Food Law Lab | jgersen | January 20, 2015

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Food Law Lab

by jgersen Show/Hide
This seminar explores the legal regulation of food. We will study the state, local, federal, and common law regulation of food, with an emphasis on both the historical evolution of legal regimes that govern production, labeling, and sale; and frontier policy issues like banned foods, obesity, dietary supplements, organics, bioterrorism, and genetic modification. Students will be expected to contribute four substantive essays for publication to the Food Law Lab blog. Students will also be expected to participate in discussions about other blog entries and to help edit and improve other contributions. Enrolled students interested in expanding their research into a full paper may do so for an appropriate number of additional writing credits.  EDIT PLAYLIST INFORMATION DELETE PLAYLIST

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    1. 1.1 Fed Up
  1. 2 Show/Hide More Food Torts
    Original Creator: jgersen

    1. 2.6 Show/Hide More Inactive 2017
      Original Creator: jgersen

  2. 3 Show/Hide More Food Crimes
    Original Creator: jgersen

  3. 4 Show/Hide More Food Bans
    Original Creator: jgersen

      1. 4.1.1 Show/Hide More Foie gras ban: cases
        Original Creator: jgersen
      2. 4.1.3 Show/Hide More California foie gras ban: full bill
        Specific provision: § 25982. Sale of products resulting from force feeding bird prohibited: A product may not be sold in California if it is the result of force feeding a bird for the purpose of enlarging the bird's liver beyond normal size.
    1. 4.2 Show/Hide More New York soda ban
      Original Creator: jgersen
      1. 4.2.1 Show/Hide More NY soda ban: cases
        Original Creator: jgersen
        1. 4.2.2.1 Show/Hide More Soda Ban Explained, NYT
          (a fun video, “op-docs”)
      1. 6.1.12 Show/Hide More Community Nutrition Institute v. Young
        Original Creator: jgersen
         

        1. Legislative Rules.  As the court notes, section 553 of the Administrative Procedure Act requires certain minimal procedural steps prior to the issuance of a new rule of regulation.  In short, the agency must publish a Notice, take Public Comments, and issue a Concise Statement of Basis and Purpose accompanying the final rule.  This process is known as “informal rulemaking” because it does not utilize the Formal Rulemaking procedures specified in sections 556 and 557 of the APA, procedures that closely resemble a judicial trial with the presentation of evidence, cross-examination, and the like.   Section 553 contains an exception for, inter alia, “interpretative rules and general statements of policy.”  Because most rules also interpret, courts have been left to struggle with whether a particular agency document is a policy statement or interpretative rule that is exempt from notice and comment requirements or a “substantive” or “legislative” rule for which such procedures are required.  Is the FDA’s action level properly classified as a legislative rule or an exempt interpretation or policy statement? 
        2. Agencies and the APA. The APA contains a set of default procedural requirements for administrative agencies.  If an agency’s organic or creating statute (the statute granting the agency legal authority) says nothing about how the agency may exercise its power, then the APA applies.  Sometimes, however, Congress builds specific procedural requirements into an agency’s organic statute.  In that case, the specific requirements trump the default requirements.  Such is the case with the National Labor Relations Act (NLRA) and the FDCA.   
        3. Blending In Part II of the court’s opinion, it considered the blending problem. FDA has sometimes granted exemptions so that contaminated corn can be blended with uncontaminated corn to bring the total level of aflatoxin contamination below the action level.  Consumer groups argued that the corn is properly deemed adulterated.  The court agreed, but concluded that FDA maintains discretion about whether to initiate an enforcement proceeding for any adulterated food.  Because decisions about whether to enforce a particular legal obligation against a particular party is nearly unreviewable by courts, the legal conclusion that blended corn is adulterated carried no legal remedy for petitioners. Is there anything to stop FDA from deciding to never initiate enforcement proceedings against foods all parties agree are adulterated?  If not, is there something amiss with the legal regime?  Or, is this simply an inevitable feature of agency discretion about when and against whom to enforce legal obligations?
        4. Judge Starr. What is Judge Starr’s disagreement with the majority? What doctrinal test does he propose to distinguish substantive rules from policy statements? Is his test easy to administer than the smog that the majority offers? 
        5. The FDA & the APA. The FDA has continued to rely on guidance documents—facially non-binding policy statements and interpretative rules to announce agency positions and its interpretation of what is required of regulated parties.  Is policy by guidance desirable?  How ought we analyze these questions in the context of food policy?  Consider that conditions in the food industry are often changing rapidly and guidance offers the agency flexibility and speed when necessary.  By the same token, because guidance is generally issued without a transparent process of public notice, comment, and agency response, it means agency views often reflect limited input from the public. Does the majority in CNI II exacerbate or ameliorate this problem?    
  4. 7 Show/Hide More Food Justice
    Original Creator: jgersen
    1. 7.1 Food Inc
      1. 8.2.2 Show/Hide More Advertising to Children and the Commercial Speech Doctrine: Political and Constitutional Limitations. 58 Drake L. Rev. 67 (2009) **See Description**
        Particularly:
        III. Political Limitations: The FTC, FCC, and Congress; V. Taking the Test: Child Advertising Regulations Under Central Hudson; VI. European and Canadian Approaches to Regulating Advertising Directed at Children
    1. 8.3 Show/Hide More Consent order: 133 F.T.C. 702, 2002 WL 34463112
      (challenging agency’s role in advertisements claiming that Wonder Bread with added calcium could improve children’s brain function and memory)
  5. 9 Show/Hide More All Natural
    Original Creator: jgersen
    Class Assignment:  Please draft a comment for submission to the FDA 
  6. 10 Show/Hide More Food Property
    Original Creator: jgersen
    Food Property
  7. 11 Show/Hide More Nutrition
    Original Creator: jgersen
    1. 11.4 Show/Hide More Sugar
      Original Creator: jgersen

      1. 12.1.1 Show/Hide More United States v. Hallmark Meat Packing Co.
        Original Creator: jgersen
        Here is the video of mistreatment of downer cows at the center of the case:
        https://www.youtube.com/watch?v=y95vIdwM0Vs
      2. 12.1.2 Show/Hide More People v. Speegle
        Original Creator: jgersen
      3. 12.1.3 Show/Hide More People v. Henderson
        Original Creator: jgersen
      4. 12.1.5 Show/Hide More State v. Nix
        Original Creator: jgersen
      1. 12.2.2 Show/Hide More "Fear Factories," from The American Conservative
        See also: “Pro Life, Pro Animal”, Matthew Scully (Speechwriter for George W. Bush) – http://www.nationalreview.com/node/359761/print
      1. 12.3.1 Show/Hide More California's new egg rules (Jan 2015)
        Starting 1-1-15, all eggs sold in California must come from chickens that live in quarters about twice as spacious as the industry standard.
      2. 12.3.2 Show/Hide More Animal Legal Defense Fund: state animal laws ranked
        ranks state animal laws, points out strengths and areas of improvements
  8. 13 Show/Hide More Food Antitrust
    Original Creator: jgersen

  9. 14 Show/Hide More Ag Gag
    Original Creator: jgersen

  10. 15 Show/Hide More Food & Labor
    Original Creator: jgersen

    1. 15.5 Show/Hide More Ag-gag laws
      Original Creator: jgersen
  11. 16 Show/Hide More Menu Labeling
    Original Creator: jgersen

    1. 16.1 Show/Hide More Proposed rules
      Original Creator: jgersen
      1. 16.2.1 Show/Hide More Restaurant menu labeling final regulatory impact analysis - [See description]
        Note “consumer surplus” is the term for FDA’s controversial prediction that the regulation will cause $5.27 billion loss in “lost pleasure"
      1. 16.4.1 Show/Hide More United States v. Park
        Original Creator: jgersen
        In response to a concern about liability for misbranded calorie menus, the FDA cited this case for the proposition that “Persons exercising authority and supervisory responsibility over a restaurant or similar retail food establishment can be held responsible for violations under the FD&C Act”
    1. 17.2 Show/Hide More CAFOs: Cases
      Original Creator: jgersen
      1. 17.2.1 Show/Hide More Community Association for Restoration of the Environment, Inc. v. Cow Palace, LLC
        Original Creator: jgersen
        Discusses the following issues:
        1. Whether Plaintiffs have Article III standing
        2. Whether certain evidence, including expert testimony, should be limited or excluded from trial
        3. Whether animal waste, when over-applied onto soil and leaked into groundwater, is a “solid waste” under RCRA
        4. Whether the Dairy's manure management, storage, and application practices constitute “open dumping” under RCRA
        5. Whether the Dairy's manure management, storage, and application practices may cause or contribute to an imminent and substantial endangerment to public health and the environment
        6. Whether Cow Palace, LLC, Three D Properties, LLC, and The Dolsen Companies are all responsible parties under RCRA.
        News article summary: http://www.yakimaherald.com/news/2828984-8/judge-rules-dairy-polluted-groundwater
      2. 17.2.2 Show/Hide More American Farm Bureau Federation v. United States Environmental Protection Agency
        Original Creator: jgersen
        News article summary:
        http://minnlawyer.com/2015/01/29/judge-rejects-farm-groups-lawsuit-to-keep-epa-data-private/
      3. 17.2.3 Show/Hide More National Pork Producers Council v. United States Environmental Protection Agency
        Original Creator: jgersen
        Held: PA lacked authority to issue regulation requiring CAFOs that proposed to discharge pollutants to apply for National Pollutant Discharge Elimination System (NPDES) permit.
      4. 17.2.4 Show/Hide More Concerned Residents for the Environment v. Southview Farm
        Original Creator: jgersen

        -Liquid manure spreading operations are a point source; alt., farm itself is a CAFO.
        1. No agriculture exemption because cows not put to pasture
        2. Professor Freeman taught this case in her environmental law class

    2. 17.3 Show/Hide More CAFO Complaints
      Original Creator: jgersen
      1. 17.3.1 Show/Hide More 5 U.S.C. §§ 551 challenge to the EPA (not responding to ammonia gas pollution petition)
        5 U.S.C. §§ 551 challenge to the EPA for failing to respond to a petition arguing that ammonia gas pollution (NH3) endangers public health and welfare, to designate ammonia as a CAA “criteria pollutant” under CAA § 108, and to establish National Ambient Air Quality Standards (NAAQS) for ammonia in the ambient air to protect public health and welfare with an adequate margin of safety under CAA § 109.
      2. 17.3.2 Show/Hide More 5 U.S.C. §§ 551 challenge to the EPA (to regulate CAFOs under the CAA)
        5 U.S.C. §§ 551 challenge to the EPA to regulate (CAFOs) as a source of air pollution under the federal Clean Air Act (CAA) and that the five year delay in responding to petition is unreasonable
  12. 18 Show/Hide More School lunch
    Original Creator: jgersen

    1. 18.1 Show/Hide More School lunch: cases
      Original Creator: jgersen
      1. 18.1.2 Show/Hide More Pace v. State
        Original Creator: jgersen
      2. 18.1.4 Show/Hide More Davis v. Robinson
        Original Creator: jgersen
      1. 18.3.1 Show/Hide More Consuming Identities: Law, School Lunches, and What it Means to be an American, 24 Cornell J. L. & Pub. Pol'y 1
        Thesis: The school lunch program teaches students a simplified, uniform, even discriminatory account of what it means to eat American and therefore be American.
  13. 19 Show/Hide More Food Secrets
    Original Creator: jgersen

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January 08, 2016

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jgersen

Jacob Gersen

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