What does Chevron have to do with food safety?

– OPINION –

In case you missed it, among the Supreme Court’s arsenal of precedent-shattering opinions last week was one that overruled the court’s watershed 1984 decision. Chevron USA vs. Natural Resources Defense Council. below ChevronFederal courts relied on an agency’s interpretation of a law, as long as the interpretation was reasonable. Last Friday’s ruling gives federal judges more leeway to question federal agencies’ decision-making. The ruling has important consequences for food safety.

To understand why, consider that federal food safety agencies, like federal agencies in general, are not the most dynamic organizations. Risk aversion tends to penetrate their organizational cultures. Advocates of regulatory reform – whether pro-consumer or pro-business – know that simply disrupting the status quo is often the biggest obstacle to their agenda.

Federal agencies will often only act if forced to do so by extraordinary circumstances, such as dead children. In 1994, the families of four children who died in the Jack in the Box hamburger E.coli The outbreak succeeded in prompting the USDA’s Food Safety and Inspection Service (FSIS), led by then-Administrator Michael Taylor, to change beef inspection rules. In the fall of that year, FSIS announced that it would begin testing raw ground beef from federally inspected establishments and stores for E. Coli. O157:H7. If a sample were to test positive for the pathogen, FSIS would treat it as “adulterated” under the Federal Meat Inspection Act, and take whatever administrative action it deemed necessary to protect consumers from the adulterated product, including withdrawing federal inspectors and closing down factory operations. .

FSIS had not previously attempted to exercise its authority over the beef industry in this manner. It is therefore no surprise that the sector filed a lawsuit. The plaintiffs put forward, among other arguments Texas Food Industry Association v. Espy claimed that E. Coli-contaminated beef “is only harmful to health if cooked incorrectly.” Accordingly, they argued that FSIS could not lawfully interpret “adultery” in the law to include the pathogen in raw meat.

The federal judge assigned to the case did not spend much time explaining why the industry’s interpretation was wrong. Instead, the opinion notes that “the interpretation given to a statute by the officers or agency charged with its administration is entitled to substantial deference,” and that “[r]Regardless of whether the court would have reached the same interpretation, if the agency’s interpretation is reasonable, the court must respect it.” In other words, the court might not read the word “adultery” in the statute to include E.coli, as FSIS did, but since that was a “reasonable” reading, the court deferred to the FSIS interpretation. This was the Chevron doctrine, and it made sense because it is the regulators who work every day to implement the laws passed by Congress.

In the case of E.coli O157:H7 in raw beef, respect for the federal agency’s statutory interpretation enabled an unequivocal policy success. Diseases associated with E.coli O157:H7 plummeted from 2.6 cases per 100,000 inhabitants in 1996, shortly after the Spy This decision paved the way for FSIS to act, up to 1.1 cases per 100,000 in 2012. And despite industry claimants’ protests that E.coli “testing is prohibitively expensive,” no cataclysmic disruptions have rocked the beef supply. By all measures, FSIS was proven right.

If the industry were to bring a similar case today, a federal judge would not have to defer to FSIS’s interpretation of the law, at least not to the same extent. Last Friday, the US Supreme Court issued a ruling decision along partisan lines in the case of Runner Bright Enterprises against Raimondo And Relentless, Inc. against Ministry of Commercewhich was explicitly set aside Chevron. The cases hinged on whether another federal agency, the National Marine Fisheries Service, can interpret its authorizing statute to make Atlantic herring fishermen pay some of the costs for on-board federal observers who monitor regulatory compliance. In ruling that the agency cannot demand these payments, the Supreme Court has made clear that federal judges are not required to defer to agencies’ reasonable interpretations of statutes. Writing for the Majority, Chief Justice John Roberts argued that “Chevron’s assumption is misleading because agencies have no special authority in resolving regulatory ambiguities. Courts do.”

In other words, a federal judge is better positioned than the FSIS to determine what “adultery” means under the Federal Meat Inspection Act, along with numerous other questions of statutory interpretation that a food company’s lawyers might raise in hoping to save their client a lot of regulation. compliance costs. This new legal landscape creates more uncertainty for federal agencies. Depending on the judge, a completely “reasonable” statutory interpretation may fall short. A defeat in the courts sends regulators back to the drawing board and could wash away years of regulatory work into thin air. The result, many food safety advocates fear, will be an even more skittish administrative state.

That would be bad news for consumers, who face a range of preventable harms in the food system, not so much because federal regulators take action bad policy, but because they do not accept it eachaction at all. By overruling Chevronthe court has made it easier for the industry to resist regulations it doesn’t like. Indeed, this is why conservative legal organizations that received millions of dollars from the famous libertarian petrochemical billionaire Koch brothers supported challenging the fishermen Chevron .

Critics of the Chevron doctrine have argued that Congress, rather than executive branch officials, should decide major issues of public policy. They claim this is overthrowing Chevronwill force Congress to take more care with the legislation, and probably better specify details, such as the definition of an “adulterant” in food. However, a survey of state legislators found that the extent to which state courts adhere to state agencies’ interpretations of state laws no effect on “legislative productivity,” as measured by the number of words in statutes passed by state legislatures. In any case, a higher degree of judicial supervision seems to be associated with less legislation. So less judicial deference to federal agencies would only seem to shift the balance of power toward the judiciary, rather than the legislature, reducing democratic accountability as regulators answerable to the president cede their authority to judges who preside over have been appointed for a lifetime term on the bench. .

Fortunately, some silver linings may emerge. Food safety advocates have also challenged agencies’ statutory interpretations and lost on that basis Chevron . For example, a federal court threw out a challenge to the U.S. Food and Drug Administration’s final rule formalizing its “classified GRAS” rule, which allows the agency to exempt from the Federal Food, Drug, and Cosmetic Act substances “Generally Recognized as Safe” or “GRAS” has interpreted to give food companies the opportunity to self-certify the safety of new chemicals – without the need for disclosure. But it remains to be seen to what extent public interest lawyers can succeed in challenging this kind of agency inaction as a violation of the one, “correct” interpretation of the agency’s enabling statute.

In the meantime, industry challenges, or simply the threat of industry challenges, may prevent some agencies from developing regulations. Food safety regulators should not be intimidated. Regulations such as the FSIS proposed a rule to create enforceable Salmonella poultry product standards, or FDAs last rule Food traceability issues enjoy broad public support and are now critical. In this new, uncertain legal landscape, consumers must demand more from federal regulators.

We must also learn to expect less from the CEOs and corporate lawyers responsible for thwarting consumer protections. However misguided their efforts may seem today, those who fought to stop FSIS from perpetuating E.coli O157:H7 Our hamburger meat did not produce evil misanthropes. They were merely trying to fulfill their duty under the law – the duty to zealously advocate for their clients, and ultimately their shareholders. Luckily for all of us, they failed. However, the Supreme Court’s decision is rejectedChevronwill create new opportunities for narrow corporate interests to trump the broader public interest, including with regard to food safety.

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