Freshly Curated, Never Brominated

While the recent extreme weather has a LOT of people talking, a couple of regulatory agencies tossed in words of their own as well this week.

• The Supreme Court put a damper on federal regulation.
• A hurricane, heat waves and floods conspire to confuse growers.
• The FDA finally bans BVO.

Another Supreme Shake-up

On June 28, the Supreme Court of the United States (SCOTUS) ruled in favor of a herring fishing company that opposed the requirement of government-designated observers to ride onboard during fishing trips. The case itself paled in comparison to the ruling, which asserted courts should have the final say on interpreting vague laws — as opposed to regulatory agencies, such as the EPA and FDA. This prompted interests from across food and agriculture to contemplate the implications of weaker federal regulatory power.

• Agriculture industry groups welcomed the ruling. National Cattlemen’s Beef Association President Mark Eisele commented, “Cattle producers have experienced numerous instances of federal agencies enacting overreaching regulations on our farms and ranches, exceeding their authority granted by Congress.”
• Environmentalists and unions lamented that the decision overturns “Chevron deference,” which was first outlined by SCOTUS in the 1984 Chevron v. Natural Resources Defense Council (NRDC) case. David Doniger of the NRDC explained the older doctrine: “If Congress has left an agency with a policy choice, the agency should get to make it, not the courts.”
• In Food Safety News, Thomas Gremillion of the Consumer Federation of America opined that the ruling discourages rulemaking, which “Would be bad news for consumers, who face a gauntlet of preventable harms in the food system not so much because federal regulators enact bad policies, but because they do not take any action at all.”
• Meanwhile, Food Safety News editor Dan Flynn wrote that the move “does not end food safety regulation, but it may make it more difficult.” 
• DTN policy editor Chris Clayton considered how shifting interpretations could affect the Packers and Stockyards Act, an antitrust law focused on the meatpacking industry.

Our Takeaway: A separate SCOTUS ruling on bank and credit card fees extended how long a company has to challenge a law from six years after a law was enacted to six years after the company is affected. Expect a very litigious future for food and agriculture regulators.

Forecast: Hot & Buggy

These headlines say it all. Summer 2024 weather is all over the place, making it more unpredictable to grow crops. Too hot, too dry, too wet and too early for these hurricanes. To top it off, billions of grasshoppers have invaded California, emboldened by dry conditions. 

• Major crop areas grapple with too much or too little rain | Food Business News
• Record-breaking heat broils much of western U.S. | The New York Times
• The Whataburger app is essentially tracking Houston’s ongoing power outages | Eater
• Texas restaurants cope with Hurricane Beryl aftermath | Nation’s Restaurant News
• Flooding across the Midwest may have wiped out up to 1 million acres of crops, new estimates now show | The Scoop
• What farmers need to know about OSHA’s proposed extreme-heat standards | DTN/The Progressive Farmer
• 2 governors confronting extreme heat take opposite approaches to safety rules | Politico
• Cattle ranchers and crop farmers brace for a ‘biblical’ grasshopper invasion in California’s north | Los Angeles Times

Our Takeaway: Back when we started ranking important food and agriculture topics, the weather made sporadic appearances in our Top Ten Topics, primarily during harvest. In recent years, weather has become a four season sport. See for yourself in our interactive Market-driving Topics graphic.

Brooming Brominated

On July 2, the FDA revoked authorization for the use of brominated vegetable oil (BVO) in beverages after recent assessments found the ingredient could cause “adverse health effects in humans.” Food Ingredients First noted BVO, introduced in the 1920s, can be used as a stabilizer in citrus-flavored beverages. The beverage industry has a year to comply, but major brands have already removed BVO — PepsiCo in 2020 and Coca-Cola in 2014.

• Supermarket Perimeter quoted Sarah Gallo of the Consumer Brands Association: “Revoking the regulation that authorized the use of [BVO] in food is an example of FDA using its risk and science-based post-market authority. This process shows that FDA’s system on reviewing food additives is active and working.” 
• Food Processing, on the other hand, had less praise for the agency, tweeting: “After warning for months it was about to do so, the FDA officially revoked the regulation.”
• While calling the move a “significant step toward protecting public health,” the Environmental Working Group fumed that it “took decades of regulatory inaction to protect consumers from this dangerous chemical” and called for more rigorous oversight of food additives.
• NBC’s Today posted a list of beverages that contain BVO. TLDR: It’s all private-label and discount brands.

“There is, however, a pretty simple fact that [food documentary] programming feels hesitant to really reckon with: Most people do not eat for the purpose of achieving maximum health. We eat things because they taste good, because they are convenient, because they are affordable, because they are satisfying.”

Nicholas Cannariato, freelance writer (The New York Times)