Jessica Guarino, Nabilah Nathani, and A. Bryan Endres, What the Judge Ate for Breakfast: Reasonable Consumer Challenges in Misleading Food Labeling Claims, Loyola Consumer Law Rev. (2023).
Food, being an established aspect of global human culture and history, occupies a unique role in contemporary society. Given the massive market available for packaged and processed food, companies have taken deceptive marketing to new heights, resulting in a flurry of consumer litigation. The dominant test for evaluating the scope of these cases is the reasonable consumer standard, an amorphous assessment that requires a probability that a majority of the general public or targeted consumers would be misled by said deceptive marketing. By analyzing state and federal consumer protection statutes, landmark cases, and elements of human and cultural psychology, the authors argue that the reasonable consumer standard should consider the primary elements driving consumer behavior through an interdisciplinary lens rather than a legalistic approach. Such a broadened perspective would support long-established consumer protection goals, clarify legal standards across product types, provide context to heterogeneous consumer background and educational levels, and better align the judicial approach with the advanced marketing techniques employed in the food context.
What the Judge Ate for Breakfast: Reasonable Consumer Challenges in Misleading Food Labeling Claims was cited by the U.S. Court of Appeals for the Ninth Circuit on June 9th, 2023 in the case McGinity v. The Proctor & Gamble Company.
Jessica Guarino & Tyler Swanson, Emerging Agrivoltaic Regulatory Systems: A Review of Solar Grazing, Chicago-Kent Journal of Environmental and Energy Law (2022).
In recent years, tensions have grown in rural communities in response to rapid development of utility-scale solar energy production facilities over the proper use of rural land, particularly between agricultural and solar energy production. Ongoing land use tension between agriculture and solar energy production has motivated some landowners to co-locate solar panels and crops or livestock on the same plot of land in a process called agrivoltaics. The evolution of agrivoltaics from an experimental land use strategy to a viable diversification method for farmers necessitates an analysis of existing zoning laws, tax policies, and contractual agreements that farmers must abide by—and which may inhibit the full development of agrivoltaics into an industry. This article analyzes existing agrivoltaics policy by reviewing the history of how agricultural land use has shifted over time as well as by examining existing zoning and taxation laws for agrivoltaics. Further, this article applies the evidence analyzed to the rapidly growing practice of solar grazing, a subfield of agrivoltaics that involves farmers grazing sheep and other livestock on utility-scale solar energy facilities. The article reviews existing grazing contracts and best practices from adjacent grazing industries to offer regulatory insights for the developing agrivoltaics industry. The article concludes by positing further research questions and proposing legislative reforms that may provide a friendlier legal landscape for agrivoltaics and other dual-use operations at the nexus of agriculture and renewable energy.
Jessica Guarino, The Injustices of Agricultural Exceptionalism: A History and Policy of Erasure, Drake Journal of Agricultural Law (2023).
“Agricultural exceptionalism” is broadly identified in scholarship as the exemption of agriculture from social, labor, health, and safety regulations that reinforce agriculture’s unique status in law in society. This article calls for a deeper examination of the historical and philosophical roots underlying the perception of agriculture as exceptional and the manifestation of this view in the legal realm. Further, the article identifies the instances in which the promoted virtues of agricultural exceptionalism fail to actualize in present-day U.S. industrial agricultural production. Through investigating the historical and philosophical origins of agriculture’s unique status and reverence reflected in legal and societal policies, the article reveals an alternate view of how a food production system founded on agricultural exceptionalism promotes egregious health, safety, and labor concerns rather than a system of small, self-sustaining farms and communities. After reflecting upon the inconsistencies between agricultural exceptionalism in policy and its
manifestation in practice, the article concludes by insisting agricultural policymakers reckon with the injustices that arise from agriculture’s exception from important social, environmental, and safety regulations and realign current regulatory standards to support agriculture’s vital role.
A. Bryan Endres, Renata Endres & Marinela Krstinić Nižić, Restaurant Disclosure of Food Allergens: Analysis and Economic Implications, Tourism and Hospitality Research (2021).
Research suggests that between 20–30% of consumers self-identify as having some form of food allergy or sensitivity and demand for allergy-safe foods is growing. European Union regulations require restaurants to inform diners of the presence of 14 primary food allergens. The method of disclosure, however, is left to the discretion of the restaurant and may include verbal communication, menu labels, or separate informational pamphlets. Despite these requirements, 74% of allergen related food incidents arise from the non-prepackaged (restaurant) environment. Individuals with allergens, therefore, may avoid restaurants or intentionally seek out, especially in the tourism context, venues with publicly disclosed allergen prevention protocols. Due to group effects and social media’s ability to channel consumers, implementing allergy-friendly practices could substantially increase restaurant profits. This research examines the performance of the restaurant industry in leading tourist destinations in Croatia with respect to self-disclosure of potential food allergens. Menus, accompanying websites and social media reviews of 973 restaurants across 43 locations were analyzed. Results indicate that very few restaurants have taken affirmative steps to disclose food allergens on their websites (1.3% of English and 0.8% of Croatian websites). Of the subset of restaurants with on-line menus, 6.5% disclosed specific food allergens. In contrast, third-party social media reviews of 24.6% of the restaurants included some statement relating to food allergens. Based on the results, this paper suggests strategies for improved food allergen communication. Specifically, restaurants should make greater efforts to affirmatively disclose allergen information on their websites and monitor social media reviews. Very few restaurants responded to consumer comments, thereby allowing others to dictate the narrative. In light of the strong consumer interest and relatively weak self-disclosure efforts, the hospitality industry has a ready opportunity to attract new consumers by moving beyond regulatory minimums through enhanced allergen communication efforts and social media engagement.
Jessica Guarino, Brad Windings, and A. Bryan Endres, Beyond Victory Gardens: Bolstering Resilience in Food Crisis Response in Wake Forest Journal of Law & Policy (2020).
The COVID-19 pandemic disrupted much of daily life, not the least of which was the nation’s food supply. Empty grocery store shelves, rotting produce in the fields, and gallons of milk dumped rather than sold manifested as symptoms of the fragile nature of the U.S. food system. Rectifying issues of resilience through the incorporation of local and regional food sources as supplementary to the existing channels of production and distribution may have prevented such a harsh shock to the system. This article identifies the weaknesses of the U.S.’s industrial and consolidated food supply chain that prioritizes extraction and economic gain over resiliency, and further describes the ways in which the COVID-19 pandemic exacerbated these points of failure. The article first depicts some of the disruptions to the food supply chain stemming from consequences of the pandemic such as issues with matching supply to demand, wasting large quantities of food, and exacerbating systemic food insecurity. The article then provides a comprehensive overview of existing government crisis and disaster planning with an eye toward how these plans and policies incorporate or ignore implementing local and regional food into the greater food supply. The article concludes with recommendations for how to integrate local and regional food sources into government planning, identifying local and regional private entities such as food policy councils, farmers markets, and food banks as the most promising vehicles of change.