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Comment by utensil4778 | Hacker News Reader

This is about sesame. Last year or so, the FDA changed the rules about sesame as an allergen. Some bakeries then decided to just slap "may contain traces of sesame" on everything so they didn't have to pay the cost of actually ensuring there's no cross-contamination.

This has significantly harmed consumers who are actually allergic to sesame. Now there's effectively no way to know if a baked product will actually contain sesame, so you either get to eat nothing or take the chance.

It was a clear and flagrant abuse of the "may contain traces" mechanism. The bakeries caused harm for consumers as a way to avoid the coats of doing business safely.

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> It was a clear and flagrant abuse of the "may contain traces" mechanism. The bakeries caused harm for consumers as a way to avoid the coats of doing business safely.

In the exact same way that every product ever invented may cause cancer in California, I assume? This is a problem with the FDA, not the companies. Give a dog a long leash, they're going to use the slack.

Companies aren't dogs, companies have obligations that they need to fulfill and they're choosing to neglect them.

> Companies aren't dogs

Metaphor, but sure, quite literally they're not dogs. Very true.

> companies have obligations that they need to fulfill and they're choosing to neglect them.

From our eyes they're neglecting to follow the spirit of a policy. From their eyes, they're following it to the letter of the policy. Perspective.

AFAIK you are required to follow the letter of the law, not the spirit. Whatever spirit moved the legislature into approving a law is secondary to the actual wording of the law. If congress wanted people to follow "the spirit of the law" then they should have made the law more explicit, instead of leaving it up to the FDA to decide what's the right spirit to have.

For my friends everything! Fir my enemies the law!

Presumably the majority of people that don’t have sesame allergy would prefer to pay less for bread so I’m not as clear that “our” and “their” are different here.

I like sesame. Should sesame be banned world wide because 0-5% are allergic to it? (I assume: no)

Can company choose to produce sesame products? (I assume: yes)

Can company choose solely sesame products, without doing sesame-free stuff? (I assume: yes)

If new regulation comes along, and business deems new requirement is unacceptably high, can it pivot to a different market where it can reuse same investments? (I assume: yes)

Law can be flawed. (Because people definitely are)

Maybe it can be improved? E.g. require random testing, and then say there are 7 seeds in every 100000 of pies.

This was on my mind a lot when reading the article.

I'm not sure how I feel about this all.

The problem with the cancer-causing substance labels is some companies are saying their products contain cancer-causing substances when they clearly do not. At this point the label almost doesn't mean anything anymore because you can't tell if they're just putting it on there to prevent lawsuits, or because it actually does. So I could see a regulatory agency issuing fines for false labeling. It dilutes the meaning of the labeling.

On the other hand, if there is a company where some contaminants might be present, and they don't want to bother selling their products to people with allergens, I can see why they might be honest and say something like "this product may contain X" or "this product was manufactured in a facility where X is sometimes present". It's sloppy in terms of allergen cross-contamination but I can respect their decision to be sloppy and honest.

The tricky part is when one morphs into the other, or where you draw the line.

As an exercise, consider a company that just prints on its ingredients label "this product may contain..." and then just lists all the ingredients of all the products they make, or might be in the facility. That too would be abusing ingredients labels but would in fact technically be true. At some point someone has to call nonsense and where that is I'm not sure.

The problem is that naive lawmakers/voters believed that forcing companies to say “may cause cancer” or “may contain allergens” would be enough to cause customers to flee or enough to shame the companies into changing their products, but in reality, companies feel no shame and just happily add whatever labels they need to and continue to sell their shit.

Forcing disclosure doesn’t stop companies from doing bad things they have to disclose.

No.

It's because the sesame labeling law was lobbied by Food Allergy Research & Education (FARE) [0] who are funded by the National Peanut Board, the National Dairy Council, and a number of Soy product manufacturers [1].

Essentially, the sesame law made it mandatory to label for sesame like you would for Dairy, Peanuts, and Soy.

It was a blatant lobbyist attempt that backfired.

[0] - https://www.foodallergy.org/resources/how-fare-advocates-hel...

[1] - https://www.foodallergy.org/corporate-partners

> It was a clear and flagrant abuse of the "may contain traces" mechanism. The bakeries caused harm for consumers as a way to avoid the coats of doing business safely.

My view is that the business should be able to decide who they want to service or not. According to recent US studies, 0.2% of the population have a noticeable allergy to sesame. Seems like bakeries don't want to invest money for such a small percentage. It sucks but this opens the door for new bakeries to cater towards those with this specific allergy. Why does the government need to force business to do it?

The number might be 0.2% for just sesame, but roughly 10% of Americans have some form of allergy[0]. I'm guessing the reasoning here is to attempt to prevent "allergen creep", where the endgame would be major manufacturers throwing their hands up and listing most products as possibly containing many allergens (or, as in this case, intentionally introducing unnecessary ingredients). If this were to happen, we would expect a number approaching 10% of consumers to have a needlessly large selection of foods they couldn't reliably purchase, even if there would be negligible risk otherwise.

At that point, the usefulness of requiring the labels to begin with is considerably diminished. Having a cottage industry of "actually correctly labeled" foods because the standard labels are poorly enforced seems inefficient, IMHO.

[0]https://www.foodallergy.org/resources/facts-and-statistics

even if it were 10%, we shouldn't expect 90% of consumers to subsidize the other 10%

I'm not sure how to separate this mindset from one that would have commercial buildings not be required to include elevators and wheelchair ramps. Do you also think that's an unfair burden to put on the roughly-90% of people who are not mobility-impaired? (Not implying any judgement either way, just curious if this is a consistent viewpoint).

I think one difference is that there isn't a great alternative option in the case of commercial buildings -- if you have a job in a given building that doesn't accommodate your disability, you can't just go find a different building. But insofar as food is concerned, you could pay more for more carefully-manufactured food, or just cook for yourself

But then you are putting that burden on those people. You don’t have to work in that commercial building either you can find another job for example

> Do you also think that's an unfair burden to put on the roughly-90% of people who are not mobility-impaired?

Not op, but I share his view and don't think commercial buildings should be forced to accommodate people who are mobility-impaired.

Then you should hope to never become mobility impaired :)

Remember, we are all just temporarily abled and one accident away from needing accomodation from society.

Exactly. It's like insurance, even if you have no sympathy, you're probably ok paying a little for other people's accidents because you could just as easily have one. Allergens are different, though.

I doubt it would change my opinion though. It's a matter of principle for me.

I guess we should repeal the Americans with Disabilities Act then?

unironically. would love to have those berkeley lectures back online

Yes? If the government can find a better way to help people with disabilities, great. But small business being sued because a booth is 6 inches too small, or universities having to take down lectures because they lacked close captioning seems to clearly go to far to me. People seem to have a terrible time understanding diffused societal costs and opportunity costs.

I don’t think either of those things is in the spirit of the ADA. ADA requires reasonable accommodation. So if it would be unreasonable, the law says the accommodation isn’t necessary. What I see in those two instances is judicial overreach and a college not wanting to appear insensitive.

Some day if you find yourself with limited mobility you will be thankful the ADA requires the things it does, because you would find it challenging to live in society without it. The market of “disabled people wanting to shop in a store” is vanishingly small and totally unserved without at least some regulation. I’m sure it offends your free market principles, but the free market isn’t the best thing for all of us.

You won't like how popular such a repeal would be. Americans really hate the less fortunate of their society.

This sort of thought implies not believing in insurance of any kind. Why should people pay into a common fund when only a small percentage of them will ever use it.

People generally don't develop allergies randomly in life. There's no insurance value here.

People can develop allergies during their lifetime, it's not just something that you're born with. There's also ongoing studies trying to desensitise people's allergies so that they can deal with foods more easily. So a person's allergy status can and does change during their lifetime.

But my message was about the general principle of insurance being the very thing your comment was against. The situation where the vast majority of people pay some cost of which only a few need to utilise.

> People can develop allergies during their lifetime, it's not just something that you're born with.

Sure, but the likelihood of that is low enough that insuring against that isn't worth it for most people

> But my message was about the general principle of insurance being the very thing your comment was against. The situation where the vast majority of people pay some cost of which only a few need to utilise.

No, the principle of insurance is that people pay to hedge against some event that has a reasonable likelihood of happening to them at some point. Whether it's a majority or a minority paying for it is not central to the concept of insurance.

Insurance only works if the majority pay but only the minority get paid. Anything else and you risk not getting paid if the event occurs.

Nope. Assume you have insurance with a one-time fee of $X. It insures against a single kind of event that happens with 60% probability, and pays out $1.6X. So the majority of people are likely to have the event happen to them. The EV of the cost to the insurer is then $1.6X * 0.6 = $0.96X, so the books are expected to balance.

Obviously I'm ignoring variance in this calculation, but you can easily adjust the numbers to give a margin of safety.

You have an insurer which insures you against an even that happens 1% of the time, but you are its one and only customer. The event happens to you, so the insurer has to pay you out. Since it doesn't have any more money than what you paid into it, it goes bankrupt and you do not get paid.

For insurance to work more people have to pay into the system than people who receive payment, otherwise the insurer will go bankrupt.

This can’t be resolved by the FDA; the systemic issue is that industrial baking is permitted to operate facilities at monopoly scale. Breaking up the Bakery Belles would absolutely lead to the return of distinctions between different facilities that enabled sesame-free production to exist in the first place.

If this happened where we added allergens to all foods, it might actually help in the long term.

>Now there's effectively no way to know if a baked product will actually contain sesame

You are catastrophizing. It remains the case that any baked product that doesn't have "may contain traces of sesame" on the label must by law be free of traces of sesame. And if no producer chooses to produce such a product, then it is because the number of people who want it is quite small (or the costs of complying with regulations is too high to make a profit), and it is not hard for someone to bake their own bread.

No one wins by some percentage of the population having to bake their own bread.

If these facilities cannot keep unwanted visible particulates like sesame out of their products, how can they keep dirt and bacteria out?

This regulation is not only good for people allergic to sesame, it's a brown M&M test. I see value in it.

> how can they keep dirt and bacteria out?

They can't. It's statistically impossible. Even operating theaters and clean rooms can't keep every trace bit of dirt or bacteria out. All anyone tries to do is reduce the incidence to below a meaningful threshold.

If the requirement is: either eliminate every last molecule of every offending substance, or use a label that the offending substance may appear in trace amounts... well, everyone is going to opt for the label.

I didn't say "every last molecule", I said "visible particulates".

Nice attempt to straw-man though.

Not a straw man if you look at the spirit of the argument.

Yes, that's exactly what strawmanning is:

"Ignore the stated argument, discuss my weaker mischaracterization of it instead."

Have you cooked anything? Have you never ever had a hair fall into a pot your mixing? (Even if you always wear a hat, and always clean it before hand, there is non zero chance)

Spirit of that previous parent message was that “never ever contaminated” is not a realistic option.

Yes op stretched that to molecules, but exactly same argument applies to seeds.

I guess you forbid any kind of hyperbole in 50m radius.

I have worked in food service and we were required to wear hats or hairnets specifically for that reason. If it had happened that some foreign material had fallen in the food, we would have considered it a big problem.

In restaurants, little pieces from the metal pot scrubbing pads tend to be a constant problem. But this represents a cost choice: more expensive scrubbing solutions are available.

What happened to the idea we should take the most charitable interpretation of a post? I thought that was in the community guidelines here.

> If these facilities cannot keep unwanted visible particulates like sesame out of their products, how can they keep dirt and bacteria out?

They seemingly cant. There is a federally allowable amount of rat droppings allowed in food and it is non-zero!

Then it should be on the label.

Always ate buckwheat with mice droppings as a child. Yummy.

Kinda seems like you're arguing just to argue.

Unlike your comment, I have a point.

Cross contamination includes stuff like fragments of sesame seeds stuck in a corner of a conveyor belt or air duct since yesterday's production run. I don't think cleanroom baked goods would be affordable.

Bacteria is not actually that big concern. These are cooked products, meaning that their temperature can reach 82-99C. So unless there is clear uncontrolled growth the cooked product is safe.

> No one wins by some percentage of the population having to bake their own bread

Doesn't the rest of the population win by being able to buy cheaper bread, at the cost of the affected?

Personally, I don't think bread made in a facility that can't control the ingredients is a 'win' at any price.

This has significantly harmed consumers who are actually allergic to sesame.

Their lobbying group caused the problem in the first place by pushing congress to pass unreasonably expensive cross contamination rules.

Is a bakery obligated to sell sesame-free products?

If a bakery wants to limit their potential customers by saying their products may contain sesame to avoid liability, I don’t see why the FDA should step in and force them to take on liability and capital costs for sesame free factories.

If the FDA’s current allergen rules are leading to this outcome, perhaps it’s the FDA’s rules that are flawed.

So maybe the FDA shouldn't have changed the rules if it significantly harms consumers?

And I don't see how it harms consumers. These foods that may contain traces of sesame, had always might have contained traces of sesame. So are traces of sesame dangerous or not? If they are, then consumers shouldn't have been eating these foods to begin with. If they aren't, why are the FDA forcing the labeling?

I have a friend who is allergic to sesame, this law was really frustrating for her. The brands who purposely added sesame to comply with the law she couldn't eat anymore, the brands that just added the label she also couldn't eat because she couldn't tell the difference between the two. Before the law if sesame wasn't listed it meant it was at worst trace amounts and if it was listed it was off limits.

She isn't "immediately dies on contact" allergic so to solve this problem we had a "loaf party" where we got one of every brand of bread in the grocery store, she would get to try all of them and each person goes home with the rest of a loaf. It was fun all things considered but silly that it was necessary.

So yeah, I have no idea why the fda did this, it seems worse for everyone involved.

> This is about sesame.

yes!

> This has significantly harmed consumers who are actually allergic to sesame.

maybe. more like: "This may have slightly annoyed..."

> It was a clear and flagrant abuse of the "may contain traces" mechanism.

nope. absolutely not. the did not say "may" they apparently said "contains". but what do you want them to do if there's a 0.0001% chance of two particles of sesame in a product?

> The bakeries caused harm

nope. the FDA caused harm for consumers by regulatory overreach

the result will be one of three things:

1. FDA redrafts the sesame rule to define what is cross-contamination and what is not in a realistic way that bakers will agree to abide by and doesn't have these counter-productive side-effects.

2. Bimbo stops saying "contains sesame" and starts saying "may contain sesame" (the FDA officials acknowledged Tuesday that statements that a product "may contain” certain allergens "could be considered truthful and not misleading.")

3. Bimbo actually adds a tiny bit of sesame as other bakers did and keeps the packaging verbiage the same.

which one is least unhelpful to the 0.2% of people with sesame allergies?

> Now there's effectively no way to know if a baked product will actually contain sesame, so you either get to eat nothing or take the chance.

If they never properly checked their production lines to ensure products without sesame don't contain sesame, there never was an effective way to know that you're not getting a surprise seed in your non-sesame-labeled food.

If it says it on the label, and you're allergic to it, then you shouldn't eat it. This doesn't harm consumers at all.

It does harm consumers by severely limiting their choices, especially if companies start putting the warning on every product by default, instead of actually making reasonable effort to prevent contamination.

Your definition of reasonable may differ greatly from those who must perform said efforts.

You couldn't write a more perfect allegory for what has already happened due to California's Proposition 65. The common denominator here is that the government gives companies new rules to follow, and enforces severe penalties for breaking them, and so the companies minimized their risk by following them to the extreme.

It's almost like if you want a different outcome, the government agencies involved need to step up and do a more thoughtful job of architecting these policies in a way where the companies are forced to follow the "spirit" of them.

I can't be mad if I create a policy, and someone follows it. My intention should have been in the policy, not just implied.

  The common denominator here is that the government gives companies new rules
  to follow, and enforces severe penalties for breaking them, and so the
  companies minimized their risk by following them to the extreme.

Hardly. Prop 65 initially contained minimal guidance and essentially no teeth. So rather than identify problematic chemicals companies just slapped generic Prop 65 warnings on everything.

  architecting these policies in a way where the companies are forced to
  follow the "spirit" of them.

Prop 65 was updated so that companies were required to put specifics on the warning label. The state even went so far as to start enforcing the requirements, and then…

  I can't be mad if I create a policy, and someone follows it.

And then the state got sued because apparently labeling your products is simply more difficult than legal action.

Prop 65 DOES contain teeth, of the worst possible kind. It works by an attorney finding a product without a Prop 65 label. Then the law firm sends a demand to the state that the product have the Prop 65 label. If the state does not take action, then the law firm may take private action by suing the company to force them to have the label, and get all of their legal expenses paid for by the state. It's lead to an entire industry of attorneys suing just to get the attorneys fees.

Can't tell if you're serious or not. Private complaints must be reviewed by the local AHJ and include a certificate of merit. Folks being sued privately have 2 weeks to add labels. This is, of course, after waiting 2 months for the government to take action.

Hardly the worst kind of teeth.

I suppose we have different definitions of harm. Providing a product which might contain an allergen and notifying you of that possibility is not harm in my book.

And what is the FDA definition of "reasonable" that will keep the ambulance chasers away from their businesses?

If there's no way to disambiguate "actually contains allergen X" and "almost certainly doesn't contain allergen X," then rather than being extra-cautious, eventually consumers may come to carelessly disregard the warning text, assuming (correctly) that it most likely falls under the second case. The harm ensues when the heuristic fails.

That I feel is on the consumer as business just does a full disclosure.

The business discloses, what was added as ingredients, and what contamination is possible. (Because production line is shard or similar)

What more do you want?

I guess results of regular random testing could be put online.

Forbid using same knife to slice different things is another thing to be done.

> What more do you want?

That the labeling disambiguate "made in a factory that makes sesame products" and "actually contains sesame." What we now have with "may contain" could be either and everyone is worse off

The other (cheaper) alternative is to deliberately add sesame flour, which some bakeries are doing, according to the article.

So what do you think is better:

1. Label bread with the "may contain" label. Meaning, truthfully, that people with severe sesame allergies shouldn't eat it.

2. Add sesame flour and then add a "definitely contains" label.

I think #2 is much worse from a "significantly harms consumers" perspective.

That's not necessarily true. It depends upon the severity of the allergy and the percentage of people with mild vs severe allergies.

If you have a mild sensitivity, the added sesame may be below your threshold. Now you know that the sesame is controlled so you can always buy the product.

The problem is that the people with severe allergies expected that the new FDA rules would have manufacturers significantly retool to avoid cross contamination. Everybody with two brain cells to rub together predicted that they would absolutely not retool and would just add trace amounts of the contaminant.

> If you have a mild sensitivity, the added sesame may be below your threshold. Now you know that the sesame is controlled so you can always buy the product.

If you can buy the product with the added sesame you could also buy the product without the added sesame, could't you?

Nothing changes in that case - while in other cases the added sesame creates a problem. It doesn't improve the situation for any consumer (leaving aside pricing).

> If you can buy the product with the added sesame you could also buy the product without the added sesame, could't you?

No. That does not follow.

Before, with "may contain sesame" the product might or might not contain enough sesame to trigger your reaction as it was completely uncontrolled. Sure, 99 times out of 100 it was fine but when somebody ran sesame burger buns on the third shift it would make you barf for 48 hours. You simply cannot eat that product on the off chance that it might be bad even though 99% of the time it is fine.

After, you know there is exactly X amount of sesame and never more than that. You can test the product once and it either affects you or it doesn't. At that point if it doesn't affect you, you can buy the product and be confident that it won't change.

Manufacturing 101: Anything that isn't measured isn't controlled.

They will be measuring the sesame that they are adding as an ingredient. That's on top of whatever unmeasured amount of sesame was already present due to contamination.

The manufacturer will dial the measured sesame so that it will be large enough that "cross contamination" will be a rounding error.

It's fairly easy to get something below a reasonable threshold--run a batch or two without the contaminant and throw them out. After that, the background levels will be below the added ingredient measurement.

> The manufacturer will dial the measured sesame so that it will be large enough that "cross contamination" will be a rounding error.

Sure, the "completely uncontrolled" amount present before - in the "may contain sesame" situation where it was not added as an ingredient - was a rounding error. That's why if you can buy the product now you also could do it before.

In the case where someone ran the sesame buns on third shift it very much wasn't a rounding error afterward.

It's not just "adding sesame". It's also going to be things like "specifying the amount of time to run disposable product on the line to get below specified threshold".

It's about consistency. Maintaining documentable 0.001% contamination is much, much harder than maintaining 0.1% contamination.

There is no winning this battle via penalties. If you don't want sesame contamination, you have to make the economics worthwhile. Or simply ban sesame, but you're going to get major pushback on that.

> In the case where someone ran the sesame buns on third shift it very much wasn't a rounding error afterward.

If it is a rounding error compared to the level that you find acceptable now it was a rounding error compared to the level that you find acceptable now.

If 1% plus epsilon is acceptable and you can buy it now, 0% plus epsilon was surely acceptable and you could buy it before.

labeling a product for potential allergens doesn't hurt consumers, its meant to do the opposite otherwise they might hurt themselves if they're allergic to it.

so now we have to play the game that its dangerous to label and dangerous to not label, this hurts producers because they'll be sued no matter what, it just makes business impossible.

eating baked goods is not a right its a preference, capitalism says to find a bakery that suits your needs.

and to be even more split over this, any food content can be some kind of allergen, now that what used to be normal spices are being converted to allergens one at a time we have to make distinctions like this, if i ran a bakery i would just label everything as being made with allergens too because we used to just call them "ingredients"

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