Constitution Check: Does the government have authority to ban trans fat?

Lyle Denniston looks at the legal reasoning behind the FDA’s decision to ban foods with trans fats, which dates back to a 1911 Supreme Court decision about the fate of 130 cans of preserved eggs.

DoughnutsTHE STATEMENT AT ISSUE:

“It seems like this is the sort of thing that really ought to be an individual decision….We ought to be wary of a completely hard and fast ban.  The dietary conventional wisdom has really changed over the years.  This is one of the reasons why we ought to be wary of huge centralization bans on these sorts of things….You are discounting the ability of consumers to make their own decisions. We ought to give the people the information and let them make their own decisions.”

Peter Suderman, senior editor of Reason magazine and Reason.com, in an appearance November 7 on the MSNBC broadcast of “All In with Chris Hayes,” discussing the U.S. Food and Drug Administration’s announcement that it is seeking public comment on a proposed total ban on trans fats in human foods.

WE CHECKED THE CONSTITUTION, AND…

Perhaps the most basic function of government – and thus a primary aspiration of a constitution that creates a government – is to keep the people safe.   This is what lawyers and judges call the exercise of “the police power” – usually defined as the authority to protect “public health, safety and morals.”   It does not mean only the work of police departments; it involves the more general responsibility to ward off serious threats to the quality of life in a community.

In the history of the American Constitution, there has long been – and continues today – a hardy debate about which part of government should exercise this authority: the national government or state and local government?

The 10th Amendment is often understood as giving state government the primary role in exercising the police power, but the growth of the national government has created a regime of regulation that extends an ever-widening federal umbrella over the nation’s people.   When the New Deal was adding to federal powers to ease the hardships of the Great Depression, the 10th Amendment was often invoked – sometimes effectively – to impose limits.

And, of course, the nationalizing trend has only increased in recent years, and it has helped energize a sturdy new movement promoting a smaller federal government (witness the still-spreading opposition to a national health care law).

If, now, the federal government moves ahead with a plan – tentative, so far – to impose a flat ban on trans fats (technically, “partially hydrogenated oils” made into food additives) from the American food supply, there already are complaints about government making itself into the arbiter of what’s for dinner.   As the quotation above from an editor of a free-market advocacy magazine shows, there are those who believe that the government’s role should be no more than to require labeling of food ingredients, and then leave it to private choice whether to buy and eat the product.

The Food and Drug Administration has already heard that argument, and it has a two-part answer. First, it has been requiring labeling of foods with trans fat ingredients for nearly seven years and yet consumers keep buying the products in significant quantities. And second, there is new scientific evidence showing that there is simply no safe minimum amount of trans fat in any food product, so the only way to ease the very real threat of heart disease is to ban the ingredient altogether.

In a lengthy document spelling out why it is proposing the ban, though, the FDA does not mention its constitutional authority to do so.   But that is hardly a surprise: The federal government has been acting to stop the flow into the market of “adulterated” foods since 1906, and the Supreme Court as long ago as 1911 ruled that this was within Congress’s power under the Constitution’s regulation-of-interstate-commerce provision in Article I.

There are, in fact, a string of Supreme Court rulings repeating the idea that the core of the national “pure food” laws is the protection of public health.  Although some of those decisions thwarted government challenges to some food additives (as, for example, the inclusion of caffeine in Coca Cola), they generally allowed the government to regulate chemicals or substances so long as the government provided proof that such ingredients were, indeed, harmful to human health.

The decision most often cited by scholars as strongly supporting federal regulation of the food supply in this way was the 1911 decision in Hipolite Egg Company v. U.S.  The Court ruled that it was constitutional for the government to seize 130 cans of preserved whole eggs that were to be used in bakeries, because a federal inspector found that the cans included a small amount of boric acid, deemed to be a threat to human health.

That decision upheld the 1906 Food and Drugs Act.  It did so on the premise that the cans of eggs had been shipped across state borders, and were seized after they had reached their destination.  At that time, the Court’s view of interstate commerce was more limited than it would later become, so the decision allowed the egg cans to be seized only because they had never been opened while they moved in commerce.

Since then, the Court has added significantly to Congress’s authority to regulate interstate commerce.  And the marketing of many foods is clearly done across state borders, and scores of products that include trans fats are sold nationwide under well-known brand names.

Moreover, Congress expanded the FDA’s power over “food additives” with a sweeping amendment to food regulation law in 1958.

In the meantime, the FDA, often in cooperative efforts with food manufacturers, has repeatedly moved to clarify and update its list of additives that can be treated as “generally recognized as safe” (in bureaucratic fashion, this is often shortened to the “GRAS standard”).  The agency defines “safe” to reflect “a reasonable certainty in the minds of competent scientists that the substance is not harmful under the intended conditions of use.”

Trans fats in food products have long been regarded in the food industry as “GRAS” ingredients.  That is the judgment that FDA, based on what it considers more recent scientific data, is proposing to overrule, with a flat ban.   It has invited public comments until January 7, and then will make a final decision.   Whether a ban would be tested in court is not yet predictable, since much of the food industry insists that it has already been moving on its own to eliminate those ingredients from its products.

Lyle Denniston is the National Constitution Center’s adviser on constitutional literacy. He has reported on the Supreme Court for 55 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.

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