Regulatory and Legal Reform

Unnecessary regulations and excessive red tape prevent us from reaching new levels of achievement and make it harder for small businesses to compete. We need regulatory and legal reforms that unleash our industry and supports the work of men and women nationwide.

Policy and Legal

Counterfeit Goods Harm Manufacturers and Consumers

When almost anything can be ordered online, how do you know if the product you’re buying is legitimate? Counterfeit goods are increasingly prevalent, and third-party e-commerce sites are making it easier than ever for counterfeiters to distribute inauthentic products.

To help combat this, the National Association of Manufacturers submitted comments last week to the Department of Commerce, proposing solutions to this counterfeit goods problem that is detrimental to manufacturers and customers alike. These comments reflect the rising tide of counterfeit products available, from auto parts to toys, from medicines to electronics and more.

These sales don’t just hurt businesses or inconvenience customers. Fake products can be a health and safety hazard. For example, prescription drugs are commonly counterfeited—with potentially severe consequences.

“First and foremost, we are always concerned about patient safety and the harmful effects that illegitimate products have,” Eli Lilly Director of Global Public Policy Tim McGuire said. “There is significant risk associated with putting medications in your body that haven’t gone through the rigorous regulatory review and approval processes that include safety testing and quality inspections.”

Even if a manufacturer is aware that counterfeit products are being distributed, getting those products removed from websites and working to communicate to customers that they have purchased fake goods is no small task. The process of identifying counterfeit sellers requires constant monitoring of search engines, e-commerce sites and other methods of distribution, and the onus is on the maker rather than the retailer.

“The big challenge is that counterfeiters always come back, and there isn’t a good structure in place to permanently prevent them from operating,” said Whirlpool Corp. Legal Counsel Nathan Davis. “You take down a listing, they put up a new listing. You shut down one website, they launch another website. The existing consequences are not sufficient to stop them.”

And for small- and medium-sized companies, the resources needed to stop the sale of counterfeit products can be prohibitive. Napoleon gas grills are an example: Accessories to go with these are often counterfeited and marketed as acceptable for use with Napoleon’s products. Consumers then think the counterfeit product is covered by Napoleon’s warranty.

“We’re essentially underwriting counterfeit products,” Napoleon Technical Support Manager Dana Moroz said. “The credibility of our brand name is affected, and we end up having to warrant inferior products to sustain our name. To the consumer, it’s all a Napoleon product.”

The NAM’s public comments provide next steps for combating counterfeiting, including recommendations for the U.S. government, for brand owners, and for online marketplaces and websites.

“Winning the fight against counterfeiters requires everybody—not just manufacturers, but e-commerce platforms and search engines, customs agents and consumer safety advocates—to get serious,” said NAM Director of International Business Policy Ryan Ong. “Stopping the flow of these products means not just legal and policy changes, but smarter enforcement priorities, better coordination and information sharing and a serious commitment by all parties to do their part.”

Press Releases

NAM Statement on Supreme Court Decision in Kisor v. Wilkie

Narrowing of “Auer Deference” Will Give Manufacturers Added Regulatory Certainty

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Washington, D.C. – National Association of Manufacturers Senior Vice President and General Counsel Linda Kelly issued the following statement on today’s Supreme Court ruling in Kisor v. Wilkie:

The judicial doctrine of ‘Auer deference’ harmed manufacturers’ competitiveness because it gave agencies exceedingly broad authority to interpret vaguely crafted regulations, said Kelly. While Auer deference was not struck down in full, the court narrowed it significantly, which will give manufacturers in America added regulatory certainty so they can grow, hire and invest more here in the United States.

In February 2019, the NAM’s legal arm, the Manufacturers’ Center for Legal Action, filed a multi-association amicus brief with the Supreme Court, which included examples of how the legal doctrine harmed manufacturers. To learn more about the MCLA, click here.

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The National Association of Manufacturers is the largest manufacturing association in the United States, representing small and large manufacturers in every industrial sector and in all 50 states. Manufacturing employs more than 12.8 million men and women, contributes $2.38 trillion to the U.S. economy annually, has the largest economic impact of any major sector and accounts for more than three-quarters of private-sector research and development. The NAM is the powerful voice of the manufacturing community and the leading advocate for a policy agenda that helps manufacturers compete in the global economy and create jobs across the United States. For more information about the Manufacturers or to follow us on Shopfloor, Twitter and Facebook, please visit www.nam.org.

Policy and Legal

Bill Would Require Federal Agencies to Give More Notice of Regulations

capitol building Washington DC

Sunlight is the best disinfectant. That was the message at a hearing last week for a bill aimed at increasing transparency by requiring federal agencies to give advanced notice of regulations. The bill, approved by voice vote with bipartisan support by the Senate Homeland Security and Government Affairs Committee, will move on now to consideration by the full Senate.

Under the Early Participations in Regulations Act, businesses and the public would have more notice of proposed major rules, giving federal agencies more time to collect public comments. Agencies would have to publish advanced notice of proposed rulemaking at least 90 days before the official rulemaking notice. Major rules are considered to be those that have costs or benefits to the economy in the amount of $100 million or more in a calendar year.

Currently, by the time a notice of proposed rulemaking is released, federal agencies have typically already decided what kind of rule will be issued. The proposed bill would give the public more time to be involved on the front end, forcing agencies to collect public comments before proposing concrete regulatory terms, giving affected parties a chance to offer ideas on how to achieve a regulatory goal that the agency may not have considered. If the bill is enacted, among other things, final rules will benefit from a more robust consideration of the public’s feedback and will be more likely to hold up in court.

“An advanced notice requirement would help surface potential roadblocks or find smarter regulatory approaches at an earlier stage before the agency has invested an inordinate amount of time into its chosen path,” said Patrick Hedren, NAM’s Vice President for Labor, Legal and Regulatory Policy. “This is just a basic transparency and good governance measure meant to force agencies to solicit regulatory ideas from the public that they might otherwise not have considered.”

This bill is one that the NAM has long supported in previous Congresses, and it continues to support this legislation in its current form.

“We’re thrilled to see Senators Lankford and Sinema engage on bipartisan good governance measures like this one that improve the way the federal government seeks input from manufacturers and the public,” Hedren said.

Policy and Legal

Climate R&D Bill Would Make Manufacturing More Competitive

Two Bosch manufacturing workers look at a powercell.

A House of Representatives committee recently held a hearing on a bill designed to drive breakthrough innovations to tackle climate change—a priority that has the strong support of the National Association of Manufacturers and manufacturing businesses across the country.

The Clean Industrial Technology Act (CITA) would set up a Transformational Industrial Technology Program at the U.S. Department of Energy, and would drive new technologies aimed at increasing the technological and economic competitiveness of manufacturing in the United States. The program would also find pathways to net-zero greenhouse gas emissions and create a technical assistance program to help local communities and states evaluate and incentivize the adoption of technologies that reduce industrial greenhouse gases. The legislative hearing on the CITA was held by the House of Representatives Committee on Science, Space, and Technology. In the Senate, the NAM has been working closely with Sen. Sheldon Whitehouse (D-RI) on similar legislation.

“Manufacturers have always been about solutions,” said Rachel Jones, Senior Director of Energy and Resources Policy at the NAM. “We need real-world technologies to address our global climate problem, and legislation like the CITA provides a common sense opportunity to move our efforts forward. This bill takes a clear-eyed look at the unique challenges that different energy-intensive industries face as we all work toward ensuring a safer and more prosperous future.”

Manufacturers across the country are deeply involved in sustainability programs, leading the way for other industries in protecting our environment. Most manufacturing companies have already pioneered new technologies and implemented meaningful programs to reduce greenhouse gas emissions. With more than 12 million men and women employed by the industry in every state in the country, manufacturing businesses have a unique perspective on the challenges of our shared path forward and have consistently worked with Congress to promote bills like the CITA.

“Providing incentives for U.S. businesses, schools and laboratories to bring game-changing technologies into the commercial sector isn’t just good policy; it’s common sense,” said Jones. “Cooperative partnerships between industry, government and academia benefit all three sectors and the country as a whole.”

Manufacturers contributed 18 percent more value to the American economy over the past decade while reducing the carbon footprint of their products by 21 percent—demonstrating that productivity and sustainability are compatible with each other—and keeping the industry’s promise to promote sustainable solutions.

“Manufacturers are committed to reducing greenhouse gases and addressing climate change while preserving our global competitiveness,” said Jones. “This legislation is a great example of how we are working with policymakers to turn aspirations into reality in order to protect our environment and improve our world. Manufacturers applaud the House Science Committee and Sen. Whitehouse for their leadership.”

Policy and Legal

Manufacturers Push For Fast-Track Recall Legislation

capitol building Washington DC

Last week, the U.S. House of Representatives’ Energy & Commerce Committee’s Subcommittee on Consumer Protection and Commerce held a legislative hearing on proposed improvements to the Consumer Product Safety Commission (CPSC), including one bill applauded by manufacturers across the country. H.R. 3169, known as the FASTER Act, would codify and strengthen the “fast-track” recall program, making it easier for companies to issue a voluntary recall if they determine that one of their products is unsafe.

Instituted by the CPSC nearly 25 years ago, the existing fast-track program is intended to provide companies with the ability to quickly recall a product if necessary, eliminating procedural steps like the CPSC staff’s technical evaluation of a product to determine if a defect exists that could harm consumers. That procedure, called a preliminary determination, can take several months. By streamlining the time-consuming review, manufacturers can quickly ensure the safety of consumers when they have already determined that a recall is necessary.

However, the fast track program has frequently been slowed down by bureaucratic Commission obstacles that have delayed even voluntary recalls by months.

“The CPSC’s fast-track program, once an award-winning agency program allowing for swift voluntary recalls, has become hampered by bureaucratic disagreements over non-substantive concerns, such as the wording of press releases and other hold-ups that create unnecessary hurdles to ensuring the safety of products on the market,” said Graham Owens, NAM Director of Legal and Regulatory Policy. “In other words, the program’s signature quality—that of being fast—seems to have been recalled itself.”

The bill Congress is considering would make the agency-created fast-track program permanent, while also clearly laying out how the process should work to prevent red tape from creeping back in. Meanwhile, the Commission would still have the power to make companies go through the long-form recall process on a case-by-case basis if it determines the expedited process was insufficient, ensuring that the Commission continues to hold regulatory authority.

“The FASTER Act would alleviate bureaucratic and non-substantive red tape by codifying the fast-track program into law—and by preventing the commission from delaying the posting of public notices of recall plans,” said Owens. “These simple steps would immediately speed up voluntary recalls to the benefit of consumers, manufacturers, and even the Commission itself.”

After fighting for many years to fix these administrative delays, manufacturers are hopeful that Congress will finally update the fast-track process.

“This hearing is a great start toward ensuring manufacturers are able to voluntarily recall products in an efficient and effective manner,” said Owens. “The FASTER Act, if passed, would improve the agency’s effectiveness in discharging its critical mission, and we commend the Subcommittee for focusing on common sense reforms. Manufacturers stand ready to work with Congress and the CPSC to achieve this laudable goal.”

Press Releases

NAM Notches Win Against 2015 WOTUS Rule in Federal Court

Ruling Protects Manufacturers’ Right to a Fair and Transparent Rulemaking Process for Major Regulations

Washington, D.C. – National Association of Manufacturers Vice President for Litigation and Deputy General Counsel Peter Tolsdorf released the following statement after the U.S. District Court for the Southern District of Texas ruled that the Environmental Protection Agency’s 2015 Waters of the United States rule violated the Administrative Procedure Act:

For nearly four years, the Manufacturers’ Center for Legal Action has battled the overreaching WOTUS rule in the courts, and manufacturers have claimed another important victory, said Tolsdorf. The court’s ruling protects manufacturers’ right to a fair and transparent rulemaking process for significant environmental rules with multibillion-dollar impacts.

This rule was unreasonable on its face—it was a water regulation that went so far as to attempt to regulate dry land. This made compliance nearly impossible and put manufacturing jobs at serious risk. Manufacturers will continue to fight for fair, clear regulations that empower us to be responsible stewards of the environment while continuing to grow the U.S. economy.

In October, the NAM filed a motion for summary judgment in the U.S. District Court for the Southern District of Texas to invalidate the 2015 WOTUS rule.

Specifically, the court found that the EPA did not provide the public with reasonable notice and an opportunity to comment on the final rule’s definition of jurisdictional “adjacent waters.” The court also concluded that the EPA violated the APA by releasing the technical basis for the proposed rule only after the public notice and comment period had closed.

The NAM’s legal arm, the Manufacturers’ Center for Legal Action, has been in active litigation against the rule since July 2015, helping lead a large coalition of business groups to sue the EPA. Arcane procedural obstacles prevented the courts from hearing the merits of our legal challenge for several years. In early 2018, however, the MCLA scored a significant legal victory before the U.S. Supreme Court, which resolved those issues and has allowed litigation against the substance of the rule to proceed. The MCLA is also challenging the rule in a separate federal court in Georgia and has filed supporting amicus briefs in other legal challenges to the rule. To learn more about the MCLA, click here.

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The National Association of Manufacturers is the largest manufacturing association in the United States, representing small and large manufacturers in every industrial sector and in all 50 states. Manufacturing employs more than 12.8 million men and women, contributes $2.38 trillion to the U.S. economy annually, has the largest economic impact of any major sector and accounts for more than three-quarters of private-sector research and development. The NAM is the powerful voice of the manufacturing community and the leading advocate for a policy agenda that helps manufacturers compete in the global economy and create jobs across the United States. For more information about the Manufacturers or to follow us on Shopfloor, Twitter and Facebook, please visit www.nam.org.

Press Releases

NAM Statement on EPA Cost-Benefit Rule Memorandum

Timmons: “This Announcement Isn’t Deregulation; It’s Better Regulation”

Washington, D.C. – National Association of Manufacturers President and CEO Jay Timmons released the following statement on EPA’s memorandum outlining reforms to how it conducts cost-benefit analysis:

Reforming the way the EPA performs cost-benefit analysis is likely to have a greater positive impact on the future of manufacturing in America than any single EPA regulatory action, said Timmons. This announcement isn’t deregulation; it’s better regulation. Through this new initiative, the EPA will get regulations done right the first time, delivering clarity and transparency for manufacturers. Our industry will spend less time working through complicated rules and more time doing what we’ve promised the America people we’ll do: create new jobs, raise wages and benefits and invest in new operations while protecting our air and water.

-NAM-

The National Association of Manufacturers is the largest manufacturing association in the United States, representing small and large manufacturers in every industrial sector and in all 50 states. Manufacturing employs more than 12.8 million men and women, contributes $2.38 trillion to the U.S. economy annually, has the largest economic impact of any major sector and accounts for more than three-quarters of private-sector research and development. The NAM is the powerful voice of the manufacturing community and the leading advocate for a policy agenda that helps manufacturers compete in the global economy and create jobs across the United States. For more information about the Manufacturers or to follow us on Shopfloor, Twitter and Facebook, please visit www.nam.org.

Policy and Legal

Manufacturers Stand Up for Equality

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Manufacturing businesses have long been proponents of equality in the workplace. As legislation to codify protections for LGBT individuals passes through the House of Representatives, the National Association of Manufacturers joined the U.S. Chamber of Commerce, Business Roundtable, and other members of the business community in advocating its passage, forging coalitions and providing congressional testimony.

Introduced with bipartisan support in the U.S. House and Senate in March, the Equality Act includes federal protections for individuals based on sexual orientation and gender identity under the existing framework of the Civil Rights Act, which already provides protection against discrimination on the basis of religion, national origin, race, color or sex. The goal of the legislation is to ensure that no person can face legal discrimination based on their gender or sexual orientation, setting a clear federal standard to enable individuals to succeed based on their abilities and qualifications to perform a job.

“Employers understand the importance of creating an environment in which the very best people can succeed based on merit,” Patrick Hedren, NAM vice president, labor, legal and regulatory policy, said. “At the same time, manufacturers know that discrimination in any form is antithetical to the values that we work to uphold every day: equality of opportunity, individual liberty, free enterprise and competitiveness.”

In March, more than 40 other industry associations rallied to support the Equality Act, providing an important boost for the groundbreaking legislation. In the weeks since, manufacturing representatives have testified before the House Education and Labor Committee and signed a coalition letter to the House Subcommittee on Civil Rights and Human Services calling for the Act’s passage. As Congress considers the way forward, manufacturers have made clear that they intend to advocate forcefully on behalf of the legislation and uphold their commitment to workers of every gender identity and sexual orientation.

“The Equality Act creates a clear federal standard that matches the sentiments manufacturers already share: gender identity and sexual orientation have no impact on an employee’s abilities and discrimination is not welcome on the manufacturing floor,” Hedren said. “We look forward to working with Congress as this important legislation moves ahead.”

Press Releases

NAM Welcomes House Judiciary Committee Markup of Equality Act

Washington, D.C. – The National Association of Manufacturers released the following statement on the House Judiciary Committee’s markup of the Equality Act (H.R. 5):

The Equality Act creates a clear federal standard that matches the sentiments manufacturers already share: gender identity and sexual orientation have no impact on an employee’s abilities, and discrimination is not welcome on the manufacturing floor, said NAM Vice President of Labor, Legal and Regulatory Policy Patrick Hedren. This bill’s basic approach of including protections under the existing framework of the Civil Rights Act is sensible. By making these protections consistent with those for other protected classes, it takes advantage of decades of judicial precedent to provide as much clarity as possible to the businesses that must ultimately comply.

In March, the NAM joined more than 40 other business trade associations in support of the Equality Act, and the list of support has since grown. In April, the NAM testified in support of the legislation before the Education and Labor Subcommittee on Civil Rights and Human Services.

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The National Association of Manufacturers (NAM) is the largest manufacturing association in the United States, representing small and large manufacturers in every industrial sector and in all 50 states. Manufacturing employs more than 12 million men and women, contributes $2.25 trillion to the U.S. economy annually, has the largest economic impact of any major sector and accounts for more than three-quarters of private-sector research and development. The NAM is the powerful voice of the manufacturing community and the leading advocate for a policy agenda that helps manufacturers compete in the global economy and create jobs across the United States. For more information about the Manufacturers or to follow us on Shopfloor, Twitter and Facebook, please visit www.nam.org.

Press Releases

NAM to Key-Vote Against H.R. 1

Washington, D.C. – The National Association of Manufacturers announced in a letter to members of the U.S. House of Representatives today that it will key-vote against House passage of H.R. 1, the For the People Act of 2019.

At its core, this proposed legislation would threaten and place limits on rights guaranteed by the First Amendment, wrote NAM Senior Vice President of Policy and Government Relations Aric Newhouse. The Supreme Court has repeatedly recognized that voluntary associations are key participants in public debate and has struck down attempts to curb participation in them. Certain provisions in this legislation would create new reputational risks for companies that wish to join associations and participate in the political process as part of the voice of an industry, rather than as an individual actor. These provisions would have a chilling effect on important and protected speech. 

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The National Association of Manufacturers (NAM) is the largest manufacturing association in the United States, representing small and large manufacturers in every industrial sector and in all 50 states. Manufacturing employs more than 12 million men and women, contributes $2.25 trillion to the U.S. economy annually, has the largest economic impact of any major sector and accounts for more than three-quarters of private-sector research and development. The NAM is the powerful voice of the manufacturing community and the leading advocate for a policy agenda that helps manufacturers compete in the global economy and create jobs across the United States. For more information about the Manufacturers or to follow us on Shopfloor, Twitter and Facebook, please visit www.nam.org.

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