Scotland: Good Food Nation or Fast Food Nation?

The politics of food is maturing in Scotland. Labour MSP Elaine Smith has opened a consultation to develop a Right to Food Bill that would enshrine a legal obligation on Scottish public institutions to ensure the availability and sufficiency of nutritious food. This follows swiftly on from the interrupted but ongoing progress of a Good Food Nation Bill, which emphasises prioritising access to food that nurtures.

Inherent in these legislative proposals is an appreciation that food is a core physiological and social need, and as such the food supply and distribution system is critical to public health and a functioning society. The proposals imply that food production and culture overarch social cohesion, and that distortion of the food system comes with quantifiable costs, including an estimated £600 million a year to NHS Scotland.

This perspective could not be more radically different from that of the US agribusiness interests being represented by US Trade Representative Robert Lighthizer and his team, for whom food is merely another commodity circulating in a global marketplace, of more weight than other commodities only thanks to the scale of its profit potential. The emphasis is strictly on quantity over quality and the removal of “barriers” to market access for US goods.

Given that the proposed legislation in Scotland envisages placing an obligation on the country’s public bodies (including the Scottish Parliament), to evaluate the likely effect of their activities on the right to food, it will certainly involve the possibility of judicial review legal actions being raised against those public bodies to ensure that the legislation has the requisite “teeth”. The stage could therefore be set for a clash between two competing visions of the future of Scotland’s food system.

July’s UK Government White Paper setting out a vision of a UK wide “mutual recognition” principal, whereby if a product is approved for sale in one part of the UK it can legally be sold across the country, seems to anticipate this. It is notable that the Paper refers in its objectives to economic opportunity and competitiveness before welfare and economic security. The White Paper contains measured words such as “the European Union (Withdrawal) Act 2018 will transfer existing EU food safety provisions, including existing import requirements, into the statute book. These import standards include a ban on using artificial growth hormones in domestic and imported products and set out that no products, other than potable water, are approved to decontaminate poultry carcasses. Any changes to existing food safety legislation would require new legislation to be brought before the UK Parliament and the devolved legislatures.” It is precisely resistance to such new legislation, anticipating the reality of negotiating trade deals post Brexit, that the White Paper is designed to confront. Furthermore, it is inconceivable that a trade deal with the US will not include an Investor State Dispute Settlement (ISDS) mechanism.

ISDS mechanisms allow investment vehicles and corporate entities registered in one signatory state and proposing to invest in another signatory state to sue that latter state should they have the audacity to regulate in such a manner as to hinder the profit agenda. This means that investors have a legal route to obtain compensation from states based on their own projections of how state action will affect their anticipated profits. Such litigation plays out in esoteric hearings determined by three arbitrators, two of whom also conduct representation on behalf of the respective parties i.e. only one of the three decision makers is independent. There is no appeal process. It is a system that looks very like corporate feudalism; it belongs in the history books along with ecclesiastical courts before the reforms of the 19th Century. The importance therefore of ensuring that a conventional ISDS is not included in any US/UK trade deal cannot be overstated. The rhetoric from the current UK Government has not been encouraging.

Secretary of State for International Trade Liz Truss has been asked if she will follow New Zealand and adopt a firm stance on ISDS. Her response was to state that her team has been clear that agreements will not be concluded that “interfere with our right to regulate in areas such as environment, food standards, and public services”. She has proclaimed that “the UK has never lost a case”.  What she has categorically not undertaken is to critique ISDS; politicians and the public appear to be being primed to accept inclusion of the mechanism on the basis that the UK will remain firm in the face of ensuing litigation. What is implied is that the UK Government does not envisage regulating in any way that is not corporate friendly.

International trade is among the matters reserved to Westminster. As a result proposed legislation in Scotland could become subject to scrutiny by a tribunal which is not concerned with balancing public and private interest, but only with the obligations to investors created in a trade deal concluded by Westminster. This prospect could deter Scotland’s MSPs from considering the legislative route to effect change. This problem could become especially acute due to the nature of the UK internal market post Brexit. Good Food Nation legislation could result in significant changes to food labelling, taxation, how particular sectors of the Scottish agriculture industry are supported and the strategic use of public procurement. This could leave the UK Government vulnerable to an ISDS action. One  illustrative ISDS case will suffice to illuminate the problem. In 2009 $90.7 million was awarded to the producer of the processed sugar high fructose corn syrup (HFCS); the investor successfully challenged a tax levied by Mexico on drinks sweetened with HFCS. The UK Government, however, has a mechanism for preventing any such measures being taken in Scotland even in devolved areas. It can legislate, and in this way indirectly impose lower standards by means of the “mutual recognition” principal. 

The profound role of trade in expressing the values of a society and its ability to deliver for its members could hardly be more evident than in the issue of food and its role in public health.

Having had personal encounters with orthorexia, and having worked in the nutrition industry, I have direct experience of the impact of separation from the process of production of the food we eat. I have navigated complex regulations surrounding making claims about the positive impacts of foods on health. The irony of a corporation being able to promote a product known to contribute to a culture that promotes obesity by associating it in the public eye with a sense of togetherness, while as a nutritionist I was unable to imply in commercial contexts that a food is associated with a reduced risk of disease, was not lost on me. As a legal adviser I have listened to countless stories of the deep shame caused by food poverty and the health devastation caused by inadequate nutrition. South Lanarkshire, where I live, is 90% rural and 71% of its rural area is agricultural, yet two out of three adults in the area are overweight (South Lanarkshire Council March 2019). As Scotland explores ways of “taking back control” of our broken food system, a US trade deal is set to bombard the country’s attempts to understand the deeply complex influences on its food culture and its impact on public health. 

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