Entomophagy—the practice of eating insects—has the potential to help meet the demand for human food and address food insecurities in an environmentally sustainable manner. The realization of the potential of insects as food, however, is not without its challenges. These challenges include the lack of regulation specifically addressing insects as food and the stigma towards the use of insects as food.
While the United States Food and Drug Administration (FDA) has devoted significant attention to insects as defects in human food, it has given comparatively little attention to insects as human food. The insect food industry in the United States, while still limited, is growing, as is the number of packaged foods offered for sale that intentionally incorporate insects. This Article critically examines FDA’s regulation of insects in the context of food, including its regulation of insects as defects, insect-derived products, and insects as food or a component of food. To date, FDA’s regulation of insects as food has been largely characterized by inaction. This Article argues that in light of the substantial law categorizing insects as “filth” under the Federal Food, Drug, and Cosmetic Act (FDCA) and FDA’s extensive regulation of insects as filth, this inaction is not neutral and FDA should affirmatively and unambiguously recognize that insects used as food are “food” under the FDCA. FDA should also develop a test to distinguish between insects as food and insects as filth and should consider using intent to distinguish between insects as food and insects as filth. This Article suggests that culturally, insects are not commonly considered food in the United States, in part because FDA has generally regulated insects as filth. By recognizing insects as food, FDA may help to facilitate greater cultural acceptance of the use of insects as food.
Assistant Professor, University of South Carolina School of Law. A.B., Harvard University. J.D., Yale Law School. Thanks to Nathan Cortez, Thomas P. Crocker, Jacqueline R. Fox, Lewis Grossman, Jaimie R. Harrison, and Zoe and Colin Miller for their comments and suggestions on earlier drafts of this Article. Thanks also to participants at the 2017 AALS New Voices in Administrative Law Works-InProgress Program, the 2017 Meeting of the Association for the Study of Law, Culture and the Humanities, and the 2017 SEALS Conference, for their comments and questions. Thanks also to Candle Wester-Mittan, Carmen Jackson, Valerie Lawrence, and Ivia Smith for their research assistance, and to Vanessa McQuinn and Inge Lewis for their administrative support.