Editor’s note: Each Spring, attorneys Bill Marler and Denis Stearns teach a Food Safety Litigation course in the LL.M. Program in Agricultural and Food Law at the University of Arkansas School of Law. This specialized program for attorneys brings together those who are interested in our food system, from farm to table. As a final assignment, students are asked to write an op-ed or essay on food safety, with the best to be selected for publication in Food Safety News. The following is one of the essays for 2021.
By Javier Rivera-Aquino
Disgust is a powerful emotion that, when used right, can be an agent of change. This is particularly true when it comes to food safety. Elected officials and regulators may disregard sound science in policy making and execution, but public outcries spurred by disgust are rarely ignored. If further improvements need be made on food safety regulation, the public should know that rational thinking alone will not get the job done, unless the right emotions are sprinkled in.
Disgust and food safety policy
It was disgust, that drove the Meat Inspection Act and the Pure Food Act of 1906, right after Upton Sinclair’s novel “The Jungle” was published. As Food Safety News Guest Contributor Savannah Clay stated in her July 6, 2020, article, “Change in the Time of Covid-19,” Sinclair’s description came to be a catalyst that prompted investigations because he revealed the disgusting conditions that allowed unsafe food reach the public. UShistory.org states his “bone-chilling account” pushed President Theodore Roosevelt to build the foundations for today’s FDA’s regulations, prohibiting misbranding and adulteration of food and requiring USDA’s meat inspections. According to Mentalfloss.com, Sinclair wanted his novel to “get people talking and instigate some major reforms,” and so he did, “but for reasons he did not expect,” stating that “(he) aimed at the public’s heart, and by accident hit (them) in the stomach.’”
Around that same time, another food safety crusader, Harvey Wiley, an analytical chemist employed by USDA, and per the mashed.com description, someone who understood “food regulations were sorely lacking,” gathered a group of volunteers, known as The Poison Squad, and served them meals “including popular food additives and poisons like borax, in order to study what happened when they ingested it.”
Mentalfloss.com additionally states that he had to undergo such drastic measure, as “every bill he introduced was killed by powerful food lobbies.” Wiley is regarded as the father of the FDA, as The New York Times indicates, not only in ensuring the passage of those bills but also “in changing popular attitudes toward government intervention on behalf of consumers.” The Times questioned if “Wiley’s tests of additives like saccharine and sodium benzoate — whose health effects still remain controversial — [were] sound science or pseudoscience?” One can argue that had it not been for the disgusting results published from the Poison Squad’s experiments on tainted food, reform may have never gotten a chance with the powerful industry lobby.
It was disgust, alongside with empathy and alternating with anger, the force behind the inclusion of E. coli O157:H7 as an adulterant under the same Act, after the Jack in the Box E. Coli outbreak, 87 years after Sinclair’s and Wiley’s contributions. For those unfamiliar with this fast food chain, specially consumers on the East Coast, or its 1993 ordeal, read “The Untold Truth of Jack in The Box” by Mashed, especially the segment explaining the sad incident “after a tragic E. coli outbreak traced to contaminated burgers at 73 of the restaurant’s locations,” leaving four people dead, including two children, and several hundred people ill across multiple states. Two main reasons yielded this sad result: ground beef tainted with E. coli and cooking burger patties below the temperature necessary to kill that bacteria. Before then, it was assumed that pathogens like Salmonella and E. coli were present in meat but was contained with proper cooking, therefore, not considered as an adulterant. Or as a court once said: “American housewives and cooks normally are not ignorant or stupid and their methods of preparing and cooking of food do not ordinarily result in salmonellosis.” (Citing APHA v. Butz, 511 F.2d 331, 334 (1974)). According to Bill Marler’s “Publisher’s Platform: A Bit(e) of History”, it was “in an act of both commonsense and bravado” that in 1994 USDA’s FSIS, decided that E. Coli O157:H7 “would be deemed an adulterant.” The public was disgusted by the notion that the system had failed, and for it, innocent kids were harmed, just for taking a bite of an unfit burger; the fast-food industry had to adopt stringent methods of quality control, such as the Hazard Analysis and Critical Control Point, better known as HACCP. Unfortunately, neither other strains of E. Coli nor Salmonella, 27 years later, have been labeled adulterants despite notable outbreaks and detrimental effects to people.
What is disgust and why does it matter?
The Cambridge Dictionary defines it as a feeling of becoming ill caused by something unpleasant or a strong feeling of disapproval and dislike at a situation, person’s behavior, etc. According to the Paul Ekman Group, disgust is “one of the seven universal emotions” that results “from a feeling of aversion toward something offensive.” It may be “perceived” through the senses — sight, smell, touch, sound, smell — or “by actions or appearances of people, and even by ideas.” It may range from mild to extreme detestation. “Bodily products” may be a trigger, but “culturally and individually influenced” triggers can also exist. Reaction to disgust can vary, and in some instances, the element of intimacy may lower or suspend its intensity, as when changing your baby’s diaper.
Like fear, disgust is an emotion that deals with auto-preservation. A study titled “Why Disgust Matters” states the premise that disgust is “an adaptive system that evolved to motivate disease-avoidance behavior.” The author goes on to say that it “arose in our animal ancestors to facilitate the recognition of objects and situations associated with risk of infection” and to “drive hygienic behavior, thus reducing micro- and macro-parasite contact.” But it did not stop there; she argues that “Sometime in our evolution toward human ultrasociality, disgust took on an extended role —providing a motive to punish antisocial behavior and to shun the breakers of social rules.” Are not these the motives behind Sinclair’s and Wiley’s efforts? Are not these the forces employed through bravado when common sense alone could not yield much desired results? Disgust has been the most basic food safety regulator. Has it stopped working?
Renowned writer Michael Pollan, in an interview titled “We Are What We Eat” points out that in a centralized food system, anyone can drop a vial of bacterium into ground beef affecting tens of thousands of people. A hundred years after the adoption of the Meat Inspection Act, he argued then that “we would be better off if we had more transparency in our food system.” Because disgust depends on the senses and perception, the underlaying notion seems to be that it may well be hampered through the “out of sight, out of mind” maxim.
The Institute of Development Studies issued a study that looks at the impact on developing countries “(a)s food preparation and consumption increasingly occurs outside the household,” just as it has been happening here in the U.S. for over a century. The study reveals that “(p)eople are feeling a loss of control over what they are eating” stating that “concerns about dubious ingredients and unsanitary conditions abound.”
Emotions in law?
Around the 1990’s’, several academics began to question the influence of emotions in the legal arena. A novel compilation, “The Passions of Law”, aimed to provoke a discussion on the dichotomy of reason and emotions trying to assert that the two, in concert, may lead to a truer perception and ultimately to “better (more accurate, more moral, more just) decisions”. Susan Bandes, in her quest to understand the role of emotions within the legal framework states that “(l)aw, perpetuates the illusion of emotionless lawyering and judging by portraying certain ‘hard’ emotions or emotional stances as objective and inevitable.” In her quest, she invited a myriad of academics to take an in depth look at the role of emotions such as disgust, shame, remorse, revenge, forgiveness, cowardice in the legal context.
From social conventions, which include covering one’s mouth and nose when sneezing, or washing hands after visiting a bathroom, to the legal accords issued to indemnify a person wronged by food poisoning caused by the reckless actions of another, the basis seems to be the same — a generalized disgust to being contaminated. Martha C. Nussbaum writes an essay in “The Passions of Law” on the effect of disgust in law making and legal judgements. She argues that legal barriers between society itself and “the disgusting” could easily be agents of the civilizing process. She claims that disgust is not innate but rather taught. As an example, she brings forth that laws against obscenity are based on the disgust of an average member of society. Are there forms of disgust embedded in Food Safety Regulations as well? Of course, there are!
As part of society’s “structured disgust,” as coined by Nussbaum, a complex set of federal regulations have been adopted to prevent foodborne illnesses throughout the food chain and yet, some forms of farmers and food outlets seem not to be under the burdens of the law. In 2011, the U.S. government adopted the Food Safety Modernization Act (FSMA) which allows FDA to recall contaminated food, which previously was in the hands of the private sector. In the same compilation, Dan M. Kahan, also reflects on disgust describing it as an “illiberal” sentiment, sometimes utilized to maintain social rank or to challenge its acquisition, that may lead to injustices — the dark side of it — but if “properly directed, disgust is indispensable to a morally accurate perception of what’s at stake in the law.”
May disgust be with you! The righteous kind, that is
The USDA completed an observational study in which participants were recorded in a test kitchen to evaluate their handling of food. The preliminary results show that 97 percent of participants failed to wash their hands when they should have, 48 percent cross-contaminated spice containers, 5 percent transferred bacteria to salads, 66 percent did not use a food thermometer when preparing turkey burgers, and 45 percent did not cook their burgers to the minimum safe internal temperature. Are these participants in any form representative of those handling the “centralized food system” Pollan so much warns about?
How many times do people need to be reminded that texting while driving, or not washing one’s hand after manipulating poultry, is a bad idea? Despite the information about accident or illness occurrence under each behavior, most people go on as if it has nothing to do with them. The court is right, this is not ignorance, most of time it is neglect. According to behavioral economics professor Dan Ariely, what should be the rational approach of just telling people that “texting while driving is dangerous,” — just as arguably cross-contamination can be detrimental to health — it is not enough to stop such behavior. He explains that changing behavior must deal first with removing friction, and second, with providing motivation. This seems to have worked in favor of the food industry and against the consumer, poor government inspections and standards leave the latter blindfolded. Artificial flavors and coloring are used to remove the very essential friction that evolved into disgust. What better motivation is there than the reward felt by the brain after sugar consumption.
To turn the tables, consumers must get back in touch with the protections disgust evolved to provide, and it starts at their own homes, passed on to their kids, also taught in school and then showcased in the media. Removing friction does not mean to regulate less, but rather, making it be simple and attainable. Motivation can be attained by celebrating the achievements of those who do things right and shutting down the irresponsible ones; avoiding public disgust for mishandling food, can be a great motivator also. But for disgust to work, the blindfolds of, and the intimacy with the current food system must be removed. As Kevin Higgins points out in his 2018 article, “Why Jack in The Box Still Matters,” there should be “an understanding that the interests of consumers are aligned with the industry’s interests.” If we do not know our food, where it was produced, how, by whom, under which conditions, then the interests are not aligned. By knowing the power of disgust, the consumer, individually and collectively, should know that they hold the winning card, and it most be played properly, and timely, before another tragedy occurs.
About the author: Javier A. Rivera-Aquino has a Bachelors in Agricultural Sciences from The Ohio State University (1996) and Juris Doctor from the University of Puerto Rico (2017). He was admitted to the Puerto Rico Law Practice in 2018. He has served as an elected official and appointed to several key positions in the Commonwealth of Puerto Rico: House of Representatives/ Chairman of the Commission on Agriculture (2004-2008); Secretary of Agriculture (2009-2012); Deputy Secretary of Economic Development (2017-2019). In 2019, he began a solo practice mainly focused on serving farmers and small businesses in issues concerning administrative law and business development. He joined the LL.M. Program in Agricultural and Food Law at the University of Arkansas in 2020.
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