USDA’s Top Lawyer Warns ‘Government by Signal’ Is a Legal Risk for Food Companies
USDA General Counsel Tyler Clarkson says informal food policy, like the voluntary synthetic dye phase-out, can fuel lawsuits and a patchwork of state laws.
The push to remove synthetic dyes has mostly happened by handshake, not by rule. USDA’s general counsel says that approach carries real legal risk for the food industry.
TLDR
- USDA General Counsel Tyler Clarkson warned about “government by signal.”
- He means policy set through statements and agreements, not binding rules.
- Non-binding guidance can still show up as evidence in lawsuits.
- Without federal rules, states are writing their own, often conflicting, laws.
- The voluntary synthetic dye phase-out was one of his examples.
What ‘Government by Signal’ Means
Clarkson spoke at the Food and Drug Law Institute’s Food Advertising Conference in Washington, D.C., in late September. He described the trend as “policy made through instruments that impose no obligation, and enforced by people who were never asked to enforce it.”
His examples included the understanding between the Department of Health and Human Services and food companies to phase out select synthetic colors. He also pointed to FDA’s sodium-reduction initiative, plans to encourage lower added sugar in processed foods, and a proposed definition of ultra-processed foods issued through a white paper rather than a formal rule.
Risk One: The Courtroom
Guidance, warning letters and agency statements do not carry the force of law. But according to Clarkson, they can still become courtroom evidence of what consumers expect and what the government believes. That gives plaintiffs material to build cases without relying on formal regulations.
Risk Two: The State Patchwork
When federal standards are missing, states fill the gap. Clarkson cited Texas, which requires warnings for ingredients banned in Australia, Canada, the European Union or the United Kingdom. Similar but not identical bills are spreading to other states, leaving national brands with different rules in different markets.
Why It Matters
Much of the industry’s move away from synthetic dyes rests on voluntary commitments. A warning from USDA’s own top lawyer is a reminder that voluntary does not mean risk-free. Brands reformulating now should plan for scrutiny from courts and state legislatures, not only from federal regulators.
Source: FoodNavigator. Read the report.