Food Regulations: Myths and Games
By Richard Williams
Sisyphys was the Greek King who cheated death and ratted out Zeus to Poseidon for seducing his daughter. Zeus, the Greek King of the Gods, was infuriated with Sisyphus and sentenced him to an eternity of rolling a giant boulder up a hill in the Underworld every day only to see it roll back every evening just before it reached the top. Among many other regulated firms, food firms have been consigned to the same fate.
Sisyphus, oil on canvas by Titian, 1548–49; in the Prado Museum, Madrid.
Zeus’ punishment robbed Sisyphys’ life of meaning. “It steals all purpose from him. There will be no sense of accomplishment. There will be no sense of progress. His spirit is broken. He is forever stuck in a meaningless loop.”
In the regulatory world, the rock is a metaphor for the absurdity of complying with the regulatory state while Zeus is the all-powerful regulatory agency. This perfectly describes the repetitive failures presented by the Food and Drug Administration’s Human Foods Program. FDA as Zeus is easy to imagine as the FDA has been described as the most powerful regulatory agency in the world.
Every day, a large group of FDA employees comes to work to write new rules like these. Their work appears every day along with all of the other agencies in the Federal Register. The Federal Register has been printed since 1935 and now averages 263 pages (2016 average) of proposed rules, final rules, guidance, notices and Presidential documents. All rules that firms, farms, transporters, retail establishments, thousands of companies and hundreds of thousands of people must follow.
The final rules, printed in a separate book, the Code of Federal Regulations, contain so many rules (well over one million) with some that reflect the meaninglessness and uselessness of rolling a boulder up a hill including:
The requirement that companies must dispose of their sewage through “adequate means” (§117.37 (c)); and,
Plants must have toilets that are adequate. (§117.37 (d)); and,
Any food testing must “be scientifically valid.” (§117.165(b)(2)(i))
There is also helpful guidance for nutrition labeling including:
Firms have the option for presenting information on raw fruits vegetables or fish in either horizontal or vertical columns (§101.45(a)(3))
There are more serious regulations as well, but they are no more effective.
Each year FDA solemnly submits their budget request to Congress using copy and paste from the previous year. “Look,” they say, “at the task before us. Each year these recalcitrant capitalists are poisoning the country with 48 million cases of foodborne disease, 128,000 hospitalizations and 3,000 deaths. We are only poor servants of the people but imagine how much good we could do if we only had more money and more authority.”
The regulation writers are judged not by the likelihood of solving a problem but by the number of regulations they produce in a given time period and the length of those regulations. They are also judged by whether or not their regulations can survive the impotent challenges from the various branches of government.
These challenges are not meant to stop the production line, only to periodically produce small speed bumps. The challenges include comment letters on proposed regulations that are summarily dismissed unless they are in agreement with the agency’s direction. They also include challenges from the President’s Office of Management and Budget who have a tiny staff, mostly overwhelmed with hundreds of pages flowing in for review each day. Regulation writers are also periodically challenged by Congress to see if the regulations reflect Congressional intent, although they know Congress doesn’t really want to be involved. Finally, there are the courts that have reined themselves in by bowing in deference to the wisdom of the regulatory experts.
Although FDA regulation writers are experts in their fields, writing a regulation that doesn’t solve a problem doesn’t require a lot of expertise. In fact, from the rule producer point of view, it’s like the child game, “Simon Says.” The game is played by having one person give rapid orders such as “Simon says, take one step forward.” After just a few of these silly orders, the next one given in rapid order is something like “Take one step back.” If it is not preceded by “Simon says,” the game is over, and the follower loses. In one sense, Guidance is like having the command come out without “Simon says” in front of it. Firms simply follow the guidance although it is not required.
On the follower side, firms are required to comply and are enticed into compliance with guidance. While there are objections sometimes when the rules are proposed, ultimately, stepping backward is just as futile as pushing a boulder up a hill.
Because they have been criticized for their failures in making food safer and in keeping competition out of infant formula markets leading to shortages, the FDA hired an organization to make recommendations. Not surprisingly, they suggested that Congress reward them with more money and more authority.
It isn’t like food safety is their only failure, there is also their twin mission - nutrition. In 1973, Commissioner Charles C. Edwards warned, “Experience under this new regulation (putting nutrition labels on packaged foods) is required before expansion to all foods on a mandatory basis can be considered.” Not heeding that warning, the FDA required nutrition facts panels on all foods in the early 1990s.
Despite being required for over 30 years, most consumers find nutrition labeling too confusing to use. One nutrition author declared “I think people really have a hard time interpreting what food labels mean.” Meanwhile, people are getting fatter and sicker. 50% of Americans are expected to be obese by the end of this decade and lifespan has gotten shorter, back to where it was 25 years ago.
The FDA has decided the answer to all of these problems and intense criticism, other than waiting for Congress to take another step forward with more money and more power, is to reorganize how the foods program is managed. This tactic comes straight from The Art of War written by Chinese war strategist Sun Tzu’s. He called it “Attention Diversion Strategy.”
Just as Sisyphus, food companies understand that even though they may have perfectly followed every instruction up to the current moment, more will be coming. They also know there will be no accomplishment except the accomplishment of obeying, just as Simon Says.
Check out Richard’s book:
Cato | SNAP Spending Doubles, Let's Try Something Different, by Chris Edwards
The Hill | Can the FDA regulate away the perils of outdoor crops? by Richard Williams
Farming Abundance | Phony Demand and Underpopulation: Problems Plaguing American Farmers, By Matthew Yglesias
Mercatus Working Paper: Government Dietary Guidelines Uncertain Science Leads to Questionable Public Health Policy, By Edward Archer, Michael L. Marlow and Richard A. Williams