An Op/Ed contributor in the New York Times recently wrote a terrifying piece about food safety in America, citing statistics about how the number of Americans killed annually by something they ate is roughly the same as those killed in Iraq and Afghanistan since 2003.  His point: the Senate needs to pass the food safety bill or else children will die.  The fear-mongering, sensational points brought up by Eric Schlosser are sure to inspire discussion, but his anti-business agenda is thinly veiled. 


Schlosser writes, “Without tough food safety rules, a perverse economic incentive guides the marketplace.  Adulterated food is cheaper to produce than safe food.  Since consumers cannot tell the difference between the two, companies that try to do the right thing are forced to compete with companies that couldn’t care less.”  He goes on to say, “The Pure Food and Drug Act of 1906 helped to eliminate many unsafe practices. But the recent centralization and industrialization of the American food system poses new kinds of threats.”  He supports Congress taking new action to address this potential threat, specifically supporting the Food and Drug Administration Modernization Act, which passed the House a year ago (H.R.2749) and is pending in the Senate (S. 510).  As he writes, “What the legislation actually seeks is some restraint on unchecked corporate power.”


Yet the legislation would actually do much more than act just as a check on corporate excess. Among other reforms, the legislation would significantly expand FDA’s regulatory power.    The Administration would be able to order the recall of foods and punish the companies selling them, implement a program collecting fees from firms to pay for increased safety inspections, and the FDA will be required to set new minimum standards for fresh produce safety.


It is absolutely desirable for Americans to have “safe” food, but it’s important to recognize the costs associated with this policy, which would take recalls out of the hand of businesses and trade associations, litigation out of the hands of private consumers, and place further responsibility in the hands of the FDA bureaucracy.  There is no one-way solution that mitigates the challenges we face in the food safety effort and we should not be so deceived to assume that the government never gets it wrong or subjects itself to agency capture.  Schlosser naively implies that the FDA is not part of the problem.   In truth, the FDA has to operate according to an arbitrary line, distinguishing “safe” from “unsafe” food and drugs that prohibits the use of all those that are on the wrong side of the line.  This black-and-white view of the FDA is out of touch and actually may prohibit a lot of good products from getting to the market.


Even a proponent of free markets such as Judge Richard Posner argue that there is a proper role for government intervention and protection in this area, citing the “inspections of restaurants and food processors by government inspectors, to prevent food poisoning. One can imagine leaving food safety to the market, reinforced by tort remedies against the sale of unsafe products. But solvency limitations would make market and tort remedies ineffectual against many sellers, especially small and new ones-so the inspection regime actually facilitates new entry, which is a dominant feature of the restaurant industry. Food poisoning can cause death, indeed multiple deaths, and when the consequences of a market failure are very grave, there is an argument for preventive regulation.”


Yet there is a threat to freedom and prosperity whenever Americans jump into the arms of government agencies to save us from the imminence of a poisoned apple.  We should improve America’s food safety, but expanding the role of the FDA this way is not necessarily a step toward that end.  The bill does acknowledge a lot of the risks and complications we face with imported food, and extends whistleblower protections, but the bill fails to offer an effective solution to the regulatory problems at the FDA, which is inherently inefficient and bureaucratic.   As some – like Eric Schlosser – cynically stoke Americans fears of the cost of food illness to expand the role of the state in our lives, we must consider the cost of that action.  This bill would expand the cost of the FDA in the form of increased government spending (higher taxes or higher deficit) and a diversion of resources in the market (less job growth or business re-investment) as compliance costs with new regulations rise.   Consumers will certainly end up paying more for food, whether what they actually get is safer is another question.