Food Rules Potential Targets for Elimination or Revision

Ever since the election we have been asked which Obama Administration regulations and executive actions are likely to be stricken by the new Trump Administration or the 115th Congress.  Will the focus be on the rules issued since mid May of this year, as provided for by the Congressional Review Act of 1996, or is it likely to go further?

Now, the Freedom Caucus, an active group of conservative Republican members which will be led in the 115th Congress by Congressman Mark Meadows of North Carolina, has announced its recommendations.  In its report entitled “First 100 Days: Rules, Regulations, and Executive Orders to Examine, Revoke, and Issue,” the House Freedom Caucus identifies 228 specific matters to examine, including several that impact food and nutrition policy.  Those include:

  • From USDA’s Food and Nutrition Service:
    • National School Lunch Program and School Breakfast Program: Nutrition Standards for All Foods Sold in School as Required by the Healthy, Hunger-Free Kids Act of 2010; and
    • Child and Adult Care Food Program: Meal Pattern Revisions Related to the Healthy, Hunger-Free Kids Act of 2010.
  • From the Food and Drug Administration:
    • Food Labeling: Revision of the Nutrition and Supplement Facts Labels;            
    • Mitigation Strategies To Protect Food Against Intentional Adulteration;
    • Food Labeling: Serving Sizes Of Foods That Can Reasonably Be Consumed At One Eating Occasion; Dual-Column Labeling; Updating, Modifying, And Establishing Certain Reference Amounts Customarily Consumed; Serving Size For Breath Mints; And Technical Amendments;
    • The FDA Food Safety Modernization Extension and Clarification of Compliance Dates for Certain Provisions of Four Implementing Rules;
    • Food Labeling; Calorie Labeling of Articles of Food in Vending Machines; Extension of Compliance Date; and
    • Amendments to Registration of Food Facilities.

Others not on this list, but mentioned as possible candidates for review, include the recent FNS Final Rules “Enhancing Retailer Standards in the Supplemental Nutrition Assistance Problem (SNAP)” and “Photo Electronic Benefit Transfer (EBT) Card Implementation Requirements,” along with FDA’s “Food Labeling; Nutrition Labeling of Standard Menu Items in Restaurants and Similar Retail Food Establishments”.

How might this be done?

Certainly action pursuant to the Congressional Review Act of 1996 is possible.  While this procedure may not reach all of the rules identified above, it could still be one of the earliest efforts in the 115th Congress.

Limitations on Appropriations bills have been used in the past, saying none of the funds appropriated or otherwise made available by this or any other Act shall be used to pay the salaries and expenses of personnel to carry out a variety of activities, or none of the funds made available by this or any other Act may be used for specified activities.   Remember that the Federal Government is operating under a Continuing Resolution (CR) through April 28.  No new limitations were included in this CR, but there certainly has been talk about adding other limitations in the final FY 2017 Agriculture, Rural Development, Food and Drug Administration, and Related Agencies bill.

And there is always direct legislative action. 

While neither the Senate nor the House completed action on the reauthorization of Child Nutrition programs in the closing days of the 114th Congress, both bills contained language that would have loosened some of the regulatory limitations imposed following the adoption of the Healthy, Hunger-Free Kids Act of 2010.  Tighter “Target 2” sodium standards garnered the most attention in both bills.

The House and Senate Agriculture Committees are scheduled to begin work on the Farm Bill which is scheduled for reauthorization in 2018.  The House Committee has held 16 hearings on the Past, Present, and Future of SNAP, and issued its report with findings that will serve as the basis for legislative action.  Certainly the vendor stocking rule noted above could be reviewed since both the House and Senate Committees expressed concerns about this rule when first proposed, and may have further thoughts about the final rule recently issued.

So the 115th Congress may have an extensive regulatory review agenda.  We will keep you posted on pertinent developments.

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