The Food and Drug Administration (“FDA”) is one of the primary regulators of the U.S. food system, yet it all but ignores the food system's vast environmental footprint. Although the agency is not technically an environmental agency, it could and should view redressing the food system's significant environmental footprint as part of its health and safety mission. In this Article, we review FDA's history of National Environmental Policy Act (“NEPA”) compliance. This history affirms our hypothesis that FDA does not view its own work as environmental. The review, along with assessment of some of FDA's core food programs, reveals that FDA's failure to act as an environmental agency follows from three conceptual mistakes. First, it focuses its safety mission around product safety, discounting safety related to production and disposal. Second, it approaches risk assessment on a product-by-product basis, missing the cumulative and synergistic effects of production, consumption, and disposal. Finally, it orients its work solely toward promoting individual health, disregarding population-level health. We argue that FDA should be a proactive environmental steward of the food system. We describe how it might use NEPA to begin such a transformation, and we identify a variety of areas where its existing substantive authority leaves room for incorporation of environmental goals. Throughout the Article, we return frequently to plastic packaging. The environmental threats of plastic packaging have become increasingly clear and FDA's power to regulate plastics as “food contact substances” provides an important opportunity to mitigate those harms. We also assess opportunities for change in FDA's authority over food additives, animal drugs, and food labeling. We conclude by observing that many environmental problems require widespread collaboration to solve. Given the well-recognized, pressing need for action on a variety of environmental fronts, every federal agency has a role to play. This analysis of how FDA might embrace a role as a robust steward of the food system offers a roadmap for other non-environmental agencies to participate meaningfully in these endeavors.
Margot J. Pollans and Matthew F. Watson, FDA as Food System Stewards, 46 Harv. Envtl. L. Rev. 1 (2022), https://digitalcommons.pace.edu/lawfaculty/1222/.