FDA Can Shut Down Businesses

[Night Strike]

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.

So what about the fact that the FDA doesn't have to prove that you're making bad products? If they claim that you're making bad food, then they can shut you down. What happens when instead of salmonella, they're shutting down food makers that include too much sugar, salt, or other substance the government deems as harmful to their government-run healthcare plans?

And every license the government issues (why they have to license EVERYTHING in order for free people to do anything is beyond me) comes with a set expiration date. If the government wants to revoke that license before the expiration date, they have to go to court. One branch of the government can't just unilaterally go out and cancel licenses on their own whims. They have to prove that the license is being violated before it can be revoked. If you want to end a contract before the terms expire, you must go to court and prove your case. Otherwise, it's simply the government picking and choosing which companies they want to stay open and which ones they want to punish into submission.

[Metsfanmax]

So what about the fact that the FDA doesn't have to prove that you're making bad products? If they claim that you're making bad food, then they can shut you down. What happens when instead of salmonella, they're shutting down food makers that include too much sugar, salt, or other substance the government deems as harmful to their government-run healthcare plans?

You mean they don't have to "prove" it in a court of law. That doesn't mean they don't need to come up with evidence for their claim. They still do.

Your slippery slope argument is a non-starter, because again that has nothing to do with the ability to revoke a license. As you observe below, licenses need to be renewed periodically, so the government could just as easily achieve the same goal by refusing to permit licenses to manufacturers that have too much sugar in their food. That may be a reason to be worried about FDA licensing in general, but it says very little about the specific ability to revoke a permit.

And every license the government issues (why they have to license EVERYTHING in order for free people to do anything is beyond me) comes with a set expiration date. If the government wants to revoke that license before the expiration date, they have to go to court. One branch of the government can't just unilaterally go out and cancel licenses on their own whims.

Except they can. The FDA was already able to do this in the case of drug licenses. So you're many years too late in your argument.

[Night Strike]

So what about the fact that the FDA doesn't have to prove that you're making bad products? If they claim that you're making bad food, then they can shut you down. What happens when instead of salmonella, they're shutting down food makers that include too much sugar, salt, or other substance the government deems as harmful to their government-run healthcare plans?

You mean they don't have to "prove" it in a court of law. That doesn't mean they don't need to come up with evidence for their claim. They still do.

According to whom? If the FDA writes the regulations, polices the regulations, and adjudicates violations of the regulations, where is an outside check that forces them to prove anything? When the FDA can both shut people down prematurely as well as determine whether or not they can reopen, they don't have to prove any claim they make. It's deemed a violation of liberties when the prosecutor is also the judge, so why is that an acceptable practice for the FDA to follow?

And every license the government issues (why they have to license EVERYTHING in order for free people to do anything is beyond me) comes with a set expiration date. If the government wants to revoke that license before the expiration date, they have to go to court. One branch of the government can't just unilaterally go out and cancel licenses on their own whims.

Except they can. The FDA was already able to do this in the case of drug licenses. So you're many years too late in your argument.

Let's assume that you're correct in the claim. Doing something a certain way for a long time means it's an acceptable (and Constitutional) practice to continue? Since when is longevity a criteria for Constitutionality?

[Metsfanmax]

According to whom? If the FDA writes the regulations, polices the regulations, and adjudicates violations of the regulations, where is an outside check that forces them to prove anything? When the FDA can both shut people down prematurely as well as determine whether or not they can reopen, they don't have to prove any claim they make. It's deemed a violation of liberties when the prosecutor is also the judge, so why is that an acceptable practice for the FDA to follow?

The judicial system still acts as a check on the FDA in the sense that the FDA still has to follow the law as written, which states

"If the Secretary determines that food manufactured, processed, packed, received, or held by a facility registered under this section has a reasonable probability of causing serious adverse health consequences or death to humans or animals, the Secretary may by order suspend the registration of a facility..."

Therefore if a company believes that the Secretary had no reasonable probability of determining this, they could always take the FDA to court just like any other time you would, when an executive agency transgresses its mandate. If the FDA could not produce an acceptable reason why they had this belief, then presumably the order would be overturned.

Let's assume that you're correct in the claim. Doing something a certain way for a long time means it's an acceptable (and Constitutional) practice to continue? Since when is longevity a criteria for Constitutionality?

No. It just serves to prove the point that the FDA has had this power for a long time, so you can't start an argument about this specific issue without getting into a larger debate about the purpose of the FDA as a whole.

[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.

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.

Oh for the love of pete... I can't keep typing the same goddamn thing over and over again.

[crispybits]

I take it by "the same old thing" you mean this TGD

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.

The FDA inspected the site on 13 October, so all of 4 weeks before the suspension of the license. After that point they asked Sunland to provide reports about the actions they were taking to remedy the many faults that the FDA had found, tested and documented that had led to the salmonella outbreak. Faults that had been noted on previous inspections and which the company had not remedied despite having years (in some cases) to do so.

Sunland provided reports that led the FDA to believe that the problems they had identified were not being fixed.

So the suspension, while loosely based on previous incidents, was also done with the benefit of up to date knowledge about the actions the company said it was taking to solve the problems, and in this case what the company said it was doing was insufficient, and likely to cause a risk to public health.

To try and find an analogy that works, it's like a policeman telling you over the course of months "your car needs new brakes, new lights, new seatbelts and a new exhaust - it's not safe!" and then eventually your brakes fail and you end up half way through a fence beside the road. The policeman turns up and you say "it's OK, I'm fixing the lights" and wave the bulbs at him, but he's still likely to take away your registration (or however the american system works) because the car has no brakes, a blown exhaust and no seatbelts and is a death trap. Or if American police don't have the power to impound dangerous cars without having to go to court first then I have to wonder....

[thegreekdog]

I take it by "the same old thing" you mean this TGD

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.

The FDA inspected the site on 13 October, so all of 4 weeks before the suspension of the license. After that point they asked Sunland to provide reports about the actions they were taking to remedy the many faults that the FDA had found, tested and documented that had led to the salmonella outbreak. Faults that had been noted on previous inspections and which the company had not remedied despite having years (in some cases) to do so.

Sunland provided reports that led the FDA to believe that the problems they had identified were not being fixed.

So the suspension, while loosely based on previous incidents, was also done with the benefit of up to date knowledge about the actions the company said it was taking to solve the problems, and in this case what the company said it was doing was insufficient, and likely to cause a risk to public health.

To try and find an analogy that works, it's like a policeman telling you over the course of months "your car needs new brakes, new lights, new seatbelts and a new exhaust - it's not safe!" and then eventually your brakes fail and you end up half way through a fence beside the road. The policeman turns up and you say "it's OK, I'm fixing the lights" and wave the bulbs at him, but he's still likely to take away your registration (or however the american system works) because the car has no brakes, a blown exhaust and no seatbelts and is a death trap. Or if American police don't have the power to impound dangerous cars without having to go to court first then I have to wonder....

I bolded the important part. This is also the part that identifies the due process issue here. How do you know that Sunland didn't fix the problem? How do you know that the FDA did a thorough test? Why would you trust the FDA and not trust Sunland that you would ensure their due process rights were violated?

Honestly? I thought we were all good to go with the third party arbiter, but I guess you and Mets are still on your "companies should be punished because companies are automatically bad and the government is automatically good because it's the government, and who cares about due process" kick.

[Night Strike]

According to whom? If the FDA writes the regulations, polices the regulations, and adjudicates violations of the regulations, where is an outside check that forces them to prove anything? When the FDA can both shut people down prematurely as well as determine whether or not they can reopen, they don't have to prove any claim they make. It's deemed a violation of liberties when the prosecutor is also the judge, so why is that an acceptable practice for the FDA to follow?

The judicial system still acts as a check on the FDA in the sense that the FDA still has to follow the law as written, which states

"If the Secretary determines that food manufactured, processed, packed, received, or held by a facility registered under this section has a reasonable probability of causing serious adverse health consequences or death to humans or animals, the Secretary may by order suspend the registration of a facility..."

Therefore if a company believes that the Secretary had no reasonable probability of determining this, they could always take the FDA to court just like any other time you would, when an executive agency transgresses its mandate. If the FDA could not produce an acceptable reason why they had this belief, then presumably the order would be overturned.

And in the meantime, the company is sitting there losing money because they are not allowed to be open while they go through the court system to get their company back. Many companies will just shut down altogether because they won't be able to afford to stay in business if they can't keep making products. If you're perfectly fine with people proving innocence in court after they've been shut down, why aren't you ok with the government proving guilt in court before they've been shut down?

[thegreekdog]

According to whom? If the FDA writes the regulations, polices the regulations, and adjudicates violations of the regulations, where is an outside check that forces them to prove anything? When the FDA can both shut people down prematurely as well as determine whether or not they can reopen, they don't have to prove any claim they make. It's deemed a violation of liberties when the prosecutor is also the judge, so why is that an acceptable practice for the FDA to follow?

The judicial system still acts as a check on the FDA in the sense that the FDA still has to follow the law as written, which states

"If the Secretary determines that food manufactured, processed, packed, received, or held by a facility registered under this section has a reasonable probability of causing serious adverse health consequences or death to humans or animals, the Secretary may by order suspend the registration of a facility..."

Therefore if a company believes that the Secretary had no reasonable probability of determining this, they could always take the FDA to court just like any other time you would, when an executive agency transgresses its mandate. If the FDA could not produce an acceptable reason why they had this belief, then presumably the order would be overturned.

And in the meantime, the company is sitting there losing money because they are not allowed to be open while they go through the court system to get their company back. Many companies will just shut down altogether because they won't be able to afford to stay in business if they can't keep making products. If you're perfectly fine with people proving innocence in court after they've been shut down, why aren't you ok with the government proving guilt in court before they've been shut down?

Because companies are bad.

[Metsfanmax]

According to whom? If the FDA writes the regulations, polices the regulations, and adjudicates violations of the regulations, where is an outside check that forces them to prove anything? When the FDA can both shut people down prematurely as well as determine whether or not they can reopen, they don't have to prove any claim they make. It's deemed a violation of liberties when the prosecutor is also the judge, so why is that an acceptable practice for the FDA to follow?

The judicial system still acts as a check on the FDA in the sense that the FDA still has to follow the law as written, which states

"If the Secretary determines that food manufactured, processed, packed, received, or held by a facility registered under this section has a reasonable probability of causing serious adverse health consequences or death to humans or animals, the Secretary may by order suspend the registration of a facility..."

Therefore if a company believes that the Secretary had no reasonable probability of determining this, they could always take the FDA to court just like any other time you would, when an executive agency transgresses its mandate. If the FDA could not produce an acceptable reason why they had this belief, then presumably the order would be overturned.

And in the meantime, the company is sitting there losing money because they are not allowed to be open while they go through the court system to get their company back. Many companies will just shut down altogether because they won't be able to afford to stay in business if they can't keep making products. If you're perfectly fine with people proving innocence in court after they've been shut down, why aren't you ok with the government proving guilt in court before they've been shut down?

Because companies are bad.

Sure, impugn our alleged motives in the conversation instead of taking our arguments seriously. That will solve everything.

I could just as easily imply that all of your arguments come from a hate for government, based on your rhetoric. That would get us nowhere.

[PLAYER57832]

I'm not convinced this is bad precedent. A company was found to be selling dangerous products to consumers. The government wants the company to prove that it has cleaned up its act before it can start reselling its products. Why is that unreasonable? Consumer safety is the ultimate goal here.

This makes me sad.

First, the company is not "selling dangerous products to consumers." It has sold some dangerous products to consumers. All of its products are not dangerous.

Niether were Johnson and Johnson's but they halted their entire production of Tylenol and reformulated their product when there was even a HINT that there might be a problem.. and continued even when it turned out that the problem was outside sabotage and nothing to do with the company directly.

Second, the company's products that were identified as being dangerous were taken off the shelves, which is the appropriate response.

Really? You don't think the company has a higher obligation to make sure it does not happen AGAIN?

Note that Salmonella can kill some people....

Third, I can think of three less onerous solutions to the problem: (1) Take the company to court (the prior standard); (2) Trader Joe's stops selling the product; (3) The general public is informed of the problem and ceases to purchase the product.

According to the article this was done at first, but the company has repeatedly sold bad product.. it did not respons appropriately.

The onus should be on the government to prove that the current methods of the company for testing are inadequate (and that it is actually the company, and not some outside influence, that is causing the problem). The way the government proves this such that it can shut down the company is by going to court.

So, the goal of consumer safety can be achieved without shutting down the company without due process.

And your feeling would be the same if your child were put in the hospital or funeral home as a result of this? And note.. that HAS happened many times before and in each case the cry is for the FDA to increase safety standards

Note.. I am not sold on the actions in this particular case because I know little more than is in this thread. I have seen an inordinate emphasis on "safety" when it comes to "natural" products and far, far less when it comes to more traditional chemical laden products. But, I am addressing your specific arguments above.

[PLAYER57832]

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.

Why is the company allowed to operate and sell food that is not fully and 100% poercent proven safe? THAT should be the real question here.

The problem with what you are saying -- "just go to court" is that while the case is in court, hundreds or even thousands of people are being endangered. Also, the onus is on the FDA to prove harm. That is, the taxpayers, in short the customers and people who are not even buying the product are vested withe the financial burden of proving that a private for profit companies' product is dangerous. I would argue that the real onus should be on the company to prove its product is safe.. and that I shoud not be billed on iota for any expense in that proof, unless I am myself buying the product (and then the cost will be inherent in the product cost).

Anything else is asking ME to subsidize a private corporation, and in this case, keeping the FDA from providing for community safety because company profits take precedence over safety.

[PLAYER57832]

According to whom? If the FDA writes the regulations, polices the regulations, and adjudicates violations of the regulations, where is an outside check that forces them to prove anything? When the FDA can both shut people down prematurely as well as determine whether or not they can reopen, they don't have to prove any claim they make. It's deemed a violation of liberties when the prosecutor is also the judge, so why is that an acceptable practice for the FDA to follow?

The judicial system still acts as a check on the FDA in the sense that the FDA still has to follow the law as written, which states

"If the Secretary determines that food manufactured, processed, packed, received, or held by a facility registered under this section has a reasonable probability of causing serious adverse health consequences or death to humans or animals, the Secretary may by order suspend the registration of a facility..."

Therefore if a company believes that the Secretary had no reasonable probability of determining this, they could always take the FDA to court just like any other time you would, when an executive agency transgresses its mandate. If the FDA could not produce an acceptable reason why they had this belief, then presumably the order would be overturned.

And in the meantime, the company is sitting there losing money because they are not allowed to be open while they go through the court system to get their company back. Many companies will just shut down altogether because they won't be able to afford to stay in business if they can't keep making products. If you're perfectly fine with people proving innocence in court after they've been shut down, why aren't you ok with the government proving guilt in court before they've been shut down?

Because companies are bad.

Companies are not bad, but they ARE amoral, or rather their only moral is to make a profit, which generally includes following the law, and often includes meeting public safety and health demands. However, isn't it interesting how quickly those things get pushed aside in the name of profit when its expedient?..a nd how easy the justification for ignoring those things comes?

This is precisely why the root of all evil (but NOT evil itself) is the love of money (but NOT money itself!).

[thegreekdog]

According to whom? If the FDA writes the regulations, polices the regulations, and adjudicates violations of the regulations, where is an outside check that forces them to prove anything? When the FDA can both shut people down prematurely as well as determine whether or not they can reopen, they don't have to prove any claim they make. It's deemed a violation of liberties when the prosecutor is also the judge, so why is that an acceptable practice for the FDA to follow?

The judicial system still acts as a check on the FDA in the sense that the FDA still has to follow the law as written, which states

"If the Secretary determines that food manufactured, processed, packed, received, or held by a facility registered under this section has a reasonable probability of causing serious adverse health consequences or death to humans or animals, the Secretary may by order suspend the registration of a facility..."

Therefore if a company believes that the Secretary had no reasonable probability of determining this, they could always take the FDA to court just like any other time you would, when an executive agency transgresses its mandate. If the FDA could not produce an acceptable reason why they had this belief, then presumably the order would be overturned.

And in the meantime, the company is sitting there losing money because they are not allowed to be open while they go through the court system to get their company back. Many companies will just shut down altogether because they won't be able to afford to stay in business if they can't keep making products. If you're perfectly fine with people proving innocence in court after they've been shut down, why aren't you ok with the government proving guilt in court before they've been shut down?

Because companies are bad.

Sure, impugn our alleged motives in the conversation instead of taking our arguments seriously. That will solve everything.

I could just as easily imply that all of your arguments come from a hate for government, based on your rhetoric. That would get us nowhere.

Given that you've ignored my cogent, reasoned, proven (by case law) and intelligent points throughout this thread, the only possible explanation for you not getting this is that you think companies are bad. Hell, two pages ago you basically agreed with me and then suddenly we're back to this - you don't understand the concept of due process, despite my explanations, or you just don't seem to care that a government agency can unilaterally take away a company's right to do business without a third party arbiter.

Further, I think the reason you are arguing about this with both Night Strike and myself is precisely because you think we hate the government. If this was someone like Natty Dread or if this was a different situation where you hate the government (e.g. criminal prosecutions without due process), I suspect you would either not be arguing or not arguing vociferously.

[thegreekdog]

And your feeling would be the same if your child were put in the hospital or funeral home as a result of this? And note.. that HAS happened many times before and in each case the cry is for the FDA to increase safety standards

I'm not going to address the points in your other three posts because I've addressed them before and this thread is unbelievably frustrating.

To this point, as soon as the news became public that Sunland sold products with salmonella, my wife and I immediately threw out not just our Sunland peanut butter, but all peanut butter purchased from Trader Joe's (we go there regularly). Salmonella breakouts are going to happen even if the FDA can shut down a company without providing due process (unless the FDA tests each product individually and continuously from the moment it begins manufacture until the moment it touches the mouth of the person eating the product).

[Metsfanmax]

you don't understand the concept of due process, despite my explanations, or you just don't seem to care that a government agency can unilaterally take away a company's right to do business without a third party arbiter.

Bolded the part that I agree with (well, except that I don't agree that there's any "right" to do business).

Further, I think the reason you are arguing about this with both Night Strike and myself is precisely because you think we hate the government. If this was someone like Natty Dread or if this was a different situation where you hate the government (e.g. criminal prosecutions without due process), I suspect you would either not be arguing or not arguing vociferously.

I quite honestly do not care what you think about the government, nor do I care in the least what Night Strike thinks. To me, this is completely about rationality, as I treat all things that I think about. I do not think it is rational to allow the FDA to deny licenses unilaterally but to disallow the FDA to revoke licenses unilaterally. To me there's just no sense in that, which is why I'm arguing vociferously, perhaps even to the point where what I'm saying grates against established case law (although no, I don't think you've shown this cogently).

[thegreekdog]

you don't understand the concept of due process, despite my explanations, or you just don't seem to care that a government agency can unilaterally take away a company's right to do business without a third party arbiter.

Bolded the part that I agree with (well, except that I don't agree that there's any "right" to do business).

Further, I think the reason you are arguing about this with both Night Strike and myself is precisely because you think we hate the government. If this was someone like Natty Dread or if this was a different situation where you hate the government (e.g. criminal prosecutions without due process), I suspect you would either not be arguing or not arguing vociferously.

I quite honestly do not care what you think about the government, nor do I care in the least what Night Strike thinks. To me, this is completely about rationality, as I treat all things that I think about. I do not think it is rational to allow the FDA to deny licenses unilaterally but to disallow the FDA to revoke licenses unilaterally. To me there's just no sense in that, which is why I'm arguing vociferously, perhaps even to the point where what I'm saying grates against established case law (although no, I don't think you've shown this cogently).

The only thing that can possibly sway me to have a different opinion is that there is not a right to do business. And, frankly and honestly, I think a court decision on the constitutionally is totally up in the air (it could go either way) as to whether there is a violation of due process, mainly because there is a good argument that no property has been taken without due process.

My point is, again, the following: There is no evidence that the product being sold or going to be sold, right now, is dangerous. The only thing that the FDA is going on is the past health issues associated with Sunland's product. And that smacks of too much government power and a violation of due process. If we were talking about a criminal case, which we're not (I acknowledge that), there would be no question this is a violation of due process. The only reason why we're not upset about this instant case is because it's not a criminal case on an individual. If we substituted "criminal" for "business" and "individual" for "company," we'd have a different result in this thread. That seems to be a small change to get such a different result.

And a further point I just thought of with Player's post: What is the difference, in terms of securing the health of consumers, between the current law and the prior law? It seemed to be working well before, why the change? Sunland was producing unhealthy food products when the law was passed and the FDA had this power and that did not stop people from getting sick. Further, this is the first and only instance where the FDA has used this power since the law passed.

[Metsfanmax]

The only thing that can possibly sway me to have a different opinion is that there is not a right to do business. And, frankly and honestly, I think a court decision on the constitutionally is totally up in the air (it could go either way) as to whether there is a violation of due process, mainly because there is a good argument that no property has been taken without due process.

On this point I am arguing more from a stance of rationality than I am of case law. Whether there is a right to do business is something that I am in no position to discuss, because I don't know much about the precedent there. But I do know that there is already effectively no right to do business (again, just thinking logically) if the FDA can deny a permit unilaterally. Prior to this law, if the FDA suspected that you were going to release a harmful product on the market, they could stop you from doing so (or, more specifically, not ever allow you to start). I don't see this as being logically different from the Sunland case. It is obviously legally different, because of the potential due process issues, and obviously practically different, because Sunland was already in business and depending on this manufacturing to make a profit. But I don't think it's logically or ethically different.

My point is, again, the following: There is no evidence that the product being sold or going to be sold, right now, is dangerous. The only thing that the FDA is going on is the past health issues associated with Sunland's product. And that smacks of too much government power and a violation of due process. If we were talking about a criminal case, which we're not (I acknowledge that), there would be no question this is a violation of due process. The only reason why we're not upset about this instant case is because it's not a criminal case on an individual. If we substituted "criminal" for "business" and "individual" for "company," we'd have a different result in this thread. That seems to be a small change to get such a different result.

I completely agree with your evaluation of the situation. But I just don't think the same protections should apply for business that apply in criminal proceedings. I don't think it's a small change to replace "individual" with business, because individual freedoms are the bedrock of our Constitutional rights. The freedom to do business has been effectively curtailed for over 100 years now, once the government started busting monopolies. I accept this situation, as I think that consumer (and worker) protections are more important than freedom to make the most amount of money possible. We could get into this if you desire, but I have much deeper reasons for feeling that way than this particular case.

And a further point I just thought of with Player's post: What is the difference, in terms of securing the health of consumers, between the current law and the prior law? It seemed to be working well before, why the change? Sunland was producing unhealthy food products when the law was passed and the FDA had this power and that did not stop people from getting sick. Further, this is the first and only instance where the FDA has used this power since the law passed.

In my mind, this just cements the fact that this is not a dangerous law, the way that Night Strikes suggests it is. If it has been more than a year, and the FDA has used this only once, that tells me that the FDA only plans to use this in the most serious cases, and that it takes seriously the consequences of shutting down a production line (as it should). The FDA also shows this restraint when using its ability to revoke drug licenses.

[thegreekdog]

On this point I am arguing more from a stance of rationality than I am of case law. Whether there is a right to do business is something that I am in no position to discuss, because I don't know much about the precedent there. But I do know that there is already effectively no right to do business (again, just thinking logically) if the FDA can deny a permit unilaterally. Prior to this law, if the FDA suspected that you were going to release a harmful product on the market, they could stop you from doing so (or, more specifically, not ever allow you to start). I don't see this as being logically different from the Sunland case. It is obviously legally different, because of the potential due process issues, and obviously practically different, because Sunland was already in business and depending on this manufacturing to make a profit. But I don't think it's logically or ethically different.

If we just look at this from a rational and logical perspective, I probably have no problem with the law. However, as acknowledged, there does not appear to be a rational or logical reason for the law to have changed given that there is no perceived benefit from the new law that did not exist under the old law. The FDA was not able to stop the release of harmful products by Sunland under the new law. So, I guess the question is, how does the new law benefit the public where the old law did not? And if we answer that question as "It doesn't" or "It has a potential small benefit," then we come back to the question of due process and whether that violates our emotional feelings on what the government should and should not be allowed to do.

I completely agree with your evaluation of the situation. But I just don't think the same protections should apply for business that apply in criminal proceedings. I don't think it's a small change to replace "individual" with business, because individual freedoms are the bedrock of our Constitutional rights. The freedom to do business has been effectively curtailed for over 100 years now, once the government started busting monopolies. I accept this situation, as I think that consumer (and worker) protections are more important than freedom to make the most amount of money possible. We could get into this if you desire, but I have much deeper reasons for feeling that way than this particular case.

We should not get into this because it's not really applicable to this thread. I believe that all people and entities should have equal protections (given that entities are made up entirely of people) and I think it is not out of the realm of reality that Sunland employees are negatively affected by this ruling in a major way. Certainly the owners of Sunland are much better off than their employees. So while the right to do business (if such a right exists) is not one enjoyed by the employees of Sunland, they are certainly negatively effected.

In my mind, this just cements the fact that this is not a dangerous law, the way that Night Strikes suggests it is. If it has been more than a year, and the FDA has used this only once, that tells me that the FDA only plans to use this in the most serious cases, and that it takes seriously the consequences of shutting down a production line (as it should). The FDA also shows this restraint when using its ability to revoke drug licenses.

This can be seen two ways. First, it is not a dangerous law and therefore why pass it in the first place since it probably has a negligible effect on food and drug safety. Second, it could become a dangerous law in the future and is precedent for this power to be given to other agencies.

Imagine, if you will, that the NSA or the FBI or the SEC can unilaterally remove a company's license to do business because the company previously had a criminal CEO or because the company previously violated antitrust laws or any number of other scenarios involving prior crimes or bad acts. This, of itself, is bothersome to me, but may not be to others who do not place the same emphasis on freedom to do business that I do. But if we take it one step further, we may get to a situation where political battles are waged on businesses. For example, let's say Walmart donates a lot of money to Democrats; Republicans win the presidential election and the SEC, now under some Republican sway, decides to punish Walmart under the guise of antitrust laws. That would and should be bothersome to all.

I know the slippery slope argument is not a good one, but I remain convinced that this is where the government is going, mainly based on the NDAA and the Patriot Act, more than the FDA's newfound powers. Frankly, I think the FDA is mainly influenced by the companies they are supposed to regulate and their power is virtually nil with respect to those companies (Sunland is not one of those companies).

[AAFitz]

It's sort of weird when somebody's arguing from a nominally pro-salmonella perspective.

we should let the free market fix your colon.
this seems more like not granting a license to someone, till they prove they can see, than shutting down a business without due process.

[Metsfanmax]

If we just look at this from a rational and logical perspective, I probably have no problem with the law. However, as acknowledged, there does not appear to be a rational or logical reason for the law to have changed given that there is no perceived benefit from the new law that did not exist under the old law. The FDA was not able to stop the release of harmful products by Sunland under the new law. So, I guess the question is, how does the new law benefit the public where the old law did not?

I imagine the idea here is twofold. First, the judicial system is slow, and if the FDA has evidence of a sudden breakout of a harmful toxin, it can act quickly to prevent further harm to consumers. This could, in principle, be fixed by having all revocations be pursuant to a later court proceeding, and if the FDA cannot prove its case in court, then the revocation is vacated. Second, unless the court in question is well-versed in the food science and other related issues, it is not guaranteed to make an accurate decision on the case.

And if we answer that question as "It doesn't" or "It has a potential small benefit," then we come back to the question of due process and whether that violates our emotional feelings on what the government should and should not be allowed to do.

I think due process is a separate question. In my mind, a law is either constitutional or it is not. If the law violates due process protections, throw it out. I don't consider it something to be "weighed" against other things. That's no way to treat our beautiful document ;D

This can be seen two ways. First, it is not a dangerous law and therefore why pass it in the first place since it probably has a negligible effect on food and drug safety. Second, it could become a dangerous law in the future and is precedent for this power to be given to other agencies.

Imagine, if you will, that the NSA or the FBI or the SEC can unilaterally remove a company's license to do business because the company previously had a criminal CEO or because the company previously violated antitrust laws or any number of other scenarios involving prior crimes or bad acts. This, of itself, is bothersome to me, but may not be to others who do not place the same emphasis on freedom to do business that I do. But if we take it one step further, we may get to a situation where political battles are waged on businesses. For example, let's say Walmart donates a lot of money to Democrats; Republicans win the presidential election and the SEC, now under some Republican sway, decides to punish Walmart under the guise of antitrust laws. That would and should be bothersome to all.

I understand the slippery slope argument you are making here, and I am partial to it since you are quite correct: government in modern years is much more extensive in the powers it attempts to use (at least, blatantly out in the open), compared to earlier decades. That being said, I don't think any of these analogies are proper. There's a number of reasons why I think this, and it would be hard to describe all of them here. As a specific example, consider the company violating antitrust laws. In that case, there's a clear way to rectify the harm done; the penalties for violating the laws seek to ensure this. But when we are talking about the health of the consumers of the product, we are talking about something much more serious than financial harm. There are always methods of restitution for those circumstances; there's no way to magically regain your health if you get sick from a salmonella contamination. The reason I bring this up is that I don't think the government could ever have a case for shutting a business down for the reasons you state, although I can't comment on whether they would try.

[thegreekdog]

I imagine the idea here is twofold. First, the judicial system is slow, and if the FDA has evidence of a sudden breakout of a harmful toxin, it can act quickly to prevent further harm to consumers. This could, in principle, be fixed by having all revocations be pursuant to a later court proceeding, and if the FDA cannot prove its case in court, then the revocation is vacated. Second, unless the court in question is well-versed in the food science and other related issues, it is not guaranteed to make an accurate decision on the case.

I am not 100% familiar with all of the details with the Sunland case, but it seems to me that someone acted quickly in that Sunland was forced to recall its products and the public was informed that the product was dangerous. The FDA did not stop the harmful product from getting out, hence I'm not sure how the FDA could have acted more quickly. The purpose of the law, I assume, is to prevent the harmful product from getting out in the first place. The harmful peanut butter was released because Sunland had a license in the first place. In other words, the FDA did not detect salmonella in its initial testing. You've mentioned pharmaceuticals and initial testing in this thread before, and the problems associated with pharmaceuticals are much different than the problems associated with food. Pharmaceuticals are harmful because of the chemicals purposefully placed in the product. Food can be harmful because of the organisms (or chemicals) that get into the food accidentally, for reasons that can be beyond "the producer is unclean." On the subject of an expert court, the court listens to testimony from experts, one of whom would be an FDA expert (and certainly one of whom would be a Sunland expert). There are plenty of things courts decide where the judge is not an expert, whether they be criminal, tax, property, contracts, etc. in which experts testify. In sum, I'm not sure I agree with your reasons.

I think due process is a separate question. In my mind, a law is either constitutional or it is not. If the law violates due process protections, throw it out. I don't consider it something to be "weighed" against other things. That's no way to treat our beautiful document ;D

The way constitutional cases work is that the complaining party must bring up a theory as to why their rights are being violated; once it gets into that area, the court then does weigh the state's interest (it must be compelling) versus the complaining party's interest. There are other levels (e.g. rational basis), but if the state has a compelling state interest, it wins.