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The following is a guest post from Sean McBride, the founder of DSM Strategic Communications, the former Executive Vice President of Communications at the Grocery Manufacturers Association (now the Consumer Brands Association), and former Vice President of Communications at the U.S. Chamber Institute for Legal Reform.
The U.S. Supreme Court’s June 28 decision in a regulatory dispute between fishermen and the National Marine Fisheries Service will limit the regulatory powers of federal government agencies by declaring an end to the 1984 Chevron Doctrine.
The legal precedent tilted the scales of justice in favor of the agencies during court cases, alleging government overreach in rule making.
Chevron is widely seen as a factor in the growth of the scope and power of the federal government in recent decades, but what will the decision mean in the food policy realm, especially for food manufacturers?
The Biden Administration is moving forward with an ambitious food regulatory agenda. Based on outcomes from its 2023 White House food conference, the FDA is developing rules and regulations on food safety, sodium, front-of-package nutrition labeling, a new nutrient healthy claim definition, and food chemicals, just to name a few.
The FDA food initiative that may be the most susceptible to a legal challenge is the agency’s voluntary sodium reduction guidance for food companies. Because it is voluntary, it may seem counterintuitive to view it as vulnerable, but the opposite may be true.
According to FDA After Chevron, the agency “ … often treats informal guidance documents, letter rulings, and policy statements — which are not subject to notice and comment — as equally binding. FDA thus tends to exert far more authority in practice than the letter of the law would suggest.”The authors further note, “At oral argument, comments from [Supreme Court] Justice [Neil] Gorsuch appeared to criticize FDA's routine reliance on informal guidance…”
That means the voluntary guidance agencies issue with intent to change industry behavior, such as with the FDA and sodium, might be just the type of weak coffee SCOTUS wants lower courts to pour down the drain.
For starters, most regulated entities treat FDA guidance as gospel because companies cannot afford to get on the bad side of an agency that has vast power over their operations and reputation if they do not comply, at least directionally, with FDA’s point of view on a subject, in this case sodium reduction.
Second, many experts believe the short-term sodium reduction targets by food category published by FDA, as well as the long-term guidelines the agency is working on now, are unachievable and have little chance to significantly impact public health.
Finally, FDA has not conducted a proper cost-benefit analysis to show the cost to industry and consumers, nor the public benefit of its sodium guidance in terms of reductions in sodium consumption, hypertension and stroke.
The FDA’s lack of ability or willingness to conduct authoritative cost-benefit analysis when it comes to nutrition policy has long been its Achillies heel as Congress takes a dim view when agency policies are proffered without this being done.
Aside from its inability to assess costs, FDA has been unable to show any government nutrition policy since, and including the Nutrition Labeling and Education Act of 1990, has measurably reduced obesity, its related diseases or improved public health.
That means the FDA’s front of package nutrition labeling effort is not only vulnerable on compelled speech/First Amendment grounds, but it may also be susceptible to a Chevron-based agency overreach argument.
Another food policy arena to keep an eye on is the Food Safety Modernization Act (FSMA). FDA’s implementation of the 2011 legislation has at times been uneven and confusing. The law, which requires food companies to “know your supply chain,” and put into place changes and plans to prevent foodborne outbreaks, was well-intentioned and embraced by industry.
However, FDA has gone too far too fast in some FSMA channels, expanding its reach and ignoring practical considerations and legitimate data points along the way.
The phalanx of food safety guidance, rules and regulations the agency has issued place it, literally, in every nook and cranny of every farm, every processing facility, every retail grocery store. The courts may be asked to decide if some FSMA policies dealing with prevention or traceability merely advance agency power with little or no prospect to protect consumer health.
Of course, any legal challenge begins with a plaintiff. Even if a Chevron-based legal challenge to an FDA policy is viable, a motivated food company, trade association or organization with legal standing would have to bring a lawsuit. That’s tricky business these days, where consumer-sensitive brands are loathe to undertake legal or advocacy actions that might be viewed negatively by some consumers.
While Chevron may open unforeseen avenues to challenge FDA or other federal agencies in the legal arena, most food industry experts are, instead, closely watching the 2024 election cycle as the more important action that will impact the food policy arena and associated FDA regulatory agenda for the next few years.
There are vast differences in the food policy and marketplace philosophies between the current and immediate past presidential administrations. So, regulated entities don’t have to guess what will come next under Biden or Trump. However, there’s always the courts if they want to seek relief from their regulators.
