Natural Foods Merchandiser

An Open Letter To The Industry

Imagine you receive a call from your corporate lawyer informing you that Congress just passed a law that makes the name of one of your products illegal. If you are a retailer, it means you have to pull product from the shelves. If you are a manufacturer, it means you have to recall products and relabel them. If you are a consumer, it means that product X you are used to buying is now called Y. What?s worse, the law goes into effect immediately. By the time you find out about it you are already in violation and vulnerable to a lawsuit. How did this happen? How can you protect yourself?

Unfortunately, this extreme example actually happened to several of my clients. Congress and the federal regulatory agencies have the power to throw curve balls in many other ways. Be prepared to face some major league pitching in the coming years. Consider this starting lineup: Congressional attempts to overturn or dramatically amend the Dietary Supplement Health and Education Act; initiatives to require manufacturers to turn in adverse event report data; a regulation to establish good manufacturing practices for supplements; changes to dietary supplement rules as the result of the Data Quality Act and other laws; precedent-setting regulations governing specific classes of supplements; and the Federal Trade Commission?s crackdown on product marketing.

Depending on how these issues are resolved, a number of legislative and agency initiatives now under way in Washington may change the supplements industry. The good news is that laws, regulations and agency decisions can be changed. The policy-making process may seem mysterious. However, as complicated as our system of government is, one truth is inescapable—in most cases you are going to win when common sense and the facts are on your side.

Here?s some more good news: Your senators and congressman or -woman are your allies. As your elected representatives, they presume that you are right and the government is wrong. I can?t tell you how many times I have been in congressional meetings and seen the same reaction. I explain the wrong-headed decision made by a bureaucrat or the unintended consequence of a law. Eyes roll in disbelief and the blood begins to boil. Now they have a mission to fight for you, their constituent.

Also, in the world of public policy, your competitors can be your best friends. Chances are that the misguided government action affects your competition as much as it affects you. This is the time to embrace your competitors, especially since a competitor from another state can bring another three representatives to the table. Even bringing a small number of competitors together in a coalition will expand your ability to win.

Here is another important point: This isn?t an arena just for the big companies. I?ve seen small companies, even start-ups, prevail. By cultivating allies in Congress and within an industry, the little guy isn?t little anymore and, with a coalition, you aren?t alone.

The bottom line is that you have the power to affect change regardless of what Washington has done or is about to do. Pending legislation can be changed because it is not yet final. Laws that are on the books are changed and rewritten all the time. That?s what Congress does. Finally, agency actions can be overturned. As frustrated as you may be by the bureaucrat who said ?no? when common sense dictated ?yes,? imagine how responsive that bureaucrat will be after the boss?s boss fields the call from a senator who says, ?What in the world is going on over there??

I encourage you to make your voice heard in Washington when your interests are at stake. Democracy is not just an abstract theory, it is a call to action.

Brian Lopina is an attorney at Patton Boggs LLP, the law firm with the largest government relations practice in Washington, D.C.

Natural Foods Merchandiser volume XXV/number 2/p. 20

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