On (cr)edibility: why food in the United States may never be safe.

• Author: Stearns, Denis W.

INTRODUCTION

"Sharing food with another human being is an intimate act that should not be indulged in lightly." (1)

In the ongoing political--not to mention, legal, historical, philosophical, and economic--arguments about the regulation of social and economic activity by government, one of the dominant theoretical controversies has been over the answer to this question: do regulations "interfere" with the marketplace by creating unnecessary inefficiencies and higher costs, or are regulations a necessary corrective for the inevitable "failures" of an unregulated (or "free") market? (2) While this controversy remains justifiably open in the context of the markets for many products and services, e.g., transportation and energy, the core thesis of this Article is that there is no rational--which is to say, cogent and fact-supported--justification for an argument in favor of a "free" market for food.

There are, of course, innumerable ways to define (or dispute) what constitutes a "free" market--thus, the use of the quotation marks at the outset is to signal that the meaning of the word is in play. (3) But for purposes of what follows, and without intending to take the term entirely out of play, I will (dropping the quotation marks) use free to describe a market that is self-regulated: a market where buyers and sellers are able to act however and whenever they choose, and to transact business on terms of their own choosing, solely based on self-interest. In sum, it is a market that, according to Adam Smith, is "led by an invisible hand," (4) and which, aptly enough, he explained using the sale of food as an example, writing: "It is not from the benevolence of the butcher, the brewer, or the baker, that we expect our dinner, but from their regard to their own self interest." (5)

The other term that needs explaining here is the "(cr)edibility" of this Article's title. As used, this is neither one term, nor two; and no fixed or parallel definitions are intended. What is intended is a multiple and free association of meanings in dialogue; a twinning, conjoining, and overlapping of concepts of edibility and credibility, either and both, intended to illustrate, in as many ways as possible, that edibility encompasses and exceeds, in meaning and practice, the narrower ideas of a trust in food safety--that state of believing that food is, in fact, safe to eat because eating it will not have any adverse health effects. Thus, as used, edibility includes the ideas of wholesomeness, nourishment, satisfaction, and even delight. Similarly, credibility, the spelling and meanings of which subsume edibility, invokes the ideas of honesty, generosity, good faith, and fair dealing; and it anticipates the basis of the bargain that is (or should be) at the heart of food exchange--I am receiving what I sought and for which I fully paid. Accordingly, and in sum, the term (cr)edibility is intended to reveal food exchange as an essentially (and unavoidably) intimate act that can never be fully commercialized. The exchange of food, whether by gift or sale, is founded and made possible by trust of the most extreme and significant kind. There are few things that make one more vulnerable than eating. Accordingly, (cr)edibility is the sine qua non of food exchange.

With these meanings in mind, I intend in this Article to interrogate the idea of food safety by opening the question of whether a rational economic actor in a free market for food can reasonably be expected to invest in improving the safety of the food products he makes and sells. In opening this question, I will try to show just how naive it is to expect any economic market--whether free or regulated--to create, on its own terms, enough safety to satisfy consumer expectation, which is to say, enough safety to be (cr)edible. I will additionally explain that it is precisely the lack of (cr)edibility in the market--i.e., the absence of reliable quality signals, the lack of traceability, the high degree of anonymity, and the destruction of trust--that creates the structural impediments and powerful disincentive for improving the edibility of food. I will then close by offering some thoughts on proposed core values that, if somehow made an essential or defining part of the market for food, would go far in making food in the United States, if not (cr)edible, at least much safer to eat.

1. THE IMPOSSIBILITY OF A FREE MARKET FOR SAFE FOOD

   A free market for safe food in the United States is impossible because there are no set of circumstances under which a free market could exist in which the food bought and sold there could be safe, and reliably known as such at the time of purchase.

   Take, for example, a recent outbreak of salmonella infections that was linked to the consumption of Veggie Booty snacks, a product described on its producer's website as follows:

   Veggie Booty will change the way you eat, while enjoying the finest snack on the planet. Veggie Booty puts you in the mindset to eat healthier and change your life, take it on a train, or in your car, on a walk, or on a boat, Veggie Booty will be your good friend. This is a life changing snack that will help you eat healthier. (6) Over sixty persons living in twenty states were confirmed by the Centers for Disease Control and Prevention (CDC) to have been infected as a result of eating Veggie Booty contaminated with salmonella. (7) The source of the contamination proved to be parsley imported from China that, once finely ground, was used as an ingredient to make the Veggie Booty spice mix--that is, the spice coating applied to the puffed corn snack in order to make it "healthier." Of course, the person buying the Veggie Booty snacks had no way of knowing the danger lurking inside the bag. And that is the problem. Despite the existing incentives and disincentives, both economic and regulatory, an unsafe food product was made, marketed, and eaten and then caused significant sickness and suffering, with infants and young children bearing the worst of it. All of this occurred because their parents had sought a "healthier" snack that, in the end, proved not healthful at all.

   1. Food Safety as a Credence Attribute

      There are innumerable reasons for purchasing any given food item, from its delightful smell, to the fact that it is on sale. But for all the reasons one might decide to purchase a given food item, no rational person will knowingly purchase something that he knew would make him sick, or even kill him. Unfortunately, however, the safety of a given food item is not readily discernable at the time of purchase. Consequently:

      For the most part, food safety is a credence attribute. Credence attributes are those that consumers cannot evaluate even when they use or consume the product. Consumers cannot usually determine before purchase, or even after consumption, whether a food was produced with the best or worst safety procedures, or whether a food poses a health risk. (8) Food and its safety is thus to be distinguished from a search or experience good. (9) Whereas a search good allows for comparison-shopping because the searched-for attribute can be reliably detected, and an experience good can at least be reliably tested through use, the safety of a given food item can only be assumed, which is to say, trusted. (10) This is because, "with credence characteristics, the absence of consumer detection leads to the complete absence of revelation." (11) As a result, this most important of food attributes remains invisible.

      There are some borderline cases, however. Bread or cheese that is moldy could be considered unsafe, and the attribute of moldiness is typically visible. There are also some pathogens that cause symptoms in an extremely short period of time, making food contaminated with these pathogens an experience good. And there are usually-detectable items like peanuts that are safe to most, but deadly to an allergic minority. But for the more common sources of foodborne illness, microbial pathogens, the incubation period is sufficiently long that, in most cases, more than one food item or exposure is implicated as a possible infection source. This means that, even after consuming a given food product and being made ill by it, the consumer has no reliable means of attributing the illness to the food. It is for this reason, mainly, that the vast majority of foodborne illness in the United States is, each year, attributable to unidentified food items. (12)

      Because foodborne illness is only rarely attributed to an identified food source, the food industry is able to impose huge costs (or externalities) upon the public each year while reaping the cost-savings of not investing more in improved food safety. A USDA report describes the problem well:

      Because consumers cannot detect food safety, they may be unwilling to pay a premium for "safer" food. Consumers may worry about fraud and the possibility that some foods marketed as safer products are actually standard or even substandard. In fact, firms producing low-safety foods may have an incentive to market their products as high-safety; they could charge high-safety prices, and because of cost-cutting, have greater profits than high-safety producers. If this incentive were left unchecked, the market would be dominated by low-quality products with little or no product differentiation. In this case, consumers would be correct in assuming that all products were of low quality unless proved otherwise. (13) And, in routinely making such an assumption, consumers recognize (and are forced to accept) that the credibility of safety claims is always doubtful. Similarly, consumers come to understand that the consequences of not being fully informed about a food product's most relevant qualities are that "they may consume an undesired characteristic or pay a price that does not reflect ... the risk associated with the good in question." (14) Accordingly, because food cannot be trusted in its...