Ag-gag laws, vertical integration, and the perfect strawberry: Attorney Jason Foscolo

Ag-gag laws, vertical integration, and the perfect strawberry: Attorney Jason Foscolo

 

If you think law is a boring subject – let’s face it, some people do – then get a load of Jason Foscolo.

A Long Island native, Foscolo practiced corporate law in New York City until 9/11 happened. He felt compelled to respond and ultimately became a Judge Advocate in the US Marine Corps. He has participated in more than 60 military courts martial and spent time stationed overseas in Asia. Now he operates a legal practice focused on US food production businesses and a highly informative (and interesting) blog.

Foscolo mentions something extraordinary that he saw while in Japan – a $100 box of strawberries, of all things – that changed his own perspective on food….

 

MyFreshLocal: Your biography mentions your stay in Japan as providing you with a different perspective on food systems, and the US food system in particular. What did you see in Japan?

Jason Foscolo: Japan was my first time eating and living outside of my native food system. One of my favorite pictures of my time there is a snapshot I took very early in my stay of a $100.00 box of strawberries I saw in the Nishiki Market in Kyoto.

There were less than a dozen berries in the box, and each was absolutely perfect. There were actually three boxes of these strawberries there, and in the time it took me to snap a digital picture, I witnessed a customer purchase one of the boxes. I had never seen anybody exalt a simple berry like that.

It started to dawn on me that I was immersed in a culture that cared about and even revered the food that they ate. Japanese people would give a single perfect melon as a holiday gift or a half pound of marbled beef as a birthday present, so long as it was the best. When I came back to the US I realized that our culture and our food system didn't 'do' perfection. We do bulk.

When you grow up eating in America, you never realize that truly great food and great ingredients have nuance. I had to leave for a few years to understand that a berry is not always a berry.

 

There’s a lot of ink spilled lately about young farmers – particularly young people who look at the so-called white-collar job market and decide prospects aren’t good there. For a person who wants to grow and sell food, what are two or three key legal issues to understand?

The best legal advice I can give the young farmer or food entrepreneur is that farming is a business. I am very proud that my generation is the one that will return to the land to start growing again. It is a wonderful thing to see them leave their white collar gigs to pursue a dream of growing amazing carrots.

My concern is that some of them do it with more zeal than business savvy. I want nothing more than to see the new and beginning farmers prosper. My professional challenge is to introduce these new start-up farmers to the ways in which agriculture and food production is a business like no other.

Food production is actually a very sophisticated industry. Within the legal realm alone there is a constellation of special rules that apply only to agriculture, special benefits available to farmers which are available to no one else, and a few unique burdens such as food product liability. Most of the food system is enmeshed and immersed in these rules and aggressively exploits them for economic benefit.

If the new and beginning crowd will ever maintain this wonderful momentum they now have, they will need to professionalize and treat food like the sophisticated business it deserves to be. Once this generation finds out how to do that, they will create the institutional momentum that will consolidate the changes we are seeing in the food system and the way we eat.

 

A key phrase for big food producers is “vertical integration” – which we understand to mean this: By owning many stages of food growth and processing, these companies can be more efficient and more profitable. You suggest that independent producers try to create some of the same advantages by working more cooperatively. What makes this tricky to accomplish?

You are absolutely correct - big food producers reap enormous economic and market advantage from vertical integration. Regulatory compliance costs are one of the most compelling rationales for further verticality. The costs imposed by our regulatory framework are borne much more easily by the large producers. Smaller companies and producers have difficult time simply entering the market.

Agricultural cooperatives are a very useful tool which several smaller farms can use to level the playing field. A cooperative is a special kind of corporate entity which allows several farmers or food producers to create the vertical efficiencies that can help them do business better. (Funny thing - agricultural cooperatives actually enjoy a limited but powerful exemption from most anti-trust laws. What industry wouldn't kill for that kind of break?). Cooperatives are often used to purchase expensive equipment or facilities, like a USDA-inspected slaughter plant or a grain elevator. They can also be used to finance regional marketing campaigns or promote certain products.

Though the advantages of cooperatives are pretty sweet, the tricky part is the personalities.

The central principle of the cooperative is "1 Member – 1 Vote".  Generally speaking, farmers are independent and risk averse. Any worthwhile cooperative venture is speculative by its nature, and also necessitates a surrender of a certain amount of sovereignty by its membership. An individual entrepreneur can just roll the dice and make executive decisions with full accountability, but for many reasons it is a lot harder to get a group of farmers to move together on a given project.

 

Do you have any thoughts on Iowa’s newly minted ‘ag-gag’ law, making it a crime to secretly videotape livestock farming to capture evidence of animal abuse? [Note: For more details of the law, see Kathleen Masterson’s article for NPR.]

It is absolutely no surprise to see the meat industry use the law as a defensive shield to protect the undeserved sanctity of their agricultural practices. Our food laws are absolutely permeated with special advantages and exceptions to protect almost anything the food industry does.

The only advantage that commodity meat producers still have is price. They can only get their price so low because of the depraved treatment and density of animals confined to feedlots, gestation crates, and chicken houses. These hidden cameras give consumers a look at the real price of their food. Of course the consumers never like what they see because no moral person would. If enough people object, consumer outcry could negate the biggest advantage commodity producers still have, which is their unconscionable production method.

I am not licensed to practice in Iowa, but there is a decent chance this law may be redundant. Some forms of these surveillance recordings may be already covered by the state's fairly broad trespassing laws. I suspect they knew that already and I think redundancy is the point. Exposure [of abuse] risks everything. The industry will do anything it can to maintain its hold, even if it means they look a bit nervous in the process.

[However] I don't believe for a minute that ‘ag-gag’ laws will diminish the number of secret videos we see. People who wish to uncover animal abuse are a committed lot and I do not think they will ever be dissuaded by a slightly larger fine.

 

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About the 50 VOICES OF LOCAL FOOD series 

Food is simple, but food systems issues get complex very quickly.

So while simple slogans (“eat local food!”) have their place, it’s valuable to dig in and understand considerations of health, environment, regulation, economics, and more. Ultimately that’s how the smartest and best decisions can be made, both for individuals and for the food system at large.

That’s the thought behind 50 Voices of Local Food. In this series MyFreshLocal talks to people engaged in local food in many different ways. Farmers, chefs and restaurant owners, lawyers, legislators, artisan producers – name a segment of the food system and you’ll find those folks in 50 Voices series.

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