FDA Can Shut Down Businesses

[Night Strike]

And you still haven't answered the fundamental question: why is one agency writing, carrying out, and adjudicating the law? Where are the checks and balances on their power?

It is not. Congress granted the FDA the authority to not grant licenses in this case. It is the FDA's executive authority to determine who to apply this statute to. If Sunland thinks that the FDA overstepped its bounds under the Food Safety Modernization Act, they can take the government to court. Checks and balances works as it is supposed to. This has to do with the FDA having more regulatory power than it had before; it has nothing to do with checks and balances.

Sorry, but you have the entire relationship between people and the government backwards. If the government thinks people are doing something illegal, then it's their job to prove such a case in a court of law and have a judgment rendered against them. It has NEVER been the case that people must prove their innocence in order to take an action. And it is definitely not the case that one governmental agency can make the rules, decide who may be breaking the rules, AND decide innocence or guilt. That's much closer to an oligarchy than a Constitutional republic.

[Metsfanmax]

It has NEVER been the case that people must prove their innocence in order to take an action.

You seem to have an incorrect understanding of how the FDA operates. It does things like this on a day-to-day basis. Its entire job is to determine which businesses are likely to market safe products, and only grant licenses to those food and drug manufacturers who first prove that their products are safe for the market. You can't manufacture and market food in the US without first being approved by the FDA. The only difference with the new law is that the FDA can now suspend an active license if it suspects a likely danger to consumers, which reverts the company to the same status it was in before it had the license. So your argument doesn't make any sense unless you're saying we should abolish the FDA to begin with.

[Night Strike]

It has NEVER been the case that people must prove their innocence in order to take an action.

You seem to have an incorrect understanding of how the FDA operates. It does things like this on a day-to-day basis. Its entire job is to determine which businesses are likely to market safe products, and only grant licenses to those food and drug manufacturers who first prove that their products are safe for the market. You can't manufacture and market food in the US without first being approved by the FDA. The only difference with the new law is that the FDA can now suspend an active license if it suspects a likely danger to consumers, which reverts the company to the same status it was in before it had the license. So your argument doesn't make any sense unless you're saying we should abolish the FDA to begin with.

Actually, I'd be completely ok with abolishing the FDA as private certification agencies could easily do the same job. But that's irrelevant to the point I'm making. Once they grant such licenses, they do not have the authority to revoke those licenses and shut down businesses without due process. If a company is breaking the law, then you prove your case in court. You don't get to just take away a license and then require the business to prove to YOU (not an independent party) that the forfeiture was incorrect. Why is the same agency that's doing the closing then getting to determine whether or not the closing was the proper action to take? What's to stop the agency from wrongfully closing any business they don't like or makes non-governmentally-approved items and then also being the only entity that decides whether such closure was correct?

[notyou2]

The whole thing seems eerily similar to drug tests for welfare checks.


YOU'RE LIVING IN A POLICE STATE THAT YOU WANTED NIGHT STRIKE

[notyou2]

TGD, I was trying to turn on your happiness receptors. Let me try another code:

show

--Andy

She would be really hot if she were smeared in peanut butter. Kraft preferably.

[crispybits]

But it hasn't been shut down - it's been refused permission to re-open. there's a big difference.

A better analogy may be if I got my driving license taken away for extreme incompetence behind the wheel leading to dangerous driving. I would have to retake my test before I'd be allowed back on the road again.

Not a good analogy, since the company initially stopped production facility voluntarily.

A better analogy is if you thought your driving was incompetent, so you chose not to drive. Then when you went to drive again, the government said "No, you have to prove you're good enough to drive."

So you think that if someone went to the DMV and voluntarily said "I'm a completely useless driver and my driving has injured a load of people and maybe even killed a few, here please take my license away" and handed their license in that once they change their minds despite the previous admissions of serious harm done they should simply be handed the license back with no re-testing to see if they have sorted themselves out?

[Night Strike]

The whole thing seems eerily similar to drug tests for welfare checks.


YOU'RE LIVING IN A POLICE STATE THAT YOU WANTED NIGHT STRIKE

Incorrect and incorrect.

[thegreekdog]

Companies do have a right to due process.

There should be judicial oversight if the company wants to challenge the FDA ruling. But no one would argue that a police officer needs to go get a warrant if he sees an imminent threat to the community; the police officer should stop the threat. That's within executive purview.

This is correct. What happens next?

And that's not even really relevant. Until November 2012, the FDA has never suspended a license to do business without first going to court. The FDA successfully protected the US populace prior to this year and it can continue to do so without shutting down companies prior to going to court. The change was made purely for purposes of providing the government with greater ease and putting the burden on the company.

The burden should have been on the company to begin with if there is clear and convincing evidence that the company has done harm to the community by selling its products. This is about protecting the community.

Why should it be on the company? Should the burden also be on criminal defendants? What about civil defendants?

Finally, if we're arguing about peoples' rights, what about the rights of the owners of the company or the company's employees?

That was my point in the modified drug dealer analogy. People don't have the right to do business that is harmful to the community. The rights of the consumers outweigh the rights of the owners and employees in this case.

Yes, they don't have a right to do business that is harmful to the community. What proof do you have that the business they would do, if they were open for business, is harmful to the community?

So you think that if someone went to the DMV and voluntarily said "I'm a completely useless driver and my driving has injured a load of people and maybe even killed a few, here please take my license away" and handed their license in that once they change their minds despite the previous admissions of serious harm done they should simply be handed the license back with no re-testing to see if they have sorted themselves out?

If the driver re-tested himself and determined he was okay to drive, it would be on the DMV to determine he's not okay to drive. It's not a good analogy. The drug dealer analogy is better, but even that's not really that good.

Unfortunately, you and mets seem to be operating under the assumption that past practices dicate future practices and therefore valid punishments in the present without due process. That seems antithetical to a free society and seems based entirely on this scenario being about a company practicing business rather than an individual accused of a crime.

So here's another analogy (we'll keep testing these) - A man gets into a car accident (accident is a key word here and more appropriate), killing three people. He gives up driving for a few months and then decides to drive again, but the government suspends his license and puts the burden on him to prove that he will not get into another accident, rather than the government having the burden to prove that his continuing to drive will result in more accidents.

You seem to have an incorrect understanding of how the FDA operates. It does things like this on a day-to-day basis. Its entire job is to determine which businesses are likely to market safe products, and only grant licenses to those food and drug manufacturers who first prove that their products are safe for the market. You can't manufacture and market food in the US without first being approved by the FDA. The only difference with the new law is that the FDA can now suspend an active license if it suspects a likely danger to consumers, which reverts the company to the same status it was in before it had the license. So your argument doesn't make any sense unless you're saying we should abolish the FDA to begin with.

Actually, you seem to have an incorrect understanding of how the executive branch, including the FDA, operates. The FDA does not do things like this on a day-to-day basis. This is the first instance, ever, of the FDA doing this. Sure, they approve licenses after companies prove their products are safe, but they don't shut down companies without presenting the case in court. That's not how it used to work. His argument does make sense, you're just making up a straw man to defend your ridiculous position.

Imagine a scenario, highly likely (see, e.g. Natty Dread's Apple thread), that a big peanut butter manufacturer, with lots of sway, urges the FDA (financially and non-financially) to direct the shutting down of a small peanut butter manufacturer. The FDA can do this without first going to court, which violates the due process of the small manufacturer.

[Metsfanmax]

You seem to have an incorrect understanding of how the FDA operates. It does things like this on a day-to-day basis. Its entire job is to determine which businesses are likely to market safe products, and only grant licenses to those food and drug manufacturers who first prove that their products are safe for the market. You can't manufacture and market food in the US without first being approved by the FDA. The only difference with the new law is that the FDA can now suspend an active license if it suspects a likely danger to consumers, which reverts the company to the same status it was in before it had the license. So your argument doesn't make any sense unless you're saying we should abolish the FDA to begin with.

Actually, you seem to have an incorrect understanding of how the executive branch, including the FDA, operates. The FDA does not do things like this on a day-to-day basis. This is the first instance, ever, of the FDA doing this. Sure, they approve licenses after companies prove their products are safe, but they don't shut down companies without presenting the case in court. That's not how it used to work. His argument does make sense, you're just making up a straw man to defend your ridiculous position.

My comment makes sense in the context of what Night Strike was saying. I was not claiming that the FDA shuts down active licenses all the time. I was asserting that the FDA makes decisions about the future likelihood of companies to harm consumers with their products all the time, in the sense that they have the authority to grant or deny licenses on this basis. I see no ethical or legal meaning to the fact that the FDA can now do it after they have granted a license rather than before. It makes perfect sense, actually. I never heard anyone claiming that due process rights were being violated when the FDA initially denied licenses without going to court. What has changed now, with respect to due process rights? Nothing. The court system still exists as a check if the FDA oversteps the bounds of this new law.

Imagine a scenario, highly likely (see, e.g. Natty Dread's Apple thread), that a big peanut butter manufacturer, with lots of sway, urges the FDA (financially and non-financially) to direct the shutting down of a small peanut butter manufacturer. The FDA can do this without first going to court, which violates the due process of the small manufacturer.

Never judge a law on the basis that corruption can cause it to be used for malice. Corruption will always do this, independent of what legal structure is in place. If you want to stop corruption, then fight the source, not the symptoms.

[thegreekdog]

You seem to have an incorrect understanding of how the FDA operates. It does things like this on a day-to-day basis. Its entire job is to determine which businesses are likely to market safe products, and only grant licenses to those food and drug manufacturers who first prove that their products are safe for the market. You can't manufacture and market food in the US without first being approved by the FDA. The only difference with the new law is that the FDA can now suspend an active license if it suspects a likely danger to consumers, which reverts the company to the same status it was in before it had the license. So your argument doesn't make any sense unless you're saying we should abolish the FDA to begin with.

Actually, you seem to have an incorrect understanding of how the executive branch, including the FDA, operates. The FDA does not do things like this on a day-to-day basis. This is the first instance, ever, of the FDA doing this. Sure, they approve licenses after companies prove their products are safe, but they don't shut down companies without presenting the case in court. That's not how it used to work. His argument does make sense, you're just making up a straw man to defend your ridiculous position.

My comment makes sense in the context of what Night Strike was saying. I was not claiming that the FDA shuts down active licenses all the time. I was asserting that the FDA makes decisions about the future likelihood of companies to harm consumers with their products all the time, in the sense that they have the authority to grant or deny licenses on this basis. I see no ethical or legal meaning to the fact that the FDA can now do it after they have granted a license rather than before. It makes perfect sense, actually. I never heard anyone claiming that due process rights were being violated when the FDA initially denied licenses without going to court. What has changed now, with respect to due process rights? Nothing. The court system still exists as a check if the FDA oversteps the bounds of this new law.

What has changed now is that the FDA can suspend a license without first going to court; I mean, it's in the article and it's in this thread numerous times.

You have yet to demonstrate why the new rule is better or more effective than the old rule. This is important considering first that the old rule was effective and second that the new rule is a violation of due process. You also seem to be missing some of my posts in your replies. To refresh, this is the scenario we are now dealing with:

Unfortunately, you and mets seem to be operating under the assumption that past practices dicate future practices and therefore valid punishments in the present without due process. That seems antithetical to a free society and seems based entirely on this scenario being about a company practicing business rather than an individual accused of a crime.

This is a fairly simple issue and it is compounded by your insistence on painting the company as the bad guy and the government as the good guy, something you've not done if we are discussing alleged criminals and the government.

[Metsfanmax]

What has changed now is that the FDA can suspend a license without first going to court; I mean, it's in the article and it's in this thread numerous times.

You have yet to demonstrate why the new rule is better or more effective than the old rule. This is important considering first that the old rule was effective and second that the new rule is a violation of due process.

You haven't actually justified this claim, you just keep repeating it. Why is revoking an active license a violation of due process, but denying an initial license not a violation of due process?

You also seem to be missing some of my posts in your replies. To refresh, this is the scenario we are now dealing with:

Unfortunately, you and mets seem to be operating under the assumption that past practices dicate future practices and therefore valid punishments in the present without due process. That seems antithetical to a free society and seems based entirely on this scenario being about a company practicing business rather than an individual accused of a crime.

This is a fairly simple issue and it is compounded by your insistence on painting the company as the bad guy and the government as the good guy, something you've not done if we are discussing alleged criminals and the government.

It has nothing to do with punishment, which is where your narrative fails. It is the same reasoning as when the FDA denies an initial license to a pharmaceutical company for a new drug. It is not out to punish the business or harm its profits; it is there to protect consumers from harmful products. The pharmaceutical company may never have harmed anyone in the past, but if there is ample evidence to suggest that their new drug would make many people sick, it is ludicrous to suggest that their drug should be allowed on the market, and then only revoked once the damage has been done and you've hurt or killed people.

[thegreekdog]

What has changed now is that the FDA can suspend a license without first going to court; I mean, it's in the article and it's in this thread numerous times.

You have yet to demonstrate why the new rule is better or more effective than the old rule. This is important considering first that the old rule was effective and second that the new rule is a violation of due process.

You haven't actually justified this claim, you just keep repeating it. Why is revoking an active license a violation of due process, but denying an initial license not a violation of due process?

You also seem to be missing some of my posts in your replies. To refresh, this is the scenario we are now dealing with:

Unfortunately, you and mets seem to be operating under the assumption that past practices dicate future practices and therefore valid punishments in the present without due process. That seems antithetical to a free society and seems based entirely on this scenario being about a company practicing business rather than an individual accused of a crime.

This is a fairly simple issue and it is compounded by your insistence on painting the company as the bad guy and the government as the good guy, something you've not done if we are discussing alleged criminals and the government.

It has nothing to do with punishment, which is where your narrative fails. It is the same reasoning as when the FDA denies an initial license to a pharmaceutical company for a new drug. It is not out to punish the business or harm its profits; it is there to protect consumers from harmful products. The pharmaceutical company may never have harmed anyone in the past, but if there is ample evidence to suggest that their new drug would make many people sick, it is ludicrous to suggest that their drug should be allowed on the market, and then only revoked once the damage has been done and you've hurt or killed people.

It is very much different than applying for a new license. You keep ignoring that this is not an application for a new license. Nor is it an appeal to get a license back that was previously suspended through court proceeding. This is a suspension of an existing license without due process. You can keep attempting to frame the conversation using your strawman, but it doesn't change the facts of this scenario.

The FDA suspended this company's license because it had problems with salmonella which the company has said it has solved. The FDA has a choice, which it did not previously have - take the company to court to prove the company is not safely manufacturing peanut butter (the original choice, which has worked successfully since the FDA was created) or suspend the company's license and force the company to prove that its product is safe in court.

[AndyDufresne]

I'm glad that TGD immediately picked up on my intention with this thread..

I think I did too! And notyou2 also joins me.

TGD, I was trying to turn on your happiness receptors. Let me try another code:

show

--Andy

She would be really hot if she were smeared in peanut butter. Kraft preferably.

--Andy

[Metsfanmax]

It is very much different than applying for a new license. You keep ignoring that this is not an application for a new license. Nor is it an appeal to get a license back that was previously suspended through court proceeding. This is a suspension of an existing license without due process. You can keep attempting to frame the conversation using your strawman, but it doesn't change the facts of this scenario.

You still haven't even attempted to give a justification for why "due process" is relevant here, and if it is relevant here, why it is not relevant when the license was originally decided on. At this point you're basically just quoting a legal doctrine without explaining why that doctrine is relevant. Not a compelling argument.

Also, stop using the term straw man incorrectly. A straw man argument is one that is irrelevant to the actual discussion. What I am talking about is highly relevant to the conversation, because I was directly juxtaposing the idea of denying an initial license with that of revoking an active one, on the grounds that both decisions are based on the same principle. You may claim that they should not be treated in the same legal manner, but that does not make them dissimilar from the point of view of how the decision is made. Even if you think that I am wrong on this, I am still making the argument in good faith, in the sense that I believe it is highly relevant to the conversation, and I am not simply throwing it up as a smokescreen to evade the main issue. So calling it a straw man argument is unfair.

Straw man arguments are similar to the type of argument that Night Strike consistently makes, like "you think the FDA should be able to shut down a business that was responsible for a salmonella outbreak, so you must hate capitalism."

The FDA suspended this company's license because it had problems with salmonella which the company has said it has solved. The FDA has a choice, which it did not previously have - take the company to court to prove the company is not safely manufacturing peanut butter (the original choice, which has worked successfully since the FDA was created) or suspend the company's license and force the company to prove that its product is safe in court.

Ok.

[thegreekdog]

It is very much different than applying for a new license. You keep ignoring that this is not an application for a new license. Nor is it an appeal to get a license back that was previously suspended through court proceeding. This is a suspension of an existing license without due process. You can keep attempting to frame the conversation using your strawman, but it doesn't change the facts of this scenario.

You still haven't even attempted to give a justification for why "due process" is relevant here, and if it is relevant here, why it is not relevant when the license was originally decided on. At this point you're basically just quoting a legal doctrine without explaining why that doctrine is relevant. Not a compelling argument.

Also, stop using the term straw man incorrectly. A straw man argument is one that is irrelevant to the actual discussion. What I am talking about is highly relevant to the conversation, because I was directly juxtaposing the idea of denying an initial license with that of revoking an active one, on the grounds that both decisions are based on the same principle. You may claim that they should not be treated in the same legal manner, but that does not make them dissimilar from the point of view of how the decision is made. Even if you think that I am wrong on this, I am still making the argument in good faith, in the sense that I believe it is highly relevant to the conversation, and I am not simply throwing it up as a smokescreen to evade the main issue. So calling it a straw man argument is unfair.

Straw man arguments are similar to the type of argument that Night Strike consistently makes, like "you think the FDA should be able to shut down a business that was responsible for a salmonella outbreak, so you must hate capitalism."

The FDA suspended this company's license because it had problems with salmonella which the company has said it has solved. The FDA has a choice, which it did not previously have - take the company to court to prove the company is not safely manufacturing peanut butter (the original choice, which has worked successfully since the FDA was created) or suspend the company's license and force the company to prove that its product is safe in court.

Ok.

(1) A straw man is replacing one scenario with a different, but similar, scenario and arguing from that basis. Your strawman here is that the FDA is refusing to reinstate the company's license. That's not what happened and is therefore irrelevant to the discussion. I'm not sure why you don't understand what actually happened since it's in the article quoted. The FDA suspended the license without first taking the company to court. It made a unilateral decision to suspend the company's license without providing any evidence that the future products of the company would be unsafe. Let's argue from that standpoint, instead of your straw man you've set up.

(2) I've certainly provided why due process is relevant here. You have just chosen to ignore why it's relevant. To explain, again, due process is relevant in this situation because the company had an existing license to sell peanut butter and that license to produce peanut butter in the future was revoked without any hearing, trial, or other impartial entity making a decision. This is not a situation involving a company looking to receive a license for the first time for a new product and therefore, again, is not relevant to the discussion.

[Metsfanmax]

(1) A straw man is replacing one scenario with a different, but similar, scenario and arguing from that basis. Your strawman here is that the FDA is refusing to reinstate the company's license. That's not what happened and is therefore irrelevant to the discussion. I'm not sure why you don't understand what actually happened since it's in the article quoted. The FDA suspended the license without first taking the company to court. It made a unilateral decision to suspend the company's license without providing any evidence that the future products of the company would be unsafe. Let's argue from that standpoint, instead of your straw man you've set up.

Evidently you are misunderstanding my argument. What I am saying is that there is just as much ethical and legal backing for the idea of denying the application for an FDA license as there is for revoking an active one. I am not making an argument about what specifically happened here, I am arguing that the Food Safety Modernization Act is a just and fair law. If that is the case, then what the FDA did here necessarily respects the legal rights of the business, so long as they followed the letter of the law in determining whether to revoke their license. It is facile to attempt to argue that what the FDA did in this specific case was wrong, without considering the broader context of the law which justified its action. The only relevant thing to debate here is the law itself, not the FDA's action in this particular case (unless you think it violated the mandate given to it by Congress. If so, we can have that discussion separately).

Now, your characterization of the situation is incorrect. The FDA does have evidence that the future products of the company would likely be unsafe. That is required of them in the Food Safety Modernization Act. The only difference from now, compared to pre-2011, is that the FDA is not required to present this evidence in a court of law. That does not mean it did not gather evidence and make a coherent argument. The FDA even published their reasoning on their website. I would say that this puts to bed the argument that they did not present their evidence.

(2) I've certainly provided why due process is relevant here. You have just chosen to ignore why it's relevant. To explain, again, due process is relevant in this situation because the company had an existing license to sell peanut butter and that license to produce peanut butter in the future was revoked without any hearing, trial, or other impartial entity making a decision. This is not a situation involving a company looking to receive a license for the first time for a new product and therefore, again, is not relevant to the discussion.

Due process is only relevant if there exists some legal guarantee (or to be less precise, a legal right) to an FDA license. But no such legal guarantee exists to begin with, as FDA decisions on food and drug licenses are based on the safety of the manufacturer's product. If you produce an unsafe product, you have no right to do business with it. This is why I'm making a comparison to the initial granting of the license. If the FDA can unilaterally deny a manufacturer's application for a license without first presenting the evidence to a court in the judicial branch, then due process is not relevant here. And in fact it is obvious that this must be the case. If the court had oversight over every regulatory decision, there would essentially be no regulatory power. The judicial branch would become the executive branch. That is not the intent. The intent is for the regulatory agency to have regulatory authority, and for the judicial branch to intervene only if the regulatory body takes an action which is not part of the agency's mandate as defined by Congress. That is how the system of checks and balances normally operates. I would argue that the pre-2011 status quo was the problem, in the sense that it rendered meaningless a part of the FDA's regulatory authority, to determine who may hold a license to manufacture and distribute food and drugs.

[thegreekdog]

Okay, now we have a common basis for an argument. You believe that the Food Safety Modernization Act is good law. I believe that the Food Safety Modernization Act is bad law.

I have no beef with your explanation of the reasons why the FDA is doing precisely what it should be doing under the Food Safety Modernization Act. I agree that this is proper for them to do other that act.

So, our argument is now about the Food Safety Modernization Act and it's relative constitutionality. I believe it is unconstitutional as violative of due process because it allows the executive branch to remove a company's license for potential future sins based on prior bad acts.

I have another good example (that I don't know the answer to). Let's say a company is believed to be providing money to organized criminals (which is illegal). Can the government shut down the company without taking the company to court first?

Semi-related - I'm actually shocked that this is the first time the FDA has used their power (granted in early 2011). I know there have been other incidents of bad products since 2011.

[Metsfanmax]

So, our argument is now about the Food Safety Modernization Act and it's relative constitutionality. I believe it is unconstitutional as violative of due process because it allows the executive branch to remove a company's license for potential future sins based on prior bad acts.

What case law or precedent is there to support this claim?

Independent of that, my original argument -- about the parallel with initial denial of licenses -- remains. In that case, the FDA can choose to deny a license to a company, and if that company is new or has never harmed consumers before, it may be doing so even without evidence of prior bad acts. It just has evidence that future products the company plans to distribute may be harmful (in that case, it may be because it has done drug trials or some other type of study that gives them this idea). That is why I think your characterization of this statute is flawed. The fact that there are prior bad acts isn't itself the important issue. Those prior bad acts are just one of a number of ways the FDA has at its disposal to determine whether a company is likely to distribute harmful products in the future.

This all goes to the heart of the FDA's regulatory power. If the FDA has the regulatory power to determine whether a given manufacturer can legally distribute food products, it should have the power to revoke a license if, in its estimation, the manufacturer no longer lives up to the standards that it did when it was initially granted the license. Substantive due process does not really say anything about the regulatory power of the FDA, and only procedural due process is relevant to how that regulatory power is exercised. In that case, it is guaranteed by the fact that the FDA must notify the company regarding its decision (it did see the link I provided earlier), and give the company a chance to appeal the decision if it requests. Section 102 of the law explicitly requires the FDA to hold such a hearing in this case, so due process protections are implicit in the law. Procedural due process does not explicitly require a judicial court to be the entity that presides over these proceedings, as far as I am aware.

I have another good example (that I don't know the answer to). Let's say a company is believed to be providing money to organized criminals (which is illegal). Can the government shut down the company without taking the company to court first?

I don't know the answer either, but I don't think it's a fair analogy or even relevant. The FDA didn't "shut the company down," it only refused to continue let it operating as a food manufacturer and distributor in the US. The company still exists as a legal entity, it still has employees and a payroll. Now, it may be the case that for many companies, such a decision is effectively a death knell on their day-to-day business, if they are only food distributors. But I don't think that's relevant from the perspective of legal rights.

[AndyDufresne]

The amount of back and forth you two can have is tremendous. I want to post a few hot peanutbutter pictures, but I get the feeling that you will both just have that parental "I love you but I am very disappointed in your actions" look in your eyes.


--Andy

[Metsfanmax]

The amount of back and forth you two can have is tremendous. I want to post a few hot peanutbutter pictures, but I get the feeling that you will both just have that parental "I love you but I am very disappointed in your actions" look in your eyes.


--Andy

Go right ahead.

[thegreekdog]

The amount of back and forth you two can have is tremendous. I want to post a few hot peanutbutter pictures, but I get the feeling that you will both just have that parental "I love you but I am very disappointed in your actions" look in your eyes.


--Andy

Never!

In any event, I'm about done with this discussion since it's gone on for two pages without any give by Mets.

[Metsfanmax]

The amount of back and forth you two can have is tremendous. I want to post a few hot peanutbutter pictures, but I get the feeling that you will both just have that parental "I love you but I am very disappointed in your actions" look in your eyes.


--Andy

Never!

In any event, I'm about done with this discussion since it's gone on for two pages without any give by Mets.

I'm going to take that as code for "I can't actually provide any relevant example of case law or legal precedent that supports my point, so I concede."

[AndyDufresne]

--Andy

[thegreekdog]

What case law or precedent is there to support this claim?

Independent of that, my original argument -- about the parallel with initial denial of licenses -- remains. In that case, the FDA can choose to deny a license to a company, and if that company is new or has never harmed consumers before, it may be doing so even without evidence of prior bad acts. It just has evidence that future products the company plans to distribute may be harmful (in that case, it may be because it has done drug trials or some other type of study that gives them this idea). That is why I think your characterization of this statute is flawed. The fact that there are prior bad acts isn't itself the important issue. Those prior bad acts are just one of a number of ways the FDA has at its disposal to determine whether a company is likely to distribute harmful products in the future.

This all goes to the heart of the FDA's regulatory power. If the FDA has the regulatory power to determine whether a given manufacturer can legally distribute food products, it should have the power to revoke a license if, in its estimation, the manufacturer no longer lives up to the standards that it did when it was initially granted the license. Substantive due process does not really say anything about the regulatory power of the FDA, and only procedural due process is relevant to how that regulatory power is exercised. In that case, it is guaranteed by the fact that the FDA must notify the company regarding its decision (it did see the link I provided earlier), and give the company a chance to appeal the decision if it requests. Section 102 of the law explicitly requires the FDA to hold such a hearing in this case, so due process protections are implicit in the law. Procedural due process does not explicitly require a judicial court to be the entity that presides over these proceedings, as far as I am aware.

Well yeah, this goes to the heart of the FDA's regulatory power. What kind of regulatory power does it have? It used to have the power to revoke licenses after court decisions and/or hearings. Now it has the power to revoke licenses without court decisions and/or hearings; a brand spanking new power!

Without going into a history of due process (substantive and procedural... unless you want me to), the federal government is subject to both standards; the federal government includes the FDA. So it too is subject to substantive due process. But you want precedent...

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Goldberg v. Kelly, 397 U.S. 254 (1970)
Noble v. Union River Logging Company, 147 U.S. 165 (1893) - pretty much on point

What else do you need?

[thegreekdog]

The amount of back and forth you two can have is tremendous. I want to post a few hot peanutbutter pictures, but I get the feeling that you will both just have that parental "I love you but I am very disappointed in your actions" look in your eyes.


--Andy

Never!

In any event, I'm about done with this discussion since it's gone on for two pages without any give by Mets.

I'm going to take that as code for "I can't actually provide any relevant example of case law or legal precedent that supports my point, so I concede."

Oh, don't you look silly now.

I provided two; there are a number of others. Have fun.