Retooling American Foodralism

Abstract

Food policy action on the state and local levels is necessary and important for at least two reasons. First, the complexity and breadth of our nation’s food system requires layered policy and regulation; the system’s functioning needs both national uniformity and local distinctions. Second, there are crucial gaps in national regulation that provide rich opportunities for state and local action. These gaps, in areas such as the regulation of antibiotics in animal feed and the oversight of food additives, are not priorities of the federal agencies that oversee food. Although the Food and Drug Administration (FDA) has made nutrition policy a priority for 2018, the current administration’s explicitly articulated anti-regulatory agenda makes it unlikely that these previously underprioritized areas will be addressed.

State and local food policy action allows regional difference, but also has the potential to spark national change. For example, at least eight localities have enacted controversial sugary drink taxes as a means of addressing the obesity crisis, a strategy that has not been embraced nationally, while initiatives such as New York City’s trans fat ban and menu labeling regulations have been adopted as national policy. Subnational action, however, can also cause friction; state and local laws may interfere with federal authority and national regulatory uniformity, or with the methods by which other states or localities wish to regulate food.

In this Essay, we provide a brief overview of the food regulatory system in the United States and then describe several areas where states currently have the opportunity to take action to fill federal gaps. We conclude by arguing for an approach that involves a retooling of American foodralism to embrace a complementary regulatory relationship between the federal and state governments that respects the need for uniformity, but properly allows states and localities to more actively participate and regulate in the interests of their citizens for the benefit of the public health, safety, and welfare. In this “dynamic federalism,” the states can experiment and function as the laboratories of democracy. This is not only in keeping with our country’s historic notions of federalism, but is practically necessary given current gaps in federal oversight.

Keywords: food law, food policy, federalism, nutrition, additives, food safety, public policy