The Durk Pearson & Sandy Shaw®
Life Extension NewsTM
Volume 16 No. 8 • September 2013

Beware of Falling Dinosaurs:
A Continuing Saga of Corruption and Revolution

This article is a continuation of the talk we gave at Life Enhancement Products’ symposium in Las Vegas on preparing for an oncoming economic collapse which, among other things, will require planning ahead for your medical needs. Here we explore how food prices will slowly increase, then soar, as a result of taxes and regulations, including new FDA authority over the food industry. Stockpiling food may also be an important part of planning ahead to avoid falling dinosaurs.

The article “FDA’s Changing Culture: What Every Food Company Needs to Know” in the April/May 2013 Food Safety Magazine, came as quite a surprise. Trade publications, as a rule, defer to regulatory agencies. A food industry publication would never call the FDA personnel that inspect food plants “thugs” for example. This deference may be coming to an end as we approach levels of FDA (and other regulatory agency) corruption that makes such attempts at industry politeness as you are hit over the head by agency gangsters simply futile. The new article is a warning to the food industry by a food industry trade publication of what to expect from FDA operating under the new Food Safety Modernization Act (FSMA).

The article explains that “the agency [FDA] is quietly becoming much more inspection-oriented and enforcement-minded, even before FSMA is fully implemented.” The article notes that “[t]he demeanor of FDA personnel during inspections has changed as well. Inspectors (or ‘investigators’ as FDA refers to them) are much more assertive, often insisting on access to records before the new legal authority becomes effective and asserting their ‘right’ to take photographs even without express legal authority.” “Moreover, instead of simply collecting product samples for laboratory testing of finished product, inspectors are increasingly conducting extensive environmental testing throughout facilities. Environmental testing is more likely to detect a problem than finished product testing, making it an important tool for the agency during inspections. Such testing can be so extensive that some have dubbed this practice a ‘swab-a-thon.’” For an agency seeking to increase its power, a testing regime that is able to magnify the appearance of danger is simply made to order.

What the article is saying here, in plain English, is that FDA inspectors are often thugs who make demands for which they have no legal authority. The inspection of every detail of a food plant is not the most cost-effective way to establish safety. Most economists agree that the inspection of final products, which are after all the source of any potential health and safety risks to the public, is far more cost-effective than examining everything in a manufacturing facility. It is, however, much easier for the FDA to identify supposed safety problems when every feature of a food plant is examined rather than just the finished products, giving the FDA the opportunity to milk companies by assessing large fines. And unsurprisingly, bullies are the type of people who fit in well with an agency culture of enforcement.

The cost of protecting a food plant from such intensive searches (all without a search warrant), requiring extensive lawyer assistance, plus the costs of the fines that the FDA can demand for the slightest deviation from the myriad and often vague rules and regulations will increase the price of food. Moreover, the practice of defensive food production, just as in the case of doctors practicing defensive medicine,* piles on costs to production that eventually are passed on to consumers. When you see food prices go up, you might give a thought to how much of that the FDA is responsible for. The failure of the TSA to improve airline safety despite their “inspections” (tests have found it easy to sneak prohibited items, even guns, past these inspections) suggests that the FDA’s intensive food plant inspections are performed at a heavy cost. The TSA, in fact, frequently violates the First Amendment free speech rights of “inspected” passengers by arresting those that complain of mistreatment. Would it come as a surprise if we see the same from these more aggressive FDA inspectors?

* Defensive product production involving testing excessively in order to catch even unlikely sources of FDA inspectors’ attention, simply adds costs to production without benefit to customers but of course customers will have to pay the extra costs. In addition, whereas those doing a good job of producing food products for the public should feel a sense of achievement as benefactors of the general public, the threat of FDA demands and punishment hanging over your head and determining much of what you have to do in your daily work will rapidly change that to a culture of defensiveness and hostility.

† This reminds us of the time that Sandy sat down in a commercial airliner to find that the very intoxicated and scruffy looking guy next to her had taken out a very large (9" long) switchblade knife from his carryon and was attempting to impress her with it. She was impressed all right and, claiming she needed to use the toilet, had warned the plane personnel just before takeoff in time for airport security to come in and remove the guy from the plane. Every passenger on this plane as well as the crew owes Sandy a thanks for performing the real security check on this flight. Oh, and how did the knife get by airport security? Easy. The knife was made of titanium.

‡ We heartily recommend Emord & Associates as a source of legal advice on FDA inspections. (202-466-6937) (This is an entirely unsolicited endorsement for which we receive no payment of any kind. We have used the legal services of Jonathan W. Emord in our FDA lawsuits and other legal representation for over 20 years and recommend him and his firm without hesitation. The firm offers classes for how to deal with FDA inspections.)

The article goes on to explain how the FDA plans to expand implementation of the Park doctrine, where company executives can be held responsible for criminal misdemeanors for which they had no responsibility or knowledge, with personal fines of up to $100,000 if no deaths are involved, $250,000 if a death occurs, and up to 1 year’s imprisonment. The Park doctrine is considered a type of strict liability, where you don’t have to have had anything to do with the criminal act to be held responsible, hence, fined or imprisoned. And interestingly, if you are charged with one of these criminal misdemeanors, you are allowed no right to a jury trial! Whatever happened to the Sixth Amendment, which says, “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed …” The Sixth Amendment, like much else of the Constitution, has been made a nullity by power-lusting politicians and bureaucrats and by Courts unwilling or unable to defend the Constitution.

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