I agree with Democrat William A. Galston’s observations in his Wall Street Journal column that the facts in the infant formula shortage constitute a prima facie case for bad governance which can (and should) be remedied:
In a modern society, citizens can’t possibly be aware of—let alone monitor—all the complex processes that affect their lives, so we ask government to do this on our behalf.
I’m going to interrupt Mr. Galston right there. A lot of those “complex processes” are created by the federal government. He goes on:
We grant government a substantial measure of discretionary authority, and in return we expect officials to scan the horizon for potentially harmful developments.
I’m sorry but I’m going to interrupt him again. In 1995 the Federal Register, the compendium of all federal regulations was about 1,300 pages in length. Now (a mere 27 years later) it’s more than 81,000 pages long. Not only is being aware of federal regulations beyond the ability of ordinary citizens, it’s beyond the ability of the very bureaucrats whom Mr. Galston thinks we can rely on. Continuing:
We cannot expect them to divine an imponderable future, but we do expect them to understand the reasonably foreseeable consequences of events—and of their response to them.
This brings us, first, to the Food and Drug Administration. On Oct. 21, 2021, the FDA received a report from a whistleblower who raised serious concerns about conditions at an Abbott Laboratory plant that produces infant formula. It took the agency about two months to interview the whistleblower, another month to inspect the plant, and more than two additional weeks until Abbott issued a recall notice and shut the plant. Members of Congress from both parties are raising tough questions about this dilatory pace.
The consequences of the plant shutdown were foreseeable. The infant formula market is highly concentrated, with two firms accounting for more than 80% of all domestic production. Abbott is the single largest producer, and the plant that shut down accounts for about 20% of the total. Common sense suggests that when you abruptly remove a fifth of supply from the market, shortages are inevitable.
Compounding the problem, foreign firms couldn’t fill the gap. Regulatory barriers and steep tariffs ensure that 98% of all infant formula consumed in the U.S. is produced in the U.S., which is good news for American producers but not for American consumers.
Another interruption. “Regulatory barriers and steep tariffs” aren’t the only reasons that foreign firms can’t “fill the gap”. Total capacity is another reason that doesn’t receive enough attention. The U. S. is a very big country—four times the size of Germany, five times the size of France, and almost ten times the size of Canada. We can’t expect other countries to be our backstops. Continuing:
I’m not the only one wondering why we have tariffs as high as 17.5% on formula produced in the European Union, or why our regulations exclude imports from countries whose food safety standards are at least as strict as our own.
Three months ago, most Americans were unaware of these facts about the infant formula industry, but it stretches credulity to believe that the White House wasn’t. When the Abbott plant shut down, alarm bells should have gone off at 1600 Pennsylvania Avenue, and planning should have begun to avert the inevitable shortages. Judging by the scramble of the past 10 days, whatever plans there were didn’t get very far.
If regulatory roadblocks had been softened in a timely manner, for example, the U.S. could have imported enough infant formula to mitigate the impact of the plant closing. Instead, the president has had to use the military to conduct an emergency airlift from overseas. If formula from the EU is safe for U.S. consumers today, it was safe three months ago—and probably three years ago.
You might recognize that point as one I’ve made here early on.
I also agree with all of his proposals for remediation:
This is also an opportunity to make other changes, starting with tariffs and regulations and extending to some unnecessary rigidities in the Women, Infants, and Children programs, which help cover the cost of formula for those who can’t afford it. The government should find a better balance between efficiency in normal operations and resilience in times of stress. More broadly, it is time to reconsider a longstanding proposal—backed by everyone from the Government Accountability Office to the Trump administration—to break up the FDA into two agencies, one dealing exclusively with food safety, the other with drugs. Numerous GAO reports have shown that the U.S. food safety system is fragmented across different departments and agencies with overlapping responsibilities and that a single food safety agency would improve effectiveness and efficiency of food safety regulation. The odds are that such an agency would have responded to the infant formula crisis more alertly than did the FDA.
Why do we have so many federal regulations?
Why don’t federal bureaucrats behave more responsibly?
There are lots of reasons for the enormous growth in federal regulations. Yes, the U. S. is a big country but it’s not 50 times bigger today than it was 27 years ago. One of the reasons is the use of personal computers and word processors. I’m not the first person to point it out but novels are longer today than they were a century ago (except for the occasional War and Peace) because it’s easier to produce longer works than it used to be. But another reason is the natural inclination of bureaucracies to extend their own mandates. Left to their own devices they will continue to expand without limit and Congress has been reluctant to impose enough limits on them. And, finally, there is a view abroad in the land, frequently on the part of those who know little about how governments actually work, that all problems can and should be solved by governments.
As to my second question once again, left to their own devices bureaucrats will not behave in a timely or responsible manner. Their objective, inevitably, will be to avoid responsibility and bold, decisive action is the opposite of that. In addition their is no downside risk to delay or just plain inaction.
We need serious civil service reform urgently. We need to amend shield laws or remove them entirely, only defending civil servants when they are operating explicitly within the law.
Finally, a modest proposal. Maybe we should abandon the age-old dictum ignorantia juris non excusat. Maybe it’s time for ignorance of the law to be a legitimate excuse.