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Tennessee Law Review

Kathryn Bowen

Document Type

Article

Abstract

Consumers and retailers are increasingly interested in purchasing local, sustainable, and humanely raised foods. Advocacy groups are spearheading that trend. Their efforts have gained traction at the state-level, with a broad-based, food conscious constituency directly fomenting policy change. And yet, adversely affected food producers typically succeed in nullifying state reforms by securing from Congress preemptive national standards.

That dynamic is likely to manifest again in the area of farmed animal treatment. In November 2016, Massachusetts approved the furthest reaching prohibition on the use of "intensive confinement" systems for farmed animals, and the sale of any food products thereby derived. Additional states are moving towards the Massachusetts model, and industry is poised to repeat its preemption play.

This Article argues that states should protect regulatory expressions of "food populism," including anti-confinement standards. It sets forth a new theory of food populism, founded on a dual-pronged normative principle of enhancing deliberative democratic engagement and minimizing the negative byproducts of industrial food production. It calls upon sympathetic state actors to establish a regional advisory agreement on farmed animal welfare. It contends that this instantiation of food populism can influence federal policy and avoid deregulatory preemption.

The case for interstate cooperation addresses three gaps in the literature. First, it confronts who decides, and who should decide, what we eat from the perspective of vertical and horizontal interest group bargaining. Second, it compares the ability of discrete interstate cooperative mechanisms to deliver on a food populist agenda. Third, it suggests institutional design principles for, and benefits to, a topical regional consortium. This provides a guide for future policy and advocacy.

Publication Date

2017

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