Constitutionally Dubious FDA Applauds Itself For Anniversary of Food Regs – That Have NOT Made Food Safer

P. Gardner Goldsmith | January 11, 2021
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One of the worst aspects of the vast U.S. “regulatory” apparatus has reared its ugly head once more. 

As Baylen Linnekin reports for Reason, the federal Food and Drug Administration (FDA) just celebrated itself and the ten-year anniversary of the “Food Safety Modernization Act” (FSMA), passed during the authority-adoring Obama administration.

Such self-congratulatory behavior would be insulting enough on its own, but it comes with a side of added digs.

First is the fact that the FSMA is not sanctioned by the U.S. Constitution, and, for all those political folks who claim the Constitution is the "rule book," that ought to be enough. But second is the fact that even if one were to turn a blind eye to the constitutional problem, the on-the-ground results of FSMA’s multi-millions in expenditures and its multi-billions in regulatory burdens indicate that this wondrous “act” has not made the U.S. food supply – which was already one of the safest in the world– any safer.

Writes Linnekin:

FSMA, which was signed into law on January 4, 2011, by President Obama, gave the Food and Drug Administration (FDA) more power to crack down on food-safety scofflaws and decrease the incidence of foodborne illness across the country,’ I detailed in a 2012 law-review article, The Food-Safety Fallacy: More Regulation Doesn't Necessarily Make Food Safer.

And not only was Linnekin correct in his 2012 piece, he’s been proven correct again, despite the propagandistic parade of the FDA and its Deputy Commissioner, Frank Yiannas, last week.

Yiannas describes what he sees as FSMA's key accomplishments, including that food businesses "are now taking concrete steps every day to reduce the risk of contamination.”

Curiously, anyone who uses his or her brain might want to know how Yiannas has measured this, and said same brain-user might recall that it’s in the nature of competitive enterprise to do just that: to maximize customer satisfaction and reduce company liability.

But likely few have accused bureaucrats of bothering to back up claims with real data, and few likely have expected a bureaucrat to understand the way voluntary markets operate.

They are, after all, in the business of issuing threats backed by government force.

Linniken continues with Yiannas PR campaign for FDA’s Shangri La, noting that Yiannas claims that:

…the law has caused a ‘bigger conversation about the importance of food safety,’ strengthened agency partnerships with business and civil society, ‘advanced food safety,’ and fostered ‘safer food in this country.’

Really? A “bigger conversation?” Well, that sounds very… substantive and precise. 

And the last time I chatted with teenaged economics students they all understood that “public-private partnerships” were, strictly speaking, fascistic.

Then there’s the fact that, as noted before, the Constitution doesn’t allow the feds to control food, or any other product or service. Many bureaucrats and politicians claim that the “interstate commerce” clause (in Section One, Article Eight) allows the feds to do this, but James Madison, known as “The Father of The Constitution” for his assiduous note-taking at the 1787 Constitutional Convention, stressed to Americans that the clause was written to allow Congress to resolve State on State trade disputes, not allow government to control private business and the free association it entails.

And what of the “results” of the FSMA?

Linnekin explains:

In 2011, before FSMA was implemented, the Centers for Disease Control, which tracks and responds to foodborne illness outbreaks, estimated that tainted food causes around 48 million illnesses, 128,000 hospitalizations, and 3,000 deaths in the United States each year. Today, a decade on, those CDC estimates remain unchanged. Lest you think those CDC estimates merely haven't been updated in some time, the agency reportedearlier this year that ‘[t]he incidence of most infections transmitted commonly through food has not declined for many years.’

And, again, for those who, like Linnekin, understand economics, this was to be expected. The driver for quality is not government. Government is a net reducer of the ability of market participants to devote the resources they choose -- at the level they choose -- to safety, ease, variety, and many other key factors. The carrots and sticks of profit and loss, of reputational gains or pains, and simple human ethics are what inspire business people to attenuate their investments to accommodate what consumers desire most. With competition, market participants can see what has been successful for others, and work to better their efforts on those fronts. With greater practice and market experimentation, with time, competition allows for developmental insights and inventiveness, allows for productivity gains, and, in fact, allows for the extra savings that allow for FURTHER inventions and developments to help drive down costs and drive up quality.

In fact, without the productivity gains made by the free market – a system with which all government impositions and threats interfere – multitudes of people would not have the freedom to choose high safety as one of their food ingredients.

Starving people have little luxury to deny a possibly dirty morsel if their calculus is focused on simply trying to beat hunger. But, thanks to market competition and productivity, consumers have more room to concentrate on refinements in safety, taste, presentation, speed, locale, and all kinds of nuances that are offered to them at lower and lower costs.

On the flip-side, we have the FDA, the budget for which has never decreased, and which has not shown positive results, even as it demands money from taxpayers.

Is it any wonder that, over 10 years ago, I was able to write this for the Mises Institute?

This problem is repeated over and over, in field after field, from food inspection[5] to elevator inspection, from the licensing of nail stylists, to the licensing of gas pipe fitters. Government does not do the job properly, efficiently, or with accountability. Corrupt government employees and politicians use the safety codes and licensing laws to shake down competing businesses and help favorites exclude competition, and the populace is not only directly financially harmed by the interference in the competitive marketplace, it is also indirectly harmed by believing in the fantasy of government protection.

And the fantasy continues.

It’s good to know people like Linnekin deal with reality. We can enjoy a meal of truth thanks to him, while the politicians and their bureaus continue to serve us their plastic, fake, dishes full of propaganda.