FDA Regulations Point to Need for Strengthened Lobbying Disclosure Laws

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As my colleague Nancy Watzman reported, the Food and Drug Administration proposed strict new rules to ensure the cleanliness of food production, distribution and warehousing facilities. At the same time, the American Bakers Association announced “a major victory” because somehow they had ensured the new rules would not apply to their warehouses.

To find out how and why the ABA secured an exemption to the rules was no straightforward task. A search of the lobbyist disclosure database yielded few results. Instead, it took a Freedom of Information Act request, digging through law firm websites and other sources in order to piece together who the influencers in Washington were and how they managed to ensure their clients were not subject to rules that, on the surface, would appear to be designed to impact their industry.

The ABA case typifies the way the Washington regulatory system works and they way current disclosure regimes fail to provide adequate data to determine who is pulling the influence levers. It should not have required a FOIA request to reveal a still incomplete picture of how industry interests got their exemption. Clearly, lobbying the FDA was involved, yet some industry reps, including the most frequent attendee of meetings about the rule, were not registered as lobbyists.

To take the influence peddling out of the shadows, the serious flaws in the lobbying disclosure regime must be addressed.

Sunlight is in the process of refining and supplementing a number of draft principles that should apply to any comprehensive disclosure regime. Among the most fundamental of those principles, and the ones that would have quickly brought to light the interests in the ABA case, are:

  • A requirement that anyone paid to lobby registers as a lobbyist;
  • A requirement that all lobbyists report their significant contacts, including the name of the official contacted by the lobbyist, a summary of the nature of the contact, the specific actions requested, and the name of the client;
  • Real time, online filing of all reports to facilitate analysis.

Had these principles been in place while the lobbying for an exemption to the food safety rules had been ongoing, it would not have taken the relentless digging of an intrepid reporter to uncover who was shaping the rules.  More importantly, real time, public disclosure of industry’s efforts for special treatment is paramount for healthy debate.

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