Chevron Doctrine and the FDA

by | July 10, 2024

Will recent Supreme Court actions in the US change the regulatory landscape for Food & Beverage? We consider the possibilities.

The recent Supreme Court decision to overturn the Chevron Doctrine has sent ripples through various industries, particularly food & beverage. This ruling, which reduces the authority of federal regulatory agencies, may introduce new complexities in food safety regulation.

For those unfamiliar, the recent ruling overturns a long-standing precedent, commonly referred to as Chevron Deference, established all the way back in 1984 by another Supreme Court ruling, Chevron USA Inc. v. National Resources Defense Council. In that case, the court ruled that when the text of a regulatory statute is ambiguous or silent on a given point of detail, the agency responsible for enforcing that statute should have the ability to provide a clarifying interpretation. For example, if the text of a regulation were to require “reasonably appropriate” measures toward a stated goal, it would be up to the responsible government agency to determine what “reasonably appropriate” should mean in a given context.  

That’s all different now. With Chevron having been officially overturned, the authority of federal agencies to set rules and enforce policies based on their interpretation of the law is significantly limited. Though the full scope of potential outcomes can’t yet be known, the ruling opens the door for many federal agency rules to be challenged and litigated, including rules and policies laid out by the FDA.  

So where does this leave food & beverage brands? It’s uncertain, but a few possibilities are certainly worthy of consideration looking forward. Let’s consider a few potential outcomes that could take shape over the years to come. 

1. Accelerating the shift from federal to state-level oversight 

A trend already underway is an increasingly important role for state legislatures in food safety and environmental regulation. In 2023, the State of California passed a slate of relatively aggressive legislation restricting the use of several food additives which were, at the time, still permitted under FDA regulation. Similarly, earlier this year, California established Scope 3 carbon reporting requirements for large enterprises, going beyond rules that the Federal Securities and Exchange Commission had opted not to implement. With federal agencies potentially hamstrung in terms of enforcement, and probably on a slower path to enacting new rules, brands could face greater pressure to understand and adapt to shifting state-level policies. States, for their part, may feel that they have an even more powerful mandate for filling perceived gaps in federal enforcement. 

2. Consumers become the new enforcers 

If enough challenges to FDA rules and enforcement authority emerge, the agency could be spending a lot of its time and energy in court. It’s possible that FDA oversight on food safety could be diminished, at least temporarily. However, consumer demands for safe food aren’t about to diminish, and the brand damage caused by a food safety incident will remain substantial. No brand wants to compete on the basis of safety, but the ability to present a strong safety and quality program to the public may be a positive differentiator in the minds of consumers, who could find themselves seeking reassurance that the products they buy are still safe for their families to consume. 

3. Widening gap between US and international regulators 

With federal agencies potentially slowed down by a greater dependence on congress and the courts, it seems all but inevitable that the US will fall further out of step with regulators overseas, particularly in the EU. Long-term impacts on US exports are hard to predict, but certainly aren’t impossible if diminished federal oversight in the US results in a lack of trust in American products abroad. Brands will need to be cognizant of evolving overseas regulations if they want to be able to offer products in those markets.  

4. Policy by litigation 

It’s conceivable that, with many future and existing regulations set to be litigated, policies that currently are set by agencies will increasingly be set by case law. This stands to create significant confusion, as various legal jurisdictions and appellate courts come to play an increasingly key role in the interpretation of regulations. The jury may be out (pun intended) on the fate of pending FDA actions, such as the FSMA rule for traceability (FSMA 204) and expected actions around salmonella contamination. 

The overturning of the Chevron Doctrine signals a transformative period for the food & beverage industry. Brands will need to adapt to a landscape where federal oversight could be diminished or at least slowed, where state-level regulations vary, consumers become more influential, and litigation becomes a key enforcement tool. By embracing proactive compliance strategies and maintaining transparent communication, companies can turn these challenges into opportunities for innovation and leadership in sustainability and food safety. 

In this evolving regulatory environment, tools like TraceGains Supplier Management and CAPA Management can be invaluable. Supplier Management, powered by the industry’s largest networked ingredients marketplace, helps brands develop strong supplier relationships built on the seamless exchange of standardized data. Digitized and centralized supplier document and data management keep safety and quality efforts moving forward no matter what. And with fully integrated management for Corrective and Preventative Actions (CAPA), nonconformances that do happen can be managed and addressed, with all impacts clearly understood and preventative action plans tracked to completion. TraceGains has been the food & beverage industry’s trusted partner for supplier management for more than 15 years. As the industry navigates an ever-changing regulatory landscape, having an experienced partner like TraceGains can make all the difference. Reach out to learn more.  

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