THE FOOD WE EAT AND THE PEOPLE WHO FEED US.

Author:Lee, Stephen
 
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ABSTRACT

Food justice scholars and advocates have made a simple but important point: for all the attention we pay to the food we eat, we pay far too little attention to the people who feed us. But can law play a role in directing consumer attention to labor-related issues? Traditional food law paradigms provide at best incidental benefits to food workers because these types of laws typically rely on transparency and disclosure schemes that serve narrow consumer-centric interests. An increasing number of laws attempt to disseminate information about the working conditions of the people who pick, process, and produce our food so that consumers can also consider the ethical and moral consequences of their food choices. In assessing this attempt to rebrand labor enforcement in consumer protection terms, this Article does two things. First, this Article identifies the conditions under which such schemes are most likely to succeed. Regulators should target food markets characterized by relative consumer wealth, norm consensus regarding which outcomes are desirable, and an established intermediation infrastructure to give disclosure laws the best chances for improving labor conditions along the food chain. Even where these conditions exist, a second point this Article makes is that disclosure laws should supplement, not supplant, traditional labor enforcement strategies that rely on worker-initiated complaints. This is because certain values, like autonomy, equity, and community standing are best vindicated by the workers themselves instead of by others (like consumers) on their behalf. Crowding out workers from the enforcement process creates the risk of exacerbating the structural forms of inequality that define work across the food system.

TABLE OF CONTENTS INTRODUCTION I. FOOD WORK AS AN AFTERTHOUGHT A. Consumer Safety and Health B. Anti-Competition II. LABOR ENFORCEMENT AS CONSUMER PROTECTION III. CONSUMING FOR JUSTICE A. Consumer Wealth B. Norm Consensus C. Intermediation Infrastructure IV. SUPPLEMENTS, NOT SUBSTITUTES A. Autonomy B. Equity C. Community Standing CONCLUSION INTRODUCTION

The field of food law has begun to take shape. Over the last several years, academic conferences, (1) journal issues, (2) and even popular entertainment (3) have tackled the subject. Of course, the subject of food has long interested legal scholars, but previous efforts to scrutinize food's place in the law focused narrowly on issues specific to well-established fields such as agriculture or food safety. (4) By contrast, recent efforts have tried to place food within the context of a larger regulatory system of which agriculture and safety laws comprise only a part. (5) This new body of work aims to provide a clearer and more comprehensive picture of how our food system affects the lives of everyday consumers. Focused on organic food, locavorism, (6) and sustainable food practices, these scholars and advocates have tried to draw our attention to a wide range of moral issues implicated by our food choices. (7)

Meanwhile, another persistent group of scholars and advocates has articulated a simple and often overlooked point: for all the attention we pay to food, we pay far too little attention to the people who feed us. (8) With a focus on the conditions of food production, these commentators have sought to crystallize the moral consequences of supporting a food system in which workers must contend with daily exploitation. Account after account shows that wage theft, sexual harassment, and racial segregation pervade kitchens, farms, and meat processing plants all around the country. (9) The case for expanding notions of food justice to account for both the content of food and the conditions of food workers reminds us that concepts of "good food" are as much a matter of social construction as they are of nutritional science. Imploring the dining public to care about both the food it eats and the people who feed it evokes anthropologist Sidney Mintz's insight that "[g]ood food ... must be good to think about before it becomes good to eat." (10)

Can law play a role in directing consumer attention to the labor consequences of their food choices? While not yet pervasive, an increasing number of laws disseminate information about the working conditions of the people who pick, process, and produce the food products consumers buy. Whereas conventional food law frameworks--such as those focused on consumer health and safety or those designed to deter anti-competitive behavior in the market--create only indirect and incidental benefits to food workers, these new laws squarely address and highlight the labor, employment, and human rights violations embedded within our food system and tied to the choices consumers make. In short, labor enforcement has been rebranded in consumer protection terms.

This Article hopes to do two things. First, it identifies conditions under which labor-oriented consumer laws are most likely to succeed. Consumers make food choices for a variety of reasons including cost, health, religious belief, and convenience. The limited empirical evidence to date suggests that food products and services highlighting labor conditions are most likely to positively impact consumer choices in food markets characterized by relative consumer wealth, norm consensus regarding which outcomes are desirable, and an established intermediation infrastructure. Even where transparency laws can help leverage consumer dollars to advance labor justice goals, a second point this Article makes is that these laws should supplement not supplant traditional labor enforcement strategies that rely on worker-initiated complaints. Certain values like autonomy, equity, and community standing are best vindicated by workers themselves instead of by others (like consumers) on their behalf. Crowding out workers from the enforcement process creates the risk of exacerbating structural forms of inequality that defines work across the food system.

Part I summarizes how traditional food law paradigms have addressed labor injustice and supply chain exploitation. Here, I observe that dominant food law paradigms often treat worker exploitation as an afterthought, choosing instead to focus on how a bad actor's conduct impacts its consumers or competitors. Food laws have been particularly focused on securing the health and safety of consumers. As a result, those approaches to food regulation have created limited, and sometimes awkward, opportunities to disrupt and deter workplace exploitation. Using these laws a foil, Part II explains that a relatively recent set of laws have tried to train the public's attention on harms related to worker exploitation. Drawing from public law enforcement models developed in the anti-trafficking and labor inspection contexts, these laws enlist the help of consumers to penalize food producers that engage in or benefit from exploitation.

Part III identifies the conditions that will give transparency schemes the best chance for success. Three conditions are particularly relevant. One is that there must be a sufficiently wealthy and interested consumer base that can afford premiums that are typically priced into these ethically produced goods. The limited empirical evidence suggests that markets for these types of goods exist but cater primarily to middle-class consumers and those with relative wealth. Many shoppers may be interested in purchasing ethically made goods (or avoiding ethically-compromised goods) but are simply priced out of the market. A second condition is a relative consensus on the kind of relief to which workers are entitled. In other words, a preponderance of consumers must believe that what workers are experiencing does in fact amount to exploitation. As I explain, one complicating factor is when workplace exploitation implicates unauthorized immigrants, a topic over which the public remains sharply divided. A final condition for successful market-based governance is an established intermediation infrastructure. Information can be confusing and hard to access for consumers. Third-party intermediaries play an important role in collecting this information and in making it available in a usable form.

While enlisting the help of consumers to enforce labor laws offers some attractive benefits--especially its gap-filling function--Part IV makes the case that such laws should proliferate, but only as supplements rather than as substitutes for traditional worker-initiated labor enforcement schemes. In particular, 1 point to three values--autonomy, equity, and community standing--that are best realized when workers, and not consumers, initiate and guide the terms of enforcement.

  1. Food Work as an Afterthought

    A core principle animating our nation's food laws is that consumers should be able to make food choices that are safe, healthful, and based on accurate information. On this consumer-centric approach, food law scholar Lisa Heinzerling observes, "when it comes to food, the American consumer must be the best-informed consumer (of any kind) in the world, perhaps in the history of the world." (11) As this Part shows, making consumers the central focus of our food law system has created only limited and indirect opportunities for addressing worker exploitation.

    1. Consumer Safety and Health

      Many food laws help ensure that consumers get what they expect. These laws regulate the type of information food producers may disseminate about their products. This regulatory approach explains why, for example, meat processors have to be careful about advertising their frankfurters as "all meat" when they are made just mostly of meat. (12) By targeting foods that are "misbranded," these laws express the view "that the consumer should know that an article purchased was what it purported to be; that it might be bought for what it really was and not upon misrepresentations as to character and quality." (13)

      This consumer...

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