Last week, the Food and Drug Administration announced long-awaited bans on certain food dyes and added new warnings about sugar in processed foods. Public health advocates cheered. Parents breathed a sigh of relief. But as someone who has spent years reporting on the intersection of federal science, health and regulation, I have a warning: In today’s legal climate, we are celebrating too soon.
The Supreme Court’s recent reversal of the Chevron doctrine means every new regulation is now living on borrowed time — and the FDA’s food dye ban may be its first casualty.
For 40 years, the “Chevron deference” gave federal agencies the benefit of the doubt in their interpretations of ambiguous laws within their areas of expertise. So when Congress writes broad rules, courts are to give agencies like the FDA, EPA and NOAA wide latitude to fill in the scientific and technical details.
But last year, in a move cheered by conservative legal activists, the Supreme Court struck down Chevron. Now, federal judges need not give such great deference to agencies as to what the law means, even on issues where the judges have no practical experience, such as food additives and clean air.
This is a landmark shift with potentially far-reaching consequences. While a regulation-friendly administration like Joe Biden’s can’t guarantee that new public health protections will survive the courts, Robert F. Kennedy Jr.’s FDA under the Trump administration should prepare to encounter similar hurdles.
The Chevron ruling presented us with a fitting preview of what happens when judges — as opposed to subject-matter experts at relevant agencies — determine the best way to interpret applicable regulatory frameworks within the law.
Justice Neil Gorsuch, in a concurring opinion overturning Chevron, referenced “nitrous oxide” as a pollutant from coal plants. Nitrous oxide — the compound best known for providing the temporary euphoria you may experience while a dentist fills a cavity — has nothing to do with the “nitrogen oxides” that actually come out of smokestacks and threaten respiratory health.
Hellbound and Down 