How legislation feeds our growing food waste problem

In this comment article, environmental law specialist Dr Carrie Bradshaw from York Law School explains why, when it comes to food waste, waste law is part of the problem

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Waste law encourages us to throw away millions of tonnes of perfectly edible food

Food is best valued by keeping it in the food supply chain where it should be used to feed humans or animals, with any surplus redistributed for these purposes.

However, in order to divert food waste from landfill, the UK Government has encouraged anaerobic digestion (AD), a process where microorganisms break down food and other biowaste to produce biogas (a renewable energy source) and digestate (a renewable fertiliser). An extensive range of fiscal and policy incentives support AD, including renewable energy subsidies.

The problem is that AD incentives apply equally to inedible and edible food. This means that energy customers subsidise the transformation of edible food into biogas and fertiliser, supporting a system that values food as a source of fuel, rather than a source of human or animal nutrition.

Meanwhile, the Government provides little support for food redistribution, despite many redistribution networks operating charitably, and without the capacity to cope with the demand for new avenues to donate any surplus.

Subsidies for AD, combined with limited support for redistribution, create a commercial alternative to charitable food redistribution which actively removes edible food from the food supply chain. This is a clear failure to value food as food.

The problem with waste law

Rather than providing tools to challenge or unpack this policy problem, waste law validates and underpins a system which favours AD over redistribution.

The waste hierarchy, which government and waste operators are legally required to apply, prioritises food redistribution over AD. It should condemn the AD/redistribution imbalance. However, the Government deploys the waste hierarchy to validate incentives for AD as a 'less bad' alternative to landfill. This is a narrative which the waste hierarchy facilitates: while the legal imperative is to prioritise redistribution, enforcement difficulties mean that what happens in practice is that food waste 'moves up' the hierarchy from disposal to energy from waste.

The waste hierarchy

  1. Prevention (most favoured option)
  2. Preparation for reuse
  3. Recycling
  4. Other recovery
  5. Disposal (least favoured option)

Source: Directive 2008/98 on waste

Problems might be alleviated if AD subsidies didn’t apply to edible food. However, the legal definition of waste means that 'food' can become 'waste' even if still edible. With the definition of waste underpinning AD subsidies, waste law creates perverse incentives to divert edible food from the food supply chain. Research shows that the legal line between food and waste is central to how a society values food. This over inclusive definition of waste adds to the problems surrounding food waste.

Food waste as a resource

The AD/redistribution imbalance also has distributional consequences: a legally validated preference for profitable waste management over charitable food redistribution that often favours commercial interests over the impoverished and hungry.

In a circular economy, where rubbish is a resource, this is, sadly, unsurprising. AD makes money from waste by producing outputs with economic value, such as energy and fertiliser, whereas charitable food redistribution produces nothing (or very little) of economic value. Waste law is entirely complicit in this mis-match, with a legal definition which labels edible food as waste, and a waste hierarchy which labels energy from food waste as 'less bad' than landfill.

This devalues food as a resource. Rather than spending time and effort thinking about what to do with food once it becomes waste, we should move the issue up the waste hierarchy and think about how to prevent food from becoming waste in the first place. We also need to question the quantities of food we produce, how and where we produce that food and ask whether AD or redistribution is even necessary.

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...waste law creates perverse incentives to divert edible food from the food supply chain”

Dr Carrie Bradshaw
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Dr Carrie Bradshaw

Dr Carrie Bradshaw

Research interests include corporate responsibility, environmental law, regulation and governance

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Waste Law and the Value of Food is forthcoming in the Journal of Environmental Law