The Sickening Nature of Many Food-Safety Regulations

Nearly 18 months after passage of the Food Safety
Modernization Act
, a landmark piece of legislation that granted
new powers and authority to the FDA, the legislation is
still mired in
congressional debates over how to fund it. If this status update
sounds familliar, it’s with good reason. The FSMA found itself in a
similar place six
months ago
 and a
year ago

As FSMA implementation treads water, my own latest piece of
research on the subject has just been published by
the Northeastern University Law Journal. It’s based
on a talk I gave as a panelist at the journal’s 2011
food-law conference—held
just weeks after the FSMA became law.

In my article, “The Food-Safety Fallacy:More
Regulation Doesn’t Necessarily Make Food Safer,” I use ancient and
more recent historical examples of flawed rules to rebut the
common misconception that more food-safety regulation means safer
food. Rather, history shows us that food-safety regulations have
often made food (and, consequently, people) less safe.

How can a food-safety regulation make people less safe? There
are several ways. You’ll want to read the entire article if
you’d like more examples, but I think these three should suffice to
illustrate my point.

First, a flawed food-safety regulation can prevent people from
gaining access to a healthy food. In 18th century France, the
country’s parliament banned consumption of the potato. Among the
host of diseases the govenment mistakenly attributed to consumption
of the tuber was leprosy. This was particularly problematic because
at the time France’s government issued the potato edict, the
country was in the midst of a famine.

 Francophile Thomas Jefferson would have
witnessed the ban firsthand. He later condemned it in strong terms
in a famous passage from his Notes on the State of
, in which he lays out his vision of the regulatory
authority of government as pertains to religion, food, and

The legitimate powers of government extend to such
acts only as are injurious to others. . . . Was the government
to prescribe to us our medicine and diet, our bodies
would be in such keeping as our [British-subjugated] souls
are now. Thus in France the emetic was once forbidden as
a medicine, and the potato as an article of food.

As I note in my article, “It took the efforts of one Frenchman
whose life had been saved by the potato to reverse the ban.”

Another way that a food-safety regaultion can make people less
safe is when the rule actively promotes the spread of disease. A
perfect illustration of this can be found in the USDA’s 90-year
meat-inspection scheme—labeled “poke and sniff” by critics and
supporters alike—that the agency replaced only in the 1990s.

Poke-and sniff often entailed having an inspector “poke” a piece
of meat with a rod and “sniff” the rod to determine, in the
inspector’s opinion, whether the meat contained
pathogens. This method meant that the hands, eyes, and noses
of inspectors were to be literally the front line of the
USDA’s food-safety regime.

The problem? “[I]f a piece of meat was in fact tainted but
the inspector’s eyes or nose could not detect the contamination
after he poked the meat, the inspector would again use his
hands or the same rod to poke the next piece of meat, and the
next, and so on.”

This approach likely resulted in USDA inspectors
transmitting filth from diseased meat to fresh meat on a daily
basis. Food may actually have been safer when the
USDA failed
to regularly inspect
 some plants for a mere three

Related to this latter point, the third way in which a
food-safety regulation can make people less safe is when the
regulation attaches a false veneer of safety to a particular food
based on the public’s misplaced faith in the ability of regulators
to ensure food is safe.

The summer 2010
of hundreds of millions of eggs due to negligent USDA
oversight at the laying facility—even as the agency’s egg graders
provided the public with the false veneer of food safety—is a
perfect illustration.

While the FDA used the recall to argue for more authority to
inspect egg-laying facilities, the truth is that USDA egg graders
already on site simply dropped the ball when it came to ensuring
the eggs they graded were safe. The USDA was quick to refute the
charge its graders had any duty or authority to oversee the
sanitary quality of the facilities in which they worked, but