U.S. Food and Drug Administration (FDA) food standards are experiencing the most activity in a generation, with FDA aiming to revoke 52 food standards followed by a proposal to revise the orange juice standard. If implemented, this would decrease the size of the Code of Federal Regulations, but is it the start of a greater regulatory renaissance?
FDA can create Standards of Identity for food products, which are legally established requirements for the formulation, processing, packing or labeling of a given food. To establish a standard, FDA must engage in a public process and conclude that the standard promotes "honesty and fair dealing in the interest of consumers." For example, to be labeled as “peanut butter,” the food must consist of at least 90% peanuts with a fat content not exceeding 55%. These standards served as the bedrock of FDA’s food regulation until the early 1970s when FDA moved from regulating food composition to focusing on consumer information. See Suzanne White Junod, "Food Standards and the Peanut Butter & Jelly Sandwich."
FDA wants to revoke 52 standards that the Agency deemed “obsolete.” Heralded as part of the Trump Administration’s deregulation initiative, these actions are the latest steps in a path that started more than 50 years ago to dismantle the recipe-approach to the food standards regulatory regime that began in the 1930s. The Agency has been repealing various food standards in piecemeal fashion over the years, such as revoking a standard governing “soda water” (1989) or more recently “French dressing” (2022) and “frozen cherry pie” (2024).
The current plan outlines four reasons to conclude a standard is obsolete:
- Standardized Foods with Little to No Market in the United States
- Standardized Food that Would Be Covered by 21 CFR 130.10 in the Absence of Its Standard of Identity
- Standardized Foods that Include the Name of Another Standardized Food in Their Names
- Standardized Foods that Could Be Covered by a Broader Standard
The vast majority of the foods were subject to category 1—meaning that the food is not really sold in the United States anymore. Yet the last category could swallow the remaining standards as food labeling requirements (statement of identity, nutrition labeling, and ingredient listing) could be sufficient to “promote honesty and fair dealing in the interest of consumers” when also measured against the general prohibition against labeling that is false or misleading in any particular.
FDA subsequently proposed to lower the minimum brix level of orange juice because diseases affecting orange crops have lowered the sugar content of Florida oranges, thereby lowering the juice’s brix level. In the proposal, FDA asked if the standard should be revoked given that other juices (such as apple, grape and cranberry) are not subject to a food standard.
