December 4, 2018 Reading Time: 5 minutes

Romaine lettuce was the big food panic of November 2018, with the FDA, the CDC, and tens of thousands of news reports, including many issued by the industry itself, warning against it because of E. coli. The product vanished from shelves and restaurants within a day.

(Lest we think this is just a private sector problem, I’m writing from Atlanta, where the city is telling residents to boil their municipal water because of some contamination.)

Take a step back from the temporary lettuce mania and consider the risk factors here. At the time of the product recall, 43 people might have been affected, maybe from romaine but one can’t know for sure. At worst, the probability you would be hospitalized from eating a contaminated product was 1 in 28 million.

As Jim Prevor observed in the Wall Street Journal, “the probability of getting a royal flush in poker is dozens of times as great, at 1 in 649,740.… If this outbreak were active every day, and you ate one salad a day, on average you would be hospitalized for E. coli once every 77,000 years.”

So, yes, everyone got carried away, and it was a disaster for the romaine industry, one that it hopes never to repeat. A panic earlier in the year cost the industry $77 million and a 44 percent decline in sales. This latest one will be even worse, and the industry is scrambling for solutions, even to prevent one infection, as low as the odds are. Some are even talking about using blockchain to better trace provenance.

Food Regulation

It’s one of the most puzzling claims of the pro-regulation ideology: food makers and sellers have a weak incentive to make sure their food is safe for consumption. The briefest look at the dynamics of this food panic reveals the opposite. Selling an unsafe product is catastrophic for industry. And yet it is nearly universally presumed that we would all be buying and consuming poisons daily were it not for food regulators in Washington who tell people how to keep food safe. They must stand ready to issue recalls, the thinking goes, else we would be doomed.

The myth was born in the early years of the 20th century, with Upton Sinclair’s The Jungle of 1904. It was fiction, but very compelling. The horrors of the meat-packing industry described therein (including scenes of workers falling into vats of boiling fat) inspired the first large-scale federal regulation on food safety: the Meat Inspection Act of 1906. Theodore Roosevelt saw this as a necessary first step “to do away with the efforts of arrogant and selfish greed on the part of the capitalist.”

And that’s usually where the historical memory ends. The federal government rescued us from unsafe meat, and that’s it. Now it keeps us safe from poisonous lettuce. This story accounts for the wide support for government’s involvement in stopping food-borne illnesses today. It is the founding template for why government is involved in our food and health at all.

Did the Regulation Work?

Let’s look back at this meat-packing history. Did the regulations achieve their aims? Did the situation improve, and, if so, was this improvement due to the regulations or to private innovations? Or did the problem get worse, and, if so, can the worsening be traced to the regulations themselves? These are the sorts of questions we need to ask.

There is something in this little-known history that speaks to the entire basis for government management of health. The legislation required federal inspectors to be on-site at all hours in every meat-packing plant. At the time, regulators came up with a shabby method for detecting bad meat, namely poking a rod into the meat and smelling the rod. If it came out smelling clean, they would poke the same rod into the next piece of meat and smell it again. They would do this throughout the entire plant. This was the supposed fix.

But as Baylen J. Linnekin points out in “The Food-Safety Fallacy: More Regulation Doesn’t Necessarily Make Food Safer” (Northeastern University Law Journal, vol. 4, no. 1), this method was fundamentally flawed. You can’t necessarily detect pathogens in meat by smell. It takes a long time for bacteria to begin to stink. In the meantime, bacteria can spread disease through touch. The rod could pick up bacteria and transmit it from one piece of meat to another, and there was no way for inspectors to know about it. This method of testing meat almost certainly spread any pathogens from bad meat to good meat, ensuring that an entire plant became a house of pathogens rather than having them restricted to just one carcass.

As Linnekin explains: “USDA inspectors undoubtedly transmitted harmful bacteria from one contaminated piece of meat to other uncontaminated pieces in untold quantities and, consequently, were directly responsible for sickening untold numbers of Americans by their actions.”

He continues:

Poke-and-sniff — incredibly a centerpiece of the USDA’s meat inspection program until the late 1990s — was, in terms of its sheer efficiency at transmitting pathogens from infected meat to clean meat, nearly the ideal device. Add to this the fact that the USDA’s own inspectors were critical of the inspection regime from the start, and that the USDA abdicated its inspection role at hundreds of meat processors for nearly three decades, and it becomes quite apparent that instead of making food safer, poke-and-sniff made food and consumers less safe.

That’s a very long time for a bad regulatory practice to persist. This is the way it is with regulations. Once a rule is in place, no one can seem to stop it, no matter how little sense it makes. This is why you can’t get a decent gasoline can anymore. And you know this if you have ever been in the TSA line at the airport. The sheer irrationality strikes me every time — and it strikes the TSA employees, too. They are taking away bottles of shampoo but allowing lighters on planes. Sometimes they confiscate a corkscrew and other times not.

Whenever government imposes a rule, it begins to operate as if on autopilot. No matter how brainless, damaging, irrational, or outmoded it happens to be, the rule ends up trumping the reasoning of the human mind. This becomes a very serious matter regarding health. Ruling this sector of life, you don’t want an overlord who is unresponsive to new information and new evidence and innovation — a regime that specializes in following a routine, no matter how bad, rather than improving itself with a testable goal in mind.

This is why in societies where governments rule, things slip into a frozen state. This is why even today Cuba seems like a tableau of the 1950s. This is why when the curtain was pulled back on East Germany and the Soviet Union in 1989-91, we found societies that seemed stuck in the past. This is why the postal service can’t seem to innovate and why public schools are still structured as if it were the 1970s. Once a government plan is established, it tends to stick, even when it is not achieving its aims.

The case of poke-and-sniff in meat packing should serve as a warning for all government regulatory measures, whether designed to protect us from disease or bring us safety or any other reason. We live in a world of change and of growing knowledge. Our lives and well-being depend on economic systems that can respond to change, extract that growing knowledge, and enable it to be used in ways that serve human needs. A competitive market economy specializes in doing just that.

If I had to choose to trust either (1) a self-regulating lettuce industry that pays dearly for any mistakes made in food safety, or (2) granting special powers to far-away and detached public sector employees with no localized or specialized knowledge in any particular industry, the choice seems rather obvious. As the latest case of romaine lettuce demonstrates, the contribution of regulators here can be dubious, redundant, generative of unnecessary panic, or even contrary to the goal of safety.

It’s been going on for more than 100 years with no end in sight.


Jeffrey A. Tucker

Jeffrey A. Tucker served as Editorial Director for the American Institute for Economic Research from 2017 to 2021.

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