‘A total lack of common sense’ at health district?
Legal defense fund president weighs in on Quail Hollow Farm fiasco
- Wednesday, December 7, 2011
It was a story that made headlines across Southern Nevada.
The supposed problem at Quail Hollow Farm? The food — coming, as it did, right off the farm — bore no stickers saying it was "U.S.D.A. certified."
When news reporters contacted the district and sought an explanation or justification, Supervisor Susan Labay claimed she and the inspector she'd been directing over the phone at the farm had had no choice.
"I don't necessarily have the choices that everyone thinks we might," she told Colleen McCarty of 8NewsNow. "I don't necessarily agree with every law that I have to regulate [sic], but I can't choose how to apply that law. That is already decided for me."
Labay made similar remarks to Las Vegas Sun columnist J. Patrick Coolican. "We don't have an option," she said.
A bit of research, however, reveals that Labay's claim is false. More than once, NRS 446 explicitly allows health-district officials to exercise discretion in their regulation of food establishments, whether temporary or permanent.
Some two-dozen times the chapter uses the legal term that designates discretionary actions: "may" — rather than the mandatory "shall."
One instance is under the "Temporary Food Establishments" heading, where NRS 446.865 says that a "health authority" — defined in NRS 446.050 as "the officers and agents" of the state health division or local boards of health — "may ... Prohibit the sale of certain potentially hazardous food" (Emphasis added) — clearly allowing for the possibility that such food not be prohibited.
Another instance is under "Provisions for Enforcement," NRS 446.870. It says, "The health authority may exempt a food establishment from the provisions of this chapter if the health authority determines that the food which is sold, offered or displayed for sale, or served at the establishment does not constitute a potential or actual hazard to the public health." (Emphasis added)
The use of the phrase, "potential ... hazard to the public health," in that last line is an example of poor statutory phrasing by state lawmakers, and requires that health district officials use yet more discretion.
That's because Nevada's state law on food establishments — and the health-district ordinances that derive from that law — all rely, for their key definitions of "potentially hazardous food," on the federal Food and Drug Administration's Food Code — which defines virtually everything edible as "potentially hazardous."
In themselves, the FDA's definitions are reasonable, given that all foods, if improperly handled or prepared, can produce illness.
But NRS 446.870, as written, misses that important distinction. On its face, it allows bureaucrats deficient in common sense to presume that if a food is "potentially hazardous," it must be prohibited. But given that nearly all foods — being organic and subject to microbial and bacteriological action — can spoil, such an interpretation would be absurd: It would mean that no foods, properly handled or not, can be offered to the public.
"For any legal rule," observes Frederick F. Schauer, a leading scholar of jurisprudence and legal process, "the possibility will always exist that applying the plain meaning of the rule's words will produce a result at odds with what the rule was designed to accomplish, or even at odds with simple common sense."
Clearly, NRS 446.870 is such a law.
Nevada Journal asked attorney Pete Kennedy, of the Farm to Consumer Legal Defense Fund, about Labay's assertion that she and other health-district inspectors had no discretion.
"That's baloney," he said. "They have discretion; they just showed a total lack of common sense."
The health district's overbearing behavior, said Kennedy, is not an isolated case, but is part of a growing trend of "regulators gone wild." He added that "Most laws in this area are antiquated and have not caught up with changes in the local food movement."
"Incidents of food-borne illness [from farm-to-consumer sales] are almost non-existent," he said. "The regulatory burden needs to be lifted through some common-sense legislation."
Generally speaking, said Kennedy, president of the legal defense fund, "The U.S.D.A. regs on the farm slaughter of meat need to be changed." They "deprive farmers of income" and "make it very difficult to make a living as a small farmer."
Quite frequently, he said, the record shows that the regulations really have an economic purpose. Though disguised as health measures, their real intent is to "prevent the local-food movement from growing as it should," in order to "benefit the larger food processing companies by preventing competition from smaller farms that would sell direct to the consumer."
What would improve the situation, said Kennedy, would be "a two-tier system where the factories would be subjected to licensing and inspections, but direct-to-consumer farms would be exempt from any licensing and inspections."
"If [a] consumer is willing to take on the responsibility [of buying direct], they should have the right to," he said.
SNHD's Labay did not return Nevada Journal's repeated calls for comment.