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Perishable Pundit
P.O. Box 810425
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Fax: 561-994-1610


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Produce Business

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American Food & Ag Exporter

Cheese Connoisseur



A New Era Commences: PMA Australia-New Zealand Triumphs With Its First Event

We have written before about PMA’s efforts to find the right model for cooperation with the trade in Australia and New Zealand:

PMA Convenes First Country Council

PMA Goes To Australia

We’ve also interviewed some of the most prominent people and organizations in the Australian industry:

Pundit’s Pulse Of The Industry — OneHarvest’s Rob Robson And His Food Safety Team

Pundit’s Pulse Of The Industry — Perfection Fresh’s Michael Simonetta

Woolworths Supermarkets In Australia Promotes Kids’ Produce Consumption

Bryan Silbermann, President and CEO of the Produce Marketing Association, has had many “children” in his professional career — the Produce for Better Health Foundation, the Center for Produce Safety — all these he can rightfully claim as part of his legacy. Yet we suspect that for this immigrant to America, none of his professional children are as meaningful as the newest, the birth of an affiliate in Australia and New Zealand.

The new affiliate just finished up its Fresh Connections event. It included an incredible program, a small trade show and was made possible by many sponsors.

It wouldn’t have worked except it was fully embraced by the Australian and New Zealand produce community, including a powerhouse board of directors:

Board of PMA Australia-New Zealand:

Michael Simonetta, Chairman
Perfection Fresh Australia

Kerry Wells
MG Marketing

Terry Brown
Turners & Growers, Ltd.

Kevin Wilcox
AS Wilcox and Sons, Ltd.

Tony McFadzean
Thomas Dux Supermarkets

John D. Baker
Produce Marketing Australia

Felicity Robson
OneHarvest

Robert Nugan
Fresh Produce Group of Australia

Chanel White
Carter & Spencer Group

Paul Moraitis
Moraitis Group

Fabian Carniel
Mulgowie Farming Company

Leo Lynch
Lynch Group Australia

A team from PMA USA headed off to join the event. Bryan was joined by Bill Schuler, President and CEO of Castellini Company and PMA’s Chairman of the Board, Mike O’Brien, Vice President of Produce and Floral for Schnuck Markets and PMA’s Chairman-Elect and Tim Riley, Executive Vice President of The Giumarra Companies and PMA’s Secretary/Treasurer.

We asked PMA how it viewed the event and they described it this way:

PMA Australia-New Zealand’s Fresh Connections 2010 held in Melbourne this past week marked a tipping point in the association’s global development. As the first conference arranged by PMA’s new affiliate based here in Australia, the conference drew an amazing 700+ registrants, a near-tripling from last year. A similar increase in the number of exhibitors saw more than 60 companies show their products and services to registrants who ranged from the region’s leading retailers and wholesalers, as well as a dozen leading retail buyers from South East Asian countries.”

The conference included an all day tour of leading retailers in Melbourne (Woolworths, Costco, Coles, Thomas Dux among others). It was also notable for the inclusion on the education program of the top executives from these companies as well as McDonald’s Australia and Tesco Asia. Next year’s conference and expo is scheduled for the Gold Coast in Queensland, Australia, from June 8-10, 2011.

Sometimes a picture tells a thousand words and if you look at the photos we’ve included with this piece you see some key points about the conference.

Bill Schuler and Mike O’Brien


Mike O’Brien, Bryan Silbermann, Tim Riley and Bill Schuler in PMA booth


Mike O’Brien, Bill Schuler, Rob Robson, Sam Robson,
Dennis Cerinich — Owner of The Herdsman, Perth


Mike O’Brien and Tim Riley at Sydney Opera House


Kerry Wells, MG Marketing, NZ — moderator;
Jackie McArthur, SVP, McDonalds Australia;
Johnathan Sutton, Tesco Thailand; and
Greg Foran, Dir of Supermarkets, Woolworths, Australia

The one showing the panel moderated by Kerry Wells of MG Marketing is important as it indicates the first time that representatives from companies as diverse as McDonalds, Tesco and Woolworths have spoken to an industry gathering in the region. This is reflective of the unique vertically integrated value proposition PMA brings to Australasia, including bringing together buyers and sellers across the supply chain in discussions on ways to improve the way the industry goes to market.

The photo showing Bryan, Bill, Mike and Tim in front of a welcome sign from Thomas Dux (a small-scale greengrocer subsidiary of Woolworths) illustrates the fact that retailers have jumped in to provide support for PMA A-NZ, giving of their time, executive resources, and financial support.

In fact, the Australia event received more retail support than do most American events.

Bryan Silbermann delivered the keynote and caught the historic significance of the event:

Sometimes in our fast paced lives we forget to pause and realize that we’ve turned an important page in our narrative. I believe this is one of those occasions. So today, let’s slow down and take the next half hour to consider … This isn’t just another Fresh Connections. And this time I don’t intend to share many facts and figures that drive produce marketing.

Instead, as I considered what to say, it occurred to me that in a very real sense, today is very much a commencement ceremony. A commencement is an important milestone, a turning point. To paraphrase the American poet Robert Frost: “Some follow a path well traveled and comfortable. Others take the road less traveled.”

I believe we have chosen the latter path. That’s a good thing because that is where we learn, where we grow. That’s the nature of our industry, and I believe it’s what makes us different from so many other business sectors.

Just think about what today represents. While this is not the first Fresh Connections we’ve held here in Australia, this gathering is fundamentally different from those in the past. It’s different because it is the first conference and show organized by your new PMA Australia-New Zealand leadership. So this is really a turning point for the creation of your community, a community spanning the whole supply chain from seed to store to dining table. Your leaders have taken the lessons from PMA’s experience in North America and around the world and have set sail on a course aimed at bringing together an entire industry…

There are a lot of people who made it happen … In addition to the current board, Rob Robson, CEO of OneHarvest and the first person to ever serve on PMA’s executive committee, and Michael Batycki, who was Senior Business Manager, Fresh Produce at Woolworths when much of this was coming together, were instrumental. John Baker, PMA’s representative in Australia, has fought the good fight for years and Michael Worthington is the new Executive Manager of PMA Australia-New Zealand.

We also would raise a glass to Nancy Tucker, Vice President For Global Business Development at PMA. Nancy doesn’t grab many headlines but for longer than we can remember, Nancy has quietly and methodically done yeoman’s work. She promoted international expansion for PMA before international expansion was cool. Before anyone talked of affiliates or country councils, she was like a busy bee visiting Australia and New Zealand, pollinating good relations between the industry and PMA. Even if her style isn’t to demand credit … well, attention must be paid.

Rob Robson’s daughter Felicity — a winner of the 2010 Produce Business 40-under-Forty Award — serves on the Board of PMA Australia-New Zealand, but Rob was present at the creation of the move of PMA to associate with Australia and New Zealand. Felicity relayed some of her father’s thoughts to us:

Every year in Australia, the hundreds of players in our great mining industry gather for a conference called "The Diggers & Dealers Conference". If your company is touched in any way by the mining industry, this is not to be missed.

Finally — the Australian and NZ produce industry has its own ‘Diggers and Dealers’!!

Our produce industry was forever changed by the attendees at the recent PMA Australian & New Zealand Fresh Summit Conference in Melbourne.

Over 700 produce players gathered, listened, learned, communicated and celebrated in what was a milestone event for the industry.

Australians are great networkers but, to date, our produce industry has suffered the lack of a common organized venue for this to happen.

The PMA-ANZ team delivered with a list of topical speakers and plenary sessions that provided discussion-provoking opportunities for real take-home value and business-creating networking.

This event has set the scenario for our country, at last, to have a peak industry body servicing the whole supply chain with real opportunity for business growth.

Michael Simonetta, Chief Executive Officer for Perfection Fresh Australia and the current Chairman of PMA Australia-New Zealand also shared some thoughts:

Fresh Connections was an outstanding success in my (little biased!) opinion. There were many highlights … here are just a few: We had in excess of 700 delegates, last year it was 253. We had delegates this year from South East Asia and the Middle East, and of course New Zealand and the USA, so it was an international event in the truest sense. We had 53 exhibitors this year in our trade hall compared to 22 last year.

At the welcoming Reception I said to the delegates present that over the next two days they were going to be at ‘Retail Central’, we had 8 speakers from leading retailers — Woolworths, Coles, IGA FRESH, Costco, Franklins, Harris Farm Markets, Tesco Asia — and from the retail foodservice sector, McDonalds. This line up of speakers had never been brought together in the history of produce in Australasia!

We hosted our first ever Retail Tour, which sold out! Included on the tour were leading supermarkets and independents in close proximity to the Melbourne CBD.

This event represented the first real opportunity in Australasia for all sectors of the supply chain to come together to learn, to engage and to trade.

PMA ANZ is a great example that the PMA Global Strategy is right on track and in line with what members want.

As with all beginnings, the future is unclear. Starting an organization is easier than sustaining it and, without a doubt, there will be challenges ahead. The opportunity, though, is vast. Can this little event grow to be a major multinational event, attracting the trade from across Asian and Oceania? Is Australia/New Zealand unique or can the model be successfully replicated across the globe?

Will having an affiliate relationship increase cooperation between the trade in the US and Australia/New Zealand or will the existence of strong organizations and conferences in each market lead people to stay home?

Giumarra’s Tim Riley was part of the US delegation and he passed on his thoughts:

The Giumarra Companies have done quiet a bit of business in New Zealand and Australia prior to this conference, so I was not unfamiliar with the region or the trade. That said, from a personal side it was refreshing to visit with growers and suppliers of all types and sizes. I was very impressed with the participation level of PMA’s Australia/NZ Board of Directors. Perhaps because of the total population size, each one is so close to the whole industry.

The industry relationships reminded me of our US industry 10 or so years ago, very relationship-oriented, and I sensed respect from each other on both sides of the transaction.

I truly enjoyed this trip. It is not often I can get an opportunity to be exposed to things outside the realm of our own business and, in doing so, learn so much.

I was simply overwhelmed on the opportunities for the future. As you know, I travelled on behalf of PMA, traveling in an industry and association role. However I still walked away with many new friends and business opportunities.

I truly see New Zealand, Australia, and the greater Pan Asian region as a totally new opportunity. PMA ANZ (as it is being called), just might add more value to our members in the USA and other countries than anyone imagined — well, at least more than I imagined!

It gave me a good feeling seeing PMA’s Global Strategy coming to fruition, and more important seeing the strategy actually adding value to the industry on both continents.

Not to mention, one of the most beautiful places I have ever visited.

So it is … and also beautiful are the opportunities for trade, commerce, education and friendship created by this blossoming. We are all richer because some pioneers made it happen. We are all in their debt.




Bill Marler Goes On The Offensive, Calling Out Industry’s ‘Sorry Safety Track Record’ And ‘Not As Smart’ Pundit

Ever since the spinach crisis of 2006, we’ve had the occasion to have frequent exchanges with members of the legal profession — particularly those interested in food safety.

Among those we have interfaced with are the noted plaintiff’s attorney, Bill Marler. Bill is justly renowned as the lead plaintiff’s attorney in many food safety cases going all the way back to the horrible story of the Jack-in-the-Box outbreak, where three people died including a 2-year-old child, and where Bill earned a substantial settlement for his clients.

Bill is not only a good lawyer but in many ways a brilliant strategist. He has positioned himself as a great advocate for food safety, setting up a non-profit, giving charitable donations, giving many speeches, organizing educational programs such as Who’s Minding The Store? at the Seattle University School of Law, at which he invited the Pundit to speak, and writing op-eds, including a well-known and often adapted one for The Denver Post back in 2002 that in food safety circles is called Put Me Out of Business, Please.

All together, this has allowed Bill to avoid being brushed off as a self-serving trial lawyer and given him credibility as an advocate for not just his clients but for food safety generally.

He has done such a good job of this that he has been considered for federal appointments in the food safety arena, and we wouldn’t be surprised if he one day runs for a seat in the US Senate.

Yet ever since The New Atlantis, a Washington, DC-based journal, published as an “Online Exclusive’ our piece, How to Improve Food Safety: Aggrandizing the FDA Only Distracts from Real Solutions — which explored the possibility of utilizing a change in liability standards to enhance food safety — it seems as if his firm has gone into attack mode.

First, Bill’s partner Denis Stearns declared we were a “tool” of the produce industry… an odd assessment which we discussed in our piece, Marion Nestle, The Perishable Pundit And A Lawyer Named Stearns; We Need Civil Discourse To Advance Effective Public Policy.

That tactic not having been particularly effective, now Bill Marler himself decides to question our intelligence: He read our response to a farmer in Florida that we ran under the title, Pundit’s Mailbag — No Matter What Growers, Shippers Or Retailers Do About Food Safety, ‘You Will Be Sued’ and responded with his own piece: The Perishable Pundit, Jim Prevor, is not as smart as I thought.

In reality, Bill’s disagreements with us have nothing to do with our being more or less “smart”. As best as we can determine, other than the contretemps with his partner, Bill has the following issues with us:

1) He says we “went after Marion Nestle,” although we would challenge anyone to read that article and find any attack by us against Marion Nestle — it is an inconceivable charge.

2) He says that: “Jim is too busy sticking up for the produce industry (as others do for their industry of interest), and ignoring its sorry safety track record over the last fifteen years, to offer an informed critique of the product liability system in the United States.”

It may be clever to say that we are “sticking up for the produce industry” but, even if that were true, that leaves aside the question of whether the “produce industry” is right or wrong.

As it happens, when it comes to product liability the produce industry — which is represented on a national basis by vertically integrated associations that run the gamut from the farmer to the retailer or restaurant — has no agreed position.

And how would “sticking up for the produce industry” preclude one from offering an “informed critique” anyway?

More relevant is his claim that we defend the produce industry’s “sorry safety track record.” Here, though the question which Bill leaves unanswered is what would constitute a “good safety track record,” we can identify significantly less than one 10,000th of 1% of all produce servings that resulted in any illness at all and much less than that which resulted in serious illnesses. We can all look to do better — just as auto makers can look to build safer cars — but it is not clear that this is a bad record.

There are trade offs in life — we can do more testing, bigger buffers, more trapping, etc. Maybe we should, but all these things raise the cost of food, have environmental impacts, etc. Bill Marler gives us no insight into how to balance these concerns and certainly provides no insight that makes clear the produce industry has a “sorry” record on food safety.

3) Bill makes an elaborate point out of the fact that “absolute liability” — in which a plaintiff has to establish only that there is a product-related injury — is different than “strict liability” — in which the plaintiff need show both that the product was defective and that the defect caused the injury. But we were writing in the context of food safety issues for the produce industry and the relevant set of facts is that the product was expected to be eaten raw, had a pathogen (read as a defect), and the pathogen caused an illness or death.

We never said Bill Marler’s job was easy. Obviously there are cases where people get sick and claim it was from a food but can’t easily prove that. Often we rely on epidemiology that is uncertain. That is why plaintiff’s attorneys value having a PFGE “genetic fingerprint,” in which a pathogen can be matched to an illness.

The issue we raised is not whether there is absolute or strict liability — the issue we raised in whether we ought to have a negligence standard.

Obviously plaintiff’s attorneys would prefer not to have such a standard as this because it makes their job even more difficult. Now they would have to prove not only that there was a defect in the product and that the defect caused the injury, but also that the defect is a result of negligence.

We used the example of a parking lot after a snowstorm. If you slip and fall and break your arm while getting your car, the discussion is not over the injury — that is clear — or even over the problem — nobody wanted the parking lot to be so icy, so in that sense one could call that a defect. The issue is whether the parking lot owner was negligent in his maintenance of the parking lot. What is negligent is another issue: there are sometimes legal requirements — say a light every 25 yards — and there are industry standard practices — lay sand down once a day, etc.

The issue we were dealing with is whether food safety could be enhanced by switching to a negligence standard. Right now, having good food safety practices might help a company avoid an outbreak. But outbreaks are so rare in relationship to the amount of product produced, such Black Swan events, that it is hard to justify increased expenditure on food safety based on avoiding an outbreak. But if one could earn “credit” for meeting and exceeding food safety standards — so when the FDA issues a “recommendation not to consume,” it exempts farms and processors operating under an approved HACCP plan, for example — or if in court, the company that was exemplary in food safety was held not liable just the way that parking lot owner is — based on his actions — we think there would be more investment in food safety.

In other words, right now an investment in food safety pays off once — it may prevent an outbreak. Under our suggestion, it would pay off twice: once to prevent an outbreak and second to remove liability if there was an outbreak. In other words the return on a food safety investment would be increased and this would cause more investment in food safety, thus safer food, thus fewer illnesses or deaths.

4) Bill claims the Pundit also “ignores the fact that, in the vast majority of cases, proving a product is defective is nearly identical to proving negligence. In other words, when a bag of romaine lettuce is contaminated with E. coli O157:H7 — a result that the manufacturer obviously did not intend, and planned to avoid — the fact of that contamination proves that the manufacturing process fell short of what was intended. And, lo and behold the falling short is… wait for it… negligence.”

Bill can certainly take this argument to a judge and we don’t doubt many would accept it, but it defies the common meaning of the word negligence and is not the standard we are arguing to adopt. The whole point of a negligence standard is that someone had to do something wrong or at least not do something he should have done. If we go back to our frozen parking lot, the fact that the parking lot owner was hoping to create a safe surface to walk on by shoveling, sanding and salting obviously does not mean he was negligent because someone happened to slip.

Equally, if a farmer hopes to ship produce safe to eat and follows all the FDA directives and recommendations, gets himself audited by companies like Primus, locates the farm in an appropriate area, meets or exceeds the standards the ag extension and food safety experts recommend, but still suffers a freak outbreak — his actions would defend him against liability in precisely the way the parking lot owner’s actions will defend him against liability.

It is important to note that we are not arguing for any particular standard to define negligence. In her piece, Marion Nestle called for every farm to have a HACCP plan… maybe she is right. What is clear, however, is that there is both a negative incentive effect on food safety expenditures and a lack of fairness in bankrupting some farmer somewhere who has basically said to us that he will do anything society wants. Fence his field, build a buffer zone, place traps — just tell him what society wants of him.

But if society decided that we recognize that 500-foot buffer zones covered in asphalt are needed for food safety, but we only want 50-foot buffer zones covered in grass because we also value the environment, don’t bankrupt the farmer because he does exactly what we ask him to!

5) Bill also doesn’t like our use of language: “Jim likes to describe the often horrific injuries that people suffer as a result of defective products ‘collateral damage.’ I am guessing that if it was someone in his family who died or was permanently injured, he would be less sanguine about this, and certainly less proud of coining such a term.”

Funny thing… the man who taught the Pundit this term as applied to food safety was none other than, yes, Bill Marler!

In our discussions during the spinach crisis of 2006, Bill was unhappy with the FDA’s Dr. Acheson allowing spinach back on the market when the FDA didn’t know what caused the problem and had no way to ensure it wouldn’t happen again.

We explained our position — that there was no such thing as absolute safety, and it was just a question of where on the continuum of ever-decreasing risk with ever greater expenditure that society wanted to stop. Bill responded that he agreed completely — the open question was what to do regarding the “collateral damage” — meaning the people that get sick because society doesn’t demand we grow everything in an INTEL clean room and have all ag workers in hazmat suits.

The reality is that, terminology aside, society makes countless decisions that we know will result in injury and death. Why not require everyone to drive at 20 miles per hour? That would save lives from fewer car accidents — but we value the ability to speed things up. Why not require that every house be built of stone — no wood framing allowed. That would reduce deaths due to fire — but we value affordable housing.

The issue for us to wrestle with as a society is how do we deal with the people affected by the societal decision to compromise between various values? Describing the harm done to these people as collateral damage is, in fact, a fair description — and one we appreciate Bill Marler teaching us.

6) We are not sure Bill is as good an economist as he is an attorney. He makes this claim: “The fact of the matter is that strict liability evolved in the United States precisely because the collective wisdom of judges AND legislatures decided that consumers should not have to pay the price when companies like Ford ‘elect to value economy’ — as Jim so coldly put it. Companies do not try to create ‘value’ by cutting corners on safety; they try to create PROFITS. And that is not the same thing. How many people do you think would have bought a Ford Pinto if they had been warned in advance that getting rear-ended would cause the car to explode into a life-ending fireball? Not many, me thinks.”

We will accept Bill’s assessment of how strict liability evolved — although the initial move was judicial. That doesn’t mean it is the right situation for food safety in fresh produce.

Autos are made by very few companies with enormous resources. Produce is grown by countless farmers under conditions of exposure to the elements. Even if strict liability is right elsewhere, it doesn’t follow that it produces the maximum food safety expenditure and effort in fresh produce.

Bill places a great emphasis on the motivations of companies, saying that, for example, Ford would be looking to improve profits when it makes a trade-off and accepts a less safe car in order to have a car that it can produce less expensively. Yet we would say that even if this is truly the motivation, it scarcely matters. Honda will do the same thing and so will Toyota and General Motors, and the competitive pressure winds up compelling them to offer lower prices to consumers.

In addition, less expensive cars open new markets. If profit-driven auto companies only sold cars at the price of Bentleys — many fewer cars would be sold. So there is no contradiction between auto companies wanting to maximize profits and also wanting to have lower cost vehicles to sell.

Besides we don’t view PROFITS as a dirty word. Where does the money come from to develop the safer products of the future — profits.

Although Bill thinks the idea of a company “electing to value economy” over safety is “cold,” we submit that it happens every day in every industry and there is no alternative to it.

When you are designing a car, you can design a bumper to withstand a 15 MPH collision, a 30 MPH, 70 MPH or a 100 MPH collision. Each step is a trade-off in price/weight/fuel economy etc., against safety. The same applies to every building built and countless other things.

The Pinto may well have been an egregious case and, perhaps, many who bought it would not have done so had they understood better the tradeoffs that were made in its design. That, however, is more an argument for transparency or better disclosure than for avoiding all trade-offs.

It is also not obviously true. It is pretty common knowledge that larger, heavier cars are safer — yet people often choose to buy smaller, lighter cars. Some may prefer them but, often, they buy them because they are cheaper to operate and less expensive to buy.

Besides there are so many factors that enter into safety issues that one flaw may not be that significant. Gary T. Schwartz, then a Professor at UCLA School of Law, wrote a paper titled The Myth of the Ford Pinto Case that was published in the Rutgers Law Review. In it he included a compendium of fatalities for different cars based on per million cars in operation.

Take a look and judge for yourself whether even knowing with 20/20 hindsight the fatalities on the Pinto would have persuaded you not to buy it:

CAR MODELFATALITIES
19751976
AMC Gremlin274315
Chevrolet Vega288310
Datsun 1200/210392418
Datsun 510294340
Ford Pinto298322
Toyota Corolla333293
VW Beetle378370

Lee Iaccoca, who was in charge of development for the Pinto, famously commanded that the Pinto had to be under 2,000 pounds and sell for under $2,000. Given this full transparency, it is simply not obvious that this very price-sensitive market would have gladly paid 10% more to get 10% lower fatalities.

7) Finally, Bill Marler makes it clear that it is not really any problem with any specific proposal we have made that motivates; it is an absolutist standard that simply ensures there is no room for discussion: “Jim’s position is that the produce industry should be free from liability because it tries just so darn hard. Well, as far as I’m concerned, the produce industry is not trying hard enough until people are no longer killed and injured as a result of eating its unsafe and defective products. And, if they are unwilling to do that, then they should be sued.”

Some of this is classic “straw man” tactics — we never said the industry should be exempt from liability. What we argued is that once societal standards are set — those who conform to those standards should not be liable. In other words, if the rule is that cars must have bumpers that prevent damage up to 15 mph, don’t sue the car maker if the car gets damaged at 60 MPH.

We also never said that the trade’s current food safety efforts were always adequate.

But we did say that most farmers would be happy to meet any standard at all that Bill Marler or the FDA could define — if meeting that standard would mean they were deemed not negligent and thus not liable in the event of a food safety outbreak. Demand a bigger buffer, set a standard for water testing, declare how high each fence must be.

The truth is that Bill Marler doesn’t do this for the exact same reason the FDA doesn’t do it: Because neither has any idea how to achieve zero foodborne illnesses without sacrificing other values such as the environment or affordable food.

If they actually went ahead and set standards, they would have to wrestle with real life issues, such as how we can produce enough food to feed the world’s growing population. Inevitably the standards they would set would be a compromise and someone would fall ill or die.

But if Bill Marler or the FDA sets those standards, then they would be responsible. Currently they both get to float above reality and demand “safe food” when the reality is that there is no such thing — that every step we take, to increase testing or enlarge buffer zones, etc., is just a step in risk reduction.

Both Bill Marler and the FDA like to demand a vague standard like “adequate fencing” or “appropriate testing” and then, when reality intrudes, hold some poor farmer responsible as they hold that the very fact someone got sick proves, ipso facto, that the standards used were inadequate.

It is a cruel game that destroys farmers and business people and does not help food safety.

We work hard to encourage a discussion and dialogue on these issues, but when the leading plaintiff’s law firm in the food safety world runs around calling people names — “tool”, “not as smart” — it really detracts from the serious business of finding better ways to create safer food.


Oh, and Bill also suggested we audit a course on product liability law his partner teaches. Well, we don’t live in Seattle so couldn’t actually do it, but we are always interested in learning, so if they pass along the text, we pledge to read it.




Reaction to Agriprocessors Raid Leads to A New Jewish Ethical Trading Initiative For Food: But Is There Really a Jewish Position On The Minimum Wage?

The whole sustainability movement as it applies to consumers is about the notion that in purchasing products, consumers need to consider more than the finished product. There are things that we should be concerned about, which no amount of inspection of the finished product can tell us. How did the production of this product affect the environment? How were the people treated who produced this product? In a sense, it calls for a higher level of attention to be paid to our food and where it comes from.

Of course, the modern sustainability movement was hardly the first to call for such consciousness. Those who “keep kosher” or follow the laws of kashrut are obliged to be conscious of each bite they place in their mouths — is it permitted?

When Agriprocessors, a kosher meat processor, was raided by the Immigration and Customs Enforcement (ICE) agency, there were many allegations of ill-treatment of the workers. This led some to object that when consumers buy kosher food, they expect more than simply food prepared in the ritualistic way required to meet standards of kashrut. They expect food that is raised in accordance with Jewish ethical principles.

So the activists pushed to have the authorities that certify food as kosher enforce a broader ethical mandate.

Whatever the merits of this, the Orthodox wing of American Jewry — which is the population most likely to strictly observe the rules of kashrut — quickly put a kibosh on that notion. In a panel discussion held at Yeshiva University on the topic of Morality and Kashrut, Rabbi Avi Shafran, Director of Public Affairs of Agudath Israel of America expressed the traditional position:

“While kosher food producers are certainly required without any doubt by Halakhah [Jewish law] to act ethically in every aspect of their business and personal lives, any lapses on that score have no effect, I repeat, no effect, on the kashrut of the food they produce.”

It is hard to argue against this standard. After all, if the kosher status of food was dependent on the personal morality of those who make it, millions of people, after the fact, would find out they had been eating traife, because the owner of the company was stealing or beating his employees or cheating on his wife or polluting.

Having failed to get kosher certification authorities to broaden the definition of kashrut to include ethical standards, the next move was to work with the Conservative Jewish Movement to create an ethical certification that would only be available to foods that had been certified kosher but was separate and additional to kosher certification.

This move to tie morality and ethics to food seemed intriguing, so we asked Pundit Investigator and Special Projects Editor, Mira Slott to find out more:

Rabbi Paul Drazen
Chief Program Development Officer
United Synagogue of Conservative Judaism
Board Member of the Hekhsher Tzedek Commission and The Rabbinical Assembly

Q: What is the difference between kosher (kashrut) certification and ethical certification or Hekhsher Tzedek with the Magen Tzedek Service Mark?

A: It’s very technical. Briefly, the laws of keeping kosher go back to days of the bible. There are appropriate foods to eat and not to eat and the biblical idea is grounded there. Building on that, how one eats is of religious significance; one requirement is not eating any blood from any animals, and there are ways set up for kosher slaughter involving draining of the blood.

Q: If requirements for food to be kosher involve specific Jewish dietary laws and rituals, are these distinct and independent from Jewish ethical and moral codes of justice?

A: A couple of years ago, the concept began to grow that we should be concerned about how we get food to the table as well as the food itself. We considered, certainly within our organization, that deliberately mistreating workers doesn’t seem to jive well with kashrut, which seeks to diminish animal suffering and offer a humane method of slaughter. Kosher certification is specifically food-focused. Now something can be perfectly kosher but ignore the treatment of workers.

Q: Wouldn’t other laws in Judaism, in addition to American statutes, encompass the ethical treatment of workers?

A: The tipping point for creating this ethical certification occurred after cases surfaced of workers being treated unfairly at Agriprocessors.

Q: Weren’t those alleged worker abuses gruesome undercover video was released. Yet the federal raid didn’t take place until 2008. Why did so much time elapse before actions were taken?

A: The raid was largely an issue of government enforcement of immigration laws, whereas our issue was ethical in nature. Immigration was not the driving force, but how people were being treated, which we witnessed first hand when visiting the Agriprocessors plant in the summer of 2006.

Q: Do you regularly check the practices of kosher plants? Was this visit to Agriprocessors scheduled or random; were you aware of problems that prompted inquiry into the facilities?

A: There are meat plants visited by our Movement, but I won’t say the discovery was an accident. Questions about this plant emerged. The plant was not far from where people lived, and they were expressing concerns about the conditions and treatment of the workers.

Q: Could what occurred at Agriprocessors be an anomaly, or is the problem more widespread?

A: My sense is that many plants are remarkably well handled, and employees are treated remarkably well. I’d like to say it is an anomaly but I’m not sure it is. We have worked with Dr. Temple Grandin, who designs humane slaughter houses, not just Jewish plants… There are packing companies well known for being appropriate in that sense. [Editor’s note: You can read Dr. Grandin’s critical assessment in 2008 of Agriprocessors here.]

The Conservative Movement is raising the issue that how employees are treated and ethical codes of behavior should matter in the certification of kosher food. The Hekhsher Tzedek Commission has outlined objectives and very specific guidelines and rules to develop the Magen Tzedek ethical certification seal. [Editor’s note: you can read revised standards for the Magen Tzedek Service Mark released by the Heckhsher Tzedek Commission for public comment here.]

It has been at the forefront of advancing practical ethical kashrut, and the first group that really came forward to say we need to develop practical ways to implement fair labor practices. [Editor’s note: You can read what some Orthodox groups are doing in this area here, and here.]

Q: Wouldn’t the laws of Judaism and Jewish values encompass ethical behavior?

A: All good religions are alike in that respect. This is just one more step to try and be sure.

Q: Why restrict the ethical certification process to only kosher food? Don’t you want to set a precedent that all businesses, food and otherwise, act ethically?

A: The core philosophy emanates within Jewish tradition and we don’t want people to start getting confused with ethical certification. That moves beyond the scope of what we’re doing right now. We’re relatively focused. I don’t think we’ll go in that direction of ethical certification for non-kosher foods. Because of our tie in with kosher, our ethical certification is connected with kosher foods. Of course, we’re in favor of all sorts of organizations pursuing ethical treatment of workers.

Q: How does the process work? How does one get a Magen Tzedek service mark, and how do you monitor and enforce this?

A: The Magen Tzedek certification process involves a complex set of criteria, and is just in start-up mode now. We’re working with people from the foodservice community and those who know processes and processors. Part of the plan is to help establish value for companies that would want to become certified, that makes it worthwhile for them to do so, and creates a statement to the consumer. The Magen Tzedek is based on the concept of the Good Housekeeping Seal. Our plan is unfolding as we speak; the materials have been out, the rules were published to provide an opportunity for public response. We’re still early on that, and want to make sure rules are fair and workable, as well as moving the process ahead.

Q: Do you view the ethical certification seal as a marketing tool then, a way to provide a company with a competitive edge?

A: As consumers are becoming more sophisticated, they are becoming more careful with the products they purchase and more interested in the origins and whether the company is socially responsible. Companies have done well in defining what their products are about, and how they were made. Corporations have specific standards they operate under, and to a certain degree if a symbol is there on the package it can validate those standards to the consumer.

Q: Will consumers grasp the meaning behind the Magen Tzedek seal? Isn’t there valid debate and subjective interpretation on what constitutes social justice and ethical codes of behavior? With all the complexities and variables involved, does an ethical certification really make sense?

A: There are different kosher certifications even among the Orthodox community. In Kashrus Magazine, you’ll see 100 different supervisors, and sometimes different standards. The truth is that the set of standards for processing of product can be rigorous, but not so strict for labor. Even within that, there are different standards in methodology and rituals for how the animal is killed, for example. It’s quite complicated. When you start dealing with kosher produce and eradication of insects and infestation, all kinds of issues arise, especially with modern day uses of technology.

I think the impact of the Magen Tzedek seal could be significant. I recently picked up a publication at La Guardia airport and was surprised to see a prominent advertisement promoting kosher-certified peaches. For a select group of consumers, that is something they’re looking for. Corporate ethics and how employers treat their workers has become paramount to more and more consumers, just as sustainability has stirred public sentiment.

At some point we may examine sustainability issues but for now, we’re keeping a tight focus on ethical certification. I’m hoping the Magen Tzedek mark will turn into a meaningful symbol that people search out in our efforts to raise humanitarian standards in the workplace and make the world a better place.

Mira then spoke with Kimberly Rubenfeld, Program Manager at the Hecksher Tzedek Commission to get more answers…

Kimberly Rubenfeld
Program Manager
Hekhsher Tzedek Commission

Q: What does ethical certification encompass? How broad are parameters and requirements for getting a Magen Tzedek seal? Which companies and products can apply for the mark and what does the process entail?

A: The program itself is evolving from a set of principles and we’re in the process of signing a contract with a major social auditing firm, which produces these certifications. It’s a third party doing this type of work over 12 years, working with us to create an actual program from our principles. The program isn’t determined. This is a massive undertaking, an umbrella certification program covering all these areas: labor concerns in wages and benefits, animal welfare, the earth piece involving environmental standards, and the category of corporate transparency and responsibility; where issues such as food safety would apply.

Q: Who in the supply chain gets ethically certified? What if a manufacturing company wants to use the ethical certification seal — say Kraft wants to create kosher Oscar Meyer Luncheables and get ethical certification as well. Kraft would be buying different ingredients, and they want to put the seal on their package… what is involved? Do all the ingredients need to be ethically certified from all their suppliers?

A: When you ask how far back in the supply chain, this is a sensitive question that we’re still working with the certifier to answer. If a hot dog manufacturer is importing more than 5 percent of its product, for example, the company has to be responsible on where it’s coming from; it may be from a company in South America that doesn’t meet slaughtering standards, but that doesn’t necessarily mean the supplier needs to be certified with the Magen Tzedek seal.

Q: Isn’t that a critical point? How can the ethical certification have validity if all the ingredients within the final product don’t meet the same standards?

A: How deep in the supply chain is a very important question, and part of the process we’re looking into with a third party. It’s a secular, non-profit company, which does social responsibility and social accountability audits. The Hekhsher Tzedek Board itself determines what the value sets and principles are. But the firm will create the implementable program.

With all the resources the Board has, it is not comfortable with the appropriate process for how information is gathered, the appropriate auditing process, how particular issues are resolved. This is not a one-day spot check; there are ongoing requirements. What if there is a violation down the road? What is the process for this? The Board will be making decisions, but the third-party company will be clarifying. There are a lot of outstanding questions.

Q: Why would a singular third-party company be granted so much influence in standardizing rules and requirements on such a sweeping range of complex issues, all of which seem to be subjective determinations?

A: Thinking in Jewish law, the Board is not composed of professional auditors; that said… we need assistance from a third party. For example, logistically making standards apply to all companies — Kraft is a huge corporation with multiple brands, while a smaller company might have one local brand — so how can we apply standards to both? There are a lot of concerns from a business perspective. Perhaps the third party allows subsidies or a way to tap into resources for smaller firms, and will list several options. It is important for this other third-party company we’re working with to create a program to encompass all the complexities. The Board, however, will make the decision on the direction.

Q: Won’t the Board’s specific rules on all these categories, from wages and benefits to environmental issues, corporate responsibility and food safety, in the end be arbitrary, hinging on numerous variables, sometimes overlapping, other times conflicting with each other? Doesn’t the whole concept of social justice leave room for interpretation?

A: How can we not reinvent the wheel, how can it fit into an existing program, can this be an outgrowth of Fair Trade, Jewish fair trade, for example? Throughout Jewish law, there is something valuable to say in producing any good or service. Now we’re just looking from farm to field all the way to the fork, such as how workers are treated in the process. This is an umbrella certification based in religious thinking becoming its own program. There was no option to leverage an existing program because the scope of issues exceeds the focused concerns of individual programs.

When companies are subject to other regulations, whether by government or other evaluations, how do we leverage these so we’re not duplicating or creating extra layers of administration for them? What are the benefits for your employees? Here are five different ways you can show you’re applying the certification requirements… This is why we need consulting auditors.

Q: How are wages and benefits requirements decided? There’s a reference to 115 percent over the minimum wage, but why not 120 percent or 110 percent? It seems so arbitrary, and wouldn’t it depend on other factors such as the company’s health care plan, or migrant worker housing provisions? And states have different minimum wage requirements… wouldn’t that create inconsistency and confusion?

In an ethical sense, what if requiring the company to pay workers more leads it to automate operations or downsize and fire employees… or the company becomes less competitive because it needs to raise its prices and can’t remain profitable so it files for bankruptcy, etc. Is that necessarily more humane if workers lose their jobs and have no means to support their families?

A: Variables on minimum wage would need to be considered. It could be that different states have variable levels of pay; costs of living in a suburb of New York City are different than a Midwest suburb. Where the goods are produced becomes relevant when addressing concerns of worker protection and a living wage. It’s a very tricky thing; how the actual calculation will work will depend on a process that is transparent and equally applicable and fair, based on Jewish principles. Whether 115 percent over minimum wage is implemented and how that is determined is still unresolved. That 115 percent was derived working with subject matter experts, of what is fair and appropriate in principle. There’s transparency so the firm will know how it was derived, there will be a uniform and set evaluation standard in coming up with a number.

There are a lot of very controversial components in this certification, and there may be components not logistically possible or reasonable. Based on the process, we have a way of capturing or don’t have a way of reasonably capturing. This program is asking to do a lot.

Q: How much more stringent would the ethical certification guidelines be compared to what is already federally mandated? Also, aren’t there industry-honed and issue-specific scientific standards already developed by experts in their fields?

A: For the wages-based component, references in Jewish law justify asking above and beyond federal requirements. In animal welfare, there’s a standard authored by Dr. Joe Regenstein, Professor of Food Science in the Department of Food Science and Institute of Food Science at Cornell University. Firms can’t exist in the U.S. without complying with the standard. It is scientifically appropriate but not governed in law. This can come from the animal welfare standard. [Editor’s note: You can read the revised standards for the Magen Tzedek Service Mark released by the Heckhsher Tzedek Commission for public comment here. Dr. Regenstein is chief author].

Q: Is this ethical certification process redefining what is required for a food to be kosher, in essence changing its historical relevance, or questioning its validity?

A: To gain a hechsher is to be ritually kosher. Part of the ritual kashrut is not concerned with animal welfare, environmental or labor issues. This is to be a complement to kashrut; it does not overlap and is not a substitution for kosher.

Q: If this is the case, can a non-kosher food get an ethical certification seal? After all, this process is being initiated by the Conservative Movement, and many conservative Jews do not practice the laws of kashrut. More important, isn’t ethical treatment of workers imperative in all businesses? Opponents say it would be hypocritical not to require ethical certification of all foods, or for that matter all businesses, consumer products, clothing, etc. If the concept is insuring ethical and honest treatment of workers, doesn’t that concept transcend kosher food products?

A: The process and concerns apply to all goods and services, but we’re developing the program initially for kosher food based on Jewish law and Jewish values. This will also allow a more focused message to the consumer.

Kashrut involves extraordinarily detailed standards on what food needs to be; it doesn’t mean workers, animals or the environment is taken into consideration during this process. Consumers often don’t understand this, assuming that a kosher product incorporates these other attributes. My naïve assumption for years was that product with a kosher symbol on it was produced using my own ethical guidelines, being kosher myself. The assumption from the consumer is, kosher is better for me, an idealized sense of what kosher means. Unfortunately, that is not what kosher means, not what consumers widely believe it to mean.

Q: Would the ethical certification seal change consumer perceptions? What is your goal in establishing this seal?

A: We’re trying to establish ourselves as a recognized brand consumers buy; this is a market-driven approach to push out exploiters. If a firm is mistreating its labor force, or barely meeting federal standards, it wouldn’t qualify for this seal.

Q: Could this strategy raise new questions on the legitimacy of any or all kosher products void of the ethical certification seal. In other words, couldn’t this unfairly tarnish the reputation of most companies producing kosher products that operate ethically and treat their workers well?

A: On first blush, only by purchasing product with the Magen Tzedek symbol could a consumer feel better. Very personally, I keep kosher, and it reminds me of the values I adhere to as a Jew. There are a lot of assumptions that play into what that means; not just that the product is deemed appropriate because of strict regulations of kashrut.

We don’t see this as a conflict, but a broadening awareness of what kashrut is; from ethical concerns to organics of where food comes from, this provides the opportunity to highlight Jewish thinking and benefits of kashrut.

Because this is based in Jewish law, we’re not discarding the concept of kashrut. In Jewish law, there are still foods appropriate and not appropriate to consume; only now the ritual and ethical concerns get equal weight.

There is already Fair Trade and the animal welfare marker. The Magen Tzedek is based in Jewish law and respect for kashrut, but its principles are applicable elsewhere. An ethical certification seal could go on institutions or other products, but it also needs to start somewhere. It launched on a national basis with kosher foods and needs to get grounded, and it will be up to the Board on whether it is appropriate or possible to expand beyond kosher food products.

Q: Could you share more specifics on how the Board is progressing with the certification process and tackling all the issues that we’ve discussed?

A: We fully appreciate how complex this is, with so many variables to consider on how we address the supply chain. We wanted to leverage work already done by experts and volunteers. At the same time, we discussed whether we should put this in the hands of a third party, and we decided we needed a third-party partner. In evaluating whether this is an appropriate path, by no means did we underestimate the challenge we put before us.

Q: Is the Magen Tzedek a reaction to the scandalous activities surrounding Agriprocessors?

A: We recognize a kashrut company failed. Rabbi Morris Allen, who was instrumental in founding Magen Tzedek, went with a team to look at Agriprocessors and witnessed mistreatment of workers. However, the concept of Megen Tzedek pre-dated Agriprocessors. It is Jewish thinking surrounding food. We want to go through the exercise of thinking more comprehensively about kashrut, integrating ethics and ritual. We want to increase education and awareness around these issues.

We’ve been debating internally how we can logically manage all these variables. This is a behemoth undertaking. That’s why we are hiring professionals to do this. We understand this is extremely complex and don’t have all the answers yet to pull into a coherent program. We’re close to signing a contract with a major third party social auditing partner to move the process forward.

Not long ago, the world discovered that a blueberry farm in Michigan had used some child labor — the children of farm workers. Each retailer fell over the next as they moved to disassociate themselves from the farm. We wrote about the matter and called the piece When Child Labor Laws Don’t Necessarily Help Children.

In the end, we questioned whether enforcing a ban on child labor wasn’t a kind of cheap morality in which we could all disassociate ourselves from something unseemly without actually doing anything to help those children.

This effort strikes us in a similar way. The Agriprocessors plant employed mostly Guatemalans, many illegally here. But the advocates for ethical treatment are not upset about the fact that immigration laws were being violated; they are upset that people are not being treated well.

But what if new standards were put in — wages raised, overtime properly paid, benefits provided, people treated with respect? What if this much improved environment attracted a group of American citizens to work at the plant, thus rendering the Guatemalan workforce a surplus and they were sent home — did we just do something ethical for those workers?

There are all kinds of Jewish obligations to be ethical and conduct business in certain ways. They typically only apply to Jews or only apply to Israel or to specific situations or are antiquated and so frustrate those looking to find a path through Jewish law to enforce general ethical obligations. There is the requirement to leave enough unharvested crops for gleaning in the field:

And when ye reap the harvest of your land, thou shalt not make clean riddance of the corners of thy field when thou reapest, neither shalt thou gather any gleaning of thy harvest: thou shalt leave them unto the poor, and to the stranger: I am the LORD your God.

— Leviticus 23:22

And in your vineyard:

And thou shalt not glean thy vineyard, neither shalt thou gather every grape of thy vineyard; thou shalt leave them for the poor and stranger: I am the LORD your God.

— Leviticus 19:10

One should pay wages each day:

At his day thou shalt give him his hire, neither shall the sun go down upon it; for he is poor, and setteth his heart upon it: lest he cry against thee unto the LORD, and it be sin unto thee.

— Deuteronomy 24:15

But there is no easy way to establish that one employer who, say, does not give health insurance but employs 100 people, is more or less ethical than another employer that does give health insurance but can afford to employ only 50 workers.

So, though the proposal for the Magen Tzedek can be attacked on the basis of particularities — - how deep it will get into the supply base, etc. — the real critique is that there is no Jewish ethical standard by which to prefer one of these outcomes over another.

The only thing we can say is that in our society it is the political process that sets minimum wages, immigration law, etc., that tells us how we have come to compromise on these issues. So, as a polity, we have come to say that one has to pay minimum wage. But to arbitrarily say that a company that pays 115% of the minimum wage but often lays off surplus workers when things are slow is more ethical than one that doesn’t but has a ”no-layoff policy” is not rooted in Judaism; it is just a particular ethos trying to steal the cover of Jewish values to hide its arbitrary nature.

Many thanks to Rabbi Paul Drazen of the United Synagogue of Conservative Judaism and Kimberly Rubenfeld of the Hakhsher Tzedek Commission for helping to inform us about this intriguing project.




Another Example Of Certifiers Lacking Integrity: USDA Drops Organic Certifier In China

If you need an additional reason to read the Pundit, you could look at our December 21, 2007, interview with Jeff See, Executive Director of OCIA International, Lincoln, Nebraska. We titled the piece Too Many Concerns Still Exist Over Organic Certification In China, and we came to these conclusions:

Considering the product value and the poverty of the country and the affiliation between the Chinese inspectors and their countrymen farmers, it seems very likely that many inspectors can be encouraged to overlook things…

…What we take from all this is that a mere certificate is not sufficient to assure a buyer of legitimate organic product from China. It is certainly not sufficient to assure a buyer that it is both technically organic and also grown in a healthy, clean environment.

So procurement of Chinese organics requires one to either have actual control of the production in China or a trusted supplier who has control of production in China.

If you don’t read the Pundit, you could wait two-and-a-half years and eventually read the front page of The New York Times, when it announces that OCIA is being dropped as an organic certifier in China. The piece is titled, U.S. Drops Inspector of Food in China:

Now serious questions about certification in China have been raised by the United States Agriculture Department. The agency, which uses private groups to conduct most organic inspections worldwide, has banned a leading American inspector from operating in China because of a conflict of interest that strikes at the heart of the organics’ guarantee. The federal agency also plans to send an audit team to China this year to broadly review the certification process.

Federal officials say the banned inspector, the Organic Crop Improvement Association, used employees of a Chinese government agency to inspect state-controlled farms and food processing facilities. The group, based in Nebraska and known by the initials O.C.I.A., has for years been one of the leading inspectors of Chinese organics for the United States market.

The only problem is that the United States Department of Agriculture — what is with The New York Times calling it the United States Agriculture Department — caught OCIA on a technicality. It had been subcontracting with a government-owned group to do the inspections, and some of the facilities they were inspecting were government-owned. This is a conflict of interest and a violation of the rules.

But these neat separations between private and public are really artifacts of Western thinking. There really would be no difference at all because the auditor was technically private.

This whole way of thinking is a triumph of form over substance. It is very difficult to imagine some lone Chinese inspector standing up to close down a state-owned giant entity, cause the unemployment of thousands of his kinsmen, etc., just so he can have his personal integrity and not stamp it organic.

If the USDA doesn’t deal with that substantive problem, then all this formulaic enforcement is just a farce.

Besides, bribery is endemic in Chinese culture, and China refuses to prosecute those who offer bribes, which ultimately makes all certifications coming out of China highly suspect. In fact, in our piece written for The New Atlantis, How to Improve Food Safety: Aggrandizing The FDA Only Distracts from Real Solutions, we argue that if you really want to budget so as to improve food safety, the agency that needs the money is the FBI, not the FDA.

We suppose we can add Interpol to the list as well. The point is that the world’s food safety system depends on the integrity of auditing and certification standards. If we don’t make sure those certificates mean something, nothing else we do will likely have much effect on food safety.




Pundit’s Mailbag — The Ethics Of Employees in Private Enterprise Versus Public Institutions

Our recent food safety piece questioned whether giving more power to the FDA was, in fact, an effective way of increasing food safety. In questioning the assumption that government is the solution to the problem, we seem to have inadvertently angered some government employees:

I read your article, “How to improve Food Safety,” published in The New Atlantis and, as a Registered Environmental Health Specialist, I’m offended at your assumption that we are all crooks. That assumption is the most absurd and unsubstantiated claim you made. You owe all of us that you have offended an apology.

— Jim Schmidt
Registered Environmental Health Specialist (REHS)
Deschutes County Environmental Health Division
Bend, Oregon

We certainly do apologize to Jim Schmidt and to anyone else who felt we made an assumption they were “all crooks.” This being said, we have to confess that we have reread that piece many times and can’t possibly conceive of how anyone could think that the piece accuses any group of people of being “all crooks.”

We assume Jim Schmidt is referring to these three paragraphs from the piece:

The best federal agency to enhance food safety is not the FDA but the FBI. Few buying operations have the capability to have their own personnel inspecting and monitoring producers along today’s global supply chains. The solution is to rely on third-party certification agencies. Trade buyers can establish their own standards or agree to accept other well-recognized standards, such as those of the British Retail Consortium. Adherence to these standards is then confirmed by various independent auditing groups. This is essentially the same mechanism the USDA uses to implement organic certification. The problem is that there is widespread corruption associated with these certifications, especially in areas such as China, Eastern Europe, and many developing countries, though auditors that are less than rigorous are also well known in the United States.

The corrupt sale of certifications poses a fundamental threat to food safety, and switching to government inspectors doesn’t solve the problem. First, the U.S. government has no authority to run inspections in China. Second, if the government were to use locals in other countries to run inspections, it would face the same problems as a private auditor — keeping the loyalty of local employees whose family, clan, and national interests all compel them to approve facilities and products. Third, whether through sloth or corruption, there are all too many examples of government inspectors not doing their jobs right here in the United States — from rats running wild in a KFC that had been inspected just the night before to horrid conditions at the 7th Street Market in Los Angeles to a payola scandal at the Hunts Point Produce Market in New York.

Beyond establishing a proper liability regime, increasing the reliability of food safety certifications by rooting out bribery and corruption is perhaps the single most valuable contribution the federal government could make toward food safety.

Jim Schmidt’s letter is a little unclear as to who, precisely, he thinks was accused of all being crooks. We take it to mean that he is saying there was an implication that all government employees are crooks.

For the record, we would suppose that the incidence of crookedness among government employees is pretty similar to the incidence of crookedness among private sector employees. Yet it strikes us that such a claim — hardly objectionable — if in fact widely recognized and incorporated in the selection of different policy options would actually cause a sea change in the weighting of private vs. public based options.

What advocates of more governmental authority often do is contrast an idealized world in which government is presumed to suffer from no flaws with a real world standard for business behavior in which people sometimes make mistakes, sometimes are co-opted, sometimes are corrupt, sometimes operate without budgets capable of doing what they might like to do, sometimes pursue personal selfish motives rather than follow institutional policy and sometimes are downright evil.

So, if the many private inspectors and auditors that visited the Freshway Foods plant did not prevent a food safety outbreak, many turn, almost instinctively, to suggest that we should have a government inspector there.

Yet this is completely unsupported by any facts. We know that meat plants can’t operate without government inspectors on the premises — yet this doesn’t stop E. coli outbreaks in hamburgers. More broadly, we just suffered a meltdown in the banks — despite an intensity of bank regulation almost inconceivable in the food industry.

We can have a lengthy discussion of why this is so; there is a long list of academic literature on how regulatory agencies come to be co-opted by those they regulate, and theologians and ethicists have long opined on the challenge human beings have in practicing virtue.

The important thing, though, is to realize that this view of the world — the private sector is presumed to be flawed whereas the government is assumed to behave correctly — is not an accurate view of the world, and holding this view functions as a kind of unfair “thumb on the scale” weighting public policy in favor of governmental solutions.

A more rational approach would see both private and public actors as subject to error, corruption, etc., and so would see plans to change the incentive structures as crucial to the ultimate success of the policy.

We never said, and don’t believe, that all government inspectors are crooks, just that crookedness is a failing of both those in the public and private sectors and that recognizing this has profound implications for the choice between various public policy options.

Many thanks to Jim Schmidt and the Deschutes County Environmental Health Division for taking the time to write.




Pundit’s Mailbag — Dale Peterson And The Obligation Of Politicians To Model Good Behavior

We headlined our piece focused on a campaign video by Dale Peterson, a candidate for the Republican nomination for Alabama Ag Commissioner, Watch the Winchester: Ad For Dale Peterson, Candidate For Alabama Ag Commissioner Goes Viral, and at least one sharp-eyed Pundit reader did, in fact, “Watch the Winchester”:

Did the Marines teach him to carry his rifle with his finger inside the trigger guard? I doubt it.

— Art Davis
VP Operations
Sholl Group
Eden Prairie, Minnesota

Dave Kopel, the Research Director for the Independence Institute and frequent blogger for the Volokh Conspiracy, which has occasionally linked to our work, critiqued the ad this way:

I don’t live in Alabama and I’m not a registered Republican. But if I were, this ad would convince me not to vote in the primary for Dale Peterson for Agriculture Commissioner.

Somebody who’s been a Marine, a cop, and a farmer ought to know elementary gun safety. Yet when Peterson takes out a rifle near the end of the video, he puts his trigger finger inside the trigger guard. I realize that the gun in the commercial is just a prop, and was almost certainly unloaded. However, the Agriculture Commissioner should model good behavior, and the viral ad itself, with over a million views, is a model of unsafe and irresponsible gun handling.

Perhaps most of the viewers know better than to handle a gun in the dangerous manner that Peterson does, but at least some viewers won’t know that what Peterson is doing is a violation of gun safety rules; some of them may think that he’s showing the normal way to carry a gun, and some of those viewers might one day attempt to carry a gun the way Peterson does. Accordingly, Peterson’s ad itself increases the possibility of accidents from unsafe handling of firearms.

Well, we said Dale Peterson was a long-shot and, indeed, he lost.

The front-runner in the Republican run-off is John McMillan. He promises, among other things, safe food. He has a gun as well and seems to have upped the ante with some kind of camouflage outfit.

As testimony to his eagle eyes, we are sending Art Davis a lovely gift pack of fresh carrots! Many thanks for catching the safety slip.

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