FDA Sued to Protect Food Safety

Groups representing consumer, food and health safety challenged the FDA regarding a rule the groups say is unconstitutional and illegal in that manufacturers are allowed to add non-disclosed chemicals to processed foods they sell. Chemicals are often added to processed foods in an attempt to give them a longer shelf life, to add nutrient or just to improve the flavor of the product. The FDA is required to determine which chemical additives are harmful and which are safe for food use, but it is up to the manufacturers whether or not they disclose which of those chemicals they are using.

“Processed foods are a part of almost every family’s diet, and we deserve to know what chemical additives companies are putting in our food,” said Earthjustice attorney and co-counsel Eve Gartner in a press release. “Many take it for granted that FDA will make sure our food is safe, but under the current policy, the government is turning this authority over to the very industry it’s meant to watch over. To say this is letting down American consumers is an understatement.”

A lawsuit was filed in the U.S. District Court for the Southern District of New York by legal counsel from CFS and Earthjustice on behalf of Breast Cancer Prevention Partners, Center for Food Safety, Center for Science in the Public Interest, Environmental Defense Fund and Environmental Working Group. The lawsuit is based on the premise that the FDA illegally delegates the right to not disclose what additives are being put into processed foods to self-interested chemical and food manufacturers, while Congress mandates an open and public process.

“It is outrageous that FDA continues to try to duck its clear obligation to make sure our food is safe,” said Laura MacCleery, an attorney for the Center for Science in the Public Interest in a statement. “FDA knows it lacks the information necessary to protect the food supply or even know what’s in our food, but instead of doing what the law and Congress require, they have, shamefully, just given up.”

The FDA is required by federal law to ascertain which substances are safe for food use while keeping the consumers’ entire diet and exposure to chemicals in mind. Substances designated as “generally recognized as safe” (GRAS) can avoid the approval process applied to food additives as well as strenuous pre-market reviews.

“Most Americans would be shocked to learn that FDA allows novel chemicals onto the market without a safety review,” said Tom Neltner, chemicals policy director at Environmental Defense Fund. “Yet, FDA’s practice on GRAS additives flouts the law and leaves the agency unaware of what chemicals are being added to our food and with no way to ensure that these additives—and the food that contains them—are safe.”

Pew Charitable Trusts conducted an independent study that showed most new food chemicals that have been classified as GRAS were decided to be so by the manufacturers using them.

“FDA has a duty to ensure the products we buy and feed our families are safe,” said Cristina Stella, staff attorney for the Center for Food Safety and co-counsel in the case. “The secretive GRAS system makes it impossible for FDA to carry out its core responsibility to the public.”

Roughly 3,000 chemicals are estimated to be in use today that have not been examined by the FDA.

“Chemical and food processing industries should not be in charge of saying whether or not food is safe. Industry has their bottom line profits in mind, not consumer or environmental safety,” said Tina Sigurdson, Assistant General Counsel for the Environmental Working Group. “Leaving it up to industry to regulate itself is a classic case of the fox guarding the henhouse, at the expense of public health.”