Coronavirus, the FDA, and Increasingly Relaxed Food Laws

The FDA has enacted a “temporary flexibility policy” to help food producers dealing with COVID-19’s impact on their supply chains bypass labeling requirements.

On state and federal levels, the US government and regulating bodies across the world have had their mobility and flexibility put to the test by COVID-19.

As healthcare workers, supply chains, service industry workers and others were left reeling from the sudden spread of COVID-19, the government had to swiftly churn out amendments, mandates, and other legislative changes targeting vulnerable industries and the people who serve them.

Before we get into why this flexibility policy was necessary, how it helps, and why this policy should be watched very closely after the pandemic, it’s important to understand what exactly the food producers are up against.

How COVID-19 Has Impacted Food Industry Supply Chains

Transitioning from restaurant distribution to supermarket distribution was too time-consuming in the case of the quickly spreading pandemic.

A company’s supply chain is the network of distributors, manufacturers, marketers, and other entities involved in the creation of a product at some point in its life cycle.

In the food industry, this includes farmers as well, a population that has had to make some very quick adjustments to deal with the pandemic.

Farmers who normally distribute to restaurants have had a difficult undertaking to manage as restaurant patronage plummets, explains Danko Turcic, supply chain management professor at the University of California at Riverside.

“They (farmers) can’t easily shift products bound for restaurants into the appropriate sizes, packages, and labels necessary for sale at supermarkets,” Turcic said.

In other words, the effort to pivot from restaurant distribution to supermarket distribution was too time-consuming in the case of the quickly spreading pandemic, so many farmers have had to destroy substantial portions of their crops.

Domestic Production and US-China Relations

Even before the pandemic arrived, China and the USA were having it out over trade policy, both sides zealously slinging tariffs around in an attempt to gain more leverage.

Add in the snowballing anti-Chinese sentiment egged on by the White House and many Americans after COVID-19 hit the states, and it’s no surprise that American industries are feeling shaky about reliance on Chinese suppliers.

Historically, most trade wars see the urging of domestic production increases by both sides, and it’s no different in this case.

According to an article by the Harvard Business Review, “manufacturers worldwide are going to be under greater political and competitive pressures to increase their domestic production, grow employment in their home countries … and rethink their use of lean manufacturing strategies.”

In support of these trends, the FDA has made “lean strategies” even leaner on food companies by allowing them to make shortage-related changes to their products without the usual red tape.

The FDA’s Temporary Flexibility Policy

Approximately two months after the pandemic began to seriously raise concerns in the United States (May 22, 2020), the FDA developed and announced a set of policy changes designed to help food producers adapt to “the impact of supply chain disruptions on product availability.”

Most of the changes sought to expedite the normally time-consuming relabeling process for producers that had to change their formulations.

For example, the flexibility policy allows food manufacturers to actually change their formulations to a certain extent without relabeling at all, so long as the formulation change meets a set of criteria.

You can view these criteria in detail using the link above, but we’ll quickly paraphrase two of them below:

• The new ingredient must constitute two percent or less of the finished product.
• Neither the addition nor the omission of an ingredient can affect the health claims on the label.

The language is much more specific on these requirements, but the key takeaway here is that the FDA is throwing food manufacturers a life preserver so they can recover more quickly instead of floundering unassisted in the logistical tornado caused by the pandemic.

Current and Future Food Safety Implications

The FDA has ensured that no ingredient with the potential to elicit an allergic reaction will be granted flexibility when it comes to labeling, but that doesn’t mean consumers shouldn’t be vigilant.

If you’re not comfortable with the fact that some vending machine products have already substituted unbleached flour for bleached flour without changing the label, then the best course of action for the time being is to avoid the label altogether and seek out whole, organically produced foods.

Of greater concern to nutrition experts is not a perceived threat to safety imposed by the flexibility policy, but the possibility that it may not be fully reversed after the pandemic.

In their announcement, the FDA issued partially contradictory statements regarding the policy’s eventual deactivation.

“This policy is intended to remain in effect only for the duration of the public health emergency related to COVID-19,” said the FDA’s Office of Nutrition and Food Labeling, before stating “Upon termination of the public health emergency, FDA intends to consider and publicly communicate regarding whether an extension, in whole or in part, is warranted, based on comments received to this guidance and our experience with its implementation.”

Nobody knows when the pandemic will be over, but for now, the best we can do as nutritionally conscientious consumers is to learn this legislation well and examine where in our diets unlabeled substitutions may already be occurring.