Today Keep Food Legal and Keep Food Legal Foundation are excited to announce the official launch of our new Pro Bono Program. With the launch of this program, we are currently seeking law firms, licensed attorneys, and student attorneys (law students) to take part in a variety of groundbreaking legal actions in support of food freedom.
"With the launch of our pro bono legal program, Keep Food Legal and Keep Food Legal Foundation are taking the next step in our evolution," says Keep Food Legal and Keep Food Legal Foundation executive director Baylen Linnekin. "By adding the opportunity to litigate for food freedom to our current focus areas of research, education, outreach, publishing, and--in the case of Keep Food Legal, advocacy--we expect to be able to more effect more direct and lasting changes."
Keep Food Legal and/or Keep Food Legal Foundation seek to partner with law firms and attorneys licensed to practice in at least one U.S. state on a variety of food-related legal matters. Specifically, we are currently seeking to partner with firms and licensed attorneys that wish to provide pro bono legal services--especially writing and filing amicus briefs--and with experienced attorneys interested in litigating in support of food freedom.
Keep Food Legal Foundation is also seeking one or more law students to serve as a student attorney on a per-semester basis. Students currently pursuing a J.D. or LL.M. at an accredited U.S. law school are welcome to apply. This position is unpaid, though students may be eligible to earn law-school credit.
Learn more about our new Pro Bono Program here.
Yesterday Keep Food Legal filed comments in support of Washington, DC's food trucks. We filed these comments in response to a draconian proposal by District regulators to adopt new rules that could make the popular mobile food vendors a rarity in much of the city's downtown area.
The primary issue in this third cycle of proposed regulations in the District was not complaints about the trucks themselves but about their customers. District regulators--and a small segment of the brick-and-mortar restaurant lobby--apparently believe food trucks just have too many people waiting to buy their food. Keep Food Legal focused in part on this absurd argument against food trucks in our comments:
[U]nder the [District's] so-called “ice-cream truck” rule, DCRA has long mandated that the potential customers of a mobile food vendor form a line (or queue) before a food truck may stop and serve food. DCRA has also required that a truck must leave a parking space without delay after serving the last customer in a queue. Hence, existing DCRA regulations have been an important driver of queues in places like Farragut Square because they effectively prohibit any mobile food vendor from parking and vending unless they do so at a place with a high concentration of people standing in a line.
The proposed regulations... seem designed to punish mobile food vendors because these vendors have been mindful of DCRA regulations and vend only when and where they find large numbers of potential customers standing in line to buy their food products. It would be unjust for the District to penalize mobile food vendors for complying with an absurd regulation like the ice-cream truck rule just because compliance with that absurd rule has perhaps created a fresh set of unintended consequences.
Read our complete comments here.
Our Baylen Linnekin was quoted in the Daily Caller last week on the issue of DC food trucks and their customers. Read Linnekin's remarks here.
Last month may have been the most active--and worst--month for food freedom in recent American history. The month took off with Pres. Obama signing a subsidy-heavy Farm Bill into law, reached cruising altitude with rumblings of a nationwide lawsuit against food producers, and touched back down with a series of proposals--including a plan to expand the USDA's lousy school lunch program and a costly and misguided FDA proposal to change America's food labels.
Who's fighting back against this awfulness? Keep Food Legal, that's who. We've been a vocal (and quotable) opponent of this slew of regulatory challenges facing consumers and producers alike.
For example, Keep Food Legal executive director Baylen Linnekin has been quoted over the past week in two Politico stories on the proposed new regulations.
Asked to comment for a Politico piece that rightly paints the food industry as "under siege," thanks to the slew of new regulations proposed by the Obama administration, Linnekin urged the president to rein in his food-agency heads.
"'I wish the administration would take a step back,' said Baylen Linnekin, executive director of Keep Food Legal, a food freedom advocacy group, and a professor at American University. 'I would imagine [the food industry] has the same whiplash as someone like me or you who has just been trying to keep up with these changes.'"
In another Politico story, Linnekin spoke out against proposed changes to the FDA's labeling scheme for packaged foods.
"Baylen Linnekin, executive director of Keep Food Legal and a professor at American University, said he thinks the new labeling overhaul is misguided and will likely provide little or no benefit.
"'This is a case of pointy-headed academics thinking that their labeling changes are going to have an impact in the real world,' said Linnekin. 'While additions to the labels might make FDA and advocates happy, it’s likely the case that consumer behavior won’t change.'"
Linnekin also used his regular monthly appearance on Dennis Miller's popular syndicated radio show last week to speak out against the USDA and FDA actions in particular. Linnekin told Miller the proposed FDA labels were "likely to have little to no impact on consumers, just like the existing labels."
And in his most recent weekly Reason column, Linnekin describes how--when viewed as a whole--these and other recently proposed food regulations appear to be part of a pervasive new campaign against food freedom.
"February 2014 may go down as the worst month for food freedom since the New Deal era," writes Linnekin.
We will continue to fight to turn the tide in favor of food freedom. But we've got powerful foes in powerful places. Won't you please help support our work by donating today?
Keep Food Legal executive director Baylen Linnekin will speak at a Yale University Law School conference later this week. Linnekin was invited to take part in a workshop, "The Big Picture Made Small: Perspectives on Local Foods," as part of the annual New Directions in Environmental Law Conference, which is sponsored by the Yale University Environmental Law Association.
"This student-organized conference, a joint project of the Yale Law School and the Yale School of Forestry and Environmental Studies, brings together hundreds of students, practitioners, regulators, and academics from across the Northeast, with the goal of providing new ideas and new energy for environmental law and policy," according to the event website.
The workshop Linnekin will take part in "looks at the legal tools that might lead to reform in food production and distribution. This workshop will also highlight on the ground realities from ideologically diverse local leaders in the food movement."
Linnekin's fellow workshop discussant will be Rebecca Kline, executive director of New Haven Farms. Moderating the workshop will be Renee Gross, legal coordinator with the Yale Rudd Center for Food Policy & Obesity.
A recent Agence France-Presse report on possible FDA intervention into natural food labeling quotes Keep Food Legal and highlights our stance on the issue. Simply put, we believe consumer demand can and does yield better results than might FDA regulation.
Here's the N.Y. Daily News quoting us:
Baylen Linnekin, executive director of the non-profit group Keep Food Legal, said more regulation is not the answer.
"The idea that the FDA needs to define every word that has ever been used to refer to food is ludicrous," said Linnekin.
What happens when a consumer feels a company has deceived them? That's a question for the courts, says Linnekin, and it's none of the FDA's business.
"The occasional lawsuit helps keep companies honest and that has always been the case."
On the other side of the issue sits the Center for Science in the Public Interest, whose chief litigator Stephen Gardner wants the FDA to step in because--among other reasons--he says "[t]here are just too damn many 'natural' lawsuits."
In one sense, he's right. There have been a slew of natural-labeling lawsuits. CSPI itself has filed some of those, and threatened to file others. But the upside of these lawsuits is that courts have been reluctant to embrace them for lack of proof, because the labeling in question didn't hurt anyone, or--quite germanely--because the term "natural" is so vague to begin with.
After a debate with Gardner over the same issue on Southern California's largest public radio station late last year, Linnekin pointed out several inconsistencies in the positions of Gardner and CSPI head Michael Jacobson. Our point in doing so is not to highlight the mixed message that CSPI put out in this instance but, rather, to highlight the fact that if two key advocates of greater FDA involvement in "all natural" food labeling who work in the same organization can't agree on a definition of "all natural" or on whether or not a particular food is "all natural," then how can CSPI reasonably expect a massive and notoriously confounded federal agency to come up with a definition that makes the agency--or CSPI or consumers--the least bit happy?
Today's Politico daily briefing on food and agricultural policy featured discussion of a cottage food bill that's set to go later this week before Virginia's house of delegates. Cottage food laws can help budding culinary entrepreneurs escape often crushing regulations faced by restaurants and other food sellers by, among other things, permitting people to sell some foods prepared in the home.
The briefing quotes Keep Food Legal executive director Baylen Linnekin, who speaks approvingly of the bill, which appears to go beyond others in force around the country. Here's an exceprt from Politico's briefing:
COTTAGE FOOD DEBATE RESUMES IN VIRGINIA: Virginia state lawmaker Robert Bell (R) has proposed a bill to exempt homes and farms with 10 or fewer full-time employees from Virginia Food Laws — a proposal that is already raising concerns among some food safety advocates who have been wary of similar efforts in several states. The proposal would require the resident or owner preparing a food put a label on the product with his or her name, address and ingredients, as well as a disclosure saying it was produced without state inspection. There would be no limit on where those foods could be sold, however.
While some food safety experts are likely to dismiss the plan, food freedom advocate Baylen Linnekin, executive director of Keep Food Legal sees it differently. "Critics may moan about food safety risks, but anyone who's read Joel Salatin's 'Everything I Want To Do Is Illegal' knows that the link between inspection and food safety is tenuous at best," Linnekin said in an email to [Politico's Morning Agriculture]. "I think this bill is good for Virginia." The bill is available here: http://1.usa.gov/JEuHHl
Others quoted in today's Politico briefing included Sen. Thad Cochran (R-Miss.) and Sen. Barbara Mikulski (D-MD).
Want to learn more about cottage food laws in Virginia and elsewhere? The subject of cottage food laws and laws impacting small farmers in Virginia were the subject of a Reason online column authored by Linnekin last year. Linnekin's also written for Reason about the best and worst of cottage food laws. That latter category recently led the Institute for Justice, a nonprofit law firm in the Washington, DC area, to sue the state of Minnesota (which boasts some of the most restrictive cottage food laws). Finally, to learn more about cottage food laws in your state, we recommend this 2013 report by Harvard Law School's Food Law & Policy Clinic.
Keep Food Legal submitted comments yesterday on behalf of members and supporters like you in two controversial FDA rulemakings that could reshape the food landscape for decades to come.
The proposed rules stem from passage in 2011 of the Food Safety Modernization Act ("FSMA"). The rules would increase the regulatory burden around produce safety and around what the agency refers to in sterile fashion as "preventive controls for human food."
In our comments to the agency, Keep Food Legal urged the FDA to reject the proposed rules for three reasons.
First, we argued that the proposed rules would hurt small farmers, other small food entrepreneurs, and their customers. Second, we argued the proposed rules, despite their great cost, are unlikely to make food any safer. Third, we argued the proposed rules violate the U.S. Constitution.
1) The FDA should reject the proposed rules because they would hurt small farmers and small food entrepreneurs
The two main concerns we've heard voiced by small farmers and their supporters over the past year with regard to these proposed FSMA rules are 1) that farmers would have to comply with rules that are completely inappropriate for their business(es) and 2) the cost of complying with the proposed rules would be prohibitive. Examples of these concerns abound. For example, the low ceiling for gross sales under the proposed rules—especially the inclusion of sales not subject to the FSMA—would ensnare many small farmers. Excessive composting rules would make compliance particularly difficult for small organic farmers (whether or not certified organic by the USDA). And water sanitation requirements would hurt still more farmers.
The FDA has heard these arguments against adoption of the proposed rules from hundreds of small farmers in listening sessions around the country over the past year. It is incumbent upon the agency not just to listen to these legitimate concerns. The FDA should reject these proposed rules outright because they would impose costly, discriminatory, burdensome, and inapt new requirements on small farmers.
2) The FDA should reject the proposed rules because they are expensive and unlikely to make food safer
As we note in our comments, the FDA says the specific purpose of the proposed FSMA rules is to “reduc[e] the public health burden of foodborne illness.” But according to the FDA's own data, these rules would likely only make a tiny dent in foodborne illness.
Based on Keep Food Legal's analysis, the proposed rules--if implemented with an entirely unprecedented degree of precision—-could under the FDA’s own best-case scenario reduce incidences of foodborne illness only by up to 5.7 percent. Using more realistic FDA estimates, that already meager percentage drops to somewhere between a likely reduction in foodborne illnesses of between 3.7% and 5.7%. All that for just a billion dollars per year!
3) The FDA should reject the proposed rules because they are unconstitutional
The U.S. Constitution’s Commerce Clause empowers Congress alone to regulate interstate and foreign commerce. The Tenth Amendment to the Constitution, part of the Bill of Rights, leaves to states and individuals alone decisions pertaining to purely intrastate commercial activities. Consequently, Keep Food Legal is as confident that the FDA has no authority to regulate purely intrastate commercial activity pertaining to food as we are that the FDA has plenary power to regulate interstate commerce. That means the FDA has absolutely no authority under the Constitution—and certainly under the Food Safety Modernization Act—to regulate farms and other food businesses that operate entirely within any one state. In addition to protecting individual rights and respecting the power of a state to regulate farms and other food businesses that operate solely within that state, this constitutional limit on the FDA’s authority has an important practical effect. After all, even if Congress and the FDA view the agency’s authority under the Constitution as more expansive than we do, individual farmers and entrepreneurs (primarily) and the local and state officials they elected (secondarily) know what is the best approach for maximizing both the safety and profitability of these farms and other food businesses.
For the foregoing reasons, Keep Food Legal urged the FDA, in comments we filed yesterday, not to adopt its proposed FSMA rules.
Read the complete comments we submitted here. And read Keep Food Legal executive director Baylen Linnekin's 2012 law review article on the history of America's flawed food safety regulations, The Food-Safety Fallacy: More Regulation Doesn't Necessarily Make Food Safer, here. Also be sure to check out other comments and testimony we've offered at the federal, state, and local level--on issues from food trucks to soda taxes to food marketing--here.
In addition to filing our own comments on the proposed FSMA rules, Keep Food Legal also signed on to comments by the Farm and Ranch Freedom Alliance--a fellow nonprofit advocacy group--that provide a more detailed critique of the FSMA's neutered provisions for exempting small farms.