Incoming political administrations always shake things up as the torch (and all its unresolved legislation) is passed from one hand to another, but with this year already being as unprecedented as it is, speculation on where food labeling regulations may stand at the end of it is widespread. In the end, however, commissaries and retailers alike would do well to proceed as usual, and for a number of reasons.
First off, there’s good cause for all of this concern and discussion. We have a maverick businessman running the most powerful political office in the world along with a Republican-controlled Congress. And if there’s one thing that most can agree on it’s that both the GOP and President Trump are big on deregulation, with the latter, during his time on the campaign trail, calling it a “cornerstone” of his upcoming administration, and later saying that as many as 70 percent of federal regulations are unnecessary. Indeed, some dismantling has already begun, but it’s anyone’s guess as to how far it will go.
Of course, FDA’s menu labeling rules under FSMA are to go into effect on May 5, and as of press time the industry’s countermove, the Common Sense Nutrition Disclosure Act, has passed the House but remains in the Senate. Considering that the May deadline has been pushed back for over two years now and the incoming administration’s stance on such regulation in the first place, it’s enough to make anyone wonder what the implications are for those who supply, manufacture and sell prepared foods. Many, in fact, are counting on the loosened grip in hopes of passing the Common Sense Nutrition Disclosure Act.
“I’d characterize us as cautiously optimistic that the new leadership at the FDA will recognize the problems inherent in the current rule,” says Jon Taets, director of government relations at the National Association of Convenience Stores, “and that the one-size-fits-all approach the current FDA took does not work in the real world where the retail space does not operate like a chain restaurant. They’ll have a number of options available to them to put the brakes on this, but at a minimum we’re hoping to see a further delay to allow Congress time to enact the CSNDA. We remain confident that the votes exist in Congress to pass that legislation either on its own or as a part of the appropriations package Congress will have to pass before the end of April.”
Of course, it’s not just about food labeling in the retail space that everyone is worried about, but labeling all down the supply chain under FSMA. Many think we’ll know more within the next month, as the first 100 days of any new administration are highly scrutinized by pundits and professionals alike, who try to divine what those days may say about the future. And according to The Hill, a Washington, D.C., political publication, FSMA is one of 14 regulations that could be undone by President Trump.
But not everyone agrees that this will happen — after all, the demand for standardized, detailed food labeling, be it in the retail space or on the label itself before it hits the shelves, came from the ground up.
“The incoming administration will pose new challenges for the food world,” acknowledges Phil Lempert, industry analyst and writer of the blog supermarketguru.com. “Over the past eight years, we have seen a remarkable shift, as food companies are listening more intently to what consumers are saying about removing certain ingredients. They have done a terrific job in adding transparency and putting a new focus on sustainability. Will all this change with a Trump administration that has vowed to ease labeling and food safety requirements? I think not.”
Yet if they want to, Trump and the GOP Congress do have options when it comes to reversing their predecessors’ work. It isn’t easy, but it can be done in one of two ways.
First, Republicans have one tool in particular at their disposal when it comes to undoing what a previous administration did, limited as it is — The Congressional Review Act. This allows them to cut down rules within 60 days of their being issued. Second, for those put in place before that time period, President Trump can roll out a number of stop-gaps, including instructing agencies like FDA and USDA to revisit regulations or issue industry guidance to make certain regulations have low- or zero-priority status for those it affects.
Just to put this into perspective, according to FDA, the nutrition label is on about 800,000 different food items, and over three-quarters of Americans check these labels before buying. Considering how long it can actually take to stop or downgrade legislation that has gotten this far into its implication, not to mention the fact that consumers are unlikely to change their minds about the subject, there are plenty of experts like Lempert that also expect very little to change.
“I expect there will be less regulation in the near term,” concedes Jim Hertel, senior vice-president of Willard Bishop, an Inmar analytics company. “However, some companies may opt for ingredient and label changes in order to differentiate their brands. Other influences are likely to come from social pressures as today’s ‘connected consumers’ look for healthier items with limited ingredients.”
And those connected consumers aren’t about to fade away; on the contrary, there are seemingly more being “born” every day, leaving many — both those in the industry and those who follow and analyze it — to think of food label requirements as simply a matter of good business.
“Consumers have a new food voice and are being vocal and voting by selecting those products on the shelf that mirror their values,” Lempert says. “Regardless of easing or eliminating certain regulations, the consumer will not forget all they have learned, nor will food companies stop listening to them.”
So in a nutshell, pay attention, proceed with caution, and stay the course. Unprecedented as this last political year has been (and no doubt will continue to be), the fact is that an issue as large and invested as that of FSMA and FDA menu labeling regulations will proceed in one way or another, be it through government regulation or industry self-monitoring. And even if the new administration does decide to take it down, manufacturers and retailers would do well to remember that it will take just as much time, if not more, to undo the rules as it took to make them in the first place.