What Does FDA Commissioner Scott Gottlieb’s Resignation Mean for Food Marketing?

On March 5, Food and Drug Administration Commissioner Scott Gottlieb resigned after 22 months at the helm of the agency. His resignation will be effective as of a date that is as yet unspecified, but will be about one month from the date of his announcement. What might his resignation portend for any changes in FDA policy with respect to food marketing?

Gottleib was not known for focusing on food issues during his tenure. In fact, he was sometimes criticized for neglecting food as a policy priority in favor of drugs and dietary supplements. His signatures issues during his chairmanship were the opioid crisis and teen vaping, which certainly were, and remain, urgent public health problems worthy of focused attention.

From the food marketing perspective, Gottlieb made at least two important policy proposals in speeches delivered while he was commissioner. In a March 2018 address at the National Food Policy Conference, Gottlieb mentioned two words that have become hot litigation topics over the past several years owing to their fuzzy definitions and ubiquitous use in food marketing: “natural” and “healthy.” He indicated that the FDA may finally be about to tackle a formal definition of “natural,” something that several courts around the country have asked the FDA to do, in some cases staying cases pending such an action. Still, that was a year ago, and no publicly visible progress toward defining natural was made, while some courts have gotten tired of waiting and have begun denying or lifting stays on “natural” claim cases. On “healthy,” a term that the FDA already has some policy around in the form of nutrient and fat guidelines dating from 1993, Gottlieb wanted to create new icons or other devices to communicate effectively to consumers when a food meets the FDA’s guidelines. Here, too, although the goal was announced, no apparent progress has been made.

Gottlieb also spoke to the controversy around the redefinition of some traditional food categories enshrined in decades-old FDA standards of identity to account for changes in consumer expectations and in the food supply. In particular, with respect to new vegan alternatives to traditional dairy products such as milk, butter, cheese, and yogurt, Gottlieb in a July 2018 statement seemed to come down on the side of the traditional dairy industry, indicating that the FDA might move toward stricter enforcement of its standards of identity requiring that these products be derived from cows, but at the same time, suggested that the FDA might also consider revising and modernizing its standards of identity to account for new methods of food production. As the FDA acknowledged, “it’s not appropriate to unilaterally change our regulatory approach if we have a history of non-enforcement.”

Although Gottlieb’s tenure at the FDA was not an outlier in terms of its duration – many FDA Commissioners have held the job for less than three years – it was likely too short to create anything like a policy legacy. Whether the FDA will continue to pursue the policies Gottlieb established while in office will depend on the new Commissioner appointee.

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