Food Safety Modernization Act

Food Safety Modernization Act Passes; Unconstitutional Provision Supposedly Removed

by Hans Bader on December 20, 2010 · 1 comment

in Health and Illness, Legal, Nanny State, Personal Liberty, Precaution & Risk, Regulation

The Food Safety Modernization Act was passed again by Congress on Sunday, apparently without a provision that earlier drew criticism for violating the Constitution by having a tax increase contained in it originate in the Senate rather than the House (something forbidden by the Constitution’s Origination Clause). The Washington Post story about this cites only the alleged benefits of the bill, not its potential costs to innovation, small business, and the availability of unconventional foods, which we previously discussed at this link.

Greg Conko, an expert on food safety regulation, has explained how the bill’s expensive and cumbersome red tape might thwart “firms from developing innovative new processes and practices that could deliver real food safety improvements.”

From the Post story, it sounds like the Senate version of the bill, not the House version, became law, although it’s not clear.  The House version of the bill would have driven “out of business local farmers and artisanal, small-scale producers of berries, herbs, cheese, and countless other wares, even when there is in fact nothing unsafe in their methods of production,” warned legal commentator Walter Olson at Overlawyered. The Senate version of the bill is less extreme, but even it “would leave tens of thousands of small and mid-sized farms and food stands to be crushed under the weight of rules designed for some of the world’s largest food processors,” Conko says.

The tax increases contained in an earlier Senate version of the bill violated the Constitution, argued Conko (who is a lawyer) and law professor Jonathan Adler.

I earlier discussed false claims made by the law’s sponsors about its reach over farms and activity that doesn’t cross state lines.

Senate Leaders Violate Constitution in Pushing Through Costly Food Safety Modernization Act

by Hans Bader on December 2, 2010 · 3 comments

in Health and Illness, Legal, Nanny State, Personal Liberty, Precaution & Risk, Regulation

The House and Senate passed different versions of the Food Safety Modernization Act, which would ratchet up costly regulations of farms and food processing.  (Greg Conko explains how the bill’s expensive and cumbersome red tape might thwart “firms from developing innovative new processes and practices that could deliver real food safety improvements.”)   But as Conko and law professor Jonathan Adler have separately noted, there is a constitutional problem with the bill.  As Conko notes, the “user fees added to the Senate version run afoul of a constitutional requirement that tax measures originate in the House.

Similarly, Professor Adler notes “that the Senate’s failure to follow constitutionally prescribed procedures could doom the food safety bill.   The bill includes fee provisions that constitute taxes and the Constitution requires that all tax bills originate in the House of Representatives, and it looks unlikely that House Dems will let the slip pass.  Based on what Walter Olson has written about the bill, this could be a good thing.”

The House version of the bill would “drive out of business local farmers and artisanal, small-scale producers of berries, herbs, cheese, and countless other wares, even when there is in fact nothing unsafe in their methods of production,” warned legal commentator Walter Olson at Overlawyered.   I earlier discussed the harms likely to result from the bill, and false claims made by the bill’s defenders, here.

Food Safety Vote Threatens Food Safety

by Angela Logomasini on April 21, 2010

in Environment, Nanny State, Personal Liberty

This week, the Senate may vote on an amendment to the FDA Food Safety Modernization Act that could undermine the integrity of the U.S. food supply. Offered by Senator Dianne Feinstein, D-CA, this amendment would ban the use of a substance called bisphenol A (BPA) in food packaging. BPA–based resins line food containers—e.g., aluminum and steel cans—to reduce contamination of our food from rust, E-coli, botulism, and a host of other dangerous pathogens. Given that BPA has never produced a single adverse public health impact among consumers, even after 60 years use in packaging, this proposal is crazy and could undermine the safety of our food. I wrote more about his in a recent article for the Washington Examiner.

Also check out our posts on the topic at CEI’s sister website FightNanny.com, which highlights the excesses of the nanny state. Our new contributor there reports from a mom’s point of view. She also has a very interesting blog called Truth or Scare. Check it out.

Trojan Horse “Food Safety” Law

by Hans Bader on April 9, 2009 · 1 comment

in Agriculture, Deregulate to Stimulate, Economy, Employment, Legal, Natural Resources, Personal Liberty, Precaution & Risk, Regulation

A misguided bill, the Food Safety Modernization Act of 2009, may shut down farmer’s markets and “drive out of business local farmers and artisanal, small-scale producers of berries, herbs, cheese, and countless other wares, even when there is in fact nothing unsafe in their methods of production,” warns Walter Olson at Overlawyered.

Ignorance about the law’s broad reach (and how it will be construed by the courts) has thwarted opposition to the bill, which will likely pass Congress. For example, a newspaper claims the bill “doesn’t regulate home gardens.” The newspaper probably assumed that was true because the bill, like most federal laws, only purports to reach activities that affect “interstate commerce.” To an uninformed layperson or journalist, that “sounds as if it might not reach local and mom-and-pop operators at all.” (The bill’s sponsor, Rep. Rosa DeLauro, has sought to forestall opposition to her bill by falsely claiming that that “the Constitution’s commerce clause prevents the federal government from regulating commerce that doesn’t cross state lines.”)

But lawyers familiar with our capricious legal system know better. The Supreme Court ruled in Wickard v. Filburn (1942) that even home gardens (in that case, a farmer’s growing wheat for his own consumption) are subject to federal laws that regulate interstate commerce. Economists and scholars have criticized this decision, but it continues to be cited and followed in Supreme Court rulings, such as those applying federal anti-drug laws to consumption of even home-grown medical marijuana. Indeed, many court decisions allow Congress to define as “interstate commerce” even non-commercial conduct that doesn’t cross state lines — something directly at odds with Rep. DeLauro’s claims.

Moreover, DeLauro’s own bill has a sweepingly broad jurisdictional provision that creates a presumption that home gardens do affect interstate commerce. Section 406 of the bill reads as follows: “PRESUMPTION. In any action to enforce the requirements of the food safety law, the connection with interstate commerce required for jurisdiction shall be presumed to exist.”

Lori Robertson of FactCheck.org, who is not a lawyer (she has a B.A. in advertising), claims the bill doesn’t apply to “that tomato plant in your backyard.” As a lawyer, I am skeptical of this claim. (I co-represented the prevailing defendant in the last successful constitutional challenge to federal regulation under the interstate commerce clause, United States v. Morrison (2000) — one of only two cases since the 1930s where the Supreme Court limited, rather than rubberstamped, regulation in the name of “interstate commerce”). And it appears that that the proposed law CAN apply to that tomato plant in your backyard (or Michelle Obama’s garden), since Congress’s power under the Commerce Clause is almost unlimited in the eyes of the courts.

This so-called “food safety” bill may actually make food less safe. Federal regulation often backfires or reduces competition. A classic example is the 2007 child-safety law, the CPSIA, which was based on junk science. It shut down countless thrift stores and entire industries, resulting in children’s books being thrown out and pulled from library shelves by the thousands. It harmed poor people and special-needs kids. It rendered many ordinary bicycles illegal and made motorcycles more dangerous to children.

My wife, who immigrated from France, already finds it difficult or impossible to obtain many of the food items she likes from her native country (like raw-milk cheeses). This law will make it even worse. As Olson notes, “Many informal makers of ethnically or culturally distinctive food items will go off-books or simply fall by the wayside, overwhelmed by the reporting and batch-tracking paperwork. Many foreign producers who ship in less-than-mass quantities will give up on the U.S. market rather than try to comply with challenging standards that differ drastically from those imposed by European markets or their own countries of origin, which in turn will mean that many interesting and safe specialty foods will simply no longer be available for purchase, at least legally.”

Baptist-Bootlegger Alliance on Tobacco

by Hans Bader on April 8, 2009

in Economy, Healthcare, Legal, Personal Liberty, Politics as Usual, Precaution & Risk, Regulation

In today’s Washington Examiner, Tim Carney has an excellent column on how the bill to place tobacco under FDA regulation would reduce competition in the tobacco industry and enrich the biggest company — Philip Morris — at the expense of consumers and competitors alike. Although the bill is supported by leading anti-smoking groups (which indirectly receive money from Big Tobacco through the $246 billion Master Settlement Agreement), the bill’s “most important ally” is “Philip Morris, the largest cigarette maker in the world.” As Carney notes,

“There’s a metaphor popularized by economist Bruce Yandle that is useful in explaining efforts to regulate anything from energy to toy safety. Call it the Tale of the Baptist and the Bootlegger.

“Picture a small-town Southern politician after Prohibition’s repeal. Call him Jones. Jones’ campaign needs both cash and a winning issue. The state’s most prolific bootlegger comes and offers Jones both. ‘I can bankroll your entire campaign. You just need to outlaw alcohol in the county. If you close down the bars and clear the liquor out of the corner stores, the men will all have to come to me for their fix.’

“Jones, with newly heavy pockets, walks down to the Lady’s Temperance Hall and declares, ‘Ladies, I’m running to end the scourge of alcohol in this town, and I’m asking for your support.’ At his campaign kickoff the next week, Jones has the entire Temperance Union and the local preacher onstage endorsing him, and of course, he’s got the pipeline of alcohol cash from the rumrunner who will get even richer when the county goes dry again.

“Philip Morris is the ‘bootlegger’ today — the undisputed giant of the industry. The company controls more than half of the U.S. cigarette market. . .Parent company Altria has hired three new lobbying firms so far this year, bringing its army to 19 different lobbying firms plus a powerful in-house shop. . .

“Philip Morris stands to benefit from this regulation in many ways. First, all regulation adds to overhead, and thus falls more heavily on smaller firms. Second, restrictions on advertising help Philip Morris’ Marlboro, a brand everyone already knows, by keeping lesser-known brands in the shadows. (Existing restrictions on advertising have already helped Philip Morris in this regard, with an added benefit spelled out in Altria’s annual report: ‘Marketing and selling expenses were lower, reflecting regulatory restrictions on advertising and promotion activities. … ‘) Finally, if the bill passes and the FDA gets added control over the industry, Philip Morris, more than any of its competitors, will have access to those bureaucrats and agency heads making the decisions.”

We wrote earlier about how FDA regulation might actually undermine public health by making it harder to market to smokers other tobacco products, like snus, that are not as lethal as cigarettes.

Federal regulation often backfires. A classic example is the 2007 child-safety law, the CPSIA, which was based on junk science. It shut down countless thrift stores and entire industries, resulting in children’s books being thrown out and pulled from library shelves by the thousands. It harmed poor people and special-needs kids. It rendered many ordinary bicycles illegal and made motorcycles more dangerous to children.

But it is now being used by Congress as a blueprint for a misguided law, the Food Safety Modernization Act of 2009, that would put small food producers and farmers’ markets out of business in the name of food safety.

Speaking of Baptists and bootleggers, a large coalition of religious leaders who know nothing about how regulation works in the real world have endorsed FDA tobacco regulation. Most of them are from liberal religious denominations, like the Unitarian Universalists and Religious Action Center of Reform Judaism, but the signatories also include Dr. Richard Land of the Southern Baptist Convention.

I wrote earlier about the Religious Left, including its claims that Sarah Palin is not really a woman (because she’s a Republican), that Ronald Reagan was “Pontius Pilate,” and its rants about the “Taliban-like American male,” who should “shut up for a milennium.” The Religious Left also believes that God hates secret ballots in the workplace, and falsely accused former Interior Secretary James Watt of publicly stating that all trees should be cut down in light of the imminent return of Jesus Christ.