HealthLawProf Blog

Editor: Katharine Van Tassel
Case Western Reserve University School of Law

Wednesday, October 27, 2021

Breaking the Rules: The Case for Applying the Administrative Procedure Act to the Dietary Guidelines for Americans

Caroline Farrington, Breaking the Rules: The Case for Applying the Administrative Procedure Act to the Dietary Guidelines for Americans, U. Mich. J. L. Reform (forthcoming 2021):

The U.S. Dietary Guidelines lack oversight and accountability, resulting in Guidelines that reflect food industry interests instead of modern science. The Guidelines Advisory Committee is notoriously rife with conflicts of interest, and thus most of the Guidelines scholarship has focused on reforming the Committee. The most recent 2015 and 2020 Guidelines, however, have shown that these reforms are insufficient, and agency-level change is necessary. In 2015, the Committee made several controversial recommendations related to red meat, ultraprocessed foods, sodium, and sustainability. Due to industry backlash, only the sodium recommendation survived in the final Guidelines published by the HHS and USDA Secretaries. In 2020, the Secretaries have, for the first time, predetermined a list of 80 topics that the Committee may consider. Absent from this list are the most contentious topics from previous years. There is little recourse because the Guidelines are not considered an agency action subject to the Administrative Procedure Act (APA), despite their vast impact on food assistance programs, healthcare practices, tort law, etc. This Note argues that these agency-level concerns are best addressed by the statute designed to govern agency activity: the APA. In this Note, I propose two ways to bring the Guidelines within the APA’s coverage. First, I propose a litigation pathway, arguing that the D.C. District Court relied on flawed reasoning when it held that the Guidelines are not an agency action subject to the APA. Second, I briefly describe some ways that Congress could amend the Nutrition Act (the statute governing the Guidelines). Applying the APA to the Guidelines would allow for public participation and public challenge, for greater transparency, and for greater efficiency and consistency across agencies. Evidence-based Guidelines may improve overall health outcomes and reduce healthcare costs, and would ensure that food assistance beneficiaries are not denied access to healthy foods by reason of relying on federal assistance. A robust set of Guidelines would improve public confidence in the recommendations, and would enable further food law reforms, such as amending the Farm Bill, that would make it easier for people to make healthy choices.

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