The Obama administration has sent a memorandum to agency and department heads requesting that proposals and regulations not yet published in the Federal Register be withdrawn pending an opportunity for review. If possible, the agencies should consider extending the effective dates (for 60 days) for any regulations published but not final.

A second memorandum listed specific criteria to assess whether an extension of an effective date should be considered: (which can be summarized as) whether the record supports the conclusions of the rulemaking; whether the rulemaking meets procedural requirements; whether the rulemaking meets the standard for consideration of supporting materials; and, whether the rulemaking is in line with current regulatory policy.

The moratorium would not apply to regulations with statutory deadlines (CPSIA); critical health or safety proposals; and, the definition of “regulation” as “any substantive action ... that promulgates or is expected to lead ... (to) a final rule or regulations ...” (may exclude Guidance-type documents and interpretative statements.) 

Mark S. Hostetler, of counsel at Husch Blackwell Sanders LLP, has more than 25 years of experience in advising consumer product companies, and focuses in advertising and promotions, primarily on the food industry. He has guided producers, advertisers and marketers through regulatory proceedings, product recalls, new product introductions, and new advertising and promotional campaigns.

From the February 2, 2009, Prepared Foods E-dition