Pay No Attention to That Man Behind the Curtain: Concealment, Revelation, and the Question of Food Safety

• Publication year: 2015

SEATTLE UNIVERSITY LAW REVIEW Volume 38, No. 4, SUMMER 2015

Pay No Attention to That Man Behind the Curtain: Concealment, Revelation, and the Question of Food Safety

Denis W. Stearns(fn*)

I. INTRODUCTION: PULLING BACK THE CURTAIN ON FOOD SAFETY

In the penultimate scene of the classic film The Wizard of Oz,(fn1) Dorothy and her fellow travelers-Scarecrow, Tin Man, and Cowardly Lion-have returned to the Emerald City, carrying with them a broom-proof that they achieved their mission of slaying the Wicked Witch of the West. Standing in the throne room of the palace, and having already presented the broom, the fearsome visage of the Wizard floats before them and tells them, "Go away and come back tomorrow." Dorothy challenges the Wizard to keep his promise to send her home, to which the Wizard responds fiercely, "Do not arouse the wrath of the Great and Powerful Oz!" It is at this point that Dorothy's dog, Toto, runs to one side and pulls back a curtain, revealing the subterfuge that manufactures the floating image of the Wizard, the thunderclaps, and his booming voice. Instead of being both the source and by-product of awesome magic, the Wizard is revealed to be merely the result of technological wizardry, a stunt performed for a public all too willing, indeed wanting, to believe in such magic.

Realizing that the reality of his mundane status has been revealed, the Wizard (should it be "Wizard" now?) shouts, "Pay no attention to that man behind the curtain!" Of course, the reality cannot now be unseen; once revealed, there is no further act of subterfuge or concealment that can fully undo (or erase) the revelation. And it is for this reason that both Dorothy and the Wizard are forced into a new kind of relationship, a rapprochement that requires an integration of a new reality, one that allows no room for the magical thinking of before.

The history of food safety in the United States has, since at least the second half of the nineteenth century, played out along lines remarkably similar to the scene from The Wizard of Oz just described. Despite knowledge that commerce in food is a profit-driven enterprise, the public has consistently put great faith in the wholesomeness and safety of the food being purchased.(fn2) To some extent, such faith is necessary, even if not always justified. In making the decision to put a bite of food in one's own mouth, or the mouth of a friend or family member, a form of faith or trust must accompany the act of eating. For who would knowingly eat food suspected to be unsafe? But that is precisely what millions of people do every year, with a great many of them falling ill as a result.(fn3) It is true that only a small minority of those made ill ever learn what particular food item was the cause and what particular manufacturer was responsible.(fn4) It is, however, no secret that food, in general, is a significant cause of illness each year, and is not as safe as it could be if made with greater care under more effective and transparent regulatory oversight.(fn5) And it is precisely because food both could be safer, and is so often found to be unsafe, that the dynamic of concealment and revelation so inevitably leads to either denial or despair on the part of the public, with "consumers often feel[ing] powerless with reference to avoiding food safety problems."(fn6)

Notwithstanding the repeated assertions of the United States Department of Agriculture (USDA) and food industry officials to the contrary, the food supply in the United States is not the safest in the world.(fn7) When faced with the ubiquity of unsafe food in the United States, the public has few choices beyond simply opting out of eating certain categories of food. For example, given the number of outbreaks linked to fresh sprouts, there is simply no way that I would ever eat sprouts again.(fn8) Moreover, we know that raw poultry is so commonly contaminated with Salmonella and Campylobacter that consumers are instructed to assume that all poultry purchased is contaminated, and then to handle and cook the meat accordingly.(fn9) But would the poultry industry accept a warning label beyond the currently benign one that states, "Some food products may contain bacteria that could cause illness if the product is mishandled or cooked improperly"?(fn10) Of course not. Because to provide the public with more specific information about the harmful bacteria invisibly present on meat and poultry would risk an act of revelation like that which dethroned the Wizard of Oz, revealing him to be a mere huckster, a former peddler of patent medicines that promised miraculous cures that could never be had. In short, the meat industry does "not want package labels to suggest that anything might be inherently wrong with their products."(fn11)

The meat industry and the USDA are in many respects the same as the "Wizard," putting on an act that it hopes convinces the public to believe that the industry wields mighty powers. It promises safety, and wants such promises to be credible, because without credibility its products will not be purchased and consumed. The strategy is less about the actual delivery of safety than it is about preserving the credibility of the promise of safety. For so long as the promise of safety is believed, the public will continue to purchase and eat meat. And that is why the fact of federal inspection is so important; without the seeming guarantee from the USDA that meat is safe because it has been "[i]nspected and passed," the public might pay greater attention to the fact that neither the USDA nor the meat industry claims that meat is free of pathogens as a result of it having been inspected. Indeed, in agreeing with the position taken by the USDA in resisting (along with industry) an attempt to require warning labels on meat, in 1974 the D.C. Circuit agreed that "Congress did not intend the [mark of inspection] to import a finding that meat and poultry products were free from salmonellae."(fn12)

For that reason, among others, the metaphor of the "Wizard" is an apt one when applied to the meat industry: it hides behind the curtain of federal meat inspection, and uses the amplified voice of the USDA mark of inspection to assure the public that the meat it buys has been assuredly determined to be wholesome and safe for consumption. What else could be meant by the first sentence in the USDA-mandated Safe Handling Instructions: "This product was prepared from inspected and passed meat and/or poultry."(fn13) Despite the second sentence that warns "products may contain bacteria," and that illness could result "if the product is mishandled or cooked improperly,"(fn14) the phrase "inspected and passed" plainly implies a process that is supposed to ensure that the meat is free of pathogens. Indeed, observe what a main meat industry website proclaims with regard to the role of the Food Safety and Inspection Service (FSIS) and meat inspection:The Food Safety and Inspection Service (FSIS) of the United States Department of Agriculture (USDA) is responsible for ensuring that meat, poultry and egg products are safe, wholesome, and accurately labeled. FSIS enforces the Federal Meat Inspection Act, the Poultry Products Inspection Act, and the Egg Products Inspection Act, which require the federal inspection of meat and poultry products prepared for distribution in commerce for use as human food.(fn15) Despite a 1998 transformation in federal meat inspection intended to give "industry, not [g]overnment, the primary responsibility for ensuring the safety of meat and poultry products,"(fn16) industry has continued to advance the narrative that it is federal regulation and inspection that is the guarantor of safety, as shown by the mark of inspection. As such, the public continues to be invited to believe in the USDA as "great and powerful," just like the Wizard of Oz.

To examine the role of the federal government in the regulation of meat safety, and the way the meat industry uses the fact of regulation to perpetuate the credibility of its products and its safety promises, this Article argues that what matters most to both the government and industry is consumer confidence in safety, and not safety itself. Without sufficient consumer confidence in the safety of meat, both sales and the government's credibility suffer. As a result, the interests of industry and government align in protecting the credibility of the regulatory system as a whole, even where that alignment of interests is at the expense of public health. Moreover, because the narrative of a "great and powerful" regulatory system is, in the end, reassuring to a public that needs and wants reassurance, it is only when facts of sufficiently disturbing power are revealed that the status quo is challenged and systemic change becomes inevitable. To resist or avoid this change, it becomes necessary to suppress doubt about safety as a means of maintaining consumer confidence, and to keep concealed facts that would otherwise give rise to such doubts. Such suppression and concealment also leads-and has, in fact, led-to industry efforts to deter those who might seek to call attention to food safety risks or shocking production practices.

In looking at the dynamics of concealment and revelation, and the effects on food safety, Part II of this Article looks at the origins of federal food regulations in revelations of production practices that so disgusted the public that...