FDA
As a candidate for president, Donald Trump touted his deregulatory goals in many areas, including food. As president, though, Trump's FDA—under the leadership of Commissioner Scott Gottlieb—has moved instead to firm up and implement key Obama-era food policies.

Farm Health Policy Science Systems

Last week, the Food and Drug Administration (FDA) announced plans to publicly out stores that are selling products subject to agency or voluntary food recalls. That’s a smart move for protecting consumers. But it’s also yet more evidence that the Trump administration’s FDA isn’t at all what many observers expected.

When President Trump nominated Scott Gottlieb—a physician with experience as a think tanker, venture capitalist, and senior FDA official—to head the agency in 2017, the move was seen by many as a key step to ensure that FDA would advance Trump’s putative deregulatory agenda.

Arguing against federal overregulation (and in favor of deregulation) was, after all, a key mantra during then-candidate Trump’s 2016 campaign for president. Gottlieb was described invariably as someone who would help lead that charge at FDA.

An April, 2017 piece from CNN on Gottlieb’s nomination, for example, while noting his brief “inside-the-Beltline exposure” (presumably the network meant “Beltway”), said the commissioner’s worldview would reflect that of his boss, namely that FDA “needs an overhaul to reduce bureaucratic red tape.”

As a candidate, Trump lashed out at FDA’s perceived excesses in the area of food regulation.

Science correspondent Ron Bailey at Reason magazine, a non-profit, libertarian-leaning publication, billed Gottlieb as a man who “[u]nderstands how over-regulation is slowing down innovation in medicines and foods.”

“Trump wants to deregulate the Food and Drug Administration,” Vox reported in 2017, in the wake of Senate confirmation of Gottlieb to helm the FDA. “He chose the right guy for the job.”

And a year ago last month, The Washington Post characterized Gottlieb as “a physician and a cancer survivor who has long-pushed for deregulation of the FDA to speed up the review and approval of new therapies.”

Though food policy wasn’t a top campaign issue for Trump or his opponents, it did receive some attention. As a candidate, Trump lashed out at FDA’s perceived excesses in the area of food regulation. A fact sheet posted at his campaign website in September of 2016 (removed shortly after it was posted) promised to cut FDA regulations and rein in what it labeled the “FDA Food Police.”

“The FDA Food Police… dictate how the federal government expects farmers to produce fruits and vegetables [and] govern the soil farmers use, farm and food production hygiene, food packaging, food temperatures and even what animals may roam which fields and when,” the fact sheet stated. “It also greatly increased inspections of food ‘facilities,’ and levies new taxes to pay for this inspection overkill.”

Trump’s plans to disarm the “FDA Food Police” have proven to be little more than bluster.

While Trump’s specific gripe with the “FDA Food Police” (an expression that brings to mind the now-familiar Trumpian grammatical Imprimatur of capitalizing certain Letters in a given Sentence that needn’t be capitalized, oftentimes seemingly at Random) was both overbroad and unspecific, the words suggested he was referring to the Food Safety Modernization Act (FSMA), a signature Obama legislative achievement and the largest overhaul of federal food safety laws in seventy-five years. That would make sense: FSMA includes provisions that regulate farmers, produce, soil, and other facets of food and farming the campaign fact sheet mentioned.

Trump also promised during the campaign and after his inauguration to repeal the Affordable Care Act (ACA, more commonly known as Obamacare), Obama’s signature legislative accomplishment. That law contains—as part of its many provisions—language that requires chain restaurants, among others, to provide calorie information on restaurant menus and signage.

Trump’s FDA embraces Obama’s FDA agenda

But Trump’s nebulous, fleeting plans to disarm the “FDA Food Police” have proven, like so much about the man, to be little more than bluster. Obama’s FDA is still alive in spirit and practice. And the man who’s frequently defended and advanced the Obama administration’s food policies has been none other than FDA Commissioner Scott Gottlieb.

Gottlieb embraced the Obama era on menu-labeling provisions, saying that he supports them, in part, because he’s a “doctor [and] father”

The FDA’s approach to FSMA under Trump, for example, looks remarkably similar to its approach under Obama. Earlier this year, the agency delayed enforcing some FSMA provisions, which the Obama administration also did repeatedly and systematically. (These delays are understandable. Critics, including me, have argued large parts of the law are bad, unworkable, or both.) But FDA has also begun to roll out widespread FSMA enforcement. And just last month, Gottlieb touted FSMA as a “key part of [FDA’s] work” on food safety.

Though candidate Trump targeted Obamacare for repeal, he appears never to have given any thought to repealing its menu-labeling provisions. Indeed, Gottlieb has embraced that Obamacare provision. In a key statement on the menu-labeling rules, Gottlieb said he supports them, in part, because he’s a “doctor [and] father.”

Pointed headlines in the wake of this FDA support for mandatory menu labeling noted the Trump-as-Obama theme. “One year after delaying Obama’s nutrition rules, Trump’s FDA says it will embrace them,” reported The Washington Post. “Obama’s calorie rule kicks in thanks to Trump,” Politico declared. “Obamacare menu labeling rules ushered in, with no Trump objection,” noted The San Jose Mercury News.

Compared to other now-notorious officials, Gottlieb’s missteps have barely raised an eyebrow.

For good measure, Gottlieb has also nuzzled up to Obama’s FDA plan to compel food makers to display an “added sugar” label on most packaged foods regulated by the agency. Earlier this month, Gottlieb applauded the “added sugar” label as “empowering consumers with accurate and science-based information to help them make more informed, healthier choices.”

Gottlieb’s continuation of the Obama administration’s food policies has been hard to comprehend for many who are accustomed to constant press characterization of the Trump administration’s purportedly historic deregulatory agenda and progress, not to mention today’s harsh and hardening partisan lines.

“It hasn’t been easy to get a clear sense of where the new FDA director stands on many food safety and nutrition issues,” Food Dive reported.

Many—me, here, included—have tried. A complimentary New York Times profile in February noted that Gottlieb was bucking Trump administration stereotypes (which, given most of those stereotypes and the truth behind them, is a compliment indeed). And a Weekly Standard response painted Gottlieb as the consummate agency leader and applauded him for staying above the fray that’s swallowed many Trump appointees and senior staff. All that praise seems apt.

Gottlieb has largely avoided controversies or public missteps when discussing agency food policy (though that may be because he rarely discusses agency food policy).

Gottlieb’s leading food-policy subordinates are both Obama administration veterans.

While the Times notes Gottlieb had upset some advocates by delaying implementation of Obama-era food-labeling provisions, it also highlighted that Gottlieb had pushed back successfully against a Trump administration plan to transfer some FDA food-safety oversight to a trade arm within the agency.

Compared to other now-notorious administration officials, his missteps have barely raised an eyebrow.

Take, for example, Gottlieb’s claim, soon after he became head of the agency, that “The FDA does not regulate alcohol products.” That must have been news to the makers of Four Loko and other formerly caffeinated alcohol beverages, which saw their products effectively banned by FDA. Indeed, Gottlieb’s claim might also be news to his FDA colleagues, too.

More recently, his silly lactating-almond comments drew some fire.

Gottlieb has also avoided rocking the boat when it comes to top staff. His leading food-policy subordinates are both Obama administration veterans. Stephen Ostroff, a medical doctor who served as acting FDA Commissioner under Obama and, prior to Gottlieb’s confirmation, under Trump, leads the agency’s overall food-policy agenda as deputy commissioner for Foods and Veterinary Medicine. And Susan Mayne, an Obama administration holdover, nutritionist, and self-described “pragmatic optimist,” helms the agency’s food-safety oversight as director of FDA’s Center for Food Safety and Applied Nutrition.

FDA commissioner Scott Gottlieb has taken a measured approach to deregulation, unlike Trump's other now-notorious administration officials. Credit: NFE, October 2018.

Graphic by NFE

Nearly every mention on Gottlieb’s anti-regulatory zeal, from before his appointment to today, has focused almost entirely on his stance on drugs and medical devices.

For example, that post-confirmation Vox piece on Gottlieb uses some variant of the word “drug” 32 times and “medical” or “medicine” 11 times, but only uses the word “food” twice, each time to refer to the name of the agency.

It may be that Gottlieb wants to deregulate the specific areas he believes to be overregulated—drugs and medical devices, for example—and is deferring to others in the agency to shape FDA food policy.

There is solid evidence that Gottlieb has deregulated some outside of the food realm. Consider the agency’s move to deregulate home DNA health tests. More generally, he’s also moved to update FDA’s structure and some staff assignments.

But it could also be part of Gottlieb’s stated strategy of deregulating by regulating. While he seems not to have outlined in writing what that approach means, one interpretation is that he’s deregulating in one area (drugs and medical devices) by regulating in another (food).

Wither the “FDA Food Police”?

The FDA did not respond to a question I posed for this piece about then-candidate Trump’s attack on the “FDA Food Police,” and what, if anything, Gottlieb has done to rein in said food force.

“Gottlieb has taken a more measured approach to deregulating than I had expected.”

When asked to distinguish the Trump administration’s FDA from that of its predecessor, the agency pointed to its Nutrition Innovation Strategy, which Gottlieb first introduced in March. The proposal seeks “to create better ways of communicating nutrition information to consumers” and to incentivize food companies “to produce products with more healthful attributes.” It is open to public comment until October 11.

If at least a good chunk of the proposal sounds familiar, that’s because it should. The Nutrition Innovation Strategy’s goal of “encouraging industry innovation to improve the nutrition and healthfulness of food,” for example, closely resembles then-First Lady Michelle Obama’s work “convincing food companies to improve [the] nutrition content and labeling of products.”

Regardless of whether the Nutrition Innovation Strategy framework is a good or bad idea—or a mixed bag—it would be wrong to characterize it as deregulatory in nature. It’s a stretch, too, to distinguish it from work carried out under the Obama administration’s FDA.

The strategy’s five key elements are modernizing 1) health claims, 2) ingredient labels, and 3) standards of identity; 4) implementing the aforementioned changes to food and menu labels developed under Obama’s FDA; and 5) reducing sodium content in foods (another Obama administration goal).

Scott Gottlieb, the FDA commissioner under Trump, has largely continued Obama-era regulations, rather than pursue a pattern of deregulation that Trump touted on the campaign field. Credit: FDA, October 2018FDA

Obama’s FDA is still alive in spirit and practice. And the man who’s frequently defended and advanced the Obama administration’s food policies has been none other than FDA Commissioner Scott Gottlieb

In other words, the Nutrition Innovation Strategy appears largely to be a repackaging of the food-policy work of the Obama administration.

That appears to be the view from inside FDA, too.

A former FDA employee who worked on Obama administration food regulations and who is familiar with current agency thinking but did not want to be identified by name confirmed to me this month that Gottlieb has embraced Obama era food-policy reforms, but will likely repackage them slightly to leave his own mark.

From all outward appearances, Gottlieb hasn’t sought to advance an aggressively deregulatory food policy agenda. Instead, he’s done mostly the opposite. People I spoke with for this piece largely agreed with my take.

“This is an interesting point,” says Josh Galperin, a visiting associate professor of law at the University of Pittsburgh School of Law.“Gottlieb is totally out of step with the Trump administration and it’s a wonder that more people aren’t talking about this.”

President Trump’s FDA looks just like that of President Obama.

“Gottlieb has taken a more measured approach to deregulating than I had expected, and has taken a selectively pro-regulatory stance in areas where conservative approaches to regulation collide with protectionist impulses by conservative industries,” says Vanessa Zboreak, a professor of practice at Wake Forest University School of Law.

In other words, as Zboreak also notes, expanding FDA’s regulatory reach may be more palatable under Gottlieb “if the product being newly regulated appeals primarily to progressive or liberal consumers,” including almond milk or cell-cultured meat.

Despite his campaign attack on the “FDA Food Police,” President Trump’s FDA looks just like that of President Obama. For those who supported Trump’s predecessor and his FDA, this is great news. For Trump supporters and for those who detest Trump but hoped his FDA under Scott Gottlieb would deregulate in the many areas where such need exists, the disappointment is palpable.

Baylen J. Linnekin

Baylen J. Linnekin is a food lawyer, scholar, expert witness, adjunct law professor, and Farm-to-Consumer Legal Defense Fund board member. Linnekin’s first book, Biting the Hands That Feed Us: How Fewer, Smarter Laws Would Make Our Food System More Sustainable (Island Press, 2016), reveals how regulations often proscribe sustainable food practices. Linnekin’s writings have appeared in the Boston Globe, N.Y. Post, Des Moines Register, Sacramento Bee, Reason, Huffington Post, VICE, Playboy, Wisconsin Law Review, Hastings Constitutional Law Quarterly, Chapman University Law Review, and elsewhere. He lives in Seattle with his partner of more than 20 years.

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