The Cheese(makers) Stand Alone

In a decision that has been criticized on both the right and left, the FDA announced a ban last week (via executive decree) on the use of wooden boards for aging cheese. It has since relented after receiving pushback from cheese interests, including the American Cheese Society. While hardly unprecedented, this example of bureaucratic rule helps illustrate a few basic, fundamental problems with the administrative process.

First, the FDA did not use notice-and-comment rulemaking procedures to announce the ban. It merely fit the prohibition within an existing rule in the Code of Federal Regulations: a rule requiring that “all plant equipment and utensils shall be so designed and of such material and workmanship as to be adequately cleanable, and shall be properly maintained.” This relatively vague rule was interpreted by the Branch Chief of the FDA’s Center for Food Safety and Applied Nutrition’s Dairy and Egg Branch to prohibit the use of wood boards, which are porous and therefore more difficult to sanitize than metal substances.

Once the blowback began, the administrator suddenly changed position without much explanation. This illustrates that the ad hoc decisions of relatively unknown administrators, not the settled decisions of the agency, were at work. While there are procedures in place for the rulemaking process, much of agencies’ activities are now conducted through very informal memoranda, opinion letters, and the like.

Second, this policy threatened small, artisanal cheesemakers rather than large cheese manufacturers. Let’s just say Kraft isn’t as invested in upholding the process of aging cheese on wood boards as smaller, artisanal cheesemakers are. This illustrates a common effect of agency regulations: they hurt small businesses and favor their the large and powerful competitors. Many estimates of regulatory burden conclude that small businesses pay more in compliance costs than larger corporations. The Small Business Association, for example, has found that their compliance burdens are “36 percent higher than the regulatory cost facing large firms.” One cheesemaker determined that the replacement of his wood planks would cost him $20 million, which might be manageable for a large company like Kraft but makes it impossible to sustain a small cheesemaking business.

Third and finally, organized interests mobilized to lobby the agency for a reversal of policy. This shows a very important and often-overlooked fact about how the administrative state functions. It is highly responsive, but primarily to special interests who are mobilized and whose stake is significant. The public interest, which is diffused over the entire citizenry, cannot be brought to bear on the agencies because it is not concentrated in the same way.

Lawmakers in Congress quickly pounced on yet another opportunity to take credit for saving their constituents from the big bad wolf (that they created and fed). Peter Welch, who represents many of these cheesemakers as Vermont’s representative in the House, is planning to attach an appropriations rider to the Agriculture Appropriations bill prohibiting FDA from pursuing this policy. Senator Charles Schumer from New York slammed the FDA for “bureaucratic overreach” and threatened to press legislation correcting the agency if it did not back down. After the outcry from the cheese interests and from interested legislators, FDA quickly backtracked and declared that it would “engage with the artisanal cheesemaking community” before taking next steps.

The FDA, like any agency, relies upon Congress for authority and for funding. When the agency steps on constituents’ toes, if they are sufficiently organized they will receive the support of their representatives, who will advocate for the little guy against the big bad government. Constituents are so thankful to be relieved from the agency’s rule that they rarely consider how the whole process is set up to harm them in the first place.

FDA’s brief flirtation with shutting down wood aging in the cheese industry featured arbitrary changes in the law’s meaning, hurt small cheese producers, and illustrated how agencies respond to concentrated and special interests. Maybe common sense ultimately prevailed, but only after the agency induced panic. Meanwhile, Congress continues to take credit for fixing a problem that it, ultimately, perpetuates.

Joseph Postell is Assistant Professor of Political Science at the University of Colorado-Colorado Springs. His research focuses primarily on regulation, administrative law, and the administrative state. He is the editor, with Bradley C.S. Watson, of Rediscovering Political Economy (Lexington Books, 2011), and with Johnathan O'Neill, of Toward an American Conservatism (Palgrave Macmillan, 2013).

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Comments

  1. gabe says

    Congress IS the problem with it’s infatuation with delegation of its constitutional role to executive Agencies. Nice gig – seek and receive kudos for undoing what you should not have authorized in the first place.

  2. R Richard Schweitzer says

    No! They do not “Stand Alone.”

    Years back there were “issues” about wood vs. plastic (or glass) “cutting” boards. Actual research (science) came into play; some results:

    “We began our research comparing plastic and wooden cutting boards after the U.S. Department of Agriculture told us they had no scientific evidence to support their recommendation that plastic, rather than wooden cutting boards be used in home kitchens. Then and since, the U.S. Department of Agriculture’s Meat and Poultry Inspection Manual (official regulations) and the U.S. Food and Drug Administration’s 1999 Food Code (recommended regulations for restaurants and retail food sales in the various states of the U.S.) permit use of cutting boards made of maple or similar close-grained hardwood. They do not specifically authorize acceptable plastic materials, nor do they specify how plastic surfaces must be maintained.

    “It revealed that those using wooden cutting boards in their home kitchens were less than half as likely as average to contract salmonellosis (odds ratio 0.42, 95% confidence interval 0.22-0.81), those using synthetic (plastic or glass) cutting boards were about twice as likely as average to contract salmonellosis (O.R. 1.99, C.I. 1.03-3.85); and the effect of cleaning the board regularly after preparing meat on it was not statistically significant (O.R. 1.20, C.I. 0.54-2.68). We know of no similar research that has been done anywhere, so we regard it as the best epidemiological evidence available to date that wooden cutting boards are not a hazard to human health, but plastic cutting boards may be.”

    “While there are procedures in place for the rulemaking process, much of agencies’ activities are now conducted through very informal memoranda, opinion letters, and the like.” -Postell, above

    Those processes were once known as “File Drawer Law;” such as “Agency Policy,” etc.

    They derive largely from the need of personnel to “stay busy,” in order to give meaning to the status of superiors in the hierarchies of bureaucracies. That’s their job, really, to make their superiors appear useful, important or “essential.”

    Sadly, one of the most effective counters to those processes is intimidation (widely available), which many lawyers are reluctant to use since it may impair “relationships.” But, if one can accept being known as an SOB amongst the bureaucrats, one can prevent a world of disruption and harm.

  3. gabe says

    Absotively perfect!!!!!

    “They derive largely from the need of personnel to “stay busy,” in order to give meaning to the status of superiors in the hierarchies of bureaucracies. That’s their job, really, to make their superiors appear useful, important or “essential.”

    Sadly, one of the most effective counters to those processes is intimidation (widely available), which many lawyers are reluctant to use since it may impair “relationships.” But, if one can accept being known as an SOB amongst the bureaucrats, one can prevent a world of disruption and harm.”

    Richard:

    could we clone you? we would use wooden test tubes, of course

  4. Scott Amorian says

    From the CheeseUnderground at blogspot:

    “The most interesting part of the FDA’s statement it that it does not consider this to be a new policy, but rather an enforcement of an existing policy. And worse yet, FDA has reiterated that it does not intend to change this policy.

    “In an email to industry professionals, Rob Ralyea, Senior Extension Associate in the Department of Food Science and the Pilot Plant Manager at Cornell University in New York, says: “According to the FDA this is merely proper enforcement of the policy that was already in place. While the FDA has had jurisdiction in all food plants, it deferred cheese inspections almost exclusively to the states. This has all obviously changed under FSMA.”

    “Ah, FSMA. For those of you not in the know, the Food Safety Modernization Act is the most sweeping reform of American food safety laws in generations. It was signed into law by President Obama on January 4, 2011 and aims to ensure the U.S. food supply is safe by shifting the focus from responding to contamination to preventing it.

    “While most cheesemakers have, perhaps, begrudgingly accepted most of what has been coming down the FSMA pike, including the requirement of HACCP plans and increased federal regulations and inspections, no one expected this giant regulation behemoth to virtually put a stop to innovation in the American artisanal cheese movement.”

    In other words, this is another great example of political power shifting from the states to the federal government. Excuse me, but where in the Constitution is the federal government empowered to control what kind of material cheese may sit on while aging? I must have missed that Article. Obviously the Framers did not want their cheese to have cooties in it, or their oak aged wine, or their barrel fermented beer or sour kraut for that matter, either. Can’t have those things going bad, now can we.

    Rules make very poor governors.

    • gabe says

      Scott:

      Missed you for a while.

      Your post is on point especially considering Richard’s information above regarding the lack of evidence that wooden boards cause any problems.
      My god, where was the FDA when we really needed them 500 years ago as my ?Sicilian ancestors aged their fine cheeses. Oops, that’s right – that is what turned them into the Mafia (another headline from the Enquirer!!).

      Anyway, good to hear from you again.

      • Scott Amorian says

        I don’t have a lot of free time, and what little I have is going towards finishing Buckley’s The Once and Future King. (I read slow, but I read deep.) I still like to drop by every once-in-while to let you know I’m around.

        • R Richard Schweitzer says

          Scott, As the rural Irish mother wrote to her son in the U S:
          “I am writing this letter very slowly for I know you be a slow reader.”

          Surely Buckley , in being “deep,” wrote “slowly.”

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