The "Smart Choices" the Government Wants To Make For You

Hugh Hewitt
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Posted: Oct 21, 2009 5:15 PM
The "Smart Choices" the Government Wants To Make For You

Liz McNulty is a mother of four smalls and another one about to arrive.  She is also one of my law partners and a widely respected, very effective products liability litigator.  Liz also helps me spot the legal stories with crossover appeal to my radio show. She has been assisting me in understanding, for example, the vast dislocations brought about by the Consumer Products Safety Improvement Act's absurd demands on manufacturers of products intended for use by children which led to the destruction of countless small businesses and hundreds of millions in wasted inventory and sunk costs. Liz advises companies on how to deal with the Consumer Products Safety Commission and its staff and rules, and how to respond to plaintiffs' lawyers threatening or bring actions allegedly related to those rules.  (I have written about CPSIA here and here and National Association of Manufacturer's Shopfloor blog provides constant updates on the law.)

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Liz is about 9 months along in her pregnancy, but she found enough time on Monday to alert me to a story that is forming.  "Get ready for the deluge of suits against food manufacturers," she told me.  "The FDA is setting them all up for private plaintiffs' actions by the trial lawyers bar." 

I mentioned the story in passing on Tuesday's radio program  --the "Fruit Loops" story, I called it-- and like clockwork it appeared in Wednesday's Washington Post under the heading "FDA seeks better nutrition labeling: Pursuit of standards comes as foodmakers set up own systems."

An earlier article on the gathering controversy appeared in the September 4 New York Times"For Your Health: Fruit Loops."

The short summary:  Food makers have combined to work with nutrition experts to develop standards to brand food products in such a way as to communicate that the products comply with the government's dietary guidelines and widely accepted nutritional standards.  A large number of manufacturers have joined one such program, "Smart Choices" and now the Food and Drug Administration is weighing an intervention.  As far as I can tell, parents haven't risen up and demanded that the FDA act.  Consumers aren't marching on behalf of new standardized food labeling.   There is no Upton Sinclair on the best-seller lists with a "The Jungle" like tome denouncing the cereal manufacturers.

What there is is a new push for nanny-statism that boggles the mind.  Read the Times and Post stories closely, and you will see there FDA representatives fairly straining to break out into full "big brother" mode and regulate every food package in America.

"The government is interested in improving nutrition labeling on packages in part," writes the Times, "because of the nation’s obsesity epidemic, which experts say is tied to a diet heavy in processed foods loaded with calories, fats and sugar."

 "As a mother of two who frequently finds herself racing down the grocery aisle hoping to grab foods that are healthy for my family, I would welcome the day that I can look on the front of packages and see nutrition information I can trust and use," The Post quotes FDA big boss Margaret Hamburg as saying. "As the commissioner of FDA, I see it as my responsibility, and the responsibility of this administration, to help make that happen."

Think about this proposed new mission for the FDA for a moment, and just how vast it is.  If the government is suddenly in charge of the labeling of all food products for children on the theory that the government must prevent obesity, why wouldn't it be involved in the labeling of all food products for all people?  And beyond labeling, why not grab the authority to dictate what can and cannot be manufactured in the first place?

The problem isn't just the FDA of course, but also the legions of plaintiffs' lawyers who need a replacement for cigarette and asbestos plaintiffs.  Imagine the vista that is opening before them as they consider suits for damages brought against makers of all sorts of food products which can be alleged to have contributed to Dick's and Jane's diabetes developing at age 10 due to chronic obesity.  The jury will be presented with the FDA's statements and experts will testify on how the Fruit Loops fairly lept from the shelves into the mouths of children everywhere.  Cha-ching. 

"This is just one more segment of America being overrun by government regulation under the guise of 'assisting the unwary consumer,'" Liz wrote me in a follow-up e-mail.  "If consumers don't start taking responsibility for themselves and the choices they make, and start resisting the intervention, the government and the plaintiffs' bar will be more than happy to make their choices."

The industry --all of it, not just the bigs, right down to every potato chip and ice cream maker and even the producers of soy-- had better step up to shut down the FDA's early efforts to grab control of the marketplace.  Every rulemaking has got to be resisted and every bogus lawsuit contested or life without Fruit Loops, and every other food choice freely made, will be a memory within a decade.