Food Law & Policy: the Fertile Field's Origins and First Decade

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Food Law & Policy: the Fertile Field's Origins and First Decade Food Law & Policy: The Fertile Field's Origins and First Decade The Harvard community has made this article openly available. Please share how this access benefits you. Your story matters Citation Baylen J. Linnekin & Emily M. Broad Leib, Food Law & Policy: The Fertile Field's Origins and First Decade, 2014 Wis. L. Rev. 557 (2014). Citable link http://nrs.harvard.edu/urn-3:HUL.InstRepos:12795534 Terms of Use This article was downloaded from Harvard University’s DASH repository, and is made available under the terms and conditions applicable to Open Access Policy Articles, as set forth at http:// nrs.harvard.edu/urn-3:HUL.InstRepos:dash.current.terms-of- use#OAP FOOD LAW & POLICY: THE FERTILE FIELD’S ORIGINS AND FIRST DECADE BAYLEN J. LINNEKIN* EMILY M. BROAD LEIB** Legal knowledge, learning, and scholarship pertaining to the production and regulation of food historically centered around two distinct fields of law: Food & Drug Law and Agricultural Law. The former focuses on the regulation of food by the Food and Drug Administration under the Food, Drug, and Cosmetic Act, while the latter examines the impacts of law on the agricultural sector’s production of food and fiber. Neither field—alone or in tandem—focuses in whole or in part on many of the most pressing legal issues that currently impact our food system. Consequently, elements of these two fields converged roughly one decade ago to create a significant and distinct new field of legal study: “Food Law & Policy.” This field explores legal and policy issues well outside the scope of Food & Drug Law and of Agricultural Law to address important questions about food that had never been explored fully within the legal academy. Food Law & Policy embraces a broader study of laws and regulations at all levels of government that impact the food system—covering everything from local regulations pertaining to farmers’ markets or food trucks to federal policies pertaining to obesity or hunger. Food Law & Policy now enjoys a strong and growing presence throughout the legal academy. This Article introduces ten categories of original empirical data to document the field’s vitality—including figures on law school courses, legal scholarship, clinical legal programs, and student societies at U.S. law schools. It details the past and present of Food & Drug Law and Agricultural Law alongside that of Food Law & Policy. The Article demonstrates that Food Law & Policy has proven to be a timely and vibrant addition to the legal academy and suggests next steps in the ongoing development of the field. * Executive Director, Keep Food Legal Foundation; Adjunct Professor, George Mason University Law School and American University; Columnist, Reason magazine. B.A., American University; M.A., Northwestern University; J.D., Washington College of Law; LL.M. (agricultural and food law), University of Arkansas School of Law. ** Director, Harvard Law School Food Law and Policy Clinic; Deputy Director, Harvard Law School Center for Health Law and Policy Innovation. B.A., Columbia University; J.D., Harvard Law School. *** The authors wish to thank Professor Peter Barton Hutt, Professor Michael T. Roberts, and Professor Susan A. Schneider for graciously offering comments on drafts of this Article and would like to thank Tulane University Law School, New York University, Yale University, and the Southern Food & Beverage Museum for the opportunity to present early research related to this Article. The authors also thank Karissa Orris, Kathleen Eutsler, and Emma Kravet for their invaluable research assistance. **** To watch a video companion to this Article, please visit http://youtu.be/DSCiW9VgNdg. 558 WISCONSIN LAW REVIEW Introduction ........................................................................................... 558 I. A Brief History of FDA Law and Ag Law Pertaining to Food ... 562 A. A Brief History of FDA Law Pertaining to Food .................. 562 B. A Brief History of Agricultural Law ..................................... 579 II. The Birth of Food Law & Policy ............................................... 584 A. The Field’s Distinguishing Characteristics ............................ 584 B. Establishing the Field ............................................................ 590 III. The Present and Future of FL&P .............................................. 595 A. FL&P after One Decade ........................................................ 596 1. Academic Scholarship ..................................................... 596 2. Law School Courses ........................................................ 599 3. Degree Programs ............................................................. 602 4. Academic Centers ........................................................... 603 5. Casebooks and Other Texts ............................................. 603 6. Dedicated Legal Journals ................................................ 604 7. Clinical and Experiential Education ................................ 605 8. Student Societies ............................................................. 607 9. Professional Associations and Bar Groups ..................... 608 10. Academic Conferences.................................................. 609 B. Comparative Summary of Data on Key Criteria ................... 610 C. FL&P’s Next Five Years ....................................................... 611 Conclusion............................................................................................. 612 INTRODUCTION [F]ood law and policy is a subject that will never become obsolete. — Peter Barton Hutt1 [T]here may be no hotter topic in law schools right now than food law and policy. — Spotlight at Harvard Law School2 In 2011, the authors of this Article organized and took part in a CLE panel in New Orleans that focused on dramatic recent changes in the 1. Peter Barton Hutt, Food Law & Policy: An Essay, 1 J. FOOD L. & POL’Y 1, 11 (2005) [hereinafter Hutt, Food Law & Policy]. 2. For Clinical Students Interested in Food Law and Policy, a Cornucopia of Opportunities, HARV. L. TODAY (June 1, 2013) [hereinafter Cornucopia of Opportunities], http://today.law.harvard.edu/for-clinical-students-interested-in-food-law- and-policy-a-cornucopia-of-opportunities/. 2014:557 Food Law & Policy 559 teaching of food law in the legal academy.3 For generations, most law school courses on laws pertaining to food focused solely on The Food Law—the 1938 federal Food, Drug, and Cosmetic Act (FDCA)4—and the agency that enforces the FDCA, the Food and Drug Administration (FDA). These “FDA Law” courses, which began in the late 1940s,5 taught students about all manner of regulations pertaining to products subject to FDA jurisdiction—including not just food but drugs, cosmetics, medical devices, and much more. While FDA regulation of food was at the heart of FDA Law in its early years,6 drugs, cosmetics, and other topics—rather than food—came to dominate casebooks and class readings over time. As our research demonstrates, the predominance of non-food topics in FDA Law is still very much evident. During the first half of the 1900s, another legal field emerged that focused in part on food: Agricultural Law (Ag Law). But just as FDA Law courses have focused mostly on issues unrelated to food, Ag Law courses focused on many non-food issues like access to farm credit and farm estate planning. While Ag Law and FDA Law are enduring, distinct, and important silos of American legal education, neither one alone nor the two in tandem adequately covers many of the legal issues that currently impact our food system. Our CLE panel, Food Law 2.0: Teaching Food & Law beyond the Food, Drug & Cosmetic Act,7 was perhaps the first to reflect on the fact 3. See Emily Broad Leib, Margaret Sova McCabe, Michael T. Roberts & Baylen J. Linnekin, Eating and the Law CLE at the 2011 Words in Food Symposium and Annual Gala cosponsored by Southern Food & Beverage Museum and Tulane University School of Law: Food Law 2.0: Food & Law beyond the Food, Drug, and Cosmetic Act (Sept. 16, 2011). 4. Federal Food, Drug, and Cosmetic Act of 1938, 21 U.S.C. §§ 301, 393 (2012). 5. See infra Part I.A. 6. The Food and Drug Law Institute, which was instrumental in fostering FDA Law courses at various law schools around the country beginning in the late 1940s, was launched as the Food Law Institute. See infra Part I.A. Amendments to the FDCA in the 1960s, especially the Drug Amendments of 1962, shifted the focus of the FDA—and, consequently, FDA Law scholarship—in new directions unrelated to food. See, e.g., H. Thomas Austern, Sanctions in Silhouette: An Inquiry into the Enforcement of the Federal Food, Drug, & Cosmetic Act, 51 CALIF. L. REV. 38, 40–42 (1963) [hereinafter Austern, Sanctions in Silhouette] (citing the 1962 Drug Amendments as an example of how FDA-related laws have “fascinated . scholars”); Frances E. McKay, Lawyers of the FDA, 30 FOOD DRUG COSM. L.J. 621, 625 (1975) (noting three drug-related amendments to the FDCA). 1962 also marked the beginning of the FDA’s involvement in regulating “the packaging and labeling of a broad range of ‘consumer commodities.’” See Austern, Sanctions in Silhouette, supra, at 48. 7. In addition to the authors of this Article, the other panelists were Professor Margaret Sova McCabe of University of New Hampshire School of Law and Professor 560 WISCONSIN LAW REVIEW that Ag Law and FDA Law had not only fused in important ways but had also given birth to a unique and important new field. This next generation, we argued, was
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