Washington Insider - Wednesday

Judge Rejects Challenge to Trump's 'Two-For-One' Regulatory Rule

Here's a quick monitor of Washington farm and trade policy issues from DTN's well-placed observer.

Judge Rejects Challenge to Trump's 'Two-For-One' Regulatory Rule

A federal just has rejected a court challenge to the executive order issued by President Donald Trump requiring agencies to cut or revise two regulations for every new regulation written. Federal District Judge Randolph Moss said the groups "fail to allege facts sufficient to show that the relevant agency would have issued the rule absent the Executive Order."

And in other cases, they don't show that any delay from Trump order would "substantially increase" the risk of harm. Public Citizen, the Natural Resources Defense Council and Communication Workers of America brought the suit. But Moss left the door open to future legal challenges. "This is not to say that a plaintiff—or, indeed, that the present plaintiffs—will never be able to establish standing to challenge the Executive Order," he wrote. "On the present record, however, the Court must conclude that it lacks jurisdiction."

US Fish Import Measures Challenged By Vietnam at WTO

A request for World Trade Organization (WTO) consultations with the U.S. regarding import measures for Pangasius fish (typically marketed as swai or basa) from Vietnam was circulated to WTO members Feb. 27.

In the complaint, Vietnam claims U.S. measures relating to the inspection, marketing and labelling of the imports are inconsistent with provisions in WTO's Agreement on Sanitary and Phytosanitary (SPS) Measures. It also alleges they run afoul of U.S. most favored nation obligations and obligations to eliminate quantitative restrictions on imports.

The dispute is just the latest development in a long running spat that sees the U.S. catfish industry and government on one side, and the Vietnamese swai and basa industry and government on another. The latest twist specifically concerns enhanced regulatory authority given to USDA over Pangasius in the 2008 and 2014 Farm Bills. The bills assigned USDA with greater responsibility to inspect and monitor the production of Pangasius intended for import to the U.S.

The request formally initiates a dispute at WTO. Consultations give the parties an opportunity to engage with the goal of finding a mutually agreeable solution without proceeding to further WTO litigation. After 60 days, if consultations fail to resolve the dispute, the complainant may request adjudication by a panel.

Washington Insider: Is It Natural?

The urban press, including the New York Times, has a hard time with agricultural basics including what is milk, and even what is meat. Recently it reasoned that one bright spot in an otherwise lackluster market for packaged foods, beverages and consumer products has been merchandise promoted as "natural." And, since consumers mistrust ordinary supermarket goods and are paying premium prices for "natural" goods, from fruit juices and cereals to shampoos and baby wipes. The Times sort of argues that something consumers are demanding should be clearly definable and defined.

For example, it says that "a spate of lawsuits and consumer advocacy efforts show, one person's "natural" is another person's methylisothiazolinone." It suggests that this confusion is the government's fault. The problem, consumer groups and even some manufacturers say, is that there is no legal or regulatory definition of what "natural" is. And, it reasons—wrongly—that the debate in many ways echoes the tussling in the 1990s over the word "organic," when food makers played fast and loose with the term and frustrated consumers tried to make sense of it all.

And, so, the Times says, USDA, tasked with creating an "organic" program, was pestered by consumers, farmers, manufacturers and states as it developed a definition, guidelines and a "certification" process— not a standard, but a certificate.

Today, the Times thinks, while regulators are weighing whether to define the term "natural," the lack of clarity for over the past decade has resulted in a freewheeling, and litigious, environment.

On one side are companies eager to cash in on consumers' willingness to pay higher prices for natural products by slapping "all natural" labels on them. At times, the claims have stretched the limits of credulity — like "All Natural" 7Up, Pop-Tarts "Baked with Real Fruit" and Crystal Light "Natural" lemonade. (Some labels like these were eventually changed.)

"The lawsuits you see are only a fraction of the claims that are made," said David Biderman, a partner at Perkins Coie who defends food companies in class-action lawsuits. Behind the scenes, Biderman said, plaintiffs' lawyers are sending letters to companies and threatening to file lawsuits over labels they argue are misleading or violate consumer protection laws. Those letters, Biderman said, are often rejected, go away or are resolved with a small payment.

Whether the lawsuits are necessary, or a nuisance, depends on whom you ask.

Corporations, lawyers say, have been reluctant to allow a case to go to trial and risk having a legal definition of "natural" emerge — which might set standards companies would have to meet. As a result, the bulk of the lawsuits filed over the past decade have been settled, dismissed or, more recently, stayed by judges who hope regulators will step in with a definition.

"We're really getting into splitting hairs about what is natural and what's not," said Maia Kats, the director of litigation for the Center for Science in the Public Interest, a public advocacy group has been involved in a handful of lawsuits over so-called natural products.

A survey of consumers in 2015 by Consumer Reports magazine showed that at least 60% of respondents believed "natural" on packaged and processed foods meant they contained no artificial colors or ingredients and no genetically modified materials.

"About two-thirds of consumers surveyed think that natural on a food package means no pesticides were used," said Charlotte Vallaeys, a senior policy analyst with Consumers Union, the advocacy division of Consumer Reports. "They're confusing it with organic," which prohibits nearly all pesticides from use on food products.

The fact is that for terms like "natural" or even "healthy" it is extremely difficult -- maybe impossible --to come up with exclusive definitions. In late 2015, the United States Food and Drug Administration sought feedback from consumers and the industry on whether it should define and regulate the word "natural" on food labeling.

More than 7,600 comments flooded in. Some consumers wanted the word banned from all food labeling. Others asked that the term be defined simply-whatever that might mean.

"We recognize that consumers are trusting in products labeled 'natural' without clarity around the term," Scott Gottlieb, the commissioner of the FDA said. "Consumers have called upon the FDA to help define the term 'natural' and we take the responsibility to provide this clarity seriously. We will have more to say on the issue soon." We will see.

Still, lawyers say that until regulators come up with a definition, the not-so-natural dance among consumers, manufacturers and lawyers will continue.

Well, maybe Consumers Union is right—if you can't define a term, don't allow it. It is pretty hard to imagine what a completely natural processed food would look like. Maybe FDA should give up the pretense, and simply ban it—unless some genius finds something far more meaningful, Washington Insider believes.

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