COVID-19 Highlights the Harms of Bad Food Regulations and the Benefits of Lifting Them

People need to eat. Governments shouldn't make that harder than it has to be.

As federal, state, and local governments respond to the COVID-19 pandemic, some are loosening rules to ensure the nation's food system—and the people and businesses that drive that system—continues to be able to provide American consumers with adequate food.

Last month, both the U.S. Department of Agriculture (USDA) and the Food and Drug Administration (FDA) temporarily relaxed food-labeling rules to allow some food sellers to shift gears and sell foods that are not labeled for individual sale. That includes foods such as those that had been labeled for sale to a restaurant, hotel, or university food service provider, which typically don't contain Nutrition Facts labels that are required to appear on foods sold directly to consumers. That's given everyone from states such as Nebraska to towns in Massachusetts leeway to allow the restaurants they regulate to sell groceries.

Many states have relaxed liquor laws during the pandemic. Seattle, where I live, allowed farmers markets it had wrongly ordered closed weeks ago to re-open this week. And the city has established consumer loading zones so restaurant customers have convenient and free places to park while picking up takeaway meals.

Last month, the Trump administration suspended enforcement of rules that set maximum hours truck drivers, who are delivering key supplies, may work without a break. While that's a smart approach given the supply-chain issues the food system is experiencing, it also came as many restaurants—including those at highway rest stops, which serve many long-haul truckers—were limiting hours or closing. At the same time, many restaurants that have remained open now offer drive-thru service only, which can prevent semi-truck drivers from accessing them, given the trucks aren't exactly drive-thru friendly. That's meant the "truckers who drive loads with thousands of pounds of food now have difficulty finding food for themselves, on their long journeys."

This week, California's state transportation department, CalTrans, recognizing that problem, decided to allow food trucks that obtain a free permit to park at highway rest stops in the state and sell food to truck drivers and others there.

That's a start. Some critics, though, say the plan doesn't go far enough. They argue the new permits are "not much help" because they "only allow food trucks to operate at rest stops in the county where they already have a permit." And some California counties, it turns out, have no rest stops.

But at least California regulators appear to be trying. Food trucks operating in the Williamsburg, Virginia, area have been hampered by rules that don't allow trucks "to park on state or city roads" nor to deliver pre-ordered food to customers. Informed of the problems the rules cause during the pandemic, James Noel Jr., a county economic director, said his agency is "not considering any changes in those regulations."

Elsewhere, as with the CalTrans example, agencies appear reluctant to roll back regulations too much—whatever that means. For example, the USDA temporarily waived some paperwork requirements meant to establish eligibility for access to government-supported food banks. That's good. But state agencies must still apply for waivers, and other irritating paperwork requirements remain in place. While approving an Ohio agency's waiver application, for example, the USDA informed the state that it "must provide a summary report via the FNS-292A form within 45 days following termination of the disaster household distribution."

Elsewhere, even minor, well-reasoned regulatory easing has invited scrutiny.

Last month, the FDA announced it would temporarily suspend routine food-safety inspections at facilities that are regulated by the agency. That's a sensible step. Sending inspectors from one food facility to the next is a much better way to spread COVID-19 than it is to prevent foodborne illness. What's more, routine FDA inspections, as I've detailed elsewhere, take place only once every several years. In other words, temporarily suspending routine FDA inspections is likely to improve worker safety and protect the food supply while having no impact on food safety.

Even Bill Marler, a leading food-safety lawyer and advocate for stricter regulations, admits the FDA's decision to cut back on inspections "won't have an enormous impact" on food safety.

But the FDA's move was too much for Sen. Charles Schumer (D-N.Y.), who, mere weeks after the agency's move, issued a finger-wagging press release criticizing the agency. "The FDA must not scale back essential food-safety inspections and must maintain food-production requirements and guarantee the safety of our food supply in these trying times," he said in a statement that notably centered on issues at facilities regulated not by the FDA but by the USDA, the latter of which continues the daily inspections of facilities it regulates.

Despite Schumer's hyperbole in these trying times, most red tape in the food system remains stubbornly affixed. For example, some critics are calling on the USDA to relax a ban on allowing recipients of SNAP benefits—formerly known as food stamps—to order groceries from Amazon, Walmart, and other online retailers. That's something the agency had allowed only in about 10 states as part of a year-old pilot program. After critics complained, more states have been added to the pilot program. Given the pandemic, temporarily expanding the program to every state seems prudent.

Cutting red tape temporarily during a nationwide emergency, as cities, state, and the federal government have done in some cases, is also prudent. But—as I've explained in countless columns and in my book, Biting the Hands That Feed Us—easing the regulatory burden on food businesses doesn't just make sense during the current crisis. 

Will Californians be harmed if the state continues to allow food trucks to serve truckers? Nope. Will people be harmed if restaurants can sell groceries or fill to-go alcohol orders? Probably not.

Cutting red tape will facilitate both short-term goals (making sure people have sufficient access to food) and long-term ones (facilitating commerce and allowing the economy to recover). Making many of these relaxed rules permanent is a start. But taking a scalpel to many, many other burdensome rules must be the next step.