EATERS, POWERLESS BY DESIGN.

AuthorPollans, Margot J.

Food law, including traditional food safety regulation, antihunger programs, and food system worker protections, has received increased attention in recent years as a distinct field of study. Bringing together these disparate areas of law under a single lens provides an opportunity to understand the role of law in shaping what we eat (what food is produced and where it is distributed), how much we eat, and how we think about food. The food system is rife with problems--endemic hunger, worker exploitation, massive environmental externalities, and diet-related disease. Looked at in a piecemeal fashion, elements of food law appear responsive to these problems. Looked at as a whole, however, food law appears instead to entrench the existing structures of power that generate these problems.

This Article offers a novel conceptual critique of the food system. It argues that food law is built on two contradictory myths: the myth of the helpless consumer who needs government protections from food producers and the myth of the responsible consumer who needs no government protection and can take on the food system's many problems herself. The first myth is self-actualizing, as the laws that it justifies disempower food consumers and producers. The second myth is self-defeating, as the legal structures that assume consumer responsibility impede meaningful consumer choice.

Food law, as it is shaped by these myths, constructs powerlessness by homogenizing--or erasing diversity within--the food system, paralyzing consumers through information control, and polarizing various food system constituents who might otherwise collaborate on reform. Ultimately, food law is designed to thwart food sovereignty. By revealing how the structures of food law itself obstruct reform, this Article also identifies a path forward toward true food sovereignty.

TABLE OF CONTENTS INTRODUCTION I. FROM HELPLESSNESS TO HOMOGENIZATION A. The Helpless Consumer as Food Law's Beneficiary 1. Protection from Unsafe Food 2. Protection from Fraud and Confusion a. Standards of Identity b. Organic Labeling B. Homogenizing Food and Food Production 1. Consolidating Food Production and Distribution 2. Sterilizing and Standardizing Food and Food Production . 3. Homogenization as a Disempowerment Tool II. PARALYZING THE RESPONSIBLE CONSUMER A. Domains of Consumer Responsibility 1. Personal Health 2. Household Food Security 3. Equity and Sustainability B. Information Controls and Constructed Helplessness 1. Suppressing Dissent 2. Promoting Confusion 3. Information Control as a Disempowerment Tool III. A POLARIZED FOOD SYSTEM A. Axes of Polarization 1. Food System Workers Versus Consumers 2. Consumer Versus Consumer B. Polarization as a Disempowerment Tool C. From Fascism to Sovereignty CONCLUSION INTRODUCTION

Food system scholars have for decades critiqued food production, distribution, and consumption, pointing in particular to the ways the system reinforces economic inequality, protects the power of the food industry (often referred to as "big food"), and enables exploitation. (1) Critics point to rising rates of diet-related disease (particularly in the Global North), (2) perpetual cycles of poverty and hunger (particularly in the Global South), (3) environmental externalities of food production, (4) abuse and economic injustice along the food supply chain, (5) and, increasingly, infringement of animal welfare. (6) These concerns have spawned a wealth of social movements and academic literature identifying and targeting a broad range of culprits: global entities such as the World Trade Organization; (7) the meat processing industry; (8) multinational food companies; (9) grocery, retail, and fast-food chains; (10) genetic engineering; Monsanto (now Bayer); (11) and many others.

This Article takes on a different type of culprit: food law itself. U.S. food law constructs powerlessness. Many food laws treat consumers as victims, but others reflect narratives of blame, holding consumers responsible for their own ills (including hunger and obesity). Because of this legal structure, food can serve neither our nutritional nor our cultural needs.

This Article identifies three mechanisms through which food law disempowers: homogenization, information control, and polarization. Together these three phenomena strip individuals and communities of sovereignty, both directly through authoritarian-style governance and indirectly through imposition of dominant cultural practices. Drawing on a broad literature on food sovereignty, this Article describes U.S. food law as a system of control rather than a system of nourishment. (12)

First, homogenizing, or flattening difference within, a pluralistic society is a mechanism for social control. (13) Homogenization in the food system targets impurities in food itself and deviations in how food is produced and talked about. It has collateral consequences for diversity of food and participation in food production. As a result, it limits individual and community autonomy in food choice and sterilizes diversified food traditions. Hygiene is one prominent mechanism of, and excuse for, food system homogenization. With the stated goal of food safety, food hygiene rules seek to eliminate impurities. In practice, these rules tend to extend beyond combating illness and embrace the romantic purity of a mythic past, often a past characterized by racial uniformity. (14) Other food laws seeking to protect consumers from fraudulent or confusing food marketing also contribute to this phenomenon.

Second, information control limits food system participants' autonomy and agency. Drawing a parallel to authoritarian regimes, which consolidate and hold power by suppressing critique and constraining dissemination of information that might feed dissent, is illuminating. Such regimes also celebrate misinformation, using propaganda to spread false and misleading narratives about dissidents and disfavored political viewpoints. (15) Our food law system is not, strictly speaking, authoritarian, but these practices are nevertheless prevalent. U.S. food law suppresses information about, and criticism of, the food system, and it allows for strategic use of information chaos to foster confusion and stymie reform.

Finally, polarization preserves status quo allocations of power by preventing the development of new coalitions that might challenge that power. Polarization occurs along multiple lines in the food system. Isolating food consumers from food system workers is common. In a system characterized by lengthy supply chains, food consumption and food production are remote from one another. Even when consumers and producers have shared interests, there are significant barriers to communication and mutual identification. In addition, isolation occurs among food consumers who participate in different types of food markets. Specifically, the food system has fractured into two primary markets--a conventional market emphasizing abundance that does not account for the externalities of food production and an elite, high-cost market that promises consumers higher quality, better health, and reduced environmental footprints. (16) As social and political identities form around both markets, consumers become increasingly polarized.

Underlying and justifying many of the legal rules that generate these features are two contradictory myths about food consumers. The first myth is that consumers are helpless: the law must treat them as objects for protection. This myth justifies a series of consumer protection laws focusing on food safety and food fraud. These are the laws that generate homogenization. This myth is self-actualizing, as the laws that it justifies disempower food consumers and producers by limiting what foods are considered safe, clean, and healthy.

The second myth is that of the responsible consumer: consumers are encouraged to take personal responsibility both for their own health and for the health of the system as a whole. This myth sets the stage for information-control policies that leave consumers helpless. It does so by limiting availability of meaningful information and relieving governmental responsibility either to address food system problems or to hold food producers accountable for the harmful externalities of their products. This second myth is self-defeating, as the legal structures that assume consumer responsibility impede meaningful consumer choice. This tug-of-war reinforces the wealth and power of narrow segments of the food system while disempowering and devaluing food system workers and food consumers.

Part I explores homogenization in the U.S. food system. It introduces the myth of the helpless consumer and shows how it manifests in two areas of food law: food safety and food fraud. Part I then argues that these laws create homogenization by contributing to consolidation along the food supply chain and standardization of what food is produced and how. Part I concludes by arguing that homogenization is a tool for eater and producer disempowerment because it narrows the realm of what counts as good food.

Part II considers information control in the U.S. food system. It introduces the myth of the responsible consumer and identifies three key areas of consumer responsibility: personal health, household food security, and equity and sustainability across the food supply chain. Part II then argues that a series of information-control laws construct helplessness for the responsible consumer by making it difficult for consumers to access and process meaningful information. Within the morass of food system transparency, it is impossible for consumers to fulfill their alleged responsibilities.

Part III considers how both these myths, and their attendant food laws and policies, contribute to polarization within the food system, isolating consumers from food systems workers and from one another. This isolation protects existing structures of...

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