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June 17, 2009

Comments

"BUT, it is none the less evident that if no people participated in it, there wouldn't be any corporation anymore."

Brett, there are corporations that consist of nothing more than a PO Box in the Cayman Islands. Somebody picks up the mail, but it's likely not even a direct employee of said corporation.

Commercial corporations are not equivalent to the people who work for them. It's arguable to say they are the people who own them, but that's not even true.

Wait, so the FDA and the Consumer Product Safety Commission shouldn't have the (moral) right to limit commercial speech? If you want to trust whatever corporations or people say, that's your right, and no one should be able to morally, at least, if not legally, limit what they claim?

Gary, I am tired and upset, and I didn't explain myself very clearly, but I did not say that the FDA shouldn't have the right to limit commercial speech. You said that for me; it's not what I said myself, even allowing for my haste in writing.

My claim is simple: I have a right to know what I'm buying.

I have no problem, at least in theory, with regulatory bodies helping me with the onerous task of figuring out who's telling the "truth" in labeling. I have a very big problem with regulatory bodies helping corporations use labels to hide the facts about what I'm buying. (Facts, again, like what the actual ingredients are. I have plenty of other sources of information to help me decide what ingredients, labor practices, farming practices, etc., I prefer to support with my purchases.)

Jes touches on another thing: you might not want to buy from them.

Indeed. I might not want to buy anything that has any ingredients that came from a specific company -- Monsanto, perhaps? -- for any reason I choose to indulge myself in. I should not be forced to buy things from Monsanto (that's my whole point about freedom) because they have succeeded in preventing me from knowing what I'm buying.

"You can't silence a corporation without silencing actual people."

Sorry, I see this is going to be a serial post...

Yes, you can silence corporations without silencing actual people. You can put firm limits on what corporations can say, print, or broadcast without limiting in any way what the people who work for the corporation or own the corporation can say, print, or broadcast.

I'm talking about *content*. The issue of removing access to the channel is an interesting one, and one that I need to think about and do some homework on.

"Can I take it that I've answered your question? Or no?"

Yes, it was an excellent reply, and it's given me a starting point to do some reading.

Thanks for that, sorry to have not acknowledged it earlier.

"The real issue is the power of money to overwhelm the power of one person, one vote."

That is certainly one of the issues that concerns me, but not the only one.

A broader, or at least another, issue is the ability of people -- natural human beings -- to control the activities of corporations.

Janie's example is relevant there, I could give you 100 others.

"My claim is simple: I have a right to know what I'm buying."

JanieM, since you've said you're tired and upset, the better part of discretion suggests I should drop discussing this.

Please understand that I'm not trying to be annoying, though, if I continue just this much. I really should stop there, I know. I really really really apologize if it seems I'm somehow arguing for the sake of being annoying. That's not at all what I'm trying to do. But there's a general issue here that I'm having trouble letting go of. Please forgive me? Or if you'd rather not, please don't read further in this comment?

If you'd rather just skip this comment of mine about the principles of the FDA/FTC, I'll understand completely, that's just fine, and repeat, I really really really don't want to just annoy you. Honest, I don't. I don't want to annoy you at all. I'm just, well, kinda stuck for the moment on the points I'm going to make. You needn't continue and read them. Please don't if you'll be annoyed.

"My claim is simple: I have a right to know what I'm buying."

What's tricky here is that companies can make all sorts of claims that are implicitly misleading. The FDA (and FTC) require[s] active proof that claims are not misleading. (Incredibly long list of topics here.)

There isn't any reason for a company to claim that something isn't in their product other than to imply that there's something bad about that ingredient, or process. A general principle, and one specifically enforced all over the place by both the FDA and the FTC is that there be "substantiation that the claim is truthful." See here for some discussion of how this works, if interested. It's very specific about implicit claims.

This is the point I'm stuck on.

Although the following is regarding dietary supplements, it's a standard that generally comes up, as I understand it (and IANAL) with the FDA and FTC:

[...] First, manufacturers are expected to understand the meaning of each claim and to identify express and implied claims. If a claim can have more than one reasonable interpretation, FDA recommends that each interpretation be substantiated. Apart from the individual claims, FDA believes that the overall message of the statements taken together must also be substantiated.
My problem here is that I'm not sure how to make an exception that includes the one you want here, without surrendering that principle. The FDA and FTC are all about objectively substantiated scientific claims. They most specifically do not function on the principle of leaving it up to people to decide on the science themselves. They most specifically do not function on the principle of letting companies make implicit claims for which there is no proof. They're not about leaving it up to people to decide for themselves what is or isn't harmful. If they worked under those principles, they'd be gutted.

"That leaves it up to me to decide who I want to believe about whether GBH is harmful to people."

But the entire premise of the FDA is to not leave it up to people to decide who to believe, but to regulate claims and wording.

"Indeed. I might not want to buy anything that has any ingredients that came from a specific company -- Monsanto, perhaps? -- for any reason I choose to indulge myself in."

I'm not following how that's at issue; no one is asserting a right for a company to not identify itself, or to hide that it is the manufacturer or distributor of a product. The issue is, as the FDA sees it, whether there's an implicit claim about rBST. This is completely standard SOP for the FDA.

"I should not be forced to buy things from Monsanto"

But that's not at issue; no one is forcing you to buy anything from Monsanto.

"Oakhurst's label was making no 'claims' about GBH one way or another."

According to the general principles of our consumer protection laws, they are. I'm not trying to be argumentative here, but that's the way the law is set up, as I understand it.

"Maybe I didn't make it clear: Oakhurst was not saying that GBH was bad for people. But they implicitly are, or what's the point of the label?

The summary here says:

Oakhurst Dairy in Maine labels its milk: "Our farmer's pledge: no artificial hormones." Monsanto's lawsuit says the label implies Oakhurst's milk is somehow better than milk from cows treated with rBST
I'm not sure how this is untrue. Is this actually at issue?

"They were just saying that there was none given to the cows they got their milk from."

Yes, and that seems to be an almost indisputably implicit claim that rBST is bad for some reason or another.

There seems to be a quite fair claim that rBST is bad for cows. Unfortunately, our laws don't currently, I gather, make it illegal to willfully increase udder infection, or cow infertility, or lameness in cows. Maybe the laws should be changed in that regard. That's an entirely fair argument.

But the laws do say that manufacturers have to "identify express and implied claims" and that claims, implied or otherwise, be "be substantiated" scientifically. And I'm trying to find some way of not sounding argumentative if I note that, so far as my completely unexpert looking into it says, there is no such substantiation of human harm as regards rBST.

Which goes back to what I said earlier: I'm not sure how to make an exception here that includes the one you want, without surrendering that general principle. (Other than changing the laws regarding animal cruelty, that is, rather than consumer product safety, or safety in food.)

If you'd rather not continue this discussion, of course, that's fine, and I apologize if I'm being insensitive by continuing with said discussion given that you've already said you're tired and upset. I'm happy to leave it at this, if that's for the best. I apologize if any of my wording has been offensive.

"But the entire premise of the FDA is to not leave it up to people to decide who to believe, but to regulate claims and wording."

As well as to regulate actual harm in manufacturing, of course; I shouldn't have left that out.

Gary,

It's not clear to me, though, that it really *is* an implied claim that GBH is bad for people. The point of label is this: there are lots of people who would rather buy GBH-free milk. Some of them want to do this because they don't like what GBH does to cows; some of them because they think GBH is bad for them; some of them because they have funny ideas about "natural" and "artificial" substances. But their reasons are irrelevant: there's a market for GBH-free milk, and the only way for Oakhurst to tap that market is to label their milk.

Here's a real case where there is an implied claim: a few years ago, one of the battery companies--I forget which--started labeling their batteries as mercury-free. Perfectly true, of course; but the implied claim that other brands weren't mercury-free was false. Ordinary batteries just don't contain mercury, no matter who makes them. But there's no parallel to the milk case, since some brands of milk *do* come from GBH-dosed cows.

"There isn't any reason for a company to claim that something isn't in their product other than to imply that there's something bad about that ingredient, or process."

It should be enough that their customers are interested in knowing whether the product contains it, or not.

I drink Harpoon brand hard cider. I prefer it because it's made from local apples. It says "made from local apples" right there on the label. Nothing wrong with apples from other places, I just prefer local apples.

Why do they need to prove that there is anything better about local apples? The fact that they are local is what is of interest to me. I like to spend my money locally when I can.

Some people prefer to buy free-range chickens. It would take a fair amount of work to prove that free-range chicken meat was, in and of itself, better for you than meat from chickens raised in pens.

Folks who prefer free-range chickens might just prefer it because they believed the chickens were somewhat less miserable before they were butchered.

Monsanto wanted to suppress the BGH information because it would likely hit their bottom line. If people avoided buying milk that contained BGH, farmers would stop using it. The interests of consumers came into it not at all.

Gary, I appreciate your disclaimer and your willingness to respond to what I said about being tired and upset. I will say in return that I have done little more than skim your long post quickly, because 1) I simply don't have the mental energy today; and 2) I'm not sure I ever have the mental energy to meet you at your own level and style of debate. However, if/when I get to a more peaceful place and have a little time, I'll see if I can come up with a more careful reading/analysis.

But even on a quick reading there are a few things I can say.

-- Thanks to jdkbrown and russell for their posts. Those are points I had jotted down in my notes before I left the computer for a couple of hours, so I'm glad they got made, and with more brevity and clarity than I would have brought to the enterprise.

-- In the context of your discussion of how the FDA operates, you wrote, "I'm not sure how to make an exception here that includes the one you want, without surrendering that general principle." I am well aware that the existing system is not set up to give me what I want. That's why I wrote "morally, if not legally" in the first place. I said that I wanted something simple; I didn't say it was easy or possible.

-- You also wrote: "But that's not at issue; no one is forcing you to buy anything from Monsanto." I disagree, and this gets to the heart of russell's earlier point about corporations, persons, and democracy. Or freedom, which was my framing. Here is my thought train:

1) I have to eat.

2) I am not going to raise all my own food, and even if I wanted to try, I would have to start by acquiring seed, possibly fertilizer, chicks, whatever. Either way, I have to buy things: either my food, or the means of producing my food.

Shorter #2: in order to eat, I have to buy things.

3) If I am prevented from knowing what I'm buying, then yes, I am in effect forced to buy from Monsanto, because I have no way of ascertaining whether the food I buy contains stuff produced by Monsanto or not. As jdkbrown and russell said, there are any number of reasons why I might not want to buy specific foods or ingredients, or why I might not want to buy from specific companies (American Airlines comes to mind, in a different context). But if the FDA, at Monsanto's urging, says I can't know what's in the food, then I don't see how that's different from forcing me to buy from Monsanto. It might be a crap shoot as to whether I happen on any given trip to the grocery store to buy something that has a Monsanto (or more generally GE) ingredient in it, but if I can't know what the ingredients are, then I have no choice but to assume that some of what I buy is likely to include GE ingredients, and some of those might be from Monsanto.

If you are more comfortable with a reverse formulation, then under the system you're describing -- if Monsanto succeeds (in its 2007 revived attempt?) to get the FDA to forbid anyone from saying whether BGH was given to their cows -- Monsanto is being allowed to force its products into the market whether people want them or not. Go back to jdkbrown and russell for an analysis of why that's objectionable.

I will confess that I am far lazier about this issue in general than a lot of people I know. But the principle still holds. Russell's general point about corporations and democracy, money and persons, is to me a central issue of our lives. He said he could give 100 other examples besides Monsanto and Oakhurst; I will just refer (no cites! but I could go to my file cabinet and quote a pile of examples) to our laughably dubbed "Privacy Law" for the next one that comes to mind after GE foods.

With that, I really have to stop. I'm trying to get ready to leave on a 3 week work/family trip, and ... well, maybe we can continue the discussion eventually.

"It should be enough that their customers are interested in knowing whether the product contains it, or not."

But that's not how the law works.

People buy into all sorts of false and fraudulent and misleading claims. That's why we have the FDA and FTC regulate which claims, explicit or implicit are and aren't any of those, and why it's illegal to make such claims. We don't, as a matter of principle or law, leave it up to people to figure it out for themselves. The whole point of the FDA and the FTC is to not leave it to people to figure it out for themselves.

There's no implicit claim in saying your cider is made from local apples that local apples are healthier than apples from somewhere else. There is an implicit claim that products without rBST are healthier for you. Such health claims are what FDA (on labels), and what the FTC in advertising, regulate.

[...] According to Michelle Rusk, from FTC's division of advertising practices, the agency's main goal is to stop unfair and deceptive practices in commerce.

[...]

"When we look at an advertising case, we look at how claims are being conveyed to the consumer. It is very consumer-focused; we look at what consumers will take away, not what you intend to say," said Rusk.

What consumers take away from advertising or labels that say a product contains no rBST is that rBST is unhealthy. The way the FDA and FTC evaluate this is literally Standard Operating Procedure. I don't know of any reason to think that this case is unusual in any way. (Obviously I'm perfectly willing to be corrected about this if someone knows more than I do about it.)

"Why do they need to prove that there is anything better about local apples?"

That's simple to answer since of course they don't. This isn't an abstract question.

This isn't about Monsanto. It's about whether or not you want the FTC and FDA to quit regulating "express and implied claims." If folks want to argue that, fine -- Brett would certainly agree. But you can't make an argument that it's fine for the FDA and FTC to regulate these claims except when we like them. That's all I'm saying. You have to stand or fall on whether we want these two agencies to be regulating such claims, or not. Or at least one has to make some kind of argument for a principle.

How it works:

[...] FDA evaluates all claims or statements made on product labels, packaging, or accompanying material. As well as direct claims, FDA also evaluates implied statements or images.
"Some people prefer to buy free-range chickens."

And that's fine with the FTC and the FDA, because there are no claims being made about specific ingredients or process that can't be substantiated. Ditto local apples or "local" anything.

"The interests of consumers came into it not at all."

But Russell, you can't argue backwards from opinion about Monsanto to end up justifying whether or not the FDA should or shouldn't be enforcing implicit claims about health benefits. You have to start (and end) with the principle, whatever it is.

"But you can't make an argument that it's fine for the FDA and FTC to regulate these claims except when we like them."

Sorry: obviously this should be "dislike" them.

"Unions too, for that matter, but I'll pick on corporations because I don't think unions are given the same status of personhood or the same Constitutional protections that corporations, commercial or otherwise, enjoy."

No this is wrong. Unions are given EXACTLY the same status of personhood that corporations are. They have the same constitutional protections as corporations for exactly the same reasons--they have the legal fiction of corporate personhood.

I'm really confused about why Monsanto is catching the flack on the milk thing. They are requesting that the FDA properly enforce its rules. If you are worried about free speech being infringed upon you should be attacking the FDA, which is the governmental agency that is going to restrict the speech.

And you're making the classic libertarian complaint about why the government shouldn't have certain powers--because they always get used politically.

"3) If I am prevented from knowing what I'm buying, then yes, I am in effect forced to buy from Monsanto, because I have no way of ascertaining whether the food I buy contains stuff produced by Monsanto or not."

But this seems to be an argument not about whether or not a particular process or ingredient is used, but who all the manufacturers of every ingredient are. Which is, again, something we could pass a law requiring, but the practical problem would seem to be that it could require product labels to be several yards long. (That's not an argument in principle against such a requirement, of course.) Either way, it seems to be a different argument.

(Circling around, it would also seem to arguably again bring up Russell's desired elimination of corporate personhood, but then we'd seem to have to be required to include the name of every natural person involved in the manufacture of given food or drugs, if what's actually at issue is who is involved in production; although maybe the elimination of corporate personhood would be sufficient.)

"...then I have no choice but to assume that some of what I buy is likely to include GE ingredients...."

This may be the essential issue, and I kinda hate to go down this road, but all foods that aren't found in the wild have been genetically engineered by humans; what people tend to mean by "genetically engineered" is that they're suspicious that the specific method might be somehow dangerous. But that's where the argument goes back to the FDA and FTC requiring substantiation of explicit and implicit health claims.

"I'm trying to get ready to leave on a 3 week work/family trip...."

I hope you have a great trip, and I really really hope I haven't done anything towards starting you off in a cranky mood! (Hey, I apparently have to infuriate everyone at one point or another. It's the law, you know.)

"And you're making the classic libertarian complaint about why the government shouldn't have certain powers--because they always get used politically."

I've been kind of trying to avoid making that point, because it doesn't seem quite fair to me to make an argument to liberals/leftists that smacks of "your argument has libertarian cooties!"

:-)

(And more seriously, I'm trying hard not to write anything that can be further thought of as putting words in anyone else's comment box.)

But, really, Russell and JanieM do seem to be staking out a classic libertarian position here against the bog standard liberal governmental position on regulation of commercial speech. Which is that it's a good idea when claims can't be objectively substantiated.

"If you are worried about free speech being infringed upon you should be attacking the FDA, which is the governmental agency that is going to restrict the speech."

FDA as regards product labels, FTC as regards product advertisements.

I kinda hate to go down this road, but all foods that aren't found in the wild have been genetically engineered by humans; what people tend to mean by "genetically engineered" is that they're suspicious that the specific method might be somehow dangerous.

Gary, sorry, this is just nonsense, and you are again putting words in my (?) mouth. That is not what I mean by genetic engineering; what I mean by genetic engineering is gene-splicing.

The kind of long-term breeding and hybridization of animals and plants that humans have been doing for several thousand years is not is not identical to gene-splicing. To say it is, you have to ignore side effects, context, pacing, the amount of knowledge we can have ahead of time about possible consequences, the scope of the unknown possible consequences, etc. Here are some thoughts on that subject. You might as well say that a forest path is the same thing as a 6-lane highway. Yeah, they both get you somewhere. That's about where the resemblance ends.

*****

I have a strong libertarian streak, have never denied it, and don't consider it either something to be ashamed of or something entirely incompatible with having a strong "liberal" streak as well. But heaven forbid we should get into another argument about labeling. ;)

Without in any way suggesting that missing the forest for the trees is either better or worse than missing the trees for the forest, I feel that there's a very strong element of either forest/trees or ships passing in the night in this discussion.

Unusual for a blog debate, but there it is. ;)

Anyhow, I'm out of it for now.

Promise.

Here are some thoughts on that subject.

Genetic engineering is nothing new. People have been messing with genes since the first farmers selected the biggest wild grass seeds and began to breed what we now call grains.
Quite right. The questions are over specifics of techniques, not over the concept of "genetic engineering."

"What scares me most is that the technologies are being developed by private corporations, with little public knowledge and no public control...."

This isn't so, however; they're, again, regulated by the FDA.

The key words here are "What scares me most." Yes, lots of people find the concept of genetic engineering scary.

I prefer to rely on peer-reviewed studies. I'm entirely interested in any research that suggests any given technique might have dangers; I'm not so interested in generalized fears by people who aren't qualified in the field of genetics. People have the right to be scared of whatever they want, of course. Generalized alarmism isn't an argument, though.

Gary,

Did all those foodstuffs advertising themselves as Atkins friendly imply anything about the efficacy of the Atkins diet? What about if they just said "low carbs!"? Did they imply that carbs were unhealthy? Could rival diet plans, the sugar industry, etc. have sued to have those claims removed from the packaging?

All this really doesn't have anything to do with selective breeding vs. genetic splicing, the health effects of GBH, or the (ir)rationality of some people's choices about what to eat. It's about giving consumers information they want. And, as I've suggested, I simply don't see how the GBH case runs afoul of the law as you've described it.

"Did all those foodstuffs advertising themselves as Atkins friendly imply anything about the efficacy of the Atkins diet?"

Yes. And lots of studies (though by no means all) supported the claims. The FDA doesn't have a problem with substantiated claims. Specific products either did or did not make unsubstantiated claims, of course. Passing the FDA language tests is why you effectively have to have a lawyer expert in FDA regulation pass on the language on your labels. It tends to be tricky and technical.

"And, as I've suggested, I simply don't see how the GBH case runs afoul of the law as you've described it."

I'm unclear how either of us, not being employed by the FDA as legal experts on their guidelines, are qualified to make such judgments. I certainly don't make any such claims that my personal opinions would be relevant. I merely note that the FDA issues about a bazillion such warnings and limitations as SOP.

Here's one, for example, warning a company that they're in violation of FDA regulations because:

[...] The product is misbranded within the meaning of section 403(q) (1) of the Act because the product label includes the nutrition claim “SODIUM FREE,” but fails to bear nutrition labeling as required by 21 CFR 101.9 and is not exempt from this requirement.
Etc. I don't see what your or my personal opinion has to do with it. It's the FDA's opinion that matters. At least, I don't see what my opinion has to do with it; if you've had a practice in food and drug law for some years, unlike me, your opinion might certainly be relevant, and I apologize for implying otherwise if that's the case. In any case, however expert either of our legal opinions might be, I definitely can't see where, neither of us working for the FDA, they matter.

"There isn't any reason for a company to claim that something isn't in their product other than to imply that there's something bad about that ingredient, or process."

This is actually not so. For example:

"There seems to be a quite fair claim that rBST is bad for cows."

That's enough for lots of people. Some people buy free-range chickens because it's better for the chickens. Some people don't buy crate veal because it's crappy for the calf.

Some people would prefer milk without BGH because it's better for the cow.

Other reasons:

Some people would buy milk without BGH because they simply don't want their food f**ked with, whether it's provably better or worse. That's just what they want.

Some people would buy milk without BGH because they think Monsanto is an evil, predatory organization, and they don't want to give them their money.

Some people like to buy fair trade coffee, tea, and chocolate. Those goods are not necessarily any better or worse than non-fair-traded stuff, they just *prefer to buy fair traded stuff*. Doesn't matter if it's a load of hooey. That's what they prefer.

So I think the fact that Overbrook made no claim about why non-BGH milk was better is quite relevant. Monsanto just had enough money to beat them down, so they took the settlement.

"No this is wrong. Unions are given EXACTLY the same status of personhood that corporations are."

My bad. In that case, everything I've said about corporations applies to unions as well.

Look, here is my point of view.

Corporations are not people. They aren't their owners, they aren't their employees, they aren't their customers. They're not people. Commercial corporations are a distinct legal entity from all of the above. They exist, in fact, to be a distinct legal entity from all of the above.

The rights guaranteed in the Bill of Rights *were not intended* to be guaranteed to corporations. In fact, at the time the Constitution and Bill of Rights were written, many if not most of the founders were openly hostile to the corporations of the time. Corporations gained the status of constitutionally protected "persons" after suing for it, repeatedly, for decades, and after a concerted campaign, also extending over many years, to put politicians and judges sympathetic to their interests in office.

Commercial corporations accumulate enormous wealth. That, for better or worse, is generally their purpose. They bring that wealth to bear on the political and legal processes and institutions of this country, and they do so not in the general public interest, but in order to increase their own wealth.

It distorts the political and legal function of the nation. It's profoundly undemocratic. It undermines the sovereignty of the natural human citizenry, *who are intended under our constitution to be sovereign*.

It would probably take 50 to 100 years of focussed, consistent effort to reverse the body of law and court decisions that have established corporate personhood. I don't expect to see it in my lifetime, or even at all. There's too much money on the table.

But it is, IMO, the major force driving the United States from a republic to something like an oligarchy, if not a kleptocracy. Which is to say, a banana republic.

Commercial corporations, unions, industry groups -- any entity that is not specifically organized by natural humans for the express purpose of engaging in political speech and advocacy -- *do not* deserve protection under the Constitution.

The freedom of the press issue is an interesting one, because the actual means of publishing and broadcast are almost exclusively owned by corporations. My guess is that we could elaborate a legal structure that would ensure access to the means of publishing and broadcast to individual humans, if we wanted to.

jdkbrown: All this really doesn't have anything to do with selective breeding vs. genetic splicing, the health effects of GBH, or the (ir)rationality of some people's choices about what to eat. It's about giving consumers information they want.

Exactly. It is a mystery to me why other consumers so strongly object to that - though not mysterious at all that the corporations whose products are being rejected when consumers are given the information they want, are furious and prefer consumers to be kept ignorant.

Other than that, what Russell said.

This discussion is interesting, and I have a perhaps silly question, if the suit was Monsanto vs Oakhurst, why are FDA regulations an issue? If it were a clear cut case of Oakhurst violating FDA regs, why did Monsanto first try to bully the Maine Department of Agriculture, then the Oakhurst Dairy in 2003 and only last file a complaint with the FDA in 2007?

Interestingly, a Vermont labeling law was struck down because it required all dairies to reveal if they used hormones to increase milk production, which was felt to be a violation of the 1st amendment. But now the argument is that Oakhurst cannot say that it gets its milk from cows not injected with Prosilac.

Any genetic change, independent of means (breeding or splicing, natural or human-induced) can have positive and negative side effects.
I think there should be a gliding scale between forbidden, allowed and mandatory labels. There can be absurdities on every level (most famous the mandatory 'may contain nuts' even on packages that are clearly labeled as 'Nuts').
As for the Monsanto out-of-court, that could be an own goal. A label saying 'there is no proof that X is harmful' would ring alarm bells with many people (reverse psychology, 'denial as proof').

" The FDA doesn't have a problem with substantiated claims."

Ah, not precisely true. Actually, in the case of food supplements, it has been almost entirely not true, they had to be taken to court to stop their practice of barring scientifically substantiated health claims. See http://lw.bna.com/lw/19990202/985043.htm>Pearson v. Shalala

The FDA was so adamant about their authority to bar truthful claims that might be misleading, they had to be dragged back into court again, and again lost, on the basis of the 1st amendment.

It's horrible to think how many spinal bifida cases happened, while the FDA was fighting to keep the public ignorant of the scientifically substantiated fact that folic acid supplements would almost entirely prevent this defect.

spina bifida

"Interestingly, a Vermont labeling law was struck down because it required all dairies to reveal if they used hormones to increase milk production, which was felt to be a violation of the 1st amendment."

From the decision:

"The majority wrote (p. 6) "Because the statute at issue requires appellants to make an involuntary statement whenever they offer their products for sale, we find that the statute causes the dairy manufacturers irreparable harm... The wrong done by the labeling law to the dairy manufacturers' constitutional right not to speak is a serious one that was not given proper weight by the district court." (p. 9) "Because the statute at hand unquestionably implicates the dairy manufacturers' speech rights, we reject the district court's conclusion that the disclosure compelled by [the Vermont statute] is not a 'loss of First Amendment freedoms,'""

Bolds mine.

You can't pass a law requiring dairy companies to disclose conditions under which the milk was produced, because it would violate the dairy companies' 1st Amendment right to not speak.

What's next? FDA inspectors not allowed to inspect food production facilities because it violates their 4th Amendment rights to be free from unreasonable searches?

Who's the boss here? Whose interests are paramount?

"There isn't any reason for a company to claim that something isn't in their product other than to imply that there's something bad about that ingredient, or process."

So the gluten-free section at my local supermarket implies in its entirety that there's something objectively bad about gluten? Interesting.

And I guess all the lactose-free milk in the dairy section is REALLY in trouble, implying as they are that there is something objectively bad about lactose.

Gary,

I'm a bit lost. You started out--at least it so it seemed to me--contending that labeling milk as GBH-free made a specific implied claim. I argued that it didn't. (And Russell and Phil have now jumped in with several more relevant examples.)

I'm all for the FDA/FTC being able to regulate implied speech; it can be just as easy, and is often more effective, to lie with implicatures than it is with asserted content. What's relevant here is that there is no such implicature as Monsanto (and you) are claiming. And you don't have to be an FDA worker or a lawyer versed in the relevant regulations to figure it out.

I'm all against it: I don't see any "except for commercial speech" clause in the 1st amendment. The regulation we're talking about is prior restraint, and not even justified by the speech being genuinely fraudulent.

Basically, if it's true, you should be able to say it, and the government should go pound sand.

"So the gluten-free section at my local supermarket implies in its entirety that there's something objectively bad about gluten? Interesting."

Phil, gluten is objectively bad for some people. This is not a secret. Similarly, a lot of people are lactose-intolerant. These are substantiated facts.

"Phil, gluten is objectively bad for some people."

People with celiac disease.

Yes, Gary, those ingredients are bad for some people, which is an entirely different thing from There isn't any reason for a company to claim that something isn't in their product other than to imply that there's something bad about that ingredient, or process.

There is, apparently, another reason that companies might claim that something isn't in their product: To inform people who have an allergy to that ingredient, even if the ingredient itself is generally harmless. So now we've established that there are multiple reasons, and not just one reason, to claim that your product does not contain a certain ingredient.

"This portion of A Prairie Home Companion brought to you with the best wishes of Old Folks at Home Cottage Cheese ... the name you've gradually come to trust since 1939.... Old Folks at Home Cottage Cheese — the only cottage cheese that says right on the label: contains no arsenic and no formaldehyde. Do other brands make that same promise? Old Folks at Home does. Creamy goodness, a fair price, and no arsenic or formaldehyde. That's Old Folks at Home."

I know a similar one about kosher cooking oil totally free of nitrogylcerine ;-)
Seriously, a claim of "free of X" is imo legitimate, if there is a real (or publicly perceived) possibility that X could indeed be part of the product. It becomes questionable, if that is not the case.
The above mentioned case of "mercury free" batteries falls clearly into the former category because there are common types of battery that do contain mercury while others do not.
The quoted Cottage Cheese ad clearly implies that other brands do contain HCHO and As (assuming that neither is healthy). If there had been an actual scandal with poisoned/polluted cheese, the ad could be legitimate (provided the claim made is true and there is indeed no As or HCHO in it*) otherwise it is at least borderline, if not impermissible as smear by implication.

*and that this is indeed the only brand putting the claim on the label ;-)

While I am at it, if "free of X" potentially violates law, why is it allowed to label certain products as kosher or halal? That also implies that certain things haven't been done* with the product without it (usually) having a physically/chemically detectable effect on the finished item. If we followed the Monsanto logic then these lables should be illegal too because it discriminates against producers not following kosher/halal procedures (Jews and Muslims are a non-negligible market segment I presume).

*an extreme case is that the oil catalysts for fat hardening are stored in must be provably not pig-derived (or ever stored in containers used for lard etc.), although it does not come into direct contact with the food product.

There's a famous advertisement which we discussed in econ class years ago: Canned salmon comes in two colors, pink and white. The pink had been more popular, until a company canning the white salmon hit on the following slogan: "Doesn't turn pink in the can!"

Sales of pink salmon, so I was told, plummeted.

The ad was, however, perfectly true, and at that time it apparently didn't enter anyone's mind that the government could prohibit you from saying something that was TRUE.

I don't see why it does now. There is, as I remarked above, no "commercial speech" exception to the 1st amendment. At least, you won't find it in the Bill of Rights itself, even if the courts have invented one. And 'misleading' is such a vague concept next to truth.

You REALLY want a "the government thinks it's misleading" exception to the 1st amendment's protections? I don't. It frightens me a hell of a lot more than being told that salmon doesn't turn pink in the can.

Actually, I think "misleading" is a reasonably straight forward concept if some common sense is applied. As a consumer I simply want to know what's in the product I'm buying, where the stuff comes from and some basic info regarding production - this demand shouldn't be all that hard to satisfy.

The problem is, the government will use a 'common sense' decision that true information is misleading, as a basis to prevent you from getting that information. They've done it before, when they were fighting to keep pregnant women from knowing that folic acid could prevent birth defects.

I don't like appeals to common sense where civil rights are concerned. If ever there was a place for a bright line rule, such as "is it true?", that's it.

Brett: The problem is, the government will use a 'common sense' decision that true information is misleading, as a basis to prevent you from getting that information.

Odd how Brett always comes back to "The government is BAAAAAAAAAAAAAAAAD" even in a discussion thread where there are actual examples of the government taking the position that true information must be made available to individuals, while corporations take the "common sense" position that small enterprise shouldn't be allowed to specify in what ways their product is different from the big corp's product, in case consumers opt to buy from the small enterprise as a direct result...

So in the EU, there is a very specific example of government protecting the right of individual consumers to know whether or not a product contains (for example) GM soya, or from where a supermarket bought those strawberries in December, against the power of a corporation which has succeeded, in the US, in ensuring that you are not allowed to know these details. (With the result that the EU doesn't buy soya from the US any more, because while not all US soya is GM, Monsanto succeeded in ensuring that no buyer can know whether soya sourced to the US is GM or not-GM.)

You can have an intelligent argument about whether or not it's appropriate for food products to have that level of detail in the labels, or if GM matters, or whatever... but Brett doesn't want to have that argument, he just wants to maintain that GOVERNMENT IS BAD.

Even, apparently, when government is taking a position that Brett has himself, earlier in the thread, asserted...

Interestingly one of the first government enforced product labels ([UK] Merchandise Marks Act 1887) had the intention of a 'do not buy this' message. It was the "Made in Germany". After some hiatus that truly backfired :-).

"Odd how Brett always comes back to "The government is BAAAAAAAAAAAAAAAAD" even in a discussion thread where there are actual examples of the government taking the position that true information must be made available to individuals, while corporations take the "common sense" position that small enterprise shouldn't be allowed to specify in what ways their product is different from the big corp's product, in case consumers opt to buy from the small enterprise as a direct result... "

Jesurgislac, you're misreading him. He is taking the opposite of the position you think he is taking.

They've done it before, when they were fighting to keep pregnant women from knowing that folic acid could prevent birth defects.

The FDA, following on the Public Health Service's 1992 recommendation (itself building on 1991 work by the CDC), pushed for folic acid food fortification in their 1993 draft of a final rule. Also in 1993, the American College of Obstetricians and Gynecologists were recommending supplementation above and beyond proposed fortification levels for pregnant women with a previous neural tube defect pregnancy. So yes, if a non-pregnant woman's sole source of health information were a Puritan's Pride catalog, and she weren't eating fortified grain products or other folate-rich foods, and her gynecologist weren't providing her with the information, then there would be a problem. Though a pregnant woman would still probably want a level higher that that asserted in the lawsuit, especially since Pearson opposes food supply fortification. Still, at least now women can see "this level of folic acid good" in their supplement catalog, along with similarly-asterisked claims about aphrodisiacs, prostate treatments, and homeopathy. And if anencephaly occurs regardless, Mr. Bellmore fully supports a woman's right to terminate her pregnancy no matter what state she's living in. Because he's such a champion of reproductive health against onerous government regulation.

(For an alternative self-interested view from inside, the FDA historian speaks about the kerfuffle between various research organizations.)

Regardless, it would be best if supplement makers didn't even have to clear the bar of asterisked disclaimers and "authoritative statements" allowed by the 1994 and 1997 modifications to the NLEA. Like a game of Russian roulette with five bullets, they'd sometimes get something right, and the market would eventually punish those who didn't. Now if you'll excuse me, it's time for my morning glass of colloidal silver.

NB: Assertions about the need to take immediate action before everyone is convinced about a scientific claim obviously do not apply to global warming, where we must not do anything unless there is 100% agreement.

Take immediate action all you like, with your own resources, I'd only object if you were proposing to deploy somebody else's resources. I'm opposed to requiring individuals to wait for the government to agree that there's scientific consensus, before making their own choices.

I think it's stupid to object to cows being given Bovine Growth Hormone, but people are entitled to stupid preferences, and the government shouldn't deny them the information to act on those preferences just because somebody thinks they're stupid.

Hartmut: Interestingly one of the first government enforced product labels ([UK] Merchandise Marks Act 1887) had the intention of a 'do not buy this' message. It was the "Made in Germany". After some hiatus that truly backfired :-).

I love the meiosis of "after some hiatus", given that during that hiatus the Royal Family had to change their product label from "Made in Germany" to "Made in South-East England" in order to avoid giving a "do not buy this" message....

:D

I'm opposed to requiring individuals to wait for the government to agree that there's scientific consensus, before making their own choices.

Religiously-motivated government requirements justified by questionable opinion polling, however, are fine and dandy when it comes to other reproductive health choices women might face. Gotcha.

Jes, I only object to post-viability abortions, for purely secular reasons. I guess you've got this atheist confused with somebody else.

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