The U.S. Dietary Guidelines lack oversight and accountability. The result: Guidelines that reflect food industry interests instead of modern science. This deleterious guidance goes on to govern federally-subsidized food assistance programs and to influence dietary choices throughout the private sector and private life. Ultimately, the Guidelines significantly contribute to the endemic chronic disease they seek to address.

The Guidelines Advisory Committee is notoriously rife with conflicts of interest, and thus most Guidelines scholarship has focused on reforming the Committee. But the 2015 and 2020 Guidelines show that these reforms are insufficient and agency-level change is necessary. In 2015, the Committee made several controversial recommendations related to red meat, ultraprocessed foods, sodium, and sustainability. Due to industry backlash, only the sodium recommendation survived in the final Guidelines published by the Secretaries of the U.S. Departments of Agriculture (USDA) and Health and Human Services (HHS). In 2020, the Secretaries, for the first time, predetermined a list of eighty topics that the Committee may consider. Absent from this list are the most contentious topics from previous years. There is little recourse because the Guidelines are not considered an agency action subject to the Administrative Procedure Act (APA), despite their vast impact on food assistance programs, healthcare practices, tort law, and more.

This Note proposes two ways to bring the Guidelines within the APA’s coverage. The first is a litigation strategy, arguing that the D.C. District Court relied on erroneous reasoning when it held that the Guidelines are not an agency action subject to the APA. Second, this Note describes some ways that Congress could amend the Nutrition Act, the statute governing the Guidelines. Applying the APA to the Guidelines would allow for public participation and public challenge, greater transparency, and greater efficiency across agencies. Evidence-based Guidelines would improve overall health, reduce healthcare costs, and ensure that food assistance beneficiaries can access healthy foods. A robust set of Guidelines would improve public confidence in the recommendations and enable further food law reforms, such as amending the Farm Bill, that would make it easier for people to make healthy choices.