Ethical eating: applying the Kosher food regulatory regime to organic food.

• Author: Gutman, Benjamin N.

[H]ow we eat determines, to a considerable extent, how the world is used.

--Wendell Berry(1)

Green products are red hot.(2) This is the age of environmental consciousness,(3) and consumers are using their purchasing power to support ecologically superior products and services,(4) Information about the environmental impact of these products is essential to these choices; hence the rapid rise of ecolabeling(5) as a form of green marketing.(6) Whatever form they take, ecolabeling programs share the goal of providing consumers with the information they need to make their purchases in accordance with their personal ethical views.(7)

Consumers need assurance that these labels truly identify the products that they wish to buy. Understandable concerns about deception, fraud, and confusion have led to greater government regulation of the form and content of ecolabels. In particular, both industry and environmental groups have increasingly called for uniform federal standards as a way to protect both manufacturers and consumers.(8) A recent and controversial example is the federal government's decision to regulate the meaning of the term "organic" on food labels. The Department of Agriculture's proposed rule was heavily criticized for misunderstanding the nature of organic agriculture and was ultimately withdrawn.(9)

In this Note, I argue that mandated uniformity is a poor regulatory policy for ethically based decisions, such as the choice to purchase organic food. "Organic" refers to a set of philosophical beliefs about our relationship with the environment, not merely to the physical characteristics of a product. Farmers and consumers, who grow or buy organic food for a variety of reasons, do not always agree on the best ways to implement their shared ethical commitments. Defining the precise , meaning" of organic through uniform regulations deprives these people of the right to make choices in harmony with their own beliefs.

Moreover, international trade law severely constrains the ability of governments to regulate products on the basis of their production methods. The Department of Agriculture's proposed organic rule likely violated free-trade agreements because it imposed unilateral, parochial restrictions on organic labeling. For these reasons, allowing heterogeneous definitions of organic may be superior to mandating a single, uniform definition.

If multiple standards are permitted, can they be policed effectively? I argue that kosher food, which must meet traditional Jewish legal requirements, provides a model for how heterogeneous standards can be maintained.(10) Kosher, like organic, is a term that means different things to different people. To accommodate this pluralism, the religious Jewish community employs a sophisticated, privately driven labeling system to alert consumers to the kosher status of food. There is also an important role for public law enforcement in this regime, particularly trademark, mandatory disclosure, and fraud laws, and judicial enforcement of contracts. I conclude that the private-public hybrid(11) developed in the kosher market should serve as a model for organic food and other ethically based ecolabels. At the very least, government regulations should not prevent private organizations from setting higher standards or producers from advertising this fact.

Sections I.A and I.B introduce organic and kosher foods, and explain that both are largely defined by production methods rather than physical characteristics. That attribute is shared by ecolabels more generally, which Section I.C briefly discusses. Sections II. A and II. B, respectively, describe government regulation of kosher and organic foods. Section II.C argues that some of these laws may violate international law, which does not generally allow distinctions to be made on the basis of production methods. Section III.A discusses the regulation of kosher food under a private-public hybrid model, and Section III.B considers whether a similar strategy could be applied to organic food. Part IV concludes that in both cases the market, not the government, should determine standards.

1. ETHICAL EATING: ORGANIC AND KOSHER FOODS

   This Part explains the meaning of organic and kosher, and it argues that they share two important features. First, both are defined, at least in part, by the methods used to produce and process the food rather than the characteristics of the end product. Second, neither term admits of "a precise and universally acceptable definition."(12) Organic farmers disagree about what particular farming methods are appropriate; similarly, rabbis disagree about whether particular foods are kosher. This Part concludes with a brief discussion of ecolabels more generally and suggests that their basis--life cycle analysis--also exhibits these two features.

   1. Organic Farming: An Ecological Ethic

      Ask a savvy consumer about organic food, and chances are that she will talk about eliminating pesticides, fertilizers, and other chemical residues from the finished product.(13) Indeed, widespread skepticism about the efficacy of food safety regulations has spurred the demand for organic food.(14) The perception is that organic food contains less carcinogenic residue and is grown with more care than conventional products.(15) Although this may in fact be empirically true,(16) it is not analytically necessary.(17) Moreover, this definition of organic--as residue-free food--does not fully explain organic practices, many of which are rooted in a holistic ecological ethic encompassing the people, animals, plants, and land involved in food production.(18)

      Consumers choose to buy organic food for both health and ethical reasons.(19) As a result, organic food commands a substantial premium(20) due to market factors and higher costs of production.(21) In this country, organic farming has exploded into "one of the hottest megatrends in U.S. agribusiness," with annual sales in 1996 reaching $3.5 billion.(22) The industry has grown at a rate of twenty percent every year since 1990,(23) and it is predicted to quadruple in size over the next decade.(24) Organic farmers and consumers have created local, regional, and national organizations to foster education and cooperation.(25)

      In this Section, I will briefly describe some of the techniques for raising organic crops and livestock, situating them within a larger ecological philosophy. I will then discuss some of the disputes within the organic community about particular practices.

      1. Organic Agriculture

         The organic movement has arisen largely as a reaction against conventional farming.(26) Thus, in trying to define organic agriculture, it is useful to describe the salient characteristics of its conventional counterpart. Conventional agriculture relies heavily on chemical fertilizers and manure to restore the optimal chemical balance of the soil for particular crops.(27) These products allow the farmer to sustain yields at a higher level than would otherwise be achievable,(28) but they have the potential to cause serious pollution problems.(29) Conventional practice also allows the use of chemical pesticides to control loss due to weeds, diseases, and animals.(30) Many different products are available and regulated by federal and state law(31) but remain controversial due to concerns about ecological(32) and human health effects,(33) as well as the evolution of resistant strains of pests.(34) The mainstream scientific and economic consensus is that in general, the benefits of these products--increased yield and lower food prices--outweigh their costs.(35)

         The organic philosophy denies the dominant, instrumental view of nature that drives these practices. Its rhetoric often evokes romantic images of traditional, simple methods.(36) Most of its practices focus on achieving sustainability--not merely in the sense of a maximum sustainable yield but rather "ecologically sound, economically viable, socially just and humane."(37) These practices may in fact tend to minimize soil erosion and nutrient depletion, and they may therefore contribute to the long-term economic health of agriculture.(38) Yet the underlying objective of the organic farmer is not simply optimizing productivity, but rather living in harmony with the natural order.(39) Eliminating chemical fertilizers and pesticides is not necessarily the primary goal of organic farming;(40) rather, it is "maximiz[ing] the health of the soil."(41) Added chemicals may be unnecessary and unhealthy(42)--instrumental reasons to eliminate them in many cases--but they also damage the environment and disrupt natural life cycles(43)--externalities whose costs are only considered within an intrinsic, ethical framework. In the words of Peter Hoffman, "Organic food is not just about a product; it is a philosophy in which the process of production is as important as the final result."(44)

         This characterization is fairly abstract, but in the words of Secretary of Agriculture Dan Glickman, "[I]f you ask people to actually sit down and define what organic means, you get all kinds of different answers."(45) Organic farming has often been defined in the negative--that is, by reference to what organic farmers do not do.(46) The United States Department of Agriculture defined organic farming rather expansively:

         [A] production system which avoids or largely excludes the use of synthetically compounded fertilizers, pesticides, growth regulators, and livestock feed additives. To the maximum extent feasible, organic fanning systems rely upon crop rotations, crop residues, animal manures, legumes, green manures, off-farm organic wastes, mechanical cultivation, mineral-beating rocks, and aspects of biological pest control to maintain soil productivity and tilth, to supply plant nutrients, and to control insects, weeds, and other pests.(47) Others define "true" organic farming to exclude any use of synthetic and non-organically derived materials.(48) The...