Most critiques of regulation are premised on the concepts of “free markets” and “market failures” as justifying, or not, the need for government interventions and control of the marketplace. Using the market for food as an example, this article questions not only the possibility of a buyer being a free actor when buying food, but also whether it is meaningful to speak in terms of a “free” market at all. One centerpiece of this questioning is the author’s coining of the term “(cr)edibility” to stand for the twinned ideas of credibility and edibility as defining the nature of all commercial food exchange. It is “(cr)edibility” that consumers seek in the food that they buy and eat, but it is just this “(cr)edibility” that the market can never deliver; this is the real “market failure” that must be understood when examining market for food. This article additionally interrogates the idea of food safety by opening the question of whether a rational economic actor in a free market for food can reasonably be expected to invest in improving the safety of the food products he makes and sells. It is precisely the lack of (cr)edibility in the market – i.e., the absence of reliable quality signals, the lack of traceability, the high degree of anonymity, and the destruction of trust – that creates the structural impediments and powerful disincentive for improving the quality and safety of food. Using a series of case-studies taken from the author’s practice as an attorney who represents the victims of foodborne illness, including outbreaks related to Salmonella in peanut butter and E. coli O157:H7 in bagged spinach, the author concludes the article by offering some thoughts on proposed core values that, if somehow made an essential or defining part of the market for food, would go far in making food in the United States, if not (cr)edible, at least much safer to eat.
On (Cr)edibility: Why Food in the United States May Never be Safe, 21 STAN. L. & POL'Y REV. 245