Food Law, Codex Alimentarius, and Regulatory Leadership in Food Law.
Neal Fortin was the 2009 recipient of a Michigan State University Distinguished Faculty Award for his teaching in food safety. He is past President of the North Central Association of Food & Drug Officials. He served as a Commissioner for the Michigan Local Public Health Accreditation Program, the Advisory Council of the Michigan Community Health Leadership Institute, and the NSF Council of Public Health Consultants. He served on the Dietary Supplement Committee of the Food and Drug Law Institute. He has been a curriculum advisor to the International Food Protection Training Institute and the University of Catalonia. He is an emeritus member of the Association of Food and Drug Officials, the Food and Drug Law Institute, a professional member of the Institute of Food Technologists, and the State Bar of Michigan. As an attorney, Mr. Fortin concentrated in food law, food safety, food labeling, ingredient evaluation, and advertising. He was the primary drafter of the Michigan Food Law of 2000.
FOREWORD
WHAT IS FOOD LAW?
“What is food law?” may be a surprising question in a book titled Food Regulation. When I entered this field, the answer was a simple one. “Food law” meant the regulation of food. Food law had two main audiences: lawyers and the regulated food industries. At the universities, these audiences were reflected in courses at law schools and in food science departments. Food law was not a stand‐alone course at law schools but rather was a subset of food and drug law courses. There it dealt largely with the regulation of food by the Food and Drug Administration (FDA). In food science departments, the food law courses covered the law that the regulated food businesses needed to know, mostly the regulation by FDA, the U.S. Department of Agriculture (USDA), and related state agencies.
This traditional approach to food law remains important today, and this book largely follows that traditional meaning of food law as the law that directly regulates food or food regulatory law. Foremost, food regulatory law remains the main practice area for attorneys involved in food law and the main interest of professionals working in the food industry.
In recent years, the question “What is food law?” has become more complex in part due to the growing food movements. Writers like Michael Pollan, Eric Schlosser, Greg Critser, and Barbara Kingsolver have brought new interest and attention to food and food policy. At the same time, a broader perception of the interconnectedness of food, agriculture, and law has emerged. As Wendell Berry observed, “Eating is an agricultural act.” Agricultural law affects our food, and thus in this sense, large swatches of agricultural law are sometimes called, “food law.” In addition, “food law” is sometimes broadened in meaning to include all law related in some way to food, such as environmental rules for farms and agricultural commodity price supports.
Unfortunately, the omnibus usage is confusing not only because it usurps the longstanding, common meaning of “food law” but also because it is misleading semantically, “Food law” is law that applies directly to food. This omnibus usage also can result in shallow understanding. Judge Frank Easterbrook talked of, The Law of the Horse, where, “Lots of cases deal with sales of horses; others deal with people kicked by horses; still more deal with the licensing and racing of horses, or with the care veterinarians give to horses, or with prizes at horse shows. Any effort to collect these strands into a course on ‘The Law of the Horse’ is doomed to be shallow and to miss unifying principles.”1
An especially important concern of Judge Easterbrook was that “The Law of the Horse” resulted in “courses suited to dilettantes.” He noted, “We are at risk of multidisciplinary dilettantism, or, as one of my mentors called it, the cross‐sterilization of ideas… . the worst of both worlds.”2
Accomplishment at legal scholarship perhaps more than other disciplines can imbue hubris regarding competence in other fields. Lawyers are not epidemiologists. Lawyers are not evolutionary biologists. Lawyers are not sociologists. And they should not live action role play them.
With the purpose of giving you the best of a single world, this book offers you a deep understanding of food law in the traditional sense. The traditional topic is a rich one and a rewarding one. I have endeavored to make this text interesting enough that you will not be tempted by the sirens’ call of the “law of food” dilettantism.
Neal D. Fortin
Spring 2022
Notes
1 1 Frank H. Easterbrook, Cyberspace and the Law of the Horse, U.Chi. Legal F. 207 (1996).
2 2 Id.
PREFACE
“Knowledge is the food of the soul.”
Plato
INTRODUCTION
Food regulation is a complex but fascinating field. Study in this area is richly rewarding. From a human‐interest perspective, the food regulation touches the lives of nearly every American every day. Food issues often warrant headline news because this is a subject that commands the public’s attention, whether it be a news flash on a foodborne illness outbreak or information on diet that can help one live a longer and healthier life.
In addition, the regulation of food provides a snapshot of the political, social, and economic currents in our society. Thus, the study of food law provides a fascinating look at important policy decisions on vital aspects of people's everyday lives.
ABOUT THE TEXT
This text is designed to provide an accessible guide to United States food regulation—to be enlightening, without being light. While the text contains in‐depth discussion of the federal statutes, regulations, and the regulatory agencies, the material is not dense, and remains accessible to the average reader. Thus, Food Regulation is appropriate for a wide audience of students and professionals.
The best way to teach food law is to teach so that the subject is equally accessible to those coming from science or the law. Experience gleaned from teaching thirty semesters of food law indicates that nonlawyers, especially scientists, learn food law as well as lawyers and lawyers learn science as well as scientists. Accordingly, this book approaches food law as a single subject for both the lawyer and the food scientist.
A modified casebook method is used. The black letter law is livened with discussion of emerging issues and trends plus case studies that explore important issues. These materials explore not only regulation, but the science, policy, and practice. The reader is challenged to move beyond theory into application of the theory.
Much of the focus is on the Federal Food, Drug, and Cosmetic Act (FD&C Act) and the Food and Drug Administration (FDA). Nevertheless, an overview of food regulation by other agencies is covered, particularly at the United States Department of Agriculture (USDA) and the Federal Trade Commission (FTC). Moreover, readers are encouraged to see the thread running between the different laws, such as the similarity of meaning of terms across FDA, USDA, and FTC. For instance, in the study of USDA Food Safety Inspection Service (FSIS) regulation, some of the best court cases to review involve FDA. In addition, do not be surprised to find that some of the cases and references in this text
