Food policy is the backbone of our food system. Decisions by policymakers at all levels — federal, state and local — can have a significant impact on everything from what crops are grown to how much food costs and what we do with the excess. It is important to understand the laws and regulations behind our food system, because these are public policies that should serve the public interest.
Food policy is how government actions — including legislation (the making of laws) and regulations (how those laws are implemented) — shape our food system. These policy decisions occur at all levels of government, from international trade agreements that determine the price of food imports and exports to local school district wellness policies that establish the types of foods that can be sold at bake sales.
Food policy decision makers exist at all levels of government and across all branches. While the judicial arm plays an important role in interpreting the laws governing our food system, policy generally focuses on the actions of the legislative and executive (or administrative) arms of the government at the local, state and federal level.
Elected representatives — whether U.S. senators, state assembly members or city councilors — can write and pass legislation (laws, acts, statutes and ordinances). Generally, legislation outlines and delegates authority to specific agencies to implement and enforce the law. An example of food policy that gets made through the legislative branch is New York State’s 2019 Food Recovery and Recycling Act, which requires the state’s largest food waste generators to donate wholesome food and to recycle food scraps.1
Elected executives — the President, Governors, Mayors or County Commissioners —appoint the leaders of administrative agencies, such as the Department of Education (at the federal, state and local levels). These agencies create regulations that determine how to implement and enforce the laws passed by the legislative branch. An example of food policy that gets made through the Executive or Administrative Branch is in Maryland: the Department of Agriculture issued regulations that require agricultural products marketed as “local,” “locally-grown,” “regional,” etc. to disclose a state of origin and to impose a fine of up to $500 for violations.2
|Regulation Federal Nutrition and Labeling Education Act of 1990 (NLEA) gives the FDA explicit authority to regulate nutrition labeling and health claims for most packaged foods.||The FDA’s Nutrition Facts Rule implements the NLEA and establishes what information must be included on nutrition labels and how they must look. The Rule was updated in 2016.|
In the United States, federalism is the division of powers among the federal government and state governments (and, in turn, their local governments) — essentially determining who gets to control what. Because food policy spans so many areas of the law, it highlights the interplay between different levels of government. Depending on the issue, each level of government will have differing degrees to which it can — or cannot — take action.
Federal policy often serves as a baseline, setting basic requirements and giving state and local governments the authority to create more stringent requirements or to provide additional incentives or funding. Federal law, for example, offers tax incentives and basic liability protection for food donations. However, many states have strengthened these policies by passing their own laws that go even further, whether by increasing the tax incentive or by expanding the scope of who is eligible for liability protections.5
State and local governments can also set their own procurement policies: the guidelines, standards, and processes that institutions have to follow when using public funds to obtain goods and services, including food. Governments can adopt procurement policies that give preference to certain types of vendors, such as local or sustainable farmers. Procurement policies extend beyond government offices only — any entity that receives local, state, or federal funding generally has to follow the corresponding procurement policies. While most public schools receive federal funding for school meals, federal school food procurement law acts only as a baseline and explicitly allows state and local governments to set additional requirements, particularly ones that preference local foods.
There is no single, federal food agency. Instead, 20 different federal departments and agencies play some role in shaping our food system.6 Take food safety, for example, which is notoriously convoluted in how it is governed. At least 30 federal laws touch on the issue of food safety.7 While 15 federal agencies play some part in implementing these laws, the regulation of food safety largely falls on the US Food and Drug Administration (FDA) and the US Department of Agriculture (USDA). But the division of authority between the two is not always neat: while the FDA regulates the safety of eggs in the shell, the USDA regulates the safety of eggs removed from the shell; however, the USDA also runs a voluntary marketing program for eggs in the shell.8
The federal regulation of food goes far beyond food safety and includes agencies, such as the Federal Trade Commission (FTC) and the Federal Communications Commission (FCC), which regulate the advertising of food, as well as the Environmental Protection Agency (EPA) and Department of interior (DOI), which regulate agricultural lands and practices.9 Given this regulatory complexity, some advocates have called for greater coordination and collaboration across all agencies, especially if the United States is to effectively address system-wide crises, such as food insecurity, antibiotic resistance and climate change.10
As described on our Farm Bill page, the omnibus farm bill is a cornerstone of US food policy and gets reauthorized by Congress every five years. Over seventy-five percent of farm bill spending goes to the Supplemental Nutrition Assistance Program (SNAP, formerly known as food stamps), while most of the remaining funds support farmers through crop insurance, subsidies and grant programs.11
The Child Nutrition Reauthorization (CNR) also occurs every five years and establishes the funding and policy for federal child nutrition programs, including the National School Lunch Program (NSLP), School Breakfast Program (SBP), Summer Food Service Program (SFSP) and Special Supplemental Nutrition Program for Women, Infants, and Children (WIC).12 Together, these programs are a critical source of nutrition for over 40 million children; NSLP alone serves 30 million children each year.13
At the legislative level, the farm bill and CNR provide critical opportunities to revisit and reinvest in high-level food policy priorities every five or so years. Yet, the implementation of food policy programs in the farm bill, CNR and other federal laws takes place at the federal agency level on a daily basis.
The following are examples of policies and programs that occur outside of legislation, but play an important role in shaping our food system.
Under the National Nutrition Monitoring and Related Research Act, HHS and USDA must jointly publish the Dietary Guidelines for Americans every five years.14 The Dietary Guidelines serve as the basis for federal food, nutrition and health programs and are widely used by nutrition professionals and policymakers at all levels of government.15
Authorized by the Organic Foods Production Act, the USDA runs the National Organic Program (NOP) to develop the regulations, policies and enforcement mechanisms for USDA-certified organic products.16 The NOP receives input from the National Organic Standards Board, an expert advisory board that meets twice a year to make recommendations, vote on proposals and review the National List of Allowed and Prohibited Substances.
Under the Federal Food, Drug, and Cosmetic Act and the Nutrition Labeling and Education Act, the FDA has the authority to regulate labeling on most packaged foods, including determining what information must be included on nutrition labels and defining terms such as “low fat” and “healthy.” One eagerly-anticipated regulatory definition is for “natural.” Widespread use of the word — found on products like Cheetos and Froot Loops — has given rise to consumer confusion, 300 reported lawsuits and repeated calls for regulation.17 In 2015, the FDA initiated rulemaking for the term “natural” and received nearly 7,700 comments; however, the agency has yet to take further action.18
While the scope of the federal government’s power to regulate our food system can seem broad, it includes some important gaps that state and local governments can fill. The federal government’s regulatory authority is limited to food that travels in interstate commerce, which means that state and local governments maintain a lot of authority when it comes to regulating retail food stores and restaurants. States can also regulate in areas that have not been explicitly addressed by the federal government. For example, before the passage of the Affordable Care Act (ACA) in 2010, the federal government did not regulate menu labeling for large national chains, so states like California had calorie menu labeling laws that applied to large national chains. However, once Congress does decide to exercise its constitutional authority and regulate, the federal law generally overrides — or “preempts” — the state law, as was the case with the ACA and state menu labeling laws.
States function as smaller versions of the federal government, with different agencies or departments often mirroring their federal counterparts. While the structure and division of powers vary across different state governments, most states have a Department of Agriculture, Department of Public Health, Department of Education, Department of Human Services and Department of Environmental Protection/Quality.19 State agencies can often develop regulations that go further than — or sometimes contradict — federal regulations. For example, while the federal Environmental Protection Agency has found that glyphosate is “not likely to be carcinogenic to humans,” California’s Environmental Protection Agency recently added glyphosate to its list of carcinogenic chemicals (known as the Proposition 65 List).20
Some states have undertaken more coordinated food policymaking through state food system assessments, state food plans or charters and state food policy councils. For example, Minnesota’s Department of Health launched its Food Charter initiative in 2013 with support from federal and private grants.21 Organizers spent nearly a year collecting public input and holding town hall-style events across the state.22 The Food Charter was published in 2014 and serves as a policy roadmap to “provide Minnesotans with access to affordable, safe, and healthy food regardless of where they live.”23 Today, implementation of the Charter is overseen by the Minnesota Food Charter Network, with support from the Department of Agriculture, Department of Health, University of Minnesota, and Blue Cross Blue Shield of Minnesota.24 The Network published a Food Access Planning Guide, spurring 34 Minnesota cities and six counties to include food access language in their comprehensive plans.25
While the federal government has authority over foods sold across state lines, state governments can regulate food sold within state lines. This is important for the growing local food sector, expected to reach $20 billion in sales in 2019.26 Local food is not just fruits and vegetables, but also includes “value-added,” prepared foods such as jam, chocolates and baked goods. When these goods are made at home or outside of a certified commercial kitchen, regulators refer to them as “cottage foods,” and the implication is that they are made by small purveyors.
Until recently, most states prohibited the sale of cottage foods because of food safety concerns. However, states are increasingly passing cottage food laws or “food freedom” laws that loosen regulatory oversight of cottage foods, allowing smaller food business owners to operate with fewer overhead costs and restrictions. In 2017 and 2018, ten states enacted cottage food-related laws.27 Some states, such as California, have detailed laws that distinguish between different types of producers and foods, imposing labeling requirements and a limit on annual gross sales.28 Wyoming’s Food Freedom Law, on the other hand, takes a permissive approach and exempts all producers of nearly all foods from licensing, permitting, certification, packaging and labeling regulations, but the food has to be sold directly to an “informed end consumer” for home consumption.29
Local government initiatives are the frontlines of food policy innovation and experimentation. Food opportunities, challenges and consequences often feel more immediate at the local level where it can also be easier to enact change. Policies piloted at the local level have, in many cases, served as models for state and federal policy change. For example, labeling calories on fast food menus, banning the use of trans fats and doubling the value of SNAP benefits when used at farmers markets (“double up food bucks”) are all policies that started at the local level, but now exist at the federal level as well.30
Local governments have also taken the lead in highlighting the importance of food as a distinct area of policy, and centralizing food policy leadership and oversight. A number of cities — including Baltimore, Boston, Madison, New Haven, New York, San Francisco and Washington, D.C. — have appointed food policy directors or food experts to serve in local government.31 For example, Baltimore’s Food Policy Initiative was founded in 2010 to “improve health outcomes by increasing access to healthy affordable food” and operates as a collaboration between the City’s Department of Planning, Office of Sustainability, Health Department and Development Corporation.32
Local government authority is determined by each state’s constitution and laws.33 Therefore, a local government’s control over food system issues varies greatly from state to state and, even within the same state, from locality to locality. Local governments also have to worry about “preemption” by state laws. This can easily thwart food policy progress at the local level. For example, California recently put a halt to one of the boldest trends in local food policy: soda taxes. Berkeley, CA was the first locality, nationwide, to pass a soda tax in 2014, followed by three other California cities.34 However, after beverage companies poured $7 million into lobbying, California passed a law in 2018 that preempted any new local food and beverage taxes for twelve years.35 States can also preempt local zoning laws. Iowa, one of the country’s largest factory farming states, passed a law that preempted all counties from regulating factory farms.36 Even when Iowa counties have attempted to regulate factory farms purely to protect the public health of local residents, Iowa’s Supreme Court has ruled that such laws are preempted by the state law.37
Local governments generally maintain broad authority to regulate local land use, typically through planning and zoning. This authority can be particularly useful in incentivizing agricultural production, including urban agriculture. While city zoning codes were originally developed to rid cities of agriculture, a number of cities have responded to demands for greater access to fresh, affordable foods and revised their zoning codes to permit agricultural activities under certain conditions. For example, Detroit updated its zoning code in 2013 and established definitions for urban gardens and urban farms, allowing urban gardens “by right” (no permit needed) in all residential and business districts and urban farms by right in some zones and by permission in others.38
Local governments — and, in particular, local school districts — have a variety of opportunities to improve school meals. Under federal law, schools receiving federal funding for meals must develop school wellness policies. USDA regulations stipulate what topics wellness policies must address, including goals for nutrition promotion and education, as well as standards for all foods provided and sold to students during the school day. These local standards can exceed federal standards. For example, San Francisco’s School District used its wellness policy to phase out chocolate milk (allowed under federal law) for elementary and middle school students.39 School districts can also apply for federal and state grants to increase access to healthy foods, including farm to school grants and equipment assistance grants.
Local governments and school districts can also control how they source, or procure, food. Local government institutions and school districts purchase large quantities of food and, in aggregate, can have a significant impact on their local food systems. Public procurement processes are often quite complex in order to ensure transparency and accountability; however, they can be amended to favor local producers and healthy foods. For example, Cleveland provides a price preference of two to four percent for businesses that source products locally and/or are certified sustainable.40 Omaha’s School District provides a one percent price preference for local (produced within 240 miles), all-natural chicken.41 A number of major US cities have also joined the Good Food Purchasing Program, which provides a “a comprehensive set of tools, technical support, and resources to support public institutions in shifting towards a procurement model that puts local economies, nutrition, a valued workforce, and environmental welfare front and center.”42
Non-governmental institutions also provide opportunities for policy change. Many private institutions, like their public counterparts, provide food to large numbers of people — e.g., private hospitals, universities, prisons and corporations. Decisions about how these institutions purchase, promote, restrict and label food can have a significant impact.
Hospitals are increasingly seeking to improve the nutritional value of the foods they serve and sell. Nearly 600 hospitals have signed Health Care Without Harm’s Healthy Food Pledge, which covers everything from procuring local foods to increasing fruit and vegetable servings and reducing food waste.43 In 2017, the American Medical Association passed a resolution that encourages hospitals to offer healthier beverage options in place of sugar-sweetened beverages.44 Hospitals are listening: Geisinger Health in Pennsylvania, for example, recently eliminated sales of sugary drinks from its 13 medical campuses.45
Research shows that the wide variety of date labels — e.g., “sell by,” “best by,” “best if used by,” etc. — causes customer confusion and contributes to food waste.46 With the exception of infant formula, federal law does not regulate these dates; manufacturers therefore have discretion over date labeling and typically use dates that reflect quality and freshness, not safety.47 In 2017, two large industry groups — the Grocery Manufacturers Association and the Food Marketing Institute — launched a voluntary initiative to encourage manufacturers and retailers to use one of two labels: “BEST If Used By” (for quality) and “USE By” (for safety).48 According to a 2018 Grocery Manufacturers Association survey, eighty-seven percent of products are now using this streamlined language.49 The FDA supports this industry effort and recently published a non-binding guidance document endorsing standardized use of “BEST If Used By” to signal quality, not safety.50
It is important to note that the government does not — and should not — act alone in making critical decisions that affect our food system. Throughout the lawmaking and rulemaking (regulations) processes, there are opportunities for public input. While these processes can be dominated by well-financed industry groups, advocates and activists from a variety of fields — public health, environmental health, immigration, labor, animal welfare, etc. — are increasingly pushing back. You can check out our blog post, Six Ways to Get Involved with Food Policy, for information on how to make your voice heard and support the food issues that mean the most to you.