Bill meant to restrict growth of regulations sparks contentious debate

By Hank Schultz contact

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Bill meant to restrict growth of regulations sparks contentious debate
Advocacy groups are reacting strongly to a bill sponsored by Sen. Rob Portman (R-OH) that would require a cost-benefit analysis to be performed for every new federal regulation.

The Regulatory Accountability Act​ has been branded the ‘Filthy Food Act’ by the Center for Science in the Public Interest, and the ‘Risk to Americans Act’ by the National Resources Defense Council, while the moniker the ‘License to Kill Bill’ is being passed around by an assortment of left wing media outlets.

Increasing competitiveness, agility of industry

The bill is a bipartisan effort; Sen. Heidi Heitkamp, D-ND is a cosponsor. It should be noted that fracking for oil has become big business in North Dakota and elsewhere in the West, and oil companies often complain that what they term as burdensome legislation limits the pace at which they can drill new wells.  The issue has become so contentious that last year the state of Colorado took municipalities to court to strike down local laws that sought to put extra restrictions on fracking activities close to residential areas.

For his part, Sen. Portman has this to say about the motivations behind the bill: When I visit a factory or small business in Ohio, one of the complaints I hear most often from employers is that there are too many costly and unnecessary regulations that limit their ability to invest in their business and create more jobs. We need a smarter regulatory process that promotes job creation, innovation, and economic growth, while also continuing to protect public health and safety and the environment.

Undermining protections that are in place?

CSPI of course has a different take. In a statement, the organization said, The bill would affect every aspect of Americas food supply, undermining federal work to prevent bioterrorist attacks on our food sources, inspect meat and eggs for Salmonella, reduce antibiotic-resistant bacteria in meat and poultry, and inform consumers about the content of the foods we eat.

The bill would force government agencies to apply a cold financial calculus to every important decision, emphasizing costs to business over benefits to people,​the organization concluded.

Dollar figures put on rules

The bill would place new rules into ‘major guidance’ and ‘high impact rule’ categories, based on their potential effect on the economy.  A ‘major guidance’ is one that would have an annual impact of $100 million or more;  for a  ‘high impact rule’ that figure is $1 billion.  The definitions of both categories also include caveats about their effects on consumer prices and on competitiveness and employment, qualifiers that presumably could ensnare most proposed new regulatory actions into the review process even if they don’t clear the dollar figure hurdle.  The bill would require federal agencies to draft clear, easy-to-understand rules and provide an outline of how the agency will analyze the rules’ potential impacts.  And all of that would be subject to judicial review.

Restoration of separation of powers

Washington, DC-based attorney Jonathan Emord has a record of taking regulatory agencies to court on behalf of food and beverage clients and winning. Emord, who makes no secret of his view that the growth of the modern regulatory structure in government has diminished civil liberties, said the bill is a reasonable brake on the power of regulatory agencies.  He views the bill as only a first step in restoring the balance of government as laid down in the U.S. Constitution.

The reforms that are taken here are not all that is necessary to restore the separation of powers under the law that has been sorely rent by the explosion of regulatory power,​Emord told FoodNavigator-USA.

Under the Constitution only Congress is authorized to make law.  But since the 1930s, with the growth of the power of the regulatory agencies, some of these agencies have become both accuser, prosecutor and judge and we end up with unjust results as a matter of course,​ he said.

This bill would require a full oral evidentiary hearing with the opportunity for cross examination of witnesses. It would slow the process and require more deliberation before a rule could be imposed,​ Emord noted.

Rule making already seen as labyrinthine

Alan Lewis is a communications manager and government affairs specialist for Natural Grocers by Vitamin Cottage, an organic foods and dietary supplement retailing chain with more than 140 stores in the western U.S.  The company is noted for its high standards, including instituting its own rules on what qualifies as grass fed dairy products.  Lewis said in his view the regulatory process is already quite deliberate and cumbersome, and this bill wouldn’t do much to change that.

Bureaucratic rule making already takes decades.  It took 17 years in the case of dietary supplement GMPs, and 10 years in the case of the national organic production final rule.  I dont see how this bill would either speed up or slow down the regulatory process, or make it more helpful, for that matter,​ he said.

Related topics: Regulation

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