Trump reiterates support to kill ACA — despite pandemic — as House, states file briefs with SCOTUS

This article was written by Rebecca Pifer and originally published by HealthCare Dive on May 6, 2020. 

Dive Brief:

  • President Donald Trump reiterated his support Wednesday for repealing the Affordable Care Act, with a case that could do just that pending at the Supreme Court. An estimated 20 million Americans could lose health insurance at a time of unprecedented unemployment if the law was scrapped.
  • “We want to terminate healthcare under Obamacare and replace it,” Trump told the White House press pool on Wednesday, referring to a red state-led lawsuit declaring the ACA unconstitutional. The Trump administration has yet to provide an alternative to the decade-old law.
  • The remarks come as both the Democrat-led House of Representatives, and the 20 states petitioning in defense of the ACA, submitted briefs to the Supreme Court in support of the law on Wednesday.

Dive Insight:

While still a hot button issue among partisans, the Affordable Care Act has enjoyed growing popularity across the political spectrum amid Republicans’ failed repeal-and-replace efforts. While the Trump administration has spent years chipping away at key tenets of the Obama-era law, the future of which now rests with the Supreme Court.

The ACA insures roughly 22 million individuals through its public marketplaces, expanded Medicaid in 37 states, codified protections for pre-existing health conditions and allows adults under the age of 26 to be covered through their parents’ health insurance.

The looming case comes as staggering levels of unemployment throw millions of Americans off their employer-sponsored plans. If trends continue, up to 43 million people could lose their employer-sponsored insurance, according to one estimate from the Robert Wood Johnson Foundation, raising the demand for ACA exchange and Medicaid coverage.

Texas leads 18 red states arguing that the law is unconstitutional because a 2017 tax bill abolished the its individual mandate. Legal scholars have criticized that reasoning, but the conservative Fifth Circuit Court of Appeals largely agreed late last year. The Supreme Court in early March agreed to hear the case, marking the third time the decade-old law has appeared in front of the nation’s highest court.

Democratic attorneys general and the House of Representatives are defending the ACA, with both the California-led states and the House separately submitting filings to the court on Wednesday backing the law.

“Although Congress may not have enacted the ACA with the specific purpose of combating a pandemic, the nation’s current public-health emergency has made it impossible to deny that broad access to affordable health care is not just a life-or death matter for millions of Americans, but an indispensable precondition to the social intercourse on which our security, welfare, and liberty ultimately depend,” the House’s brief reads.

The cadre of states defending the law, led by California, argued in their filing the ACA gave tens of millions of Americans access to health insurance, while saving the states substantial amounts of money and lowering healthcare costs for the consumer.

The Department of Justice, which declined to defend the law last year, has a Wednesday deadline to file a brief with SCOTUS, and did not respond to a request for comment by time of publication. But the suit has been a source of dissension in the White House in recent days, with Attorney General Bill Barr asking the administration to back off the suit due to the political ramifications of undermining the ACA during the pandemic, according to multiple reports.

More than 100 organizations led by the Harvard Law School Center for Health Law & Policy Innovation sent a letter to Texas’ attorney general on Wednesday asking him to drop the lawsuit. “Eliminating the ACA would only exacerbate the pandemic and upend our health care system when we can least afford it,” the coalition wrote.

Despite the president’s remark, the administration has undertaken a series of actions over Trump’s first term that have undermined the ACA and kept it from running smoothly, insurance experts say. Along with backing the elimination of the law in court, HHS cut the open enrollment period for ACA plans, slashed the site’s navigation and advertising budgets, stopped cost-sharing reduction payments to insurers and expanded short-term and association health plans offering cheap but bare-bones coverage. That last move sparked a lawsuit and a Congressional investigation.

The administration has yet to publish a plan in event the ACA is overturned, though top HHS officials, including CMS head Seema Verma, have repeatedly said such a plan exists, without offering no concrete evidence.

SCOTUS will hear the case during its next term, which starts in October. It’s highly unlikely the court will reach a decision before the upcoming presidential election in November.

Unlike the president, presumptive Democratic nominee former Vice President Joe Biden’s healthcare agenda hinges on bolstering the beleaguered legislation by increasing​ plan subsidies, among other measures. The candidate also wants to create a government-run public option and lower the age of eligibility for Medicare down from 65 to 60.

The Impact of COVID-19 on the Food Supply & Feeding the Hungry

This article was written by Kaitlin Bradshaw and originally published by Waste 360 on May 7, 2020. 

The COVID-19 pandemic has caused several kinks in the food supply chain, making the recovery of excess food more difficult at a time when the population is increasing and already vulnerable to shortages. 

During Waste360’s recent webinar, “The Impact of COVID-19 on the Food Supply & Feeding the Hungry,” food waste and food rescue experts provided their thoughts on the potential short-term and long term effects the pandemic may have on the food supply chain, what it means for food recovery and how food banks and agencies are pivoting to make sure excess food gets to the people who need it the most.

Discussing the virus’ effect were Dana Gunders, executive director of ReFED; Justin Block, managing director of retail information services at Feeding America; and Emily Broad Leib, clinical professor of law, director of the Food Law and Policy Clinic and deputy director of the Center for Health Law and Policy Innovation at Harvard Law School.

Gunders pointed out how far-reaching the impact of COVID-19 is on the food supply chain and how it has affected farmers, processors and manufacturers, distributors, grocery retail, and restaurants and food service.

 “Typically there are fairly distinct supply chains that serve the food service industry – restaurants, hotels, schools, university campuses, corporate campuses – and overnight when all those businesses closed the supply chain closed with it,” Gunders said.

“So what you have is, all those farmers, distributors and processors who are serving that industry are looking for a new market. Meanwhile the grocery sector has been increasing their market share. So all those organizations are trying to get into retail but it’s simply not that easy,” she said. “Some are successful but many are still looking for a market or are going direct to consumer, or else they’re tilling fields over.”

Gunders said farmers are seeing their own waste increase as the market demand drops, particularly with specialty products that have trouble selling outside the restaurant market. Some farms are finding success in e-commerce and selling directly to the consumer.

Looking ahead, farmers are planting less seeds since the future of the market is unclear.

Processors and manufacturers on the other hand saw an increase in demand from grocery retailers when consumers were panic-buying and hoarding food when stay-in-place orders started. But production started to slow down with social distancing and striving to ensure the health and safety of employees who work in close quarters. Gunders said this is happening not only at meat processing plants but at beverage facilities and more.

Distributors that work directly with the food service industry are being left with a surplus of food from cancelled orders and no wholesale market to supply, Gunders said.

Grocery retail “is an interesting arena right now,” she said. Business has surged both in-store and electronically, while social distancing needs have prompted operational changes. “They’re struggling to keep up with all that different kind of demand,” she said.

The restaurant and food service industry took a giant hit by being forced to close, and as much as 15 percent of those operations might never reopen, Gunders said. A lot of restaurants donated inventory to food banks while others made changes to operate as take-out or delivery only.

On the food assistance side of the supply chain, Gunders said they’ve gotten feedback from food donors, donor recipients and other stakeholders on the key challenges they are facing. Those include including transportation issues, volunteers not showing up, limited cold storage for perishable food and funding.

“We are hearing concerns (that) despite what you’re hearing about extra food, some of those end-recipient agencies are experiencing or are about to experience a shortage of food,” Gunders said.

Organizations like Feeding America are working to connect the farmers and distributors with the agencies and food banks so the excess food that would normally go to the food service industry isn’t going to waste and instead is going to those who need it most.

Feeding America’s Block  said 72 billion pounds of food goes to waste each year in the U.S. – the majority of which comes from consumers.

Feeding America’s mission is to not just provide more meals but also to reduce hunger in America and improve food security, Block said.

“Our network is 200-member food banks around this country. We have a presence in every county of the United States. Those 200 food banks work with over 60,000 soup kitchens and food pantries to not only source but distribute donated food to people facing hunger,” Block said.

There’s constant dialogue with member food banks regarding what’s working well in their communities, indentifying best practices, amplifying them and then replicating them elsewhere across the network, he said.

And now, with COVID-19, Block said a lot of the organization’s work is the same, there’s just more of it that needs to be done quickly and with more partners.

“Feeding America predicts an additional 17.1 million Americans will have trouble feeding themselves and their families as a result of the pandemic,” Block said.

But getting the excess food to where it needs to go is proving to be more of a challenge during the pandemic. Many of the people who regularly volunteer with Feeding America and its member food banks generally tend to be older and are now considered part of the at-risk population, Block said, so they can’t volunteer.

“There are gluts of food in different places of the supply chain, and our network has gotten reduced capacity to serve an increased number of folks who need charitable food assistance during this crisis,” Block said.

So with the increased demand but a shortage of volunteers, food banks are responding to these challenges by creating new partnerships and adopting new models to increase capacity, he said. And from these challenges they are finding new opportunities that can last beyond the pandemic.

For example, Block said Team Rubicon is volunteering at partner food banks to help supplement the reduced volunteer capacity as well as help run food banks more efficiently and effectively.

“Adopting new models. I was talking to a food banker yesterday who now instead of having one shift in the warehouse fully staffed, because of social distancing and because of different challenges, they’re now running 24 hours a day at one-third of the staff level, and they’re having more targeted tasks in these shifts,” Block said. “So now they’re going around the clock, employing the same amount of folks but they’re reducing the amount of folks on the floor at any given time realizing that this is resulting in new efficiencies because there’s less foot traffic and they can get a lot more done.”

“So that’s a new model that food bank was forced into as a response to COVID-19, but now as a network we can look at that model and bring efficiencies elsewhere,” he said.

New opportunities also have come from the federal level. The Department of Agriculture launched the Coronavirus Farm Assistance Program (CFAP), allocating $16 billion in direct payments to growers, dairy and meat producers, and $3 billion to purchase dairy, meat and produce to distribute to food banks and other nonprofits directly through distributors.

Block also talked about the Truck to Trunk program through which food banks coordinate directly with the distributor. That operator drives a refrigerated truck with five different types of boxes and will park parks at a large venue – malls, stadiums, airports – so recipients can have the food placed directly in their trunk. 

In addition, Block pointed out Feeding America’s food donation app, MealConnect.

In addition to CFAP, the federal government has increased funding to The Emergency Food Assistance Program (TEFAP) through the Families First bill. States and municipalities can apply to the Federal Emergency Management Agency (FEMA) for money to feed people, and there has been some flexibility in food safety when it comes to requiring nutritional labels, according to Leib of the Harvard Law School FLPC. 

The clinic provides legal and policy advice to nonprofits, government agencies, entrepreneurs, entrepreneurs and other organizations on a range of food policy questions, Leib said. Later this month the FLPC will be launching the new Global Food Donation Policy Atlas, which she said is “really relevant to this moment.”

Working with the Global Food Banking Network, Leib said “we’re working with food banks in 16 different countries to really understand, analyze and compare laws that structure food donation across those countries so we can see the challenges and  best practices. We’re looking at things like tax incentives, barriers, liability protection, food safety questions around food donation” and more.

Leib echoed a lot of the points Gunders and Block made about the challenges associated with the missing links in the food supply chain, and like ReFED and Feeding America, FLPC is looking to turn the challenge into an opportunity.

Going forward, Leib said the FLPC is looking for more possibilities for funding to purchase and distribute food. The group is looking at potential tax benefits to create incentives for donations and to offset costs. The organization wants to address the barriers preventing more food donations and to create more flexibility.

To see everything the FLPC is doing in response to COVID-19, Leib said they put together a special resources page on their website.

Listen to the full webinar here.

The Executive Order on Meat and Poultry Processing Is Not Quite What It Seemed—But It Still Fails Workers

This post was written by Emma Scott, Clinical Instructor, & Emily Broad Leib, Clinical Professor of Law & Director, HLS Food Law & Policy Clinic

Last week was a pivotal one for the meat and poultry industry in the United States. On Tuesday, President Trump issued an Executive Order (EO) under the Defense Production Act (DPA) directing the Secretary of Agriculture “to ensure that meat and poultry processors continue operations[.]” Two days earlier, the Occupational Safety and Health Administration (OSHA) and Centers for Disease Control and Prevention (CDC) released Joint Meat Processing Guidance for meat and poultry processing workers and employers, to which the Executive Order refers. The EO and Joint Guidance will shape the landscape of worker health and safety in this industry—and perhaps other segments of the food industry—throughout the pandemic, raising a number of practical and legal challenges.

The COVID-19 Pandemic Has Exacerbated Worker-Safety Concerns.
Deficient worker-safety precautions in the meat processing industry is not a new issue, but the coronavirus pandemic has magnified the problem and rightfully drawn attention to the dismal working conditions ubiquitous throughout the industry. Unfortunately, the “essential” task of maintaining the nation’s food supply often means that safe and desirable working conditions take a backseat to profitability and industry stability. Despite the clear risk to worker health, the new Joint Guidance—which is, actually, fairly good—remains discretionary, and President Trump’s Executive Order—while acknowledging the Guidance—did not go so far as to require industry compliance with it.

Compounding the issue further, the National Employment Law Project reports that “the number of [OSHA inspectors] has fallen to a 45-year low,” and advocacy groups across the country report a minimal enforcement response to a flood of increased workplace safety complaints in recent weeks. Since the national emergency began, OSHA’s daily inspection rate has dropped to less than a third of what it had been previously and citations have fallen by nearly 70 percent compared to prior years. These discouraging enforcement rates inspire little confidence that new Guidance will alleviate the very real risks workers face in continuing to work in meat processing facilities.

Employers Are Not Immune to Liability.
Despite President Trump’s proclamations that the EO would somehow shield processing plants from liability, it does not offer such blanket protection. While the DPA does confer immunity on businesses for “any act or failure to act resulting directly or indirectly from compliance with a[n] . . . order issued” under the DPA,[i] that immunity is narrowly cabined (i.e., breach of contract claims from another customer due to government contract’s priority) and is unlikely to discharge a business from its health and safety obligations to its employees.

In practice, facilities that adopt and adhere to the recent Joint Guidance will have a strong defense in any future legal action. As the Department of Labor (DOL) noted in its news release following the EO, “courts often consider compliance with OSHA standards and guidance as evidence in an employer’s favor in litigation.” The agency also expressly stated that it may even support employers in such litigation if they choose to follow the Joint Guidance. But, nothing from the EO, the Joint Guidance, or DOL’s statements indicates that employers will be immune from lawsuits due to workplace exposure, though clearly compliance with the Joint Guidance will tilt the scale to their advantage.

Although employers are not immune from suit, workers may still have to wait for their day in court. Yesterday, the District Court for the Western District of Missouri dismissed a case against Smithfield Foods in which workers claimed that the company was failing to implement adequate coronavirus-related safety precautions in their meat processing plant in Milan, Missouri. The Court relied on the primary jurisdiction doctrine to hold that OSHA should decide, in the first instance, whether Smithfield Foods is abiding by the Joint Guidance, for reasons of OSHA’s expertise in the subject matter and to promote uniformity in national enforcement. While the decision signals to would-be plaintiffs that courts may hesitate to intervene in such cases, advocates may find comfort in the facts that the suit caused the company to make significant changes to its policies, the filings indicate acceptance of the Joint Guidance as the new industry standard, and the Court may have come out differently had there been more flagrant and continuing safety violations.

Facility Closures May Still Occur.
The media has portrayed the President’s EO as requiring meat and poultry processing plants to reopen and/or remain open. However, the Order does not go so far, and it’s difficult to imagine the U.S. Department of Agriculture (USDA) forcing a plant to stay open if an acute outbreak occurs. Instead, the EO gives USDA the authority to make a determination as to whether a facility should continue operations.

For its part, DOL’s enforcement position with respect to these facilities is unclear. The agency has proclaimed that the Joint Guidance should not be used by state and local authorities to order a facility to close or remain closed. Further, DOL stated that OSHA is unlikely to cite employers that adhere to the Joint Guidance and assured that it “will take into account good faith attempts to follow” the Guidance. But DOL has not indicated how OSHA will respond if and when an employer is found to be out of compliance with the Guidance and whether it considers facility closure to be an available enforcement mechanism. In light of the EO, we would expect such action to be coordinated with USDA if it were to occur.

The Executive Order Stands on Shaky Legal Grounds.
Beyond the liability issue, the Order raises startling questions regarding the purpose of the DPA and the aims to which it may be put to use. While few questioned the President’s decision to use his DPA authority to facilitate procurement of ventilators and respirator masks, the justification for leveraging this power to prop-up segments of the food industry is more tenuous. The pandemic has challenged supply chains and created myriad issues for producers across the country, but the country is not facing a shortage of food. Despite the reduced availability of meat, there are plenty of other food stocks available to fill the gap. It is thus challenging to see how the President’s invocation of this extraordinary authority could be warranted in such circumstances.

The Defense Production Act authorizes the president to require that federal contracts and orders necessary to promote the national defense take priority over other contracts and to allocate materials, services, and facilities to further that defense effort.[ii] But, this power cannot be used to control distribution in the civilian market “unless the President finds (1) that such material is a scarce and critical material essential to the national defense, and (2) that the requirements of the national defense for such material cannot otherwise be met[.]”[iii] In his Executive Order, Trump expressly found that “meat and poultry in the food supply chain” meet these criteria. A plain reading of the statute’s text casts this declaration into doubt, and few legal scholars seem convinced of its merit.

The Executive Order May Foreshadow Additional Market Intervention.
The Order creates a disturbing precedent: the use of national defense authority to designate a segment of the food industry essential at a time when the nation’s food supply, on the whole, remains robust, and at the expense of worker health and safety. Can and should the DPA be used to prop up an arm of an industry in this manner?

While we would argue that the answer is no, there may be more to come. Although the Order specifically calls out the meat and poultry industry, it also delegates the President’s authority to “identify additional specific food supply chain resources that meet the criteria of section 101(b)” to the Secretary of Agriculture (emphasis added). Following the President’s lead, then, USDA could declare authority over any other segment of the food industry facing a supply chain issue or, as with the meat industry, closures due to coronavirus outbreaks or related health and safety concerns. We may thus soon see how this power grab plays out in other parts of the food system.

What’s Next?
Valid or not, the President’s Order has political bite, signaling the federal government’s priorities to the industry, regulators, and the American public.

On May 5, Secretary Perdue issued a letter directing “meat and poultry processors to utilize the [Joint Guidance] . . . to implement practices and protocols for staying operational or resuming operations[.]” He further directed those facilities that are closed and “without a clear timetable for near-term reopening” to submit their written protocol to USDA and resume operations as soon as possible. Last week, he also assured reporters that workers would receive more protective gear and access to coronavirus testing. He has stated that “worker health and safety is the first priority[,]” while promising that facilities would reopen in a matter of days.

Yet, the federal government’s prioritization of support for meat and poultry industry belies its overtures of concern for worker health and safety, which should be the priority. Not only is it unjust to require workers to return to precarious working conditions, especially given that facilities still are not required to implement the Joint Guidance, but this “solution” is short-sighted. Each day brings new reports of coronavirus outbreaks in these facilities. Endangering workers by sending them to work in unsafe facilities will increase the scale of outbreaks, threatening the long-term stability of the workforce essential to what the President has deemed a critical industry. In light of these threats, FLPC recommends the follow actions:

  • The Joint Meat Processing Guidance must be made mandatory for all processing facilities;
  • OSHA inspections and enforcement actions must dramatically increase through a coordinated response to ensure compliance with the Guidance and promptly address any worker complaints;
  • Workers should receive hazard pay and significantly expanded paid sick leave; and
  • Workers who choose not to return to these facilities for fear of their own health and welfare should remain eligible for unemployment assistance and/or other available paid leave benefits.

[i] 50 U.S.C. § 4557                                                                 
[ii] 50 U.S.C. § 4511 (a)
[iii] 50 U.S.C. § 4511 (b)

Letter: Amid COVID-19 Pandemic, 100+ Organizations Urge GOP Officials to Drop Case Threatening the Affordable Care Act

 Despite unprecedented health and economic crises, Attorney General William Barr and 18 state officials still want the Supreme Court to strike down the entire Affordable Care Act in California v. Texas.

Given the enormous challenges posed by the novel coronavirus, the Center for Health Law and Policy Innovation of Harvard Law School (CHLPI), Protect Our Care, and a broad coalition of over 100 organizations called on Attorney General William Barr and Republican officials from 18 states to drop their Supreme Court lawsuit imperiling the Affordable Care Act (ACA) in a letter sent Wednesday.

The Supreme Court is set to review the case, California v. Texas, later this year. As part of their challenge to the ACA, the Department of Justice and 18 states are asking the Court to invalidate the entire law. Today’s letter explains why that outcome would only exacerbate the pandemic—and leave millions without access to care in the midst of an unprecedented health crisis that has already killed more than 68,000 Americans.

Eliminating the ACA now would “prove catastrophic,” writes the coalition of major health care advocates, providers, insurers, and worker organizations. “The United States cannot risk destabilizing its already-strained health care sector by eliminating a deeply-entrenched law that offers important public health benefits. Nor can millions of Americans afford to lose access to COVID-19 treatment, vaccines and health care generally.”

“The ACA offers policymakers some of the best public health tools to address this pandemic,” said Robert Greenwald, faculty director of CHLPI and professor of law at Harvard Law School. “Striking down the ACA now would be disastrous. In the interest of safeguarding our nation’s public health and economic future, we strongly urge the challengers to drop their lawsuit.”

The ACA provides health insurance for over 22 million individuals through public marketplaces and expanded Medicaid coverage in 37 states. Even more Americans receive coverage through its provisions protecting those with pre-existing conditions and allowing young adults under the age of 26 to be covered through their parents’ health insurance. With tens of millions losing their jobs, these programs will offer newly-vulnerable Americans avenues to secure health coverage, and as a result access to live-saving medical care that will slow the disease’s spread.

The states challenging the ACA in California v. Texas include: Alabama, Arizona, Arkansas, Florida, Georgia, Indiana, Kansas, Louisiana, Mississippi, Missouri, Nebraska, North Dakota, South Carolina, South Dakota, Tennessee, Texas, Utah and West Virginia. 

Among many others, signatories to the letter include: the American Diabetes Association, the National Multiple Sclerosis Society, the American Public Health Association, the Center for Medicare Advocacy, Planned Parenthood Federation of America, AFL-CIO, SEIU, the Alliance for Community Health Plans, the Association for Community Affiliated Plans, the American Geriatrics Society, and the National Employment Law Project.

A PDF version of the letter is here

A PDF version of the press release is here

Jeff Bezos says ordering groceries online is better for the planet. Is he right?

This article was written by  and originally published by Grist on May 1, 2020.

The coronavirus pandemic has transformed how Americans get our food. We’re no longer going to restaurants; we’re limiting our trips to the grocery store. Many of us are, for the first time, ordering groceries online. That’s causing huge spikes in demand on e-commerce sites like Amazon, which has moved quickly to expand its grocery delivery services and transform Whole Foods Markets into fulfillment centers for online orders.

But if Amazon consolidating control over yet another sector of the economy during a crisis makes you uncomfortable, Jeff Bezos would like to offer a reframe: Actually, buying your groceries online is better for the planet.

That, at least, is the striking claim made in Bezos’ annual letter to Amazon shareholders, which the e-commerce behemoth’s CEO released last month. In a section on Amazon’s climate impact, Bezos asserts that shopping online is “inherently” more efficient, from a carbon emissions perspective, than going to the store. He references a study conducted by Amazon that found that ordering Whole Foods groceries online reduces the carbon emissions associated with every item in a grocery basket by 43 percent compared with driving to Whole Foods.

So, should you give up your last real reason to enter public spaces and start one-click ordering those potatoes?

Not necessarily. According to an article on Bei Kryptoszene, even though Amazon has yet to publicly release the study in question (we’ve asked), several experts Grist spoke with said that on average, ordering online often reduces the carbon footprint of grocery shopping. But the word average is key. This finding doesn’t scale down to the individual level neatly, and the way you get your food might be very climate-friendly already, no matter what the Amazon man says. What’s more, when it comes to the climate impact of our food choices, what we eat is far more important than how we get it. And there are other ethical considerations at play here beyond the carbon footprint of your meal.

According to Shelie Miller, a sustainability researcher at the University of Michigan who has studied the environmental impact of different forms of grocery shopping, when researchers compare shopping online to shopping at a brick-and-mortar outlet, what they’re mainly talking about is the so-called “last-mile problem.”

For groceries, the last-mile problem refers to how food makes that final leg in its journey from farm to table, whether it’s coming from Trader Joe’s or an Amazon warehouse. It’s a step where a lot of carbon emissions can occur, especially if you’re hopping in your SUV and driving 5 miles to pick up ingredients for dinner. In that case, it might be more efficient for a delivery truck to drop off the ingredients for you, especially if that truck is already making dozens of other trips in your neighborhood.

“If you are a person in a single household and you drive to the store and drive back, that is an entire car that is dedicated to a round trip to and from the store,” Miller said. While a delivery truck is likely to have higher carbon emissions per mile compared with your personal car, “the miles associated with that grocery cart are much smaller because you have lots of groceries on a single truck,” Miller said.

Food that comes straight from a distribution hub also avoids all of the carbon emissions associated with the grocery store itself. Michael Webber, a professor of energy resources at the University of Texas, Austin, notes that grocery stores tend to be “very energy intensive” compared with warehouses. That’s because their operators have to create a comfortable 72 degree F environment for shoppers to walk around in while simultaneously keeping perishable food items at a much chillier 38 degrees F.

“If you go to a warehouse, it’s much more efficient because there’s no customers to make comfortable,” Webber said. “Your workers can wear insulated overalls. So you refrigerate the whole thing and it’s more efficient.” Grocery stores also add another step in the supply chain from farm to consumer that results in additional food waste, another huge climate problem.

It’s for all of these reasons that, while Miller hasn’t seen the study Bezos references in his shareholder letter, she thinks that its conclusion that online grocery shopping delivers carbon savings over driving to the store “make sense.” So does Anne Goodchild, a supply chain and transportation logistics researcher at the University of Washington. The 43 percent emissions reductions figure quoted in the shareholder letter, she said, is “certainly not outside the range of outcomes we’ve seen in our studies” that looked at the transportation and logistics of grocery delivery.

Webber had a slightly more cautious take. “It depends,” he said.

Indeed, while Amazon can tout the benefits of online grocery shopping all it wants, that doesn’t mean getting an Amazon Fresh box delivered to your doorstep is the most eco-friendly choice you can make. If you’re already walking, biking, or driving a Tesla to the grocery store, getting your eggs and milk dropped off via a truck will likely cause their last-mile emissions to rise. Switching to online shopping might also change your shopping behavior in ways that make it worse for the environment. Perhaps, instead of getting all of your groceries in one carefully planned shopping outing, you start placing lots of smaller orders online, resulting in more truck trips.

Or perhaps your online ordering isn’t replacing your personal grocery store trips at all, but merely supplementing them. “This is a huge one,” Webber said. “Is this a replacement or an alternative? While we’re quarantined it looks like a replacement,” but that might not continue to be the case as lockdown restrictions start to ease.

“Amazon has all kinds of data about their own operations,” Goodchild said. “What they don’t know is how people behave. So it’s all based on assumptions.”

It’s also important to bear in mind that how our food makes that last-mile journey to our doorstep has a much smaller climate impact than the types of food we’re eating. In a recent study comparing the environmental impact of meals prepared from Blue Apron meal kits with those same meals made from grocery store ingredients, Miller and her colleagues found that food production was responsible for more than 65 percent of a meal’s total carbon footprint. Raising cattle, for instance, requires significant land and resources, which, along with the animals’ methane burps, contribute to beef’s outsized climate impact. Other types of meat and dairy products also tend to have a high carbon footprint, because they take more energy and resources to produce compared with fruits and vegetables.

Compared with food production, Miller’s study found that last-mile emissions, meanwhile, averaged just 4 percent of the carbon footprint for meal kit meals, and 11 percent for grocery store meals.

“Transportation and logistics associated with the last mile are a pretty small overall contribution to the total environmental impact of food,” Miller said. The “only possible way” Amazon could have arrived at a 43 percent carbon savings for online delivery, she said, is if the company was only looking at transportation and logistics and not at food production (as was the case in the other studies Goodchild cites).

There are also bigger picture considerations about how the rise in online shopping we’re witnessing due to coronavirus will impact our food system in the long term. Emily Broad Leib, director of the Harvard Law School Food Law and Policy Clinic, says that while getting groceries delivered seems like the “right direction to go” from a public health standpoint right now, she worries this trend will make it even harder for smaller retailers and family farms to compete. Broad Leib notes that in nearly every state where low-income families can purchase groceries online with food stamps through the Supplemental Nutrition Assistance Program (SNAP), Amazon and Walmart are the only approved retailers.

“A lot more people are already or will be on SNAP in the coming months,” Broad Leib said, noting that 37 million Americans were participating in the program in January, the most recent available data. “We’re putting a huge thumb on the scale for big retailers.”

Whether that allows retail giants to consolidate control over the grocery industry in the wake of the pandemic remains to be seen. But all of our individual food choices in this moment will help determine that, and it’s worth seriously considering if we want to live in a world where Amazon dominates yet another sector of consumer spending, particularly given the company’s recent failures to protect its frontline workers and its decision to fire dissenting voices who’ve spoken up about safety concerns and climate change.

It’s possible the pandemic will herald a major change in how we get food. What that change looks like ought to depend on more than which company currently has the most efficient delivery system.

Connecticut Commission Rules Transgender Health Care Exclusions Violate State Non-Discrimination Laws

The Connecticut Commission on Human Rights and Opportunities (the Commission) recently issued an important ruling condemning discrimination by state and municipal health insurance plans. On April 17th, the Commission ruled that provisions of such plans violate state non-discrimination laws in two specific scenarios involving gender affirming care. First, the Commission found provisions of such plans unlawful if they categorically exclude coverage for all gender affirming care. Second, the Commission likewise concluded that it is illegal for such plans to label services as medically necessary for certain conditions yet cosmetic for gender dysphoria. The Commission also ruled that insurers that sell or administer such plans with these kinds of provisions violate state non-discrimination laws. Representing the Connecticut TransAdvocacy Coalition as amicus, the Center for Health Law and Policy Innovation of Harvard Law School filed a brief to the Commission. 

The Commission’s declaratory ruling is a significant win for transgender and gender non-conforming individuals in Connecticut. Many health insurance plans sponsored by the State or offered by municipal governments contain discriminatory restrictions that block people from medically-appropriate gender affirming care. The plans span from those offered to municipal workers, including first responders, and to plans offered through public institutions of higher education, like the University of Connecticut. As noted in the ruling, more than 250,000 people (or approximately 7% of Connecticut’s total population) are considered State or municipal employees or students. Estimates suggest that more than 850 transgender people are covered by state or municipal plans that contain discriminatory exclusions.

The Commission’s ruling recognizes “[t]he treatment needs of transgender patients under generally accepted standards of care must be assessed on a case-by-case basis” and that “no standardized, one-size-fits-all treatment plan for gender dysphoria” exists. While insurers across the country have changed their plans to cover some gender affirming care, such as hormone therapy and genital surgeries, many continue categorical exclusions or “cosmetic” labeling of certain procedures used to address secondary sex characteristics, such as facial feminization or voice therapy. For some, these procedures can be of “greater practical significance in [a person’s] daily life” and medically necessary to address gender dysphoria. Blocking meaningful access to these procedures when used to treat gender dysphoria can cause transgender and gender non-conforming people to face continued misgendering and trauma, and ultimately subject them to inferior, discriminatory health care benefits.

Enforcement of state laws in this regard are vital to ensuring transgender and gender non-conforming people are treated fairly and that the State does not otherwise sanction discrimination on the basis of sex and gender identity. “Trans bodies are human bodies, and all human bodies

deserve to be treated with dignity and respect,” noted Dr. AJ Eckert, a board member of the Connecticut TransAdvocacy Coalition and owner of The Gender and Life-Affirming Medicine Center in Wethersfield, Connecticut. “Current health care coverage policies encourage invasive questionnaires, gatekeeping, and stigma, as it relates to the LGBTQ+ community. Providing non-discriminatory health care coverage is not only medically necessary, it is cost-effective and a step towards true equity.”

The Center for Health Law and Policy Innovation of Harvard Law School remains committed to promoting more equitable and effective health care systems, and we look forward to seeing insurers in Connecticut remove these restrictions from their plans in light of the Commission’s ruling.

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