New Paper by the Coalition for Sensible Safeguards Exposes the Dangers of the Regulatory Accountability Act

The Big Business attack on public safeguards will get a little more intense in the coming days, when the House votes on a couple of particularly treacherous deregulatory bills aimed at dumping a barrel of molasses into the rulemaking process.

In this space I’ve previously written about the REINS Act, the bill that would require congressional approval of all major rules within 70 days. This ludicrous provision (as if Congress can get anything done in 70 days) is designed to prevent any rules from seeing the light of day. The other blunt object being used against public protections is the Regulatory Accountability Act (RAA), a cynical attempt by the supporters of Big Business to cripple the federal regulatory process. Both of these odious measures will be up for votes in the House soon.

The RAA is deceptively presented as a “reform” to the rulemaking process, but don’t be fooled. The bill would add more delays to an already exhaustive process and set an even higher bar than currently exists for issuing needed protections. In effect, the RAA would hamstring all rulemaking agencies and squander their resources, placing the American people in harm’s way.

A clarion call is being issued by the Coalition for Sensible Safeguards (of which Public Citizen plays a leading role) with its new paper, Impacts of the Regulatory Accountability Act: Overturning 65 Years of Law and Leaving Americans Less Protected. It’s a thorough look into the bill and it reveals several examples of how it would affect the rulemaking process. The RAA would:

• Make the “least costly” rule the default choice, instead of promoting the public good

• Super-mandate cost-benefit analysis even when it would be misapplied

• Shift to “formal” rulemaking processes that thwart appropriate give and take

• Eliminate hybrid rulemaking that is often the best approach

• Allow judicial review of all agency judgments, undermining scientific findings

Agencies already have had some ridiculous experiences with some of these procedures and Big Business has effectively used them to throw a monkey wrench into a proposed rule it didn’t like. A classic example of this is the Food and Drug Administration’s “peanut butter” rule, which was developed several decades ago.

In 1959, it was revealed that the largest brands of peanut butter contained only 20 percent peanuts. (Don’t want to know what was in the other 80 percent – yuck). So, the FDA began the rulemaking process according to the formal rulemaking procedures provided in the Food, Drug, and Cosmetic Act (FDCA).

The FDA’s came up with a rule that said peanut butter must contain at least 95 percent peanuts; however, after recognizing that consumers preferred peanut butter that spread more easily, the FDA reduced the standard to 90 percent in 1961. Big Peanut Butter petitioned the FDA for a formal hearing (in accordance with the formal rulemaking provisions in the FDCA) to argue for the standard to be set at 87 percent.

The formal hearing alone added nearly five months to the rulemaking process and resulted in a transcript of approximately 8,000 pages primarily discussing whether peanut butter should contain 87 percent or 90 percent peanuts.

Nine years later, in July 1968, the FDA finalized the standard at 90 percent. Yet, the battle continued for another two years as a result of the industry’s challenge of the rule in the Third U.S. Circuit Court of Appeals. Ultimately, the court affirmed the agency’s finding, noting that, based on the formal record, even if 87 percent was a reasonable alternative, the FDA’s 90 percent standard was equally reasonable and thus should not be overturned.

This is but one instance that shows the lengths Big Business will go to in its attempts to keep its bottom line sacrosanct. The new paper from the Coalition for Sensible Safeguards has more examples, many of them about serious threats to public health and safety (asbestos, lead in gasoline, etc.). This is a deadly serious game industry is playing, and it is being played out with the well-being of the American people hanging in the balance.

That’s why we need to stand up. Everyone needs to take action now! Join Public Citizen and let your elected representatives know you want public safeguards placed ahead of corporate profits.