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eat drink and be merry

I’m back from a speaking swing through Nebraska. At the University of Nebraska College of Law in Lincoln, I spoke about food and drink paternalism as exemplified by Mayor Michael Bloomberg’s initiatives in New York, with Prof. Steven Willborn providing a counterpoint from a more liberal perspective. At Creighton University Law School in Omaha, I spoke (as I often do) on the ideological state of the law schools, drawing on my 2011 book Schools for Misrule, with commentary from Profs. Ralph Whitten and Sara Stadler.

Both events were well attended but I was especially pleased at the strong turnout for the talk in Lincoln on food and the nanny state, a new speech I hadn’t tried out before on a general audience. Here’s a description:

The public is increasingly in revolt against “nanny state” interventions, from Mayor Bloomberg’s attempt to limit soda sizes in New York, to efforts to ban Happy Meals in San Francisco. Some thinkers dismiss concern about paternalism as merely trivial and personal, not on a par with issues acknowledged as “serious” such as police abuse, free speech, surveillance, and the proper functioning of the legal system. Left unchecked, however, the project of paternalism quickly generates very serious problems in each of those other areas: it gives police and enforcers great arbitrary power, hands a special government megaphone to some speakers while stifling others, funnels uncomfortably personal information into government hands, and fuels abusive litigation. No matter what you think of potato chips, if your interests are in liberty and good government, you should be paying attention.

I’m next scheduled to speak on the food police Sept. 23 at a Heritage Foundation panel discussion with Baylen Linnekin, Nita Ghei, and J. Justin Wilson, hosted by Daren Bakst. Details here. More on my fall speaking schedule here.

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According to a math teacher’s calculations, a sample yielded only 1.86 times as much filling between the chocolatey wafers, not “double.” Here’s the report, by Rachel Tepper in Huffington Post. Using comments, who would like to predict whether some law firm will file an intended class action over this problem within the next twelve months, on a scale where zero indicates “completely confident that there will not be such a lawsuit” and 10 indicates “completely confident that there will be”?

Bonus, from the article: “And Mega Stuf Oreos have only 2.86 times the creme in a regular Oreo. The prefix ‘mega’ literally means a factor of one million, which, granted, is impossible to translate to an Oreo. Still, perhaps another name could have sufficed.”

P.S. As a reminder, class action lawyers sued the Subway restaurant chain after it was reported that its “Footlong” sub was actually more like 11 inches long. And a federal judge is reconsidering a recent ruling allowing class action claims to go forward over the appearance on an ingredient list of “evaporated cane juice,” i.e., sugar.

P.P.S. Welcome Digg and Fark readers.

Update: “While I’m not familiar with what was done in the classroom setting, I can confirm for you that our recipe for the Oreo Double Stuf Cookie has double the Stuf, or creme filling, when compared with our base, or original Oreo cookie,” a spokeswoman for Nabisco told ABC News.

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Food roundup

by Walter Olson on July 29, 2013

  • “Farm Free Or Die! Maine Towns Rebel Against Food Rules” [NPR on "food sovereignty" ordinances]
  • “How much sense does it make for Detroit to be worrying people will open restaurants without enough parking?” [@mattyglesias]
  • Report: undercover cop co-wrote anti-McDonald’s leaflet that resulted in famous UK libel suit [Guardian]
  • Quizzed on food policy, post-Bloomberg NYC mayoral hopefuls offer many bad ideas; Republican John Catsimatidis, grocer, proposes regs “that would require new buildings to rent to grocery stores.” [Edible Geography]
  • Spontaneous consumer discontent over labeling? No, lawyer-driven: consortium of law firms has sued more than 30 food cos. in single federal court [WLF]
  • Private GMO labeling a wave of the future? [Baylen Linnekin]
  • “Eight toxic foods: a little chemical education” [Derek Lowe, Corante "Pipeline", schooling BuzzFeed]
  • Obamacare calorie-count display mandate likely to curb menu variety [Liz Thatcher, RCP, earlier]

No food gathering is allowed in the Chicago-area Cook County Forest Preserve, and that extends to dandelions. A spokeswoman does not exactly argue that America is at risk of running out of the notoriously prolific wind-borne weed, but says foraging might take food away from animal or insect species that might otherwise eat the yellow-topped invaders, besides which “some native plants resemble dandelions and could be mistaken for them.” [ABA Journal]

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Food roundup

by Walter Olson on June 19, 2013

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Did you know that the Affordable Care Act creates an enormous, multi-billion-dollar slush fund — in the out years, it will raise $2 billion a year in perpetuity — for the federal government to spend on more or less anything that might “improve health and help restrain the rate of growth” of health-care costs? That the spending can bypass the Congressional appropriations process, and is rife with expenditures for the purposes of lobbying government itself, which is supposed to be an unlawful use of federal funds?

Somehow it didn’t sink in until I read this excellent investigation in Forbes by Stuart Taylor, Jr., the distinguished commentator and journalist now associated with the Brookings Institution. Because almost any cause arguably advances health, the administrators end up with close to unlimited discretion as to how to spend the money, which results in the usual array of goofy-sounding grant activities ranging “from ‘pickleball’ (a racquet sport) in Carteret County, N.C. to Zumba (a dance fitness program), kayaking and kickboxing in Waco, TX.”

It’s tailor-made for log-rolling and rewarding local friends, but the dangers go beyond that. In particular, as outraged Republicans from Fred Upton (R-Mich.) in the House to Susan Collins (R-Me.) in the Senate have been documenting, large sums from the program have been devoted to the purpose of lobbying for the passage of legislation at the local and state level — notwithstanding specific statutory language making that an unlawful way of spending money raised from federal taxpayers.

To quote Taylor:

* In Washington state, the Prevention Alliance, a coalition of health-focused groups, reported in notes of a June 22, 2012 meeting that the funding for its initial work came from a $3.3 million Obamacare grant to the state Department of Health. It listed a tax on sugar-sweetened beverages (SSB), “tobacco taxes,” and increasing “types of outdoor venues where tobacco use is prohibited” as among “the areas of greatest interest and potential for progress.”

* The Sierra Health Foundation, in Sacramento, which received a $500,000 grant. in March 2013, described its plans to “seek local zoning changes to disallow fast food establishments within 1,000 feet of a school and to limit the number of fast food outlets,” along with restrictions on fast food advertising. A $3 million grant to New York City was used to “educate leaders and decision makers about, and promote the effective implementation of. . . a tax to substantially increase the price of beverages containing caloric sweetener.”

* A Cook County, Ill. report says that part of a $16 million grant “educated policymakers on link between SSBs [sugar-sweetened beverages] and obesity, economic impact of an SSB tax, and importance of investing revenue into prevention.” More than $12 million in similar grants went to groups in King County, Wash. to push for changes in “zoning policies to locate fast-food retailers farther from . . . schools.” And Jefferson County, Ala., spent part of a $7 million federal grant promoting the passage of a tobacco excise tax by the state legislature.

These aren’t isolated flukes: they look very much like the normal and planned operation of the program. A $7 million grant to activists in the St. Louis area went in part toward lobbying for the repeal of a state law barring municipal tobacco taxes. The Pennsylvania Department of Health reported on how it used a $1.5 million federal grant: “210 policy makers were contacted . . . 31 ordinances were passed . . . there were 26 community presentations made to local governments .. . and 16 additional ordinances were passed this quarter, for a cumulative total of 47.”

This is outrageous. Congress has enacted and reiterated the ban on lobbying with federal funds because of the obvious unfairness of requiring taxpaying citizens to support political efforts of which they disapprove. Now a combination of the most politicized sector of public health activism (which likes to dictate how people live) and a cross-section of the local political class (which likes to find new ways of raising taxes) is getting massive federal subsidies to pursue such lobbying, often on a scale that can bulldoze disorganized local opposition. If you were wondering why some bad new ideas for local legislation (e.g., zoning to keep fast-food restaurants out of big-city neighborhoods) seem to be everywhere despite a tepid level of voter enthusiasm, now you know. You’re paying for them to be everywhere.

I joined host Ray Dunaway on Hartford’s WTIC this morning to talk about the issue.

P.S. Thanks to commenter gitarcarver for pointing out this April report on the problem by the investigative group Cause of Action. (& David Catron, American Spectator)

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Food roundup

by Walter Olson on March 19, 2013

  • If you thought “finger in chili” was bad, meet the Utah couple arrested on charges of planting razor blade shards in doughnuts and swallowing some [KSL, Daily Mail]
  • My talk a few weeks ago as part of Cato Institute panel on nanny state [YouTube, Bruce Majors]
  • New Reason-RUPE public opinion survey finds public broadly opposed to food and drink bans [Sullum]
  • Feds’ bad advice on polyunsaturated fat: more damaging than any mass tort in sight? [David Oliver] More: Hans Bader.
  • Coroner blames woman’s death on Coca-Cola addiction [TV NZ] Monster Beverage: natural causes, not caffeine toxicity, killed Maryland teen [Reuters, NYT, earlier] More: Jacob Sullum.
  • Oh, CSPI, thou contradictest thyself [Baylen Linnekin; more from him on parents' and kids' food choices quoting me, NYC soda ban]
  • “Bloomberg limits seder portions” [Purim spoof, New York Jewish Week]
  • Kelly Brownell, guru of obesity-reduction-through-coercion formerly based at Yale, named dean of public policy school at Duke;
  • “A Knife, a Walmart Birthday Cake and a Frenzy of Overreaction” [Free-Range Kids] Mardi Gras perennial: can you buy king cake with baby figurine already in it? [same, earlier]
  • Now they tell us: NYT book review not conspicuously enthusiastic about Michael Moss anti-food-biz book hyped to the rafters in NYT magazine three weeks earlier [Ira Stoll, SmarterTimes, our take]

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On Sunday the New York Times published a long, breathless screed attacking food company marketing (“Inside the hyper-engineered, savagely marketed, addiction-creating battle for ‘stomach share.'”) The article itself furnishes an example of empty, hype-fueled journalistic calories, or so I suggest in a new op-ed at the Daily Caller.

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Class action lawyers have filed suit saying that contrary to its marketing, the popular beverage doesn’t actually “give you wings.” [Reuters, ABA Journal] Meanwhile, the same scientific observation that underlies the lawyers’ action — that pharmacologically, the drinks don’t seem to deliver effects readily distinguishable from those of a strong coffee — is hard to square with the oft-expressed fear that Red Bull et al pose unusual risks to consumers, although the New York Times does seem to manage to keep both ideas in its head at once. [Jacob Sullum]

More: Ron Miller, in comments (“this completely mischaracterizes the lawsuit”).

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If you’re going to arrange a would-be class action on behalf of buyers dreadfully shocked that a ready-to-drink cocktail marketed as all-natural in fact included trace quantities of sodium benzoate, be sure your client does not lack “typicality.” [Alison Frankel, Reuters] Sodium benzoate is the sodium salt of benzoic acid, a spoilage retardant which occurs naturally in cranberries, plums, apples and other foodstuffs, but is typically synthesized for food use.

Tim Carney is glad to see the New York Times returning repeatedly to this theme [Washington Examiner]

Not entirely unrelated, a video from the Institute for Humane Studies on how regulation contributes to the widespread use of corn sweeteners in place of sugar in our food supply (“Why Is There Corn In Your Coke?” with Diana Thomas):

The school lunch program flop

by Walter Olson on September 26, 2012

One of the Obama administration’s signature federal initiatives has been the First Lady’s campaign for a redesigned federal school lunch program, with more centralized prescription from Washington aimed at healthier and more natural fare. Now the results are beginning to come in, and they aren’t pretty, as Baylen Linnekin documents: skimpy calorie counts that leave energy-burning athletes desperately hungry, food wastage as unpalatable fruit gets tossed into garbage bins, contraband chocolate syrup aimed at making skim milk palatable, and in Wisconsin mass student boycotts of food that’s “worse tasting, smaller sized and higher priced.” More: Patrick Richardson/PJ Media, Althouse. Earlier here (new rules discourage scratch-cooking), here, here, here, here, here, here, here, here, etc. More: “This year, we’ll be hungry by 2:00…. We would eat our pencils.” [Caroline May, Daily Caller]

Sensationalist coverage devastated a niche sector of the meat processing industry, and now a group of companies are demanding $1.2 billion from various defendants including ABC News, Diane Sawyer, and a UCLA microbiologist over various alleged inaccuracies. South Dakota, where the case was filed, has passed something called the South Dakota Agricultural Food Products Disparagement Act, one of a genre of “food defamation” laws previously criticized in this space. [Popehat; Reuters, ABA Journal, Poynter]

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“According to the bylaw approved by residents in April, it will be illegal to sell non-sparkling and unflavored drinking water in single-serving plastic bottles of 1 liter or less in Concord on or after Jan. 1, 2013.” Jean Hill, the chief proponent of the measure, cited environmental concerns and said, “I feel bottled water is a waste of money.” Thanks for saving us from that temptation, ma’am! [Boston Globe; Wicked Local Concord]

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Back to school roundup

by Walter Olson on September 4, 2012

  • “Do The New School Food Regulations Actually Hinder Scratch-Cooking?” Looks like it [Bettina Elias Siegel]
  • What Gloria Romero saw in Sacramento: prison guards lobby for longer sentences, nurses lobby against first aid, but the teachers union was the most untouchable of all [WSJ] Media Matters and the NEA [David Martosko, Daily Caller]
  • To earn top ratings under new city evaluation scheme, Denver teachers must press students to “challenge… the dominant culture” and “take social action to change/improve society or work for social justice.” Gee, thanks, Gates Foundation [9NEWS, auto-plays; earlier on ideological tests for educators]
  • “School Tells Deaf Boy, ‘Hunter,’ to Change His Name — It’s Too Violent” [Skenazy/Agitator]
  • More on pressure for race quotas in school discipline [Casey Cheney, Heartlander, quotes me; earlier here, here, etc.]
  • Allegations of mass cheating in, too perfectly, Harvard “Introduction to Congress” course: “I say give the cheaters an A, fail the rest” [Alex Tabarrok] Suspended fraternity sues Miami University for $10 million [Cincinnati Enquirer]
  • On coach liability for player injuries [Matt Mitten, Marquette]
  • ACLU files novel suit alleging Michigan and its agencies failed legal, constitutional obligation to bring student reading up to grade level [WSJ Law Blog]

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The New York Times reports on some experienced plaintiffs’ lawyers who are hoping to rip big sums out of food companies alleging mislabeling; one is particularly outraged at a yogurt maker’s use of the “evaporated cane juice” euphemism for sugar. “The lawyers are looking to base damages on products’ sales…. [They] are being selective about where these suits are filed. Most have been filed in California, where consumer protection laws tend to favor plaintiffs.” The Times article, which reads somewhat like a press release for the lawyers involved, flatteringly describes them as “the lawyers who took on Big Tobacco,” though in fact a much larger group of lawyers played prominent roles in the Great Tobacco Robbery of 1998, and no evidence is presented that most of that larger group are taking any interest in the food-labeling campaign. What’s more, the many efforts by the plaintiff’s bar to identify a suitable Next Tobacco in the intervening years have been full of false starts and fizzles, including such mostly-abortive causes as mass litigation over alcohol, slavery reparations, HMOs, and dotcom failures.

The Times does draw the link to Proposition 37, the lawyer-sponsored measure I wrote about last week, which could open up a basis for rich new suits based on failure to correctly affix labeling tracking the sometimes-fine distinctions between genetically modified foodstuffs and all others. The text of Proposition 37 proposes to base minimum damages on the total sales volume of a product sold out of compliance, not on any measure of actual harm to consumers (& Thom Forbes, Marketing Daily; Ted Frank, Point of Law). Earlier on Don Barrett here and on Walter Umphrey and Provost Umphrey here and here.

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After the quarter-century disgrace that is Proposition 65 litigation — run by and for lawyers’ interests, with no discernible benefit to the health of the citizenry — you’d think California voters would have learned a thing or two. But unless poll numbers reverse themselves, they’re on the way to approving this fall’s Proposition 37, ostensibly aimed at requiring labeling of genetically modified food, whose main sponsor just happens to be a Prop 65 lawyer. I explain in a new piece at Daily Caller. More coverage: Western Farm Press; Hank Campbell, Science 2.0; Ronald Bailey, Reason (& Red State).

More: defenders of Prop 37 point to this analysis (PDF) by economist James Cooper, arguing that 37 is drafted more narrowly than 65 in ways that would avert some of the potential for abusive litigation. And from Hans Bader: would the measure be open to challenge as unconstitutional, or as federally preempted?

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Food roundup

by Walter Olson on July 26, 2012

  • Chicago city government joins Boston in threatening to use regulation to punish Chick-fil-A for its political views [Josh Barro, Eugene Volokh, earlier, Tim Carney]
  • NYC hearing on Bloomberg soda ban “a pre-scripted event with a foregone conclusion” [ACSH, WLF] despite inclusion of Baylen Linnekin on witness list [Reason, Jacob Sullum] If calories are the point: “Hey, Mayor Mike, why not ban beer?” [Sullum, NYDN]
  • California restaurants serving foie gras “can be fined up to $1,000…or is it a tax?” [Fox via @ReplevinforaCow]
  • When nutrition labeling meets deli salads: the FDA invades Piggly Wiggly [Diane Katz, Heritage]
  • “Raw Milk Advocates Lose the Battle But Win the War” [ABA Journal]
  • “PLoS Medicine is Publishing An Attack On ‘Big Food'” [David Oliver]
  • More signs that Mayor Bloomberg is eyeing liquor as a public health target [NYP, earlier] Oasis in the putative food desert: “In praise of the corner liquor store” [Katherine Mangu-Ward, Reason]

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