The Backfiring of the FASTER Act

For as long as I can remember, food allergies have been an instrumental part of my life. If a restaurant waiter approaches my table, it’s practically muscle memory for me to first explain that I’m allergic to tree nuts, peanuts, and sesame. Whenever I leave the house, I ensure that either I or someone with me has my EpiPen for emergencies. But, in spite of a few scares and accidents, I’d say my allergies have been handled rather well. I have been able to enjoy eating out on a regular basis while also getting to try a healthy variety of cuisines.

However, one of the bigger disappointments caused by my allergies is my inability to consistently eat burgers. It’s difficult to find a better way to spend your time than having a hearty cheeseburger and a side of fries in front of you, yet it isn’t easy to find places where I can indulge in that experience. But, at the very least, burgers that don’t have visible sesame seeds on the buns are almost certainly safe, right? That would’ve been true four years ago. But thanks to a bipartisan law, an already difficult situation was exacerbated.

The Food Allergy Safety, Treatment, Education, and Research (FASTER) Act, signed into law in 2021 by former President Joe Biden, designated sesame as the ninth major food allergen. The law, which went into effect on January 1, 2023, mandated companies to clearly list sesame as an allergen on food packages and additionally forced commercial manufacturers to comply with the strict regulations of current Good Manufacturing Practices for sesame. The latter rule was most disruptive to the options available for consumers with sesame allergies. Many baking companies, taking into consideration the introduced stringent rules, decided against the costly investments that would’ve been required to guarantee an allergy-friendly environment. Instead, these companies intentionally added sesame flour to their products to obey the law but circumvent the objective lawmakers had in mind. A study using data from the U.S. Department of Agriculture on ingredients in food products identified 240 additions of sesame and 182 removals of sesame during a sample timeframe between 2017 and 2024, with the authors noting that many had nationwide effects due to being major or store brands. The year the FASTER Act went into effect, 2023, coincided with the occurrence of 59 percent of the sesame additions and 50 percent of the removals, proving the gravity of the law. The breads and buns category itself accounted for nearly 70 percent of the sesame additions while only 30 percent of the removals.

Say companies did not engage in this avoidance, and instead set out to meet the expectations of the act. The nature of sesame seeds being incredibly small, static, and easily airborne makes them difficult to clean out of large ovens or other equipment, separating their case from other allergens. Since companies cannot risk cross-contamination under new rules, they would have to halt production lines for deep cleaning, potentially lasting days, and, to completely eliminate the risk, build dedicated allergen-free facilities. And if any mistake were to happen, expect product recalls and lawsuits that could drastically reduce revenue and ruin a brand’s reputation. The sum of all these costs could total millions of dollars; to expect this to not be passed down to consumers to an extent would be irrational, especially considering that the baking industry tends to have relatively tight net profit margins, generally hovering around five to 10 percent. The issue comes down to the FASTER Act reducing welfare no matter what, not necessarily the wrong option being chosen. When given the choice between reducing much of your consumer base in the form of increased prices after spending millions of dollars and alienating a smaller group of people with sesame allergies, it seems reasonable to choose the latter.

Unfortunately for me and millions of others, the change felt like it occurred overnight. Brands I previously deemed safe, such as Shake Shack, Dave’s Hot Chicken, and Wendy’s, were now mostly out of the question. Any new place I might have wanted to try required inconvenient and grueling questioning about whether the product was safe or not. In fact, during a recent trip to the Midwest, I was adamant about trying Culver’s for the first time. To my dismay, I discovered that their signature ButterBurger contains sesame flour, despite the absence of sesame seeds on the buns. The change wasn’t only annoying; it was dangerous. I was fortunate that my family and I were aware of the changes to many products that were previously safe. But others with sesame allergies may not have tracked the legalities as closely, and thus may have been at risk while going to places they assumed were safe.

The massive unintended consequence of this legislation stemmed from perverse incentives established by federal regulations; a well-intentioned act attempting to help a group ended up achieving the opposite. Expectedly, the changes received pushback from the allergy community. Many assumed it was necessary to fix the issue with even more government intervention. The Center for Science in the Public filed a formal Citizen Petition with the Food and Drug Administration (FDA), requesting that the agency consider intentionally adding major allergens to evade regulations to be a federal food safety violation. The FDA denied the request, affirming that the action technically does not violate the law, though they maintain they do not support the practice.

Closing this “loophole” is economically unsound if your goal is to look out for the general population, not its minorities. Why harm people without sesame allergies through higher prices? Prior to the act, choices were more plentiful while prices were not high. If one had an allergy, they had the option to take a relatively small risk with possible cross-contamination, or could allocate their money to purchase products from allergen-free facilities. If lawmakers still saw it necessary to regulate sesame as an allergen, providing some source of leeway could have gone a long way. Perhaps a scientific nonzero threshold for allergen levels could be allowed, which wouldn’t cause reactions in people with sesame allergies. Another could have been to allow labels to use advisory labels such as “May Contain Sesame” when cross-contamination cannot be prevented. It’s difficult to expect satisfactory results when one party, namely the government, is overly strict and uncompromising.

Unintended consequences of government intervention are ubiquitous; this example’s effects are just more direct toward me. As well-meaning as intervention may be, results are what matter in the long term. The congresspeople who passed the 18th Amendment outlawing the manufacture, sale, and transportation of alcoholic beverages could have genuinely aimed to reduce recklessness and improve productivity, but the amendment itself increased organized crime and corruption while reducing economic well-being. The administrators of price controls could seriously want to help people in difficult situations, but the policy itself still ends up reducing the supply of the products in question, driving prices up. Supporters of protectionism may want to help bring employment to the working class, but in practice, the policy reduces the quality and increases the prices of a large array of goods. Policymakers should second-guess every action they take and ensure the benefits outweigh the costs. This could be accelerated through greater trust in independent organizations that model and weigh costs and benefits, and by adopting expert opinion and empirical evidence more frequently into policy. If the results could be complex and uncertain, abstaining could be better than indulging. Otherwise, there could be many more FASTER Acts to come.