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America’s cherry pies may soon feature fewer cherries. Here’s why.

FDA is turning its back on pro-consumer regulations

A frozen cherry pie in a store's freezer in Palo Alto, Calif., in 2009. The Food and Drug Administration is preparing to propose getting rid of a federal standard for frozen cherry pies, which says the products must be at least 25 percent cherries by weight. (Paul Sakuma/AP)
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Earlier this month, the Food and Drug Administration made news for its plan to get rid of something most Americans probably didn’t know existed: the frozen cherry pie standard. This little-known regulation inhabits the blurry borderland between protecting consumers and over-regulating industry. The 1977 rule mandated that, at minimum, 25 percent of total pie weight must consist of cherries and allowed no more than 15 percent of the cherries to be blemished. It is the only fruit pie standard of its kind.

The standard has been called out as an example of the arcane and archaic rules governing our food. The FDA positioned its elimination as part of a continued push to “modernize” labeling rules and reduce regulatory burden by removing “old-fashioned barriers to innovation.” But while rules like the cherry pie standard may look arbitrary, outdated and even silly, they have often been the only barrier protecting consumers from market deceit.

We owe the cherry pie standard to Sen. Philip A. Hart (D-Mich.). In 1963, Hart used packaged cherry pies as an example of weak labeling laws, as he worked to build support for what would become the Fair Packaging and Labeling Act of 1967. He complained he had found eight-inch frozen pies with as few as 40 cherries, barely forming a one-cherry layer. This scant smattering of fruit cheated consumers, who would naturally expect a pie to have more. The consumer fraud was also shortchanging his state because at the time, Michigan produced 60 percent of the nation’s cherries.

The FDA had been using food “standards of identity” since the 1930s to prevent “economic adulteration,” a practice in which companies substituted cheaper ingredients in packaged and processed foods without consumers knowing. Standard foods were to represent “time-honored standards employed by housewives and reputable manufacturers.” The FDA held hearings where industry and the public were invited to submit evidence and arguments for what ingredients should be allowed in a standard recipe. Ruth Desmond, housewife, public advocate and founder of the Federation of Homemakers, famously used the peanut butter hearings to advocate for common-sense recipes that reflected what her constituents felt was wholesome food.

For many processed industrial foods, however, it was harder to define what was “time-honored,” and certain hearings proved contentious and lasted years. Rather than making standard foods simpler and more self-evident, many standards reflected the influence of special interest lobbying that protected preferred ingredients and resulted in less transparency in how the food was made.

Even as the frozen cherry pie standard was being formulated (it would be published in 1977), an effort was afoot to move away from policing food quality through standards and bans and instead to rely upon informative labeling. The cause was twofold: a broad deregulatory movement and a more specific worry that food regulation was out of control.

When President Jimmy Carter was asked at a news conference in 1979 about the FDA’s standard for peanut butter, the peanut farmer turned president complained: “It should not have taken 12 years and a hearing record of over 100,000 pages for the FDA to decide what percentage of peanuts there ought to be in peanut butter.” Similarly, the FDA provoked intense backlash and eroded the public’s confidence in its judgment after it attempted to ban saccharin. Congress passed the Saccharin Study and Labeling Act of 1977, one of only three bills ever passed that curtailed the FDA’s powers. The message was clear: Consumers didn’t want the FDA to impose its judgment upon them.

Labeling seemed like a reasonable compromise: Give consumers the information to decide for themselves. At a public hearing, an FDA official, Peter Hutt, used the cherry pie example to explain the advantages of using labels over standards. Describing himself as “a cherry pie freak,” Hutt reasoned: “There are two ways of going about it. You can set a standard of identity and standard of quality for cherry pies, which is a long horrendous procedure; the other way of going about it is requiring on the label that the percent by weight of the cherries be labeled, so that I would have three cherry pies there and I could pick the one with the highest quality, namely the greatest amount of cherries per weight of the total pie.”

Clear labeling could prevent bad actors from undercutting good ones by pushing unlabeled and substandard products on an unsuspecting public. Advocates also promised that labeling would be a far faster and cheaper method of ensuring quality than food standards, reducing costs to taxpayers and allowing industries to innovate, for example, in meeting new consumer demands for diet foods and healthier convenience foods.

But these promises overlooked a crucial reality: Industry could game labeling just as it could game food standards. In the early 1990s, the FDA seized frozen concentrated orange juice for misusing the descriptor “fresh.” Which ingredients and additives qualify as “natural” continues to this day to be a mystery to most consumers, a source of wry humor and sour grapes (those grapes may or may not be artificial). And recently, there has been a demand for “clean labels,” food products whose ingredient lists are short and familiar, thus indicating less processing.

This push reveals that we still have not achieved the sorts of processed and packaged foods — simple, natural and familiar — that the food standards of identity were intended to create.

The problem with labeling, like regulation, is that neither is inherently pro-business or pro-consumer. Both, in fact, can benefit consumers or business.

While business often decries regulations, industry can often benefit from them. In food production, they might invite government oversight to reassure the public that basic safety measures are being enforced or to protect a sector’s brand reputation, to name but two reasons. They also can provide market uniformity and certainty, enabling national producers to avoid dealing with a hodgepodge of state and local rules. This was the goal when, in 1990, most national manufacturers came out in favor of the Nutrition Labeling and Education Act in the hopes that it would “pre-empt” stricter state laws in California.

The far more important variable then isn’t labeling vs. standards. It’s having regulators who put the public interest ahead of the narrow particular interest of producers. And that’s exactly what the Trump administration isn’t doing. Instead of freeing up innovation, it seems to be protecting the food industry over consumers.

It might well make sense to eliminate the cherry pie standard. But the culture and process behind its proposed removal are all wrong. The culture in the administration encourages officials to remove rules to give the appearance of action, without considering why those rules are in place and whether removing them really helps consumers or industry. That’s precisely the wrong approach. Whether with standards or labeling, we need regulators who put consumers first and ask what will give consumers the most helpful information and the best choices?