Baylen Linnekin on the Front lines of the Fight for Food Freedom
2015-06-27 · Guest: Baylen Linnekin (Executive Director of the Keep Food Legal Foundation) · 52:17
Food freedom and government regulation of food
Bob Zadek and Baylen Linnekin discuss the growing movement of “food freedom” and the legal battles against government overreach in our kitchens and grocery stores. They cover the FDA’s ban on trans fats, the regressive nature of soda taxes, the controversial California foie gras ban, and the landmark Supreme Court victory for property rights in Horne v. USDA.
Topics: Food Freedom, FDA, Trans Fats, Soda Taxes, Foie Gras, Horne v. USDA, Property Rights, Keep Food Legal Foundation, Nanny State, Regulatory Capture
Speakers:
- Bob Zadek: Host and business attorney
- Baylen Linnekin: Executive Director of the Keep Food Legal Foundation
- Caller (Bill): Listener from Boston
Introduction to Food Freedom [00:00]
Bob Zadek: Hello everyone, welcome to the Bob Zadek Show every Sunday at 9:00 AM. We are the only live libertarian talk radio show on the air all weekend. A libertarian desert, but for the Bob Zadek Show. Thanks so much for listening. We are the show of opinions, not attitudes. Thanks so much for listening.
During the heyday of the women’s rights movement, circa 1970, 1980, there was an increasingly popular bumper sticker as women protested governmental intrusion into their lives, somewhat involving abortion. The popular bumper sticker was: “Government, keep out of my uterus.” Remember that? It was very catchy. It would appear on a lot of Oldsmobiles, Fords, and Buicks, and perhaps a few VWs along the way.
Today’s show could probably, borrowing from the successful bumper sticker slogan, today’s show could be subtitled: “Government, keep out of my intestine.” Today’s show is about food freedom. The increasingly intrusive way in which government interferes with the kind of food we can buy in restaurants, the kind of food we can buy at the grocery store, the kind of food we even are allowed to eat in the privacy of our own kitchens.
This has been governmental creep in the extreme. It is growing. It represents a pretty dramatic decline in personal freedom and personal responsibility as the nannies in Washington and in the statehouses exercise their opinion on what is good for us and what is not good for us, denying from us the ability to take care of our own lives.
Of course, when the government starts to overreach, it is the natural consequence of that that very smart, very motivated organizations are formed to counteract the growing influence of government. One such organization is Baylen Linnekin’s organization. He is the founder and the executive director of Keep Food Legal Foundation. Baylen is our guest today, and Baylen is fighting the very good fight on trying to keep the government out of our kitchens, out of our grocery stores, and out of our gullets. Baylen, thank you for joining us this morning.
Baylen Linnekin: Thanks very much, Bob, for having me on.
The Mission of Keep Food Legal [02:20]
Bob Zadek: Now, Baylen, the big picture first. Your organization was formed—what was the motivation that caused you to form and create the Keep Food Legal Foundation, and what is the mission of the foundation? First, what caused you to form it, and then what is your mission?
Baylen Linnekin: Well, I think that there’s an obvious need for it. Regardless of what you like to eat, there’s some government employee, elected official at some level of government who wants to make sure that you can’t eat it. Depending upon the audience I’m speaking to, I like to characterize us either as a “Food ACLU” or, it may be more appropriate for your audience, a “Food NRA.”
The basic premise is that regardless of what people like to eat, their choices should be defended. So that means the person who likes to shop at the farmers market, that means the person who likes to shop at 7-Eleven. Their rights to consume food are equal and the same, and government shouldn’t pick winners and losers through a variety of policies designed to skew our food choices.
As far as what our mission is, largely it’s that: it’s to protect an individual’s right to grow, raise, produce, buy, sell, share, cook, eat, and drink the foods of their own choosing. That’s my definition of the term “food freedom.”
Bob Zadek: Now, what motivates—this is almost a silly question, but just to sort of set up the issue for this morning’s conversation—what is the motivation of government? Why does government collectively care, if government can in fact care, what we eat?
Baylen Linnekin: There are a variety of reasons. There are public health reasons—alleged public health reasons.
Bob Zadek: Oh, we should say “alleged” public health reasons.
Baylen Linnekin: Yeah. I mean, I think actually government has a legitimate role to play in protecting public health to some degree. But I think that many people mistake the idea that government should do a few things to mean that it must do everything. So I’m for a limited government, not no government. If someone is trying to poison food with cyanide or something like that, I think that’s an absolutely legitimate role of government to keep that out of the food supply.
So public health is one reason. Animal rights, animal welfare is another reason why government might want to intrude. There are revenue-raising reasons. So when you add these up along with other reasons, you find that your right to eat what you want is under attack from a whole variety of fronts and agencies and people at all levels of government.
The History of Food Regulation [04:50]
Bob Zadek: James Madison, no stranger to the Constitution since he was one of the principal draftsmen, observed that banning food was, in his words, “utter madness.” We lived, probably until 1906, with no foods being banned or regulated. It probably all started with Upton Sinclair’s The Jungle, when he wrote an exposé about the abuses in the slaughterhouses in the Midwest. That awakened the public to an area that we needed protection, and that ultimately gave rise to the FDA, the Food and Drug Administration.
So we certainly will say that no one would disagree that the government’s role is to sort of keep food safe in a way that humans cannot. We cannot inspect the meat we buy, and probably the marketplace is ineffective in a way to enforce clean food finding its way to the grocery counters and the butcher shops. But beyond the “absolute food is clearly harmful to us,” of course, that mission bleeds into areas as diverse as salt, cholesterol, sugar, and a subject you’ve written quite a bit about, which is trans fats.
The FDA Ban on Trans Fats [06:00]
Bob Zadek: Now, you’ve been writing a lot about the issue of trans fats. What’s been happening with trans fats? What is the issue, and what disturbs you about what the government is doing in the area of trans fats?
Baylen Linnekin: That’s a good question. If I may just back up a second, you mentioned that food wasn’t regulated until 1906 or so, and you’re right in most respects, but there were actually even in colonial America, there were regulations in place pertaining to food. There was actually at least one food, a product called “tortoise salt,” that was banned by Massachusetts, I want to say in 1641. So there were regulations in place. They were very loose, and they mostly pertained again to either adulteration of food or misbranding of food, or to things that could impact the public health.
So for the first 200 years of the country, even before the founding, there were regulations in place, but they were very, very limited. There were attempts at stricter ones, such as limiting say taverns, but those essentially failed and the Puritans were ultimately laughed out of Massachusetts—or at least laughed out of power.
So, fast-forwarding to today now and returning to your trans fat question. Trans fats, as your listeners may or may not know, are fats that occur naturally in the meat and dairy of ruminant animals like cows. So if you have a grass-eater and you eat its meat or you drink its milk, it has trans fats.
But around 50, 60 years ago, scientists came up with a way to make trans fats from vegetables. So they made vegetable oils and Crisco and things like that that were great for shelf stability—you could put a product on a shelf and it wouldn’t spoil immediately. They’re great for making things like frosting, which needs to hold its form on a cake, and for a variety of other things and for frying chicken and other foods.
So trans fats of the man-made variety became popular. There was a campaign against beef tallow and other cooking oils in the 1980s, 1990s. So it flipped from the idea that we were cooking in animal fat largely to cooking in vegetable oil, and it was trans fat-containing vegetable oil. The general sense was amongst activists and advocates at the time was, “Oh, this beef fat is terrible for you, but you should use these trans fats.”
Well, it turned out that actually artificial trans fats are not so good for us. And so the same groups actually—the Center for Science in the Public Interest being one of them that had advocated for the use of these man-made trans fats—suddenly were advocating exactly the opposite: “These are going to kill you.” And they started suing companies like KFC for using these oils in their food.
Well, the FDA was not terribly interested in acting, but Congress passed a law that essentially acknowledged trans fats are not terribly good for us and just required that the label of packaged foods contain the amount of trans fats per serving. And so that’s been in place for almost a decade. Well, there were a couple lawsuits which had asked the FDA to ban trans fats entirely, and one of those lawsuits was successful. And so just within the last, I would say, 10 days, the FDA acted to ban trans fats, and it’s going to be a gradual phase-in.
Bob Zadek: I think it’s a three-year phase-in.
Baylen Linnekin: Exactly. And so all partially hydrogenated oils that contain trans fats will be banned from the American food supply, unless some exceptions are carved out during the next three years, by 2018.
Warning Labels vs. Bans [10:30]
Bob Zadek: Now, Baylen, it’s interesting listening to your explanation, for which I thank you. You said a phrase, and I was paying attention—or trying to—more than once, which is, quote, “not terribly good for you.” That strikes me as being a pretty strange standard for banning something. The list of things I eat during the course of a given hour that, quote, “are not terribly good for me,” I should be pushing up roses a long time ago. I eat almost universally stuff that’s, quote, “not terribly good for me,” but that’s not quite the standard. Neither are cigarettes, nor sugar, nor lots of other things that I eat, quote, “not terribly good for me.”
So tell me about government’s intrusion in banning things that are, quote, “not terribly good for me.” Also, you use the phrase “they could kill you.” I guess what’s missing from that phrase is “they could kill you if you eat enormous or grotesque quantities over a short period of time.” Old age could kill you ultimately. So tell me about the standards that government does and ought to apply in going so far as to ban something, which is to intrude into my choices.
Baylen Linnekin: Right. Both good catches on your part. So the idea that, as you absolutely correctly point out, sugar isn’t good for us, alcohol and other things which most definitely, I mean even if you just look at road accidents, which is responsible for far more deaths annually than even the most damning portrait of trans fats can paint.
What standard should government use in terms of banning foods? I mean, my almost universal reaction is that government should never ban a food. And then I’m willing to listen to bans that don’t sort of comport with this. I say generally that where a warning will suffice, a ban is inappropriate.
So the trans fat information that the FDA required on packaged foods conveyed all the information people needed to know about whether there were trans fats in their food. Now, some people might quibble and say, well, due to some quirks of the FDA’s labeling scheme, if you had less than half a gram of trans fats, then you didn’t need to include that. And that’s a general standard that’s true. I mean, if there’s less than I think half a gram of alcohol in a food product per serving, then you needn’t mention it. Coca-Cola and orange juice, I think, are two things that contain trace amounts of alcohol. But we don’t require some sort of alcohol warning there.
So I think ultimately, if a warning works, then—and by “works,” I mean will suffice to convey information to people that a particular ingredient in their food may or may not be healthy—then that’s great. And you know, we buy ground beef, for example, that’s raw, and there’s a warning on it. It says, you know, “You should cook this to 165 degrees, and if you don’t, then you might get sick.” And I’m paraphrasing there. That’s exactly the sort of warning that would be appropriate for say raw milk or for trans fats. We don’t go ahead and ban ground beef. We don’t ban chicken. We don’t ban sushi because those things might sicken us. We don’t ban alcohol. And so if cyanide, which is a poison in the smallest dose, should never be in the food supply—except I guess in the pits of peaches where it occurs naturally—but otherwise, food ingredients should not be banned.
Bob Zadek: This is Bob Zadek. I’m spending a wonderful hour talking with Baylen Linnekin. Baylen is the executive director of the Keep Food Legal Foundation. 800-345-5639 to join my conversation. And no, you are not listening to the Iron Chef. This is Bob Zadek, the Bob Zadek Show, the show of libertarian ideas. Thanks so much for listening.
Now, Baylen, you talked about warning labels and whether or not they work or not. I don’t know how to—a warning label gives information. By the very fact a warning label is only designed to give information, not necessarily to influence behavior. And so a warning label simply by the fact that it’s there has to work.
And of course, we are inundated with so many warning labels. I’m reminded of—there was a little blurb that I read, some manufacturer of rearview mirrors that they installed in cars had a little sign printed on the bottom of the rearview mirror which said, “Caution: objects in this mirror may be behind you.” So warning labels are either helpful or not helpful.
But the issue is, if the government finds something to be harmful, the government can and often does impose warning labels—think of cigarette packs, for example. But then it’s a giant step beyond that to go to an absolute ban. In other words, the government doesn’t trust us to learn the information from the warning label and make our own decision about how to process that information. So rather than trust us to do what we think is best with our own bodies, the government then takes the next step and does an outright ban. And the issue of banning something to me is profoundly different, of course, than just giving a warning label, which itself might be a bit intrusive, but so be it. At least it’s not a ban. So ban is pretty dramatic stuff. And we would think that historically, bans were where something is poisonous per se. Fair enough. But where it is simply bad for you, well, people live their lives and do lots of things that are bad for people because they decide the benefit, psychic or personal, is greater than the detriment. That’s a decision we’re allowed, at least for the minute, to make. So isn’t banning a pretty extreme step and a great deprivation of liberty where the product being banned is merely bad for you as opposed to being “it’ll kill you in an hour”?
Baylen Linnekin: Yeah, I mean, the saying “the dose makes the poison” is always I think the most important thing to consider there. Obviously, drinking too much water kills people every year. So it really is up to whether something’s going to kill you perhaps over the long term if you continue to use it or consume it, and whether something will kill you immediately.
Raw milk, I mentioned before, is a great example. If it were the case—and it’s not the case—that every person who consumed raw milk got sick because raw milk always contained pathogens, you know, then government I think would have a pretty good case to consider banning it. But that’s not the case, and yet raw milk is, at least in interstate commerce, banned. And it’s banned in many states as well. And then there are some loopholes where you can, you know, buy it as pet food and things like that.
But I think that government should—Randy Barnett, who’s a professor at Georgetown University, a law professor there whose work I admire greatly…
Bob Zadek: Who wrote a magnificent book called Restoring the Lost Constitution, and he’s a great libertarian legal scholar.
Baylen Linnekin: Yep. And his, I think the subtitle of that very book which you referred to is “Presumption of Liberty.” And so he said, and I fully agree…
Bob Zadek: It changed my whole way of thinking about the law when I read that book. It was a profoundly important book.
Baylen Linnekin: Yep. I absolutely agree. And the idea is that the government should, you know, presume that we have a right and the burden is on the government to demonstrate if and where we don’t have a right and to explain why. So as you know, as a lawyer, especially in economic cases and many food cases are that, the presumption is that the government has the authority to regulate and to ban and to restrict. Whereas if we flip the burden and enable a slightly higher level of scrutiny of the government’s actions, then suddenly the government would have more difficulty proving that a given ban is appropriate. And a lot of my work is devoted towards doing that very thing.
The Soda Tax War [19:20]
Bob Zadek: Now, tell us about the soft drink wars. An issue of particular importance here in the Bay Area with the city of Berkeley, Baylen, which you’ll explain to us why Berkeley is important. San Francisco hot on its heels. New York, of course, also in the game. Tell us about the war against soft drinks and how counterproductive that is and what that’s all about.
Baylen Linnekin: So, I’ll start with Berkeley, which passed the first soda tax in the nation. It adds—this was last year—it adds approximately $1.50 to the cost of a six-pack of soda. And the justification there is that because sugar isn’t good for you and because soda contains a lot of sugar, ergo we should tax it. The money in that case goes into the city’s general fund, which means that it can be used for anything.
Bob Zadek: So in other words, not only are you going to die, but you’re going to die poor because you’re paying all this tax money. But go ahead.
Baylen Linnekin: Right. And actually, that’s a great point. We’ve heard for at least a generation now that lotteries were the way to solve our crisis in public education. And it turns out that despite lotteries, public education hasn’t gotten any better. And it acts as a tax on the poor because the people who buy the bulk of lottery tickets are low-income Americans.
Bob Zadek: And a tax on the people who have a gambling addiction as well. So you’re taxing people with an illness.
Baylen Linnekin: Yeah, you’re taxing people who are the most vulnerable and using it typically to pay for public schools in—I mean, let’s be frank—in nicer areas. Those schools always look far better kept up and they get the bulk of the better teachers and the maintenance and whatnot.
Baylen, we’re going to have to take a break for only 60 seconds. Please everybody stay tuned. I’m talking to Baylen Linnekin. Baylen is executive director of the Keep Food Legal Foundation. 800-345-5639. Please call with your favorite trans fat, sugar, or salt recipes.
Welcome back to the Bob Zadek Show every Sunday at 9:00 AM. We are the only live libertarian talk radio show on the air all weekend. 800-345-5639 to join my conversation this morning with Baylen Linnekin. Baylen is the executive director and founder of the Keep Food Legal Foundation. We are having a wonderful conversation about government intrusion into what we eat, what foods we can buy, the quantity of foods we can eat, and of course, the ever-present overlay of crony capitalism on all of this. 800-345-5639 to join my conversation. Share with us your favorite food regulation complaint if you wish. Thanks so much for listening.
Now, Baylen, before the break, we were talking about the Berkeley soda tax. San Francisco is likely soon to have one. We remember Mayor Bloomberg in New York with his attempted ban on 32-ounce servings of soda. Now, the ban is motivated by the fact that sugar is bad for you. But of course, sugar is neither bad for you nor good for you. It is simply if you eat too much of it, then it becomes bad. But people can decide how much they want to eat.
And of course, the overriding premise of a progressive government, of an intrusive government, is that we simply are intellectually incapable of making important life decisions about what we want to eat or not eat, and therefore we have to be nudged or prohibited against eating certain foods. So there’s a core premise that we are simply incompetent to run our lives, and only a group of very smart people, at least in their own opinion, in Washington and in statehouses can make these important decisions for us. Isn’t that the underlying premise, and aren’t they often wrong? Wasn’t there a case of salt where salt was found to be first bad for you and then, well, not that bad after all in terms of causing a heart condition?
Baylen Linnekin: Yeah, salt is but one example. And I say this as an attorney and I’m not a nutritionist and I never dispense nutritional advice, so I’m simply commenting on what scientists have shown.
Bob Zadek: Well, I’m an attorney and I constantly dispense nutritional advice, but it’s clearly always wrong. It just tastes good.
Baylen Linnekin: I’m firmly committed to the idea that anyone who listens to me for nutritional advice gets what they deserve.
Bob Zadek: They’ll end up looking like us, that’s all.
Baylen Linnekin: Right, exactly. So yeah, I mean, salt is one great example where the government is changing its mind, although slowly. But the science has gone from saying salt is bad to saying actually for most people salt isn’t bad. And saturated fat, the government is in the midst of changing its mind about that. We talked about trans fats, which many in government and many activists said for a time were the ideal replacement for things like beef fat, and then they completely switched.
So the government, as you said, the idea of some sort of technocrats in a room who can come up with some computer-generated ideal diet for every American, that’s a complete farce. And I think that people who believe that can be shown to be either extraordinarily wrong or complete liars during the course of a very brief conversation.
Bob Zadek: And on the area of the sugar tax, what happens is, of course, in the inner cities, there’s a lot of—statistically, there seems to be a lot of purchases of soda. So the theory is, let’s raise the tax to make it more painful, and these inner-city people, who not only are they lower income, but they are also, in government’s opinion, incredibly stupid and can’t manage their own lives. So let’s tax the heck out of them and punish them by a tax because they are too stupid to know better anyway. And these sugar taxes are just a wealth transfer.
And also, the duplicity of these sugar beverage taxes: they only focus on sugar which has been added, such as in soda, but they ignore sugar that occurs naturally in things such as fruit juice. So even if you give the government much more credit than they deserve in terms of how sensible the policy is, it only hits a small portion of the beverages with sugar anyway, and it doesn’t tax the beverages with sugar that perhaps middle-income people might consume.
Baylen Linnekin: Right. The whole “added sugar” campaign, which is another FDA-led campaign, it doesn’t touch, for example, as you said, fruit juices like orange juice. A glass of orange juice can contain as much sugar—total sugar—as does a glass, the same size glass of soda. And that doesn’t mean one or the other is good or bad, but it does mean that they contain the same sugar. And I quoted recently a Harvard public health study that says that your body doesn’t recognize the difference between added sugar and total sugar. 50 grams of added sugar is the same as 50 grams of total sugar. Sugar is sugar, and your body can’t tell the difference. So the campaign against added sugar is bizarre. It makes absolutely no scientific or logical sense. And so obviously there must be something else that’s pushing this, and it is the idea that the government somehow knows better what people should be drinking and low-income people particularly shouldn’t be drinking soda, and so we have to make it more difficult.
Bob Zadek: I defy the city of Berkeley to impose a tax on lattes and see how far they get. I defy them. A latte, of course, has tons of sugar as well.
Caller: Foie Gras Controversy [28:40]
Bob Zadek: Baylen, as expected, we’re starting to have some calls. We have Bill from Boston on the line this morning. Bill, welcome to the show. What’s on your mind?
Caller (Bill): Thanks, Bob. Thanks for having me on, and it’s good to listen to your show for the first time.
Bob Zadek: Welcome.
Caller (Bill): I’d like to ask your guest two questions. And the first, can you bring us up to date on the foie gras controversy in California?
Bob Zadek: Oh, that was—that’s a fun controversy. The question is for the audience: the foie gras, if I’m pronouncing it correctly, controversy in California. Baylen, if you can, tell us the history of saving the goose in California.
Baylen Linnekin: Right. And thanks for the question, Bill from Boston. I’m originally from the Boston area, so I’m excited to take your question. And so foie gras is—it’s a luxury food and it is made from the liver, the fattened liver of either a duck typically in this country or a goose, which is more common in France. And the animal’s fed a diet of grain and fat, it fattens its liver, and then it’s slaughtered. I think it’s about a month or so, and I’ve never produced foie gras, so forgive me if I don’t have the exact amount of time right.
But anyways, the farmer will feed the duck or goose a ton of food. I mean, they’ll overfeed them. Their liver then becomes engorged, and then it’s sold to wealthy consumers as a luxury item. And I’ve tasted it, and I mean, it’s tasty. If you like liver, you’d love it.
Bob Zadek: I happen to think it’s nasty, but you guys can think what you want. But go ahead.
Baylen Linnekin: I actually once went to a 16-course foie gras dinner where everything, including the dessert, contained foie gras, and it was nothing short of magical. And I pretty much…
Bob Zadek: And you lived through it! You’re a medical miracle.
Baylen Linnekin: I know. So California passed a ban on producing foie gras several years ago and then also said that it could not be imported into the state from other states.
Bob Zadek: What was the motivation for that ban?
Baylen Linnekin: So, as may not surprise you and your listeners, this was an animal rights, animal welfare argument that because the animal is fed—the goose or the duck is fed a lot of food—that this is cruel and that foie gras is a product of cruelty and therefore we, California, shouldn’t permit it.
And you know, it’s not to say that there aren’t some animals raised for foie gras or frankly for any food, whether it’s beef or poultry or pork or whatnot, that aren’t mistreated. And I think that’s a legitimate issue. But it hides the fact that most ducks and geese that are used for foie gras aren’t mistreated. They’re treated similarly to any other well-treated and well-fed farm animal.
So, California passed this ban, and the ban took effect, I want to say in 2012, and they were immediately sued as soon as the ban took effect by several groups. One, the lead plaintiff was a group in Quebec that raises geese and/or ducks for foie gras. There was a Hudson Valley Foie Gras, which is I believe this country’s largest producer based in New York State, and a couple other parties.
And they argued that California essentially had no power to regulate what was going on in New York or in Canada under the Dormant Commerce Clause—under essentially the principle that California can’t say what you can and can’t do on your farm in New York, which I think is a pretty darn solid principle. And I supported the lawsuit absolutely in principle and in fact. And sure enough, the court, the US District Court, I think it was in Los Angeles, found in favor of the plaintiffs, and so the California foie gras ban was lifted.
That case is now, I believe at this point, under appeal. It’s before the Ninth Circuit. And so it’s, as they say, winding its way through the courts. But I don’t see any possibility of it being revived. I think it’s a facially unconstitutional law. It’s vague. And in fact, it’s a ban that doesn’t even mention the words “foie gras,” it’s so vague. So I think that we can look forward to, for those of you who like to eat foie gras and you live in California, you can continue to do so free from bizarre restrictions. Bill, thanks very much for your call and thanks for listening to the show this morning.
Caller (Bill): My pleasure. Can Bob, can I toss Baylen a libertarian curveball and see how he swings at it?
Bob Zadek: By all means.
Caller (Bill): So here’s a question for the Keep Food Legal Foundation: what’s your position on the raising, selling, and serving of dog meat?
Baylen Linnekin: That’s a great question. And yeah, that’s a third-rail kind of question, and it horrifies me.
Bob Zadek: Now, dog meat—we’re not talking about dog food, we’re not talking about food for dogs, we’re talking about food from dogs.
Baylen Linnekin: Yep. Yeah, I mean, I guess this is sort of a libertarian purity test. So, I mean, personally I think it’s vile and disgusting. I know that, for example, there was a dog meat festival in China recently, and in India, cows are sacred. In China, they care very little, many people at least, about dogs. Obviously in this country we care about dogs and cats. I can’t say that I come down one way or the other. I mean, I guess I would defer to an individual’s rights to eat food that they want. On the other hand, if I would ever be okay with the law that would bar something, it would be that.
Bob Zadek: Bill, did we pass your test?
Caller (Bill): It was an interesting dodge. Thanks so much for having me on the show.
Bob Zadek: Bill, thanks for listening this morning. Appreciate your call.
Baylen Linnekin: Thanks, Bill. And it was an interesting dodge, I’ll admit.
Horne v. USDA: The Raisin Case [35:50]
Bob Zadek: There was a very important decision that came down this week from the Supreme Court where it reversed the Ninth Circuit. The Ninth Circuit being the 11 Western states and the most frequently reversed judicial district in the country—those guys never get anything right, notwithstanding they had a libertarian as the former Chief Judge, Judge Alex Kozinski, who continually does get it right.
But there was a food-related decision last week involving the most heroic raisin grower there ever was. Tell us about the Horne case and the impact on food and how that was a profound victory for liberty.
Baylen Linnekin: Yeah, so the Hornes are a couple in California who—due to a lack of a better term, this is how the USDA defines it—they “handle” raisins. They’re raisin handlers.
Bob Zadek: Well, so do I when I put them from the box to my mouth.
Baylen Linnekin: Well, then you’re subject to USDA regulation. I’m kidding. But so the basic premise is that for the privilege of doing business in this country as a raisin handler, there’s a USDA program called the Raisin Administrative Committee. Because I have no idea how people could possibly figure out how to get raisins from grape to customer without the help of the government. And I’m obviously being sarcastic. It’s pretty ridiculous. This is a program that’s been in place since the New Deal era.
And so this program essentially says that you have to turn over a significant portion of your crop to the Raisin Administrative Committee for the privilege of doing business. The Hornes sued after part of their crop…
Bob Zadek: We should mention that it’s not just a confiscation, but the committee’s job is to manage the retail price of raisins. And if raisin growers collectively grow too many raisins, thereby depressing the price in theory, they turn the excess raisins over to the committee so the price remains high, and the committee then will ultimately dispose of those raisins and share the profits with the growers. So it’s a way for the government to manipulate in a cartel-like fashion the price of raisins sold in the grocery stores.
Baylen Linnekin: Right, yeah, that’s an accurate telling of it. And there are similar programs with other fruits and vegetables and even I think like spearmint oil is also subject to similar restrictions in this country. Anyways, so at one point several years ago, the Hornes’ half of their nearly half of their raisin crop, which is worth hundreds of thousands of dollars, was ordered to be seized by the government. And this is because the amounts fluctuate that the government says it wants every year.
And the Hornes thought better of it and said, “You know, actually you can’t just take our raisins and not compensate us.” And the government said, “Well, you can pay us.” And the Hornes said, “No, that’s not really how commerce works in a country that’s free.” So they claimed it was an unconstitutional taking under the Fifth Amendment’s Takings Clause, and they sued.
The case had somewhat of an odd trajectory in that it went from the Ninth Circuit to the Supreme Court and then it was bounced back to the Ninth Circuit and then back up to the Supreme Court.
Bob Zadek: On the first round, I should mention briefly that the government said, “If you want to contest the taking, you have to pay the fine of like three-quarters of a million dollars. Pay us, and then we can hear your case.” And the Hornes said, “No, we want to contest first, and if we lose, we will pay you.” And the Supreme Court said the government cannot require paying the fine first as a condition of getting into court. And that was the first round of the controversy. Sorry, Baylen.
Baylen Linnekin: No, that’s—and you’re absolutely right in that, and that would have raised other constitutional concerns if you have to pay a fine in order to appear in court. We’re protected against that sort of thing.
Anyways, so this past week the Supreme Court ruled that in fact real property, including raisins, is protected in the same way that—sorry, personal property such as raisins is protected in the same way that real property like your home is protected by the Takings Clause. And this is frankly, it’s nothing new. They’re essentially just reiterating history.
And so the USDA program, the Raisin Administrative Committee, is now in very shaky constitutional territory. They’ll either have to rewrite the ways in which they operate or they’ll go away.
Bob Zadek: Baylen, we’ve lost your Skype connection is a little bit—we just left it for the minute. We’ll have to just ask you to call back. Baylen is calling us on Skype. So we’ll just disconnect from Baylen for the minute and have Baylen call us right back. Sorry about that minor interruption. That is no doubt the FDA jamming our lines.
During while I’m waiting for Baylen, I’ll just mention to my friends out there that there was one food that has been banned since 1971. I wonder if any of you know what that food is. There’s one food that has been banned entirely, and that food is haggis. Haggis is—it sounds to me to be a pretty nasty food. It’s a traditional Scottish dish made of sheep meat and oatmeal which is cooked in the sheep’s actual stomach and then sold. That was the first food probably banned entirely. That was a little filler while we’re waiting for Baylen to come back with us. Baylen is now back with us. Sorry, Baylen, for the interruption.
Baylen Linnekin: No, I think it was on my end. My apologies.
Bob Zadek: No problem. So please continue with the story of the Hornes.
Baylen Linnekin: Yeah, so the Supreme Court ruled this week that in fact the Raisin Administrative Committee does violate the Takings Clause of the Fifth Amendment. And so the Hornes are free and clear to do what they want with their raisins, as are other raisin handlers in the country.
And I think the thing that interests me most about the case is—and I wrote this in my most recent Reason column which was posted yesterday—the idea that food and protections of food was the very reason that we have the Takings Clause is something that I discussed in an amicus brief before the Supreme Court in this case.
The Supreme Court discussed—sort of bit around the edges, if I can use a food analogy—of this notion, although they didn’t discuss it sort of as a food freedom act. But I think it’s important to recognize that all the way back to Magna Carta and then in an early 1600s case from England, 1641 food law in Massachusetts, and then other things since then, that food and protecting food was very much part of the reason that we have the Takings Clause.
And James Madison, who you mentioned earlier, was very familiar with the idea that the British had during the Revolutionary War and even before that had taken colonists’ food without compensation. And so this is why we have the Takings Clause.
Bob Zadek: And actually Washington also took colonists’ food, but he insisted they be compensated. He actually wrote in his own hand notes in effect notes to Congress instructing that these farmers where Washington took their livestock to feed his troops to make sure they were compensated. So that was a very important principle during the founding era.
The Lifecycle of Food Regulation [44:20]
Bob Zadek: In the area of food regulation, there is sort of a lifecycle that I’d like our friends out there to be aware of. And food regulation seems to take the same lifecycle.
First, the government will call for transparency. That is, they want labeling requirements. Then, if the public doesn’t respond the way the government wants to the warning labels, then they start to scare you with predictions and often with kids looking pretty gosh-darn sick. And so it’s a brainwash. Then, if that doesn’t work, then they start to tax the food to further persuade you, like the soda tax, to behave in a way that they want. And ultimately they will ban it.
And then the government has an ally, and the ally is—the progressives are closely allied with the infamous tort lawyers of America. And the government then encourages class action litigation, in effect appointing all the tort lawyers to be unappointed attorneys general to beat up on the food producers with spurious perhaps, sometimes a little less spurious, claims. And the tort lawyers through class actions will pound the food purveyors and manufacturers into submission. That is almost the same lifecycle each time, and I’m mentioning that so we out there can see the early signs and be forewarned that this is happening.
Now, Baylen, we have only a couple of minutes. Tell us about your organization, your writing, and how the public can get more information and can help you fight the food fight.
Baylen Linnekin: Sure. So Keep Food Legal Foundation, we’re a nonprofit. We advocate for food freedom of choice, which I described earlier as an individual’s right to grow, raise, produce, buy, sell, share, cook, eat, and drink the foods of their own choosing.
And so that means we oppose, for example, farm subsidies, which single out a few different crops that the government thinks you should be eating more of, like corn. We don’t dispense any nutritional advice. We just say that people should have a right to make their own food choices.
And again, we’ve worked, for example, on a report with Harvard Law School’s Food Law and Policy Clinic several years ago to make sure that farmers markets weren’t being regulated too tightly. We’ve also fought against soda taxes and bans from an advocacy and education standpoint. So we don’t really care what the food is as long as it’s something that consumers want and that producers want to produce. We think that the government should mostly stay out of the way.
Bob Zadek: Now, you are certainly not taking any position that you believe will harm Americans. So how do you reconcile your basically keeping the government out of the marketplace or reducing their influence with the government’s goal of just making the country a healthier place?
Baylen Linnekin: That’s a great question. That’s a really great question. I mean, I think that when people are left to their own devices, they tend to make better decisions. I think that when, for example, farm subsidies are ended, we’ll see and protection say for sugar, which have existed in this country for a long, long time, when sweeteners aren’t being propped up by the government, they’ll be used less. They’ll cost more, and we might find alternatives.
When local farmers can sell their meat and their poultry, have it slaughtered locally and sell it to their neighbors, we’ll see lots of more small local farmers pop up. The problem of regulation isn’t that big business is overly regulated and the little guy has it easy. It’s largely that big business often supports regulations because it knows that it has a competitive advantage and can comply with those regulations far more easily than the little guy, particularly when it comes to food safety regulations.
I’m actually writing a book right now for Island Press, which is an environmental publisher located in the DC area where I am. And it looks at the way that food regulations often impede sustainable food practices. So either that they promote, as with farm subsidies, unsustainable food practices, or they prevent people from engaging in sustainable food practices. And I think that a lighter regulatory footprint, as I like to say, would make us healthier and, with more money in our pockets, wealthier.
Bob Zadek: Baylen, thank you so much for giving us an hour of your time. Thank you to all my friends out there for giving us an hour of your time. I’ll be back next Sunday for another hour of libertarian ideas. Thanks so much for listening. Have a nice Sunday.