Wednesday, December 31, 2003


If you think the regulatory example below -- a rule banning green bananas -- is fanciful, consider the following:

1. In one infamous proceeding, the FDA spent literally 9 years debating back and forth over whether "peanut butter" should be 87.5% or 90% peanuts. (!) As one federal court described the rule and its creation:
The order was promulgated under Section 401 of the Federal Food, Drug, and Cosmetic Act, 21 U.S.C. ยง 341. Basically, it limits the percentage by weight of optional ingredients which may be added to the peanut ingredient to a maximum of ten per cent. It allows for the addition or removal of peanut oil and limits the fat content to 55 per cent. The standard also identifies allowable additives and specifies certain labelling requirements. * * *

The initial order issued June 25, 1959, 24 Fed.Reg. 5391 (July 2, 1959). Objections caused a revision, and a second order was published, 26 Fed.Reg. 11209 (Nov. 28, 1961), but its effectiveness was stayed, 27 Fed.Reg. 943 (Feb. 1, 1962). After a proposed revision, 29 Fed.Reg. 15173 (Nov. 10, 1964), and a third order, 30 Fed.Reg. 8626 (July 8, 1965), objections were filed and a public hearing was requested. Notice of the hearing was given, 30 Fed.Reg. 11970 (Sept. 18, 1965), and a hearing was held. The order appealed from issued, 33 Fed.Reg. 10506 (July 24, 1968).

Corn Products Co. v. Department of Health, Education & Welfare, 427 F.2d 511, 513 (3d Cir. 1970).
These hearings produced 7,736 pages of transcript -- all over the peanut content of "peanut butter." For all the Federal Register pages expended in that proceeding, there was but a single rule that kept being modified.

2. A post from Armavirumque points out that European grocers "have to ensure that under EU regulation 2257/94 their bananas are at least 13.97cm (5.5in) long and 2.69cm (1.06in) round and do not have 'abnormal curvature', as set out in an eight-page directive drawn up in 1994."


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