Have you ever wondered how FDA gets away with allowing pet food to violate law? The FDA uses a Supreme Court decision called ‘Chevron deference’. But the good news is, Chevron deference is how we’re going to stop them!
Congress writes statutes (laws) and federal agencies are charged with enforcing those statutes. Trouble is, many laws are written in a manner that is open to interpretation by the federal agency enforcing them. That ‘interpretation’ aspect of law by federal agencies was challenged in 1984 by Chevron Oil Company (Chevron U.S.A. v. Natural Resources Defense Council) and the case went all the way to the Supreme Court. The Supreme Court decided the court would ‘defer’ (give deference) to the federal agency’s interpretation of law (yield to the federal agency’s interpretation of law). But – significantly – the Supreme Court (bold added) “set forth the legal test for determining whether to grant deference to a government agency’s interpretation of a statute which it administers.”
The Supreme Court ruling – determining if a government agency is properly interpreting law – is termed Chevron deference. From Cornell University law school:
“One of the most important principals in administrative law, established by the Supreme Court in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). The case raised the issue of how courts should treat agency interpretations of statutes that mandated that agency to take some action. The Supreme Court held that courts should defer to agency interpretations of such statutes unless they are unreasonable.”
Justia.com law blog states (bold added): “Under Chevron, even if a court finds that another interpretation is reasonable, or even better than the agency’s interpretation, it must defer to the agency’s reasonable interpretation.”
The key to this issue is “reasonable interpretation” of law. What is ‘reasonable interpretation’? Justia.com explains (bold added)…
“Reasonableness in part turns on whether the statute unambiguously addresses the issue. If it does, then the unambiguous meaning controls.”
To translate in non-legal language…the Supreme Court decided if the law is unambiguous – not open to more than one interpretation – then the law itself should be enforced. In other words, the court would not allow a government agency (FDA in our case) interpretation of law if the law was written clearly and precisely.
Below is the legal definition of food (source Federal Food, Drug and Cosmetic Act). Is this definition unambiguous (not open to more than one interpretation)?
Law states: “The term “food” means (1) articles used for food or drink for man or other animals, (2) chewing gum, and (3) articles used for components of any such article.”
Seems very clear; food includes the ‘articles’ that animals (and humans) consume.
Below is part of the legal definition of an adulterated food (source Federal Food, Drug and Cosmetic Act). Is this definition unambiguous (not open to more than one interpretation)?
“A food shall be deemed to be adulterated- (5) if it is, in whole or in part, the product of a diseased animal or of an animal which has died otherwise than by slaughter;”.
Again, it seems very clear; a food (what humans and animals consume) would be considered adulterated (illegal) if it contained any part of a diseased animal or any non-slaughtered animal.
But…
The FDA interprets the above laws very differently. The FDA interprets the above laws by stating the agency believes the law does not intend to hold animal food/pet food to the same standard as human food; “the Center for Veterinary Medicine does not believe that Congress intended the Act to preclude application of different standards to human and animal foods”.
Ok…for argument’s sake, let’s say the FDA does believe there are multiple interpretations to the laws quoted above (FDA believes the laws are ambiguous); the Supreme Court ruled on this possibility too. This part is the significant part for us to stop FDA. Justia.com law blog states (bold added)…
“If the statute is ambiguous, then the court asks whether the agency’s interpretation of the ambiguous provision is based on a permissible construction of the statute. A permissible construction is one that is not “arbitrary, capricious, or manifestly contrary to the statute.” In other words, it is a very low threshold of deference.”
Translation in non-legal language…If the law is open to multiple interpretations, the Supreme Court ruled the government agency can use their own interpretation of the law AS LONG AS IT IS NOT OBVIOUSLY or EVIDENTLY CONTRARY TO THE ORIGINAL LAW (“manifestly contrary”). And the federal agency’s interpretation of law cannot be based on agency whim (arbitrary) and/or cannot be an unaccountable change (capricious) of the law.
Not “arbitrary, capricious, or manifestly contrary to the statute.”
Below again is the legal definition of an adulterated food…
“A food shall be deemed to be adulterated- (5) if it is, in whole or in part, the product of a diseased animal or of an animal which has died otherwise than by slaughter;”.
Now…below is a FDA Compliance Policy regarding pet food (a Compliance Policy would be FDA’s interpretation of law – guidance issued to FDA representatives based on the agency’s interpretation of law). Is the following interpretation of law evidently (manifestly) contrary to the above legal definition of adulterated food?
“Policy: Pet food consisting of material from diseased animals or animals which have died otherwise than by slaughter, which is in violation of 402(a)(5) will not ordinarily be actionable, if it is not otherwise in violation of the law. It will be considered fit for animal consumption.”
The FDA interpretation of law is definitely “manifestly contrary” to the original law; in fact, the above FDA interpretation of federal law is completely opposite of the original law. The FDA has ignored the Supreme Court’s guidelines for Chevron deference.
In reference to ‘arbitrary or capricious’…earlier this year (before I was aware of Chevron deference) TruthaboutPetFood.com filed a Freedom of Information Act request asking the FDA for the scientific foundation the agency bases the Compliance Policy (stated above) on. The FDA responded “After searching our files, we did not find the requested records.” Without science to validate the FDA decision allowing pet food to contain ‘material from diseased or non-slaughtered animals’, the FDA is certainly interpreting law arbitrarily and capriciously.
The FDA assumes they have the Supreme Court’s ‘Chevron deference’ to interpret law in any way they see fit. But they are wrong. And we will prove that.
On behalf of pet food consumers, TruthaboutPetFood.com and AssociationforTruthinPetFood.com will be submitting a citizen petition to FDA based on the above clear violation of authority by FDA with pet food (a citizen petition is a legal method to challenge action by a federal agency, provided to citizens by law). We also will be filing a formal complaint with the Inspector General’s Office (over FDA) based on the same violation of authority. (Both of these documents will be posted when they are completed.) And if it takes a lawsuit – Concerned Pet Food Consumers v. FDA – then we will bring a lawsuit against them.
FDA is wrong with this issue, they do not have Chevron deference to interpret law directly contrasting the original law. No animal should be consuming a ‘food’ made with decomposing, diseased, non-slaughtered/dead animal material. This must stop.
Wishing you and your pet(s) the best,
Susan Thixton
Pet Food Safety Advocate
Author Buyer Beware, Co-Author Dinner PAWsible
TruthaboutPetFood.com
Association for Truth in Pet Food
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Rene
October 13, 2016 at 12:02 pm
YEAH!!!!!! I LOVE IT!!! Somehow these dirty turds need to be stopped or held accountable! I cannot wait to sign it!!! 🙂
Patricia Thompson
October 13, 2016 at 12:13 pm
You must do your job to protect our pets & the public.
Kathryn S
October 13, 2016 at 12:55 pm
Awesome — now we can only hope and pray that this upcoming election will not result in such changes in the Supreme Court that any ruling would effect a change in the ‘Chevron’ law —
Linda Kelly
October 13, 2016 at 1:03 pm
Thanks Susan and maybe we should have a go fund me for this issue! I am sure funds will be needed for this legal argument! I think many dog and cat families are not are aware of what is going on in the pet food industry and would welcome sending money for this important concern about stopping the pet food companies from disregarding the health of our pets and allowing large pet food corporations the freedom to feed garbage to our pets and false advertising and FDA allowing it to happen!!!
Susan Thixton
October 13, 2016 at 1:14 pm
Let’s try the free route first (Citizen Petition to FDA and Inspector General complaint). FDA is required by law to respond to a Citizen Petition within 180 days – though that ‘response’ could be as simple as “we have received your petition and are considering it”. Also, the Citizen Petition will become public record and anyone can comment on it (industry and consumers). I’m confident industry will fight this – but we’ll see what their public comments are on it and address those as things move along. But if we need to sue, then chances are we will need to raise funds to hire an attorney.
K Nard
October 13, 2016 at 4:02 pm
So, why not do what ConsumersUnion.org and other NGOs do, i.e. give us a link to web page to sign a petition?
Susan Thixton
October 13, 2016 at 4:04 pm
With FDA – it’s not that kind of petition. Here is a link to how it works, how it has to be filed and what is required: http://www.accessdata.fda.gov/scripts/cdrh/cfdocs/cfcfr/CFRSearch.cfm?FR=10.30
Deniese
October 13, 2016 at 4:11 pm
With the upcoming elections for President and depending on who will win will definitely play a part on the replacement of one of the supreme court picks. This could either make the FDA better or worst or add more baggage to the already full of baggage to the FDA which is a government agency. Seems like the last eight years of the FDA has really gone to la la land. Just Saying… I like the go fund me idea.
Jude
October 13, 2016 at 5:07 pm
The Humane Society of US has clearly stated and given examples of why a Trump presidency would be extremely damaging to animals. That alone should alert people to the changes Trump would make, as he sees animal issues unimportant in the big picture.
Susan Thixton
October 13, 2016 at 6:24 pm
By no means do I want this post to be about Trump or Clinton. Because I didn’t want to delete political comments I offer this perspective (non-partisan perspective): Several have made similar comments on Trump in the media. I can tell you that I read the statement that Trump made and I interpreted it completely differently than anyone in media and differently than HSUS. I believe I interpreted it differently than others probably because I know existing laws are not enforced by FDA (and mainstream media or probably HSUS doesn’t have a clue about this – they have had ample opportunity to learn it, but they have chosen to look the other way), my interpretation of Trump’s statement was why fund an organization (FDA) that isn’t doing their job.
Both Republicans and Democrats in office for years have done nothing to fix the problem this post is about. Let’s not blame any one individual. Fault lies with FDA’s interpretation of law (protecting industry); the entire agency is at fault, not either Presidential Candidate.
Brenda
October 15, 2016 at 3:46 pm
True and I don’t think that the fix will come from a president. It will take the supreme court and probably congress.
Cathy Palamara
October 13, 2016 at 5:07 pm
We need Erin Brockovich!
Jude
October 13, 2016 at 6:48 pm
We have Susan.
Jude
October 13, 2016 at 5:19 pm
I was very disappointed that the Reader’s Digest has a page in the October 2016 issue that gives some of America’s most trusted brands, one of which is Purina Pet Food. The info on this survey can be found at rd.com/trust.
I didn’t know where to put this, so I’m just adding it to these comments.
Jude
October 13, 2016 at 5:48 pm
Susan, I want to let you know my response to the Reader’s Digest. I don’t mind if you use this comment, but please just delete my address and phone number. I don’t know how else to get this info to you. Thank you.
Date: October 13, 2016 at 5:40:03 PM EDT
To: letters@rd.com
Subject: Response to Most Trusted Brands – my critique, please read
I was very disappointed to read that Purina Pet Food is considered to be a trusted brand. Certainly they do good by their tax-exempt donations to animal shelters across the US and elsewhere, but the quality of their pet food leaves a great deal to be desired.
If you have any interest in learning about the real “quality” of Purina Pet Food, please consider checking out truthaboutpetfood.com and learn the true terrible lack of quality of what Purina and so many other big pet food companies are putting into their products and passing it off as high quality.
I pray that you will take the time to follow through on this. There are many who are working very hard to make the FDA enforce the law, which would indeed make big pet food companies stop blatantly violating the law, with the FDA looking the other way. You will be shocked.
Jude Gagner
Long-standing animal advocate
Long-term conscientious owner of rescued Rottweilers
Ian
October 13, 2016 at 5:54 pm
I appreciate that you look at so many routes to accomplish the goal of making pet food safer…. this makes me think of your parallel crusade for truth in labeling demands— if the bag of kibble showed an ACTUAL picture of the dead and diseased animals and other unfit-for-human consumption ingredients that go into them, I don’t think they would sell too many bags of that kibble. Or just the prominently displayed label on the front “this pet food made with rotting, dead and diseased animals and moldy grains unfit for human consumption.”
Linda Horn
October 13, 2016 at 8:24 pm
Sounds good! I hope it works. It should work, if the entire system hasn’t been broken beyond repair. Please let us know if and when we should take any action in support of this initiative.
Cheryl
October 13, 2016 at 10:17 pm
Looking forward to hearing more about this.
Betty Burkett
October 14, 2016 at 1:11 am
SUSAN, you are so awesome! Thank you so much for all your hard work and for making things easy for us to understand.
Cora vandeKar
October 14, 2016 at 6:50 am
Anxiously awaiting the outcome of this in Canada.
Laws for pet food are even worse here 🙁
Thanks Susan
Cheri Fellinger
October 14, 2016 at 1:28 pm
What about all the other gross things adulterating the meat meals like Styrofoam, plastic wrap and the little pad under them meat that absorbs blood…….ew….and all those other waste products with chemicals dumped in the mix? What is to be done about that stuff?
Susan Thixton
October 14, 2016 at 1:34 pm
Best I can say is one battle at a time. Completely agree that kind of material is a risk and should not be allowed into pet food/animal feed.
Pacific Sun
October 14, 2016 at 11:02 pm
I think once it can be demonstrated (and prosecuted) that illegal 4-D protein is being used for PF, then other adulterated products, like expired packaged meat and food stuff, will also come under scrutiny.
Pat P.
October 15, 2016 at 10:31 pm
I can imagine resistance from the pet food industry will be powerful, unless there is some loophole they are aware about that we are not.
In any case, the FDA will drag their feet and take time, as will any legal or political action needed in our do-nothing congress, but, at least, your extensive and persistent research seems to have given you and pet food consumers some hope!
Thanks, again, Susan.