February 12th, 2011

Food Safety Advocates Have Read the Law Wrong

The following is an op-ed I wrote that was published in the Salt Lake Tribune today:

An article published in The Tribune last week (“Proposal would exempt Utah food from federal regulation,” Tribune, Feb. 5) highlighted a forthcoming piece of legislation that would exempt agriculture both produced and purchased within Utah from federal regulations. As state coordinator for the Utah Tenth Amendment Center, I have been working with Rep. Bill Wright, the bill’s sponsor, to promote this cause and protect our local farmers.

Being the balanced article that it was, there were a few quotes from individuals opposing this proposed legislation. I found them to be both uninformed and flat out wrong. For example, David Plunkett, attorney for the Center for Science in the Public Interest, is quoted as saying that the legislation is “just popular politicking” and that Rep. Wright is “playing to people’s fears and misrepresenting the facts.”

The allegation that this bill is playing to fears or misrepresenting fact is flagrantly absurd. Nothing could be further from the truth. This is not about politicking, but about principle. Ask the average local farmer if they enjoy complying with dictates from federal bureaucrats. It’s not politicking to them, either.

Rep. Wright’s bill is simple in its scope, and solid in its logical foundation. The bill, which is under review by legislative attorneys, affirms a common sense, constitutional separation of political power for commercial transactions. The federal government was given the authority under the U.S. Constitution to regulate two types of commerce: interstate and foreign. Thus, commercial interactions that begin and end within a single state naturally, and under the 10th Amendment, fall to the states to regulate (or not). Though they believe otherwise, the federal government has no authority to touch this commerce. This bill affirms that obvious, constitutional position.

But, of course, that obvious position is not so obvious to all. The Tribune article also quotes Sheldon Bradshaw, former general counsel for the FDA. Bradshaw noted that “the FDA is of the view that it has the authority to regulate any food commodity,” as if one federal bureau’s legal opinion is all that matters. If I am “of the view” that I can act as I please, regardless of the law, does that make it so? This sounds more like a teenager’s defiance than it does a constitutional, legal position.

The government does not exist to help us avoid potholes, expired milk, and Justin Bieber songs. Grown-ups can and should make their own informed decisions, taking into account their own safety and well being — including and especially regarding the food they eat.

Though he decried Rep. Wright (and by extension, me) for fear-mongering, Plunkett “played to people’s fears” himself, stating in the article: “I don’t see why I should have to get sick so [a farmer] can have a livelihood.”

If anybody thinks that the recent “Food Safety Act” is only about food safety, I challenge them to read it. I’ve read the full thing, and see plenty of warning signs.

Though limited exemptions are offered for small producers, the heavy, regulatory hand of government permeates the law. Farmers should be (and are) worried about the voluminous and costly mandates that will soon follow.

I have corresponded with hundreds of Utah farmers recently. From their responses I see broad support for this bill, especially across the political spectrum. Rep. Wright’s bill simply makes sense. It’s constitutional, it does nothing to threaten food safety, and it frees up local farmers (whose products are sold only within Utah) from the onerous impositions on their time, energy, and resources. Free from the federal regulatory burdens weighing upon them, they’ll do what farmers do best: produce.

11 Responses to “Food Safety Advocates Have Read the Law Wrong”

  1. Charles D
    February 13, 2011 at 7:56 am #

    “The government does not exist to help us avoid potholes, expired milk, and Justin Bieber songs.” I agree on the Justin Bieber part, but I pay taxes to insure that the potholes in my area get fixed and to insure that the food in my supermarket is safe to eat. I can’t fix the potholes myself with my own resources, and most of the time I have no way to test the supermarket food to make sure it is safe so I and my fellow citizens fund a government and demand that it take those actions on our behalf.

    While Utahans can certainly opt to exempt food grown and sold in Utah from federal regulation and, if they choose, they can exempt it from any regulation at all and let their citizens get sick and die from eating tainted meat and produce. Certainly they have every right to put the inconvenience of farmer paperwork above the lives of children if they want to. It’s a great argument proving that state’s rights is little more than a cover for turning the nation into a banana republic – sans bananas.

  2. Zen
    February 13, 2011 at 10:17 am #

    This op-ed suggests an unreasonable fear of sickness from food that has not been blessed by red tape. Regulations primarily hurt the little farmer, which is exactly the one who 1) is most likely to sell instate, especially farmers markets and 2) is least likely to cause problems.

    The govt is not, and should not be, in charge of safety-fying all aspects of life. There comes a point where more laws and requirements are more onerous and injurious to freedom than they do good. And where is that point? According to lawmakers it is always just one law further than where we are at now.

  3. Charles D
    February 13, 2011 at 10:59 am #

    I would certainly agree that the government should not try to “safety-fy” all aspects of life. That’s hardly the point.

    We don’t live in a world where we have black and white choices between free-market libertarianism and full-blown socialism. We and our lawmakers can make informed and considered decisions about when it is appropriate to regulate and how to enforce those regulations. If bad decisions are made, we can vote those lawmakers out and try again. There is no slippery slope here except in some people’s minds.

  4. Edward
    February 13, 2011 at 12:12 pm #

    Charles, there are many aspects to this issue that you are not acknowledging.

    First, not having federal regulations for intrastate food production and consumption does not mean that the state will not continue to regulate meat and produce as they already do.

    Second, there is no incentive for state producers and growers to produce tainted products. While on a national level it may be possible for an individual farm’s production to be hid within a huge distribution conglomerate and label, it is much more difficult to remain unaccountable for your food when your brand is recognized and sold locally.

    As a Utah agricultural producer myself, our products are only valued by our customers because of our reputation which is identified by our brand. We disclose all of our production methods and customers are welcome to even visit to see for themselves. If someone were to get sick or even die by consuming tainted meat that we produced, our farm could very well go under. As such, regardless of the state regulations which we are already subject to, I am committed to only producing safe food.

    While I accept the need in our current system for common sense regulation, as a small farm the costs for compliance is substantially greater than it is to large corporate farms. Once again, I accept the need for common sense regulation, however as the requirements for additional recording, testing, paperwork, etc. increase beyond what is actually keeping the food I produce safe, then my farm and other small farms don’t survive, food choices are reduced, and the actual wholesomeness of our food continues to slide into the abyss of processed, irradiated, chemical mush.

    And lastly, it is disingenuous of you to suggest that this is a zero sum game–that either the government saves us from our food or we are all going to get sick and die. As you said, we can’t test all the food at the supermarket. However if the government was to cease regulating at all, there would be a huge demand for real solutions to verify safety. Instead of a “USDA” or “FDA Inspected” label that has failed time and time again, we would actually have to use systems and organizations that would be held accountable for safety. Supermarkets would have no incentive to sell food from producers that didn’t have some form of reputable safety verification.

  5. Kelly W.
    February 13, 2011 at 1:58 pm #

    Thank you Connor and Edward for your voices of logic.

    If you think that food produced and sold in Utah will make you sick, all you have to do is NOT buy it and buy instead the food from Monsanto, ADM and China – – I’m sure that food will really keep you healthy! (not)

  6. Charles D
    February 13, 2011 at 3:30 pm #

    Edward, you make a good point. I would certainly recommend a serious reduction in the regulation of agricultural producers who sell locally, and I don’t have any problem with states setting their own regulatory regimes for such producers. I would support (but it has no political chance) measures that exempt individual producers who market directly to consumers or who market through local co-ops and reserve the regulation for any food that is transported over state lines or has as its producer, distributor,or packager a large corporation.

    One of the reasons we have this paperwork burden is that the large agribusiness corporations know they can absorb the cost but that it is likely to put smaller producers out of business. Methinks the right thing is to put all the onerous regulation on the corporate food folks and leave the small local organic producers alone. Unfortunately I think its likely that if the federal government left the business of food safety to the states, it simply wouldn’t get done. Any systems and organizations that tried to verify safety would get no support from agribusiness if not open opposition.

  7. JJL9
    February 28, 2011 at 4:47 pm #

    Charles, I disagree with nearly all of your points (perhaps all of them), but here’s some food for thought.

    I don’t think government should be in the business of regulating food safety at all, but since I don’t expect to get them out of that business any time soon, how about just a minor tweak.

    Instead of their criteria being mandatory, how about making it optional. If a food producer chose to comply, then the FDA (or whichever corresponding government entity) would certify that the food was “safe” or at least certify that it met FDA (or whatever) guidelines.

    This solves all of our concerns.

    If you believe that absent FDA (or whatever) guidelines, “it simply wouldn’t get done”, then you can choose to buy from producers who choose to have government certification.

    If small producers cannot absorb the costs of compliance, they don’t have to and I can buy from them anyway, satisfying my appetite for liberty, while not robbing you of your appetite for government assurance of safety.

    Of course, the free market could take care of all of this for us. Absent the FDA, Charles D could start a company that certifies foods as “safe”. Food producers could choose to pay your company to come in and verify that they are meeting your standards.

    People who need that assurance from a third party could get it. People who don’t need it wouldn’t have to.

  8. Charles D
    February 28, 2011 at 6:07 pm #

    Of course, anyone could start a company that certifies foods as safe and contract with food producers to verify their products. I would have about as much faith in that as I would in the idea that Wall Street banks would regulate themselves. There’s too much money to be made in looking the other way.

    I would say that if a food producer sells his product at retail only within the state in which it is produced, then the state should be responsible for regulating food safety. That is not the case with most American food unfortunately, so we have only two choices: the federal government inspects and certifies food as safe, or we take our chances and know that any product we feed our children could be toxic. Take your choice.

  9. Zen
    February 28, 2011 at 8:20 pm #

    That makes no sense whatsoever – that they would automatically sell out. The only way a company like that could be seen as legit, would be for it to be careful. And most of its customers would be small businessmen, neither as rich nor corrupt as your stereotypical Wall Street banks.

    Why is Govt always our best and last hope? What makes it so much less corrupt than business? We have more political scandals than I can keep up on, much less be incensed at each and every one. Why will it be less corrupt? If anything, it is harder to fight, when the corruption has govt funds and networking behind it.

    Ideally, we would have 2-4 different independent licensing bodies and should any one of them attempt corruption and loose standards, the rest would pounce.

  10. corpusdelicti
    March 28, 2011 at 1:04 am #


    Government regulations tend to hurt small business and entrench monopolies over time. YOu seem to recognize this in the food industry but naively believe that the regulations can be tweeked to make it more fair. big agra has completely captured the FDA. This is the unintended consequence of government solutions. While the free market isn’t perfect either as it is an institution of man, why would you trust a government agency like the FDA (that gets to keep its jurisdiction over food and health no matter how many times it screws up) over a private certification regime that would quickly go out of business if its reputation were to sink to the level of the FDA?

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