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

Drive-By Libertarian v. Straw-Man Foodie

Reason Magazine issues a salvo in the fast-food restaurant labeling discussion, arguing that in our haste to regulate how much fat we eat, consumer protection advocates and supporters of mandatory nutrition information labeling have unduly singled out fast food operations and have forgotten that wretched excess in the consumption of saturated fats is not limited to the drive-thru window. Money quote:

Fast food makes such a savory scapegoat for our perpetual girth control failures that it’s easy to forget we eat less than 20 percent of our meals at the Golden Arches and its ilk. It’s also easy to forget that before America fell in love with cheap, convenient, standardized junk food, it loved cheap, convenient, independently deep-fried junk food.

While these statements may be true as far as they go, it seems to me that the author is playing fast and loose with the various argumenta ad antiquitatem, ad populum, ad hominem, and the old red herring.

To address each of these in turn: first, it may be true that U.S. citizens have been susceptible to overconsumption of the sorts of artery-clogging fare that typify the fast-food menu since long before the invention of the fast-food restaurant, but even if this proposition is true, it does not follow that our tendency to overeat is ordinary or good simply because it preceded the existence of some restaurants subject to regulation.

Second, nobody is arguing that at the current prices, demand for fast-food and fast-food-type food is high. If fast-food-type food weren’t popular, it wouldn’t be a major contributor to U.S. obesity, would it? Again, the fact that lots of people tend to eat fast-food-type food says little, if anything, about whether that tendency is something that we should address with regulation.

Thirdly, the author seems to be saying that because people overeat at independently-owned restaurants that sell, e.g., massive burgers as well as at chain restaurants that sell massive burgers, requiring chains to meet a standard that independent shops may avoid is hypocritical populism. This argument cannot be valid unless chain shops are no better off than independent shops at meeting the standard, and this is not the case for two reasons. 1) The franchisor (because let’s face it, in general we’re talking about franchises here) is more likely than the independent shop already to have access to information about portioning and nutrition. 2) the franchisor is able to design a single sign for use in multiple shops, thereby spreading the large costs of compliance over a wider population than the independent shop.

That is, if you’re Burger King corporate, when you determine the nutritional values of the Whopper and design a sign containing those values, you incur a single cost that brings all of your stores into compliance, but if you’re Ray’s Burger Joint, when you determine the nutritional value of the Ray’s Slider, and design a sign containing that information, you incur a cost that brings only one store into compliance. This cost will have to be replicated for every independent shop in the city. Thus it is not the case that failing to go after independent shops selling fast-food-type food necessarily stems from a desire on the part of the legislator to be seen as tough on big business and a friend of the little guy. It may simply be the case that these standards, although necessary, are more onerous on the independent diner than they are on the chain restaurant, and therefore the requirement of fifteen stores or more within the city constitutes a hardship exemption for smaller businesses.

Finally, all of these objections are another instance of Drive-by Libertarianism and how it obscures the issues. U.S. citizens ate too much beef in greasy-spoon diners in the 1950s for the same reason we eat too much beef in fast-food restaurants now, and it’s a reason that I should expect Libertarians to be more mindful of — government distortion of the market via subsidies.

It is fair to say that Federal Farm subsidies are really only half the problem, and that the other half is that we didn’t develop a firmly-entrenched food culture here in the U.S. prior to the distortions created by the farm subsidies. We didn’t then, and still don’t, have a sense of the difference between “food” and a “meal,” in the way that, for instance, the French do. It is further well-established that proteins and saturated fats and sugars are historically rare in the human diet, meaning that a feast-or-famine mechanism naturally kicks in when high-fat, high-protein foods are present. Unfortunately, the farm bill has made it those foods cheap and omnipresent.

Among my favorite statements about the law and justice is the following, by G.K. Chesterton:
“When you break the big laws, you do not get liberty. You do not even get anarchy. You get the small laws.” It seems to me that when you badly and unintelligently distort the pressures of a market, you get regulation, and the regulation isn’t the problem.

Corona, Tongs, Lime.
6 November 2007, 5:22 pm
Filed under: Food Safety, Inspections, Regulation, the-small-laws

In the NYT today there’s an article about how the New York City Health Dept. is cracking down on that scourge of modern life, the bartender who places the lime in your corona bottle with his naked hand.

Now, I understand that the regulations state that ready-to-eat food is to be handled with gloved hands, and I understand why that is a good idea in general, but this seems overzealous to me.

According to the FDA, most bacteria cannot grow in solutions with pH lower than 4.6. Also according to the FDA, limes have a pH of between 2.0 and 2.8.

Any chemists out there care to weigh in on this matter? Is it reasonably safe, from a chemical standpoint, to handle limes with one’s bare hands?

One possibility might be that the inspectors are concerned about foreign material (crumbs, ashes, bits of glass &c.) might find their way into the bottle. I should think, however, that a requirement to wash one’s hands would be less onerous and at least as effective.

Food Patents and Antitrust

So, thanks to something the Ethicurean asked about last summer, I am working on a paper about Monsanto’s recently revoked seed patents, and I am unsure how I am supposed to think about a few things.

First, a short review of what I’m learning. Monsanto held the patent in glyphosate-based herbicides, which are non-selective (i.e., they kill your crop as well as your weeds) and which it sells under the RoundUp trade mark. While they held this patent they developed a way to insert DNA which codes for an enzyme into various germplasms. The coded-for enzyme confers glyphosate tolerance upon the plant. Monsanto sells crops with this nifty little bit of bioengineering under the RoundUp Ready trade mark.

The RoundUp patent expired, but the market hasn’t seen an increase in the sale or availability of generic glyphosate herbicides (which should still work with RoundUp Ready seeds) for a number of reasons.

First, Monsanto includes with the sale of RoundUp Ready seeds a crop failure guarantee called “RoundUp Rewards”, which protect farmers against crop failure. This guarantee is only available when RoundUp Ready seeds are used in conjunction with RoundUp, and is unavailable when generic glyphosate herbicide is used. Given that a crop failure guarantee adds substantial value to the RoundUp Ready seeds, farmers are unlikely to use generic glyphosate. This sews up the demand side for RoundUp.

Second, the dealer margins on herbicides are fairly slender, so Monsanto has a dealer rebate program which makes the sale of RoundUp profitable. This rebate program, however, is contingent upon the dealer hitting its sales targets with respect to the entire spectrum of RoundUp Ready seeds. This sews up the supply side for bioengineered seeds.

Farmers want RoundUp, so dealers have to sell it. Dealers want to make a profit on RoundUp, so they have to push RoundUp Ready seeds.

Now, I think there is a strong argument to be made that this behavior is in violation of section 1 of the Sherman Act and section 3 of the Clayton act, but I have to ask whether it is in the interests of opponents of genetically modified foods and of herbicides for these laws to be enforced in this case.

The aim of antitrust law (known in non-U.S. jurisdictions as competition law) is to promote competition within a market. Where an entity (be it a single corporation, or the concerted action of multiple colluding competitors) exercises market power so as to eliminate competition, the thinking is that the entire market, and therefore consumer choice and economic development, suffers. Competition brings prices down and more products to market. There are some economists who disagree, but antitrust law seems to me to be ultimately pro-market by ensuring that markets remain competitive.

Thus it seems to me that a real danger exists that if Monsanto is found to be in violation of these antitrust laws and is enjoined to cease these behaviors, the market may open up to other suppliers of generic glyphosate, which will simply reduce the total cost of growing glyphosate-resistant crops. That is, in a competitive market for glyphosate, we should expect to see an increase in the amount of glyphosate-resistant crops grown. Monsanto’s actions keep the market from being competitive, at least for now.

This is confusing to me, because in doing a lot of this reading I have developed a sense that Monsanto is a too-powerful company that needs to be stopped from abusing its patents and market power, but I have a suspicion that the harm Monsanto does to growers and dealers is that it is able to keep prices from dropping by keeping competitors out of the market. I am unsure whether this is a harm to society as a whole, given the premise that GM crops and non-selective herbicides are harmful to both our environment and our food supply.

Bourdain is Right
15 October 2007, 7:17 pm
Filed under: Economics of Eating, Ethics of Eating, fois gras, Meat, the-small-laws

About Fois Gras, at least.

Although not universally accepted in negligence suits, the Learned Hand formula for determining liability serves as an illuminating tool to show that banning fois gras is not a good use of political capital, assuming that one’s objective is to minimize the suffering of the animals intended for human consumption.

Hand’s formula is as follows: where an actor’s burden (i.e., the cost of preventing a particular harm) is less than the probability that the harm will occur multiplied by the loss the harm will incur if it takes place, the actor is liable to take steps to prevent the harm. It is often represented as

B < pl

Thus, where a harm is unlikely to occur, an actor needn’t spend much to prevent it, unless the harm will be costly if it does occur. Indeed, spending resources on unlikely harms is inefficient.

Unfortunately, humans are susceptible to something called the Availability Heuristic, which is the name for the tendency of humans to fear vivid harms (such as dying in a plane crash) over common ones (such as dying in a car accident) without taking into account the relative probabilities that these harms will occur.

While fois gras opponents aren’t seeking to determine liability, the Hand formula remains useful for comparing the harm of fois gras to the other possible harms worth protesting throughout the industrialized food supply. Feedlot overcrowding, for instance, is far more widespread, both in terms of total number of animals, and of total biomass affected, than fois gras production, and the amount of suffering per animal is at least as bad.

According to one estimate, world fois gras production in 2005 was 23,500 pounds. At 2 lbs/bird (a reasonable estimate, I am given to believe), that’s 12,250 birds per year. In the world.

By contrast, in 2003 10.7 Million cattle alone were raised in large feedlots, according to the USDA, and this number only represented one third of the 33 Million total cattle raised in the U.S. This does not take into account the number of pigs and sheep raised in feedlots in the U.S., or the cattle, sheep, and pigs raised in the rest of the world.

Thus, the number of creatures affected by fois gras production is substantially smaller than the number of creatures affected by feedlot practices.

It now falls to us to consider whether the harm done to fois gras birds may be so severe as to outweigh, when aggregated, the harm done to feedlot cattle when aggregated.

According to this study, geese and ducks do not exhibit the signs of being harmed when raised in conditions similar to those used to produce fois gras, compared to a control group. I found it notable that the animals do experience stress the first time they are tube-fed, but that these stress levels do not recur with subsequent feedings. Additionally, while I don’t think the practice is widespread, and while it won’t qualify for French AOC fois gras, the “overfeeding” of fois gras birds may be something that they would do for themselves anyway.

Moreover, it seems that many of the other incidental harms to these birds are not specific to fois gras production, but occur wherever there is overcrowding or wet bedding. I do not intend to disregard these harms, but simply to point out that it is possible to have these harms without raising fois gras, and that it appears to be possible to have fois gras without causing these harms, and that they are therefore causally disjunct.

In contrast, the harms suffered by feedlot cattle are well documented in books, reports, and websites, going back at least to Upton Sinclair’s The Jungle. I heartily recommend The Ethicurean for some good, current reading on this topic.

Thus it seems to me that fois gras raising is not intrinsically harmful to the birds raised in its production, and that people like Bourdain and Jamie Forrest may be right that a reduction in the number of animals raised in factory farms does more to eliminate animal suffering than an equivalent reduction in the number of animals used to produce fois gras. However, this is not the whole issue.

Tied to the availability heuristic are what economists call “outrage costs.” These are the political and other costs to regulators and reformers of ignoring the vivid but unlikely harms in favor of the mundane but common harms. It seems to me that it is easier to generate a groundswell of opposition to fois gras, which is an unfamiliar french-sounding food typically associated with people who own their own jets. It is probably more difficult to generate a groundswell of opposition to overcrowded feedlots when the immediate impact of such opposition would be an increase in the price of beef. Ultimately, opposition to fois gras seems to me a cynical exercise in political haymaking, rather than a considered attempt to reduce the suffering of animals raised for food.

Comparative IP, Magician Style
15 October 2007, 1:32 pm
Filed under: Intellectual Property in Food, Regulation, Subsidies, Taxation, the-small-laws

In my comparative law class last year, we discussed at length the need for comparative lawyers to take a holistic look at the cultures which they are comparing before reaching their conclusions. It is often misleading to conclude that such-and-such a problem simply does not occur in the target jurisdiction when a strictly legal solution to that problem doesn’t show up in statutes and cases.

This article in Slate brings up the idea of extra-legal IP protection in two cases: magicians’ tricks, and chefs’ techniques and recipes. In neither case are the ideas and innovations that build a magician or a chef’s career protected at law, but that doesn’t mean that these markets don’t have extra-legal incentives to protect those innovations. Often the incentives are a function of the social network protecting its value and stability against outsiders and upstart. I thought you might appreciate this as a way IP is protected without recourse to the government.