Last week, the Food and Drug Administration announced long-awaited bans on certain food dyes and added new warnings about sugar in processed foods. Public health advocates cheered. Parents breathed a sigh of relief. But as someone who has spent years reporting on the intersection of federal science, health and regulation, I have a warning: In today’s legal climate, we are celebrating too soon.
The Supreme Court’s recent reversal of the Chevron doctrine means every new regulation is now living on borrowed time — and the FDA’s food dye ban may be its first casualty.
For 40 years, the “Chevron deference” gave federal agencies the benefit of the doubt in their interpretations of ambiguous laws within their areas of expertise. So when Congress writes broad rules, courts are to give agencies like the FDA, EPA and NOAA wide latitude to fill in the scientific and technical details.
But last year, in a move cheered by conservative legal activists, the Supreme Court struck down Chevron. Now, federal judges need not give such great deference to agencies as to what the law means, even on issues where the judges have no practical experience, such as food additives and clean air.
This is a landmark shift with potentially far-reaching consequences. While a regulation-friendly administration like Joe Biden’s can’t guarantee that new public health protections will survive the courts, Robert F. Kennedy Jr.’s FDA under the Trump administration should prepare to encounter similar hurdles.
The Chevron ruling presented us with a fitting preview of what happens when judges — as opposed to subject-matter experts at relevant agencies — determine the best way to interpret applicable regulatory frameworks within the law.
Justice Neil Gorsuch, in a concurring opinion overturning Chevron, referenced “nitrous oxide” as a pollutant from coal plants. Nitrous oxide — the compound best known for providing the temporary euphoria you may experience while a dentist fills a cavity — has nothing to do with the “nitrogen oxides” that actually come out of smokestacks and threaten respiratory health.
This “chemistry error” had legal experts shaking their heads as well. Is this the future of regulation in America?
This isn’t the court’s only recent foray into environmental policy by judicial fiat. Just a year prior, in Sackett v. EPA, the Supreme Court had decided that wetlands and waterways that don’t have a “continuous surface connection” to larger bodies of water are no longer protected under the Clean Water Act. Agricultural ditches that run with manure all winter and flood into rivers each spring are now magically exempt from regulation, so long as they dry up part of the year.
As someone who has documented water pollution in the Great Lakes, I can tell you the effects of this decision are already being felt, even if you don’t see them on cable news. Not only is such a ruling not in the public interest, it flies in the face of any reasonable interpretation of what constitutes “clean water” — that pollution still ends up in the lake.
Already, legal and industry analysts are discussing how the Supreme Court’s decision to overturn Chevron could be leveraged to challenge the FDA’s new food dye regulations. Law firms and trade publications are openly advising that, without Chevron deference, industry groups have a stronger hand to contest the FDA’s scientific determinations in court — and they are expected to do so. Even mainstream food safety analysts now warn that regulatory enforcement could become a patchwork, shaped less by agency expertise and more by judicial philosophy.
Some are cheering the end of Chevron as a victory for “small government.” But there’s a deep irony here. If we can’t guarantee clean air and safe water under a regulation-friendly White House, what makes anyone think we’ll get better outcomes under administrations that are openly hostile to government intervention? Health “skeptics” who believe an FDA crackdown is a sign of overreach might soon find that even basic food safety rules are up for grabs — not by scientists, but by judges with no background in public health.
You can’t have your cake and eat it, too, sugar or no sugar.
Many of my friends (even at NOAA) who were watching the Chevron case and rooting for the commercial fishing industry were failing to read between the lines. For those who did, we knew this was the starting gun for Project 2025, the conservative movement’s policy playbook that’s being implemented today. It spells out plans to gut the administrative state, replace agency expertise with political appointees, and put regulatory agencies on a short leash.
The ACLU and others have pointed out that the Supreme Court’s actions gave this agenda a head start. The rules that keep our food, water and air safe are now subject to ongoing legal assault, regardless of who occupies the Oval Office. Today, it’s food dyes. Tomorrow, it could be anything — from how we protect kids from harmful chemicals to how we manage catastrophic oil spills.
If the FDA’s victory can’t survive judicial review now, what hope will there be when agencies lose even more authority and expertise is swapped for ideology? We are entering a new era where the safety of our food, water and air depends less on what science says, and more on whether judges, with or without scientific knowledge, feel like agreeing.
So the celebration should wait, because the fight for expertise — and public safety — has only just begun.
David J. Ruck is a documentary filmmaker, photographer and journalist whose work explores the intersection of science, public health and policy. He has received numerous awards for his work reporting science and environment.
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