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Emily Broad Leib: What Can be Done About Food Waste?

Originally published on Harvard Magazine on 11/15/21.


WHAT CAN BE DONE ABOUT FOOD WASTE? Emily Broad Leib, founder and director of Harvard’s Food Law and Policy Clinic, discusses how to reduce food waste in the United States and abroad. Topics include the confusion caused by misleading date labels, the impact of COVID-19 on food waste, and the FLPC’s collaborations with governments and non-profit organizations to enact better food laws.  Read more about Emily Broad Leib in the pages of Harvard Magazine in “The Food Waste Problem.” 

For more on Emily Broad Leib’s work on food waste, check out Harvard Magazine’s November-December feature, “Waste Not….” Her work was also featured in “The Care and Feeding of a Nation.

A transcript from the interview (the following was prepared by a machine algorithm, and may not perfectly reflect the audio file of the interview): 

Jacob Sweet: Even before COVID-19, about 820 million people around the world were living in hunger and another 2 billion were experiencing moderate or severe food insecurity. At the same time, food production uses half the world’s habitable land and accounts for more than a quarter of global greenhouse-gas emissions. Yet globally, we’re wasting about a third of all food produced. In the United States, the numbers about 40%—even as 10.5% of US households were deemed food insecure in 2019. So how can we start taking steps to reduce food waste and make food systems in the United States and abroad more efficient? Welcome to Ask a Harvard Professor. To answer that complicated question and more, we’ll speak with Emily Broad Leib, Clinical Professor of Law; deputy director of the Harvard Law School Center for Health, Law, and policy innovation; and faculty director and founder of the Harvard Law School Food Law and Policy clinic, the first law school clinic in the nation dedicated to providing clients with legal and policy solutions for health, economic, and environmental challenges facing our food system. Her work has influenced countless state and federal laws and the policies of some of the biggest producers of food nationwide. Walmart, for example, cited her work when changing how they date label all their products a step toward reducing the amount of food consumers throw out. Welcome Professor Broad Leib.

Emily Broad Leib: Thank you so much. I’m really glad to be here.

Jacob Sweet: Can you explain first what the food Law and Policy clinic does? And what kind of work you do together?

Emily Broad Leib: Yeah, it’s great. I always like to have a sort of public service announcement explaining what a law school clinic is, and particularly what is a law school clinic that works on food. So basically, law school clinics are a way to educate law students where, in addition to meeting in the classroom, the bulk of the work is really students getting hands-on experience, working on issues, either for clients who can’t afford attorneys to go to court with them and represent them, or in the case of our clinic, for you know, clients from our clinic, are more government agencies or nonprofits or social enterprise or often kind of community coalitions and groups of stakeholders that either are trying to understand the laws better that apply to the food system, or are trying to change those laws. So we do things like write research memos for clients, we do presentations for them, we help them brainstorm ways to develop policies that would fix the challenges they face, whether things like reducing food waste, and recovering more food, which I know we’ll talk more about today. The other areas that we work in, besides that are in making food production more sustainable and more equitable. So we look a lot at things like the US Farm Bill, and what practices—what farming practices are being supported. Could those be better for the environment? We spend a lot of time also looking at issues of, you know, discrimination and disparities in terms of farmers who are supported by the government and foreign workers. And then we look at health and access to food and food insecurity and policies to make it easier for people to access food. So in the classroom, I kind of teach all of these things. And then students kind of, you know, give their preferences but are assigned to work on one or two of these real-world projects where they’re digging into this and helping our clients understand or make change in this space.

Jacob Sweet: And I know the definition of food waste seems pretty obvious, but how do you and the FLPC think about food waste in your work?

Emily Broad Leib: I guess one thing that’s really interesting is there’s a technical definition of food waste that many countries use and kind of used at the UN Food and Agriculture Organization, which breaks food waste out into two buckets: food loss, which is really food that is lost along the supply chain, you know, often on the farm or immediately post-harvest. So it’s often something we see more in countries that have less infrastructure to, process that food—get it off of the farm, cool it properly, store it properly. But here in the US, food loss happens a lot with food that is imperfect or doesn’t meet the specifications that distributors are looking for. And then food waste, technically is food that’s wasted further on the supply chain. So it’s, you know, results from decisions on the part of retailers, food-service providers, or consumers. So that would be food that you know, we get out of the field, we store it correctly, we manufacture, whatever production needs to happen, we ship it around the country. And then it gets wasted because there’s either an overabundance in stores or, you know, consumers bring it home, and then they go out to dinner every night that we can end up throwing away what’s in their fridge. We include all of this, we work on all of it. We call all of it—the broad bucket is food waste, but it’s really important and helpful and you know, really relevant in our work to really think about the different policy levers you would need to use to address the amount of food that’s wasted in those two different buckets.

Jacob Sweet: And I guess just to jump off that point, what are the different levers that you’re talking about? What different ways are you looking to change it?

Emily Broad Leib: Yeah, and I should say, too, I didn’t mention this. But just, when you look at the US, we waste, it’s estimated between a third and 40% of our food supply. So this isn’t a small problem, I mean, we’re wasting a huge amount of food. And that is both, you know, a huge waste of the resources that go into producing that food—more than 20% of our water, for example, goes to water crops that we then throw away. It’s a huge contributor to climate change. A UN Intergovernmental Panel on Climate Change report found that about eight to ten percent of global greenhouse-gas emissions come from food waste rotting in landfills. And it’s also, in the US, more than twenty percent of our landfill space, the largest single item by volume is food. So there’s a bunch of reasons to really be concerned about this.

When we think about different policies, we’ve worked on this now in the US for about a decade. So the starting point was really looking at date labels on food. And this came from a project with a client who’s actually a former Harvard advanced Leadership Initiative fellow, Doug Rauch, who was—prior to doing the Harvard events Leadership Initiative, he was the president of Trader Joe’s. And then he said, you know, I want to start a social enterprise, basically, a nonprofit grocery store that would help to aggregate food that otherwise would be wasted, either because it’s surplus or imperfect, or, at or past the date and sell this at a very, very low price. But when he came to us, he said, it appears that you can’t actually donate or sell food past the date, so I don’t know where that leaves my idea. So our very first project was really trying to understand and explain the laws of Massachusetts to him and help him figure out that actually, it was possible to use this food—he just had to meet certain restrictions. And also to look at what other states were doing so that we could help him figure out, you know, is there a better model from some of our surrounding states? Like, can we just change the law in Massachusetts, because the large majority of foods are—the label on those foods is really about quality and not about safety.

 So we can kind of get more into, you know, the specifics of that area. But, you know, ever since that time, what we found when we looked beyond Massachusetts, was that every single state was regulating this differently. And it felt like there was a lot of confusion not only by consumers, and stores, but also by state regulators, state agencies, state legislators like that no one knew what these meant. So that’s an area we’ve worked on a lot is really figuring out what do the dates mean? What is the best way to convey that to consumers? And then how can that contribute to reducing food waste? Another big thing we look at is one of the number one concerns that businesses raise as to why they are afraid to donate food is that they’re afraid if someone gets sick, they would be sued in court for the harm to those recipients of food. And you know, more than 50% of food manufacturers, retailers and restaurants in the US consistently report concern over potential liability. But in the US, we actually have an amazing national law that protects all of those entities, the donors of food, and also the nonprofits from liability, because they’re doing this altruistic thing. So as long as they’re not intentionally passing along food or recklessly passing along food that they think is contaminated or unsafe, they’re protected. So then our work has really been why is this law not operating completely as it should? What are the ways we could strengthen it? You know, what are the ways that state law could go beyond that federal law to allow more innovation and things like that?

So those are just a few—maybe I’ll give one other, if it’s okay, which is, I think one of the kind of policy levers that I’ve been really excited about has been government at various levels actually starting to restrict the amount of food that can be thrown in the landfill. And this is a really great tool because it basically says this food is a resource. And it doesn’t belong in the landfill. So it’s kind of putting the burden back on businesses to say, you know, you can make a decision, you can purchase less, you can donate to people in need, you can provide food to animals, which is an age-old practice that we’ve gotten away from in many cases, or you can send it to compost or anaerobic digestion. You just can’t send it to the landfill. And Massachusetts has been a lead as one of the states that has really been doing this effectively now for the past five or six years. But the policies shows a lot of, you know, just kind of changes the norms and changes the habits of businesses to really use food as a resource. And as a result of that, we see more food being donated. We actually also see more jobs being created in food donation and in composting and things like that.

Jacob Sweet: Yeah, no, those are all really interesting examples. I think, maybe for people at home, they might be interested in the data labeling portion. When people go into a grocery store, you know, what can they expect to see? And what are some of the problems with that?

Emily Broad Leib: Yeah. So, you know, what we’re talking about when we look at date labels is the language on packages that sort of “sell buy,” “used by,” “best before,” “expires on.” Actually Walmart a few years ago, did a study of the date labels on their packages, and they found that there were 47 different labels on packages in Walmart. I can’t even, I mean, it’s sort of a nice like, at-home test. Can you figure out like, Can you list 47 possible combinations of words that would be used to signify, you know, freshness or safety? So that’s what consumers see, for the most part, when they go to stores. Most consumers mistakenly construe that these labels are related to safety. So about 90% of consumers report throwing food away when that date arrives, no matter what the wording is. But on the flip side, what we know is that those labels are almost, you know, across the board, not related to safety. So for most foods, the label’s really meant to be about quality, about freshness, sort of telling you, the company’s communicating, if you eat it before this date, we think you’ll have like the full experience. And then after the date, maybe one day later, maybe three or five, or a week, we don’t know when, but after that date, you may start to see a decline in freshness. So your crackers may not be as crispy as we want them to be, or, you know, you’re, I’m trying to think of another one. I mean, eggs is a good example too, like—this probably would be more than a month after the date, but they may not work as well for baking, they may not have the same characteristic that you expect.

So the other interesting thing that was shocking to us and is shocking to most people is that these dates aren’t regulated at all by the federal government, with the sole exception in the US of infant formula. So it’s required that infant formula have the words “used by,” and it’s required that you know, before that date, the infant formula retains all of the nutritional aspects that it’s labeled. And the idea is really with babies, if that’s all they’re eating, you know, you want to let people know, after that date, they may not be getting enough nutrition for our full diet. Because the federal government doesn’t regulate, more than 40 states require date labels on products. And a large number of states restrict the sale or donation after that date. And this is where it gets really crazy, because no two states regulate in the same way. So you would think if this was related to science, if it was related to safety, or to any evidence that states would be regulating along the same lines, that there would be a best practice. And what we find is really that that’s not the case.

So you know, as a result of this, as a result of the confusion, consumers are throwing food away in the house that shouldn’t be thrown away that’s perfectly safe. Businesses are throwing food away, rather than, you know, putting it on a discount shelf or donating it after that date. You know, I think in many cases, food banks and charitable food organizations, even if they receive food past the date. There are a handful of things that I think they know, like, you know, very shelf stable things, they’ll say, okay, like, we’ll still donate something that’s a canned good for a little bit after the date. But often they throw things away too. And what our partners at ReFED, which is a national kind of food waste research organization, have found that because of all this unnecessary waste, that it would be one of the most cost effective policy changes in the US to reduce food waste would be standardizing date labels and making them clear to consumers, and that it could divert more than 580,000 tons of wasted food each year.

The last thing too, is it’s frustrating because consumers are wasting money. And I think, you know, what our hope would be is that in having a better policy that it would help consumers not only do a better environmental thing, but also save money because they could be eating things that are still very safe and healthy and probably taste just as good as they did before the date.

Jacob Sweet: And I think people might be interested in how you personally look at food labels and how you handle them in your fridge and when you’re purchasing food. How do you think about that?

Emily Broad Leib: Yeah, so I should say, part of the issue with date labels is that there are a very, very small handful of foods where actually there is a little more risk after the date. So when I’m thinking about it, I’m very conscious of, you know—the main foods are deli meats, like unpasteurized or raw milk or cheeses, and then other prepared food that you would not be cooking afterwards. So if you’re buying like chicken salad or egg salad at your grocery store, you know, that’s going to be hanging out in your fridge, and you’re not going to heat it up afterwards unless you have some weird food habits. So those are the foods that I try to either eat before the date as much as possible. And if I don’t make it, then I’m cautious about not eating them after the date.

But really, for all other foods, the science really shows that there’s not some pathogen in them that’s going to, like, be invisible to the consumer that’s going to make you sick after the date, you will know when that food is spoiled or stale, or something like that. So I smell milk, the smell test, it does work. You know, even if you drank milk that was a little bit spoiled, that isn’t a food safety risk, that’s not a pathogen that’s going to get you sick, because milk is pasteurized. You know, I have crackers, I’m like, “Oh, no, I found these back in my office after COVID.” You know, they’re a little bit stale, they’re not gonna make me sick, they don’t taste good. And I don’t, you know, we’re not recommending people eat things that aren’t enjoyable. So those I got rid of, but if it was an emergency, I could have eaten them, and I would have been just fine.

So I try to really do that. And, in fact, one of the countries that’s done a really good job with date labels is the United Kingdom, where they very clearly have two standard date labels on food. This is what we want the US to do. So they have one label on food that is going to be risky or increase in safety risk after the date. And then all other food, the large majority, has a different label. In the UK, it’s “used by” on food that has safety risk after the date and “best before” for all the rest of foods. And so they did a big campaign earlier this year, where they said to all consumers that it was like, “Look, smell, taste, don’t waste.” And they basically said, if you see a best before date, there’s no risk. If it doesn’t look good, or smell it or taste good, then throw it out. But if it smells, looks, tastes fine to you, you’re not putting yourself at risk for any reason. And I would love to get to a point in the US where we have standard labels and we can be saying the same thing to consumers. Again, it’s sort of what I’m doing anyway, in my life now, but it’d be really nice to make it a lot easier for everyone.

Jacob Sweet: Along those lines, you mentioned the UK as a country with a great food labeling law. I know your work with the food Atlas Project is finding great laws in different states and countries around the world and recommending them to different governments. Can you describe a little bit about your work with the food Atlas project and what your goals are there?

Emily Broad Leib: Yeah, so we’ve had years of experience with the US laws and how they relate to food waste and food donation and food recovery. And in particular, we’ve done a lot of work comparing laws across states. So we knew Massachusetts, organic waste bans, which I mentioned earlier is really good. Connecticut has one, that’s fine. But you know, we know how they are compared to one another, which were really strong and which could use more work. Because of that, we connected with an organization a few years ago called the Global FoodBanking Network, which is a NGO that provides training and funding and support and networking to food bank and charitable food organizations around the globe, particularly in developing countries. And they said, you know, in many of those countries, there’s questions about the law—there’s like a lack of basic knowledge about what’s allowed and what’s not. And in some cases, the laws are really leading to waste.

So, for example, just giving a couple of countries where this has been an issue. In the US, we talked about date labels. Another big issue in the US is that there’s no standard guidance in our food-safety laws that explains that food can be donated and how that should be done. So the rules vary from state to state and city to city. So if a big company, like a Walmart, or I don’t know, restaurants chain, wanted to standardize their donation programs around the country, they wouldn’t be able to do that, because they’d have to work with every single health inspector in every city and state. So that’s an issue. In India, there’s millions of pounds of food that go to waste because of big events like huge weddings, where it’s very hard to know exactly how many people will attend. Families have to really over order, just in case, you know that these massive numbers of colleagues and family members and neighborhood members and community members might show up. But there’s no liability protection for food that’s donated. So at the end of the night, often that food gets thrown away. In Argentina, there’s actually a tax penalty that companies face when they donate food instead of throwing it away. And this is because when they throw food away, they’re able to claim a credit from the government for the tax that they paid when acquiring the raw ingredients. But when they donate food, they can’t claim that same credit. So they actually, to make the right choice, to make the more charitable and environmental choice of donating food, they have to pay real dollars. They waste real dollars from the business’ books. So there’s like, you know, I could go on. There’s all these examples.

And our work in the Atlas project has been to we, with the Global FoodBanking Network, we connect to food banks in each country. We, with their partnership, begin an investigation to really understand the laws in those countries. And we give them a guide that goes through these key areas of law, we then also give them some recommendations that are now more and more we’re able to base them on, you know, “It looks like you’re having an issue with your liability protection. Here’s a similar country that has a model that you should look at.” And then we publish all of this in a website where there’s an interactive map, and you can start to look at which countries have the best or the weakest policies on each of these different areas. And the other really interesting thing that we found from this work is that despite the very different context across countries—and I would say the recommendations vary from country to country because of those—but the same laws have come up across borders. You know, the first year that we were working on this, we were really open to see what came up in the first five countries. And we really found it was the same core issue. So it was, you know, date labeling, food safety, confusion over what’s allowed, liability protection, tax, either a barrier, like I mentioned in Argentina, or there’s just no benefit, you know. If there’s no benefit to a business to donate, it costs money. They have to train their staff, they have to invest in an extra cooler, or they have to kind of you know, there’s a lot of financial reasons, you would choose not to do that if there’s no economic benefit to do it. And then we’ve also looked at any donation requirements or penalties on throwing food away. And lastly, on grants, or any funding from government that helps to build infrastructure or to incentivize donation, as opposed to landfilling of safe surplus food. So it’s been amazing. I mean, I’ll pause there and see what else you want to talk about with regard to the project.

Jacob Sweet: I guess one thing I’m sort of generally interested in how the food waste landscape looks today, and what you’re sort of projecting out to the future. I know, COVID-19 made food waste a bigger issue in a lot of people’s minds. I know, you mentioned that this administration has been pretty receptive to some of your food waste ideas. And I know the UN Food Summit was just a few weeks ago. What challenges and opportunities do you see moving forward?

Emily Broad Leib: It’s definitely been a crazy time working on—I mean, in food, in general, I should say, you know, the pandemic really exacerbated a lot of pre-existing frailties in our food system. So whether it was food insecurity, which, you know, we already have a really embarrassing rate of food insecurity in this country. So it was about a little over 10% of people in this country that express that they, you know, month to month, don’t know, if they’re gonna be able to put enough food on the table. Food waste was already, you know, 30 to 40% of our food in the US, was already being wasted. And workers throughout the food chain already are suffering from pretty woeful work conditions, in many cases poor pay, unsafe conditions, lack of hazard pay, or paid leave if they are sick or have other issues. So, all of these things got so much worse over the past year and a half. And I think it in some ways, the one bright spot of all of that is that it made all of these issues more visible. And I’ll say in particular, the visuals of seeing people lining up for miles outside of food banks and food pickup locations, while you were watching videos of scenes of onions and potatoes just left to rot on fields, you know, millions of tons of gallons of milk poured out every day. One big issue in dairy was one of the biggest purchasers of milk is schools. And when all the schools closed down and went remote, you’re seeing all this. So there is certainly a renewed kind of both interest in policymakers and in the general public in figuring out some of this. That’s one thing.

I think the next as you mentioned, the UN Food System Summit, put a really big spotlight on systems-wide issues in in food. And I think they’ve looked at a bunch of things. One of the outcomes of the summit was the announcement of a new Food is Never Waste Coalition across countries. And it’s really built on the UN Sustainable Development Goals, which already include reducing food waste as one of the goals under 12.3 of the Sustainable Development Goals.

And then the third thing is that the renewed focus on climate in this country in the new administration. I’d already mentioned that food waste is a huge contributor to climate change and a really unnecessary one. Not that any, you know, climate-change emissions are necessary. But there’s a lot that are really thorny and tricky to figure out how can we continue to provide a service while reducing emissions. Whereas food being wasted doesn’t benefit anyone. There’s kind of shared interests. And it’s really a triple-bottom-line problem. If we can solve it, it’s good for people, it’s good for the planet and good for profit. It creates jobs when we really use food as a resource. So all of that’s combined to kind of make it an exciting time.

I’ll maybe mention like two quick things that are going on. One is that earlier this year, we teamed up with the Natural Resources Defense Council, World Wildlife Fund and ReFED to put out a coordinated US Food Loss and Waste policy action plan. So part of it was we’ve all partnered, we’ve written some things together with each of those groups. But we really felt like the time is now, there’s a lot of momentum, there’s questions coming from Congress and from the administration about what to do and we wanted to be speaking with one voice. And it’s not only our four groups, we also had now, I think more than 60 different signatories to this plan, which includes city government, nonprofits, and then actually industry. So Marriott Hotels, Kroger, Hellmann’s, Unilever. We’ve had a bunch of private sector also sign on in support of the we kind of have five main buckets where we think government policy change in the US can really have an impact. And one cool thing that came out of that was our number one recommendation in our number one bucket was to provide more funding to states and localities to develop more policies around keeping food out of the landfill. So these sort of organic waste bans or landfill taxes that make it more costly to throw food away, things like that. There was a bill introduced in Congress that was called the Zero Food Waste Act, that would really pick up on this piece, and if enacted, would provide $650 million to state and local government and partners to kind of develop and implement these policies and build the infrastructure needed to really keep food out of the landfill.

There’s a lot going on in Congress—it’s hard to tell what the prospects are for that—but a piece of it was included in at least one of the House committees reconciliation proposals. So, you know, I think we’ve certainly got it on the radar and on the agenda that this is a really important way to do this. We’re going to see bills coming out in the next few months that look at date-labeling standardization and liability protection. So I think there’s, it’s kind of an exciting time, I think there’s a lot we need to do to really make an impact. But there’s a lot of momentum. And then I’ll say also at the administration level, there’s a cross-agency working group that includes FDA, USDA and EPA, that was previously called the Winning at Reducing Food Waste Initiative. Now it’s sort of more like an interagency collaborative working group on reducing food waste. But they’ve been doing a lot they’ve been, you know, really trying to figure out how to take the next steps and where to provide funding and where to kind of connect the dots or streamline their own policies to make it easier for food to be rescued and recovered and diverted from the landfill.

Jacob Sweet: Seems like there’s a lot of hope on the horizon. And like you said, it’s something that benefits everyone and really hurts no one. Well, thank you so much for taking the time to speak with us today. And I’m sure people will enjoy hearing what you have to say.

This episode of Ask a Harvard Professor was hosted by Jacob Sweet and the season is produced by Jacob Sweet and Niko Yaitanes. Our theme music was created by Louis Weeks. This fourth season is sponsored by the Harvard University Employees Credit Union and supported by voluntary donations from listeners like you. To support the podcast, visit harvardmagazine.com/supportpodcast. If you enjoyed this episode, please consider rating and reviewing us on Apple Podcasts. Contact us with questions at harvard_magazine@harvard.edu

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