Food Deregulation in the US: Here comes something big and ambiguous

The US House of Representatives is working on the 2007 Farm Bill. One of the proposals is that the states will no longer be able to regulate foods approved by the FDA. The draft form of this legislation seems to include overriding the existing provisions

There’s a lot of real problems with this. It puts the states in the position of being the local regulators, and carrying the costs, but left with no role whenever the FDA makes an approval. In other words, “Guess what we’re not able to regulate today.” Not a great position. Even the theory of this method of regulation barely deserves to be described as half ass. As legislation, the provision puts the FDA in a particularly unworkable position. Its core role is as a benchmark regulator, the navigation reference for state regulation. This Bill makes it the sole point of reference for whatever it happens to approve, with no comeback for anyone, anywhere but a court, probably the Supreme Court. So from regulation, we’ve descended rather abruptly to litigation. FDA will also be stuck with whatever liabilities this Bill creates for it. Considerably less workable is the framework of what’s being covered by this tissue paper of an idea. Food technology is changing drastically. New products, new preservatives, GM food, and the entire consumer idiom is involved. In the case of GM food, neither technology, the knowledge base, or the law are going to be anywhere but behind the eight ball for a long time. The legal precedents are almost non-existent. Any finding on a GM product currently involves the production of an amount of data which roughly corresponds to a phone book. All of that data is usually contested in the sciences in a way which would make the most ferocious forum look like one of Woodstock’s more peaceful moments. This is what the FDA is being expected to regulate. If the most Byzantine legislator had gone specifically looking for the most difficult possible regulatory situation, you could do no better than this. Legally, even the terminology for some of the new compounds, let alone the genetic products and the technology, is so new that “legal definitions” can be expected to take decades to turn into functional legal concepts. Deregulation has had some pretty ugly moments. In Australia, in New South Wales, we tried to deregulate state building legislation, which at the time was an 80 year old thing, quite gigantic, with attached regulations. Within three years almost all of it had to be brought back, because nobody knew what the rules were any more. Our very big industry didn’t have the slightest idea what was required, and nor did the local authorities. The FDA is in much the same position at the moment. Everyone knows what’s supposed to happen, and states’ powers to regulate are understood. Take that away, and even guesswork might be a luxury. I don’t know if this is constitutional. It may not be. It might well exceed constitutional authority given to the Federal government. It contradicts existing states’ powers, and that sounds like lousy law. I doubt very much if the states are going to be pleased at the idea of being stuck with Federal laws and no ability to handle their own local situations. Some of them are food producers, and the local ramifications are enormous. They will have to handle the fallout from approved products, regardless of their impact on the local economy, local producers, and local business. Some of them are almost entirely consumers, and having no ability to deal with food regulation issues just isn’t going to work. It’s hard to imagine New York blithely agreeing to whatever the cat drags in as appropriate regulation. Presumably there’s some kind of expediency believed to be achieved by regulating food this way. All I see is problems, and lots of them, none of which can even be debated under a regulatory regime like this. If the states have no input, not only to Federal law, but to their own jurisdictions, who does? US Department of Agriculture Farm Bill 2007 page