FDA's Implementation of the Delaney Clause: Repudiation of Congressional Choice or Reasoned Adaptation to Scientific Progress?

Abstract

The Delaney Clause, the most famous federal health statute, bars Food and Drug Administration (FDA) approval of any carcinogenic food additive. In an era when scholars and politicians are again voicing concern about the propensity of legislatures to delegate broad power to administrators, the Delaney Clause is an exceptional illustration of Congress's capacity to enact specific laws. The Clause seems to express the unequivocal judgment that consumers should not be exposed to food ingredients shown to cause cancer, regardless of the benefits the ingredients might provide or the magnitude of the risk that they might present. Like many extreme policies, the Delaney Clause has proved increasingly difficult to administer.