The Ethics of Food Production and Regulation of “Misbranding”

Abstract

As consumers have become more conscious of the ethical implications of food choices, the food industry has capitalized on our concern by introducing labels that appeal to our moral sensibilities. Labels such as “free range” and “cage free” influence the purchasing decisions of consumers because these labels suggest production methods with fewer harmful ethical implications, whether with regard to animal welfare or environmental sustainability. In response to consumer demand for more ethical food choices, production method labeling has become widespread. Nevertheless—and despite pervasive regulation of other types of food labeling— oversight of production methods claims is virtually nonexistent. Thus, consumers rely on labels such as “free range” to make purchasing decisions, without knowing what “free range” really means. The misbranding provisions of FDA’s and USDA’s authorizing statutes grant the agencies the ability to prohibit claims that are “false and misleading in any particular.” Under these provisions, the agencies could regulate production method claims to protect American consumers who are concerned about the ethical implications of what they eat. This paper explores the challenges to using the misbranding provision to regulate labeling of production methods—and how the provision might be used to protect consumers from false and misleading production method claims.