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The following is a guest post by Sean McBride, founder of DSM Strategic Communications, former executive vice president of communications for the Grocery Manufacturers Association (now the Consumer Brands Association), and former vice president of communications for the U.S. Chamber Institute for Legal Reform.
The U.S. Supreme Court’s June 28 decision in a regulatory dispute between commercial fishermen and the National Marine Fisheries Service marks the end of the 1984 Chevron Doctrine and will limit federal agencies’ regulatory powers.
This case has tipped the judicial scales in favor of government agencies in cases alleging abuse of government power in rulemaking.
Chevron is widely seen as a catalyst for the expansion of the federal government’s reach and power in recent decades, but what does this decision mean for the food policy field and food manufacturers in particular?
The Biden Administration is moving forward with an ambitious food regulatory plan. Building on the results of the 2023 White House Foods Council, the FDA is developing rules and regulations on food safety, sodium, front-of-pack nutrition labeling, definitions of new nutrition health claims, food chemicals, and more.
Of all the FDA’s food initiatives, the one most vulnerable to legal challenge are the agency’s voluntary sodium reduction guidelines for food companies. Because it’s voluntary, it may seem counterintuitive to view it as weak, but in fact the opposite may be true.
According to FDA After Chevron, the FDA “… often treats informal guidance documents, written rulings, and policy statements that are not subject to notice and comment as equally binding. As a result, the FDA tends to exercise much more authority in practice than the letter of the law suggests.” FDA After Chevron also notes that “at oral argument, Supreme Court Justice Neil Gorsuch appeared to criticize the FDA’s routine reliance on informal guidance…”
The authors further state that “at oral argument, [Supreme Court] justice [Neil] Gorsuch appeared to criticize the FDA’s routine reliance on informal guidance…”
That means that voluntary guidelines issued by government agencies with the goal of changing industry behavior, like the FDA and Sodium, could be exactly the type of weak coffee that SCOTUS would want lower courts to throw out.
First, most regulated companies treat FDA guidance as absolute instruction, because they cannot afford to incur the displeasure of an agency that has great power over a company’s operations and reputation if they fail to at least directionally follow the FDA’s position on the subject, in this case, salt reduction.
Second, many experts believe that the FDA’s announced short-term sodium reduction targets by food category, and the long-term guidelines that the FDA is currently working on, are unachievable and unlikely to have a significant impact on public health.
Finally, the FDA has not conducted an adequate cost-benefit analysis showing the costs to industry and consumers, and the public benefits of the sodium guidelines in terms of reduced sodium intake, high blood pressure, and stroke.
When it comes to nutrition policy, the FDA’s lack of ability or willingness to conduct authoritative cost-benefit analyses has long been a weakness for the agency, as Congress views proposed FDA policies unfavorably when such analyses are not conducted.
In addition to being unable to assess costs, the FDA has failed to show that subsequent federal nutrition policies, including the Nutrition Labeling and Education Act of 1990, have measurably reduced obesity and related diseases or improved public health.
This means that FDA’s front-of-pack nutrition labeling efforts are not only vulnerable on compelled speech/First Amendment grounds, but may also be susceptible to Chevron-based arguments about expanding the agency’s powers.
Another area of food policy to watch is the Food Safety Modernization Act (FSMA). FDA implementation of the 2011 law has been uneven and confusing at times. The law, which requires food companies to “know their supply chain” and implement changes and plans to prevent foodborne outbreaks, was well-intentioned and embraced by industry.
However, the FDA has moved too quickly through some channels of FSMA, expanding its scope while ignoring practical considerations and legitimate data points.
FSMA has issued a mountain of food safety guidance, rules, and regulations that literally permeate every farm, every processing facility, and every grocery store. Courts may be asked to decide whether some of FSMA’s policies dealing with prevention and traceability merely strengthen the agency’s powers with little or no promise of protecting consumer health.
Of course, legal challenges start with a plaintiff. Even if Chevron’s legal challenge to the FDA’s policy were feasible, it would have to be brought by a willing food company, trade group, or organization with legal standing. This is tricky business today, when consumer-conscious brands are reluctant to take legal action or advocacy that may be viewed negatively by some consumers.
While Chevron could open up unexpected avenues for legal challenges to the FDA and other federal agencies, most food industry experts are instead watching the 2024 election cycle as a more significant action that will impact the food policy arena and related FDA regulatory agenda for years to come.
There are significant differences in food policy and market philosophies between the current and previous administrations, so regulated companies don’t have to guess what will happen next under a Biden or Trump administration. However, if they want to seek relief from regulators, they have the option of going to court.
