Nutrition regulations likely will languish under Trump, but enforcement for food safety will increase

Expect fewer regulations and more enforcement under Trump

After eight years under the Obama Administration of a “whole lot of fun” for nutrition policy advocates, the next four years under the Trump White House likely will feel like a “swinging pendulum” to the far other extreme, according to a prominent food and drug lawyer. 

“The pendulum is going to swing back to the right whether we like it or not. That is what is going to happen. Less regulation, less activism, less funding,” Richard Frank, a founding principal with OFW Law, told attendees at the Consumer Federation of America’s National Food Policy Conference in Washington, DC, in early April.

“Look at the team players. You have Trump, Price, Perdu and Gottlieb. I don’t think the people in this room should have a whole lot of heart looking forward to the next four years,” he added.

He explained that the current shift in nutrition policy is a reaction to much of what the Obama Administration pushed through using, as Frank characterized them, potentially inappropriate methods.

“The Obama Administration was dedicated to sound science, except when that wasn’t convenient. Frequently, policy emanated from the President of the United States, the First Lady of the United States and even, on occasion, the chefs of the United States,” he said.

“For example, the dietary guidelines handpicked advisory committee in 2010 was fairly balanced and did a good job. In 2015, there were no industry representatives on the dietary guidelines advisory committee. This was stacked and packed with a highly liberal agenda” that resulted in recommendations “far outside anything we have ever seen in the dietary guidelines,” such as sustainability and soda taxes.

He also noted that under the Obama Administration “we got six years of a war on sugar” that was launched “with mediocre science at best, no IOM report at all looking at the science, with a procedure that happened so quickly you could hardly blink. Why? They wanted to get it done before the next administration so it wouldn’t fall in that six month period before the end of the administration.”

Despite this effort to launch changes so quickly, Frank suspects that these changes will fall under fire by the new administration.

He explained that under Trump the industry will see more of a deregulatory environment that could “roll back some stuff,” and trigger more state and local activity and more class action lawsuits as different players attempt to step in and fill the oversight gap created by less regulation.

Food safety will remain a top priority

Not all nutrition changes from Obama’s term are in the crosshairs, though, Frank said. He suggested that menu labeling, Food Safety Modernization Act related changes and biotech all will likely receive wide support.

Joseph Levitt, a partner at Hogan Lovells and FDA veteran, agreed that FSMA and food safety will remain a high priority under the new administration, but he said that states likely will need to help fund and enforce the regulations.

“The first step for FDA is to carry through the vision [of FSMA] in the implementation with inspections that are skilled and even handed, looking at the food safety system as a whole, not picking on little things, but picking on big things that matter,” he said, adding, “FDA cannot do that alone. It largely will rely on states” to help enlarge the scope of the inspectorate.

He also said FDA will need to push through a series of guidance documents implementing the FSMA regulations, “and everyone is hopeful that those will emerge soon because they kind of fill out the picture.”

Lack of funding will starve some initiatives

Likely many regulations or initiatives instituted under the Obama Administration but not yet pushed over the finish line will simply languish in purgatory for the duration of Trump’s leadership given the new President’s “skinny budget,” Michael Jacobson, co-founder and President of the Center for Science in the Public Interest, added at the event.

He explained the proposal to cut $1 billion in funding from FDA will devastate the agency.

“The FDA will be paralyzed. It won’t be able to do any kind of regulations. Even if they did get full funding, there are very important things that the FDA is the midst of or had on the drawing board that won’t get done,” he said.

For example, he worries FDA’s proposed sodium targets could languish without sufficient funding, or could be rescinded. Similarly, he doubts FDA’s efforts to create nutrition symbols for packaging to help consumers assess products’ health value will advance under this administration.

In response, he hopes there will be more grassroots efforts at the local level to fight back for these initiatives and to push nutrition education at the city and school level.

Levitt also reiterated that enacting many of FDA’s priorities under the proposed budget cuts will come down to a “big bump” in support from state involvement. But he is confident this can happen given FDA has trained many state inspectors in FSMA measures at the same time it has trained its own employees. That said, he added, it could take another four to five years before the inspection system is at full capacity.

Building on Levitt’s comments about increasing inspection, Frank added that the main take away when looking forward is that enforcement will be the priority and to achieve that likely few new regulations will be passed.

“The top three priorities for CFSAN will continue to be food safety, food safety and what don’t you understand about food safety. I don’t think that will change,” but what will change is “you will see a fair amount of enforcement because that is what Republicans do.”

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