On a related note, I can barely parse my writing from a year ago. I hope I don’t read like that to everybody else.

Last month, the FDA responded to FTCLDF’s suit that banning raw milk in interstate commerce is unconstitutional. Their rebuttal contained the following extremely concerning and outrageous statements:=

• “There is no absolute right to consume or feed children any particular food.”
• “There is no ‘deeply rooted’ historical tradition of unfettered access to foods of all kinds.”
• “Plaintiffs’ assertion of a ‘fundamental right to their own bodily and physical health, which includes what foods they do and do not choose to consume for themselves and their families’ is similarly unavailing because plaintiffs do not have a fundamental right to obtain any food they wish.”
• FDA’s brief goes on to state that “even if such a right did exist, it would not render FDA’s regulations unconstitutional because prohibiting the interstate sale and distribution of unpasteurized milk promotes bodily and physical health.”
• “There is no fundamental right to freedom of contract.”

I’ve contemplated this same conundrum myself many times. I’ve finally figured out what liberty-minded solution can fix this:

Community.

Not Communism, community. De Tocqueville’s little platoons network with other platoons to provide enough experts in all fields. It is the finding of the correct experts that you trust that makes your platoon function properly.

Such structures would require some minimum size to encompass significant numbers of experts in the multiplicity of fields a typical community deems necessary. There would also need to be enough flexibility to overlap fields as required.

This isn’t a complete thought yet, but this would work a whole lot better than a Federally mandated FDA certification.

You also have to keep in mind that the existing medical industry (particularly big pharma) would never have existed without Medicare. The research money for most expensive medecines we have today would never have been available without a basically unlimited supply of money from Medicare. Even private insurance companies would be too stingy.

Doctors used to be of fairly modest means. The most successful ones were on par with the most successful of any business endeavor. And they didn’t just treat an illness, they usually were able to cure things.

True that our scenario has provided us with many advances in medicine that have saved many lives that were otherwise left to die. But looking at the big picture, I wonder if saving those lives was worth the loss in liberty we had as well as the cost to society by having a more expensive medical industry.

First create a problem. Then offer an option that purports to solve the problem at the cost of some liberty.

In other words, we definitely need some organization(s) to test drugs and inform people about their level of safety and effectiveness. As you mentioned above, rather than the FDA, private organizations could “certify” drugs so that consumers know they are okay to use, kind of like all sorts of organizations rate all sorts of products for consumers already.

If the FDA has any role at all, then perhaps it could be a certifier of certifiers. The FDA could have certain requirements that if met would make a certifying organization a government-recognized certifier. Then consumers can choose which certifying organization they want to trust, whether government-approved or not, rather than everyone relying on the FDA. Or perhaps this role for the FDA could be the transition from all FDA to no FDA.

Good example. They already regulate it, in the sense that they have to write down a list of all the ingredients, plus the often taken for granted- “nutrition facts.”

I think this is really just a petty squabble between the FDA and General Mills. There are quite a number of “dietary supplements” which make bolder claims than cheerios, but they carry the fine print disclaimer on the side:”FDA has not evaluated these statements,” which Cheerios doesn’t. General mills doesn’t want to add the disclaimer because they think it’ll hurt sales- by association, they don’t want to have to market it as a “supplement.” So the FDA says, fine, we’ll just say it’s a bona-fide drug, then.

Connor,

You make two central arguments in the article and subsequent posts:
1) The FDA doesn’t do the job people believe they are supposed to do.
2) Consumers should have access to all drugs and make their own decisions on what drugs to buy.
The conclusion I tend to make here is that you believe all drugs should be legal because the government doesn’t to a good job of regulating drugs in the first place. I mostly agree with this. But like I said, I’m having difficulty with this one issue.

You allude to the legitimacy of legislation through appropriate representation vs. a bureaucrat making a decision without will of the people. I can see this argument. But we have the freedom principles that this fails to satisfy.

A free system cannot stop someone on “intent”. You must be stopped based on what you have already done. A free system cannot stop a mutual agreement (the initial purchase of a drug). Or are you arguing that a free system can?

I have made no such claim, but only have stated my opposition to the FDA having any say in the matter. If a drug is going to be outright banned in the country (or state or municipality), then I believe that it should be so done by the legislative branch. The people, through their elected representatives, should have the ultimate say in what they will or will not tolerate.

I’m having trouble sticking to a libertarian view on one issue in particular. There are many drugs that are categorized as a “date rape drug”. This includes something as simple as alcohol. But it also includes other drugs which are much more powerful.

Some in particular serve no other function than to render someone unconcious, with amnesiac effects later on. They do not provide a “buzz” like alcohol or other drugs. They do not provide any medicinal purpose. They are too unpredictable to be used professionally as an anesthetic.

While we can make the case that even alcohol can be used to perform the heinous act, it is the surreptitious nature of these drugs that concerns me. Based on all we know, the only known legitimate purpose of such a drug would be to render someone unconcious without regard for that person’s safety (too many side-effects).

It is so extreme that the mere posession of the drug would mean that you really have no other intent than to rape someone.

Without getting into the Minority Report paradox, can you really say that such things should not be illegal?

This article contains a story that perfectly describes what I’m talking about.

Wait a minute though; isn’t it a bit inconsistent, to extol the virtue of personal consumer choice, but then accuse consumers of being hoodwinked by the government’s “mantle of authority”? Lies, damn lies, or statistics?

The only virtue I’m an extolling is that of individual agency—the liberty to freely choose what one desires. Consumers can be lied to both by government and private industry, though only one carries an implicit recognition of authority. But what I aim for is informed decisions, regardless of what the people choose, and what influenced them. The FDA restricts information and access to resources, which is the opposite of what I think should happen in a country that respects individual liberty.

It would seem your real problem is with the products the FDA DOESN’T let through.

My problem is not with the products at all, really. My main problem is the way in which this government agency alters the decision making process—both by restricting access to products that one may desire to use, and by giving its stamp of approval to products which in many cases do a great deal of harm. The free flow of goods and access to both information and resources demands that we eliminate the corroded bottleneck in the middle.

Would it be more just if they let products ship that they hadn’t approved, but added a warning label that said “ingest at your own risk, not ours”?

I don’t think that the government should even be in the approval business for food and drugs to begin with. Neither should they be in the advisory business or warning people to “ingest at your own risk”. I don’t elect people to tell me what to have for dinner, or warn me that eating too many Nutty Bars is bad for my health.

I think this is a bit idealistic, and I’d like to invoke social contract theory.

We have a social contract. It’s called the Constitution. And nowhere in that document did we give consent to an entity like the FDA.

While you, Connor, find arbitrary interference by the government to be unacceptable, I find the condition I believe would result from the absence of the FDA and the laws it enforces, to be similarly unacceptable.

But evidence overwhelming suggests that the distortion created by FDA approval (explicit or otherwise) contributes to a great deal of suffering and death in this country.

Which evidence? (just to clarify.) I don’t think the evidence is that clear. The sheer number of recalls, by itself, indicates that there are a lot of products. But in fairness I’ll retract my previous statement about the FDA saving lives, since I guess it’s a matter of opinion. (Note: the link you gave in your last comment is a poorly written propaganda piece. You could have done better than that.)

This is simply human nature. But government wears a mantle of authority that private industry cannot, and thus more easily foists their folly on the rest of us.

Wait a minute though; isn’t it a bit inconsistent, to extol the virtue of personal consumer choice, but then accuse consumers of being hoodwinked by the government’s “mantle of authority”? Lies, damn lies, or statistics?

OK, I guess there is a difference in that it’s easy to sue a drug manufacturer, but difficult to sue the FDA for approving a drug. That’s not a question of restriction of choice, but an issue of the unjust exercise of power.

But I cannot and will not support a federal agency that aims to policy every food and drug product that sits on our nation’s shelves.

Well, they don’t really, do they…….they regulate companies more by fear than by force. Their real function is to protect companies from lawsuits when they follow the rules.

It would seem your real problem is with the products the FDA DOESN’T let through. Would it be more just if they let products ship that they hadn’t approved, but added a warning label that said “ingest at your own risk, not ours”? E.g. tobacco.

I agree that the approval process

This discussion seems to be a variation on the more general idea that the principle catalyst of socioeconomic problems is, in fact, government interference. This is something I don’t feel is universally, or even generally true. I think I’ve accused you of hasty generalization in this respect before……I.D.K.

Another part of your argument is the idea that the individual’s right to choose is a “moral imperative”, and the moral hazard of countermanding this outweighs any specific good that may be done.

I think this is a bit idealistic, and I’d like to invoke social contract theory.

OK, the idea of social contract is that individuals in a society cede certain personal rights to the government, in exchange for the government protecting other ones. Which rights are overruled and which are defended is based on a heuristic examination of the state of society in the presence or absence of such restrictions. (philosophy 2010)

Therefore, I think there is a fair moral argument for the existence of the FDA, or something similar, in light of all the insane, irresponsible stuff that was going on in the 19′th and early 20′th century. Don’t act as if the issue is morally one-sided. In my mind it’s not a large moral problem, it’s a practical problem and moreso a legal one.

I apologize if this is a bit poorly strung together.

I have read neither.

I think your faith in consumers to make good decisions is a bit misplaced.

I have far more faith in an individual’s sovereign right to make informed (to the extent possible) decisions than I do the results of delegating that authority collectively to the government.

In reality consumers rarely have the time and patience to do due dilligence.

Agreed. But this need can itself be an opportunity for (non-governmental) organizations to provide authoritative, well-vetted, non-partisan reviews, tests, and information regarding a type of product. Independent research groups could easily fill this role and be free from the regulatory burdens and political tap dancing that government introduces.

They can easily be swayed or blinded by marketing.

And the government doesn’t do its own “marketing”? Can anybody say “War in Iraq”?

They can even be persuade to buy an unsafe product, in spite of the most damning of evidence.

This argument seems to support my argument more than it opposes it. Read the link I included in the article to see just what I mean (one of many examples).

Particulars aside, I think that an individual’s right to decide for himself should remain paramount. Having the government refuse to allow me to try out a product that I may think be helpful to me is asinine. Can people be duped and persuaded into trying products that will harm them? Absolutely. Did you see that link regarding 2009′s 707 (and counting) recalled products?

It is merely in a company’s best interest to make money, and to have consumers buy it’s products.

And if a product kills somebody, then fewer consumers will buy its products. While there may be sinister motives here and there, market forces will always work in the end. Products that help and heal people will continue to gain market share, while products that have less than rosy results will fail.

How? And by whom?

Through the courts, by those who have been defrauded or injured in some way.

In the the absence of laws and regulation to effect, courts can accomplish little.

I don’t think that this is a strong argument for heavy-handed food and drug regulations. Grownups should be allowed to live their lives as they please. We’re enticed by all sorts of advertising, and so to claim that a nanny state should be created to prevent people from making bad decisions is not only a dangerous pretext for authoritarian government as an embraced way of life, but a overly simplistic method of dealing with what is perceived to be a harmful product. Education and persuasion will always win out over regulation and restriction. After all, black markets thrive on government-controlled markets.

Removing regulations effectively forces the consumer to operate under the assumption that all products are safe and effective until proven otherwise.

I disagree. The absence of regulation would, I believe, lead an individual to do their own homework before testing something out. If they choose to assume otherwise, than that’s their own problem, isn’t it? But on the whole, I think far more people would research a product and its alternatives if they weren’t limited in their options.

Caveat emptor may be OK for certain kinds of products, but at what point do the risks become too much?

Too much to do what? Institute laws prohibiting certain products outright? I oppose the FDA for the same reason I oppose seatbelt laws—people own their own bodies and should not have their agency limited by imposed restrictions of little import to society as a whole.

Even though many if not most make drug-like marketing claims.

Anybody who judges a book by its cover, as it were, will likely quickly learn a good lesson about doing the due diligence I have mentioned. Accepting these claims at face value is a person’s personal option regarding the choices they will make about what to use and consume. What good are we doing if we try to prevent people from making bad decisions?

I’m sure you’re familiar with the whole debacle over ephedra, this should be evidence enough that in the absence of regulation, companies can and will sell unsafe products to an unsuspecting public.

One might make the argument for education. In the absence of a federally-reviewed school curriculum, school teachers can and will teach incorrect and misleading information to an unsuspecting classroom. At some point we have to allow people to make their own decisions, fight back through due process when necessary, and move on and learn from their mistakes.

Are you saying that people ultimately have themselves to blame for getting sick from bad products? Not quite, I think.

Yes, actually, I am. If somebody chooses to ingest something, then they’re left to suffer the consequences, whether positive or negative.

Private industry is even better at it.

This is simply human nature. But government wears a mantle of authority that private industry cannot, and thus more easily foists their folly on the rest of us.

How so? Where lies the legal burden of proof? On the consumer again? How would that happen? Would a drug be put on the market, and then if people started to get sick and die, then legal action would be taken at length? Or not? You’ll forgive me if I don’t exactly have funds for clinical research at my disposal, nor for a long protracted tort lawsuit.

Then only consume products that have reliably and repeatedly demonstrated positive outcomes in those who have used it. Nobody is forcing you to ingest what others are offering. If a company makes a specific claim and you can prove otherwise, then you have recourse to sue them if you so desire. But I cannot and will not support a federal agency that aims to police every food and drug product that sits on our nation’s shelves. Not only is it (you guessed it) un-Constitutional, but it’s untenable. As pointed out in the article, the sheer number of recalled products demonstrates this.

…since unlike military spending, the FDA actually DOES save lives.

If you ignore the deaths caused by the existence of the FDA, then it’s quite easy (and convenient) to make this claim. But evidence overwhelming suggests that the distortion created by FDA approval (explicit or otherwise) contributes to a great deal of suffering and death in this country.

I think your faith in consumers to make good decisions is a bit misplaced.

In reality consumers rarely have the time and patience to do due dilligence. They can easily be swayed or blinded by marketing. They can even be persuade to buy an unsafe product, in spite of the most damning of evidence.

After all, it’s in the manufacturer’s best interest to make a healthy and helpful product; killing the customer is generally understood to be bad for business.

I find this to be an extremely naive statement. It is merely in a company’s best interest to make money, and to have consumers buy it’s products. If making a product safer interferes with a company’s profits, or it’s ability to sell it’s products, then in general they will do everything they can to resist doing so.

Good examples of this are Lead paint, tobacco, car seat belts (and the automotive industry in general), alcohol, asbestos, the mining industry, pesticides, the list goes on and on.

Relying upon the manufacturer’s assurances of safety is, of course, the furthest thing from oversight and trustworthy approval that possibly exists.

I think this would be even MORE true, not less, if the FDA didn’t exist. (I don’t care if I’m taking this out of context……)

None of these arguments suggest that manufacturers should not be held accountable for the quality of their products. The opposite is true—fraud, harmful products, false advertising, and all other related business practices should be dealt with accordingly.

How? And by whom? Consumers? False advertising is notoriously difficult to prove in court. I mean, just look at the history or tobacco lawsuits. In the the absence of laws and regulation to effect, courts can accomplish little. Removing regulations effectively forces the consumer to operate under the assumption that all products are safe and effective until proven otherwise.

Caveat emptor may be OK for certain kinds of products, but at what point do the risks become too much?

Not being classified as drugs, these products fall outside of the FDA’s jurisdiction,

…….Even though many if not most make drug-like marketing claims.

I’m sure you’re familiar with the whole debacle over ephedra, this should be evidence enough that in the absence of regulation, companies can and will sell unsafe products to an unsuspecting public. Are you saying that people ultimately have themselves to blame for getting sick from bad products? Not quite, I think. (Note: we have Utah’s own Senator Orrin Hatch to thank for this nice little technicality, which has effectively earned him millions.)

Government is masterful at misdirection, misallocation, and misinformation.

Private industry is even better at it.

Left to compete freely on the open market with other drugs and products (in absence of the FDA), the product would have to demonstrate its ability to do what is claimed.

How so? Where lies the legal burden of proof? On the consumer again? How would that happen? Would a drug be put on the market, and then if people started to get sick and die, then legal action would be taken at length? Or not? You’ll forgive me if I don’t exactly have funds for clinical research at my disposal, nor for a long protracted tort lawsuit.

I agree that the FDA approval process is arcane, costly, and inefficient. I also agree that it it’s a huge disincentive to drug development, (for all but the biggest drug companies, that is.) But this in itself does not excuse a blanket buyer-beware policy, not when many lives would be at stake.

Instead, I think the FDA should update and streamline it’s approval process. Though, not in the sense of relaxing standards, but in requiring less documentation and less legal-rigmarole. I think they should require peer-reviewed, third party testing. I think they should also close a number of legal loopholes, some of which you’ve mentioned. The latter would be relatively easy.

I think that laxities and inefficiencies at the FDA are mostly a reflection of a lack of manpower, funds, and more importantly, public attention. In this instance I’d argue that tax dollars are relatively well spent, since unlike military spending, the FDA actually DOES save lives.

(Yes, that’s the libertarian in me).