WLF Urges FDA to Replace Guidances with Rulemaking
The Washington Legal Foundation (WLF) is urging FDA to replace all older guidances with formal regulations that undergo a notice-and-comment rulemaking process. “Perhaps more importantly, FDA should adopt a strict rule requiring that all draft guidances not adopted in final form within two years of initial issuance must be withdrawn,” the group said in 12/7 comments to the agency. The comments were in response to an agency request to “identify existing regulations and related paperwork requirements that could be modified, repealed, or replaced, consistent with the law, to achieve meaningful burden reduction” (see earlier story).
In its comments, WLF took aim at FDA’s use of guidance documents as an “often-inadequate substitute for notice-and-comment rulemaking. The result of that practice has been the development of an entire body of ‘regulations’ that has never been subjected to an adequate review process and, indeed, often remains in ‘draft’ form for years on end.”
Additionally, the group is critical of FDA’s routine statements that guidance documents do not operate to bind FDA or the public. But this contradicts other statements that such documents embody FDA’s “current thinking” on regulatory issues, and many agency enforcement staff regularly point to guidances as the basis for concluding non-compliance, it says. “WLF submits that FDA’s current heavy reliance on guidance documents (including ‘draft’ guidances) imposes excessive burdens on the regulated community.”