Yesterday Keep Food Legal filed comments in support of Washington, DC's food trucks. We filed these comments in response to a draconian proposal by District regulators to adopt new rules that could make the popular mobile food vendors a rarity in much of the city's downtown area.
The primary issue in this third cycle of proposed regulations in the District was not complaints about the trucks themselves but about their customers. District regulators--and a small segment of the brick-and-mortar restaurant lobby--apparently believe food trucks just have too many people waiting to buy their food. Keep Food Legal focused in part on this absurd argument against food trucks in our comments:
[U]nder the [District's] so-called “ice-cream truck” rule, DCRA has long mandated that the potential customers of a mobile food vendor form a line (or queue) before a food truck may stop and serve food. DCRA has also required that a truck must leave a parking space without delay after serving the last customer in a queue. Hence, existing DCRA regulations have been an important driver of queues in places like Farragut Square because they effectively prohibit any mobile food vendor from parking and vending unless they do so at a place with a high concentration of people standing in a line.
The proposed regulations... seem designed to punish mobile food vendors because these vendors have been mindful of DCRA regulations and vend only when and where they find large numbers of potential customers standing in line to buy their food products. It would be unjust for the District to penalize mobile food vendors for complying with an absurd regulation like the ice-cream truck rule just because compliance with that absurd rule has perhaps created a fresh set of unintended consequences.
Read our complete comments here.
Our Baylen Linnekin was quoted in the Daily Caller last week on the issue of DC food trucks and their customers. Read Linnekin's remarks here.
Keep Food Legal Foundation submitted comments yesterday to the FDA on two supplemental rules the agency has proposed to implement as part of the Food Safety Modernization Act (FSMA).
"Our criticism of the proposed rules goes to the heart of the matter," says Keep Food Legal Foundation executive director Baylen Linnekin. "These rules would erect new costs and regulatory barriers without making food or consumers safer."
The basis of our criticism? The FDA's own data on the likely benefits provided under the rules--which the agency intends to be the centerpiece of its efforts to reduce the 48 million cases of foodborne illness in America each year--are slight at best, as our comments describe:
Even if all of the benefits possible under the supplemental rules proposed in Dockets No. FDA-2011-N-0920 and FDA-2011-N-0921 are realized, the maximum benefit of these FSMA rules would be a reduction of 5.3 percent of foodborne illnesses. Meanwhile, the agency also floats a break-even figure of reducing 228,000 cases of foodborne illness under the manufacturing rules. The benefits of such a reduction are incalculably small. And if that smaller figure were realized, then it would mean the two proposed supplemental rules, taken together, would reduce cases of foodborne illness by only up to 3.3 percent. Ergo, the new range for FSMA “success” is a paltry reduction in cases of foodborne illness of between 3.3 percent and 5.5 percent.
And that’s an optimistic view. The FDA offers no floor on its estimate that the revised produce rule will reduce up to 1.57 million cases of foodborne illness. If the revised produce rule prevents 1 million cases instead of 1.57 million, for example, then the lower end of the FDA’s predicted benefit falls to a 2.6 percent overall reduction. With this data in mind, it’s easy to see the disconnect between what Congress promised under FSMA and what the FDA rules are capable of delivering.
In promoting FSMA, the FDA referred to foodborne illness as “a significant public health burden that is largely preventable.” Foodborne illness may be largely avoidable—through things like improved education and increased hand-washing. But the proposed supplemental rules contained in Dockets No. FDA-2011-N-0920 and FDA-2011-N-0921 demonstrate that FSMA has little to do with preventing foodborne illness, and much more to do simply with “modernizing” America’s food-safety regime. Taken together, the maximum benefits predicted by the FDA for the supplemental rules proposed in Dockets No. FDA-2011-N-0920 and FDA-2011-N-0921 are underwhelming. Their costs to producers, consumers, and taxpayers far outweigh their benefits.
Read our complete comments here. We also joined with other groups that support small farmers and ranchers by signing on to comments drafted by the Farm & Ranch Freedom Alliance. Read those comments here. And read more comments we've submitted on proposed food regulations impacting everything from food trucks to trans fats here.
Keep Food Legal recently filed comments opposing the FDA's overreaching plan to vanquish most trans fats from the American diet. We argued that four reasons in particular make a trans fats ban inappropriate.
First, scientific research does not justify a trans fats ban. Banning a food ingredient that the FDA and CDC acknowledge is unavoidable in 95% of all human diets is a patently dangerous and unprecedented idea.
Second, American consumers have already cut their trans fat consumption (and producers their trans fat production) to within limits suggested by the American Heart Association. The AHA suggests Americans should consume “less than 2 grams of trans fats a day.” Thanks to the fact many food producers have responded to consumer demand and removed trans fats from their foods in recent years, the FDA has noted that “trans fat intake among American consumers has declined from 4.6 grams per day in 2003 to about 1 gram per day in 2012.” That's already well below the maximum suggested by the AHA.
Third, there is no data showing any connection between trans fat bans and lives saved. New York City banned trans fats years ago, but research by Keep Food Legal demonstrates that the city's rate of heart disease has actually fallen less than have rates in the rest of the country (where trans fats are not banned).
Finally, the proposed rules would strike at the very heart of food freedom. Many types of doughnuts, frozen pizzas, coffee creamers, ready-made doughs, canned frostings, cookies, crackers, pie crusts, and margarines would likely disappear if the FDA adopts its proposed rules. These proposed rules would make other foods taste worse and may lead to an increase in the amount of saturated fats found in many foods—since some substance will have to replace trans fats in the foods that presently contain them. That substance—whatever specific form it takes—will no doubt be a different type of saturated fats.
Keep Food Legal submitted comments yesterday on behalf of members and supporters like you in two controversial FDA rulemakings that could reshape the food landscape for decades to come.
The proposed rules stem from passage in 2011 of the Food Safety Modernization Act ("FSMA"). The rules would increase the regulatory burden around produce safety and around what the agency refers to in sterile fashion as "preventive controls for human food."
In our comments to the agency, Keep Food Legal urged the FDA to reject the proposed rules for three reasons.
First, we argued that the proposed rules would hurt small farmers, other small food entrepreneurs, and their customers. Second, we argued the proposed rules, despite their great cost, are unlikely to make food any safer. Third, we argued the proposed rules violate the U.S. Constitution.
1) The FDA should reject the proposed rules because they would hurt small farmers and small food entrepreneurs
The two main concerns we've heard voiced by small farmers and their supporters over the past year with regard to these proposed FSMA rules are 1) that farmers would have to comply with rules that are completely inappropriate for their business(es) and 2) the cost of complying with the proposed rules would be prohibitive. Examples of these concerns abound. For example, the low ceiling for gross sales under the proposed rules—especially the inclusion of sales not subject to the FSMA—would ensnare many small farmers. Excessive composting rules would make compliance particularly difficult for small organic farmers (whether or not certified organic by the USDA). And water sanitation requirements would hurt still more farmers.
The FDA has heard these arguments against adoption of the proposed rules from hundreds of small farmers in listening sessions around the country over the past year. It is incumbent upon the agency not just to listen to these legitimate concerns. The FDA should reject these proposed rules outright because they would impose costly, discriminatory, burdensome, and inapt new requirements on small farmers.
2) The FDA should reject the proposed rules because they are expensive and unlikely to make food safer
As we note in our comments, the FDA says the specific purpose of the proposed FSMA rules is to “reduc[e] the public health burden of foodborne illness.” But according to the FDA's own data, these rules would likely only make a tiny dent in foodborne illness.
Based on Keep Food Legal's analysis, the proposed rules--if implemented with an entirely unprecedented degree of precision—-could under the FDA’s own best-case scenario reduce incidences of foodborne illness only by up to 5.7 percent. Using more realistic FDA estimates, that already meager percentage drops to somewhere between a likely reduction in foodborne illnesses of between 3.7% and 5.7%. All that for just a billion dollars per year!
3) The FDA should reject the proposed rules because they are unconstitutional
The U.S. Constitution’s Commerce Clause empowers Congress alone to regulate interstate and foreign commerce. The Tenth Amendment to the Constitution, part of the Bill of Rights, leaves to states and individuals alone decisions pertaining to purely intrastate commercial activities. Consequently, Keep Food Legal is as confident that the FDA has no authority to regulate purely intrastate commercial activity pertaining to food as we are that the FDA has plenary power to regulate interstate commerce. That means the FDA has absolutely no authority under the Constitution—and certainly under the Food Safety Modernization Act—to regulate farms and other food businesses that operate entirely within any one state. In addition to protecting individual rights and respecting the power of a state to regulate farms and other food businesses that operate solely within that state, this constitutional limit on the FDA’s authority has an important practical effect. After all, even if Congress and the FDA view the agency’s authority under the Constitution as more expansive than we do, individual farmers and entrepreneurs (primarily) and the local and state officials they elected (secondarily) know what is the best approach for maximizing both the safety and profitability of these farms and other food businesses.
For the foregoing reasons, Keep Food Legal urged the FDA, in comments we filed yesterday, not to adopt its proposed FSMA rules.
Read the complete comments we submitted here. And read Keep Food Legal executive director Baylen Linnekin's 2012 law review article on the history of America's flawed food safety regulations, The Food-Safety Fallacy: More Regulation Doesn't Necessarily Make Food Safer, here. Also be sure to check out other comments and testimony we've offered at the federal, state, and local level--on issues from food trucks to soda taxes to food marketing--here.
In addition to filing our own comments on the proposed FSMA rules, Keep Food Legal also signed on to comments by the Farm and Ranch Freedom Alliance--a fellow nonprofit advocacy group--that provide a more detailed critique of the FSMA's neutered provisions for exempting small farms.
Yesterday, in advance of today's hearing by the Vermont legislature's House Committee on Health Care on the potential levy of a soda tax in the state, Keep Food Legal submitted written testimony in opposition to any such proposal.
In our remarks, we argue that such a tax lacks support in the scientific literature, would have negative unintended consequences for Vermonters, and would infringe on consumer choice. And we applauded governor Peter Shumlin for his longstanding opposition to soda taxes.
After going into detail about the various flaws in the scientific arguments behind a soda tax, we urged Vermont legislators to reject such a tax because it
would take millions from struggling Vermont small businesses and consumers and hand it over to the state. Even its supporters admit that the proposed Vermont beverage tax is in many ways a revenue grab. For example, the Alliance for a Healthier Vermont claims a penny-per-ounce tax in Vermont “would raise $27 million/yr (sic)” and thus help cover the “state general fund budget deficit[.]”
A beverage tax would also harm the stellar national image of Vermont—a state known throughout the country for sweet offerings like pure maple syrup and Ben & Jerry’s ice cream. And if Vermont were to tax sugar-sweetened drinks that come mainly from out of state, what’s to stop other states from imposing similarly unfair taxes on real maple syrup?
Instead of cracking down on beverage makers and consumer choice, Vermont voters should urge Sen. Sanders, Sen. Leahy, and Rep. Welch to push for the federal government to stop wasting taxpayer money by subsidizing sugar and corn (which is used to make high fructose corn syrup, also known as corn sugar). Doing so would save Vermonters millions of dollars every year while getting government out of the costly, inane, and self-defeating role of both promoting sugar consumption (through taxpayer subsidies) and penalizing sugar consumption (through taxes on sweetened beverages).
Read our complete comments here. At 7:10 a.m. on Monday morning, Keep Food Legal executive director Baylen Linnekin will appear as a guest on WVMT radio--NewsTalk 620 AM--to discuss our opposition to the potential soda tax. You can listen live here.
Keep Food Legal has been critical of New York City Mayor Michael Bloomberg's outrageous proposal to ban many sweetened drinks greater than 16 ounces.
On Tuesday, July 24 Keep Food Legal executive director Baylen Linnekin appeared before the New York City Department of Health and Mental Hygiene, the city agency that may adopt the ban, and spoke out against the ban on behalf of Keep Food Legal's members and supporters in New York City and across the country. You can view PowerPoint slides from Linnekin's presentation here.
Keep Food Legal also submitted written comments in opposition to the ban that same day--also on behalf of its members and supporters in New York City and beyond. An excerpt:
Keep Food Legal, on behalf of its members and supporters, opposes the Proposed Amendment of Article 81 (Food Preparation and Food Establishments) of the New York City Health Code, found in Title 24 of the Rules of the City of New York (the “proposed ban”)....
The most obvious negative intended consequence is that the proposed ban would raise the taxes of New Yorkers—and do so in a most undemocratic manner. After all, at its heart the proposed ban is a revenue “bill” to be voted on by an unelected board that is intended to compel some New Yorkers to pay higher sales taxes. This would occur because a purchase of two sixteen-ounce beverages would a cost consumer more than a purchase of one beverage greater than sixteen ounces—and because sales taxes constitute a percentage of each sale and so rise in relation to the overall price of a sale. Mayor Bloomberg, both predicting and promoting the sale of multiple beverages the proposed ban would foster, said last month that when it comes to customers seeking one beverage greater than sixteen ounces, restaurants could instead “serve it in two” purchased cups.
[T]he proposed ban would restrict food freedom of choice. Mayor Michael Bloomberg opined last month that the right to drink a large soda is not one of the “freedoms.... that the Founding Fathers fought for.” But the proposed ban is (as previously noted) a revenue bill to be voted on by an unelected board. In this way (and others), the proposed ban very much harkens back to those acts of British economic aggression against the American colonies in the 1760s and 1770s—which, like the Sugar Act, nearly always centered on unfairly taxing and restricting food choices—that led the Founding Fathers to fight the American Revolution.
At the close of Tuesday's hearing, Keep Food Legal hosted a fun and fabulous (and well-publicized and well-attended) happy hour and soda salon at the great Northern Spy Food Co., a locavore-friendly eatery in New York City's East Village.
Linnekin has also spoken out against the proposed ban in the media--including on Dennis Miller's nationally syndicated radio show--and devoted two of his recent Reason magazine weekly online columns to the proposed drink ban. You can read those here and here.
What's next for Keep Food Legal when it comes to New York City's proposed ban? Stay tuned. And if you'd like to support our work in this and other areas, we urge you to please become a member of Keep Food Legal.
Washigton, DC's Department of Consumer and Regulatory Affairs (DCRA) has long considered proposed reforms to the District's regulations that govern food trucks. When DCRA recently issued proposed regulations, most supporters of food trucks were pleased with the content. But most also believed there were still a few pieces missing, and that some potentiall hurdles in the regulations should be removed.
When DCRA opened up the regulations to public comment, Keep Food Legal jumped at the opportunity to make sure our voice (and yours) was heard. Here is an exceprt from the comments we submitted before yesterday's comment deadline:
Keep Food Legal commends DCRA for proposing many regulations that would improve the climate for mobile food vendors and consumers in the District. Keep Food Legal, on behalf of our members and supporters, urges DCRA to ADOPT the proposed regulations insofar as they do not restrict mobile food vending. We support many of the elements of the current regulations and urge DCRA to also take the following additional steps:
1) DO NOT place any restrictions on mobile vendors based in any way on the items they serve. For example, the final regulations should not discriminate against food trucks that sell sweet (rather than savory or other) items.
2) DO NOT create the proposed Vending Development Zones that would no doubt be used to limit consumer access to food sold by mobile vendors.
3) DO NOT restrict operating hours for food trucks. Any regulations pertaining to hours of operation must apply equally to both food trucks and restaurants.
4) DO amend the proposed regulations to permit the sale of alcohol beverages from food trucks.
Because Keep Food Legal supports food choice--rather than particular food choices--we also urge DCRA to consider steps to alleviate the tremendous burden its regulations (and regulations enforced by other District agencies) place on brick-and-mortar restaurants.
You can read our complete response here. We also included by reference and link a 2011 Reason magazine article on DC food truck regulations written by executive director Baylen Linnekin. In case you haven't read that piece, you can do so here.