Oh, SNAP! USDA Still Not Addressing Discrimination at FNS Against Minority & Immigrant Retailers

On February 28, 2023, USDA’s Equity Commission issued its 2023 Interim Report containing recommendations to advance equity at USDA. The Interim Report’s cover letter states, “Our commitment to equity is about creating an agricultural economy, a rural economy, and an American economy that create opportunity for all.” Given the Equity Commission’s focus on rural and agricultural issues, it is no surprise that its Interim Report contains only four recommendations that mention SNAP at all and only one that concerns issues that concern retailers. Given that more than 42 million Americans are SNAP beneficiaries and SNAP comprises approximately 75% of the Farm Bill’s mandatory spending, the Equity Commission’s failure to focus adequate attention on nutrition issues is inexcusable.  

Amazingly, USDA’s response is even worse. Secretary Vilsack’s cover letter proclaims, “It’s about ensuring that farmers, ranchers, landowners, communities, families, and have the support and tools they need to build a good life in the communities they love.” It is therefore not a surprise that USDA’s response pays little mind to issues affecting nearly one in seven Americans across the country. The entirety of the Department’s response to the Equity Commission’s Recommendation 32, which specifically mentioned “review of data-mining algorithms used to identify SNAP retailers as possible sites for fraud for bias and disproportionate impact,” was limited to a vague promise to “review the nutrition programs.”

Let me be clear. USDA and USDA’s Food and Nutrition Service (FNS) do not care about minority and immigrant-owned retailers. USDA and FNS do not care about ever-increasing food deserts in minority neighborhoods caused by the discriminatory impacts of FNS’s inequitable enforcement of its SNAP regulations. One may ask what support exists for these unqualified opinions. The better question is where to begin.

At the outset, it is clear that FNS’s enforcement efforts are exclusively focused on convenience stores and grocery stores. During FY21, FNS’s SNAP Retailer Management Year End Summary made clear that the agency did not disqualify a single superstore or supermarket for trafficking in SNAP benefits. That statistic is amazing considering that larger retailers redeemed nearly 80% of the $125 billion in SNAP benefits that year. 

Second, USDA, USDA’s Office of Inspector General, and FNS have received numerous complaints for years from retailers and their attorneys, including from OFW Principal Stewart Fried about the inequitable administrative system that FNS uses to enforce trafficking and other SNAP violations, and the disparate impacts on smaller retailers owned by immigrants from the Middle East, the Indian subcontinents, Latin America, and East Asia. To date, absolutely nothing had been done.

Third, anecdotal evidence demonstrates that Muslim-owned retailers, especially in Detroit, Chicago, and Memphis, are frequently the targets of FNS’s overzealous enforcement efforts. Reports that FNS Section Chiefs impose quotas are legion and that the agency requires multiple levels of approval before a store charged with SNAP trafficking can be determined not to have engaged in program violations (usually described as a No Further Action letter).   

Fourth, pleas to the Equity Commission have fallen on deaf ears.  Requests to Dewayne Goldmon, Secretary Vilsack’s Senior Advisor for Racial Equity, USDA General Counsel Janie Hipp, Acting Deputy Secretary Stacy Dean, and FNS Administrator Cindy Long to focus on SNAP Retailer issues and to establish a nutrition subcommittee have been wholly ignored.  Communications and formal complaints filed with USDA Inspector General Phyllis Fong have also gone nowhere. More recently, I reached out to Margo Schlanger, an Equity Committee member, who teaches civil rights law at the University of Michigan law. Given that Professor Schlanger teaches law in southeastern Michigan, which has the largest concentration of Muslim Americans in the United States, I harbored hopes that she might aid in addressing FNS’s inequitable treatment of retailers. Sadly, she too appears to care little about SNAP retailers and beneficiaries in what amounts to her backyard.

It is truly sad that unmistakable discrimination exists at an agency still referred to as The Last Plantation. And while Secretary Vilsack’s efforts to address the vestiges of such illegal treatment are laudable, his failure to require the Equity Commission to do something substantive to fix the endemic discrimination at FNS is inexcusable, especially since he has led the Department for more than twelve of the past sixteen years. Is this really the legacy that he wants to leave behind before he returns to the fertile fields of Iowa? Based on his record, it is clear that the only hope for reform at FNS lies with Congress during the 2023 Farm Bill.

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