December 21, 2020

COVID 19 and Food: Spotlight on Food Waste

Martha L. Noble and Thomas Parker Redick

The impacts of the coronavirus known as COVID-19 (COVID-19) have reverberated throughout the U.S. food system. One major COVID-19 impact is the amount of food waste generated by our food system.

This paper examines the impact of COVID-19 on farm waste, including selected federal and state programs to help farmers deal with on-farm food waste resulting from the impacts of the COVID-19 pandemic. In addition, numerous nonprofit organizations have stepped in to help farmers distribute food directly to state and local feeding programs, rather than having edible food end up as waste. We will also discuss laws regulating food waste, which are rapidly evolving, and show how smart companies may anticipate such legislation and improve their bottom line.

The COVID-19 focus on examining ways to reduce food waste going to landfills is relevant to another issue discussed in the final section of this paper—an ongoing effort by some cities and states to redirect food waste from landfills to composting operations. This a move that could both decrease the generation of methane—a powerful greenhouse gas—and contribute to the production of compost useful for agriculture and landscaping purposes.

Introduction

COVID-19 caused a pandemic that shined a bright spotlight on a major problem in food––the organic waste generated from production and use. Even without this pandemic’s impact on our food system, the United States has long been the global leader in food waste, discarding nearly 80 billion pounds of edible food per year (up to 40 percent of the U.S. food supply). Most wasted food goes to landfills or municipal incinerators, generating methane, a dangerous climate gas. Anna Barnhill & Nicole Civita, The Problem of Food Waste, Food Waste: Ethical Imperatives and Complexities, 223 Physiology & Behavior (2020), https://foodprint.org/issues/the-problem-of-food-waste.

COVID-19: The U.S. Agriculture System and On-Farm Food Waste

The 2018 Federal Farm Bill included measures intended to reduce the costs of food waste. See Brenna Ellison, The Farm Bill Looks to Tackle Food Loss and Waste, farmdocdaily (9):123 (2019). The COVID-19 pandemic caused a dramatic increase in the amount of on-farm food waste, as two major sectors––the retail sector and the institutional sector––shut down operations. This caused an immediate problem with on-farm food waste, as many farmers had unsold milk, poultry, hogs, heaps of produce, or other farm products on their farms. The adjustments to shift this food to the retail market is taking some time to achieve, with measures that include increased home deliveries of food and repackaging of food for the retail sector. See Keith Nunes, Coronavirus Effects Will Ripple Widely Through the Food Sector, Food Business News (March 17, 2020); Jay Sjevern, Food Sector Dealing with Farm-Reaching Coronavirus Impact. Food Business News (April 23, 2020).

COVID-19 and Dealing with On-Farm Waste

1. COVID Contact from Food
A current major concern of dealing with food waste, both on and off the farm, is whether COVID-19 can be transmitted through food. If food can transmit infections, this would dramatically increase the rate of food waste. As of June 18, 2020, fortunately, the U.S Food and Drug Administration (FDA) had found no evidence of COVID-19 transmission through food and no suspected cases of COVID-19 linked to food. On June 24, 2020, FDA and the U.S. Department of Agriculture (USDA) issued a joint statement on efforts of countries to restrict global food trade in which the agencies stated that there is no evidence that people can contract COVID-19 from food or food packaging. USDA, Joint Statement from USDA and FDA on Food Export Restrictions Pertaining to COVID-19 (June 24, 2020). On July 1, 2020 the USDA’s Food Safety Inspection Service turned down a request from the Physicians Committee for Responsible Medicine that all meat and poultry be tested for the presence of the virus that causes COVID-19. Both the U.S. government and the European Union have issued statements that there is no evidence of COVID-19 transmission via consumption of food. Despite these government reassurances, some countries––particularly China––are requiring a Letter of Commitment from foreign food suppliers that food shipments are not contaminated with COVID-19. See Congressional Research Service, Food Safety and COVID-19 (July 9, 2020).

2. COVID Impact on Food Waste
Even if COVID-19 is unlikely to be transferred through food products, farmers and ranchers who are dealing with tons of food waste are confronted with other significant health and environmental concerns. These on-farm impacts of COVID-19 and the resulting need to deal with surplus produce has impacted farmers throughout the food system, leaving many with a huge burden of on-farm waste. Farmers across the nation who provide fresh fruits and vegetables to grocery stores, restaurants, schools, and other non-retail outlets are concerned about planting crops that may not have markets until the COVID-19 pandemic has subsided.

USDA Measures to Assist with On-Farm Waste

The USDA and other federal agencies have a number of ongoing initiatives focused on reducing on-farm food waste. These programs can be divided into two major issues: (1) programs that deal directly with the reduction and regulation of on-farm disposal of agricultural waste; and (2) programs that increase the distribution and marketing of food to help decrease the amount of food left on farms.

In addition, Congress may pass law addressing on-farm food waste. Readers may want to contact USDA offices or State Agriculture Department offices for up-to-date information on impacts of the COVID-19 pandemic on agricultural operations.

One key USDA program is the $19-billion Coronavirus Food Assistance Program, which helps farmers and ranchers reduce on-farm food waste by assisting in the increase of food sent from farms to food banks, churches and other nonprofits. This program has helped many farmers decrease the amount of on-farm waste.

Selected State Programs

Many states have also established programs to help farmers and ranchers stay in business throughout the COVID-19 pandemic. Some state programs provide assistance to farmers in safe methods of disposing of animals, milk, and produce that could not be marketed. Some of these programs include state partnerships with nongovernmental organizations to purchase food for food banks and other outlets that serve low-income people. Though many of these programs fail to address on-farm waste, diversion to food programs should reduce on-farm waste.

In May 2020, New York’s Governor Cuomo launched the Nourish New York Initiative in partnership with the nonprofit Foodlink to divert surplus food from farmers to needy households in 11 upstate New York counties. These are fruits and vegetables that farmers would usually sell to schools and restaurants that are now closed due to COVID-19. Foodlink also provides vouchers that people can redeem for milk.

As many food lawyers expected, the COVID 19 lockdown is generating a trove of legal issues. A judge recently denied insurance coverage to retailers who lost profits, saying no “physical injury” could be stated. The impact of COVID-19 on restaurant closures may lead to lost markets for farmers and could result in disputes over food sale contracts.

Government and Nonprofit Food Programs

Some nonprofit and government food programs have also provided assistance to farmers and ranchers who are dealing with the loss of conventional markets and the prospect of dumping surplus production. Examples include:

1. USDA Farmers to Families Food Box Programs
In May the USDA approved $1.2 billion in contracts for the Farmers to Families Food Box Program. Many restaurants, food service providers, and other businesses have shut down during the coronavirus pandemic. Under this program, USDA’s Agricultural Marketing Service partners with national, regional, and local suppliers of fresh produce, meat, and dairy that have lost businesses with other food outlets that have closed due to COVID-15. USDA purchases the food and pays the suppliers to package the food into family-sized boxes and transport it to food banks, community and faith-based organizations, and other nonprofits that can get the food to families in need.

2. Alameda County (California) Food Banks
Alameda County’s Food Bank partnered with a major produce firm Rancho Guadalupe and other farms for a pilot program to get strawberries and broccoli for their food banks for the cost of production. The county’s food banks had seen a 1000 percent increase in people needing food assistance. The General Manager of Rancho Guadalupe views the program as a way to keep the supply chain intact and the food bank hopes to see the program expand into a larger share of the state network of food banks. Detailed information is available on other organizations and companies involved in efforts to divert food from waste streams to customers and feeding programs. See Aron Mok, 23 Organizations Eliminating Food Waste During COVID-19 (2020), https://foodtank.com/news/2020/04/23-organizations-eliminating-food-waste-during-covid-19/

Legislation: Diverting Food Waste from Landfills

As the nation deals with the immediate needs of dealing with COVID-19 food waste increases on our food and farming system, the pandemic has generated new long-term efforts to deal with food waste. Food waste is a significant source of pollution. Decomposition of food contributes to environmental problems that could decrease with a decrease in the overall amount of food waste and by the wider adoption of composting and anaerobic digestion of food waste both on and off the farm. See E.A. Crumden, Reducing Food Waste Emerges as Key Climate Solution, WASTEDIVE (April 16, 2020). Food waste, if composted properly, can also be a good source of nutrients for soils that could be used throughout the nation on farms, parks, home lawns and gardens, and other lands.

One nation that is implementing diversion of food waste from landfills is France, with its program called Biodechet (Zero-Waste) France, established by the Energy Transition Act (17 August 2015). The law will divert bio-waste at its source by 2025 with each citizen given methods available to avoid disposing of biowaste in household waste. The European Union confirmed this new obligation in 2018 with the adoption of the Circular Economy Package, effective December 31, 2023.

In the United States, an increasing number of states and municipalities have passed organic waste bans or mandatory organics recycling laws to prevent food waste from going to landfills. See Kelly Maile, Organic Waste Legislative Update, Waste Today (March 23, 2020). Six states––California, Connecticut, Massachusetts, New York, Rhode Island and Vermont–– have passed organic waste diversion laws or mandatory organics recycling laws are. Many municipalities—Austin, Texas; Boulder, Colorado; Hennepin County, Minnesota; Portland, Oregon; New York City; San Francisco and many other California cities; and Seattle––have also adopted organic waste reduction laws. Other states, such as Maryland, and localities are looking to pass similar legislation. Id.

In years past, most of the states passed laws that diverted green waste (lawn and tree clippings) out of landfills. Diverting food waste to better uses is the logical next step. With organics supplying nearly 30 percent of the municipal solid waste (MSW) stream generated in the United States going to landfill, only a small percentage of municipalities (5 to 10 percent) have a waste-to-energy facility. While landfill managers claim they can make biogas from this food input, sequestration of carbon through composting might prevail as the dominant method for reducing climate gasses. Thomas Bilgri & Debra Darby, Organics Diversion Opportunity: Are We Wasting It? Point-Counterpoint Discussion Finds Common Ground on Controversial Organics Bans, https://wasteadvantagemag.com/organics-diversion-opportunity-are-we-wasting-it/.

On July 1, 2020, Vermont became the first state to implement a ban on disposal of food waste in solid waste landfills, with food waste defined as waste that was once alive, e.g., a plant or animal. The rule applies to individuals and businesses, including restaurants and supermarkets. The state’s Department of Environmental Conservation is encouraging people to compost, feed food scraps to chickens and other livestock, isolate waste for trash pickup, or take it to a designated drop-off site. The goal of the food waste ban is twofold: (1) remove food scraps from the trash to free up space in landfills, and (2) decrease the emissions that drive climate change. The ban is part of Vermont Act No.148 (2018) (amending the state’s 2012 Universal Recycling Act. See Vermont Universal Recycling Law (Act 148), Food Scrap Ban Guidance, https://dec.vermont.gov/sites/dec/files/wmp/SolidWaste/Documents/Universal-Recycling/Food-Scrap-Ban-Guidance.pdf). In cities, clever bikers are picking up waste, which not only decreases food waste landfills but also reduces the climate impact of waste pickup by diesel trucks. See, e.g., Virginia Streeter & Brenda Platt, Bike-Powered Food Scraps Collection, (April 17, 2017), www.biocycle.net/bike-powered-food-scraps-collection.

State Organics Legislation (December 2019)

State Organics Legislation (December 2019)

An increasing number of states and municipalities have passed organic waste bans or mandatory organics recycling laws.

Corporate Efforts

Perhaps anticipating litigation, or seeking to improve their bottom line by making good use of expended materials, some food businesses have taken steps to reduce, reuse, or recycle their food waste. Some food handlers are committing to cut food waste by 50 percent (Aramark, IKEA etc.). See, e.g., Interfaith Center on Corporate Responsibility, Tackling Corporate Food Waste to Fight Climate Change and Hunger, https://www.iccr.org/our-issues/food-safety-and-sustainability/food-waste.

The COVID-19 pandemic may renew efforts to reduce food waste going to landfills, as cities and states redirect food waste from landfills to composting operations. This a move that could both decrease the generation of methane––a powerful greenhouse gas––and contribute to the production of compost useful for agriculture and landscaping purposes. Reducing landfill loads, along with potential benefits to local food operations that become more apparent during the COVID 19 pandemic, will lead more states to follow the examples set by Vermont and other jurisdictions.

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Martha L. Noble and Thomas Parker Redick

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For many years, Martha L. Noble taught agricultural and environmental law courses for the University of Arkansas School of Law in Fayetteville, and was a staff attorney with the National Center for Agricultural Law Research and Information (renamed the National Agricultural Law Center). She is now retired in Healdsburg, California, where she volunteers her time with organizations working on education and environmental issues. 

Thomas Parker Redick is in solo practice at Global Environmental Ethics Counsel, LLC in Spring Lake, Michigan. He serves as the articles vice chair for the Agricultural Management Committee of ABA SEER.