Explainer Episode 74 – Incorporation by Reference and Voluntary Standards

Regulatory experts, Rosario Palmieri and Karen Harned, discuss industry self-regulation, soft law, and voluntary standards. Thousands of products, services, and systems use voluntary, consensus standards to govern product performance and safety, worker safety, financial services, and food safety. This is a layer of self-regulation that usually lies beneath the administrative state or in parts of the economy where private markets have developed mechanisms to ensure that businesses and consumers’ expectations are met in exchanges. Emerging technologies and industries are often first governed by these types of private standards by voluntary agreement. Federal agencies, when deciding to regulate, are required to first rely on industry-created voluntary consensus standards whenever possible. The discussion includes understanding the costs and benefits of relying on private, often copyrighted, standards as a source of law that is incorporated by reference into the U.S. Code and Code of Federal Regulations.