Forward-looking food-id standards require prior administrative rulemaking

Evidence

Section 401 of the 1938 Act authorizes the Secretary to promulgate regulations fixing reasonable standards of identity, quality, and fill of container for any food except butter and most fresh and dried fruits and vegetables, whenever in his judgment “such action will promote honesty and fair dealing in the interest of consumers.” Foods not complying with these standards are deemed to be misbranded under Sections 403(g) and (h). Standards have been set for many foods, in proceedings usually initiated by the Secretary, but occasionally by petition of interested industries. The decision as to the order in which foods are to be standardized is based on a schedule of priorities giving precedence to foods hardest to control without a standard and to those most easily adulterated. — Henry M. Hart, Jr. and Albert M. Sacks, The Legal Process, 1510

Categorization

• ADDENDUM: Prior-approval/licensing schemes from chapter 10 recur here in food-labeling form: standards-of-identity function as ex-ante rulemaking rather than after-the-fact punishment.
• XREF: connects to: A standard of identity can serve as a private anticompetitive weapon — Henry M. Hart, Jr. and Albert M. Sacks, The Legal Process: Basic Problems in…, 1517; Food standardization law assumes consumers cannot read or understand labels. — Henry M. Hart, Jr. and Albert M. Sacks, The Legal Process: Basic Problems in…, 1567