I Filed Brief for Reason, Cato Urging Supreme Court to Take Up California Foie Gras Ban

Last week, Reason Foundation (the nonprofit that publishes Reason, where I write a weekly food-law column) partnered with the Cato Institute to file an amicus curiae brief with the U.S. Supreme Court in support of the foie gras producers and sellers who are challenging California’s foie gras ban. I was honored to be asked to write and submit (as a member of the Supreme Court bar) the brief. In March, the plaintiffs asked the Supreme Court to take up their appeal after the Ninth Circuit Court of Appeals last fall reversed a U.S. District Court ruling that had struck down the ban.

The possible implications of a state animal-rights law that interferes with interstate and foreign commerce in animal products are already reverberating. Last year, in separate lawsuits, each brought by more than a dozen states, California and Massachusetts were sued over respective animal-rights laws in those states that similarly discriminate against interstate and foreign commerce.

Together, the California and Massachusetts laws target eggs, pork, and beef sales. If it seems as if a couple states can do widespread and lasting damage to livestock farmers, retailers, restaurateurs, consumers, and food freedom across the country, then that’s also the reality. That’s also what makes this foie gras case so important.

"This brief supports Reason's commitment to 'Free Minds and Free Markets,'" says Manny Klausner, a former editor of Reason, a Reason Foundation co-founder and board member, and attorney, who joined me in filing the brief. "And it's particularly satisfying for Reason to file a Supreme Court brief defending liberty that quotes Thomas Jefferson and James Madison's opposition to bans on various types of foods and liquors as 'lunacy' and 'despotic'—and also cites Escoffier, Julia Child, and Thomas Keller!"

I am proud to have had the opportunity to work with Reason Foundation and The Cato Institute and to lend my voice to the chorus urging the Supreme Court to take up this important case.

I'm Quoted in Great N.Y. Times Front-Page Piece on Regulations Impacting Small Apple Farmers

Earlier this week, the front page of the New York Times featured a thoughtful, well-researched article on ways that many regulations impact smaller food producers. That topic is at the heart of much of my research and writing, including my recent book, Biting the Hands that Feed Us: How Fewer, Smarter Laws Would Make Our Food System More Sustainable.

The great Times piece, by staff investigative reporter Steve Eder, focuses specifically on rules impacting small apple growers. It also quotes me at length. Here's a snip:

“So many of the farmers I’ve spoken with tell me that stricter and stricter regulations have put many of their neighbors and friends out of business, and in doing so cost them their homes, land and livelihoods,” said Baylen Linnekin, a libertarian-leaning expert in food law and policy, in an email. “For many farmers, rolling back regulations is the only way they can survive.”


Mr. Linnekin, the food lawyer and author of “Biting the Hands That Feed Us: How Fewer, Smarter Laws Would Make Our Food System More Sustainable,” predicted the new requirements would not lead to significant improvements in food safety.

“Instead, the result will likely be more of what we’ve experienced over the past few decades as regulations have ratcheted up,” he said. “More of our fruits and vegetables will be grown by large domestic producers who can afford to comply with the regulations — at the expense of smaller competitors — and by produce farmers abroad.”

I encourage you to click through and read the whole article. It's a balanced, refreshing look by the mainstream media at the issue of overregulation of food production and sales at a time when many politicians in Washington, D.C. at least claim to be taking a hard look at the problem.

In case you're long on time and short on things to read as the calendar turns to 2018, this week also saw publication of my latest op-ed, this one a look at a multi-state lawsuit against California over the latter's ban on some out-of-state eggs, which appears in the Orange County Register and several other leading Southern California newspapers.

Find Me Writing, Speaking, and Gleaning

I'm pleased to provide an update here on some of my recent and ongoing work.

My latest piece for the New Food Economy was published today. In the lengthy article--which runs around 4,000 words--I describe details of a fascinating recall of potentially hazardous egg rolls last year, explain the role previously unreported FDA and USDA bickering played in the recall, and describe the complex and confusing overlap of agency regulatory authority. I'm very happy with the piece, which I think really pops thanks to documents I obtained through a FOIA request I filed with the USDA in November. I also continue to write weekly for Reason. Please check out my columns here.

On the speaking front, my fall calendar is also quite busy already. I'll be conducting a book talk and webinar for Northwestern University Alumni Association on Sept. 28. I'm a proud alum of Northwestern's School of Education and Social Policy (MA '01). In October, I'll be in Wisconsin for the annual meeting of the board of the Farm-to-Consumer Legal Defense Fund, where I'm a board member. I'll then travel to New York City, where I'll first give a book talk at St. John's University Law School (Oct. 19) and then discuss an article I'm writing about foraging as part of Fordham Urban Law Journal's annual Cooper-Walsh Colloquium (Oct. 20). The following week, I'll deliver a book in Seattle to a group of home economists, Euthenics of the Greater Seattle Area. And in November I'll again take part (for the third year in a row) as a guest faculty member at the annual Food Law Student Leadership Summit. This year's summit is hosted by UCLA Law School.

Finally, I'm thrilled to report on some volunteer work I've done in recent months with a terrific Seattle nonprofit, FareStart. I serve as a Food Recovery Ambassador and Food Recovery Committee member with FareStart as they work to expand their outreach to farmers and food hubs in service of reducing food waste, combating food insecurity, and training culinary professionals. Additionally, I take part in FareStart’s volunteer gleaning efforts. I've had the good fortune to reach out to farms and food hubs about recovering excess food, helped to plan FareStart's food-recovery efforts, and visited farms outside Seattle to pick excess produce. I've already helped glean nearly 200 lbs. of blueberries that FareStart has turned into food its budding culinary professionals serve to Seattleites in need.

Big Win in 11th Circuit Skim-Milk Case in Which I Served as an Expert

Last week the 11th Circuit Court of Appeals overturned an earlier U.S. District Court ruling and handed a well-deserved victory to Ocheesee Creamery, the plaintiff in a First Amendment lawsuit against Florida's agriculture department. Ocheesee was represented in the case by the Institute for Justice.

As I detailed in my book, Biting the Hands that Feed Us: How Fewer, Smarter Laws Would Make Our Food System More Sustainable, I'm proud to have served as an expert witness in the case on behalf of Ocheesee, which was told by the state of Florida that they could not label their 100% natural skim milk as "skim milk" unless they added vitamin A to the milk. The state had suggested Ocheesee use bizarre and Orwellian terms to label their skim milk, including "Non-Grade 'A' Milk Product, Natural Milk Vitamins Removed" or "imitation skim milk." The 11th Circuit, reflecting points I made in my expert report, made clear that consumers are not confused by accurate food labels, such as when skim milk is labeled as "skim milk."

"The appeals court win this week is an important victory not just for Ocheesee Creamery but also for free speech, consumers, small businesses, and food freedom," I wrote in my latest weekly Reason column, which focuses on the Ocheesee victory.

What's next for the case? I'm waiting to see if Florida appeals to the U.S. Supreme Court and whether the nation's highest court agrees to take up the case.



My Piece on Food & Sustainability in the Delaware Journal of Public Health

I have a new piece in the Delaware Journal of Public Health on ways that food rules often handcuff sustainability and hurt public health. The piece, Policies that Challenge Food Sustainability and Public Health, is based largely on the issues and topics I focus on in my forthcoming book, Biting the Hands that Feed Us, but with a more specific focus both on public health and on issues relevant to Delaware readers.

Here's an excerpt from the article, which is part of an issue that's devoted solely to food:

Our food system is awash in rules. Some of these rules—like those that help keep toxins or harmful bacteria out of the food supply—are vitally important. But many food rules are wasteful and counterproductive.
Rather than combating many of the environmental, economic, and health problems that plague our food system, such rules instead exacerbate these problems. Consider that local laws on the books in many cities around the country prohibit people from growing fruits and vegetables in their yards. If produce can be expensive, and if there are important public-health benefits to be gained from eating more fruits and vegetables, then laws that make it more difficult to grow one’s own food are simply counterproductive.

Read the rest of the article and the full issue of the Delaware Journal of Public Health here. My article appears on pp. 18-19.