Food industry considers President Trump’s regulation freeze

by Jay Sjerven
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Jay Sjerven

WASHINGTON — While President Donald J. Trump continued to assemble his cabinet (Thomas E. Price was sworn in as secretary of Health and Human Services on Feb. 10, but no hearings yet were scheduled as of this writing to consider the nomination of Sonny Perdue as secretary of agriculture), the food industry pondered how recent presidential orders freezing new and pending federal regulations and possibly rolling back existing regulations may affect food safety and oversight in the coming months.

President Trump, through a memorandum issued by his chief of staff Reince Priebus on Jan. 20, ordered a freeze on new or pending federal regulations so his administration may review them. Such a freeze is not unusual at the beginning of a new administration; after all, it is the heads of departments and agencies selected by the president who will be responsible for implementing any new rules.

The memorandum stated no new regulation may be sent to the Federal Register for publication until a department or agency head appointed or designated by the president has reviewed and approved it. Regulations already sent to the Federal Register but not yet published must be withdrawn for review and approval. Regulations that have been published in the Federal Register but that have not taken effect will have their effective date postponed 60 days from Jan. 20 so they may be reviewed “for the questions of fact, law and policy they raise.” The memorandum does not apply to regulations subject to statutory or judicial deadlines.

Donald Trump
Industry ponders how president's actions may affect food safety and oversight in the coming months.

The law firm of Covington & Burling L.L.P. noted in an analysis of the regulatory freeze that the memorandum does not direct federal agencies to stop working on regulations, it does not affect comment periods for dockets that are currently open, and it does not prevent agencies from considering comments already submitted. Covington & Burling also said the memorandum does not affect regulations that already have taken effect.

Further, the firm noted the regulatory freeze will not affect regulations the Food and Drug Administration issued under the Food Safety Modernization Act in 2015 and 2016. It also will not affect the Nutrition Facts Panel rule.

Also of great import to the food industry was recent legislation directing the U.S. Department of Agriculture to establish a national mandatory bioengineered food disclosure standard by July 2018. The U.S.D.A. has sent an advance notice of proposed rulemaking to the Office of Information and Regulatory Affairs in connection with developing the bioengineered food disclosure standard, and Covington & Burling indicated because the standard is subject to a statutory deadline, “the advance notice of proposed rulemaking could be considered outside the scope of the regulatory freeze.”

The freeze may delay the publication of additional regulations that the F.D.A. or U.S.D.A. may complete in the near future, including further guidance documents on implementation of the FSMA or on the revised Nutrition Fact Panel requirements, Covington & Burling observed.

An executive order issued Jan. 30 by Mr. Trump broadened the scope of the administration’s effort to reduce regulatory burdens on the American economy. The order titled “Reducing regulation and controlling regulatory costs” stated, “It is important that for every one new regulation issued, at least two prior regulations be identified for elimination, and that the cost of planned regulations be prudently managed and controlled through the budgeting process.”

The executive order also stated that for the current fiscal year, agency heads must ensure that “the total incremental cost of all new regulations, including repealed regulations, to be finalized this year shall be no greater than zero, unless otherwise required by law or consistent with advice in writing by the director of the Office of Management and Budget.”

Robb MacKie, president and chief executive officer, American Bakers Association, said, “For bakers, there will be many benefits of rolling back or modernizing unneeded and unjustified environmental, labor and financial regulations. However, there are a few areas where a more thoughtful and judicious approach needs to be taken. For instance, many of the regulations to fully implement the 2010 FSMA have yet to be implemented. Despite that, the industry is working diligently to implement the requirements of the law.”

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