FDA Can Shut Down Businesses

[thegreekdog]

--Andy

It's not your fault we're fighting Andrea.

[eddie2]

i am just posting on a few of the comments since my last post...

1) someone said they have shut the business down... this is incorrect by what has been posted in the op they only denied them opening a business until they prove it is safe. so in effect if they renewed there health and safety and food hygiene certificates this would show the company as safe and they could carry on business as usual all the fda are doing is cutting out the middle man that costs tax payers a lot of money.. health and safety can do the same in the uk they can show up and shut a place down until they provide evidence there buisness is safe for the public or food is under safe control... I think good on the fda as there action could of saved life's. and sorry but having to wait a couple of weeks to get a court order could put in danger 1000's of life's. how hard is it a buisness wanting to open to pay to get 2 certificates to allow them to open a business

[thegreekdog]

i am just posting on a few of the comments since my last post...

1) someone said they have shut the business down... this is incorrect by what has been posted in the op they only denied them opening a business until they prove it is safe. so in effect if they renewed there health and safety and food hygiene certificates this would show the company as safe and they could carry on business as usual all the fda are doing is cutting out the middle man that costs tax payers a lot of money.. health and safety can do the same in the uk they can show up and shut a place down until they provide evidence there buisness is safe for the public or food is under safe control... I think good on the fda as there action could of saved life's. and sorry but having to wait a couple of weeks to get a court order could put in danger 1000's of life's. how hard is it a buisness wanting to open to pay to get 2 certificates to allow them to open a business

A couple of thoughts here:

(1)

they only denied opening a business until they prove it is safe.

- Was an operating business, voluntarily shut down, wants to voluntary re-open, cannot. You are splitting hairs.

(2)

in effect if they renewed their health and safety and food hygiene certificates.

- This is not what happened. They did not renew their license and were not required to renew their license.

(3)

all the fda are doing is cutting out the middle man that costs tax payers a lot of money

- I'm not sure what middle man you are talking about.

(4)

their action could of saved life's.

- The tainted peanut butter is off the shelves. People stopped buying the peanut butter immediately upon learning of the salmonella (including me). Most people, including me, will never buy this company's peanut butter again (my wife does not want to buy peanut butter from Trader Joe's ever again).

(5)

how hard is it for a business...

- How hard is it for the government to present their case in an independent tribunal or court?

One of the basic reasons we have due process in the United States (and I belive in the UK) is to protect people and companies from the government. Yes, this is easier for the FDA to do this and let the company prove it's safe. In that situation the onus is on the company. But, if we can justify this unilateral action by the FDA by saying "of course the company is unsafe," wouldn't it be just as easy for the FDA to prove that the company is unsafe in court? The "easier" argument doesn't make sense, even if we disregard the violation of due process.

[Metsfanmax]

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!

Having the power to revoke licenses pending a court decision is essentially no power at all. That gives the court final regulatory power. I disagree with such a situation. It violates the principle of checks and balances.

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...

I didn't say that the FDA is not subject to substantive due process, I said that this particular issue could not possibly be a question of substantive due process, due to the fact that the regulatory power of the FDA to decide who may manufacture and distribute food products is not in question (even if the manner in which the license is granted or revoked is in question).

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?

Citing a court case that directly quotes the Fifth Amendment doesn't actually shed light on whether due process rights are being violated by the Food Safety Modernization Act.

Here is how this argument is going. I assert that since Section 102 of the Food Safety Modernization Act provides for a mechanism by which the company in question can respect the (procedural) due process rights of the companies affected, there is no problem. In other words, due process of law was respected when the FDA deprived Sunland of its "liberty" to do business. If you wish to continue, you must either disprove the validity of this assertion, or find some other reason to argue that due process rights have been violated. The only substantive argument you have given in this vein, so far, is that the law "allows the executive branch to remove a company's license for potential future sins based on prior bad acts." You have given no justification for why this is a violation of due process rights, you've only asserted it. If I am mistaken, please point out again which of your arguments was defending this particular assertion.

[thegreekdog]

Having the power to revoke licenses pending a court decision is essentially no power at all. That gives the court final regulatory power. I disagree with such a situation. It violates the principle of checks and balances.

How does it violate the principle of checks and balances? Is that principle written somewhere? Why was the FDA required to operate differently prior to 2011 if it violated the important principle of checks and balances?

I didn't say that the FDA is not subject to substantive due process, I said that this particular issue could not possibly be a question of substantive due process, due to the fact that the regulatory power of the FDA to decide who may manufacture and distribute food products is not in question (even if the manner in which the license is granted or revoked is in question).

Okay.

Citing a court case that directly quotes the Fifth Amendment doesn't actually shed light on whether due process rights are being violated by the Food Safety Modernization Act.

You asked for precedent. I gave you precedent in the form of the names and citations of two cases dealing with due process in the context of government action against companies. Did you want me to write out the opinions?

I quoted the Fifth Amendment merely for context.

Here is how this argument is going. I assert that since Section 102 of the Food Safety Modernization Act provides for a mechanism by which the company in question can respect the (procedural) due process rights of the companies affected, there is no problem. In other words, due process of law was respected when the FDA deprived Sunland of its "liberty" to do business. If you wish to continue, you must either disprove the validity of this assertion, or find some other reason to argue that due process rights have been violated. The only substantive argument you have given in this vein, so far, is that the law "allows the executive branch to remove a company's license for potential future sins based on prior bad acts." You have given no justification for why this is a violation of due process rights, you've only asserted it. If I am mistaken, please point out again which of your arguments was defending this particular assertion.

I don't expect I'll be re-typing all of my prior arguments, so you'll have to go back and read them. This may be difficult considering you've ignored large swaths of my posts, but I wish you luck.

I don't understand the sentence in red. Are you saying that because the company, once it's license has been revoked by the FDA, can go to court and has the burden to prove that it's products are safe (rather than the FDA having the burden of proof) is not a violation of due process?

I believe you're asking me for specific precedent saying the FDA cannot revoke the license of a company without first presenting evidence in court. There is no such case, probably because the law has not been enforced until about two weeks ago, which is not enough time for a Supreme Court decision (or any court decision really) to be brought.

Would you like me to pull specific language from the cases cited above?

[thegreekdog]

Noble v. Union River Logging

This case involved a railroad company (Union River) that was trying to enjoin the US Department of Interior from revoking a right of way that Union River previously had. Union River received approval sometime in 1889, received approval for a right of way from the Department of Interior. On June 13, 1890, the Department of Interior served papers on Union River requiring the company to show cause as to why approval should not be revoked. This order was followed by another order from the Department of Interior directing the commissioner of the relevant land office to carry out the previous order (i.e. deny Union River the right of way).

Not really relevant, but interesting - The reason the Department of Interior prohibited the right of way in 1890 (after approving it in 1889) was because the Department head changed. "The answer admitted all the allegations of facts in the bill, and averred that it became known to the [Department] that [Union River] was not engaged in the business of a common carrier of passengers and freight at the time of its application, but in the transportation of logs for the private use and benefit of the several persons composing the said company, and that, being advised that a railroad company carrying on a merely private business was not such a railroad company as weas contemplated by the act of congress, deemed it their duty to vacate and annul the action of [the former Department head], approving [Union River's] maps of definite location, and to that end cause the notice complained of in the bill to be served. They further claimed it to be their duty to revoke and annul the action of the former secretary of the interior as having been made improvidently, and on false suggestions, and without authority under the statute."

The Supreme Court analyzed the facts and prior caselaw and made the following analyses:

At the time the documents required by the act of 1875 were laid before [the former Interior head], it became his duty to examine them, and to determine, among other things, whether the railroad authorized by the articles of incorporation was such a one as was contemplated by the act of congress. Upon being satisfied of this fact, and that all the other requirements of the act had been observed, he was authorized to approve the [right of way]. When this was done, the granting section of the act became operative, and vested in the railroad company a right of way...

The lands over which the right of way was granted were public lands, subject to the operation of the statute; and the question whether the plaintiff was entitled to the benefit of the grant was one which it was competent for the secretary of the interior to decide, and, when decided, and his approval was noted upon the plats, the first section of the act vested the right of way in the railroad company... The railroad company became at once vested with a right of property in these lands, of which they can only be deprived by a proceeding taken directly for that purpose. If it were made to appear that the right of way had been obtained by fraud, a bill would doubtless lie by the United States for the cancellation and annulment of an approval thus obtained... A revocation of the approval of the secretary of the interior, however, by his successor in office, was an attempt to deprive the plaintiff of its property without due process of law, and was, therefore, void.

[Metsfanmax]

How does it violate the principle of checks and balances? Is that principle written somewhere? Why was the FDA required to operate differently prior to 2011 if it violated the important principle of checks and balances?

I'm not saying the previous situation was illegal, I'm saying that it grates against the commonly accepted wisdom for the purposes of the three branches of government. In general we try to order things so that organizations like the FDA have regulatory (executive) power and the courts only have the ability to determine whether that regulatory power was used appropriately (or, in some cases, whether Congress stepped over the line in granting that regulatory power to begin with, i.e. in substantive due process cases). So I approve of the change for that reason, from a first principles point of view.

You asked for precedent. I gave you precedent in the form of the names and citations of two cases dealing with due process in the context of government action against companies. Did you want me to write out the opinions?

No, but in general I would appreciate a little bit of explanation, if you have the time. I do actually enjoy reading case law but it's hard for people like me who are not used to legal arcana to digest all of what is being said in a legal document. I understand if you don't have the time to interpret the cases for me, though.

I quoted the Fifth Amendment merely for context.

Sorry, my mistake, I misinterpreted what you were doing.

I don't expect I'll be re-typing all of my prior arguments, so you'll have to go back and read them. This may be difficult considering you've ignored large swaths of my posts, but I wish you luck.

I am not ignoring them in the sense of not reading them. Some things I didn't respond to because I didn't think they required a response from me, but I did read what you said.

... I assert that since Section 102 of the Food Safety Modernization Act provides for a mechanism by which the company in question can respect the (procedural) due process rights of the companies affected, there is no problem. ...

I don't understand the sentence in red. Are you saying that because the company, once it's license has been revoked by the FDA, can go to court and has the burden to prove that it's products are safe (rather than the FDA having the burden of proof) is not a violation of due process?

No, I am saying that the FSMA contains the following stipulations:

(2) Hearing on suspension. The Secretary shall provide the registrant subject to an order under paragraph (1) with an opportunity for an informal hearing, to be held as soon as possible but not later than 2 business days after the issuance of the order or such other time period, as agreed upon by the Secretary and the registrant, on the actions required for reinstatement of registration and why the registration that is subject to suspension should be reinstated. The Secretary shall reinstate a registration if the Secretary determines, based on evidence presented, that adequate grounds do not exist to continue the suspension of the registration.

My understanding is that this clause was explicitly added to the law to ensure that (procedural) due process protections were not being violated. What I was asking you earlier is this -- is there any reason it cannot be the case that the same agency that takes the action, be the organization that also provides a hearing on the action and otherwise is the guarantor of due process of law?

I believe you're asking me for specific precedent saying the FDA cannot revoke the license of a company without first presenting evidence in court. There is no such case, probably because the law has not been enforced until about two weeks ago, which is not enough time for a Supreme Court decision (or any court decision really) to be brought.

Well, I was asking if there are cases that deal with similar regulatory abilities and have seen a situation of this sort come up, which might shed some light on how SCOTUS would rule if this came to court. I think your Noble case is the sort of thing I was looking for, but isn't it a little different because property rights are something that is generally accepted to be protected by law, whereas there is no guarantee to have a license to manufacture food, because that is always dependent on FDA approval?

[thegreekdog]

I'm not saying the previous situation was illegal, I'm saying that it grates against the commonly accepted wisdom for the purposes of the three branches of government. In general we try to order things so that organizations like the FDA have regulatory (executive) power and the courts only have the ability to determine whether that regulatory power was used appropriately (or, in some cases, whether Congress stepped over the line in granting that regulatory power to begin with, i.e. in substantive due process cases). So I approve of the change for that reason, from a first principles point of view.

I think it's fine that the FDA has regulatory power (although I really don't, but that's a separate conversation). The mission statement of the FDA is to protect consumers. That's fine. The mission statement of the police is to serve and protect. Also fine. I understand why this particular law might seem to be more in line with the FDA's mission statement. As I indicated before, it is certainly easier for the FDA to suspend a license and require the licensee to prove it's products are safe in open court. I'll stop there before I just rehash arguments because this paragraph is supposed to be about separation of powers principles and checks and balances.

I agree that the FDA has executive-type power. That power was limited to investigating companies, approving new licenses, etc. That power has expanded so that the FDA now has the ability to unilaterally stop a company from producing product if the FDA, an expert to be sure, deems it necessary for public safety. This is a hell of a lot of power. There is no other regulatory body that can unilaterally stop production of a company (or toss someone in jail) that I'm aware of. Perhaps the CIA can do that now, but we all rail against that. The check on the FDA needs to be the judicial system. Congress only creates and regulates the FDA to a certain extent (i.e. very high level). The only check on the FDA is therefore the judicial system.

My understanding is that this clause was explicitly added to the law to ensure that (procedural) due process protections were not being violated. What I was asking you earlier is this -- is there any reason it cannot be the case that the same agency that takes the action, be the organization that also provides a hearing on the action and otherwise is the guarantor of due process of law?

Legally, I do not know the answer. But it bothers me from a moral perspective. It's like if the police arrested you and then the police commissioner determined if you were innocent or guilty. There are other agencies that work similarly, although we have some semblance of impartiality. A couple of tax examples (similar but different).

Federal Example (good guy) - If you are under federal audit, you can appeal the audit/assessment to the Tax Court, an independent tribunal.

Pennsylvania Example (fake good guy) - If you are assessed for Pennsylvania purposes, you can appeal your assessment to the Board of Appeals, which is basically staffed by ex-Department of Revenue people.

Fake Example (bad guy) - If you are assessed by State Government Department of Revenue X, you can appeal your assessment to the State Government Department of Revenue.

So, it bothers me that the company now must go to the Commissioner/Secretary of the FDA, who will hear the case, for which Sunland has the burden of proof (of what, I'm not sure - that it's safe?). Yeah, it's two days later, but if the FDA finds against Sunland, then it goes to court which could take a whole lot more time in which the company is not producing product.

Well, I was asking if there are cases that deal with similar regulatory abilities and have seen a situation of this sort come up, which might shed some light on how SCOTUS would rule if this came to court. I think your Noble case is the sort of thing I was looking for, but isn't it a little different because property rights are something that is generally accepted to be protected by law, whereas there is no guarantee to have a license to manufacture food, because that is always dependent on FDA approval?

I suppose it could be different, which is what the government would presumably argue if Sunland ever brought a constitutionality challenge, to distinguish existing caselaw. Unfortunately, I also don't know the answer to this question.

[Metsfanmax]

I agree that the FDA has executive-type power. That power was limited to investigating companies, approving new licenses, etc. That power has expanded so that the FDA now has the ability to unilaterally stop a company from producing product if the FDA, an expert to be sure, deems it necessary for public safety. This is a hell of a lot of power. There is no other regulatory body that can unilaterally stop production of a company (or toss someone in jail) that I'm aware of. Perhaps the CIA can do that now, but we all rail against that. The check on the FDA needs to be the judicial system. Congress only creates and regulates the FDA to a certain extent (i.e. very high level). The only check on the FDA is therefore the judicial system.

Yeah, this is a deep debate for sure. I think that because this is such an objective (scientific) issue, and not a political one, it is fair to give lots of authority to the FDA. You can objectively test whether a company is producing harmful products, whereas you can't objectively test whether the CIA is violating legal rights of citizens. For the same reason, I support a high degree of latitude given to the EPA. Yes, as always there should be impartial oversight, but how can you do that if the oversight committee is not well versed in the subject? That is why I think Congress should be the effective check on the FDA, because it's a lot easier to tell the FDA what it can and cannot do, rather than figure out whether it did things the right way (unless it screwed up in a blatantly obvious legal manner).

Legally, I do not know the answer. But it bothers me from a moral perspective. It's like if the police arrested you and then the police commissioner determined if you were innocent or guilty. There are other agencies that work similarly, although we have some semblance of impartiality. A couple of tax examples (similar but different).

Federal Example (good guy) - If you are under federal audit, you can appeal the audit/assessment to the Tax Court, an independent tribunal.

Pennsylvania Example (fake good guy) - If you are assessed for Pennsylvania purposes, you can appeal your assessment to the Board of Appeals, which is basically staffed by ex-Department of Revenue people.

Fake Example (bad guy) - If you are assessed by State Government Department of Revenue X, you can appeal your assessment to the State Government Department of Revenue.

So, it bothers me that the company now must go to the Commissioner/Secretary of the FDA, who will hear the case, for which Sunland has the burden of proof (of what, I'm not sure - that it's safe?). Yeah, it's two days later, but if the FDA finds against Sunland, then it goes to court which could take a whole lot more time in which the company is not producing product.

So it sounds like you're suggesting that for specialized issues like taxation and what the EPA and FDA do, the best course of action is to have an independent court, but that court should be filled with people who actually know enough about the issue to make an informed decision. I'm actually all for that; it's better than the Congress approach. But the problem is one of implementation; could we really hire enough judges to fill these courts? The patent system is an example of why I am pessimistic about this; many judges who hear patent cases in electronics don't actually know enough about how the technology works to make an informed decision (and if that's true for judges, imagine how bad the juries are).

I suppose it could be different, which is what the government would presumably argue if Sunland ever brought a constitutionality challenge, to distinguish existing caselaw. Unfortunately, I also don't know the answer to this question.

OK. I have given my reasons for the way I would argue the case, but these things always get pretty complicated I guess, because of all of the case law that you have to acknowledge before you can make a decision.

[Night Strike]

This whole issue is summed up by one question: Why should people prove that they are innocent instead of the government proving they are guilty?

[AndyDufresne]

This whole issue is summed up by one question: Why does peanut butter sound so delicious, even when I know it might be contaminated?


--Andy

[spurgistan]

This whole issue is summed up by one question: Why should people prove that they are innocent instead of the government proving they are guilty?

Because salmonella really sucks?

[Night Strike]

This whole issue is summed up by one question: Why should people prove that they are innocent instead of the government proving they are guilty?

Because salmonella really sucks?

Salmonella has nothing to do with the principle of the case. You don't just throw out constitutional rights because the infraction is deemed too undesirable.

[Metsfanmax]

This whole issue is summed up by one question: Why should people prove that they are innocent instead of the government proving they are guilty?

Because salmonella really sucks?

Salmonella has nothing to do with the principle of the case. You don't just throw out constitutional rights because the infraction is deemed too undesirable.

Since presumption of innocence in non-criminal proceedings is not a constitutional right, I think we're ok.

[Night Strike]

This whole issue is summed up by one question: Why should people prove that they are innocent instead of the government proving they are guilty?

Because salmonella really sucks?

Salmonella has nothing to do with the principle of the case. You don't just throw out constitutional rights because the infraction is deemed too undesirable.

Since presumption of innocence in non-criminal proceedings is not a constitutional right, I think we're ok.

Except the government is still taking away property without due process. In fact, it's even worse that they're denying it when no criminal law was actually broken because the government has even less of a leg to stand on in their justifications.

[Metsfanmax]

This whole issue is summed up by one question: Why should people prove that they are innocent instead of the government proving they are guilty?

Because salmonella really sucks?

Salmonella has nothing to do with the principle of the case. You don't just throw out constitutional rights because the infraction is deemed too undesirable.

Since presumption of innocence in non-criminal proceedings is not a constitutional right, I think we're ok.

Except the government is still taking away property without due process. In fact, it's even worse that they're denying it when no criminal law was actually broken because the government has even less of a leg to stand on in their justifications.

What property is being taken away by the government?

[Night Strike]

This whole issue is summed up by one question: Why should people prove that they are innocent instead of the government proving they are guilty?

Because salmonella really sucks?

Salmonella has nothing to do with the principle of the case. You don't just throw out constitutional rights because the infraction is deemed too undesirable.

Since presumption of innocence in non-criminal proceedings is not a constitutional right, I think we're ok.

Except the government is still taking away property without due process. In fact, it's even worse that they're denying it when no criminal law was actually broken because the government has even less of a leg to stand on in their justifications.

What property is being taken away by the government?

The income of the employees and the company itself.

[Metsfanmax]

The income of the employees and the company itself.

Ok, let me know when you're ready to have a conversation using the legal terminology and English language that everyone else uses.

[Night Strike]

The income of the employees and the company itself.

Ok, let me know when you're ready to have a conversation using the legal terminology and English language that everyone else uses.

The government has shut down that facility without any due process from a court of law. This means that private property and wages have been taken away from people by the government without the government ever proving their case to a neutral third party. And now, in order to get that property back, the people have to persuade the very entity that took away their property that they are actually innocent. It's a complete travesty of justice and infringement of rights. It is a power grab that sets a very dangerous precedent for the way every governmental agency treats businesses. And you wonder why companies are leaving the US to conduct business in other countries?

[Metsfanmax]

I will not be sad if companies that result in salmonella outbreaks pack up and go somewhere else.

[Night Strike]

I will not be sad if companies that result in salmonella outbreaks pack up and go somewhere else.

And what if companies that don't have any trace of salmonella leave simply because the executive branch can shut them down without a trial? Or what if other companies never even form and open to compete in the marketplace because the government can close them at its sole discretion? Failing to provide due process to companies that you know are in violation causes other companies that know they're within the rules to question whether or not they could be treated the same way to do a perceived violation.

[Metsfanmax]

I will not be sad if companies that result in salmonella outbreaks pack up and go somewhere else.

And what if companies that don't have any trace of salmonella leave simply because the executive branch can shut them down without a trial? Or what if other companies never even form and open to compete in the marketplace because the government can close them at its sole discretion? Failing to provide due process to companies that you know are in violation causes other companies that know they're within the rules to question whether or not they could be treated the same way to do a perceived violation.

As it so happens, the presence of salmonella in food is not really based on perception. If you don't have salmonella in your food, this particular use of the law should not concern you.

[Night Strike]

I will not be sad if companies that result in salmonella outbreaks pack up and go somewhere else.

And what if companies that don't have any trace of salmonella leave simply because the executive branch can shut them down without a trial? Or what if other companies never even form and open to compete in the marketplace because the government can close them at its sole discretion? Failing to provide due process to companies that you know are in violation causes other companies that know they're within the rules to question whether or not they could be treated the same way to do a perceived violation.

As it so happens, the presence of salmonella in food is not really based on perception. If you don't have salmonella in your food, this particular use of the law should not concern you.

But now that the FDA does not have to get court approval to shut down a business, what's stopping them from closing businesses based on perceptions instead of reality? The whole point of having the courts involved is for the FDA to prove their case before the business is closed.

[thegreekdog]

I will not be sad if companies that result in salmonella outbreaks pack up and go somewhere else.

And what if companies that don't have any trace of salmonella leave simply because the executive branch can shut them down without a trial? Or what if other companies never even form and open to compete in the marketplace because the government can close them at its sole discretion? Failing to provide due process to companies that you know are in violation causes other companies that know they're within the rules to question whether or not they could be treated the same way to do a perceived violation.

As it so happens, the presence of salmonella in food is not really based on perception. If you don't have salmonella in your food, this particular use of the law should not concern you.

In the instant case (Sunland), that is precisely the basis for removing the company's license. The FDA perceives that Sunland may have salmonella in the peanut butter based on prior experience, not based on any current testing the FDA has done. As I said before, it's like arresting the drug dealer because he used to sell drugs and you are pretty sure he's going to do it again.

[Metsfanmax]

I will not be sad if companies that result in salmonella outbreaks pack up and go somewhere else.

And what if companies that don't have any trace of salmonella leave simply because the executive branch can shut them down without a trial? Or what if other companies never even form and open to compete in the marketplace because the government can close them at its sole discretion? Failing to provide due process to companies that you know are in violation causes other companies that know they're within the rules to question whether or not they could be treated the same way to do a perceived violation.

As it so happens, the presence of salmonella in food is not really based on perception. If you don't have salmonella in your food, this particular use of the law should not concern you.

In the instant case (Sunland), that is precisely the basis for removing the company's license. The FDA perceives that Sunland may have salmonella in the peanut butter based on prior experience, not based on any current testing the FDA has done. As I said before, it's like arresting the drug dealer because he used to sell drugs and you are pretty sure he's going to do it again.

That analogy is flawed, as I said before, because while there is an individual legal right not to be imprisoned without committing a crime, there is no legal right to manufacture and distribute food. Being permitted to do so requires you to first demonstrate that your products are safe for public consumption. So this situation already exists when it comes to initial approval for a license -- you have to prove your food is safe before you are allowed to begin manufacturing it. If you then go on and start making bad products, the FDA should revoke your license and we start over. You have to again prove that your products are safe, before being allowed to distribute them again. So you can't logically be upset about this unless you're equally upset that the FDA can deny licenses to begin with.

The FDA does this all the time when it comes to drug manufacturing. It is well within the FDA's mandate to revoke a biologics license if the quality of a product diminishes to the point where it is no longer safe for general distribution. There are still pharmaceutical companies in the US.