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

By Gutman, Benjamin N. | The Yale Law Journal, June 1999 | Go to article overview

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


Gutman, Benjamin N., The Yale Law Journal


[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proposed rule was heavily criticized for misunderstanding the nature of organic agriculture and was ultimately withdrawn.(9)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. …

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