Environment

Court Rules State Biotech Food Labeling Mandates Preempted By Federal Law

by Greg Conko on May 1, 2012 · 0 comments

in Agriculture, Environment, Features, Legal, Nano & Biotech, Personal Liberty, Precaution & Risk, Regulation

Post image for Court Rules State Biotech Food Labeling Mandates Preempted By Federal Law

It’s been a few years since biotech foods have been regular front page news. The anti-technology activists cried wolf a few too many times, and none of the scare stories have come true. Still, the activists have re-grouped and are making an all out, well-financed assault on state and federal governments this year, agitating for mandatory labeling of biotech foods.

Stonyfield Farm Chairman Gary Hirshberg even gave up his position as president and CEO of one of the world’s largest organic food purveyors to lead what’s being billed as the “Just Label It” campaign, organized by a veritable who’s who of the organic and “natural” foods industry. And they’ve been busy – petitioning FDA and the White House, and lobbying Congress and state legislatures to mandate warning labels on biotech foods. But arguably the crown jewel in this year’s campaign is an initiative that will likely appear on California ballots this coming November.

I’ve written before about why mandatory labeling is a bad idea and why consumers don’t need mandatory labeling to exercise their choice to purchase non-biotech foods. But the simple fact is that labeling mandates of this type are also unconstitutional. In a case called International Dairy Foods Assoc. v. Amestoy, the U.S. Second Circuit Court of Appeals held that a Vermont statute requiring dairy products from cows given the biotech growth hormone rbST violated the First Amendment, and that food labeling cannot be mandated simply because some people would like to have the information. The Vermont law was unconstitutional because it forced producers to make involuntary statements contrary to their views even though there was no substantial governmental interest in requiring the label statement.

“We are aware of no case in which consumer interest alone was sufficient to justify requiring a product’s manufacturers to publish the functional equivalent of a warning about a production method that has no discernable impact on a final product. … Absent some indication that this information bears on a reasonable concern for human health or safety or some other sufficiently substantial governmental concern, the manufacturers cannot be compelled to disclose it. Instead, those consumers interested in such information should exercise the power of their purses by buying products from manufacturers who voluntarily reveal it.”

That should mean that the California ballot initiative would also be invalidated. Although the Second Circuit’s decision is only binding on courts in Vermont, New York, and Connecticut, other courts would view the decision as persuasive precedent. But I’ve just now been alerted to a recent California federal court decision providing a different legal theory for invalidating state labeling mandates.

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Congressional Hearings Question National Toxicology Program’s Science

by Angela Logomasini on April 25, 2012 · 1 comment

in Environment, Features, Precaution & Risk, Regulation

Today, the House Science, Space, and Technology Committee and House Small Business Committee held a joint hearing on the National Toxicology Program’s (NTP) Report on Carcinogens. The hearing addressed the NTP process for classifying chemicals as carcinogens and its impact on small businesses. In particular, witnesses focused on NTP’s decision to classifying styrene as “reasonably anticipated to be a human carcinogen.”

The NTP issues this report every couple of years to assess whether to list industrial chemicals as “carcinogens.” Although NTP does not issue regulations, mere listing can have significant market impacts, hurting businesses — small and large — that make and use the chemicals.  Listings are also used by other agencies to justify regulations. Such impacts eventually affect consumers as regulators ban or companies abandon useful products, replacing them with second-best and often more expensive alternatives. Accordingly, it is critical that the NTP use the best available, peer reviewed science when making its decisions. Yet it clearly doesn’t do that.

First to testify today was NTP Director Dr. Linda S. Birnbaum, who defended the NTP process, but not very well if you read between the lines. When asked how the NTP comes to its conclusions, Birnbaum said NTP scientists review all the information on a chemical — both good and bad — and then they assemble the information indicating the chemical is a carcinogen when making the assessment. In essence, they review all the information, but then focus on the most damning information to make their decisions.

A scientific approach would instead focus on the best available, peer reviewed science and do a weight-of- evidence-test — placing greater emphasis on the best and strongest evidence. Based on Birnbaum’s comments, NTP does the opposite.

Dr. Richard Belzer, of Regulatory Checkbook, sheds even more light on the flimsy science at NTP. Belzer, who recently produced a paper for CEI on the topic, explained that the NTP relies on purely subjective terms — rather than terms with scientific meaning — which is a clear indicator that the agency’s decisions are largely subjective rather than scientific.

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How to Fix U.S. Water Policy? Less Government, More Market Pricing

by Wayne Crews on April 18, 2012

in Deregulate to Stimulate, Economy, Environment, Features, Natural Resources, Property Rights, Regulation

Post image for How to Fix U.S. Water Policy? Less Government, More Market Pricing

Late last week I received an invitation to testify in the Water and Power Subcommittee of the House of Representatives Natural Resources Committee on H.R. 2664, “The Reauthorization of Water Desalination Act of 2011.” We’ve posted the full 20-page testimony; my oral remarks before the committee appear below. The push for politically juiced desalination projects is a diversion from the actual problem; the absence of market pricing to allocate water scarcity.

I am Wayne Crews, VP for Policy at the Competitive Enterprise Institute and I thank the committee for this Tax Day invitation to speak on H.R 2664, a $2 million annual desalination program that, while it won’t break the bank, embraces principles at variance with a lightly regulated and adaptable water sector.

While it does boast crucial working applications, desalination remains an energy-intensive, by-product-laden means of making expensive usable water, despite being an ancient process.

Happily, there’s no need for panic; Water is not getting more scarce overall; it’s an earthly constant, and the nation uses even less than it did in the 1980s.

But pricing and allocation of that supply do matter. To advance tomorrow’s water policy, we must, as we say at CEI, avoid having government steer while the market rows.

When linking research like desalination to human needs, private investors can test low-probability projects, counting on the rare success to offset multiple failures. Progress requires good at killing bad projects.

Federal funding to overcome so-called “market failure” in research, on the other hand, fosters numerous avoidable conflicts: over the merits of basic vs. applied research, over government vs. industry science; over assignment of intellectual property; Over public access to data. Meanwhile, taxpayer subsidies appear not to alter the ratio of GDP spent on R&D after all.

Government steering can create artificial booms, and politics has trouble balancing research portfolio tradeoffs: Why H.R. 2664’s brackish groundwater desalination instead of seawater or countless alternative water investments? The problem affects other sectors: Why nanotechnology instead of biotech? Or the hydrogen economy? Or Robotics?

We should avoid fostering a “Declaration of Dependence” on federal dollars, because that will further mask water market prices.

Also, even as government funding comes with regulatory strings attached, it adds to risks and environmental problems by propelling risky technologies ahead of the free market’s ability to properly assimilate them. (The market’s role in regulation is something we might discuss in Q&A.)

This is important, because we observe in H.R. 2664 the seeds for new regulation propelled by the sourcing and externalities of desalination itself. Instead, market disciplines like liability and insurance must evolve alongside technology.

To me, preferred alternatives to subsidized Desalination are those institutionalizing the separation of water and state.

First, better pricing of existing supplies can make crises vanish; refer to my written testimony on this. Despite everything, gallons of water cost less than a penny, filling swimming pools and hydrating lush lawns in arid areas.

Second, improving infrastructure can reduce the waste that now depletes 17 percent of the annual water supply, as noted in a new CEI report by Bonner Cohen.

Third, better transport, including pipelines, trucking, and crude oil carriers can aid supply. Where’s the water pipeline aorta alongside and perpendicular to Keystone, one might say.

Fourth, improved trade between cities, farmers and NGOs can be essential to pricing and value.

A fifth option would be water sourcing alternatives including gray and wastewater treatment and reclamation; stormwater harvesting, and private conservation such as instream flow purchases.

Finally, we should reduce onerous permitting regulations that inflate desalination’s costs and defy the good in the H.R. 2664 vision. Otherwise, as water expert David Zetland notes, “if it’s possible to get [regulatory permitting] approval [to] raise prices so far, why not just raise prices and skip the project?”

A couple general observations:

First, as CEI’s president Fred L. Smith Jr. puts it, instead of trying to improve speeds by picking the particular R&D horses to run on the infrastructure racetrack, improve the business and regulatory track so everyone can go faster, and let jockeys keep more of their earnings. In the Appendix of my written testimony, I cover liberalization options to better enable a private sector flush with research cash.

Second, this is the water and power subcommittee, and I think it’s vital to step back and explore dismantling regulatory silos artificially separating our great network industries. That is, any investment in non-shovel-ready desalination while settling for 19th and 20th century infrastructure is sub-prime policy, particularly given that, as a free society becomes wealthier, creation of infrastructure should become easier, not harder.

The America of 100 years ago, with its paltry GDP, built overlapping, tangled infrastructure; we might have had an aesthetic problem, but never a natural monopoly problem.

The modern challenge is to welcome water resources further into the market process. We urgently need competitive market discipline to discover, not just desalination’s value relative to sourcing alternatives, but to discover the true value of water itself.

Further Space Property Rights Responses

by Rand Simberg on April 9, 2012 · 4 comments

in Deregulate to Stimulate, Natural Resources, Property Rights, Space

Since my previous post on media reaction to CEI’s press briefing on Thursday, Popular Science has provided a good report as well.

But in this post, I want to address co-speaker Jim Dunstan’s critique of the concept, which he presented at the event, and is now available on line at TechFreedom.

I should start by noting that Jim is a long-time associate, fellow free-market space advocate, and (I hope) friend. I didn’t want to get into the weeds of a debate on the subject at the event, particularly because he didn’t put forth any new arguments — his statement was simply a reiteration of the argument that I had already refuted in the paper itself. But briefly, like other critics, he cites the combination of Articles II and VI of the Outer Space Treaty to debunk the potential loophole that I postulate in the Issue Analysis:

The negotiators of the Outer Space Treaty (OST) knew that such [property rights] claims would never stop unless the countries agreed once and for all, that:

Outer space, including the [M]oon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other
means.

Article II of the OST couldn’t make it any clearer.

But wait, Rand and others argue that Article II of the OST only prohibits national appropriation, so individuals are free to do whatever they want in space. Well, not so fast. Article VI of the OST states:

States Parties to the Treaty shall bear international responsibility for national activities in outer space, including the [M]oon and other celestial bodies, whether such activities are carried on by governmental agencies or by nongovernmental entities, and for assuring that national activities are carried out in conformity with the provisions set forth in the present Treaty.

Since launching states are required to ensure that their nationals conduct their activities in conformity with the provisions of the OST, and the OST denies states the ability to appropriate celestial bodies through use, occupation, or by any other means, there is no way that the United States could directly recognize land claims in outer space that were made based on use and occupation, as the legislation Rand proposes would do. The “loophole,” as Rand calls it, simply doesn’t exist.

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RIP Jim Marshall, Businessman, Innovator, Father of Loud

by Ivan Osorio on April 5, 2012

in Culture, Environment

Culture and politics don’t mix. That was well illustrated by the Justice Department’s dubious raid on Gibson Guitar last year. The feds raided Gibson over alleged violation of Indian environmental laws — even though the Indian government had cleared the wood Gibson had acquired there.

What happened next seems to have taken the feds by surprise. The raid generated a huge backlash. This wasn’t just any other company they were going after, but a widely beloved American cultural institution — not that a bunch of bureaucrats would know that.

By the same token, what the name Gibson means for guitars, the name Marshall means for amplifiers. The music world has lost a true pioneer, Jim Marshall, whose influence cannot be overestimated. As AP notes:

Marshall was the man behind “The” amplifier, the weapon of choice for guitarists like Jimi Hendrix, Pete Townshend of The Who, and Eric Clapton — “The Marshall.”

The sixties superstars’ ear-shattering sounds, blasting first in small clubs and music halls and later in stadiums and arenas, relied on the basic Marshall amp for their frenzied, thunderous roar.

That was no accident. Marshall, who died Thursday at the age of 88, was not looking for precision when he and his sound engineers came up with the early Marshall amps in 1960. He said in a 2000 interview that what he wanted was raw, fuzzy power.

He said the rival Fender amp, tremendously popular at the time, produced an extremely clean sound that worked well with jazz and country and western but did not satisfy younger players searching for something different. He was looking for a rougher sound.

Marshall was a larger than life figure with a taste for single malt Scotch whiskey and Cuban Montecristo cigars. Even in his 70s, when he was already suffering from some serious health problems, he thought nothing of hopping a plane to catch an Iron Maiden concert.

Marshall’s shop was never raided (his company was based in England), but I have no doubt the backlash would have been as strong as that following the Gibson raid. After all, he was to the guitar amp what Les Paul and Leo Fender were to the electric guitar itself.

Witch Hunt Continues on Bisphenol A

by Angela Logomasini on April 4, 2012

in Environment, Features, Precaution & Risk

This week the Food and Drug Administration (FDA) yet again reaffirmed the safety of the chemical Bisphenol A (BPA), but the witch hunt for evidence against BPA safety continues. Environmental activists and others still won’t accept the findings — encouraging more government spending to study the chemical. But no matter how much the feds spend, researchers are unlikely to find anything new to  condemn BPA.

Human exposure to BPA — which is used to make hard, clear plastics and resins used to line food cans and other things – is simply too low to have public health impacts. FDA’s most recent update notes: “The Food and Drug Administration’s assessment is that the scientific evidence at this time does not suggest that the very low levels of human exposure to BPA through the diet are unsafe.”

FDA’s conclusion echoes findings issued by numerous governmental and scientific bodies around the world. For example, research studies in the European Union, Japan, Canada, and the World Health Organization have all found BPA risks to be negligible. In fact, studies have shown that the human body metabolizes BPA quickly, passing it though the body without any impacts. But never mind the facts. Greens want more of your hard earned tax dollars to fund more BPA research, even though it’s already one of the most studied chemicals ever!

Let’s just hope that researchers continue to report honest findings that allow BPA to stay on the market rather than cave to political pressures. If regulators devise phony science and excuses to regulate, public health and well being may suffer – as documented in our study on the topic.

Pink Slime and the Slimy Tactics of America’s Food Elitists

by Greg Conko on April 3, 2012 · 49 comments

in Agriculture, Culture, Features, Nanny State, Precaution & Risk, Zeitgeist

Post image for Pink Slime and the Slimy Tactics of America’s Food Elitists

Last week, the Media Research Center’s Dan Gainor wrote a nice article examining how the mainstream media has been complicit in smearing lean finely textured beef — what critics are calling “pink slime.” “ABC has covered the story almost round the clock in recent weeks with stories on ‘World News with Diane Sawyer’ and ‘Good Morning America’,” Gainor reported. Versions of the story have been picked up by dozens of major and minor newspapers around the country. And most television and radio news programs have covered it as well.

On Sunday, however, The New York Times‘s Andrew Revkin became what appears to be the first major media figure to debunk the misinformation campaign in a blog post entitled, “Why I’m O.K. with ‘Pink Slime’ in Ground Beef.”

I agree with Texas Gov. Rick Perry on something — the nutritional merits of derided “pink slime” — the processed last scrapings of meat and connective tissue after cattle are butchered. Dude, it is indeed beef — a source of low-fat nutrition.

One of Revkin’s sources, a historian and blogger named Maureen Ogle, explains the issue well:

“First a word about PS: It’s beef, people. Plain ol’ beef. It’s created by using a deboning process that removes every last morsel of flesh from beef carcasses. During the cutting, slivers and bits of bone end up with the beef, but those are reduced to mush in the processing that follows. … In the BEEF industry, its use dates back to the mid-1970s, although poultry and fish processors were already using the technique. Beef packers began using in the in mid-seventies because, at the time, all meat prices, but especially beef, were in the stratosphere. … So pushed by consumers on one side, and soaring costs on the other, meatpackers asked for, and got, permission from the USDA to use a “mechanical deboning” process that allowed them scrape meat off carcasses so that what had been waste could be eaten.”

Although critics are calling pink slime an unsafe food additive that ought to require mandatory labeling wherever it appears, the fact of the matter is, lean finely textured beef is exactly that: beef. And, compared to other ground beef, LFTB is probably better for consumers. It is processed in a way that removes much of the fat — thus the “lean” part of its name. And beginning around the early- to mid-1990s, following a foodborne illness outbreak linked to Jack in the Box hamburgers, processors began treating LFTB with tiny amounts of the common food disinfectant ammonium hydroxide to kill germs, thereby substantially reducing consumers’ exposure to foodborne pathogens.

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Agricultural Innovation in the 21st Century: CEI on Capitol Hill

by Greg Conko on March 22, 2012

in Agriculture, Environment, Nano & Biotech, Precaution & Risk, Regulation, Trade

On Monday, I’ll be speaking at a Capitol Hill event sponsored by Americans for Choice and Competition in Agriculture, which also goes by the name of AgChoice: “Feeding the World & Growing Our Economy: Agricultural Innovation in the 21st Century.”

The global population reached seven billion people on October 31, 2011, and is expected to reach nine billion by 2050. In order to meet the challenge of feeding this growing population, agricultural output must double and food production must increase by 70 percent by mid-century.

Despite a weak global economy, the demand for U.S. agricultural exports is growing and has increased 45 percent in the last five years. Leadership from the U.S. agricultural industry will play an important role in addressing these challenges, but only if policies that encourage increased innovation are adopted. Join Americans for Choice and Competition in Agriculture and other thought leaders to discuss the agricultural challenges that lie ahead in the 21st century including how innovation will play a key role and what policies need to be developed in order to encourage ongoing innovation in agriculture.

Speakers:

Dr. Roger Beachy, Founding President, Donald Danforth Plant Science Center

Brandon Hunnicutt, Chairman, Nebraska Corn Growers Association

Gregory Conko, Senior Fellow, Competitive Enterprise Institute

Chandler Goule, Vice President of Government Relations, National Farmers Union

11:45 A.M. – 1:30 P.M.

1302 Longworth House Office Building

One of the topics I’ll be addressing is the way in which precautionary U.S. and foreign regulation of food biotechnology has made it more difficult for scientists to develop, breed, and sell innovative new crop varieties that increase agricultural productivity and lighten farming’s environmental footprint.

Of particular interest to AgChoice and its farm industry members is the expiration of several patents on some of the most widely grown biotech crops — particularly RoundUp Ready soybeans. But silly and unnecessary regulations in Europe and parts of Asia may prevent a generic biotech seed industry from developing.

Come see the event to find out how.

Supreme Court Affirms Right to Challenge Government Power Grabs in Sackett v. EPA; Justice Alito Cites CEI Amicus Brief

by Hans Bader on March 21, 2012 · 7 comments

in Economy, Environment, Features, Legal, Property Rights

Post image for Supreme Court Affirms Right to Challenge Government Power Grabs in <i>Sackett v. EPA</i>; Justice Alito Cites CEI Amicus Brief

Rejecting the arguments of the Obama administration, the Supreme Court has just held that EPA “compliance orders” can be challenged in court if they are arbitrary and capricious — for example, if they are based on an erroneous bureaucratic interpretation of what a “wetland” is, that results in dry land improperly being declared an unusable wetland. In his concurring opinion, Justice Alito explained one reason why such judicial review is needed: the EPA uses vague, inconsistent standards when it declares seemingly-dry land to be a wetland. As he pointed out, citing CEI’s amicus brief, “far from providing clarity and predictabil­ity, the agency’s latest informal guidance advises property owners that many jurisdictional determinations concern­ing wetlands can only be made on a case-by-case basis by EPA field staff. See Brief for Competitive Enterprise Institute as Amicus Curiae 7–13.”

The EPA has a practice of issuing “compliance orders” to property owners telling them to stop using their land and restore it to its prior condition, under penalty of $37,500 a day in fines, and declaring in such orders that such land is a federally protected wetland. It then waits months or years before actually suing the property owner for the fines, which accrue daily, potentially adding up to millions in fines. But in the meantime, it insists that the property owners can’t challenge its claim that their property is a non-usable wetland in court. If they want to take issue with its claim that their property is a “wetland,” they have to wait until the EPA sues them later on to collect those fines, after they’ve racked up potentially millions in fines under the compliance order.  The order doubles the fines that a judge can impose on the property owners when the EPA ultimately sues them, although if the judge later finds the land was not in fact a “wetland,” he can refuse to impose the fines. (In the absence of a “compliance order,” the maximum fine for developing a wetland is $37,500 a day; the compliance order adds another $37,500 per day, bringing the total to $75,000 per day.  Federal law has a broad and counterintuitive notion of what is a “wetland”: for example, in one court ruling, the government was allowed to declare a property to be a “wetland” even though it appeared dry, since water occasionally passed from it into a roadside ditch that in turn flowed into another ditch that flowed into a creek).

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Consumer Freedom and the Risks of Raw Milk

by Greg Conko on March 16, 2012 · 3 comments

in Agriculture, Culture, Features, Health and Illness, Nanny State, Personal Liberty, Precaution & Risk, Zeitgeist

Post image for Consumer Freedom and the Risks of Raw Milk

Earlier today, Nicole Ciandella linked to an essay by the John Locke Foundation’s Fergus Hodgson, titled “The Absurdity of Raw Milk Prohibition.” It’s a good piece, worth reading. But Hodgson makes a couple of errors worth pointing out, so I thought I’d add my two cents.

Hodgson begins well enough:

“Picture a peaceful, Amish farmer, selling one of nature’s super foods — fresh, raw milk. Eager customers came from afar, even across state lines, to savor the taste and access a nutritious product. Who could oppose such harmonious commerce on Rainbow Acres Farm? Government officials and their enforcers, that’s who.

This Pennsylvania farmer has been the subject of a yearlong sting operation, which included stealth purchases and a 5 a.m. surprise inspection. In February, a federal judge imposed a permanent injunction that prohibited him from selling his milk across state lines.”

So far, so good. But then Hodgson makes an error of over-simplification: “To defend this violation of freedom of choice, proponents claim to be protecting others from the purported dangers of raw milk. But this claim is laughable, since evidence to the contrary has been mounting for decades.”

As I’ve written on occasion, the health risks associated with raw milk consumption are generally quite low, at least for adults with a healthy immune system. But they’re not zero. After all, pasteurization was seen as a remarkable scientific breakthrough and public health miracle for a reason: raw milk can harbor any number of nasty bacteria – including S. typhimurium, Mycobacterium tuberculosis, E. coli O157:H7, Listeria, Campylobacter, and Brucella – which historically have had a nasty tendency to result in illness and, occasionally, death.

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