Eaters, Powerless by Design

Margot J. Pollans* February, 2022

Food law, including traditional food safety regulation, antihunger programs, and food system worker protections, has received increased attention in recent years as a distinct field of study. Bringing together these disparate areas of law under a single lens provides an opportunity to understand the role of law in shaping what we eat (what food is produced and where it is distributed), how much we eat, and how we think about food. The food system is rife with problems—endemic hunger, worker exploitation, massive environmental externalities, and diet-related disease. Looked at in a piecemeal fashion, elements of food law appear responsive to these problems. Looked at as a whole, however, food law appears instead to entrench the existing structures of power that generate these problems.

This Article offers a novel conceptual critique of the food system. It argues that food law is built on two contradictory myths: the myth of the helpless consumer who needs government protections from food producers and the myth of the responsible consumer who needs no government protection and can take on the food system’s many problems herself. The first myth is self-actualizing, as the laws that it justifies disempower food consumers and producers. The second myth is self-defeating, as the legal structures that assume consumer responsibility impede meaningful consumer choice.

Food law, as it is shaped by these myths, constructs powerlessness by homogenizing—or erasing diversity within—the food system, paralyzing consumers through information control, and polarizing various food system constituents who might otherwise collaborate on reform. Ultimately, food law is designed to thwart food sovereignty. By revealing how the structures of food law itself obstruct reform, this Article also identifies a path forward toward true food sovereignty.

Introduction

Food system scholars have for decades critiqued food production, distribution, and consumption, pointing in particular to the ways the system reinforces economic inequality, protects the power of the food industry (often referred to as “big food”), and enables exploitation.¹ Critics point to rising rates of diet-related disease (particularly in the Global North),² perpetual cycles of poverty and hunger (particularly in the Global South),³ environmental externalities of food production,⁴ abuse and economic injustice along the food supply chain,⁵ and, increasingly, infringement of animal welfare.⁶ These concerns have spawned a wealth of social movements and academic literature identifying and targeting a broad range of culprits: global entities such as the World Trade Organization;⁷ the meat processing industry;⁸ multinational food companies;⁹ grocery, retail, and fast-food chains;¹⁰ genetic engineering; Monsanto (now Bayer);¹¹ and many others.

This Article takes on a different type of culprit: food law itself. U.S. food law constructs powerlessness. Many food laws treat consumers as victims, but others reflect narratives of blame, holding consumers responsible for their own ills (including hunger and obesity). Because of this legal structure, food can serve neither our nutritional nor our cultural needs.

This Article identifies three mechanisms through which food law disempowers: homogenization, information control, and polarization. Together these three phenomena strip individuals and communities of sovereignty, both directly through authoritarian-style governance and indirectly through imposition of dominant cultural practices. Drawing on a broad literature on food sovereignty, this Article describes U.S. food law as a system of control rather than a system of nourishment.¹²

First, homogenizing, or flattening difference within, a pluralistic society is a mechanism for social control.¹³ Homogenization in the food system targets impurities in food itself and deviations in how food is produced and talked about. It has collateral consequences for diversity of food and participation in food production. As a result, it limits individual and community autonomy in food choice and sterilizes diversified food traditions. Hygiene is one prominent mechanism of, and excuse for, food system homogenization. With the stated goal of food safety, food hygiene rules seek to eliminate impurities. In practice, these rules tend to extend beyond combating illness and embrace the romantic purity of a mythic past, often a past characterized by racial uniformity.¹⁴ Other food laws seeking to protect consumers from fraudulent or confusing food marketing also contribute to this phenomenon.

Second, information control limits food system participants’ autonomy and agency. Drawing a parallel to authoritarian regimes, which consolidate and hold power by suppressing critique and constraining dissemination of information that might feed dissent, is illuminating. Such regimes also celebrate misinformation, using propaganda to spread false and misleading narratives about dissidents and disfavored political viewpoints.¹⁵ Our food law system is not, strictly speaking, authoritarian, but these practices are nevertheless prevalent. U.S. food law suppresses information about, and criticism of, the food system, and it allows for strategic use of information chaos to foster confusion and stymie reform.

Finally, polarization preserves status quo allocations of power by preventing the development of new coalitions that might challenge that power. Polarization occurs along multiple lines in the food system. Isolating food consumers from food system workers is common. In a system characterized by lengthy supply chains, food consumption and food production are remote from one another. Even when consumers and producers have shared interests, there are significant barriers to communication and mutual identification. In addition, isolation occurs among food consumers who participate in different types of food markets. Specifically, the food system has fractured into two primary markets—a conventional market emphasizing abundance that does not account for the externalities of food production and an elite, high-cost market that promises consumers higher quality, better health, and reduced environmental footprints.¹⁶ As social and political identities form around both markets, consumers become increasingly polarized.

Underlying and justifying many of the legal rules that generate these features are two contradictory myths about food consumers. The first myth is that consumers are helpless: the law must treat them as objects for protection. This myth justifies a series of consumer protection laws focusing on food safety and food fraud. These are the laws that generate homogenization. This myth is self-actualizing, as the laws that it justifies disempower food consumers and producers by limiting what foods are considered safe, clean, and healthy.

The second myth is that of the responsible consumer: consumers are encouraged to take personal responsibility both for their own health and for the health of the system as a whole. This myth sets the stage for information-control policies that leave consumers helpless. It does so by limiting availability of meaningful information and relieving governmental responsibility either to address food system problems or to hold food producers accountable for the harmful externalities of their products. This second myth is self-defeating, as the legal structures that assume consumer responsibility impede meaningful consumer choice. This tug-of-war reinforces the wealth and power of narrow segments of the food system while disempowering and devaluing food system workers and food consumers.

Part I explores homogenization in the U.S. food system. It introduces the myth of the helpless consumer and shows how it manifests in two areas of food law: food safety and food fraud. Part I then argues that these laws create homogenization by contributing to consolidation along the food supply chain and standardization of what food is produced and how. Part I concludes by arguing that homogenization is a tool for eater and producer disempowerment because it narrows the realm of what counts as good food.

Part II considers information control in the U.S. food system. It introduces the myth of the responsible consumer and identifies three key areas of consumer responsibility: personal health, household food security, and equity and sustainability across the food supply chain. Part II then argues that a series of information-control laws construct helplessness for the responsible consumer by making it difficult for consumers to access and process meaningful information. Within the morass of food system transparency, it is impossible for consumers to fulfill their alleged responsibilities.

Part III considers how both these myths, and their attendant food laws and policies, contribute to polarization within the food system, isolating consumers from food systems workers and from one another. This isolation protects existing structures of power in the food system and leaves both workers and consumers open to exploitation. Part III then briefly revisits how homogenization, information controls, and polarization contribute to powerlessness for many food system participants. It concludes with some preliminary ideas on how to begin claiming sovereignty.

I. From Helplessness to Homogenization

The myth of the helpless consumer assumes that consumers do not have the capacity to protect themselves, and it imposes a one-way chain of obligation from producers to consumers. The myth underlies several core areas of food law, imposing on food producers, processors, distributors, and retailers duties to adhere to a variety of standards of quality, safety, and truth in labeling. At its extreme, the myth of the helpless consumer generates black markets in particular foods deemed too unsafe to be sold (for instance, raw milk) and rallying cries for food freedom.¹⁷

Policymakers use concern about consumers’ lack of capacity to protect themselves and consumer confusion about product labeling to justify a wide range of laws. These laws include food safety laws, which dictate production practices, and food fraud laws, which dictate the language used on packaging. These laws contribute to homogenization by accelerating corporate consolidation at all stages in the food supply chain and by sterilizing and standardizing food and food production practices. Homogenization thus occurs at a variety of levels, affecting food itself, food production processes, and food system participation. As homogenization narrows the realm of what counts as good food, it disempowers consumers and producers who might want to eat outside of that realm.

A. The Helpless Consumer as Food Law’s Beneficiary

Food safety laws and fraud laws protect consumers from potential bad-producer behavior (negligent or otherwise) and from risks associated with food consumption. Both sets of laws assume that producers are better positioned to protect consumers from these risks because producers have more information about, and control over, food ingredients and production processes.

1. Protection from Unsafe Food

Food safety is at the core of food law. The primary purpose of food safety law is to protect consumers from acute, ingestion-related harms such as foodborne illness.¹⁸ Indeed, foodborne illness poses a serious threat to food consumers, killing around three thousand people every year in the United States alone.¹⁹ A complex network of federal and state laws govern safety by prohibiting certain types of contaminants, setting tolerance limits on others, and regulating the sanitary conditions in which food is produced, processed, distributed, and served.²⁰ Food safety law is consumer oriented, seeking to protect the helpless consumer from unscrupulous producers who might seek to cut costs by using tainted ingredients, producing food in unsanitary conditions, or skipping disinfection steps. Food safety law creates powerful pressure on food producers to prioritize safety over other interests, including workplace safety and environmental protection.²¹ Food safety laws reflect a legal obsession with purity, which, as the next Section discusses, drives food system homogenization.

Food safety law influences food product development, shaping production methods and conditions as well as ingredient choice.²² Food and Drug Administration (FDA) rules implementing the Food Safety Modernization Act of 2011 (FSMA) include specific directives governing a significant swath of the food supply chain, including irrigation of produce fields, produce washing and packing, and food processing and distribution.²³ Federal law also closely regulates animal slaughter and meat processing.²⁴ States regulate retail food service, and all fifty states have adopted some version of the FDA’s model food code, which applies the same level of precision to regulation of restaurants and other parts of the food service industry.²⁵ Tort law reinforces food safety law, imposing strict liability for harm that follows from food consumption.²⁶ In addition to substantive obligations, food companies also face record-keeping requirements.²⁷ For instance, in dairy processing, cheese manufacturers must keep detailed records of pasteurization practices.²⁸ These laws impose significant regulatory burdens on farms, food processors, and food service establishments.

2. Protection from Fraud and Confusion

Like food safety laws, food fraud law seeks to protect consumers from food producers who might take advantage of information asymmetries. These laws emphasize the importance of truth in labeling and penalize producers and marketers for misbranding. Food fraud law relies on control of language. Although this mechanism ostensibly protects the helpless consumer from confusion, it also shapes participation in food markets.²⁹ This Section provides a brief overview of food fraud laws and then delves into two examples: standards of identity and organic labeling. Both are illustrative of how the quest to protect consumers from confusion ultimately disempowers those same consumers by controlling the language we use to describe food.

Food fraud laws serve to protect consumers from false and misleading claims on food packaging and advertising. A slew of information disclosure laws are designed to prevent fraud.³⁰ These include requirements to display food identity and a net quantity statement.³¹ Packages must display a nutrition facts panel.³² Similar nutrition facts disclosure requirements apply to chain restaurants.³³ In addition, all other information on the display must comply with a comprehensive set of rules regarding misbranding and health claims.³⁴ Many of these laws target “economic adulteration,” a practice in which a food manufacturer uses a cheaper substitute for a listed ingredient.³⁵ Economic adulteration is common in fish, honey, wine, and olive oil.³⁶

Reinforcing these federal statutory obligations are state statutory and common law fraud protections. Consumer fraud law reinforces misbranding laws, creating liability for material misrepresentation.³⁷ Recently, a spate of lawsuits under state consumer protection laws have targeted label claims such as “natural.”³⁸ Fraud laws open up producers to a range of possible litigation (from consumers, the FDA, and the Federal Trade Commission). Although these laws leave some room for “puffery” and assume that consumers are reasonable, they create significant constraints for producers.³⁹

a. Standards of Identity

A variety of current and recently proposed federal and state laws seek to define specific terms used in food labeling and marketing. The examples of “milk,” “meat,” and “organic” illuminate this phenomenon. In recent years, the markets for vegan alternative foods have expanded significantly amid concerns about animal welfare and the carbon footprint of animal agriculture.⁴⁰ The Food Drug and Cosmetic Act (FDCA) authorizes the FDA to develop standards of identity for foods.⁴¹ These standards specify with great particularity what constitutes a particular type of food, and they are intended to prevent consumer confusion.⁴² The agency has set standards for many foods, including peanut butter, maple syrup, sherbet, and milk.⁴³ For many years, the FDA relied heavily on food standards of identity, often using very precise standards for common food terms.⁴⁴ Although such standards have mostly fallen out of favor, recently the dairy industry and some members of Congress have been pushing the agency to crack down on rampant use of the term “milk” on nondairy products.⁴⁵ The FDA first defined milk in 1977 as “the lacteal secretion . . . of one or more healthy cows.”⁴⁶ This definition, which the FDA has not strictly enforced, excludes nondairy milks and even milk from other mammals, such as goats or sheep.⁴⁷ In a 2016 letter to the FDA, members of Congress called current misuse “harmful to the dairy industry.”⁴⁸ The campaign is an explicit attempt to use language control to curb the growing popularity of plant-based products.

In 2018, the FDA announced plans to review the issue in order to “ensure that the labeling of such products does not mislead consumers, especially if this could compromise their health and well-being.”⁴⁹ The agency solicited comments and feedback from the public to gain more insight into how consumers use plant-based alternatives and how they understand terms like “milk” or “cheese” when used to label products made from soy, peas, or nuts.⁵⁰ The FDA was concerned with whether consumers understood the nutritional characteristics and differences between those products and dairy in determining their own dietary choices.⁵¹ The agency claimed to be collecting information as part of “efforts to reduce chronic disease and its impact on public health.”⁵²

A similar fight is playing out over the word “meat.” Nearly half of the states have introduced meat-label censorship laws that aim to stop meat alternatives, including both plant-based and lab-grown products, from being marketed as “meat.”⁵³ Ten states have passed such laws. Missouri, which was the first in August 2018, requires that products not derived from poultry or livestock include phrases such as “lab-grown” or “plant-based” on their packaging.⁵⁴ Any producer failing to include an appropriate disclaimer after January 1, 2019, would be subject to fines and a possible jail sentence.⁵⁵ The law is the subject of ongoing litigation on First Amendment and Dormant Commerce Clause grounds.⁵⁶ Wyoming’s version of the law is stricter, prohibiting using the word “meat” on labeling for any product not derived from poultry or livestock.⁵⁷ Other states with similar laws include Arkansas,⁵⁸ Kentucky,⁵⁹ North Dakota,⁶⁰ South Dakota,⁶¹ Montana,⁶² Louisiana,⁶³ South Carolina,⁶⁴ Mississippi,⁶⁵ Georgia,⁶⁶ and Alabama.⁶⁷ A number of other states have tried and failed to pass such laws.⁶⁸

b. Organic Labeling

The development of organics law predates these “milk” and “meat” debates and reflects a slightly different pattern of linguistic control. With “milk” and “meat,” traditional and powerful industries are struggling to retain control of key words to prevent market encroachment from vegan alternatives. By contrast, the regulation of “organic” was originally intended to protect an alternative market. Over the course of the definition’s development, however, control over the word has shifted.

The Organic Foods Production Act of 1990 (OFPA) authorizes the Department of Agriculture (USDA) to regulate use of the term “organic” and is designed to preempt various state and private organic-certification schemes.⁶⁹ The Agricultural Marketing Service (AMS) determines which food production and processing practices qualify as “organic” and how the word may be used in food labels and advertising.⁷⁰ Although the statute has some underlying environmental goals, its primary purpose is to facilitate marketing of organic products by ensuring the label’s validity.⁷¹

The “organic” movement began as a reaction to the industrialization of agriculture.⁷² Critical food scholar Julie Guthman has identified two key constituents of the movement: “those who see organic agriculture as simply a more ecologically benign approach to farming and those who seek a radical alternative to a hegemonic food system.”⁷³ Guthman observes that the organic label ultimately serves neither end particularly well, in part because of how the organic industry has itself industrialized and replicated the conventional agricultural industry.⁷⁴ Many have expressed concern that large-scale agribusiness has flooded into the industry, following the letter but not the spirit of the law.⁷⁵ Meanwhile, smaller enterprises that continue to follow the spirit of the law are not always able to comply with its letter. For instance, Roxbury Farm, a four-hundred-acre farm in Kinderhook, New York, that has operated a community–supported agriculture program since 1991, decided only recently to apply for organic certification.⁷⁶ As the farm explained to members in a weekly newsletter, “[f]or years we followed all of the rules but didn’t certify as we have such a direct connection to all of you. An expensive certification didn’t seem necessary. Each year we pay between $3000 and $4000 to use the certified organic label.”⁷⁷

In each of these examples, language control is justified on the grounds of protecting helpless consumers from confusion. In both cases, however, there is another primary constituency: competitors. Like other types of food fraud laws, particularly those governing economic adulteration, these language controls protect other industry participants by establishing legal monopolies over certain words. Language control in the guise of helping the helpless thus allows for some degree of control over food itself. Its primary function is to steer consumer purchasing toward products complying with state-sanctioned definitions and to protect the economic interests of the producers of those products.

B. Homogenizing Food and Food Production

The law of the helpless consumer homogenizes the food system. The proliferation of food standards generates a set of forces, including consumer expectations, retailer and other wholesale-buyer standards, and individual inspectors with discretion, that expand the standards’ reach. Consequently, the entire system works to iron out inconsistencies—to reign in foreign practices. Uniformity across the food system, which is increasingly a global phenomenon, serves to sterilize diverse food cultures, suppress creative expression that falls outside narrowly defined food norms, and homogenize the experience of food consumption.

In a moment when foodie culture proliferates, the diversity of available food types appears to be on the rise. This Section nevertheless hypothesizes that although choice appears to be increasing from a consumer perspective (particularly an elite consumer perspective), the increase masks a more fundamental narrowing that follows from the control that state regulators and consolidated food processors and retailers have over the food system. Indeed, while the total number of available food products continues to increase, the selection becomes increasingly consistent from store to store as consolidation continues in the retail and restaurant industries.⁷⁸ This appearance of choice hides how the reorientation of the global food system to create this choice generates great costs for many people in developing countries and for low-income communities within the United States.⁷⁹ While surface-level choice proliferates, meaningful choice disappears.

Consider, for instance, a virtual stroll through the frozen-pizza department at stopandshop.com. A quick search turns up 185 different types of frozen pizza, pizza bites, pizza bagels, pizza pockets, and pizza-flavored burritos, burgers, and even macaroni and cheese. This pizza cornucopia creates an illusion of choice, but the meaningful range of difference in this universe of highly processed frozen foods is actually quite limited. And the vast majority of the offerings come from just a handful of companies. Two main mechanisms contribute to this homogenization. The first is consolidation of production, processing, distribution, and retail. The second are processes of sterilization and cultural hegemony. These processes reduce diversity of food choice and of participation in food production. They also reduce diversity of participation in food production governance by narrowing the realms of permissible expertise on which that governance relies. As the following discussion explains, the law of the helpless consumer contributes to both consolidation and sterilization.

1. Consolidating Food Production and Distribution

Consolidation is perhaps the single word that best sums up change in the food system over the last century.⁸⁰ Part of this story is familiar. Throughout the twentieth century, food production at all stages—from agricultural-input production to farming, processing, and retail—has increased in scale and uniformity.⁸¹ Indeed, despite occasional programs championing subsistence or small-scale market farming, federal policy in the United States consistently favors scale.⁸² Federal policy facilitated cheap labor, first through state-sponsored slavery and then by excluding agricultural workers from labor laws.⁸³ Other early federal supports for scale include investment in irrigation projects in the West.⁸⁴ In the twentieth century, state support for large-scale agriculture dates largely to the New Deal, during which time Congress developed a series of agricultural supports that benefited larger-scale operations.⁸⁵ Of course, federal policy is not the sole cause of consolidation in the food system. Technology, such as refrigeration, mechanical harvesting, and agricultural biotechnology, also played a key role.⁸⁶ Federal policy has historically tended to reinforce the consolidating effect of technology by affirmatively requiring certain technologies that favor scale (e.g., milk pasteurization) or by preferencing farmers who used certain technologies in allocating agricultural subsidies.⁸⁷

Consolidation is widely criticized because of the power it confers on the remaining players in the system to set prices, determine working conditions, and formulate food.⁸⁸ Consolidation also contributes to homogenized food systems primarily by nationalizing products, retailers, and restaurant chains, such that the food landscape looks relatively similar from one town to the next. For example, a recent study of Walmart, the largest food retailer in the world, found that “[i]n 43 metropolitan areas and 160 smaller markets, Walmart captures 50 percent or more of grocery sales . . . . In 38 of these regions, Walmart’s share of the grocery market is 70 percent or more.”⁸⁹ In many rural areas, dollar stores also play newly significant roles in the retail food environment.⁹⁰ Overall, in the past several decades, the number of food products available for sale has increased at the national level, but it has decreased at the global level.⁹¹

Helpless consumer laws exacerbate industry consolidation, and the resulting food homogenization, by creating barriers to entry and increasing capital requirements for standard business operations. Food safety regulations, which often include burdensome disinfection and record-keeping requirements, contribute to consolidation in the food industry.⁹² Where prior authorization is required for foods to enter into commerce, the “application of authorization requirements is costly and time-consuming. Therefore, procedures can only be managed by high-capital enterprises.”⁹³ Two prominent examples are food additives, which are subject to an onerous premarket approval system,⁹⁴ and produce sold to institutional buyers, which is commonly subject to USDA’s Good Agricultural Practices food safety certification.⁹⁵ Organic certification is also an example of this phenomenon. The high cost of certification, including transition costs from conventional production, is a significant causal factor in industry consolidation.⁹⁶

Food safety laws impose onerous requirements that are particularly burdensome for small-scale food businesses.⁹⁷ It is often the case that larger-scale operations are better able to absorb the costs of regulatory compliance, but this is not simply a problem of ability to pay. Instead, this is a problem of regulatory design. Many of these laws are designed in response to input from, and examination of, large-scale operations.⁹⁸ When applied to small-scale businesses, they often appear arbitrary and irrational.⁹⁹ For instance, laws governing cheese production in New York treat small farmstead cheese makers the same as industrial cheese makers that use milk from many farms.¹⁰⁰ Sanitation requirements designed to account for risks associated with drawing milk from numerous farms, transporting it to a single processor, and producing cheese in large volumes, appear less rational for a farm milking twelve cows and processing the milk into cheese on site.

Sociologist Melanie DuPuis describes FSMA as one of the most recent developments in a decades-long “treadmill of purity,” on which regulation generates the need for scale to afford compliance, creating additional risk that necessitates even more regulation.¹⁰¹ She observes:

Experts agree that there is no way to make food completely safe. Yet, every outbreak leads to another round of purification requirements that don’t necessarily purify but that do lead to the further shakeout of smaller farms. The ultimate end of this treadmill may be vegetables grown in vast “protected” production facilities—large dirt-free vertical greenhouses using hydroponics.102F¹⁰²

Recognizing this concern, some federal laws, including FSMA, create exceptions or reduced burdens for smaller food businesses, particularly those making low-risk products.¹⁰³ But many producers experience pressure from wholesale buyers and insurers to comply with the law regardless of these exemptions.¹⁰⁴

In some contexts, large-scale players in the food system have expressly sought food safety laws as a competitive tool. For instance, the Leafy Green Growers Association, which represents the leafy-greens industries of California and Arizona, supported passage of FSMA.¹⁰⁵ Members of the association were already subject to produce safety requirements through the California Leafy Green Marketing Agreement and sought to level the playing field by establishing uniform national regulations.¹⁰⁶ In other words, their express purpose for supporting the law was to improve their competitive position in the leafy-greens industry.

2. Sterilizing and Standardizing Food and Food Production

A second mechanism of homogenization is the tendency toward sterilization and standardization in food law. I have argued elsewhere that the current structure of food safety law is irrational because it focuses narrowly on one of food’s health-related features at the expense of others.¹⁰⁷ Here, I add to that critique by arguing food safety regulation can reduce diversity in the food system, not just of scale, not just of microbes,¹⁰⁸ but also of methods of production and types of food produced.

The standard approach to food safety is sterilization of food production environments and standardization of food production practices.¹⁰⁹ Sterilization and standardization make food safety easy to police, but they also shut down diversity within the food system. In other words, food safety law “whitewashes” food safety, suppressing development of alternative food cultures and alternative food networks.¹¹⁰ By contrast, advocates for food sovereignty identify true transparency, achieved by shortened supply chains, as a primary mechanism for ensuring food safety.¹¹¹

From its earliest history in the Progressive Era, modern food safety law has had an underlying “purity” agenda, seeking to secure the human body in ways that were highly racialized.¹¹² Advocacy for regulation against “adulteration” of the food supply went hand in hand with advocacy for immigration controls and even eugenics.¹¹³ Stories about the use of food safety law to whiten foodways are common. For instance, NPR profiled the “chili queens” of San Antonio, who for decades served homemade chili from makeshift stands in San Antonio until the town leaders determined that their appearance was inconsistent with the aesthetic of the community.¹¹⁴ It was ultimately under the guise of public health laws that they were fully shut down.¹¹⁵

Many of these laws also have an international reach. Foreign food producers seeking to export products to the United States must comply with U.S. food safety laws.¹¹⁶ The United States engages not only in foreign-facility inspection but also in foreign food safety education.¹¹⁷ In the United States and abroad, these laws impose particular burdens on “traditional” and “ethnic” foods.¹¹⁸ For example, an exemption to strenuous food additive safety requirements for foods “generally recognized as safe” creates a potential bias against new ingredients brought into U.S. markets by more recent immigrant populations.¹¹⁹ Many countries have laws that recognize experience, and “traditional foods usually are considered safe on the basis of experience,” but “[t]his may be different outside the cultural area where the foods at issue are traditional.”¹²⁰

Food safety laws in particular “devalue[] the expertise and experience of the people working every day to grow, harvest, pack and distribute” food.¹²¹ Devaluing lay expertise results in a narrowing of legitimate sources of knowledge, rejecting experiential and generational knowledge in favor of formal training.¹²² This narrowing contributes to uniformity both in available foods and in underlying safety and production practices by reducing the range of acceptable practices. It also reduces control over vocabularies and knowledge, limiting the ability of non-“experts” to participate in governance processes.

A similar pattern occurs in the context of public nutrition programs. In this context, a scientific approach to nutrition, referred to as “nutritionism” by one historian, reduces our food needs to a universal set of nutrients and ignores the variety and complexity of diet, practice, and other nutritional contexts.¹²³ Historically, nutritionism has been used as a tool in colonial projects to emphasize “the superiority of a scientifically[ ]established ideal diet over local cultural and religious traditions.”¹²⁴ In the modern era, nutritionism is entrenched in law through the Dietary Guidelines for Americans and nutrition facts panels.¹²⁵

Language-control laws function in a similar way. Vocabulary itself “helps mark the boundaries of permissible discourse, discourages the clarification of social alternatives, and makes it difficult for the dispossessed to locate the source of their unease.”¹²⁶ Organics laws in particular frequently become a tool of cultural hegemony. What began as a counterculture movement reacting to the rise of industrial agriculture was appropriated by industrial agriculture. By taking control of the word “organic,” the industrial-agricultural complex exerts influence over the agricultural counterculture. This influence is powerful both domestically, where smaller organic operations must turn to other mechanisms to communicate with their customers,¹²⁷ and internationally, where farmers must suddenly comply with internationally negotiated organic-harmonization agreements to continue using the term.¹²⁸ The widespread resistance to the use of “milk” and “meat” on vegan products may also reflect the underlying cultural hegemony “regarding not just the acceptability, but the necessity of animal consumption.”¹²⁹

In sum, food safety regulations and food fraud language-control laws achieve safety and prevent misrepresentation at the expense of diversity of scale, food types, and food production practices. They make alternative, ethnic, and counterculture foodways more challenging to import, establish, and maintain. They reinforce a dominant food culture that undermines the food sovereignty of any community whose preferences and practices are not aligned with that of the dominant food culture.¹³⁰ In this sense, the myth of the helpless consumer is self-actualizing, especially for consumers who are outside of the dominant food culture.

3. Homogenization as a Disempowerment Tool

Homogenization occurs for many reasons—technology, efficiency, culture, individual preferences—and is not inherently a bad thing. At a large scale, however, homogenization is a common feature of social control precisely because it eliminates differences and fosters “purity.”¹³¹ For instance, a key feature of rising fascism in 1930s Germany was a push to eliminate class differences, or at least class allegiances.¹³² At its most extreme, in ultranationalist Nazi Germany, homogenization took on the genocidal form of mass murder—targeting those of religious, sexual, and physical difference.¹³³ Even in Nazi Germany, purity movements were connected not just to racial and physical difference but also to public-health science: “The discovery of the role of bacteria in contagion . . . and the mechanisms of heredity . . . made it possible to imagine whole new categories of internal enemy: carriers of disease, the unclean, and the hereditarily ill, insane, or criminal.”¹³⁴ Historian Tiago Saraiva considers the role of food production homogenization in the rise of fascist states, observing that the industrialization and standardization of food production were key not just for the production of food that would support the populace but also for developing governmental bureaucracies that would eventually solidify totalitarian power.¹³⁵ Thus, while homogenization is sometimes appropriate and reasonable, it is often weaponized in both subtle (food production) and aggressive (racial purging) ways.

So where do we draw the line between malignant homogenization as a tool of social control and fully benign homogenization? This is, of course, not a question with a precise answer, but homogenizing forces (including market forces and legal prohibitions) cross the line when they begin to cut into racial and cultural diversity or to undermine community sovereignty. As the above discussion establishes, the law of the helpless consumer contributes to legally mandated homogenizing of food and food production that targets immigrant and minority communities and that reduces food sovereignty writ large.

II. Paralyzing the Responsible Consumer

Standing in contrast to the myth of the helpless consumer is a second equally powerful myth driving food law: the myth of the responsible consumer. Food is both a staple (everyone must eat) and a morally fraught domain (what and how much should we eat?). Moralizing around food is age-old, and many religious traditions are deeply imbued with complex food rules.¹³⁶ In the United States today, food moralizing takes the predominant form of blame: individuals commit alleged moral wrongs through a broad range of food choices, such as overeating, eating animals, or even experiencing hunger. Threads of blame in food policy put the onus on food consumers to take control not just of their own nutrition but also of a wide variety of food system ills. The responsible consumer needs no legal protections other than those facilitating provision of the information that enables moral choices.

According to the myth, the responsible consumer uses information to make food choices that reflect personal preferences and identity and that protect individual health and well-being. The responsible consumer also establishes food security for herself. Finally, the responsible consumer makes food choices that protect the environment, food system workers, and animals used in food production. While the myth of the helpless consumer contradicts narratives about consumer freedom, the myth of the responsible consumer relies on them. The responsible consumer is free to choose whatever foods they want and can therefore be deemed to have chosen freely whatever consequences follow. One advocacy group, playing up the myth of the responsible consumer, put it this way:

A growing cabal of activists has meddled in Americans’ lives in recent years. They include self-anointed “food police,” health campaigners, trial lawyers, personal-finance do-gooders, animal-rights misanthropes, and meddling bureaucrats.

Their common denominator? They all claim to know “what’s best for you.” In reality, they’re eroding our basic freedoms—the freedom to buy what we want, eat what we want, drink what we want, and raise our children as we see fit.137F¹³⁷

By contrast to the helpless consumer, the responsible consumer is self-possessed, influential, and capable. And, while the myth of the helpless consumer is self-actualizing, the myth of the responsible consumer is self-defeating.

The myth plays a role in a variety of food laws that control information. “Knowledge” serves as a central rallying cry for food system reform in three different but overlapping contexts: nutrition regulation, food security, and the consumer food movement. In each of these contexts, information is offered as a tool of empowerment. In practice, however, information reinforces a two-tiered food system, one in which only some consumers have the time, money, access to information, and inclination to research their food choices and spend more money on food.¹³⁸ In all three contexts, consumers are charged with responsibility to help themselves and others and are blamed if they do not do so successfully.¹³⁹ These movements rely on the assumption that individuals have full agency over their food consumption decisions.¹⁴⁰ Within this framework, the primary barriers to change are thus inadequate transparency and individual irresponsibility. At the same time, the rhetoric of the responsible consumer empowers the food industry to resist efforts at public governance on the ground that consumer demand is the only legitimate impetus for change.

In theory, information-based laws facilitate healthy consumer decisions without legally mandating either consumer behavioral change or product reformulation. In practice, however, the shift to information-based policy and advocacy allows for the subtle use of information control to disempower many food consumers. In other words, debunking the myth of the responsible consumer reveals not that consumers are irresponsible but that they are not empowered to engage in the kind of self-help that actualization of the myth requires.

A. Domains of Consumer Responsibility

1. Personal Health

In recent years, concern about rising rates of diet-related disease has led to a spate of new policies aimed at improving diet. From Happy Meal restrictions to fast food zoning laws, soda taxes, and school lunch nutrition standards, many of these laws recognize that our economic circumstances and physical environments influence food choices.¹⁴¹ These laws have met with staunch opposition. Proponents of responsibilization rely on rhetoric of “freedom” to resist these food environment laws.¹⁴² For instance, the rhetoric of “freedom” is prevalent in calls for state laws that preempt local attempts to regulate fast-food restaurants and impose taxes on sodas.¹⁴³ Thus, the primary function of responsibilization is to oppose “nanny-state” health laws.¹⁴⁴ Although information provisions, such as restaurant menu calorie labeling, have also met with resistance, label policies have been more successful on the national stage than more directive regulatory programs.¹⁴⁵

Responsibilization ascribes diet-related personal health to personal choice. Failure—as evidenced by obesity or by diet-related disease—follows from poor discipline.¹⁴⁶ The responsible consumer myth characterizes these as moral failings.

2. Household Food Security

Responsibilization has been a dominant thread in social welfare reform since the mid-1990s. At that time, lawmakers reformed federal social-safety networks, abandoning categorical eligibility rules focusing on objective factors, such as income, assets, and family size, in favor of benefit-eligibility rules that “emphasi[ze] . . . claimants’ choices.”¹⁴⁷ A primary feature of this shift was the addition of work requirements to welfare and food assistance programs.

In recent years, lawmakers have pushed to strengthen work requirements in food assistance programs. In 2018, House Republicans proposed extending work requirements to some parents with dependent children over six years old and strengthening documentation requirements.¹⁴⁸ When the proposal failed, the USDA subsequently, and also unsuccessfully, attempted its own similar reforms. Specifically, the agency proposed a rule that would have eliminated some flexibility for states to waive work requirements.¹⁴⁹ Individual states have also taken steps to limit eligibility on other responsibility grounds. For instance, in 2018, Wisconsin embedded drug testing into its eligibility requirements.¹⁵⁰

Proponents for reform justify calls for work requirements by relying on narratives of laziness. In the 1990s, the image of the “welfare queen” depicted young women, typically Black single mothers, as choosing not to work because they could collect federal benefits and, in the extreme, of having additional children specifically to collect the additional benefits to which a larger family would entitle them.¹⁵¹ These narratives characterize hunger as resulting from unwillingness to work hard and characterize program participants as leeches living off the efforts of hard-working Americans.¹⁵² Hunger itself is evidence of a moral wrong.¹⁵³ Although reform proponents typically do not advocate eliminating social welfare programs entirely, they seek to focus these programs on the “morally worthy” (children, the elderly, and the disabled) and to decrease access for the “morally unworthy” (able-bodied adults).

Responsibilization thus deemphasizes structural causes of poverty and places the blame on the poor.¹⁵⁴ This ideology is unidimensional; if you are hungry, you should work harder so you can afford more food.

3. Equity and Sustainability

In recent decades, a growing set of food-related social movements call on consumers to “vote with their forks” for a better food system.¹⁵⁵ These movements articulate a wide variety of goals, from children’s health to fair wages, animal welfare, and environmental protection.¹⁵⁶ The common thread in these movements is the theory of change: if enough consumers express their preferences, the market will shift and provide more food that meets the standard of whatever cause consumers support.

Activists in this area typically characterize ethical food consumption decisions as political acts. Exemplifying this view, Michael Pollan wrote the following a few weeks after Tax Day in 2006:

Whatever your politics, there are activities your tax money supports that I’m sure you find troublesome, if not deplorable. But you can’t do anything about those activities—you can’t withdraw your support—unless you’re prepared to go [to] jail. Food is different. You can simply stop participating in a system that abuses animals or poisons the water or squanders jet fuel flying asparagus around the world. You can vote with your fork, in other words, and you can do it three times a day.157F¹⁵⁷

Rather than critique government for failing to regulate, the “vote with your fork” rallying cry asks consumers to take responsibility for all the food system’s ills, from how workers are treated to the environmental footprint of food production.¹⁵⁸ This rhetoric tacitly accepts that consumers rather than governments are responsible for these issues. Indeed, as other scholars have thoroughly documented, government has not taken on this responsibility; protections for workers and the environment in the food system are extremely limited.¹⁵⁹ The consumer food movement invites consumers to step into a regulatory role as the dominant force holding food producers accountable for the costs of their activities.¹⁶⁰

To enable consumers to make informed decisions, advocates in these movements promote transparency, chiefly through product labels.¹⁶¹ Labels convey information about food products and production processes. Although most labels are unverified claims made by food producers themselves, an increasing number of third-party certification programs police particular claims.¹⁶² For instance, as many consumers and farmers have become disappointed with the organic label, various organizations have begun to develop “organic plus” certification programs.¹⁶³ Numerous other certification schemes—such as Fair Trade, Animal Welfare Approved, Non-GMO Project Verified, and Marine Stewardship Council Certified Sustainable Seafood—focus on particular characteristics of food production.¹⁶⁴ These movements also rely on investigative journalism. Exposés of working conditions, sanitary conditions of food processing facilities, and ingredients of specific foods can shape consumer behavior and even generate industry and legal reform.¹⁶⁵

The responsible consumer can protect herself and others through her food choices. Unlike the helpless consumer, the responsible consumer needs the government only to ensure sufficient transparency to enable good decisionmaking. Consequently, the myth is used both to justify scaling back existing regulation and to block creation of new regulation.

B. Information Controls and Constructed Helplessness

The myth of the responsible consumer feeds a key feature of food law: knowledge promotion.¹⁶⁶ The responsible consumer is meant to sort through all the information available to them and often demands additional information. In theory, the responsible consumer can then use this information to make self-actualized and self-interested decisions.

Although there is widespread consensus about the value of information—among conservatives arguing against more invasive health regulations and liberals pushing for systemic reform—the primacy of information makes consumers vulnerable. The myth of the responsible consumer is part of a broader trend in neoliberal regulatory reform in which information regulation alone is considered sufficient and regulation of substantive issues such as nutritional content is deemed invasive and unnecessary.¹⁶⁷ But information regulation is deceptive. It is ultimately a tool to maintain an unequal distribution of power in the food system because in practice it renders the theoretically responsible consumer helpless.

Through information control, food law undermines the utility of information to achieve any of the substantive goals discussed in Section II.A, above. First, a variety of laws protect food producers, processors, and manufacturers from having to share information that might be damaging to their reputations. Some laws even punish individuals who might disseminate this information or use it as the basis of public critique. Second, food law suppresses dissent through excess information. Generated by a proliferation of mandatory information-disclosure laws and legal facilitation of voluntary disclosures, excess information hinders consumer capacity to exercise true responsibility.

1. Suppressing Dissent

The food system is replete with examples of restrictions on information access and food system critique. First, ag-gag laws seek to squelch critical speech about agricultural facilities by placing restrictions on investigating and reporting about those facilities.¹⁶⁸ These laws typically make it illegal to lie to gain entrance to agricultural facilities and to film or photograph them.¹⁶⁹ Ag-gag laws target animal rights activists, seeking to protect the animal agriculture industry from public exposure of its practices.¹⁷⁰ Although some aspects of these laws have been successfully challenged on First Amendment grounds, they remain on the books in several states.¹⁷¹ These laws simultaneously limit access to information about conditions on farms generally and large-scale concentrated animal feeding operations (CAFOs) in particular, and they disincentivize reporting about those conditions by creating the risk of prosecution.¹⁷²

Second, like ag-gag laws, food disparagement laws disincentive food critique. These laws, on the books in thirteen states, create a civil cause of action against critics of food products.¹⁷³ A more robust form of product disparagement (trade libel) law, food disparagement statutes seek to limit dissemination of false information about perishable food or agricultural products.¹⁷⁴ Many of these laws shift the traditional burden of proof by placing the burden of proving truth on the defendant rather than placing the burden of proving falsity on the plaintiff.¹⁷⁵ These laws have been invoked in several high-profile cases involving national reporting on food. Most famously, after ABC aired a segment on a meat product it referred to as “pink slime,” several manufacturers sued pursuant to South Dakota’s food disparagement statute.¹⁷⁶ ABC ultimately settled for $177 million.¹⁷⁷ Although on paper these laws punish only false statements, in practice they discourage critique by generating fear of prosecution.¹⁷⁸

Third, public-information policies hide critical information from public view. For instance, a series of statutes, federal agency actions, and court decisions have limited access to public records on CAFO size and location.¹⁷⁹ Perhaps more significantly, in 2018 the USDA announced a decision to move its Economic Research Service (ERS) and the National Institute of Food and Agriculture (NIFA) out of the Washington, D.C., area.¹⁸⁰ ERS conducts research into emerging issues in food, agriculture, the environment, and rural America, and its research frequently influences decisionmaking by Congress, the USDA, state agencies, industry groups, and individual farmers.¹⁸¹ The USDA explained the move as bringing the research service closer to its many stakeholders.¹⁸² Critics, however, questioned this motive. For example, one group of fifty-six former USDA and federal statistical-agency officials raised concerns about risks to agency independence and credibility, specifically citing retaining staff expertise, continuing valuable collaborations both within and outside the USDA in the D.C. area, maintaining visibility with policymakers.¹⁸³ Others suggested that the purpose of the move was to silence an agency whose research conclusions often contradicted Trump administration talking points.¹⁸⁴ The Biden administration has no plans to reverse the move, which is likely to cause long-term damage to the agency’s ability to gather and disseminate information because so many career personnel decided to leave rather than relocate.¹⁸⁵

The USDA also recently came under scrutiny for its treatment of agency reports related to climate change. In September 2019, the Senate Democratic Policy and Communication Committee released a report charging that the USDA had failed to publicize hundreds of scientific studies evaluating the impacts of climate change on agricultural production.¹⁸⁶ The report also identified numerous instances in which the Trump administration had directed individual agencies, including the U.S. Forest Service (a subdivision of the USDA), to remove references to climate change and climate science from their websites.¹⁸⁷

Finally, efforts to intimidate academics who criticize industrial animal agriculture are increasingly prevalent. In 2010, the Maryland legislature threatened to withhold funding from the University of Maryland Environmental Law Clinic because of its role in a lawsuit against Perdue Poultry.¹⁸⁸ As another example, Murphy Brown, a North Carolina pork processor and subsidiary of Smithfield Foods, subpoenaed UNC epidemiologist and professor Steven Wing, who had been researching the environmental impacts of hog CAFOs.¹⁸⁹ The company demanded that he produce detailed research records, including information protected by confidentiality agreements required by federal law for research involving human subjects.¹⁹⁰

Each of these examples demonstrates a jab at the free flow of information about food and, in some cases, an attempt to punish critics. These constraints on information collection, analysis, and distribution limit consumer capacity to make informed decisions. Perhaps more significantly, they also hinder advocates attempting to use litigation and legislative strategies to achieve systemic reform.

2. Promoting Confusion

Transparency itself undermines the responsible consumer by sowing confusion. On the surface, the food system is full of information. Indeed, as consumers, we are subject to “information flooding,” a veritable barrage of labels that convey information about personal health, animal welfare, and environmental protection, among other things.¹⁹¹ Many food movement advocates urge consumers to use these labels to make more ethical food choices. But despite this transparency, the average consumer still has very little information about whether their food is healthy for themselves, food system workers, or the environment.¹⁹² And the average consumer has very little capacity to sort through the information to determine which is reliable and which is relevant.¹⁹³ Meaningless labels like “natural” share prominence with potentially more meaningful labels, such as “no added sugar” or “employee-owned.”¹⁹⁴ For the food consumer, this information glut can be paralyzing and thus disempowering.

Food manufacturers use hundreds of labels, some certified by third-parties, others not, to convey information about various aspects of their products. Labels address environmental attributes, supply chain worker treatment, animal welfare, health features, and more. Although a few labels are tightly regulated, most are governed only by general fraud and truth-in-marketing laws.¹⁹⁵ This is a case in which the cacophony of opinions contributes not to a “marketplace of ideas” but to a drowning out of reason.¹⁹⁶

The rise of labeling is self-perpetuating. As consumers come to rely on and expect labels, they advocate for more of them, focusing on “the right to know” rather than on system reform. In some cases, information access can facilitate reform, but in practice the right to know supplants more substantive regulatory aims. Consider, for instance, the history of advocacy around genetically modified foods. Advocacy calling for substantive standards for the introduction of GMOs was drowned out by the Just Label It movement, which culminated in a nearly meaningless federal-labeling law.¹⁹⁷ The law and the implementing regulations use the less recognized phrase “bioengineered” and its acronym “BE” rather than the more commonly understood “genetically modified” or “genetically engineered.”¹⁹⁸ The USDA selected a labeling symbol that requires either the phrase “bioengineered” or “derived from bioengineering” and includes a graphic of a sun over a field of row crops.¹⁹⁹ The USDA’s regulations are currently the subject of litigation charging that the rules facilitate “de facto concealment of [genetically engineered] foods and avoidance of their labeling.”²⁰⁰ Genuine concerns about seed sovereignty and pesticide pollution are dismissed as fringe, and consumers are placated by the theoretical right to choose for themselves.

3. Information Control as a Disempowerment Tool

Information control has long been understood as a mechanism for consolidating power.²⁰¹ This may occur in a variety of forms—lying, controlling access to information, exaggerating, and breaking down the line between truth and fiction.²⁰² Information control silences dissent when the factual bases for critique are obscured or when the criticism itself is discouraged through threat of violence or prosecution. And muddying the truth prevents dissent by distracting and confusing potential dissenters. Together, these information-control mechanisms—suppression of dissent and confusion—render consumers helpless under the guise of facilitating consumer responsibility.

* * *

I recognize that there is an inherent tension between the logical policy conclusions of Part I—reducing prescriptive regulation and allowing communities to engage in self-determination—and the logical policy conclusions of Part II—ramping up regulation and freeing consumers from their burdens. This tension is resolved, in part, by resisting the instinct to take either of these critiques to its fullest extreme. There is a role for laws that protect consumers, particularly in the face of information asymmetries and other structural barriers to free choice. And there is a role for laws that empower consumers, particularly those participating in nondominant food cultures.

III. A Polarized Food System

Parts I and II explored how the myths of the helpless and responsible consumer strip power from many food system participants. The myth of the helpless consumer generates the basis for homogenization, which threatens diversity of traditions, scale, demographics, and food itself. The myth of the responsible consumer creates a reliance on information as the basis for both individual choice and advocacy. Consumers are then susceptible to a constructed helplessness as information supplies are shut off, diluted, or drowned out. An additional mechanism through which food law strips power emerges from the juxtaposition of these myths: polarization. Polarization occurs along two axes: between food producers (including food system workers) and food consumers, and among food consumers. Polarization, in turn, exacerbates powerlessness by inhibiting the kind of cooperative advocacy necessary to resist corporate power.

A. Axes of Polarization

1. Food System Workers Versus Consumers

As described in Part I, the myth of the helpless consumer helps to support a unidirectional chain of obligation in which producers owe a variety of duties to consumers. At the same time, the myth of the responsible consumer helps to support an environment in which consumers come to producers with a range of demands. These two features set up consumers and producers as oppositional.²⁰³ This polarization allows for exploitation of food workers and preserves the economic power of the food industry.

While consumers benefit from numerous legal protections, producers, and often more importantly their employees, enjoy very few. As a result of the suite of helpless consumer laws, food businesses invest significant time and resources into catering to consumer expectations and ensuring consumer protection. Following a “customer is always right” mentality, these laws reflect a belief that the interests of the consumer overshadow all other interests at stake in the food system, including those of employees, animals, and the environment. This dynamic is at its most extreme in the tipped-wages segments of the industry, where customer satisfaction literally determines employee pay scales.²⁰⁴ The ongoing experience of workers during the COVID-19 pandemic also illustrates this phenomenon vividly and heartbreakingly. Food system workers deemed “essential” were expected to risk their own lives to ensure that consumer food experiences remained uninterrupted.²⁰⁵

Legal structures mirror this dynamic. Labor law is rife with food-related exceptions. Agricultural workers, who historically were not entitled to a federal minimum wage, remain exempt from the right to engage in collective bargaining.²⁰⁶ In part as a result, agricultural workers are underprotected from a variety of workplace risks, including extreme exposure to pesticides.²⁰⁷ Evidence of agricultural workers’ exploitation, including occupational injury, lack of access to health care, pesticide-related illnesses, poor housing conditions, food insecurity, debt-to-labor contractors, sexual violence, and poverty wages, is overwhelming.²⁰⁸ The myth of the responsible consumer and its attendant “vote with your fork” advocacy, which calls for consumer benevolence toward workers, has, unsurprisingly, done little to improve workplace protections, as consumers tend to focus on spending to protect their own interests first.²⁰⁹ Likewise, homogenized food systems exacerbate workplace risks by prioritizing consumer protection and efficiency. For instance, in regulating line speed in hog processing facilities, the USDA’s Food Safety Inspection Service focuses primarily on whether increased speeds, which processors are clamoring for, will jeopardize food safety.²¹⁰ Faster line speeds also generate significant risk of workplace injury, but the agency has historically viewed its authority to take worker safety into account narrowly, and it has sometimes declined to consider it altogether.²¹¹

The juxtaposition of the helpless consumer, in need of protection from their food, with food system workers, who are not protected as they make that food, establishes a troubling asymmetry. It is also illogical. There is considerable overlap between producers and consumers. Essentially all Americans are food consumers, and about one-sixth of the workforce works in the food system.²¹² Food system workers are protected as consumers but ignored as workers. Put another way, lettuce is deemed to pose a risk to a person who might get sick from eating it if it is contaminated with e. Coli. It is not deemed a risk to the same person who might get sunstroke from harvesting it during a heat wave. The helpless consumer is thus dangerous not because the consumer is relieved of responsibility for the farmworker but because the system is structured to protect consumers at the expense of all others, regardless of need.

A parallel set of tensions exist between food consumers and farmers. Although some farmers receive significant federal financial support, many do not. For instance, recent subsidies distributed to respond to former president Trump’s trade war with China were given almost entirely to white farmers.²¹³ And some categories of farmers are particularly vulnerable within the food system’s structure. For example, the vast majority of broiler chickens are raised under contract with poultry processors.²¹⁴ In theory, contracts are beneficial because they allow farmers to share yield and price risk with their buyers, who commit to prices up front and often purchase the final products in advance of production. In practice, however, the structure of contract markets leaves poultry farmers open to exploitation.²¹⁵ During a series of Department of Justice listening sessions, many participants charged that “producers who raise or sell animals under contract are subjected to unfair or abusive treatment.”²¹⁶ In 2008, Congress directed USDA to address this issue, but subsequent congresses and the Trump administration have stymied meaningful change.²¹⁷

Although farmers remain a potent symbolic force in politics, their economic and political power is declining.²¹⁸ Farmers have less market power and face significant barriers to changing their practices, including the cost of adopting new production methods or shifting crops and lack of access to markets for different crops.²¹⁹ At the same time, they are subject to widespread critique from environmental and consumer groups.²²⁰ A recent article captured the perceived divide between farmers and consumers: “[C]onsumers ha[ve] a hard-to-satisfy wish list for those who put food on our tables—with most claiming to feel knowledgeable about how our food is raised.”²²¹ The framework of the responsible consumer underlies this illusion of oppositional interests between farmers and consumers. To put it crudely, the responsible consumer is invited to have preferences about farming practices, a fraught endeavor for even the most informed consumer and one that seems almost certain to alienate farmers, who do not want to be told how to do their jobs by people lacking practical farming knowledge.

The myth of consumer responsibility suggests that government intervention in food production is unnecessary because consumers are empowered not to need it. At the same time, a corollary narrative is that intervention would in fact be detrimental to consumers because it would make food more expensive. Producers must be free to produce as much food as cheaply as possible. If farmers can protect consumers, then farmers are free to do what is necessary to achieve this goal, and consumers are otherwise on their own. This view of the food system relies on the theory of productivism, which assumes that increasing agricultural productivity is the key to reducing hunger.²²² Although the USDA defines food security more broadly as “access by all people at all times to enough food for an active, healthy life” and “one of several conditions necessary for a population to be healthy and well-nourished,”²²³ productivism remains a central focus of the food security framework.²²⁴ Faced with projections of population growth, global policymakers speak of the need to double levels of food production.²²⁵ In the United States, policymakers and agricultural-industry advocates regularly focus on farmers’ role in “feeding the world.”²²⁶

In part because of this rhetoric, those working in the food system remain in poverty and are often food insecure themselves.²²⁷ This connection remains invisible because “the concept of food security, as deployed by domestic actors, has largely sidestepped a structural analysis of hunger. The result has been a focus on feeding hungry people, rather than altering the production relations and modes of governance that underpin food insecurity.”²²⁸ Agricultural workers are particularly susceptible to food insecurity, and susceptibility is higher for workers without legal status in the United States as these workers do not have access to Supplemental Nutritional Assistance Program (SNAP) benefits.²²⁹ Over the years, agricultural workers “have been recruited and expelled to meet growers’ shifting needs for labor in the fields.”²³⁰ Consumer-responsibility narratives on food security, and in particular on work requirements for access to social safety nets, reinforce this pattern. Low-income people are compelled to accept low-wage work to remain eligible for benefits.²³¹

2. Consumer Versus Consumer

The myth of the responsible consumer also generates a second axis of polarization. As personal health, household food security, and equity and sustainability are tied to individual choice, individual capacity to and interest in making those choices becomes a source of division. While some consumers have the time, money, and inclination to invest significantly into researching their food choices, others do not. Just as consumers are asked to do more and more with their food dollars, social-welfare support to supplement those dollars is declining.²³²

Consumer responsibility for equity and sustainability results in dichotomous rhetoric. On the one hand is the “if they only knew” rhetoric, which laments lack of education and argues that consumers would make different choices if they knew better where their food came from.²³³ Michael Pollan exemplifies this philosophy:

If people could peer over the increasingly high walls of our industrial agriculture they would surely change the way they eat.

Increasing numbers of Americans aren’t waiting: they’re changing now. This desire for something better—something safer, something more sustainable, something more humane and something tastier—is what’s bringing people to the Whole Foods and the farmer’s market . . . .234F²³⁴

Some advocates espouse an even more insidious version, arguing that if people could only taste real food, they would make better choices.²³⁵ Scholars have long critiqued this aspect of the movement as neoliberal, pointing out that it relieves the public sector of responsibility for serious public problems, puts the burdens of those problems on individuals, and allows the food industry to continue with business as usual.²³⁶

The trend places responsibility on individual consumers without considering structural barriers that hinder choice. The first of these barriers is cost. From a food producer’s perspective, the primary function of a certification is to charge a price premium. Healthier, more sustainable, and more humane food choices are often more expensive.²³⁷ Second, the moral choice is not always straightforward. How, for instance, should a consumer balance label information about animal welfare with information about carbon footprint?²³⁸ Labels themselves also face numerous methodology and legitimacy problems and may not be reliable sources of information.²³⁹

In part because of these barriers, the myth of the responsible consumer is susceptible to the charge of elitism—the other side of the dichotomous rhetoric. Critical food scholar Julie Guthman refers to Michael Pollan’s approach as “privileged,”²⁴⁰ and more pointed critiques fill the pages of conservative and libertarian media.²⁴¹ Critics have also observed that the consumer food movement tends to create and reproduce “white spaces” that are exclusive both for the structural reasons described above and for cultural reasons.²⁴² Here, processes of food homogenization reinforce this culture war by stigmatizing nondominant foodways. As discussed in Part I, homogenization others outsider foods and food production practices.²⁴³ In conjunction with responsibilization, it also sets the stage for the charge that consumers who do try to take action and demand change from food producers are themselves deviant and should be dismissed.

This fight over who gets to decide what good food is—and even the basic assumption that there is such a thing as “good food”—fosters mutual judgment and magnifies ideological divides. As I have argued elsewhere, the big beneficiary of this ideological divide is the food industry.²⁴⁴ Food law—including consumer protection laws that create one-way obligations from producers to consumers and information-control regimes that undermine food consumers’ capacity to understand the system they participate in—plays a critical role in fostering this polarization.

B. Polarization as a Disempowerment Tool

Polarization magnifies the collective-action problem already facing those advocating for systemic change. Hannah Arendt argues that “[s]ocial atomization and extreme individualization preced[e] the mass movements” that allow for the rise of authoritarian regimes.²⁴⁵ This is achieved through isolation of those with common interests. Focusing in particular on the breakdown of social classes, she observes that without these common bonds to overcome difference, “the whole fabric of visible and invisible threads which bound the people to the body politic” disintegrates.²⁴⁶ Ultranationalism feeds on “us versus them” rhetoric to mobilize solidarity oriented around the state, encouraging a strong relationship between each individual and the state and discouraging other kinds of solidarity relationships.²⁴⁷ Indeed, fascist regimes frequently targeted labor unions, which those regimes deemed threats because they created “mutual bonds along lines of class.”²⁴⁸

As the previous Sections established, this same polarizing dynamic plays out in the food system. Food law generates and reinforces us-versus-them sentiments along several axes, isolating those who may otherwise have common interests. This fragmentation preserves the economic power of the food industry and exacerbates exploitation of food system workers and food consumers, particular minority and low-income consumers.

C. From Fascism to Sovereignty

This Article argues that food law facilitates the loss of individual and community sovereignty, and it frames this loss of sovereignty as a matter of powerlessness. Homogenization creates powerlessness by eliminating meaningful choice. This powerlessness is felt most acutely by those whose traditional foodways fall outside the prescribed norms of the U.S. food system. Information control creates powerlessness by disempowering those who might otherwise express their political and social preferences through food choice just as consumers are distracted from more direct means of food-related political participation. Finally, polarization creates powerlessness by curtailing solidarity between the different segments of the population exploited by the food industry.

Where law produces powerlessness, it advances something more insidious: fascism. Hannah Arendt puts the loss of individual and community sovereignty at the core of fascism, and the constructed powerlessness that this Article describes is perhaps a democracy-friendly euphemism for fascism.²⁴⁹ It might be that fascism is a useful analytical tool to assess the U.S. food system.²⁵⁰ Even in the absence of authoritarian power, the dominant food system, as characterized by homogenization, information control, and polarization, has taken on the key hallmarks of fascist ordering.²⁵¹

Food has a deep relationship to state power. At one extreme, it plays a significant role in fascist and other authoritarian regimes. From forced starvation (for example, in Nazi concentration camps²⁵²) to centralized food system planning (for example, in Italy under Mussolini²⁵³), controlling food is a key path to controlling people. Historian Tiago Saraiva puts food at the center of fascism’s rise, arguing that “every fascist regime of the interwar period became obsessed with projects for making the national soil feed the national body.”²⁵⁴ At the other extreme, food plays a key role in anarchist communities. Articulating a theory of “escape agriculture,” anarchist historian James Scott describes how communities around the world intentionally adopted certain foods and agricultural practices, such as shifting agriculture and tuber crops, that evade state appropriation because they are difficult to locate and tax.²⁵⁵ These food choices and food production practices allowed communities to resist the control of oppressive governmental regimes and remain essentially stateless.²⁵⁶

If this Article provides a conceptual critique of U.S. food law, it also offers a roadmap for reform, identifying the laws, policies, and institutional actors that strip power from the majority of food system participants. The primary goal of reform should be to establish food sovereignty, the functional inverse of food fascism.²⁵⁷ Sovereignty, as distinct from food freedom (and other forms of food libertarianism) relies not on an individual’s absolute right to choose what and how to eat but on the power of individuals, communities, and nations to participate in the critical decisions that shape the food system. Building sovereignty begins with dismantling the fascist structures of food law. In some cases, the dismantling is simple, requiring only the repeal of a problematic policy (for instance, SNAP work requirements or food disparagement laws). In other cases, the dismantling requires more complex tradeoffs between the goal of sovereignty and the need for risk management (for instance, food safety or food fraud law reform).²⁵⁸ Ultimately, dismantling food fascism is necessary to make the apparent goal of the food system—to allow eating that is physically, culturally, and emotionally sustainable—an achievable reality.

Conclusion

I end with a word of caution. Fascist regimes depend on myth.²⁵⁹ Therefore, dismantling the two myths at the core of the U.S. food-law system—the myths of the helpless and responsible consumer—is a necessary yet fraught first step. Unwinding the myth of the helpless consumer requires embracing lay expertise in food safety, but it also requires empowering communities to assess safety. Doing so without simultaneously dismantling the myth of the responsible consumer risks doubling down on the latter myth’s oppressions. Likewise, dismantling the myth of the responsible consumer, which would involve alleviating burdens on consumers to eat the “right food,” risks doubling down on the helpless consumer myth. Instead, the two myths must be understood and unwound together through investment in food system governance that can reflect our diverse social, religious, physical, and emotional food needs.

* Professor of Law, Elisabeth Haub School of Law at Pace University. Thanks to Hope Babcock, Peter Barton Hutt, Noa Ben-Asher, Amy Cohen, Bridget Crawford, Barry Friedman, Josh Galperin, Marc-Tizoc González, Lisa Heinzerling, Smita Narula, Jason Parkin, Lily Baum Pollans, Nate Rosenberg, and Richard Stewart for their comments. This Article also benefited from feedback from participants at the first Academy of Food Law and Policy conference, audience questions at the Georgetown University Law Center Environmental Speakers Series, the excellent research assistance of Chris Arrigoni, Tala DiBenedetto, Clara Geffroy, Colin Myers, Aaron Rudyan, and Alicia Stoklosa, and the fantastic work of the Michigan Law Review staff.