Surf-n-Turf, but the Sustainable Kind? The Limits and
Potential of Market-Driven Regulation in Food
Zdravka Tzankova† & Lauren Gwin‡
This article examines the dynamics and likely effects of NGO efforts
at private, market-driven regulation of antibiotics use in US agricul-
ture. Such NGO efforts aim to eliminate the routine feeding of anti-
biotics to healthy animals for the purposes of prophylaxis and growth
promotion. To that end, NGOs are pressing large food retailers, who
are some of the most powerful market actors, to demand antibiotic-
free meat and to refuse selling meat produced with sub-therapeutic
use of antibiotics.
Curbing agricultural overuse of antibiotics is critically important for
public health because overuse erodes the curative power of antibiot-
ics by creating antibiotic resistant animal and human pathogens. The
NGO turn to the market as a source of private power and authority
for curbing such overuse is motivated by the ongoing success of ag-
ricultural and pharmaceutical interests in blocking public regulatory
This article evaluates the potential for retailer-targeting NGO initi-
atives to reform the use of antibiotics in US agriculture, drawing on
insights from analyzing similar market-based initiatives by NGOs
seeking to reform ecologically problematic practices in the fisheries
This cross-sector comparison suggests that even if market-based an-
tibiotic reform initiatives prove limited in their private regulatory
achievements, they still have considerable transformative potential.
Even if the market power and private regulatory authority of targeted
retailers proves insufficient to change problematic antibiotic uses,
† Zdravka Tzankova, Assistant Professor, Environmental Studies Department, University of
California, Santa Cruz. The authors thank the UC Santa Cruz Committee on Research for a Faculty
Research Grant that helped support this work.
‡ Assistant Professor, Extension, Center for Small Farms & Community Food Systems, Oregon
304 Seattle Journal of Environmental Law [Vol. 5:1
for example, the NGO focus on retailers can still advance the public
regulatory reform of antibiotics in agriculture by turning politically
influential retailers into major beneficiaries and supporters of such
TABLE OF CONTENTS
I. Introduction ....................................................................................... 305
II. Antibiotic Use in US Agriculture: the Rationale for Private, Market-
Based Regulation .................................................................................. 310
A. The use of antibiotics in US animal agriculture ........................... 311
B. The problem with agricultural overuse of antibiotics ................... 312
C. Public policy and regulatory attempts to control agricultural overuse
of antibiotics ...................................................................................... 314
D. The turn to private, market-based regulation of antibiotics use in
agriculture .......................................................................................... 316
III. The Promise and Potential of Retailer Targeting as an NGO Strategy
for Market-Based Antibiotics Regulation ............................................. 317
A. The market power and private authority of large retailers ........... 317
B. Retailer vulnerability to NGO pressure ........................................ 319
C. The promise of retailer targeting as a strategy for market-driven
antibiotics reform .............................................................................. 321
IV. The Dynamics and Regulatory Outcomes of Retailer Targeting:
Insights From Market-Driven Fishery Reform Initiatives .................... 324
A. The limits of market-driven private regulation as revealed in the
fisheries context ................................................................................. 325
B. The unexpected broader potential of market-driven reform efforts
V. Retailer Responses to NGO Antibiotics-In-Meat Demands: What We
Could Expect and Why ......................................................................... 329
A. The Regulatory Promise of Markets-Focused NGO Antibiotics
Initiatives ........................................................................................... 329
B. Retailer responses to the demands of markets-focused NGOs ..... 332
C. The Uncertain Yet Broad Potential of Private Market-Based
Regulation ......................................................................................... 337
VI. Conclusion ...................................................................................... 338
2015] Surf-n-Turf, but the Sustainable Kind? 305
In 2012, Thanksgiving and Christmas brought petitioners and press
conferencestoTraderJoe’sstoresincitiesacrossthe United States.
these events, the Consumers Union (CU), joined by environmental and
medical Non-governmental organizations (NGOs),urgedTraderJoe’sto
stopselling“meatondrugs,” i.e., meat
produced through the prophylactic
and growth promoting use of antibiotics on agricultural livestock.
It is a common practice in the United States to give food animals
sub-therapeutic doses of various antibiotics in order to accelerate weight
gain and prevent illness associated with the stress and crowding of
intensive animal operations.
As a result, most of the meat currently
produced and sold in the United States is “meat on drugs.”
It is well
documented that such pervasive and medically unnecessary agricultural
use of antibiotics presents serious public health risks.
This is primarily
. Allison Aubrey, Campaign For Antibiotic-Free Meat Targets Trader Joe’s, NPR (Oct. 2,
targets-trader-joes. TraderJoe’sUrgedtoGet “JoethePig”OffDrugsfortheHolidays, CONSUMER
REPORTS (Dec. 17, 2012), http://pressroom.consumerreports.org/pressroom/2012/12/trader-joes-
. Amy R. Sapkota et al, What Do We Feed to Food-Production Animals? A Review of Animal
Feed Ingredients and Their Potential Impacts on Human Health, 115 ENVIRONMENTAL HEALTH
PERSPECTIVES no. 5, at 663-670 (May 2007). L Tollefson, & M.A. Miller, Antibiotic Use in Food
Animals: Controlling the Human Health Impact, 83 JOURNAL OF AO AC INTERNATIONAL no. 2, at
245-254 (2000). Mary D. Barton, Antibiotic Use in Animal Feed and Its Impact on Human Health, 13
NUTRITION RESEARCH REVIEWS no. 2, at 279-299 (2000). HC Wegener, Antibiotics in Animal Feed
and Their Role in Resistance Development, 6 CURRENT OPINION IN MICROBIOLOGY, no. 5, at 439-445
. “Foodanimals” refers to domestic livestockraisedforslaughter and processing into food.
NATIONAL RESEARCH COUNC IL, THE USE OF DRUGS IN FOOD ANIMALS: BENEFITS AND RISKS (The
National Academies Press ed., 1999).
. Saptoka et al, supra note 3.
. Situation Analysis of Antibiotic Misuse in U.S. Food Animals: APUA Background Paper,
APUA (2010), http://www.tufts.edu/med/apua/news/newsletter_33_3555326098.pdf.
. WORLD HEALTH ORGANIZATION, THE EVOLVING THREAT OF ANTIMICROBIAL RESI STANCE:
OPTIONS FOR ACTION (2012). Guidance to Industry # 209: The Judicious Use of Medically Important
Drugs in Food Producing Animals, FDA (April 13, 2012),
dustry/UCM216936.pdf. Mary J. Gilchrist et al, The potential role of concentrated animal feeding
operations in infectious disease epidemics and antibiotic resistance, 115 ENVIRONMENTAL HEALTH
PERSPECTIVES, no. 2, at 313 (2007). Prescription for Trouble: Using Antibiotics to Fatten Livestock,
UNION OF CONCERNED SCIENTISTS, http://www.ucsusa.org/food_and_agriculture/our-failing-food-
system/industrial-agriculture/prescription-for-trouble.html#.VPU-8LDF_Iw (last visited Spring
306 Seattle Journal of Environmental Law [Vol. 5:1
because it increases antibiotic resistance in animal and human pathogens,
eroding the curative power of critically important antibiotics.
Significant public risks and costs are thus associated with the private
benefits that pharmaceutical companies and various agribusiness actors
derive from the current agricultural practices of antibiotic overuse.
both public policy and the public regulatory process have repeatedly failed
to reform such problematic agricultural practices, thwarted by political
opposition from a powerful alignment of agricultural and pharmaceutical
part of a broader NGO effort to use market forces to advance long-elusive
agricultural antibiotics reform. Specifically, NGOs aim to mobilize and
deploy the buying power and private regulatory authority of powerful
To that end, CU and its allies are asking the thirteen largest
US grocery retailers and the largest US fast food chains—major corporate
. See also J.L. Rinsky et al, Livestock-Associated Methicillin And Multidrug Resistant
Staphylococcus Aureus Is Present Among Industrial, Not Antibiotic-Free Livestock Operation
Workers In North Carolina, 8 PLOS ONE 8 no. 7, at e67641 (2013). Michael Z. David et al, Increasing
Burden of Methicillin-Resistant Staphylococcus Aureus Hospitalizations at US Academic Medical
Centers, 2003–2008, 33 INFECTION CONTROL no.8, at 782-789. Joseph Stromberg, Factory Farms
May Be Ground-Zero For Drug Resistant Staph Bacteria, SMITHSONIAN.COM (July 2, 2013),
. See PEW ANTIBIOTICS RESISTANCE PROJECT, http://www.pewtrusts.org/en/projects/anti
biotic-resistance-project (last visited Spring 2012). Fergus Walsh, Antibiotics resistance 'as big a risk
as terrorism' - medical chief, BBC NEWS: HE ALTH (Mar. 11, 2013), http://www.bbc.com/news/health-
21737844. Raising resistance: Industrial production of livestock—and antibiotic-resistant bacteria
that threaten human health¸ NRDC (Nov. 2014),
. Avinash Kar, Antibiotic resistance rising, but FDA can't resist letting industry have things
its way, SWITCHBOARD: NATURAL RESOURCES DEFENSE COUNCIL STAFF BLOG (Nov. 9, 2011),
http://.nrdc.org/blogs/akar/antibiotic_resistance_rising_b.html. Rep. Slaughter: Voluntary Reg
ulation on Antibiotics Inadequate To Protect Public Health; No Enforcement Mechanism or Criteria
for Success, CONGRESSWOMAN LOUISE M. SLAUGHTER (Dec. 11, 2013),
inadequate-to-protect-public-health-no-enforcement-mechanism-or-criteria-for-success/. Mae Wu,
Breaking Down the President's Plan on Combating Antibiotic Resistance, SWITCHBOARD: NATURAL
RESOURCES DEFENSE COUNCIL STAFF BLOG (Sept. 18, 2014), http://switchboard.nrdc.org/blog
. See ConsumersUnionAdUrgesTraderJoe’sToHelpCurbaMajorPublicHealthCrisis,
CONSUMERREPORTS.org (Sept. 24, 2014), http://pressroom.consumerreports.org/pressroom
. Meat on Drugs: The Overuse of Antibiotics in Food Animals, and Wh at Supermarkets and
Consumers Can Do to Stop It, CONSUMER REPORTS (June 2012),
ugs%20Report%2006-12.pdf. See also Letter from Rep. Louise M. Slaughter to Fast Food Restaurants
(Feb. 16, 2012), available at http://www.louise.house.gov/uploads/fast_food_letter.pdf.
2015] Surf-n-Turf, but the Sustainable Kind? 307
actors with significant buying power and private regulatory authority
within the food industry—to force change in antibiotic use by demanding
from their upstream suppliers and phasing out the
sale of any meat produced by routinely administering antibiotics to healthy
As the latest salvo in a long and multi-front battle to reduce the use
of medically important antibiotics in US meat production,
initiatives for market-based private regulation seem to offer an important
new reform strategy.
A growing body of scholarship and practical experience points to the
increasing power of retailers to affect upstream actors along the food
supply chain, and to the ways that retailers, sometimes acting under
pressure from NGOs, have used their market power as a source of private
regulatory authority, demanding and getting technical, labor, or
environmental changes in the practices of agricultural producers and/or
other upstream suppliers.
Both scholarship and practical experience
further point to the power of a well-structured, forceful, and sustained
NGO campaign—a corporate targeting campaign that combines
individualized and sector-wide pressure on closely competing and
. In t his ar ticle, “anti biotic -free”refers to meat produced without sub-therapeutic uses for
prophylactic and/or growth promotion reasons. The focus of the CU campaign—and thus the present
analysis—is on eliminating the sub-therapeutic—both prophylactic and growth promoting uses of
antibiotics. The occasional veterinary use of antibiotics for properly therapeutic purposes—i.e., to treat
sick animals—is not at issue in the CU campaign, and not of concern to the present analysis.
. CONSUMER REPORTS, supra note 10. See also Letter from Rep. Louise M. Slaughter to Fast
Food Restaurants, supra note 12.
. See First Amended Complaint for Declaratory and Injunctive Relief, Natural Resources
Defense Council Inc. v. FDA, 760 F.3d 151 (2d Cir. 2014) (No. 11 Civ. 3562), available at
http://docs.nrdc.org/health/files/hea_11052501a.pdf. Kurt R. Karst, In Litigation Over Animal Feed
Antibiotic Withdrawals, District Court Says FDA Needs to Move Forward, FDA LAW BLOG (Aug. 22,
feed-antibiotic-withdrawals-district-court-says-fda-needs-to-move-forward.html. See also Newly
NATURAL RESOURCES DEFENSE COUNCIL, http://www.nrdc.org/media/2014/140127a.asp (last visited
. Gary Gereffi et al., The NGO-industrial complex, FOREIGN POLICY (Nov. 17, 2009),
http://foreignpolicy.com/2009/11/17/the-ngo-industrial-complex/. Doris Fuchs et al., Retail power,
private standards and sustainability in the global food system, in CORPORATE POWER IN GLOBAL
AGRIFOOD GOVERNANCE 29-60 (J. Clapp and D. Fuchs, eds., 2009). Susanne Freidberg, The Ethical
Complex of Corporate Food Power, 22 ENVIRONMENT AND PLANNING no. 4, at 513-532 (2004). David
Burch & Geoffrey Lawrence, Supermarket Own Brands, New Foods, and the Reconfiguration of Agri-
Food Supply Chains, in SUPERMARKETS AND AGR I-FOOD SUPPLY CH AINS: TRANSFORMATIONS IN
THE PRODUCTION AND CONSUMPTION OF FOODS 100-128 (David Burch & Geoffrey Lawrence eds.,
2007). Maki Hatanaka et al., Third -Party Certification in the Global Agrifood System, 30 FOOD
POLICY 354 (2005).
308 Seattle Journal of Environmental Law [Vol. 5:1
reputationally-sensitive corporate retailers—to get such retailers to heed
The CU-led campaign has several predecessors, which successfully
used corporate targeting and reputational pressure on branded big buyers
to mobilize and deploy their market power and private authority towards
improving environmental and labor practices in food and commodities
Spelling further promise, the targets of the CU-led NGO
campaign collectively control most of the US retail market for meat.
At the same time, however, the success of retailer targeting as a tool
for private, market-based regulation of food production is dependent on
the combination of retailer incentives to heed NGO demands and retailer
capacity to project market power and private authority in the ways
demanded by NGOs.
The success of this type of campaign depends on
the structure and balance of power along aretailer’ssupplychain,
affects whether targeted retailers can actually force change. In addition,
retailers are unlikely to take NGO-appeasing actions when such actions
carry more competitive and profit risk than the potential reputational
damage caused by disappointed NGOs.
Here we consider all of these dynamics to examine the potential of
recently launched NGO initiatives to improve antibiotic use practices in
US agriculture. Our analysis looks for direct as well as indirect regulatory
and practical effects of this NGO campaign. In doing so, it draws on key
insights from recent NGO experience with retailer targeting as a strategy
for market-driven private regulation. Most importantly, we draw on the
. Zdravka Tzankova, Interactions Between Public and Private Resource Governance: Key
Insights From The Fisheries Case, WM. & MARY POLICY REV. (Fall 2015). DaraO’Rourke,Market
Movements: Nongovernmental Organization Strategies to Influence Global Production and
Consumption, 9 J. OF INDUSTRIAL ECOLOGY no. 1-2, at 115-128 (2005). Debora L. Spar & Lane T.
La Mu re, The Power of Activism: Assessing the Impact of NGOs on Global Business, 45 CALIFORNIA
MANAGEMENT REVIEW no. 3, at 78-101 (2003). Paul A. Argenti, Collaborating with Activists: How
Starbucks Works With NGOs, 47 CALIFORNIA MANAGEMENT REVIEW no. 1, at 91-116 (2004).
. Lars H. Gulbrandsen, Creating markets for eco-labeling: are consumers insignificant?, 13
INTERNATIONAL J. OF CONSUMER STUDIES no. 5, at 477-489 (2006). Tzankova, supra note 17.
O’Rourke,supra note 17. Gereffi et al., supra note 16.
. Jean Halloran, CU Director of Food Policy Initiatives, Pers. Comm., Sept. 19. 2013; see also
2014 Top 75: The clickable list, SUPERMARKET NEWS, http://supermarketnews.com/2014-top-75-
clickable-list (last visited Spring 2015).
. Frederick Mayer & Gary Gereffi, Regulation and Economic Globalization: Prospects and
Limits of Private Governance, 12 BUSINESS AND POLITICS no. 3 (2010). Argenti, supra note 17. Spar
and La Mure, supra note 17.
. Mayer & Gereffi, supra note 20.
. Spar and La Mure, supra note 17. Argenti, supra note 17. Stefano Ponte, The Marine
StewardshipCouncil(MSC)andtheMakingofAMarketfor‘SustainableFish’,12 J. OF AGRARIAN
CHANGE no. 2-3, at 300-315. Tzankova, supra note 17.
2015] Surf-n-Turf, but the Sustainable Kind? 309
achievements of, and insights from, a similar set of NGO initiatives that
have sought to reform environmentally problematic fishery practices by
leveraging the buyer power, supply chain influence, and private regulatory
authority of large retailers in the food markets of the global west.
so with careful attention to the specifics of the meat supply chain,
especially the organization of the industry and the power relationships
among US retailers and upstream actors in the meat supply chain. As
noted, we draw on key insights from market-driven fishery reform efforts
to evaluate the dynamics and potential of NGO efforts for market-driven,
private regulation of antibiotic use in US agriculture.
The analysis presented in this article suggests that NGO efforts to
mobilize and deploy the market power and private authority of retailers
and other big buyers within the meat supply chain represent a promising
approach to eliminating the problematic and persistent overuse of
antibiotics in US animal agriculture. It further suggests that this is the case
even if NGO efforts at private, market-driven regulation fall short of
reforming antibiotic overuse in US agriculture. That is, even if their
immediate private regulatory objectives are unsuccessful, market-based
regulation initiatives can still shift the politics of public regulation of
antibiotics in ways that facilitate the long-elusive strengthening of
government regulatory controls on antibiotics in agriculture.
More specifically, our analysis suggests that retailer targeting, on its
own, may well fail to generate private regulatory pressure sufficient to
reform agricultural antibiotic use. That is, we anticipate that even if
targeted retailers comply with NGO demands for exerting supply chain
pressure, which many targeted retailers are quite likely to do, they may be
unable to trigger antibiotic use reform by acting through the market alone.
Still, we show how NGO-cornered retailers can nonetheless become
significant contributors to agricultural antibiotics reform if they adapt their
responses to NGO pressure by combining the private regulatory authority
they have as big buyers with the political and public policy leverage they
have as large corporate actors. Creating a public expectation for retailer
exercise of market power and private regulatory authority on the
antibiotics issue may thus prove a critical component of a broader, multi-
front antibiotics reform strategy. Putting branded and closely competing
retailers in the spotlight, creating a risk of reputational and brand damage
for each of the NGO-targeted retailers, can motivate these retailers to use
all their resources—private regulatory authority and public regulation
. Tzankova, supra note 17.
310 Seattle Journal of Environmental Law [Vol. 5:1
influence alike—to advance the NGO reform agenda and avoid
The next section, Part II, introduces the longstanding problem of
antibiotic overuse in US agriculture and highlights the challenges of
addressing this problem through the public regulatory process. This
background is important to underscore why consumer and health
advocates have more recently turned to private, market-driven regulation.
Part III discusses why retailer targeting, particularly a sector-wide
targeting of all large retailers within a relevant national retail market, is a
promising strategy for private, market-driven regulation. Part IV turns to
retailer-focused NGO initiatives for market-driven regulation of fishing
and fishery practices. The experience from these initiatives offers an
important set of empirically-grounded insights on the potential and limits
of retailer targeting as a regulatory and reform strategy. Part V applies
these insights to the antibiotics case: it considers if and how retailer
cooperation with NGO demands to flex market power and supply chain
muscle can bring the desired reduction in antibiotic use in the US. Part VI
concludes by reflecting on both the direct and indirect potential of retailer
targeting, as a form of market-driven regulation, to reduce agricultural
antibiotic use in the US.
II. ANTIBIOTIC USE IN US AGRICULTURE: THE RATIONALE FOR PRIVATE,
The US Centers for Disease Control and Prevention (CDC) and its
international counterparts identify antibiotic resistance as one of the most
serious public health threats.
Over two million Americans each year
become seriously infected with antibiotic resistant bacteria and twenty-
three thousand die from the infections. Many more die from infection-
related complications of other health conditions.
In its latest report on the
devastation of antibiotic resistance and the urgent need for solutions, CDC
unambiguously points to antibiotic overuse and misuse as the cause of this
problem and holds up the judicious and sparing use of antibiotics as the
most promising solution to the unacceptably high human toll of overuse.
Up to half of antibiotic use in humans and much of antibiotic use
in animals is unnecessary and inappropriate and makes everyone less
. Antibiotic Resistance Threats in the United States, 2013, CDC 11-13 (2013),
http://www.cdc.gov/drugresistance/pdf/ar-threats-2013-508.pdf. Antimicrobial Resistance At The G8
Summit, GLOBAL JOURNAL, http://theglobaljournal.net/photo/view/1789/ (last visited Spring 2015).
. CDC, supra note 24.
2015] Surf-n-Turf, but the Sustainable Kind? 311
safe. Stopping even some of the inappropriate and unnecessary use
of antibiotics in people and animals would help greatly in slowing
down the spread of resistant bacteria.
A. The use of antibiotics in US animal agriculture
The CDC is also emphatic that given the human health risks,
antibiotics should only be used in livestock production to treat infectious
disease and should only be used under strict veterinary oversight.
oversight of antibiotic use in US agriculture is critically lacking.
the amount of antibiotics used in animal agriculture in the United States is
disputed because there are no mandatory reporting requirements for much
of the problematic sub-therapeutic use.
The Natural Resources Defense
Council (NRDC) calculates that 80 percent of all antibiotics sold in the US
are used in food animals,
with only a small portion of that amount used
for the treatment of sick animals. The meat industry, through its trade
associations and veterinary spokespeople, disputes these figures.
2009, the U.S. Food and Drug Administration (FDA) reported that the
industry used twenty-nine million pounds of antibiotics in 2009.
of this use is not to treat illness, (therapeutic use) but to prevent illness and
speed growth (sub-therapeutic use); the latter includes classes of
. CDC, supra note 24, at 31.
. See Antibiotic Resistance Threats Report and Foodborne Germs, CDC,
http://www.cdc.gov/narms/resources/threats.html (last visited Spring 2015).
. Playing Chicken with Antibiotics, NATURAL RESOURCES DEF ENSE COUNCIL,
http://www.nrdc.org/food/saving-antibiotics/antibiotic-feed-fda-documents.asp (last revised Jan. 27,
. See Mary McKenna, NEWS BREAK: FDA estimates us livestock get 29 million pounds of
antibiotics per year, WIRED (Dec. 9, 2010), http://www.wired.com/2010/12/news-break-fda-estimate-
us-livestock-get-29-million-pounds-of-antibiotics-per-year/. Tom Philpott, The FDA finally reveals
how many antibiotics factory farms use — and it's a shitload, GRIST (Dec. 11, 2010),
Apley comments on the 80 percent number, NATIONAL CATTLEMEN’S BEEF ASSOCIATION,
http://www.beefusa.org/videos.aspx?videoid=XKRO7QpPdLk (last visited Spring 2015). Saptoka et
al, supra note 2.
. NATURAL RESOURCES DEFENSE COUNCIL, supra note 28. Lydia Zuraw, CDC Acknowledges
Role of Farms in Antibiotic Resistance, FOOD SAFETY NEWS (Sept. 17, 2013),
http://www.foodsafetynews.com/2013/09/drug-resistant-infections/#.VO4oFLDF_Iw. See also
Summary Report on Antimicrobials Sold or Distributed for Use in Food-Producing Animals, FDA
(2011), available at http://www.fda.gov/downloads/ForIndustry/UserFees/AnimalDrugUser
. Antibiotic Use in Livestock Production: Ensuring Meat Safety, AMERICAN MEAT INSTITUTE,
(last visited Spring 2015). See also The Preservation of Antibiotics for Medical Treatment Act,
CONGRESSWOMAN LOUISE M. SLAUGHTER, https://www.govtrack.us/congress/bills/113/hr1150/text
(last visited Spring 2015).
. Philpott, supra note 29.
312 Seattle Journal of Environmental Law [Vol. 5:1
antibiotics critical for human medicine, such as tetracyclines, penicillins,
and sulphonamides. Prophylactic and growth promoting uses of antibiotics
often overlap, so it is difficult to distinguish between the two. The industry
has, therefore, tried to reframe its antibiotic use as primarily prophylactic
(i.e., helping animals stay healthy), without actually changing its
antibiotics use practices.
Sub-therapeutic doses of antibiotics have been routine in US animal
agriculture since the 1960s. Much of current US animal production is
dependent on antibiotics, especially pork and beef production.
Discovered accidentally in the late 1940s, the growth-promoting effect of
low-dose antibiotics routinely administered in animal feed has been
widely utilized to improve the productivity and economic returns of
The popularity of sub-therapeutic antibiotic use in
agriculture is further increased by the fact that such low dose use has
proven beneficial in controlling a number of chronic diseases typical for
intensively-reared animals living under the stress of confinement
Intensive agriculture operations across Western countries use
antibiotics for animal growth promotion, but the range of antibiotics
registered for growth-promoting use is widest in the United States.
B. The problem with agricultural overuse of antibiotics
The biggest concern raised by the agricultural overuse of antibiotics
is the fact that such overuse creates antibiotic resistance in animal and
Rapidly evolving animal pathogens continuously
exposed to antibiotics are quick to develop antibiotic resistance, which is
then transmitted to human pathogens, making a number of human
. Interview: Michael Pollan, FRONTLINE: MODERN MEAT, http://www.pbs.org/wgbh/pages
/frontline/shows/meat/interviews/pollan.html (last visited Spring 2015). The FDA is cracking down
onantibioticsonfarms.Here’syoushouldknow, WASH. POST, Dec. 14, 2013, http://www.washin
. “What’s inthe beef?”Survey Results, CONGRESSWOMAN LOUISE M. SLAUGHTER (July 2,
2012), http://www.louise.house.gov/blog/content/survey-results-antibiotics-in-the-food-you-buy/. As
July4Approaches,SlaughterReveals“What’sintheBeef”, FIX FOOD (July 3, 2013), http://www.
fixfood.org/news/181/as-july-4-approaches-slaughter-reveals-whats-in-the-beef/. Putting meat on the
table: Industrial farm animal production in America, THE PEW COMMISSION ON INDU STRIAL FARM
ANIMAL PRODUCTION (2008), available at http://www.ncifap.org/_images/PCIFAPFin.pdf.
. Barton, supra note 3. R. H, Gustafson, & R. E. Bowen, Antibiotic use in animal agriculture
85 JOURNAL OF APPLIED MICROBIOLOGY no. 5, at 531-541 (1997).
. Barton, supra note 3. Gustafson & Bowen, supra note 35.
. Barton, supra note 3.
. CDC, supra note 24. WORLD HEALTH ORGANIZATION, supra note 7. UNION OF CONCERNED
SCIENTISTS, supra note 7; Barton, supra note 3.
2015] Surf-n-Turf, but the Sustainable Kind? 313
infections traditionally treated through antibiotics difficult to cure and
The continued rise in overuse-driven antibiotic resistance has become
one of the top public health concerns internationally. Concern over the rise
and spread of antibiotic resistance is heightened by the fact that
development of new and more powerful classes of antibiotics is a slow and
difficult process, so the rise of bacterial resistance to the currently
available classes of antibiotics has outpaced our ability to develop new
ones. The problems presented by growth in bacterial drug resistance and
decreasing antibiotic effectiveness are significant enough to have taken
center-stage at a recent G8 summit. A number of national health and
science ministers used the 2013 G8 summit to raise awareness of the
antibiotic resistance issue and make an urgent and very public call for
rapid and rigorous policy and regulatory action to keep antibiotics working
by ensuring their responsible use.
The US agriculture industry, however, continues to deny the public
health hazards associated with its current practice of widespread sub-
therapeutic use of antibiotics on livestock.
Instead of heeding the
increasingly urgent calls for responsible and sparing use of antibiotics, the
US agriculture industry has proceeded to defend its practices as necessary
and therapeutic, putting the blame for antibiotic resistance on improper
and excessive human use.
. Maryn McKenna, G8 meeting begins: ag antibiotics on the agenda?, WIRED (June 17, 2013),
http://www.wired.com/2013/06/g8-ag-abx/. UK raises alarm on deadly rise of superbugs, THE
GUARDIAN (Jun. 11, 2013), http://www.theguardian.com/society/2013/jun/11/uk-urge-global-
clampdown-antibiotics-g8. Michael Fitzhugh, G8 Science Ministers Spotlight Antibiotics Resistance,
THE BURRILL REPORT (June 13, 2013), http://www.burrillreport.com/article-g8_science_ministe
. Use Science In Regulating Antibiotics, Agriculture Coalition Says, AMERICAN FARM
BUREAU FEDERATION (June 13, 2012), http://www.fb.org/index.php?action=newsroom.new
s&year=2012&file=nr0613.html. See also Beth Mole, MRSA: Farming up trouble: Microbiologists
are trying to work out whether use of antibiotics on farms is fuelling the human epidemic of drug-
resistant bacteria, 499 NATURE 7459 (July 24, 2013), available at http://www.nature.com/news/m
rsa-farming-up-trouble-1.13427. Dr. Apley answers the question, is animal health the sole contributor
to antibiotic resistance?, NATIONAL CATTLEMEN’S BEEF ASSOCIATION,
http://www.beefusa.org/videos.aspx?videoid=cYNebNs6MEg (last visited Spring 2015).
. Dr. Richard Raymond, Antibiotics and Animals Raised for Food: Lies, Damn Lies and
Statistics, FOOD SAFETY NEWS (Jan. 7, 2013), http://www.foodsafetynews.com/2013/01/antibiotics-
and-animals-raised-for-food-lies-damn-lies-and-statistics/#.VPnkZLDF_Iw. See also Barton, supra
note 3, at 290.
314 Seattle Journal of Environmental Law [Vol. 5:1
C. Public policy and regulatory attempts to control agricultural overuse
Public health concerns over the effects of sub-therapeutic animal uses
of antibiotics first emerged in the U.S. in the 1970s.
Prompted by these
concerns and the underlying data, the FDA itself proposed to restrict
agricultural uses of human antibiotics. The FDA’s early and prescient
regulatory effort was ultimately hindered by Congress: yielding to
pressure from the agricultural and pharmaceutical industries, Congress
declared that the FDA needed more data to justify its proposed regulatory
restrictions on agricultural use of antibiotics.
In spite of mounting scientific evidence and growing international
concern about the public health hazards caused by antibiotic overuse,
United States has so far failed to curb such overuse through public policy
Struggling against the chilling effect of industry
resistance through lobbying and litigation, the FDA has made several
significant attempts to control sub-therapeutic agricultural use of
antibiotics. None has produced binding and comprehensive restrictions on
the sub-therapeutic agricultural use of antibiotics, including antibiotics
important in human medicine.
Facing ongoing industry opposition to
. Federal Register Volume 76, Number 246 (Thursday, December 22, 2011); Maryn
McKenna, FDA Won’t Act Against Ag Antibiotic Use, WIRED (Dec. 23, 2011),
http://www.wired.com/2011/12/fda-ag-antibiotics/. See also First Amended Complaint for
Declaratory and Injunctive Relief, Natural Resources Defense Council Inc. v. FDA, 760 F.3d 151 (2d
Cir. 2014) (No. 11 Civ. 3562), available at http://docs.nrdc.org/health/files/hea_11052501a.pdf.
. Guidance to Industry # 209, supra note 7. Federal Register Volume 76, Number 246
(Thursday, Dec. 22, 2011).
. Guidance to Industry # 209, supra note 7.
. Laura Koontz, Staffer for Representative Louise Slaughter, Personal communication,
September 24, 2013; See also Brian Krans, Politics Stall Antibiotics Ban in Congress, HEALTHLINE
not-passed. Brent F. Kim et al., Industrial food animal production in America: examining the impact
ofthePewCommission’spriorityrecommendations, JOHN HOPKINS: CENTER FOR A LIVABLE FUTURE
7-9 (2013), available at http://www.jhsph.edu/research/centers-and-institutes/johns-hopkins-center-
. Brent F. Kim et al., supra note 45, at 8-9. See also Guidance to Industry # 209, supra note
7. See also Phasing Out Certain Antibiotic Use in Farm Animals, FDA (Dec. 11, 2013),
http://www.fda.gov/forconsumers/consumerupdates/ucm378100.htm. Sabrina Tavernise, F.D.A.
Restricts Antibiotics Use for Livestock, N.Y. TIMES, Dec. 11, 2013,
raised-for-meat.html?pagewanted=all&_r=0. See also Kurt R. Karst, Second Circuit Overturns Win
for Nonprofit Groups in Litigation with FDA Over Subtherapeutic Uses of Penicillin and Tetracyclines
in Animal Feed, FDA LAW BLOG (Jul. 28, 2014),
2015] Surf-n-Turf, but the Sustainable Kind? 315
binding and comprehensive agricultural antibiotic regulation,
as well as
growing NGO pressure in favor of such regulation,
the FDA most
recently attempted to control the industry by issuing voluntary industry
guidance. In this voluntary guidance, the FDA urged the pharmaceutical
industry to refrain from marketing certain classes of antibiotics,
particularly those important in human medicine, to the agriculture
industry; it also emphasized the importance of self-restraint by agricultural
producers when using antibiotics on livestock.
Unfortunately, this is the
best that the politically beleaguered and litigation-targeted FDA has been
able to manage. Perhaps unsurprising given the history and regulatory
politics of this issue, the voluntary guidance approach to regulating
agricultural use of antibiotics has failed to produce any appreciable change
in problematic patterns of sub-therapeutic use.
An apparently promising litigation-based approach has so far failed
as well: in 2012, the NRDC won a lawsuit against the FDA, getting a
federal court to compel the agency to begin withdrawing approvals for all
sub-therapeutic uses of penicillin and tetracyclines in animal feed. The
federal court decision was reversed on appeal by the Second Circuit a mere
two years later, however.
Finally, legislative efforts have fared equally poorly. Bills attempting
to regulate the sub-therapeutic animal use of antibiotic classes that are
important in human medicine—bills such as the Preservation of
. Brandon Conradis, Farm and Pharmaceutical Lobbies Push Back Against Antibiotics
Legislation, OPENSECRETS.ORG: CENTER FOR RESPONSIVE POLIT ICS (Oct. 25, 2013),
http://www.opensecrets.org/news/2013/10/farm-and-pharmaceutical-lobbies-pus/. Mole, supra note
40. Krans, supra note 45.
. See Letter from FDA to Citizen Petition, available at http://cspinetorg/new/pdf/denial-of-
2005-petition.pdf. Letter from EPA to Ann Alexander, Esq., available at http://switchboard.nrdc.org
/blogs/aalexander/Shapiro%20to%20NRDC%20re%20Petition%20%2012-14-12.pdf. See Natural
Resources Defense Council Inc. v. United States Food and Drug Administration, 872 F.Supp.2d 318
(S.D.N.Y. 2014). First Amended Complaint for Declaratory and Injunctive Relief, Natural Resources
Defense Council Inc. v. FDA, 760 F.3d 151 (2d Cir. 2014) (No. 11 Civ. 3562), available at
. Guidance to Industry # 209, supra note 7. Guidance to Industry # 213, New Animal Drugs
and New Animal Drug Combination Products Administered in or on Medicated Feed or Drinking
Water of Food Producing Animals: Recommendations for Drug Sponsors for Voluntarily Aligning
Product Use Conditions with GFI #209, FDA (Dec. 2013). See also Phasing Out Certain Antibiotic
Use in Farm Animals, FDA (Dec. 11, 2013), http://www.fda.gov/forconsumers/consumerupdates/uc
m378100.htm#voluntary. FDA’s Strategy on Antimicrobial Resistance – Questions and Answers,
orIndustry/ucm216939.htm (last updated Mar. 28, 2014).
. Karst, supra note 46.
316 Seattle Journal of Environmental Law [Vol. 5:1
Antibiotics for Medical Treatment Act (PAMTA)—have been repeatedly
introduced in Congress and have repeatedly failed.
D. The turn to private, market-based regulation of antibiotics use in ag-
Government and civil society efforts for public policy and regulatory
reform of agricultural antibiotic use are still very much underway, the
currently overwhelming political odds against them notwithstanding.
the face of such strong political resistance, reform advocates, including the
most vehement and longest-standing Congressional champions of
tightening public regulation, are also beginning to look to the market,
supply chains, and the private regulatory authority of powerful large
buyers within these supply chains for some private regulatory solutions to
the public health problems presented by excessive agricultural use of
medically important antibiotics. Quite notably, Representative Louise
Slaughter, the leader of the ongoing legislative efforts to reform
agricultural use of antibiotics, has herself recently focused her energies on
working through the market—on mobilizing the buying power and private
regulatory authority of large market actors within the meat supply chain,
and on getting these actors to use their power and authority to stop the sub-
therapeutic use of antibiotics in US livestock production. In 2012,
Representative Slaughter took the unusual step of sending a highly
publicized open letter to food retailers and fast food companies,
demanding that these companies state whether and how they are using
their significant market power to stop the dangerous overuse of antibiotics
by the livestock producers who supply their meat.
. Laura Koontz, Rep. Slaughter staffer, Personal Communication, Sept. 24, 2013; See, e.g.,
H.R. 1549 , 111th Cong. (2009), available at https://www.govtrack.us/congress/bills/111/hr1.
549. S. 619, 111th Cong. (2009), available at https://www.govtrack.us/congress/bills/111/s.
619. H.R. 1150, 113th Cong. (2013), available at https://www.govtrack.us/congress/bills
/113/hr1150/text. Feinstein: Preserve Effectiveness of Medically Important Antibiotics, DIANNE
FEINSTEIN: UNITED STATES SENATOR FOR CALIFORNIA (Jul. 16, 2011), http://www.feinstein.senate.
gov/public/index.cfm/press-releases?ID=fd1d4254-b06f-4260-b7b2-352768237406. Linda Larsen,
Legislators Reintroduce PARA, FOOD PO ISONING BULLETIN (Mar. 3, 2015),
. First Amended Complaint for Declaratory and Injunctive Relief, Natural Resources Defense
Council Inc. v. FDA, 760 F.3d 151 (2d Cir. 2014) (No. 11 Civ. 3562), available at
http://docs.nrdc.org/health/files/hea_11052501a.pdf. See also Natural Resources Defense Council Inc.
v. United States Food and Drug Administration; Guidance to Industry # 209, supra note 7. Guidance
to Industry # 213, supra note 49. Larsen, supra note 51.
. Letter from Rep. Louise M. Slaughter to Fast Food Restaurants, supra note 12.
2015] Surf-n-Turf, but the Sustainable Kind? 317
Representative Slaughter has begun approaching individual companies
directly, publicly asking McDonalds to switch to antibiotic-free beef.
In sum, having tried all the available public policy and regulatory
venues, civil society and even government officials are turning to the
market as a logical next arena for pursuing regulatory and management
III. THE PROMISE AND POTENTIAL OF RETAILER TARGETING AS AN NGO
STRATEGY FOR MARKET-BASED ANTIBIOTICS REGULATION
Market concentration and technology-enabled consolidation of
retailer control over the product chain have made large grocery retailers
one of the most powerful actors in the global food system.
A. The market power and private authority of large retailers
In the highly concentrated US grocery retail market, the four largest
retailers (WalMart, Kroger, Costco, with Safeway and Target
continuously vying for 4th place) control close to 50 percent of the national
market. The thirteen largest retailers targeted by the Consumers Union
“Meat without Drugs” campaign control more than 80 percent of the
national grocery market.
Grocery retail market concentration can reach
80 percent on the regional level, meaning that the top four retailers in a
number of US regions get up to 80 percent of all the consumer grocery
dollars spent in that region.
This type of market concentration gives large
. Chris Morran, Rep. Slaughter Asks McDonald’s To Switch to Antibiotic-Free Beef,
CONSUMERIST (May 19, 2014), http://consumerist.com/2014/05/19/rep-slaughter-asks-mcdonalds-to-
switch-to-antibiotic-free-beef/. Press Release, Congresswoman Slaughter Says McDonald's
Announcement on Antibiotics is "Encouraging," Shows Companies Respond When Public Demands
Change (Mar. 4, 2015), available at http://www.louise.house.gov/press-releases/congresswoman-
when-public-demands-change/; Maryn McKenna, Your McNuggets: Soon without a side of
antibiotics, WIRED (Mar. 4, 2015), http://www.wired.com/2015/03/mcdonalds-abx/.
. Burch & Lawrence, supra note 16. Fuchs et al., supra note 16. ANDREW SETH & GEOFFREY
RANDALL, THE GROCERS: THE RISE AND RISE OF THE SUPERMARKET CHAINS (London, Kogan Page
1999); Steve W. Martinez, The U.S. Food Marketing System: Recent Developments, 1997-2006, U.S.
DEPARTMENT OF AGRICULTURE, ECONOMIC RESEARCH SERVICE 42 (2007). Hatanaka et al., supra
. Richard Volpe, ERS, pers. comm., April 16, 2013. See EUROMONITOR INTERNATIONAL,
GROCERY RETAILERS IN THE US 14 (April 2013). See also 2014 Top 75: The clickable list, supra note
19. See also Barbara Farfan, Largest Canada, U.S. Grocery Retailers - Walmart, Kroger, Costco,
Target, Loblaw, ABOUT MONEY, http://retailindustry.about.com/od/worldslargestretailers/a
visited Spring 2015).
. Timothy J. Richards & Geoffrey Pofahl, Pricing Power by Supermarket Retailers: A Ghost
in the Machine?, CHOICES: THE MAGAZINE OF FOOD, FARM, AND RESOURCE ISSUES, available at
http://www.choicesmagazine.org/magazine/print.php?article=126 (last visited Spring 2015). Jason
318 Seattle Journal of Environmental Law [Vol. 5:1
retailers considerable, oligopsonistic power over upstream actors in the
agri-food supply chain, including agricultural food producers and food
processors, because both producers and processors are dependent on
retailers to get products to market.
A new and increasingly apparent dimension of this oligopsonistic
power is the capacity of such retailers to set and enforce product or process
requirements, rules, and standards on upstream actors within their supply
Prompted by the desire to enhance consumer confidence in the
aftermath of numerous food crises experienced in recent decades, many
retailers have developed private rules and standards focused on food safety
In addition to these product and process rules and standards,
retailers or supermarket organizations have also generated some of their
own quality assurance and safety schemes.
In sum, retailers are using
their buying power and associated private authority to require that
suppliers and producers comply with not only safety and quality assurance
standards, but also labor and environmental standards and practices.
Reform-minded NGOs who seek to improve the social and
environmental performance of agriculture and the food industry more
broadly are understandably interested in mobilizing the newly asserted
regulatory authority of large retailers and using it to change ecologically
and/or socially problematic practices in agriculture and food production.
Konefal et al., Supermarkets and supply chains in North America, in SUPERMARKETS AND AGRI-FOOD
SUPPLY CHAINS: TRANSFORMATIONS IN THE PRODUCTION AND C ONSUMPTION OF FOODS, 268-290 (D.
Burch & G. Lawrence, eds., 2007). Hatanaka et al. supra note 16; Richard Volpe, ERS, pers. comm.,
April 16, 2013.
. Burch & Lawrence, supra note 16. Fuchs et al., supra note 16. Martinez, supra note 55.
Hatanaka et al., supra note 16. Lawrence Busch & Carmen Bain, New! Improved? The transformation
of the global agrifood system, 69 RURAL SOCIOLOGY no. 3, at 321-346 (Sept. 2004).
. Fuchs et al., supra note 16. Hatanaka et al., supra note 16.
60. Spencer Henson & Thomas Reardon, Private agri-food standards: Implications for food
policy and the agri-food system, 30 FOOD POLICY no. 3, at 241-253 (2005). Busch & Bain, supra note
. A. Hughes, Responsible retailers? Ethical trade and the strategic re -regulation of
crosscontinental food supply chains, in CROSS-CONTINENTAL AGRI-FOOD CHAINS: STRUCTURES,
ACTORS AND DYNAMICS IN THE GLOBAL FOOD SYSTEM (N. Fold and B. Pritchard, eds, 2005). Susanne
Freidberg, Supermarkets and imperial knowledge, 14 CULTURAL GEOGRAPHIES no. 3, at 321-342;
Fuchs et al., supra note 16.
. Fuchs et al., supra note 16. Hatanaka et al., supra note 16. Linda Fulponi, Private voluntary
standards in the food system: The perspective of major food retailers in OECD countries, 31 FOOD
POLICY no. 1, at 1-13 (2006). Benoit Daviron, & Isabelle Vagneron, From Commoditisation to De
Products, 29 DEVELOPMENT POLICY REVIEW no. 1, at 91-113 (2011).
. Fuchs et al., supra note 16. Hatanaka et al., supra note 16.
2015] Surf-n-Turf, but the Sustainable Kind? 319
B. Retailer vulnerability to NGO pressure
What ultimately gives reform-minded NGOs the ability to muster
retailer market power and private regulatory authority in the service of
social and environmental objectives is the fact that large retailers are quite
vulnerable to NGO pressure. Using their position of expertise and moral
authority, NGOs are in a position to damage a retailer’s brand and
practices, and arguing that any sourcing from environmentally destructive
or labor-abusive agricultural and food producers makes retailers complicit
in environmental destruction and labor exploitation.
It is the same market
concentration that gives retailers their market power that makes them
vulnerable. Most large retailers operating in the highly competitive
environment of the concentrated grocery retail market can ill afford the
competitive and financial risks associated with NGO-inflicted reputational
This is because market concentration and the oligopolistic structure
of the grocery retail market has not made the business environment any
Grocery retail is a mature market whose growth is
generally tied to growth in population. Given their thin operating margins,
large retailers need a large number of customers to remain profitable,
meaning that they are constantly competing for the same finite and fairly
static pool of grocery buyers and purchases. Brand development and
differentiation through quality, variety, and convenience are the new core
elements of staying competitive.
Large grocery retailers are now brands
in their own right, and reputation in the realm of social and environmental
responsibility is an important component of differentiation and brand
This is precisely the reputation—and the part oftheretailer’s
. See, e.g., CASSON TRENOR & JAMES MITCHELL, GREENPEACE: CARTING AWAY THE
OCEANS VII (May 2013) [hereinafter GREENPEACE VII]. See also Gereffi et al. 2001 supra note 16;
O’Rourke,supra note 17; Gulbrandsen, supra note 18;
. Spar & La Mure, supra note 17; O’Rourke,supra note 17. Argenti, supra note 17; see also
The Brand Vulnerability Index, BURSON MARSTELLAR & SIG WATCH, available at http://burson-
marsteller.eu/wp-content/uploads/2010/09/100916_BROSCHURE_BVI_WEB.pdf (last visited
. Busch & Bain, supra note 58, at 329. Hatanaka et al., supra note 16.
. Daniel Hanner et al., Dynamics in a Mature Industry: Entry, Exit, and Growth of Big-Box
Retailers 13 (FTC Bureau of Economics Working Paper No. 308, 2011), available at
growth-big-box-grocery-retailers/wp308.pdf. Martinez, supra note 55. EUROMONITOR INTERNATIO
NAL, supra note 56.
. Busch & Bain, supra note 58.
. Thomas Miner, Sustainable Brands Earth Day Round-up 2011: Safeway, Whole Foods &
Mattel, SUSTAINABLE BRANDS (Apr. 22, 2011), http://www.sustainablebrands.com/news_a
320 Seattle Journal of Environmental Law [Vol. 5:1
brand image—that NGOs are in a position to damage when a retailer
refuses to use its market power in the public interest, or otherwise chooses
to defy NGO demands.
Research has demonstrated that at least two-thirds of consumers in
the global West form impressions of a company based on its ethics,
environmental impact, and social responsibility,
and that damage to one
dimension of the brand has the potentialtodamageacompany’soverall
reputation. NGO-targeted retailers thus have every reason to avoid the
reputational risks of defying NGO demands and expectations. Particularly
because the NGOs that target retailers as part of a broader strategy for
market-driven regulation are highly skilled at translating their campaign
goals and expectations into a much broader set of consumer, citizen, and
societal expectations regarding retailer behavior and use of market power
and supply chain leverage.
In sum, the same consolidation of the grocery retail market that has
given retailers their market power has also made them vulnerable to the
reputational consequences of negative interactions with NGOs. Perhaps
paradoxically, the more retailers invest in building a green reputation, the
more vulnerable they become to future NGO attacks threatening such
A number of retailers have invested in building a green
reputation, and have already worked to bolster and maintain such
reputations by meeting various NGO demands.
Such retailers should be
more likely to heed new NGO demands to make an earnest effort to use
their market power and private authority in ways that advance NGO
environmental and social reform objectives.
Indeed, corporate targeting in general, and the targeting of large,
branded retailers in particular, has been one of the most important strategic
innovations by NGOs and civil society actors engaged in advocating for
the public interest. The value and anticipated transformative potential of
this innovation was captured by a Greenpeace activist, who likened it to
Fontes et al., #SocialFootprint:HowUnderstandingYourProducts’SocialImpactsWillCreateValue
for Your Business, SUSTAINABLE BRANDS (Oct. 2, 2014), http://www.sustainablebrands.co
l_impact. Bart King, Publix, Google, UPS Have Best CSR Reputations¸ SUSTAINABLE BRANDS (Oct.
7, 2011), http://www.sustainablebrands.com/news_and_views/articles/publix-google-ups-have-best-
. Tzankova, supra note 17.
. James Allen & James Root, The New Brand Tax, WALL ST. J., Sept. 7, 2004,
. Busch & Bain, supra note 58. Hatanaka et al., supra note16.O’Rourke,supra note 17.
. E.g., sustainable seafood sourcing, cruelty-free animal products sourcing, etc.
2015] Surf-n-Turf, but the Sustainable Kind? 321
“discovering gunpowder for environmentalists.”
difficulty of sending market and regulatory signals by changing the buying
habits of large numbers of individual consumers, many NGOs have shifted
their emphasis to changing the sourcing practices of large and market-
powerful food buyers, buyers such as large grocery retailers who have the
authority and capacity to dictate production practices and conditions to
their suppliers and producers. Consumers are now informed citizen-
consumers who hold retailers responsible for their actions, especially their
use of market power to fix social and environmental problems in food
The brand vulnerability and reputational sensitivity of retailers are
what ultimately give NGOs the leverage to elicit retailer cooperation.
Acting from a position of social legitimacy and moral authority, NGOs
have managed to position themselves as a credible threat to reputationally
sensitive companies who defy their demands.
The proliferation of tools
for corporate reputation management in the face of NGO threats, such as
the Brand Vulnerability Index, is but one prominent indicator of the
strength of NGO leverage. It is also an indicator of the promise of
corporate targeting as a market-based strategy that uses supply chains to
mobilize private regulatory authority in the service of social and
C. The promise of retailer targeting as a strategy for market-driven anti-
Severalelementsofthe“MeatwithoutDrugs” campaign suggest that
it has particularly high transformative promise. First, its timing is quite
auspicious: by the time retailers faced CU demands to phase out meat
raised with sub-therapeutic antibiotics, many of them had already invested
in building a “green”reputation.
They did so to differentiate themselves
and be more competitive,
yet their success at building a green reputation
. Gereffi et al., supra note 16. Allen & Root, supra note 71.
. O’Rourke,supra note 17. Gulbrandsen, supra note 18. Michael Sutton & Laura Wimpee,
Towards Sustainable Seafood: The Evolution of a Conservation Movement, in SEAFOOD
ECOLABELING: PRINCIPLES AND PRACTICE 403-15, (Trevor Ward & Bruce Phillips eds., 2008). Maki
Hatanaka et al., supra note 16. Tzankova, supra note 17.
. BURSON MARSTELLAR & SIG WATCH, supra note 65. See also O’Rourke, supra note 17.
Spar & La Mure, su pra note 17. Jeff Frooman & AJ Murrell, Stakeholder influence strategies: The
roles of structural and demographic determinants. 44 BUSINESS & SOCIETY no. 1, at 3-3 (2005).
. Burson Marstellar & SIG Watch, supra note 65.
Carolyn Dimitri, Green marketing: Are environmental and social objectives compatible with profit
maximization, 25 RENEWABLE AGRICULTURE AND FOOD SYSTEMS no. 2, at 90-91 (June 2010).
. Miner, supra note 69. Fontes et al., supra note 69. King, supra note 69.
322 Seattle Journal of Environmental Law [Vol. 5:1
is what makes them more vulnerable to reputational damage on “green”
issues, and what ultimately makes them more susceptible to NGO pressure
on the issue of antibiotics in meat production. Ifa“green”retailerfailsto
engage and work with NGOs on a “green”issuelikeantibiotics, NGOs
like CU and its partners are perfectly positioned to publicize the
contradiction between theretailer’sgreenimage and its deficient action on
the antibiotics issue. That is, NGOs are perfectly positioned to jeopardize
a carefully built corporate reputation by exposing hypocrisy and hinting at
There is some evidence that Trader Joe’s has already experienced
some of this reputational pain. It was the first retail target singled out for
broad publicity by the CU campaign due to its large share of own-brand
products,whichispresumedtogiveTraderJoe’salotofcontrol over the
practices of suppliers making these products.
loyal customers surprised and disappointed by the revelation that the
retailer was not already selling only antibiotic-free meat.
Another advantage for the CU-led antibiotics campaign is that
previous retailer-focused efforts at market-based governance, such as
those of the sustainable seafood movement, old-growth coalition, and fair-
labor organizations before it,
had gone a long way towards establishing
consumer expectations for socially and environmentally responsible
retailer behavior. Those previous efforts focused on convincing people
that they were not just consumers, but citizen consumers who should view
a retailer’smarketpowerasasource of responsibility to advance the social
good. In other words, those campaigns went a long way in creating the
consumer and societal expectation that retailers would lead rather than
simply follow consumer trends or messages towards sustainability, all
while meeting the more traditional customer demands and expectations
about choice, variety, and pricing.
. Tzankova, supra note 17. Argenti, supra note 17. Spar & La Mure, supra note 17.
. Meg Bohne, WhyTraderJoe’s,WhyNow?, CONSUMERS UNION - NOTINMYFOOD.ORG (Jan.
18, 2013), http://notinmyfood.org/posts/3564-why-trader-joes-why-now. Jean Halloran, Director of
Food Policy Initiatives, Consumers Union, Personal Communication, Sept. 19, 2013. Burch &
Lawrence, supra note 16.
. See Meg Bohne, OverhalfmillionsignaturesdeliveredtoTraderJoe’sin NYC, CONSUMERS
UNION - NOTINMYFOOD.ORG (Sept. 28, 2012), https://notinmyfood.org/posts/3378-over-half-million-
. See Tzankova, supra note 17. Gulbrandsen, supra note 18. Gereffi et al., supra note 16.
O’Rourke,supra note 17. Christopher J. Chipello & Joseph Pereira, Activists Shred Paper Retailers
Over Use of Old-Growth Trees, WALL ST. J., Sept. 9, 2002, http://www.wsj.com/articles/SB10315
. Tzankova, supra note 17. GREENPEACE VII, supra note 64.
2015] Surf-n-Turf, but the Sustainable Kind? 323
item, and a major weekly draw of customers for most of the targeted large
A third reason that the retailer-focused “Meat without Drugs”
campaign should be particularly effective is the fact that agricultural
antibiotic use affects human health, and consumers have already come to
hold retailers responsible for health and safety aspects of the food they
sell. Campaign NGOs are well positioned to help consumers see the
connection between their own health concerns and the larger public health
concerns related to antibiotic overuse in agriculture. A notable 55 percent
of the consumers who purchased natural or organic meat in the US in 2013
cite positive long-term health effects for themselves as the rationale for
such purchase. Of those consumers who purchased natural and organic
meat, 46 percent said that those meats are free of substances they want to
At the same time, 69 percent of all consumers
say that price
prohibits them from buying natural/organic meat. Enlisting the indignation
and pressure of these consumers by reminding them that it is the retailer’s
job to protect them from the public health risks can be a powerful tool in
the hands of competent, strategic NGOs, such as CU, NRDC, and the
public health NGOs supporting their efforts.
A fourth factor spelling the promise of current NGO initiatives for
market-driven regulation of antibiotics in agriculture is the structure of
these initiatives. The campaign is positioned to target the entire grocery
retail sector and put pressure on all of the largest retailers, which represent
the vast majority of the US grocery retail market. In other words, it is
positioned to become one of the most encompassing and forceful among
current market-based environmental reform efforts.
To accomplish the broader environmental and social goals behind
their market-based governance efforts, NGOs need action by a critical
mass of retailers simultaneously pressing suppliers to change
environmentally and socially problematic practices in food production.
But market-driven governance initiatives that target all large retailers in a
national market have important strategic benefits as well: NGOs can
compare and contrast retailer performance, periodically singling out a
. Power of Meat Remains Strong at Retail, FMI NEWS ROOM (Feb. 24, 2015),
retail. The Power of Meat 2015: An In-Depth Look at Meat Through the Shoppers’ Eyes, FMI &
NAMI (2015), http://www.meatconference.com/sites/default/files/uploads/POM_Report_2015_FI
. The Power of Meat 2013: An In-Depth Lookat Meat Throughthe Shoppers’ Eyes, AMI
FOUNDATION & FMI 18 (2013), https://www.meatinstitute.org/index.php?ht=a/GetDocumentA
. The same consumers surveyed for the Power of Meat 2013 report. Id.
324 Seattle Journal of Environmental Law [Vol. 5:1
retailer for intensive pressure and publicity. This approach is especially
suited to changing the market in the ways desired by NGOs because it uses
the structure of the market and retail competition to create brinkmanship
and further pit already competing retailers against each other in terms of
their sustainable sourcing and sustainability performance.
compliance with NGO demands and the reputational consequences of such
compliance (or non-compliance) then become another explicit element in
market competition among retailers. When a few of the targeted retailers
meet NGO demands, thus presumably demonstrating the practical
feasibility and reasonableness of such demands, they are also helping to
increase pressure on the rest. This increases the sense of vulnerability
among the remaining targeted retailers who look especially bad if they fail
to act when competitors have.
In sum, the growing market power, supply chain leverage and private
regulatory authority of retailers, along with retailer vulnerability to
reputational damage, makes NGO targeting of large food retailers
particularly promising as a strategy for mobilizing and deploying market-
driven regulatory pressure on the use of antibiotics in U.S. agriculture. The
specific promise of the CU “Meat without Drugs” campaign is further
retailers are particularly conscious and protective of their laboriously built
green reputations, while consumers, conditioned by a number of previous
retailer-focused NGO initiatives for market-driven environmental reform,
are particularly attentive to retailer behavior and the ways retailers choose
to use their market power.
IV. THE DYNAMICS AND REGULATORY OUTCOMES OF RETAILER
TARGETING: INSIGHTS FROM MARKET-DRIVEN FISHERY REFORM
When confronted by forceful, sustained, and well-designed NGO
initiatives, many targeted retailers have strong incentives to cooperate.
However, the actual ability of retailers to solve societal problems through
the exercise of private authority varies across issues and situations.
nature and structure of relevant supply chains, particularly the power
relationships among nodes in the chains, affect the change-making
capacity of even the most cooperative set of retailers.
. See Tzankova, supra note 17. See also GREENPEACE VII, supra note 64.
. Mayer & Gereffi, supra note 20. Peter Dauvergne, & Jane Lister, Big brand sustainability:
Governance prospects and environmental limits, 22 GLOBAL ENVIRONMENTAL CHANGE no. 1, at 36-
45 (Feb. 2012).
. Mayer & Gereffi, supra note 20. Tzankova, supra note 17.
2015] Surf-n-Turf, but the Sustainable Kind? 325
The literature on corporate power and private regulation offers a
variety of examples of branded corporate actors, retail brands, and grocery
retailers in particular, that successfully used their buying power, under
NGO pressure, to change on-the-ground labor and environmental practices
in apparel and food production.
But, the literature also offers examples
where NGO-targeted large retailers have been unable to change
problematic production practices by acting through the market alone,
despite retailers’desiretodo so.
A. The limits of market-driven private regulation as revealed in the fish-
NGO-led efforts for fisheries reform provide a compelling example
of how adaptive and effective market-based regulation initiatives may well
succeed in changing the market for seafood (by creating a massive new
demand for sustainably caught fish in the seafood marketplace), yet still
fall short of generating the intended improvements in actual fishing and
fishery management practices.
In the case of NGO initiatives for market-driven reform of fishing
and fishery management practices, large US retailers—key market actors
in the seafood supply chain—have faced NGO demands very similar to
those made of them by the NGOs seeking market-driven reform of
antibiotic use practices in agriculture. Marine conservation NGOs expect
and publicly urge retailers to use their buying power to press for reform
and/or elimination of ecologically problematic fishing and fishery
resource use and management practices. The majority of NGO-targeted
Western retailers, including those in the U.S., have made serious and
public commitments to sustainable seafood sourcing, thus effectively
committing to use their market power, supply chain leverage, and private
regulatory authority for changing ecologically problematic practices in the
fisheries that supply their seafood. As part of their sustainable seafood
commitment, retailers have worked to understand the environmental
impacts and sustainability status of the seafood they sell. They have
eliminated some of the most problematic fish species from their seafood
inventory and imposed a new set of product specifications on their
processor and wholesaler suppliers. Retailers are increasingly pressing
. Gereffi et al., supra note 16. Busch & Bain, supra note 58. Susanne Freidberg, Cleaning up
down South: supermarkets, ethical trade and African horticulture, 4 SOCIAL & CULTURAL
GEOGRAPHY no. 1, at 27-43 (2003). Freidberg, supra note 16.
. Ponte, supra note 22. Mayer & Gereffi, supra note 20.
. Ponte, supra note 22. Tzankova, supra note 17.
326 Seattle Journal of Environmental Law [Vol. 5:1
their suppliers to deliver only seafood produced in ecologically
Even after such flexing of market power and private regulatory
authority, most seafood retailers have been unable to transition to a fully
or even mostly sustainable seafood supply.
This is because the supply of
sustainable seafood available on the global and US markets remains
seriously constrained by the still limited prevalence of sustainable fishery
practices. In other words, many of the fishing industry actors whose
ecologically problematic practices are the ultimate target of the NGO
retailer-focused campaigns are not changing such practices in response to
retailer, wholesaler, and processor demands for sustainably caught fish
from sustainably managed fisheries. Sustainable sources of supply are
particularly scarce for some of the seafood species most popular with
consumers—species such as shrimp and tuna—which means that large
retailers are unable to make credible threats about ceasing to source these
species from non-compliant producers. Without enough sustainable
sources for popular seafood items, refusing to do business with
unsustainable non-compliant producers would mean eliminating or greatly
reducing the amounts of popular seafood on offer.
retailers are poorly positioned to make such dramatic gestures, given that
they operate in a competitive context where even a temporary stockout of
popular merchandise can send customers to better stocked retail
competitors, possibly permanently.
In that market environment,
discontinuing the sale of ecologically problematic but popular seafood for
which there is no sustainable replacement is too big of a competitive risk,
one greater than the risk of reputational and brand damage from NGO
. See Tzankova, supra note 17. See also GREENPEACE VII, supra note 64. JAMES MITCHELL,
GREENPEACE: CARTING AWAY THE OCEANS VIII (2014) [hereinafter GREENPEACE VIII]. Are the
World’s Retailers and Restaurants Delivering on their Sustainable Seafood Promises?, SEAFOOD
INTERNATIONAL (Jul. 22, 2014), http://seafoodinternationaldigital.com/are-the-worlds-retailers-and-
. At least not without foregoing most of the variety and volume of popular seafood items
currently on sale, which few retailers are in a position to do, given the serious competitive
consequences of eliminating or reducing the availability of a popular, high-demand product such as
tuna, shrimp, or salmon: even temporary stockouts are known to send a retailer’s customers to
competitors, possibly permanently, and no retailer can risk eliminating ecologically problematic
seafood in the hope that his competitors would do the same. See Eric T. Anderson et al., Measuring
and Mitigating the Costs of Stockouts, 52 MANAGEMENT SCIENCE 52 no. 11, at 1751-1763 (2006).
. Tzankova, supra note 17. Zdravka Tzankova. Presented paper, Annual Convention of the
International Studies Association (ISA), San Diego, CA, Private regulation triggers for public
regulation demand? Insights from sustainable seafood campaigns that target US grocery retailers
(April 1-5, 2012).
. See Anderson et al, supra note 95 and accompanying text.
2015] Surf-n-Turf, but the Sustainable Kind? 327
action against non-compliant retailers.
Within the seafood supply chain,
retailers have, in other words, simply lacked the leverage that comes with
a ready set of alternative suppliers who are eager to meet retailer demands
if the current suppliers will not.
and their overall position as oligopsonistic buyers in the broader food
system have not been enough to demand upstream changes. Powerful as
they are, they lack sufficient market power and private authority within
the seafood supply chain itself. Reforming problematic fishery practices
apparently cannot be done through the market alone.
B. The unexpected broader potential of market-driven reform efforts
Limits on their direct effects and effectiveness notwithstanding, NGO
initiatives in private market-driven fisheries regulation have significantly
improved the prospects for attaining sustainable management and use of
currently problematic fisheries. By creating “sustainable seafood” as a
marketing category and convincing retailers in the global West to publicly
commit to sustainable seafood sourcing, these NGOs have turned retailers
and other big buyers
into major, active stakeholders in fishery
management and sustainable fishery practices. The serious and pervasive
conservation problems that NGOs are working to solve, including
overfishing, bycatch, and destructive fishing practices, have also become
a serious business problem for retailers and other big seafood buyers
struggling to meet sustainable sourcing commitments. The violation of
these commitments threatens corporate reputations, brands, and
competitiveness. Thus, the sustainability (or lack thereof) in fishery
practices has become a business problem that big buyers in the seafood
sector are newly motivated to solve.
Within this new strategic context—a context created by NGO efforts
at private, market-driven fisheries regulation—marine conservation NGOs
have the unprecedented opportunity to advance better fishery management
and stronger marine conservation by mobilizing the political and policy
influence of business stakeholders for seafood sustainability and using this
influence to advance public regulatory reform in fishery management.
NGOs, including a number of the NGOs whose market-focused work was
instrumental in getting sustainable sourcing commitments from big
. Tzankova, supra note 17.
. Tzankova, supra note 17.
. Such as the wholesalers and processors, like HighLiner foods that supply retailers. See, e.g.,
The High Liner Sustainability Report Card, HIGH LINER FOODS, http://highlinersustainab
ility.com/resources/video/the-high-liner-sustainability-report-card/ (last visited Spring 2015).
328 Seattle Journal of Environmental Law [Vol. 5:1
seafood buyers, appear to be seizing this new opportunity. With NGO
urging, guidance, and rewards, retailers and the big seafood buyers and
processors who have contracts to supply those retailers are beginning to
find themselves working, directly or indirectly, to strengthen the public
regulatory government of problematic source fisheries (i.e., working to
attain the kind of regulatory government that can ensure a sustainable
seafood supply by reforming ecologically problematic fishery resource use
In light of difficulties with using market pressure to improve fisheries
management, marine conservation NGOs have set a modified new agenda
for seafood buyer engagement in fishery sustainability: they are urging
seafood buyers to flex their political and policy muscle as well as their
supply chain muscle in pursuit of improved fishing and fishery
management practices in their source fisheries. As stated during an NGO
panel at the annual industry-NGO sustainable seafood meeting:
More and more businesses are taking steps towards sustainability.
However . . . many forward-thinking companies are concerned that
some steps that would be good for the environment and long-term
sustainability may not be currently competitive. Engaging in advo-
cacy to reform fishery and aquaculture laws can be a powerful avenue
to extend sustainability measures to the entire sector, ensuring that
steps that would be good for the environment will be good for busi-
ness as well.
In sum, extensive recent experience from NGO initiatives in private,
market-driven fisheries regulation suggests that well-designed and well-
run NGO initiatives for market-driven private regulation—initiatives that
combine sector-wide appeal to retailers and other big buyers with a
periodic singling out of individual food retail corporations for public
scrutiny and pressure—can have significant regulatory and transformative
potential, even if they do not work as originally planned.
Intriguingly, and perhaps unexpectedly, the NGO experience with
private, market-driven fisheries regulation suggests that even if private
regulatory initiatives fail to directly produce the desired improvements in
. Indeed, even the most confrontational and brand-attack centered NGOs, such as
Greenpeace, have explicitly acknowledged retailer and other big buyer efforts at strengthening the
public regulatory process, encouraging retailers and seafood buyers to undertake such efforts, and
rewarding them reputationally when they do. See, e.g., GREENPEACE VII, supra note 64. See also, e.g.,
GREENPEACE VIII, supra note 94.
. Seafood Summit: Sharing Responsibility For Real Change, SEAFOOD CHOICES ALLIANCE
16 (Feb. 2009), available at http://seafoodchoices.com/seafoodsummit/documents/programwcov
2015] Surf-n-Turf, but the Sustainable Kind? 329
environmental and resource practices, they may still do so indirectly by
creating important new business demand and support for improved
government regulation of ecologically problematic environmental and
resource practices. This gives NGOs an opportunity to mobilize and direct
the political and policy influence of such new business stakeholders
towards sustainability-focused public policy and regulatory change.
V. RETAILER RESPONSES TO NGO ANTIBIOTICS-IN-MEAT DEMANDS:
WHAT WE COULD EXPECT AND WHY
NGO experience with efforts to use the market to reform fisheries
shows that the relative success of harnessing buying power to change the
environmental practices of food producers depends on the structure of the
relevant markets, the organization of the relevant supply chains, and,
particularly, the relative power of big corporate buyers within these supply
What, then, are the prospects of private, market-based governance of
antibiotic use in US agriculture? What is the likelihood that large retailers,
under pressure from NGOs, will stop the sub-therapeutic use of antibiotics
in US agriculture by exerting buyer power over upstream actors in the
meat supply chain? How easy or difficult would it be for these retailers to
make the NGO-demanded shift to sourcing and selling only meat produced
without sub-therapeutic doses of antibiotics?
A. The Regulatory Promise of Markets-Focused NGO Antibiotics Initia-
In several respects, market-based NGO campaigns related to
antibiotics appear to have more regulatory and practical promise than their
fisheries counterparts. First, the changes in agricultural practice sought by
consumer and medical NGOs should be easier and more straightforward
to implement than the scientifically complex task of managing naturally
fluctuating fish stocks to avoid overfishing. A comprehensive agricultural
transition away from sub-therapeutic antibiotics would involve certain
changes to the protocols and daily routines of the currently dominant
intensive animal farming operations and likely an increased cost of
production, at least in the short term.
This kind of technical and practical
. The production (and food) cost implications of eliminating sub-therapeutic animal uses of
antibiotics are a subject of considerable debate. See, e.g., Richard Raymond, supra note 41. NRDC
Case Study: Going Mainstream: Meat and Poultry Raised Without Antibiotics, NRDC (Oct. 2014),
http://www.nrdc.org/food/files/antibiotic-free-meats-CS.pdf. See generally, NATIONAL RESEARCH
COUNCIL, supra note 4. Nigel Key & William McBride, Antibiotics Used For Growth Promotion Have
a Small Positive Effect on Hog Farm Productivity, USDA ECONOMIC RESEARCH SERVICE (Jul, 7,
330 Seattle Journal of Environmental Law [Vol. 5:1
transition, however, has already succeeded in agricultural contexts similar
to the US one, such as Denmark, where government regulation has driven
a phase-out of sub-therapeutic antibiotic use from animal production with
no appreciable long-term impacts on farming operations and meat costs.
Second, the relevant meat supply chains are not as lengthy, complex,
and geographically dispersed as the global seafood supply chains. Much
of the meat sold and consumed in the U.S. is produced and processed in
and it is U.S. agriculture’suseofantibiotics that NGO market
initiatives aim to reform.
A third factor suggesting the potential success of NGO efforts to
affect market-driven regulation of antibiotics is the fact that when the
NGO market campaigns began, most of the targeted retailers were already
sourcing and selling a number of antibiotic-free meats in response to
consumer demand and willingness to pay a premium for various types of
to include natural, organic, grass-fed, free-range, and other categories)
have continued to grow in market share.
Most of the meat across this
. Impacts of Antimicrobial Growth Promoter Termination in Denmark, WORLD HEALTH
ORGANIZATION (Nov. 2002), http://apps.who.int/iris/bitstream/10665/68357/1/WHO_CDS_CPE_
. Poultry & Eggs: Overview, United States Department of Agriculture: Economic Research
Service, http://www.ers.usda.gov/topics/animal-products/poultry-eggs.aspx (last updated Nov. 7,
2012). Hog & Pork: Overview, UNITED STATES DEPARTMENT OF AGRICULTURE: ECONOMIC
RESEARCH SERVICE, http://www.ers.usda.gov/topics/animal-products/hogs-pork.aspx (last updated
Jun. 27, 2014). Cattle & Beef: Overview, UNITED STATES DEPARTMENT OF AGRICULTURE: ECONOMIC
RESEARCH CENTER, http://www.ers.usda.gov/topics/animal-products/cattle-beef.aspx (last updated
May 26, 2012). As one of the largest meat producers in the world, the US is also a significant exporter
of meat. See, e.g., Kenneth Mathews & Mildrey Haley, Livestock, Dairy, and Poultry Outlook, UNITED
STATES DEPARTMENT OF AGRICULTURE: ECONOMIC RESEARCH SERVICE (Feb. 17, 2015), available
at http://www.ers.usda.gov/media/1783484/ldpm248.pdf. U.S. CENSUS BUREAU, TABLE 1375:
FISHERIES – COMMERCIAL CATCH BY COUNTRY: 1990 TO 2008 (2012), available at
https://www.census.gov/compendia/statab/2012/tables/12s1377.pdf. Leading Markets for U.S. Beef
and Veal, NATIONAL CATTLEMEN, http://www.beefusa.org/CMDocs/BeefUS
A/Resources/Statistics/November/leading%20markets.pdf (last visited Spring 2015).
. See, e.g., Bill Greer & Janet Riley, New Consumer Research Unveiled at the Annual Meat
Conference: Conventional Supermarkets Wield the Power of Meat Sales to Compete; Demand for
Natural and Organic Meat Increasing, FMI (Feb 20, 2007), http://www.fmi.org/news-room/news-
organic-meat-increasing. Purchasing Behavior in the Meat Department Reaching New Balance, FMI
(Feb 22, 2011), http://www.fmi.org/news-room/latest-news/view/2011/02/22/purchasing-behavior-
in-the-meat-department-reaching-new-balance. 2012 Power of Meat Executive Summary, AMI & FMI
3 (2012), http://www.fmi.org/docs/complimentary-research/2012-power-of-meat-exec-summary-
final.pdf?sfv rsn=2. The Power of Meat 2015, supra note 85.
2015] Surf-n-Turf, but the Sustainable Kind? 331
category comes from animals raised without the sub-therapeutic use of
Further, a large percentage of consumers go to large grocery
retailers—the NGO-targeted retailers—for their sustainable meat
purchases. Traditional supermarkets, like Safeway, Kroger, and Stop-and-
Shop, are the primary source of organic meat purchases for 50 percent of
organic-buying consumers. Supercenters and warehouse clubs like
Walmart and Costco are the primary source of organic meat purchases for
an additional 22 percent of consumers.
Whole Foods is the only large retailer that exclusively sells
antibiotic-free meat from animals raised in accordance with a minimum
animal welfare standard (or higher) typically at a considerable price
premium. Whole Foods’ sales of sustainablemeat (along with those of
small and independent grocers) contribute to the viability of its supplier
farms, which often have higher costs associated with their more humane
and environmentally-attuned production methods.
Practically all of the NGO-targeted large retailers, however, offer a
wide array of antibiotic-free and antibiotic-light alternatives to
conventional meat, sold under both manufacturer and store brands,
spanning several sustainable meat categories, such as natural, organic, and
Introduced in 2011, Safeway’s “Open Nature” store brand
. Organic meat, for example, is by definition produced without the use of any antibiotics, and
many grass-fed and natural meat producers and brands also do not allow the use of antibiotics
(although such use is not specifically prohibited by the use of those two terms on meat labels). See
USDA National Organic Program, UNITED STATES DEPARTMENT OF AGR ICULTURE: AGRICULTURAL
MARKETING SERVICE, http://www.ams.usda.gov/AMSv1.0/ams.fetchTemplateData
ype=&acct=nopgeninfo (last modified Apr. 4. 2013). See also Our Sta ndards, AMERICAN GRASSFED
ASSOCIATION, http://www.americangrassfed.org/about-us/our-standards/ (last visited Spring 2015)
(The production standards of the American Grassfed Association, which prohibit the use of
. 2012 Power of Meat Executive Summary, supra note 106, at 3. The Power of Meat 2015,
supra note 85.
. Geoff Gr een, PITMAN FAMILY FARMS, Pers. Comm. Shannon Lamoreaux, Koch’s Turkey
Farm Carves Out Niche Supplying Whole Foods, SMALL BUSINE SS TRENDS (Dec. 13, 2014),
http://smallbiztrends.com/2014/12/kochs-turkey-farm-whole-foods.html. Eileen Brady & Caitlin
O’Brady, Consumer Considerations and Agriculture of the Middle, in FOOD AND THE MID-LEVEL
FARM: RENEWING AN AGRICULTURE OF THE MIDDLE 103-118 (T. Lyson et al., eds., 2008). G. W.
Stevenson & Rich Pirog, Values-Based Supply Chains: Strategies for Agrifood Enterprises of the
Middle, in FOOD AND THE MID -LEVEL FARM: RENEWING AN AGRICULTURE OF THE MIDDLE 119-146
(T. Lyson et al., eds., 2008).
. “Organic” and “grass-fed” are termsof law: labeling a product as organic or grass-fed
indicates producer compliance with specific sets of government and industry standards of organic and
grass-fed production. As noted in FN 107,however,“grass-fed”asalegallydefinedmarketingclaim
refersonlytotheanimal’sdiet,nottotheuseofantibiotics. “Natural,”ontheotherhand,is largely a
332 Seattle Journal of Environmental Law [Vol. 5:1
features beef, poultry, and pork products from animals raised with no sub-
therapeutic use of antibiotics.
Kroger’s “Simple Truth” private label
offers similar attributes, as does Ahold’s “Nature’s Promise.” These
“better meat” sales by mainstream retailers are helping generate
environmental and animal welfare improvements, even if arguably
in the conventional meat industry.
Indeed, it is this capacity for market-driven transformation that NGO
retailer targeting is intended to mobilize. NGOs view the market-driven
transformation of problematic antibiotic use practices as being within the
power of targeted large retailers.
B. Retailer responses to the demands of markets-focused NGOs
Similar to the fisheries context, however, we can expect retailers to
have trouble shifting entirely to antibiotic-free meats as long as there is
limited US supply of such meats—i.e., as long as producers continue their
unwillingness to shift away from sub-therapeutic uses.
term of art on fresh meat labels, because its legal definition (no additives or preservatives) has no
relevance to raising practices. It is used in the marketplace to stand for a wide variety of actual as well
as putative product and process attributes associated with a food item; its use on food products is thus
quite controversial. See, e.g., Andrew Gunther, Let’sKillNatural, ANIMAL WELFARE APPROVED (Jul.
3, 2014), http://animalwelfareapproved.org/2014/07/03/lets-kill-natural/; Only Organic, The Natural
Effect, YOUTUBE (Jan. 28, 2014), https://www.youtube.com/watch?v=A
ftZshnP8fs&list=PLznAU92Y_6gGki11IuUX-vriFQuczGXw; The term, or its derivatives (e.g.
Safeway’s“OpenNature”labelwhichincludesantibiotic-free meat), is nonetheless appropriately used
in a number of cases to signify antibiotics-free meat—see, e.g, Where to Buy, COUNTRY NATURAL
BEEF, http://www.countrynaturalbeef.com/where-to-buy.html (last visited spring 2015).
. Safeway AnnouncesOpenNature™Lineof100%Natural Foods, SAFEWAY: INVESTOR
(last visited Spring 2015). Robert Vosburgh, Safeway’sStrategyBehindOpenNature, SUPERMARKET
NEWS (Jan. 28, 2011), http://supermarketnews.com/blog/safeway-s-strategy-behind-open-nature
. Temple Grandin, Special report: Maintenance of good animal welfare standards in beef
slaughter plants by use of auditing programs, 226 JOURNAL OF AMERICAN VETERINARY MEDICAL
ASSOCIATION 370-373 (2005), http://americanradioworks.publicradio.org/features/mcdonalds/tem
ple_print.html. Keith Kenny, McDonald’s: Progressing Global Standards in Animal Welfare, in
ANIMALS, ETHICS, AND TRADE: THE CHALLENGE OF ANIMAL SENTIENCE 166 (Jacky Turner & Joyce
. Jonathan Kaplan, NRDC, Pers. comm.; the McDonalds shift to humanely slaughtered beef,
and the positive ripple effects that had on the whole industry—given the size of McDonalds as a buyer,
humane slaughter became widespread in the US thanks to its requirements. See, e.g., Grandin, supra
note 112. Gregory G. De Blasio, Understanding McDonald's Among the "World’s Most Ethical
Companies", 13 ELECTRONIC JOURNAL OF BUSINESS ETHICS AND ORGANIZATION STUDIES no.1, at 5-
12 (2008), available at http://ejbo.jyu.fi/pdf/ejbo_vol13_no1_pages_5-12.pdf. Kenny, supra note 112.
. Jean Halloran, CU, pers. comm.; Andrew Gunther, ANIMAL WELFARE APPROVED, pers.
. Lisa Baertlein & P.J. Huffstutter, McDonald's antibiotic-free move could prompt U.S.
chicken squeeze, REUTERS (Mar 4, 2015), http://www.reuters.com/article/2015/03/05/usa-mcdonalds-
antibiotics-industry-idUSL1N0W62AX20150305. See also Drive-thru review: All-Natural Burger at
2015] Surf-n-Turf, but the Sustainable Kind? 333
then, is how retailers can persuade their upstream suppliers—and
particularly those most responsible for production decisions—to make that
shift. Retailers either have to be able to offer sufficient price incentives or
they need to have enough market power to force upstream supply chain
actors to make changes even without price increases. Neither of these
scenarios seems likely, however.
First, the use of price premiums to expand the US production and
supply of antibiotic-light meat does not seem viable for most of the
targeted retailers because most would not be able to pass such premiums
onto their customers. Raising meat prices is competitively too risky for
most any individual retailer,
unless the retailer could be sure that their
relevant regional competitors would do the same. No such assurances are
possible or forthcoming in the current climate of the US grocery market.
The latest consumer research points to pervasive, recession-driven
frugality among many grocery shoppers, suggesting that cost is the largest
concern for many consumers, and that recession-driven frugality in
grocery purchasing habits is poised to remain the new norm for many
For meat in particular, the most recent annual surveys
Carl’sJr.isgoodbutnotmuch.THE GAZETTE (Dec. 29, 2014), http://gazette.com/drive-thru-review-
of recent Superbowl ad fame are made from Australian beef). See also Stephen McDonnell, Supply
And Demand: Changing the Economics of Antibiotic-free Meat, HUFFINGTON POST (Apr. 17, 2014),
Lynne Peeples, Superbug Fear Meets Super Bowl with Sexy Antibiotic-Free Burger, HUFFINGTON
POST (Jan. 31, 2015), http://www.huffingtonpost.com/2015/01/31/super-bowl-ad-antibiotic-
resistance-_n_6582866.html. Peter Rosset, Here’s the Beef/ Factory-farming practices have been
linked to human illnesses, but alternative sources for meat and poultry are rapidly shrinking, SFGATE
(Jan. 7, 2001), http://www.sfgate.com/news/article/Here-s-the-Beef-Factory-farming-practices-have-
2968007.php. And note Chipotle’svarioussourcingwoesasitstrugglestoensureasufficientsupply
of humanly produced, antibiotics-free meat. Leslie Patton, Chipotle May Allow Some Antibiotic-
Treated Beef, BLOOMBERG BUSINESS (Aug. 13, 2013), http://www.bloomberg.com/news/articles/2
013-08-12/chipotle-to-allow-some-antibiotic-treated-beef (stating that Chipotle considers changing
beef standard amid shortage). Dan Charles, Chipotle’sPulled Pork Highlights Debate Over Sow
Welfare, NPR (Jan. 19, 2015), http://www.npr.org/blogs/thesalt/2015/01/16/377760603/chipotles-
pulled-pork-highlights-debate-over-sow-welfare. Candice Choi, No Carnitas? Chipotle stops service
pork at hundreds of restaurants, THE CHRISTIAN SCIENCE MONITOR (Jan. 14, 2015),
. So much so that retailers have absorbed some of the recent high commodity and wholesale
prices for meat. See, e.g. Amy Mayer, High Prices Aren't Scaring Consumers Away From The Meat
Counter, NPR (Aug. 26, 2014), http://www.npr.org/blogs/thesalt/2014/08/26/3434037
. Nicholas Hodson et al., Four Forces Shaping Competition in Grocery Retailing, BOOZ &
CO (2012), available at http://www.strategyand.pwc.com/media/uploads/Strategyand_Four-Forces-
. 2012 Power of Meat Executive Summary, supra note 106. See also Hodson et al., supra
334 Seattle Journal of Environmental Law [Vol. 5:1
conducted by the American Meat Institute (AMI) and the Food Marketing
Institute (FMI) find that before shopping for meat and poultry, 45 percent
of consumers regularly compare meat and poultry prices across stores,
while another 31 percent of consumers engage in such cross-store meat
price comparisons some of the time.
The same surveys find 86 percent
of consumers comparing prices within the meat department once they are
in the store, and a number of consumers substituting kinds or cuts of meat
as a way to control their meat spending.
60 percent of the surveyed meat
consumers were found to use a variety of additional money-saving
strategies, such as the use of meat-stretching meal types like pastas and
casseroles and reliance on sales and promotions.
Retailers who are able to pass the higher costs of antibiotic-free or
other sustainable meat to their customers have a different customer base
than the mainstream retailer—a customer base both willing and able to
pay often significant price premiums for higher sustainability (and health)
attributes of meat and other products.
Given the remarkably small profit margins in traditional grocery
and given the importance of meat as a grocery retail
category, retailers like Safeway, Kroger, HEB, and Ahold,
majority of US grocery consumers buy most of their meat for at-home
cannot absorb the cost of price premiums they would have
to pay suppliers to abandon sub-therapeutic antibiotic use. It would
certainly be unrealistic to expect retailers like HEB, for which beef is the
largest retail category and worth $700 million in annual sales, to meet
NGO demands by absorbing the costs of such premiums.
Ultimately, however, it is precisely because large retailers have
succeeded in forcing upstream actors to change their practices, and at those
. 2012 Power of Meat Executive Summary, supra note 106. The Power of Meat 2013, supra
. The Power of Meat 2013, supra note 86, at slides 12, 13.
. The Power of Meat 2013, supra note 86. 2012 Power of Meat Executive Summary, supra
. Lawrence Busch, The private governance of food: equitable exchange or bizarre
bazaar?. 28 AGRICULTURE AND HUMAN VALUES no. 3, at 345-352 (2011). Burch & Lawrence, supra
note 16. EUROMONITOR INTERNATIONAL, supra note 56. See also Tiffany Wright, What Is the Profit
Margin for a Supermarket?, AZCENTR AL, http://yourbusiness.azcentral.com/profit-margin-
supermarket-17711.html (last visited Spring 2015).
Food Market, and Peapod.
. 2012 Power of Meat Executive Summary, supra note 106. The Power of Meat 2013, supra
. Burt Ruterford, A Retailer Speaks On Beef, Consumers & The Future, BEEF MAGAZINE
(Nov. 8, 2012), http://beefmagazine.com/retail/retailer-speaks-beef-consumers-future.
2015] Surf-n-Turf, but the Sustainable Kind? 335
that NGOs have chosen to focus on retailers to fix
ecological or social problems with food production. If price incentives are
beyond the reach of most targeted retailers, what of retailer capacity to
force change in the antibiotic use practices of upstream actors responsible
for production decisions?
The capacity of retailers to force environmental, labor, or other
changes in the production practices of their suppliers is rooted in their
oligopsonistic buyer power. It has usually depended on having a ready
array of alternative suppliers, which allows retailers to make the credible
threat that suppliers reluctant to comply with retailer product or process
requirements will be replaced by others who comply.
This is, for
example, the dynamic behind the success of NGO-pressured European
retailers in reforming the labor practices of Zambian horticultural
or the success of US retailers and large produce buyers in
forcing California leafy greens growers to change their field management
practices in ways perceived
to reduce the threat of food borne illness.
Yet in the case of the US market for meat, the large retailers targeted
by NGOs are hardly supply chain Goliaths dictating product and process
terms to a sea of producer and processor Davids. Rather, in seeking a shift
to a supply of meat produced without the prophylactic and growth
promoting use of antibiotics, retailers are dealing with a highly
. CHARLES FISHMAN, THE WAL-MART EFFECT: HOW THE WORLD'S M OST POWERFUL
COMPANY REALLY WORKS--AND HOW IT'S TRANSFORMING THE AMERICAN ECONOMY (Penguin Press,
2006). Freidberg, supra note 91. Freidberg, supra note 16. SHERMAIN D. HARDESTY & YOKO
KUSUNOSE GROWERS’ COMPLIANCE COSTS FOR THE LEAFY GREENS MARKETING AGREEMENT AND
OTHER FOOD SAFETY PROGR AMS, UC SMALL FARM PROGRAM BRIEF (Sept. 2009), available at
http://sfp.ucdavis.edu/files/143911.pdf. Melanie Beretti & Diana Stuart, Food safety and
environmental quality impose conflicting demands on Central Coast growers. 62 CALIFORNIA
AGRICULTURE no. 2, at 68-73. Hatanaka et al, supra note 16. Fuchs et al., supra note 16.
. Freidberg, supra note 91. Freidberg, supra note 16. Busch & Bain, supra note 58. Hatanaka
et al, supra note 16. Fuchs et al., supra note 16. Mayer & Gereffi, supra note 20.
. Freidberg, supra note 84. Freidberg, supra note 16.
. The demands that leafy green buyers imposed on producers were based on the incorrect and
factually unsupported perception that E. coli contamination of California leafy greens was the result
of wildlife presence on agricultural fields. Leafy green buyers thus demanded a number of grower
measures to discourage wildlife presence, prompting many growers to eliminate vegetation buffers,
biodiversity breaks, and other agricultural conservation measures designed to protect water quality
and biodiversity on California agricultural land. See, e.g., Sasha Gennet et al., Farm practices for food
safety: an emerging threat to floodplain and riparian ecosystems, 11 FRONTIERS IN ECOLOGY AND
THE ENVIRONMENT no. 5, at 236-242 (2013). RICK GELTING, INVESTIGATION OF AN EXCHERICHIA
COLI O157:H7 OUTBREAK ASSOCIATED WITH DOLE PRE-PACKAGED SPINACH (2006), available at
Associated_with_Dole_Pre-Packaged_Spinach.pdf. See also Beretti & Stuart, supra note 126.
. Beretti & Stuart, supra note 126. Varun Shekhar, Produce Exceptionalism: Examining the
Leafy Greens Marketing Agreement and Its Ability to Improve Food Safety, 6 J. FOOD L. & POL'Y, 267
336 Seattle Journal of Environmental Law [Vol. 5:1
concentrated meatpacking sector with a small number of powerful actors
just upstream of them in the supply chain.
Often controlling key
production decisions (including decisions on antibiotic use) within the
context of contract farming or vertical integration,
companies are the critical link between targeted retailers and the US
agricultural producers. Their market power directly influences the
antibiotic use decisions of their own upstream suppliers: feedlots and
While retailers have tried to balance some of this power through the
development of own-brand meat lines and products,
retail brand meats
are still supplied by the same few packers behind the national brands,
while the national meat brands controlled by the packers are still quite
popular among US meat consumers. These dynamics suggests retailer
dependence on the large US meat companies, the same companies that
NGOs want the retailers to influence.
As meat-loving US consumers
continue to seek out their favorite meat products and brands, dire
competitive consequences are likely to befall mainstream retailers whose
concern over sustainability or public health implications of the available
meat supply prevents them from fully meeting their customers’ meat
The supply chain leverage and attendant private regulatory capacity
of large meat retailers, including both large grocers and fast food chains,
could be considerably boosted by a ready availability of a competitively
priced imported supply of “antibiotic-free”meat. A credible threat of even
a temporary switch to foreign suppliers who use no sub-therapeutic doses
of antibiotics in the rearing of food animals could potentially get the
attention and cooperation of US meat companies in the antibiotic-
. Alan Barkema et al., The new US meat industry, 86 ECONOMIC REVIEW: FEDERAL RESERVE
BANK OF KANSAS CITY no. 2, at 33-56 86 (2001). MARY HENDRICKSON & WILLIAM HEFFERNAN,
CONCENTRATION OF AGRICU LTURAL MARKETS, DEPARTMENT OF RURAL SOCIOLOGY – UNIVERSITY
OF MISSOURI (2007), available at http://www.foodcircles.missouri.edu/07contable.pdf. WILLIAM
HEFFERNAN ET AL., REPORT TO THE NATIONAL FARMERS UNION, CONSOLIDATION IN THE FOOD AND
AGRICULTURE SYSTEM 5 (Feb. 5, 1999), http://www.foodcircles.missouri.edu/whstudy.pd
f. JAMES MACDONALD & WILLIA M MCBRIDE, THE TRANSFORMATION OF U.S. LIVESTOCK
AGRICULTURE: SCALE, EFFICIENCY, AND RISKS, USDA ERS, ECONOMIC INFORMATION BULLETIN
NO. (EIB-43) (Jan. 2009).
. MACDONALD & MCBRIDGE, supra note 131. THE PEW COMMISSION ON INDUSTRIAL FARM
ANIMAL PRODUCT ION, supra note 34. TAD WILLIAMS, THE CORRUPTION OF AMERICAN
AGRICULTURE, available at http://www.adaction.org/media/TadFinal.pdf (last visited Spring 2015).
. Burch & Lawrence supra note 16. Seth & Randall, supra note 55.
. Burch & Lawrence supra note 16. Seth & Randall, supra note 55.
. Anderson et al., supra note 95.
2015] Surf-n-Turf, but the Sustainable Kind? 337
large US meat buyers interested in shifting to antibiotic-free or other
sustainable meat sourcing are already shifting to an imported supply of
The viability of a broader shift by a larger number of retailers and
other big buyers to an imported supply of antibiotic-free meat remains to
be seen. If retailers attempt such a shift, they will need an imported meat
supply that is not only competitively priced but does not carry any more
social and environmental liability than it relieves (e.g., an antibiotic-free
beef supply that raises serious labor or animal welfare concerns).
However, anything but a very short-term, leverage-generating shift to an
imported meat supply would be a Pyrrhic victory, because it is the
practices of US meat suppliers that the NGO initiatives in market-driven
private regulation are trying to reform.
C. The Uncertain Yet Broad Potential of Private Market-Based Regula-
In the end, the real extent and limits to the private regulatory power
and transformative influence of targeted retailers may only be revealed in
the course of a strong and sustained NGO campaign of grocery and fast
food retailer targeting. Individual retailers, who understandably hold their
cards close to their chest in the face of building civil society expectations
and NGO pressure, are the best judges of their own willingness and
capacity to exercise buyer and bargaining power, and exert private
regulatory authority over the antibiotic use practices of suppliers and
As a lead strategy in a broader effort at private, market-driven reform
of antibiotics in agriculture, retailer targeting may well turn out to have
limited regulatory and practical effect on the practices of US livestock
producers. Despite the remaining uncertainty about its regulatory value
and practical outcomes, however, pursuing such forceful and sustained
initiatives in market-driven private regulation through the targeting of
retailers and other big buyers is well worth the effort.
Recent NGO initiatives in market-driven fisheries regulation have
clearly suggested that even if such campaigns fail to perform as intended—
i.e., even if they fail to improve production practices through the
successful exercise of private regulatory authority via the supply chain—
they may still be of significant regulatory and conservation value. They
. Drive-thru review: All-NaturalBurgeratCarl’sJr.isgoodbuttoomuch, supra note 115.
Peeples, supra note 115.
338 Seattle Journal of Environmental Law [Vol. 5:1
can hasten the broader reform effort that originally motivated them, and
do so in unexpected but fruitful ways. Importantly, they can turn targeted
retailers and other big buyers into major beneficiaries and of expanding
sustainable production practices as well as influential proponents of
government regulatory interventions to attain such expansion. As
observed in the fisheries context, NGO initiatives in market-based private
regulation can shift the politics of public environmental regulation by
turning retailers and other big buyers into key beneficiaries and proponents
of strengthening such regulation.
Even if NGO initiatives in market-driven governance end up
bumping against the limits of retailer capacity to exert buyer power and
project private regulatory authority via the meat supply chain, the NGOs
behind such initiatives can follow the example of their marine
conservation counterparts and turn these limitations into an advantage for
the broader reform effort: they can offer hard-pressed and reputationally-
exposed retailers the opportunity to advance antibiotic use reform by
raising their political and policy voice.
Even if they don’t completely succeed in attaining their original
private regulatory goals, NGO initiatives in private, market-driven
environmental regulation can, therefore, still boost the public regulatory
control of environmentally problematic industry practices.
NGO targeting of large meat retailers (grocery and fast food
corporations alike) appears to be a viable strategy for pursuing long-
elusive reform of antibiotic use in US meat production. Even if retailer-
focused initiatives are ultimately unable to generate private regulatory
pressure through the market, they could still serve to motivate a new and
important source of business support for stricter government regulation of
antibiotic use in agriculture. This, at least, was the dynamic observed in
the case of market-driven fisheries reform efforts.
The extent to which mobilizing the political power and policy
influence of large retailers in favor of legislative and regulatory reform of
antibiotic use in agriculture will be effective in counterbalancing the
strong opposition of agricultural and pharmaceutical industries to such
reform remains to be seen. Because NGOs have already tried just about
everything else in their efforts to reform the excessive agricultural use of
antibiotics, the retailer-focused market-based approach is more than worth
2015] Surf-n-Turf, but the Sustainable Kind? 339
340 Seattle Journal of Environmental Law [Vol. 5:1