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• Could the outcry be having an effect? Until now, Rep. Rosa DeLauro (D-Ct.) has repeatedly insisted that backyard and kitchen-table producers have nothing to fear from her bill, H.R. 875, the proposed Food Safety Modernization Act, because they do not engage in “interstate commerce”. Many observers pointed out that under U.S. Supreme Court precedent, an exceedingly broad range of agricultural and food activity (right down to the growing of grain with which to feed oneself or one’s animals) has counted as within the bounds of “interstate commerce” reachable by federal regulation.* Now, at the end of a Huffington Post piece sympathetically relaying DeLauro’s views, there comes an “Update” nodding toward the courts’ practical application of the “interstate commerce” concept and reporting that DeLauro’s staff is promising “clarifications” of the bill’s reach, perhaps even “technical corrections”, to be ready “in the next few weeks”.
• When those corrections and clarifications appear, one crucial question will be whether they include any de minimis provisions exempting small, local, or informal producers and sellers (of course, these entities might continue to face stringent state or local regulation). As it stands now FSMA, like CPSIA before it, is notable for its lack of de minimis exclusions, as well as its failure to prescribe “scale-appropriate” principles (”tiering”, streamlined reporting, etc.) by which entities that deal in less than industrial volumes might be given the benefit of simpler and less onerous rules.
• Given the stated views of the advocacy groups behind FSMA, I very much doubt that a revised version will in fact exempt producers of food intended for consumption within one state only. Even if it does, however, the law will still cover many persons like Harold Gundersen, who sells food from his Southwest Michigan farm at two suburban-Chicago farmer’s markets and in doing so manages to have legal contact with three states in all:
  

  “We’re highly regulated by state government and federal government,” he said. … [Gundersen] pays $65 twice a year to an inspector from DuPage County, who comes up to Michigan to inspect the apple butter and cider that he sells.

  Gundersen is indignant at that last requirement because he doesn’t even process the apple butter and apple cider — he takes his apples down to an Amish man in Indiana who seals them in cans and jugs. Because that facility is already visited by Indiana inspectors, Gundersen sees no reason for a DuPage inspector to take a second look.

  “There is nothing for her to look at,” Gundersen said. “She looks at my jars and says, ‘OK, I’ll sign this stuff.’”

  Through much of the country — in most of the big cities of the Northeast and Midwest, for example — food grown within a radius of (say) 100 miles will often have crossed state lines.

• FactCheck’s lullaby of reassurance on the subject contains the following passage aimed at readers who might be perceiving FSMA as a far-reaching power grab by the federal government, or something like that:
  

  The bill has 41 cosponsors** and has been endorsed by major food and consumer safety organizations, including the Center for Science in the Public Interest, Consumer Federation of America, Consumers Union, Food & Water Watch, and The Pew Charitable Trusts. Food & Water Watch is a nonprofit organization that advocates for clean water and safe food and is headed by a woman who used to work for Public Citizen, the consumer group founded by Ralph Nader.

  Well! If a bill has 41 cosponsors, it must have been well vetted, right? (CPSIA had 106). And its backers include not only Consumers Union and Consumer Federation of America — both instrumental in bringing us the CPSIA debacle — but also a group headed by an alum of Nader-founded Public Citizen. It’s not as if Public Citizen was the acknowledged leader of the Washington coalition that pushed for CPSIA and has defended it ever since, right? Oh wait.

  Center for Science in the Public Interest? That’s the outfit that’s called for federal regulation of the use of salt in foods, and its busybody litigiousness has long furnished copious material for this site. Pew Charitable Trusts (is it now OK for charitable foundations to support legislation?) has long had its hand in a hundred activist causes. And so forth. This is not reassurance; to coin a phrase, it’s de-assurance.

• Deputy Headmistress: “I would believe these consequences were ‘unintended’ if I didn’t see the same consequences from government action over and over again.”
• No, I don’t agree with the chain-email theories that insist that Monsanto, the giant agribusiness firm, is masterminding the push for this law. (Or the counter-push against it, depending on who you talk to. Maybe both!). Since the company’s name is always coming up, however, here’s a link to what the company’s own spokesman had to say on the lefty site Crooks and Liars, which was not quite what I expected (though I’m not sure what I did expect).
• Brian Doherty writes about the furor at Reason (with comments here) and John Schwenkler also weighs in at his blog. And in the comments section of our initial post, check out what “Pelly” has to say about yogurt in Nova Scotia.

*Of course, it’s possible that a statute might not grant the federal regulator as much authority as courts would be willing to uphold as constitutional. HR 875 incorporates by reference the FDA’s current definition of “interstate commerce”. I’m not an expert in this area, but various documents suggest that the FDA already asserts much authority over items and processes whose production or use does not cross state lines.

**Among the 41 co-sponsors are such figures as Rep. Jan Schakowsky (D-Ill.), who as a co-sponsor and defender of CPSIA has been ferociously unsympathetic to distress cries from small businesses arising from that law.

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calculated that because customers paid $61.6 million to watch eight “fraudulent” games, they’re entitled to triple that amount — or $184.8 million — in compensation under the federal Racketeer Influenced and Corrupt Organization Act and the New Jersey Consumer Fraud Act.

Mayer and Afran, who consider themselves public interest lawyers, have been thorns in the side of New Jersey politicians for years, filing lawsuits and demanding investigations to advance their grievances. They are well known in the state but generally have had little success in their causes.

Both have lost bids for elected offices, and Mayer once served as a presidential campaign adviser to Ralph Nader.

(Dennis Waszak Jr., “Jets fan sues Pats, seeks $184 million”, AP/Boston Globe, Sept. 28; ProFootballTalk “Rumor Mill”, Sept. 28). More: Sadly, No!.

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In 1975, consumer activist Ralph Nader filed a lawsuit against De Toledano in connection with a De Toledano suggestion — denied by Nader — that Nader had “falsified and distorted” evidence about the Corvair automobile. The case lingered in court for years and cost De Toledano his life savings. Paul Toledano [son of the author] said it was settled out of court.

(Joe Holley, “Ralph de Toledano, 90; author and ‘nonconformist conservative’”, Washington Post/L.A. Times, Feb. 10).

De Toledano in fact had published an entire critical biography of Nader, entitled Hit and Run: The Rise — and Fall? — of Ralph Nader, used copies of which remain available online — even Nader himself can’t prevent that. The entire episode — in which Mr. Litigation, then at the height of his public fame and influence, inflicted vindictive and personal financial ruin on a well-known journalist who’d had the temerity to criticize him — is one that you’d think would have provoked expressions of concern and solidarity from leading writers and civil libertarians of the day, and yet it didn’t (scroll to #8). The episode tends to get no mention these days in accounts of Nader’s life (which, whatever their varying opinions of his actions as a spoiler presidential candidate, tend toward cloying hagiography of his earlier career). And one consequence of its lingering chilling effect (who wants to volunteer to be the next de Toledano?) may be that no one will be willing to write another genuinely unsparing biography of Nader, at least for publication during the subject’s lifetime.

For a sampling of our posts about Nader, see Jun. 13, 2000; Feb. 22, 2004; and this set of 2000-2003 links.

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Should I even respond? She’s right that I didn’t flip burgers; I just cleaned the restrooms and shelved milk at the local supermarket for $3.35/hour, manning the registers when the manager could bear the complaints about the checkout boy who was too stupid to know the difference between nectarines and peaches when ringing up produce. My brother did fry chicken at the Church’s down the street, however. But that doesn’t make my policy arguments any more correct. Nor does it make my arguments any more right because I spent weekends as a teenager going through dumpsters with my unemployed father as we looked for discarded Sunday newspapers because of the coupon inserts in them that we could hoard and use on triple-coupon day at the local grocery, or that I took a ninety-minute ride on public transportation (Algiers bus downtown, then St. Charles Ave. streetcar) to my racially-mixed public high school, or that I turned down admissions at both Yale undergrad and Yale Law because I couldn’t afford their financial aid packages, or that I didn’t own a car until a couple of weeks before my 29th birthday (and then it was a out-of-model-year Chevy Malibu that I bought by saving points on a GM credit card that I had maxed out), or that my 1999 third-quarter bonus was a cause for celebration because it allowed me to reach zero net worth, any more than it makes Mencimer’s arguments wrong because she lives in a house twice as large as mine and assessed at over a million dollars and, as a freelancer that doesn’t employ anyone, has little chance of directly suffering the consequences of lawsuit abuse and is wealthy enough not to feel the full pain of its indirect effects on job creation or consumer prices.

I stumbled into being a reformer because I saw first-hand that the litigation system wasn’t working; that judges were making lawless rulings; that plaintiffs were bringing and winning bogus products liability suits; that there were magnet jurisdictions where meritless class actions were being brought and rubber-stamped certified by elected judges; that entrepreneurs were being crushed by litigation expenses, sometimes at the behest of hourly lawyers who oversold them on the possibilities of being a plaintiff in circumstances troublingly close to self-dealing. (That the very first case I worked on was a sudden acceleration suit did a lot to disillusion me about Ralph Nader’s gang of lawyers: while the plaintiffs’ bar was going on at great length about cruise controls whose magic defect was more likely to strike elderly and short drivers, their noise was drowning out consumer awareness of legitimate safety improvements like shift-interlock.)

Mencimer’s analysis is a simplistic one: Republicans support reform; Mencimer doesn’t like Republicans; therefore, reform is bad, to the point that she knee-jerkingly defends a lawsuit over a flag accident brought against Dixie Flag—who didn’t even manufacture the flag or flagpole.

I’m a reformer for the same reason I became a lawyer: because I care about justice and fairness, and now recognize that the long-term damage short-sighted attorneys do to our economy through externalities is sorely underaddressed.

To the extent that education does prevent accidents, think of the good Mencimer could do if she trained her sights on what lawyers have done to the public school systems (also: Nov. 14, 2003). A shame that she’s instead carrying water for the millionaires of ATLA, and fairly thoughtlessly at that. It’s all fun and games to bash the insurance companies until the innocent lose their jobs.

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Some toy manufacturers are over-labeling toys by placing choke hazard warnings on items that do not contain small parts. This could dilute the meaning of the warning labels, making them less useful to parents.

One looks forward to the day where a Ralph Nader-founded organization intervenes as amicus in a failure-to-warn lawsuit to make the argument that liability should not be found because holding a manufacturer liable will create incentives to over-label and dilute the meaning of warnings.

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(Yes, I know that one shouldn’t blame the Washington special teams coach for losing the game. But it would be actionable under the Nader regime if a lawyer can find a fan who purchased tickets after hearing coaches say they were trying to avoid senseless penalties this season.)

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