Food law and policy is a rapidly developing new legal discipline with widespread interest among legal scholars and law students alike. This was emphasized by National Jurist Magazine’s ranking of it as one of the “Hottest Practice Specialties of the Future” in its September 2013 issue. The field encompasses parts of food, drug and agricultural law and contains a surprising number of rules and regulations governing the crops, livestock, food, and beverages that we grow, raise, prepare, eat, drink, buy and sell.
Touching on environmental, health, economic and even national security concerns, the specialty takes an interdisciplinary, holistic approach in examining today’s food industry that includes fairness, sustainability and a global analysis of food systems. A brief survey of the field illustrates the breadth and complexity of the topics it incorporates—food safety; hunger and food insecurity; food benefit programs; obesity and other diet related disease; food exports; food sharing with homeless persons; rising food/energy costs; access to healthy foods in “food deserts” through urban gardens and farmers markets; rural growth; bioterrorism; new commercial market opportunities for small growers; food waste in grocery stores and homes; water contamination; food democracy and consumers’ right to know; climate change and agriculture; nutrition labeling; and eco-labeling of local, fair trade, and organically grown food.
Recognizing that America is at a crossroads regarding food safety and the planet’s sustainability, the Government Law Center was fortunate to have the opportunity recently to pose Five Questions on Food Law and Policy to Professor Timothy Lytton, who is the Albert & Angela Farone Distinguished Professor of Law at Albany Laws School. Professor Lytton is the author of several books including the highly regarded Kosher: Private Regulation in the Age of Industrial Food (Harvard University Press, 2013).
Most recently, he has published the articles "Competitive Third Party Regulation: How Private Certification Can Overcome Constraints that Frustrate Government Regulation" in 5 Theoretical Inquiries in Law (2014) and "Jewish Foodways and Religious Self-Governance in America: The Failure of Communal Kashrus Regulation and the Rise of Private Kosher Certification" in 104 Jewish Quarterly Review (2014). A new article, "Oversight in Private Food Safety Auditing: Addressing Auditor Conflict of Interest," will be published this spring in the Wisconsin Law Review.
Kosher food in America is big business. The kosher food industry generates over $12 billion every year. Over 12 million American consumers buy kosher food because it is kosher certified—although interestingly, only eight percent of these kosher consumers are religious Jews who eat only kosher food. Most choose kosher for reasons related to taste, health, food safety, allergies, vegetarianism, or non-Jewish religious restrictions like halal. More foods are labeled kosher than are labeled organic, natural, or premium.
Kosher certification only ensures that food labeled kosher is, in fact, kosher. While this does not directly address concerns about food safety or nutrition, it does offer a model for reliable private food regulation. The food industry is the world’s largest industry—with over $7 trillion of revenue annually. Ensuring sustainable food production and food safety is too big a task for government alone. This has given rise to far reaching, global systems of private certification. Food products increasingly carry eco-labels, and food producers must submit to private third-party food safety inspections demanded by retail buyers. The sustainability of food production and the safety of our food supply thus depend on the reliability of private certification. The kosher food certification system offers a model of reliable private certification.
Several factors make kosher certification reliable. To begin with, sufficient consumer demand makes companies willing to open up their operations to kosher inspectors and to pay for reliable certification. In addition, fierce brand competition based on reliability among kosher certifiers vying for food company clients counteracts incentives to cut corners. Market competition among certifiers creates incentives for them to lower their standards in order to reduce the cost of their services and ease the demands that they place on their clients. Brand competition counteracts these incentives, because an agency caught lowering its standards risks damage to its reputation among consumers and the value of its brand. Brand competition works because a core of vigilant and active consumers scrutinizes products for certification mistakes, reports them to agencies, and shares information about the reliability of different certifiers online and through extensive social networks. Consumers discover problems such as items mislabeled pareve (i.e. indicating the absence of any milk or meat ingredients) that list dairy ingredients on the package, or counterfeit certification kosher symbols. These consumers help kosher certification agencies monitor their food industry clients, and they also police the agencies themselves. Finally, interdependence among certifiers creates incentives for interagency oversight. Within industrial food supply chains, the reputation of finished-product certifiers depends on the reliability of ingredient certifiers upstream in the production process, who, in turn, require the trust of finished-product certifiers for acceptance of their certification downstream in production. The result is that finished-product certifiers scrutinize the operations of ingredient certifiers, who are eager to satisfy any concerns they may have. Since all of the major agencies certify both ingredients and finished products, this creates a network of interagency oversight.
Kosher certifiers are experts in assessing the kosher status of food, and their food company clients grant them special access to production facilities for the purpose of kosher inspections. They do not feel qualified, nor would their clients allow them, to inspect companies for violations of animal welfare, labor, or environmental laws. That is not to say that kosher certifiers do not support strict adherence to high moral and legal standards in these areas—indeed, kosher certification does impose many restrictions on the proper treatment of animals—but kosher certifiers believe that they can best serve the kosher consumer by sticking to issues of kosher status and leaving these other areas to government regulators or other, better qualified, private certifiers.
Eco-labeling—like all forms of private certification—suffers from a conflict of interest that arises because the certifier is typically paid by the entity being certified. Many companies will seek out the cheapest, least demanding form of certification that they can obtain, and this creates a “race to the bottom” among certifiers competing for accounts. Kosher certification has largely overcome this conflict of interest through factors such as consumer demand, brand competition based on reliability, a core of vigilant consumers, and interdependence among certifiers. Kosher certification—which has a long history in the U.S.—can serve as a model for the improvement of newer forms of private certification.
I teach torts and administrative law, and food has played a major role in the development of both of these fields of law. For example, much of contemporary product liability law originated in food purity and food safety cases. Similarly, many important doctrines related to notice and comment rulemaking have been developed in cases involving food regulation by the FDA. Through these examples, students learn that food regulation is central to the development of law more generally, and it deserves careful attention. Historically, food regulation has been a dynamic area of practice that has fueled many key developments in the law more generally. I expect that this will be no less true in the future, especially as issues of food safety and sustainability have gained such prominence in recent years within many fields of practice and policy, such as consumer protection, public health law, and environmental law.