Good Intentions Don't Count

To Hell in a Bushel Basket
Building In-Roads with Safe, Organic Pavers
© 2011 Ross Williams

There’s a few community farmers markets near me where the farmers bring their wares and sell it to the gawking, gabbling masses to whom “farmers market” is a stamp of authenticity. There’s another farmers market near me which is run by a single farm, but which buys produce from the wholesaler in the city, and buys various other supplies of farm-made stuff from whoever has any to sell. I sell this guy a small supply of jelly throughout the year for just over cost, and he sells it at a 100% markup.

My brand of jelly consumes about one-half of one percent of his total shelf space for local farm-made preserves, sauces and compotes – if that. He has two 40-foot long double-shelved tables with display space on the front and back, and my section is two jelly jars wide on one shelf. But I’m the only one who has mulberry jelly and mint jelly under his tent. Yeehah! I’ve cornered a mini-market!

One-fourth of his preserves aisle is taken up with an outfit twenty or so miles up the road which spits out hundreds [perhaps thousands if they sell to other markets] of jars and bottles filled with various gunk. I can see a bald-headed grandpa wearing overalls and a long-dead John Deere cap shuffling in the back door with a bushel of pole beans in his mitts, and a blue-haired granny hollering, “Jus’ set ‘em down on the porch, Paw, the first batch is about ready fer the cellar,” as she lifts quart Masons full of pickled beans out of a steaming pot.

Or, the outfit twenty miles up the road may simply be a small storefront office complete with potted ficuses on their faux-marble floor which serves as the rural address of a wholly-owned subsidiary of a commercial produce packing plant in Cincinnati Ohio – production units per year in the 6 figures and revenue in the 7s. I don’t know. I don’t even care.

But many people do.

Many many people care. And for one of three clusters of reasons.

The first cluster belongs to the pretentious crowd of organics. Part of this group wants “organic” food for the sake of “organic” food, regardless of where it comes from, but other parts only want “organic” food that is also “small”, “local” and “family farm”. There’s a dozen or more other parts to this group as well, and keeping them and their agendas straight – let alone being able to hold a sensible conversation with any of them – is a trick. “Natural”, “fair trade”, “pasture fed” ... all corruptible terms swung like righteous battle-axes in a holy food war.

Second, there is the group of craven ninnies who want somebody else to do for them what they think is important to do. ...because they don’t want to do it themselves, mostly. “Protect me! Make me ‘safe’!” And who better to do it for them but the government. That’s what they’re there for, isn’t it? [Ans: no, not really, not in a nation built upon liberty].

The third cluster who cares whether the outfit taking up one-fourth of the shelf space in a farmers market in small town Illinois is ... well, I’ll get to them soon enough. Let’s ignore the eminently ignorable first cluster, and deal with the second cluster first.

We’ve very famously had several food recalls in the past few years. Meat and produce has been tainted with e Coli and salmonella. Possibly listeria and others as well, I have long ago forgotten. And ... so what? You can’t get any more “natural” than common-as-dirt bacteria. In fact, in the dirt is often where it’s found, thus making contamination inevitable.

Doctors have been suggesting for 30 years, and the evidence is mounting that they’ve been right, that we Americans are too clean. We sanitize everything. The smallest, trifling malady we pump ourselves full of antibiotics. Together, these lead to infections which don’t even phase a third-worlder knocking an American on his ass, and creating more and more strains of “super-bug” germs that no antibiotics can touch.

Common nasal allergies have been linked to children not being around enough dirty animals. Crohn’s disease and colitis are being linked [and treated accordingly] to a lack of a common gut worm that disappeared from most US drinking water with the advent of filtration. I personally believe that the proliferation of asthma – coinciding as it did with the invention of electronic games, rampant cable television and the corresponding lack of children’s outdoor playtime [often forced upon them by harried parents] – are also related.

[Prescient moment: the day after writing the first draft of this essay I read an online news article discussing a Yale medical school report that children under 6 months of age which get antibiotic treatments are significantly more likely to develop asthma later].

Even so, basic garden variety germs that cause the false “stomach flu” of food poisoning are everywhere; we literally cannot get away from them. And they are essentially harmless, even in hyper-sterile America. Our species hasn’t been able to get away from them for so many millions of years that we’ve grown accustomed to them. Each “tainted” food scare is remarkable not for how many get sick from eating it, but for how many do not get sick compared to the number who had been exposed.

For every 100,000 people who are exposed to more e Coli than “normal”, a few hundred will have noticeable symptoms. Of those who get symptoms, most will have an upset stomach, gas, bloating, loss of appetite. A few will actually barf or get a simple case of diarrhea. Of those who get the heaves or the trots, maybe a handful will do either to the point of dehydration. It is the extremely rare case that requires hospitalization, and the even rarer case which dies. Show me someone who dies from an e Coli infection and I’ll show you someone who is either very old or very young or already fairly ill.

...and that is what the CDC tells us every time there’s another new outbreak of e Coli-tainted asparagus.

Do the math on this. Expose 100K people to e Coli, maybe 500 will get symptoms. That’s one-half of one percent ... 0. 5%. A few dozen will barf or squirt ... 0.025%. Maybe a half dozen will need to be hospitalized and connected to an IV ... 0.0006%. Maybe 1 will die ... 0.0001%. It is estimated [mostly because few of us go to doctors with a tummy ache after eating rancid strawberries] that 50,000,000 Americans contract one form or another of food poisoning – which is now called “food-borne illness” for the PR value. That’s one out of six. 3,000 Americans die each year from food poisoning [according to recent quotes made by the Secretary of HHS] ... nearly always the very old, the very young, or those who were already ill for other reasons.

Conversely, let’s do the math on a boring, old, routine “cold and flu season” – November through April. It is estimated [for the same reasons] that 75,000,000 Americans will come down with influenza annually, nearly all in the late fall to early spring months. That’s a fourth of us – in half a year. 30,000 will die in a “normal” year – which is six months long. 0.04% of those infected will die from influenza versus 0.0001% from food poisoning.

This partly explains the jumping out its own ass the CDC did with the recent swine flu nondemic ... and to no effect besides. Americans avoided getting the swine flu shots we were being hysterically badgered to get; Americans avoided, also, getting swine flu, and the number of deaths in the US was countable on two hands. Maybe three. Even so, influenza is a fairly big killer each winter – but again, of the old, the young, or those with otherwise compromised health. “Food-borne illness”? it’s a piker, and should be treated that way.

Yet rather than wash our lettuce, cook our eggs solid and serve our beef to where it won’t still moo, we demand that the government make our food safe for us; we’re too lazy to do it ourselves. And too pampered. And too spoiled and wasteful. Better to throw away enough food to feed a small country, and which is less germy than even the sterilized food in dozens of countries I could name – some of which I’ve visited and eaten local food in – than to risk an idiot American getting a tummy ache because he’s too dim to grasp basic hygiene or follow a recipe.

As a consequence, there was our National Savior last week, signing into law yet another regulatory power-grab allowing the FDA more dictatorial control of our food supply, for the stated purpose of making food “safe” from the one-in-six chance that we’ll get food poisoning and the one in one hundred thousand chance that we die from it. The craven ninnies in our country jumped for joy.

This new law authorizing more regulatory control by the FDA is not supposed to affect the “small”, “local” “family farm” who sells directly to his customers or in small batches at farmers markets, but only those big factory farms and food mass-producers where the vast majority of these food scares come from.

“Not supposed to”.

It’s unknown if it will. Or, rather, to what degree it will. Because it will.

The craven ninnies who support this [and every other] dictatorial government regulation continually point to the law’s requirements that only those producers who produce more than ‘X’ units of farm product can be regulated by this new authority. They have to label; they have to produce scientifically-generated toxicology statements and other reports – on demand, or face fines per day for noncompliance; they have to grant inspections on demand of production facilities... et cetera.

If you’re saying “it’s about time” then you are one of the craven ninnies. If, on the other hand, you’re saying “I’ve got a bad feeling about this” then apart from seeing the Star Wars series so many times that you can quote the intuitive Jedi precognition, you’re also a realist who’s seen just a bit too much of our government in action.

How does the FDA know whether or not an individual producer – say: me with my two jelly jar-wide shelf space – is “small” enough, “local” enough, and “family farm” enough to leave alone?

They don’t. This is why one of the powers they hold is the power to demand that a suspect organization can be compelled to submit to their hearing process during the investigation into whether or not the suspect organization is properly subject to their regulation in the first place. “We get to treat you as if you are not merely regulatable, but guilty of noncompliance until you prove we should leave you alone.” In law, the burden of proof is on the accuser; in regulation, the burden of proof is on the accused. They explain this away by declaring that the agency has the authority to regulate and if you wish to claim they don’t, then you yourself are the accuser, accusing the government of overstepping its bounds ... you have to prove they overstepped their bounds; they don’t have to prove they can regulate.

I can come home from a day at work and find an FDA Summons To Appear tacked to my front door. I’ll have to hire a loyyer, a CPA [not my wife; she’s in on it. And she’s unfamiliar with the regulations involved. Insurance regulations, yes. Food and drug regulations, no], and spend several thousands of dollars preparing to prove what any color-blind jackass with a luke-warm IQ could see without trying.

In the meantime, though, the FDA may decide they wish to see the reports written by my on-staff biologists and chemists. Since these scientists don’t exist [computer science isn’t what they mean], then neither do the reports. I’m now further out of compliance with their regulation. Our processing plant is the kitchen range [Kenmore, propane, with a convection oven] with the various home canning accoutrement we’ve collected over the years, and they have the power to confiscate it, or seal my house, until the investigation is complete. And because I’m not in compliance with their regulations until they figure out if they’re even allowed to regulate me, I’m subject to [make up a number] a $5,000 daily fine until I comply.

I have perhaps $5,000 of total revenue [not income; the farm typically loses money each year] from seven years of sheep-raising and three of jelly-making. Not per year, mind you; total. Whatever the fine might be per day for failing to provide what the FDA is authorized to compel me to provide, my farm revenue won’t begin to cover it.

“Oh, but once the loyyers straighten it all out, those fines will be rescinded.”

Hahahahahahahahaha. That’s not how government regulation works.

No administrative court judge in the land is going to take back a fine levied at a time when a regulatory agency believed it was fulfilling its lawful duties. If the agency later learns that the authority was being misdirected...? then the fine is regarded as one of the tools that allowed that fact to become known and is therefore justified: either way, I must pay it. It could be in the several hundred thousand dollar range by the time the hearing takes place.

“But... but... the FDA wouldn’t just go after someone like you...!”

Probably not “just”, no, although that has happened to others. But what if my mulberry jelly starts selling at the farmers market up the road in bunches? It’s my best-selling jelly online – hey, it could happen at the market, too! What if my two jelly jars wide shelf space becomes four, then six, then ten? Over two shelves? What if the outfit twenty miles up the road discovers they aren’t supplying the market with as much product as in years past? are they being squeezed out? who are they being replaced by?

All the bald grandpa in the John Deere hat needs to do is give the FDA a little jingle and report my farm as a “suspected large-production food safety scofflaw”, and bingo, there’s the Summons To Appear on my front door. I could probably afford to fight the thing, but afterward I may well consider that the whole ordeal was too much of a hassle to be worth going through again, and the world – or at least my corner of it – will be deprived of the unique taste of mulberry jelly.

The USDA and FDA already have the authority to effectively shut down the same “small”, “local” “family farms” their rules do not allow them to regulate, and they are doing so in the name of “certified organic”, and “raw milk clubs” and in other areas of their regulatory control. They confiscate livestock, seize property, levy endless fines until the administrative judge tells the agency to stop it. The money spent to defend the farm or other outfit from misplaced regulation? non-recoverable. At which point the agency – which is in a major pissing contest with one local dairy farm in PA, I believe it is – starts it up again. “Malicious regulation” is not a crime.

Thousands of farms not subject to specific regulations have been forced to liquidate in the effort to prove to the regulators that the regulations did not apply to them. Thousands more simply grew too weary of the effort and closed after winning. Even more got preemptively frightened out of business.

Question: what’s the best way to guarantee that corporate mega-farming with on-staff legal counsel is the only type of farming allowed in the US?

Answer: regulate corporate farming practices for exaggerated and fear-mongered reasons, and put the regulatory burden of proof on the unregulated farms which get caught in the inevitable crossfire ... and keep the regulatory agency immune from reimbursement and punitive damages over misdirected use of regulatory authority.

You can find stories of farmers with bad blood twixt ‘em calling the feds on each other until one or both are bankrupt; you can find stories of corporate farms which skirt the laws calling the feds on small farms to whom the laws don’t apply, driving the small farm out of business with non-recoverable legal fees. You can find stories of federal regulators a little too big for their britches randomly and capriciously bullying their way past, through and over anyone they choose. You can find these stories relating to virtually every farming and food regulation ever invented. They don’t apply to small farms, yet small farms go out of business because of them.

Oh, I almost forgot ... the third cluster of reasons why certain people like having these laws is held by those who get to throw around the power described above: the federal regulators themselves.

Welcome to hell, folks. Thanks for paving the way.