Negotiated rulemaking: the next step in regulatory innovation at the Food and Drug Administration?

Negotiated rulemaking is a regulatory tool designed to build consensus on regulations before notice and comment rulemaking procedures. An agency convenes a negotiation with relevant stakeholders to work together to develop a draft rule. In theory, consensus on a draft rule should then in turn decrease the agency's workload during the notice and comment period and decrease the likelihood of subsequent litigation challenging the rule. Numerous federal agencies have convened negotiated rulemaking committees, and many believe that the negotiations have strengthened their relationships with regulated industries and increased compliance rates. Curiously, the Food and Drug Administration (FDA) stands out as one of the few major agencies that has never attempted to host regulatory negotiations. This paper examines instances where FDA has been urged to hold negotiated rulemaking sessions, and then analyzes why FDA has avoided negotiated rulemaking to date. The paper then highlights reasons why FDA might consider using negotiate rulemaking for appropriate regulations.