Regulations are issued by various departments and agencies of the federal government to implement the intent of legislation enacted by Congress. Administrative agencies, often referred to as “bureaucracy,” perform a number of different government functions, including rule-making. The rules adopted by these bodies are called regulations and are intended to guide the activities of persons regulated by the agency as well as the activities of the agency`s staff. Regulations also serve to ensure consistent application of the law. A few examples of the confusion between the perception of regulation and the understanding of the concept as government intervention may be helpful. Lawmakers and courts have long sought to implement this seemingly simple regulatory approach. It wasn`t until 1906, after decades of debate, that Congress passed the Pure Food Act, which prohibits the manufacture and sale of “any adulterated or mislabeled food or drug.” 2727.See James Harvey Young, Pure Food: Securing the Federal Food and Drugs Act of 1906 (1989); Peter Temin, The Origin of Mandatory Drug Prescriptions, 22 J. L. & Econ.
91 (1979); see also Sam Peltzman, The Health Effects of Mandatory Prescriptions, 30 J. L. & Econ. 207 (1987) (Criticism of restrictions on the sale of medicines). Several poisons, such as tobacco products and unsaturated fatty acids (“trans fats”), are still legal and their regulation was and is controversial. Although the obvious adverse health effects of tobacco and trans fats have been known for decades, legislators and courts are reluctant to recognize that this is the “appropriate role of public authority to protect against accidents.” 2828.See, for example: FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120 (2000). The Family Smoking Prevention and Tobacco Control Act, Pub. L.
No. 111-31, 123 Stat. 1845 (2009) gave the FDA the authority to regulate tobacco products. Regulatory attempts to impose sales restrictions or require disclosures ran into obstacles and objections.2929.La FDA did not begin requiring the disclosure of trans fats until 2003. Food & Drug Administration, Food Labeling: Trans Fatty Acids in Nutrition Labeling, Nutrient Content Claims, and Health Claims, 68 Fed. Reg. 41434 (July 11, 2003). In 2007, New York City introduced a ban on trans fats in food establishments. See N.Y. State Rest.
Ass`n v. N.Y. City Vol. of Health, 556 F.3d 114 (2d Cir. 2009); Roark & Hardee LP v. Austin, 522 F.3d 533 (5th Cir. 2008); R.J. Reynolds Tobacco Co. v. FDA, 845 F. Supp. 2d 266 (D.D.C.
2012); Walgreen Co. v. San Francisco, 185 Cal. App. 4th 424 (2010). Lawyers often use the word “regulation” in reference to the regulations of administrative authorities. This habit follows executive terminology.1313. Daniel defines what is often referred to as “regulation.” For example, Executive Order 12.866, which requires federal agencies to conduct a cost-benefit analysis when “deciding whether and how to regulate,” defines “regulation” as “a statement by the agency of general applicability and future impact that the agency intends to have the force and effect of a law intended to implement laws or directives.
interpret, prescribe or describe the procedural or practical requirements of a public authority”. 1414.Executive Order No. 12.866 § 3 (d), 3 C.F.R. 638 (1993), as amended by Executive Order No. 13,258, 3 C.F.R. § 204 (2003) and Executive Order No. 13,422, 3 C.F.R. 191 (2007), reproduced as amended in 5 U.S.C. § 601 (2006), repealed by Executive Order No. 13.497, 3 C.F.R. 218 (2010). Executive Order 12.866 replaced Executive Order 12.291, which President Reagan issued in February 1981 and contained the same definition.
This meaning reflects another common interpretation of the term “regulation”, but certainly does not cover the full range of regulatory instruments. Much of our regulatory landscape does not come from administrative authorities.1515.For example, the law adopted by the courts – the common law – is a traditional form of regulation. See Andrew P. Morrisss et al., Regulation by Litigation (2008); Regulation Through Litigation (W. Kip Viscusi, ed., 2002); Richard A. Posner, Regulation (Agencies) versus Litigation (Courts): An Analytical Framework, in Regulation vs. Litigation 11 (Daniel P. Kessler ed., 2010); see also Freedom Holdings, Inc. v. Spitzer, 358 F.3d 205 (2d Cir.
2004); Sanders v. Braun, 504 F.3d 904 (9. cir. 2007); The T.J. Hooper v. Northern Barge, 60 F.2d 737 (2d Cir. 1932). The definition of regulation as interference with privacy is quite old. As early as the mid-nineteenth century, John Stuart Mill casually used the word “regulation” to describe “government intervention in the affairs of society” and the laws implementing such interventions.2323.John Stuart Mill, 2 Principles of Political Economy 525-71 (1848). Mill argued that “no question has been more hotly contested in our day” than “the boundaries of the government province.” He postulated that the source of the controversy was largely an ideological division between two groups in society – “the proponents of interference [who believe the government should act] wherever their intervention would be useful” and “the laissez-faire school, which believes that the government province should be restricted. to protect people and property from violence and fraud.” 2424.Id. at p.
525. Reflecting on such beliefs, Mill emphasized that “on any issue where disagreement is possible, truth depends on a balance that must be struck between two contradictory reasons. We don`t [always] understand the reasons for our opinion. But if we remember . Three-quarters of the arguments in favour of any contested opinion are aimed at dispelling phenomena that favour a different opinion. 2525.John Stuart Mill, On Liberty 66-67 (1859).