Food and the Death of Common Sense
People have wildly divergent views about food, from what they consume and how it should be regulated to what they throw in protest. Common sense is missing, even among some consumers.
Having spent nearly three decades in the food industry, from dipping ice cream cones to lobbying for America’s iconic soup company, studying people’s relationship to what they grow, process, and eat has been a wonderful vocation. Nearly every aspect of human nature plays out with our relationship to food.
For many of us, our first jobs came from the food industry. In my case, it was a part-time $1 per hour job as a 15-year-old (legal then, in 1972) for a Braum’s Ice Cream store in southwest Oklahoma City and later in nearby Norman, making banana splits, cherry limeades, and flipping burgers.
I still remember the late actor James Garner, a native Oklahoman, walking into the Norman store with friends to order a double dip of butter brickle. Nice guy.
Food growers and makers are frequently used, leveraged, or blamed in wars, uprisings, protests, causes, and movements. Some of the world’s greatest military minds mention the importance of food. “An army marches on its stomach,” Napoleon Buonaparte supposedly once said, along with this: “It is hunger that makes the world move.”
Food can also be used as a “weapon of war,” so to speak when you’re drawing attention to your climate agenda. If you asked me, the protest below represents a waste of perfectly good tomato soup and is unpersuasive. The protesters, who were arrested, are part of a French “Food Response” group focused on “food insecurity.” Mona was protected by glass, so there was no more damage other than wasting museum staff time to clean up their mess.
No doubt Napoleon remembered the food crises that led to the reign of Louis XVI and his queen, Marie “Let Them Eat Brioche” Antoinette, ending by guillotine not long after our successful revolution just a few years earlier in the 18th century.
The relationship between food and those who grow, make, market, consume, and regulate it is ever-evolving. Today, there are few things more regulated than food. Ask farmers or processors or the marketplaces - restaurants and retail stores - where those connections play out every day, everywhere. And that the balance between food safety regulation and satisfying consumer demands is never without controversy.
Two of the latest controversies that exposed that tension caught my eye recently, one involving an Amish farm and purveyor of raw milk sales directly to consumers in Pennsylvania and a cake pop maker in Virginia. And while most of the attention is on federal regulation of foods via the Food and Drug Administration and the US Department of Agriculture, states get in on the act, too. And politicians are always involved.
USDA focuses mostly on meat, poultry, pork, and many egg products, about 20 percent of the food supply, while FDA focuses on the rest. States are responsible for stuff made and sold within their borders, although some, like California, have outsized influence given the size of their markets. Just ask hog farmers. We’re the only nation in the world with this kind of a bifurcated (trifurcated?) food safety system. Some 12 federal agencies are involved in food safety. It always surprises people when I note that the USDA consumes about 80 percent of food safety funding compared to the FDA. It’s a long story but concerns how each agency handles food safety risks.
You’d be surprised by all they regulate, including what words and claims can be made on food packages and where. Even synonyms are regulated; don’t forget the “Nutrition Facts Panel” on the back. Sometimes, food companies ask for regulations, such as “standards of identity” (e.g., ice cream vs. gelato), to ensure a level playing field, eliminate confusion, and keep standards consistent.
Does that mean if you decide to make your favorite brownies for a local school fundraiser, you’re “regulated” by the state, including getting permits and the like? No, there are exemptions for things like that.
But ask Richmond’s Kelly Phillips about her side hustle to make cake pops in Virginia. From the Virginia Mercury:
Just before Thanksgiving, Richmond-area cake pop maker Kelly Phillips spent a Friday night preparing a batch to sell at a holiday market featuring local handmade goods. On her KP’s Kake Pops Facebook page, she posted a photo of her kitchen counter filled with a colorful assortment of cake pops with flavors like Death by Chocolate, Creamsicle and Red Velvet Blondie.
“What can I say… I like to party and lead a thrilling life!” she joked about her self-described side hustle.
She had no idea her cake pops were about to land her on the wrong side of the law.
On Dec. 1, a food safety official informed her she was operating her cake pop venture without a necessary permit from the Virginia Department of Agriculture and Consumer Services. Failure to rectify the situation, the official said, could lead to a misdemeanor charge.
Food regulations aim to protect unsuspecting people from food made in unsanitary conditions. Except that baked goods are clearly in a low-risk category.
But that’s not what got Phillips in trouble. She 1) sold her goods at a craft show instead of a “farmers market,” which has an exception. 2) She advertised their availability on her Facebook page. Virginia regs prohibit the sale of uninspected goods over the Internet, although that’s not where she was selling them.
It’s another case of an overzealous bureaucracy devoid of common sense, relying on out-of-date or overly proscriptive regulations. Common sense and the discretion to use it are victims of our modern regulatory regimes, state and federal. My friend Philip K. Howard, founder and chair of Common Good and author of “Rule of Nobody” and other outstanding books. Howard’s guiding principle is straightforward: “Restore everyone’s freedom to take responsibility. Let others exercise their freedom to hold them accountable.”
Fear of lawsuits, often from well-intended but voracious consumer organizations, led to paralysis where bureaucrats were hamstrung by their regulations and failure to take responsibility and exercise their judgment and common sense. Fortunately, Virginia Governor Glenn Youngkin took note and promised to fix the problem.
But is that true in the case of Amos Miller?
Miller is an Amish farmer in Lancaster County, PA, with private clients who buy directly from him, including meat, raw milk, honey, and other products. There’s a romantic appeal to buying foods from farmers the way things used to be made, with horse-drawn plows and methods endemic to the Amish community. Until recently, he wasn’t subject (or thought he wasn’t) to federal or state regulations.
However, people have gotten sick and died from Amos Miller’s products, especially his raw milk. His customers come from several states, including New York and Michigan, which confirmed cases of virulent Shiga toxins. Hint: you don’t want to consume foods with Shiga toxins or Listeria. Especially if you’re pregnant, you’ll miscarry, and maybe worse.
The US Department of Agriculture filed civil charges against Miller in 2016, resulting in him entering into a consent decree that still governs him. But then there’s Pennsylvania state law. The Keystone State is a major food-producing state, home to a vibrant and diverse industry. It is America's snack food capital. The Commonwealth is not unfriendly to either food makers or the Amish. Unlike the federal government, they allow raw milk sales in the state, something I lobbied against back then.
Miller will come before state court on February 29th. We’ll let Food Safety News, published by the food trial lawyer firm of Marler and Clark, tell the story:
Amos Miller is to appear in a Pennsylvania state court on Feb. 29. Until then, Miller, his wife, and various businesses are prohibited from producing or selling raw milk and raw milk products because of their ”immediate and irreparable injury.”
The order by state Judge Thomas Sponaugie grants the request of the Pennsylvania Attorney General, who has a pending civil action before the court to permanently prevent Miller and his business enterprises from selling raw milk and other unregulated products because he is endangering public health.
The judge’s order also requires Miller and his businesses to permit the State Department of Agriculture complete access to his records and test products.
Miller further must notify his customers that his products were traced to two recent foodborne illnesses. Further, the judge ordered him to notify his customers that raw milk collected from Miller’s farm on Jan. 4 under a search warrant tested positive for Listeria.
The attorney general has charged Miller with violating several state food safety laws.
I live in bucolic western Loudoun County, Virginia, surrounded by chicken and cattle farms, most selling directly to consumers. That’s great. Any steaks or eggs I buy will be cooked. But I would never buy raw milk. Anyone who consumes raw milk is playing Russian Roulette with their health. Just ask the FDA:
While the perceived nutritional and health benefits of raw milk consumption have not been scientifically substantiated, the health risks are clear. Since 1987, there have been 143 reported outbreaks of illness – some involving miscarriages, still births, kidney failure and deaths – associated with consumption of raw milk and raw milk products that were contaminated with pathogenic bacteria such as Listeria, Campylobacter, Salmonella, and E. coli.
E. coli poisoning can be contagious.
Common sense should apply to regulators at the state and federal levels. Consumers are not exempt, however.
We’re blessed in America with high confidence in our food supply. We waltz into restaurants and don’t ask to see the health certificates or peer into the kitchens (I do, sometimes). Without a second thought, we buy and consume foods and produce in gleaming grocery stores, including their prepared food sections and salad bars. That’s because as purveyors to the public, they’re either locally, state, or federally regulated under standards we’ve come to expect.
Rep. Massie may be okay with you taking chances with the health and life of your family from unregulated farms, but count me out. And what’s this nonsense about an “industrial meat/milk complex?”
Vendors like Amos Miller may mean well and sell most of his wares without problems. But high-risk products such as raw milk, while legal for intrastate sales in 30 states, deserve regulation.
I know; our ancestors grew up on farms with a dairy cow and raw milk. But, like it or not, pathogens evolve and grow. They are more virulent today than they were decades or centuries ago. And our life spans are much longer today than even 100 years ago. I get the romantic and libertarian appeal to buy from farmers I know or who live nearby, but I won’t take unnecessary risks.
Our food regulatory systems and the people who run them need a reboot. But they have their place. It just requires a little common sense. We’ve lost enough confidence in our basic institutions in recent years. We don’t need to toss food safety in with them, even on Amish farms.
Kelly Phillips wasn’t making anyone sick. Amos Miller did. There’s a difference between cake pops and raw milk. A big one. It's common sense.
Well put: "Kelly Phillips wasn’t making anyone sick. Amos Miller did. There’s a difference between cake pops and raw milk. A big one. It's common sense."