The Forgotten Half of Food System Reform: Using Food and Agricultural Law to Foster Healthy Food Production

Abstract

America is facing widespread problems with its food system, including environmental harms due to externalities from industrial farms; the increasing amount of “food miles” traveled by the products that make up our daily meals; and the growing size and complexity of recent outbreaks of foodborne illnesses. Indeed, the entire system that covers the life cycle of food, through production, processing, distribution, consumption, and food waste management, is in crisis. One of the most disturbing of these well-documented problems with the industrial food system is the increase in rates of obesity and diet-related illnesses. Obesity rates in the U.S. have more than doubled since 1980. Rising rates of obesity stem from what has been called a “toxic” food culture, in which unhealthy food products are cheap and readily available, while healthy foods are unavailable in many urban and rural food deserts or out of reach for those with limited economic means. To improve public health outcomes, and mitigate the impact of obesity and related illnesses, our food and agricultural system requires a transformation. Most discussions about how to overhaul our food and agriculture system focus on reforming or dismantling the industrial, commodity-based food system by erecting barriers to the production and sale of unhealthy, overly-processed foods. This could entail reducing or eliminating agricultural subsidies, utilizing taxes or regulations to force industrial food producers to internalize the costs of their negative impacts on health and the environment, or decreasing consumer access to or demand for these products by implementing marketing restrictions, labeling requirements, or bans on certain foods or ingredients. While we will surely need to reform and reign in the industrial food system, this article contends that those reforms are only part of the battle, and will not necessarily make healthier foods more readily available in the immediate future. We also need to think about the other half of the picture—increasing the production and availability of healthier foods—which will require improving the climate for the production of healthy “specialty crops” (defined as “fruits, vegetables, tree nuts, dried fruits, horticulture, and nursery crops”). This avenue would lead to a focus on supporting alternative, small and mid-size food producers, who are and will likely remain the primary producers of specialty crops, and would require investments of time, energy, and resources into alternative food production. To encourage sufficient production of specialty crops, we must also reduce the programmatic, policy, and legal barriers that stand in the way of these producers. This article first describes the obesity and public health issues facing the United States and explains their links to the food and agricultural system. Part III then discusses the two primary avenues for food system reform and illustrates the reasons we should focus more energy and resources than we currently do on supporting alternative food producers. Part IV lays out some key barriers to alternative food producers—including programmatic and policy barriers, legal and regulatory hurdles, and obstacles that particularly impact mid-scale food producers, even though these mid-scale producers offer the most potential to increase healthy food access on the scale needed. Finally, Part V discusses the reasons for which the legal profession should use its unique skills to support alternative food producers and presents several important ways in which attorneys can play a key role in improving the viability of the alternative food system, thus promoting better public health outcomes by ensuring that fruits, vegetables, and other healthy foods will become more readily available.