Salad Days: Professor Jacob Gersen on the rise of food law

HLS Professor Jacob Gersen, faculty adviser to the Climenko Program

Credit: Joshi Radin HLS Professor Jacob Gersen, faculty adviser to the Climenko Program

Harvard Law professor Jacob Gersen grew up in central Maine, in an old farmhouse that he wryly calls rustic. “It had an old wood-burning kitchen stove, it snowed inside during the winter, and it had what seemed like miles of fields to run in,” he recalls.

Now expert in what seems (to his students) like millions of subjects—including economics, constitutional theory, administrative law, environmental law, and Congress—Gersen spends a growing share of his time traversing a new beloved frontier: food law. “It is at that point where the sky meets the land, where high legal theory meets the thicket of on-the-ground facts,” he says of the field. “It’s also the only thing I have worked on that people at a cocktail party actually want to talk about.”

Much of Harvard Law School now seems hungry to talk about it, too. In addition to teaching the subject, Gersen founded and oversees the Food Law Lab at the Petrie-Flom Center, one of several places where food law is sizzling on campus. Under clinical professor Emily Broad Leib’s direction, Gersen notes, the Food Law & Policy Clinic has tucked into “a range of terrific projects, including a truly important report on food expiration dates that got a lot of media attention.” The school co-sponsors an annual food law conference with UCLA. Students put on events through the Food Law Society. “There is a lot happening,” Gersen says, “and the challenge is really to keep up with all of it.”

Gersen believes that momentum is here to stay—and that food law, like environmental law and administrative law before it, will eventually go from course-catalog novelty to staple. “Today, what we eat is a function of the law we have,” he notes. “Every piece of food is the result of the law that structures its production, distribution, sale, and consumption.” He shared with Harvard Law Today his thoughts on that burgeoning area of law.

What drew you to food law?

One’s academic career is often about growing up, leaving home, and eventually returning, and that is how it was for me. I was a macrobiotic baby. My parents were living in Manhattan at the end of the 1960s and my dad was driving a cab—not particularly well, apparently. They left the city for Maine and quite literally went back to the land. They camped on their friend’s property, helped build a house from the ground up, and stayed. They had a mill to grind their own flour from wheat. My father kept bees. My mom had a giant loom in the basement.

My father eventually got a job in a book store and was a bookseller until he died last year. That historical moment into which I was born was very much a back-to-basics time: food, water, books. And that is sort of my career.

Did you help grind the flour or keep the bees?

It would make for a good story, but alas I was too young for either the bees or working the mill. I remember the equipment lurking in the basement, but it was one of those inter-generational transfers that takes place without us really understanding how. Ideas or values are just in the family ether and somehow they become part of us as kids.

Food law is at once hyper-technical and hyper-ordinary. What challenges or opportunities does the tension between those qualities provide?

A long time ago I wanted to write a book called “The Law of Everyday Life.” I never wrote it, but I think of food law like that. Food is as ordinary as ordinary gets. Food law is the law of the ordinary, or as Blackstone might have put it, the law of the common.

And yet, unlike the old common law, food law is a blend of very elaborately reticulated statutes, regulations, ordinances, common law, and even trade agreements. Just sitting down to read the federal standard of identity for ice cream is a slog.

What does it mean when the object of law is ordinary and part of everyone’s life every day and yet the law surrounding it is more or less impossible for regular people to read? In part, it means that the gap between the content of the law and our understanding of the law is even more important than usual.

Yes, it matters what our food safety or labeling laws do, but as important is what people believe our food safety or food labeling laws do. 

Are you optimistic about the possibility of positive change in American food law?

In my view, food law is a map. It is a way to identify pitfalls, avoid them, and move toward a better destination. The question is: Where are we going, and how quickly can we get there?

Jacob Gersen

I used to say that I was neither a pessimist nor an optimist. But that was wrong. I was a pessimist. If the question was, “Is the glass half full or half empty?” I would just say, “Wow, that is one ugly, leaky glass.”

But today, I really am a realist. Meaningful reform is more likely today than it was ten years ago and it was more likely ten years ago than it was ten years before. Why? Mainly because, as a political and social issue, food has arrived. We all think about it. Celebrities talk about it. Politicians work on it. Even law professors are starting to write about it! Labeling, GMOs, organics, humane treatment of animals, supplements, trade, obesity, school lunch, salt, sugar, fat: these ideas—these problems—are part of our everyday existence. They are part of our popular culture and identity.

But a moment of possibility does not mean reform is inevitable or even likely. Converting an opportunity to a reality requires work—work by people in many different fields and walks of life. At HLS, we are trying to do our share of that work. That means, in part, laying bare how the background legal rules affect the food that we produce and consume. And focusing on how changes in the law could render the food system easier or better. That is the goal of my current book project, “From Court to Table.” Knowledge only matters if people care. But people do care right now.

What are some of the challenges?

We are often confused about what we want from our food laws and or food system. What does it mean to want “transparency”—to have every potentially relevant feature of a food put on the package? That’s just not possible. Choices have to be made about what information must, or may, be disclosed. It’s a choice about what is—or, more often, what ought to be—important when deciding what to eat. And that will be fought over.

Food law is moving quickly because so many issues are being contested simultaneously by different actors in different parts of the country and the world. That is what makes it exciting and that is what makes it hard.

Reform is also a challenge because it is an ongoing process. Solutions to old problems create new problems. For example, for a while very few people cared whether beef was grass fed or eggs were from humanely treated chickens or vegetables were organic. Today, almost everybody does. But that means that definitions, certification, and graduations, gradations matter. It means that terms that lack a legal definition, like “natural” or “humane” or “GMO Free” need a legal definition.

Now all that sounds pretty overwhelming, but industry is moving. Major players in the food industry have responded to consumer and government prodding by shifting to antibiotics-free (or, at least, -less) animals. That process took a long time to start, but it is underway now. 

How did you get started on “From Court to Table”?

It is the book I always wanted to write, but it took me a long time to realize it. I worked for a few years on a project called “Bad Apples and Good Eggs.” Part of that work will be a chapter in “From Court to Table.” The Bad-Apples-Good-Eggs research question was about how organizations and institutions identify and sanction the really awful actors in their midst, and how those strategies affect the incentives and environment for the all the good actors in the organization. It is an issue for unions, schools, legislatures, firms, constitutions—it is a very general problem and in my view a wonderfully rich area for research.

It also applies to food safety and food quality. It isn’t that hard to make food very safe, but often times those techniques make food taste terrible. How we think about and understand and manage the taste-safety tradeoff is one of the major issues for food law and policy.

Schechter Poultry Corp. v. United States is an infamous case from 1935 that involved a challenge to the National Industrial Recovery Act, which more or less allowed industries to adopt a code of conduct that included a requirement known roughly as a “sick chicken rule”: buyers couldn’t pick individual chickens from the seller. They had to buy a whole crate of chickens, which often contained some healthy chickens and some sick chickens. Buyers hated this; sellers loved it. That is a Bad-Apples-Good-Eggs issue. The legal rule requires taking the bad apples to get the good eggs. In so doing, the law picks winners and losers.

Some might say food law today is a survey of the many bad apples the American people have been sold over the past decades. Do you see it that way?

I don’t view food law in that way. Most areas of the law are, in some sense, about responding to bad actors—criminal law, tort, even administrative and constitutional law. If everyone behaved as angels, well, we lawyers wouldn’t have jobs. In this sense, yes, food law is about evils, about bad apples.

But some of these evils are created by law rather than a lack of law. Upton Sinclair’s “The Jungle” has lots of great passages, but my favorite is a section in which Sinclair juxtaposes the fairly rigorous federal regulation of what meat could enter interstate commerce against the total lack of protection for local Chicagoans or, for example, American soldiers. For Sinclair, the comparison partly illustrated institutional corruption, but it also reflects the basic fact that which food is sold and consumed by which people in society is always a function of the legal rules we select—the crops we chose to subsidize, the industries we choose to stabilize, the ingredients we generally recognize as safe. We have made and will make different choices about these things at different moments in history; other countries make other choices.

I believe, as many of my colleagues do, that law is not just a response to bad actors. It is also constitutive: It makes us who we are; it says something about us. And food law—like other areas of the law—is facilitative as well. The law can make it easier or harder to eat better food. If food trucks must meet identical—as opposed to equivalent—food safety and preparation requirements, there will be no food trucks. If the meaning of a term like “all natural” or “grass-fed” isn’t specified by the government or a reliable third party, it will be harder to bring higher quality products to market because consumers will not be able to effectively differentiate.

In my view, food law is a map. It is a way to identify pitfalls, avoid them, and move toward a better destination. The question is: Where are we going, and how quickly can we get there?