Last month, public comments were due in two relatively minor rulemaking actions promulgated by the Food and Drug Administration (FDA). The first rulemaking centers on the FDA’s standard of identity for frozen cherry pie. The second involves the agency’s standard of identity for French dressing.
Government-mandated food standards of identity (SOIs) establish specific rules for ways some foods may be labeled under a given name. They first came into being in this country in the years leading up to World War II. Since that time, the FDA has established SOIs for nearly 300 distinct foods.
The FDA isn’t alone. The U.S. Department of Agriculture (USDA), which regulates most commercial meat products sold in this country, has established around 80 SOIs for foods it regulates. For a food to be labeled as a “hot dog,” as I detail in my book Biting the Hands that Feed Us: How Fewer, Smarter Laws Would Make Our Food System More Sustainable, its ingredients must comply with specific USDA rules dictating exactly what a hot dog must, may, and must not contain. The SOI requires that any food labeled as a “hot dog”—technically, the USDA standard oddly combines the two words into one: “hotdog”— must contain “raw skeletal muscle meat.” It may (but need not) contain “poultry skin” and pig lips. And it may not contain more than 30 percent fat.
Standards of identity often make the foods consumers buy subject to politicized meanings proffered by food industry lobbyists and regulators. That’s because they are typically established with the input of the biggest players in an industry to protect those members of that industry from smaller upstarts. Protectionism is a lousy basis for any law—but particularly one that rewrites the dictionary while restricting the First Amendment rights of food manufacturers
While supporters claim SOIs such as these establish uniformity, boost consumer confidence, and prevent fraud, another of the main criticisms of standards of identity is that they are hopelessly and needlessly frozen in time. And, as the “hotdog” SOI suggests, such standards can be confusing or even surprising, and rarely reflect a definition of that same food one might find in a dictionary. If the purpose of a dictionary is to provide people with the clear and concise meaning(s) of a word, then standards of identity appear intended to provide something that differs in some important way or ways from those clear and concise definitions.
Against that backdrop, two things are particularly interesting about the FDA’s respective rulemakings for French dressing and frozen cherry pie. First, the agency is proposing to revoke both SOIs. Second, the FDA is doing so because the agency admits, rather explicitly, what critics of SOIs, me included, have said for years: SOIs don’t make sense.
Consider the FDA’s SOI for French dressing, the cloyingly sweet, mildly tangy, orange-hued salad dressing. According to the FDA’s SOI for French dressing, to be labeled as “French dressing,” a food must contain vegetable oil and at least one of vinegar, lemon juice, or lime juice. Ingredients French dressing may contain under the SOI include salt, sugar or other caloric sweeteners, spices, egg, food coloring, MSG, tomato paste or puree, ketchup, and sherry wine.
In proposing to revoke the SOI for French dressing, the FDA declares “the standard of identity for French dressing no longer promotes honesty and fair dealing in the interest of consumers[,] and revoking the standard could provide greater flexibility in the product’s manufacture, consistent with comparable… foods available in the marketplace.” In proposing to revoke its SOI for frozen cherry pies, the agency, using remarkably similar language, notes the SOI is “no longer necessary to promote honesty and fair dealing in the interest of consumers…. [and] revoking the standards of identity and quality for frozen cherry pie would provide greater flexibility in the product’s manufacture.”
To say that a regulation “no longer promotes honesty and fair dealing” is to say that these SOIs are deceptive.
They undermine and upend our traditional understanding about common foods. But they also do something even worse: they stifle innovation.
The FDA admits that when it writes that revoking the SOI “would provide greater flexibility in the product’s manufacture.” How so?
Take French dressing. Under the SOI, French dressing need not contain any sugar (nor other caloric sweeteners) because those ingredients are optional. But the SOI does not allow food manufacturers to add non-caloric sweeteners to French dressing. Hence, companies that wish to meet the demands of the growing number of consumers who prefer a product sweetened with a non-caloric sweetener (including anything from older choices such as Splenda to more modern options such as erythritol) are prohibited by the FDA’s French dressing SOI from offering these choices to consumers under a “French dressing” label.
While the FDA has been slow to understand the inherent flaws of SOIs, consumers seem to get it. Of the eight comments the FDA had received since December on its proposal to revoke the SOI for French dressing, none opposed the measure. Six individuals spoke out in favor of revocation. Another suggested that perhaps the government might have more important things on which to focus. The lone organization to comment on the proposed rule—the National Federation of Independent Business (NFIB)—made the reasons for its support of revocation crystal clear.
“Supply and demand in the free market generally will result in a good range of quality and prices for goods, including French dressing,” NFIB executive vice president and general counsel David Addington writes in the group’s witty comments in support of revoking the standard of identity for French dressing. “In the rare cases in which the operation of the free market does not protect consumers because a business engages in conduct with respect to French dressing that is fraudulent and poses a risk to health, state consumer protection statutes and tort law provide the appropriate remedy, without the need for federal regulations.”
As one might suspect, neither French dressing nor frozen cherry pies are unique in this regard.
“It’s not that some standards of identity are outdated,” I write in Biting the Hands that Feed Us. “The very idea of standards of identity is, itself, outdated. Food labels should be open to any and all statements about a food that aren’t demonstrably false.”
While the French dressing and frozen cherry pie rulemakings amount to little more than small change, they come as part of a broader FDA effort to review its SOIs. Though that sounds promising, the agency (along with the USDA) should do more than merely review its hundreds of SOIs. In order to eliminate protectionism, foster innovation, stop undermining traditional understandings of food, and benefit consumers, both the FDA and USDA should eliminate all food standards of identity at once.