Different River

”You can never step in the same river twice.” –Heraclitus

May 6, 2005

Kosher Trademarks, the FDA, and Electrical Safety —
Or, A libertarian approach to drug regulation

Filed under: — Different River @ 3:44 pm

Tradmark attorney Ron Coleman at Likelihood of Confusion has an excellent post on kosher certification. It’s only two paragraphs long, but it has lots of good links tying everything together. If you keep kosher, you probably know everything in those paragraphs — but you will want to follow the links for some really interesting details, such as what companies need to do to get their food certified kosher, and an article in a Muslim publication that interviewed the head of O-U’s kosher certification division.

Why would a trademark attorney like Ron Coleman find this especially interesting? Because practically the entire system of kosher certification in the United States is sustained by trademark law. Because of the establishment clause of the First Amendment, there can be no federal, state, or local law defining what “kosher” means, and it’s unclear that consumer fraud laws can be used against those selling non-kosher food and claiming it’s kosher. (There have actually been court cases about this.) Instead, a Jewish organization (or even an individual rabbi) who wants to certify food as kosher makes up a symbol and registers it as a trademark. Then, they write a contract with any manufacturer who wants their food certified that allows the organization to make the required inspections, and permits the manufacturer to display the certifying organization’s trademark symbol on its packaging and (if desired) its advertisements. Any use of the symbol in violation of the contract, or by any manufacturer without contractual permission, is a violation of trademark law — which is religiously neutral and doesn’t cause any constitutional problems.

The system works quite well. Occassionally there are packaging mistakes, which (if they are serious enough) sometimes result in product recalls. But I’ve never heard of anyone actually having to sue a manufacturer who insisted on putting a trademarked kosher symbol on a non-kosher product. And while Jews often have vigorous disagreements regarding kosher standards, no one has to sue anybody to determine what’s “kosher” — all one has to do is determine which certifying organizations meet one’s particular standards, and buy food with those organizations’ symbols. And if you don’t agree with (or trust) a particular organization, just don’t buy food with their symbol. Indeed, lots of kosher-observant Jews do in fact accept the certifications of some organizations but not others.

In fact, the system works so well I’ve often thought that lots of government agencies that certify products and license individuals could be replaced by private organizations using trademark symbols. For example, the federal government’s Food and Drug Administration certifies drugs as being “safe and effective.” Often, doctors and pharmacologists — not to mention patients — disagree over whether a particular drug is safe or effective, or disagree generally with the standards for safety or efficacy. This is particularly true when there are tradeoffs to be made between curing one disease and risking another.

The problem is, suppose there is a drug that is the only possible cure for a particular type of colon cancer (say, it has a 50% chance of curing it), but which carries a small risk (say, 2%) of causing a stroke. If the FDA decides the tradeoff is not worth it and denies approval for a drug, but you have that kind of cancer and you (and your doctor) disagree, it’s a federal crime for you to take that drug. If you don’t take the drug you die, but if you do take it you go to jail (perhaps until you die).

This is comparable to having only one kosher-certifying agency, which has standards you may or may not agree with (and you may or may not even be Jewish), and making it illegal to eat any food that is not certified by that agency.

Why couldn’t we have a system whereby we got rid of the FDA, and allowed anyone to set up an agency to certify drugs as safe and effective according to their standards? These organizations would publicize their standards and their procedures for ensuring objectivity; drug manufacturers would then advertise — perhaps using trademarked symbols — which drug safety organizations approved their products. Doctors and patients would then be able to make decisions as to what — if any — approvals they would require for the drugs they take. Extremely cautious people would require approvals with high standards for safety; others might be more concerned with efficacy. People could use different standards for different diseases — e.g., it’s not worth risking a heart attack to get rid of a headache, but maybe it is worth it to get rid of bone cancer. In between, you could decide how bad your arthritis is, and whether or not it’s worth the risk of taking Bextra.

Any objections? What, you say that non-kosher food won’t kill you but a drug might? Well, putting aside any religious or spiritual damage that might occur, do you agree that an electrical device might kill you (by electrocution, or by starting a fire)? Because after all, we do have the same type of system for certifying electrical equipment. You’ve probably heard of UL, but there are also numerous other certifying organizations for electrical safety. They test products, and (if they pass) certify that the product will not start a fire or and explosion or electocute a user or bystander in conditions considerably more severe than normal use. They then allow the manufacturer to place their trademark logo on the product and its packaging. And you (hopefully) check for these labels before you buy something like a new iron.

If private-sector certification works for electrical safety and kosher food, why not for medications?

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