Has politics so invaded our lives that no topic remains uncontaminated? Even college football is not immune. So, I ask this provocative question—

How much should politics or our court system be involved in setting specific food policy?

It came up last year in the fight in Congress to reintroduce whole-fat milk into the school lunch program. State legislatures are banning specific food additives or putting the issue on state ballots. Courts have been actively engaged in lawsuits to decide questions usually reserved for regulatory bodies. Are these changes a good idea or not so good?

Politicians? The upside of politicians setting policy is that we the people get to decide! Majority rules so we live with policies set to satisfy most of the population. Major decisions settled at the federal level include the Farm Bill and Food Safety legislation. We are all concerned about the health of our food supply, food safety, and the presence of chemical additives in processed foods.

The current situation does not give us confidence in the political system at all levels but at the federal level in particular. The country is so polarized, that every issue becomes tribal. Congress is dysfunctional at present. It has had difficulty preventing a government shutdown, passing a Farm Bill, or even looking at issues we care deeply about. State legislatures are now getting into the act. Polls on selected issues point one way, the political party in power may disagree, and we become confused.

Another downside to politicians setting policy is that a patchwork of laws across the country makes it difficult to buy what we want. A product or type of product may be unavailable in our state but sold in an adjacent one. If we are close to the border, it’s not a big deal. We can always stock up next trip. If the distance is too long, we are out of luck. A major company might reformulate our favorite product for those of us living in California but not for the good people in Maine. Also, there may be undue influence by industry in the halls of Congress or our state legislatures as politicians like to support companies and their employees in their state or district. Do we have a politician we can contact who is willing to listen and support our point of view or are we on the wrong side of the issue or the dominant political party?

Courts? The upside of having the courts set health and safety policy is that it helps shield influence from politicians and Big Food. The Judge or the Jury decides after careful deliberations with presentations from both sides of the issue. Courts can determine whether a certain advertising campaign has crossed the line to mislead the public on the healthiness of specific food products. Or has a line of food products cased harm to specific segments of the population? Courts can also assess the health and safety of specific food additives in food products within the context of food regulations. Although courts make their decisions within the narrow confines of a specific case, their rulings can set precedents that can have far-reaching implications.

The current situation poses serious limitations. The plaintiff in a case must demonstrate standing and is likely to go court shopping to obtain a favorable ruling. Political manipulation appears to be more prevalent within the courts now than a few years back. A Texas court might see a case differently from an Illinois court. Appeals can drag out a final ruling for years.

The downside of letting the courts decide issues about the health and safety of food products is that they don’t set policy but only interpret issues within current laws and regulations. Expert testimony is bought and paid for by the lawyers and may not be illuminating with respect to the finer points of the case.  Judges and juries may or may not have a background in nutrition or food microbiology, but some background in these disciplines may be necessary in evaluating the quality of testimony before the court. Will the quality of the lawyers and their witnesses be the major determinant in the decision?

Bureaucrats? The upside of bureaucrats making these decisions is that they have technical expertise in the health and safety of foods. Their educational background varies from dietetics to epidemiology to food law to food science to medicine to nutrition to sociology to toxicology to numerous other disciplines. Rather than letting politics or business guide their rulings, they base their judgments in science and the law. Leadership in these agencies tends to promote consumer interests over business considerations.

Federal agencies are stretched thin. The bureaucracy is a tempting area to cut when budgets are tight. Increases in budgets tend to occur only when there is a major issue that dominates the news cycles. Bureaucrats are notorious for taking a long time to make decisions emphasizing deep study and input from a wide range of experts over making snap decisions.

The downside of bureaucratic decision-making is that agency scientists tend to be insensitive to consumer advocacy. Some of these scientists may have ties to industry because that is where such expertise is valued.

Selected cases may provide some insight into the matter ranging from whole milk in the school lunch program to banning of food additives by state legislatures to questioning the FDA’s ability to regulate the safety of drugs and food. Late last year whole milk was on the Congressional menu. Whole milk has been eliminated from the school lunch program. The House of Representatives which had trouble conducting the nation’s business found the whole milk issue too delectable to pass up. They passed legislation to put the drink back in school lunchrooms and sent it to the Senate. A majority of the politicians joined the dairy industry in supporting the measure. The Senate bill looked promising, but one Senator put a halt to the effort. She thought the nutrition and dietetic community should weigh in on the health implications for the nation’s children when re-introducing whole milk back into public schools. Expect a long, slow process before FDA gets back to Congress on the matter.

Elsewhere California will ban four common food additives associated with so-called junk foods starting in 2027. Illinois is considering legislation to discontinue sale of foods containing the same additives. New York has legislation pending to ban some of these additives as well as additional ones like titanium dioxide, already disallowed in Europe. The push is coming from consumer advocates, and there will probably be no referendum by the voters on these issues. I suspect that food scientists are working on reformulating profitable products with these additives while company financial departments are determining whether to discontinue items that are not profitable enough. Should politicians with little or no scientific background be making safety decisions or should we leave it to bureaucratic toxicologists? Will we have some foods legal in one state and not in others. Think fireworks!

A major case has been argued in front of the Supreme Court recently on the safety and legality of mifepristone, the most widely used drug to induce abortions. The case mixes ideology with the ability of a governmental agency to perform its duty. The ruling is expected by June. If the FDA is unable to regulate a specific drug, will the decision also affect its ability to determine the safety of other drugs and food additives? Such a decision could have long-range implications beyond the functioning of FDA.

Another example of governmental conflict includes the passage of the Dietary Supplements Health and Education Act (DSHEA) by Congress in 1994. The legislation opened the floodgates of over-the-counter supplements we have today while limiting the FDA’s ability to regulate them. And then there is the case of the potato. Is it a vegetable or a grain? Or is the effort a backdoor to reducing the presence of potatoes in processed foods? Reminiscent of the classification of ketchup as a vegetable. Should bureaucrats or the courts be able to overrule the principles of botany?

The referee in any issue of the health and safety of food is the government which is represented by the three branches: Executive (bureaucrats), Judicial (courts), and Legislative (politicians). Whom do you want to set policy? There are no other choices.

Take-home lesson. Politicians, the courts and bureaucrats all have a function in food policy. In an ideal world,

• Politicians would seek the best possible solutions to keep our foods safe, healthy, and wholesome when designing appropriate laws,
• Bureaucrats would balance science with concerns of consumers in developing and enforcing regulations, and
• Courts would base judgments to rein in violators of the law without attempting to make law itself.

We don’t live in an ideal world, but it is important that government seeks to keep us healthy, safe, and free to make decisions of what we can and should eat.

Coming soon: Lessons in Food Chemistry: Chemical Smells