The Varieties and Limits of Transparency in U.S. Food Law

Abstract

A central goal of the federal legal system for food is to ensure the integrity of representations made by sellers of food about their products. To achieve transparency, the law of food deploys three different kinds of regulatory strategies: prohibitions against fraud, compelled disclosures, and constraints on discretionary disclosures. Collectively, these constraints create an enormous legal structure governing representations about the food we eat. Nevertheless, the transparency achieved by law is only partial, and indeed sometimes serves only to conceal a lie. Resource limits at federal agencies charged with regulating food hollow out enforcement programs aimed at false or misleading representations. Regulatory fragmentation ensures that agencies with very different cultures and missions preside, confusingly, over the transparency of the food system. Lopsided participation by food producers before the agencies works distortions in rules on mandatory disclosures. In these ways, the existing legal system for food fails to deliver the transparency it seems to promise. Moreover, the existing legal system does not even try to achieve the level of food-related awareness that many in the contemporary food movement would desire, awareness that would entail knowledge about the environmental, animal welfare, and human labor consequences of our food supply. I propose three ideas for improving understanding of our food supply: allowance of citizen suits under federal food laws, frank acknowledgment by federal agencies that they cannot adequately enforce these laws, and a good deal more skepticism on the part of consumers toward the reliability and credibility of representations made to them about their food.

Keywords: food law, FDA, disclosure requirements, enforcement, transparency