Sriracha’s Public Nuisance: Interview with Professor Ernesto Hernández-López

By Désirée Santos (SCR ’19), Senior Editor

 

Professor Ernesto Hernández-López is a Professor of Law at Chapman University’s Dale E. Fowler School of Law in Orange, California. His background in international relations, immigration law, and food law has led to him to analyze the intersection between race and food within the realm of public policy. Recently, he has published multiple works about the legal battle between the manufacturer of Sriracha hot sauce, Huy Fong Foods, and the city of Irwindale, California.

 

CJLPP: To start off, we just want to hear a little bit about your background in law and the path that has led you to be a professor of law at Chapman.

 

Hernández-López: I went to law school after being an international relations professor in South America. I had a graduate degree in Latin American Studies and then I graduated from law school in 2001 and practiced immigration law for three years in New York City.

 

CJLPP: What is it that led you to want to go to law school and become a law professor after already being an international relations professor?

 

Hernández-López: I went to grad school, got a masters, and was very interested in research and public policy issues. I went to South America to teach in Colombia – I’m Colombian – and I had always wanted to get a PhD but while I was overseas I thought that if I went to law school there would be more job opportunities. I became more interested in politics and maybe working for the government or a multilateral organization or in business. Law school honed my research skills, my legal skills, and writing skills, and that could lead to another type of job. In other words, going to law school didn’t foreclose being an academic, but it did offer the opportunity to do things other than what a PhD often limits you to. So I was excited about that.

 

CJLPP: Your published works show that one unique concentration you have is related to food law, which is a field of law of which many people may not be aware. What is the intersection between food, the law, and public policy?

 

Hernández-López: Right now there is a movement among law professors, which I think is also reflected in law schools and students who are looking for course work, law clinics, internships, and a form of advocacy referred to as “food law policy.” This reflects what is happening from a larger perspective—a lot of people in the United States are becoming more interested in food. From this point of view, you get the things that I’ve written about, like taco trucks or Sriracha or some of the food justice issues involving corn and NAFTA. For the “SoCLASS: Law and Legitimacy” conference in Claremont on April 28th, I spoke on food studies and the Constitution, specifically on animal welfare and food. But it is a new trend, and I think a lot of law schools now are thinking of having a class on food law, food law policy, or maybe even a clinic. This adds to traditional courses on food, agricultural, or FDA law. You also have a newer focus for legal scholars, advocates, and law students trying to add culture, justice or policy elements. For my research, I chose these issues because that’s what I was interested in personally and I think the legal issues frame, exploit and often cause the food conflicts, more so than many people realize.

 

CJLPP: One topic that you just briefly touched on that I’d like to be the focus of this interview is the legal drama between Sriracha and the city of Irwindale, California. For our readers who many be unfamiliar with this issue, could you give us a brief synopsis of what was going on there?

 

Hernández-López: There is this very small city outside of Los Angeles called Irwindale. It basically provided redevelopment funds to have this very popular hot sauce, that has gained global attention, to relocate their offices needed for manufacturing and for storage from Rosemead, which is in the San Gabriel Valley 10 miles away, to Irwindale. The city is very small, it’s kind of an anomaly in the sense that it was set up in the fifties to provide legal cover to mining companies because the city was known as where the aggregates for gravel and sand could be mined in its many quarries. When much of the gravel pits started running out, the 1,200 residents that existed in the fifties and the 1,200 residents that live there now have a lot more influence in their city government than you’d typically expect. In 2013 I believe it was, the city started complaining about a nuisance—which is a legal term and a common law term—but this nuisance was the smell, the burning eye sensation, and the fumes from the burning of the chili peppers. That nuisance led to a lawsuit filed by the city against the company called Huy Fong Foods and essentially they didn’t proceed to trial but the city council and the hot sauce maker, Huy Fong Foods, were able to come to an agreement—it wasn’t disclosed exactly what happened—but it was expected that the company would install more advanced filtering system and the city would drop its lawsuit. This was a concern because had it been in Los Angeles or San Francisco or a suburb, the city might not have paid that much attention, but because the city is so small, a small number of people can have an influence on what the city does. That captured a lot of attention because the hot sauce’s demand was really growing and this was their huge expanding manufacturing, processing, and storage base, and it quickly spread all over the world the news that there may be a stopping in production, or what people referred to as a “Sriracha shutdown” or a “Sriracha apocalypse.”

 

CJLPP: When reading about this story involving Sriracha and Irwindale, I couldn’t stop thinking about how the Irwindale community’s complaints were taken very seriously, while in Flint, their community’s complaints about the dirty water were ignored for a very long time. Is the size of Irwindale the cause of the disparity between how these two local governments were handling these concerns within their communities?

 

Hernández-López: That may be a simple way of looking at it. The size of Irwindale definitely explains why they were able to exert that much influence on the company. There’s not a lot of cities that only have 1,200 people. There’s a unique thing that happens in the law where you define things in terms of a jurisdiction. Cities, states, or the Federal government can have their own attorneys—kind of like the Department of Justice or the Attorney General of California—cities can have city attorneys. You have only 1,200 people who have influence over the city. I don’t know the specifics in Flint, Michigan, but I kind of think what was going on was that the city did one thing but the city mayor didn’t control the water, that may have been the county or the state. So for the legal aspect there is: who controls the power of legal representation? The city attorney for Irwindale listens to the city council. There’s only 1,200 people complaining. If enough of those people complain, then the city council and the mayor worry. While in Flint you may have a situation where the city complains but they’re not the ones that provide the water, it’s the water board. The water board may be controlled by the state or may be controlled by the county. To add an extra layer of complexity; in Irwindale they said it was a nuisance because it was hurting their eyes and hurting their nose, but they couldn’t point to any air quality problems. While in Flint, you could definitely point to contaminated levels of water since they basically switched a water source from one to the other. In Michigan you also have people complaining to the public versus complaining to a factory, which is what we had in Irwindale. It’s interesting what you say. The residents don’t have much of a say maybe in Flint, but city residents probably had a lot of influence in Irwindale.

 

CJLPP: Since the law of public nuisance, as you said, is typically applied to contaminated water, slaughterhouses, factory smoke, or instances where it seems that there’s a legitimate public health issue at stake, do you think that in the Irwindale case this law of public nuisance was possibly misused?

 

Hernández-López: It might’ve been. People have spoken about how the Irwindale city government is seen as, through an optimistic lens, very insular since there are only 1,200 people and most of them belong to the same families that have been there for a while. So maybe they only protect their own perspectives and issues and then they apply the law of public nuisance. But another perspective is that the law of nuisance is what exists in common law, the type of law we kind of inherited based on what our courts have decided to rely on, which exists independent of air quality or ground water contamination. Those issues are typically spelled out by either US Congress or in this sense it could be a county or the Sacramento government. They were using their law of nuisance, which is what people complain about when they can’t point to something very specific. But what would have been very difficult would have been that the California legal doctrine basically said that if you’re going to point to a public nuisance, you need to say that something is unreasonable and that it affects the whole community. The city had initially been very supportive of having this chili processing plant; the city bought the land and the company took out a loan from them. Now their argument would be that they want the half-million-dollar air filter installed. But what the company was arguing, “they’ve asked us to change our filtering system too many times, we’re not going to change it because it’s too expensive.” So there’s many arguments on why the law could have been seen as insular, corrupt, or maybe abusive, but that’s how people use the law. They go to the court to seek a remedy or seek a problem being fixed. That remedy isn’t always a judgment, it’s kind of a negotiation. So I think when Huy Fong got a public relations campaign, the city basically decided it was going to be very difficult for it to win its case. But the company was also fearing that they would have to close down their operations if the court case proceeded.

 

CJLPP: In one piece where you wrote about this issue, you said that this legal conflict reflects “cultural tensions suffered by migrant groups.” What exactly did you mean by that?

 

Hernández-López: There’s this weird but common phenomena that most people see race issues as maybe a new immigrant group versus an established white landowning professional class of individuals. There’s another way of seeing things; where an immigrant group, an ethnic group, or a racial group controls the government because of how jurisdictions are laid out. What we have is that certain cities or suburbs can be identified with a certain type of racial group. Here, it was very clear that the city of Irwindale was incorporated in the fifties basically because mining companies wanted to benefit from not having to pay taxes from Los Angeles and you had 1,200 Latino families living there. You’d say back then that it was racist or it was disenfranchising because these people basically had to live amongst all of these gravel mining and extraction and very polluted environment. But then those same people had the control of the city government, which also included the ability to enforce police action, have a public nuisance action, or have an inquiry by the city council.

 

Then this city, that has basically existed since the fifties and the mining that has been there since the turn of the century, gets in a situation where they now have a new source of income and a new source of business that produces food. All of a sudden the city starts complaining about them being smelly and obnoxious—that’s the term that’s usually used for public nuisance—and that it hurts their eyes. People say that this may be a trope that people have when they say an immigrant group, at this point Asians or Chinese or Vietnamese, are something that the locals have a problem with. What I was trying to point to with this article was that people were worried about hot sauce, people were worried about if this public nuisance law was used fairly or how it’s being used, but the bigger issue is what happens when certain types of people control city or county governments and outsiders come in. The mindset going on is that a city that is mostly a Mexican or Mexican-American city had an immigrant group represented by Huy Fong setting up business. They’re very rich but they didn’t have much political influence over the city, leading this type of tension to happen.

 

CJLPP: Part of the reason why this Sriracha factory was built in Irwindale, to my understanding, was because it allowed the factory to be very close to where the ingredients such as the chilis were harvested. Since now more people are wanting their foods to be produced locally using fresh, locally-sourced ingredients as Sriracha was attempting to do, do you see the problem in Irwindale becoming more prevalent in the future?

 

Hernández-López: Maybe to a certain degree. Irwindale is weird because of the way Huy Fong is made. They [the Huy Fong company] are very obsessive with it, all points to David Tran, who is the owner. He only uses the highest quality chili peppers and he has a farm that grows them to the highest quality. He can control the quality, pick them, and decide what they’re going to do. The weird thing about chili peppers is that if they take too long after being recently picked, they can start to ferment. That’s why there’s very few hot sauces that use fresh chili peppers, because it’s really hard to have not only high quality, but also to produce large amounts, especially if you’re going to produce Tabasco, Sriracha, Tapatio, or one of these huge brands. What Tran was able to do was secure something only two hours away, which was in Oxnard or Gilroy, and they would be processed very quickly. These things are all processed when the chili peppers grow, when they’re fully in bloom or fully grown. That’s why the locals probably weren’t complaining about the chili peppers in November or December, but were probably complaining in September or October when a lot of this stuff is really processed.

 

I can see how a situation where people really want to eat locally – and typically the type of people who really want to eat locally have the economic means to exert for that and not buy things at Costco or the large supermarket – would want fresh milk or close eggs or cows or pigs that aren’t from very far away. Then people would start complaining: “Why is it that these neighborhoods or these urban environments have pigs or cows or eggs or something of that sort producing what we want?” So I think there is a tension that at one point a large part of our food system is structured about receiving these goods prized as “local”, which has been prevalent in many parts of the world for a very long time. We want pork but its usually coming from Iowa. We want milk but it’s typically coming from the Central Valley, Wisconsin, or Vermont. I live in Newport, so if these things are popping up in Newport or Pomona or Claremont, people will complain. So yeah, I think the local tensions that came out from the Sriracha apocalypse could replicate in a lot of other things where chickens, eggs, and dairy could cause an issue.

 

CJLPP: Thank you so much, Professor Hernández-López, for your time and expertise.

 

 

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