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7 Kan. J.L. & Pub. Pol'y 142 (1997-1998)
Agency Capture: The USDA's Stuggle to Pass Food Safety Regulations

handle is hein.journals/kjpp7 and id is 320 raw text is: Agency Capture: The USDA's Struggle to
Pass Food Safety Regulations
Dion Casey

I. Introduction
A. Focus of the Paper
For years, the meat and poultry industries
had captured the United States Department of
Agriculture (USDA) and the Food Safety and
Inspection Service (FSIS). In response to pub-
lic outcry over the E. coli outbreaks in the
Northwest in 1993, those agencies proposed a
new meat and poultry inspection system.
However, when the outcry faded, the industries
recaptured the agencies by pressuring the
courts and Congress. This article will describe
the phenomenon of agency capture, focusing
on the emerging problem of food-borne illness-
es. In addition, this article will also examine
the FSIS's response to the problem, and the
role of the meat and poultry industries in delay-
ing and, ultimately, weakening that response.
B. Agency Capture
Agency capture occurs when through
lobbying the regulated firm is able to win the
hearts and minds of the regulators.' When an
agency is captured, regulation becomes a
method of subsidizing private interests at the
expense of a public good.'2 Agency capture
can occur for many reasons. First, because of
the limits on an agency's resources, regulators
often must rely on the regulated industries
themselves to furnish the information upon
which the regulators base their decisions.3
This reliance can create an institutional bias
favoring potentially responsible parties.4
Second, the regulated industries have far
more at stake than individual members of the

public. Regulations can cost industries mil-
lions of dollars (e.g. to improve worker safety)
or give industries millions of dollars (e.g., sub-
sidies), while costing each individual taxpayer
only a few extra tax dollars.5 Citizens also face
the problem of high individual search costs.6
Unless citizens can get information about food
borne illnesses and deaths in a cheap and easy
manner (e.g., through the mass media), they
either will not receive that information, or will
have to search for it on their own. If the infor-
mation is difficult to find, like scientific infor-
mation, such a search can become costly in
terms of both time and money. Most people
simply do not have enough time or money to
conduct such searches, and they remain unin-
formed. Even if a person did conduct such a
search and obtained the information, he or she
would not have a way to distribute that infor-
mation to a large number of people.
Third, the transaction costs of organizing
large numbers of individual taxpayers are
much greater than the transaction costs of orga-
nizing a small number of firms in a regulated
industry.7 Organizing taxpayers face the addi-
tional problem of free riders - people who
may derive benefits from the group's efforts
but do not share the transaction costs, thus rais-
ing the costs to participating members of the
group.8 Small groups, like industry trade asso-
ciations, are less troubled by free riders
because their members usually must pay dues
Dion Casey is a third year law student at the
University of Kansas School of Law in Lawrence,

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