What’s Chevron got to do with food safety? 

— OPINION —

In case you missed it, among the Supreme Court’s panoply of precedent shredding opinions last week was one that overruled the court’s watershed 1984 decision in Chevron U.S.A. v. Natural Resources Defense Council. Under Chevron, federal courts deferred to 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 agency decision making. The ruling has important implications for food safety. 

To understand why, consider that federal food safety agencies, like federal agencies more generally, are not the most dynamic organizations. Risk aversion tends to permeate their organizational cultures. Advocates for regulatory reforms—whether pro-consumer or pro-business—know that simply disrupting the status quo often poses the greatest obstacle to their agenda. 

Federal agencies often will not act until required to do so by extraordinary circumstances, like dead children. In 1994, the families of four children who died in the Jack in the Box hamburger E.coli outbreak succeeded in pushing the USDA’s Food Safety and Inspection Service (FSIS), led by then-Administrator Michael Taylor, to change its beef inspection rules. In the fall of that year, FSIS announced that it would begin testing raw ground beef from federally-inspected establishments and retail stores for E. Coli O157:H7. If a sample tested 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 pulling federal inspectors and shutting down the plant’s operations. 

FSIS had not sought to exercise its authority over the beef industry in this way before. Not surprisingly, the industry sued. Among other arguments, the plaintiffs in Texas Food Industry Association v. Espy claimed that E. Coli contaminated beef “is only injurious to health if improperly cooked.” Accordingly, they argued that FSIS could not lawfully interpret “adulterant” in the statute to include the pathogen in raw meat. 

The federal judge assigned to the case did not devote much time to explaining why the industry’s interpretation was wrong. Rather, the opinion notes that “the interpretation given a statute by the officers or agency charged with its administration is entitled to substantial deference,” and that “[r]egardless of whether the court would have arrived at 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 “adulterant” in the law 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 insofar as the regulators are the ones working every day to implement the laws passed by Congress. 

In the case of E.coli O157:H7 in raw beef, deference to the federal agency’s statutory interpretation enabled an unequivocal policy success. Illnesses associated with E.coli O157:H7 plummeted from 2.6 cases per 100,000 population in 1996, shortly after the Espy decision cleared the way for FSIS to act, to 1.1 cases per 100,000 in 2012. And despite the industry plaintiffs’ protests that E.coli “testing is prohibitively expensive,” no cataclysmic disruptions rocked the beef supply. By all measures, FSIS got it right.  

Were the industry to bring a similar case today, however, a federal judge would not have to defer to FSIS’ interpretation of the statute, at least not to the same extent. Last Friday, the U.S. Supreme Court issued a decision along partisan lines in the cases of Loper Bright Enterprises v. Raimondo and Relentless, Inc. v. Dept of Commerce, which explicitly overruled Chevron. The cases turned 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 onboard federal observers that monitor regulatory compliance. In ruling that the agency cannot require those payments, the high court made clear that federal judges need not defer to the reasonable interpretations of statutes by agencies. Writing for the majority, Chief Justice John Roberts argued that “Chevron’s presumption is misguided because agencies have no special competence in resolving statutory ambiguities. Courts do.”

In other words, a federal judge is better situated than FSIS to determine what “adulterant” means under the Federal Meat Inspection Act, along with countless other questions of statutory interpretation that a food company’s lawyers might raise in the hopes of saving their client some regulatory compliance costs. This new legal landscape creates more uncertainty for federal agencies. Depending on the judge, a perfectly “reasonable” statutory interpretation may fall short. A defeat in the courts sends regulators back to the drawing board, and could flush years of rulemaking work down the drain. 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 gauntlet of preventable harms in the food system not so much because federal regulators enact bad policies, but because they do not take any action at all. By overruling Chevron, the court has made it easier for industry to oppose any regulation it does not like. Indeed, this is why conservative legal organizations that received millions of dollars from the famously libertarian petrochemical billionaire Koch brothers backed the fishermen challenging Chevron. 

Critics of the Chevron doctrine have argued that Congress, rather than executive branch officials, should decide major questions of public policy. They argue that overturning Chevron will force Congress to take more care in legislating, and presumably to better specify details like the definition of an “adulterant” in food. A study of state legislatures, however, found that the degree to which state courts defer to state agency interpretations of state law has no effect upon “legislative productivity,” as measured by the word count of statutes passed by the state legislatures. If anything, a higher degree of judicial scrutiny seems to correlate with less legislation. So less judicial deference to federal agencies only seems likely to shift the balance of power to the judiciary, rather than to the legislative branch, diminishing democratic accountability as regulators who answer to the President cede authority to judges appointed to life-time terms on the bench.  

Fortunately, some silver linings may emerge. Food safety advocates have also challenged agencies’ statutory interpretations and lost on the basis of Chevron. For example, a federal court threw out a challenge to the U.S. Food and Drug Administration’s final rule formalizing its “secret GRAS” scheme, by which the agency has interpreted the Federal Food, Drug, and Cosmetic Act’s exception for substances “General Recognized as Safe,” or “GRAS,” to allow food companies to self-certify the safety of novel chemicals — no disclosure necessary. But the extent to which public interest lawyers can succeed in challenging this sort of agency inaction as violating the one, “correct” interpretation of the agency’s authorizing statute remains to be seen. 

In the meantime, challenges from industry, or just the threat of challenges from industry, may deter some agencies from undertaking rulemaking. Food safety regulators should not allow themselves to be cowed. Regulations like the FSIS proposed rule to create enforceable Salmonella product standards in poultry, or FDA’s final rule on food traceability, enjoy broad public support, and they are critically needed now. In this new, uncertain legal landscape, consumers must demand more from federal regulators. 

We also need to learn to expect less from the CEOs and corporate lawyers responsible for thwarting consumer protections. As misguided as their efforts seem today, those who fought to prevent FSIS from keeping E.coli O157:H7 out of our hamburger meat were not evil misanthropes. They were just attempting to fulfill their duty under the law—the duty to zealously advocate for their clients, and ultimately, their shareholders. Fortunately for all of us, they failed. However, the Supreme Court’s decision overruling Chevron will create new opportunities for narrow corporate interests to trump the broader public good, including with respect to food safety.  

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