13 Chap. L. Rev. 357 (No PDF)
Chapman Law Review
THE “CALIFORNIA EFFECT” & THE FUTURE OF AMERICAN FOOD: HOW CALIFORNIA’S GROWING CRACKDOWN ON FOOD & AGRICULTURE HARMS THE STATE & THE NATION
Copyright (c) 2010 Chapman Law Review; Baylen J. Linnekin
Thank you for your wine, California. Thank you for your sweet and bitter fruits.
— The Rolling Stones, Sweet Virginia, on Exile on Main Street (Atlantic Records 1972).
For several decades, California has been the epicenter of the American food scene. While data show that the state produces one-third of the nation’s food supply, California is much more than where the food we eat comes from. One in eight American diners lives in the state, which is home to more than 90,000 restaurants. California is also where eating trends are born, and where fast food, Chez Panisse, Mexican salsa, Wolfgang Puck, organic foods, street food, and Napa Valley wines became durable icons of American culinary culture.
The state’s place atop the national food chain, though, is in jeopardy. In recent years, California legislators have pursued regulations that negatively impact many important agricultural and culinary trends. State and local governments have banned or severely hampered a veritable smorgasbord of foods, including everything from eggs to French fries, foie gras to tacos, raw-milk cheeses to bacon-wrapped hot dogs. Meanwhile, California Proposition 65 requires proprietors of restaurants that serve olives, bread, and chicken to warn customers that they sell cancerous products. The nation’s breadbasket now wants us to fear bread.
California’s turn against food is worrisome across the country, too, since in addition to its place as the nation’s breadbasket and culinary trendsetter, California is the country’s cultural and regulatory bellwether. Regulations passed in California often become laws elsewhere, at both the state and federal level. Companies that can no longer market a food in California may be forced to decide whether that product–robbed of twelve percent of its potential market–is still viable.
This article explores the bright past, gloomy present, and cloudy future of food in California, and what this means for food in America. Section I describes the nature and history of California’s agricultural and culinary development. Section II explores several of California’s state and local food bans and restrictive food regulations. Section III analyzes the “California effect” and the nationwide impact of California’s food crackdown, and describes several ways that burdensome California food laws have impacted agriculture or dining on a national scale. Section IV analyzes the likely causes of the state’s burgeoning crackdown on food, and explores several arguments over California’s food crackdown. Finally, this article concludes that what California and America need in place of what some critics label “food fascism” is food freedom: the right of people to grow, buy, sell, cook, and eat the foods they want.
I. California: The Capital of Modern American Food
California is the nation’s third-largest state in terms of area, and it is the largest, by more than one-third, in terms of population. More than twelve percent of Americans call California home. Just as important for the purposes of this article, California is the birthplace of much of what we eat, and how and why we prepare a rich variety of foods.
A. California: America’s Agricultural Titan
Indigenous Americans who made their home in pre-colonial times in what is now California subsisted on a variety of wild foods, including acorns, game, and marine mammals. Many crops and animals now raised in the state were brought by the Spaniards and Mexicans who first colonized today’s California in the latter half of the eighteenth century.
California currently boasts more than 75,000 farms and ranches. These occupy more than 26 million acres, or 25 percent of the state’s total acreage. These farms generate more than $36 billion in sales, which is nearly double that of Texas, California’s closest competitor. California’s agricultural output is so massive that its value dwarfs that of all but about a half-dozen countries in the world.
California’s vast size, fertile soil, and largely temperate climate make the state an ideal location for growing a dizzying array of crops and raising livestock. Nationally, recent data show that the top five agricultural counties in America, in terms of sales, are located in California. Agriculture and crop production rank first and fourth, respectively, on the state’s own list of “competitive edge” private industries. Owing to California’s place as a wine- and beer-producing state, beverage manufacturing ranks tenth on the list.
The sheer volume and variety of crops grown in California defy overstatement. The state leads the nation in production of almonds and walnuts and seemingly every crop alphabetically in between. In addition to almonds and walnuts, California is America’s sole producer–meaning it is home to ninety-nine percent or more of the country’s overall production–of figs, raisins, olives, clingstone peaches, persimmons, prunes, pomegranates, sweet rice, and clover seed. The state leads the nation in production of asparagus, avocados, bell peppers, broccoli, carrots, cauliflower, celery, cut flowers, dates, eggplant, garlic, grapes, herbs, kiwi, lemon, lettuce, lima beans, melons, nectarines, onions, pears, pistachios, plums, raspberries, strawberries, turnips, and more than a dozen other crops. All told, California farms account for nearly half of America’s domestic production of fruits, nuts, and vegetables. California growers ship the vast majority of these crops to other U.S. states. California also accounts for all of America’s nut exports, and three out of five fruit and vegetable exports.
California is also the nation’s organics and dairy capital. Today, California leads the nation by a wide margin in both the number of certified organic farms and ranches with 1,916 (Wisconsin, in second place, has just 580 such operations) and organic crop acres with 223,263 (North Dakota, with 143,322, is second). California, also America’s leading dairy maker, accounts for twenty-two percent of America’s milk production, about half of which is used to make cheese. The state produces more milk than do its two closest competitors, Wisconsin and New York, combined.
B. California: America’s Culinary Titan
While California is undoubtedly America’s agricultural giant, the state may be even better known for its place as the epicenter of modern-day American cuisine. In so many different ways, what we eat today reflects California’s past and present culinary development.
The story of food in California, like that of most states and nations, mirrors immigration patterns. After Mexico won its independence from Spain a half-century after colonization, Mexican cuisine predominated in the state. The Mexican-American War, and, soon after, the state’s Gold Rush, brought an influx of Americans to the state, along with large numbers of immigrants from Europe, Asia, Australia, and the Pacific islands. Each group brought its own culinary traditions, immediately diversifying California’s cuisine.
California’s population doubled from 1920 to 1940. With the advent of the automobile and freeway travel burgeoning, more Californians had the means to travel in search of different cuisines. Restaurateurs, like Oakland entrepreneur Victor Bergeron, met the demand head on. Bergeron began a quest in the 1930s to bring California’s ethnic cuisines to the masses, setting the stage with his Mexican and Polynesian restaurants for today’s family-style Mexican and Szechuan dining experiences.
That same decade, California also gave birth to the hamburger chains that became America’s fast food icons–perhaps the state’s first and most lasting contribution to America’s national cuisine. In rapid succession, Bob’s Big Boy, In-N-Out Burger, McDonald’s, and Jack in the Box sprung up in California as small operations, each expanding quickly from local to state to regional or national operation. The first twenty-four hour restaurant chain, Denny’s, literally opened its doors (which have no locks) in Lakewood, California in 1953.
The first major post-WWII development in California’s culinary experience was the state’s place as a launching pad for an American revolution in French cooking. In the 1940s, California native Julia Child moved to Paris, where she studied culinary arts under various French masters. Soon after her return to the United States more than a decade later, Child published Mastering the Art of French Cooking, the first cookbook to make French recipes and methods accessible to the masses.
In 1971, a decade after Child began to reshape the American culinary landscape for home cooks, Berkeley, California chef Alice Waters, who also trained in France, launched Chez Panisse, the restaurant that gave birth to “California cuisine.” The restaurant was the first in the nation explicitly to serve food from a set menu featuring only fresh, seasonal, and local ingredients. Waters was also “the first to put [the word] ‘organic’ on the menu.” Waters and her chefs combined this approach with the variety of cuisines that had been popular in California since the end of the Nineteenth Century to create something truly original, truly Californian. In so doing, she not only gave birth to California cuisine but to the “new American” food movement. This movement, which stresses the Waters ideal of fresh, local, seasonal, and organic cuisine, spread across the country in the 1970s, 1980s, and 1990s due to the influence of Waters, Austrian California transplant Wolfgang Puck, and a host of other groundbreaking chefs.
Wine, for many the perfect complement to a great meal, is also at the center of California’s culinary growth. Wine has been produced in the state since the time Spanish missionaries arrived in California. Still, at the dawn of the twentieth century, even food writers were unaware that California produced nearly every wine varietal. For more than 100 years, consumers and connoisseurs had considered the state’s wines–indeed all American wines–to be second-rate compared to those of the major European producing countries. That changed in 1976 with the “Judgment of Paris,” a competition pitting top French and California wines against one another in a double-blind expert tasting. California wines crushed their French counterparts, opening the domestic and world markets to California vintners.
Today, California produces about ninety percent of all U.S. wine and is responsible for more than sixty percent of all wine sold in this country, generating more than $58 billion in annual revenue in the state. The state’s success in winemaking led to the subsequent creation of licensed wineries in all fifty U.S. states. California is now the fourth largest producer of wine in the world, trailing only France, Italy, and Spain.
II. California’s Crackdown on Food
A. California’s State and Local Bans
California’s unparalleled dual successes in the development of both world-class agriculture and cuisine are at risk today because of the strict food-regulatory climate in the state. The state currently has “some of the toughest food restrictions in the nation.” Bans at the state or local level now threaten everything from authentic Hollandaise sauce and Caesar salad, to tacos bought from some now-popular mobile stands, to farm-raised salmon, to a host of other cuisines and agricultural products.
Each of California’s 480 cities and towns and fifty-eight counties has the power to enact certain laws and regulations under the state Constitution. Many burdensome food regulations and prohibitions are born at the local level and percolate up to the state level, as in the case of menu labeling and restaurant smoking bans. The reason for this is that advocates find it easier and less costly to secure a law’s passage at the local level than at the state level.
Still, the bans that burden the greatest number of people are undoubtedly those in force across the state. Perhaps no food impacted by a California ban is more widely consumed than eggs. In 2008, California voters passed Proposition 2 (Prop 2), the Prevention of Farm Animal Cruelty Act. The real regulatory dilemma inherent in Prop 2 lies in its ban of the use of battery cages to house egg-laying hens. The ban means that all such hens will have to be free-roaming by the implementation year. Currently, the state is home to nearly four-dozen large-scale egg producers and more than 20 million hens, which lay close to 5 billion eggs each year. These numbers will plummet with the ban. Experts predict the number of eggs imported into the state in order to meet consumer demand will swell once the ban takes effect, since out-of-state eggs are not subject to the ban.
Another farm-raised food subject to a statewide ban in California is foie gras, a delicacy made from the engorged liver of a duck or goose. Foie gras has probably existed since the time of the pharaohs, when Jewish slaves first noted that migrating geese tended to gorge themselves prior to their journey. Jews brought their knowledge of foie gras to Europe, where French chefs eventually made the dish a staple part of the country’s haute cuisine, and exported it around the globe wherever French food became popular. Today, it often appears on French menus in the United States and elsewhere in appetizers, or as an ingredient in dishes like Beef Wellington. Though both duck and goose foie gras are popular in France, duck is the chief variety consumed in the United States. New York State is the chief supplier of foie gras in America, followed by California.
In 2004, California banned foie gras, becoming the first state in the nation to do so. Just as with the egg-crate ban, proponents of the foie gras ban based their opposition to foie gras on animal-rights grounds, claiming that the process of fattening the liver of fowl, which the French call gavage, is cruel. The ban, passed by the state legislature and signed into law by Gov. Arnold Schwarzenegger, prohibits the manufacture or sale of foie gras beginning in 2012. The ban will impact Sonoma Artisan Foie Gras, the sole producer in the state; restaurants and grocers who wish to sell foie in California; and consumers there who wish to buy it in an eatery, or to cook and serve it at home.
The state has also banned agricultural products not on animal-rights grounds but out of fear of an environmental cataclysm caused by genetic engineering. Food producers have turned increasingly to genetically modified food (“GMO”), both crops and animals, in order to help the modified organism combat pests or disease, or to introduce to the food new traits or traits too difficult or costly to introduce through selective breeding alone. However, because of fears by some growers that countries like Japan might reject genetically modified rice from California, the California Rice Certification Act of 2000 banned the growing of GMO rice in the state. California also bans genetically modified fish from being introduced into its waters, making it the only state to ban entirely a genetically modified organism. The science behind both bans remains unclear. Referring to the fish ban, California Fish and Game commissioner Sam Schuchat called the ban “a question of values, . . . not a question of science.”
While animal rights and environmentalism are key factors behind some California bans, obesity is a driving force behind others, including those pertaining to trans fats, soda, and other foods served in schools. Trans fats occur naturally in all ruminant animals but also appear in hydrogenated cooking oils. Critics contend artificial trans fats cause obesity, heart disease, and other ills. Los Angeles attempted to ban trans fats in 2006, just a week after New York City became the first city in the nation to do so. California’s state constitution, however, did not permit the city to enact the ban. Then, in 2008, California became the first state to ban the use of trans fats. The ban will come into force in 2010 for restaurants in the state, and will apply to baked goods as of 2011. Critics of trans fat bans contend the laws have no impact on obesity, and may instead be counterproductive.
Foods served in public schools are subject to myriad regulations, nowhere more so than in California. In the push to tame childhood obesity, the state was in 2004 the first in the nation to ban soda from being served in grades K-8. On another school front, one pending bill, S.B. 416, would amend the state food and agriculture code in order to banish from school cafeterias any meat or poultry that has been raised with the help of antibiotics. In 2005, also under the guise of combating obesity, California legislators established school nutrition guidelines that went into effect in 2007. These guidelines have had their greatest impact on one of America’s most beloved, civic-minded, and benevolent youth-fundraising activities: bake sales. Since there is no way to regulate ingredients used in foods made at home, schools throughout the state have banned cupcakes and brownies and, as one school newspaper put it, turned “birthday cakes into contraband.”
B. California’s State and Local Regulations
Though less severe than an outright ban, a regulation can have a similar impact on producers and consumers. When a regulation tarnishes a product and makes it substantially less attractive to a consumer, a regulation can function much like a ban.
Los Angeles experimented with a “truth-in-menu” law in the 1970s, in part to combat the problem of area restaurants serving Roquefort dressing made of blue cheese and Maine lobsters that actually came from Rhode Island. This legitimate effort to combat genuine deceit was a reasonable reaction to a real problem. Three decades later, in 2008, California became the first state to implement a statewide menu-labeling law. The new law is not a “truth-in-menu” law but, rather, requires calorie labeling on restaurant menus for operators that have more than twenty locations in the state. The law did not arise in response to any deception but, instead, came about as a general response to the problem of obesity. The law impacts close to 17,000 restaurants. Critics of the menu-labeling law note that nearly every restaurant required by the law to post calorie information already does so at its website, provides such information on site, or both.
Another restaurant labeling requirement springs from Proposition 65 (Prop 65), the Safe Drinking Water and Toxic Enforcement Act (the “Act”), a statewide ballot initiative passed in 1986 by California voters. Prop 65 requires the state’s Office of Environmental Health Hazard Assessment, housed in the California Environmental Protection Agency, to maintain a list of substances that are known by the state to cause cancer or birth defects. The Act does not ban the substances, but instead requires businesses in which any of the substances are present at the minutest levels to post intimidating warning signs in prominent places. No specific manner of warning is required, meaning that warnings “can be given by a variety of means, such as by labeling a consumer product [or] posting signs.” In restaurants and groceries, this often means a sign posted on the establishment’s wall. Many individual products sold in groceries also contain warning labels. These postings alert consumers to the presence on that business’s premises of a cancer-causing agent, one that could harm pregnant women, or both. The required cancer warning, for example, reads, WARNING: This product contains a chemical known to the state of California to cause cancer. While Prop 65 empowers state and local prosecutors to enforce the Act, it also provides a private right of action to any person in the state to bring suit under the Act, and permits the award of money damages for violations.
The Act, as originally envisioned and implemented, did not apply to foods. Over the last decade, though, scientists learned that acrylamide–a chemical known to cause cancer, according to Prop 65–occurs naturally in some foods like olives, and in bread and other starchy foods that are baked or fried. As a result, Prop 65 now requires restaurateurs and grocers who sell healthy foods like bread and olives to warn customers of the presence of cancer-causing substances.
California sued potato chip and french fry sellers over the unwarned presence of acrylamide in their foods. More recently, the Physicians Committee for Responsible Medicine (“PCRM”), a vegetarian-activist group, filed suit under Prop 65 against McDonald’s, Burger King, and others. The suit claimed the chains had failed to warn customers that some of the chains’ foods contain heterocyclic amines, a substance that also appears on the Prop 65 warning list and that, like acrylamide in bread, forms naturally in some foods, especially in cooked poultry. At least one defendant, Burger King, settled with PCRM, agreeing to add a Prop 65 warning label to its grilled chicken products.
Prop 65 also applies to alcohol beverages. It mandates that, in addition to cautioning customers not to drink in excess or drive drunk, sellers of alcohol beverages label their products with warnings alerting the consumer that the products can cause cancer and harm developing fetuses. California regulators have also targeted the state’s important alcohol beverage industry in a variety of other ways. In 2002, winemakers were forced to adopt more “sustainable,” costly practices in order to stave off threatened environmental regulations. Then, in 2008, facing a record budget deficit, California proposed a massive 640 percent tax increase on wine. Under the proposal, the state’s wine excise tax would rise from the current $0.20 per gallon to $1.48 per gallon. A report prepared by Stonebridge Research for the Wine Institute, a California wine industry advocacy group, estimates the tax increase could cost more than 11,000 wine-industry jobs in the state.
Also in 2008, California’s State Board of Equalization opted to re-categorize flavored beers, known by critics as “alcopops,” as distilled spirits. The Board couched the reclassification in language indicating it came to its decision in order to “send a signal to youth that alcopops are hard liquor.” The change, though, like the proposed wine excise tax increase, is really little more than a spectacular 1,600 percent tax increase. Diageo-Guinness USA, the American arm of the international beverage giant, has filed suit, claiming the Board of Equalization overstepped its authority when it reclassified flavored beer.
Another beverage subject to current scrutiny in California is unpasteurized (raw) milk. Raw milk products are increasingly popular in California and, indeed, across the United States. Raw milk sales often come at the expense of dairy products sold by larger, pasteurized dairy operations. One dairy in the state estimates that 100,000 Californians drink raw milk every week. Proponents believe raw milk products taste better and contain beneficial bacteria that are killed during the pasteurization process.
Still, though it is legal to buy and sell raw milk in California, the regulatory tide against raw milk is growing in the state. The state cracked down on bacteria levels in raw milk in 2007. The crackdown was launched in part in response to the illness of four children who drank raw milk from California’s largest raw milk producer, Organic Pastures Dairy. Though the source of the illnesses was never traced to raw milk, the state began enforcing the 2007 regulations by employing undercover sting operations against various dairy operations. Then, in 2008, Governor Schwarzenegger vetoed a bill that would have established separate bacteria content standards for raw milk, which would have allowed producers of raw milk to better compete with competitors who sell pasteurized milk.
III. The “California Effect” and America’s Food Future
A. California’s Food Crackdown: Why Care?
California is banning and cracking down on food. But why should the nearly eighty-eight percent of Americans who live outside the state care what California regulates in California? What makes California’s food regulations more important to a resident of Peoria, Illinois than, say, Salem, Oregon’s proposal to ban at-home cooks from raising chickens in residential areas? Why not focus on this chicken ban or on any of the thousands of food regulations and bans in effect or under consideration around the country in places other than California?
From a culinary perspective, every American should care about California food regulations because the state grows and raises the bulk of our food. It is the capital of “new American cuisine,” which was borne of “California cuisine.” Much of what we eat and how we eat it are of California. Consider that it can be difficult today to eat a meal in America free of California ingredients or culinary inspiration. Your lobster may come from Maine, but in all likelihood your butter and your salad, your asparagus and your Chardonnay, and your after-dinner ice cream and strawberries come from California. What’s more, pairing lobster with grilled asparagus and wine–the inspiration for your dish–probably also came from California.
From a regulatory perspective, every American should care about California’s propensity to ban and restrict food because the state is the nation’s regulatory bellwether, the genesis of many “tipping point” regulatory epidemics. California is where regulations go from seed to seedling to weed, and from whence they subsequently propagate and pervade America.
B. The “California Effect” Generally
In 1995, Professor David Vogel of Berkeley’s Haas School of Business described the spread of strict regulations from larger, more influential states to other states as the “California effect.” The term “refers to the critical role of powerful and wealthy ‘green’ political jurisdictions in promoting a regulatory ‘race to the top’ among their trading partners.” The California effect is a more expansive concept than is federalism, because the effect concerns not just the notion of fifty experimental laboratories but “the ratcheting upward of regulatory standards in competing political jurisdictions.” Vogel posits that in any given free market economy, as between and among states in America, the whims of “wealthy, powerful states” like California will have an outsized influence that impacts not just regulations within the home state but also in others who trade with that state. Focusing much of his research on environmental regulations, Vogel notes that these factors have meant that California’s strict regulations have “helped drive many American environmental regulations upward” throughout the United States.
Vogel uses the example of California’s strict automobile emissions standards to illustrate this effect. In 1970, the federal government adopted vehicle emissions standards, and permitted California alone to set stricter standards. The state capitalized on the exemption. When, in 1990, the federal government chose to implement stricter emissions standards, it adopted California’s regulations, and permitted the state to adopt still-stricter standards. California again adopted even more stringent requirements, which a dozen states and the District of Columbia in turn adopted as their own.
In this example, California’s decisions influenced both federal and other states’ laws. More important, California’s stricter regulations influenced automakers, who had to choose whether to opt out of the California market (and later, thirteen others) or to “preserve valuable market access” by building cars that met the stricter standards. Though automakers and California both sued each other over the rules, no automaker chose to stop selling its vehicles in the state.
Outside of vehicle emissions, instances of the “California effect” abound. Perhaps the best example is California’s leadership in the spread of smoking bans across America. The city of San Luis Obispo, California passed the world’s first public anti-smoking ordinance in 1990. Four years later, the state became the first in the nation to ban indoor smoking in public areas. Today, thirty-one other states and the District of Columbia, along with more than 3,000 municipalities around the country, have nonsmoking laws modeled after California’s.
C. The California Effect and Food
While regulations concerning smoking are important to certain constituencies, California regulations concerning food and agriculture impact every American. The California effect, along with California’s place as “a national trendsetter in all matters edible,” increasingly means that the state’s burdensome food regulations are spreading across the United States. This article now posits several categories of California effects pertaining to food regulations.
1. California Regulations Passed & Considered in Other States: Foie Gras
When California banned foie gras in 2004, it was the first state to do so. Chicago soon followed suit. New York State, America’s largest producer of foie gras, briefly considered a ban, as did New Jersey, home of D’Artagnan, America’s largest seller of foie gras. Other states also considered bans, and at least one municipal government enacted a formal ban. One activist group has petitioned the U.S. Department of Agriculture (“USDA”) in hopes of forcing a federal ban. A New York ban, New Jersey ban, or federal ban would effectively cripple foie gras production, sales, and consumption in America.
2. California Regulations Adopted by the Federal Government: Organic Certification
California’s experience with regulations concerning organic certification closely parallels the story of vehicle emissions standards. California Certified Organic Farmers (“CCOF”), the first organic certifying body in America, formed in 1973. By the end of 1974, similar bodies had emerged in eleven other states, including Oregon.
California passed the nation’s first true organic certification law in 1979. Though Oregon’s law preceded that of California, Oregon’s law was chiefly an anti-fraud measure intended only to classify which producers could advertise their products as “organic.” California regulations built upon Oregon’s and in addition defined the term “synthetic,” contained public disclosure provisions, and required specific organic labeling language. In 1982, California amended the 1979 regulations, making the state the first to define the term “organic.” In 1990, California again amended its law, permitting public agencies or private certifiers like CCOF, today the nation’s largest such body, to inspect growers to ensure compliance with the regulations.
In 1990, Congress enacted the first federal organic standards. The California Organic Food Act of 1979, which was based on CCOF’s standards, played an important role in the creation of these national standards. Though the rule was based in part on California’s standards, organic activists in the state and elsewhere criticized the final rule as watered-down and overinclusive. These same critics had long lamented what had become of California’s own organic experience. The state’s organic farms today are not, for the most part, mom and pop operations. Instead, they are now mostly large, profitable corporate-owned farms that are in the organic business to (1) turn a profit and (2) hedge their bets–maintaining organic crops along with their conventional crops in large part out of fear that “the state might ban certain key pesticides.”
3. California Regulations Forcing Uniformity Nationwide: The “Pennsylvania Bread” Effect
The Pennsylvania food code requires all bread producers within and without the state who sell bread in Pennsylvania to register with the state’s agricultural department, and to print a registration mark to that effect on all bread packaging. Because of this, consumers from Alabama to Wyoming are familiar with the language “Reg. Penna. Dept. Agr.” on bread packaging, even if these consumers have no idea what the term means. The reason this terminology appears on multi-state packaging, even though only Pennsylvania law requires the language, is that regional and national bakers find it less costly and easier to print the language on all packaging than it would be to “make up a separate package for Pennsylvanians.”
What Pennsylvania’s bread registration is to bread packaging, California’s trans fat ban is to the contents of many restaurant and packaged foods. The ban applies to national companies, most of whose menu selections and grocery items, respectively, are uniform throughout the nation. These restaurants and food manufacturers will have to decide if it would be–as in the Pennsylvania example–cheaper and easier to cut trans fats from their recipes nationwide, rather than having a California version of their product and another version of that same product for the rest of the country. Because of the California effect, that decision will be easier than they might have hoped; states, counties, and cities around the country have followed California’s lead and introduced measures to ban trans fats.
4. California Regulations Forcing Parties to Seek Preemptive, Uniform Federal Regulations: Menu Labeling
Scarcely had a San Francisco menu-labeling law taken effect when California enacted its own statewide requirements. One of the biggest supporters of the regulation, perhaps surprisingly, was the California Restaurant Association (CRA), the state industry lobbying association. In supporting a uniform state requirement, though, the CRA admitted that one preemptive state standard “was more reasonable for restaurants and their customers than a patchwork of differing local mandates.”
But the California law does not solve the problem of differing local and state regulations across the nation; complying with Seattle’s menu-labeling requirements does not necessarily mean compliance in Philadelphia. Thus, following the CRA’s lead, the National Restaurant Association is supporting the federal LEAN Act, which would mandate nationwide menu-labeling standards.
IV. What to Make of California’s Unpalatable Food Crackdown: Causes and Effects
A. Why is California Cracking Down on Food?
There is ample evidence California is cracking down on food at the state and local level. What is not so clear is why the state is doing so.
It would be easy enough to blame the state’s food-regulatory climate on one person: Alice Waters. While Waters may be best known for creating the California cuisine movement and helping launch new American food, she is also a “Berkeley radical” who is well known among both her peers and food-regulation experts for “accept[ing] the legitimacy of regulatory [food] bans” and favoring government meddling for the purpose of “legislating good eating habits.” Indeed, it can be difficult to distinguish between Waters’s regulatory fervor and her passion for food. Her oft-repeated claim that “eating is a political act” has become intertwined with the California cuisine movement and has been incorporated into movements seeking “sustainable” food and “food democracy.” As a result, Waters and her many acolytes in the state that provides so much bounty and inspiration to the rest of the country seem intent on limiting America’s access to anything edible that does not walk lockstep with the movement’s rigid ideals.
Critics blast her movement, noting that not everyone can afford to eat like Waters, and disparage Waters herself, noting “her efforts [have] helped change the eating habits of the rich, not the poor.” Anthony Bourdain, a popular anti-regulatory chef, author, and television host, has been known to use expletives to describe Waters.
In addition to owning restaurants, Waters has put her beliefs into action, as a central figure for the nonprofit Chefs Collaborative, formed in 1993. The group’s manifesto demands that government ensure food originates in a place “with unpolluted air, land, and water, environmentally sustainable farming and fishing, and humane animal husbandry”–a statement that indicates the need for drastic and expensive measures taken by at least a half-dozen federal agencies.
Still, it would be unfair to peg (or credit) Waters as the sole force behind California’s propensity to ban or curtail certain foods or agricultural practices. A slew of other factors likely also contribute to the leftist, pro-regulatory food climate in California.
From 1930 to 1960, the majority of immigrants to California from other American states identified as New Deal Democrats, and eventually outnumbered the state’s “old Republicans.” Those immigrating to California from elsewhere in the United States since 1960, like the New Deal immigrants before them, identified with the political left. These new immigrants, often “hippies,” tended to migrate to California not because of the state’s economic promise but to escape “restrictive moral codes” elsewhere in the country. But while these immigrants opposed the moral restraints imposed upon them in their hometowns in the American South, the Midwest, and on the East Coast, many soon saw fit to codify their own moral codes in their adopted home of California.
Several factors contributed to this shift. During the 1960s, after the release of Rachel Carson’s apocalyptic Silent Spring, the issue of environmentalism ballooned in importance. California was an early adopter of so-called “green” regulations, in large part because Californians sought to “protect . . . the resources . . . of the nation’s loveliest landscapes.” In fact, California has been the nation’s leading environmental regulator since at least the 1970s. This rising tide of environmentalism in California coincided with an increasing interest in vegetarianism, a movement also centered in the state, and in animal rights. The free-speech movement, the first large-scale example of student activism, was launched in Berkeley in the 1960s–a fact Alice Waters herself notes in tracing her inspiration for California cuisine. Farm workers also organized during this period to fight perceived exploitation in California. Their efforts, led by organizer Cesar Chavez, formed what would become the United Farm Workers of America, the first farm workers’ union in the country.
As they aged, many of the post-New Deal leftists who immigrated to the state–and subscribed to these movements and supported their attendant regulatory requirements–found influential work in academia and the media, as well as in Congress and state government. California’s crackdown on food and agriculture is thus therefore best represented as the a confluence of pro-regulatory leftism, including environmentalism, the labor-rights movement, and the animal-rights movement; and the gradual transition into power of many former 1960s outsiders–along with reaction to the more recent problem of obesity.
Perhaps the archetypal example of this phenomenon–the movement crusader turned establishment regulator–is a graying radical named Edmund G. “Jerry” Brown. Mr. Brown served as governor of California and mayor of Oakland, unsuccessfully sought the presidency three times, and in his current capacity as California attorney general leads the state’s Prop 65 prosecutions. Another stellar example of the phenomenon is Tom Hayden, an ex-husband of actress Jane Fonda. Hayden, who was a founding member of the 1960s radical anti-establishment student group Students for a Democratic Society, went on to spend a decade in the California state legislature where he championed animal rights and environmental causes.
B. California Regulations May Not be Achieving Stated Goals and also Raise Concerns About Quality, Quantity, Freedom, and Prosperity
There are several arguments against California’s “blunt-instrument approach” to food and agriculture regulation. California’s crackdown threatens the quality and quantity of food available in California and across the United States, impedes culinary and agricultural advancement, encumbers economic freedom, hinders prosperity, and raises constitutional concerns.
California’s assault on food and agriculture has a negative impact on what and how we eat. The crackdown is bad for the state’s farmers, entrepreneurs, and consumers. The state’s burgeoning attack on raw milk harms farmers and consumers. This crackdown comes at a time when raw milk is increasing in popularity in the state and across the country. Prop 65, meanwhile, harms businesses that sell a host of healthy foods like chicken, olives, and bread, forcing them to warn consumers about the infinitesimal danger of eating otherwise healthful foods. Even acrylamide levels in less healthy foods are unlikely to cause cancer. One group estimates that, in order to contract cancer from consuming acrylamide, “a person of average weight would have to eat over 62 pounds of chips or 182 pounds of fries, every day, for his or her entire life.” In fact, virtually anything we eat can conceivably cause cancer, including fruits and vegetables, but the positive health effects of many foods far outweigh any perceived harm eating these foods might cause.
In the case of foie gras, California’s ban could have a far-reaching and dramatic impact on what Americans eat that extends well beyond the targeted food. The Humane Society of the United States, an animal-rights group involved in securing passage of the California ban, recently argued not just that foie gras is the result of the allegedly cruel process of gavage but also that it is a “diseased” product that cannot legally be sold in the United States. Their argument concerns the swollen livers of foie gras fowl. While foie gras may not frequently be consumed in this country, this “diseased” argument could, if accepted by either state or federal government, have a dramatic impact on one food that is widely eaten in America: beef. Why? Most beef cattle in the United States are–like foie gras ducks–fed a diet of corn. Cows do not eat corn in nature. Because eating corn can cause cattle to experience severe gastric distress, most cattle are also fed antibiotics, which permit a cow to eat corn without the attendant gastrointestinal impact. If the Humane Society of the United States were to succeed in having foie gras classified as a “diseased” food, that success might open the door to banning corn-fed beef–which, after all, is treated with antibiotics–as a “diseased” food.
The crackdown also threatens California’s place as America’s culinary innovator and agricultural engine. California is slowly squeezing the life out of its cuisine via a series of assaults committed from farm to table. The state is banning everything from haute cuisine like foie gras to the everyman meals served by the state’s brilliant street vendors, from agricultural practices like caging hens to culinary practices like cooking with trans fats. As one commentator notes, “[t]he regime of personal prohibition can be stifling.”
California’s food crackdown is also bad for consumers across America. The California effect has meant that the state’s food regulations and bans extend far beyond its borders, either because its regulations or bans encourage other states or the federal government to adopt them, or because they force producers to change their offerings nationwide, or because they force the regulated industry to seek preemptive nationwide regulation. The result has been nationwide organic laws that are panned by organic advocates; the likely imposition of nationwide uniform menu-labeling standards; and dozens of discordant state laws battling the imagined scourge of trans fats. Evidence these bans and regulations actually encourage healthier eating is scant, which is why scholars like Brian Wansink note that these and similar regulations have had no discernable impact on obesity.
California’s crackdown on food raises other serious economic concerns for its residents, for the state, and for the nation. The exorbitant increases in the state’s beer and wine taxes will cost thousands of jobs in California. One estimate indicates that Prop 2 could result in the elimination of most of the California egg industry and the loss of thousands of jobs, which could cost the state more than $370 million in gross sales and resulting tax receipts. In addition to unemployment and reduced tax revenue, these regulations will increase prices for alcohol beverages and eggs in California. Because California exports wine and eggs, Americans will also pay higher prices for these goods because of California’s regulations.
Finally, California’s food regulations and bans are an ineffective and wrongheaded means of dealing with real and imagined problems. California’s ban on caged hens will do little more than shift jobs (and hens) from California to other states. Prop 65 casts such a wide net that Californians are subject to warning fatigue. Even the state admits that Prop 65 warnings are ubiquitous. The state’s efforts to curb childhood obesity in schools are also not working. Los Angeles, the city that first tried to ban soda from schools, was recently found to be in violation of its own regulations concerning the sale of soda and brownies on campus. While decent people may disagree whether legislation is a path for arresting the very real obesity problem, recent research by the independent RAND Corporation indicates that the presence of so-called junk food in schools has “no statistically or economically significant effect” on body mass, a key indicator of obesity. The RAND study did note that such bans do have an impact on school budgets–and a negative one at that–since monies raised by food sales go into school coffers.
C. California Regulations Raise Constitutional Concerns
1. The Dormant Commerce Clause
The Dormant Commerce Clause, an implied provision of the federal Constitution, bars local and state governments from “restrict[ing] trade in a way that ultimately impacts interstate commerce[,] even when the intention of the political entity enacting the law is to effect a change solely within the boundaries of its particular jurisdiction.” The Illinois Restaurant Association argued, in challenging Chicago’s foie gras ban in 2006, that the city’s ban violated the Clause.
The crux of the plaintiffs’ Dormant Commerce Clause argument was twofold. First, they argued that Chicago’s ordinance was effectively an “economic boycott” against foie gras producers located outside the state. Second, they claimed the ordinance did not have the requisite local benefit that a law must have to overcome a Dormant Commerce Clause challenge. The court disagreed on both counts, holding that because the Chicago ban did “not govern foie gras production,” and had some local benefit in terms of animal rights, it did not overstep the bounds of the Dormant Commerce Clause. The difference in the case of the California ban is that the state targets producers and consumers outside and inside the state. Whether these differences would be sufficient for a court to determine that California’s ban violates the Dormant Commerce Clause is unclear, especially given that the “local effect” requirement may be fulfilled because of California’s in-state production. However, since the decision in Illinois Restaurant Ass’n, commentators have opined that bans such as those enacted in Chicago and California do indeed violate the Dormant Commerce Clause. They argue that the Chicago and California foie gras bans do illegally interfere with interstate commerce while offering “no prescient public health, safety, or moral justification . . . that would withstand judicial scrutiny.” If this is the case, then the foie gras ban and many of California’s other bans–including those pertaining to egg-laying hens; genetically modified crops and fish; and trans fats–may also violate the Clause. Furthermore, California restrictions on agriculture may present an even more compelling Dormant Commerce Clause case because the state ships the vast majority of its crops to other U.S. states, and accounts for the vast majority of America’s fruit, vegetable, and nut exports.
2. Do California’s Bans and Regulations Interfere with a Fundamental Right to Food Freedom?
The Supreme Court has never recognized an explicit right to eat certain foods. However, several Court justices have recognized a negative right to food. Justice William O. Douglas wrote, in dictum, that the Ninth Amendment guarantee of unenumerated fundamental rights includes “one’s taste for food . . . [which] is certainly fundamental in our constitutional scheme–a scheme designed to keep government off the backs of people.” Other Justices have come out against food bans. Justice Stephen Field argued that a right to make and procure food is an integral fundamental right of all Americans. Field called this right an essential element of liberty. Importantly, Field distinguished between food regulation and food bans, contrasting the former, which he called a reasonable exercise of state police power, with the latter, which he would proscribe as unconstitutional. More recently, Justice Antonin Scalia, also in dictum, said the Court need not recognize a right to starve oneself to death in order to protect the “right to eat.”
Proponents of California’s attack on food and agriculture paint the regulations that comprise it and the resultant California effect as a desirable “race to the top.” But California’s crackdown does not achieve its stated goals–whether the goal is ensuring a minimum level of quality; combating obesity; or protecting animals or consumers. The crackdown certainly does nothing to aid entrepreneurship or innovation. The result of the state’s regulations and bans has not been that Californians or Americans eat “healthier” or “better” as those terms are defined by the crackdown’s advocates.
When it comes to regulation, harsher does not mean better. The race to regulate is not a race to betterment. Ubiquitous and pervasive regulations might themselves be evidence of little more than the existence of “a race to the strictest standard.” Vogel recognizes the drawbacks of the “California effect,” noting that while economic liberalization and strict regulations can be compatible, he is careful “not to equate stricter standards with more effective regulations.” Vogel writes that stricter regulations often “contribute little or nothing” toward their stated goals, and that overturning regulations often benefits the public.
Where does the pervasive spread of California’s bans and regulations point America’s food future? On the one hand, California’s mushrooming food and agricultural regulations and bans–the result of the state’s propensity toward hyper-regulation and the resultant California effect–are spreading across America. On the other hand, if these bans and strict regulations are bad for California, then their proliferation is also bad for America.
The many people who claim a food revolution is afoot in America today are probably correct. But revolutions and revolutionaries have tried before to create top-down, small-farm agrarian utopias and to regulate nearly every aspect of human dining and existence. What these societies managed to do instead was to create poverty and famine.
There is an alternative to the vision shared by California regulators, Alice Waters, and their allies. That alternative is food freedom–the right of people to grow, buy, sell, cook, and eat whatever foods they want, free from oppressive government intervention. For people who love and care about food and choice, who want to keep food legal, and who enjoy buying, cooking, raising, and eating a variety of foods, only the latter option will suffice.
A general rule of thumb is that it is harder politically to get things done at the federal level, somewhat less hard at the state level, and easiest at the local level. That is why so many public health advocates are fond of touting local policies as a critical strategy.
In April 2002, the Swedish National Food Administration reported finding elevated levels of acrylamide in starch-containing foods cooked at high temperatures, such as potato products and bread…. The novel finding in the most recent sampling is the presence of acrylamide in black olives, prune juice, and Postum, a powdered beverage.
The California effect also holds true for the state’s administrative rules, which influence federal agency rulemaking as relates to food. For example, the USDA’s Agricultural Marketing Service (AMS) has proposed and is currently considering a marketing agreement, the National Leafy Greens Marketing Agreement, which the agency says would help food handlers “reduc[e] the risk of pathogenic contamination during the production and handling of leafy greens.” Handling Regulations for Leafy Greens Under the Agricultural Marketing Agreement Act of 1937, 72 Fed. Reg. 56678 (Oct. 4, 2007) (to be codified at 7 C.F.R. pt. 962). The USDA specified in its advanced notice of proposed rulemaking that:
[M]embers of the California [leafy green vegetables] industry initiated the establishment of a State marketing agreement for handlers of leafy greens (http://www.caleafygreens.ca.gov/docs/resources.asp)…. Although AMS has not received an official proposal, members of the leafy greens industry have expressed interest in the establishment of similar standards through a Federal marketing program. Industry discussions have focused on the need for a program with national scope. In response, AMS is considering the development of a marketing agreement… to meet the needs of the produce industry across the fifty States and the District of Columbia.
Id. at 56680. As with the USDA’s eventual organic rules, many small producers, organic farmers, and their supporters oppose the leafy-greens measure. See, e.g., Oregon Tilth, National Leafy Greens Marketing Agreement, http://tilth.org/news/national-leafy-greens-marketing-agreement (last visited Apr. 1, 2010) (describing the group’s own efforts “in concert with a number of other conservation and organic farming groups… in opposition of the Act, which OTCO believes would have serious detrimental consequences for organic growers and the environment, while [doing] little to decrease the incidence of food-borne illness”).
established the first agricultural labor relations law in the country, enacted collective bargaining for teachers and other public employees, started the California Conservation Corp (CCC), signed into permanent law the California Coastal Protection Act, earned federal protection of Northern California wild and scenic rivers, brought about the country’s first building and appliance energy efficiency standards and made California the leader in solar and alternative energy.
Proponents argue that the Clause exists at least in part to protect economic liberties, including the right to pursue a given trade. See Robert A. Levy, How Gun Litigation Can Restore Economic Liberties, 31 Cato Pol’y Rpt. 2 (2009). In the Slaughter-House Cases, which concerned the economic rights of meat butchers, the Court “ruled that the law was a valid public health measure and did not violate the right of butchers ‘to exercise their trade.”’ Id. A Court decision this term to revive the Clause could seemingly spell the end of California’s foie gras ban, among other California regulations, since the ban is after all a public morals measure that concerns the rights of fowl farmers and butchers to exercise their trade.