal scholars, practitioners, and food industry leaders.“Food law is a growing field of practice that encompasses many legal disciplines in which we already excel,” says Jennifer Johnson, dean of the law school. Those areas include environmental law, business law, intellectual property, securities regulation, animal law, agricultural law and policy, and health law. “Perhaps even more importantly, the needs of this legal market resonate with the core values of our law school community. We believe we are poised to be a leader in this field.”

Food law—a fairly recent coinage—is an umbrella term that encompasses a wide range of laws and regulations related to how food is produced, processed, transported, consumed, and disposed of. It sits at the intersection of many other legal areas, and it explores a growing number of complex, interconnected questions:

Should genetically modified foods (GMOs) be banned? How much information are consumers entitled to on food labels? Are “ag-gag laws,” which ban undercover investigations of meat and other food producers, unconstitutional? Why do we allow the use of pesticides that kill bees and other species critical to the foodshed? Why does the government subsidize huge farm operations that pollute the environment? What role does the government have in curbing the global obesity and diabetes epidemics?

“It’s mind-boggling how all-encompassing food law is,” says Kathy Hessler, clinical professor and director of the law school’s Animal Law Clinic. “There is no end to the legal issues it addresses.”

Janice Weis, associate dean for the Environmental and Natural Resources Law Program, the top-ranked environmental law program in the nation, says that food law “fits Lewis & Clark—and Portland—so beautifully. We’re very excited because it really does represent a direction for which there is a need, and we already have the tools in place to do a lot.”

Conference organizers: Steve Goebel (Business Law Program), Janice Weis (Environmental and Natural Resources Law Program), Vytas Babusis (Food & Wine Law Society student group), and Pamela Frasch (Animal Law Program).Conference organizers: Steve Goebel (Business Law Program), Janice Weis (Environmental and Natural Resources Law Program), Vytas Babusis (Food & Wine Law Society student group), and Pamela Frasch (Animal Law Program).Student demand is a primary driver. “In the past two years, I’ve had more inquiries about food law from students and potential students than in my previous 18 years at the law school,” says Weis. “The interest is incredibly high. I think it’s a reflection of this generation having grown up with a desire to know where their food comes from. It’s not a fad for them—it’s a lifestyle.”

Hessler agrees. Where students in the animal law program once focused on wildlife issues and prosecuting animal abuse, there’s been a noticeable shift in recent years. “At least 50 percent or more of students coming into the animal law program now are interested in agricultural animals,” she says, particularly the humane treatment of chickens, pigs, cows, and other species raised as food.

For budding lawyers, food law presents a variety of career opportunities. As just one example, a wide range of clients will need help interpreting and complying with the FDA’s Food Safety Modernization Act, a sweeping reform of food safety laws that went into effect in 2011. “The Northwest, and Portland in particular, has become a mecca for aspiring chefs, craft brewers, and winemakers,” while the farm-to-table food culture of the city also draws law students here, says Johnson.

The forum attracted a sold-out crowd.The forum attracted a sold-out crowd.

It makes for a fertile match. Individuals and companies at every stage of farm to table “need talented legal representation to navigate the complex regulations that govern their industry,” says Johnson, and the need for specialized legal expertise will only accelerate. Hessler agrees: “Food law is a growth industry because these issues are going to become more, not less, important” as resources become more scarce. “If we can begin to get students trained to think about these issues and to have some expertise, they’ll be really well placed to help policy officials who are looking at food issues from different perspectives.”

Last year, Vytas Babusis, a second-year law student who had worked with Italian food producers exporting their products, cofounded a new student group, the Food & Wine Law Society. It supports students who have a passion for quality food and wine, helping them understand the industry’s legal issues, challenges, business operations, regulations, and policies. It also helps students connect with the many alumni working in the field and serves as a resource for news and legal cases connected to food.

“Food is the most intimate thing we have a relationship with,” says Babusis, who found that his passion for food and wine was quickly embraced by the law school community. Without healthy and sustainable food sources, he adds, all efforts to improve the world for our families and communities will fall short. In understanding what constitutes a sustainable food system, lawyers can assist those in the industry with all their legal needs, “from employment law, to intellectual property and business law, to environmental and animal advocacy,” he says. 

“Food is the most intimate thing we have a relationship with.” In understanding what constitutes a sustainable food system, lawyers can assist those in the industry with all their legal needs, “from employment law, to intellectual property and business law, to environmental and animal advocacy.”Vytas BabusisSecond-year law student

The Food & Wine Law Society was a cosponsor of the school’s first food law symposium, Eat, Pray, Law: A Food Forum, a sold-out event that drew scores of lawyers, students, and others, on March 13. Other cosponsors included the Business Law, Environmental and Natural Resources Law, and Animal Law Programs. The symposium, the brainchild of Dean Johnson, convened a diverse group of legal scholars, practitioners, and food industry leaders to discuss topics ranging from building sustainable regional foodsheds to the effects of Big Agriculture on human health, animal welfare, and the environment.

Food safety—including the mandatory labeling of GMOs, the subject of a recent failed ballot initiative in Oregon—was one hot topic. “I think a lot of consumers feel overwhelmed with the whole idea of food safety,” says Steven Goebel, assistant dean and director of the Business Law Program. “There’s a lot of fear and confusion at the consumer level, given the patchwork of laws we have.”

Food security was another. Even though many Americans, especially Oregonians, go hungry, there’s a lot of food in the United States that isn’t eaten. “There’s a huge food waste problem due to structural issues within the system,” according to Mike Moran, general manager of Columbia Plateau Producers, a group of wheat farmers certified through the Food Alliance for meeting a range of environmental and social standards.

Vintage food labels were on display.Vintage food labels were on display.In the United States, compared to other countries, food is very cheap. But are Americans willing to pay more for food to ensure that it’s healthier, is better for the environment, and is produced in a way that provides a fair wage for food workers? That remains an open question, panelists agreed. Of course, paying more for food isn’t an option for people already living on the economic margins. That’s where business owners can step in, according to Lisa Sedlar, founder and CEO of Green Zebra Grocery in Portland, which puts an emphasis on healthy foods and a living wage for workers. “Each one of us can do more with our business than our government can,” she told the conference. “At my little grocery store, we pay $13 an hour average, and every single staff member has health care through the company.”

Food companies and restaurants that pay employees a fair wage are living their values, says Babusis, but consumers have a critical role, too. “Of course this means that our food will cost more, but this is because it is truly reflecting the value it has for us in society as a whole,” he says. “Why do we willingly pay $700 for an iPhone but balk when a humanely raised chicken costs $10, or a pound of grass-fed beef costs $6?”

Federal farm subsidies also came under scrutiny. While Oregon is a major agricultural producer, North Dakota, with much less agricultural output, gets six times more in terms of federal subsidies. For U.S. Representative Earl Blumenauer B.A. ’70, J.D. ’76 of the Third District of Oregon, a top priority is major reform of the U.S. farm bill, which privileges Big Agriculture at the expense of smaller farmers and ranchers in places like Oregon. Thirty-five congressional districts in six states receive the preponderance of the subsidies, with certain recipients “making out like bandits,” he told conference attendees. With “industrialization of food” harming American health and well-being, Blumenauer appealed to the audience to help him brainstorm a “good, thoughtful” farm bill. “It’s important for Oregon,” he said, adding, “I think the country will be better off the more we can move down this path.”

U.S. Rep. Earl Blumenauer B.A. ’70, J.D. ’76 and Law School Dean Jennifer Johnson.U.S. Rep. Earl Blumenauer B.A. ’70, J.D. ’76 and Law School Dean Jennifer Johnson.

Among the biggest beneficiaries of subsidies is “monoculture” agriculture—huge industrial farms that grow only soy, corn, and other products that often have enormous negative impacts both on the environment and human health. To change the industrial agriculture model, small and midsize farmers must be better supported, says Babusis, adding, “We also need to encourage the brightest minds to go into farming and ranching.” Some believe change is coming. “The current global monoculture system is collapsing, but we don’t see it yet,” says Richard Satnick, the creator of Dick’s Kitchen in Portland, which locally sources food with an eye toward supporting human health and the environment. “Monocultural agriculture produces calories but is not necessarily nourishing our population.”

While this year’s food forum focused primarily on “the farm,” says Johnson, next year’s will focus on “the table” and issues of importance to Portland’s thriving restaurant community. And it’s clear the law school will continue to expand its focus on this area. That’s one reason that Satnick, for one, is hopeful for the region.

“Portland will be in good shape to feed itself when other places aren’t,” he says. But everyone will have to realize that their food choices, large and small, are critical. As a society, he warns, “We’re going to have to change a lot faster.”

Elaine McArdle is a writer based in Portland.

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