AuthorMcCabe, Margaret Sova
PositionTwenty-First Century Food Law: What's on Our Plates?

Agriculture and food production contribute significantly to greenhouse gas emissions and environmental pollution. Shifting human dietary patterns has the potential to reduce such environmental harms while also promoting human health. Government policy, in the form of the United States Dietary Guidelines (USDG), recommends what Americans should eat and could play an important role in shifting the food system to one that is more sustainable. However, the USDG are an overlooked aspect of U.S. food policy. While many countries have moved to synthesize environmental goals with dietary guidance, the United States has taken the opposite approach. fn 2015, despite recommendations from the expert panel appointed under the Federal Advisory Committee Act (the Dietary Guidelines Advisory Committee), which recommended including sustainability considerations in the 2015 USDG, the Secretaries of Health and Human Services and Agriculture rejected those recommendations reasoning that the sustainabihty perspective was beyond the scope of the USDG-enabling statute. This Article examines why that decision was wrong and how, based on international examples and sound science, the federal government should see the USDG as a powerful food system policy tool that can be used to promote human and environmental health in the 21st century.

  1. OVERVIEW 742 A. The United States Dietary Guidelines 745 B. The Nutrition Evidence Library 747 C. The Federal Advisory Committee Act 748 II. EATING FOR THE ENVIRONMENT 2015 751 A. The United States Dietary Guidelines Advisory Committee's 2015 Report 751 B. Global Examples: China, Brazil, and Sweden 755 III. EATING FOR THE ENVIRONMENT: THE FUTURE 759 IV. CONCLUSION 763 I. OVERVIEW

    What if U.S. food policy recommended dietary patterns that promoted not only individual and public health but also environmental health and food system sustainability? This idea is not far fetched and indeed is the trend in many countries today. However, in 2015, the recommendation of the Dietary Guidelines Advisory Committee (the Advisory Committee) to include sustainability considerations was not only rejected by the Secretaries of Agriculture and Health and Human Services, the inclusion of the topic prompted Congressional hearings. (1) Despite this turn of events, this Article asserts that the United States Dietary Guidelines (USDG) are the unsung heroes of American food policy, in that they have the potential to improve individual, public, and environmental health outcomes in the 21st century. (2) Realizing their potential requires stakeholders to view the USDG's purpose more holistically so that they influence both individual eating and food production patterns. Such a shift will also require the USDG to incorporate clinical studies, population science, and environmental science so that they suggest eating patterns designed for nutrition, public health, and production and manufacturing of foods that contribute to a sustainable food system.

    As an opening and critical premise, this Article presumes that sustainability is a fundamental value that should be encoded in American law and policy, if it is not already. (3) Without valuing sustainability, particularly in food law and policy, the American political system is illequipped to address the near- and long-term needs of its citizens. The U.S. food system is underpinned by an incredibly complex portfolio of law, regulation, and policy that largely overlooks one particular lever--the appropriate role of government in shaping eaters' (consumers') demand for certain products. This crucial issue--the way in which government policy might alter dietary patterns--involves a potent mix of government power and economic interests (not to mention that of individual citizens) that can be marked by hostile political battles that increasingly pit science against special interests.

    Science plays a critical role in developing dietary guidelines (DG). As this Article explains, a preponderance of science and medical knowledge is required to inform DG. Scientific validation is a critical part of the process, but so too is understanding how that science is conducted and defined. Important questions include how science is funded, and even more fundamentally, what type of science appropriately informs DG. It is fair to state that DG have evolved from relying principally on clinical scientific recommendations for nutrient intake in humans to including population science for metadata analysis relating diet to public health outcomes. (4) The next important step is the acceptance and inclusion of science that addresses the environmental impact of food consumption patterns.

    For example, Life Cycle Assessment (LCA)--a specific scientific methodology designed to evaluate the environmental, social, and economic impacts of particular products (5)--was questioned as a valid scientific consideration appropriate to inform the USDG in 2015, even though the expert report relied on it. (6) Though LCA is an emerging field, this Article takes the position that when combined with clinical and population science, it has the potential to add powerful insight into the consequences of different dietary patterns for human and environmental health and is therefore, a valuable component of DG development.

    Certainly, there are legitimate concerns about the focus of clinical research as it informs dietary and nutritional advice. The most recent, and perhaps best, illustration comes from the 2016 discovery that in 1967 the sugar industry shifted the focus of nutrition research to the role of saturated fats in chronic disease while squelching the question how sugar might contribute to the same chronic diseases. The unfortunate result of influenced research--such as in the case of sugar--is two-fold: it discredits science generally when industry influence is revealed, and perhaps more importantly, it misdirects nutrition research (and its funding) by discounting the role of certain substances, such as sugar. (7) As a result of cases like this, the integrity of nutritional science can more easily be challenged when any industry funding flows to the researchers.

    Perhaps equally important is the legitimate concern that relying on new fields of scientific research may be risky when there is uncertainty because the field is emerging. Whether the question of scientific findings' credibility is one of integrity or methodology, for the purposes of this Article, it is sufficient for readers to understand that science is critical to meaningful DG. Unfortunately, the current state of science has the public and Congress concerned about its reliability. As a consequence, there is a significant perception that the USDG are untrustworthy. (8)

    In the case of DG, the issue of expert credibility and reliability is further compounded by the fact that the USDG are not reviewable under the Administrative Procedure Act, (9) nor are specific challenges to advisory committee members on the basis of bias or conflict of interest likely to be successful under the Federal Advisory Committee Act (10) (FACA). Therefore, challenging the USDG will not likely occur in the courts but instead will require Congressional action. This mix of science, politics, and process poses two important questions: Can American law and policy encourage eating for the environment? Should it?

    This Article first explains briefly the scope of the USDG and their role in U.S. food policy. It then provides an overview of global trends in dietary guidance, including creating explicit linkages between DG, sustainable food systems, and the reasons some nations have chosen to take this approach. Finally, it begins to tell the story of how dairy and meat recommendations illustrate the potential impact of DG that consider public and environmental health, in additional to individual nutritional goals.

    1. The United States Dietary Guidelines

      Several good sources retell the story of the modern era of the USDG, which began in the late 1960s under the leadership of Senator George McGovern--though the most comprehensive, and perhaps discouraging, is Food Politics by Marion Nestle. (11) Her book captures the process and content flaws often attributed to the USDG--first, the USDG are unduly influenced by industry, and second, partly as a function of the first, the USDG encourage "eating more" rather than providing advice about what to eat and what to avoid. (12) Despite these flaws, the USDG are powerful components of the U.S. food system. For example, the USDG influence billions of dollars of federal feeding program spending. For example, the National School Lunch Program's $12 billion expenditure in 2016 was for school meals compliant with the USDG. (13) Additionally, their content is distributed widely through United States Department of Agriculture (USDA) publications and marketing, including through federal feeding programs like the Supplemental Nutrition Assistance Program (SNAP) and the Special Supplemental Nutrition Program for Women, Infants, and Children (WIC). (14) Given their influence on the spending of federal food dollars and their role in the food economy, (15) understanding the process by which they are created is important to understanding how they can be recalibrated in 2020 and beyond to promote a sustainable food system.

      The National Nutrition Monitoring and Related Research Act of 1990 (16) provides that:

      (1)... At least every five years the Secretaries [of Health and Human Services and Agriculture] shall publish a report entitled "Dietary Guidelines for Americans". Each such report shall contain nutritional and dietary information and guidelines for the general public, and shall be promoted by each Federal agency in carrying out any Federal food, nutrition, or health program. (2)... The information and guidelines contained in each report required under paragraph (1) shall be based on the preponderance of the scientific and medical knowledge which is...

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