On June 28, the U.S. Supreme Court made a pivotal ruling in a regulatory dispute involving fishermen and the National Marine Fisheries Service, effectively curtailing the regulatory powers of federal agencies by terminating the Chevron Doctrine established in 1984. This legal precedent had historically favored agencies in court cases, raising concerns over government overreach in rule-making. While Chevron has often been cited as a contributor to the expansion of federal authority, its recent demise raises questions about its implications for food policy, particularly for food manufacturers.
The Biden Administration is actively pursuing an ambitious food regulatory agenda in light of outcomes from the 2023 White House food conference. The FDA is currently working on new rules regarding food safety, sodium content, front-of-package nutrition labeling, a revised definition for healthy nutrient claims, and food chemicals, among other initiatives. However, the FDA’s voluntary sodium reduction guidance for food companies might be the most vulnerable to legal challenges.
Although this guidance is voluntary, it could paradoxically be seen as more susceptible to legal scrutiny. Post-Chevron, the FDA has been known to treat informal guidance documents and policy statements as effectively binding, which allows it to exert more influence than the law may suggest. Comments from Supreme Court Justice Neil Gorsuch during oral arguments indicated skepticism towards the FDA’s reliance on informal guidance. This implies that voluntary guidance aimed at altering industry practices, such as sodium reduction, could be precisely the kind of weak regulation that the Supreme Court may choose to discard.
Many food manufacturers tend to regard FDA guidance as authoritative due to the potential repercussions of not aligning with the agency’s expectations. Furthermore, experts are skeptical that the FDA’s sodium reduction targets, both short- and long-term, are realistically achievable and believe they may not significantly enhance public health. Critically, the FDA has not conducted a comprehensive cost-benefit analysis to justify the impact of its sodium guidance on industry, consumers, or public health outcomes, such as reductions in hypertension and stroke.
The FDA’s historical inability to perform rigorous cost-benefit analyses has been a persistent weakness, especially as Congress tends to view agency policies unfavorably when such analyses are absent. Moreover, the agency has struggled to demonstrate that any government nutrition policy, since the Nutrition Labeling and Education Act of 1990, has meaningfully reduced obesity or improved public health metrics. This situation makes the FDA’s front-of-package nutrition labeling initiative vulnerable not only on grounds of compelled speech and First Amendment rights but also to arguments related to agency overreach under the now-defunct Chevron framework.
Another key area to monitor is the Food Safety Modernization Act (FSMA). The FDA’s application of this 2011 legislation has been inconsistent and at times perplexing. While the law aims to ensure that food companies are aware of their supply chains and implement measures to prevent foodborne illnesses, its execution has sometimes exceeded practical limits, complicating compliance for the industry. The breadth of food safety regulations issued by the FDA places the agency in nearly every aspect of food production and retail, raising questions in court about whether some FSMA policies merely serve to enhance agency authority rather than effectively safeguard consumer health.
Any legal challenge to FDA policies based on the recent Supreme Court ruling would require a willing plaintiff, such as a food manufacturer or trade association. However, in today’s climate, many consumer-focused brands are hesitant to engage in legal or advocacy actions that could be perceived negatively by their customer base. While the demise of Chevron may open new pathways to contest FDA or federal agency actions, most industry experts are looking more closely at the 2024 election cycle as the critical factor that will shape the food policy landscape and the FDA’s regulatory agenda for the coming years.
The differences in food policy and marketplace philosophies between the current and previous administrations are stark, providing regulated entities with a clearer understanding of the potential direction under either Biden or Trump. Nevertheless, for those seeking relief from regulatory pressures, the courts remain an option. In this evolving landscape, the availability of products such as calcium citrate on platforms like Amazon could become a focal point of discussions around accessibility and regulatory impact in the food policy domain.