Faculty Bibliography

In this paper, we examine the primary impact of two categories of food recovery policies on food donation and the secondary impact on food safety, food waste, and food insecurity in U.S. states. As one method of food recovery, food donation can reduce food waste while mitigating food insecurity, and it can be promoted in U.S. states through strong liability protection policies that provide legal protection to food donors and through tax incentivization policies that financially reward food donors via deductions and/or credits. To provide an initial evaluation of the effects of these policies, we coded each state’s food recovery policies in 2012 and 2018 and compared strong policies versus weak policies. Using data from multiple sources, we found that states with stronger liability protection policies had more food donations, and states that provide tax incentivization had more food waste. Although our analyses were correlational, rather than causal, and were reliant upon limited data, our results demonstrate that the current food recovery policy landscape in U.S. states does relate to important food waste outcomes. We discuss the implications of these findings for crafting more effective policies that encourage food recovery.

Poor nutrition and food insecurity are drivers of poor health, diet-related diseases, and health disparities in the U.S. State Medicaid Section 1115 demonstration waivers present opportunities to pilot food-based initiatives to address health outcomes and disparities. Several states are now leveraging 1115 demonstrations, but the scope and types of utilization remain undefined. To fill this gap, we conducted a systematic analysis of state Medicaid Section 1115 applications and approvals available on Medicaid.gov through July 1, 2023. We found that 19 approved and pending 1115 waivers address nutrition, with 11 submitted or approved since 2021. Fifteen states provide or propose to provide screening for food insecurity, referral to food security programs, and/or reporting on food security as an evaluation metric. Thirteen provide or propose to provide coverage of nutrition education services. Ten provide or propose to provide direct intervention with healthy food. The primary target populations of these demonstrations are individuals with chronic diet-sensitive conditions, mental health or substance use disorders, and/or who are pregnant or post-partum. Since 2021, state utilization of Medicaid 1115 demonstrations to address nutrition has accelerated in pace, scope, and population coverage. These findings and trends have major implications for addressing diet-related health and healthy equity in the U.S.

A poor-quality dietary pattern is a leading risk factor for chronic disease and death in the United States, and the costs of medical care continue to unsustainably rise. Despite this reality, nutrition training for physicians fails to adequately prepare for them to address the complex factors that influence diet-related disease. Expanding nutrition education for physicians-in-training is imperative to equip them for the growing demand of food is medicine services and is also supported by recent policy efforts in the United States as well as the governing bodies of graduate and undergraduate medical education. A multisector approach that links graduate medical education, clinical care delivery innovation, and health and food policy experts provides momentum to advance nutrition education as a core strategy for food is medicine expansion globally.

Perennial agriculture refers to agricultural systems in which perennial crops are a central strategy for producing farm products and ecosystem services. Perennial agriculture offers a range of ecosystem services, including improved soil health and biodiversity, high carbon sequestration rates, agroecosystems better adapted to climate change, improved water quality, and economically viable products. Shifting U.S. agriculture to be perennial-focused will require a range of support structures, including federal policy changes. Federal policymakers should support perennial agriculture by establishing safety nets like those available for annual crops, centering perennial practices in cost-sharing conservation programs, facilitating market opportunities, and investing in perennial agriculture research and development.

This chapter analyzes two examples in which policy contributes to food waste or creates barriers to food waste reduction and recovery: regulation of expiration date labels on food products, and food safety regulations. It examines several policies that have effectively driven food waste reduction efforts, including liability protections for food donation, tax incentives for food donors, and organic waste ban policies. Universal adoption of standard quality and safety terms could drastically reduce food waste. Policy can drive food waste when there is a lack of clarity about how regulatory requirements apply to food donation. Cost is a significant barrier to food donation for businesses along the supply chain. Increasing awareness and providing guidance for the Emerson Act can reduce barriers to donation stemming from the fear of liability. The chapter focuses on federal policy and provides examples of important state and local policies.

The Delta Directions Consortium is an interdisciplinary network of individuals, academic institutions, non-profit organizations, and foundations that work together to create positive social change in the multi-state Mississippi Delta Region. Goals include improving public health and promoting socioeconomic development. The Consortium is not an independent non-profit organization but, rather, an alliance of partners committed to collaborative and innovative problem-solving. This document provides a summary of pathways for partners in the Delta Directions Consortium, with emphasis on substantive topics and projects. It should be read as a living document to frame ideas and approaches that will be adapted in response to the needs and interests of core partners and diverse stakeholders.

The COVID-19 pandemic presents a number of new and difficult challenges for families, small business owners, and food producers across the country. This Issue Brief provides an overview of the resources available to small and mid-size farms facing such challenges in Mississippi. The first section outlines current benefit programs that these farms can utilize, including loans and unemployment benefits, as a result of the Coronavirus Aid, Relief, and Economic Security (CARES) Act and related federal actions. The second section provides policies that the State of Mississippi could enact to provide additional assistance to farms dealing with the crisis.

It has been approximately 10 years since the Government Accountability Office (GAO) published its report to Congress entitled, FDA Should Strengthen Its Oversight of Food Ingredients Determined to be Generally Recognized as Safe (GRAS), which strongly criticized FDA noting that its “oversight process does not help ensure the safety of all new GRAS determinations.” Congress requested GAO to undertake this audit as a result of concerns that GRAS substances added to foods did not require FDA approval. Since 2010, FDA has addressed only a few of the criticisms regarding its process for establishing a food substance as GRAS. However, several of the most important GAO recommendations remain unaddressed, and most critically, FDA has chosen to remain uninformed about food substances self-determined as GRAS by manufacturers. In its 2016 final rule Substances Generally Recognized as Safe, FDA did not take the opportunity to include a provision for creation of a master list of all GRAS chemicals used in food, nor did the FDA request the authority to do so from Congress. FDA cannot fulfill its statutory obligation for ensuring the chemical safety of the U.S. food supply if it does not know which substances, in which quantities, have been added to foods.

Food date labels such as "best before" and "sell by" are largely unregulated in the United States (U.S.), although new voluntary standards are coming into effect. A U.S. consumer survey was performed in April 2016 to inform policy and education activities related to date labels. The survey was administered online to a nationally representative sample of 1029 adults as part of a biweekly omnibus survey. Survey questions assessed the frequency of discarding food based on date labels by food type, interpretation of label language variations, and knowledge of whether date labels are currently regulated by the federal government. 84% of consumers discard food near the package date at least occasionally. Among date labels assessed, "best if used by" was most frequently perceived as communicating quality, and both "expires on" and "use by" as communicating safety. Over 1/3 of participants incorrectly thought that date labeling was federally regulated, and 26% more were unsure. Respondents ages 18-34 and those with misunderstanding about date labels reported discarding food based on label dates with significantly more frequency than others. Misunderstanding the meaning of food date labels is strongly associated with reports of more frequent food discards. This survey provides new and policy-relevant insights about how Americans use and perceive date labels, and about language used in labeling that may be most effective at communicating desired messages to consumers. As date labeling becomes standardized, this research underlines the need for a strong accompanying communications campaign, and highlights a particular need to reach those ages 18-34.

In 2014, the authors of this article published the first analysis of the development and history of the relatively new academic field of Food Law & Policy (“FL&P”). As we defined the field in that article, FL&P “is the study of the basis and impact of those laws and regulations that govern the food and beverages we grow, raise, produce, transport, buy, sell, distribute, share, cook, eat, and drink.” FL&P was born out of two pre-existing fields: Food & Drug Law and Agricultural Law, but it differs from its parent fields in that it explores legal and policy issues regulation of food by various agencies, at all levels of government, and across the range of agricultural, health, labor, economic, environmental, and other issues that intersect with food. This broader analysis of the food system3 had not been part of the legal academy prior to 2004. For our 2014 article, we developed ten criteria to measure the breadth and depth of a legal-academic field. According to our analysis, FL&P met seven of the ten criteria in 2014, and was firmly entrenched in terms of course offerings, clinical projects, and scholarly writing. Now, four years later, the field meets all ten of our criteria, and its continued growth has solidified its place in legal academia. The present article endeavors to assess and discuss this growth by reviewing the same ten criteria of a legal-academic field and tracking developments in the four years since we collected our initial data. As the article details, FL&P’s newfound strength within each of our ten criteria demonstrates the field has grown strong roots.

Presently, in the United States there is a fair amount of speculation regarding the future of food and agricultural laws and policies, given the recent election of a new president. Based on campaign rhetoric and comments since the election, the next four-to-eight years could signal a dramatic shift in a variety of food policy areas, including specific provisions of the Farm Bill, incentives for local food systems and organic farmers, and conservation on farms. Additionally, the new Administration has been exceedingly vocal about immigration reform, which will have significant impacts on the food and farming sectors. 

The concept of a national food strategy is not new. Other countries, facing similar food system challenges, have developed national food strategies to address these challenges in a holistic and integrated manner. These strategies represent an acknowledgement that, like the United States, many countries have an uncoordinated set of laws and policies that impact the food system. The creation of a national food strategy is both an effort to understand myriad laws and policies related to the food system, and a means by which to chart a path forward with a clear set of goals and priorities to guide future decision making. Although the United States does not have a national food strategy, it has developed national strategies in response to other issues of national concern, such as antibiotic-resistant bacteria or HIV/AIDS, where a coordinated response was needed.

While the incoming Administration's food and agricultural policies remain uncertain, the creation of a national strategy can address many existing food system regulatory challenges. Such a strategy could be created in one of two ways. First, the incoming Administration can commit to a national food strategy that may comprehensively address, prioritize, and set goals related to many of the issues important to American voters, including public health, the economy, immigration, the environment, and trade. Alternatively, stakeholders can begin the process--as they have done internationally--to develop their own strategy to present to the next Administration. This Article argues that either of these outcomes is superior to the status quo, yet concludes a national food strategy in the United States will ultimately require governmental engagement to achieve the benefits of long-term, coordinated food system law and policy making.

Each year, 40% of the United States food supply goes to waste. The growing, transporting, processing, and disposing of this uneaten food costs us $218 billion each year, and two thirds of this lost economic value is due to household food waste. An important driver of household food waste is consumer confusion over date labels. Date labels are those dates that are applied to foods and accompanied by prefixes such as “sell by,” “best before,” and “use by,” among others. A U.K. study found that 20% of consumer waste occurs because of date label confusion. Because date labels are not federally regulated and state-level regulations, where they exist, are inconsistent, consumers face a dizzying array of unstandardized labels on their food products. Many people throw away food once the date passes because they mistakenly think the date is an indicator of safety, but in fact for most foods the date is a manufacturer’s best guess as to how long the product will be at its peak quality. With only a few exceptions, the majority of food products remain wholesome and safe to eat long past their expiration dates. When consumers misinterpret indicators of quality and freshness for indicators of a food’s safety, this increases the amount of food that is unnecessarily discarded. A recent report found that standardizing date labeling is the most cost-effective solution for reducing food waste, and could help to divert 398,000 tons of the food that is wasted each year. We conducted a survey to gain further insights into consumer perceptions of date labels. This survey was fielded online to a demographically representative sample of 1,029 adults from April 7-10, 2016. These questions were part of a CARAVAN® omnibus survey that is conducted twice a week by ORC International. The findings presented here are one piece of a larger analysis of consumer perceptions of date labels.

Approximately 40 percent of food produced in the U.S. is wasted annually. At a time when millions of Americans are food insecure and thousands of farmers struggle to stay afloat, the negative consequences of wasting food extend far beyond the environmental impacts and loss of resources that could have been otherwise allocated. There are great opportunities for food waste reduction at the federal level, but much can be done by states and localities, whose involvement in finding solutions to food waste and food recovery is vital. In recent years, states and localities have taken many steps to reduce food waste and enhance food recovery by providing state tax incentives to food donors, allocating funding to support food recovery and diversion infrastructure, reevaluating how schools handle food waste, and passing laws that ban organic waste from landfills. This article is excerpted from a newly released toolkit from the Harvard Law School Food Law and Policy Clinic (FLPC) titled, “Keeping Food Out of the Landfill: Policy Ideas for States and Localities,” which provides comprehensive information on eight different policy areas that states and localities can consider as they ramp up efforts to reduce food waste. Organic waste (organics) bans and waste recycling laws are one of eight solutions described in the toolkit (see Sidebar for other seven) to keep food waste out of the landfill. In addition to describing existing state and municipal organics bans and waste recycling laws, FLPC discusses why these laws provide promising models for other states and localities, and how they could be implemented and strengthened to increase diversion of food waste from landfills.

This chapter discusses the field of food law, including both describing existing areas of law pertinent to food law and identifying burgeoning subjects for research within the field. Topics include the history of food safety law in the United States; the regulation of food conducted by the Food and Drug Administration, United States Department of Agriculture, and other federal agencies; increasing food regulation at the state and local level; food and the environment; old and new conceptions of public health, including the growing focus on obesity and diet-related disease; food access, food insecurity and food deserts; and alternative food systems such as local, organic, and sustainable foods.

Food Law & Policy is a flourishing legal field that is fast approaching the tenth anniversary of its inception. The field boasts several key milestones. The first Food Law & Policy course was taught in 2004. The first scholarly journal devoted to the field was created in 2005. And, the first Food Law & Policy legal clinic was established in 2010. Today, interest in the field among legal scholars and law students alike is so widespread that a 2013 news article reported “there may be no hotter topic in law schools right now than food law and policy.” Food Law & Policy incorporates elements from the study of traditional food and drug law as well as elements from the study of traditional agricultural law. It intersects with a new approach to agricultural law studies that involves a more holistic approach including sustainability and a food systems analysis. This article was prepared for the Yale University Food Systems Symposium. It was written by faculty members at several law schools that have made commitments to Food Law & Policy, and it describes their programs and their approach.

Consumers are increasingly interested in where and how the food they purchase is produced, as evidenced in part by rising demand for locally sourced products. While various entrepreneurs desire to capitalize upon this emergent demand, those entrepreneurs must overcome a range of legal obstacles in order to do so, including both general legal barriers and barriers specifically related to growing or selling food products. This article addresses how lawyers can utilize a model of cross-practice collaboration to comprehensively and effectively address the challenges faced by local food entrepreneurs, thus allowing these entrepreneurs to enter new markets and foster improved food system outcomes. This article draws upon experience gained through a cross-practice collaboration between two Harvard Law School clinics — the Food Law and Policy Clinic and the Community Enterprise Project of the Transactional Law Clinics — that aims to provide comprehensive assistance to food truck entrepreneurs in Boston.