Nicole Civita & Erin Shirl

December 15, 2015 | Food Waste, Policies + Regulations

Commentary: Law of Food Conservation

MNicole Civita & Erin Shirl

Nicole Civita and Erin Shirl
BioCycle December 2015

To begin our tale, picture two sandwiches. Perhaps pastrami on rye. Or maybe sprouts and avocado. Whatever your fancy, envision two perfect specimens resting comfortably in a deli case, awaiting the opportunity to nourish a person’s body. Time passes. The deli case opens. One sandwich is sold to a hungry customer and within minutes, only the waxed paper wrapper remains. It is quickly wadded and tossed into a trash bin. The satisfied diner’s digestive system works its everyday miracle, breaking the constituent parts of the sandwich into life-sustaining nutrients. Energy, in the form of calories, propels the customer through the day. Thus concludes the short but purposeful existence of the chosen sandwich.
The second sandwich is not so lucky. It remains uneaten as the lunch hour winds down. Hours pass. The restaurant closes. The deli case opens. A trash can scrapes near. The second sandwich, along with many of its bereft brethren, is thrown into the trash can. Moments later, the trash can’s contents merge messily with unwholesome refuse in an alleyway dumpster. Nearby, a woman and her two children walk quickly past. As the sandwich sits in the dark of the dumpster, the woman silently sums prices of the cheapest ingredients with which she can make a meal, hoping that there are still a few dollars on her EBT card. Hoping that her children won’t go to bed hungry.
This is the tragic reality of food waste in America. While 50 million Americans struggle with food insecurity, enough safe, nourishing food to provide millions of people with the energy their bodies need is wasted. If food waste were reduced by only 15 percent in the United States and that energy transferred to hungry Americans through food recovery, 25 million people could be fed. Double the amount recovered, and all Americans could satisfy their daily dietary needs.
Note use of the word “energy,” not “calories.” This is deliberate. It is not just food that is wasted when we sentence the second sandwich to the landfill; it is energy. When discussing the calorie count in food, people forget what calories actually are: a measure of energy. And Americans waste 141 trillion units of that energy annually. Make no mistake: food insecurity is as much an energy crisis as it is a humanitarian one. The law of conservation of energy states that the energy present in any system is a constant, neither created nor destroyed but only ever transformed or transferred. This can be seen with the second sandwich: its potential energy is forgotten, but not gone. As it sits in the landfill, it slowly decomposes and emits methane gas, a potent form of potential energy that becomes a powerful greenhouse gas when emitted.
To prevent this terrible result, we propose the Law of Food Conservation. Food — and the encapsulated energy it represents — should be transferred and transformed, but never destroyed. A body of policies and laws designed to execute this principle could move the nation considerably closer to a sustainable and food-just future for both the planet and its human inhabitants.
The tenets of food conservation are simple. First, whenever possible, wholesome food should be used to nourish people. To encourage this, laws and policies facilitating connections between excess edible food and consumers should be enacted. Second, energy from food that cannot be safely or appropriately consumed by humans should be recaptured as livestock feed, compost, or substrate for anaerobic digestion. Ultimately, food conservation, as a matter of law and policy, sees food and the energy it represents as something to be valued, safeguarded, and cycled to its highest and best uses.

Updating Laws And Food Policies

In little more than three decades, the planet will be pushed to support an unprecedented 9 billion humans. That will happen against a backdrop of profound losses of arable land and usable water in an increasingly volatile and extreme climate — conditions which make it ever more difficult to produce food. In the context of rising demand and more fragile supply, waste is not an option. To shift the cultural norms that promote and excuse food waste, a suite of thoughtful updates to existing laws and a body of innovative food policies founded on a conservation ethos is needed.
To see how such a shift might be implemented, consider the diversion and donation of excess food. Food recovery — and its dramatic foil, food waste — are now back on the national conversational menu. In 1997, then-Secretary of Agriculture Dan Glickman boldly declared that he wanted to make the words, “food recovery,” a household phrase.
It may have taken a little longer to catch on than the Secretary would have liked, but unquestionably, food waste and recovery are gaining ground, and not just among the food systems savvy. Major food retailers (Walmart, Whole Foods) and national restaurant chains (Panera Bread, Darden Restaurants, a conglomerate that owns multiple national chains like Olive Garden) talk about eliminating food waste in their businesses. Celebrity chefs like Dan Barber, Mario Batali, Jamie Oliver, and Roy Choi tackle the issue. Popular media comedians make wisecracks about it: Last Week Tonight’s John Oliver recently lamented, “At this rate, in forty years when you order pizza from Domino’s, they’ll just deliver it straight to the nearest dumpster […].” In response to this national outcry, in September 2015, the U.S. Department of Agriculture (USDA) and the U.S. Environmental Protection Agency (EPA) announced the U.S.’s first-ever national food waste reduction goal, aiming for a 50 percent drop in food waste by 2030.
Across the country, people are generating innovative solutions to combat the problem of food waste. But too often, their creative efforts are stymied by decades-old laws: A promising peach gleaning operation ended before it began because it could not sell a portion of its canned peaches to recoup operating costs without fear of liability. It took years of wrangling with the IRS before the Daily Table in Massachusetts was able to open its doors as a not-for-profit grocer selling wholesome food that would have otherwise gone to waste at a reduced, accessible price.
Existing legal protections and incentives for food donation are limited, flawed and outdated. The Bill Emerson Good Samaritan Food Donation Act (the “BEA”), passed by Congress in 1997, encourages food donation by drastically limiting liability for good faith donations of food. However, the BEA is an insufficient means to address the enormity of today’s food waste problem. To be covered by the BEA, food donations must pass through a nonprofit intermediary; they cannot be made directly to those in need. All food must be donated for free, or sold at nominal costs to an intermediary, eliminating the possibility for a smaller business or nonprofit organization to recover or collect operating costs without risking liability. And finally, while it is likely that the BEA preempts portions of state liability laws, a last-minute amendment to the BEA snuck in a requirement that donated food must also meet “all quality and labeling standards imposed by Federal, State, and local laws and regulations.” This means that the rules of the game can and often do change across city and county lines in ways that do not actually bear upon the safety of the donated food.
Beyond liability, U.S. tax policy is also ineffectual. Under the labyrinthine tax code, only businesses registered as a “c-corp” can currently claim the enhanced federal tax deductions for food donation.

Enacting Immediate Changes

Laws like these need to be updated, expanded and made more functional. Here, in brief, are a few examples of immediate changes that could effectuate food conservation through the law.
Issue Clear and Uniform Guidance: Better guidance — and preferably, a unified national policy — for both primary and secondary food recovery is essential for widespread adoption of better food management practices. Issuing uniform national standards for safe handling of excess wholesome food for human consumption will reduce hesitation about engaging in primary food recovery and make the BEA’s liability protection more meaningful. Similarly, reducing state-by-state variability regarding use of excess food as animal feed will help to keep and move food energy within the food system. Presently, all 50 states have different laws regulating this process. The inconsistencies create barriers for businesses operating in multiple states.
Leverage Local Authority and Investments: Better food waste strategies are needed at the state and local level. Waste reduction objectives should be written into local and state law and paired with future-focused investment in the infrastructure that makes compliance with mandatory waste reduction possible. There are domestic and international models: the residential and commercial food waste ban in Seattle; the organic waste ban in Massachusetts; the proposed complete, countrywide food waste ban in France. But bold ideas must be given a strategic shape along with financial and technical support for implementation. Banning food waste without offering businesses and individuals the means, tools, and time to comply will not be effective.
Overhaul Grading Standards: Food grading standards should be overhauled on a national level, especially for fresh fruits and vegetables. Foods that are slightly misshapen or uniquely colored should not lose so much of their market value that it is more economical for producers to let them rot in the fields than to harvest and sell them. The cosmetic standards upon which produce is harshly judged do not enhance safety or quality. The law should stop penalizing nature for its variety.
Modernize Food Safety Practices and Regulations: Modernized, uniform food safety practices based in sound science are necessary all across the country. This must be paired with easy-to-understand, implementable food handling guidance. When food is contaminated, the energy and resources associated with that food are lost without any recourse but the food’s destruction. All producers should be encouraged to seek food safety certification, even if they meet an exemption in the current law. Those who are exempt could be incentivized to be certified regardless, either through tax credits or other avenues.
Regulate Date Labeling at the Federal Level: Existing date labeling practices are long past their expiration date. Currently, food may be labeled in a variety of ways — “best if used by,” ”sell by,” “best before” — all of which mistakenly signal to consumers that food is not safe after those dates. In reality, these dates are signals to manufacturers about optimal product quality. Even though the labels were never meant to tell consumers when food is no longer safe to eat, most Americans interpret them that way. In today’s high tech world, manufacturers and retailers can surely find a way to communicate without confusing their customers. Lawmakers should work with manufacturers to develop a uniform national system that both allows production and freshness information to flow through the chain of distribution and provides useful safety and conservation-oriented information to consumers. The law provides ample tools to support food conservation-minded mandates and build the infrastructure required to realize those goals. Levying taxes on food waste, for example, could fund continuing development of the infrastructure investments needed to maximize efficiency and limit wastefulness. Of course, such a tax should only occur well after laying the groundwork to make source reduction and appropriate diversion an easy option for entities generating food waste, so no small business need fear an extra tax burden.

Conservation Ethos

Encouragingly, many of these critical reforms are included in the Food Recovery Act of 2015 (H.R. 4184), a comprehensive piece of legislation sponsored by Rep. Chellie Pingree that aims to reduce waste along the entire food chain (see BioCycle World, p. 6). Through changes like these, and many others, America can cultivate a food conservation ethos. Once we start down the path of truly valuing food and its energy, additional opportunities to optimize conservation will emerge. Farmers and food producers might build waste reduction into their business models. Chefs might create and mainstream “conservation cuisine.” Eventually, even the second food waste stream — human excreta — might be treated not as a revolting unmentionable but as the rich resource it is.
Just as food touches all areas of law, so does the legal theory of food conservation. To truly build a culture of conservation around food, laws and policies must prioritize, incentivize, and facilitate food conservation. To get this job done, food systems practitioners, grassroots advocates, and lawmakers with a wide range of expertise — from administrative law to zoning law and everything in between — need to amass their human energy in service of conserving food energy. Moreover, because both law and culture must work in tandem to effect change, this process should be accessible to all people who eat, which is to say, everyone. In the process, we will transform not just our food energy, but our entire food system.
Nicole Civita is the Director of the Food Recovery Project at the University of Arkansas School of Law and an Affiliated Professor with the University of Arkansas School of Law’s LL.M. Program in Agricultural & Food Law. She is also the Assistant Director of the Rian Fried Center for Sustainable Agriculture & Food Systems and Faculty in Sustainable Food Systems at Sterling College in Craftsbury, Vermont. Erin Shirl serves as the Assistant Director of the Indigenous Food & Agriculture Initiative at the University of Arkansas School of Law, where she teaches in the LL.M. Program in Agricultural & Food Law. She volunteers her time and experience to the school’s Food Recovery Project as a research attorney.

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