I. This is a bag of muffins. Muffins are edible breads that can be eaten as an entire meal, or next to/after it, or as a side dish together with coffee or tea. These particular muffins are flavored with vanilla and chocolate. They come from a Belgian supermarket called Carrefour. What you cannot see in this picture is that the muffins have expired their due date. Due dates come in two kinds: “use by” date, and “best before” (articles 9, 10 and 11 of the Directive 2000/13/EC relating to the labelling, presentation and advertising of foodstuffs). The former relates to food safety, the latter indicates a date after which the producer does not any longer guarantee intended flavor, color and taste. Unlike refrigerated products, like milk or meat, foodstuff like bread, canned soups, flour, vegetables etc. only have a best before date. This means that the date that the muffins in this photo have passed is a best before date, and if they were to be eaten, they might not taste the same way as muffins that are still within the best before date. But this does not necessarily mean that the muffins are unfit for human consumption: they might still satisfy a hungry stomach without causing any harm. However, for the supermarket who wishes to sell them, this is not a winning argument. In fact, if the supermarket was to sell these muffins and a consumer was to fall ill from having eaten them, the supermarket could be held responsible. Which is why as soon as edibles have passed their due date, supermarkets throw them away. The muffins in this photo, then, do not come from the shelf in a supermarket; rather, they were found in and taken from a dumpster. But, no, they were not simply “found” in a dumpster. A man stole them in the Belgian city Rupelmonde, or so the Belgian court, the “Rechtbank Dendermonde” has argued.
Now, you may wonder: how can one steal that which has been discarded? This is no easy question to answer, even for a court of law. And indeed, the Court of Appeal in the Belgian city Ghent reversed the verdict of the Rechtbank, arguing that in the case of these particular muffins circumstantial evidence meant that the man who took the muffins had not committed theft after all.
II. We live in a world of paradox: while large parts of the world population starve from hunger and/or suffer the consequences of malnutrition, “[r]oughly one third of the food produced in the world for human consumption every year — approximately 1.3 billion tonnes — gets lost or wasted”. Food is wasted in all the stages of its production, distribution and consumption: from the grapes that are not picked in the field, the cans of soup that cannot be sold because the label was printed incorrectly, to the supermarket that throws out the products that are close to or over the due date, and the consumer who only eats half of his or her plate.
In a recent survey of food loss and food waste, the FAO suggests that food is wasted/lost both in so-called developing and so-called industrialized countries. The difference between food loss and food waste pertains to the stage at which the food perishes: while food loss refers to the food that is lost at the level of production, relating to infrastructure, climate (e.g. draughts or floods) and technologies (cold chains, pesticides etc. see e.g. Freidberg, 2010), food waste refers to food that is wasted at the level of consumption, e.g. in households, retail or institutions (see also Stuart, 2009). Figures that the FAO (FAO, 2011) presents suggest that food loss is prevalent across the globe, while food waste is comparatively more widespread in what is commonly taken to be high-income regions such as Europe, North America & Oceania and industrialized Asia.
The diagram above seems to suggest that wastefulness, and carelessness with regard to food at the level of the consumer is unevenly distributed geographically and globally: consumers in Europe, North America and Oceania and Industrialized Asia waste proportionally more than consumers in Subsaharan and North Africa, West, Central, South and Southeast Asia and Latin America. It suggests that, at the level of statistics, European, North American and Industrialized Asian societies reflect, indeed, what has elsewhere been termed “throwaway societies” (see e.g. Bauman, 2002). But this is neither to suggest that Europeans, North Americans and Asians are all per definition wasteful, nor that they can all afford to be careless about food (Gregson, Metcalfe & Crewe, 2007; Evans, 2012). It should not come as a surprise that many people in Europe, North America and Industrialized Asia find it hard to make ends meet; what may come as a surprise to some is that many (either out of need or out of political conviction) recuperate and live off food that has been wasted (Barnard, 2011; Eikenberry & Smith, 2005; Guthman, 2008). These practices of sifting through commercial or residential trash to find food, that has been thrown away but is still edible, goes by many names: dumpster diving, dumpstering, skipping, waste picking, practicing freeganism, tatting, gleaning, binning, scavenging, bin-diving, containering, urban foraging, etc. Beyond the names and the numbers, however, daily life continues much the same way.
III. Someone’s left-over fat is another person’s food? The food demand of those who are unable to buy or otherwise obtain the food that they need to survive and the enormous wastage of food that is still edible seem to be, at least from a “rational” point of view, two pieces of a puzzle that would not be too hard to solve: excess food that would otherwise be wasted could, for example, be donated to those in need. Such a solution is for instance created when supermarkets donate food that is close to the due date to food banks (Guthman, 2008). One thing that possibly stands in the way for such solutions to be realized is the notion that when food is thrown away and afterwards recuperated, something of an act of transgression takes place.
One does not have to be a specialist of Douglas’ Purity and Danger: An Analysis of Concepts of Pollution and Taboo (Douglas, 2002) to sense that something has gone wrong – that a boundary has been breached – when seeing someone eating from the garbage bag one has just placed on the curb. That is not food, that is waste, and what is more: the content of that bag, even though it was no longer wanted and was left to its fate, was never meant to be opened. In this context, waste scholar Gay Hawkins suggests that waste also demarcates a boundary between the public and the private.
It’s difficult to imagine a world without a distinction between public and private, though there are times when you get an insight into what it might be like. Seeing how the contents of your garbage bin spread over the street after collection night is one of those times. After irritation, this experience can trigger strong feelings of exposure. All this evidence of your intimate life is revealed as waste. In the rush to pick it up you shudder with the horror of contamination and embarrassment. When waste returns, your privacy is exposed to unwelcome scrutiny. (Hawkins, 2006)
When A bag with disposed items, that was supposed to stay closed and be quietly destroyed out-of-sight, is opened up for public scrutiny, a transgression occurs. However, the sense of boundary transgression does not require a closed garbage bag to be opened up. In his autobiography It’s me, Eddie the Russian writer Limonov describes how he finishes the leftovers on the plates of the customers of a restaurant in New York where he works as a waiter, evoking feelings of shame and uncanny transgression:
[Patricio] used to finish off the liquor the customers left in their glasses. Later I began doing it too, usually going behind a sort of screen. Now and then I also finished off the food the customers hadn’t eaten. Being an Oriental, I’m very fond of fatty meat, for example. The customers left the fat, but I wasn’t so picky.
Food can be wasted in many ways: whether it is leftovers, the fat on a plate or over the due date muffins thrown into a dumpster is, for most intents and purposes, of little consequence. But irrespective of the many inventive ways in which food can be recycled (composting, dumpster diving, anaerobic digestion etc.) not all food that has been wasted can be eaten. Limonov’s leftover fat, over the due date muffins and food retrieved from a garbage bag on some curb may all be culturally and socially coded as waste, but next to the symbolic and normative boundary that, in Douglas’s analysis of waste and pollution, separates waste from non-waste, there is also an organic, material boundary that separates edible food from nonedible food (MacClancy, Henry, & Macbeth, 2007). (Some) rotten tomatoes cannot be repaired.
IV. Just do it! Limonov’s description conjures the sense that taste and diets are relevant to wasting: next to dieting advice and concerns about health, conceptions about fat as non-food meant that the diners in the restaurant where he worked cut away the excess fat from their meat. Similarly, in most meat production intestines and internal organs are cut away during slaughter, while many traditional and locally specific dishes, such as chitterlings, haggis and the newly reinvented nose-to-tail eating make use of the entire animal. This latter practice reevaluates the boundary between food and waste, not unlike the practice of dumpster diving. But as we have already suggested, diving for food in dumpsters is done for several reasons. The Belgian dumpster diver Steven De Geynst, who for several years lived as a homeless, says in an interview:
In the beginning you really have to force yourself to cross a certain boundary. Diving into a dumpster is not something you just do, you know? It’s only after you turn a switch in your head that you say: “ I will just do it!”.
The boundaries that are at stake in recuperating and eating wasted food are not only a matter of cultural perceptions, as was the case in Limonov’s description, or matters of shame and desperation as in the quote from De Geynst. The boundaries can also, sometimes, be made legal. The confrontation with these legal boundaries often comes as a surprise to those involved in dumpster diving. In the recently released documentary Dive! Living off America’s Waste which follows a group of local dumpster divers in Los Angeles, one of the divers explains that while he acknowledges that others may conceive of dumpster diving as theft, he cannot reconcile this with what he does when he “rescues” food (which is the term he uses) from a dumpster.
I don’t understand how someone could get upset about you stealing trash. You’re “stealing” waste, you know? This is just something that has been discarded and wants to be forgotten about and you take it. I don’t see how that can be conceived of as being criminal in any way.
Another diver, reflecting on the location of most dumpsters (most of these are located on private property, behind fences), adds that diving
is technically trespassing, and it is against the law. That is where the conflict comes in – the conflict between what I believe is just and what is legal. And this lifestyle is more just than going into the store and buying stuff with money.
But the ways in which dumpster diving can be made a legal matter are not restricted to trespassing. It can also be turned into a matter of property. Such was the case on the 22nd of March 2010 when Steven De Geynst was arrested for theft after having taken two bags of muffins from a dumpster outside a supermarket. In the first instance, he was convicted to six months of imprisonment by the Court of Dendermonde in Belgium. Several months later, a second trial was held in the Court of Appeal in Ghent, also in Belgium. Even though the Court in Ghent reversed the decision and acquitted De Geynst, it also underlined in its judgment that, contrary to what one might assume, the property rights of a supermarket are not abandoned when something is disposed in a dumpster. In its verdict, the court argued that unless the owner of a garbage bin gives permission to do so, taking food from a dumpster, in Belgium, qualifies as theft. This specification regarding permission was crucial in the Muffinman case: for years the supermarket had accepted that De Geynst took food from their dumpster and in its verdict the Court of Appeal took into account that there had been a misunderstanding about whether this permission had been discontinued.
V. The Muffinman case stirred quite some discussion in the Belgian media. In the first place because stealing garbage sounds like a contradiction in terms: how can one steal that which has been abandoned? Secondly, and more importantly, the fact that it concerned food waste acerbated the debates in social and traditional media. Some argued that since food waste, unlike other kinds of waste, is ingested and eaten the case signaled a more disturbing and dangerous issue than when non-food waste is appropriated. Scavenging an old oven or laundry machine is unlikely to make you ill, while eating a rotten muffin could potentially endanger your health, which is why there are numerous laws governing the production, distribution and consumption of food. The EU legislation (see for an overview of the relevant regulations in the US, particularly the ones issued by the Food and Drug Administration: Fortin, 2009) that surrounds food safety is meant to ensure that the food that is provided by producers, supermarkets and retailers is safe and fit for human consumption (MacMaoláin, 2007). Art 14.1 states that “Food shall not be placed on the market if it is unsafe” followed by 14.2 “Food shall be deemed to be unsafe if it is considered to be: (a) injurious to health; (b) unfit for human consumption.” And article 14.5 of the European Regulation 178/2002 of food law with regard to food safety makes the following additions:
In determining whether any food is unfit for human consumption, regard shall be had to whether the food is unacceptable for human consumption according to its intended use, for reasons of contamination, whether by extraneous matter or otherwise, or through putrefaction, deterioration or decay.
This was also the line of argument in the muffinman case what the public prosecutor argued that:
If the Muffinman is acquitted, a danger is threatening society. Who will then be held responsible for the dissemination of products that threaten public health?
In the debates that followed others, however, argued that food is one of the most basic needs and letting it go to waste, when it could have filled the stomach of a hungry human being, is even more immoral than when a still functioning oven or laundry machine is thrown out and destroyed. Prohibiting those in need from taking food waste seems to infringe on their autonomous capacities and possibilities to survive. In this context a French study shows that the desire to keep one’s “dignity and independence” is an important reason for engaging in “urban food scavenging”. The study concludes that tolerating food scavenging is an ethical practice with ancient roots. The Old Testament (Leviticus 19.9 ff. and Deutoronomy 24.19 ff.) prescribes explicitly that one should not harvest all too thoroughly, so that “the poor” and the “foreigner, the fatherless and the widow” can find themselves something to glean in the fields after they have been harvested. However this ethical imperative of tolerating food scavenging is only rarely inscribed in the law.
VI. What the law does (or, what it could do). It should be clear from the above that the question as to whether it is legal to appropriate wasted food might have many possible answers. So if scavenging, dumpster diving and gleaning wasted or disposed food is rarely inscribed in the law, then what does the law say about the appropriation of food waste? The answer will vary according to the many jurisdictions, but based on our observations with regard to the UK, Germany, Belgium, The Netherlands, France and the US there are some interesting commonalities and differences to point out. Let’s begin with the commonalities. In each of the aforementioned jurisdictions there seem to be three possible legal conceptualizations to approach the scavenging and appropriation of waste. (Note that we write waste, and not food waste – for there seems to be hardly any legal instrument, if any, that makes a fundamental distinction between food waste and other kinds of waste.)
(1) waste as part of civil law: property
(2) waste as part of constitutional law: privacy
(3) waste as part of regulations regarding order, public health and wellbeing: municipal/local sanitary regulations
Each of these legal conceptualizations is a tool that replaces indeterminacy (e.g.: Whose property is it, if it is anyone’s at all? What is the line of the private sphere that should not be transgressed?) or messiness (e.g.: garbage scattered through the public space, disease spreading, people falling ill from contaminated food) with clarity and order (e.g.: It’s his! That’s public – but don’t go there, that’s private! Don’t touch what’s in the container!) . The three legal conceptualizations in themselves are not answers to the question what the act of appropriating food waste is, but only specific ways of framing the question.
For instance, if we frame the question through the lens of property (Is the appropriation of food waste from a dumpster infringing on someone’s property right?) there can be at least five possible answers.
(a) No, the waste should be considered as abandoned property (res derelict [on abandonment of property see, Strahilevitz 2010])
(b) Yes, when placing the food in a dumpster there is a transfer of property to the garbage collection company, municipality or city [cf. many of the local antiscavenging laws and provisions]
(c) Yes, the one who placed the food in the bin continues to be the owner until the object is destroyed [this was the case with the muffins that Steven de Geynst stole]
(d) Yes, the one who placed the food in the bin continues to be the owner until the object is collected by the garbage collection company [In UK: Williams v Phillips (1957) 41 Cr App R 5 ; R (Ricketts) v Basildon Magistrates' Court  EWHC 2358 (Admin); Decision of the Chelmsford Crown Court against Sacha Hall, 20 June 2011]
(e) No – although the one who placed the food in the dumpster continues to be the owner until the food is collected/destroyed, (particular categories of) scavengers have no criminal liability when they appropriate the object [cf. old French laws on gleaning]
VII. There is a clear divide here between, for instance, the USA and the UK (a blog post which illustrates the differences between the UK and the USA can be found here.) Whereas the UK departs from the principle that throwing something away in a garbage bin does not affect the property rights, the case law in the USA seems to embrace the opposite point of view. In the case Long v. Dilling Mechanical Contractors, Inc., 705 N.E.2d 1022 (Court of Appeals of Indiana,1999), where it was decided that searching through company litter bins for employee contact information does not constitute theft because the property was abandoned, the Court underlined that:
[T]here is a widely held and long-standing doctrine that personalty discarded as waste is considered abandoned. See United States v. Wiederkehr, 33 M.J. 539, 541 (A.F.C.M.R.1991) (“Abandoned property is property the owner has thrown away.”); Ex parte Szczygiel, 51 N.Y.S.2d 699, 702 (Sup.Ct.1944)(“The abandonment of property is the relinquishment of all title, possession or claim to or of it-a virtual intentional throwing away of it.”); Eads v. Brazelton, 22 Ark. 499, 509 (1861) (“Property is said to be abandoned when it is thrown away….”); M’Goon v. Ankeny, 11 Ill. 558, 559 (1850) (“[I]f those who made the slag, considering it entirely worthless, cast it away with the intention of abandoning it, they thereby divested themselves of their title to it….”); William T. Brantly, Of the Law of Personal Property § 133, at 213-14 (1891) (“A thing is abandoned when the owner throws it away, or leaves it without custody, because he no longer wishes to account it as his property[.]”).
Here the USA clearly diverge from the UK. To illustrate: in a verdict of 20 June 2011 the Chelmsford Crown Court condemned a woman to a 12-month conditional discharge for handling stolen goods because she had accepted food (potato waffles, pies, and 100 packets of ham) that was offered to her by a dumpster diver who had recuperated these from a bin outside a Tesco Express in Essex.
This comparison might give the impression that the USA are a dumpster divers’ paradise compared to the UK, or, for instance Belgium. In fact, this is also the sense that one gets from websites dedicated to dumpster diving in the USA. However, such sites hardly ever mention the property perspective; rather, they refer to California v. Greenwood, 486 U.S. 35 (1988), a land mark case with regard to the Fourth Amendment protection against unreasonable searches and seizures, and the reasonable expectation of privacy one should have with regard to garbage bins that have been placed on the curb. In this particular case it was questioned whether the police had intruded on the privacy of a suspect by searching his garbage bags without having a search warrant. The US Supreme Court ruled that there is no privacy in garbage bags (for critiques of the verdict, see e.g. Karp, 2000 and Herdrich, 1989):
[…] the trash, which was placed on the street for collection at a fixed time, was contained in opaque plastic bags, which the garbage collector was expected to pick up, mingle with the trash of others, and deposit at the garbage dump. The trash was only temporarily on the street, and there was little likelihood that it would be inspected by anyone. It may well be that respondents did not expect that the contents of their garbage bags would become known to the police or other members of the public. An expectation of privacy does not give rise to Fourth Amendment protection, however, unless society is prepared to accept that expectation as objectively reasonable. Here, we conclude that respondents exposed their garbage to the public sufficiently to defeat their claim to Fourth Amendment protection. It is common knowledge that plastic garbage bags left on or at the side of a public street are readily accessible to animals, children, scavengers, snoops, and other members of the public. Moreover, respondents placed their refuse at the curb for the express purpose of conveying it to a third party, the trash collector, who might himself have sorted through respondents’ trash or permitted others, such as the police, to do so. Accordingly, having deposited their garbage “in an area particularly suited for public inspection and, in a manner of speaking, public consumption, for the express purpose of having strangers take it,” United States v. Reicherter, 647 F.2d 397, 399 (CA3 1981), respondents could have had no reasonable expectation of privacy in the inculpatory items that they discarded.
However, there was a dissenting minority in the case, arguing that there is privacy in garbage. It should also be noted that the Supreme Court pays a lot of attention to the particular circumstances of this particular instance of trash disposal; it is not excluded in that there could be situations where garbage is protected by the Fourth Amendment. Moreover, while there is no privacy in garbage on a Federal level, individual states have the possibility to grant a higher level of constitutional protection. Some states do grant this protection.
In the aforementioned case Long v. Dilling Mechanical Contractors, Inc., 705 N.E.2d 1022 (Court of Appeals of Indiana,1999) the Court underlined that property and privacy rights are two very separate fields, and that one could have property right without a reasonable expectation of privacy in the same object:
[…] we note that the “test for abandonment in the search and seizure context is distinct from the property law notion of abandonment: it is possible for a person to retain a property interest in an item, but nonetheless to relinquish his or her reasonable expectation of privacy in the object.” United States v. Thomas, 864 F.2d 843, 845 (D.C.Cir.1989).
Both with regard to property and privacy the US seems to have laws that are beneficial for dumpster diving and scavenging. However, the last category – the municipal sanitation ordinances and regulations are what might sometimes cloud the practice of dumpster diving. The NY sanitation regulations at least “excludes” the small scale food scavenger by only punishing him or her with a relatively small fine ($100-$300) and reserving the heavier punishments ($2,000 + Vehicle Impoundment) to scavenging involving recyclables and transportation by a motorized vehicle. The latter could involve, for instance, stopping the car to pick up an air conditioner which has been placed on the curb.
Other cities, like San Diego, seem to have a tougher policy on small scale scavenging and actively stimulate citizens to report it. However, many cities and municipalities seem particularly concerned about the theft of recyclables because these generate money for the community:
When recyclables are stolen from your collection bin, it drives up the cost of recycling collection and ultimately costs you, the rate payer, more money. By law, the City is required to recycle 50% of all trash disposed of each year in an effort to prolong the life of local landfills. To prove compliance with this regulation, the City must report the amount of trash it recycles annually to the State. If the City does not meet the 50% requirement, it can be fined up to $10,000 for each day it does not meet that goal.
The city of Vancouver (BC, Canada) even underlines that their “[la]w enforcement considers scavenging a gateway crime to other activities, such as illegal drugs, identity theft and more”.
VIII. The legal dimensions of food waste can become matters of concern for many of those who glean, dive or scavenge for food. However, it is important to remember that the law does not speak in one voice, and laws that regulate food waste are different in different countries. And even with cases such as the Muffinman what the law does or can do is relative to the circumstances that surround the specific case. In conclusion, we would like to raise a concern that we have struggled with in describing these cases. In the light of the amount of food that is wasted globally, it is perhaps difficult to defend what the law does with regard to waste. Can food that has been wasted, left, disposed be stolen? After all, given the increasingly detrimental environmental, economic and social effects of global food production that people like Tristram Stuart and Carolyn Steel have made public, recuperating wasted food (or other waste for that matter) seems like the good thing to do. Irrespective of the legal implications, it is just, as the diver in Dive! suggests. And it undoubtedly environmentally, and economically, sound to recycle stuff. But things are not always that simple, and the potential danger that we see with our case is that we end up repeating and reinforcing self-evidence. So what are the potential complexities that are left out? First there are the laws pertaining to food safety in Europe (and elsewhere): in theory they are put to use in order to protect consumers and safeguard public health; in practice they result in lots of edible food being thrown in the dumpster. By way of contrast it is worthwhile to note that while many consumers in European countries are concerned with edible food being thrown away due to these strict regulations, in Russia the youth organization of president Putin’s party – Nashi – revolts against the expired products that are sold in supermarkets because retailers consider their removal as too much of an effort and hope that inattentive customers might buy them. And in Sweden in 2007 journalists could reveal that one of the biggest supermarket chains was breaking the safety regulations by repackaging out-of-date meat. Through what was to become known as the ICA meat repackaging controversy trust in retail plummeted and customers raged against the supermarket, asking for full disclosure of the facts. Second, the situation that the Muffinman case addresses is interesting in the sense that it highlights the fact that the law, depending on the legal conceptualization that is drawn upon, can reach different verdicts with regard to the legal dimensions of waste. Also, the case addresses the need for laws pertaining to food waste: while the legal indeterminacy relating to food waste can be used as a resource in some recycling practices, knowing one’s rights and obligations as a dumpster diver or gleaner can also create more sustainable and mutually transparent practices with regard to the relationships between supermarkets, producers and divers and gleaners. Finally, as the US cases we have discussed underscore, when the law is deployed and put to work, it always does so by looking carefully at the particularities and details of a situation, which is why there is no way to know beforehand exactly what or how the law will operate. Studying how the law approaches and deals with issues to do with food waste and other waste may therefore give us insights into how waste creates social relations; how it maintains relations between objects, technologies and people; and how different kinds of waste are made specific and particular through the law.
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Sebastian Abrahamsson is a postdoctoral fellow at the University of Amsterdam. He is currently working in a EU project on “The Eating body in western practice and theory”. More specifically, he is exploring practices of (not) wasting and recycling edibles.
Katja de Vries is a PhD researcher in the interdisciplinary group on Law, Science, Technology and Society (LSTS) at the Vrije Universiteit Brussels (VUB). She is currently working on profiling technologies, data protection and privacy.