The case pits the National Pork Producers Council and the American Farm Bureau Federation, representing the nation’s leading pork producers—who raise, slaughter, and process meat from pigs for sale across the country—against the state of California.

The plaintiffs, Reuters reported, “are appealing a lower court’s decision to throw out their lawsuit seeking to invalidate a 2018 ballot initiative passed by voters barring sales in California of pork, veal[,] and eggs from animals whose confinement failed to meet minimum space requirements.”

As I explained in a column in April, after the Supreme Court agreed to hear the appeal, that ballot measure, Proposition 12, was adopted in 2018 by nearly two-thirds of California voters. Prop. 12 prohibits confining livestock “in a cruel manner” and requires livestock animals whose meat, offspring, or eggs will be sold in California to be confined in spaces large enough that they have sufficient room to lie down, turn around, or spread their wings. Those found to have violated the law could face fines and possible jail time. 

As California’s Department of Agriculture explains, the law applies to “animals raised on farms within or outside of California.” Given that very few pork producers are based in California—the state imports more than 99% of its pork—the intended and actual impact of the law will be borne by farmers raising livestock on farms outside of California.

What’s more, although Californians consume around 15% of the nation’s pork, only around 4% of pork producers nationwide currently meet California’s standards. In other words, Prop. 12 deems 96% of the pigs raised by farmers across the country to have been raised “in a cruel manner,” and their meat, hence, cannot be sold in California. Prop. 12, then, could dramatically curtail or even effectively ban the sale of pork in California while harming the national economy and farmers and consumers in states across the country.

The lawsuit the Supreme Court heard this week asks whether California’s Proposition 12 violates the dormant Commerce Clause by impermissibly interfering with animal agriculture in the states that provide pork to buyers in California—from restaurants to grocers to everyday consumers. As I’ve explained, the term “dormant Commerce Clause” means “that because Congress has plenary authority over interstate commerce under the Commerce Clause, individual states necessarily lack such power”—hence the clause’s dormancy as pertains to state governments.

Notably, one of the primary reasons for including a Commerce Clause in the federal Constitution, leading scholars have explained, is that in the years between the signing of the Declaration of Independence and the adoption of the federal Constitution, “[s]tates [had] erected an assortment of trade barriers to protect their own businesses from competing firms in neighboring states.”

In highlighting their arguments as they pertain to the Supreme Court’s relevant dormant Commerce Clause jurisprudence, the pork producers’ June 2022 brief to the Supreme Court declares:

A state law runs afoul of the negative implications of Congress’s power ‘[t]o regulate Commerce among the several States’ if its ‘practical effect’ is to ‘control [commercial] conduct beyond the boundaries of the State,’ even if the law is ‘triggered only by sales’ occurring ‘within the State.’ A state law also is unconstitutional if it imposes a burden on interstate commerce that is ‘clearly excessive in relation to the putative local benefits.’ (internal citations omitted)

During oral arguments this week, Timothy Bishop, attorney for the pork producers, explained to the Supreme Court justices that Prop. 12 is unconstitutional under both of the above prongs. “Proposition 12 violates the Commerce Clause almost per se because it’s an extraterritorial regulation that conditions pork sales on out-of-state farmers adopting California’s preferred farming methods, for no valid safety reason,” Bishop told the Supreme Court. “Proposition 12 also… burdens interstate commerce for no local benefit.”

The Biden administration agrees. It rightly sided with the pork producers, asserting in an amicus brief “that states cannot ban products ‘that pose no threat to public health or safety based on philosophical objections.’”

In questions to attorneys during Tuesday’s oral arguments, the Los Angeles Times reported this week, Supreme Court Justices appeared “wary” and “skeptical” of Proposition 12, “warning it could set off a wave of state laws that put a wide array of restrictions on products moving nationwide.”

Justices across the political spectrum envisioned ways states could retaliate against each other should they reject the pork producers’ arguments and uphold the California law. “Progressive Justice Elena Kagan wondered what would happen if Democratic states banned the sale of goods made by non-unionized workers,” Yahoo! News reported. “Her conservative colleague Amy Coney Barrett imagined that [some states] would ban goods from companies that did not fund medical care for their transgender employees.”

Importantly, the report also notes, the case has forced the nine justices to “ponder the criteria that would allow comparable cases to be resolved in the future.”

These are exactly the right questions for the Supreme Court to ask. Years ago, I pondered what a related California animal-rights case could ultimately mean for the nation’s food economy. I used a hypothetical example of drought conditions—which are terrible and worsening in California—and what might happen if other states were to ban sales within their borders of foods grown or produced in states experiencing drought conditions.

“If California may dictate standards for raising animals in other states, then any state—in keeping with the hypothetical, let’s say Iowa—could pass a law that prohibits, say, farmers from raising crops in drought-stricken areas,” I wrote. “The justification? It’s not a good use of water, and water should be conserved (rather than exported in the form of produce) in times of drought. Since California is in the midst of a decade-long drought, then that rule would effectively bar California crops from Iowa. If a handful of other states followed, then the rule could doom California agriculture.”

Such a ban might apply to everything from California’s oranges to its avocados, beef, poultry, olives, and wine—to name just a few foods. Depending on the number and size of the state or states that were to adopt such an anti-drought law, the impact on California’s farming communities and the state’s economy as a whole could be devastating. That’s why this case will likely have wide-ranging implications beyond the pork industry and even beyond California.

As I explained in a 2010 Chapman University Law Review article, The “California Effect” & the Future of American Food: How California’s Growing Crackdown on Food & Agriculture Harms the State & the Nation, laws passed in California can impact every American. Much of that is due to the state’s clout, stemming from its massive geographic size and enormous economy. But it’s just as true that California has a growing number of food laws—from Prop. 12 to the state’s equally unconstitutional foie gras ban—that force businesses located in other states to adhere to those California laws, even if laws in their states are less restrictive.

As I detailed to the Supreme Court in an amicus brief submitted on behalf of Reason Foundation and the Cato Institute in 2018, upholding a California animal-rights law that seeks to regulate farm conditions in 49 other states risks and “could ultimately destroy our national market in food.”

That market is essential to America’s past and present, and—if the Supreme Court rules in favor of the pork producers later this year—will be to its future as well.

The post Supreme Court hears pork producers’ challenge to unlawful California animal rights law appeared first on Reason Foundation.

The FDA’s plans amount to a course incorrection of sorts. And, once again, protectionist regulations pushed by many of the world’s biggest food producers—food standards of identity (SOIs)—are largely to blame.

Government-mandated SOIs establish specific rules under which a number of foods may be labeled using a given name. These standards were first introduced before World War II, I explain in my book Biting the Hands that Feed Us: How Fewer, Smarter Laws Would Make Our Food System More Sustainable, ostensibly to establish uniformity, boost consumer confidence, and prevent fraud in food production and sales.

Today, between the United States Department of Agriculture and FDA, hundreds of federal food standards of identity exist. For example, the USDA’s food standard of identity for hot dogs states that the tubular-shaped meat food must contain “raw skeletal muscle meat,” may (but need not) contain “poultry skin,” and may not contain more than 30 percent fat.

Though the goals of SOIs may seem laudable in theory, what they have done instead in practice is to obfuscate and confuse consumers and to offer them fewer choices while protecting large, powerful, incumbent industry players.

“Standards of identity often make the foods consumers buy subject to politicized meanings proffered by food industry lobbyists and regulators,” I explained last year. “That’s because they are typically established with the input of the biggest players in an industry to protect those members of that industry from smaller upstarts. Protectionism is a lousy basis for any law—but particularly one that rewrites the dictionary while restricting the First Amendment rights of food manufacturers.”

That’s exactly what’s happening here. Powerful dairy interests are pushing the FDA to limit their competition by forcing the government to redefine common words. That’s not just Orwellian and wrong, it violates the Constitution.

“The FDA knows it is unconstitutional to ban terms such as ‘coconut milk,’ ‘almond milk,’ and ‘oat milk,” wrote Justin Pearson, an attorney with the Institute for Justice, in an op-ed last month. “But because large and powerful groups have asked for the ban, the FDA is planning to impose it anyway.”

Pearson knows of what he speaks. In fact, he’s the first attorney ever to win a First Amendment lawsuit against a government entity over a food standard of identity. That victory in federal court involved an all-natural Florida creamery that refused to add synthetic vitamins to its skim milk, which violated the state’s SOI for skim milk. I worked with Pearson and served as the creamery’s expert witness in that case.

Pearson argues correctly the FDA “knows” its proposed actions are unconstitutional, pointing to the agency’s own words on the topic in the wake of the Florida skim-milk case. So why has the agency changed course?

“[P]owerful dairy groups like the National Milk Producers Federation have attempted to use their considerable clout… to compel the FDA ‘to bar foods such as almond milk, soy milk, and other plant-based drinks from using the term ‘milk’ to describe their non-dairy milk,” I wrote in a 2017 Reason.com column.

As I also teased at the time, should the FDA really decide to take a hard look at whom may use the term “milk” to describe their milk, the cow-milk lobby might not like what the agency finds. After all, why should regulations insist the unmodified term “milk” may only refer to cow’s milk?

Consider first the relevant dictionary definitions of “milk,” which include both “milk from an animal and especially a cow used as food by people” (which could refer to cow, goat, camel, or other animal-derived milks) and “a food product produced from seeds or fruit that resembles and is used similarly to cow’s milk” (which could refer to hemp, coconut, or other plant-based milks). Consider, too, that Americans drink many kinds of animal- and plant-based milks—from cow to goat to almond to coconut, hemp, rice, and soy—and so no one “milk” means “milk” to every consumer.

Given those facts, perhaps instead of prohibiting plant-based milk producers from using an accurate modifier alongside the word “milk” (e.g., ‘almond milk’) to describe their milks honestly, I’ve posited, couldn’t the FDA instead require cow-milk producers to modify their use of the term “milk” with the word “cow,” making that use consistent with every other use of the term (i.e., “goat milk,” “camel milk,” and “soy milk”)?

In 2018, a powerful dairy lobby, the National Milk Producers Federation, told the FDA it would soon “call[] for prompt enforcement actions against misbranded plant-based dairy imitators, as well as for the FDA to amend its regulations to codify its longstanding and well-tailored food labeling policies.”

Despite knowing such actions would be unconstitutional and amount to nothing more than shamelessly protecting powerful dairy interests at the expense of competitors and consumers, the FDA appears it will attempt to do—and no doubt be sued for—just that.

The post FDA targeting First Amendment rights of non-dairy milk sellers appeared first on Reason Foundation.

Juxtaposed against the growing popularity of foraging, though, is a number of stories about people who’ve faced legal consequences for harvesting wild foods. In fact, if you’ve ever picked a blackberry, apple, or dandelion in a park, there’s a very good chance that you broke the law.

In Food Law Gone Wild, along with my book Biting the Hands that Feed Us, I detail cases of people who’ve been fined for foraging on federal, state, and local public lands. These include an elderly Illinois man who was fined for picking dandelion greens in a Chicago-area park and another forager who was fined for picking edible berries in a suburban Washington, D.C. park.

If fining an elderly man for picking dandelions in a park sounds absurd, the origins of anti-foraging laws in this country are even worse. In the American colonial period, the earliest anti-foraging laws sought to push Native Americans off of lands desired by white settlers. After the Civil War, southern states established anti-foraging laws to prevent newly freed slaves from being able to provide sustenance for themselves and their families. Later, conservation advocates pushed anti-foraging laws in newly created state and national parks as a way of protecting land from rural white residents, who the conservation-minded urban elites viewed as incapable stewards of their own lands.

These laws, I told The Guardian in an article published last month on the renaissance of foraging in the Black community today, were grounded in colonialism, racism, and classism.

Today’s laws against foraging don’t exclude people explicitly based on their race and class. Rather, these laws typically rely on fantastical fears that foragers will damage or destroy plant life. But the racist and classist stain of those earliest anti-foraging laws remains. And, as the police murder of George Floyd and other such examples highlight, research shows the people most at risk when police enforce the law are people of color.

America is rightly taking a hard look at police tactics and selective law enforcement. But America has an overcriminalization problem. That means we should reassess not just the way police arrest alleged lawbreakers, but also reconsider many of the very laws that empower police to arrest people in the first place.

Overcriminalization has consequences. As I noted in a recent Reason column that highlighted the police injury and arrest of an elderly man who’d shared food with the homeless and others in need in his community:

Las Vegas, Orlando, Dallas, Houston, New York, Philadelphia, Birmingham, and San Antonio have banned people from sharing food with the homeless and less fortunate. Though public backlash and lawsuits have helped push back against some bans, this month’s events in Charlotte and Orange County show the need for continued vigilance and concerted efforts to eliminate such laws.

And, at a time when most Americans recognize the need for sweeping criminal justice reforms, the examples provided by Bokhari’s remarks and Lemly’s arrest also drive home another important point: because law enforcement necessarily involves employing the power of the state to arrest people—often, as in the case of Lemly’s arrest, through the use of physical force and violence—we shouldn’t adopt any law that isn’t worth using violence to enforce. 

Rampant overcriminalization is why Yale Law School Prof. Stephen L. Carter, for one, cautions his students against “invoking the power of law except in a cause for which they are willing to kill.” That’s just one of many reasons criminalizing the sharing of food with the homeless and less fortunate is abominable. Instead of endangering and arresting good people who share food with the homeless and others in need, we should be celebrating their generosity.

When society criminalizes victimless activities such as sharing food with others in need or picking wild foods in a park, ultimately we choose consciously to require that armed police uphold and enforce those laws. Because the consequences of overcriminalization can be fatal—particularly, as recent history has emphasized, for people of color—we should eliminate any and all such so-called crimes from our criminal code. No one should face the risk of death simply because they picked a berry.

The post Foraging For Berries and Feeding the Homeless Shouldn’t Be Crimes appeared first on Reason Foundation.

Government-mandated food standards of identity (SOIs) establish specific rules for ways some foods may be labeled under a given name. They first came into being in this country in the years leading up to World War II. Since that time, the FDA has established SOIs for nearly 300 distinct foods.

The FDA isn’t alone. The U.S. Department of Agriculture (USDA), which regulates most commercial meat products sold in this country, has established around 80 SOIs for foods it regulates. For a food to be labeled as a “hot dog,” as I detail in my book Biting the Hands that Feed Us: How Fewer, Smarter Laws Would Make Our Food System More Sustainable, its ingredients must comply with specific USDA rules dictating exactly what a hot dog must, may, and must not contain. The SOI requires that any food labeled as a “hot dog”—technically, the USDA standard oddly combines the two words into one: “hotdog”— must contain “raw skeletal muscle meat.” It may (but need not) contain “poultry skin” and pig lips. And it may not contain more than 30 percent fat.

Standards of identity often make the foods consumers buy subject to politicized meanings proffered by food industry lobbyists and regulators. That’s because they are typically established with the input of the biggest players in an industry to protect those members of that industry from smaller upstarts. Protectionism is a lousy basis for any law—but particularly one that rewrites the dictionary while restricting the First Amendment rights of food manufacturers

While supporters claim SOIs such as these establish uniformity, boost consumer confidence, and prevent fraud, another of the main criticisms of standards of identity is that they are hopelessly and needlessly frozen in time. And, as the “hotdog” SOI suggests, such standards can be confusing or even surprising, and rarely reflect a definition of that same food one might find in a dictionary. If the purpose of a dictionary is to provide people with the clear and concise meaning(s) of a word, then standards of identity appear intended to provide something that differs in some important way or ways from those clear and concise definitions.

Against that backdrop, two things are particularly interesting about the FDA’s respective rulemakings for French dressing and frozen cherry pie. First, the agency is proposing to revoke both SOIs. Second, the FDA is doing so because the agency admits, rather explicitly, what critics of SOIs, me included, have said for years: SOIs don’t make sense.

Consider the FDA’s SOI for French dressing, the cloyingly sweet, mildly tangy, orange-hued salad dressing. According to the FDA’s SOI for French dressing, to be labeled as “French dressing,” a food must contain vegetable oil and at least one of vinegar, lemon juice, or lime juice. Ingredients French dressing may contain under the SOI include salt, sugar or other caloric sweeteners, spices, egg, food coloring, MSG, tomato paste or puree, ketchup, and sherry wine.

In proposing to revoke the SOI for French dressing, the FDA declares “the standard of identity for French dressing no longer promotes honesty and fair dealing in the interest of consumers[,] and revoking the standard could provide greater flexibility in the product’s manufacture, consistent with comparable… foods available in the marketplace.” In proposing to revoke its SOI for frozen cherry pies, the agency, using remarkably similar language, notes the SOI is “no longer necessary to promote honesty and fair dealing in the interest of consumers…. [and] revoking the standards of identity and quality for frozen cherry pie would provide greater flexibility in the product’s manufacture.”

To say that a regulation “no longer promotes honesty and fair dealing” is to say that these SOIs are deceptive.

They undermine and upend our traditional understanding about common foods. But they also do something even worse: they stifle innovation. 

The FDA admits that when it writes that revoking the SOI “would provide greater flexibility in the product’s manufacture.” How so? 

Take French dressing. Under the SOI, French dressing need not contain any sugar (nor other caloric sweeteners) because those ingredients are optional. But the SOI does not allow food manufacturers to add non-caloric sweeteners to French dressing. Hence, companies that wish to meet the demands of the growing number of consumers who prefer a product sweetened with a non-caloric sweetener (including anything from older choices such as Splenda to more modern options such as erythritol) are prohibited by the FDA’s French dressing SOI from offering these choices to consumers under a “French dressing” label.

While the FDA has been slow to understand the inherent flaws of SOIs, consumers seem to get it. Of the eight comments the FDA had received since December on its proposal to revoke the SOI for French dressing, none opposed the measure. Six individuals spoke out in favor of revocation. Another suggested that perhaps the government might have more important things on which to focus. The lone organization to comment on the proposed rule—the National Federation of Independent Business (NFIB)—made the reasons for its support of revocation crystal clear.

“Supply and demand in the free market generally will result in a good range of quality and prices for goods, including French dressing,” NFIB executive vice president and general counsel David Addington writes in the group’s witty comments in support of revoking the standard of identity for French dressing. “In the rare cases in which the operation of the free market does not protect consumers because a business engages in conduct with respect to French dressing that is fraudulent and poses a risk to health, state consumer protection statutes and tort law provide the appropriate remedy, without the need for federal regulations.”

As one might suspect, neither French dressing nor frozen cherry pies are unique in this regard.

“It’s not that some standards of identity are outdated,” I write in Biting the Hands that Feed Us. “The very idea of standards of identity is, itself, outdated. Food labels should be open to any and all statements about a food that aren’t demonstrably false.”

While the French dressing and frozen cherry pie rulemakings amount to little more than small change, they come as part of a broader FDA effort to review its SOIs. Though that sounds promising, the agency (along with the USDA) should do more than merely review its hundreds of SOIs. In order to eliminate protectionism, foster innovation, stop undermining traditional understandings of food, and benefit consumers, both the FDA and USDA should eliminate all food standards of identity at once.

The post FDA and USDA Should Eliminate All Food ‘Standards of Identity’ appeared first on Reason Foundation.

Whether as a treat for the common man or an excuse to slum it for the well-to-do, the lobster roll was never terribly hip, edgy, or controversial. Until last year, when a Brooklyn artist and chef reinvented the lobster roll as delicious underground performance art.

Using the moniker Dr. Claw, the thirtysomething chef began boiling batches of lobsters in his home kitchen and using the meat in rolls he sold-without the requisite licenses and permit-in Greenpoint, a Brooklyn neighborhood populated by Polish Americans and an ever-increasing numbers of hipsters. In order to skirt the law, Claw-whose real name is widely published but whom I chose not to identify here so that he could speak freely to me-devised a system that would be the envy of even the most enterprising drug dealers on The Wire. Claw’s customers first had to friend him on Facebook. Then, if they checked out, Claw would provide the potential customer with a phone number, exchange texts when the roll was ready, and hand off the goods in a plain brown bag.

Claw says he initially sold the food out of his apartment. Only after he had to move his sales to the streets did he go from mere chef-entrepreneur to the self-styled “lobstah pushah.” “I can’t take credit for any of it, I’ve got to be honest,” Claw said in an early October interview conducted over coffee and donuts at the Peter Pan Bakery in Greenpoint. “I was forced to do it on the street because the fire department came and my landlord didn’t want me to do it at my place. So I was all bummed out. I mean, half of [the draw of buying lobster rolls] was coming into my nautical-themed apartment. It was literally underground-downstairs-and it was cool.

“And then this kid came up to me and just did this thing-he walked this way and I just walked that way,” Claw says, motioning, “and everything was just born out of that moment. I was like, ‘That kid has clearly bought drugs on the street before. He knows the system.’ I don’t even know how the money just ended up in my hand. He’s got the roll. And we didn’t say a word.”

[Article continues after the video, “Lobsters Invade D.C.!”]

Thus was born Claw’s lobstah pushah persona. He perfected his act with an Ali G-style costume that mixed lobster- and Boston-sports-themed attire and a thick, gold-spray-painted chain holding up a large lobster claw (also spray-painted gold). Dr. Claw was now equal parts “culinary” and “art.” And if the lobster rolls were good enough to hook customers, it was Claw’s performance that kept them coming back.

“You do the cash/crustacean handoff in literally three seconds, and then you’re on your way,” says John Hendrickson, a longtime Greenpoint resident and frequent Dr. Claw customer. “And the rolls were sublime-hot grilled bun, at least half a pound of warm fresh lobster, copious melted butter, and nothing else.”

Sadly, Claw’s success was also enough to place him on the radar of the New York City Department of Health and Mental Hygiene, which regulates food safety in the city. The agency was hot on Claw’s delicious, buttery tail for some months before it finally forced him to shut down his operation in August.

Claw says he can’t envision himself becoming a “legitimate” full-time operation. He balks at the idea of opening up his own mobile food-vending business-more commonly known as a “food truck.” But even if Claw wanted to open up a shiny new food truck in New York City, he simply cannot do so. In fact, no one in New York City can, the result of the city’s dazzlingly draconian vending regulations.

To be fair to New York City, other jurisdictions boast equally stupid food truck laws. In North Carolina, for example, Asheville vendor Justin Smudde of Bandido’s Burritos complains that it’s illegal for a city food vendor operating in a public area to “assemble any kind of food” except hot dogs. “So you can grill the hot dog,” says Smudde. “Boil the hot dog. Put relish on there. Whatever. Chili. You know-whatever you want. For me, I can’t make a burrito on the spot. I can’t grill the meat for the burrito, or any of that stuff, or grill up a tortilla.” In exchange for its beneficence in allowing him to make burritos on private property, North Carolina requires Smudde to obtain a mere four operating licenses.

Lobsters Migrate from NYC to D.C.

Susan Povich owns Brooklyn’s Red Hook Lobster Pound, which supplied Claw with his lobster meat. Povich knows the heartbreak of food truck regulation all too well, having tried and failed to open her own lobster roll truck. “New York has limits on the number of local food [permits] that they issue,” Povich says. “There’s been a waiting list for, like, 25 years.”

Matt Shapiro-an attorney with New York City’s Street Vendor Project, a nonprofit organization that defends the rights of city vendors-explains the distinction between vending licenses, which are widely available, and vending permits, which the city refuses to issue to entrepreneurs. “If you want to become a food vendor you need to have a license, which is like an ID card for yourself, which anyone can get,” says Shapiro. “You have to take a food handling class. And then you’re able to sell food on a permitted food cart or truck.

“You also need to get a permit for your cart or your truck from the Department of Health,” says Shapiro. “But they don’t give out any more permits. The Department of Health has capped the amount of food-vending permits. And you cannot get one. The waiting list is even closed. But it was 10 or 15 years’ wait. It’s impossible to get a food vending permit from the city.…If you want to get a permit for your cart or truck, you cannot do it.”

Surely there must be some way? “No,” confirms Zoe Tobin, associate press secretary with the city health department. “The number of permits is capped under the city’s administrative code,” Tobin explains. “The city council would have to change the administrative code in order for there to be more permits available.” Unless city legislators act, the city’s vendor permit ceiling will stay capped at 3,100 renewable two-year permits and 1,000 seasonal permits.

The only wiggle room: Permits are available for fruit and veggie carts. “They’re called green carts,” says Shapiro. “So if you want to sell fresh fruits and vegetables whole-not cut up or processed in any way-you can get a permit to do that. The problem is, once you get this permit they tell you where you have to sell.”

There’s another option, but it’s both expensive and illegal. “A sort of black market has emerged for people who got permits a long time ago and have had them for years,” says Shapiro. “They sell them at an extremely exorbitant high price to people who want to work. That is illegal, of course, because you’re not allowed to sell a permit in New York. But unfortunately the framework that the city has created has made this a necessity.”

Tobin notes the health department has tried to deal with the problem by making permittees legally responsible for a cart whether or not they operate it. But such a policy is only likely to exacerbate the existing problem by increasing the risks for existing permit holders and, in turn, driving up the black-market price.

Povich-who would rather not plunge into the whole, uncut fruit and vegetable business or buy a permit off someone on the black market-says that even if legit permits magically became available she would not be currently able to sell her products. “I’m not even allowed under New York City law to sell” fish or shellfish from a food truck, says Povich.

While she continues to try to find a way to sell from a food truck in New York City, Povich figured another city might embrace or at least tolerate her idea. She looked south and saw that Washington, D.C.’s comparatively tolerant food truck regulations, which were loosened in 2007, allow vendors to flourish in many parts the city. What once was a wasteland with little more than hot dogs now had room for trucks selling everything from Korean barbecue to Middle Eastern food.

Povich ultimately partnered with a relative-Leland Morris, who has a background in catering-to open up the Red Hook Lobster Pound DC food truck in Washington, D.C. The truck, which began roaming the streets of the nation’s capital in August, was an immediate success. “We were totally caught off guard that first day,” says Morris, Red Hook Lobster Pound DC’s president and co-owner. “I think we ran out of food three times.”

If the truck’s owner was caught off guard, so too were D.C. regulators, who initially told Red Hook Lobster Pound that D.C. regulations, like New York’s, forbade food trucks from selling seafood. Although that setback proved to be temporary, other difficulties emerged. “When we first hit the street, definitely the police were checking us out,” says Morris. “Once they realized we were absolutely permitted, licensed, and everything was signed, we’ve actually had a very great relationship with D.C. police.”

Wheels vs. Bricks

D.C.’s mobile food trucks are subject to different regulations than those governing the traditional stationary vendors that dot the National Mall selling hot dogs and half-smokes. One challenge they face is the district’s antiquated “ice-cream truck” rule. That regulation mandates that a mobile food truck may only stop and sell food when a line of customers is already in place.

In the bygone era when the regulation was written, the signal to queue up came from the loudspeaker of ice-cream truck operators, who would play their familiar jingle at the first sign of children. Today, with the advent of Twitter, complying with the ice-cream truck rule simply requires a well-timed tweet about the food truck’s anticipated location to the truck’s mass of followers. (The lobster truck, for example, boasts more than 11,000 followers on Twitter.)

A greater challenge is the mobile vendors’ contentious relationship with some D.C. restaurants and stationary food trucks, which closely guard what they see as “their” territory. “We had a gentleman, a manager from a restaurant, come out and ask, ‘Why are you parked here?’ ” says Morris. “I just said we were trying to pick up some business from the [hockey] game. He took it as a real personal attack on the restaurant. And I said, ‘Why don’t you go across the street to [a relatively new restaurant there] and ask them why they opened up there?’ In my mind it’s no different. If there’s a vacant retail space, anyone can move into it. Just because there’s one restaurant here doesn’t mean another one won’t open up next door.”

Islam Basha, an assistant manager at a D.C.-area Domino’s Pizza, can’t hide his contempt for the lobster truck parked in a metered space in front of his store in September. “Of course it’s hurting, because it’s right in front of your store,” Basha says. He points to a line of about 30 customers waiting to buy lobster rolls. “Most of those customers were ours.”

Angela Jones, a first-time customer who works near the Domino’s, laughs when I tell her Basha’s claim. Mobile and brick-and-mortar restaurants should be able to coexist peaceably, she tells me. “Why not?” says Jones. “I mean, all the other restaurants in the area do. I don’t think it’s really any different having a lobster truck in front of your store than having it next door in a retail location. I don’t think it makes a difference. Either you want pizza or you want lobster.”

Lobster roll customers “don’t care about what is the quality of the product,” complains Basha. “They just want to eat cheap, you know?” Basha-a man offering two medium two-topping pizzas for less than the cost of one lobster roll-apparently fails to see the irony in his comments.

Such conflicts are common wherever mobile and brick-and-mortar restaurants operate side by side. “A lot of restaurants and businesses view the vendors as a threat because of the competition,” says the Street Vendor Project’s Shapiro. “They don’t want people selling on the streets competing with their stores. You know, our country was founded on the free market and competition. So we really don’t buy that argument.”

Scott Hamilton, a D.C. restaurateur who sells lobster rolls (among other menu items) at Liberty Tree, an attractive, brick-and-mortar, white-tablecloth location in the District’s H Street Corridor, doesn’t buy the argument either. “I probably would catch some flak from other restaurants, but I have no problem with it at all,” he says. “I see it as competition, and there’s competition everywhere. If you’re not better than other people, then you shouldn’t be in business anyway.”

The District’s Department of Consumer and Regulatory Affairs (DCRA) is in the process of recommending new rules that would update the regulations for food trucks. The fight has been playing out in local newspapers and before the DCRA, which has received nearly 2,500 public comments on the matter. “There was a huge surge in favor” of the trucks, says Michael Rupert, communications manager with the DCRA. “It was probably 98 percent in favor.”

Those who call for more tightly regulated trucks, on the other hand, are creative with their rule suggestions. While some want the city council to ban or severely limit mobile vendors, others want to establish a sort of noncompete radius around brick-and-mortar restaurants. Still others prefer limiting food trucks to specially designated vending districts, or want food trucks to face the same sales-tax structure as restaurants. One D.C. food truck owner, who asks not to be identified, says his greatest concern is that the city council will either freeze new applications or implement radius restrictions.

Liberty Tree’s Hamilton, for his part, calls for fair regulations across the board. “As long as [food trucks]-I don’t want to say ‘face the same regulations’ as restaurants,” he says, his voice trailing off. “It’s ridiculous what we go through anyway.” Hamilton should know. A veteran D.C. restaurant owner-the H Street restaurant is his second venture-Hamilton describes the soul- and wallet-crushing six-month regulatory process he went through to open Liberty Tree as a best-case scenario. Hamilton faced numerous expenses, and the delays alone, based on average sales since he opened, cost him “probably at least $200,000” in lost revenue. That startling figure does not include money he paid architects, lawyers, and others. Nor does it include his monthly rent, business taxes, and other expenses.

What’s more, D.C. construction crews working on the street in front of Liberty Tree erected modular concrete barriers that prevented Hamilton from gaining access to his driveway, which he had hoped to turn into a 50-seat patio. When D.C. finally removed the barriers in July-six months after the date Hamilton says the District had estimated-it was too late in the summer for him to open up the patio.

Free Food

Clearly, Washington’s restaurants could stand some serious deregulation. Short of that, there are more immediate reforms that could be adopted within the existing regulatory structure. One way to eliminate unconscionable regulatory delays like the one Hamilton faced would be for the D.C. government to implement a presumption of legality for launching a business. Under such a scenario, regulators could permit restaurants that have incorporated and passed a health inspection to open for business in the event of any government delay of more than a few business days. The District government would immediately begin earning sales and income taxes from the restaurant and its employees-rather than having to wait months or more-while restaurant owners and employees could begin working and benefiting themselves and the broader economy. And the city could still close a restaurant it found to be unsafe and could still demand that the restaurant fix any documented problems.

In many ways such a system already governs food trucks in D.C. Instead of cracking down on the successful food trucks, D.C. should look to those businesses’ success as a reason to cut the red tape that engulfs entrepreneurs who want to launch brick-and-mortar restaurants.

New York, meanwhile, should mimic the best of what D.C. has done so far. Doing this will require a completely new mind-set at city hall, but such a change is long overdue. “I know there are some cities that encourage vending and that see it as a positive aspect of the city,” says the Street Vendor Project’s Shapiro. “But I don’t think New York takes that stance right now.”

In the meantime, what’s a shuttered lobstah pushah to do? Dr. Claw is weighing his options. “It was short and sweet,” he says of his black-market days. “It was real. I didn’t wuss out. I took all the chances and really went for it as an underground operation. So I got a lot of street cred that way. And now everyone’s like, ‘What are you going to do? Are you going to do a food truck?’ ”

But Claw is hesitant to do anything that might be seen as a “watered-down version” of his original vision. He’d like to go back to being Dr. Claw, he says, “which I could do. But they’ll probably get me again. And I don’t know what the fines would be.”

Baylen Linnekin, an attorney, is the founding director of the new nonprofit membership association Keep Food Legal. This column first appeared at Reason.com.

The post The Lobster Underground appeared first on Reason Foundation.

This week Oliver will host his first American network television show, Jamie Oliver’s Food Revolution, a Ryan Seacrest-produced reality series debuting Friday evening on ABC. In a departure from Oliver’s previous American shows, which focused on teaching people who want to cook how do so, Food Revolution is a bold attempt by Oliver to begin forcing every American to cook and buy only the foods he thinks we should eat.

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If this were just the story of a marginal chef with some vague ideas, that might be the end of it. But Oliver and his powerful acolytes have used television to ravage the wallets of too many British taxpayers to take him lightly.

Despite, or perhaps because of, Oliver’s immense and growing visibility, critics are divided over the chef. To some, Oliver is a “national treasure.” But others see Oliver as little more than a “fat-tongued twat.”

The surprising root of this debate has little if anything to do with Oliver’s cooking or his successes in the culinary marketplace. Oliver’s notoriety stems more from his surprising victories as Great Britain’s most successful food lobbyist. Oliver appears to believe there is something deeply wrong with those who don’t dine in his restaurants, buy his publications, watch his TV shows, or think of food as he does. To him, this deficit of character is so egregious and so widespread that only hugely expensive government re-education programs can rectify it.

From the pork protectionism of Jamie Saves Our Bacon to Jamie’s School Dinners, his exposé on “how little government was spending” on school lunches, Oliver has lately taken to Britain’s airwaves to urge government to regulate and spend at a much higher clip. And the British government has responded, adding a billion dollars to its school-meals budget in response to Jamie’s School Dinners.

The “Naked” Days

Oliver first rose to worldwide fame as The Naked Chef, a boisterous hipster everyman who tossed around words like “pukka” with the emphatic and gratuitous self-assurance his American peers let fly “bam” and “yum-o,” and who scooted about late Cool Britannia London from home to fishmonger to ethnic grocer to indie cheese shop and back home to the kitchen. There, Oliver would cook up something wonderful for a requisite stable of attractive fellow twentysomethings who served as the show’s eye candy, studio audience, and fortunate tasters. What was naked about The Naked Chef? With one known exception, naked referred to cooking without embellishing food.

The Naked Chef, which first aired in America in 1999 on the Food Network, quickly and simultaneously went neon and downhill. But for people like me who watched the show, bought Oliver’s books, and went to one of his live demonstrations, The Naked Chef was all one needed to go from culinary imbecile to capable cook in mere months.

The Naked Chef is one example of the good Oliver the entrepreneur has done. Another is Fifteen, a charitable enterprise and restaurant concept Oliver launched in the early 2000s in London (and later franchised in Australia and the Netherlands), in which Oliver hires and trains as cooks young adults who have been homeless, jobless, or struggled with substance abuse. Oliver has also starred in several TV series based on Fifteen.

Oliver’s “Feed Me Better” & “Ministry of Food” Campaigns

A less savory Oliver emerged in the middle part of the last decade, by which time he was clearly no longer satisfied with changing only the lives of people who sought his help. Oliver launched the Feed Me Better campaign, which he designed with the admirable goal of getting British school kids to eat healthier food. But while he could have argued in favor of parents or kids packing the cheap, easy, and tried-and-true alternative to school food—brown bag lunches—Oliver opted instead to urge more government control and increased spending on big-ticket items.

“Ovens, grills, and cooks drive up costs tremendously,” former Reason Editor in Chief Virginia Postrel wrote in a 1995 piece on school lunches. Oliver did just that, seeking and then winning hundreds of millions of dollars in new British government spending on school lunches, cafeteria-worker training, and kitchen equipment.

Negative reaction to the British government’s nationwide implementation of Oliver’s school-lunch recommendations was swift and widespread. Parents, some of whom labeled Oliver’s food “low-fat rubbish,” pulled 400,000 kids from the school-lunch rolls, choosing to brown bag it rather than have their kids eat Oliver’s “healthier” options. Parents opposed to Oliver’s scheme handed food to their kids through the gates of schoolyards. Some vendors and parents set up shop outside schools and sold food to students. Enterprising students, in turn, sold food to peers in schools, which led to suspensions for pupil transgressions as absurd as “crisp dealing.”

After a particularly vocal revolt against his meals program in the central English city of Rotherham, Oliver decided to fight back. He launched a walk-in training center, which he dubbed his “Ministry of Food,” in Rotherham. Oliver took his cue from Britain’s World War II-era Ministry of Food, the British government agency in charge of food rationing that also led a training campaign to show Brits with fewer food choices how to do more with less. (The agency, which was originally dubbed the Ministry of Food Control, continued to ration food until nearly a decade after the war.)

Spinning the Ministry’s effort like the master propagandist Dr. Carrot, Oliver explained that due to “this incredibly valuable service, people knew how to use their food rations properly and were able to eat—and live—better, even during the war! As a result the British public had one of the healthiest diets of any time in history.” (Oliver’s better-eating-and-living-through-wartime-rationing cant doesn’t hold up to common sense or hard wartime truths, which in addition to food rationing included the quite unhealthy consequences of more than one-half-million British war dead and lengthy periods of nightly Nazi bombing raids on London and other British cities.)

The Ministry of Food, like seemingly every Oliver idea, launched both an eponymous TV series and cookbook. But unlike Oliver’s school lunch scheme, the Ministry has not spread beyond the city limits of Rotherham. This is not for lack of effort on Oliver’s part. The chef authored an eight-page “manifesto” in 2008 to help pressure the national government to provide “proper funding” to set up a Ministry of Food center in every British town. Launching such an enormous program would cost an estimated half-billion dollars—while training the “girls” Oliver seeks to staff the centers, creating mobile food buses, implementing programs to train adults to cook, and a host of other related spending projects Oliver outlines would cost British taxpayers at least $65 million more.

Last month, in recognition of his combined efforts, Oliver was awarded the 2010 TED Prize. TED, the nonprofit that bills itself as the home of “[i]deas worth spreading,” honored Oliver for his work as a “standard-bearer in the fight against obesity and other diet related diseases,” and for having “pressured the UK government to invest $1 billion to overhaul school lunches to improve nutrition.”

Yet in spite of his zeal for government to thrust its hands ever more into the food business, Oliver told the Guardian that he doesn’t believe such involvement—which lies at the heart of all his schemes—will make much of a difference.

“The reason the Ministry is working… is because we went up there and interviewed 30 local boys and girls, and we’re not fucking stupid,” he said. “If they [local government] did it, can you imagine what the staff would look like? You could have anyone getting a fucking job! You’ve got to understand food, love food, and understand people skills.”

The value of what Oliver brought to Rotherham is questionable, to say the least. The Guardian notes that Oliver’s Ministry effort in Rotherham is led by “a non-cook,” Lisa, who together with her fellow teachers is doing little more than “running what used to be called home economics lessons.”

Oliver’s School Lunch Failures

The Ministry of Food is but one of Oliver’s dubious endeavors. When Oliver’s zeal combines with his inclination toward questionable judgment, the results can be comically incongruous.

For example, Oliver recently claimed—while discussing his newfound understanding of racism and the plight of immigrants—that he is “sixth generation Sudanese,” and that he is one of “quite a few Olivers” who “are a bit swarthy and have got curly hair.” The Daily Mail, reporting the story, hinted politely “some might see [this] as an attempt to improve his street credibility.” And before Oliver was turning Sudanese, he once appeared on one of his shows wearing a shirt adorned with the logo of the Tamil Tigers terrorist group.

Sometimes his gaffes hit at the edges of his programmatic work. Several years ago, for example, Oliver donned a fat suit and posed on a scooter—complete with a wheel broken just for the cameras—to highlight the problem of obesity. To many this looked more like Oliver was instead mocking the obese. Months later the press ridiculed Oliver, whose weight had ballooned since the stunt, saying he no longer needed the fat suit.

Sometimes, though, Oliver’s blunders—like the detestable “Lamb Curry Song” or his role in the televised autopsy of an obese man by a controversial surgeon—strike at the heart of both his work and his credibility. And for all his purported expertise in combating obesity—it was his work in this area that won him the TED Prize after all—there exists a very real question whether Oliver really understands healthy eating or even believes his own most basic dietary recommendations.

The current issue of his magazine Jamie (Feb./Mar. 2010) recommends several school lunch recipes the magazine bills as “wholesome meals to take to school.” The magazine’s suggested meal for Thursday is a tuna Waldorf pita with hot vanilla milk, an oaty biscuit, and a banana. According to the nutrition information provided in Jamie, this youngster’s lunch contains an astonishing 1,183 calories, 55 grams of fat (20 of them saturated), and 65 grams of sugar. That’s 73 calories, 12 grams of fat (11.5 saturated), and 3 grams of sugar more than the same student would get from eating both a McDonald’s hamburger Happy Meal (hamburger, fries, Sprite) and a Chicken McNuggets Happy Meal (McNuggets, fries, Sprite).

Unsurprisingly, this “wholesome” lunch by Oliver falls well outside accepted dietary norms. The USDA, for example, recommends a moderately active 9-13 year-old child average 1,900 calories per day. Even without breakfast or dinner factored in, Oliver’s tuna Waldorf pita lunch accounts for 62 percent of an adolescent’s recommended calories for the entire day. But don’t take the USDA’s word for it: Oliver himself recommends that “a lunchtime school meal should provide a growing child with one third of their daily nutritional intake.”

Reaching a conclusion dramatically antithetical to Oliver’s own rarely takes little more than a second look. For example, a new working paper by two academics lauds the impact of Oliver’s Feed Me Better campaign. The paper’s authors, economists Michéle Belot of the University of Oxford and Jonathan James of the University of Essex, looked at “the causal effects of diet on educational outcomes” in Greenwich, England that resulted from a 2004-05 pilot program for Oliver’s billion-dollar school meals program in Great Britain.

Unsurprisingly, Oliver predicted a positive causal effect. “It’s proven that real food promotes more effective learning,” Oliver writes at his website. Switching to healthier foods, has said, will result in “improved concentration and better performance in the classroom.” Belot and James conclude, based on the data, that Feed Me Better “improved educational achievements” in the aggregate.

Fair enough. But the same data also shows, disturbingly, that students from lower-income families who received an Oliver-inspired free school meal (FSM) actually saw their academic performance drop or stagnate compared to the non-FSM students. My own analysis of the data, which Belot confirmed to be correct, shows that Oliver’s program—which cost the Greenwich school district an additional $1 million to implement—increased the academic disparity between the FSM kids who had to eat Oliver’s food (and whose academic performance did not improve) and the more well-to-do kids (based on their non-FSM status) who otherwise had a choice.

Limiting dietary choices, it seems, turns out to be a recipe for failure. Which brings us to Oliver’s current experiment in America.

Oliver Brings His “Revolution” to West Virginia

For his new ABC show, Jamie Oliver’s Food Revolution, Oliver imported elements of both Feed Me Better and his Ministry of Food to Huntington, West Virginia, which has been billed as the fattest city in America. With cameras rolling, Oliver established a Ministry-like training center downtown and sought to change public school menus and re-educate school kids about food.

As in Great Britain, Oliver’s preferences were not to everyone’s liking. A series of promotional videos for the show depict Oliver trying vainly to remake resistant West Virginians in his image. One promo shows a bewildered Oliver as he tries (and fails) to get a room of healthy-looking elementary students to correctly identify tomatoes, a beet, an eggplant, and a cauliflower. (Never mind that the latter three are obvious ringers many healthy adults couldn’t identify in their raw forms, that British kids think that bacon comes from sheep, or that decades of Ministry of Food training last century couldn’t keep adult Brits from falling for a 1957 British mockumentary on Switzerland’s annual “spaghetti harvest.”)

A second promo shows Oliver facing stiff resistance from a squad of hardened school lunch ladies. Still another shows Oliver taking part in a Wok-and-spoon-wielding flash mob on the Marshall University campus in Huntington. A fourth shows Oliver sobbing. “They don’t understand me,” he cries. “They don’t know why I’m here.”

These men, women, and children of the Mountaineer State may or may not understand Oliver and his British accent and order of chivalry, but they no doubt understand why he is there. They’ve read the same things I have—that Oliver would like nothing more than an invitation to the White House to make policy with healthy-eating Czarina Michelle Obama.

Though not everyone on the left is a believer, it would be a serious mistake to underestimate Oliver’s present and potential influence here in America. Thanks to TED, Oliver already has the ears of heavyweights at Google, YouTube, and Amazon. The same week Oliver won his TED Prize, Michelle Obama launched a $1 billion campaign to battle childhood obesity in America. That money will likely flow in spite of the fact childhood obesity rates in America stopped rising in 2008, according to the Centers for Disease Control.

But data be damned. If Jamie Oliver’s Food Revolution is a hit, then Great Britain’s so-called national treasure may find an Obama White House invitation is just the first step in one chef’s quest to subjugate the American diet.

Baylen Linnekin is a lawyer, food writer, and food blogger who lives in Fayetteville, Arkansas and Washington, D.C. He blogs at Crispy on the Outside. This column first appeared at Reason.com.

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