How the Biden Administration May Impact the Food Industry

Barring some dramatic and unforeseen event, President-elect Joe Biden will take office as the 46th President of the United States on January 20, 2021. What that means for the food industry will depend on some significant unknowns, but, based on the results of the congressional races and Biden’s stated goals and policy positions, we may still get a fairly clear idea of the types of changes likely to occur under a Biden administration.

By way of a civics reminder, Congress writes the laws, and the executive branch, led by the president, enforces those laws. In turn, the laws grant federal agencies the authority to issue regulations, which have the force of law. This is important because, although the executive branch cannot unilaterally enact laws, it does have broad discretionary authority to enact regulations based on its interpretation of the law. That can (and likely will) lead to substantial changes in the way federal agencies, from one administration to the next, enforce the law.

As with any political prognostication nowadays, I would be remiss not make certain disclaimers. To begin with, it appears probable—subject to the results of Georgia’s senatorial runoff elections—that Republicans will retain control of the Senate. Thus, while the Biden administration will certainly pursue a more progressive agenda than the previous administration, its ability to enact legislation will be constrained by virtue of a split control in the legislature.

Additionally, this article is not an endorsement of any policy or administration. Rather, it is intended only to be an objective analysis of what the incoming administration is likely to do, and what may change.

Workforce oversight. In the immediate future, the ongoing pandemic will continue to govern the trajectory of our day-to-day lives. While it appears a viable vaccine is on the near horizon, the coming months are likely to be among the most challenging to date. Unfortunately, for many reasons, the food industry has suffered disproportionately in terms of the occurrence of illness.

As regards the pandemic, the Biden administration is likely to implement much more stringent measures to protect workers. Biden has advocated for enhanced protective measures. Last May, Biden said he supports coronavirus-related workplace safety regulations, even if they raise food prices. Biden has appointed worker advocates to teams responsible for overseeing the meat industry. In the near term, Biden is likely to implement stricter COVID-19 protective measures applicable to employees. In the longer term, Biden will likely re-staff agencies, such as the Occupational Safety and Health Administration, which will lead to increased oversight.

Antitrust laws. The Biden administration will likely be more focused on enforcing antitrust laws. During the campaign, Biden asserted that he intended to “strengthen” the Sherman and Clayton Antitrust Acts and the Packers and Stockyards Act. Generally, the argument goes that American food workers and small agricultural businesses are suffering due to increasing market concentration (e.g., monopolistic business practices), particularly in the meat industry. To level the playing field and promote competition, the new administration plans to significantly increase federal enforcement of antitrust laws. Such an approach would disfavor the largest food industry corporations. Biden’s eventual choice for Secretary of Agriculture (unknown at the date of publication) will provide substantial additional insight into what the administration’s approach ultimately will be.

Regulation. In terms of food regulation, the incoming administration plans to streamline and reform existing regulations. What this means is not entirely clear, but we should not expect to see any type of major overhaul. Ideally, streamline and reform means fewer and more effective regulations. However, given the likely expansion of environmental regulations under a Biden administration, the food industry would be well served to begin preparing for more numerous and more stringent environmental regulations.

Economic and infrastructural policy. The Biden Administration has yet to articulate a comprehensive economic policy. In all likelihood, the administration’s economic policy will be determined by how and whether the coronavirus pandemic affects the economy between now and January 2021. In the meantime, farmers across the country will continue to experience adverse impacts due to the imposition of tariffs on Chinese goods and the ongoing trade war. Although Biden has been critical of the prior administration’s approach, his administration has not clearly articulated exactly how it will deal with the trade war.

One interesting question involves the intersection between climate policy and economic policy. On the one hand, if the Biden administration lifts tariffs on Chinese products, that could be a significant boon to farmers by reopening Chinese markets to U.S. agricultural products. At the same time, the expected focus on reducing the use of and reliance on fossil fuel emissions could have a correspondingly negative effect on demand for biofuels, such as ethanol.

In terms of infrastructural policy, the Biden administration seeks to invest $20 billion in rural broadband infrastructure, and to triple broadband access funding in rural areas. This reflects much needed and long overdue support to agribusiness, which is predominantly located in rural areas. A new stimulus package is also likely after the inauguration. As of late November, it appears unlikely that Congress will be able to pass a stimulus package before 2021.

Climate and immigration. Not surprisingly, immigration and climate change are two areas where the policy differences between the incoming and outgoing administrations are most apparent. Whereas the previous administration was known for being largely anti-immigration, Biden is pressing for a more permissive immigration framework, especially as it relates to agricultural immigration. Biden seeks to work with Congress to enact compromise legislation between farmworkers and the agricultural sector that would grant legal status based on, among other things, agricultural work history. In the current political climate, and especially if the Senate remains under Republican control, it will be difficult to pass any meaningful legislation, much less immigration reform legislation, which remains anathema to the Republican base. Thus, we are most likely to see implementation of lesser reforms that are achievable through executive action.

While President Trump has historically expressed skepticism about climate change and the need to address it, Biden has made it one of his signature issues. Biden recently named former Secretary of State John Kerry as his climate czar. The administration aims to lay the groundwork for achieving a 100% clean energy economy and net-zero emissions by 2050, and to expand the federal Conservation Stewardship Program, a partnership between the government and farmers/ranchers to implement sustainability improvements and reduce emissions. Such a partnership would likely provide a host of new opportunities for small to mid-size agricultural interests but would also increase the industry’s regulatory burden.

Change Takes Time

I hope this article offers a better understanding of what the new administration will mean for the food industry. However, as momentous as a presidential election is from a historical standpoint, it is important to maintain an appropriate amount of perspective. As a practical matter, it is important to note that significant change typically takes significant time. The United States government is a bureaucratic colossus. In recent decades, we have faced a nearly constant barrage of tribalistic, partisan-based fearmongering. With each election, we are made to believe we face tremendous danger; however, the reality is more mundane. Yes, the United States faces significant challenges, domestically and internationally. It always has. Democracy is loud and messy. But, whether you were happy with outcome of the election or not, the reality is that, for most people, our day-to-day lives are unlikely to significantly change as a result of any single presidential administration or who happens to control the House or Senate.

I am glad the election is behind us and for the temporary reprieve from the endless unsolicited political text messages and emails. Likewise, I welcome putting 2020 in the rear-view mirror. It has been a tough year for everyone, and we have suffered unimaginable losses.

Yet, more than anything else, I am grateful. I am grateful to work with people from every imaginable background and socioeconomic status in places all across the country, in urban areas, and rural areas, and everywhere in between. In doing so, I have observed, without exception, that we are better than our politics, and have much more in common than our politics would suggest.

I am grateful to live in a country where I can count on my fellow citizens to roll up their sleeves and continue producing safe and plentiful food, even amidst a pandemic, despite great personal risk. I am grateful to all of you for your unheralded bravery, unwavering dedication to your communities, and your ability to work together to get the job done under the most difficult conditions imaginable. I only wish our elected leaders had your integrity, decency, and selflessness. Thank you for all you do.

Have a safe and happy holiday season and new year.

Chappelle is a food industry lawyer and a consultant at Food Industry Counsel, LLC. Reach him at chappelle@foodindustrycounsel.com.