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Marion Nestle, The Perishable Pundit And A Lawyer Named Stearns; We Need Civil Discourse To Advance Effective Public Policy

Jim Prevor’s Perishable Pundit, June 7, 2010

Marion Nestle isn’t necessarily the food industry’s favorite writer. A professor, author and blogger, she has been proclaimed by some activists to be “one of the country’s most hysterical anti-food-industry fanatics”. Well, as Daniel Patrick Moynihan once wrote, “Everyone is entitled to their own opinions, but not their own facts.”

We have read Marion’s work and think that the activists’ polemics both aren’t true and, further, don’t contribute to the creation of good public policy. We don’t agree with every word she has written, but she is smart, knowledgeable and certainly interested in making a better world. So we have proudly published letters from her and discussed her opinions in pieces such as these:

Pundit’s Mailbag — Plenty of FDA Incompetence to Go Around But The Problem Is A Matter Of Politics, Says Marion Nestle, Esteemed Food Policy Professor

Will Our World Be Dominated By Junk Science And Sloppy Thinking?

So Much For Regulation: SEC Misses A Big One… Why Think FDA Will Do Better?

Importer Of Recalled Basil Sheds More Light On FDA Handling

We’ve also been pleased to play a small role in helping to educate her own readership and have been honored that she has occasionally had cause to quote something we wrote or link to the Perishable Pundit.

The other day, we were tickled pink that Marion Nestle decided to include a mention of the piece we recently wrote about food safety for a Washington, DC-based scholarly journal, The New Atlantis, and which we had mentioned here at the Pundit in a piece titled,, Food Safety Solutions: Look At Legal System, Industry Incentives And Effective Government.

Marion Nestle wrote a piece that she ran both on her blog, known as Food Politics, and at The Atlantic’s web site. The post was titled, simply, Thinking About Food Safety. After presenting one point of view from Denis Stearns, a founding partner and a principal at Marler Clark, a Seattle-based law firm that focuses on representing plaintiffs in foodborne illness cases, Marion Nestle elected to reference our work:

In contrast, Jim Prevor, who writes as the Perishable Pundit, writes in the online New Atlantis: A Journal of Science and Technology that fixing the FDA will do little to address food safety problems. Instead, he recommends:

• Fix the liability system so retailers as well as producers are liable and make it legal negligence, not strict liability.

• Root out bribery and corruption in food safety certification.

• Invest in state testing laboratories.

• Invest in food safety research.

• Revitalize the Agricultural Extension Service.

• Educate consumers.

I’m not sure about the legal liability issues, but most of the rest are really good ideas and would help a lot.

The blog allows for comments and one came from a Harry Hamil. The comment doesn’t mention it, but Harry Hamil owns the Black Mountain Farmers Market in Black Mountain, NC, and often speaks out on behalf of small growers. Here is what he wrote as a comment on Marion Nestle’s blog:

Shame on you, Dr. Nestle, for your totally unsubstantiated statement: “It’s a national scandal that the Senate is still sitting on that bill.” As you and the Make Our Food Safe coalition well know, a committee made up of staff from Senators Durbin, Burr, Harkin, Enzi, Dodd and Gregg continues to work hard gathering additional information and considering it in an effort to improve S 510..

Also, as y’all know well, the FDA continues to utilize existing authority to do things called for in S 510 and which have been within its authority for years.

If you don’t understand Jim Prevor’s suggestion about the issue of legal liability, Dr. Nestle, then you are incapable of understanding the implications of S 510. The law places a standard of behavior on us, growers, that academics, lawyers and health practitioners would never allow to be imposed on them.

Finally, I challenge you to clearly demonstrate how anything in S 510 would have changed anything of substance in any of the recent foodborne illness outbreaks.

We appreciate Harry Hamil’s kind mention. He has often sent us letters to the Pundit, though we have never published one, and he has generously held our pieces out as models in many venues, notably in a letter to The Nation in which he associated the decline of newspapers to their failure to produce the quality of journalism we do here at the Pundit:

• This poor journalism was led by the AP and tagged onto by almost every news outlet despite my efforts and those of dozens of others including state departments of agriculture, trade publications and an excellent web journalist, the Perishable Pundit.

In short, I have no question that large newspapers are in decline primarily because of crummy journalism.

Now we think Harry Hamil is being a bit tough on Marion Nestle. She is not an attorney, has never focused her work on issues of liability, and the argument on changing the legal standard on liability has many possible implications. Marion Nestle was simply bringing our piece to the attention of her readers right after it was published and in a short blog post — not an academic treatise. It seems perfectly reasonable to say that she is “not sure” about one of our six points and endorse the other five.

We have no doubt that if Marion Nestle was to write a paper or a book on the subject of liability issues related to food safety policy, she would do excellent research, think hard on the subject and come up with a very reasonable opinion. Whether she would agree with us or not, we have absolutely no idea. But we certainly would respect her work, even if we were to disagree.

Regrettably, that is a courtesy in which Denis Stearns, the Marler Clark attorney quoted in Marion Nestle’s piece, denied to us. He followed Harry Hamil’s comment with his own:

Pardon me for being blunt, Mr. Hamil, but Jim Prevor is a tool, a tool that is of the fresh produce industry who reliably acts as a mouth-piece for industry positions. What particularly surprises me about your comment though, is your seeming support for the imposition of retailer liability. The insurance industry spent the 70’s and the 80’s mostly successfully backing “tort reform,” the major result of which was to exempt retailers from strict liability. That said, I totally agree with those seeking to amend SB 510 to exempt small agriculture from most of its requirements.

We are confident our work speaks for itself and that our reputation will survive the assault on it by Denis Stearns, yet we confess that we are saddened by such an accusation from such an esteemed attorney.

The accusation makes no sense. Aside from the laughs such a comment will get in the offices of the produce trade associations who know precisely what an independent thinker this writer is, the facts provide no support for the accusation.

This article was published by The New Atlantis: A Journal of Technology and Society. This journal has editors who don’t work for the produce industry and those same editors read the Perishable Pundit and sought us out because they found the quality of our thinking and writing to be at a level that could contribute to the national discussion of such issues. Are these editors also “tools” of the fresh produce industry?

The New Atlantis is published by the Ethics and Public Policy Center in Washington, DC. This institute is, in its own words, “Washington D.C.’s premier institute dedicated to applying the Judeo-Christian moral tradition to critical issues of public policy” — does Denis Stearns think these folks are also helpless “tools” of the produce industry?

And what about Marion Nestle herself? She is a pretty competent person. She knows how to call the produce trade associations if she wants a quote. Perhaps we should take her at face value that she read the article and is uncertain about the liability issue but agrees with the rest. What does Denis Stearns think of her? Is she also a “tool” of the produce industry, or does her quoting our article with some level of approval make her just hopelessly duped by such a “tool”?

Then, of course, there is Mr. Stearns’ partner, one of the guys with his name on the building — Bill Marler. He invited the very same “Jim Prevor” to speak at a continuing legal education program, “Who’s Minding the Store?” This invitation came along with journalists from The New York Times, The Chicago Tribune and the Des Moines Register — and did not come because Bill Marler wanted to waste everyone’s time listening to “tools” of anyone. Doubtless when Bill Marler ran a guest piece on his own site, titled Guest Blogger — Jim Prevor: Who’s Guarding Our Commerce? — Bill Marler himself must have somehow become a helpless “tool” of the produce industry.

The bizarre nature of Denis Stearns’ accusation becomes even more clear when one looks at the specifics of the piece in question. The food safety plan we developed and wrote about in The New Atlantis was not only not dictated by the produce industry, it is not the current position of the industry. The industry has endorsed FDA standard-setting and has generally supported more power for the FDA. In fact, most of our points, especially those related to liability issues, haven’t even been discussed in the industry. If the industry ever does adopt it — an unlikely prospect — it would be a case of the trade following the Pundit’s lead, not vice versa.

We spent so much space on this matter because, as much as anything, this is what is preventing progress on public policy in our country.

Denis Stearns could, of course, disagree with the article we wrote. He is a lawyer who has worked in food safety and doubtless has an informed opinion on the matter at hand. And if he wanted to contribute to advancing public policy, he could explain what he disagreed with in the article. Instead, he makes a classic ad hominen attack, and instead of wrestling with the facts or logic presented, he accuses the Pundit of being someone’s “tool.”

How can we have civil discussions if we can’t view disagreements on public policy as matters on which men of good will can differ? How would Denis Stearns like it if every time he presented a proposal to enhance food safety, instead of seriously critiquing his proposals, someone pointed out that he made his living off sick people and thus had every reason to keep those numbers of sick people increasing. It is a revolting way of speaking about other people.

In fact our piece addressed a reality that incentives are affected by where our system places liability. Traditionally, the producer seemed like the logical person to carry this liability as he was the one most able to affect the safety of the product. But if safety is really a matter of financial expenditure — if, for example, finished product testing is a good idea but we can only test every 100,000 packages or every 10,000 packages or every 1,000 packages, and so on, with each increase in frequency bringing less risk of a contamination but no level of “perfect safety” — then the producer has no criteria by which to determine how frequent that testing should be. The testing will, literally, be exactly as frequent as the trade buyer is willing to pay for.

The question we pose is whether in that situation — which we would contend is pretty much the situation we are in right now — it makes sense to say that the “producer” is the one most able to impact safety.

If its form left us saddened, the one substantive suggestion Denis Stearns makes left us flabbergasted. He writes, “I totally agree with those seeking to amend SB 510 to exempt small agriculture from most of its requirements.”

We just recently wrote about this subject when Michael Taylor, the Chief at USDA’s Food Safety and Inspection Service, gave a speech at the United Fresh convention. We called the piece, FDA’s Michael Taylor Preaches ‘Scale Appropriate’ Food Safety Standards, Code Words For Exempting Small Farmers And Organics. We know of people who want to exempt small farmers for political reasons. Certainly nobody wants “one-size-fits-all” regulation, recognizing that different crops, different environments, etc., can create different risks, but there are precious few food safety experts who would ever make the claim that blanket exemptions of small farms will somehow enhance food safety.

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