Ethical Eating: Applying the Kosher Food Regulatory Regime to Organic Food

Beginning of article

[H]ow we eat determines, to a considerable extent, how the world is used.

--Wendell Berry(1)

Green products are red hot.(2) This is the age of environmental consciousness,(3) and consumers are using their purchasing power to support ecologically superior products and services,(4) Information about the environmental impact of these products is essential to these choices; hence the rapid rise of ecolabeling(5) as a form of green marketing.(6) Whatever form they take, ecolabeling programs share the goal of providing consumers with the information they need to make their purchases in accordance with their personal ethical views.(7)

Consumers need assurance that these labels truly identify the products that they wish to buy. Understandable concerns about deception, fraud, and confusion have led to greater government regulation of the form and content of ecolabels. In particular, both industry and environmental groups have increasingly called for uniform federal standards as a way to protect both manufacturers and consumers.(8) A recent and controversial example is the federal government's decision to regulate the meaning of the term "organic" on food labels. The Department of Agriculture's proposed rule was heavily criticized for misunderstanding the nature of organic agriculture and was ultimately withdrawn.(9)

In this Note, I argue that mandated uniformity is a poor regulatory policy for ethically based decisions, such as the choice to purchase organic food. "Organic" refers to a set of philosophical beliefs about our relationship with the environment, not merely to the physical characteristics of a product. Farmers and consumers, who grow or buy organic food for a variety of reasons, do not always agree on the best ways to implement their shared ethical commitments. Defining the precise , meaning" of organic through uniform regulations deprives these people of the right to make choices in harmony with their own beliefs.

Moreover, international trade law severely constrains the ability of governments to regulate products on the basis of their production methods. The Department of Agriculture's proposed organic rule likely violated free-trade agreements because it imposed unilateral, parochial restrictions on organic labeling. For these reasons, allowing heterogeneous definitions of organic may be superior to mandating a single, uniform definition.

If multiple standards are permitted, can they be policed effectively? I argue that kosher food, which must meet traditional Jewish legal requirements, provides a model for how heterogeneous standards can be maintained.(10) Kosher, like organic, is a term that means different things to different people. To accommodate this pluralism, the religious Jewish community employs a sophisticated, privately driven labeling system to alert consumers to the kosher status of food. There is also an important role for public law enforcement in this regime, particularly trademark, mandatory disclosure, and fraud laws, and judicial enforcement of contracts. I conclude that the private-public hybrid(11) developed in the kosher market should serve as a model for organic food and other ethically based ecolabels. At the very least, government regulations should not prevent private organizations from setting higher standards or producers from advertising this fact.

Sections I.A and I.B introduce organic and kosher foods, and explain that both are largely defined by production methods rather than physical characteristics. That attribute is shared by ecolabels more generally, which Section I.C briefly discusses. Sections II. A and II. B, respectively, describe government regulation of kosher and organic foods. Section II.C argues that some of these laws may violate international law, which does not generally allow distinctions to be made on the basis of production methods. Section III.A discusses the regulation of kosher food under a private-public hybrid model, and Section III.B considers whether a similar strategy could be applied to organic food. Part IV concludes that in both cases the market, not the government, should determine standards.

I. ETHICAL EATING: ORGANIC AND KOSHER FOODS

This Part explains the meaning of organic and kosher, and it argues that they share two important features. First, both are defined, at least in part, by the methods used to produce and process the food rather than the characteristics of the end product. Second, neither term admits of "a precise and universally acceptable definition."(12) Organic farmers disagree about what particular farming methods are appropriate; similarly, rabbis disagree about whether particular foods are kosher. This Part concludes with a brief discussion of ecolabels more generally and suggests that their basis--life cycle analysis--also exhibits these two features.

A. Organic Farming: An Ecological Ethic

Ask a savvy consumer about organic food, and chances are that she will talk about eliminating pesticides, fertilizers, and other chemical residues from the finished product.(13) Indeed, widespread skepticism about the efficacy of food safety regulations has spurred the demand for organic food.(14) The perception is that organic food contains less carcinogenic residue and is grown with more care than conventional products.(15) Although this may in fact be empirically true,(16) it is not analytically necessary.(17) Moreover, this definition of organic--as residue-free food--does not fully explain organic practices, many of which are rooted in a holistic ecological ethic encompassing the people, animals, plants, and land involved in food production.(18)

Consumers choose to buy organic food for both health and ethical reasons.(19) As a result, organic food commands a substantial premium(20) due to market factors and higher costs of production.(21) In this country, organic farming has exploded into "one of the hottest megatrends in U.S. agribusiness," with annual sales in 1996 reaching $3.5 billion.(22) The industry has grown at a rate of twenty percent every year since 1990,(23) and it is predicted to quadruple in size over the next decade.(24) Organic farmers and consumers have created local, regional, and national organizations to foster education and cooperation.(25)

In this Section, I will briefly describe some of the techniques for raising organic crops and livestock, situating them within a larger ecological philosophy. I will then discuss some of the disputes within the organic community about particular practices.

1. Organic Agriculture

The organic movement has arisen largely as a reaction against conventional farming.(26) Thus, in trying to define organic agriculture, it is useful to describe the salient characteristics of its conventional counterpart. Conventional agriculture relies heavily on chemical fertilizers and manure to restore the optimal chemical balance of the soil for particular crops.(27) These products allow the farmer to sustain yields at a higher level than would otherwise be achievable,(28) but they have the potential to cause serious pollution problems.(29) Conventional practice also allows the use of chemical pesticides to control loss due to weeds, diseases, and animals.(30) Many different products are available and regulated by federal and state law(31) but remain controversial due to concerns about ecological(32) and human health effects,(33) as well as the evolution of resistant strains of pests.(34) The mainstream scientific and economic consensus is that in general, the benefits of these products--increased yield and lower food prices--outweigh their costs.(35)

The organic philosophy denies the dominant, instrumental view of nature that drives these practices. Its rhetoric often evokes romantic images of traditional, simple methods.(36) Most of its practices focus on achieving sustainability--not merely in the sense of a maximum sustainable yield but rather "ecologically sound, economically viable, socially just and humane."(37) These practices may in fact tend to minimize soil erosion and nutrient depletion, and they may therefore contribute to the long-term economic health of agriculture.(38) Yet the underlying objective of the organic farmer is not simply optimizing productivity, but rather living in harmony with the natural order.(39) Eliminating chemical fertilizers and pesticides is not necessarily the primary goal of organic farming;(40) rather, it is "maximiz[ing] the health of the soil."(41) Added chemicals may be unnecessary and unhealthy(42)--instrumental reasons to eliminate them in many cases--but they also damage the environment and disrupt natural life cycles(43)--externalities whose costs are only considered within an intrinsic, ethical framework. In the words of Peter Hoffman, "Organic food is not just about a product; it is a philosophy in which the process of production is as important as the final result."(44)

This characterization is fairly abstract, but in the words of Secretary of Agriculture Dan Glickman, "[I]f you ask people to actually sit down and define what organic means, you get all kinds of different answers."(45) Organic farming has often been defined in the negative--that is, by reference to what organic farmers do not do.(46) The United States Department of Agriculture defined organic farming rather expansively:

   [A] production system which avoids or largely excludes the use of
   synthetically compounded fertilizers, pesticides, growth regulators, and
   livestock feed additives. To the maximum extent feasible, organic fanning
   systems rely upon crop rotations, crop residues, animal manures, legumes,
   green manures, off-farm organic wastes, mechanical cultivation,
   mineral-beating rocks, and aspects of biological pest control to maintain
   soil productivity and tilth, to supply plant nutrients, and to control
   insects, weeds, and other pests.(47)

Others define "true" organic farming to exclude any use of synthetic and non-organically derived materials.(48) The International Federation of Organic Agriculture Movements (IFOAM), a worldwide umbrella organization devoted to this issue, includes among the principal aims of organic farming "allow[ing] everyone involved in organic production and processing a quality of life conforming to the U.N. Human Rights Charter, to cover their basic needs and obtain an adequate return and satisfaction for their work, including a safe working environment" and "encourag[ing] organic farming associations to function along democratic lines and the principle of division of powers."(49)

Thus, the organic philosophy constitutes a "continuum of attitudes and practices" rather than a concrete platform susceptible to absolute definition.(50) Its practitioners do share, however, the goal of using natural processes to the greatest extent possible. For example, many use natural predators, resistant crops, and intercropping instead of chemical pesticides to prevent widespread damage from pests.(51) Rather than using synthetic fertilizers intensively, organic farmers compost,(52) rotate crops,(53) plant cover crops,(54) and leave manure--both animal and green--on the fields to decompose instead of trucking it away or burning it.(55) These methods are designed to prevent rapid depletion of the soil's natural nutrients. Most organic farmers also try to preserve the soil structure by minimizing the amount of plowing they do.(56)

2. Organic Livestock

Similar conclusions can be drawn from a comparison of conventional and organic practices with respect to livestock. Here too, the trend in modern agribusiness facilities is toward intensive, assembly-line production.(57) Animals are generally confined to tiny cages and raised entirely in artificially controlled environments to maximize their size and productivity at the lowest cost.(58) The squalor and barbarity of these operations has been well documented.(59) Intensive production increasingly requires the use of high doses of antibiotics to control disease(60) and hormones to stimulate growth.(61) Poultry are often debeaked,(62) and veal are so confined as to be physically unable to rotate their bodies.(63) Most often, these facilities cannot accommodate in an ecologically sound and productive manner the huge volume of animal waste produced. To ship the manure to the fields where the feed was grown is generally not economically feasible, so it often ends up as a pollution problem rather than a useful nutrient source.(64)

Organic livestock practice avoids gratuitously using artificial processes such as antibiotics, and it requires the use of organic feed.(65) It also emphasizes the importance of treating the animals humanely.(66) Cattle are allowed to graze, and poultry are raised free-range. Organic operations are often less specialized and are peripheral to an agricultural farm that can provide feed and recycle wastes.(67) As with crops, the organic philosophy dictates the use of processes that (potentially) affect the finished product in addition to those that simply comport with a broader ethic.(68)

3. Disputes About Organic Practices

Given the uncertainty that surrounds the meaning of organic, it is not surprising that there are disagreements about the acceptability of particular practices. Indeed, many practices, not all mutually consistent, are presented under the organic or alternative agriculture banner.

One dispute concerns "natural" pesticides and fertilizers. While some are comfortable using these, particularly when other methods fail, others believe more firmly that only naturally occurring processes should be used.(69) Another difference arises over plowing and other soil-disrupting techniques. Plowing is seen in conventional settings as necessary to aerate the soil and to allow strong root systems to form.(70) Many alternative farmers avoid these methods, because they believe them to be wasteful(71) and because they object to doing violence to the earth.(72) Empirical evidence might play some role in resolving these disputes, but it is also possible that they indicate a fundamental split over ethical principles that does not admit rational solution.

A more significant divide exists between mainstream organic and biodynamic farming. The biodynamic movement is one of the historical antecedents of the modern organic movement and shares its holistic philosophy.(73) In addition, however, it advocates the use of biodynamic preparations, specially composted recipes meant to "restore the soil's life force."(74) Particular emphasis is placed on the significance of spiritual forces for agricultural production.(75) Unconventional techniques also address pest problems.(76)

Certified biodynamic products are highly regarded in the organic community because they comply with extremely strict standards,(77) and in fact command a premium over ordinary organic food.(78) Biodynamic farming is particularly concerned with promoting self-sufficiency and community-supported agriculture.(79) Most organic food, however, is not biodynamically grown: "Biodynamic farming makes ordinary organic farming look about as spiritual as strip-mining."(80)

In sum, while there is no consensus about the precise meaning of the term, "organic" generally refers to a way of producing a food, rather than a claim about its physical attributes. Organic agriculture may be concerned with a wide range of impacts, from the depletion of the soil's nutrients to the treatment of the people and animals involved in production.

B. Kosher Food: Spirituality in Everyday Life

Kashrut(81) presents an analogous situation to organic food: It is based on production and processing methods rather than product standards, and it is subject to differing interpretations. In this Section, I introduce some aspects of kashrut, and describe several well-known disputes within the Jewish community about particular products.

The market for kosher food is also hot.(82) Sales grew by twelve to fourteen percent every year from 1992 to 1997,(83) and some estimate the industry to be as large as $47 billion a year.(84) Seven million people regularly purchase kosher food in this country, and over 36,000 products are available.(85) Interestingly, less than a third of these kosher consumers are Jewish.(86) Most significantly, many mainstream foods--from Tropicana orange juice(87) to Oreo cookies(88)--are now under kosher supervision.

1. An Overview of Kashrut

Contrary to popular belief, kosher food has not been blessed by a rabbi.(89) Nor is kashrut designed to protect health.(90) Rather, eating only kosher food is seen as a way of elevating oneself spiritually.(91) Although kashrut is often thought to be no more than a prohibition against pork, shellfish, and mixing meat and milk, it is a complex and detailed set of precepts.

The rules of kashrut, like most Jewish law, derive from both biblical sources(92) and traditional rabbinical writings.(93) They can be loosely categorized as product-based or process-based, although the two are often intertwined. The principal product-based laws are those forbidding certain foods or combinations of foods. Of animals, only certain mammals,(94) birds,(95) and fish(96) may be eaten.(97) Blood is categorically forbidden,(98) as are certain fats.(99) Also strictly prohibited is mixing meat and dairy products.(100) Finally, special rules are followed on the holiday of Passover, when leavened products may not be consumed.(101)

Process-based laws generally concern either the method of preparation or the identity of those preparing the food. The former includes the rules regarding the preparation of meat. Meat and poultry must be slaughtered in a particular manner(102) and then checked for signs of …