Can the FDA regulate away the perils of outdoor crops?

The Food and Drug Administration (FDA), my former employer, has proposed a rule to make irrigation water safer. It won’t, but it does shine a light on the sometimes-incomprehensible ways federal bureaucrats choose to regulate. 

Apparently, from the FDA’s point of view, they must write this rule because it is their job to write regulations, whether they actually solve problems or not. This is a problem with all regulatory agencies. In fact, we have hundreds of thousands of people writing regulations in federal agencies. It’s what they’re paid to do, and Congress routinely passes laws that require them to do it.

Although congressional laws enable regulations, regulators produce 19 regulations for every congressional law. And unlike laws – where typically fewer than five out of every 100 proposals become actual policy – proposed regulations virtually always become final. And each year, we have a lot of them; in 2021, there were 3,257 new regulations. 

There are lots of reasons why many proposed regulations shouldn’t become final and, in fact, that’s the whole point of the regulatory review process that President Carter started and President Reagan put in place. Some regulations address imaginary problems rather than those which can be studied and documented. Others address something that is likely to happen only once. Some don’t address what causes a problem, but only something that is correlated with it. (Just because the rooster crows at sunrise doesn’t mean he brings the sun up.)

Other problems aren’t worth addressing. Did Department of Energy regulators need to meddle with dishwashers so that customers could save $3 over 15 years? Sometimes the solution is so expensive that it isn’t worth it. Other times the rules make problems worse. Some regulations that reduce pesticide-related risks increase risks from substitute pesticides or allergens, or even increase the natural level of toxic pesticides plants produce.

FDA’s irrigation proposal is another example. It’s not a solution of any kind.

The regulation would require farmers to do an Agricultural Water Assessment to determine whether there are pigs, cows or chickens on neighboring farms or wildlife in their area (e.g., birds or deer) that produce feces that might end up in irrigation water. It seems to me that if you ask any farmer in the country, they’ll answer yes or no to the first part, and “of course” to the second part.

If the answer to either question is yes (and that’s probably the honest answer 100 percent of the time), that would mean that the conditions would be “reasonably likely to introduce known or reasonably foreseeable hazards into or onto produce.” That would trigger a requirement to study and fix the problem.

There are also a lot of specific requirements, such as determining where the water comes from, knowing what kind of application a farmer uses, such as drip or sprinkler methods (like the wildlife question, this wouldn’t require a lot of investigative time), how “susceptible” their produce is to contaminated water and how frequently it rains. Once the farmer has completed the required study, he would then have to figure out how to correct the problem prior to harvesting his crop.

Nobody is disputing that there are some situations where contaminated irrigation water could pose a problem. But this proposal doesn’t pretend to solve it. It just tells farmers to solve a problem that has been in existence since man began growing his own food. The FDA has no solution, but, in getting another regulation out, they are telling farmers to study and then fix something that neither the agency nor anyone else has ever figured out.

If we’re going to pay people to sit around and think up rules, we’re going to continue to get thousands of new rules, many of which will be useless. Perhaps they should be assigned other jobs if they can’t effectively solve large, continuing problems at a reasonable cost.

Richard Williams is a senior affiliated scholar with the Mercatus Center at George Mason University and former director for social sciences at the Food and Drug Administration’s Center for Food Safety and Applied Nutrition.