Open PDF in Browser: Margot J. Pollans,* Abundance and Other Food Fixations
Although most people in the United States no longer devote the majority of their time to food production, processing, and distribution, food remains a daily fixation. This Article explores three driving food fixations—abundance, thinness, and health—and situates each against an inverse fear—scarcity, fatness, and illness, respectively. Mapping these threads onto U.S. food policy, this Article examines, among other policy arenas, food waste policy, nutrition and health claim labeling law, and food additive regulations. Across food policy, these fixations feed what this Article calls the “politics of abundance.” This politics helps to insulate the food industry from deeper systemic reform aimed at mitigating the industry’s human, environmental, and animal exploitation. Turning to the dichotomies of thinness/fatness and health/illness, this Article argues that abundance/scarcity narratives help shape these policy debates and limit the range of available policy. The laws of fatness and illness are thus abundance‑promoting, even when abundance is itself a source of harm. The Article concludes by imagining food policy grounded instead in nourishment.
Introduction
An ad on the subway pitching a dietary supplement extols riders: “Food is not enough.”[1] Another ad, depicting a woman jabbing a needle into her plump belly promises “[a] weekly injection to lose weight.”[2] Subway, the restaurant, introduces the footlong cookie, pretzel, and churro as “sidekicks” for its footlong sub. A magazine display in an airport newsstand is crowded with pictures of mouthwatering triple‑chocolate cakes juxtaposed with headlines containing dire warnings about impending starvation in Gaza, threats to American agriculture from depleted groundwater aquifers, and planned cuts to an essential childhood nutrition program. During the Coronavirus pandemic, some people waited in miles‑long food pantry lines, while others filled their Instagram feeds with freshly baked sourdough bread, counter‑sprouted scallions, and whipped coffee.
The promises (and scolding) of these ads, the worries in these headlines, the seeking in these social media posts are all manifestations of collective food fixation. In this Article, I observe that fixation is an ongoing feature of the food policy landscape. From an evolutionary standpoint, finding adequate food was—along with procreating, avoiding being eaten and finding adequate shelter—our raison d’être. It was only in the last 150 years that large numbers of people were no longer responsible for gathering and producing their own food. But as most people in the United States have left behind food production, hunting, and gathering—food preoccupation remains. As sustainable food advocate Louise Fresco put it, “[t]hat freedom to do something else also entails dependence on others and therefore greater vulnerability and a need for collective trust, which must be addressed by all and given meaning.”[3]
This Article examines three pursuits: (1) abundance, (2) thinness, and (3) health. It argues that each of these pursuits must be understood in relation to an inverse fear—scarcity, fatness, and illness, respectively. Food law reflects these three intertwined obsessive pairs. The first pair—the pursuit of abundance and fear of scarcity—is foundational in U.S. food law, influencing broad swaths of law and policy. Legal regimes governing body size and health operate against the backdrop of the abundance/scarcity dichotomy, reflecting the limitations of those lenses. This Article explores some of the collateral damage of these pursuits, linking them to human, environmental, and animal exploitation, physical and mental health harms, and racial and gender discrimination. In Eaters, Powerless by Design, I argued that food law is shaped in part by the myth of the responsible consumer who is in total control of their own consumption choices.[4] Here, I build on that argument by situating this myth against the politics of food abundance, which makes any approach other than “responsibilization” to the real problems of overconsumption anathema.[5]
First, a note on my approach. Fear and obsession can exist at both the individual and collective level. In identifying these three particular fear/obsession pairs, I recognize that they are both over‑ and underinclusive. At the individual level, there are those who suffer from none of these obsessions/fears. There are some who suffer from others not listed or who experience them differently than they are described. There are others who suffer from extreme versions, experiencing eating disorders such as anorexia nervosa, bulimia nervosa, and binge-eating disorder.[6] I draw from my own experiences and observations, from sociological literature, and from cultural criticism to define and describe these categories. I draw on examples of individual fear and obsession, but I offer them primarily as descriptions of cultural fear and obsession. In other words, because I am interested in understanding how these cultural phenomena ultimately interact with law, I am not particularly concerned with capturing every nuance in the range of individual food experience. Instead, it is collective obsession that manifests in food law and policy.
The first pair, abundance and scarcity, manifest across the U.S. food system. Inexpensive abundance is everywhere: unlimited soup, salad, and bread sticks, all‑you‑can‑eat buffets, two‑for‑the‑price‑of‑one delivery pizza. It is also rife with the language of cornucopia—“America’s bread basket,” “our farmers feed the world,” “the salad bowl of the world”—and the strong cultural associations between feasting and holidays—holiday cookies, Thanksgiving spreads, Easter Peeps, Fourth of July barbeques (and Coney Island hot dog eating contests),[7] and Halloween candy. Rituals of eating take center stage. The rhetoric of abundance has been part of the American project from the beginning. Despite the often severe hardship that faced European colonizers, settlement boosters sold the North American continent as a land of plenty.[8]
Fear of scarcity occurs at a variety of levels, from my private, privileged panic when I start to feel hungry and do not have a snack on hand, to the oppressive physical and emotional weight of true food insecurity and starvation, to the collective food security anxiety that the food industry manipulates as an antiregulatory tool. German sociologist Ulrich Beck identifies scarcity as an organizing principle in premodern society.[9] He identifies the “struggle against obvious scarcity” as “the legitimizing basis [for] the modernization process.”[10]
Food law reflects the pursuit of abundance and fear of scarcity in a variety of ways. Capitalizing on both, the food industry pushes for policies designed to keep the cheap food flowing. These policies, including commodity production subsidies in the global north and international free trade agreements, generate significant wealth and flood our markets with cheap foods. A certain kind of abundance is achieved. The abundance pursuit also shapes dominant approaches to the very serious problem of food waste. By some estimates, over 40 percent of food is thrown away. Food waste policy focuses not on producing less food and distributing it more efficiently, but on redirecting garbage food from landfills into charity and composting systems.[11] Fear of scarcity also plays a critical—often rhetorical—role in food policy, justifying widespread exceptions of food production from labor, animal welfare, and environmental regulation.
Abundance/scarcity rhetoric shape the policy environment for both fatness and illness. Throughout this Article, I use the terms fat and fatness consciously, inspired by the work of Fat Studies scholars who seek to “reclaim[] the word fat, both as the preferred neutral adjective (i.e., short/tall, young/old, fat/thin) and also as a preferred term of political identity.”[12] Pursuit of thinness and fear of fatness dominate American popular culture. Multibillion‑dollar diet and exercise industries bombard people (another form of abundance) with ads promising shortcuts to the perfect body, freedom to eat whatever we want, and tricks to finally lose the weight. In a world of abundance, self‑control protects desirability (socially, professionally, and sexually).[13] Thinness marks status, both socioeconomic and racial.[14] In the medieval era, gluttony, one of the seven deadly sins, was condemned primarily because it was thought to lead to lust. “Food was its own pleasurable end, but it was also foreplay for the occasional lusty and lickerous [sic] frosting on the cake.”[15] Today, by contrast, “we strategize, count calories, worry, and undermine our pleasure in eating so as not to undo what little desirability we may be lucky enough to possess.”[16] At the same time, diet culture pushes people to exercise this self‑control without questioning the logic of abundance, which remains a source of individual, communal, and national pride. Abundance is understood as disordered only at the individual level, for those particular individuals who fail to exercise discipline.[17] The message is clear: restrain yourself in the face of excess.[18]
Fat law, an evolving body of food and health law whose primary aim is to reduce waistlines, focuses almost entirely on fat people.[19] Sociologist Melanie DuPuis describes American dietary politics as a “politics of ‘conversion’” that starts with “defining ‘good behavior’” and then “transforms the world through ‘behavioral change.’”[20] Thus, even as policymakers increasingly acknowledge the genetic, structural, and environmental causes of increasing average body size and diet‑related disease, policies focus on removing barriers to individual behavioral change and aim to reduce obesity through enabling access to healthier foods, discouraging consumption of junk food, and increasing availability of medical interventions.[21] The bulk of the law in this area is informational and consumer facing.[22] For instance, the Nutrition Labeling Education Act requires food processes to disclose fat, calorie, and sugar content directly to consumers.[23] Further, fatness is medicalized—coded in law as a malady: obesity. Medicalization reinforces popular culture narratives of body shaming and blame.[24] The pursuit of thinness and the attendant emphasis on individual behavior to “cure” obesity directs attention away from—and ultimately reproduces—the deeply embedded food system structural features that generate an abundance of inexpensive and unhealthy food.[25]
Beyond thinness, a myriad other health pursuits drive food policy. Inquiry into the relationship between diet and health is certainly not new, but the current obsession—in particular, the fear of illness—has spawned a multibillion‑dollar industry hawking juice cleanses, fiber‑enriched breakfast cereals, and brain‑building baby foods. Complicating this obsession is its core truth: Diet is intimately connected to health, and diet‑related diseases, including cancer, diabetes, and heart disease, are a leading cause of premature death.[26]
Again, these legal responses to illness protect and reproduce abundance. To promote health, food law targets eating rather than food production.[27] In recent years, food has played a growing role in public health policy. Regulation in this arena is primarily informational, mandating disclosures of some food content information.[28] Aggressive regulation of unhealthy food additives through bans or limitations is rare.[29] At the same time, lax food marketing regulation allows food producers to capitalize on fear. Facilitated by weak restrictions on “functional foods” claims, marketers promise extraordinary results: more energy, regular bowel movements, smarter children, reduced cholesterol, less cancer.[30] Together, mandatory disclosures and lax marketing laws generate an abundance of information. In combination with the pursuit of thinness, the use of the obsession with food as a tool for individual health is problematic because of how it changes the relationship between the eater and the eaten. Together, these two obsessions drown out the pleasure and the culture of eating and replace them with anxiety, obsessive reading of labels, counting of calories, and judging ourselves and each other. Within this framework, prescription “food as medicine” may actually serve as a welcome relief, removing the need for eaters to engage in these questions individually.[31]
As the discussion above begins to unpack, each of these obsessions interacts with food law in significant ways. Importantly, the politics of abundance serves as an underlying force, limiting the range of policy solutions that are available in the other two realms. Current regulatory regimes allow food manufacturers to bombard consumers with the abundant calories, choices, information, and food additives that generate both fatness and illness. But abundance is untouchable in large part because of the ways in which it serves concentrated financial interests in the food system. Instead, legal regimes address the latter fears by targeting individual consumption choices, while protecting and fostering abundance.
Food law, in turn, further entrenches food obsession by shaping the terms of the food policy debate in two ways. First, the turn to information regulation in the thinness and health contexts stokes consumer fears of fatness and illness, driving more and more marketing of healthy foods and miracle cures. Second, all three fears lead toward legal structures that fetishize expertise. As food law calls on the nutritionists, crop scientists, personal trainers, and doctors who make their livings treating feared conditions, these experts have a perverse incentive to further stoke fear.
Abundance is embedded in the current structures of food law, but it is not the only possible frame to guide food policy. This Article suggests an alternative: nourishment. Nourishment, by definition, invites an inquiry that extends beyond food itself. Abundance can be satisfied merely through surplus and profit. Nourishment cannot. Some scholars argue that abundance can be a precursor to social hierarchy as power forms around the possibility of controlling surplus.[32] Fear of illness and fatness provide a sorting mechanism within that hierarchy.[33] Nourishment instead situates food production and consumption within community, prioritizing sustenance over profit and joy over cure.
Part I begins by defining abundance, exploring a range of relevant meanings. Next it considers the cultural power of the abundance/scarcity dichotomy and demonstrates how U.S. food law reflects these narratives, exploring several abundance‑protecting and abundance‑promoting legal regimes. Finally, it examines how the fear of scarcity is actively deployed as an antiregulatory tool and notes the consequences of this effort for food system workers, food animals, and eaters.
Part II introduces the thinness/fatness and health/illness dichotomies. It asks how food law expresses these pairs and maps the role of abundance in establishing the range of acceptable policy responses. It also explores the relationship between the fear of fatness and the pursuit of health, arguing that the two are often not, but should be, disentangled.
These three obsessions—abundance, thinness, and health—are so deeply embedded in current food policy debates that it is hard to picture what the landscape might look like without them. Part III briefly takes up that task, inviting readers into the project of imagining a food system driven by pursuit of nourishment.
I. Sacred Abundance: Food Law’s First Motivation
The dichotomy of scarcity and abundance has been a central theme in religious, literary, sociological, and political stories for millennia. Abundance and, in particular, an easy abundance requiring little work, features strongly in many creation stories.[34] Indeed, the feast is so central to cultural identity that at least one scholar has argued for recognizing a “right to feasts and festivals.”[35] Some of the earliest recorded food laws were designed to manage or prevent food scarcity.[36] Managing and generating abundance were also early governmental functions.[37]
As an absolute matter, there is no scarcity in the United States today.[38] Yet both the fixation on abundance and the fear of scarcity continue to drive U.S. food and agriculture policy. Early agricultural policy in the United States was built on the central lie that large amounts of vacant land were sitting idle, ready to be settled and cultivated.[39] Boosterism, promoting European colonization of the Americas and western expansion across the continent, is filled with images of abundant land and other resources, the ingredients for an easy abundance.[40] These images appear as well in early American literature alongside parallel narratives about a vast wilderness ready to be tamed and cultivated.[41] Often these narratives of abundance had Judeo‑Christian grounding, reflecting abundance as God’s promise.[42]
For hundreds of years, from the first arrival of European colonists in the seventeenth century through the “closing” of the frontier in 1890 (and even beyond), policymakers sought to make the myth of the empty wilderness true by use of force. From promoting the revolution against England in order to open up additional lands for settlement,[43] to establishing policies of brutal relocation and extermination of Indigenous communities,[44] to sanctioning the kidnapping and forced labor of millions of Africans,[45] the policies of these eras facilitated western expansion, settlement, and agricultural exploitation of land and people. These policies perpetuated the lie of natural abundance. Throughout U.S. history, in other words, food and agriculture law replaced the hand of God to create an easy abundance for the chosen people.[46] Abundance, then, was not for everyone to share but for particular subsets of the population: first White European colonizers and later White commodity crop farmers.[47]
Focusing on more recent agricultural policy, this Part explores the continued centrality of the theme of abundance. First, Section I.A defines abundance, considering a range of possible definitions and arguing that abundance‑promoting policies shift among these definitions. Second, Section I.B examines policies that are abundance‑promoting and ‑protecting. Drawing on the example of modern food waste policy, this Section argues that quantity and profit abundance help to explain the absurdity of food‑discard law and policy. Food waste policy has attracted a lot of attention and investment in recent years at least in part because it allows participants in food waste streams to address concerns about scarcity without undermining the preference for abundance that is baked into the system. Pursuit of abundance thus makes it possible to avoid any of the deeper systemic changes that would meaningfully reduce the externalities of food production. Finally, Section I.C turns to the fear of scarcity, considering how this fear (or, at least, rhetoric about this fear) is wielded in opposition to legal protections for workers, animals, and the environment. It observes the ways in which this rhetoric obfuscates underlying antiregulatory motives. Ultimately, rhetoric regarding pursuit of abundance and fear of scarcity permeates food politics, constraining possible policy solutions and reinforcing status quo distributions of food system power.
A. Defining Abundance
First and foremost, abundance is a quantity (of food itself and of food‑producing resources such as land, irrigation waters, and fisheries). For a long time, policymakers assessed food security almost exclusively as a function of food quantity.[48] Although more recent food security definitions from entities such as the United States Department of Agriculture (USDA) and the United Nations Food and Agriculture Organization have included other metrics, food quantity remains dominant.[49]
Other quantities, beyond food and food‑producing resources, are also relevant to the politics of abundance. Profit quantity receives attention, and food policy frequently rests on the assumption that food production should be a profit‑ and job‑generating venture.[50] Consumers and policymakers also value choice quantity—in other words, variety.[51] And, finally, there are quantities of information about food and food production. Food knowledge has emerged as a policy priority in its own right in recent years. Food knowledge abundance has a close relationship with choice abundance, as manufacturers offer consumers options reflecting every variable that knowledge reveals.[52] All of these manifestations of abundance show up in food and agriculture policy rhetoric. Across the board, more is better.
As a preliminary matter, abundance is a neutral term meaning simply a large quantity.[53] But it may also have more subjective meanings. It may refer to sufficiency, an “ample amount.”[54] This meaning suggests comfortable plenty. This is the abundance of adequacy—enough to go around, even if it does not actually imply distributional equity.[55]
At the same time, however, abundance may be more than enough, a potentially less neutral quantity.[56] One permutation of more than enough is excess, which is a “pejorative and subjective” term “connot[ing] waste, greed, and inequality.”[57] A surplus is another permutation “which implies inherent political power in the allocation of resources or the deliberate manipulation of labor and raw materials for exchange.”[58] Surplus, of course, can also introduce unique economic problems such as depressing prices. Legal regimes that criminalize hoarding seek to address the problems of excess,[59] whereas restrictions on production might address the problems of surplus.[60] Often, however, food law and policy celebrates the “too much” without considering what kind of “too much” and without engaging deeply with its consequences.[61]
Beginning with abundance, as opposed to scarcity, is a consequential choice. Scarcity is a defining concept in economic literature.[62] It is also frequently offered as a powerful causal story in historical analysis.[63] But abundance also plays a dominant role. There is a deep and longstanding interest in plenty, across eras and continents, that shapes political, economic, and cultural frames.[64] Abundance and scarcity alike generate distributional challenges. As soon as an individual, a community, or a society generates abundance, questions arise as how to manage it. These include not only technological questions related to storage and preservation but also social questions related to distribution.[65] Viewing policy as driving toward abundance and not just away from scarcity invites inquiry both into what the ultimate goal is—sufficiency, excess, or surplus—and into how, if at all, this distributional question is to be addressed. The discussion that follows in Section I.B considers the meaning and consequences of abundance‑promoting and abundance‑protecting policy in U.S. food law. An analysis of abundance in isolation would, however, be incomplete—scarcity remains a driving rhetorical force in U.S. food policy.[66]
As a final note, abundance as a metric can be indifferent to content and quality. For instance, a regime celebrating an abundant food supply might be attentive to the nutritional quality of that food. Modern definitions of food security incorporate nutritional quality as a critical metric of the food supply.[67] Although dietary guidelines and other federal nutrition programs emphasize quality, food production laws focus almost exclusively on quantity. Similarly, pure quantity metrics might be indifferent to content—to cultural preferences and definitions as to what constitutes food. In other words, not everything that is edible is eaten.[68] Part III will return to the centrality of quality as perhaps a more important metric of food policy success than quantity.
B. The Excess of Modern Abundance Law
A wide variety of modern era food and agricultural policies seek to promote abundance.[69] These include public investment in agricultural technologies (including genetic engineering) that contribute to food quantity abundance[70] and patent system protections for those technologies, which in turn contribute to profit abundance.[71] They also include commodity subsidy programs, international trade regimes, and many others. The role of federal agricultural support in encouraging increased production, particularly since the 1980s, is a well‑documented phenomenon.[72]
By some metrics, these policies have been wildly successful: They have contributed to the modern state of surplus,[73] and current food production levels exceed total caloric need at the global level.[74] This surplus is often celebrated, and protected, for its effects on food prices.[75] At the same time, it is widely criticized as an example of the tendency toward overproduction in capitalist systems, which generates environmental burdens, health harms, and socioeconomic hardship.[76] Critics also emphasize the limits of common abundance metrics, which overlook inequity in access and distribution and the low‑quality of much of the food produced.[77] Here, I pick up on these threads of critique, focusing on the ways in which the politics of abundance interacts with and reinforce exploitive and extractive approaches to food production.
One relatively recent body of food law—food discard law—sheds light on the absurdity of this abundance paradigm, suggesting a shift from sufficiency to excess. Waste occurs at every stage in the food supply chain. Food waste presents a serious economic and environmental problem. On the front end, food that is ultimately wasted contributes to the overall environmental burden of food production, and on the back end, disposal of wasted food generates its own host of environmental harms, including, but not limited to, the production of large quantities of methane, a potent greenhouse gas.[78] Food waste policy is not specifically abundance‑promoting—seeking to generate new forms of abundance. Rather, it is abundance‑protecting—seeking to insulate existing abundance from regulation that might deplete it.
Food waste policy tends to emphasize redirection of waste from landfills rather than absolute reduction of waste. The advantage of waste reduction, as compared to other approaches, is that it is “the only option that saves natural resources from being used unnecessarily, whereas all other options respond to food waste after it has been produced.”[79] Although the EPA’s own “Food Waste Policy Scale” identifies “prevent[ing] wasted food,” defined as “produc[ing], buy[ing], and serv[ing] only what is needed,” as the “most preferred” approach, most food waste programs instead redirect waste from landfills and toward food donation and composting.[80] Popular food waste policies include curbside compost collection,[81] prohibition of organic wastes from landfills,[82] and tax incentives for food donation.[83] Indeed, much of the food discard debate has a moral valence. In the context of food insecurity and hunger, many advocates and commentators argue that wasted food should be redirected to hungry people.[84]
There are three primary barriers to a serious policy of food waste prevention. The first is ontological. The “food waste management hierarchy assumes materiality (the existence of something that might be waste), whereas prevention in its truest meaning, does not.”[85] Indeed, although the EPA’s Food Waste Policy Scale lists source reduction as the most preferred policy, the Scale itself was, for a long time, called the “Food Recovery Hierarchy,” suggesting that source reduction was never seriously part of the equation.[86] Underlying this definitional concern is the practical reality that a robust waste management industry has invested in food waste infrastructure and technology and thus reinforces that “food waste is framed and communicated as something to be managed rather than avoided at the source.”[87]
Indeed, food waste is big business. Repurposing of food waste for hunger relief has a long history in the United States. At the federal level, this policy approach dates to the New Deal, when Congress authorized the USDA to purchase surplus commodities in order to relieve economic hardship related to overproduction.[88] Congress then authorized this surplus to be redistributed for hunger relief.[89] Today, excess is redirected to the needy through two main channels: USDA commodity purchasing and private charity.[90] Before the Coronavirus (COVID‑19) pandemic, these networks served about 46 million people per year.[91] From the perspective of recipients of this aid, these programs are problematic because distributed food is often neither healthy nor culturally appropriate.[92] This type of food aid, while potentially immediately hunger‑relieving, also does little to alleviate the underlying poverty that causes hunger.[93] What this food aid does do, however, is create a massive food charity industry that is dependent on the continued existence of large quantities of food waste.[94]
The second barrier is both psychological and political: surplus is widely understood as a bulwark against the risk of scarcity.[95] The fear of scarcity thus creates incentives for overproduction at every stage in the supply chain, from consumers grocery shopping for the week to policymakers developing commodity subsidy programs.
The fear of foodborne illness is an important corollary, interacting with food‑waste policy in complicated ways. This fear often leads people to throw away food before it has spoiled, which generates additional waste.[96] It also drives widespread adherence to expiration date labeling schemes. A 2018 report from the Harvard Food Law and Policy Clinic and the Natural Resources Defense Council highlighted that the hodgepodge of conflicting state laws and lack of clarifying federal regulation create an environment in which expiration date labels are often meaningless and result in perfectly edible food being thrown away at all stages in the supply chain.[97] Surplus food creates a cushion, allowing people to justify throwing away food that presents even a very low risk of contamination. At the same time, surplus increases the prevalence of spoilage (in grocery stores, restaurants, and homes) due to excess perishable food not being used quickly enough.
The final barrier to food waste prevention is the politics and economics of abundance. Ultimately, food waste is a problem of overproduction, and “the rules, customs, actors, and signals that regulate societies are ill‑suited to preventing overproduction in the first place.”[98] Policies directly aimed at production reduction are anathema in the system, and while they garner some discussion in food discard academic circles, they get little serious attention from policymakers.[99] Indeed, geographer Joshua Lohnes characterizes food waste policy not as waste management but as food abundance regulation.[100] He characterizes food waste policy as a form of insurance for food industry against the risks of overproduction.[101] This framing suggests that the primary purpose of food waste law is not to reduce food waste. Nor is it to address hunger. Instead, food waste policy, and food charity policy in particular, “encloses food waste into non‑profit distribution channels that ensure donations do not disrupt the profit motives driving dominant agro‑industrial supply chains.”[102] More troublingly, he concludes, “charity decriminalizes excess by turning our moral gaze toward food poverty rather than on the political process involved in determining whom should have the right to control abundance in society.”[103]
Food waste policy, as abundance regulation, also sets parameters for the aesthetics of abundance. Throwing food away is a pure form of a waste for which Americans express a widespread distaste.[104] At the same time, however, there is widespread celebration of the kinds of food displays—buffets, grocery store cases, and so forth—that necessarily result in such waste. Against the backdrop of a suite of abundance‑promoting policies, the abundance‑protecting core of food waste law makes sense. Food waste policy that is aimed directly at source reduction would threaten the abundances of quantity, profit, and variety. Source reduction would undermine the economic interests of the food industry and the aesthetic and cultural interests of the populace in living within a cornucopia.
Food waste policy also illustrates the concentration of abundance. Large quantities of food lack eaters; just as large numbers of eaters lack food. Food waste policy seeks to resolve this contradiction simply by redirecting food, once it has reached the end of its market life, to charity. This “solution” dodges the more fundamental question as to why large numbers of people live in constructed scarcity in the first place.[105]
C. Wielding the Fear of Scarcity
Despite the current state of abundance, fear of scarcity continues to play a dominant role in both domestic and international policy discussions around food security. Pointing to population growth, climate change, plateauing technological development, and the diversion of food crops to biofuels and animal feed, commentators emphasize the continued need to increase food production. For instance, American environmentalist Lester Brown started his 2012 book Full Planet, Empty Plates with a dire warning: “The world is in a transition from an era of food abundance to one of scarcity.”[106] This genre of alarmist literature is compelling in part because these risks of future scarcity, particularly at the regional level, are quite real.[107] The genre is nevertheless dangerous for two interrelated reasons.
First, while scarcity commentators, such as Lester Brown, are acting on the altruistic motive of hunger prevention, they overlook the ways in which overemphasis on scarcity may be used to restrict food access. Restrictions on food access function as a form of artificial scarcity. As scholar David Lloyd has explained, “[t]he alibi of capital is scarcity; its myth is that of a primordial scarcity overcome only by labor regulated and disciplined by private ownership of the means of production.”[108] Lloyd takes up an inversion of the abundance/scarcity dichotomy discussed here. He argues that “neoliberal capital fears abundance” because it implies an end to capital.[109] The economic story is alluringly simple: if there is truly enough for all, there is no need for private ownership. Restricting access to resources (particularly land) through widespread privatization, a process commonly referred to as enclosure, cuts off access to the means of livelihood, thus generating not absolute scarcity but the experience of scarcity by less privileged individuals and communities. Proponents of capitalism then position privatization and commodification of food and food production resources as necessary to manage “scarcity” and prevent violence. Thus, widespread fear of scarcity can reinforce the very processes that are used to generate artificial scarcity in the first instance.[110]
Second, and relatedly, scarcity commentary is easily manipulated to lock in the abundance‑producing legal regimes of previous eras. The food and agriculture industry has long relied on the fear of scarcity as one of the weapons in its antiregulatory arsenal. Focusing on the argument that regulation will drive up production costs and make food more expensive and less available to average Americans, the food industry resists efforts to enact and implement the kinds of environmental laws and labor laws that have been possible in other industries.[111]
Although this rhetoric is often employed in subtle ways, it occasionally appears overt. A few examples, explored in the remainder of this Section, illustrate this phenomenon and the scope of its impact on the U.S. food system and the humans and animals within it. The first example, taken from the recent response to the COVID‑19 pandemic, illustrates the effects of scarcity rhetoric on food system workers. The second demonstrates the effects on animals in the food supply chain. The final example considers the environmental consequences of scarcity rhetoric. In each of these examples, advocates and policy‑makers employ scarcity rhetoric to justify (or promote) policies that make food system participants worse off. As I have argued elsewhere, sacrificing these participants in the name of increased food production is problematic.[112] This mode of policymaking prioritizes abundance—narrowly focused on food itself—over nourishment.
1. Scarcity and Workers
Food and agriculture workers are regularly excluded from the kinds of labor protections that workers in other industries enjoy.[113] Many of these exclusions have explicitly racist origins.[114] Operating in conjunction with a variety of other discriminatory legal regimes—including the immigration system and USDA land access programs—these exclusions continue to entrench racial hierarchies in the food system.[115]
Fear of scarcity is regularly exploited as a rhetorical tool to resist protections for food system workers. A recent example illustrates this phenomenon. In April 2020, Tyson Foods, one of the world’s largest meatpackers, published an open letter in The New York Times, threatening the public about the potential consequences of imposing public health regulations, designed to stop the spread of COVID‑19 and protect their workers, on their facilities. “In small communities around the country where we employ over 100,000 hard‑working men and women, we’re being forced to shutter our doors. This means one thing—the food supply chain is vulnerable . . . millions of pounds of meat will disappear from the supply chain.”[116] President Trump responded shortly thereafter with an executive order, recognizing that “processors of beef, pork and poultry, [must] continue operating and fulfilling orders to ensure a continued supply of protein for Americans,” lamenting that state and local government public health actions have caused closures of some large meatpacking facilities and expressing concern that “[s]uch closures threaten the continued functioning of the national meat and poultry supply chain.”[117] A ProPublica investigation, published the following September, revealed the significant role that meatpacking lobbyists played in drafting the order.[118]
The Tyson letter is consistent with decades of food system labor policies that sacrifice food system laborers in the name of quantity abundance.[119] The letter claims to be speaking in the interest of Tyson employees, the “100,000 hard‑working men and women” who, presumably, want to continue working despite the risks of COVID‑19.[120] This workforce was, however, ravaged by the virus and were as much as seventy times more likely to contract the virus than the general population.[121] The workforce is also predominantly people of color and includes a significant percentage of recent immigrants.[122] The expressed concern for worker well‑being is belied by the overwhelming evidence that meatpacking facilities took inadequate steps to prevent the spread of the virus among their workers.[123] The letter deflects Tyson’s responsibility for workplace conditions and instead suggests that any effort to close plants in crisis will be to the detriment of workers, who will lose wages, and consumers, who will face a meat shortage.
Many opponents of worker protections also frame the debate in terms of the viability of rural farm economies. Arguing that worker protections will drive up domestic labor costs, these opponents point to concerns that increasing costs will disadvantage domestically produced foods and favor imports from countries with fewer labor protections.[124] A recent amendment to the H2‑A agricultural guest worker program illustrates this phenomenon. A House Report explaining the amendments, which limit wage increases, cites the worry that a shift in the import/export balance would result in greater food price fluctuations and undermine the U.S. farm economy.[125] This framing emphasizes profit abundance, situating agriculture as an economic driver, an important employer, and the lifeblood of rural life.
In these examples, fear of scarcity serves two rhetorical roles. First, it deflects attention away from working conditions and employer culpability for those conditions by focusing on the consumer experience: How much food is on the shelves? How much does it cost? Second, it deflects attention away from working conditions by stoking fears about lost wages. Both strategies set up worker safety as a tertiary priority that cannot be achieved without significant cost to higher priority interests.
2. Scarcity and Animals
Animals, like food system workers, are subject to widespread exploitation in food production. Farm animals are excluded from most animal welfare laws.[126] Lawmakers typically offer two explanations for this exclusion, both of which relate to fear of scarcity. The first is cost: Improving animal welfare in food production would be too costly, reducing production levels, which would have repercussions for employees in animal agriculture and consumers.[127] The second is lack of need: farmers need not be regulated because a healthy, happy herd is integral to maximizing production levels.[128] In other words, the antiregulatory argument is that regulation is unnecessary because farmers already have a financial incentive to ensure animal welfare.
Scarcity fear rhetoric has played a starring role in recent fights about state animal welfare laws. Several states, most prominently California, have passed laws aimed at curbing some of the abusive practices of modern animal agriculture.[129] For instance, one recent California law, passed by voter referendum, prohibits the sale of pork that was raised with the use of gestation crates. The law allows the sale only of pork raised with at least twenty‑four square feet of space per gestating sow.[130] Industry participants challenging this law on dormant commerce clause grounds framed their legal arguments in the context of capacity for production. They argued that without practices such as restrictive gestation crates they cannot meet demand at reasonable prices, thus raising the specter of rising pork prices and declining availability.[131] The Supreme Court rejected the challenge, but its decision, which downplays the economic effects of the regulation on the pork industry, begins with an exaltation of consumer choice:
Modern American grocery stores offer a dizzying array of choice. Often, consumers may choose among eggs that are large, medium, or small; eggs that are white, brown, or some other color; eggs from cage‑free chickens or ones raised consistent with organic farming standards. When it comes to meat and fish, the options are no less plentiful. Products may be marketed as free range, wild caught, or graded by quality (prime, choice, select, and beyond). The pork products at issue here, too, sometimes come with “antibiotic‑free” and “crate‑free” labels. [132]
The majority opinion frames the regulation as the expression of consumer preference, as exercised through California’s voter referendum system. The decision to uphold the law thus protects California’s animal welfare regulation not on the strength of the animal welfare interest, but instead to preserve choice abundance for Californians. In this example, production or quantity abundance, which the dissent champions, is subsidiary to another metric of abundance, which wins out.
In response to this and similar laws, regulatory animal agriculture, two states have enacted (and others have tried to enact) state constitutional “right to farm” amendments.[133] These amendments aim, at least in part, to prevent state legislatures from regulating agricultural production.[134] Explaining such a proposal in Oklahoma, then American Farm Bureau Federation (“Farm Bureau”) president Tom Buchanan asserted that the amendment would protect “consumers as they stand the most to gain from a safe, secure, and affordable food supply.”[135]
In 2023, the Biden Administration promulgated rules to strengthen animal welfare requirements for USDA certified organic operations.[136] Opponents of the rule emphasized its potential costs for the industry and its consequences for fragile supply chains and overall levels of production.[137] The new rule includes requirements related to living conditions, medical procedures, transportation, and slaughter for organic animals.[138] In the preamble to the final rule, USDA’s agricultural marketing service clarifies that animal welfare is not in fact the purpose of the rule. Instead, although “[s]ome of the provisions of the rule may improve animal welfare, . . . USDA’s primary objective is to clarify requirements for products sold as ‘organic.’”[139] The benefits of the rule include “reduce[d] information asymmetries between producers and consumers,” “add[ed] value to organic products,” and “reduce[d] risk to the integrity of the organic label.”[140] Again, this rare federal law victory for animal welfare is achieved by prioritizing consumer protection and consumer choice—that is, choice abundance—over the straightforward quantity abundance that flows from keeping production costs low.
3. Scarcity and the Environment
A final, older, example illustrates the broad reach of scarcity rhetoric and the extent to which it shapes food production. In 1996, Congress passed the Food Quality Protection Act (FQPA), amending the Federal Food, Drug and Cosmetic Act.[141] The statute relaxed the standard that applies to evaluation of pesticide residues present in food.
The original “Delaney Clause,” enacted in 1958, prohibited carcinogenic additives in processed foods.[142] After the EPA attempted to carve out a de minimis exception for cancer‑inducing pesticide residues, a court stepped in to enforce the Delaney Clause’s absolute language.[143] Following the decision, the agency announced that it would reconsider registration of thirty‑six widely used pesticides, but the agency expressed concern that limitations on these pesticides would affect food prices.[144] At the urging of agro‑chemical manufacturers, Congress stepped in. The FQPA reflected a legislative compromise between agro‑chemical and environmental interests, relaxing the Delaney Clause but ramping up protections for infants and children.[145] Under the new standard, pesticides present in processed food are subject to a “negligible risk” standard rather than a zero‑risk standard.[146] The law received unanimous support in Congress.[147]
Fear of scarcity plays a key role in the FQPA’s legislative history. Food industry representatives testified before Congress that the older standard was not scientifically justified and was standing in the way of an “affordable and abundant food supply for consumers.”[148] According to one commentator, Congress concluded that “the continued use of the Delaney Clause would hamper the ability of farmers to meet the demands of America’s fast‑growing population without the use of pesticides that pose a negligible risk.”[149]
Environmental law scarcely applies to food production.[150] By way of explanation, environmental law scholar J.B. Ruhl points to the political power of agricultural interests, particularly industry trade groups that regularly lobby congress, intervene in litigation, and comment before the USDA.[151] One such group, the Farm Bureau, positions itself as a “national advocate for farmers, ranchers and rural communities.”[152] In an amicus brief filed in Sackett v. EPA, the Farm Bureau voices support for narrowing federal jurisdiction over water resources.[153] The brief expresses concern that a broader federal water regulation apparatus will require farmers to “seek the permission of federal bureaucrats, at substantial cost of time and money . . . [for] [m]any, if not most, routine farm operations.”[154] After running through the potential costs of federal permit applications, the brief concludes with the concern that federal regulators will be able to “effectively dictate to farmers and ranchers which crops can be grown, what animals can be raised, and in what location and in what quantity.”[155] The implication is that broad federal power is a threat to production.
Abundance—this time, abundance of farms and variation in farm landscapes—plays at least one other role in constraining environmental regulation of food production. Narrowing applicability of the Clean Water Act to farms, regulators argued that farms were too numerous and varied to be subject to workable regulation.[156] In other words, abundance made the work of regulators too hard to undertake at all. A court rejected this rationale, concluding that the statute required regulation and the agency could not abdicate its role because the work was too hard.[157] Congress stepped in, codifying the agency’s original approach.[158]
* * *
In each of these areas, advocates and politicians invoke potential scarcity and related increased food costs to justify resistance to regulation. Thus, scarcity serves at least three related functions. First, scarcity is an economic warning bell. Surplus keeps food cheap and any policy that increases production costs threatens food prices—this is a story that draws common ground between food industry lobbyists and antipoverty advocates. Second, it plays to a deeper fear of actual scarcity. Third, it recognizes that fear of scarcity operates in conjunction with the pursuit of abundance. Where regulation is successful, as in the animal welfare examples, advocates often emphasize consumer choice to counter concerns about supply chain disruption. Thus, they frame the debate as abundance versus abundance rather than animal welfare versus abundance. Although the abundance/scarcity framework is not the only (and may not even be the core) driver of these policies, this theme remains a central feature of the political dialogue.
II. The Long Shadow of Abundance: Pursuing Thinness and Health
Just as abundance/scarcity politics constrain the landscape of viable solutions to the environmental and human rights harms of food production, they also constrain our capacity to imagine and implement alternative food consumption landscapes. The previous Part examined how abundance/scarcity politics help to lock in overproduction that comes at great cost for food system workers, animals raised as food, and the environment. This Part shifts to questions of food consumption, asking how the politics of abundance/scarcity feed into and affect how we cope with two other food pursuits—thinness and health—and their inverse fears—fatness and illness. It argues that both of these pursuits exist in the shadow of the politics of abundance. The discussion explores the ways in which the abundance paradigm limits fatness and illness legal regimes and the ways in which those regimes are designed to pursue and protect abundance.
Beginning with the thinness/fatness pair, this Part explores how fear of fat looms in U.S. food and health law. It argues that protection of food quantity and choice abundance limits the range of legal options available to respond to the perceived fatness crisis. It also engages critically with the perceived crisis, exploring the ways in which the crisis framing—and its constitutive medicalization of fatness as “obesity”—deflect meaningful attention away from the realities of excess and scarcity in the food system. Next, it considers the health/illness pair. Although fear of fatness is often described in health terms, pursuit of health requires attention as a broader pursuit in its own right. Here, again, the primary legal regimes addressing the relationship between food and health are abundance‑promoting, emphasizing information and choice abundance. More recently, however, a new type of program, “food as medicine,” has emerged and it is entirely abundance‑defeating on the individual level.
A. Obsession: Thinness; Fear: Fatness
It hardly requires a footnote to support the fact that body size remains an American obsession. I am interested not in documenting this phenomenon, but in exploring the ways in which the phenomenon emerges in food law. In particular, I explore here how the abundance paradigm limits the ways in which U.S. food law responds to collective body size obsessions and fears.
The following discussion explores how both obsession with thinness and fear of fat manifest in food law. It begins by considering the absence of robust legal intervention. Considering a series of proposed reforms—restrictions on “addictive” or “obesogenic” food additives, constraints on marketing to children, and portion limits—I argue that these kinds of reforms fail for two reasons. First, they contradict the widely accepted view of fatness as moral failure. Because these interventions accept external causes of fatness, they are inconsistent with a narrative of individual responsibility. Second, they each, in different ways, threaten the politics of abundance.
The discussion then turns to medicalization of fatness and resulting legal regimes including health insurance law. This body of law reflects tension between the personal failing narrative and emerging science suggesting that most individuals have very little control over their body size. Despite this science, legal frameworks continue to demonize fat people, frequently limiting legal protections only to those fat people for whom obesity is a “comorbidity.”[159]
But first, I want to discuss the meaning of thinness and fatness. In many contexts, thinness confers social capital. Thinness often signifies social, political, and economic inclusion.[160] “As a politic, thinness is a system that seeks to subjugate and ultimately eradicate fatness and fat people.”[161] Indeed, in addition to shaming and other forms of verbal abuse, fat people are often subject to physical violence (both sexual and otherwise) as a result of their size.[162] This includes both the immediate violence of assault and the “slow violence” of cultures and physical environments that are fat intolerant.[163]
Exaltation of thinness is constituted through fear of fat. Fear of fat has two important manifestations. One relates to fat bodies. Fear and condemnation reflect that “being overweight is seen as a violation of traditional American values such as moral character, hard work, and self‑discipline[;] the fat person is not merely a defective individual, but a bad citizen.”[164] Social scientists have also argued that fear of fat bodies is constructed as a mechanism to reinforce social hierarchy. The thinness/fatness obsession is highly gendered and racialized. Sociologist Sabrina Strings traces modern standards of thin female beauty in the United States to a nineteenth century racial hierarchies and eugenic literature establishing thinness as a form of White American exceptionalism.[165] At the same time, Black women are remarkably absent from modern narratives about disordered eating. They are a “constitutive absence,” as narratives of Black women’s appetites serve as a backdrop for narratives of middle‑class White women striving to be thin.[166] Fear of fat bodies thus serves as a mechanism to justify anti‑Black bias.[167] Similarly, fatness is also widely viewed as a marker of poverty, and anti‑fat bias functions as a mechanism of class stratification.[168]
The other manifestation relates to dietary fats. Referred to as “lipophobia,” this latter fear emerged in the late 1950s in response to nascent research on heart disease.[169] This second manifestation of the fear of fat helps to provide a legitimate policy gloss to the first. If fat is dangerous, condemnation of fat people is justified. Doubleday, the publisher of one early dietary advice book, Eat Well and Stay Well, that embraced this science, promoted the book with an advertising campaign that asked: “Will you commit suicide this year?” suggesting that death related to poor diet constituted suicide.[170] Lipophobia draws together the health and body image threads, not just because the same word—fat—is used in both contexts, but also because it attributes the two phenomena—fatness and heart disease—to the same cause—consumption of large quantities of saturated fats. Ancel Keys, a physiologist and early proponent of lipophobia, rejected the theory that fatness itself was the cause of heart disease.[171] He professed to find fat people “disgusting” but argued that fatness was “implicated in heart disease only to the extent that fat people tend to eat more fats.”[172] This nuance has mostly been lost in modern dialogues on the relationship between fatness and illness. Keys’ work, which was picked up by the American Heart Association and later researchers, never generated conclusive evidence linking fat consumption to blood cholesterol levels or, ultimately, to heart disease.[173] But it did find its way into federal dietary guidance and law, beginning with a 1977 report, Dietary Goals for Americans, published by the Senate Committee on Nutrition.[174] More recently, in 2012, the USDA, which establishes nutrition guidelines for school lunches, banned the service of full‑fat milk.[175]
1. Absence: Fatness in a World of Abundance
What is perhaps most remarkable about federal obesity law is its absence. Despite widespread agreement that obesity is a problem to be solved (a premise that this Article does not accept),[176] federal anti‑obesity law fails to undertake a variety of common‑sense measures. This failure follows, at least in part, from the politics of abundance.[177] Moral condemnation of obesity is reserved primarily for fat people and rarely directed at the abundance around them. Federal “obesity” policy is directed almost entirely at the individual choices of fat people.
A growing body of research suggests that diet and body size are functions of a complex interplay of structural, environmental, and physiological factors. Nevertheless, obesity policy remains driven by narratives of personal responsibility.[178] Specifically, federal policy focuses primarily on facilitating exercise of individual responsibility through information disclosure and consumer education programs.[179] These education programs tend to steer clear of overt messaging to eat less and instead emphasize the costs and benefits of different dietary components.[180] The 2010 Dietary Guidelines for Americans acknowledge that “obesogenic environments” can contribute to body size increases by “promot[ing] overconsumption of calories and discourage[ing] physical activity,” but the vast majority of the recommendations and the educational materials based on the guidelines target individual behavioral change.[181] “Ultimately,” the report concludes, “individuals choose the type and amount of food they eat.”[182]
But legal tools aimed at reducing availability of abundant, nutrient‑poor food are rarely implemented.[183] The role of food industry lobbying goes a long way toward explaining this phenomenon.[184] Lobbying, and its success, must also be understood against the backdrop of the politics of abundance. Abundance narratives limit the range of policy responses available to the putative “crisis” of obesity. This is true regardless of whether we take the crisis on its own terms, as a crisis of overweight people, or whether we redirect the conversation to the problem of over availability of inexpensive nutrient poor and obesogenic calories.[185]
This Section explores a variety of arenas where academic research suggests that policy interventions might be helpful but have not come to fruition.[186] In each of these contexts, abundance politics has played a role in hampering regulatory efforts. Just as policy solutions targeting food production levels are disfavored, so are policy solutions targeting the ways that food is produced and marketed. In some of these examples, the rhetoric of abundance is explicitly present in the policy dialogue. In other cases, the well‑organized vested interests surrounding abundance formulate antiregulatory arguments that successfully center debate on anything other than abundance itself. These arguments often include invocation of an important corollary to abundance: job creation in the food sector.
a. “Addictive” Foods
In recent years, many nutritionists and policy advocates have identified quasi‑addictive foods as a problem. Investigative reports have revealed the efforts of food manufacturers to use the right combinations of sugar, fat, salt, and flavor additives to keep people eating past the point of feeling full.[187] Armed with this data, some advocates and policymakers have attempted to adopt the model of the anti-tobacco movement, targeting addictive foods with dire warning labels, taxes, and tort litigation.[188] This analogy has, at least thus far, failed.
The recent history of litigation on the anti-tobacco model illustrates both the legal limits of the analogy and the stickiness of anti‑fat sentiments. Litigation on the anti-tobacco model has been unsuccessful in large part because of the difficulty of drawing causal connections between consumption of particular foods and any specific health problem.[189] The leading suit, Pelman v. McDonald’s, was dismissed in part on this ground.[190]
Despite this failure, some lawmakers sought to cut off this potential avenue of attack against the food industry. The legislative response demonstrates the politics of abundance in action. A “Cheeseburger Bill” passed by the United States House of Representatives (but not by the Senate) sought to protect the economic scope of food production: The Judiciary Committee report noted that the food industry is “the nation’s leading private sector employer,” and that the bill would “protect the largest employers in the United States from financial ruin in the face of frivolous liability claims related to obesity.”[191] The report expresses concern that litigation against companies providing foods that contribute to obesity could reach “every food company in the country.”[192] The report authors are thus concerned with profit abundance and with potential regulation that might undermine those profits.
The report also engages in the politics of abundance in another way. Although it does not expressly discuss food quantity abundance, it condemns litigation premised on the claim that the excess of cheap, low‑quality, and potentially addictive food is poisonous. Instead of acknowledging this claim, the report redirects obesity response away from food entirely. “H.R. 339,” the committee explains, “will encourage society to focus on the true cause of obesity: a lack of exercise.”[193] Of course, many health experts do identify increased sedentariness as a cause of increased weight, but this emphasis ignores data included within the report itself about shifting American diets and increased food portions.[194] Instead, lawmakers moved to insulate food manufacturers from liability for the health effects of poor diets on the ground that only eaters bear responsibility for their bodies and their health.
Perhaps at the core of this failure is a key distinction between antismoking politics and obesity politics.[195] As Cat Pausé observes, with smoking, the target was the object (cigarettes), the behavior (smoking), and the ultimate baddies (tobacco companies).[196] These companies were easily vilified in large part because of revelations about what they understood about addiction and the health effects of smoking. Those actually engaging in the behavior were themselves victims. With food consumption, although some evidence suggests that food manufacturers are intentionally manipulating individual consumption patterns through food formulation—that is, the recipe—campaign rhetoric remains focused on fatness itself and the choices of fat people rather than on the efforts of food manufacturers and marketers.[197]
b. Marketing to Children
Another area that policymakers have identified as “low hanging fruit” for improving dietary patterns is marketing to children. In its guidance on reducing noncommunicable diseases, the World Health Organization identifies marketing of food to children as a primary target of regulation.[198] Many countries around the world have adopted policies curtailing marketing of unhealthy foods to children.[199] For instance, Chile recently imposed strict regulation on the use of cartoon characters in the marketing of foods with excess fat, sugar, and salt.[200] Advertising to kids is widely understood to contribute to poor food related health outcomes and to obesity.[201] In the United States, food marketing to children is almost entirely unregulated.[202] With no meaningful restrictions on advertising, children are saturated with pro‑consumption messaging.
Although many have argued that the Federal Trade Commission (FTC) has both the statutory and constitutional authority to regulate this advertising, the agency’s only serious attempt to do so failed.[203] The 1978 rulemaking was aggressive, proposing a ban on all advertising in programming for children under six or seven, a ban on advertising of highly sugared products for kids aged seven to eleven, and a requirement for a disclaimer or counter‑advertising in sugared product advertising to older kids.[204] The industry response to the FTC’s Notice of Proposed Rulemaking was so effective that Congress stepped in to narrow the agency’s power and restrict its future ability to protect children in particular from unfair advertising.[205] According to the FTC attorney who oversaw the rulemaking proceeding, the agency’s effort failed for a variety of political reasons.[206] One of those reasons was its breadth:
We probably should not have bundled all these remedies into one proceeding, because that flushed out and organized every potential opponent, who then banded together with other opponents, raised money, and fought the rulemaking. It would’ve been better if we had gone remedy by remedy instead of lumping them together into one document. As a result, we were opposed by the cereal industry, the sugar industry, the candy industry, the toy industry and the broadcast industry. The farmers were against us because they were raising wheat that was being used in sugared cereals.[207]
A Washington Post op‑ed criticized the FTC for attempting to be the “national nanny.”[208] This characterization, which emphasizes parental freedom (and responsibility) to supervise their children’s advertising intake, suggests a new untouchable vector of abundance for food producers: food speech.[209] Food producers should be unconstrained in their speech because setting limits for children is the sole domain of parents. Abundance of food speech thus purportedly serves abundance of food choice. As a practical matter, however, food marketing constrains choice by influencing how it is exercised.
More recent efforts to constrain speech have met with similar hostility. For instance, after some localities implemented “happy meal” laws that prohibit marketing of certain unhealthy foods with toys, two states, Florida and Arizona, went so far as to enact statewide preemption of such laws.[210] Other states and localities tried and failed to enact similar bans, and reporting suggests that the fast‑food industry has been a critical player in these legislative debates by lobbying against passage.[211]
c. Portions and Exercise
Public health experts agree that a series of commonsense measures targeting food and physical environments could have dramatic benefits for public health by reducing overconsumption and increasing opportunities for exercise. These potential measures include changes to physical infrastructure, such as adding sidewalks and bike lanes, and changes to food infrastructure, such as removing or changing the contents of vending machines in public schools or regulating portion sizes in restaurants.[212] Despite experimentation with these kinds of reforms, none have been implemented on a broad scale. Roadblocks to adoption include state preemption laws, successful litigation, and well‑organized food‑industry‑funded advocacy. The fight over New York City’s soda portion control policy illustrates this phenomenon.
In 2012, the New York City Board of Health voted to implement the “Portion Cap Rule,” which would restrict the size of containers for sale of sugar‑sweetened beverages in certain food service establishments.[213] The Rule was ultimately struck down by the New York Court of Appeals on the ground that the New York Board of Health had exceeded its authority.[214] The Court observed that the policy “implied a relative valuing of health considerations and economic ends” and “value judgments . . . reserved to the legislative branch.”[215] The Court’s characterization of the policy as a value judgment, rather than as the result of the scientific assessment of the New York Board of Health, reflects the success of advocacy efforts by the soda and sugar industries to characterize the city’s actions as inappropriate intrusions into the private lives of New Yorkers.[216] The policy, which was itself designed to be less invasive than an outright ban on soda, proved to be too controversial.
* * *
These commonsense policies, which target a variety of aspects of food environments—food ingredients, marketing to children, and food portions—have failed in mainstream policy contexts. In each case, that failure reflects a concerted effort to keep the conversation (and the law) focused on fat people and their choices (or, in some cases, their parents’ choices). The absence of these policies reflects widespread belief in personal responsibility that is reinforced by the marketing and lobbying efforts of both the food and diet industries.[217] It also reflects the politics of abundance. Directing attention toward individual behavior means directing it away from the cheap abundance of nutritionally poor foods and food marketing. Regulations cannot target overconsumption head on because doing so would disrupt the more is better narrative on which U.S. food policy is built.
2. Presence: Medicalizing Fatness as “Obesity”
Against the backdrop of the absence of a comprehensive body of law addressing the underlying causes of fatness is the stark inclusion of fatness among lists of health problems to be eliminated. Indeed, fatness has long been treated as a medical issue.[218] This Section considers the legal implications of medicalization, focusing on insurance laws. It argues that medicalization masks what is ultimately a moral and aesthetic concern under the guise of public health, focusing attention on individual “patients” and away from the abundance in which they live. This discussion uses “fat” and “fatness” as a neutral body size descriptor, “obesity” as a medical diagnosis,[219] and “diet‑related disease” as a broader category of illness that can be caused, at least in part, by diet.
a. Treating Obesity
Medicalization protects abundance because the medical sphere focuses debate on cures and individual bodies (patients in conversation with doctors) and away from the structural and environmental variables that shape food consumption. On the one hand, medicalizing fatness as obesity generates some legal protections through mandated insurance coverage of some medical treatments. Likewise, characterization of fatness as “disability” affords fat people some limited legal avenues to combat body size discrimination.[220] These legal benefits can help individual people.[221] On the other hand, medicalization comes at great cost. Fatness does not fit neatly into either disability or illness. This narrow medical lens channels anti‑fat bias into the expert context, categorizing fatness as abnormal and exacerbating potential for fat stigma and shaming.[222] Medicalization of fatness thus risks compounding the very stigma that generates discrimination in the first instance. In her foreward to the groundbreaking 2009 Fat Studies Reader, fat activist Marilyn Wann explains that “[c]alling fat people ‘obese’ medicalizes human diversity.”[223] Far from being a neutral medical term, as it is so often presented, the term is instead “fuel” for “anti‑fat prejudice.”[224] “Medicalization,” she argues, “actually helps categorize fat people as social untouchables.”[225]
Importantly, medicalization also shifts focus from the abundance‑protecting frameworks that underly long‑term upward shifts in body size. The tendency among doctors and policymakers to blame fat people shapes both medical treatment and policy environments. As one legal scholar summed up the issue, “[t]here has been, and continues to be, a debate over whether obesity is a disease or a lifestyle choice.”[226] Medicalization tends to rest on an understanding of obesity as a function of energy imbalance—too much intake relative to expenditure (exercise).[227] Accordingly, medical responses focus on how to encourage individuals to eat less and exercise more.[228]
Much of the fat policy debate thus takes place in the context of health law, focusing on “obesity” cures. In this realm, fatness is a diagnosable medical condition: obesity.[229] The “curing law” of fatness[230] therefore seeks to treat obesity by altering the individual behavior of obese people. Increasingly, cure policy also acknowledges some physiological and genetic obesity causes, and the treatment arsenal includes a broad range of medical interventions targeting these features.[231] The arsenal remains oriented around individual fat bodies, and legal regimes governing treatment begin with consumption rather than looking at the entire obesogenic environment.
Federal obesity law targets fat people for behavioral change and directs medical treatment. Federal obesity policies related to behavioral change include: facilitating insurance company sponsored “wellness” programs through which employers encourage exercise and diet changes,[232] promoting access to nutritious foods,[233] and information disclosure requirements that target individual decision‑making.[234] As legal scholar Lindsay Wiley has observed, the “emerging law of obesity control” also relies on the strategy of shaming fat people.[235] For instance, some states require schools to measure student body mass index and include this number in reports sent to parents.[236] Describing anti‑obesity public health campaigns, fat studies scholar Cat Pausé has observed the role of fear of fatness; some campaigns use “graphic imagery to produce fear and disgust in order to provoke behavioral change.”[237]
Obesity fears also play out in insurance law. Although there has been some movement toward mandating insurance coverage for medical treatment of obesity, the move is incomplete.[238] Insurance laws typically mandate treatment only when a medical professional determines that weight loss for an individual fat person is medically necessary to address some other physical condition.[239] Private insurers typically cover weight‑loss treatments only when they are deemed medically necessary.[240] Weight loss in and of itself is considered cosmetic.[241] Some companies have adopted categorical rules for determining the necessity of weight‑loss surgery.[242] This gap between medical narratives and medical laws “expose[s] a social tension between a quest to medicate illness and a stigmatizing belief that obese people lack sufficient willpower to lose weight.”[243]
In other words, although doctors diagnose obesity and identify it as a diet‑related disease, health care law and health insurance companies consider obesity treatment as vanity unless the treatment is intended to address a related health issue.[244] This discordance places fat people in a precarious position. On the one hand, their fatness is a diagnosable medical condition, undesirable and dangerous. On the other hand, they are routinely denied access to available “treatment” and shamed for their condition.
In recent years, insurance regimes have begun to shift. The Affordable Care Act mandates coverage for screening and health assessments,[245] and a number of states require coverage for nutritional counseling and behavioral programs.[246] Over the last twenty years, insurance coverage for weight‑loss surgeries has vastly expanded.[247] Some individuals have been successful in getting workers compensation coverage for bariatric surgery where that surgery was done to increase the success of other medical treatment related to a workplace injury (for instance, knee surgery).[248] Coverage for weight‑loss drugs remains more limited.[249]
The recent emergence of a new class of weight‑loss drugs such as Ozempic has brought this issue into the public spotlight. Ozempic and similar drugs are semaglutide injections that were developed to treat diabetes and are, at least potentially, highly effective in achieving weight loss.[250] Intense demand for these drugs has put pressure on insurance companies to expand coverage.[251] Some scholars have expressed concerns that the availability of these drugs will increase anti‑fat bias by reinforcing public perceptions that being fat is a lifestyle choice; that is, the choice not to take a semaglutide drug.[252] Others have expressed concern that the high cost of these drugs, coupled with limited insurance coverage, means that low income people will have less access.[253] Such a dynamic reinforces the role of fatness as a class sorting mechanism.[254]
Medicalization of obesity also has collateral consequences for the health of fat people seeking medical care. Because many medical professionals readily attribute symptoms to fatness, many fat people experience poor treatment and missed diagnoses.[255] Women, particularly women of color, are most often subject to this particular variety of anti‑fat discrimination.[256] It is one of many causes of the United States’ embarrassingly and tragically high level of maternal mortality.[257] This critique suggests that the medicalization of obesity, and thus the willingness of doctors to attribute a wide range of symptoms to the condition of fatness, is actually a barrier to more effective medical care.
The fundamental failure of the curing law of fatness is that it focuses attention on one manifestation of a deeper structural problem. It also erases the possibility that obesity may simply be fatness, only a problem within prevalent moral and aesthetic frameworks.[258] The various medical problems it is frequently associated with, such as diabetes and heart disease, are concerns in their own right. In addition, they can often be attributed directly to the same factors that cause obesity: overconsumption, sedentary lifestyles, and obesogenic environments. In these environments, people face a constructed scarcity of nourishing food choices.[259] Attention to obesity, however, focuses medical responses on fat people and their personal choices and away from the various structural factors that contribute to these three causes.[260] As discussed above, legal regimes do little to respond to those structural causes.[261]
Ultimately, medicalization is a misdirection, focusing doctors, policymakers, and public dialogue on fat people. This framework insulates the underlying abundance of food quantity and protects freedom (abundance) of choice. Instead, individual fat people receive directions from doctors to diet and exercise, and in some cases, to take medication or undergo surgery that insurance may not cover.
b. Disentangling Fatness and Health: Quotidian Obesity
In the late 1990s, when the United States declared a “war on fat,” terms such as “fat” and “obesity” dominated the political discourse. In health law, fat people are, for the most part, granted some legal protections only when their fatness is connected to another medical condition. These obesity‑as‑comorbidity legal narratives suggest that obesity itself merits legal responses only to the extent that it causes (or, sometimes, is caused by) other medical conditions.
In recent years, in part as a result of the work of fat studies critical scholars, the political discourse has shifted to some extent. Recognizing the mental health risks of stigmatizing fat bodies,[262] the complex relationships between body size and health, and the embedded racial bias of our most common metric for fatness—body mass index—scholars and policymakers alike have shifted emphasis from obesity to diet‑related disease.[263]
A review of the Dietary Guidelines for Americans over time illustrates this shift. The 2010 guidelines discussed the “epidemic of overweight and obesity”[264] and framed the bulk of its recommendations in response to this epidemic. The 2010 guidelines mentioned obesity fifty‑three times and diet‑related chronic disease only twice.[265] The most recent guidelines continue to list obesity as a diet‑related disease but focuses on the latter, and observes that “diet‑related chronic diseases . . . are very prevalent among Americans and pose a major public health problem.”[266] The report notes that “[a] fundamental premise of the [guidelines] is that just about everyone, no matter their health status, can benefit from shifting food and beverage choices to better support healthy dietary patterns.”[267]
Despite this shift, obesity remains on the political agenda. For instance, the Congressional Research Service (CRS) published two reports—in 2014 and in 2020—discussing the effects of obesity.[268] Both Health and Human Services and the Centers for Disease Control dedicate portions of their websites to combatting obesity as a “health condition.”[269] Legislators have also lagged in shifting to discussing diet‑related diseases. In 2021 and 2022, a number of federal bills were introduced that explicitly target obesity.[270]
Obesity is a powerful political force. Its persistence, despite the push to center the discourse around diet‑related disease, suggests that the power of anti‑fat bias shapes obesity law in profound ways that have little to do with health. Thus, despite the broad push to classify obesity itself as a disease, it remains, at least to some extent, a derogatory descriptor. A recent series of court responses to inmate requests for compassionate release demonstrate this phenomenon. For instance, in May 2020, James Ethan Shelton filed a motion requesting compassionate release from FCI Oakdale II, a federal prison in Oakdale, Louisiana.[271] Shelton argued that because of his morbid obesity, he was at greater risk of complications or death from COVID‑19.[272] Federal law provides for compassionate release under “extraordinary and compelling” circumstances.[273] The court denied the motion, concluding that “the sheer prevalence of these conditions both inside and outside prison do not render them unordinary.”[274] Fatness, in other words, is too common to constitute an extraordinary circumstance.
Fatness thus forms its own category of abundance. The proliferation of fat bodies is merely another visual and physiological expression of modern American abundance.[275] Geographer and critical food scholar Julie Guthman describes a circular system: cheap food is a labor subsidy, propping up low wages.[276] Federally supported food charity programs, reliant on surplus production, replace expensive social welfare programs, keeping healthy food unaffordable for large numbers of people.[277] Fatness follows. And then it provides another opportunity for market expansion—for drugs, surgeries, gyms, wellness coaches, and so forth.[278] Just as source reduction is not a viable solution to food waste,[279] regulation of obesogenic foods and environments is not a viable solution to the growth of American bodies. In sum, policy conversations about fatness focus almost entirely around promoting weight loss, a multibillion‑dollar industry whose existence keeps focus on fat people, their choices, and their market participation.
Despite significant rhetoric and investment in research, three things remain true: first, the diet failure rate stands at over 90 percent.[280] Dieting is often a self‑defeating activity. The decision to restrict food intake can lead to “a focus on food and eating” that undermines efforts to reduce intake.[281] Second, losing weight often does not actually improve other health metrics; and third, weight‑loss practices themselves generate often significant health risks.[282] Weight‑loss policy frames the issue as one of individual responsibility to shed pounds against a backdrop of quantity and choice abundance. Policy conversations about the role of abundance in promoting unhealthy eating remain peripheral and have made few inroads into mainstream politics.
More fundamentally, collapsing fears of fatness and fears of illness into a single category risks legitimizing fears of fatness through a medical lens and losing sight of the extent to which “fatness is not primarily about health; . . . it is about morality and political inclusion/exclusion or citizenship.”[283] Accordingly, the preceding discussion mostly examines obesity/fatness as a policy arena in its own right. I turn next to health at large.
B. Obsession: Health; Fear: Illness
The previous discussion examines the ways in which fears of fatness are papered‑over with fears of illness. Anti‑fat sentiments are justified as pro‑health. Meanwhile economic growth relies, to some extent, on the continued existence of fat people. Anti‑fat sentiments are in fact simultaneously anti fat people and protective of the abundance and scarcity that generate fatness in the first instance. But fatness is only one of many food‑related health fears. This Section turns to a broader pursuit of health.
The obsession with health is a powerful policy‑driving force in its own right. Diet‑related health concerns range widely: from personal appearance to cognitive ability[284] to more traditional health domains like cancer, foodborne illness, and other “diet‑related diseases.” These fears are a primary driver of food manufacturing, marketing, and public policy. Protection of the public health has a deep history in food law.[285] Indeed, modern food law in the United States was born out of public fears of contaminated meat.[286] But policy around foodborne illness has evolved very differently than policies addressing other kinds of food‑related health issues.[287] This discussion focuses on the latter. As with the abundance/scarcity and thinness/fatness pairs, the health/illness pair is a backbone of food law.
This Section considers the health/illness pair in two legal contexts. The first is regulation of food marketing claims and food additives. In pursuit of health, legal regimes again gravitate toward abundance. Specifically, it argues that food labels contribute to the abundance of information and facilitate proliferation of choice abundance. Relatedly, under‑regulation of food additives leaves people exposed to a wide variety of contaminants including carcinogens and endocrine disrupters. Next, this Section considers the legal status of “food as medicine.” The “food as medicine” movement promises that dietary changes can cure everything from indigestion to Alzheimer’s disease.[288] The central premise of “food as medicine” is that a good diet is essential not just to maintain good health but also for returning to good health.[289] In a sea of information that most consumers have neither the time nor the inclination to sort, food as medicine is a welcome respite. It is a relief. “Food as medicine” programs can shield individual participants from abundance. However, they are often over‑corrective and can create bubbles of choice scarcity for individual people.
1. Binge & Purge Cycles: The Information Regulation Feedback Loop
Many scholars, myself included, have written at great length criticizing information regulation as a standalone regulatory tool. It overwhelms consumers with information and provides little protection for those consumers lacking the time, education, or financial resources to make effective use of available information.[290] I reiterate some of these critiques here first to make the fairly well‑established point that information regulation stimulates food obsession. However, I also reiterate them to draw a subtler connection between information regulation and the politics of abundance. Information regulation feeds into the appearance of abundance. More information means more invitation to think about each of your choices, more nutrition facts to read and compare, more health claims to assess, and more products popping up to fill in the range of choices along each possible metric. Labels promise everything from heart health to improved mental function. The current information regulatory regime exacerbates public fears of food‑related illness. Information regulation creates a feedback loop as it facilitates the proliferation of food products and thus reinforces the abundance paradigm.
Food law in this domain works in two primary ways. First, it regulates the affirmative claims that food manufacturers want to make about their food. The Food and Drug Administration (FDA) oversees label claims, and the FTC regulates advertising claims. The FDA has separate standards and processes depending on the type of label. Label types include: authorized health claims,[291] qualified health claims,[292] nutrient content claims,[293] and structure/function claims.[294] To help manufacturers navigate this complicated regulatory environment, the FDA publishes a 132‑page Food Labeling Guide that walks through regulation of these voluntary disclosures and addresses other disclosure obligations.[295] FTC applies similar standards in its oversight of advertising.[296]
Some manufacturers have, infamously, been taken to task for outlandish claims about the health benefits of their products. For instance, Pom Wonderful was the subject of a successful enforcement action against a series of ads claiming that its pomegranate juice could help its drinkers “cheat death.”[297] Most manufacturers are, however, able to get away with quite a lot, and very little enforcement takes place. [298]
At the other end of the spectrum are mandatory warning labels and nutrient content disclosures. Ranging from the nutrition facts panel[299] to the New York City sodium warning label,[300] these disclosures have two target audiences. The first, and primary, is consumers.[301] The second is manufacturers, who may reformulate products in order to avoid certain label disclosures.[302]
Although some information may help consumers make “healthier” food consumption choices, the sea of information that eaters regularly navigate is counterproductive.[303] Food information regulation is a manifestation of the consumer “right to know.” In 1962, President John F. Kennedy laid out what became known as The Consumer Bill of Rights in a speech to Congress.[304] He included: “the right to safety,” “the right to be informed,” “the right to choose,” and the “the right to be heard.”[305] He called for legislative and administrative action to ensure that these rights were realized, and much of information disclosure law described here was responsive to this call. With regard to food in particular, he went on to observe: “The typical supermarket before World War II stocked about 1,500 separate food items—an impressive figure by any standard. But today it carries over 6,000.”[306] In 2024, that number is 35,829.[307] In a call for more consumer protection, Kennedy continued, “[h]undreds of new uses for such products as food additives, food colorings and pesticides are found every year, adding new potential hazards.”[308]
President Kennedy invoked growing abundance to justify the need for more safety regulation. But of the four rights, the right to safety itself is the right most often obviated.[309] The right to safety is the only of the four that does not rely on consumers to protect themselves. It is also the only of the four that poses any direct threat to the abundance of food quantity and choice. On their own, the right to choose and the right to be informed feed both information abundance and choice abundance.[310] As labels proliferate, advocacy focus shifts to policing transparency—ensuring the legibility and accuracy of labels. These efforts co‑opt attention from advocacy in support of the right to safety itself.
Using information to facilitate the pursuit of health reflects three distinct interactions with the politics of abundance. First, the primacy of information protects quantity abundance by avoiding any meaningful regulation of the amount and kind of food produced. Second, it reinforces the abundance paradigm by investing in the generation of information and choice for food consumers to navigate. Just as fat law protects the production of the kinds of food, food environments, and individual circumstances that contribute to body growth, food labeling law protects the production of foods that contribute to diet‑related disease. Finally, it reflects how abundance makes regulation harder to undertake.
Another brief example illustrates this last phenomenon. The Food Drug and Cosmetic Act requires premarket review of new food additives in order to ensure that they are safe for consumption.[311] In theory, this statutory directive requires the FDA to prohibit the interstate sale of the kinds of foods that cause diet‑related disease.[312] In practice, however, the statute contains an exception that swallows the rule. It allows manufacturers to bypass review when using additives that are “Generally Recognized As Safe” (“GRAS”).[313] Despite very widespread criticism, the FDA has resisted calls to take a more aggressive approach to GRAS assessments and has refused to revoke the GRAS status of many widely questioned additives including carrageenan, sugar, and many others.[314] With regard to sugar, the FDA has repeatedly declined to restrict sugar additives.[315] Instead, acknowledging the potential health consequences of excessive sugar consumption, it has turned to regulating information. First, it overhauled the Nutrition Facts Panel, requiring that manufacturers separately list “added sugar.”[316] Second, it has proposed a revised definition of the word “healthy,” governing how the word may be used on food labels. The new definition includes limits on added sugar, a factor that was ignored in the older definition.[317]
The turn to information regulation to protect consumers from added sugar reflects the FDA’s hesitation to restrict sugar outright. Indeed, the agency has rarely used its power to withdraw the GRAS status of a widely used ingredient.[318] The FDA recently revised the process for GRAS, establishing a voluntary notification process for manufacturers of new GRAS products.[319] Critics have argued the approach subverts public health by minimizing the agency’s oversight role.[320]
Evident throughout the regulatory process is the FDA’s effort to manage the vast quantity of food additives on the market. For critics, this number is evidence of agency failure—only a very small subset of all additives have been subject to full regulatory review.[321] For the FDA, the number appears to motivate the regulatory process, as the agency seeks a manageable approach in the face of limited regulatory resources.[322] For the courts, the number leads judges to throw up their hands and suggest that Congress should step in to modify a food additives provision that was written under very different circumstances.[323] Abundance appears to be playing a self‑protective role here. In the face of “too much,” the FDA’s capacity to have a meaningful regulatory role is limited.
2. The Expertise Treadmill
As food and medicine historians have observed, food has long played at least some role in discourses about health and medicine.[324] In recent decades, medicalization of food and eating—including both diagnoses of eating disorders and medicalized nutrition guidance—has played an increasingly large role in food discourse.[325] As the discussion of obesity treatment above demonstrated, food law incorporates this trend toward medicalization through such mechanisms as insurance mandates.[326] The medical model of food provisioning focuses on individual actions, directing individuals to make particular food choices, take particular medicines, and get surgery. The “food as medicine” movement takes this premise to an extreme, calling on doctors to prescribe healthy meals as a way to treat, prevent, and manage certain chronic diseases.[327] Several states have begun to experiment with incorporating food prescriptions into their public insurance programs.[328] And the 2018 farm bill included a national pilot program for produce prescriptions.[329] Programs can include both produce prescriptions, which prescribe consumption of certain fruits and vegetables, and medically tailored meals, which involve whole‑diet menu plans and even meal delivery.[330] The concept has been broadly accepted in medical communities.[331] The remainder of this Section considers a variety of interactions between “food as medicine” and abundance/scarcity paradigms.
First, these programs are unique in their ability to combat abundance head‑on in a quite literal way on a person‑by‑person basis. These programs affect participant food and portion choice. Participants in “food as medicine” meal delivery programs typically receive smaller portions of food than they might otherwise prepare for themselves or eat in restaurants. The ultimate antithesis of the food freedom that underlies most food law and policy, these programs acknowledge how difficult it has become for consumers to make healthy choices against a backdrop of quantity and choice abundance.[332]
“Food as medicine” also interacts with the abundance/scarcity paradigm in a different way. The movement incorporates nutrition science, relying on experts to craft menus that are carefully tailored to a variety of different medical conditions. In this way, moving food out of the realm of personal and communal experience and into the realm of science generates an artificial scarcity of expertise and, by extension, of food that is deemed medically satisfactory. This artificial scarcity is at least partially responsive to the manufactured information abundance generated by overemphasis on food labels.[333] Accepting a medically tailored meal is easier (and more convenient) than navigating the morass of nutrition advice available through Google and social media. Personal knowledge is no longer necessary at all.
Although this is an appealing solution, it is also deeply unsatisfying. It is a path forward that ignores the cultural, social, and hedonic values of food consumption. To the extent that food is one constituent of identity, “food as medicine” is self‑negating.[334] It is also a path forward that reflects the ultimate moral judgment of consumers: our choices are so bad and our time‑constrained decision‑making capacity is so limited that we should remove choice entirely.
Finally, “food as medicine” insulates abundance on a systemic level. Rather than acknowledge and attempt to tackle the complex array of forces that shape choice, including the backdrop of the politics of abundance and the artificial scarcity of poverty, “food as medicine” offers respite only for those willing or financially able to participate. Other extreme medical weight‑loss treatments—including bariatric surgery and semiglutide drugs—function similarly. How and what food is produced in the first instance is firmly beyond the scope.
III. Nourishment: An Alternative
In conjunction with a recommendation to eat less, the 2010 Dietary Guidelines for Americans suggest that individuals “write down what [they] eat to keep track of how much [they] eat.”[335] Rather than offer a lifeline out of food anxiety, this recommendation sinks concerned eaters further into a spiral of shame, personal responsibility, and obsession.[336] Stoked by a moral panic around fatness and the pervasive reminders to choose good food over bad, eaters are constantly reminded that their health (their very lives) are in their hands.[337] It keeps them focused entirely on themselves and their own choices—the food system is out of the spotlight.
At the same time, their success in assuming responsibility is perceived as a marker of good citizenship. Political scientist Chad Lavin offers the following story to explain food anxiety: Food brings us, all of us, into “intimate encounters with mortal, vulnerable, and corporeal bodies,” and thus “threaten[s] the ontopolitical assumptions of the social contract in which abstract and universal, rights‑bearing subjects encounter each other in the abstract realm of principle and reason.”[338] Hunger, fatness, and diet‑related disease attract attention to the body—to the boundaries of the physical self and the limits of self‑discipline. Against the backdrop of the politics of abundance, the existence of these conditions is not just a threat to individuals but to political order dependent on self‑discipline.[339] Food politics and aesthetics, which emphasize individual responsibility, prime citizens for the neoliberal order. Food politics is thus not just a manifestation of that order, he argues. It is constitutive of it.[340]
If it is true that diet drives political order, then the taxonomy of diet pursuits and fears catalogued in this Article is a snapshot of a particular moment in time in the midst of a particular political order. In this moment, modern technology and neoliberal market orders produce an abundance of cheap, chemical‑laden food—generating enormous profit, and putting eaters on a path toward such overwhelm that prescription food is the ultimate relief (and the ultimate removal of food from the realm of sensory and cultural experience).
Reimagining food politics is no easy task. As the discussion in Parts I and II demonstrated, the conflicting pursuits of abundance, thinness, and health constrain the potential for meaningful reform. And, to the extent that the food system is also embedded in, and constitutive of, deeper political and economic orders, reform that does not reach those orders will fall short. But, at the same time, if individual relationships to food help to construct those orders, then beginning with food consumption, food production, and food politics may be a place to imagine a different economic and political order. This Part posits a place to start—an alternative that recenters food politics on the experiences of food production, distribution, and consumption: nourishment. The remainder of this discussion seeks to define nourishment and to describe what food law grounded in nourishment might look like.
In a narrow sense, nourishment means the provision of sustenance. This definition calls to mind standard definitions of food security, which include “utilization”—a metric of the “nutritional status of individuals.”[341] More broadly, however, nourishment is a less material concept. It recognizes that food does more than meet minimal caloric and nutritional needs. Nourishment also requires that food meets cultural and communal needs. Thus, nourishment is not simply a question of quantity. Or even of nutrition; though certainly a nourishing law prioritizes production not just of enough calories (empty abundance) but of nutritious foods.[342]
Abundance and scarcity distract from nourishment. Too much is not nourishing, nor is little. The inverse of nourishment is therefore not scarcity. Instead, the inverse is malnourishment, which can flow from overconsumption just as readily as from underconsumption. It can also flow from overproduction[343] and over‑disposal (i.e., waste).[344] Abundance in some forms and some instances support nourishment, but abundance is not inherently nourishing.[345]
Nourishment—as an alternative to abundance, thinness, and health—invites eaters to embrace the boundaries of self that Lavin suggests modern diet politics strive to hide. It does so by inviting an inquiry into how people interact with food, with each other, and with their bodies. While abundance focuses primarily on food, the commodity, nourishment invites consideration of the communities and environments involved in and affected by the production, distribution, consumption, and disposal of food.[346]
Nourishing attends to both power and feeling. On the first front, nourishing is synonymous with food sovereignty. Over the past thirty years, the international food sovereignty movement has sought to radicalize food policy by “shift[ing] from emphasizing production to addressing power.”[347] This movement, which is grounded in peasants’ rights, was initiated by peasant organizing all around the world, but particularly in the Global South. [348] The movement seeks to recognize food as something more than a market commodity and to relocalize power over food production.[349]
Consistent with this framework, a nourishing law in the United States would also return eating to its social context by recognizing and combatting the role of food, food production, and food consumption in reinforcing racial and socioeconomic hierarchies. Addressing cultural and communal needs vis‑à‑vis food requires recognizing that these needs are variable, and that some cultures and communities have been the subject of systemic “food oppression” for generations.[350] The politics of abundance feeds this oppression by reinforcing the need for surplus, control of which is a source of wealth and power.[351] To simplify, abundance creates the possibility for hierarchy, and then pursuit of thinness and the fear of fatness help to codify that hierarchy.[352] Neoliberal responsibilization then blames low‑income and minority people for the health consequences of poor diets and offers people the opportunity to learn and buy their way out of poor health through meticulous attention to labels.[353] A nourishing law lays aside this framework, seeking opportunities not just for inclusivity but also for the equitable distribution of food, wealth and power.
Relatedly, a nourishing law seeks to contextualize food as a commodity and eaters as decision‑makers. One primary consequence of this move is to recognize the interconnections between the social and ecological consequences of food production and food consumption. Such a move invites more aggressive scrutiny of food additives and chemical exposures from other sources.[354] It also invites more aggressive scrutiny of the human, animal, and environmental consequences of food production.
Nourishing must also attend directly to feeling. A nourishing law attends to emotional needs by displacing fixation. Food need not serve as a source of regular anxiety. This principle translates into a number of readily identifiable policy goals. First, a nourishing law excises body size as a topic for political debate. LGBTQIA+ advocates and scholars have, for decades, questioned hetero‑ and cis‑normativity in politics. Observing that rights‑based movements tend to confer rights on gay and trans people without celebrating their existence, they have called for a new public dialogue in which the existence of queer, gay, and trans people is celebrated rather than tolerated.[355] Fat activists have called for parallel treatment for body size diversity.[356] Reactionaries to fat activism insist on the links between obesity and ill health, but a nourishing law attends to flourishing rather than health. It focuses on the particular symptoms that might undermine quality of life—reduced mobility, cardiovascular weakness, and so forth—rather than on body size.[357] Such an inquiry must acknowledge the “inhabitability” of fat bodies.[358]
Second, a nourishing law dials back fixation by slowing the flood of information to a manageable trickle,[359] and renews a commitment to the right to safety as a central tenant in the Consumer Bill of Rights.[360] By contrast to the consumer right to know, which emphasizes flow of information and thus tends to exacerbate anxiety, the right to safety emphasizes the product itself. Broadly defined, ensuring safe food protects both laborers and consumers along the food supply chain.[361] A nourishing law reorients food law away from transparency, treating it as a background principle rather than a primary mechanism of consumer protection.[362]
Finally, a nourishing law invites opportunities to restructure economic orders to facilitate—for those who want it—eating together, again. Where and with whom food is eaten also matters.[363] In his critiques of capitalism, Karl Marx argued that capital accumulation dependent on unskilled labor would alienate workers. Work becomes “atomistic,” “routinized,” and “passive,” such that “the liberatory and developmental aspects of work and needs are lost, no matter how much futurists may praise the ‘wealth’ of society.”[364] The same can be said of eating. The overproduction of low‑quality, processed food, designed to be made and eaten quickly (and often alone) alienates eaters from their food and the resources required to produce it. Food becomes dissociated from the communities whose values and histories define how to eat it, with whom to eat it, and what constitutes “food” in the first place. This line of inquiry opens up food policy to conversations about communal kitchens, the duration of school lunch, and the extraordinary amount of time that it takes to “eat well” in the current food economy.[365]
If food politics is constitutive of the neoliberal economic order, then, perhaps, food is an appropriate place to begin something new. At the international level, some of this work is already underway under the auspices of the food sovereignty movement. That movement asks a question that is critical to nourishing: Who controls the means of food production, distribution, and consumption? Beginning with nourishment invites another essential question: Why and for whom is food produced at all?
Conclusion
A nourishing law lets eaters think a little less about food. Current food fixations reflect and reinforce the economic and political power of the food industry as it is currently constituted. Abundance—as a physical pursuit, a cultural preference, and aesthetic—is reflected across U.S. food law and policy. It constrains the collective imagination as to how to solve the complex problems of hunger, diet‑related disease, and food safety, and it obscures the environmental and human costs of modern food production. Food is essential to health, of course, but it is also a more fundamental element of the good life, creating pathways for family, for community, and for experience. The overemphasis on health and the medicalization of food risks erasing these other interests. Food law reflects these trends.
* Professor of Law, Elisabeth Haub School of Law at Pace University. Huge thanks for their feedback to Peter Barton Hutt, Noa Ben Asher, William Boyd, Emily Broad Leib, Lingxi Chenyang, Amy Cohen, Bridget Crawford, Andrea Freeman, Barry Friedman, and Smita Narula. Thanks also to the participants in the Academy of Food Law and Policy workshop, the Furman Academic workshop, and the editors of the University of Colorado Law Review.
- Solaray Unveils ‘Food is Not Enough’—Latest Brand Campaign Highlights Common Nutrition Gaps in Standard American Diet, Inspires Launch of Solaray Liposomal Multivitamins, PR Newswire (June 16, 2022), https://www.prnewswire.com/news-releases/solaray-unveils-food-is-not-enoughlatest-brand-campaign-highlights-common-nutrition-gaps-in-standard-american-diet-inspires-launch-of-solaray-liposomal-multivitamins-301569602.html [https://perma.cc/7P4D-CRHF]. ↑
- Katie Deighton, Hype Around Weight‑Loss Drugs Shows No Signs of Abating. Neither Do the Ads, Wall St. J. (Apr. 4, 2023), https://www.wsj.com/articles/hype-around-weight-loss-drugs-shows-no-signs-of-abating-neither-do-the-ads-87b911e0 [https://perma.cc/8F92-MR3J]. ↑
- Louise O. Fresco, Hamburgers in Paradise: The Stories Behind the Food We Eat 51–52 (Liz Waters trans., 2016). ↑
- Margot J. Pollans, Eaters, Powerless by Design, 120 Mich. L. Rev. 643 (2022). ↑
- “Responsibilization” is a mode of governing in which the government enlists private, often individual, actors in the project of social control. David Garland, Limits of the Sovereign State: Strategies of Crime Control in Contemporary Society, 36 Brit. J. Crim. 445, 452–55 (1996) (coining the term and distinguishing from privatization, which typically involves contraction of public functions); Wendy Brown, Undoing the Demos: Neoliberalism’s Stealth Revolution 142–50 (2015) (using the term beyond the criminal law context to describe the pattern of neoliberal governance in which the state limits social supports by assigning responsibility over health and well‑being to individuals); Pollans, supra note 4, at 668–72 (considering the use of responsibilization in food system governance and observing the ways in which it has been used to narrow the legitimate realms of food production regulation, particularly with regard to nutrition and hunger). ↑
- DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (5th ed. 2013) (also listing “avoidant/restrictive food intake disorder” and “other specified feeding or eating disorder”). Eating disorders are increasingly prevalent, and much of the analysis in this Article is relevant to understanding the prevalence of eating disorders and the challenges of eating disorder treatment, but this is not primarily a project about individual eating disorders. See, e.g., infra note 336 (discussing the relationship between eating disorder treatment and information regulation). Instead, it is a project about systemic disordered eating. ↑
- At the 2021 Nathan’s Hot Dog eating contest, held annually at Coney Island on the Fourth of July, fourteen‑time winner Joey Chestnut ate seventy‑six hot dogs (buns included) in ten minutes. Des Bieler, Gorging Like a GOAT: Joey Chestnut Sets Record with 76 Hot Dogs in 10 Minutes, Wash. Post (July 4, 2021), https://www.washingtonpost.com/sports/2021/07/04/joey-chestnut-hot-dog-record [https://perma.cc/ZDY3-A92J]. ↑
- See, e.g., Lyman Tower Sargent, The American Cockaigne from the Sixteenth Century to the Shmoo and Beyond, 26 Utopian Stud. 19, 23−26 (2015) (observing that the literature at the time simultaneously depicted a land of limitless plenty but also condemned those expecting reward without work as lazy). Boosters were individuals involved in promoting migration to North America and western expansion across the continent; often they were involved in selling land. See, e.g., Christina Dando, Virtually Constructing a Great Plains: Booster Impacts on Plains Viewing, 25 Great Plains Rsch. 159 (2015) (analyzing the use of images to construct a perception of the Great Plains and its significant agricultural potential). ↑
- Ulrich Beck, Risk Society: Toward a New Modernity 19 (2013 ed. 1986). ↑
- Id. at 20. Beck defines modernization as the “surge of technological rationalization and changes in work and organization [including] change in societal characteristics and normal biographies, changes of lifestyle and forms of love, change in structures of power and influence, in the forms of political repression and participation, in views of reality and in norms of knowledge.” Id. at 50. ↑
- See infra Section I.B (elaborating on the food waste example). ↑
- Marilyn Wann, Foreword, in The Fat Studies Reader xii (Esther Rothblum & Sondra Solovay eds., 2009) (rejecting “the O‑words, ‘overweight’ and ‘obese’” as being “inherently anti‑fat”). ↑
- William I. Miller, Gluttony, 60 Representations 92, 93 (1997) (observing that in modern culture we treat gluttony as the “sin of ugliness”). ↑
- Sohnya Sayres, Glory Mongering: Food and the Agon of Excess, 16 Soc. Text 81, 90 (1986) (arguing that “[s]lim‑fitness presents itself as a self‑possession of the kind that entitles the bear[er] to have privilege in exchangeable positions of power”). ↑
- Miller, supra note 13, at 108–09. ↑
- Id. at 109. ↑
- For discussion of the political and cultural trends to treat individual fat people as disordered, see, for example, Melanie DuPuis, Dangerous Digestion: The Politics of American Dietary Advice (2015); Julie Guthman, Weighing In: Obesity, Food Justice, and the Limits of Capitalism (2011). ↑
- Natalie Boero, Killer Fat: Media, Medicine, and Morals in the American ‘Obesity Epidemic’ 70 (observing that “[f]ollowing the Weight Watchers program yet not appearing to be on a diet is a frequent discussion at meetings”). ↑
- See, e.g., Lindsay F. Wiley, Shame, Blame, and the Emerging Law of Obesity Control, 47 U.C. Davis L. Rev. 121 (2013); Pollans, supra note 4. For further discussion of the scope of fat law, see infra Section II.B. ↑
- DuPuis, supra note 17, at 150 (quoting John Brown‑Childs, Transcommunality: From the Politics of Conversion (2003)). ↑
- Wiley, supra note 19, at 160–63 (describing the role of personal responsibility in fat law); Pollans, supra note 419, at 668–69 (identifying body size and health as “domains of consumer responsibility”); infra Section II.A. ↑
- Pollans, supra note 4, at 673–79 (describing the use of informational regulation in this context); infra Section II.B (elaborating on some of the consequences of this informational regime). ↑
- Nutrition Labeling and Education Act (NLEA), Pub. L. No. 101‑535, § 2, 104 Stat. 2353 (1990) (codified at 21 U.S.C. § 343(q)(1)). ↑
- See infra Sections II.A and II.B (establishing that legal responses to fatness treat it primarily as a medical issue and exploring the consequences and limits of that choice for the design of those regimes); Wiley, supra note 19, at 172−80 (arguing that fat law actually contributes to stigmatization and discrimination). There is very little protection against body size discrimination. Yofi Tirosh, The Right to Be Fat, 12 Yale J. Health Pol’y 264 (2012); see infra note 220 (elaborating on the current state of antidiscrimination law). ↑
- See infra note 230 and accompanying text (discussing the concept of “curing law”). ↑
- For many years, large numbers of premature deaths were attributed to obesity, but the original study that spurred the link actually identified dietary and activity patterns as the cause. Pat Lyons, Prescription for Harm: Diet Industry Influence, Public Health Policy, and the “Obesity Epidemic,” in The Fat Studies Reader 75, 82–83 (Esther Rothblum & Sondra Soloway eds., 2009) (noting that the original study was widely misrepresented and that later research found strong evidence for health issues only in much higher weight categories). ↑
- One exception is with regard to food‑borne illness, where public health law reaches deeply—perhaps too deeply—into food production. See Margot J. Pollans, Regulating Farming: Balancing Food Safety and Environmental Protection in a Cooperative Governance Regime, 50 Wake Forest L. Rev. 399 (2015) (describing the reach of food safety law onto farms and the failure of the regulatory regime to balance the goals of food safety with the goals of environmental protection). ↑
- See infra Section II.B.1 (elaborating on these legal regimes). ↑
- See id. ↑
- See id. (describing the limits of food marketing and labeling laws). ↑
- See infra Section II.B.2 (elaborating on the significance of “food as medicine” programs). ↑
- See infra notes 62−65 and accompanying text. ↑
- See infra notes 165−168, 351−353 and accompanying text. ↑
- Fresco, supra note 3, at 1–19 (surveying the place of the “garden,” offering abundance without work, from mythologies around the world, but particularly in Western traditions). ↑
- Juan Carlos Riofrio, The Right to Feast and Festivals, 23 Vand. J. Ent. & Tech. L. 567, 568 (2021). ↑
- See, e.g., Code of Hammurabi § 48 (L.W. King trans.) (releasing debtors from payments and interest for the years that “the harvest fail[s] or grain does not grow for lack of water”); Code of Ur‑Nammu § 32 (“If a man had let an arable field to an(other) man for cultivation, but he did not cultivate it, turning it into wasteland, he shall measure out three kur of barley per iku of field.”). Consider also the story of Joseph, whose success as an advisor to the Pharaoh was in recommending that Pharaoh store grain during years of plenty to plan ahead for a lengthy famine. Genesis 41:48–49. ↑
- See generally Monica L. Smith, The Archaeology of Abundance, in Abundance: The Archaeology of Plenitude (Monica L. Smith ed., 2017). ↑
- See, e.g., Krishna Bahadur et al., When Too Much Isn’t Enough: Does Current Food Production Meet Global Nutritional Needs?, 13 PLOS One (2018) (noting that worldwide food production exceeds daily caloric needs for the entire global population but that this production does not meet nutritional needs because it overproduces grains, oils, and sugars and underproduces protein, fruits, and vegetables). Of course, there is no guarantee that scarcity will never return, and many climate crisis experts believe that climate change may cause sharp disruption to food production systems. ↑
- Jessica Shoemaker, Fee Simple Failures: Rural Landscapes and Race, 119 Mich. L. Rev. 1695, 1712–21 (2021). ↑
- Sargent, supra note 8. ↑
- See, e.g., Roderick Frazier Nash, Wilderness and the American Mind (1967) (describing the early American characterizations of wilderness). ↑
- Fresco, supra note 3, at 1–19 (describing the theology of paradise). Paradise and abundance are also frequent themes in other mythologies and religious traditions. ↑
- Woody Holton, Liberty is Sweet: The Hidden History of the American Revolution (2021) (tracing the financial interests that motivated revolutionary fervor). ↑
- On the violent history of colonial expansion including extermination, dislocation, enslavement, and cultural erasure of Indigenous communities, see, for example, Ned Blackhawk, Violence Over the Land: Indians and Empires in the Early American West (2006). ↑
- Shoemaker, supra note 39, at 1717–18; Nell Irvin Painter, Southern History Across the Color Line (Mary Kelley ed., 2d ed. 2021) (cataloguing the physical, social, and sexual violence of slavery); Walter Johnson, River of Dark Dreams: Slavery and Empire in the Cotton Kingdom (2013) (exploring the role slavery in the expansion and development of the United States in the Mississippi Valley); Ira Berlin, Many Thousands Gone: The First Two Centuries of Slavery in North America (1998). ↑
- Fresco, supra note 3, at 49–82 (characterizing agriculture, in the Judeo‑Christian tradition as the effort to reestablish the plenty that Paradise had once offered and noting the essential role of government policy in working toward this end). ↑
- Shoemaker, supra note 39 (describing a series of policy decisions that excluded Black, Japanese, Chinese, Mexican, and Indigenous Peoples from land ownership across the American west); Laura E. Gómez, Manifest Destinies: The Making of the Mexican American Race (Robert Gottlieb ed., 2018); see also Anna‑Lisa Cox, The Bone and the Sinew of the Land: America’s Forgotten Black Pioneers and the Struggle for Equality (2018) (describing the challenges and successes of Black settlers in the West in the Antebellum era). ↑
- Nora McKeon, Food Security Governance: Empowering Communities, Regulating Corporations (2015) (describing the evolution of “food security” definitions); Philip McMichael, Food Security and Social Reproduction, in Power, Reproduction and Social Reproduction: Human In/security in the Global Political Economy 171 (Isabella Bakker & Stephen Gill eds., 2003) (arguing that “food security was constructed as a commercial operation geared to supplying relatively cheap foods to urban consumers”). ↑
- McKeon, supra note 48. Although quantity is of course a necessary precondition for food security, it is not sufficient because it does not address distribution of available food resources. Amartya Sen, Poverty and Famines: An Essay on Entitlement and Deprivation (1981). Modern definitions of food security incorporate this concern about “entitlement” as well as other facets of available food such as quality, cultural appropriateness, and stability. See, e.g., U.N. Food & Agric. Org., An Introduction to the Basic Concepts of Food Security, https://www.fao.org/3/al936e/al936e00.pdf [https://perma.cc/YC4A‑HHYA] (including “economic and physical access to food” as one of four “dimensions of food security”). ↑
- Ellen Meiksins Wood, The Agrarian Origins of Capitalism, in Hungry for Profit: The Agribusiness Threat to Farmers, Food, and the Environment (Fred Magdoff et al. eds., 2000) (describing the emergence of commodified food systems); Eric Holt‑Jiminez, A Foodie’s Guide to Capitalism: Understanding the Political Economy of What We Eat (2017). ↑
- See, e.g., Barbara Kahn, Consumer Variety‑Seeking Among Goods and Services: An Integrative Review, 2 J. Retailing & Consumer Servs. 139 (1995). ↑
- For elaboration on this point, see infra Sections II.B.2 and C. ↑
- Monica L. Smith, The Archaeology of Abundance, in Abundance: The Archaeology of Plenitude 3–5 (Monica L. Smith ed., 2017) (arguing for a neutral definition as an analytical mechanism to consider accumulation of large quantities across a variety of different contexts and understand the range of “human‑material engagements that permeated daily life”). Smith defines abundance as “a value‑neutral term that describes accumulations that are quantitatively large and/or diverse in their composition.” Id. at 11. ↑
- Abundance, Merriam‑Webster, https://www.merriam-webster.com/dictionary/abundance#:~:text=1,%3A%20affluence%2C%20wealth [https://perma.cc/ANP4-PSHD]. Oxford defines ample to mean either “enough or more than enough” or “plentiful,” suggesting both neutral and subjective definitions of abundance. Ample, Oxford, https://www.oed.com/search/dictionary/?scope=Entries&q=ample [https://perma.cc/5WCX-R7S2]. ↑
- Jim Peach & William M. Dugger, An Intellectual History of Abundance, 40 J. Econ. Issues 693, 693–94 (2006) (defining abundance in the economic context to mean resource adequacy). ↑
- See supra note 54. ↑
- Smith, supra note 53, at 3 (suggesting that the neutral term is a counterbalance to this subjective alternative). ↑
- Smith, supra note 53, at 3. This understanding of abundance dominates for Marxists, who condemn the pursuit of abundance as a conduit toward inequality. See, e.g., Peter G. Stillman, Scarcity, Sufficiency, and Abundance: Hegel and Marx on Material Needs and Satisfactions, 4 Int’l Pol. Sci. Rev. 295, 302–03 (1983). ↑
- See, e.g., 50 U.S.C. § 4512. ↑
- For instance, in the 1930s, Congress enacted a variety of laws imposing both voluntary and mandatory production quotas designed to reduce overall production levels of certain commodities and thereby increase prices. See, e.g., David Westfall, Agricultural Allotments as Property, 79 Harv. L. Rev. 1180, 1182−84 (1966) (describing the 1930s legislation). ↑
- For discussion of specific U.S. food policies that protect the too much, see infra Section I.B. ↑
- Peach & Dugger, supra note 55, at 693 (observing that “scarcity has dominated economic analysis for nearly two centuries” and that it is frequently baked into the definition of economics itself). ↑
- Smith, supra note 53, at 3–4 (observing that economists often taken scarcity as the primary “explanatory economic paradigm”). See generally Jared Diamond, Guns, Germs, and Steel (1997) (offering scarcity as a primary explanation for the development of agriculture in the fertile crescent region of what is now the Middle East); Richard Bulliet, Hunters, Herders, and Hamburgers (2005) (criticizing Diamond’s analysis). ↑
- Smith, supra note 53, at 7–9 (observing that some researchers believe that early agriculture may have been driven not by the need to overcome scarcity but, instead, by “the desire of aggrandizers to generate sufficient food for feasts”). ↑
- Katheryn C. Twiss & Amy Bogaard, Coping with Abundance: The Challenges of a Good Thing, in Abundance: The Archaeology of Plenitude (Monica L. Smith ed., 2017). ↑
- For a discussion of how scarcity can be wielded to reify status quo distributions of control in the food system, see infra Section I.C. See also Peach & Dugger, supra note 55, at 694 (observing that the “scarcity perspective implies that people are condemned to a world of conflict and poverty. . . . The scarcity lens suggests that . . . the poor are poor because there is just not enough to go around”). ↑
- See, e.g., U.N. Food & Agric. Org., supra note 49. ↑
- See, e.g., Anne Murcott, Scarcity in Abundance: Food and Non‑Food, 66 Soc. Rsch. 305, 309–14 (1999) (describing and offering examples of how what people count as food is contingent and mutable). ↑
- Smith, supra note 53, at 12 (arguing that throughout history “[c]entralized authorities also influenced and exhorted increases in production through a variety of mechanisms, such as the forced movement of people for agricultural production, the sponsorship of irrigation works and other landscape capital, or the management of tax regimes and production quotas to guide the cumulative effect of household production”) (internal citations omitted). ↑
- Margot J. Pollans, Bodies as Food Systems Sacrifice Zones, in Rsch. Handbook in Int’l Food L. (Michael Roberts ed., 2023) (describing the broad range of public support for agricultural systems including distribution of lands, public investment in infrastructure, and public investment in research). ↑
- Critically, the United States government protects these technologies domestically through patent enforcement and internationally, through diplomacy, international trade law, and other, sometimes more aggressive, means. James Ming Chen, An Agricultural Law Jeremiad: The Harvest Is Past, the Summer Is Ended, and Seed Is Not Saved, 2014 Wis. L. Rev. 235 (2014) (cataloguing federal patent law protections for seeds and describing the international legal framework); Wendy Brown, Undoing the Demos: Neoliberalism’s Stealth Revolution 142−50 (2015) (telling the story of the United States’s imposition of seed patent laws on Iraq through the Bremer Order No. 81). ↑
- Nathan A. Rosenberg & Bryce W. Stucki, The Butz Stops Here: Why the Food Movement Needs to Rethink Agricultural History, 13 J. Food L. & Pol’y 12 (2017). ↑
- Glen L. Johnson & C. Leroy Quance, The Overproduction Trap in U.S. Agriculture: A Study of Resource Allocation from World War I to the Late 1960s (1972). This is not to say that scarcity does not remain a serious threat to life. Ending Hunger, World Food Programme (2024), https://www.wfp.org/fight-famine [https://perma.cc/7MFT-MEYY]. This threat is, however, typically tied to regional environmental conditions and geopolitics and not to global levels of food production. Id. (identifying “conflict” as the “biggest driver of famine”); see also Susan A. Schneider, Climate Change, Food Security, and the Myth of Unlimited Abundance, 19 J. Food L. & Pol’y 30 (2023) (observing that the realities of climate change may upset the longstanding practical reality of abundance in U.S. food production). ↑
- Bahadur et al., supra note 38. ↑
- Cheap food is, essentially, a labor subsidy. See, e.g., Philip McMichael, Food Sovereignty, Social Reproduction, and the Agrarian Question, in Peasants and Globalization (2009). But as I have argued elsewhere, because this cheap food is typically not nourishing, workers bodies become sacrifice zones for the agri‑food industrial complex. Pollans, supra note 70. ↑
- Smita Narula, Beyond Reform: Food Sovereignty and the Future of Global Food Systems, 31 Ind. J. Glob. Legal Stud. 141, 157–61 (2024) (describing the capitalist drive toward overproduction and its incorporation into global food policy). Capitalist systems tend toward overproduction as the drive to profit leads individual corporations to increase production in an effort to capture a larger market share. See, e.g., 3 Karl Marx, Capital (Frederick Engels ed., 1894). Critics of overproduction in the food system identify a variety of environmental, health, and socioeconomic consequences. See, e.g., Philip McMichael, Food Regimes and Agrarian Questions 26–40 (2013) (describing the globalization of a capitalist, extractive food system and some of its political and social consequences across the twentieth century); Jason W. Moore, Capitalism in the Web of Life: Ecology and the Accumulation of Capital (2015). ↑
- See, e.g., Sen, supra note 49; Jane Dixon, From the Imperial to the Empty Calorie: How Nutrition Relations Underpin Food Regime Transitions, 26 Agric. and Hum. Values 321, 326–27 (2009) (describing the relationships between poverty, neoliberalism, and overconsumption of “empty calories”). ↑
- Nat. Res. Def. Council, Wasted: How America is Losing up to 40 Percent of Its Food From Farm to Fork to Landfill 12−14 (2d ed., 2017), https://www.nrdc.org/sites/default/files/wasted-2017-report.pdf [https://perma.cc/8WT4-LVYF] (suggesting that food waste is responsible for 2.6 percent of all U.S. greenhouse gas emissions and cataloguing its other ecological consequences). ↑
- Rudolph Messner et al., The “Prevention Paradox:” Food Waste Prevention and the Quandary of Systemic Surplus Production, 37 Agric. & Hum. Values 805, 807 (2020). ↑
- Food Waste Scale, EPA, https://www.epa.gov/sustainable-management-food/food-recovery-hierarchy [https://perma.cc/J6XV-79DB] (last updated Apr. 25, 2024) [hereinafter EPA, Food Waste Scale]; EPA, From Field to Bin: The Environmental Impacts of U.S. Food Waste Management Pathways (Oct. 2023) [hereinafter EPA, From Field to Bin], https://www.epa.gov/system/files/documents/2023-10/part2_wf-pathways_report_formatted_no-appendices_508-compliant.pdf [https://perma.cc/QXK3-5QCJ] (describing the range of food waste management pathways and devoting comparatively little attention to waste reduction). ↑
- Mapping Urban Access to Composting Programs, Greenblue Sustainable Packaging Coal., https://sustainablepackaging.org/our-work/public-resources/mapping-urban-access-to-composting-programs [https://perma.cc/XC8A-VG53] (estimating, based on a survey of the one‑thousand most populace U.S. cities, that 27 percent of the U.S. population has access to an urban composting program, and that 3 percent of the population lives in a place with a municipally run curbside composting program). ↑
- Nat. Res. Def. Council, supra note 78, at 31 (listing states with such laws). ↑
- Sarah J. Morath, Regulating Food Waste, 48 Tex. Env’t. L.J. 239, 267−68 (2018) (describing the development of tax incentives for food donation). ↑
- Joshua D. Lohnes, Regulating Surplus: Charity and the Legal Geographies of Food Waste Enclosure, 38 Agric. & Hum. Values 351, 352 (2021). ↑
- Messner et al., supra note 79, at 807 (observing that because food waste is treated primarily as a problem of “waste management” that it is challenging for any solutions that do not center around “the act of dealing with existing waste” to garner significant attention). ↑
- For an archived copy of the original version of the graphic, see Sustainable Management of Food: Food Recovery Hierarchy, EPA (2017), https://19january2017snapshot.epa.gov/sustainable-management-food/food-recovery-hierarchy_.html [https://perma.cc/3H9V-F2EU]. The revision renames the graphic the “Wasted Food Scale,” which suggests a subtle shift away from the primacy of recovery. On the other hand, however, the revision also deletes the reference to “reduc[ing] the volume of surplus.” Compare id., with EPA, Food Waste Scale, supra note 80. The EPA’s report describing the new graphic also frames the policy issue as one of “food waste management,” a frame which also assumes the existence of waste in the first instance. EPA, From Field to Bin, supra note 80. ↑
- Messner et al., supra note 79, at 808; see also Lohnes, supra note 84, at 354 (observing that “[f]ood waste does not move from places of excess to places of dearth on its own, doing so requires significant amounts of capital inputs into distribution infrastructure”); id. (noting that while most of the actors involved in food redistribution networks are volunteers, the “principal actors donating food do receive material benefits through tax incentives, government payments, [and] marketing and promotion opportunities”). ↑
- Lingxi Chenyang, Food Antidemocracy, (U. Utah Coll. L. Rsch. Paper, Paper No. 608, 2024) https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4920132 [https://perma.cc/CEY5-JE4H] (describing the Agricultural Adjustment Act of 1933 and other New Deal Era legislation that established surplus purchasing programs). ↑
- Lohnes, supra note 84, at 353 (observing that despite nearly a hundred years of policy responding to the twin problems of hunger and surplus, both problems remain firmly entrenched). Note that in this history, relieving the economic hardship associated with surplus production was the primary policy motivation. Hunger relief was the afterthought. See also Chenyang, supra note 88 (demonstrating that hunger relief was a secondary consideration). These programs were implemented in racially disparate ways, with the bulk of food relief flowing to White communities. Andrea Freeman, Ruin Their Crops on The Ground (2024). ↑
- Lohnes, supra note 84, at 355 (identifying Feeding America as the lead organization facilitating charitable donations and noting that it is the “third largest charity in the country processing nearly $2 billion dollars of tax‑deductible receipts each year”). ↑
- Id. (citing data from 2014). ↑
- Christopher B. Barrett & Daniel G. Maxwell, Food Aid After Fifty Years: Recasting its Role 178 (2005) (observing that food aid is typically driven by “donors’ desire to dispose of surplus exportable cereals . . . [and thus] has generally failed to contribute much to the nutritional variety necessary to ensure a balanced diet”); Id. at 181–82 (describing issues related to donation of culturally inappropriate foods); Janet Poppendieck, Sweet Charity?: Emergency Food and the End of Entitlement 203–06 (1999) (describing the same phenomena in the context of domestic food aid within the United States). ↑
- Barrett & Maxwell, supra note 9281, at 3 (arguing that “food aid can prove a terribly inefficient means for transferring resources to poor people”); Poppendieck, supra note 9292; Narula, supra note 76, at 165–67 (critiquing charity as a solution to hunger). ↑
- Barrett & Maxwell, supra note 92, at 98–105 (describing how NGOs benefit from and advocate for the continuance of international food aid regimes); Andrew Fisher, Big Hunger: The Unholy Alliance Between Corporate America and Anti‑Hunger Groups (2017). ↑
- Lohnes, supra note 84, at 353 (noting risk avoidance practices by states, speculators, farmers, food processors, retailers, and consumers). Policies to reduce production have been used in the past to drive up prices. These included commodity production quotas, which sacrificed overall caloric quantity in the interest of protecting profit quantity. The USDA eventually abandoned this policy in favor of one that protected both caloric quantity and profit quantity. ↑
- See, e.g., Food & Drug Admin., Food Facts: How to Cut Food Waste and Maintain Food Safety (2019), https://www.fda.gov/media/101389/download [https://perma.cc/6NXY-7A8N] (acknowledging the link between food waste and food borne illness risks and offering consumers advice on how to minimize the problem in home kitchens); see also Emily M. Broad Leib & Margot J. Pollans, The New Food Safety, 107 Cal. L. Rev. 1173 (2019) (identifying a variety of ways in which laws designed to reduce food contamination might unnecessarily increase food waste). ↑
- Nat’l Res. Def. Counc. & Harv. Food L. & Pol’y Clinic, The Dating Game: How Confusing Food Date Labels Lead to Food Waste in America (2013), https://www.nrdc.org/sites/default/files/dating-game-report.pdf [https://perma.cc/BSB6-QKX8]. ↑
- Messner et al., supra note 79, at 808 (pointing to customs and regulatory frameworks that protect the freedom to produce and waste). This observation is consistent with Marxist critiques of capitalist systems more generally. There is a tendency toward overproduction that neither the market itself nor the state is well‑positioned to correct. ↑
- See supra notes 80–83 and accompanying text (describing modern food discard policy). ↑
- Lohnes, supra note 84, at 351. ↑
- Id. at 355. ↑
- Id. at 352. ↑
- Id. at 354. ↑
- Consider some examples from early in the pandemic of widespread outcry over milk being poured out at commercial dairies. Other examples of this distaste are evidenced in press celebrating dumpster divers and shaming grocery stores, restaurants, and other entities throwing away large quantities of “perfectly good” food. ↑
- On the global phenomenon of “hunger amid abundance,” see, for example, Farshad Araghi, The Great Global Enclosure of Our Times: Peasants and the Agrarian Question of the End of the Twentieth Century, in Hungry for Profit: The Agribusiness Threat to Farmers, Food, and the Environment 155−56 (Fred Magdoff et al. eds., 2000). ↑
- Lester Brown, Full Planets, Empty Plates 3 (2012). For another example of this type of rhetoric, see Robert Paarlberg, Food Politics: What Everyone Needs to Know 9–13 (2013) (rejecting Malthusian thinking but agreeing that projected population increases will lead to ongoing need to increase food production). ↑
- U.N. Food & Agric. Org., The State of Food Insecurity and Nutrition in the World 22–29 (2022), https://www.fao.org/3/cc0639en/cc0639en.pdf [https://perma.cc/2MZP-XZHU] (describing ongoing prevalence of severe food insecurity); Schneider, supra note 73 (describing the ways in which climate change threatens food production abundance). ↑
- David Lloyd, “The Goal of the Revolution is the Elimination of Anxiety:” On the Right to Abundance in a Time of Artificial Scarcity, in Critical Ethnic Studies: A Reader 209 (Nada Elia et al. eds., 2016); Araghi, supra note 10594. ↑
- Lloyd, supra note 108. ↑
- By artificial scarcity, I mean the scarcity that results from concentration of resources. This is the scarcity of “entitlement” rather than absolute shortage. See supra note 49. ↑
- Pollans, supra note 70. ↑
- Pollans, supra note 70. ↑
- Guadalupe Luna, An Infinite Distance?: Agricultural Exceptionalism and Agricultural Labor, 1 U. Pa. J. Lab. & Emp. L. 487, 488 (1998); Pollans, supra note 70, at 443. ↑
- Juan F. Perea, The Echoes of Slavery: Recognizing the Racist Origins of the Agricultural and Domestic Worker Exclusion from the National Labor Relations Act, 72 Ohio St. L.J. 95, 125, 131–132 (2011); Marc Linder, Farm Workers and the Fair Labor Standards Act: Racial Discrimination in the New Deal, 65 Tex. L. Rev. 1335 (1987). ↑
- Ongoing racial discrimination in implementation of USDA aid programs has also had significant consequences for the demographics of farmland ownership. See, e.g., Pete Daniel, Dispossession: Discrimination Against African American Farmers in the Age of Civil Rights (2013) (documenting patterns of discrimination at the USDA in the third quarter of the twentieth century). Similarly, ongoing racial discrimination in immigration and land access have played a similar role—keeping people of color in low wage labor and limiting access to farmland ownership on the basis of race. See, e.g., Laura‑Anne Minkoff‑Zern, The New American Farmer: Immigration, Race, and the Struggle for Sustainability (2019) (describing this history); Shoemaker, supra note 39. ↑
- John M. Tyson, A Delicate Balance: Feeding the Nation and Keeping Our Team Members Healthy, Tyson Foods: Feed Blog (Apr. 26, 2020), https://thefeed.blog/2020/04/26/feeding-the-nation-and-keeping-our-employees-healthy [https://perma.cc/65EX-NVFH]. ↑
- Exec. Order No. 13917, 85 Fed. Reg. 26313 (Apr. 28, 2020). For additional discussion of this order and the legal rights of meatpacking workers, see Alexia Brunet Marks, Essential but Ignored: Covid‑19 Litigation and the Meatpacking Industry, 14 Ne. L. Rev. 47 (2021). ↑
- Michael Grabell & Bernice Young, Emails Show the Meatpacking Industry Drafted an Executive Order to Keep Plants Open, ProPublica (Sept. 14, 2020), https://www.propublica.org/article/emails-show-the-meatpacking-industry-drafted-an-executive-order-to-keep-plants-open [https://perma.cc/3JCG-8E8W]. ↑
- See generally Stephen Wilks, Disturbing the Modern Plantation: How COVID‑19 is Reinforcing the Food Supply Chain’s Function as a Social Sorting Tool, 30 Cornell J.L. & Pub. Pol’y 539 (2021). ↑
- See Tyson, supra note 116. ↑
- U.S. Gov’t Accountability Off., GAO‑23‑105104, Meat and Poultry Worker Safety: OSHA Should Determine How to Address Persistent Hazards Exacerbated by COVID‑19 (June 2023), https://www.gao.gov/assets/gao-23-105104.pdf [https://perma.cc/X3WH-VAZG]. ↑
- Angela Stuesse & Nathan T. Dollar, Who Are America’s Meat and Poultry Workers?, Econ. Pol’y Inst.: Working Econ. Blog (Sept. 24, 2020), https://www.epi.org/blog/meat-and-poultry-worker-demographics [https://perma.cc/XCS3-4B2S] (gathering statistics demonstrating that animal slaughtering and processing workers are about 65 percent people of color, as compared to the overall U.S. workforce, which is about 37 percent people of color). For a discussion contextualizing these disparate impacts in the racialized history of food law and policy, see Andrea Freeman, Food Oppression in a Pandemic, 50 J.L., Med. & Ethics 711 (2023). ↑
- Stuesse & Dollar, supra note 122, at 16–23 (describing results of survey of a facilities and workers regarding safety precautions taken and the timeline and consistency of implementation); see also Brunet Marks, supra note 117 (describing litigation brought against meatpacking plants for worker safety failures). ↑
- See, e.g., Allison Crittenden, The Adverse Effect of the H‑2A Wage Rate, Am. Farm Bureau Fed’n (Jan. 29, 2020), https://www.fb.org/viewpoints/the-adverse-effect-of-the-h-2a-wage-rate [https://perma.cc/3MD6-L57A] (arguing against increases to pay for guest workers). ↑
- Farm Workforce Modernization Act of 2019, H.R. Rep. No. 116‑328, at 57. ↑
- David N. Cassuto & Cayleigh Eckhardt, Don’t Be Cruel (Anymore): A Look at the Animal Cruelty Regimes of the United States and Brazil with a Call for a New Animal Welfare Agency, 43 B.C. Env’t. Aff. L. Rev. 1, 8 (2016); Jimena Uralde, Congress’ Failure to Enact Animal Welfare Legislation for the Rearing of Farm Animals: What Is Truly at Stake?, 9 U. Miami Bus. L. Rev. 193, 205 (2001). ↑
- Michael McFadden, Farmed Animals & the AWA, 25 Animal L. 203, 205 (2016) (reviewing the legislative history of the Animal Welfare Act). ↑
- Id. at 203; Uralde, supra note 126. ↑
- See, e.g., Jessica Berch, If You Don’t Have a Cow (or Chicken or Pig), You Can’t Call it Meat: Weaponizing the Dormant Commerce Clause to Strike Down Anti‑Animal‑Welfare Legislation, 2021 Utah L. Rev. 73, 74 (surveying these laws). ↑
- Cal. Health & Safety Code § 25991(e)(3). ↑
- Nat’l Pork Producers Council v. Ross, No. 21–468, slip op. at 2–3 (U.S. May 11, 2023). ↑
- Id. at 2. The precise legal significance of the plethora of consumer choice is unclear. But the celebration of consumer choice appears to serve as a counterpoint to the dissent’s lament on regulation’s economic impacts for pork producers. Id. (Kavanaugh, J., concurring in part and dissenting in part) (emphasizing potential costs of for industry, impacts for labor, and disruption to food safety). ↑
- N.D. Const. art. XI, § 29; Mo. Const. art. I, § 35. Oklahoma and Indiana both considered but ultimately rejected amendments. See Michele H. Inman, An Investigation into the Potential Impact of Carve‑Outs for Ranching and Farming Protections Through State Constitutional Amendments, 81 Alb. L. Rev. 1417, 1427−30 (2018) (describing all four state constitutional amendment efforts and suggesting that the American Legislative Exchange Council, a right‑wing legislative reform group, was involved in all four). ↑
- Inman, supra note 133, at 1428 (quoting the language of each of these amendments and draft amendments); Jennifer Bennett, Act vs. Amendment: Schultz Family Farms, Legislative Exceptions, and the Future of Right‑to‑Farm, 23 J. Env’t. & Sustainability L. 2, 13–18 (2016) (describing constitutional amendments in Missouri and North Dakota). ↑
- Inman, supra note 133, at 1425 (citing Tom Buchanan, Right to Farm Bill: Legislation Protects Oklahoma’s Farming, Ranching Heritage, Oklahoman (Apr. 8, 2015), http://newsok.com/right‑to-farm-bill-legislation-protects-oklahomas-farming-ranching-heritage/article/5408124) [https://perma.cc/3KYG-S34U]. Voters ultimately defeated this amendment. ↑
- The rules, proposed in 2022 and finalized in 2023, parallel a rule promulgated by the Obama Administration but withdrawn by the Trump Administration in 2018. National Organic Program: Organic Livestock and Poultry Standards, 88 Fed. Reg. 75394, 75396–75400 (Nov. 2, 2023) (summarizing this regulatory history). ↑
- See, e.g., Michigan Agri‑Business Ass’n, Comment Letter on Proposed Rule to Amend Organic Livestock and Poultry Standards, 87 Fed. Reg. 48562 (Oct. 3, 2022), https://www.regulations.gov/comment/AMS-NOP-21-0073-29271 [https://perma.cc/FEZ2-29ZU]; Am. Farm Bureau Fed’n, Comment Letter on Proposed Rule to Amend Organic Livestock and Poultry Standards, 87 Fed. Reg. 48562 (Nov. 4, 2022), https://www.regulations.gov/comment/AMS-NOP-21-0073-33751 [https://perma.cc/B4SY-FSPP]; see also National Organic Program (NOP); Organic Livestock and Poultry Practices, 83 Fed. Reg. 10775, 10779 (Mar. 13, 2018) (to be codified at 7 C.F.R. pt. 205) (withdrawing the Obama Administration rule on the ground that “the costs to consumers of implementing the OLPP final rule would outweigh any potential benefits to consumers because it anticipates that a significant portion (50 percent) of current organic egg producers would exit the organic market following implementation, resulting in supply shortages and price increases for organic eggs”). ↑
- National Organic Program: Organic Livestock and Poultry Standards, 88 Fed. Reg. at 75394 (summarizing this regulatory history). ↑
- Id. at 75399. ↑
- Id. at 75395 tbl. 1. ↑
- Food Quality Protection Act of 1996, Pub. L. No. 104‑170, 110 Stat. 1489 (1996) (codified as amended at 21 U.S.C. § 346(a)). ↑
- The Delaney Clause refers to what was previously FFDCA § 409(c)(3), as amended, 21 U.S.C. § 348(c)(3), “which prohibit[ed] the use of any food additive that [was] found to induce cancer.” Les v. Reilly, 968 F.2d 985, 986–87 (9th Cir. 1992). The statute included a pass‑through exception, allowing cancer‑inducing pesticide residues in processed foods only if they did not exceed the tolerance levels established for raw agricultural products. Id. at 987. ↑
- Les, 968 F.2d at 988–89. Under the version of the statute at issue, the EPA was charged with setting tolerance levels for pesticide residues. A different standard applied for raw agricultural commodities (allowing a balancing of costs and benefits) than for processed foods (prohibiting all carcinogens). Id. at 987−88 (describing these two provisions of the statute and the relationship between them); see also Erin E. Moran, Comment, The Food Quality Protection Act of 1996: Does the Delaney Clause Effectively Protect against Cancer or Is It Outdated Legislation, 30 J. Marshall L. Rev. 1127, 1131 n.23 (1997). Today some are pushing to repeal the Delaney Clause entirely. See Steve Armstrong & George E. Dunaif, Food Additive Reform: Time to Repeal the Delaney Clause?, Food & Drug L. Inst., https://www.fdli.org/2019/02/food-additive-reform-time-to-repeal-the-delaney-clause [https://perma.cc/N9VK-RC86] (“[R]epealing this 60‑year‑old section of the FDCA . . . could be an important first step toward aligning the food additive provisions of the Act with a twenty‑first century understanding of cancer risk assessment.”). ↑
- Thomas O. McGarity, Politics by Other Means: Law, Science, and Policy in EPA’s Implementation of the Food Quality Protection Act, 53 Admin. L. Rev. 103, 112 (2001) (recounting this history); James Smart, All the Stars in the Heavens Were in the Right Places: The Passage of the Food Quality Protection Act of 1996, 17 Stan. Env’t. L.J. 273, 307 (1998) (quoting industry reaction to the Les decision). ↑
- McGarity, supra note 144, at 114–17 (describing the political process leading up to the FQPA’s passage). ↑
- McGarity, supra note 144, at 117–18 (describing the new standards). The new standard eliminated consideration of pesticide benefits, a consideration previously allowed for pesticide tolerance levels in raw foods, and it added special protections for children and infants. Id. at 117–19. The FQPA does not define “negligible risk.” Moran, supra note 143, at 1130. The EPA has defined it to exclude pesticides that pose “more than a one in a million chance of harm to a person during the average human lifespan.” Edward M. McDonald, Jr., The Food Quality Protection Act of 1996: By Removing Chemical Irritants from Our Environment Will It Generate Trade Irritants to Replace Them?, 25 Wm. & Mary Env’t. L. & Pol’y Rev. 749, 760 (2001). ↑
- Kristina Thayer & Jane Houlihan, Pesticides, Human Health, and the Food Quality Protection Act, 28 Wm. & Mary Env’t. L. & Pol’y Rev. 257, 282 (2004); see also Dominic P. Madigan, Setting an Anti‑Cancer Policy: Risk, Politics, and the Food Quality Protection Act of 1996, 17 Va. Env’t. L.J. 187, 188 n.3 (1998) (“The legislation passed through the House by a vote of 417‑0. . . . The bill passed through the Senate Agriculture Committee 18‑0 and then the full Senate by a voice vote.”). ↑
- The Food Quality Protection Act of 1995: Hearings on S. 1166 Before the S. Comm. on Agric., Nutrition & Forestry, 104th Cong., at 3 (1996) (statement of John R. Cady, President and Chief Executive Officer of the National Food Processors Association). ↑
- Moran, supra note 143, at 1138. For a detailed history of the FQPA and its implication for EPA’s approach to risk assessment see William Boyd, De‑Risking Environmental Law, 48 Harv. Env’t. L. Rev. 153 (2024), which argues that the FQPA increased the complexity of the EPA’s risk assessment for pesticides in ways that reduced the EPA’s ability to protect public health. ↑
- J.B. Ruhl, Farms, Their Environmental Harms, and Environmental Law, 27 Ecol. L.Q. 263 (2000); Food, Agriculture, and Environmental Law (Mary Jane Angelo et al. eds., 2013). ↑
- Ruhl, supra note 150, at 331–33. ↑
- Who We Are, Am. Farm Bureau Fed’n, https://www.fb.org/about/who-we-are [https://perma.cc/9V4X-Y5GC]. ↑
- Brief of Farm Bureau of Ark., et al. as Amici Curiae Supporting Petitioners, Sackett v. EPA, 598 U.S. 651 (2023) (No. 21‑454), https://www.supremecourt.gov/DocketPDF/21/21-454/221606/20220421135815919_21-454.Amended.Brief.pdf [https://perma.cc/KA7L-5RPQ]. ↑
- Id. at 2. ↑
- Id. at 11–12; see also Brief of Am. Farm Bureau Fed’n et al. as Amici Curiae Supporting Petitioners Petition for Certiorari at 3–4, Foster v. Vilsack, 820 F.3d 330 (No. 16‑186), https://www.scotusblog.com/wp-content/uploads/2016/09/16-186-cert-amicus-AFBF.pdf [https://perma.cc/EKJ3-D3SY] (characterizing environmental law as “increasingly requir[ing] farmers to ask the Government for permission to farm their own land,” and expressing concern that regulators might “enjoin working farmers’ land”). ↑
- Nat. Res. Def. Council v. Costle, 568 F.2d 1369, 1377–79 (D.C. Cir. 1977) (summarizing the agency’s administrative infeasibility argument). ↑
- Id. at 1383 (rejecting the infeasibility argument in light of the plain language of the statute). ↑
- 33 U.S.C. § 1362(14) amended by Clean Water Act of 1977, Pub. L. 95‑217, 91 Stat. 1566 (Dec. 27, 1977) (explaining the change, the Senate Committee on Environment and Public Works emphasized a preference for more localized decision‑making regarding the best approach to address agriculture’s water pollution); S. Rep. No. 95‑370, at 8–10 (1977), as reprinted in 1977 U.S.C.C.A.N. 4326, 4334−35. ↑
- A “comorbidity” is a coexisting—though not necessarily causally related—ailment that may be relevant to detection, diagnosis, and treatment of a medical condition. Comorbidity, Dorland’s Medical Dictionary (33rd ed. 2019). ↑
- Da’Shaun L. Harrison & Kiese Laymon, Belly of the Beast: The Politics of Anti‑Fatness as Anti‑Blackness 11–20 (2021) (exploring the “politics of desire”); Tracy Royce, The Shape of Abuse: Fat Oppression as a Form of Violence Against Women, in The Fat Studies Reader 151 (Esther Rothblum & Sondra Solovay eds., 2009). This is, of course, a context specific claim. See, e.g., Nicole M. Overstreet et al., Beyond Thinness: The Influence of a Curvaceous Body Ideal on Body Dissatisfaction in Black and White Women, 63 Sex Roles 91 (2010) (identifying variation in ideal female body type as between Black and White women); Cindi Sturtz Sreetharan et al., “I Need to Lose Some Weight:” Masculinity and Body Image as Negotiated Through Fat Talk, 21 Psych. Men & Masculinities 148, 149 (2020) (describing research on body norms for men including widespread expectations that men be neither too fat nor too skinny); Robbee Wedow et al., Body Size Reference Norms and Subjective Weight Status: A Gender and Life Course Approach, 96 Soc. Forces 1377 (2018) (identifying regional variation in perceptions of body size norms); see also Alexandra A. Brewis et al., Body Norms and Fat Stigma in Global Perspective, 52 Current Anthropology 269 (2011) (describing variation on body norms and the spread of “thin idealism” and “fat negativism” around the world). ↑
- Harrison & Laymon, supra note 160, at 4; Kathleen Lebesco, Fat Panic and the New Morality, in Against Health: How Health Became the New Morality (Jonathan M. Metzl & Anna Kirkland eds., 2010) (characterizing the war on fat as a moral panic). ↑
- Royce, supra note 160, at 151–55 (observing this phenomenon and noting the limits of existing empirical research to document it); Harrison & Laymon, supra note 160, at 21−32 (exploring this phenomenon specifically as it is experienced by fat Black male‑bodied people). ↑
- See, e.g., Rabia Belt, The Fat Prisoners’ Dilemma: Slow Violence, Intersectionality, and A Disability Rights Framework for the Future, 110 Geo. L.J. 785, 827–28 (2022) (cataloguing the “slow violence” experienced by fat prisoners); Chad Lavin, Eating Anxiety: The Perils of Food Politics (2013) (observing that increased attention to diet and weight in the early years of the twentieth century was attributable at least in part to “the rapid development of fixed‑space public accommodations and commodities, from restaurants to move theaters to mass‑manufactured clothing and furniture, that were increasingly modeled on a standardized body type. It became increasingly inconvenient, in other words, to be fat”). Other examples of fat intolerant environments include airplanes. See Tirosh, supra note 24. ↑
- Lavin, supra note 163, at 76 (internal citation and quotation marks omitted); see infra note 339 and accompanying text (elaborating on this point). ↑
- Sabrina Strings, Fearing the Black Body: The Racial Origins of Fat Phobia (2019). ↑
- Doris Witt, What (N)ever Happened to Aunt Jemima: Eating Disorders, Fetal Rights, and Black Female Appetite in Contemporary American Culture, 17 Discourse 98, 102 (1994) (noting that “in [Joan Jacob] Brumberg’s otherwise meticulously researched history of anorexia, Fasting Girls, the sole entry in her index on African‑American women reads: ‘Blacks, as anorectics, 284nl4’. Needless to say, there is no comparable entry reading ‘Whites, as anorectics, everything but 284n14’”) (internal citation omitted). ↑
- As community organizer Da’Shaun Harrison argues, health also plays a constitutive role in anti‑fatness; specifically, he claims, “[f]or anti‑Blackness and anti‑fatness to be legitimate subjugating and objectifying structures, their existence had to be predicated on a Thing unobtainable by Black fat subjects. That thing is health.” Da’Shaun L. Harrison, Belly of the Beast: The Politics of Anti‑Fatness as Anti‑Blackness 36 (2021); see also Pysche A. Williams‑Forson, Eating While Black: Food Shaming and Race in America (2022) (exploring the various ways in which Black people are policed around food choice). ↑
- Janet L. Dolgin & Katherine R. Dieterich, Weighing Status: Obesity, Class, and Health Reform, 89 Or. L. Rev. 1113, 1161–62 (2011); Lebesco, supra note 161, at 75 (“If African Americans and Latinos are fatter than [W]hites and Asians, and women are more likely than men to be fat, fatness haunts us as a reminder of deteriorating physical privilege in terms of race and sex. It does not surprise me that fatness begins to be framed as an epidemic based on social biases against those we imagine to be indolent and undisciplined only after it becomes more associated with women, the poor, and people of color than wealthy [W]hite men.”). ↑
- Harvey Levenstein, Fear of Food: A History of Why We Worry About What We Eat 125–35 (2012) (describing the early origins of dietary fat vilification and, in particular, the work of physiologist Ancel Keys). ↑
- Id. at 133. ↑
- Id. at 137. ↑
- Id. at 137 (internal quotation marks omitted). ↑
- Id. at 139. More recently, nutrition experts have begun to differentiate between different types of fat and acknowledge complex relationships between health outcomes and fat consumption. See, e.g., Frank B. Hu et al., Types of Dietary Fat and Risk of Coronary Heart Disease: A Critical Review, 20 J. Am. Coll. Nutrition 5 (2001); Lee Hooper et al., Dietary Fat Intake and Prevention of Cardiovascular Disease: Systemic Review, 322 BMJ 757 (2001); Mohsen Mazidi et al., Association of Types of Dietary Fats and All‑Cause and Cause‑Specific Mortality: A Prospective Cohort Study and Meta‑Analysis of Prospective Studies with 1,164,029 Participants, 39 Clinical Nutrition 3677 (2020). ↑
- Levenstein, supra note 169, at 148. From the 1980s through the early 2000s, the Dietary Guidelines recommended restrictions on overall fat intake. In the 1990s, the guidelines introduced the concept of “good” fats and “bad” fats and began to emphasize shifting consumption to good fats. In 2010, the guidelines no longer included a recommendation on total fat reduction and instead emphasized reduction of saturated (“bad”) fats in particular. Barbara Schneeman, Evolution of Dietary Guidelines, 103 J. Am. Dietetic Ass’n. 85, 86 (2003); Lisa Jahns et al., The History and Future of Dietary Guidance in America, 9 Advances Nutrition 136 (2018). The Dietary Guidelines are widely critiqued for their misrepresentation of the scientific evidence and, in some cases, for overstating recommendations despite weak or limited evidence. See, e.g., Adele H. Hite et al., In the Face of Contradictory Evidence: Report of the Dietary Guidelines for Americans Committee, 26 Nutrition 915 (2010) (criticizing the report accompanying the 2010 guidelines for drawing a variety of strong conclusions not fully supported in the scientific literature); see also Marion Nestle, Perspective: Challenges and Controversial Issues in the Dietary Guidelines for Americans, 1980–2015, 9 Advances in Nutrition 148 (2018). ↑
- Nutrition Standards in the National School Lunch and School Breakfast Programs, 7 C.F.R. § 210.10(d) (2012). In 2023, the House passed a bill reversing this policy and prohibiting the USDA from restricting milk choices, including of whole milk or of flavored milk. Whole Milk for Healthy Kids Act of 2023, H.R. 1147, 118th Cong. (2023) (the bill is currently pending in the Senate). ↑
- I am instead sympathetic to the argument that body size diversity should be celebrated and that policy discussions should focus around flourishing, which would include attention to elements other than body size itself such as mobility. See infra Part III (elaborating on this approach). ↑
- To some extent, it also follows from the role of race and class in constructing antagonism toward fatness. If fatness signifies social otherness, eliminating it is actually undesirable from the perspective of those in power. Cf. Dolgin & Dieterich, supra note 168 (making this argument with regard to poverty). ↑
- Lavin, supra note 163, at 78–82 (offering a political analysis of the personal responsibility narrative); Adam Benforado et al., Broken Scales: Obesity and Justice in America, 53 Emory L.J. 1645 (2004). ↑
- Pollans, supra note 4, at 668–69; Pollans, supra note 70. ↑
- Eugene McCarthy, Corporate Law, Misdirection, and the Obesity Epidemic, 60 Washburn L.J. 197, 206 (2021). For instance, the Dietary Guidelines for Americans refer occasionally to overall calorie limits and to portion control, but the bulk of the recommendations focus on dietary components and limits with regard to particular categories of foods. U.S. Dep’t. of Agric. & U.S. Dep’t. of Health & Hum. Servs., 2020–2025 Dietary Guidelines for Americans (9th ed. 2020), [hereinafter 2020−2025 Dietary Guidelines for Americans] https://www.dietaryguidelines.gov/sites/default/files/2021-03/Dietary_Guidelines_for_Americans-2020-2025.pdf [https://perma.cc/3HMD-AB9K]. But see U.S. Dep’t. of Agric. & U.S. Dep’t. of Health & Hum. Servs., 2010 Dietary Guidelines for Americans ix [hereinafter 2010 Dietary Guidelines for Americans], https://health.gov/sites/default/files/2020-01/DietaryGuidelines2010.pdf [https://perma.cc/2UTG-3467] (including as a first recommendation, the suggestion that “many Americans must decrease the calories they consume” in order “[t]o curb the obesity epidemic and improve their health”). Even this report, however, stops short of a general call on Americans to eat less and instead focuses on the kinds of things that people should eat less of. Id. at x. Consider also “Let’s Eat for the Health of It,” a four‑page brochure designed to translate the guidelines for broader consumption. This document does include the phrase “eat less,” but it follows other recommendations about particular food choices. U.S. Dep’t. of Agric. & U.S. Dep’t. of Health & Hum. Servs., Let’s Eat For the Health of It (2011), https://www.dietaryguidelines.gov/sites/default/files/2019-05/DG2010Brochure.pdf [https://perma.cc/994D-URL7]. ↑
- 2010 Dietary Guidelines for Americans, supra note 180, at 11. The guidelines do not, however, acknowledge the existence of obesogenic chemical exposures. See infra note 185 (discussing this issue). ↑
- 2010 Dietary Guidelines for Americans, supra note 180, at 10–11. ↑
- One significant example of a success story is the 2010 Healthy Hunger Free Kids Act, which directed the USDA to set more stringent nutrition standards for food served in schools through National School Lunch and Breakfast programs. The school lunch and breakfast programs serve around 30 million students in 90,000 schools per year. Kara Clifford Billings, Cong. Rsch. Serv., R46234, School Meals and Other Child Nutrition Programs: Background and Funding (2023). The USDA promulgated new standards in 2012 that, among other things, required increased service of whole grains, fruits, vegetables, and meat alternatives. Id. at 25. Following pushback to the new standards, the USDA relaxed some of the standards. Id. at 26. Despite continued controversy about the requirements, many scientists view them as a success from the public health perspective. See, e.g., Eric L. Kenney et al., Impact of the Healthy, Hunger‑Free Kids Act on Obesity Trends, 39 Health Affs. 1122 (2020). ↑
- See McCarthy, supra note 180 (documenting food industry influence on federal nutrition policy). Another explanation lies in the institutional culture of the USDA, one of the agencies driving federal nutrition policy. The agency’s mission is to promote food production, which, for most of its history, has been synonymous with the politics of abundance. ↑
- Some scientists are now also linking increasing body size with exposure to obesogenic chemicals from sources other than food. See, e.g., Guthman, supra note 17, at 101–13 (describing the relationship between increased body size and exposure to endocrine disrupting chemicals). ↑
- For a general treatment of the many things that Congress has not done to address the problems of processed food, see David Burnett, Fast‑Food Lawsuits and the Cheeseburger Bill: Critiquing Congress’s Response to the Obesity Epidemic, 14 Va. J. Soc. Pol’y & L. 357, 366 (2007). ↑
- Michael Moss, Salt, Sugar, Fat: How the Food Giants Hooked Us (2013); Anne Barnhill, Choice, Respect and Value: The Ethics of Healthy Eating Policy, 5 Wake Forest J.L. & Pol’y 1, 12–14 (2015) (identifying four categories of eating as “mindless behavior” and including addictive eating as one of the four). The current state of the research suggests that sugar and other food additives are not addictive in the neurochemical sense of the word, but these ingredients can have parallel effects. Serge H. Ahmed et al., Sugar Addiction: Pushing the Drug‑Sugar Analogy to the Limit, 16 Current Op. Clinical Nutrition & Metabolic Care 434 (2013) (finding evidence that sugar generates a neurobiological reward that can create difficulty in controlling consumption); Margaret L. Westwater et al., Sugar Addiction: The State of the Science, 55 Eur. J. Nutrition 55 (2016) (concluding that sugar does not have neurobiologically addictive properties). ↑
- Lindsay F. Wiley, Shame, Blame, and the Emerging Law of Obesity Control, 47 U.C. Davis L. Rev. 121, 125 (2013) (describing and critiquing this analogy and how it has been employed). ↑
- Pelman v. McDonald’s Corp., 237 F. Supp. 2d 512 (S.D.N.Y. 2003). ↑
- Id. at 537–40. ↑
- H.R. Rep. No. 108‑432, at 3 (2004). ↑
- Id. at 6 (quoting C. Spencer et al., Fast Food in the Gunsights—Class Actions as Political Weapons, 2002 Toxics L. Rep. 1093 (emphasis added by the House Report)). ↑
- Id. at 10. ↑
- Id. at 7. ↑
- Cat Pausé, Borderline: The Ethics of Fat Stigma in Public Health, 45 J.L. Med. & Ethics 510 (2017) (contrasting the moral framework of antismoking campaigns with that of anti‑fatness campaigns). ↑
- Id. ↑
- Id. at 513 (arguing that this critical difference highlights the moral quagmire of public health campaigns around fatness and obesity); Lindsay F. Wiley, Sugary Drinks, Happy Meals, Social Norms, and the Law: The Normative Impact of Product Configuration Bans, 46 Conn. L. Rev. 1877, 1884 (2014) (describing advocacy efforts to “denormaliz[] fatness itself, rather than unhealthy products or overconsumption of them”); Wiley, supra note 188 (suggesting that the fight against HIV offers a more appropriate model for public health advocates concerned about obesity than does the antismoking campaign); see also Josef Weimholt, “Bringing A Butter Knife to A Gun Fight”? Salience, Disclosure, and FDA’s Differing Approaches to the Tobacco Use and Obesity Epidemics, 70 Food & Drug L.J. 501, 503 (2015). ↑
- World Health Org. [WHO], Tackling NCDs: ‘Best Buys’ and Other Recommended Interventions For the Prevention and Control of Noncommunicable Diseases, 10 (2017), https://apps.who.int/iris/bitstream/handle/10665/259232/WHO-NMH-NVI-17.9-eng.pdf [https://perma.cc/D9WH-EYEQ]. See also Set of Recommendations on the Marketing of Foods and Non‑Alcoholic Beverages to Children, WHO (2010), https://apps.who.int/iris/rest/bitstreams/52869/retrieve [https://perma.cc/74HS-A58S]. ↑
- Luke N. Allen et al., Implementation of Non‑Communicable Disease Policies: A Geopolitical Analysis of 151 Countries, 8 Lancet Glob. Health e50, e53 (2020). ↑
- Tim Dorlach & Paul Mertenskotter, Interpreters of International Economic Law: Corporations and Bureaucrats in Contest over Chile’s Nutrition Label, 54 L. & Soc’y Rev. 571 (2020) (describing the Chilean law). The UK implemented new marketing restrictions in 2023, banning certain television ads before 9 p.m. and advertisements on social media platforms. Mark Sweney, UK to Ban Junk Food Advertising Online and Before 9 PM on TV From 2023, The Guardian (June 23, 2021), https://www.theguardian.com/media/2021/jun/23/uk-to-ban-junk-food-advertising-online-and-before-9pm-on-tv-from-2023 [https://perma.cc/K9ND-XKL8]. ↑
- Rachel Smith et al., Food Marketing Influences Children’s Attitudes, Preferences and Consumption: A Systematic Critical Review, 11 Nutrients 875 (2019). ↑
- Angela J. Campbell, Rethinking Children’s Advertising Policies for the Digital Age, 29 Loy. Consumer L. Rev. 1, 16–24 (2016) (describing the current state of limits on advertising to children). ↑
- Angela J. Campbell, Restricting the Marketing of Junk Food to Children by Product Placement and Character Selling, 39 Loy. L.A. L. Rev. 447, 448−55 (2006). ↑
- Susan Elliott et al., In re Children’s Advertising, FTC Final Staff Report and Recommendation, 43 Fed. Reg. 17967 (1981). ↑
- Campbell, supra note 203, at 22–24 (describing the regulatory and statutory history). ↑
- Tracy Westen, Government Regulation of Food Marketing to Children: The Federal Trade Commission and the Kid‑Vid Controversy, 39 Loy. L.A. L. Rev. 79, 83–85 (2006). ↑
- Id. at 87. ↑
- Id. at 83. ↑
- See supra Section I.A (identifying the various vectors of abundance). At the same time, some states have sought to limit the speech of critics of the food system through food libel and agricultural anti‑whistleblower (“ag‑gag”) laws. Pollans, supra note 4, at 673–77 (describing legal efforts to suppress criticism of food and food production). Another policy contradiction here is the occasional effort, sometimes involving criminal neglect prosecution, by state child welfare agencies to intervene where children have become too fat. See, e.g., Shireen Arani, State Intervention in Cases of Obesity‑Related Medical Neglect, 82 B.U. L. Rev. 875, 875 (2002); Elizabeth Ralston, Kinderlarden Cop: Why States Must Stop Policing Parents of Obese Children, 42 Seton Hall L. Rev. 1783 (2012); Shauneen M. Garrahan & Andrew W. Eichner, Tipping the Scale: A Place for Childhood Obesity in the Evolving Legal Framework of Child Abuse and Neglect, 12 Yale J. Health Pol’y, L. & Ethics 336 (2012). ↑
- Wiley, supra note 19, at 149–50. ↑
- See, e.g., Sharon Bernstein, Fast‑Food Industry is Quietly Defeating Happy Meal Bans, L.A. Times (May 18, 2011), http://articles.latimes.com/2011/may/18/business/la-fi-happy-meal-backlash-20110518 [https://perma.cc/U8P5-3DBY]. ↑
- Wiley, supra note 19, at 184–85 (calling for environmental interventions over behavioral interventions). ↑
- New York Statewide Coal. of Hisp. Chambers of Com. v. New York City Dep’t of Health & Mental Hygiene, 23 N.Y.3d 681, 690 (2014). ↑
- Id. at 694. ↑
- Id. at 698. ↑
- Wiley, supra note 19. ↑
- Id. at 162–63. Political scientist Chad Lavin takes this argument a step further, arguing that it is precisely because “the obese body . . . violates the imperative to self‑governance and individual responsibility while also calling attention to the threat of economic power and the fallacies of individual sovereignty and self‑control” that we consider it to be “increasingly disgusting.” Lavin, supra note 163, at 141. In other words, because seeing fat people reminds us that self‑control is actually limited, we condemn them. ↑
- “To medicalize is to treat particular behaviors or conditions as diseases or disorders. These can then be measured, monitored, and presumably cured.” Guthman, supra note 17, at 25, 24–36 (describing some of the history of medicalization of fatness as obesity); Jeffery Sobal, The Medicalization and Demedicalization of Obesity, in Eating Agendas: Food and Nutrition as Social Problems (Donna Maurer ed., 1995). The modern era of obesity medicine arguably began in 1985 when a consensus panel of the National Institute of Health issued a report concluding that obesity can have significant health implications. B.T. Burton & W.R. Foster, Health Implications of Obesity: an NIH Consensus Development Conference, 85 J. Am. Diet. Assoc. 1117 (1985). ↑
- See Katie Warden, A Disability Studies Perspective on the Legal Boundaries of Fat and Disability, 39 Minn. J.L. & Ineq. 155, 163–64 (2021) (describing the medicalization of fatness). ↑
- Antidiscrimination law provides little protection from the more virulent forms of this stigma. Under both federal and state law, fat people have few protections from discrimination. Tirosh, supra note 24. Indeed, some scholars have explicitly argued that antidiscrimination law is inappropriate in this context because, “ultimately, individual choice plays the most prominent role in obesity.” M. Neil Browne, Obesity as a Protected Category: The Complexity of Personal Responsibility for Physical Attributes, 14 Mich. St. U. J. Med. & L., at 1, 10 (2010). At least in part reflecting this view, the Americans with Disabilities Act (ADA) only sometimes classifies obesity as a disability. “Obese” people are entitled to legal protections from some kinds of discrimination “when it can be attributed to a particular physiological cause.” “[O]nly morbid obesity, when supported by medical testimony that it is caused by a physiological condition, can be considered a disability.” 111 Am. Jur. 3d Proof of Facts § 391, Westlaw (database updated Apr. 2022); Jane Korn, Too Fat, 17 Va. J. Soc. Pol’y & L. 209, 246 (2010) (arguing for broader classification of obesity as a disability under the ADA). Accordingly, obese individuals receive legal protections only in limited circumstances when the physical condition of obesity can be directly tied to another physical condition. This narrow read of the ADA reflects both a “medical model of disability” and the tendency of courts “to differentiate between individuals deemed worthy of social support . . . and those considered undeserving.” Warden, supra note 219, at 155, 157 (drawing these conclusions from a review of case law interpreting the ADA). By contrast to the “medical model of disability,” in a social model, “[t]he fat body is disabled because it is discriminated against in two ways: first, fat bodies are subordinated by a built environment that excludes them; second, fat bodies are seen as unfortunate and contemptible.” Id. at 161 (quoting Rosemarie Garland‑Thomson, Feminist Disability Studies, 30 Signs: J. Women Culture & Soc’y 1557, 1582 (2005)). Some jurisdictions offer greater protection. For instance, in Washington, obesity always qualifies as an impairment under the plain language of the Washington Law Against Discrimination. Taylor v. Burlington N. R.R. Holdings, Inc., 444 P.3d 606, 608 (2019). This classification of “obesity” as a disability creates the possibility of combatting workplace discrimination against fat people, which is pervasive and otherwise extremely difficult to challenge. See generally 111 Am. Jur. 3d. Proof of Facts, supra note 220; Tirosh, supra note 24. Similarly, in 2023, New York City passed a prohibition on height and weight discrimination in employment, housing, and public accommodation. N.Y.C. Human Rights L., N.Y.C. Admin. Code § 8‑101. Reliance on disability law to combat anti‑fat discrimination is problematic for two other reasons. First, it draws on a distinction between healthy and unhealthy fat people. Under federal law, otherwise healthy fat people merit no legal protections. As many have argued, the right not to be discriminated against should not hinge on whether or not a person is healthy. Lauren E. Jones, The Framing of Fat: Narratives of Health and Disability in Fat Discrimination Litigation, 87 N.Y.U. L. Rev. 1996, 1998 (2012). Second, it relies on the determination that fat people, healthy or not, are disabled. Many fat activists resist the treatment of fatness as a disability, preferring to lobby for antidiscrimination laws that identify fatness explicitly as a protected class. Warden, supra note 219, at 164–66. This resistance to classification of fatness as a disability can also run counter to the underlying thread of the disability justice movement, which resists the framework of disability as normatively undesirable. Jones, supra note 220, at 1999–2000 (exploring these tensions); see also Belt, supra note 163, at 824 (suggesting that “the way forward necessitates recognizing the importance of the body and possible negative aspects of impairment without falling into the trap of ableism, challenging negative ableist social conditions without overemphasizing overly positive disability chronicles, and avoiding the resurrection of the medical model of disability”). ↑
- See Guthman, supra note 17, at 25 (acknowledging that medicalization is a “double‑edged sword”). ↑
- Pausé, supra note 195; Wiley, supra note 19. ↑
- Wann, supra note 12, at xiii. ↑
- Id. ↑
- Id. at xiv. For literature analyzing the social cost of medicalizing transgender and intersex identities, see Noa Ben‑Asher, The Necessity of Sex Change: A Struggle for Intersex and Transsex Liberties, 29 Harv. J. of L. & Gender 51 (2006). ↑
- Michael J. Malinowski, Biting the Hands That Feed “The Alligators:” A Case Study in Morbid Obesity Extremes, End‑of‑Life Care, and Prohibitions on Harming and Accelerating the End of Life, 44 Am. J.L. & Med. 23, 29 (2018); see also Andrea Bombak, Ethics of Weight Loss Promotion in Public Health, in Encyclopedia of Food and Agricultural Ethics (David M. Kaplan & Paul B. Thompson, eds., 2019). ↑
- Christopher Mayes, Medicalization of Eating and Feeding, in Encylcopedia of Food and Agric. Ethics 1797 (David M. Kaplan & Paul B. Thompson eds., 2019). ↑
- Id. ↑
- Lavin, supra note 163, at 82–87 (describing this trajectory of medicalization). ↑
- See Noa Ben‑Asher, The Curing Law: On the Evolution of Baby‑Making Markets, 30 Card. L. Rev. 1995 (2009) (using the phrase the “curing law” to refer to a paradigm in which infertility is understood as a medical condition, thus reproductive technologies that are understood as “cures” for this condition are sanctioned via legal markets and insurance coverage whereas those not understood as “cures” are prohibited). ↑
- See, e.g., Stephan Guyenet, The Hungry Brain: Outsmarting the Instincts that Make Us Overeat (2017). ↑
- Lindsay F. Wiley, Access to Health Care as an Incentive for Healthy Behavior? An Assessment of the Affordable Care Act’s Personal Responsibility for Wellness Reforms, 11 Ind. Health L. Rev. 635, 653–64 (2014) (describing the ACA workplace wellness programs, which target smoking in addition to obesity). Wiley applauds implementation of these programs noting that implementing rules “indicate appropriate skepticism toward an approach that places the onus on individuals to change their behavior, without necessarily making it more feasible for them to do so;” that an agency‑commissioned study “provides a much‑needed antidote to hyperbolic wellness industry claims regarding the potential public‑health benefits and cost savings of incentive‑based programs,” and that agency “sharply curtails the most punitive approaches.” Id. at 708. ↑
- For instance, retailers that wish to be eligible to accept Electronic Benefit Transfer (EBT) payments from recipients of Supplement Nutrition Assistance must meet minimum healthy food stocking requirements. 7 C.F.R. § 278.1; see also U.S. Dept. of Agric., Food & Nutrition Serv., Store Eligibility Requirements, https://www.fns.usda.gov/snap/retailer/eligible [https://perma.cc/6CME-FLX7] (last updated Nov. 29, 2023) (depicting these requirements graphically). ↑
- Pollans, supra note 4. ↑
- Wiley, supra note 19. ↑
- Id. at 158–60 (describing various school‑based obesity control programs); Kathleen Lebesco, Neoliberalism, Public Health, and the Moral Perils of Fatness, 21 Crit. Public Health 153, 156–59 (2011). ↑
- Pausé, supra note 195, at 513 (contrasting the ethics of these campaigns, which target fatness itself, with antismoking campaigns, which targeted the behavior of smoking). ↑
- Wiley, supra note 19, at 151–53 (describing status of these efforts). ↑
- Wiley, supra note 19, at 151–53. ↑
- Janet L. Dolgin, Unhealthy Determinations: Controlling “Medical Necessity,” 22 Va. J. Soc. Pol’y & L. 435 (2015) (exploring the significance of determinations of medical necessity including in the insurance context where determinations are often a prerequisite for coverage); Amy B. Monahan & Daniel Schwarcz, Rules of Medical Necessity, 107 Iowa L. Rev. 423 (2022) (describing how insurance companies have shifted from standards based definitions to rules based definitions of medical necessity). One in five of adults with insurance have coverage for weight‑loss drugs. See Yuan Lu et al., Racial and Ethnic Disparities in Financial Barriers Among Overweight and Obese Adults Eligible for Semaglutide in the United States, 11 J. Amer. Heart Assoc. 1 (2022) (finding that people of color eligible for a semaglutide drug are more likely to experience financial barriers to access and describing the extreme limitations in current access to insurance coverage even among those with insurance); Amjad Kanj & Diane Levine, Overcoming Obesity: Weight‑Loss Drugs Are Underused, 87 Cleveland Clinic J. Med. 602 (2020) (describing the limits of insurance coverage). ↑
- Neal W. Fandek, Obesity Care & Weight Loss: What’s Covered and What’s Not?, GoodRX Health (2021), https://www.goodrx.com/conditions/weight-loss/weight-loss-treatments-insurance-coverage [https://perma.cc/835H-LQ3] (describing the current landscape of insurance coverage for various weight‑loss treatments). ↑
- Monahan & Schwarcz, supra note 240, at 443 n.101. ↑
- Gina Kolata, New Obesity Drugs Come with a Side Effect of Shaming, N.Y. Times (2023), https://www.nytimes.com/2023/06/14/health/obesity-drugs-wegovy-ozempic.html?searchResultPosition=5 [https://perma.cc/63BW-GK38]. ↑
- Gina Kolata, The Doctor Prescribed an Obesity Drug. Her Insurer Called it ‘Vanity,’ N.Y. Times (May 31, 2022), https://www.nytimes.com/2022/05/31/health/obesity-drugs-insurance.html [https://perma.cc/PUZ3-VZJD] (noting that some insurers classify weight‑loss drugs as “vanity” drugs). The Affordable Care Act did change this landscape to some degree, prohibiting insurers from charging higher premiums on the basis of obesity. 42 U.S.C. § 300gg(a)(1)(A) (prohibiting discriminatory pricing on any basis other than age, tobacco use, rating area, and number of covered individuals). ↑
- Wiley, supra note 19, at 152. ↑
- Wiley, supra note 19, at 151–53. ↑
- Hamlet Gasoyan & David B. Sarwer, 30 Obesity 2338 (2023). Stringent prior authorization requirements remain barriers to utilization. Id. Many states offer coverage for surgery for state employees. See, e.g., Tex. Ins. Code Ann. § 1551.225; Gasoyan & Sarwer, supra note 247 (noting that state employee programs include some coverage); see also Mayes, supra note 227, at 1799 (observing that some pressure for performance of surgery and insurance coverage comes from the companies that profit from the sale of medical devices used in these surgeries). ↑
- See Kluttz‑Ellison v. Noah’s Playloft Presch., 873 S.E.2d 414, 416–17 (N.C. Ct. App. 2022), cert. granted, 878 S.E.2d 803 (N.C. 2022); Holtzen v. T.L.W. Enters. of York, Inc., No. A‑18‑923, 2019 WL 2209173, at *2 (Neb. May 14, 2019). But see Verizon Bus. Network Servs., Inc. v. McKenzie, No. 11‑1845, 2012 WL 4899244, at *12 (Iowa Ct. App. Oct. 17, 2012) (reversing district court’s decision that Verizon had to pay for the plaintiff’s bariatric surgery under workers’ compensation and remanding to administrative agency). ↑
- See, e.g., Kolata, supra note 244 (noting that some insurers classify weight‑loss drugs as “vanity” drugs); G. Gomez & F.C. Stanford, U.S. Health Policy and Prescription Drug Coverage of FDA‑approved Medications for Treatment of Obesity, 42 Int’l. J. of Obesity 495 (2018) (reviewing state health care exchanges and finding that only nine of the thirty‑four states evaluated had some plans that included some coverage for weight loss drugs); Brenda Goodman, Insurance Denials for Popular New Weight Loss Medications Leave Patients With Risky Choices, CNN (Jan. 8, 2024), https://www.cnn.com/2024/01/08/health/weight-loss-drug-insurance-denials/index.html [https://perma.cc/GGB4-8ZQX]. Congress instituted a ban on Medicare coverage of weight‑loss drugs in 2003 partially in response to concerns about safety stemming from concerns related to Fen‑phen, a widely touted new weight‑loss drug that turned out to have serious cardiovascular side effects. See also Meagan R. Nolan, Food for Thought: Increasing Access to and Coverage of Eating Disorder Treatment in New York State by Amending the Definition of “Substance Use Disorder,” 50 Hofstra L. Rev. 213 (2021). ↑
- Medications Containing Semaglutide Marketed for Type 2 Diabetes or Weight Loss, U.S. Food & Drug Admin. (2024), https://www.fda.gov/drugs/postmarket-drug-safety-information-patients-and-providers/medications-containing-semaglutide-marketed-type-2-diabetes-or-weight-loss [https://perma.cc/D2F4-9XMS]. ↑
- See, e.g., Ganny Beloni, Next‑Gen Weight‑Loss Drugs Receive Tentative Embrace by Medicaid, Bloomberg Law (July 26, 2023), https://news.bloomberglaw.com/health-law-and-business/next-gen-weight-loss-drugs-receive-tentative-embrace-by-medicaid [https://perma.cc/3KCA-FA96]. ↑
- See, e.g., Maintenance Phase, Ozempic, Apple Podcasts at 51:32 (Oct. 10, 2023), https://podcasts.apple.com/us/podcast/ozempic/id1535408667?i=1000630805156 [https://perma.cc/H8JD-RYXL]. ↑
- See, e.g., Lu et al., supra note 240. ↑
- See supra notes 164–168 and accompanying text. ↑
- Belt, supra note 163; Virginia Sole‑Smith, Fat Talk: Parenting in the Age of Diet Culture (2021) (describing experiences of fat people engaging with medical professionals). ↑
- Sabrina Strings & Linda Bacon, The Racist Roots of Fighting Obesity, Scientific American (June 4, 2020), https://www.scientificamerican.com/article/the-racist-roots-of-fighting-obesity2 [https://perma.cc/GZN6-NA8P]; Strings, supra note 165. ↑
- Kate Mulherin, Weight Stigma in Maternity Care: Women’s Experiences and Care Providers’ Attitudes, 13 BioMed Central Pregnancy Childbirth 19 (2013). Some scholars, looking at data related both to maternal mortality and to pregnancy loss, have explored the potential legal basis for criminalizing maternal obesity. See Christopher M. Burkle, Punishing Maternal Behavior: Potential Legal Consequences for Obesity‑Associated Poor Fetal Outcome in the United States, 34 J. Legal Med. 251, 270 (2013) (calling for behavioral interventions in order to forestall any future push for criminal punishment of maternal obesity); see also Kristen E. Brierley, Family Law‑Childhood Morbid Obesity: How Excess Pounds Can Tip the Scales of Justice in Favor of Removing a Child from the Home and/or Termination of Parental Rights, 35 W. New Eng. L. Rev. 129, 158 (2013) (exploring the role of obesity diagnoses in termination of parental rights proceedings in Massachusetts). ↑
- Levenstein, supra note 169, at 161 (identifying puritanical instincts as an underlying driver in fear of fatness). One need look no further than Amazon to find immediate evidence of the moral valence of obesity. A quick search for weight‑loss self‑help books turns up a slew of titles. See, e.g., Cody Nickson, Catechism of Fat Loss (2023) (promising to illuminate readers as to what they are doing wrong); Raymond L. Richmond, Weight Reduction Through Prayer and Faith (2021); Walter Labetti, Diet 666: Death Defying Results (2019) (the Ts on the cover are all replaced with crosses). ↑
- See, e.g., Kristen Cooksey‑Stowers et al., Food Swamps Predict Obesity Rates Better Than Food Deserts in the United States, 14 Int. J. Env’t. Res. Pub. Health 1366 (2017); Emma Lozon, The Dialectic of Food Swamps and Clean Food: Ecological Interventions for Disrupting Individualizing Frames of Food Choice, 4 Rhetoric Health & Med. 218 (2021); Jada Fehn, Swamped: How Local Governments Can Improve Health by Balancing Exposure to Fat, Sugar, and Salt‑Laden Fringe Foods, 24 J. Affordable Hous. & Comty. Dev. L. 565 (2016) (laying out some of the features of law that contribute to and combat food swamps). ↑
- Wiley, supra note 19. ↑
- See supra Section II.B.1. ↑
- See, e.g., Susan Greenhalgh, Fat‑Talk Nation: The Human Costs of America’s War on Fat (2015). ↑
- See, e.g., Guthman, supra note 17, at 26–32 (describing the history of the BMI index and the ways in which it has been used to “construct[] an [obesity] epidemic”). ↑
- 2010 Dietary Guidelines for Americans, supra note 180, at 9. ↑
- Id. The 2015 Guidelines mention “diet‑related disease” seven times. See generally U.S. Dep’t of Agric. and U.S. Dep’t of Health and Hum. Servs., 2015−2020 Dietary Guidelines for Americans (8th ed. 2015), https://www.dietaryguidelines.gov/sites/default/files/2019-05/2015-2020_Dietary_Guidelines.pdf [https://perma.cc/8MKT-CMA8]. The 2020 edition references “diet‑related disease” eighteen times and obesity thirty‑four times. See 7 C.F.R. § 210.10(d) (2012). The White House has made a similar shift. Compare White House Task Force on Childhood Obesity Report to the President, Let’s Move!, https://letsmove.obamawhitehouse.archives.gov/white-house-task-force-childhood-obesity-report-president [https://perma.cc/SMT5-DNJF], with White House Task Force on Childhood Obesity, Solving the Problem of Childhood Obesity Within a Generation 49 (2010), https://letsmove.obamawhitehouse.archives.gov/sites/letsmove.gov/files/TaskForce_on_Childhood_Obesity_May2010_FullReport.pdf [https://perma.cc/UVS4-QAEL] (mentioning diet‑related disease only once), and Off. Disease Prevention & Health Promotion, White House Conf. on Hunger, Nutrition, and Health Ending Hunger, U.S. Dep’t of Health & Hum. Servs., https://health.gov/our-work/nutrition-physical-activity/white-house-conference-hunger-nutrition-and-health [https://perma.cc/3Q3D-4W2X] (last updated July 25, 2024) (emphasizing the need to assess how current programing affects “food insecurity and diet‑related diseases”). ↑
- 2020–2025 Dietary Guidelines for Americans, supra note 180, at viii. ↑
- Id. ↑
- See Erik Tompkins, Cong. Rsch. Serv., IF11708, Obesity in the United States and Effects on Military Recruiting (2020), https://crsreports.congress.gov/product/pdf/IF/IF11708#:~:text=The%20high%20and%20rising%20prevalence%20of%20obesity%20in,to%20conditions%20that%20would%20require%20many%20additional%20recruits [https://perma.cc/9U4C-D5NT] (discussing how “[t]he high and rising prevalence of obesity in the United States represents a substantial obstacle for military recruitment”); Agata Dabrowska, Cong. Rsch. Serv., R41420, Childhood Overweight and Obesity: Data Brief (2014), https://crsreports.congress.gov/product/pdf/R/R41420/10#:~:text=Congressional%20Research%20Service%20Summary%20In%20children%20and%20adolescents%2C,is%20defined%20as%20being%20between%20the%2085thand%2094th [https://perma.cc/EF5S-J54T] (referring to obesity as “a major public health problem”). ↑
- Healthy People 2030, Browse Objectives by Topic, U.S. Dep’t of Health and Hum. Servs. Off. Disease Prevention & Health Promotion, https://health.gov/healthypeople/objectives-and-data/browse-objectives [https://perma.cc/F3YG-Y7ME]; About Healthy Weight and Growth, U.S. Ctrs. for Disease Control & Prevention, https://www.cdc.gov/healthyweight/index.html [https://perma.cc/5W83-WZ5D]. ↑
- See, e.g., Treat and Reduce Obesity Act of 2021, H.R. 1577, 117th Cong. § 596 (2021). The “Treat and Reduce Obesity Act of 2021” was introduced in both the Senate and House of Representatives. It would amend the Social Security Act “to provide for the coordination of programs to prevent and treat obesity” and refers to obesity as an “epidemic.” Id. The Sugary Drinks Act of 2021 proposed an excise tax on sugary drinks to fund the “prevention, treatment, and research of diet‑related health conditions in disproportionately impacted populations,” but also refers to an “obesity epidemic” and discusses obesity as a health problem. The Sugary Drinks Act of 2021, H.R. 2772, 117th Cong. (2021). Similarly, the LIFE Act proposes amending the Public Health Service Act with “the goal of significantly reducing the number of cases of overweight and obesity among individuals in the United States.” The LIFE Act, H.R. 7711, 117th Cong. (2022). Another bill, the Reducing Obesity in Youth Act of 2021 seeks to “promote healthy eating and physical activity among children,” but nevertheless includes “obesity” in the name of the bill and discusses “prevent[ing] obesity” at length. Reducing Obesity in Youth Act of 2021, H.R. 5247, 117th Cong. (2021). ↑
- United States v. Shelton, No. 219CR00002JRGRSP1, 2022 WL 254343, at *1 (E.D. Tex. Jan. 26, 2022). ↑
- Id. ↑
- 18 U.S.C. § 3582. ↑
- Shelton, No. 219CR00002JRGRSP1 at *6 (citing several other compassionate release cases reaching the same conclusion). ↑
- Guthman, supra note 17, at 163 (quoting Steven Colbert saying that “our bodies are the only growth industry America has left”). ↑
- Id. at 174–175; McMichael, supra note 75 (describing this phenomenon). ↑
- Guthman, supra note 17, at 175–77. ↑
- Id. at 178–79; Mayes, supra note 227, at 1799; Levenstein, supra note 169, at 161 (identifying pecuniary interests in profiting from illness as a major driver in perpetuating fears of fatness and illness). ↑
- See supra Section I.B (arguing that policymakers turn to waste redirection rather than source reduction in part because of the power of the politics of abundance). ↑
- Pat Lyons, Prescription for Harm: Diet Industry Influence, Public Health Policy, and the “Obesity Epidemic,” in The Fat Studies Reader 75, 77 (2009) (citing statistics from both the mid and late twentieth century showing no change in this trend); Bombak, supra note 226 (describing some of the psychological and physiological barriers to weight‑loss maintenance). ↑
- Janet Polivy, Psychological Consequences of Food Restriction, 96 J. Am. Dietetic Ass’n 589, 591 (1996); Gayle M. Timmerman & Elizabeth K. Gregg, Dieting, Perceived Deprivation, and Preoccupation with Food, 25 W. J. Nursing Rsch. 405, 415 (2003) (a study of 121 adult women finding a relationship between dietary restraints and “preoccupation with food”); Samantha Brooks, A Systematic Review and Meta‑Analysis of Cognitive Bias to Food Stimuli in People with Disordered Eating Behaviour, 31 Clinical Psych. Rev. 37, 49 (2011). ↑
- Lyons, supra note 280, at 81. ↑
- Greenhalgh, supra note 262, at viii. But see Harrison, supra note 167. ↑
- On the fear of cognitive decline, see Debra Austin, Food for Thought: The Neuroscience of Nutrition to Fuel Cognitive Performance, 95 Or. L. Rev. 425, 430 (2017) (arguing that diet has significant effect on attorney cognitive performance and evaluating different dietary options to improve cognitive performance). ↑
- Michael T. Roberts, Food Law in the United States (2016) (describing the early history of laws prohibiting adulteration). ↑
- Upton Sinclair, The Jungle (1906) (describing the workings of meatpacking plants); Broad Leib & Pollans, supra note 9685, at 1194−95 (describing the political effect of The Jungle). ↑
- Broad Leib & Pollans, supra note 96 (explaining why food borne illness has been treated differently). ↑
- Infra Section II.B.2. ↑
- Infra Section II.B.2. ↑
- Pollans, supra note 4; Julie Guthman, “If They Only Knew:” The Unbearable Whiteness of Alternative Food, in Cultivating Food Justice 263 (Alison H. Alkon & Julian Agyeman eds., 2011). ↑
- Health claims assert a relationship between a substance and a particular disease or health/condition. They are limited to claims regarding risk reduction. Manufacturers cannot make claims regarding diagnosis, cure, or treatment. Under the Nutrition Labeling and Education Act of 1990 (NLEA), the FDA promulgates regulations setting minimum standards for the use of certain health claims. 21 C.F.R. § 101.9(k)(1). Claims must be supported by “significant scientific agreement.” 21 U.S.C. § 343(r)(3)(B)(i). The agency also allows health claims for which there is an “authoritative statement” in support of the claim from some other scientific body of the government. 21 U.S.C. § 343(r)(3)(C). ↑
- Qualified health claims are claims that do not meet the authorized health claim standard (or, at least, were not submitted to the FDA for approval), and they are permitted when accompanied by a disclaimer. ↑
- These includes claims that a product is “low” in, “high” in, “free from,” or “light” in particular nutrients. 21 C.F.R. § 101.13. The FDA sets particular levels for claims in different nutrient contexts. For instance, it establishes levels for calories, Id. § 101.60(b), fat, Id. § 101.62(b), and sugar, Id. § 101.60(c). ↑
- Structure/function claims assert that the food (or a component of the food) will affect the structure or function of the body in a particular way. For instance, “calcium builds strong bones.” These claims are not subject to preapproval requirements. 21 U.S.C. § 343(r)(6); 21 C.F.R. § 101.93. ↑
- U.S. Food & Drug Admin., Guidance for Industry: Food Labeling Guide (2013), https://www.fda.gov/media/81606/download [https://perma.cc/MKR8-2H3L]; see also Ctr. For Sci. Pub. Interest, Food Labeling Chaos: The Case for Reform (2010), https://www.cspinet.org/sites/default/files/media/documents/resource/food_labeling_chaos_report.pdf [https://perma.cc/2N6S-X5VP] (walking through this regulatory landscape and identifying various sources of confusion). ↑
- See generally Fed. Trade Comm’n, Enforcement Policy Statement on Food Advertising (1994), https://www.ftc.gov/legal-library/browse/enforcement-policy-statement-food-advertising#13 [https://perma.cc/NDA5-QUCM] (describing the FTC’s approach to food advertising, comparing it to the FDA’s approach to food labels, and explaining how the FTC uses FDA reviews in its own enforcement processes). ↑
- POM Wonderful LLC, No. 082‑3122 (F.T.C. Jan. 16, 2013) (finding POM Wonderful had engaged in deceptive marketing practices in violation of the Federal Trade Commission Act). ↑
- Lisa Heinzerling, The Varieties and Limits of Transparency in U.S. Food Law, 70 Food & Drug L.J. 11, 15–21 (2015) (describing enforcement failures in U.S. food fraud laws). ↑
- Nutrition Labeling and Education Act of 1990, Pub. L. No. 101‑535, 104 Stat. 2353, 2357‑61 (1990) (codified at 21 U.S.C. § 343 (2010)). ↑
- Sodium Warning, 24 R.C.N.Y. §81.49(b)(2). ↑
- See, e.g., Food Labeling: Revision of the Nutrition and Supplemental Facts Label, 79 Fed. Reg. 11879 (proposed Mar. 3, 2014) (explaining that the “Nutrition Facts label is intended to help consumers make informed food choices and maintain healthy dietary practices”). ↑
- See Katrina Fischer Kuh, Informational Regulation, the Environment, and the Public, 105 Marq. L. Rev. 603, 629–30 (2022) (describing product reformulation in response to California’s Proposition 65, which requires warnings on products containing certain toxic components). ↑
- Pollans, supra note 4, at 677–79 (arguing that widespread use of information regulation paralyzes consumers who do not have the time or resources to navigate the panoply of information they are provided); Diana R. H. Winters, The Magical Thinking of Food Labeling: The NLEA as a Failed Statute, 89 Tul. L. Rev. 815 (2015) (arguing that the Nutrition Labeling and Education Act (NLEA), which governs the nutrition facts panel and some health claims is a failed law that results in provisions of information that is “confusing and opaque . . . even when presented in a manner compliant with the NLEA”). ↑
- John F. Kennedy, Special Message to the Congress on Protecting the Consumer Interest, The American Presidency Project (Mar. 15, 1962), https://web.archive.org/web/20180914022813/http://www.presidency.ucsb.edu/ws/?pid=9108 [https://perma.cc/7QYR-QC3Y]. ↑
- Id. ↑
- Id. ↑
- The Food Industry Association, Food Industry Facts, FMI (2024), https://www.fmi.org/our-research/supermarket-facts [https://perma.cc/8XS3-PALC] (FMI, The Food Industry Association, is the leading trade association representing grocery retailers). ↑
- Kennedy, supra note 304289. ↑
- For discussion on the role of abundance politics as a barrier to achieving the “right to safety” see Parts I.C and II.A.1 above. ↑
- The right to be heard can operate in parallel here and has little bearing on this discussion because it relates to the right to be heard by government officials. Kennedy, supra note 304289. In other words, it is a democratic participation right, and not a consumer right per se. ↑
- 21 U.S.C. §§ 348, 321(s). ↑
- Arguably, robust use of this rule could also be an effective regulatory tool to respond to growing body size, as it gives the FDA the regulatory power to reduce exposure to endocrine disrupting chemicals in the food system. See supra note 185 and accompanying text. ↑
- 21 U.S.C. § 321(s) (defining GRAS); James T. O’Reilly, Food and Drug Admin. § 11:4 (4th ed. 2023); id. § 11:6 (2023) (describing the process for attaining GRAS status and how it has evolved over time). ↑
- Carrie A. Scrufari, Substances Generally Recognized as Safe—Until They’re Not: Challenges in Protecting the Food Supply in a Processed World, 36 Stan. Env’t. L.J. 219 (2017) (critiquing the GRAS program using carrageenan as a case study); Melissa Marie Card & John F. Abela, Just a Spoonful of Sugar Will Land You Six Feet Underground: Should the Food and Drug Administration Revoke Added Sugar’s GRAS Status?, 70 Food & Drug L.J. 395 (2015); Laurie J. Beyranevand, Generally Recognized as Safe?: Analyzing Flaws in the FDA’s Approach to GRAS Additives, 37 Vt. L. Rev. 887 (2013). ↑
- GRAS Status of Corn Sugar, Corn Syrup, Invert Sugar, and Sucrose, 53 Fed. Reg. 44862 (Nov. 7, 1988) (affirming GRAS status of several sweeteners). In 2013, the Center for Science in the Public Interest filed a citizen petition asking that the FDA use its authority over food additives to limit sugar additives to beverages. The FDA never responded to the petition. See Take Action as Necessary to Ensure the Safe Use of Various Caloric Sweeteners (Collectively, “Added Sugars”) That are Added to Certain Beverages and Other Foods, FDA Rulemaking Docket, https://www.regulations.gov/docket/FDA-2013-P-0217 [https://perma.cc/T87Y-A5EB] (showing no action); see also Margot J. Pollans & Matthew F. Watson, FDA As Food System Steward, 46 Harv. Env’t. L. Rev. 1, 48–50 (2022) (arguing that the FDA has the authority to limit sugar additives). ↑
- Food Labeling: Revision of the Nutrition and Supplement Facts Labels, 81 Fed. Reg. 33742 (May 27, 2016); 21 C.F.R. § 101.9(c)(6)(iii). ↑
- Food Labeling: Nutrient Content Claims; Definition of Term “Healthy,” 87 Fed. Reg. 59168 (proposed Sept. 29, 2022). ↑
- Perhaps the most famous example is the case of partially hydrogenated oils. See Broad Leib & Pollans, supra note 96 (discussing the case and identifying it as the “exception that proves the rule” that the FDA is hesitant to regulate food content). The FDA maintains a database listing substances for which it has made a determination, after the product was already on the market, that the additive was not GRAS. Post‑Market Determinations that the Use of a Substance Is Not GRAS, FDA, https://www.cfsanappsexternal.fda.gov/scripts/fdcc/?set=Postmarket [https://perma.cc/T6Y4-5RBA] (listing 15 substances, including partially hydrogenated oils). ↑
- The FDA proposed this rule in 1997, operated under it for nineteen years, and finalized it in 2016. See Ctr. for Food Safety v. Becerra, 565 F. Supp. 3d 519, 526 (2021) (describing this regulatory history and the new rule). ↑
- U.S. Gov’t Accountability Off., GAO‑10‑246, Food Safety: FDA Should Strengthen Its Oversight of Food Ingredients Determined to Be Generally Recognized as Safe (GRAS) (2010), https://www.gao.gov/assets/gao-10-246.pdf [https://perma.cc/SR99-ZAK5]; Cameron Faustman et al., Ten Years Post‑GAO Assessment, FDA Remains Uninformed of Potentially Harmful GRAS Substances in Foods, 61 Crit. Revs. Food Science & Nutrition 1260 (2021); see also Becerra, 565 F. Supp. 3d at 527 (summarizing Plaintiff’s challenges to the regulation). ↑
- U.S. Gov’t Accountability Off., GAO‑10‑246, supra note 320 (calling on the FDA to develop a program that would include a complete, publicly available list of all GRAS substances); Thomas G. Neltner et al., Navigating the U.S. Food Additive Regulatory Program, 10 Comp. Revs. Food Science & Food Safety 342 (2011) (estimating how many additives enter the food system through which approval path). ↑
- Substances Generally Recognized as Safe, 81 Fed. Reg. 54960 (Aug. 17, 2016). ↑
- Becerra, 565 F. Supp. 3d 519, 539 (upholding the GRAS program as it was modified in 2016). ↑
- Julianna Adelman & Lisa Haushofer, Introduction: Food as Medicine, Medicine as Food, 73 J. Hist. Med. & Allied Sci. 127 (2018) (noting variation in the relationship across time and space). ↑
- Mayes, supra note 227215. ↑
- See supra Section II.A.2. ↑
- Adrienne Testa, Doctor’s Orders: The Food‑As‑Medicine Movement, 26 Annals Health L. Advance Directive 1, 1 (2017); Weston McClain, Preventive Care: Improving Health of Medicare, Medicaid, and Children’s Health Insurance Program Patients Through Access to Fresh Fruit and Vegetables, 48 Am. J.L. & Med. 343, 345 (2022) (calling for a national food as medicine program through Medicare and Medicaid). ↑
- Ctr. for Health Law & Pol’y Innovation, Produce Prescriptions: A U.S. Policy Scan (Oct. 2020), https://www.healthlawlab.org/wp-content/uploads/2020/10/Produce-Prescriptions-A-U.S.-Policy-Scan-2020.pdf [https://perma.cc/CU5X-BDUS]; Ctr. for Health Law & Pol’y Innovation, Mainstreaming Produce Prescriptions: A Policy Strategy Report (Mar. 2021), https://chlpi.org/wp-content/uploads/2013/12/Produce-RX-March-2021.pdf [https://perma.cc/AXN7-KNW2]. ↑
- Pub. L. No. 115‑334, § 4203(c), 132 Stat. 4656 (2018). ↑
- Sarah Downer et al., Food is Medicine: Actions to Integrate Food and Nutrition into Healthcare, 369 Brit. Med. J, 369 (2020). ↑
- Kevin G. Volpp et al., Food is Medicine: A Presidential Advisory from the American Heart Association, 148 Circulation 1417, 1417 (2023). ↑
- Perhaps there is one option that would be an even greater antithesis: government issued food rations á la Soylent Green (Metro‑Goldwyn‑Mayer 1973). ↑
- See supra Section II.B.1; see also Levenstein, supra note 169, at 161 (suggesting that medical expertise is itself a cause of food anxiety). ↑
- There is an extensive literature on the relationship between diet and identity. For one example, see Deborah Lupton, Food, The Body and the Self (1996). ↑
- Let’s Eat for the Health of It, supra note 180, at 3 (interpreting the Guidelines for broader audiences). ↑
- In other words, more information can feed what some have diagnosed as “orthorexia,” a pathological obsession with “eating right.” Christina Hanganu‑Bresch, The Rhetoric of Food as Medicine: Introduction to Special Issue on the Rhetoric of Food and Health, 4 Rhetoric Health & Med. 111, 118 (2021); see also Helen Gremillion, Feeding Anorexia: Gender and Power at a Treatment Center (2003) (arguing, based on a fourteen-month field study in an anorexia treatment clinic, that common approaches to treatment, including regular measurement of weight and calories consumed, reinforce the circumstances that cause anorexia in the first instance by emphasizing regulation of women’s bodies and meticulous attention to consumption choices). Ozempic, and other semaglutide drugs, offer an alternative—a medicinal erasure of “food noise.” See Dani Blum, People on Drugs Like Ozempic Say Their ‘Food Noise’ has Disappeared, N.Y. Times, https://www.nytimes.com/2023/06/21/well/eat/ozempic-food-noise.html [https://perma.cc/Z47T-MNMF]. ↑
- Social theorist Lauren Berlant observed the irony of this bind: many people turn to food as a source of pleasure in response to the anxiety of the rest of their lives. Lauren Berlant, Risky Bigness: On Obesity, Eating, and the Ambiguity of ‘Health,’ in Against Health: How Health Became the New Morality 26 (Jonathan M. Metzl & Anna Kirkland eds., 2010) (characterizing “obesity as an effect of people’s attachment to life”). ↑
- Lavin, supra note 163, at 144. ↑
- See id. (situating food anxiety as a constitutive thread in the construction not just of individual identity but of understanding of political sovereignty); Helen Zoe Veit, Modern Food, Moral Food: Self‑Control, Science, and the Rise of Modern American Eating in the Early Twentieth Century (2013). Lavin is not alone in arguing that there is a relationship between the body and citizenship. See, e.g., Kathleen Lebesco, Neoliberalism, Public Health, and the Moral Perils of Fatness, 21 Crit. Pub. Health 153, 154–56 (2011) (observing that the “healthy body has come to signify the morally worthy citizen—one who exercises discipline over his or her own body, extends the reach of the state and shares the burden of governance”); Kathleen A. LeBesco, Revolting Bodies?: The Struggle to Redefine Fat Identity (2003) (arguing that fatness often signifies failed citizenship). ↑
- Lavin, supra note 163, at 1 (arguing that “diet trends of the past century have participated in dominant political economic trends and have helped to fashion the kinds of entrepreneurial subjects required for the advancement of neoliberal capitalism”). ↑
- U.N. Food & Agric. Org., supra note 49. Nutrition is also a central component of the right to food, as it has been codified into the United Nations International Covenant on Economic, Social and Cultural Rights. Committee on Economic, Social & Cultural Rights, General Comment No. 12: The Right to Adequate Food, ¶¶ 23, 26 U.N. Doc. E/C.12/1999/5 (1999). ↑
- In the United States, food system critics frequently note the mismatch between federal dietary recommendations, which emphasize fruit and vegetable consumption, and federal food production subsidies, which pour billions of dollars into grains and seeds destined primarily to be animal feed, vegetable oils, and sweeteners. See Bahadur et al., supra note 38 (observing that while global food production levels are more than adequate for calories per capita they fall short in several essential food groups including vegetables and protein). A nourishing law is also attentive to the widespread variation in what counts as food in the first instance. See Murcott, supra note 68 and accompanying text (describing the subjective nature of the definition of food). The United Nations has also recognized the importance of cultural appropriateness as a key component of the right to food. Committee on Economic, Social & Cultural Rights, General Comment No. 12: The Right to Adequate Food, ¶¶ 23, 26 U.N. Doc. E/C.12/1999/5 (1999). ↑
- See supra Section I.C.3. ↑
- See supra Section I.B. ↑
- For instance, if a particular community values abundance in the form of a feast to celebrate a particular holiday, preserving that abundance may contribute to the nourishing of that community. See supra note 35 (describing the cultural significance of feasts). ↑
- On labor in the food system in particular, see supra Section I.C.1. ↑
- Narula, supra note 76, at 182–87 (describing how the food sovereignty movement has influenced policy dialogue at the United Nations). ↑
- La Via Campesina, Declaration of Nyéléni (Feb. 27, 2007) (laying out the principles of food sovereignty); Rita Calvário & Annette Aurélie Desmarais, The Feminist Dimensions of Food Sovereignty: Insights from Law Via Campesina’s Politics, 50 J. of Peasant Studies 640 (2023); Nettie Wiebe, Annette Aurélie Desmarais, & Hannah Wittman, Food Sovereignty: Reconnecting Food, Nature, and Community (2010). ↑
- See, e.g., Narula, supra note 76, at 170–72 (describing the political economy of the global food sovereignty movement including efforts to establish community self‑determination in the food system). ↑
- See, e.g., Freeman, supra note 89; Holt‑Giménez, supra note 50; Rachel Slocum, Anti‑Racist Practice and the Work of Community Food Organizations, 38 Antipode 327 (2006). ↑
- See, e.g., Yanis Varoufakis, Talking to My Daughter About the Economy, or How Capitalism Works—and How it Fails, 7–22 (Jacob Moe et al. eds., 2019) (arguing that inequality itself is a byproduct of the invention of surplus). ↑
- See supra notes 165–168 and accompanying text. ↑
- See supra Part II. ↑
- See supra Section II.B.1 and text accompanying note 185. ↑
- See, e.g., Kris Franklin & Noa Ben‑Asher, How to Bring Your Kids Up Queer: Family Law Realism, Then and Now, 55 Fam. L.Q. 311 (2022); Eve Kosofsky Sedgwick, How to Bring Your Kids Up Gay: The War on Effeminate Boys, reprinted in Tendencies 154, 156–57 (1993) (originally published in 29 SOC. TEXT 1991, at 18). ↑
- See, e.g., Wann, supra note 12. ↑
- Deb Burgard, What is “Health at Every Size,” in The Fat Studies Reader (Esther Rothblum & Sondra Solovay eds., 2009) (emphasizing the public health benefits that flow from decentering conversations about weight and weight loss). ↑
- Lebesco, supra note 161, at 74. ↑
- See Karen Bradshaw Schulz, Information Flooding, 48 Ind. L. Rev. 755, 756 (2015) (defining “information flooding” as the dumping of information for the purpose of “hid[ing] bad facts”). ↑
- See supra notes 304288–310 and accompanying text (describing the Consumer Bill of Rights). ↑
- Broad Leib & Pollans, supra note 96. ↑
- This is not to suggest that transparency has no value, but, simply, that it is ineffective as a primary mechanism to achievement substantive goals for reform in the food system. ↑
- See, e.g., Meleiza Figueroa, Food Sovereignty in Everyday Life: Toward a People‑Centered Approach to Food Systems, 12 Globalizations 498 (2015). ↑
- Stillman, supra note 58, at 306. ↑
- Convenience is a complicated and important part of this story. Any emphasis on cooking, avoiding processed foods, and family dinner risks quickly treading into antifeminist territory in which the core problem is that women, as wives and mothers, have abandoned their traditional roles. There are, however, more creative—and feminist—approaches to eating well. See, e.g., Kim Q. Hall, Toward a Queer Crip Feminist Politics of Food, 4 philoSOPHIA 177 (2014). On the relationship between eating and time in general, see Megan Dean, Time to Eat: The Importance of Temporality for Food Ethics, 15 Int’l J. Feminist Approaches to Bioethics 76 (2022). ↑