The Benefits of Regulatory Friction in Shaping Policy

24 Pages Posted: 29 Sep 2016 Last revised: 25 Oct 2016

See all articles by Diana R. H. Winters

Diana R. H. Winters

Indiana University Robert H. McKinney School of Law

Date Written: September 1, 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. 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. 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. An analysis of these actions and the challenges to them provides an opportunity to view the interaction between different levels of regulatory authority and to discuss implications of the judicial review of these enactments. We see complex and shifting alliances working to change policy, and we see benefits in the push and pull caused by these actions.

Keywords: Food Law, Food and Drug Law, FDA, Federalism

Suggested Citation

Winters, Diana R. H., The Benefits of Regulatory Friction in Shaping Policy (September 1, 2016). 71 Food and Drug L. J. 228, 2016; Indiana University Robert H. McKinney School of Law Research Paper No. 2016-33. Available at SSRN: https://ssrn.com/abstract=2844616

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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