The Food Statutes
| Author | Jason J. Czarnezki and Elena M. Mihaly |
| Pages | 223-240 |
Page 223
Chapter 13
The Food Statutes
Jason J. Czarnezki and Elena M. Mihaly
Food and agriculture policy does not exist in a vacuum, but is instead inextricably connected to a host
of other environmental legislation. While t he elds of food and drug law and agriculture law have
existed for some time, food law is a eld that only recently grew out of both of those disciplines,
among others. is chapter discusses a set of statutes that are specically geared toward food, orga nized
into three categories, (1) public health and safety statutes, (2) organic and origin labeling statutes, and
(3)legislation related to the National School Lunch Program.
e chapter focuses on statutes that deal with some of the most contentious issues surrounding the
relationship between food and the environment, including pesticide residue in foods and other health and
safety issues associated with the proliferation of commodity-driven industrial agriculture, and the future
of our school lunch programs, which rely on government-subsidized agriculture. e rst section of the
chapter discusses the Federal Food, Drug, and Cosmetic Act, the Food Quality Protection Act, and the
Food Safet y Modernization Act of 2010. e next section discusses the Organic Foods Production Act,
and country of origin labeling requirements that were rst enacted in the 2002 farm bill. e nal section
addresses the National School Lunch Program a s it has developed under the Richard B. Russell National
School Lunch Act, the Child Nutrition Act of 1966, and the Healthy, Hunger-Free Kids Act of 2010.
It is important to understand the environmental and social repercussions of these major federal food
statutes. A n expanding food market has stimulated increased government regu lation of food, as well as
increased the awareness of citizens and scholars alike. e attention that both the government and the pub-
lic are now giving to the safety of our food, how it is grown, where it originates, and its nutritional content
is a sign that food and agricu lture policy has secured a rm place in current public discourse.
A. Public Health and Safety
At its most basic level, federa l law and regulation seek to ensure t hat our food is sa fe. In doing so, federal
law not only provides for inspection of food facilities a nd recall of tainted food products, but also impli-
cates some of the social and safet y concerns that have become commonplace in the industria l food system
such as the consequences of pesticide usage and the impact of federal regulation on small farmers. e key
laws in t hese areas are the Federa l Food Drug, and Cosmetic Act, the Food Quality Protection Act, and
the recent passage of the Food Safet y Modernization Act.
e authors wish to thank Allison Marshall and Andrew Homan for their research assistance, and Mary Jane Angelo for allowing them to take
advantage of her expertise on the subject of pesticides, and to rely on so much of her earlier work, especially Mar y Jane Angelo, Regulating Evolu-
tion for Sale: An Evolutionary Biolog y Model for Regulating the Unnatural Selection of Genetically Modied Organisms, 42 W F L. R. 93
(2007). e chapter also relies signicantly on J J. C, E E: L, N I B (ELI
Press 2011); Jason J. Czarnezki, Food, Law & the Environment: Informational and Structural Changes for a Sustainable Food System, 31 U E.
L. R. 263 (2011); and Jason J. Czarnezki, e Future of Food Eco-Labeling: Organic, Carbon Footprint, and Environmental Life-Cycle Analysis, 30
S. E. L.J. 3 (2011).
Page 224 Food, Agriculture, and Environmental Law
1. The Federal Food, Drug, and Cosmetic Act and the Food Quality Protection Act
e Federal Food, Drug, and Cosmetic Act (FFDCA) is “the primary food law in the United States.”1 e
FFDCA is primarily administered by the Food and Drug Adm inistration (FDA), an agency charged with
ensuring that most domestic and imported foods products are “safe, nutritious, wholesome, and accurately
labeled.”2 e FFDC A,3 in conjunction with its amendment, the Food Quality Protection Act (FQPA)4
(and other statutes), seeks to regulate pesticides and defects in food.
a. Pesticides
e U.S. Environmental Protection Agency (EPA) registers pesticides, assesses their risk, a nd establishes
maximum residue limits (or “tolerances”) for quantities in food. e Food Safet y and Inspection Service
of the U.S. Department of Agriculture (USDA) monitors and enforces pesticide tolerance levels in meat
and poultry. FDA enforces tolerance levels in imported and domestic food, primarily fruits and vegetables.
e Federal Insecticide, Fungicide, and Rodenticide Act (FIFR A), rst known as the Insect icide Act of
1910, began as a labeling and consumer protection statute attempting to abate false claims about pesticide
eectiveness. (See Chapter 8 for a full discussion of FIFRA.) Its modern formulation, passed in 1947 and
signicantly a mended in the 1970s, mandates pesticide registration a nd the setting of tolerance levels for
pesticide in food. If a pesticide is not registered, it is prohibited from being sold or distributed.5 FIFRA
directs EPA to register pesticides only to the extent that their use will not cause “(1) any unreasonable risks
to man or the environment, taking into account the economic, social, and environmental costs and benets
of the use of any pesticide, or (2) a human dietary risk from residues that result from a use of a pesticide in
or on any food inconsistent with the standard [under the FFDCA].”6 e Act’s denition of “environment”
includes “water, air, land, and all plants and man and other animals living t herein, and interrelationships
which exist among these.”7 Registration encompasses providing proper labeling and directions for use.
When EPA reviews a pesticide for re gistration u nder FIFRA, risk determination i s only one con-
sideration among others. EPA will not register a pesticide under FIFRA unless the applicant receives
tolerance level approval or an exemption from establishing tolerance under the FFDC A. In addition to
regulat ing pe sticides under FIFRA, EPA is a lso responsible for regulating pesticide residues in human
food or animal feed under FFDC A.8 Pursu ant to §408(a) of FFDCA, a pesticide chemical re sidue in or
on food is not considered to be safe unless EPA ha s issued a tolerance for such residue and the residue
is within the toler ance limits.9 EPA may issue an exemption from the requirements of a tolerance if it
determines that “there is a rea sonable certainty that no ha rm will result from agg regate exposure to t he
pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which
there is reliable information.”10
1. P A. C, G F L R 57 (2005); see also 21 U.S.C. §§301 et seq.
2. S A. S, F, F, S: R A L 619 (2010). FDA is not responsible for meat
and poultry safety. Id.
3. Federal Food, Drug, and Cosmetic Act, 21 U.S.C. §§301 et seq.
4. Food Quality Protection Act, Pub. L. No. 104-170 (1996).
5. Id. at 1.
6. Section 136(bb) denes the term “unreasonable adverse eects on the environment” as any “unreasonable risk to man or the environment,
taking into account the economic, social, and environmental costs and benets of the use of any pesticide. . . .” Id. §136(bb).
7. Federal Insecticide, Fungicide, and Rodenticide Act, §§2(j), 3; 7 U.S.C. §§136(a), 136(j).
8. Mary Jane Angelo, Regulating Evolution for Sale: An Evolutionary Biology Model for Regulating the Unnatural Selection of Genetically Modied
Organisms, 42 W F L. R. 93, 128 (2007), citing 21 U.S.C. §346 (2000). e Reorganization Plan No. 3 of 1970, which created
EPA, granted EPA authority to establish tolerances for residues of pesticide chemicals in foods and animal feeds. Reorganization Plan No. 3
of 1970, 3 C.F.R. §199 (1970 Comp.), reprinted in 5 U.S.C. app. 184, and in 84 Stat. 2086 (1970-1971). Regulatory authority over other
nonpesticidal substances in foods and animal feeds was left within the jurisdiction of FDA.
10. Angelo, supra note 8, at 128, citing 21 U.S.C. §346a(c)(2)(A). In 2001, EPA adopted an exemption under this standard for pesticidal residue
in plant-incorporated protectants. 40 C.F.R. §174.508.
To continue reading
Request your trial