From Apples to Soup: How the Administrative State Creates Food Crimes

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Heritage Foundation:

Heritage Foundation scholars James Gattuso and Diane Katz write in their 2016 report, “Red Tape Rising,” that the costs of federal regulations “have not been fully quantified,” but “many of the worst effects—the loss of freedom and opportunity, for example—are incalculable.”

 

“The need for reform,” Gattuso and Katz write, “is urgent.”

 

The potential risk of lost freedom and opportunity is greatest where federal agencies have attached criminal penalties to what previously had been considered innocent conduct.

 

With an expansive administrative state presiding over hundreds of thousands of regulatory crimes, businesses in particular must be on notice.

 

Cottage Cheese

 

The Food and Drug Administration is so concerned with overly moist cottage cheese that federal regulations (21 C.F.R. § 133.128) mandate that finished cottage cheese contain “not more than 80 percent of moisture.”

 

A violation of that standard subjects a producer to criminal liability under the Federal Food, Drug, and Cosmetic Act, because labeling as cottage cheese a product that contains 81 percent or more moisture means the product is “misbranded,” which is a federal crime (212 U.S.C. § 343(g)).