'Sacred Cows, Holy Wars: Exploring the Limits of Law in the Regulation of Raw Milk and Kosher Meat' by Kenneth Lasson
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In a free society law and religion seldom coincide comfortably, tending instead to reflect the inherent tension that often resides between the two. This is nowhere more apparent than in America, where the underlying principle upon which the first freedom enunciated by the Constitution's Bill of Rights is based ‒ the separation of church and state – is conceptually at odds with the pragmatic compromises that may be reached. But our adherence to the primacy of individual rights and civil liberties ‒ that any activity must be permitted if it is not imposed upon others without their consent, and if it does not adversely affect others – does not negate the fact that “we are a religious people whose institutions presuppose a Supreme Being.” This is our way of life.
While our national psyche pays homage to the nobility of the First Amendment's mandate for a tolerant society, however, we likewise seek to promote law and order by promulgating rules and regulations ‒ some of which cause more problems than they resolve. In the United States, various courts have ruled that kosher butchers may be excluded from collective bargaining units; that a Jewish court of arbitration panel may forbid trade with disapproved butchers; that retail sellers implicitly stipulate their compliance with rabbinic authorities; that a state law may incorporate a rabbinical ruling on kosher labeling; and that kosher symbols may be subject to trade infringement laws.
That all religions have their sacred cows and holy wars neither demeans nor ennobles them. But the law does not take sides. This article examines the Constitutional difficulties presented by some of them, especially when regulatory schemes bring into play both consumer protection of the public and recognition of individual rights. In the process it provides a broad historical background (describing early civil and criminal litigation in the area), catalogues the presently competing supervisory organizations, and looks at some of the more intriguing cases that have arisen in recent years.
What emerges is a tale of religion, politics, and filthy lucre that goes far beyond your father’s first food fight: not only a fascinating picture of contemporary life and mores, but a sobering example of the limitations of the law.
The Final report ('The transformative potential of the right to food') by the UN Special Rapporteur on the right to food meanwhile offers a summary of key recommendations made in past thematic reports -
A. Ensuring access to resources
1. Access to land
In a context in which commercial pressures on land are increasing, it is crucial that States strengthen the protection of land users and implement the Voluntary Guidelines on Responsible Governance of Tenure of Land and other Natural Resources.
In particular, States should:
(a) Ensure security of tenure, by adopting anti-eviction laws and improving the regulatory framework concerning expropriation;
(b) Conduct decentralized mapping of various users’ land rights and strengthen customary systems of tenure;
(c) Adopt tenancy laws to protect tenants from eviction and from excessive levels of rent;
(d) Respect the rights of special groups, such as indigenous peoples, fisherfolk, herders and pastoralists, for whom the protection of commons is vital;
(e) Prioritize development models that do not lead to evictions, disruptive shifts in land rights and increased land concentration, and ensure that all land investment projects are consistent with relevant obligations under international human rights law;
(f) Refrain from criminalizing the non-violent occupation of land by movements of landless people;
(g) Implement redistributive land reform where a high degree of land ownership concentration is combined with a significant level of rural poverty attributable to landlessness or to the cultivation of excessively small plots of land by smallholders, and supporting beneficiaries of land redistribution to ensure that they can make a productive use of their land; and
(h) Regulate land markets to prevent the impacts of speculation on land concentration and distress sales by indebted farmers.
2. Seeds
Guaranteeing food security in the future requires that we support crop genetic diversity, including agrobiodiversity. This is particularly important for small-scale farmers in developing countries, who still overwhelmingly rely on seeds which they save from their own crops and which they donate, exchange or sell.
In order to ensure that the development of the intellectual property rights regime and the implementation of seed policies at the national level are compatible with the right to food, States should:
(a) Make swift progress towards the implementation of farmers’ rights, as defined in article 9 of the International Treaty on Plant Genetic Resources for Food and Agriculture;
(b) Not allow patents on plants and establish research exemptions in legislation protecting plant breeders’ rights;
(c) Ensure that their seed regulations (seed certification schemes) do not lead to an exclusion of farmers’ varieties; and
(d) Support and scale up local seed exchange systems such as community seed banks and seed fairs, and community registers of peasant varieties.
Donors and international institutions should assist States in implementing the above recommendations, and, in particular:
(a) Support efforts by developing countries to establish a sui generis regime for the protection of intellectual property rights which suits their development needs and is based on human rights;
(b) Fund breeding projects on a large diversity of crops, including orphan crops, as well as on varieties for complex agroenvironments such as dry regions, and encourage participatory plant breeding;
(c) Channel an adequate proportion of funds towards research programmes and projects that aim at improving the whole agricultural system and not only the plant (agroforestry, better soil management techniques, composting, water management, good agronomic practices).
3. Fisheries
It is urgent that States move towards sustainable resource use while ensuring that the rights and livelihoods of small-scale fishers and coastal communities are respected and that the food security of all groups depending on fish is improved (A/67/268).
To reach this objective, States should:
(a) Respect the existing rights of artisanal and small-scale fishing communities;
(b) Refrain from taking measures, including large-scale development projects, that may adversely affect the livelihoods of inland and marine small scale fishers, their territories or access rights, unless their free, prior and informed consent is obtained;
(c) Strengthen access to fishery resources and improve the incomes of small-scale fishing communities by regulating the industrial fishing sector to protect the access rights of traditional fishing communities.
(d) Protect labour rights in the fishing industry;
(e) When engaging in fishing access agreements, agree to introduce provisions concerning conditions of work in the fishing industry and support efforts of coastal States to regulate the fishing practices of industrial vessels operating in exclusive economic zones.
(f) Implement their commitments under the Plan of Implementation of the World Summit on Sustainable Development, including to reduce their fishing capacity and to create marine protected areas;
(g) Implement the Agreement on Port State Measures to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing; and
(h) Reduce the proportion of fish used for fishmeal purposes.
B. Supporting local food systems
1. Reinvestment in agriculture
Reinvestment in agriculture and rural development should effectively contribute to the realization of the right to food.
In order to achieve this important goal, the international community should:
(a) Channel adequate support to sustainable farming approaches that benefit the most vulnerable groups and that are resilient to climate change;
(b) Prioritize the provision of public goods, such as storage facilities, extension services, means of communications, access to credit and insurance, and agricultural research;
(c) In countries facing important levels of rural poverty and in the absence of employment opportunities in other sectors, establish and promote farming systems that are sufficiently labour-intensive to contribute to employment creation; and
(d) Ensure that investment agreements contribute to reinforcing local livelihood options and to environmentally sustainable modes of agricultural production.
2. Agroecology
Moving towards sustainable modes of agricultural production is vital for future food security and an essential component of the right to food. Agroecology has enormous potential in that regard.
States should support the adoption of agroecological practices by:
(a) Building on the complementary strengths of seeds-and-breeds and agroecological methods, allocating resources to both, and exploring the synergies, such as linking fertilizer subsidies directly to agroecological investments on the farm (“subsidy to sustainability”);
(b) Supporting decentralized participatory research and the dissemination of knowledge by relying on existing farmers’ organisations and networks.
(c) Increase the budget for agroecological research at the field level, farm and community levels, and national and sub-national levels; and
(d) Assess projects on the basis of a comprehensive set of performance criteria (impacts on incomes, resource efficiency, impacts on hunger and malnutrition, empowerment of beneficiaries, etc.) in addition to classical agronomical measures.
3. Support small-holder farmers
The realization of the right to food for all will require proactively engaging in public policies aimed at expanding the choices of smallholders to sell their products at a decent price.
To achieve this, States should:
(a) Strengthen local and national markets and support continued diversification of channels of trading and distribution;
(b) Support the establishment of farmers’ cooperatives and other producer organizations;
(c) Establish or defend flexible and efficient producer marketing boards under government authority but with the strong participation of producers in their governance;
(d) Encourage preferential sourcing from small-scale farmers through fiscal incentives or by making access to public procurement schemes conditional on the bidders’ compliance with certain sourcing requirements.
4. Contract farming
To ensure that contract farming and other business models support the right to food (A/66/262), Governments should ensure that regulatory oversight keeps pace with the level of the expansion and the complexity of business models.
In particular, States should:
(a) Regulate key clauses of contracts, including those concerning price fixing, quality grading and the conditions under which inputs are provided, and the reservation of a portion of land for the production of food crops for self-consumption;
(b) Monitor labour conditions in contract farming;
(c) Link their support for contract farming to compliance with environmental conditions, such as reduced use of chemical fertilizers or the planting of trees, or to the adoption of a business plan that provides for a gradual shift to more sustainable types of farming; and
(d) Set up forums in which the fairness of food chains could be discussed among producers, processors, retailers and consumers to ensure that farmers are paid fair prices for the food they produce.
5. Agricultural workers
To guarantee that those working on farms can be guaranteed a living wage, adequate health and safe conditions of employment, States should:
(a) Improve the protection of agricultural workers by ratifying all ILO conventions relevant for the agrifood sector and ensuring that their legislation sets a minimum wage corresponding at least to a “living wage”; and
(b) Monitor compliance with labour legislation by devoting appropriate resources for an effective functioning of labour inspectorates in agriculture, and taking the requisite measures to reduce to the fullest extent possible the number of workers outside the formal economy to ensure that agricultural workers are progressively protected by the same social security schemes applicable to other industries.
C. Deploying national strategies
1. National strategies
States should build national strategies for the realization of the right to adequate food, which should include mapping of the food-insecure, adoption of relevant legislation and policies with a right-to-food framework, establishment of mechanisms to ensure accountability, and the establishment of mechanisms and processes which ensure real participation of rights-holders, particularly the most vulnerable, in designing and monitoring such legislation and policies.
For national strategies to be effective, they should be:
(a) Grounded in law, through the adoption of right to food/food and nutrition security framework laws and ideally through the inclusion of the right to food in national constitutions;
(b) Multisectoral and inclusive, ensuring the coordination amongst Government ministries and institutions and allowing for meaningful participation of civil society in their formulation and monitoring;
(c) Adequately funded.
(d) Monitored also by national courts and national human rights institutions as well as through social audits and community-based monitoring at the local level.
2. Human Rights Impact Assessments
To ensure consistency between domestic policies aimed at the full realization of the right to food and external policies in the areas of trade, investment, development and humanitarian aid, States should establish mechanisms that ensure that the right to food is fully taken into account in those policies. The Special Rapporteur has presented Guiding Principles on Human Rights Impact Assessments, based on a range of consultations with governmental and non-governmental actors, which provide guidance as to how to conduct such assessments, both ex-ante and ex-post .
3. Women’s rights
In order to strengthen the protection of the right to food of women, States should:
(a) Remove all discriminatory provisions in the law, combat discrimination that has its source in social and cultural norms, and use temporary special measures to accelerate the achievement of gender equality;
(b) Recognize the need to accommodate the specific time and mobility constraints on women as a result of the existing gender roles, while at the same time redistributing the gender roles by a transformative approach to employment and social protection;
(c) Mainstream a concern for gender in all laws, policies and programs, where appropriate, by developing incentives that reward public administrations which make progress in setting and reaching targets in this regard;
(d) Adopt multisector and multi-year strategies that move towards full equality for women, under the supervision of an independent body to monitor progress, relying on gender-disaggregated data in all areas relating to the achievement of food security.
4. Social protection
The provision of social protection can substantially contribute to the realization of the right to food.
States should:
(a) Guarantee the right to social security to all, without discrimination, through the establishment of standing social protection schemes;
(b) Ensure that, when targeted schemes are adopted, they are based on criteria that are fair, effective and transparent;
(c) Define benefits under national social protection systems as legal entitlements, so that individual beneficiaries are informed about their rights under social programs and have access to effective and independent grievance redressal mechanisms;
(d) Ensure that the design of social protection schemes is effectively transformative of existing gender roles; and
(e) Put in place a global reinsurance mechanism, creating an incentive for countries to set up robust social protection programmes for the benefit of their populations.
5. Nutrition
To reshape food systems for the promotion of sustainable diets and effectively combat the different faces of malnutrition, States should:
(a) Adopt statutory regulation on the marketing of food products, as the most effective way to reduce marketing of foods high in saturated fats, trans-fatty acids, sodium and sugar (HFSS foods) to children, and restrict marketing of these foods to other groups; (b) Impose taxes on soft drinks (sodas), and on HFSS foods, in order to subsidize access to fruits and vegetables and educational campaigns on healthy diets;
(c) Adopt a plan for the complete replacement of trans-fatty acids with polyunsaturated fats;
(d) Review the existing systems of agricultural subsidies, in order to take into account the public health impacts of current allocations, and use public procurement schemes for school-feeding programmes and for other public institutions to support the provision of locally sourced, nutritious foods; and
(e) Transpose into domestic legislation the International Code of Marketing of Breast-milk Substitutes and the WHO recommendations on the marketing of breast-milk substitutes and of foods and non-alcoholic beverages to children, and ensure their effective enforcement.
The private sector should:
(a) Comply fully with the International Code of Marketing of Breast-milk Substitutes, and comply with the WHO recommendations on the marketing of foods and non-alcoholic beverages to children, even where local enforcement is weak or non-existent;
(b) Abstain from imposing nutrition-based interventions where local ecosystems and resources are able to support sustainable diets, and systematically ensure that such interventions prioritize local solutions;
(c) Shift away from the supply of HFSS foods and towards healthier foods and phase out the use of trans-fatty acids in food processing.
D. Shaping an enabling international environment
1. Food price volatility
The international community should find ways to better manage the risks associated with international trade and ensure that least-developed and net food-importing developing countries are better protected from the volatility of international market prices.
To combat volatility on international markets, the international community should:
(a) Encourage the establishment of food reserves at the local, national or regional levels;
(b) Improve the management of grain stocks at the global level, including improved information about and coordination of global grain stocks to limit the attractiveness of speculation;
(c) Establish an emergency reserve that would allow the World Food Programme to meet humanitarian needs;
(d) Explore ways to combat unhealthy speculation on the futures markets of agricultural commodities through commodity index funds.
2. A new framework for trade and investment in agriculture
The realization of the right to food requires designing trade rules that support the transition toward more sustainable agricultural practices. The multilateral trade regime as well as regional and bilateral trade agreements must allow countries to develop and implement ambitious food security policies including public food reserves, temporary import restrictions, active marketing boards, and safety net insurance schemes, in support of the progressive realization of the right to food.
In this regard, States should:
(a) Limit excessive reliance on international trade and build capacity to produce the food needed to meet consumption needs, with an emphasis on small-scale farmers;
(b) Maintain the necessary flexibilities and instruments, such as supply management schemes, to insulate domestic markets from the volatility of prices on international markets; and
(c) Encourage national parliaments to hold regular hearings about the positions adopted by the government in trade negotiations, and ensure that their undertakings under the WTO framework are fully compatible with the right to food;
(d) Fully implement the Marrakesh Ministerial Decision on Measures concerning the possible negative effects of the reform programme on least developed and net food-importing developing countries (NFIDCs) and, in order for it to be fully effective, ensure that it include a mechanism to systematically monitor the impact of the Agreement on Agriculture reform process on NFIDCs.
3. Regulating agribusiness
States should take steps towards the establishment of a multilateral framework regulating the activities of commodity buyers, processors, and retailers in the global food supply chain, including the setting of standards by these actors and their buying policies. In particular, States should use competition law in order to combat excessive concentration in the agribusiness sector. This requires having in place competition regimes sensitive to excessive buyer power in the agrifood sector, and devising competition authorities with mechanisms that allow for affected suppliers to bring complaints without fear of reprisal by dominant buyers.
Private actors of the agribusiness sector should refrain from practices that constitute an undue exercise of buyer power, as identified by the States in which they operate, and should:
(a) Seek to conclude international framework agreements with global unions;
(b) Consider unilateral undertakings to monitor compliance with ILO standards in the supply chain, while supporting their suppliers in achieving compliance;
(c) Engage in chain-wide learning to assure that participation in the chain is profitable for all involved, including small-scale producers;
(d) Involve smallholders in the elaboration of and compliance with food safety, labour or environmental standards; and
(e) Promote fair trade through increased shelf space and information campaigns.
4. Agrofuels
The international community should reach a consensus on agrofuels, based not only on the need to avoid the negative impact of the development of agrofuels on the international price of staple food commodities, but also on the need to ensure that the production of agrofuels respects the full range of human rights and does not result in distorted development in producer countries.
Public incentives for the production of crop-based biofuels must be reduced and eventually removed, while only those advanced biofuels that do not compete with food production for land or other resources should be incentivised.
5. Food aid and development cooperation
International aid remains an important component of the right to food.
Donor States should:
(a) Maintain and increase levels of aid calculated as Official Development Assistance as a percentage of GDP;
(b) Provide food aid on the basis of an objective assessment of the identified needs in developing countries;
(c) Fully respect the principle of ownership in their development cooperation policies by aligning these policies with national strategies for the realization of the right to food;
(d) Promote the right to food as a priority for development cooperation.
