New York’s Opportunity to Lead on Values-Based Food Procurement

Governmental procurement is a powerful tool for progress. When the federal, state, or local governments use the power of the purse to preference healthy sustainable food, many good things happen. The people served by the government – often students or senior citizens – get healthier food; farmers who produce more sustainably get a preference and perhaps a price premium; and the market overall recognizes these important values.  

Thus, Earthjustice has often supported good food purchasing: 

• We supported New York City when it sought to limit sales of unsustainable and harmful food and that effort was challenged by excluded producers; fortunately, the City won. 

• We helped ensure that companies that sell a lot of food to local and state governments, such as Tyson Foods, don’t overstate the environmental attributes of their food (i.e., don’t “greenwash”), so that governments and others who want to purchase in line with their values are getting accurate information. 

• We supported the federal government, back in the day when it tried to use its purchasing power to advance sustainable farming. 

And we’re again advocating for the ability of local governments to preference better food with our support for the Good Food NY Bill that overwhelmingly passed both chambers of the New York Legislature and now awaits Governor Kathy Hochul’s signature. This bill would allow local governments (only if they want to!) to use “best value” purchasing or apply a slight premium to buy local and more ecologically and socially sustainable food.  

First introduced in 2021, this bill is now coming back to the Governor after she vetoed a prior version in 2024. While some farm advocates have opposed this commonsense bill by arguing that we should not hold farmers who receive public contracts to higher standards, many farmers, unions, and municipalities have come out to support this bill as a critical step to removing barriers for New York farms to sell to their local public institutions, benefitting farmers, workers, and local communities. We hope Governor Hochul will do the right thing and sign this into law. 

Mark Izeman, a friend and former colleague from the Natural Resources Defense Council (NRDC) has just written a terrific article, “Leveraging Local Purchasing Power: Reforming State Laws To Support Municipal Values-Based Food Procurement,” published in the NYU Environmental Law Journal. Below is his summary of the article, setting out why this is such an important opportunity and how we can advance it. 

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This article is focused on the need to reform state procurement laws in the United States – with a spotlight on New York State – to empower cities, towns, schools and other local entities to purchase food that is more sustainable, healthy and equitable.   

 Interest in purchasing more so-called “good food” stems from: (a) the growing awareness of the significant adverse environmental, climate, public health and other impacts of our global food and agricultural system; and (b) the recognition that leveraging the enormous amount of purchasing power of government institutions to buy food that meets environmental and other “values” represents a powerful strategy to tackle these systemic problems.   

Key Takeaways:  

1.  Leveraging government procurement to advance public objectives is not new: There is a long history in the US and around the world to harness government procurement dollars to advance social, economic, and environmental objectives. Historically, public procurement was often used to enforce important societal objectives (e.g., limiting child work hours, enforcing anti-discrimination laws). Since at least the 1970s, “sustainable” or “green” public procurement efforts have also been utilized to support environmental and climate goals (e.g., buying recycled paper, reducing greenhouse gas emissions). This article focuses on the newest public procurement movement – a third wave largely formed over the past 15 years – aimed at, again, channeling government purchasing monies to buy better food.   
2.  Cities are leading the way on good food initiatives: There are many municipal efforts in the U.S. to advance public food procurement laws and policies that are aligned with critical “values-based” or “good food” standards – namely, nutrition, local economy, environmental, labor, racial, and/or animal welfare.  Good examples include “good food purchasing” programs in Los Angeles, Chicago, Boston, and New York City. The article provides an overview of the most common municipal purchasing processes and describe how state laws – not local laws – largely govern the procurement of goods and services by localities, including through the delegation of so-called “Home Rule” authority. The multi-year effort to enact a first-in-the-nation “good food” law that would explicitly allow—but not mandate—localities to buy food that meets certain growing, sustainability, nutrition, and other standards within New York State municipal procurement laws offers a template.  
3. Antiquated state procurement laws hinder values-based local procurement: Despite the promise of values-based procurement, overall progress in shifting local food buying practices in New York and other states has been slow to advance. One key obstacle is that antiquated state laws generally require municipal food (and most other) contracts to be awarded to the “lowest responsible bidder.” While there are sound, long-standing reasons for this historical requirement, limiting purchasing to the lowest bidder largely prevents cities, towns, and schools from taking social and environmental factors into full account, such as supplying healthier school food, combatting climate change, and supporting local farms. 
4. State laws need to explicitly empower municipalities to consider values-based food standards: To help realize the full promise of values-based food procurement in New York and most other jurisdictions, existing state procurement laws should be changed to explicitly empower municipalities to consider values-based standards in their purchasing decisions. The two best options for implementing these procurement choices are through (a) more sophisticated “best value” solicitations that allow for values-based food standards to be weighed in the overall decision-making process; and (b) a “price preference” scheme that allows food contracts to be awarded to a vendor with a bid that is a certain percentage (e.g.,10%) higher than the lowest responsible bid if the food meets one of more of the articulated “good food” values.  

 Without these statutory reforms, it will be very difficult to significantly expand values-based public food procurement at the local level.  Legislators, decision-makers and advocates seeking to secure new statutory reforms would be well served to carefully decipher (often very complex) current state procurement laws governing localities (which are almost always different than laws controlling states agencies), incorporate supply chain transparency requirements into any new laws, ensure consistency with federal procurement laws governing schools and other entities receiving federal food monies, and take into consideration potential U.S. Constitutional concerns, especially under the Dormant Commerce Clause.