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The Implementation of the Food Safety Modernization Act and the Strength of the Sustainable Agriculture Movement

Published online by Cambridge University Press:  06 January 2021

Samuel R. Wiseman
Samuel R. Wiseman*
Affiliation:
Florida State University College of Law. J.D., Yale Law School; B.A., Yale University
*
Email: [email protected]
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Abstract

In the wake of growing public concerns over salmonella outbreaks and other highly publicized food safety issues, Congress passed the FDA Food Safety Modernization Act in 2011, which placed more stringent standards on food growing and packaging operations. In negotiations preceding the Act's passage, farmers of local, sustainable food argued that these rules would unduly burden local agricultural operations or, at the extreme, drive them out of business by creating overly burdensome rules. These objections culminated in the addition of the Tester-Hagan Amendment to the Food Safety Modernization Act, which created certain exemptions for small farms. Proposed Food and Drug Administration (FDA) rules to implement the Act threatened to weaken this victory for small farm groups, however, prompting a loud response from small farmers and local food proponents.

The FDA's second set of proposed rules, issued in September 2014 in response to these and other complaints, were, perhaps surprisingly, responsive to small farmers' concerns. Using comments submitted to the FDA, this article explores the responses of the agriculture industry and public health organizations, as well as small farm groups, consumers of local food, and sustainable agriculture interests (which, for simplicity, I alternately describe as comprising the “sustainable agriculture” or “small farm” movement), to three aspects of the FDA's proposed rules—involving manure application, on-farm packing activities, and exemptions for very small farms—to assess the strength of the sustainable agriculture movement. The rules involving manure application and on-farm packing, it turns out, reveal little about the independent political strength of the local food movement, as large industry groups also objected to these provisions. But for the third issue discussed here—exemptions for very small farms—the interests of sustainable agriculture groups were directly opposed to both industry and public health organizations, and yet prevailed. This suggests that the high salience of locavore and “slow food” issues might have allowed relatively small, dispersed interests to overcome traditional obstacles to political organization, and that the sustainable agriculture movement has indeed become an effective political force.

Type
Articles
Information
American Journal of Law & Medicine , Volume 41 , Issue 2-3: The Iron Triangle of Food Policy , May 2015 , pp. 259 - 273
Copyright
Copyright © American Society of Law, Medicine and Ethics and Boston University 2015

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References

1 The category of “small” farmers encompasses a range of farm sizes and is perhaps more accurately categorized as a group of small and mid-sized growers, as contrasted with clearly large agribusiness operations. For examples of definitions of farm sizes, see Alida Cantor & Ron Strochlic, Cal. Inst. for Rural Stud., Breaking Down Market Barriers for Small and Mid-Sized Organic Growers 1 n.1 (2009), available at http://www.ams.usda.gov/AMSv1.0/getfile?dDocName=STELPRDC5081306 (noting that the agency's definition of “small farm” includes farms with less than $250,000 in annual sales, but that in this study the authors relied on farmers' own characterizations of their operations as small or mid-sized). Many advocacy groups that commented on the rules represented a spectrum of farm sizes, from the very small, independent farm to the very large agribusiness. See, e.g., Comment from Carolina Farm Stewardship Ass'n on the Proposed Rule for Standards for the Growing, Harvesting, Packing, and Holding of Produce for Human Consumption 1 (Nov. 14, 2013), available at www.regulations.gov/contentStreamer?objectId=090000648147cc92&disposition=attachment&contentType=pdf (noting that its members “range from large-scale produce operations with over 1,000 acres of certified organic farmland” to “less-than-an-acre market gardens”); Comment from Slow Food USA on the Proposed Rule for Standards for the Growing, Harvesting, Packing, and Holding of Produce for Human Consumption 1 (Oct. 31, 2013), available at www.regulations.gov/contentStreamer?objectId=090000648148e54e&disposition=attachment&contentType=pdf (noting that the organization's “supporters include small- and mid-scale, sustainable and organic family farmers ….”).

2 See Foodborne Illness, Foodborne Disease, (Sometimes Called “Food Poisoning”), CDC, http://www.cdc.gov/foodsafety/facts.html#howmanycases (last updated Sept. 23, 2014).

3 See Adult Obesity Facts, CDC, http://www.cdc.gov/obesity/data/adult.html (last updated Sept. 9, 2014).

4 FDA Food Safety Modernization Act (FSMA), FDA, http://www.fda.gov/Food/GuidanceRegulation/FSMA/default.htm (last updated Apr. 26, 2015).

5 See, e.g., FDA Food Safety Modernization Act § 105, 21 U.S.C. § 350h(a)(1)(A) (2012) (directing the FDA to establish standards for the “safe production and harvesting” of raw fruits and vegetables).

6 Id.

7 Id. § 350h(a)(3)(B).

8 See Comment from Carolina Farm Stewardship Ass'n, supra note 1, at 18-19.

9 Schieber, Gregory M., The Food Safety Modernization Act's Tester Amendment: Useful Safe Harbor for Small Farmers and Food Facilities or Weak Attempt at Scale-Appropriate Farm and Food Regulations?, 18 Drake J. Agric. L. 239, 248 (2013)Google Scholar (citing 21 U.S.C. § 350h(f)(1)).

10 See Beyranevand, Laurie J., Balancing Food Safety and Burdens on Small Farms, 28 Nat. Resources & Env't 17, 18 (2013)Google Scholar. One compromise that led to the adoption of the Tester-Hagan Amendment was the addition of the “exemption withdrawal” provisions in the Act. See 21 U.S.C. § 350g(l)(3)(A) (providing that if the Secretary is investigating a “foodborne illness outbreak that is directly linked to a qualified facility” under the Act, and if the qualified facility is exempt from the hazard-analysis and risk-based preventive controls required under the Act, the Secretary may withdraw the facility's exemption after making certain safety-based determinations); id § 350i(f)(3)(A) (providing a similar provision for farms linked to outbreaks).

11 21 U.S.C. § 350h(a)(3)(A).

12 See What's New, Actions Implemented Under the FSMA, FDA, http://www.fda.gov/Food/GuidanceRegulation/FSMA/ucm257986.htm (last updated May 1, 2015).

13 Standards for the Growing, Harvesting, Packing, and Holding of Produce for Human Consumption, 78 Fed. Reg. 3504, 3505 (proposed Mar. 20, 2013) (to be codified at 21 C.F.R. pt. 16, 112).

14 See id. at 3513-17.

15 Current Good Manufacturing Practice and Hazard Analysis and Risk-Based Preventive Controls for Human Food, 78 Fed. Reg. 3646 (proposed Jan. 16, 2013) (to be codified at 21 C.F.R. pt. 1, 16, 106, 110, 114, 117, 120, 123, 129, 179, 211); see also Current Good Manufacturing Practice and Hazard Analysis and Risk-Based Preventive Controls for Human Food; Correction, 78 Fed. Reg. 17,142 (proposed Mar. 20, 2013) (to be codified at 21 C.F.R. pt. 1, 16, 106, 110, 114, 117, 120, 123, 129, 179, 211) (correcting typographical errors, stylistic errors, and a mistake regarding a reference date).

16 Current Good Manufacturing Practice and Hazard Analysis and Risk-Based Preventive Controls for Human Food, 78 Fed. Reg. at 3658.

17 See id. at 3651 (discussing current practices in this area and priorities for improvement).

18 Id. at 3672.

19 As introduced above, for simplicity, I alternately describe this group of advocates as comprising the “sustainable agriculture” or “small farm” movement in this Article.

20 See Comment from Carolina Farm Stewardship Ass'n, supra note 1, at 8, 32, 51; see also Tom Philpott, 4 Foods that Could Disappear if New Food Safety Rules Pass, Mother Jones (Nov. 6, 2013, 7:00 AM), http://www.motherjones.com/tom-philpott/2013/11/will-new-food-safety-law-small-farms-organic-FSMA.

21 Release: FDA's Revised Draft Food Safety Rules for Farms Responsive to NSAC's Concerns, Nat'l Sustainable Agric. Coal. (Sept. 19, 2014), http://sustainableagriculture.net/blog/release-fdas-revised-draft-food-safety-rules-for-farms-responsive-to-nsacs-concerns.

22 See Standards for the Growing, Harvesting, Packing, and Holding of Produce For Human Consumption, 79 Fed. Reg. 58,434 (proposed Sept. 29, 2014) (to be codified at 21 C.F.R. pt. 112); see also Current Good Manufacturing Practice and Hazard Analysis and Risk-Based Preventive Controls for Human Food, 79 Fed. Reg. 58,524 (proposed Sept. 29, 2014) (to be codified at 21 C.F.R. pt. 1, 16, 117).

23 Nat'l Sustainable Agric. Coal., supra note 21.

24 See, e.g., Ronald A. Cass et al., Administrative Law 8 (6th ed. 2011) (“Public choice theory … focuses on the way in which individual preferences will be aggregated and expressed through public decisionmaking processes ….”).

25 I selected comments that provided the most relevant examples of the broad range of interests and that best demonstrated how these interests differed and converged. This Article does not comprehensively describe the comments.

26 Recent farm bills also suggest that small farm influence might be expanding. The 2002 Farm Bill created the Farmers Market Promotion Program, which provides grants for “assisting in the improvement and expansion of[] domestic farmers' markets, roadside stands, community-supported agriculture programs, and other direct producer-to-consumer market opportunities.” Farm Security and Rural Investment Act of 2002, 7 U.S.C. § 3005(b)(1)(A) (2012). The broader Farmers Marketing and Local Food Promotion Program (FMLFPP) added by Congress in 2014 provides grants to a larger set of participants, including those who help farmers gain access to consumers. For a summary, see Farmers Market and Local Food Promotion Program, Nat'l Sustainable Agric. Coal., http://sustainableagriculture.net/publications/grassrootsguide/local-food-systems-rural-development/farmers-market-promotion-program (last updated Apr. 2015).

27 Standards for Growing, Harvesting, Packing, and Holding of Produce for Human Consumption, supra note 13, at 513 (providing a nine-month “minimum application interval”).

28 Id.

29 Id. at 511.

30 Id. at 516.

31 Comment from Nat'l Sustainable Agric. Coal. on the Notice of Intent to Prepare an Environmental Impact Statement for the Proposed Rule, Standards for the Growing, Harvesting, Packing, and Holding of Produce for Human Consumption 19 (Nov. 15, 2013), available at http://sustainableagriculture.net/wp-content/uploads/2008/08/NSAC-EIS-Scoping-Notice-Comments-FINAL-11-15-13.pdf.

32 Id.

33 See id. at 22.

34 See, e.g., id. (“In practice, however, the Rule may create a preference for conventional growing due to its restrictions on raw manure and compost application, and the Rule's corresponding preference for synthetic fertilizers. These preferences will severely compromise the ability of certified organic producers to comply with the National Organic Program regulations.”); see also Comment from Ne. Sustainable Agric. Working Grp. on the Proposed Rule for Standards for the Growing, Harvesting, Packing, and Holding of Produce for Human Consumption 7 (Nov. 26, 2013), available at, www.regulations.gov/contentStreamer?objectId=090000648147f41a&disposition=attachment&contentType=pdf (“Because the biological soil amendment standard requirements directly conflict with NOP regulations … [c]ertified organic producers would be forced out of compliance with NOP regulations ….”).

35 The FDA's proposed rules defined contact between soil and crops differently than the USDA, providing that crops that did not come into contact with manure during application but later contacted the manure-amended soil required a nine-month wait.

36 Compare Standards for the Growing, Harvesting, Packing, and Holding of Produce for Human Consumption, 78 Fed. Reg. 3504, 3637 (proposed Jan. 16, 2013) (to be codified at 21 C.F.R. pt. 16, 112) with 7 C.F.R. 205.203(c)(1) (2015).

37 See Comment from Ne. Sustainable Agric. Working Grp., supra note 34, at 6-7 (summarizing the differences between the NOP and FDA rules).

38 See id. at 1.

39 Id. at 6.

40 See Comment from Midwest Organic & Sustainable Educ. Serv., to FDA (Nov. 15, 2013), available at http://mosesorganic.org/wp-content/uploads/Policy/MOSES-comments-on-Produce-rule-Nov-15-2013.pdf.

41 See Comment from Ctr. for Food Safety on the Food Safety Modernization Act Produce Rule (Nov. 19, 2013), available at http://www.nationalorganiccoalition.org/_literature_119611/CFS_Comments_to_FDA_on_the_Food_Safety_Modernization_Act_%28FSMA%29.

42 Comment from Or. State Univ. Extension Small Farms Program, to FDA 3 (Oct. 28, 2013), available at http://smallfarms.oregonstate.edu/sites/default/files/osu_smallfarmprogram_comments_proposed_produce_rule_28oct2013.pdf.

43 Comment from Nat'l Young Farmers Coal. on the Proposed Rule for Standards for the Growing, Harvesting, Packing, and Holding of Produce for Human Consumption 9 (Dec. 15, 2014), available at http://www.youngfarmers.org/wp-content/uploads/2014/12/NYFC-Produce-Rule-Comments-December-2014.pdf.

44 Id.

45 See Standards for the Growing, Harvesting, Packing, and Holding of Produce for Human Consumption, 79 Fed. Reg. 58,434, 58,458 (proposed Sept. 29, 2014) (to be codified at 21 C.F.R. pt. 112).

46 See Comment from Organic Trade Ass'n 8 (Nov. 18, 2013), available at https://ota.com/sites/default/files/indexed_files/OTA_ProduceSafety_Final_11-18-13.pdf (“It's not uncommon for several smaller farms to send their produce to a larger farm with on-site packing sheds where the produce is packed for distribution.”).

47 Id.

48 See Standards for the Growing, Harvesting, Packing, and Holding of Produce for Human Consumption, 79 Fed. Reg. at 58,448-49.

49 Id. at 58,450; see also Standards for the Growing, Harvesting, Packing, and Holding of Produce for Human Consumption, 78 Fed. Reg. 3504, 3540 (proposed Jan. 16, 2013) (to be codified at 21 C.F.R. pt. 16, 112).

50 Standards for the Growing, Harvesting, Packing, and Holding of Produce for Human Consumption, 79 Fed. Reg. at 58,449.

51 Comment from Carolina Farm Stewardship Ass'n, supra note 1, at 1.

52 Id. at 17.

53 Comment from Slow Food USA, supra note 1, at 15. The language used in Slow Food USA's commentary was similar to twenty-six other submitted comments. See id.

54 See Comment from Ohio Ecological Food & Farm Ass'n on the Proposed Rule for Standards for the Growing, Harvesting, Packing and Holding of Produce for Human Consumption (Nov. 15, 2013), available at www.regulations.gov/contentStreamer?objectId=09000064814844b5&disposition=attachment&contentType=pdf.

55 See, e.g., Comment from Ne. Sustainable Agric. Working Grp., supra note 34, at 18 (“Packing and Holding Someone Else's Fruits and Vegetables Should Not Make a Farm a “Facility.”); Comment from Pa. Ass'n for Sustainable Agric. on the Proposed Rule for Standards for the Growing, Harvesting, Packing, and Holding of Produce for Human Consumption (Nov. 14, 2013), available at www.regulations.gov/contentStreamer?objectId=09000064814801d2&disposition=attachment&contentType=pdf (“In the ‘farm’ definition, FDA should … [i]nclude packing (and packaging) and holding of others' RACs ….”).

56 Comment from Cal. Farm Bureau Fed'n 1 (Nov. 22, 2013), available at http://www.regulations.gov/contentStreamer?objectId=09000064814933d2&disposition=attachment&contentType=pdf.

57 See Standards for the Growing, Harvesting, Packing, and Holding of Produce for Human Consumption, 79 Fed. Reg. 58,434, 58,439 (proposed Sept. 29, 2014) (to be codified at 21 C.F.R. pt. 112) (explaining that under the “amended proposed definition of ‘farm,’ farms that pack or hold produce [raw agricultural commodities (RACs)] that are grown on a farm that is under a different ownership would no longer necessarily be ‘farm mixed-type facilities’ subject to the requirements of the Preventive Controls for Human Food regulation”); see also Current Good Manufacturing Practice and Hazard Analysis and Risk-Based Preventive Controls for Human Food, Supplemental Notice of Proposed Rulemaking, 79 Fed. Reg. 58,476, 58,532 (Sept. 29, 2014) (“We tentatively conclude that it is appropriate for packing and holding of RACs, including produce, conducted on farms to remain within the farm definition. This would result in packing and holding of covered produce being subject to the proposed produce safety rule, regardless of whether the activity is conducted on the farm's own produce or whether the activity is conducted on others' produce.”).

58 Standards for the Growing, Harvesting, Packing, and Holding of Produce for Human Consumption, 78 Fed. Reg. 3504, 3505 (proposed Jan. 16, 2013) (to be codified at 21 C.F.R. pt. 16, 112).

59 Comment from Nat'l Sustainable Agric. Coal. on the Proposed Rule for Standards for the Growing, Harvesting, Packing, and Holding of Produce for Human Consumption 4 (Nov. 15, 2013), available at http://sustainableagriculture.net/wp-content/uploads/2008/08/NSAC-Produce-Rule-Comments-FINAL-11-15-13.pdf.

60 See, e.g., Comment from Carolina Farm Stewardship Ass'n, supra note 1, at 22 (“The exclusion from the coverage of the Produce Rule for farms with gross sales under $25,000 should be triggered based on sales of covered produce, not sales of ‘all food.’”); Comment from Midwest Organic & Sustainable Educ. Serv., supra note 40, at 4 (“The $25,000 Gross Sales Exemption Should be Retained, But Modified to Apply Solely to Covered Produce as Provided by FSMA”); Comment from Nat'l Organic Coal. on the Proposed Rule for Standards for the Growing, Harvesting, Packing, and Holding of Produce for Human Consumption 4 (Nov. 14, 2013), available at http://www.regulations.gov/contentStreamer?objectId=0900006481488635&disposition=attachment&contentType=pdf (“NOC believes that the exemption for farms with $25,000 or less in gross sales should be based on the value of covered produce, not all food.”); Comment from Ne. Sustainable Agric. Working Grp., supra note 34, at 14 (“Establish an Exemption for Facilities With an Average Annual Monetary Value of Covered Product of $25,000 or Less”); Comment from Or. State Univ. Extension Small Farms Program, supra note 42, at 5 (“This should be changed so that the income threshold is based only on food covered by the rule.”); Comment from Slow Food USA, supra note 1, at 3 (“The $25,000 Gross Sales Exemption Must be Fixed to Apply Solely to Covered Produce as Provided by FSMA.”).

61 Comment from Nat'l Sustainable Agric. Coal., supra note 59, at 45-46.

62 Comment from Midwest Organic & Sustainable Educ. Serv., supra note 40, at 4.

63 Comment from Ne. Sustainable Agric. Working Grp., supra note 34, at 14.

64 See Standards for the Growing, Harvesting, Packing, and Holding of Produce for Human Consumption, 78 Fed. Reg. 3504, 3505 (proposed Mar. 20, 2013) (to be codified at 21 C.F.R. pt. 16, 112).

65 Comment from Am. Farm Bureau Fed'n 10 (Nov. 21, 2013), www.regulations.gov/contentStreamer?objectId=090000648148ebec&disposition=attachment&contentType=pdf.

66 See Comment from Cal. Farm Bureau Fed'n, supra note 56.

67 See, e.g., Comment from Fla. Dep't of Agric. & Consumer Servs. (Nov. 9, 2013), http://www.regulations.gov/contentStreamer?objectId=090000648148e47f&disposition=attachment&contentType=pdf; Comment from Mass. Dep't of Agric. Res. 1 (Nov. 22, 2013), http://www.regulations.gov/contentStreamer?objectId=09000064814915ba&disposition=attachment&contentType=pdf (“FSMA should be unified with NOP ….”); Comment from Wash. State Dep't of Agric. (Nov. 6, 2013), http://www.regulations.gov/contentStreamer?objectId=0900006481472eb3&disposition=attachment&contentType=pdf.

68 Comment from Produce Mktg. Ass'n on Standards for the Growing, Harvesting, Packing, and Holding of Produce for Human Consumption 2 (Nov. 15, 2013), www.regulations.gov/contentStreamer?objectId=090000648147f68b&disposition=attachment&contentType=pdf.

69 Id. at 40.

70 Comment from Am. Pub. Health Ass'n on the Proposed Rule for Standards for the Growing, Harvesting, Packing, and Holding of Produce for Human Consumption 1 (Nov. 18, 2013), www.regulations.gov/contentStreamer?objectId=090000648148846a&disposition=attachment&contentType=pdf.

71 Id. at 6.

72 Comment from Consumers Union on Standards for the Growing, Harvesting, Packing, and Holding of Produce for Human Consumption 1 (Nov. 22, 2013), http://www.regulations.gov/contentStreamer?objectId=090000648148ed8b&disposition=attachment&contentType=pdf.

73 Id. at 2.

74 Comment from STOP Foodborne Illness on Standards for the Growing, Harvesting, Packing, and Holding of Produce for Human Consumption, §112.21 1 (Nov. 22, 2013), www.regulations.gov/contentStreamer?objectId=0900006481493643&disposition=attachment&contentType=pdf.

75 Id. at 8.

76 Comment from Fla. Fruit & Vegetable Ass'n 4 (Nov. 13, 2013), http://www.regulations.gov/contentStreamer?objectId=090000648147a978&disposition=attachment&contentType=pdf; Comment from Tex. Int'l Produce Ass'n 8 (Nov. 14, 2013), http://www.regulations.gov/contentStreamer?objectId=090000648147bc3c&disposition=attachment&contentType=pdf; see also Comment from Fresh Produce Ass'n of the Ams. 3 (Nov. 22, 2013), http://www.regulations.gov/contentStreamer?objectId=0900006481492b93&disposition=attachment&contentType=pdf.

77 Comment from United Fresh Produce Ass'n on Standards for the Growing, Harvesting, Packing, and Holding of Produce for Human Consumption 8 (Nov. 15, 2013), http://www.regulations.gov/contentStreamer?objectId=0900006481482cb7&disposition=attachment&contentType=pdf.

78 Comment from Am. Farm Bureau Fed'n, supra note 65, at 4.

79 Comment from Am. Public Health Ass'n, supra note 70, at 12.

80 Comment from Ctr. for Sci. in the Pub. Int. on Standards for the Growing, Harvesting, Packing, and Holding of Produce for Human Consumption, Subpart I—Standards Directed to Domesticated and Wild Animals 1 (Nov. 14, 2013), http://www.regulations.gov/contentStreamer?objectId=090000648147e644&disposition=attachment&contentType=pdf.

81 Comment from STOP Foodborne Illness, supra note 74, at 3 (“We believe that it is reasonable for FDA to include in the definition of ‘farm’ what it is calling a ‘farm mixed-type facility.’ We also agree with the five organizing principles for determining which activities (e.g., harvesting, packing, holding) should be considered within this definition set out in the Preamble ….”).

82 See Standards for Growing, Harvesting, Packing, and Holding of Produce for Human Consumption, 79 Fed. Reg. 58,434, 58,437 (proposed Sept. 29, 2014) (to be codified at 21 C.F.R. pt. 112) (“[W]e are proposing to amend paragraph (a) of proposed § 112.4 to establish that if you are a farm or farm mixed-type facility with an average annual monetary value of produce (as ‘produce’ is defined in § 112.3(c)) sold during the previous 3-year period of more than $25,000 (on a rolling basis), you are a ‘covered farm’ subject to this part, and that if you are a ‘covered farm’ subject to this part, you must comply with all applicable requirements of this part when you conduct a covered activity on ‘covered produce.’”).

83 Comment from Produce Mktg. Ass'n, supra note 68, at 25.

84 Comment from Food Mktg. Inst. on Standards for the Growing, Harvesting, Packing, and Holding of Produce for Human Consumption 4 (Nov. 22, 2013), http://www.regulations.gov/contentStreamer?objectId=090000648149328a&disposition=attachment&contentType=pdf (“This exclusion is not science or risk-based. Produce contamination can occur in any operation that uses unsafe processes and practices.”).

85 Comment from Cal. Farm Bureau Fed'n, supra note 56, at 13.

86 Comment from Am. Acad. of Pediatricians 4 (Nov. 14, 2013), http://www.regulations.gov/contentStreamer?objectId=090000648147f43d&disposition=attachment&contentType=pdf.

87 Comment from STOP Foodborne Illness, supra note 74, at 22.

88 Comment from Nat'l Ass'n of Cnty. & City Health Officials on Food and Drug Administration Standards for the Growing, Harvesting, Packing, and Holding of Produce for Human Consumption (Nov. 15, 2013), www.regulations.gov/contentStreamer?objectId=090000648148323e&disposition=attachment&contentType=pdf.

89 See generally Mark, Seidenfeld, Why Agencies Act: A Reassessment of the Ossification Critique of Judicial Review, 70 Ohio St. L.J. 251 (2009)Google Scholar (describing a range of agency motivations).

90 See Gray Pope, James, Republican Moments: The Role of Direct Popular Power in the American Constitutional Order, 139 U. Pa. L. Rev. 287, 289-90 (1990)Google Scholar.

91 Id. at 291.

92 Id. at 292-93.

93 For further discussion of how salient political issues can incentivize individuals to overcome organizational barriers and participate in political processes, see Spence, David B., The Political Economy of Local Vetoes, 93 Tex. L. Rev. 351, 363 n.55 (2014)Google Scholar.

94 See Press Release, Office of the First Lady, First Lady Michelle Obama, School Children, and FoodCorps Leaders to Plant Sixth Annual White House Kitchen Garden (Mar. 27, 2014), http://www.whitehouse.gov/the-press-office/2014/03/27/first-lady-michelle-obama-school-children-and-foodcorps-leaders-plant-si.

95 See generally Michael Pollan, In Defense of Food: An Eater's Manifesto (2009); Michael Pollan, The Omnivore's Dilemma: A Natural History of Four Meals (2007); Alice Waters, The Art of Simple Food: Notes, Lessons, and Recipes from a Delicious Revolution (2007).

96 See Tai, Stephanie, The Rise of U.S. Food Sustainability Litigation, 85 S. Cal. L. Rev. 1069, 1073-80 (2012)Google Scholar (noting “greater public attention to the [food system]” and describing the growing food movement).