According to the EO, ‘Even when accompanied by a disclaimer that it is non-binding, a guidance document issued by an agency may carry the implicit threat of enforcement action if the regulated public does not comply.
‘Moreover, the public frequently has insufficient notice of guidance documents, which are not always published in the Federal Register or distributed to all regulated parties.’
The move has been hailed by the International Bakers Association (IBA), which added it would continue to support the president’s aggressive regulatory reform initiative.
Though the EO does not directly require agencies to reduce the publication of guidance – usually drafted to clarify or supplement agency rules and adjudications – it requires agencies to seek input from the public through a formal process before drafting and releasing the guidance.
It also allows the public to formally petition those agencies to withdraw guidance.
Additionally, said IBA in a statement, this includes two 2017 EOs that require all agencies to refrain from publishing new regulations unless two others are revoked, as well as maintaining a Regulatory Reform Officer to identify outdated or useless regulations to be quashed.
The purpose of guidance documents
Under the US’ Administrative Procedure Act of 1946, US federal agencies do not have to request or consider public input when finalizing guidance documents, which describe the agency’s interpretation of or policy on a regulatory issue.
The Regulatory Impact Analysis (RIA) is an important step in formal law-making to examine the costs to the US economy versus the benefits the rule brings Americans. The RIA’s must be reviewed and approved by the White House Office of Management & Budget (OMB) before the rule can be finalized.
Guidance documents are typically issued far faster than regulations – which can take several years from start to finish – but still have the same practical effect. As such, the White House states they should be subject to the same cost-benefit analysis and public input as formal rules.
Industry input on nutrition facts, sodium reduction
In the past, some agencies have called for public input at their discretion.
According to IBA, it has provided comment on several proposed guidance documents within the FDA’s Nutrition Facts Panel (NFP) update rule.
IBA and other food industry groups have also submitted joint comments opposing FDA’s proposed guidance that recommended that multiple food categories should reduce sodium content, including many related to baked goods, ranging from wheat to bread and cakes and cookies.
However, IBA noted the FDA had failed to perform an analysis on their potential impact on the industry and the broader economy, and independently commissioned a cost-benefit analysis to present to OMB and FDA.
The association asserted it would be impractical to attempt to drastically reduce sodium content in baked goods because the physical stability of the products would be affected.
It added the industry was working hard to develop alternatives, including testing different enzymes, compounds and manufacturing processes ‘to create equally, if not more stable, flavorful and safe baked goods’.