SSRN Reading List — Food Law and Policy Articles

Cannabis in my brownies and crickets in my soup today.  All good, as far as I am concerned, but the food law and policy issues are fun to chew on.  Monday I will post about two more recent food law and policy articles, one relating to genetically modified food (really pertaining to agency use/misuse of guidance documents) and the other a fascinating read on gender and race aspects of the debate over plant “milk.”  For the weekend, though, cannabis and crickets.

Paul J. Larkin, Jr., Introduction to a Debate: “Marijuana: Legalize, Decriminalize, or Leave the Status Quo in Place?” (Berkeley Journal of Criminal Law) and Marijuana Edibles and “Gummy Bears” (in the Buffalo Law Review).   Larkin is a Senior Legal Research Fellow at the Heritage Foundation, and he has written on marijuana before (see here and here and here).  The first paper is a short summary of the arguments in favor and against reform of the “marijuana laws,” by which the author means a change to the Schedule I status of “marihuana” and “THC” under the Controlled Substances Act.  The second is a meatier law review article taking up the question whether FDA should take steps to ensure that minors do not inadvertently eat “marijuana edibles” (cookies, candies, chocolates, liquids, and so forth) that contain THC.  In brief, he argues that that minors can suffer a variety of harmful short-term and long-term effects from unwitting THC consumption, and he points out (correctly) that THC is a “food additive” under the FDCA and that as a result FDA has the authority to take enforcement action.  (See my recent article here, for more on this.)

Why has FDA not done so?  Three possibilities, he suggests:  (1) FDA is leaving this entire subject to the agencies charged with enforcing the Controlled Substances Act, (2) FDA doesn’t want to get involved in battles over the appropriate federal response to state marijuana laws, and (3) FDA concludes it has no choice in view of an appropriations rider that prevents DOJ from using federal funds to “prevent” the states from “implementing their own state laws that authorize the use, distribution, possession, or cultivation of medical marijuana.”  (He argues this would be a misinterpretation of the appropriations rider.)  I think the first explanation is the most likely, particularly when combined with the fact that going after these products simply for containing an unapproved food additive is a bit awkward if there’s a threshold problem under the Controlled Substances Act.  In the end Larkin recommends that DOJ consider challenging state programs but that at the very least FDA should consider treating edibles as adulterated food.  (He cites FDCA § 402(a)(1), which deems a food adulterated if it contains a poisonous or deleterious substance which may render it injurious to health.  It seems to me that the agency would proceed under § 402(a)(2)(C), which deems a food adulterated if it contains a food additive that is unsafe within the meaning of section 408.  Section 408 in turn deems a food additive unsafe unless (generally) it complies with a food additive regulation.)  Bottom line: neither article too surprising, but the paper on edibles is especially helpful for its exhaustive footnotes.

Also, Marie Boyd (University of South Carolina) has published Cricket Soup in the Yale Law & Policy Review, arguing that FDA should take affirmative steps to recognize that insects are food.  Last year, my Food Law & Policy class was fortunate to have Professor Boyd as a guest speaker on this very topic.  I’ve had grasshoppers before, at a Mexican restaurant in DC, but let me say this:  if you want to order cool insect candy, HOTLIX is your place!  I love this stuff, and so does my teenager.  Anyway, Boyd notes than an estimated 2 billion people worldwide practice insect eating, but that negative attitudes towards entomophagy in the western world may serve as a barrier to acceptance of insects as food.  This is unfortunate (I think she would say, and I know I would say) because insects can be quite nutritious, even superior to meat, and the farming of insects for food may be much more sustainable than raising conventional livestock.  (Crickets are very efficient at converting feed mass to body mass, for example, and they don’t present the same land use and water use issues.)  I — for one — don’t know why Curtis is so disgusted by the protein bars in Snowpiercer (which may be one of the best movies you have never seen).

This paper has an exhaustive and careful background section on insects as food as well as a meticulous and deep dive into FDA regulations relevant to insects in (or as) food. She knows her stuff and is a very careful writer.  Insects, of course, can be defects or “filth” that render food adulterated.  (As she notes, FDA does allow the addition of predacious insects to food in order to control insect pests, on the assumption that the insect parts will generally be removed during processing.)  But insects can also be food itself, under the definition of “food” in section 201(f), and the agency has acknowledged this.  As Boyd points out, the agency sent a warning letter to the company that sells HOTLIX, because of a labeling violation — not because the candy contained a worm.  But by and large the agency has been pretty reactive to the development of insect-based foods.  Boyd is arguing that FDA should do something to “erode the cultural barriers to using insects as food” — that inaction is “not neutral.”  What to do?  That’s the conundrum . . . some sort of formal proactive recognition that insects can be food.   And, she says, FDA needs to establish a test for distinguishing between insects as food and insects as filth, perhaps on the basis of intended use.  I’m not fully sold on her solutions, but she makes a persuasive case that we ought to be looking hard at eating insects.  And the aversion to eating insects in our culture is very strong indeed.  I brought HOTLIX candy treats in for my class last spring, and only three ate their lollipops . . . .


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