Food Identity

Food identities are typically ascribed either based on medical or social definitions or chosen by individuals. But they can also be expressive dimensions of other identity traits such as race, ethnicity, religion, national origin, gender, age, body size, disability, and socio-economic status, among others. What role does the law play in supporting or undermining certain food identities? This Article makes two central contributions. First, it highlights that though U.S. law recognizes food identity as an interest to be protected in certain contexts, it does so in an unsystematized way, contributing to systemic deprivation and discrimination in relation to foodways. The current legal regime often places the needs of the agri-food industry over those of eaters, especially those who are otherwise marginalized. Second, it reflects on how this inchoate law of food identity could be evaluated and reformed. There are plausible claims that some food identities may be entitled constitutional protections under equality law, freedom of religion, and fundamental rights, but they are unlikely to succeed in the current environment. The Article concludes with a skeptical reflection on the concept of food identity, arguing that in its current legal manifestation as a primarily individual and depoliticized claim for accommodation, it runs the risk of usurping and nullifying social and political claims around food. The argument proceeds as follows. Part I uses various social science literatures to articulate what food identity is and encompasses. Part II offers a taxonomy of different forms of food discrimination against eaters and food businesses. Part III presents the heterogeneous laws and policies that purport to protect food identities. Part IV argues that in theory, some food identities could be entitled to constitutional protection under equal protection, freedom of religion, and fundamental rights doctrines. To conclude, Part V highlights the limitations of framing food inequities as an identitarian problem.