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

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?

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