Some thoughts on regulations...

[Guest guest]

Hello all,

I found a short but interesting law review article that compared the way

that the US and Europe deal with food. While Europe has faith in

traditional methods (like making raw cheese) and believe them to be safe

(as centuries of pruduction attest, as opposed to lab tests) while they are

extremely wary of new " technologies', the US sees new developments as

" innovative " (GM, irradiation, and so on), while finding old food

production techniques unsafe. The result is differing regulatory

structures, where Europe considers " social factors " alongside science, and

has very strict health and hygiene requirements, while the US does not and

mandates pasteurization and so on. An interesting comment she makes is

that the debate has shifted from pesticides and additives to food-borne

illnesses like E.Coli and Mad Cow disease. I felt that she was " objective "

in the article, and by virtue of printing the comparison in an American

Journal (albeit of European law), there was a very slight pro-Europe slant

(intuitively, a pro-GM country doesn't sound too good!).

The Article: FOOD SAFETY REGULATION IN THE EUROPEAN UNION AND THE UNITED

STATES: DIFFERENT CULTURES, DIFFERENT LAWS by Marsha A. Echols, 4 Colum. J.

Eur. L. 525, Columbia Journal of European Law, Summer, 1998

Interestingly, there was a law suit called " Public Citizen v. Heckler " (653

F.Supp. 1229) in 1986 where the DC Circuit ruled that Public Citizen, a

nonprofit organization, were correct in their claim of arbitrariness and

the Secretary of Health and Human Services had to promulgate a rule that

banned interstate raw milk sales. [Note: just interstate sales... ] Anyway,

this group has a web site, I went to them and couldn't figure them out.

Corporate lobbying front, or well-meaning but ignorant group?

www.citizen.org I wonder why Heckler, the Secretary of Health and Human

Services was so against making an anti-raw milk law that she fought it up

to Circuit Court. Though the judge was not necessarily an ally, Ms. Heckler

may have been.

Additionally of interest is that the legal encyclopedia reference says that

" court takes judicial notice that bacteria, harmful to human consumers, are

found in raw milk, and that pasteurization destroys this deleterious germ

life " , and the referenced case is from 1960!!! (Schlenker v. Board of

Health..., 167 N.E.2d 920.)

Now that brings up a few thoughts:

1- What happens when there are scientific developments that challenge the

foundations of certain regulations? For example, in the 1920s-1940s, did

we know about good bacteria? (I mean, you know when something makes you

sick rather easily, but do you know when something makes you well?) What

were the sanitary conditions like back then? Do regulation always keep up?

What is the review process for FDA/USDA/other agencies? [basically, I see

two theoretical approaches here: 1- a libertarian one, which deals with

property issues (if you own the cow, you have a right to milk it!) 2- a

scientific-based approach, respecting the decisions of the regulatory

bodies, but challenging their science and the grounds to their rules...]

2- What happens when a regulation was once beneficial, but better

technologies reduce the benefits of the old way (so maybe better hygiene

practices among farms where cows are pasture-fed, or something along those

lines)? What if there is incentive to keep the regulation because it helps

corporate profits (and those groups lobby and pay for " citizen's groups " to

sue)? Of course my cynicism comes into play here...

3- How do you address concerns about E. Coli? (Someone brought Odwalla up

again today). How do you protect safety when there *are* unethical

businesses that aren't hygienic? That may bring about a comparison to

European methods?

4- All of these make for good legal article issues, but which of these

arguments can win in court?

I really hope I am not boring all of you, but I feel like dealing with

these issues helps us strategize. For example, if it is true that every

few years a regulatory body will review it's policies, than a letter

writing campaign may be a powerful way to bring about change. If it is

true that a state tends to have judges that are very strongly concerned

with issues of property rights, than they will be more likely to find the

attacks against cow share programs offensive.

Ramit

Going to Grenada for Spring Break!

p.s. When I get back my friend (with car) will take me to a farm 40 miles

away that sells raw milk (woo woo Connecticut!), I am soooo excited!

p.p.s. If I am bothering you with all this, email me privately and I'll lay

off!

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