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The Constitution vs:
Understanding the Amendments:
What They REALLY Mean

What authority does the federal government have to regulate food and drugs?



Federal authority over food and drugs is not granted in the Constitution; in fact, food and drugs are not mentioned in the Constitution at all.

Per the Tenth Amendment to the Constitution:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Because the Constitution does not grant the federal government any authority with regards to regulation of food and drugs, the Tenth Amendment explicitly leaves that power with the individual states.

What about the FDA? Is the Food and Drug Administration constitutional?
No. The FDA, as discussed on its Web site, is "a scientific regulatory agency responsible for the safety of the nation's domestically produced and imported foods, cosmetics, drugs, biologics, medical devices, and radiological products". None of these functions, even within this restrictive mission, is outlined in the U.S. Constitution as a role of the federal government. But the FDA goes much further than safety, focusing on product labeling requirements, advertising restrictions, and even banning the sale or trade of certain products across state lines (raw milk, for example). This gross expansion of authority as well appears nowhere in the Constitution.

Don't we need a federal agency to keep us safe from faulty food, drugs, and claims?
No. States are free to regulate food, drugs, advertising, and labeling any way they like. Inside state borders, such regulation can be administered via a state-level agency free to create any rules it wishes, in line with the beliefs of its population and the ideas it gains from other states running a similar agency. Knowing the rules and complying with state laws from one state to another falls then to individuals and businesses for compliance.

Isn't the burden of complying with 50 sets of laws instead of a single set too difficult for manufacturers and importers?
Perhaps. But more likely, because of the regional nature of beliefs, culture, and needs, and possibly a market-driven desire for regulatory simplicity, states would choose to align their rules with one another -- at least regionally -- to move their laws toward a common standard.

What if all these assumptions regarding regional standards are wrong?
States talk with growers and manufacturers, understand why prices are too high or why supply is too low, and agree amongst themselves to unify their regulatory standards further. States refusing to comply would isolate themselves and be solely responsible for their own food and drugs -- but that choice would remain with each state.

Would each state regulate the legality of drugs like cocaine and heroin?
Yes - and it would be incumbent upon individuals to understand whether transporting such drugs into another state is legal, much like alcohol laws today.

Doesn't the "Interstate Commerce" clause in Article 1, Section 8 give the federal government this power of regulation?
It does not. The clause in question, an enumerated power of Congress, is "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." The clause gives the federal government the power to oversee and ensure fairness of commerce between 1) the U.S. and foreign countries, 2) between states (i.e. transactions between the states of New York and Pennsylvania), and 3) between anyone and any Indian tribe. It does NOT empower the federal government to regulate transactions involving individuals or corporations, despite the Supreme Court's finding in Wickard vs. Filburn (1942) to the contrary. Read James Madison's forceful argument on the subject in Federalist #42.

In their own words:  Federalist #42 - James Madison

What is required for federal regulation of food and drugs to be constitutional?
This can only be accomplished through an amendment to the U.S. Constitution.