Introduction

As the production, distribution, and consumption of food have become globalized against the backdrop of trade liberalization, market integration, and technological development in recent decades, the question of how best to ensure the safety and sustainability of agri-food products across state borders poses significant challenges to regulators worldwide.¹ While food governance calls for a global, holistic, system-based approach,² the agri-food industry is one of the largest and most fragmented sectors in the world.³ As a result, while more and more newly adopted food laws incorporate a global supply-chain approach,⁴ exercising effective and efficient control of the entire supply chain remains a difficult and costly task.

* This chapter was originally published by the Food and Drug Law Journal and is included in this edited volume with the permission of the journal. The author thanks Laurie Beyranevand, Timothy D. Lytton, and Steph Tai for their comments and suggestions; Cesare Varallo for sharing his practical insights; and Pei-Jen Wang, Sharu Luo, and Shih Ting Wang for their research assistance. Usual disclaimers apply.

1 See generally C. F. Lin, “Global Food Safety: Exploring Key Elements for an International Regulatory Strategy” (2011) 51 Virginia Journal of International Law 637.

2 See generally L. J. Beyranevand & E. M. B. Leib, “Making the Case for a National Food Strategy in the United States” (2017) 72 Food and Drug Law Journal 225; S. Tai, “Food Systems Law from Farm to Fork and Beyond” (2015) 45 Seton Hall Law Review 109; C. F, Lin, “SPS-Plus and Bilateral Treaty Network: A ‘Global’ Solution to the Global Food Safety Problem?” (2012) 29 Wisconsin Interna­tional Law Journal 694.

3 For example, the agri-food sector in Southeast Asia is significantly fragmented, with the majority of the players as small and medium-sized corporations.

4 A supply-chain approach, for instance, has been adopted by the United States’ Food Safety Moderni­zation Act, China’s Food Safety Law, and the European Union’s General Food Law. For more discus­sion, see M. Wang & C. F. Lin, “Towards a Bottom-up SPS Cooperation: An Analysis of Regulatory Convergence in Food Safety Regimes” (2016) 8 Trade Law and Development 117, 123—26.

DOI: 10.4324/9781003271918-8

Indeed, the emergence of multinational agri-food corporations, the advance­ment of food science and transportation technology, and the advent of the World Trade Organization (WTO) and its liberalization efforts have made pos­sible the global sourcing of food ingredients.⁵ As a result, the global food supply chain has grown extensive and fragmented, creating room for foodborne risks, economic adulteration, and management inefficiencies.⁶ Along the complex global supply chain, a misstep or regulatory failure at one node can spill over to others, with serious public health and economic consequences. Therefore, ensuring reasonable levels of transparency (sharing of correct information), safety and quality control, traceability, and collective, well-informed govern­ance actions and institutional designs are essential.⁷

Myriad governance initiatives have been adopted by various public, private, and hybrid actors at the national, regional, and multilateral levels, incorporat­ing command-and-control, as well as market-oriented approaches.⁸ What has largely been absent in the regulatory landscape, however, is the active use of technology as a means to deliver good governance.⁹ In the sphere of agri-food law and policy, distributed ledger technologies (DLTs, colloquially known as

5 See Lin, supra note 1, at 661—63.

6 See, for example, World Health Organization (WHO), “Global Health Observatory Data Reposi­tory”, available at http://apps.who.int/gho/data/node.home (last accessed Apr. 20, 2021); WHO, WHO Estimates of the Global Burden of Foodborne Diseases: Foodborne Disease Burden Epidemiology Ref­erence Group 2007-2015 (2015) [hereinafter “WHO 2015”]; U.S. Food And Drug Administration (FDA), FDA Strategy for the Safety of Imported Food (2019), available at https://perma.cc/EA86-Y9BP; see generally S. M. Gavaravarapu et al., “A Case for Refining the WHO Global Strategy on Food Safety: Perspectives from India” (2013) 1 The Lancet: Global Health 254; M. Uyttendaele et al., “Food Safety, a Global Challenge” (2016) 13 International Journal of Environmental Research and Public Health 67; F Fung et al., “Food Safety in the 21st Century” (2018) 41 Biomedical Journal 88.

7 The adoption of the Food Safety Modernization Act (FSMA) in the United States marked a move toward such multi-stakeholder, global supply chain, and public-private collaboration institutional designs. See, for example, C. S. DeWaal, “The Legal Basis for Food Safety Regulation in the USA and EU” in J. G. Morris & M. Potter (eds), Foodborne Infections and Intoxications (London, Academic Press 2013), at 521—22; see generally M. T. Oldfield, “Enactment of the Food Safety Modernization Act: The US FDA within the Context of Interacting Public-Private Governance Processes” (2015) 6 European Journal of Risk Regulation 488.

8 See, for example, Beyranevand & Leib, supra note 2, at 235—39; S. Halabi & C. F Lin, “Assessing the Relative Influence and Efficacy of Public and Private Food Safety Regulation Regimes: Comparing Codex and Global GAP Standards” (2017) 72 Food and Drug Law Journal 262, 266-70; N. D. Fortin, “HACCP and Other Regulatory Approaches to Prevention of Foodborne Diseases” in J. G. Mor­ris & M. Potter (eds), Foodborne Infections and Intoxications (London, Academic Press 2013); C. F. Lin, “Mega-Regional Transformation of Global Food Safety Governance: Normative Roots and Rami­fications” in S.

9 It should be noted that the limited but growing use of Global Trade Item Numbers (GTINs) to strengthen product traceability in the agri-food industry. GTIN records information about a lot of “blockchain”) seem to be one of the most promising solutions (or “technical fixes”) in addressing imminent governance challenges along the global food supply chain.

As will be analyzed in depth in Section III, blockchain refers to decentral­ized databases that can store, maintain, and update data collaboratively along a network of computing nodes.^{[217] [218] With the help of cryptography, peer-to- peer networks, and consensus mechanisms, data input to the blockchain is simultaneously and permanently recorded and updated in all the nodes of the network, ensuring a high level of consistency and authenticity of such data.[219] For instance, IBM recently announced a collaboration with a few major food producers and retailers, such as Nestle, Kroger, Unilever, and Wal-Mart, to leverage blockchain technologies to enhance quality control, food safety, man­agement, and traceability.[220] Wal-Mart has further required its upstream sup­pliers of leafy greens to employ the cloud- and blockchain-based IBM Food Trust platform by September 2019.[221] Similarly, the United Nations’ (UN) World Food Program (WFP) launched the Building Block program in 2017.}

While the far-reaching ramifications of blockchain technologies in the finan­cial arena (such as fintech and cryptocurrency issues) have been discussed in media, literature, and politics in recent years, the opportunities and challenges

Blockchainizing Food Law 77 posed by blockchain to food safety, traceability, and sustainable development have been less analyzed.^[224] The benefits of applying blockchain technologies in the global food supply chain seem salient: transforming paper-based documents into a blockchain-enabled identity to generate a high level of transparency and data integrity, enabling smaller farmers to bypass middlemen in crops trading and cash transfers, and providing an efficient and cost-effective way to manage the production system.

Blockchain, however, is not a silver bullet to solve all food governance issues; the use of the technology may create a new layer of challenges and arguably leave some key problems unaddressed. As will be further unpacked by this chapter, applying blockchain technologies to the governance of food safety, traceability, and sustainability triggers new regulatory questions of a technical capacity gap, standardization politics, cybersecurity and data protection, and technologically inherent limits of blockchain.

This chapter, therefore, aims to explore the potential of blockchain tech­nologies in revolutionizing the global food supply chain in terms of food safety, traceability, and sustainable development. More specifically, this chapter will examine concrete cases in which blockchains have been applied to transform how we conventionally think about food safety, certification, and traceability. Premised upon these cases, this chapter argues that blockchain technologies can indeed revolutionize the food supply chain by solving the information asymmetry problem and by increasing efficiency, transparency, and trust among all market players, as demonstrated by the recent pilots. If the recent pilot programs can be practically materialized and scaled up to real-world govern­ance mechanisms, the participants in the global supply chain will be able to get connected and upload their data to the cloud-based system, which further generates a transparent, traceable, immutable, and shared record of production details; quality specifications and origin facts; sustainability and fair trade certi­fications; and storage, import/export, and logistics information.

Such transformation and benefits, however, do not come without costs or challenges. Blockchainizing governance of food safety, traceability, and sustain­ability pose another layer of regulatory questions about technical capacity and infrastructure gap, scalability and implementation costs, global standardization politics, cybersecurity and data protection, and technologically inherent limits of blockchain. Regulatory questions, as such, may call for a reconceptualization

of the forms and substances of conventional food law and policy (as well as data protection law, anti-trust law, and trade law). In this light, this chapter will also endeavor to locate possible barriers and challenges to blockchainizing food law at national and international levels and offer recommendations for leveraging such technology in an effective, efficient, and responsible manner.

Section II of this chapter sets the scene of contemporary governance issues in the global agri-food supply chain—namely food safety, authenticity, traceability and transparency, and security and sustainability—and points to information insufficiency, inaccuracy, and asymmetry as some of the most crucial root causes. Section III gives an in-depth discussion on the technical aspects and regulatory benefits of blockchain technologies and looks at three promising pilot programs as examples. Section IV will examine the potentials and chal­lenges of bringing blockchain technologies into the governance endeavors by assessing the benefits of blockchainizing food law and policy, such as a high level of consistency, security, and authenticity of information and unparalleled power of traceability. At the same time, Section IV cautions about the adverse regulatory byproducts that need to be carefully addressed when regulators and businesses try to scale up existing pilot projects. Section V concludes by calling for a more technologically informed policy-making process before rushing into the hype of blockchainizing food law.

II.