By Steve Armstrong, EAS Independent Advisor, Food Law & Regulation
A thirty-year old federal court opinion that is well known to students of food and drug law holds that in the absence of a detailed, Congressionally mandated definition, courts and regulators should follow the common understanding of “food” as an article that delivers “taste, aroma and nutrition.” In the 21st century, however, food not only nourishes and satisfies, it also frequently makes a statement — about how it was made, where it came from and how the earth and its inhabitants were treated along the way.
Foods with these sorts of claims – called “Process Labeling” — are everywhere. Even on a casual trip to the supermarket, it’s hard to miss the increasing use of labels claiming that a food is “certified organic,” “shade-grown,” “free-range,” or “rain forest certified,” to name but a few. Process labeling is oftentimes also about what was notdone to a food. For example, “Non-GMO” indicates that the food used no ingredients made from genetically modified organisms, or “GMOs,” shorthand for the agricultural bioengineering methods that have helped farmers grow corn, soybeans and other cash crops.
Food marketers today, as one of them recently told me, need to appeal to consumers’ desire to know about the “genealogy” of a food. Of course, this interest is relatively new but growing exponentially and to a very real extent can be attributed to the fact that food in the United States is by and large safe, plentiful and relatively inexpensive. Two authors who have studied communication in modern agriculture explained the phenomenon this way:
As top concerns for consumers are already largely being met, there is a freedom that was not historically available to delve deeper into food issues, to ponder how food was grown and raised and to think about these matters while waiting to check out. Consumers are not wrong for doing this; it is a fundamental right of the consumer to question.
— The Communication Scarcity in Agriculture, J. Eise, W. Hode (New York, N.Y. 2017) at p. 46.
Consumer concerns over the impact of modern food production on health and the environment have helped drive the popularity of Process Labeling. The Council for Agricultural Science and Technology, a nonprofit scientific organization, recently assembled a cross-functional panel of experts to assess the phenomenon and make policy recommendations. The panel concluded:
Under appropriate government oversight, these ‘process labels’ can effectively bridge the information gap between producers and consumers, satisfy consumer demand for broader and more stringent quality assurance and ultimately create value for both producers and consumers.
The mounting popularity of Process Labeling is readily apparent. In the U.S., consumer purchases of organic products have reached record levels, amounting to over $43 billion last year, and up 11% over the previous year. The demand for environmental or “eco” labeling is robust, with more than 460 different labels relating to 25 industry sectors now in use in nearly 200 countries. Food companies are embracing Process Labeling in the name of “transparency,” with many committing to provide more information – via labeling – about how food is produced.
While Process Labeling has great appeal and potential utility, execution can be difficult for three reasons.
First, such labels require a “process” clearly defined by a standard fixed either by the government or a well-established, independent agency. The standards for organic farming set by the National Organic Program are the leading example of such a third-party standard. USDA’s systems of grading meat, poultry, butter and eggs, and requiring Country of Origin Labeling (“COOL”) are other examples of clearly defined process standards. Sellers, buyers, trade groups and industry associations have also established quality standards and guidelines against which Process Labeling claims can be assessed. However, it is hard, if not impossible, to find widely accepted, well-established definitions for some of the most popula