Robert Lustig opened the Food Law Society's Harvard Forum on Food Policy on October 20th with his lecture, "The Sugar Epidemic: Policy vs. Politics." Recently featured in The New York Times Magazine, Dr. Lustig has become a leading pubic health authority on the impact sugar has on fueling the diabetes, obesity and metabolic syndrome epidemics, and on addressing changes in the food environment to reverse these chronic diseases.

Please continue below the fold for an abstract of his talk.

"Excessive sugar consumption in the U.S. and abroad are deleterious to public health. The carbohydrate fructose impacts health negatively beyond its caloric equivalent, and produces a 'vicious cycle' of consumption and metabolic disease in large quantities, akin to that seen with ethanol. It is time for a paradigm shift in obesity science and policy, away from personal responsibility and toward public health. The place to start is with sugar, which like alcohol, should not be treated as an ordinary commodity on the open market.

"Efforts to reduce fructose consumption should be informed by the extensive body of evidence from international experience and research on alcohol policy. This evidence points to inadequacy of public information and education programs, but rather supports taxation and other controls on marketing and distribution, including access and zoning restrictions. At the national level, removal of fructose from the Food and Drug Administration’s GRAS (generally regarded as safe) list, are among the most promising policy interventions to address the rising rates of chronic metabolic disease."

The Food Law Society hosted a talk by Barry Estabrook on September 22 in which he discussed his recently published book, Tomatoland: How Modern Industrial Agriculture Destroyed Our Most Alluring Fruit. As noted by Rachel Greenberger's coverage of the talk, Estabrook "immediately honed in on justice," arguing that the Florida winter tomato is the poster child for many problems of large scale farming. As revealed in his writing, workers in the industry are routinely sprayed with pesticides, paid below minimum wages, and are often victims of slavery and indentured servitude.

If you could write your own food regulatory act, how would it differ from the current regime?

It would simplify the current one, but it would use many of the same terms. So many of the things that Congress adds to a statute are totally redundant and irrelevant. I keep making the point in class that the food safety law in England of 1263 does not improve one iota upon the food safety law of 2011. So it could be simplified, but it’s something that’s a product of history and it would be incredibly difficult to try to simplify it. People would just go berserk and say no, we have a jurisprudence, let’s stick with it.

You’ve published over 125 articles on food and drug law and health policy and along with your co-authors, you’ve literally written the book on food and drug law. If someone forced you to take sabbatical and research a particular subject in food law, what would it be?

It would probably be historical. I love the history of food law, which if you’ll remember from class, goes back to ancient Sumer. It’s a subject that you could spend an entire lifetime studying and never probe every aspect of it. But if you’re talking about modern food law issues, the impact of the new food safety statute that has just been enacted would certainly be a subject to explore—both the depth of it and the breadth of it. How can the food industry realistically comply with the statute, which is extremely onerous and very demanding? I am concerned about small companies being able to comply with it. I’m equally concerned about exempting small companies. People can be made sick by small companies just as easily as large ones.

There are lots of issues there that I have not yet explored and it’s going to be very interesting. I’m going to give you just one example: records inspection. In the Bioterrorism Act of 2002 there was a slight increase in FDA’s power to get records but FDA had to show serious adverse effects or death. That’s pretty stringent standard. It’s opened up further in the new law, but it doesn’t allow a fishing expedition type of records inspection. So how far does it go, what does it mean, what do the words portend? It’s the type of thing I constantly ask you students in class all the time and you look at me and say, “I don’t know what that means!” and I say, “Nobody knows what it means!”

I was going to ask you which issues you think will be increasingly important in food law, but I think you just answered that question.

Clearly, the new statute. But in the long term there’s a question of whether there will be more and more user fees because of the need for FDA to have additional resources. Second, the burning issue in terms of food safety is pathogens. It has never been the safety of food additives. That’s a trivial issue and FDA has always known that. FDA has always been mystified that the public thinks food additives are a serious issue. The serious issue is pathogens. It’s everything from lettuce, to peanut butter, to fish, to fruit juice. One student a decade ago wrote an article entitled, “Death by Fruit Juice.” These are serious, serious questions because we’re talking life and death. How can you reduce pathogens in the food supply? Is there any legal component to it? What type of regulatory component? How can you control it? There’s salmonella on every farm in the United States and we’re never going to get rid of it. What does that mean? What should we do as a result? These are the types of issues that are of enormous importance.

Did you take any courses that touched on Food Law when you were at Harvard?

None. There were no courses that touched on food and drug law. To my knowledge, there was also no Health Law course. The only relevant course was Administrative Law and it was so highly theoretical as to be not very useful. Now there was one course, a very famous course, called the Legal Process. I took it from Al Sachs who later became Dean and it had a huge impact on me because it touched on, among other things, food and drug law. I learned later on that the reason why was because Al Sachs did food and drug law at Covington. So he included, as one example, the legislative history of the Factory Inspection amendments to the statute. But I certainly didn’t take the course for that reason.

Was your course the first food and drug law course at Harvard?

Yes; that I am certain of. Interestingly, at least five or six professors at Harvard started at Covington doing food and drug law work. But when they came to Harvard, they didn’t teach food and drug law. I used to say to David Shapiro, “Why don’t you teach Food and Drug Law?” but he was off doing Civil Procedure and Federal Courts and things like that. So it wasn’t taught here until I came to do it.

Did you come up with the idea of teaching Food and Drug Law or did someone at the school approach you?

I did not come up with the idea, I assure you. It was a confluence of events. First, I got to know Betsy Bartlett quite well and helped her found the Legal Action Center in New York City and she and I sort of worked together when I was doing pro bono work on the United States Crime Commission. So that was one factor. I got to know Chris Edley, who is now dean at Boalt Hall, but was for many years was an Administrative Law professor here and for many years we used to show up at conferences together. And then the chair of Harvard Law School Alumni Association was a food and drug lawyer and he kept after Bob Clark [then Dean of Harvard Law School] saying that I ought to be invited. So all of a sudden, they got in touch with me and asked me to do this.

There must be former students of yours working with you at Covington now.

Yes, there are students at Covington. Interestingly, as many that are in other fields as there doing food and drug law. And also, there are I am told, 15 graduates of the course now at the Food and Drug Administration.

Do you still keep in contact with any of them?

I do. I keep in contact with an amazing number of students and will frequently have lunch with students who are in Washington. Not just shortly after graduation, but when I come up here there’s a young woman who was in the first class that I taught whom I will occasionally have lunch with. And there’s a fabulous scholar, Ted Rugar, who was in the second class that I taught and on the law review. His paper was published in the law review and he’s now going to become the co-author of the casebook. One of the finest scholars I’ve ever worked with in my class is Glenn Cohen, who of course went to work in Washington after clerking then came back here to be a Petrie-Flom Fellow and is now an assistant professor and a brilliant, brilliant wonderful person I might add.

Is there anything else you would like to share with aspiring food and drug lawyers?

Well, they ought to come to Harvard Law School and take Food and Drug Law, that’s all I can share with them. Seriously, they ought to take a course in food and drug law and they should also do a couple of other things. First, they should go to short courses that are given by the Food and Drug Law Institute and other organizations that will delve down on particular issues, like the future of food standards, which we can only touch on in a general survey course. The second thing they have to do is to start scholarship. I have written at least one published article every year during my career. And you have to make it a priority. It’s easy to say I’m too busy. But as you, for example, in private practice, write memoranda, you’d be amazed by how many of those memoranda, with a little bit of thought, could be turned into an article. I’ve done that many times. That’s why we have the Electronic Book of Student Papers. It’s the first step in scholarship. And I think that’s incredibly important. It’s not just important for the career, it’s important for the development of the lawyer. Finally, I would add a third thing. Start getting accustomed to teaching yourself. In other words, volunteer to teach short courses. Volunteer if there’s a local law school with someone who, usually a private practitioner, who teaches food and drug law. Go meet them and offer to co-teach with them. This is the way you develop.

Has your involvement in food law changed the way you approach food at all?

The only decision I ever made—because I grew up in the diary industry I used to drink whole milk. Now I drink 2% milk. It’s not exactly a big difference. All food is intrinsically safe in a sense and all food can be fit in to a balanced diet. It reminds of Hippocrates, who advised people to eat everything in moderation. And he lived in 300 B.C. There hasn’t been a lot of new nutrition information in the last several centuries.

And finally, what did you have for dinner last night?

I had rainbow trout at Legal Seafood. I had a wonderful time with two students will be coming to Covington for the summer.

Dubbed the "dean of the food and drug bar" by the Legal Times, Peter Hutt has been a leading food and drug law practitioner and scholar for almost half a century. Hutt has specialized in food and drug law at the Washington D.C. firm of Covington and Burlington since 1960, pausing only to serve as Chief Counsel of the FDA from 1971 to 1975. A prodigious writer, he is co-author of the widely used casebook Food and Drug Law: Cases and Materials. He has also taught Food and Drug Law at Harvard Law School since 1994. The Food Law Society recently interviewed Hutt about his career, how food law has evolved over the years, and his tenure as Chief Counsel. 

How did you get your start in food and drug law?

It began with the fact that my father, and before him his father and grandfather, had a retail diary in Buffalo, New York. Every paper that I wrote through high school, college and law school related to the diary industry. In my third year at Harvard, I read in the Harvard Law Record that there was going to be a lecture by the General Counsel of the FDA. My dad had some issues pending in the New York state legislature relating to food law affecting the diary industry, so I talked to this gentleman, Bill Goodrich, extensively. Finally, after he got tired of answering my questions, he said “Let’s have dinner.” At the end of dinner he offered me a fellowship to study food law at NYU Law School.

I was planning on going back to be a lawyer in Buffalo after law school. My friends there still wonder when I’m coming back. I thought, “well, I’ll put it off a year.” So I went off and got my LLM and then on a lovely day I decided I’d go down and see if there were any jobs in Washington. To make a very long story short, I was offered a job at the Federal Trade Commission, FDA, and Covington and Burling, which at that time had the biggest food and drug law practice and still does today. I thought, “Well, I’ll do this for two years and then go back to Buffalo.” Actually, the interesting part of the story is, when I got the three offers, I asked Bill Goodrich, the Chief Counsel at FDA, “What should I do?” He told me, “Go become a partner at Covington and Burling and then you’ll get a good government job later on. That’s the way it works in Washington.” So I did exactly what he said. I went to Covington, became a partner, and the day he retired he called me at eight in the morning and said, “Do you want to take my place?” and without thinking for an eighth of a second I said “yes” and so off I went to become Chief Counsel of FDA.

How many food and drug lawyers would you say there were when you began your career?

Let me break that down. First, almost every large food or drug company would have an in-house counsel who would, along other responsibilities, deal with food and drug law. In terms of the private bar, there was only a handful that did nothing but food and drug law. Now as an aside, I’ve said forever that if you want to practice food and drug law, it has to be a full time occupation. This isn’t something that you can do part time because every year it gets more complex and difficult. Indeed, most young lawyers today have to specialize within food and drug law. They specialize in medical devices, cosmetics, or prescription drugs or even over the counter drugs.  But in those days—let’s face it, I started out in 1960—that’s 51 years ago, I’m afraid I’m dating myself—it was much simpler. For example, drugs were the least significant of the issues. Food was the primary area of food and drug law and there were in Washington D.C. perhaps ten people that I would call food and drug lawyers. Not many more; maybe fifteen. And when I went to be Chief Counsel in 1971, there were fewer than fifteen lawyers on my staff. Now there are ninety. 

How many food and drug lawyers would estimate work in D.C. firms today?

First, let me point out that all of what I would call the “top tier” food and drug lawyers are in D.C. with maybe two exceptions, with one or two in Chicago and one or two in New York. The private bar has always been concentrated in D.C. for reasons that none of us are totally clear about because you don’t spend a lot of time going to the agency and you could practice food and drug law from anywhere in the country. Today, if you’re talking about people who really work on food and drug law full-time, there are fewer than fifty. If you count people who are tangentially involved, however, the number’s much larger. I’ll give you a couple of examples, there are lawyers in our firm for example who spend one-hundred percent of their time on transactional work involving the food or drug industry. In order to do that you have to understand food and drug law, but I don’t count them as food and drug lawyers. Same with anti-trust, the same with patents, and all other kinds of fields that tangentially impact food and drug law. That’s why so many people who want to become patent lawyers take my course on food and drug law.

What would you say a typical workday looks like for someone that you would consider a true food and drug lawyer? What type of things do they do?

Well, food and drug law is primarily administrative law. Occasionally, a true food and drug lawyers will get involved in litigation, but it’s very rare. Litigation ties up your time and most food and drug lawyers are accustomed to dealing with clients over the phone—for the most part—maybe by email, but talking to many, many people in any given day. You’re almost always talking to people on the phone, answering questions. You’ll get a call, “can I make this claim on my label” and the conversation may be five minutes. So it’s a counseling type of practice. Occasionally someone will call up and say, “Look we have a new product. We want someone to give us strategic advice that will take half a day, but we want you to come out here to California or wherever because we don’t want to bring ten people to Washington for a meeting.” Sure, that also happens. But it is a counseling-heavy type of practice.

It’s interesting, if you got tied up in litigation, you wouldn’t have time for counseling. Whenever one of my clients gets involved in litigation, I am delighted to hand it off to one of my partners who thinks litigation is fun. I don’t understand why he does, but he does. It’s nowhere near as fun as food and drug law.

How common is to find attorneys whose practices focus solely on food law?

When I started in 1960, that was eighty to ninety percent of food and drug law. Today, it’s ten percent. Because of the overwhelming growth of drugs, medical devices, and biological products. But it’s still possible to focus just on food law. There are a couple of small firms, one in particular in Washington, that focuses primarily on food law, although it does some drug work. It’s Ollson, Frank, and Weeda. Rick Frank and Phil Ollson wanted a niche firm and started focusing on USDA regulation of meat and poultry. That’s a very narrow food law focus, but they became the known experts. It was a brilliant legal niche strategy for them. They became so well known for this that they have pretty much tied up the market. Then they expanded from that into other areas of food and ultimately, perhaps, they touch upon drugs and devices also. But Rick Frank, I think, still to this day specializes in USDA and virtually nothing else.

During your tenure as FDA Chief Counsel, you invented the “regulatory letter,” now called the “warning letter.” Can you explain why you did this and tell us whether there was any pushback on this practice?

In my eleven years in private practice before I went to FDA, I saw how seizures were handled. The FDA would issue a seizure and then the company would put in a claim, run out their inventory for a year, change their label or do whatever they had to do, and then default on the seizure. Now, that seemed to me a travesty of enforcement. The whole idea of a seizure is to stop something and it wasn’t stopping anything for six months or a year as long as the inventory was there. And I figured that if I sent a letter and said “you have fifteen days to reply or we’re going to take serious action, including criminal action,” then that would get people’s attention, and I would get enforcement within a month at most. Now that was the first reason. The second reason was pure economics. In order to conduct a seizure, FDA has to do a massive inspection, then the US Attorney and a court have to sign off on it,  and then a US Marshall has to go out and actually sticker the product and “seize it” in the technical sense. That takes a lot of money! Say $5,000 to pick a figure. A letter costs $50. Therefore, I could send 100 letters for the cost of one seizure. So, it just seemed like common sense.

To answer your second question about pushback. Interestingly, there wasn’t any. No one knew how to pushback. After all, all they were receiving was a letter. How could they claim that this was illegal? So, no, there was no pushback on the procedure per se. There was a question—an interesting legal debate—when I started regulatory letters I took the position that they had been cleared by the Office of Chief Counsel and there were only one of two solutions: either the company would agree to change (whatever it was) or FDA would agree that it had been in error. But it would just wouldn’t hang around forever. It wasn’t a friendly letter; it was an enforcement technique. 

New York Times bestselling author and acclaimed science writer Gary Taubes delivered a lecture on March 30, “Why We Get Fat: Adiposity 101 and the Alternative Hypothesis of Obesity,” as part of a series of events sponsored by Harvard Law School’s Food Law Society.

Presenting findings from his fourth book, "Why We Get Fat: And What to Do About It" (December 2010), Taubes said he wrote to the book to “convince public health authorities that they should rethink everything they know…about obesity and chronic disease.”

A link to a video of the event can be found below the fold.

In his landmark best seller, “Good Calories, Bad Calories” (2007), Taubes argued that the obesity epidemic can be directly linked to the overemphasis on certain kinds of carbohydrates in the average diet, rather than to an excess of fats or calories. The book was borne out of a piece Taubes wrote for The New York Times Magazine in 2002 called "What if It's All Been a Big Fat Lie?," which brought both controversy and acclaim. In this week’s New York Times Magazine Taube outlines the case against sugar in his article “Is Sugar Toxic?”

“Obesity occurs when a person consumes more calories from food than he or she burns,” Taubes said in his introduction to his talk. “That’s how the NIH [National Institute of Health] puts it. The US surgeon general says that being overweight is a result of caloric imbalance and is mediated by genetics and health.

“How many people believe this? How many people in here think this is meaningful?”

To read more or to see a video of the lecture, visit http://www.law.harvard.edu/news/2011/04/22_why-we-get-fat.html.

"Recently, there are additional new opportunities at Harvard to explore food policy issues. In 2010, law students formed the Harvard Food Law Society, and in a less than a year developed a membership of 150 students.  That same year, Harvard Senior Clinical Fellow, Emily Broad began work on a new Food Policy Initiative."

Read more here.

As part of our continuing series of interviews with practicing attorneys, the Food Law Society recently talked to Sarah Klein, Staff Attorney with the Food Safety Program for the Center for Science in the Public Interest. 

Ms. Klein represents CSPI in the regulatory arena, commenting to USDA and FDA on issues relating to food safety programs, including risk-based inspection, imported food, school lunch safety, and irradiated food labeling, among others. 

Ms. Klein was recently appointed by the Secretary of Agriculture to the National Meat and Poultry Advisory Committee.  She also serves on the Steering Committee of a multi-stakeholder initiative developing standards for the ethical production of food, including food safety, farmworker treatment, and animal welfare.  She is the author of Dirty Dining, and is leading CSPI’s campaign for restaurant ratings, encouraging states and local governments to standardize and publicize restaurant inspection scores.  Ms. Klein is the lead author of The Ten Riskiest Foods Regulated by the U.S. Food and Drug Administration.  Ms. Klein regularly appears in the national media, including CNN, The New York Times, NPR, NBC Nightly News, ABC’s Good Morning America, and others, as a food safety expert.

Prior to joining CSPI, Ms. Klein was an Assistant Attorney General with the District of Columbia Office of the Attorney General. In that capacity, she drafted consumer protection legislation that is now law in the District.  She has also worked with U.S. PIRG on consumer protection issues, and the National Whistleblower Center on whistleblower law.

Ms. Klein holds a JD from George Washington University and a Master’s Degree in Public Communications from American University.  She holds a Bachelor’s degree from Boston University, and is a member of the District of Columbia and Maryland Bars.

The views represented here are her own, and do not necessarily represent those of her employer.

How did you become interested in food safety?

I always knew I was interested in consumer protection writ large.  I found myself (this is way before law school) writing letters to the editor a lot, and becoming angry at what I perceived as a real disconnect between what consumers believe they are getting and what industry is actually supplying—in everything from consumer goods to financial services to cable and cell phone plans.  I went to law school knowing that I wanted consumer issues to be my focus. 

When I graduated, I went to work with the D.C. Attorney General’s Office of Consumer Protection, focusing on mostly issues of credit, identity theft, price gouging, and the like.  When I was ready to move on, I spoke to a mentor at Consumers Union—regarded by many as the holy grail of consumer work—and he recommended CSPI.  When I looked into CSPI and food safety, I was almost immediately smitten by the issues.  Unlike almost any other consumer protection issue—and remember, I am a die-hard consumer advocate—this is one in which consumers have no choice, and no chance to protect themselves.  With payday loans, you can argue that the consumer should have known better.  When a product malfunctions, you can argue that the consumer used it wrong.  There’s always fine print, always a question of who-knew-what-when.  With food safety, we are all just rolling the dice, three times a day, every day.  We can try to minimize our risk—cook our meat thoroughly, clean our kitchens, wash our hands, etc—and none of that will protect us when organic pre-washed bagged spinach is contaminated with e.coli. 

That’s what really excited me about this field: that if there are not voices—loud, insistent, persistent voices—demanding safe food, what then?  We can’t avoid food.  We can’t even pick-and-choose.  We can’t opt out.  And so we have to opt-in, in a serious and profound way.  That’s what I consider my work to be.

What issue is important to you right now?

I’m pretty worked up about raw milk.  Raw milk is unpasteurized milk—it’s “all natural” in the same way that raw manure is.  That is to say, it’s true that it’s fresh from the cow, but clearly you don’t want raw manure being applied as fertilizer to your fresh spinach.  (There are laws about that.)  The raw milk movement has taken a fringe issue and jumped on the coattails of some legitimate food movements—local, organic, sustainable.  They’ve tried to co-opt that audience, which really cares about the integrity of food production, and have insinuated that if you care about organics, or small farmers, you necessarily must support (and drink) raw milk.  In truth, raw milk is dangerous, and much of the rhetoric its supporters use is simply revisionist history.  They ignore the abysmal rate of infant mortality at the turn of the century (which plummeted after pasteurization) and instead make up ridiculous claims about what raw milk can do: cure cancer, cure autism, cure allergies.  The worst thing is that impressionable mothers—mothers who only want the best for their kids—can be coerced into using raw milk.  It’s one thing if some fringe naturalists want to drink it—that’s their assumption of risk.  But their aggressive campaign to mainstream raw milk is both dishonest and dangerous. 

You can tell even from this interview how worked up I am about this issue.  Interestingly, we often joke in our office that each of us will eventually stumble on our hot-button issue… the one food thing that really gets our blood pumping.  For one of my colleagues, it’s raw oysters from the Gulf region.  For another it’s methylmercury in tuna.  We’re all passionate about all of it, but every once in a while an issue ‘crosses your plate’ that really gets you in the gut.  (So to speak.)

What’s the work environment like at CSPI and how does it differ from your previous legal experiences?

I have found non-profit work to be a great environment for people who are passionate advocates about issues.  Unlike most legal environments, issue advocacy is an environment that invites, expects, and supports an emotional connection to the problem.  In other parts of the law, and in other legal environments, practicing law truly is “reason free from passion.”  In issue advocacy, it’s the combination of outrage, passion, enthusiasm, AND the law that makes for a successful enterprise.  CSPI is no exception: the people here are universally passionate about food (safety, nutrition, etc).  It makes for a very fulfilling career, to be doing something you really care about surrounded by other people who really care about the same thing.

It can often seem like consumer groups and the food industry are adversaries. Is that a fair description? If so, is that inevitable?

The relationship between consumer groups and the industry is complicated.  In some instances, or with specific companies, it does feel very acrimonious.  When we see a bad actor (Wright County Egg or the Peanut Corporation of America, for example) it’s hard not to feel like these people are being criminally negligent with all of our lives.  But other times, the relationship is much more collaborative—such as on recent food safety legislation.  The food industry has no desire or incentive to make people sick; they do have a desire to minimize costs, however.  But when recalls and outbreaks start costing them big bucks—as they have in recent years—suddenly those companies very much want to devote time and resources to fixing the problem.  CSPI has often been called the “food police.”  It’s an apt nickname, even if it’s intended to be mocking.  Just like an officer on the beat, we’re watching.  And as long as the food industry behaves both legally and (in some cases) ethically, we’re just going to keep watching.  But we’ll come after that industry with sirens blaring if they break the law or injure consumers.  

There also appears to be a certain tension between the pro-regulatory stance of food safety advocates like CSPI and the sustainable agriculture movement, which fears overregulation will strangle small producers. How do you balance these apparently competing interests?

Despite my personal support for sustainable ag and local farming (and my deep enjoyment of farmer’s markets), ultimately I do not believe that the underlying principle of production should be the determining factor in regulation.  Whether you are producing food, cars, pharmaceuticals, or houses, you must provide a safe product for consumers.  As much as I appreciate the values of the sustainable ag movement, I’m not willing to trade safe for local—I want both.

The example I like to give is this one: I decide to start building cars in my garage, because I want to produce cars out of recycled parts, I want to use alternative energies to fuel them, I want to employ local workers and I want to represent the local entrepreneur and not Detroit big-auto.  These are all important and laudable principles.  I enjoy no oversight from any federal agency, and minimal oversight from the state.  My cars may drive safely some of the time—and occasionally one might explode on the highway and cause a multi-vehicle crash with fatalities.  Because we like my principles…my underlying values of production… are we okay with risking those fatalities?  Or is it both fair and essential that I assume the cost of some regulatory oversight to hopefully catch those problems?  I believe it is, particularly when those costs can be assessed with an eye to minimizing the burden on those small producers.  Ultimately, the risk to consumers from the product is what should determine the regulatory scheme—not the principles or values of the producer, however much we might appreciate them.

Outside of the standard Food and Drug Law course, what classes might a person interested in food law want to take while in law school?

The choices for food courses—and consumer advocacy courses generally—are usually somewhat limited.  A general consumer law course is a good base, as is a products liability course.  These are not simply because of the legal principles, but for helping to find out if you really are interested in being a consumer advocate.  The food shelves at Barnes & Noble are getting bigger as food issues get hipper, and it doesn’t hurt to read a few of those (with the caveat of maintaining critical thinking while reading; see my answer to the next question).  It’s also great to seek out professors and mentors in the field (of food and consumer issues generally).  The depth of knowledge these people have is immense, and their willingness to share their enthusiasm and passion for consumer protection is really exciting. 

Is there anything else you would like to share with law students interested in food issues?

As with any area of consumer law (and as a good exercise in critical thinking) try to avoid falling into the easy “us vs. them” mentality.  It’s very easy to read all the hip literature from Michael Pollan and become an advocate of sustainable farms—and that’s great.  But it’s not that simple.  Food safety is complicated, and nuanced, and the answer is not always as obvious or as clear as we might wish.  The same is true for legal questions surrounding nutrition, hunger, ‘sin’ taxes, and other food-related issues.  Try not to get caught up in the blogosphere—think critically and comprehensively about the issues.  And—and this is hard for many of us in the non-profit world, because we’re optimists—try to think about these issues in reality, not in the world ‘as we wish it were’.  Can you feed 300 million people on the sustainable farm model?  If not, what can you change about modern ag to make it more sustainable?  Can you change cultural perceptions about meat?  How?  Who else wins and loses when you change/increase/decrease regulation of food, beyond just the obvious industries?  Where does farmworker justice come in?  There are so many questions, and the issues are so complex.  My advice is to never think you know it all.  At the same time, recognizing how crucial these issues are to our health, our economy, our environment… developing a passion for these issues and a respect for all the people involved (eaters, growers, workers, producers) is critical.

Are there any foods you avoid eating?

I avoid the obvious red-flag foods—ones that you don’t have to be a food safety advocate to know might not be safe: raw oysters, raw milk, raw eggs, raw sprouts.  I also don’t eat ground beef, and my toddler twins are basically vegetarians.  (Small comfort since the spinach outbreak of 2007, and all the produce outbreaks since… but still very little poultry—and no red meat—for them.)  I try to shop for meat at places like Costco—it may surprise you, but they are really progressive about food safety and do a good job of requiring their suppliers to test products more rigorously than others.  If Wal-Mart did the same, we’d see a major improvement in food safety in this country, because everyone wants to sell to Wal-Mart. 

What did you have for dinner last night?

Hah.  Last night I had roasted Brussels sprouts for the first time, and found them delicious.  Potato latkes, because it’s Chanukah.  And I made roast chicken breast but didn’t eat it—despite what the meat thermometer said, it still tasted undercooked to me.  Poor chicken was probably just a victim of my day job.

  The Food Law Society is publishing a series of interviews with attorneys whose practices relate to food law or policy. Our second interview is with Robert J. Uram, a partner in the Real Estate, Land Use, Natural Resources and Environmental practice group in Sheppard Mullin’s San Francisco office. He is a founding member of the firm's Organic Food and Fiber Law group.

Mr. Uram represents organic food distribution and production companies and 501(c)(3) organizations that support research to improve organic farming and that support the growth of organic production. With the assistance of his partners, he represents these organizations on a broad range of issues, including organic compliance, corporate, contract, labor, and intellectual property issues.

The views expressed by Mr. Uram are solely his own and do not express the views of Sheppard, Mullin, Richter & Hampton LLP.

How did you first get involved with the organic food industry? 

I enjoyed eating organic foods and organic gardening for many years before I did any work for the organic industry.  In 1997, one of my partners had an organic cotton grower as a client.  I thought that I might be able to combine my interest in organic foods with my experience in administrative law and natural resources law. I began attending meetings of the Organic Trade Association ("OTA") and other groups and learning about the industry.  This was when the Department of Agriculture was considering adopting regulations under the Organic Foods Production Act.  The rules USDA proposed were not consistent with the vision of organic community and allowed use of sewage sludge, irradiated foods and genetically modified organisms ("GMO's") as part of organic.  OTA asked me to represent it in the rulemaking.  OTA and others, including hundreds of thousands of individuals and grassroots organizations, filed comments that asked the USDA to remove these as allowable practices and to make other changes needed to be consistent with industry standards..  The regulations which USDA adopted in 2002 did not contain these objectionable practices in the definition of "organic". These rules are known as the National Organic Program or NOP. 

The market for organic food has grown exponentially in the last twenty years. Has this posed any particular legal challenges for the industry? 

While growth always raises questions about quality control, the industry leaders showed a great deal of foresight in anticipating the potential for growth by seeking federal regulation to establish an enforceable standard for organic. Before USDA adopted the NOP, anyone could claim that their product was organic.  All companies that now seek to join the organic community know what they need to do to comply.  The greatest challenge is to ensure that the standards are being followed and that effective correction is taken.  The accredited organic certifiers play a key role in that process.

Which areas of organic food law and regulation are most commonly contested? 

Most of the activity before the National Organic Standards Board concerns what practices and inputs are acceptable.  For example, are certain fertilizer products synthetic?  USDA is considering a number of rulemaking actions including those that will address pesticide residue testing, origin of livestock (what animals can be brought into organic management), streamlining appeals process, apiculture (related to the production of honey), mushrooms, pet food, aquaculture and use of greenhouses.

What kind of work are you currently doing?

I have been working with an accredited  certifier on reviewing its handbook and forms that specify obligations of growers, producers and handlers, developing approaches to address the adverse effects of GMO's on organic producers and advising the Organic Farming Research Foundation, a 501 (c)(3) devoted to fostering the improvement and wide spread adoption of organic farming . 

Which legal issues do you think will be important for the organic food industry over the next decade?

The continued assurance of the integrity of the certification process, the GMO issues and food safety will certainly be important.

Is there anything else you’d like to share with law students interested in food law? 

The food and beverage industry has legal issues that go beyond the regulatory issues--corporate, labor, trade and real estate to name a few.  There should be interesting opportunities in this area in the future in the public, private and not-for-profit sectors.

Is there anything you avoid eating out of principle?

I avoid foods produced with GMO's or dairy products with bovine growth hormone. 

What did you eat for dinner last night?

Roasted tomato soup with saffron quinoa and an arugula salad with persimmons, toasted pecans and feta cheese.  

The Food Law Society recently interviewed Rebecca Goldberg, Staff Attorney for the Food and Drug Administration, Office of the Chief Counsel, about her work and the broader field of food law.

Becky Goldberg graduated from Harvard Law School in 2007.  In 2008-2009, she clerked for the Hon. Robert D. Sack of the U.S. Court of Appeals for the Second Circuit.  Following her clerkship, Becky began work at the FDA, where she focuses primarily on the regulation of food and dietary supplements.

The views expressed by Becky are solely her own and do not express the views of the FDA.

How did you become interested in food law?
 
I've always been interested in food issues.  I became a vegetarian when I was 15 (my vegetarianism has been on and off since then), and I've always tried to be more or less informed about both the ethical issues and the health issues that surround food consumption.  While I was on leave from law school following my 2L year (I took a year off when my daughter was born), I read Michael Pollan's The Omnivore's Dilemma, and, like a lot of people, that got me more interested in food issues.  I remember that my husband and I joined a CSA during my last year in law school, and I started trying to buy milk from grass-fed cows.  But even though I was a law student at that time, I never connected my interest in food with my legal career.  Then I had an actual, lightbulb-over-the-head epiphany about a year after I graduated from law school.  I'd taken some more time off when my son was born, and that time was drawing to a close -- I was about to start a clerkship.  I didn't really know what I wanted to do after that.  I was sitting on the beach, reading Barbara Kingsolver's Animal, Vegetable, Miracle, and there was something in there about the Plant Variety Protection Act.  And I suddenly thought, "Hey... that's a law.  There must be legal jobs that have to do with that."  And immediately after thinking that, it dawned on me that many of the food-related issues that I was interested in were fundamentally tied to the law -- everything from the school lunch program to organic labeling.  By the time I left the beach that day, I'd decided that I would pursue a career in food law.

Why did you decide to take a job at the FDA?
 
I did some looking into food law jobs in the non-profit sector, but at that time I had trouble finding full-time legal jobs of that nature.  (Partly, I think I didn't know where to look.)  In any event, I had always been interested in working for the government -- I grew up in the DC area, and both of my grandfathers (and many of my friends' parents) were career government employees.  I looked into jobs at both USDA and FDA.  In the end, I was very impressed with the Office of Chief Counsel at FDA.  There are brilliant lawyers here, and it's a good place to spend a career.  But it was a difficult decision; there's a lot of interesting work being done at USDA, and I met great lawyers there.

What kind of work do you do at the FDA?
 
I'm a "foods counselor."  The "counselor" part basically means that I'm not a litigator.  The "foods" part means that my client is FDA's Center for Food Safety and Applied Nutrition (CFSAN), which regulates food, dietary supplements, and, oddly enough, cosmetics.  The Office of Chief Counsel is part of the Office of the Commissioner at FDA, which means that it's not part of any of the specific Centers, such as CFSAN.  So I'm not within CFSAN, but the way we conceptualize it is that CFSAN is my client.  What this means in practice is basically that I review documents that CFSAN produces, and counsel them on legal issues.  So for example, if CFSAN is considering promulgating a new regulation, or amending an existing regulation, I might be assigned to review the document to make sure it is legally sound.  (The document in this situation would encompass not only the text of the new regulation, but also the preamble to that text, which is published in the Federal Register.  Preambles can be very long, and they often tackle legal issues, such as the agency's authority to promulgate the regulation.)  If the regulation that CFSAN is thinking of drafting poses obvious legal questions, a foods counselor might be involved before the drafting begins.  Foods counselors also review other types of documents, such as Warning Letters to firms that are in violation of the law.  We also get pulled in to give legal advice on all sorts of other issues.

Which areas of food law and regulation are most commonly contested?
 
I don't think I've had enough experience to really say which things are most common, but there certainly are some issues that come up a lot.  One thing we deal with a lot at FDA is the First Amendment.  The most common example in the food realm is when a company wants to make a claim on a product label regarding the health benefits of a certain ingredient.  It's a complicated area of the law, but basically Congress has given FDA the power to restrict those sorts of claims in some situations, if the claims are not supported by scientific evidence.  However, this poses First Amendment issues, since it is a government restriction of speech.  In general the government is allowed to restrict commercial speech if it is false; but in these sorts of situations it can be hard to know if something actually is false.  Often the scientific studies are inconclusive.  It's an interesting issue to think about: If, for example, a handful of studies found that a given nutrient has no effect on a given disease, but one or two studies found that the nutrient might have a slight preventative effect with respect to that disease, should a company be allowed to state on a product label that the product contains a nutrient that helps prevent that disease?  Would such a statement be considered false under the First Amendment?  If not, can the government still limit it or modify it in some way, if the government is concerned that the statement might mislead consumers?  There are lots of court cases about this kind of thing.
 
What issue is important to you right now? 
 
I find the labeling issues to be very interesting.  I've also gotten more interested in food safety since coming to the FDA.  I think what I would call "the BPA issue" is an important one -- in general, it's hard to know how much evidence of safety should be required before we consider something to be safe (such as BPA, which is in lots of food containers, but which some people think might pose health risks).  The science is always changing and developing, and of course scientists often disagree with one another.  But on a personal level, I think I'm most interested in the environmental issues and ethical issues that surround food production.  One thing that I'm slowly waking up to is the extent to which these issues have become international.  We import a whole lot more of our food than we used to, and it's harder to know how the food was produced when it comes from abroad.

Where do you see food law and regulation going in the next ten to twenty years?
 
I think a lot of things are going to happen on the international front, because the number of imports has exploded.  And sooner or later we'll probably see some strengthening of the food safety laws; as you probably know, the House recently(ish) passed a food safety bill, but the Senate version has been held up.  In terms of the kinds of issues that a lot of activists are concerned about, such as the treatment of animals that are raised for food, I think that we're going to see a lot of activity at the state level.  Some states are already moving toward a ban on certain practices that they consider to be particularly cruel to animals.  Often what happens when you get a patchwork of state laws is that the industry becomes more open to the idea of federal regulation, so long as it preempts state law, because then they would just have to deal with one law, even if it's a law they don't particularly like. (Not that government needs industry's permission to regulate, of course.  But in situations where a new statute is needed, Congress often won't act in the face of significant industry opposition.) So we might see that pattern play out in some areas.  In other areas, such as most things relating to food labeling, there's already a federal regime, so it's harder for things to happen at the state level.  But the big picture is that there's a tremendous interest in food issues right now, and I don't think it's going away.  So I think we'll see a lot of activity in the next ten to twenty years.
 
Is there anything else you’d like to share with law students interested in food law?
 
I think this is a very exciting area of the law, and it's only going to get more exciting.  Those of you who are involved in the Food Society are doing a lot to change the campus -- there was nothing at all like that when I was a student just a few years ago.  I think you are going to find that this is a topic that just keeps giving -- there are so many articles that could be written, so many different topics for panels and the like, and so many ways that these issues could be incorporated into law school classes and clinicals.  For students who are interested in pursuing food law as a career, I would encourage you to be as creative as you can in your job search.  Federal government is of course a great place to work, but there are lots of other options out there as well.  As I mentioned before, lots of things are happening both at the state level and at the international level.  And I think there's a lot of room to be entrepreneurial, since this is such a fast-growing area.  One great way to do that is through the various public interest fellowships that are out there, some of which will basically give you funding to create your own job.  That could give someone the opportunity to start a brand-new organization, or to create a legal position within an organization that would otherwise not be able to afford its own lawyer.

What did you eat for dinner last night?
 
Last night was Halloween.  The main thing I ate was a huge amount of hummus, with apples and crackers, while watching football and waiting for trick-or-treaters.  But my official dinner was vegetarian chili that my daughter and I made.  (That's how she tells the story, at any rate... she helped peel the garlic.)  Some neighbors invited everyone over for post-trick-or-treating chili, so that's what I brought, and that's what I ate.  What my kids ate was an entirely different story....