There’s nothing the media loves more than an elected Republican saying something stupid, and Republicans this week have been happy to oblige them. Rand Paul has, thankfully, backed off his anti-vaccine remarks, but Senator Thom Tillis stepped in to fill the void. He casually remarked that restaurants perhaps shouldn’t be legally forced to require employees to wash their hands, so long as they post signage alerting customers to the policy. Any restaurants doing so would presumably go quickly out of business. The free market at work!
This non-story was the most read political item at The Washington Post, it’s been covered by tons of news outlets, and my Facebook and Twitter feeds are full of people piling on in mockery of this call for extreme laissez faire capitalism.
But the thing is, Tillis was sort of right. Not about this particular regulation, one that has precisely zero constituency calling for its removal, but about the idea that consumers often ought to be allowed to opt-out of restrictive health codes to eat and drink what they like.
Health codes governing restaurants exist to protect consumers from risks that they can’t easily ascertain by themselves. As a diner, there’s no easy way to know whether the back of house is clean, whether the food has been stored safely, or whether contamination is occurring. Instead we have codes that govern these things and inspectors that pop in periodically to make sure everything is at it should be. It’s not a perfect system, but it works tolerably well.
But while codes are uniform, consumers’ risks preferences aren’t. Often health officials have concerns about an ingredient or cooking technique, but some subset of consumers demand it anyway. In those cases, informing consumers of the risk before they proceed is a viable compromise. This happens in restaurants all the time and it arguably should happen even more.
The most obvious example is the cooking temperature of meat. Health officials are wary of serving meat, especially hamburgers, that has not reached temperatures sufficient for killing E. coli. They advise against eating burgers cooked rare or medium rare. Consumers who know the pleasure of a perfectly cooked patty are willing to take the risk. Fortunately, under federal codes they have a choice. Restaurants can serve meat at lower temperatures as long as they put a warning on the menu along the lines of “consuming raw or undercooked meats may increase your risk of foodborne illness.”
In principle, that’s not too far off from what Tillis was suggesting. Even in 2014, undercooked meat isn’t legal everywhere. North Carolina didn’t legalize rare burgers until 2012, and I’m unclear on the law in South Carolina. All of Canada is a apparently a hamburger wasteland unless you find a chef willing to take his chances with the law:
The official “safe” temperature for hamburger meat, as enshrined in municipal codes and provincial acts across Canada, is 71 degrees Celsius, eight degrees higher than the generally accepted threshold for medium rare. [...] “Every so often a restaurant will come up and advertise pink burgers, and we will go in and talk to them,” said Anna Marie D’Angelo, spokeswoman for Vancouver Coastal Health, the city’s health inspection agency. If West Coast diners see even a tinge of pink, health authorities advise them to “ask it to be recooked for their own safety,” said Ms. D’Angelo. Health Canada takes it a step further: After sending back the offending burger, “ask for a new bun and a clean plate, too” reads an advisory on the federal agency’s website.
These are real people with real jobs backed by real government power! They make chefs wary of speaking on the record about something as mundane as cooking hamburgers.
“I’ve served probably 100,000 burgers and nothing’s happened,” said Greg, a Canadian restaurant owner who isn’t in fact named Greg but wished to stay anonymous, arguing that media attention could attract unwanted scrutiny from the health department. Greg sources his own meat and grinds it in-house, but he still treads a narrow legal line. “A lot of guys do it, but we do it under the radar. If we put our names out there … they’re going to stop it.”
As with meat in the United States, so with sushi, oysters, eggs, and many other foods that are often best prepared raw or with minimal cooking. Want to dip your fries in aoili? Want to drink a cocktail shaken with egg whites? Want to sip Scotch in one of the few remaining smoking lounges? Then be glad health officials deign to let us off with just a warning.
In the United States, raw dairy is probably the best example of a food we should be able to eat given a clearly stated warning, but currently cannot. As cheese lovers know, the FDA forbids the interstate sale of raw milk cheeses that have been aged for fewer than sixty days, keeping delicious fresh cheeses off the market. Some states allow the sale of raw milk with a suitable advisory, while in others it’s completely banned, forcing consumers to buy on the black market or find legal workarounds. Thus we have the spectacle of federal agents conducting sting operations and arresting farmers for selling milk and cheese. Wouldn’t it better to let people make their own decisions after being suitably informed of the risks?
If you think so, then you and Thom Tillis are sort of on the same page. If you enjoy sushi, “undercooked” meat, various egg-based sauces and dishes, or lighting up in a cigar room, then you’re on board with the principle Tillis was clumsily attempting to illustrate. If you’ve experienced a perfectly cooked steak pulled from a sous vide bath, be glad New York officials stopped fining the chefs who use the technique and worked with them instead to write regulations that effectively govern it.
If we didn’t push back against risk-averse health officials about what we eat, drink, and smoke, our bars and restaurants would be a dull culinary landscape of overcooked food and excessively sanitized interiors. Everyone’s laughing at Tillis’ hypothetical hand-washing scenario, but it was just a year ago that California was stupidly ordering every bartender in the state to wear disposable latex gloves. Of all the people saying Tillis is nuts, foodies especially ought to know better. (I’m looking a you, Eater.)
As an illustration of excessive regulation, requiring employees to wash their hands after using the bathroom is obviously a dumb one. Tillis deserves to be mocked not because he’s wrong about regulation, but because he picked such a stupid way to make his point. That this is the best example he could come up with is, as Thoreau notes, just the latest evidence of the GOP’s utter uselessness.
But the gist of the argument isn’t crazy. There is, thankfully, no consumer demand for cooks with filthy hands and this isn’t a legal change that we need to be remotely worried about. We do, however, have reasons enough to be concerned about overzealous regulators interfering with the choices consenting adults make about food and drink. The principle at stake is worth defending, and it’s unfortunate that it falls to people like Tillis do it so ineptly.