7 Pages Posted: 7 Aug 2007 Last revised: 19 Apr 2015
The mass marketing of foods derived from organisms modified through recombinant DNA technology has put extreme pressure on the interpretation and implementation of the United States' basic food safety law, the venerable Food, Drug & Cosmetic Act. In its classic form, the FD&CA reflects its Progressive and New Deal roots. It vests enormous trust in a specialized agency, the Food and Drug Administration, which is presumed to have nonpareil expertise over food safety. The political reality of GM foods, however, has placed the FD&CA and its implementation by the FDA in severe tension with the Organic Foods Production Act and with commercial speech doctrine.
Fear about food is one of the most deeply seated forms of behavioral protection against the natural world. It is precisely here, where food comes into contact with notions of good and evil, that the classic regulatory state must take its stand. The FDA's regulation of foods using rDNA technology upholds the best of the Progressive regulatory tradition and deserves to survive the challenge posed by the OFPA, the revived commercial speech doctrine, and contemporary consumer distrust of governmentally supervised review of science and safety.
Keywords: food, food safety, FDA, FD&CA, organic foods, labeling, commercial speech, consumer protection
Suggested Citation: Suggested Citation
Chen, James Ming, Beyond Food and Evil. Duke Law Journal, Vol. 56, No. 1581, 2007; University of Louisville School of Law Legal Studies Research Paper Series No. 2007-19. Available at SSRN: https://ssrn.com/abstract=1005001