Law For Food: The law affects what you eat. What you buy to eat affects the law.

A Hands-Off Hypothesis
30 April 2007, 5:36 pm
Filed under: food politics, Regulation

Earlier today, I wrote:

A level playing field cannot be had, however, if regulators are not to some degree immune to political pressure (in, I suggest, a similar way as U.S. Attorneys should be immune to political pressure), and political pressure is almost always tied to business interests.

And then I thought, you know, there do seem to have been a lot of food-borne illness outbreaks lately.


A CDC Press Release dated April 12, 2007, begins with the following paragraph:

A report released Thursday by the Centers for Disease Control and Prevention (CDC) shows a leveling of cases for some foodborne infections after a period of decline. For others, incidences of infection which had declined appear to be returning to earlier levels.

(Emphasis added.)

The summary of that report dates the leveling off and return to earlier levels from 2000 forward.

In and of itself, this doesn’t prove anything, but it suggests a line of inquiry that might prove fruitful. Stay tuned.

Food Safety and Lobbying Power
30 April 2007, 12:44 pm
Filed under: Import/Export, local v. industrial, Regulation

Last month I gave a presentation in my Comparative Law class, comparing cheese sale and production in the U.S. to that in France. During the question and answer period my professor asked a very pointed question: “Given what you have just described, do you really think that food regulation exists to protect consumers and the public health?”

I of course answered that wherever there is regulation in a marketplace, businesses will seek to influence that regulation so as to give themselves a comparative advantage over their competitors, and that many people believe that food regulation in the U.S. exists to protect the interests of the big ag. companies — a fairly safe non-answer answer: to address the question would have required more, and broader, research than required by a twenty-minute presentation on a fairly specific and rather technical topic.

However I suspect that another effect of this website will be to draw a picture, as others (such as Kate at the Accidental Hedonist) are already doing, of the FDA as a regulator which is to some extent hamstrung by political and business interests which lie in conflict with basic public health. Kate’s recent post does a good job of pointing this out, and should be read in its entirety.

The FDA lacks any authority. The snippet above regarding ConAgra is the perfect illustration of this. When the FDA requested documentation regarding a batch of peanut butter that was destroyed, ConAgra provided…well, nothing. In response to ConAgra’s inaction, the FDA simply walked away, as there was little in the way of legal recourse available to them.

Kate’s point runs counter to my own experience as a buyer at a small, independent specialty food shop: to our eyes, the FDA was able to exercise a great deal of power by requiring us to pay for expensive lab tests to prove that imported cheeses were free of listeria m. — tests which made selling those cheeses economically impossible.

Comparing imported cheeses to domestic peanut butter may be imperfect, as there are, and should probably be, different regulations for different products. But the bigger picture suggests to me that the FDA has a great deal of power over small and independent producers and sellers of goods, and very little over large producers.

From a public safety standpoint, this makes little sense, because the impact of a small producer or seller of goods on the public food supply is fairly small, arguably even de minimus, and food safety issues with small producers can almost certainly be handled better on a state or local level.

Of course, there are interstate commerce issues to consider: there is, I think, a good argument to be made that the U.S. economy is better served by applying a federal food safety standard: this makes it easier to transport foods across state borders, and, at least in theory, prevents producers in one state from having to compete with producers in another state who can produce a possibly equivalent product under a more relaxed regulatory standard. As interstate tarriffs are illegal, it makes some sense to level the regulatory playing field.

A level playing field cannot be had, however, if regulators are not to some degree immune to political pressure (in, I suggest, a similar way as U.S. Attorneys should be immune to political pressure), and political pressure is almost always tied to business interests.

Accordingly, there are at least two dimensions to reforming the FDA:

  1. Does the FDA have too much power? Not enough? Just enough?
  2. Does the FDA apply its power evenly across the board? Does it meet greater public health risks with greater vigor? Does it confront lesser risks for the sake of appearing successful?

The Farm Bill and Country of Origin Labeling
26 April 2007, 1:23 pm
Filed under: Import/Export, labeling, Regulation

The Ethicurean has an interesting article about sourcing hazelnuts from Turkey, which contains, in an aside, the following information about mandatory country of origin labeling:

Mandatory country-of-origin labeling (COOL) for meat, seafood, vegetables, fruits and peanuts (but not other nuts) was part of the Farm Bill that passed in 2002. However, after an outcry from the food industry, Congress put the program on hold for everything except seafood until 2008 (seafood labeling began in 2005). There is talk of using the 2007 Farm Bill to lift the hold on COOL (perhaps in exchange for a deal on the national animal ID system), but powerful forces are aligned against it — the big meat packers and giant chains like Wal-Mart, to name a few. COOL would require expenditures by manufacturers and might make labels more complicated, but I think that consumers deserve to know where their food comes from.

For kicks, I’m looking for any information that predicts the ways people’s buying habits would change if country of origin were written on every label.

Pollan on The Farm Bill
25 April 2007, 2:42 pm
Filed under: Ethics of Eating, Regulation

One of the things that I suspected would enter into the conversation at some point is the amount of money that is spent subsidising the American diet. U.S. Farm subsidies, as part of the federal budget, are an aspect of the idea that the law affects what you eat. Shouldering some of the burden of production of certain commodities, which gives those commodities a comparative advantage in the marketplace relative to commodities which must support themselves in the marketplace.

Michael Pollan’s recent article in the New York Times (free subscription, regrettably, required) discusses the Farm Bill at some length, and is worth reading. Notable:

And though we don’t ordinarily think of the farm bill in these terms, few pieces of legislation have as profound an impact on the American landscape and environment. Americans may tell themselves they don’t have a national land-use policy, that the market by and large decides what happens on private property in America, but that’s not exactly true. The smorgasbord of incentives and disincentives built into the farm bill helps decide what happens on nearly half of the private land in America: whether it will be farmed or left wild, whether it will be managed to maximize productivity (and therefore doused with chemicals) or to promote environmental stewardship. The health of the American soil, the purity of its water, the biodiversity and the very look of its landscape owe in no small part to impenetrable titles, programs and formulae buried deep in the farm bill.

This relates to the point I made yesterday about the economics of raw milk and grain-fed dairy cows: since, e.g., corn production in the U.S. is highly subsidized, corn and corn-derived products make their way into a great many other products such as diary feed, which can contribute to E. Coli in unpasteurized milk. Without corn subsidies, would raw milk tend to be safer?

(Hat tip: The Ethicurean)

Grain and E. Coli
24 April 2007, 3:20 pm
Filed under: Raw Milk

Managing E. Coli in raw milk may depend on what you put into the cow to begin with:

It depends on the diet of the cow. God made cows to eat grass, and man started pushing grain onto cows to get more production,” [dairy farmer and raw-milk “bootlegger” Joe Streit] said. “That grain caused a high acid condition in their intestines … a scenario where E. coli can begin.

If this is true, the economics of raw milk may price it permanently above mass-market levels: we can improve yeilds of grain through better farming techniques, but grazing land has some pretty hard limits.

Management, not Elimination
24 April 2007, 3:10 pm
Filed under: Pasteurization, Raw Milk, Regulation

The wikipedia article on Pasteurization notes that the process doesn’t sterilize the milk:

Unlike sterilisation, pasteurization is not intended to kill all micro-organisms (pathogenic) in the food. Instead, pasteurization aims to achieve a “log reduction” in the number of viable organisms, reducing their number so they are unlikely to cause disease (assuming the pasteurised product is refrigerated and consumed before its expiration date). Commercial-scale sterilisation of food is not common, because it adversely affects the taste and quality of the product.

See also:

Listeria comes from just about everywhere,” adds Dr. Dale Fredell, manager of educational services for the food and beverage division of Ecolab, St. Paul, Minn. “Not only can it stand a range of temperatures, it can withstand high-salt environments, too. You can’t truly eliminate it. What you can do, however, is manage it – manage its movement, that is.”

Emphasis added in both quotations.

Is there a US Gov’t Bias against Raw Milk?
24 April 2007, 2:51 pm
Filed under: Meat, Raw Milk

This article is pretty adamant that there is. E.g.,:

Fallon cites the example of a May 1983 outbreak of illness from campylobacter in Pennsylvania, reported to be “associated” with raw milk in the CDC’s Morbidity and Mortality Weekly Report. Yet the report admits that cultures of the raw milk from the farm did not yield Campylobacter; members of the farm family routinely drank raw milk and none reported illness.

A more recent example is the March 2, 2007, recall and warning against “Tainted Raw Milk Sold by a York County Dairy,” also in Pennsylvania. Stump Acres Dairy was “linked” to two cases in a Salmonella outbreak. Although none of the dairy’s remaining 250 customers showed signs of illness, Stump Acres Dairy was ordered to suspend sales. Cultures subsequently taken from the dairy and the milk tested negative for Salmonella and the dairy has reopened.

The September 2006 E.coli spinach outbreak provides another example. Over the past eight years, Organic Pastures Dairy of Fresno, California has sold over 40 million servings of raw milk without one case of illness; during the same period the California Department of Food and Agriculture has issued at least 19 recalls of pasteurized milk products in California. Frequent testing by Organic Pastures, the state of California, and the veterinary departments of local universities has failed to detect even a single human pathogen in the milk.

It is important, in any discussion of food safety and food-bourne illness, to point out that no food is completely safe: the aim of the regulatory agencies is to manage risk, not to eliminate it. The article notes that the risk of food-bourne illness from other foods such as beef, poultry, and produce (!) are greater than the risks of food-bourne illness from raw milk, and yet raw milk is effectively banned in the U.S.

(Note: it may be the case that drinkers of raw milk are already a self-selecting group which is generally more health-conscious than the overall population. The article doesn’t explain whether the analysis took this into account.)

Still, a worthwhile starting-place for this discussion: can the ban on raw milk be justified in public health terms if foods equally or more likely to be vectors for the same illnesses are not banned?

I’m looking for data on the coincidence of raw milk and food-bourne illness (particularly the two big killers in this vector, Listeria M. and E. Coli.) Stay posted.