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Food Fight Archive

Ag Gag Laws and the Drone Exploit

July 8, 2014

by Jason Foscolo

Ariel Schwartz at fastcoexist.com postulates the fascinating idea that aerial drones can be used to circumvent so-called “ag gag” laws that restrict the use of photography and video to expose the abuse of livestock. The idea is so original it deserves detailed consideration. The article’s subtitle posits: “Some states have made it illegal for people to take photos or video of livestock operations. Drones to the rescue?”

Upon examining a few state ag gag laws, it appears that drones may be a viable way for activists to circumvent the laws, but not because the drones do not qualify as “people.” Drones instead make it possible to exploit ambiguities in trespass law.

CameraDroneSome states’ ag gag laws simply would not apply to the drone hypothetical. For example, Iowa’s law (Iowa Code § 717A.3A) states that “a person is guilty of agricultural production facility fraud” if the person obtains access to an agricultural operation by false pretenses, or makes a false statement on a job application in order to perform an act within the facility “not authorized by the owner.” Basically, this statute makes it illegal to lie on a resume in order to surreptitiously film inside of an ag business.

Similar to the Iowa law, Utah (Utah Code Annotated § 76-6-112) criminalizes entry by a person into an agricultural operation under false pretenses for the purpose of taking pictures as well. The Utah law, however, goes a bit further by also criminalizing the taking of pictures and video during a criminal trespass. Interestingly enough, “entry” is defined as “intrusion of the entire body” onto someone else’s land (Utah Code Annotated § 76-6-206). This “body” requirement makes this the one specific ag gag statute we found so far which could be circumvented by a flying Go Pro.

Kansas (K.S.A.§ 47 – 1827) prohibits a person from entering into an animal facility, not then open to the public, or remaining concealed after invitation, with intent to “take pictures by photograph, video camera or by any other means.” In essence, this is just a specialized form of trespass.

Idaho’s law (Section § 18-7042 of the Idaho Code) is both a beefed-up trespass statute and a “don’t lie on your resume” statute. It criminalizes a “person” who “is not employed by an agricultural production facility and enters an agricultural production facility by force, threat, misrepresentation or trespass,” obtains “employment with an agricultural production facility by force, threat, or misrepresentation with the intent to cause economic or other injury to the facility’s operations” or who enters “into an agricultural production facility that is not open to the public and, without the facility owner’s express consent or pursuant to judicial process or statutory authorization, makes audio or video recordings of the conduct of an agricultural production facility’s operations.” 

Montana criminalizes the unauthorized acquisition or exercise of control over a production facility. The act also prohibits entry into an animal facility to take pictures by photograph, video camera, or other means with the intent to commit criminal defamation (Montana Code Annotated § 81-30-103).  Montana makes the most deliberate effort to broaden the definition of “person” to include “a state agency, corporation, association, nonprofit corporation, joint-stock company, firm, trust, partnership; two or more persons having a joint or common interest; or some other legal entity” (Montana Code Annotated § 81-30-102).

For those ag gag laws predicated on entry into an agricultural facility, a hypothetical drone case is not likely to turn on the personhood of the drone. There may be some elasticity in the definition of personhood that is not contemplated by the statute but nevertheless would allow a criminal prosecution. Any ag gag prosecutor could argue that a person mediates their presence through the drone, which is under his or her control. The flying machine would be considered an extension of the operator for the purposes of establishing presence. Typically, a person can be liable for a trespass if he or she causes a thing to enter onto someone else’s property.

These cases are more likely to turn on the issue of whether a trespass or entry has occurred. A drone does not “enter” a facility in the way that all of these ag gag statutes contemplate, and whether or not a trespass can be committed by a remote controlled flying camera is ambiguous. The Volokh Conspiracy had a great post about drones and trespass from a few years back, which explains that land owners have the right to “exclusive control of the immediate reaches of the enveloping atmosphere,” which includes “at least as much of the space above the ground as he can occupy or use in connection with the land.” Given the novelty of drone technology, there is yet no clear indication of how low is too low for drone flight to be considered a trespass. An ambiguity this big, especially in the realm of criminal law, is ripe for exploit by animal welfare organizations.

Media Round-up: The Limits of Food Progressivism

March 3, 2014

by Jason Foscolo

Public health advocates have sought to change the food system along a handful of major axes. Right up there with calls for greater clarity in nutrition labeling are initiatives to solve the “food desert” problem and to change the nutrition content of the national school lunch program.

The media is just now beginning to percolate with indications that some of these efforts do not immediately have their intended effect. Today the Kansas City Star reports that some schools are seeing an increase in their food waste as children reject the healthier foods they are being given. Earlier in February, the L.A. Times reported on this study which said that low-income neighborhoods did not in fact pounce on the opportunity to eat healthier after more nutritious shopping options were introduced into their neighborhoods.

The benevolent intent of food policy leaders seems to be too easily frustrated by consumers and school children. Granted these stories are based on preliminary reporting, but they leave me wondering about Act II of the drama (or comedy, as you may prefer). Human volition continues to obstruct the aims of those who encourage people to eat healthier, and this undeniable fact leaves me wondering what public health advocates will call for on the next round of change.

Maine’s Food Sovereignty Law

July 23, 2013

by Gabriella Agostinelli

Whether a farmer has one cow or a thousand cows, he is often beholden to the same costly federal and state safety regulations concerning his farm and food production. Consequently, small farmers often feel they are put at a grave financial disadvantage. The passage of the Food Safety Modernization Act in 2011, with its increased food safety regulations, only heightened many farmers’ fear of facing additional costs.

"I Lead"

“I Lead”

In 2011, several small towns in Maine began passing local food ordinances, also known as food sovereignty ordinances, in response to this fear. Essentially, the ordinances attempt to circumvent state and federal food/farm safety regulations to cut costs for small-scale farmers. These ordinances are not specific to Maine, either. Similar ordinances have been passed by municipalities in Vermont, Massachusetts, and California. The Maine ordinance states:

Producers or processors of local foods . . . are exempt from licensure and inspection provided that the transaction is only between the producer or processor and a patron when the food is sold for home consumption. This includes any producer or processor who sells his or her products at farmers’ markets or roadside stands . . . through farm-based sales directly to a patron; or delivers his or her products directly to patrons.

Most significantly, they also boldly state that “[i]t shall be unlawful for any law or regulation adopted by the state or federal government to interfere with the rights recognized by this Ordinance.”

Supporters of these ordinances see no need for burdensome and expensive regulatory safeguards where each person is able to “educate themselves and make informed decisions” about their food consumption. As a result, they view most federal and state regulations as impediments to local food production, and “a usurpation” of citizens’ right to make their own food choices. The right to a local food system, they say, gives way to an inherent right to self-government.

Despite the fact that Maine’s ordinances have not yet been struck down as unconstitutional, a court recently found farmer Dan Brown in violation of state law when he sold raw milk without a license, even though he lives in a town (Blue Hill) with a local food ordinance.

While one can appreciate the rationale behind these ordinances, a flat out rejection of federal and state oversight raises obvious constitutional concerns. The local-federal preemption issue may be less severe where a locality can prove their sales are purely intrastate in nature. The local-state preemption issue, however, presents a greater point of contention.  Usually, preemption concerns arise when a state or municipality passes a law or ordinance that imposes additional or stricter standards. However, a larger concern arises where a locality attempts to completely exempt itself from federal/state laws and regulations, as with local food ordinances.

Local preemption of state law is only supportable where a state follows home rule, that is, grants cities, municipalities, and/or counties the ability to pass laws to govern themselves as they see fit. While Maine’s constitution supports home-rule, it also suggests that this municipal power shall not be granted where an ordinance “would frustrate the purpose of any state law.” This determination is usually made on a case-by-case basis, as a court must consider if a particular act (e.g. allowing farmers to sell raw milk without a license) specifically frustrates the purpose of related state law.

Ultimately, the Brown court could not find for the farmer after determining that selling raw milk without a license “prevents the efficient accomplishment of a defined state purpose,” thus frustrating the purpose of state law. See State v. Brown, ELLSC-CV-11-70 at 9 (Me. Super. Ct., Han. Cty,. April. 27, 2013) (citing E. Perry Iron  & Metal Co., Inc. v. City of Portland, 2008 Me 10, 10).

Our guess is that Brown is just the first of many farmers to be similarly challenged in the future. The ordinances still stand, but it may just be a matter of time.

Bits and Pieces

November 20, 2012

A few things to pass along in this truncated work week:

1. Baylen Linnekin’s latest piece on the lapsed Fat Tax in Denmark over at Reason.com is a must read. He not only relishes the demise of the tax, he also takes a well-deserved shot at the gushing Mark Bittman in the meantime:

“Well lookee here: the inevitable move toward taxing unhealthful foods to raise income and discourage damaging diets has begun,” Bittman announced last year. He also predicted a wave of similar taxes would sweep across Europe and suggested the United States “needs these taxes more than any country in the world”—predicting “a serious celebration” if and when such laws come stateside.

Bittman hasn’t written about the law since it took effect around this time last year, hasn’t discussed its repeal, and didn’t reply to my email asking for comment.

I concur with Baylen’s enthusiasm over the demise of the fat tax, and I also concur that these are a dumb idea wherever they are implemented. I’ve always thought that our food culture isn’t necessarily over regulated or under-regulated. Most of the time, it’s just misregulate. The chemical process for creating high-fructose corn syrup was discovered in the 1950’s, but did not become an economical process for producing syrup until Earl Butz and the “fence-row to fence-row” policies of crop subsidies and subsidized insurance dropped the price of corn, the raw material for the process. So get this – taxes support the surfeit of production that makes it economical to produce and then over-consume sugar. The fad trend now is for local governments to try counterbalance that macroeconomic process through prohibitive consumption taxes. Why hit the citizen twice? Doesn’t make much sense to me, and I am glad to see such measures go down to defeat either in Denmark or in the last domestic election. Fat tax cheerleaders should recognize that governments and regulations can sometimes be the source of the problem. This kind of intellectual honesty will force us to correct our course at the point of production and not the point of consumption.

2. Now that the election is over, there are some who feel that the regulations to implement the Food Safety Modernization Act are about to drop any day now. I’m skeptical of the imminence of the date, but I am nonetheless preparing my clients for it as if it were a pressing reality. Processors, producers, and distributors should read the act through to see how it will affect their interests. I am sure it will precipitate some changes in the way they conduct business.

By the way some of the provisions of the Act like mandatory recall went into effect immediately after it was signed into law. Economic losses due to recall are almost always not covered by a standard insurance policy, so the Act might already have exposed businesses to risks that they are not aware of.

3. My good friend Ed Cox at Drake University’s Agricultural Law Center put together a fantastic guide on Sustainable Farm Leasing that you might want to peruse in between turkey fueled bouts of narcolepsy. Tons of good stuff in there that can change the way you think about a simple legal document like a lease. I promised Ed I would secretly plagiarize him but my conscience got the best of me and I’m sharing it instead.

4. A classmate of mine from the LLM Program in Agriculture and Food Law at the University of Arkansas, Cassie Peters, recently published a killer guide to local food systems which she prepared for the West Virginia Food and Farm Coalition. Anyone who has a serious interest in the look and feel of a dirt-up food system needs to read this.

Enjoy the days ahead. Try to buy a local bird.

NYC “Soda Ban” Public Hearing

July 25, 2012

Yesterday, I made the trip down to the public hearing on sugar-sweetened beverages held at the New York City Department of Health and Mental Hygiene. I’d come to see Baylen Linnekin of Keep Food Legal kick-some, but the remainder of the show was surprisingly engaging and lively.

The flacks from the food and beverage industry, disappointingly, made a hash of the inherently strong argument for personal choice. They did, however, give some compelling data on the impact the portion limitation would have on their 8,000+ constituency of industry employees.

Advocating for the portion size limitation were a Pleiades Cluster of public health eggheads from Harvard, Yale, AMA, etc… Take your pick. Despite their credentials, only one among them was shrewd enough to provide data for the causative relationship between soda consumption and obesity, by citing the (high) proportion of calories in the typical diet of an obese person which derive from sugar-sweetened beverages. The rest just relied on correlative data only – soda is bad, we drink a lot of it, must be why everyone is obese.

Almost every other advocate of the portion size limitation rule admitted that the City could effectively fight the obesity epidemic in a variety of other ways. Some proffered that  the city could also build better parks and playgrounds, subsidize gym memberships, or teach nutrition in public schools.

So why limit personal choice when so many other options abound? Parks and education programs cost money. An executive fiat on beverage size costs the City nothing. I walk away with the impression that the portion limitation shifts the economic burden for  solving a public health crisis away from the City and onto the restaurant and bottling industry. I’m not too crazy about that idea, even if it does work.

On my way home, with my burrito I ordered the 32 oz. Coke. For spite.

“Your Honor, My Client is a Pig.” Vol. 3

March 28, 2012

I can’t believe it took me three days to change the title of this series to “Your Honor, My Client is a Pig.” I’m slipping.

Yesterday we talked about how the Michigan Department of Natural Resources Invasive Species Order will disproportionately affect the state’s small-scale farmers. Today we’ll talk a bit about how the Mangalitsa breeders responded to the Order and the lesson their example has for other growers.

Last spring, Mosefund Farm and I formed the American Mangalitsa Breeders Association. The typical purpose of breeders associations is to organize the genetic information farmers needs to direct the reproductive development of their animals. An association performs this function by recording the economically valuable traits of its animals in a great big herd book. They then use this database to selectively breed-up the beneficial traits into the population. Ancient technology.

Mosefund wanted to do something more ambitious. In addition to the genetic management role, we designed the Association to be a vehicle to help members jointly manage the reputation of the breed.  We also wanted it to be able to intercede on their behalf whenever regulation or market forces jeopardized their interests. When one of our members alerted us to the DNR’s Order, we were lucky enough to have the perfect  organization in place to respond. You can read our letter to the Michigan DNR right here.

You can also read the courteous but confusing response we received from Mr. Randy Stokes, Commissioner. Here’s the particular part that left me scratching my head:

“It is the DNR’s understanding that purebred mangalitsa swine do not exhibit characteristics listed in the declaratory ruling, other than potentially striped piglets. The Invasive Species Order would not prohibit purebred Mangalitsa swine based solely on this characteristic”

The response further blurs the rational relationship between the goal of the order and the way the Department seeks to implement it. The contradiction in the first sentence of the block quote is evidence of selective enforcement of the Order. Mr. Stokes admits Mangalitsas exhibit certain “feral” traits, but immediately explains that this single attribute will not suffice to trigger the prohibition. As we pointed out yesterday, the Declaratory Ruling did not pick a specific number of traits which would trigger the prohibition. According to Mr. Stokes, the presence of the single trait, that of piglet stripes, would not condemn a hog to destruction. This certainly seems like an arbitrary and capricious application of the Department’s enforcement power.

Legal criticism aside, however, we did achieve a favorable result for our delicious pigs without expensive courtroom pyrotechnics. Mr. Stokes has now publicly stated he does not intend the order to apply to the purebred Mangalitsas raised by our Michigan members. I would prefer to see the language of the Order amended to clarify the discrepancies I cited. His words, no matter how gracious, holds far less regulatory weight than a properly modified order. If the members agree to press on this issue, we certainly can.

I would also like to see other heritage breeders get the predictable regulatory environment they need in order to do business.

Mangalitsa growers had the forethought to create an organization that could represent them in a circumstance like this. For the farmers without an underlying organization to enforce their rights, the practical and financial dilemma for them as a class still remains. They must expend time and resources as individuals to reassert their property rights. The series this week is really about how they can fight these fights effectively and economically.

Farmers have a whole array of legal resources at their disposal they can use to scale-up their power. There is of course the cooperative, which we have posted about numerous times. The Lanham Act, where our modern trademark law comes from, has a class of trademarks that farmers can use to collectively market agricultural goods. Neither of these examples, just two among many, are revolutionary legal concepts. They are proven organizational tools that have been used for ages by Big Food to protect their interests, conduct their business, and maintain their market dominance. Small-scale farmers have equal access to them all, but they just aren’t using them yet.

In the case of the Mangalitsa growers, we used a typical non-profit structure to achieve the effective resolution in Michigan. The resources for the response were equitably borne by our entire membership. The Association multiplied the force of our complaint. None of this was exotic. None of it was expensive. We were just prepared for this kind of thing, and that made it an easy day.

The nail that stands up gets hammered down. If you grow or process food, it is time to face the realization that the laws of the industry were not written with your diminished scale in mind. Big Food treats regulatory compliance as a cost of doing business and it all factors into the retail price of their products. If small scale producers are going to operate within the food system, they will need to adopt the same view. To succeed in our regulatory environment, small-scale producers need to amplify. A cheap and highly effective way to pump it up is to aggregate, organize, and cooperate. And never turn down an opportunity to stick it to the man.

Why You Need a Lawyer to Grow Food, Vol. 2

March 27, 2012

In this part of the series, we take a close look at the evolution of the Michigan regulation which now threatens the production of heritage-breed hogs within the state.

Feral hogs have become a serious problem in some parts of the country. They destroy so many crops in Texas that it is now legal for citizens to shoot them on sight. With high-capacity magazines. From helicopters. Hey, at this point it’s not about the sportsmanship. It is about eradicating a legitimately destructive blight that humans have irresponsibly loosed upon the landscape.

To avert the helicopter gunship scenario, Michigan passed the Invasive Species Order in October of 2011 to prevent the proliferation of wild hogs within its borders. The Order prohibits the possession of Sus scrofa, or in other words “wild boar, wild hog, wild swine, feral pig, feral hog, feral swine, Old world swine, razorback, eurasian wild boar, and Russian wild boar”.

The members of the Michigan Animal Farmers Association asked the Department to clarify the Order by requesting to know precisely how the Department would identify prohibited animals. In its response the DNR made it clear they would make a determination of ferality based on the phenotypic characteristics of each animal. This is precisely where the rule metastasized to adversely affect the interests of the state’s heritage breed farmers. You can read the Order as well as the subsequent Declaratory Ruling in its entirety here, but let me sum it up in pertinent part:

“In its enforcement of the [Invasive Species Order], as amended, the Michigan Department of Natural Resources will use phenotype to identify Sus scrofa and distinguish it from other species.”

The order then went on to list 9 characteristics the Department would use to identify prohibited swine. These characteristics include;

  • lightened bristle-tip coloration;
  • dark point coloration on the extremities;
  • coat colorations such as solid black, solid red/brown, black and white spotted, black and red/brown spotted;
  • light colored underfur;
  • a striped juvenile coat pattern;
  • unspecified morphology skeletal appearance;
  • straight tails;
  • erect ear structure;
  • and finally, the catchall – “other characteristics that are identified by the scientific community” that are indicators of ferality.

The jitters coming from the heritage breeders within the state are therefore entirely justifiable. Every heritage breed that is commercially raised exhibits one or more of these “feral” traits. Several of the prohibited characteristics are present in the purebred Mangalitsa for example, porcine royalty once served at the feasts of Habsburg princes.

How would this regulation apply to the Ossabaw Island hog for example? It exhibits plenty of phenotypically “feral” characteristics even though it is produced commercially and is infamously coveted. The Ossabaw was intentionally dumped by Spanish settlers on Ossabaw Island off of the coast of Georgia in the 16th century, where it reproduced for centuries without human intervention. It became re-domesticated only very recently by some educational institutions and a few enterprising farmers. It is now a commercially viable breed once again, much sought after by the Big Chefs.

The plain meaning of the Order and its subsequent clarification would therefore allow the Department to morph a hog of the noblest, pedigreed heritage into a nuisance. Such animals could be destroyed by government decree based on the presence of an indefinite number of physical characteristics.

It thus appears the Department composed the list of feral characteristics with complete disregard for the qualities of heritage breeds of livestock, phenotypic or otherwise. The Order prohibits the precise qualities that make them such important parts of a diversifying food system.

If one were a cynic, it might appear that the Order and its progeny display a deliberate institutional bias favoring the boring, ubiquitous landrace hogs which compose our Smithfield ham and our Oscar Mayer bacon. At the very least, it demonstrates a bureaucratic arrogance towards Michigan’s innovative farmers that are using rare genetics to make a buck, distinguish themselves in the marketplace, and do something sustainable. Either way, small-scale farmers must now, as individuals, extricate themselves from the regulatory morass at a cost that must be born across their relatively microscopic herd sizes. Regulators who draft rulings like the DNR Order should either abandon their overt  favoritism or consider the impact of their rules with the small-scale farmer in mind.

Mangalitsa growers are exceptionally well organized for a livestock breeding community, so they may not share the fate of other heritage breeds under the Order. Tomorrow, I’ll post about their unique response to the DNR Order and the versatility of their collective organization which helps them to share these types of expenses.

Why You Need a Lawyer to Make Food, Vol. 1

March 26, 2012

All this week I will be posting in-depth about the Michigan Department of Natural Resources (DNR) ban on certain hog species within the state. In case you have missed a beat or two, Michigan is trying to keep its wild hog population under control by issuing a series of broadly-worded restrictions on commercial producers of swine that exhibit an arbitrary set of visual characteristics. This being America, the Land of Big Ag, the regulations disproportionately burden small-scale and independent farmers, namely those looking to inject diversity in the market by producing and selling heritage breeds.  As the latest attempt by a regulatory agency to restrict an alternative agricultural practice, this is pretty newsworthy stuff if you are into food freedom, small-scale agriculture, or good food.

We begin this week-long saga with a picture of this little troublemaker here:

This corpulent fellow is a Mangalitsa, a lard type hog imported from Europe and commercially grown by a handful of dedicated and conscientious domestic breeders. He’s different. He’s sustainably raised. He’s delicious, and he must not be subjected to clumsy regulation, for he can fight back.

Mosefund Farm in Branchville, New Jersesy is now the largest breeder of Mangalitsa in the United States. They are also the ambitious visionaries behind the formation of the American Mangalitsa Breeders Association (AMBA), the non-profit corporation which represents the farmers that grow Mangalitsa. Mosefund and I created the Association to help its members collectively market the breed and collectively bear regulatory burdens, both so that Mangalitsa breeders could better compete with other breeds as well as with commodity pork. Believe it or not, this is an unfortunate truth about farming in America. Small-scale farmers actually need organizational and logistical support to share compliance costs. Growing heritage breeds is particularly challenging. For example, even the smallest farms must comply with lengthy federal regulation of breed-specific marketing claims made on product labels. Dealing with regulations like this, which were written for gigantic industrial farms, necessitates cost sharing. We envisioned  the Association as the perfect vehicle for economically providing compliance advice or contesting legislation that can affect the breed.

Fortunately for the breeders of Mangalitsa, they had this organization in place when the DNR passed its rules. The first official act of the Association was to submit a letter of complaint to the Michigan DNR concerning the affect that its ham-handed regulation (see what I did there?) would have on Mangalitsa growers within the state.

Subsequent posts throughout the week will discuss the Michigan regulations themselves, as well as the  moves made by the Association to protect the interests of its membership. Stay tuned…

Food Policy and Fat Tax

February 8, 2012

Via NPR, Massachusetts is the latest locality to consider a sugar tax in order to curb the high levels of consumption which are a leading cause of obesity. Once again, we have a local government taxing consumers to not eat or drink a product that is already artificially cheap because it has been subsidized into overproduction by the USDA.

There is a common theme which undergirds these fat and sugar taxes, the Happy Meal bans, and salt limits. I am beginning to view them all as local repudiation of the excesses caused by the federal cheap food policy. Commodity crops are the raw ingredients for the feed that grows the salty chicken nuggets, the fatty-fatty beef in the fast food burger, and the HFCS that goes into everything else. These are precisely the products targeted by state and local regulators because their consumption has been so often linked to obesity.

Local governments like New York San Francisco and Massachusetts have absolutely no control over the production spigot. The only thing they can do is swallow a spider to catch the fly, as the rhyme goes. Regulating local consumption within their jurisdiction is their only recourse against the torrent of cheap calories produced by federal subsidies.

This leaves public health advocates with the difficult task of convincing people not to eat the food we already paid farmers to overproduce. “Taxes!” is a facile argument and it is a far too local and ad hoc method of correcting a serious flaw in the food system. They should aim higher.

Bad Food Law: San Francisco and the McDonald’s Happy Meal Toy Ban

December 5, 2011

In this case, I mean “bad” as in “poorly written”.

The big news last week was the McDonald’s Happy Meal Toy Ban that went into effect in San Francisco. The law forbids restaurants from providing toys to children in connection with a purchase unless certain minimum nutrition standards are met. McDonald’s seeks to avoid liability under the law by selling its Happy Meal toys for a token amount and donating the proceeds to its local Ronald McDonald House.

Whilst guest-blogging at Reason, my good friend Baylen had some fun with this whole drama by likening the Ordinance and McDonalds’ response to the chase scene in “Bullit”. I suggested that if he wanted to pile on, the Bullit scene could have been more applicable if it had been scored with “Yakety Sax“. Because Benny Hill music makes everything funnier, you see.

Michele Simon has a lengthy and thoughtful public policy argument in favor of the toy ban over at Grist. She is tough to argue with in principle – it is no surprise that we are in fact drowning in salt and excess calories. In practice, however, coercively compelling individual food choices through the law is not an easy way to correct the problems she cites.

McDonald’s is not evading the law so much as they are being cute at the expense of lousy drafting. Read the whole Ordinance here, but pay close attention to Section 471.4:  “A restaurant may not provide and incentive item linked to the purchase of a single food item…(italics mine)”. “Provide” is an awfully ambiguous word on which to pivot the ambitions of the Healthy Foods Incentives Ordinance. “Provide”  may include McDonald’s tactic of selling a toy in an independent transaction for a token amount with proceeds going to charity, but we’d be guessing because the drafting of the law is not that tight. 471.1 (18) suggests that the ordinance is directed at those incentives that are “given out” by restaurants to compel a certain menu choice, which leads us to believe that the ordinance is meant to cover only the free stuff. In that case, McDonald’s tactical response, selling the toys for a donation, is OK. Ambiguities in the law are generally decided in favor of the criminal defendant.

These are the kinds of issues food activists will run into when they try to repair our wretched food system by altering consumer behavior. First, telling consumers and businesses what to eat and sell exposes activist to the schoolyard taunt of nanny-statism. That may be a one-dimensional and juvenile rebuttal, but it has traction. Nobody likes to be told what to do. Secondly, and more practically, the Healthy Food Incentives Ordinance shows the difficulty of drafting laws that regulate how consumers respond to the choices presented to them. They are just tough to draft.

Most of these unhealthy menu choices are actually a product of federal subsidy policy. Food corporations like McDonald’s are merely trying to efficiently and amorally create products using the mountains of cheap commodities produced as a result of national agricultural policy. San Francisco is powerless to stop federal agricultural policy, so they try and regulate only what they can, namely the behavior of its businesses and its citizenry. That is a lousy choice, but it is the only thing they can do to correct the negative, local effects of national food policy.

The next step is to put the law to the test – some city inspector will issue a ticket to a McDonald’s within city limits and then it is game-on!