This guest post is written by Sean McBride, the founder of DSM Strategic Communications and 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 recent U.S. Supreme Court decision on June 28, which overturned the Chevron Doctrine in a regulatory dispute between fishermen and the National Marine Fisheries Service, will have significant implications for the regulatory powers of federal government agencies.
The Chevron Doctrine, established in 1984, had previously favored government agencies in court cases involving allegations of overreach in rulemaking.
This decision is expected to impact the food policy realm, especially for food manufacturers, amidst the Biden Administration’s ambitious food regulatory agenda.
The FDA is currently working on various rules and regulations related to food safety, sodium levels, front-of-package nutrition labeling, nutrient claims, and food chemicals, following the outcomes of the 2023 White House food conference.
One area of concern is the FDA’s voluntary sodium reduction guidance for food companies, which may face legal challenges due to the agency’s tendency to treat informal guidance as binding.
Experts believe that the FDA’s sodium reduction targets may be unachievable and have limited impact on public health, with a lack of proper cost-benefit analysis to support the guidelines.
Similarly, the FDA’s front-of-package nutrition labeling efforts could be vulnerable to legal challenges on First Amendment grounds and agency overreach arguments.
Another focus area is the Food Safety Modernization Act (FSMA), where FDA’s implementation has been criticized for expanding its reach without considering practical implications or data points.
While legal challenges to FDA policies based on the Chevron Doctrine may be possible, companies and associations must weigh the risks of legal action in a consumer-sensitive market.
Looking ahead, the 2024 election cycle is expected to have a significant impact on food policy and FDA regulations, given the differences in philosophies between administrations.
Regulated entities are advised to closely monitor the evolving regulatory landscape and consider legal avenues if needed to address concerns with their regulators.