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?

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

  1. Ronald Coleman Says:

    Thanks for the link. Just want to mention that, well, another reason a trademark attorney like my own little self would care about kosher certification is that I rely on it myself for what I can eat!

  2. A Penny For... Says:

    Carnival of the Capitalists
    Welcome to the Carnival of the Capitalists. I hosted the COTC back in December 2003 and a lot has changed in the world of blogging. There are so many more people writing great stuff on business and economics. My weekly reading of the COTC had waned in…

  3. Different River Says:

    In response to Ronald Coleman: Well, yes of course — I’d sort of assumed that! ;-) However, your interest in kosher certification to determine what you can eat is not, I imagine, related to your status as a trademark attorney. After all, I also use kosher certification to determine what I can eat, but I’m not a trademark attorney. I was giving a reason for why you might have a professional interest in kosher certification.

    Personally, I find it really amazing that someone thought of a way to use trademark law to legally enforce compliance with religious standards in a legal system that (quite properly, in my opinion) takes no account of religion. The First Amendment forced an entire area of consumer regulation to be conducted in the free market rather than the government. It’s brilliant. I should have mentioned in my original post that the ogranic-food people have started to use the same sort of system. I saw “certified organic” symbol on something the other day. There’s no reason why we couldn’t “privatize” a huge amount of product regulation along the lines of the kosher food model.

  4. Different River Says:

    Sneezing Po links to this post and related it to decentralization of computing.

  5. rosewood Says:

    And in a notion that links private enterprise quality control, religion, and drugs: Without an FDA we could have regulation of entheogens (sacramental psychdelics) by non-profit religion-affiliated groups who provided their trademark to cultivated mushrooms, salvia divinorum, yage, and the marvelous chemicals of Dr. Shulgin.

  6. Different River Says:

    I’d be surprised if the issue for nutrition supplements is cost. The market for nutrition supplements is far larger than for kosher food.

  7. Gurn Blanston Says:

    Besides certifying drugs safe and effective, will they
    also certify them not addictive? Would an addict care?
    And what about developing a new drug to take to market?
    We don’t develop new kosher slaughtering technologies.

  8. Different River Says:

    They would certify whatever characteristics that consumers demanded be certified.

    As it is, the FDA doesn’t require that drugs not be addictive. They have certified oxycontin and vicodin in recent years, and those are quite addictive.

    And yes, this is all about certifying new drugs. Just as UL certifies new electrical devices as safe, a private agency could certify new drugs. Speaking of which, while it’s true that there aren’t a lot of changes is kosher slaughtering techniques, there are a lot of changes in the technology of food production, particularly in food chemistry, and the kosher certification agencies have to be able to handle those new technologies. To a certain extent, that’s why we need them — 200 years ago it was easy to determine if food for sale was kosher because they mostly sold just raw agricultural products, and you don’t need kosher certification for that. Now food is mass-produced in factories, and it can be quite complicated to follow all the ingredients from their agricultural source to the final product.

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