Interview by Kira Traylor, originally posted on Harvard Health Policy Review on March 19, 2021
HHPR Editor Kira Traylor interviewed Emily Broad Leib, J.D., a Clinical Professor of Law at Harvard Law School, Faculty Director of the Food Law and Policy Clinic of the Center for Health Law and Policy Innovation, and Deputy Director of the Harvard Law School Center for Health Law and Policy Innovation. As founder of the Harvard Law School Food Law and Policy Clinic, Broad Leib launched the first law school clinic in the nation devoted to providing clients with legal and policy solutions to address the health, economic, and environmental challenges facing our food system. Broad Leib focuses her scholarship, teaching, and practice on finding solutions to some of today’s biggest food law issues, aiming to increase access to healthy foods, eliminate food waste, and support sustainable food production and local and regional food systems.
Kira Traylor (KT): How did you first get interested in food equity? Was there a particular book, moment, or event that sparked your interest?
I went to Harvard Law School and while I was there I mostly did work in the global human rights field. After graduation, I thought that I was going to do humanitarian law and help rebuild legal systems post-conflict. For a multitude of reasons, I instead accepted a Fellowship doing community-based work in the Mississippi Delta with the goal to bridge the academic and community divide as well as improve economic development and health. I learned from the community I was working with that there were a lot of questions about food. From the consumer side, those questions were largely about access and ability to purchase food; 25% of households in the county didn’t have access to a vehicle and there was no public transportation. On the producer side, there were a lot of small farmers and food producers that wanted to sell within their community but had a lot of legal questions. While there, I started reading a lot about this area of law and found that there were many people working on food systems issues but not looking at it from a legal angle, as well as looking at how the law is helping and hindering these goals for the system. I really carved out this space and now teach and engage students in working in this field.
KT: Can you give an overview of the Harvard Law School Food Law and Policy Clinic? What are some of the clinic’s most notable achievements?
The clinic is an action learning program at Harvard Law School with three main goals. Firstly, we teach students in the classroom about laws that regulate the food system. Something very interesting about food is that it’s regulated from many different angles, including regulations from food safety, labeling, and first amendment protection in regards to labeling restrictions and requirements. Furthermore, environmental regulations play a role through subsidies, support for agriculture, and state and local regulations in food access and food security. Second, the goal is to teach students about all of these pieces and then help them apply them through a work component. We take on clients that are either nonprofits, startups, or government agencies, and students are required to produce deliverables for these clients because we truly believe that they are trying to improve outcomes for the food system. Students are able to learn about the scale of doing this work through policy and systemic change while having a real-time impact because we are putting research and resources into the hands of the groups that are pushing to make these changes. Our third field of work is building a field of food law and policy. In particular, my work has been in building coalitions and associations that help with the infrastructure of this field. For example, we have a coalition of seven law schools that work together on putting out up-to-date information about the U.S. Farm Bill and changes to it. We hold an annual event that brings together law students from all over the country that are interested in food law so that they can learn, network, and hear from experts in the field. In terms of the work that we focus on, it centers around four main topics that shape our work. These include food access and nutrition, sustainable and equitable food production (such as the environmental and climate impacts of food), community-led systems change (bringing out resources to local community coalitions that have an idea for change), and food waste and food recovery. We focus on each of these four areas and have active projects going on about them at any different time.
KT: What does the future of food security look like in the United States? Are we progressing towards a more equitable future?
It is hard to say because of the influence of COVID-19. There is a really big problem in the food system because the benefits and the burdens aren’t equitably shared. The people who benefit from the current system are big farms owned by white, male land-owners, and not women, black and farmers of color, small community-level food producers, and entrepreneurs. Also, the burdens aren’t equitably distributed. We have high rates of food insecurity and have seen a little bit of a roller coaster. During the 2008 recession food insecurity rates went up to 15%, which is extremely high. Rates then went down to about 10% right before the COVID-19 pandemic and then they skyrocketed because of the economic fallout. If you dig into the data, people of color, the elderly, and food workers are disproportionately impacted. Workers throughout the food system are twice as likely to be food insecure than the average American, so in times of crisis, we see a spotlight shed on food insecurity. However, on a whole, we have a very, very inequitable system. Since 2008, we have seen the SNAP program, the largest food assistance program in this country, expand because so many people were out of work. Yet, because the program’s costs increased as more people enrolled, it had a large target on its back within the last few sessions of Congress and the outgoing administration. So, what we have seen over the last 2 years was a series of rules passed by USDA and other agencies to make it increasingly difficult for more people to stay in the program. My concern is that while we have seen rises in program access because of covid, which will later cause a backlash against it once the price is in the rearview mirror. It is really hard to predict right now what the future will look like; we have made some tweaks in the programs to make sure people have access to food during covid, but as a whole inequality has been rising in this country in the food system as it is for economic security more generally. I am normally an optimist and am certainly optimistic about the things we can do, but we are undoubtedly seeing rising inequality in the food system.
KT: What do you see as the biggest problem in achieving food equity today? How should it be addressed?
First is that there is a big challenge because of a political and ideological divide, and it means that there is a lot of work that needs to be done in terms of building a narrative about what the responsibility of the government is to ensure people’s access to food and improving the food system. Recently, we have had trade wars with China and the COVID-19 pandemic which have led to big payments programs for farmers and the data has shown that these payments have been extremely inequitable. I think that another big concern to think about is the question of how we increase equity within these payment programs on the production side. A big project of mine within the past few years has been pushing for the creation of a National Food Strategy. This is not the single solution, but one of the challenges with the food system is that the way that we regulate is very disjointed; there are currently fifteen federal agencies that play some role in regulating food with their individualized lenses. Additionally, there is not a coordinated effort to say what the goals for the food system are and how we are going to achieve them. I think every day that we make policies, there are inherent tensions that do not take into consideration the tradeoffs. For example, there is a priority to keep food prices down because of food security concerns, but conversely, we know over time that the cost of food is not the real cost because there are many external costs such as environmental effects, what food businesses obtain supporting, and the aggregation of wealth. A National Food Strategy could help get input from different stakeholders and have the way that we regulate drive towards those optimal goals as opposed to being disjointed. We published a report in 2017 that was looking at other countries similar to the United States that created a National Food Strategy. This past fall we updated it and concluded that three years ago this would have been a nice thing, but now COVID-19 has made it necessary. The work I do is toggling between the small policy changes and taking a bigger picture lens that looks at where we want to be five to ten years from now as well as coming up with a path to get there.
KT: How has the COVID-19 pandemic affected access to healthy foods? What populations have been impacted the most?
There is no official data yet, but at the end of 2019 the food insecurity rate in the U.S., the number of people in the U.S. who do not have access to enough food to live a healthy lifestyle, was 10% and had been decreasing since 2008. Preliminary estimates from the past few months have now placed it at 20-25%. What’s even more concerning is very low food security, the number of people who at this moment do not have enough food in their household, went from 4% at the end of 2019 to 11% in August. Anecdotally, we have heard the same. I have been doing work with a woman in the city of Boston who, because she realized how much hunger there was in her community, set up a food pantry in her backyard. By the end of December, she was serving 300 individuals. The data and anecdotal stories are showing that there is a massive problem. Additionally, a lot of people have seen photos of the long lines of cars outside of food banks and distribution sites. Similarly again, it is disproportionately Black and Latinx households that are facing high rates of food insecurity, with the numbers rising since the start of the COVID-19 pandemic. For Black households, food security went from 9% to 20%, and for Latinx households from 5% to 19%. Furthermore, food workers themselves do not make a livable wage, another external cost of the food system. Restaurants closing or lessening business has caused food workers to struggle. This is going to be one of the biggest challenges. Another impact of COVID-19 is causing lots of food waste because of the uncertainty of governments limiting businesses. One effort to combat this is the Farmers to Families Food Box Program, which is where the USDA creates contracts with distributors who normally serve the hospitality and food service sector so they can purchase food from farmers and get it delivered. However, we do not know what this will look like with the change in administration but recent stimulus legislation shows that there will be some continuation of a program like this. Also, another group I am concerned about is unauthorized immigrants. This population does not have access to a lot of these programs, such as SNAP, and the outgoing administration put in place the Public Charge Rule which makes the SNAP program a disincentive for immigrants because it could impact their ability to have a more permanent immigration status. This population cannot benefit from SNAP, Medicaid, and other programs. Additionally, they are the people who have a lot of essential roles in food.
KT: How have food system workers been disproportionately impacted by COVID-19?
Across the food system, we’ve seen workers in meat, poultry, agriculture, and grocery stores face disproportionate impacts of COVID-19. From the first day of the pandemic, these workers have continued working to keep the food system flowing, placing a big toll on their health as a whole. According to the work of Leah Douglas at the Food and Environmental Reporting Network (FERN), 78,733 food workers across meatpacking, food processing, and farms tested positive for COVID-19 and roughly 350 died, which is much higher than other sectors of the economy. This is largely because people had to come into work when procedures were not put in place. OSHA is supposed to create regulations for workplace hazards but did not create any mandatory standard for these jobs, so these food businesses had nothing to follow. Even in cases where they did issue enforcement against companies, they did it 6 months after a majority of the illness and death occurred. In September, OSHA gave Smithfield Plant and JBS Plant small fines for deaths and how workplace safety was handled in March and April. However, this is not a deterrent if you are addressing a problem after the fact. California, a state institution, fined ten times what OSHA, a federal institution, did. That said, we have learned a lot and in some cases, there is definitely a greater use of PPE and more standards put in place. Nonetheless, it is still a hard-hit sector with workers who often have the least, including unauthorized immigrants who do not want to speak out and marginalized groups who do not have a lot of leverage to advocate for themselves.
KT: What lesson can the U.S. agricultural industry take from COVID-19?
One big lesson was regarding the lack of a pandemic plan in the food sector, which was revealed in reporting by ProPublica. This was foreseeable; we did not know when or what it was going to be, but we knew this would happen. However, the food sector chose not to do anything. This was largely because of its structure, as it is very diffused and composed of many businesses and industries. Therefore, one big takeaway is that there needs to be more of a plan for natural disasters. Another lesson is that there has been programming during COVID-19 that would be beneficial to continue. One big success would be the implementation of universal meals for schools. Typically, for meals to be offered to students, they would either have to be low income or the school as a whole has to be enrolled in the Community Eligibility Program. There have been calls for years to implement universal free school meals, as it would get rid of the stigma and administrative burden. There have been countless stories of students not being unable to eat or afford school food. This would be amazing if this problem continues being implemented post-pandemic and has shown that it can be done. Another lesson has been the quick rollout of online access to the SNAP program. Since 2014, USDA has been piloting this program but now every state is allowing online snap purchases. However, a large issue is that in a lot of those states in the beginning the only vendors were Walmart and Amazon. If this continues, it would be a bad outcome of the pandemic because the two biggest retailers would be able to continue amassing wealth and power and smaller producers would be left behind. Additionally, in the recent stimulus legislation that passed, there was an increase in SNAP benefits. SNAP is an economic multiplier; every $1 we distribute in SNAP benefits leads to $2 in the community. Additionally, past USDA programs for distributing food have typically consisted of processed goods. The USDA through the Farmers to Families Food Box Program has finally shown that they can do the purchasing, procurement, and distribution of fresh produce.
KT: What food policy changes do you hope the Biden-Harris administration will implement?
Remove the unfair and inequitable snap rules, institute universal free meals for foods, implement a National Food Strategy, and ensure more safe food is donated by broadening some of the benefits to farmers and shipping companies. Also, state and local governments are bearing the brunt of COVID-19 in the food context. In Boston, the emergence of these backyard food pantries has arisen because the need is so great. In the federal government response, none of it has addressed the funding shortfalls of state and local government to support needs such as food security, food access, and supporting food producers. I hope that in the new administration there is a way to prioritize these important issues. In terms of food workers, OSHA in this current administration has not been responsive to complaints, as there was no standard for food workers and late response times to complaints, so there is lots of rebuilding that needs to happen in this agency. A few of my dream changes are reduced consolidation in the food and agriculture sector and less discrimination in the food sector.
KT: Do you have any current or upcoming research projects that you would like to share?
We just published a National Food Strategy report and the materials are on the website foodstrategyblueprint.org. Right before the holidays, we released executive summaries of this report that target the current administration and Congress. Additionally, in February we released a report where we analyzed the Farmers to Foodbox program, suggesting how it can continue in the future, how to support more small producers, women, farmers of color, and how we make sure the targeting of where food is distributed matches the need. Thirty different stakeholders were interviewed such as farmers, distributors, food banks, local governments, and media workers. Furthermore, last Farm Bill we put out a series of reports that showed changes we wanted to see and score reports for each draft. Currently, we are working to publish reports in 2021 that provide a roadmap that addresses the current challenges of the Farm Bill and how to make the food system better for the environment, health, and climate. Additionally, we are analyzing food laws across the world that relate to food donation. Last summer, we published the first five countries and have ten more coming out in the next few months. Within the report, we analyze their laws about donating safe surplus food and provide recommendations showcased in an interactive map.
KT: Is there anything else you would like to add?
Not specific to food, but over the fall I ran a lecture series with a colleague of mine, Professor Martha Minow, featuring colleagues from across the law school speaking about how laws are changing due to COVID-19. At the end of the series, students wrote blog posts about how law is impacted by the COVID-19 pandemic.
