A follow-up on preemption and the chaotic fragmentation of U.S. food regulation

By Michaela Oldfield

I have another case to share as a follow-up to my earlier post on preemption. It drives home a point that is important to keep in mind: food regulation is fragmented. If it wasn’t clear in the last post, the laws governing food safety and food labeling in general are distinct from the laws governing food safety and food labeling in meat and poultry.

In Del Real LLC. v. Kamela Harris, No. 13-16893, slip op. (9th Cir. Feb 12, 2016 ) the U.S. Court of Appeals for the 9th Circuit upheld a district court ruling that California state officials cannot enforce “slack fill” label and packaging requirements under state law because they are preempted by the federal Meat Inspection Act (FMIA) and the federal Poultry Products Inspection Act (PPIA).

Remember how the FMIA and PPIA have language prohibiting any regulation of “marking, labeling, packaging or ingredient requirements … in addition to, or different than” those mandated by federal law? 21 U.S.C. § 678,  21 U.S.C. § 467e.

If the suit had been about another type of food, the preemption outcome might have been different.

People talk about our food regulatory system being fragmented and dysfunctional – preemption is one example of how arcane policy choices made decades ago create a complicated regulatory landscape we see today. These few posts don’t  even begin to cover the other federal agencies with jurisdictional oversight, such as EPA, NOAA, and TTB (among many others), and how they relate to one another and state regulation. Imagine if you wanted to market gluten free, organic beer in several states in the North East. Could you even guess where to start? (Hint, call a lawyer and pay them to figure it out!)

So this raises the question, should the  jurisdictional chaos between feds and states and different agencies be resolved, and if so, how? It's a difficult issue that’s regularly debated. My point that I want to make is that in considering the options, an important step is for food law students and advocates to examine how the current system operates. An expedient policy change today could have long term, unintended ripple effects on other policies if their relationships are not fully understood!