Chevron Revisited: Natural Health Game Changer?

An upcoming Supreme Court decision could help put an end to federal abuses of power that limit your natural health access.

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THE TOPLINE

• A key Supreme Court case could reverse the Chevron doctrine that has given federal agencies far too much leeway to interpret the law.
• By overturning Chevron, the door could be thrown wide open to challenging FDA and FTC rules that restrict access to natural health products.
• We offer you an exclusive view on the case from ‘FDA Dragon Slayer’ and ANH friend, Virginia-based constitutional lawyer, Jonathan Emord Esq., who is currently running in the Republican primary for U.S. Senate Virginia.

The time of the FDA and FTC lording their power over the natural health sector to eliminate choices and restrict information could be coming to an end.

Earlier this year, the Supreme Court heard oral arguments on cases that call for a decades-old legal doctrine to be overturned that gave a blank check to federal agencies to abuse their power. If this doctrine, known as the Chevron doctrine, is overturned or even weakened, many potential avenues open up to challenge FDA and FTC interpretations that have limited access to and information about dietary supplements.

In Chevron v. Natural Resources Defense Council, the Supreme Court ruled that, when a law passed by Congress is unclear or ambiguous on a topic, courts should defer to a federal agency’s interpretation of the statute. This makes it extremely difficult for anyone to challenge federal agencies’ interpretation of the law and has had a direct negative consequence for supplements and the natural products industry. 

The current case has been brought by a group of commercial fishing companies challenging a rule issued by the National Marine Fisheries Service requiring the fishermen to pay for the costs of observers that ensure regulatory compliance with federal fishing rules. While the law states that the government can require fishing boats to carry monitors, it does not specify who pays for them. But with the precedent in Chevron, lower courts hearing the fishermen’s case deferred to the interpretation of the federal agency, which said the fishermen should pay for the observers. In deciding this case, the Supreme Court will specifically reconsider its ruling on Chevron.

Analysis of the case thus far suggests the Court is likely to weaken or overturn Chevron: the three liberal justices defend Chevron, but the four conservative justices have expressed misgivings with the doctrine.

It’s hard to overstate how game-changing this decision could be. We spoke exclusively with long-time ANH friend, the famed constitutional lawyer, Jonathan Emord, Esq., who is running for the US Senate in Virginia. He told us:

“Throughout my 38 years of litigating against the federal bureaucracy, Chevron has been a major impediment to justice.  Under it, if there is any ambiguity in the relevant provisions of an agency’s enabling statute, the courts ordinarily defer to the agency’s judgment.  That broad deference has upheld agency decisions destructive of lives, liberty, and property when, were no deference accorded, the agency decisions would ordinarily have been overruled.  Chevron deference has turned the agencies, departments, and bureaus of the administrative state into Goliaths who wield destructive power without accountability to the courts, Congress, and the American people.  Eliminating Chevron and restoring the check of independent Article III courts on administrative state actions is a crucial first step in restoring justice and the rule of law.”

We outlined some of the potential ramifications of this decision in our previous coverage. One of the most crucial areas relating to natural health that this could have an impact on is the new dietary ingredient (NDI) guidance being worked on, as we speak, at the FDA. As we’ve argued previously, this guidance could axe over 41,000 supplements from the market.

We’ve written about this guidance many times, but the crux of the matter is this: Supplements that are considered “new”—that is, they were introduced to the market after 1994—are subject to NDI regulations. The FDA is taking many liberties with these NDI regulations, turning what is supposed to be a simple notification system into a costly pre-approval system. Straight from the drug, not the food, regulatory playbook. The agency is also trying to cast a wide net, broadening the definition of what constitutes a “new” supplement so even more products are subject to this pre-approval system so copy-catting the European Union’s highly restrictive novel food regulatory model.

If Chevron gets overturned, it will be much easier to challenge the FDA’s interpretation of NDI statutes, giving us a much better chance to defend access to supplements we care about. The same applies to agency decisions that threaten homeopathy, CBD, NMN, and many others.

We will monitor the results of this case closely and keep you informed of developments.