The Benefits of Regulatory Friction in Shaping Policy

24 Pages Posted: 11 Mar 2016 Last revised: 27 Sep 2016

See all articles by Diana R. H. Winters

Diana R. H. Winters

Indiana University Robert H. McKinney School of Law

Date Written: February 26, 2016

Abstract

The regulation of food, drugs, and controlled substances in this country is exceedingly complex. Local, state, and federal regulation coexist, and common law remedies supplement positive law. Strata of regulation are necessary because patterns of production and consumption vary by region and demographic, while federal regulation provides regulatory uniformity across the United States. The multiplicity of regulatory authority reflects the complexity of the subject and the elusiveness of certainty. We see these layers strengthen each other at times by filling gaps, but also weaken each other at times through conflict and inefficiency.

As localities struggle to sustain autonomy in response to local preference while working within a centralized system, and federal agencies struggle to maintain regulatory uniformity to foster a national marketplace, we see interaction and friction between regulatory spheres. This friction can be vertical — between the various levels of government, whether local, state, or federal — or horizontal — between the acting authority and other localities or states with conflicting interests. And while this friction usually becomes apparent through a lens of adversity, it is also a space of foment for policy change and democratic engagement. In this Paper, I explore this productive space by looking at several recent instances of action by states in food, dietary supplements, and controlled substances regulation that highlight this friction.

Keywords: food and drug law, federalism, preemption, Commerce Clause

Suggested Citation

Winters, Diana R. H., The Benefits of Regulatory Friction in Shaping Policy (February 26, 2016). Food & Drug L.J., Forthcoming; Indiana University Robert H. McKinney School of Law Research Paper No. 2016-17. Available at SSRN: https://ssrn.com/abstract=2746205

Diana R. H. Winters (Contact Author)

Indiana University Robert H. McKinney School of Law ( email )

530 West New York Street
Indianapolis, IN 46202
United States

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