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.
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....