HOSTS

PETER SHAMSHIRI

MICHAEL LIROFF

RHIANNON HAMAM

[ARCHIVE CLIP, The Simpsons: (Apu) Jiminy Cricket! Ooh, expired ham. No. No one will fall for ...]

[ARCHIVE CLIP, The Simpsons: (Homer) Woo-hoo! Cheap meat! Ooh, this one's open. Ooh, stomach churning.]

Andrew Parsons: Hey, everyone. This is Andrew from Prologue Projects. On this episode of 5-4, Peter, Rhiannon and Michael discuss the case United States v. 95 Barrels of Vinegar. It's a case from a century ago about misleading food labels. In 1924, a company selling apple cider vinegar claimed that their vinegar was made from quote, "selected apples." The government said this was a misleading claim because the vinegar was made from dried apples, not freshly selected ones. It's a topic that also concerns food safety. And given who Trump has selected to lead the Department of Health and Human Services, it could become very relevant.

[ARCHIVE CLIP: Questioning vaccines and calling for the elimination of entire departments tasked with overseeing public health. That is what Robert F. Kennedy Jr. has been doing, not just in saying, not just this election cycle, but also for years.]

Andrew: This is 5-4, a podcast about how much the Supreme Court sucks.

Peter Shamshri: Welcome to 5-4, where we dissect and analyze the Supreme Court cases that have left us pathetic and flailing like Drake suing Kendrick Lamar's label.

Michael Liroff: [laughs] Yes!

Peter: I'm Peter. I'm here with Michael.

Michael: Hey, everybody.

Peter: And Rhiannon.

Rhiannon Hamam: Hello.

Peter: What a blessing to find out about this right before recording.

Michael: It is incredible.

Peter: Dude, how far have rap beefs fallen, you know?

Rhiannon: The accusations Drake is making that the label used bots and a pay-for-play scheme to inflate the success of Kendrick's diss record.

Michael: [laughs] Bro, I promise you that's not true. Everybody loved that shit. Everybody loved that song.

Peter: People really did. People really did.

Michael: And nobody likes you, man. They don't. They don't.

Peter: Look, at this point for Drake, you have to decide what kind of rapper are you? Are you gonna grab a gun and try to kill this dude, or are you gonna sue? And honestly, I think he made the right choice, fundamentally. Like, he was true to himself here. He's gonna sue.

Rhiannon: Yeah, exactly. Genuine guy, right? What you see is what you get with Drake, which is suing because Apple, apparently when listeners would request Drake songs via Siri, the suggestion was "Not Like Us."

Michael: [laughs] It is a great song. I mean, there's a non-zero chance when somebody was like, "Give me that song about Drake."

Rhiannon: Right, right.

Peter: Yeah, of course. All right, so today's case, United States v. 95 Barrels of Vinegar.

Michael: Mm-hmm.

Peter: Now you may hear that case name and think we're doing a prank of some sort, but this is a real case. It's from 1924.

Rhiannon: Yeah.

Peter: We will explain the unusual title shortly. This case is about misleading labeling. In 1906, Congress passed the Pure Food and Drug Act, which created the FDA, the Food and Drug Administration, and made it illegal to make false or misleading statements on your branding. The company here, Douglas Packing Company, labeled barrels of apple cider vinegar, and those labels said that the vinegar was, quote, "Made from selected apples." The government said that that was misleading because this vinegar was made from dried apples, not fresh apples, and because the phrase "selected apples" implies that there was a selection process which didn't really exist. And the Supreme Court agreed. And yeah, surprise. I think this is a good case, folks. We're doing a good case.

Rhiannon: Yeah.

Michael: Yeah.

Peter: But we are going to use it to talk about food labeling regimes, and what the morons taking control of the federal government have planned for us all.

Rhiannon: Yes, yes. The era of morons.

Michael: Mm-hmm.

Peter: Yeah. I'm trying to trademark "The Age of Morons." That's what I've called it. I'm gonna pitch it to the Times. I want to write a column that's just called "The Age of Morons."

Rhiannon: Perfect.

Michael: There you go.

Rhiannon: Yeah. You know, and this age of morons in 2024, you know, basically trying to take us back to a horrific age of morons at the turn of the 20th century, which is where this story of this case kind of starts. The Jungle, novel published in 1906, written, of course, by the famous muckraker author, Upton Sinclair. Sinclair spent several weeks in 1904 working in meatpacking plants in Chicago, and basically uncovered, you know, what amounted to wage slavery for the workers, unsafe and disgusting and really dangerous working conditions, extreme poverty for factory workers at this time.

Rhiannon: And the novel doesn't directly have anything to do with food labeling or the Supreme Court. You know, Sinclair was actually writing to, like, advance socialism in the United States. But there was a massive public response to the book. It wasn't, as Sinclair intended, on behalf of those exploited workers. It was actually a fixation on food safety because the novel described, you know, widespread animal abuse, the use of diseased meat in packing and production. There were really quite visceral accounts—human body parts being ground up with the animal parts. And so there was a public uproar for food safety policies.

Michael: That's so perfect. I'm sorry. It is so perfect that you're like, "I'm gonna write a great story about the horrific worker conditions to rally the American people to the cause of the lowly working man." And instead they're like, "Man, my food is nasty. Let's get some better food control up in here."

Peter: It's like a story where people are bleeding into the food and people are like, "Oh my God, my food!"

Rhiannon: [laughs] Right. Yeah. And Sinclair, like, recognized this, like, at the time. He said that he got famous off of The Jungle, quote, "Not because the public cared anything about the workers, but simply because the public did not want to eat tubercular beef."

Peter: Tubercular.

Rhiannon: Yeah.

Rhiannon: Which it's gross. So in large part because of The Jungle and the public outcry that followed, the Pure Food and Drug Act was passed in 1906. And like Peter said, this established the Bureau of Chemistry, which would later become the FDA. The Food and Drug Administration was established by this act. And this legislation ushered in a new era of government regulation of the food industry, of food quality. Chiefly did that with food labeling rules, and rules about the claims made on food labels.

Rhiannon: The Pure Food and Drug Act prohibited the addition of any ingredients that would actually substitute for the food. Like, you can't say that, you know, there's a substance in bread that's not actually the bread. And also prohibited the concealment of, like, any damage or potential health hazard or, you know, constituting a filthy or decomposed substance. And then it additionally said that there couldn't be false or misleading information on food labels. And additionally mandated that if there were certain dangerous ingredients in food, things like cocaine or alcohol, that food labels had to reflect that.

Michael: Yeah.

Rhiannon: There could be heroin in your food—and there was heroin in food. And it wasn't required that that be disclosed in labeling.

Michael: RFK said that's good for ADHD, though. So maybe ...

Rhiannon: Great.

Michael: Maybe.

Rhiannon: [laughs]

Peter: He said that heroin was good for ADHD?

Michael: Yes, he said he treated his own ADHD with heroin.

Peter: Well look, I don't believe him, but I'm willing to try.

Rhiannon: Anything at this point for Peter's ADHD. So turning to the facts of this case, you know, quick story about some folks who made vinegar and lied about it.

Peter: Pieces of shit!

Rhiannon: [laughs] Yeah. Actually, no one really, like, accuses them of being evil or anything like that. Interesting facts here. So the Douglas Packing Company was founded in 1911 by brothers Robert and Charles Douglas. The Douglas Packing Company was located in a suburb of Rochester, New York, and they started off with mass producing pectin for jam and jelly makers. Pectin being a chemical substance that's found in apple cores. But then they started branching into other apple-processing business, like making apple cider vinegar.

Rhiannon: And so the process they used differed based on whether, like, apple harvesting was in season or not. So for part of the year when apples were in season, they would use fresh apples to process and make into vinegar. But for off-season production, they started to dehydrate apples. So they would remove 80 percent of the water content in the apples. They would store them, and then when they were ready in the off season to make apple cider vinegar from those dehydrated apples, they would rehydrate the apples. They'd literally, like, add water, and then they would press those rehydrated apples into juice, and they would turn that juice into apple cider vinegar.

Rhiannon: Importantly, let's talk about, like, the difference between these two processes for making apple cider vinegar. Really importantly, the process they used, which added a couple steps that weren't used in the process to make apple cider vinegar from fresh apples, that different process did not result in noticeably different apple cider vinegar. It tasted more or less the same, and the chemical makeup of the two vinegars was not really different from one another. They added one ingredient as a preservative.

Rhiannon: So the issue here is not that, like, actually you really get a different product. The legal issue is literally about the labeling. So Douglas Packing had the same label on all of the apple cider vinegar, whether it was made from fresh or dehydrated apples. And the label said "Excelsior Brand Apple Cider Vinegar: made from selected apples." So the question in this case is about whether that label misrepresents what the apple cider vinegar is if it's made with dehydrated apples that weren't selected.

Rhiannon: Now let's talk about, like, the weird name of this case and like, what this is actually a lawsuit about if this case is called United States v. 95 Barrels of Apple Cider Vinegar. This is called an 'in rem action.' You know, this case is a lawsuit asking a court to define or clarify or name certain rights and obligations as to property rather than a person. In rem in Latin means 'against a thing.' So, you know, the decision made by a court in an in rem action, that's binding on the property, not any, like, other party or a person. So actually, this case comes from some buyers of Douglas Packing's apple cider vinegar who suspect that the labeling is misleading in some way. They basically contact the feds, and the federal government does an investigation and brings this suit. And so the government isn't wanting, like, money from this lawsuit. They don't want money from the barrels of apple cider vinegar. They're asking the court actually to say, like, what rights or obligations there are as to the apple cider vinegar, what obligations there are in labeling this thing.

Peter: All right, so let's talk about the law here. The law says that you can't label your products in a false or misleading manner. And the question is whether it was misleading to label this product as vinegar, quote, "made from selected apples." The court makes a couple of points here. First, again, the company's process for some of these apples is to dehydrate them, rehydrate them with water, after which they go through the fermentation process that you need to create vinegar. The court says, well, if it's made from dehydrated apples, it's not exactly made from apples as a normal person would understand them.

Rhiannon: Yeah.

Peter: The juice in a fresh apple is the apple's natural juice, whereas the juice in these rehydrated apples is just water. And therefore quote, "The vinegar made from dried apples was not the same as that which would have been produced from the apples without dehydration."

Rhiannon: Yeah.

Peter: One interesting thing about this is that it's acknowledged by the court that the end product here is indistinguishable from a taste perspective and only has minor chemical differences. But they basically conclude that this doesn't matter. All that matters is that they are representing it as something that it's not. You said apples. When people hear that, they think apples. They don't think apples that have been dehydrated and then rehydrated with water, right? You changed its character. So you were fucking lying, Douglas Packing Company. You fucking scumbags. You're busted, you fucking snake oil salesmen.

Michael: [laughs]

Peter: They also point out that the labeling says 'selected apples.' The court says, quote, "The words 'made from selected apples' indicate that the apples used were chosen with a special regard to their fitness for the purpose of making apple cider vinegar."

Rhiannon: Yeah.

Peter: In other words, the term 'selected apples' implies some sort of filtering process to identify only the finest apples. But this was not happening here.

Rhiannon: Yeah.

Peter: I do think that you could argue that the court was being a little bit ticky tack with this ruling, a little too stringent, but ultimately, I think they're on the right track here. The point of the law is to ensure that consumers are receiving accurate information about the products they consume. And that means the words you use in describing those products should have real meaning.

Rhiannon: Yeah.

Peter: You could see a modern court being like, "Well, technically, it's made from a type of apple. Dehydrated apples are a type of apple. And technically, the apples are selected in a sense. If they use an apple, it's been selected, so this is fine." You could see that sort of just, like, textualist garbage happening with the modern court. But no, you know, when it comes to food labeling, there should be a standard that companies have to clearly convey what exactly the product is. And I think that's the standard that the court is using here. We should not be at the whims of rhetorical tomfoolery is what the court is saying.

Rhiannon: Yeah, don't editorialize too much.

Peter: Yeah, don't get fucking cute with me. Just give me my vinegar.

Rhiannon: [laughs] Yeah, cut the cute.

Michael: Yeah. I mean, it's not hard to imagine the court being like, "Well look, if it tastes like apple cider vinegar, that's what people are looking for. They're looking for something with a specific taste character, specific flavor profile, and they don't really care." And being very generous sort of in that respect, and then being hyper pedantic with the selected stuff. I mean, like, as long as the apples aren't random, they are in some sense selected. Rotten ones are removed. That's a selection process or whatever.

Rhiannon: Yeah. Yeah.

Michael: It's just because the modern court sucks fucking dick. [laughs]

Rhiannon: Yeah. I could see a modern court being like, "Well, you know, like, the seeds for this apple are selected. They're intentional about planting it in a certain way. So these are selected," you know? but it's just kind of like a ring around the rosy, and not actually as direct as the modern court presents its textualism. This, I think, is a pretty direct, pared down, simple textualism.

Michael: Yeah.

Peter: Right. Right. So I think we should admit that we are just using this case as an excuse to talk about what conservatives think about this sort of thing, and what the absolute creeps in the Trump administration 2.0 might do. So I think a good way to approach this is to get our arms around the scope of these laws now, these types of laws, and then we can drill down into what conservatives think about this shit, and what the world might look like if they really get their way on a lot of the, like, labeling and sort of regulatory state sort of things.

Rhiannon: Yeah.

Peter: So there are a ton of laws and regulations concerning labeling for consumer products, right? You have major ones. There's the Fair Packaging and Labeling Act of 1967, which requires that most products have labels, including basic information like their contents, who manufactured them, where they were manufactured, et cetera. You also have laws requiring that labels identify common allergens, for example.

Rhiannon: Yeah.

Peter: Then there are also a ton of lesser known labeling requirements. The Dolphin Protection Consumer Information Act prevents companies selling tuna from claiming that their product is dolphin safe unless it actually is. You have regulations limiting the sale of raw milk, for example. This is just—you know, just scratching the surface.

Michael: Yeah. I mean, you can see the intersection of this stuff with, like, health and safety very clearly. Just at the time of this recording, like in the last 24 hours, it came out that a farm that does raw milk production called Raw Farms LLC—lovely name—in their top of the line product called Cream Top, they found bird flu. They found bird flu, and the animals were just, like, filthy with it. But the milk had to be recalled. Just disgusting. But, like, raw milk is currently a big fad, and you might be concerned about—for precisely these reasons. You don't want to drink raw milk, unpasteurized milk, because you don't want to ingest harmful viral or bacterial contents and make yourself sick. And so when you go to the store, you rely on labeling that clearly identifies whether something is pasteurized or not.

Rhiannon: Yeah. Yeah.

Michael: That's just a normal way you interact with the world.

Rhiannon: And you rely also on a functioning administrative state with federal agencies that can effectively do things like mandate recalls on dangerous food.

Peter: Right.

Michael: Right. And make sure the labeling is accurate.

Rhiannon: Exactly. Exactly.

Peter: Now on our last episode, which was a premium episode, I referred to a video I watched on TikTok.

[ARCHIVE CLIP, TikTok: This milk has been sitting in my refrigerator for close to six weeks, and it is still perfectly safe to consume.]

Peter: There's something about this lady just watching this milk chunk out into her cup and just not even flinching.

Michael: Yeah, I know.

[ARCHIVE CLIP, TikTok: Because this is unpasteurized raw milk, and raw milk will not spoil like conventional milk does. Let me break it down for you. Raw milk is a living superfood. Very similar to human breast milk.]

Peter: Yeah, she's just sitting there pouring it. And it—it globs out. It globs out into the cup. And she then uses, like, a little foamer, like, to just like ...

Rhiannon: Like, to disintegrate the chunks?

Peter: Yeah, to just sort of mix in the chunks. And then she drinks it. And this is after explaining it has been in her fridge for six weeks.

Michael: [laughs]

Peter: Six weeks. Lady!

Rhiannon: Ma'am.

Peter: I will say I did think of a million-dollar idea, which is an ad for raw milk. This, like, manly man steps out onto the screen and he's like, "I like to hold my milk in the palm of my hand. I don't drink milk like a lady. I eat my milk like a man."

Rhiannon: "I want my milk to be visible on a scale in a substantive way."

Peter: He's just holding his milk like a fucking Clif bar, just ripping into it.

Rhiannon: Ugh!

Michael: Oh, these people are so disgusting.

Peter: I feel like we need that, though. There needs to be a—you need in this episode, and I apologize to our listeners, but there must be a visceral demonstration of how fucking nasty the lives that these people intend to live actually are.

Michael: Yes.

Rhiannon: Yeah. And how, like, gross food can get really quickly without, like, rules, you know? And so just, like, talking back about, like, the relationship to health and safety, public wellness, and food labeling, FARE, the Food Allergen Research and Education organization, it's a nonprofit that does research and education around living with food allergies and food allergies in general, FARE says that undeclared allergens are the number one reason for food recalls in the United States. There is a mandate that food labeling has to have allergens listed so that people with food allergies know to stay away from those allergens.

Rhiannon: And this remains a problem, obviously, with undeclared allergens being such a big issue in the food industry, according to FARE. But at the same time, you do have the rule that labeling displays food allergens, and therefore, you have a mechanism inside the federal government to hold food manufacturers to account when they break this rule. And again, having that functioning administrative agency that can then effectuate a recall when food is found to have undeclared allergens, there's a method for, like, reporting this. If you find unsafe food, if you're somebody with food allergies and you notice that there's an undeclared declared allergen in food, problems with labeling are reported to the FDA's Center for Food Safety and Applied Nutrition Adverse Event Reporting System. There's a safety reporting portal online.

Rhiannon: You know, when we talk about conservatives dismantling the administrative state in the name of austerity, in the name of efficiency, in the name of fucking whatever, these are the places, the agencies, the offices, the systems and the rules that are, like, going to suffer from, for example, conservative budget cuts and shredding away at the federal government. And things like food allergies, which can be—obviously, like, people listening to this, have food allergies or know people who have very serious food allergies, you know, these are potentially incredibly dangerous, incredibly lethal. And that's where things that sort of like health and safety for the public really starts to, like, unravel.

Peter: Before we go too far, I think it's important to think about, like, what exactly conservatives might have in mind here.

Michael: Mm-hmm.

Peter: It's hard to know in some ways, right? They're putting RFK into a position of power over much of the government's health apparatus. What is that gonna look like, what's it gonna mean? We don't know exactly, but we have Project 2025, for example, which remains a pretty useful guideline for what conservatives are trying to accomplish.

Peter: One thing that jumped out from that document was about baby formula. I'm gonna read a quote from Project 2025. "As for baby formula regulations generally, labeling regulations and regulations that unnecessarily delay the manufacture and sale of baby formula should be reevaluated. During the Biden administration, there have been devastating baby formula shortages." So anyone with a young child probably knows this. In 2022, there was a baby formula shortage.

Michael: Mm-hmm.

Peter: Really big deal. Probably driven primarily by COVID-related supply shocks. But there was another element: Abbott Labs, one of the biggest producers of baby formula in the country, had to shut down production at one of their plants after the FDA issued recalls because a whistleblower drew attention to issues in their process. And there are reports of up to nine infant deaths that were potentially traceable to that plant. So when they are talking about lifting regulations that delay the manufacture and sale of baby formula, seems like maybe they're saying that in the future it's better to have more production, even if it means that some babies drink contaminated baby formula.

Rhiannon: And die.

Michael: Yes, absolutely.

Peter: And you may say that I'm a dreamer, but as rich as our country is, I just don't think that's a trade off that we have to make. I assure you there was a way around that little Sophie's Choice. And this is an issue I plucked from Project—sorry for that really dark metaphor with Sophie's Choice. That's not how I meant it. This is just an issue I plucked randomly from Project 2025 after glancing through it a bit. This is the world they want to build, right?

Michael: Yes.

Peter: Bacteria in your baby formula and dolphins in your tuna so that corporations can capture a little bit more profit.

Rhiannon: Yeah.

Peter: They are very skeptical of government playing this sort of role at all.

Michael: Yeah. You know, another area where this might be concerning is the sort of dietary supplement market.

Rhiannon: Oh my gosh. Yeah.

Michael: Yeah. If you look at like—okay, so RFK is gonna be at HHS, and he's obviously, you know, the sort of alternative medicine type, but also like you look at Trump's big backers and, like, his political constituencies and it's like Infowars exists mainly to sell crap supplements, right? Fox News has crap supplements as a lot of their major advertisers. I don't listen to Joe Rogan, but I imagine there's a lot of crap supplements being pitched there as well.

Michael: And so this is a market that's already sort of rife with abuse that labeling only moderately can control. And so I do worry about what it would look like if the sort of reins are removed from that. Because for a lot of people, they sort of implicitly just trust what they hear someone like Joe Rogan say, or just what they see on a bottle at a Walmart as being accurate. And so if the government isn't, like, forcing these companies to accurately—or at least semi accurately—represent what's in the bottles, and the bottles don't have to really represent, like, anything at all, then maybe some of these shit supplements end up on the shelf at a Walmart, and maybe random people who don't even know what they're buying end up buying them.

Peter: Yeah, what if your local pharmacy looked more like a GNC is the question that we're sort of facing here.

Michael: I did some poking around on PubMed for this and it's like, already there's issues in this with, like, over 50 percent of supplements that are botanical based, have plant matter that's not listed on the label and things like that. And, like, dosage levels varying widely from pill to pill. A lot of the big labels, I think, are much better about this. And the stuff you get at the big box stores are better about this, but even they aren't immune. And the wider industry is just really—I worry about what it'll look like if the reins are taken off.

Michael: And I do think this is sort of emblematic of, like, a bigger thing. I don't know if there's a name for this in the literature or not, but something I've been thinking about for a little while now is, like, sort of grifter capitalism or scam capitalism. I'm sure all the lefties in our audience right now are being like, "That's just capitalism, Michael."

Rhiannon: [laughs]

Michael: Well, guess what? You don't have to make the joke because I just did. Shut the fuck up. But there's, like, Trump and his cronies and all these people represent a specific brand of, like, making money by deception. And we control that deception in a lot of arenas because we don't think the free market is the best way to deal with this problem. And I think the baby formula is a good example of this. But you can also think of, like, surgeons or whatever. Anywhere there's occupational licensing. You don't want to find out someone's a quack surgeon by having them accidentally remove your liver instead of your appendix. That's why you have to take the MCATs and go to med school and pass whatever fucking shit.

Peter: Well, the free market can fix that because if you get a transplant for the wrong organ ...

Michael: Yeah.

Peter: ... you can leave a bad Yelp review.

Michael: There you go. There you go.

Peter: And then future consumers will know. Unless of course, the doctor pays $5 to Yelp.

Rhiannon: To consumers of the appendectomy.

Michael: Yeah, right.

Peter: Yeah. But then you can use another review service. And the cycle goes on and on.

Michael: The bereaved loved ones of the botched surgery recipient will leave a bad review. So there's certain things that we just—we don't want the free market mechanism as our assurance of at least a certain baseline level of competence, because that involves too big of a sacrifice. It involves dead infants or dead people or immiserated people or whatever. And that is, like, almost precisely what labeling is about. It's about preventing you from ingesting something at a lethal dosage for anyone, or for you in specific because of your allergies or—you know, or because you don't even know what's in it. Or just because you have religious objections to eating beef, and you don't want to eat something that was cooked in beef or whatever. But that's the whole point is like it's a liberty-enhancing thing for the consumer, but it's a profit-reducing thing for the scammer. And this is a very scam-friendly administration coming in. And I don't think Project 2025 gives us much to look forward to on that front.

Peter: We're sort of touching around the edges of, like, this theme in fascism, which is just the mistrust of experts. Last episode I said I would not quote Hannah Arendt. And this time I will because it's just too on the nose. Very famous quote from Arendt. "The consistent persecution of every higher form of intellectual activity by the new mass leader springs from more than their natural resentment against everything they cannot understand. Total domination does not allow for free initiative in any field of life, for any activity that is not entirely predictable. Totalitarianism in power invariably replaces all first rate talents, regardless of their sympathies, with those crackpots and fools whose lack of intelligence and creativity is still the best guarantee of their loyalty."

Peter: Appointments like RFK and Elon Musk are just like the apotheosis of this, right? Like, buffoons who think they're smarter than everybody. RFK Jr. in particular is just the end point of a type of conspiratorial thinking where modern scientists are interlopers, they are essentially interfering with God's plan, and we can right the ship by returning to nature. This is why you have these morons chugging rotten raw milk. The fact that it's verifiably dangerous isn't relevant just like the fact that we were dying of disease at insane rates a couple hundred years ago isn't relevant to them.

Michael: Right. I mean, these are the same people who were injecting ivermectin and then shitting out their own stomach lining and being like, "I can see the disease leaving my body!" [laughs]

Peter: The thing to understand about, like, conspiracy theories is that people believe them because they reify some other preexisting belief about the world that they already hold. So you might want to ask one of these people, like, "How can you believe that raw milk is safe? Do you really think that, like, every scientist is lying to you? How can you believe that vaccines cause autism? Do you actually think that every scientist is lying to you about this? How can you believe that climate change is fake? Do you actually think that every scientist is lying to you?" But if you're asking those questions, you've got it backwards because the idea that every scientist is lying to them is their first principle.

Rhiannon: Yes.

Peter: These people see the scientific and academic communities as their enemies, as like the tools of evil progressives. Like, progressives are working in consultation with and hand in hand with scientists who are trying to, like, cloud up the modern world and use it to sort of overpower the godly forces of the righteous or whatever. Like, that's the sort of shit that they believe. So when you're like, "Hey, that's gonna make you throw up and poop a lot," you're way out of your depths. These people are living on a different fucking planet in a different fucking universe. This is like the culmination of a perspective that is completely detached from reality. It's not something that you can sort of fight tit for tat. It doesn't really work like that.

Rhiannon: Mm-hmm. Yeah. You know, and just thinking about like food labels as one example of this, as one example of, you know, the mistrust of expertise, the anti intellectualism, it really—all of this is about, like, breaking down the processes by which the public gets important information, so that those processes, those communication pathways, those information channels can be taken over by fascist myth making and replaced with, like, fascist ideology. It's about creating disinformation and doing away with information so that disinformation can replace that.

Rhiannon: And food labels are like a really good example. Food labels are a way that the government, and through agencies that are tasked with, you know, health and wellness, public safety, those kinds of things, that food labels are a way that the government communicates important information in a basic sense. And so tearing away at regulations, at mandates, at statutes that sort of, you know, require something like food labeling—and there are infinity examples in the federal government of this kind of thing. You know, doing away with that kind of thing is about making it easier to replace information and science with disinformation and fascist ideology.

Peter: Yeah. It's stripping away our shared understanding of the world.

Rhiannon: Yeah, that's right. And creating skepticism and mistrust in institutions so that you fall back on—you default to trusting demagogues and totalitarian leaders.

Peter: Yeah. I view attacks on labeling and similar regulations as, like, emblematic of this sort of post-truth chaos that we're all living in. It's not just that fascists will make the world worse, they also make it harder to understand. They attack reliable sources of information. They attack media outlets that criticize them.

Rhiannon: Yeah.

Peter: The federal government itself serves as a source of information for a lot of things. The National Institutes of Health is responsible for a huge amount of scientific research, and Project 2025 is very skeptical of their role in our federal system. The Bureau of Labor Statistics is by far the best source of data about employment in this country, and they want to limit the data it collects so that, for example, it would not report on racial and ethnic data that could be used to identify disparities. Fascists need reality to bend to them, and this is part of how they do it. They push out experts, they put in hacks, and you might know that something is wrong, but you won't always be able to see it because they fog up your vision.

Rhiannon: Yeah.

Peter: You will bite into your tuna sandwich and you will sense that something is off, but you won't ever know for sure. That's what living in fascism is like. It's not ever knowing exactly how much dolphin you're eating.

Rhiannon: Yeah. Yeah. And, you know, like, it's not to say that there aren't, like, problems, like, you know, even serious problems at the FDA or the USDA, or problems currently with food labeling that should be improved, all of that stuff. But it's about the government resources devoted to addressing those problems and making those agencies stronger and better and even more effective in terms of protecting public health or, like, just completely doing away with them, right? In some sense.

Rhiannon: And then, you know, just to bring it back maybe to the Supreme Court, you know, to the extent that we have this whole other fucking branch of government that could add another layer of accountability and, like, maybe make sure that federal agencies are doing what they're supposed to do or something like that, you know, we have a really fucked up and a very different Supreme Court today than we clearly did in 1924 when this case came down and said, "Yeah, you can't mislead people in food labeling." Two really big cases, obviously, you know, decreasing the power of the administrative state, weakening the administrative state came out just last term. We've talked about Loper Bright, which overturned Chevron deference.

Rhiannon: And there's another case called Corner Post, which we haven't talked about. That case extended the period of time that a party has to file a lawsuit challenging federal agency actions. So there's a six-year statute of limitations within which if you're filing a lawsuit to challenge some action that the FDA takes, for example, you've got six years to do it. But when does that clock start running? Well, last term, the Supreme Court said that clock starts to run not when the final regulation is released by the federal agency, but whenever a plaintiff suffers an injury.

Michael: Right.

Rhiannon: Whenever you say you got hurt by a federal agency action, you have six years after that, not just when the regulation comes down. And so, you know, just little ways that the Supreme Court has really, really helped in chipping away at the power of the administrative state already in ways that sort of like, prime it, prime all these agencies of the federal government to get, like, just turned upside down, torn up by Trump 2.0.

Peter: If anyone from the Times is listening, I've also called this "The Age of Diarrhea." Age of morons, age of diarrhea. I'm just trying to get something to stick in the popular consciousness. Hit me up and we can workshop this together, and then I will write the column.

Rhiannon: And if someone from the Times is listening, I'm begging you to do this because Peter will not stop talking about it. Please let him write a column titled "The Age of Diarrhea."

Peter: This is only like the second time.

Rhiannon: [laughs]

Michael: Not the diarrhea stuff.

Peter: Okay. "Diarrhea" I've probably said a half dozen times.

Michael: [laughs]

Peter: But yeah, I mean, you have to admit that that one's catchy.

Michael: It is. It is. It's got that, you know, that little something, that je ne sais quoi, that's just like, it's ...

Peter: Yeah. Similar to eating dolphins. I think that the visual of us all just eating a dolphin sandwich has a sort of visceral appeal. Point being, I just think someone should give me a column about it. And I will not settle for Balls and Strikes. I just can't. I can't do that to myself anymore.

Michael: I can't wait to get the text from Jay about this.

Peter: [laughs] All right. Next week, a cop episode. Going back to our roots, baby.

Rhiannon: Yeah.

Peter: Illinois v. Wardlow. A case about how it's suspicious to run from cops. Which we disagree with. I believe that it should be totally okay to see a cop and just take off, full sprint, other direction.

Michael: [laughs] Yeah.

Peter: It's a safety issue.

Michael: It is.

Peter: You got a dog. You have to. It's your obligation as an owner. All right. Follow us on social media @fivefourpod. Subscribe to our Patreon. Patreon.com/fivefourpod—all spelled out—for access to premium and ad-free episodes, special events, our Slack. All sorts of shit. We'll see you next week.

Rhiannon: Bye!

Michael: Bye.

Andrew: 5-4 is presented by Prologue Projects. This episode was produced by Dustin DeSoto. Leon Neyfakh and Andrew Parsons provide editorial support. Our website was designed by Peter Murphy, our artwork is by Teddy Blanks at CHIPS.NY, and our theme song is by Spatial Relations. If you're not a Patreon member, you're not hearing every episode. To get exclusive Patreon-only episodes, discounts on merch, access to our Slack community and more, join at Patreon.com/fivefourpod.

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