Regulatory and Legal Reform

On Wednesday, National Association of Manufacturers Director of International Business Policy Ryan Ong testified before the Special 301 Subcommittee of the Trade Policy Staff Committee on the global intellectual property challenges and priorities for manufacturers in the United States. While manufacturers have long called for stronger intellectual property protection, Ong’s testimony comes at a time when IP theft has been on the rise; a 2017 report by the Commission on the Theft of Intellectual Property found that stolen ideas, brands and inventions drain up to $600 billion from the U.S. economy—nearly double the amount found just four years previously.

In his testimony, Ong highlighted a growing tide of fake products sold in the United States, which has been estimated to cost the U.S. economy between $29 billion and $41 billion every year. He also detailed sophisticated attempts by bad actors to steal U.S. companies’ trade secrets; one 2014 study estimated that the economic loss from trade secret theft is between $180 billion and $500 billion. In addition, he discussed attempts at international organizations to weaken IP protections in the name of other policy priorities, from public health to environmental protection, and explained how these actions overlook the importance of innovation and create barriers to progress.

“The United States has long made vigorous protection of IP rights at home and abroad a cornerstone of our manufacturing competitiveness, but we must do more in the face of these and other challenges,” said Ong. “It is more critical now than ever before that the United States strongly defend intellectual property and innovation around the world in all available forums.”

Ong’s testimony was accompanied by a full list of recommendations on a country-by-country basis to protect the full scope of threats to manufacturers’ intellectual property.

Manufacturers have recently made important progress on intellectual property protections. For example, the “phase one” trade deal between China and the United States—which was a major victory for manufacturers—included Chinese commitments on trade secret protection, patent protection, trademark issues and judicial enforcement. Still, manufacturers continue to fight for robust support of American innovation.

“Every day, manufacturers across the country are transforming their operations to achieve greater efficiency, productivity and competitiveness while working to create a better tomorrow,” said Ong. “None of that is possible without U.S. leadership, driving strong rules to protect our IP and robust enforcement efforts. The success of our industry—and the strength of our economy—depend on it.”

Recently, manufacturers took to Capitol Hill to do their part to combat counterfeit products entering the United States. Counterfeit goods are increasingly prevalent and pose a threat to consumers’ wellbeing and manufacturers’ competitiveness. To take a stand on this growing issue, Johnson & Johnson recently testified before the U.S. House of Representatives Committee on Energy and Commerce. In their testimony, the company highlighted the challenges facing health care manufacturers and the dangers counterfeiting can pose to the health of patients and consumers.

“Illicit trade has increased dramatically in recent years, impacting nearly every industry,” said Johnson & Johnson Vice President of Global Brand Protection Rich Kaeser. “The problem is obviously a serious concern in the health care and personal care industries where patients and consumers can be injured or even die due to unsafe, counterfeit and illicit products. These situations demonstrate why businesses must partner with one another and with government, so collectively we can be a greater force to deter the growing threat of [counterfeiting].”

Beyond consumers, counterfeiting also seriously impacts private shippers like UPS as well as the manufacturers that rely on their services. A new report from the Department of Homeland Security outlines a series of actions on how the federal government can partner with the private sector to combat trafficking in fake goods.

“With the rise of e-commerce and a global economy, counterfeit goods are a significant problem for many of UPS’s customers, particularly small and medium-sized companies,” said Laura Lane, UPS President of Global Public Affairs. “UPS is pleased to see the administration taking action on counterfeits, including enforcing the collection of advanced electronic data, and assurances that packages coming into the U.S., whether through the private express industry or the global postal system, receive consistent treatment and that there is uniformity at U.S. borders to curb counterfeits and dangerous goods from getting into our country.”

With the administration’s breakthrough “phase one” trade deal with China, the U.S. gained strong, enforceable intellectual property protections to help counter the importation of fake goods, but there is still significant work to be done to protect consumers and manufacturers, including ensuring those commitments are honored. In order to achieve long-lasting reform, a broad coalition of public- and private-sector voices need to be part of the process.

“Manufacturers have always had to deal with counterfeit goods, which lead to damaging consequences for consumers and the business community,” said National Association of Manufacturers Vice President of Labor, Legal and Regulatory Policy Patrick Hedren. “At the end of the day, this is about as bipartisan an issue as you can find. Manufacturers are eager to work with members of Congress, the administration and private-sector stakeholders to better protect the public from the threat of fake goods.”

Today, the Iowa caucuses will kick off the Democratic presidential primary, beginning the months-long process to decide which candidate will represent the party in November. As is so often the case, the men and women who make things in America are in a position to have their voices heard and play a leading role in determining the outcome—in Iowa and across the country.

Manufacturers account for almost 19% of Iowa’s total economic output, and the 233,000 manufacturing jobs in Iowa make up about 14% of the state’s workforce. Between those manufacturing workers and the tens of thousands more jobs and households supported by manufacturers’ indirect impact on Iowa’s economy, manufacturing voters are poised to play an important role in shaping Iowa’s election-night decision—and manufacturers are positioned to lead on solutions with voters and candidates alike.

“Support for pro-growth policies should span the political spectrum, and for the most part it does,” said Doug Neumann, executive director of the Cedar Rapids Metro Economic Alliance. “During his NAM State of Manufacturing Address, Jay’s message on ‘post-partisanship’ really resonated with the Iowa business community. In my community, we try to lead this way with our elected officials and work with whoever is elected to get things done.”

According to Nicole Crain, executive vice president of the Iowa Association of Business and Industry, the business community in Iowa wants a candidate who supports manufacturing issues and understands their challenges.

“Business leaders like certainty and the ability to plan investments in their business five, ten years into the future,” said Crain. “As the election gets closer, leaders will be looking for a candidate who understands business, is open to hearing the concerns of employers and considers their positions when proposing policies for the country.”

Trade, immigration and workforce are top of mind for manufacturers.

“Iowa manufacturing voters have a crucial role to play during the caucuses and throughout the 2020 election season,” said Michael O’Brien, NAM assistant vice president of advocacy. “That’s why the NAM will work diligently throughout the year to make sure that manufacturing voters understand the issues and the stakes for manufacturing come Election Day.”

Washington, D.C. – National Association of Manufacturers Vice President of Labor, Legal and Regulatory Policy Patrick Hedren released the following statement on the Department of Homeland Security’s report on combatting counterfeit goods sold over the internet:

Manufacturers have always had to deal with counterfeit goods, but the issue has become much more widespread in recent years, resulting in a better understanding of the challenge ahead and what must be done to overcome it. This report lays out proposals to deal with gaps in enforcement and the role of online platforms, which are two important pieces of the puzzle. The administration’s breakthrough “phase one” deal with China included strong, enforceable intellectual property protections to help counter the import of fake goods, and as the report recognizes, we need additional effective tools and better agency coordination with the private sector to fight back. At the end of the day, this is about as bipartisan an issue as you can find—and the solution should be, too. We look forward to reviewing the details of the report and working with members of Congress, the administration and private-sector stakeholders to better protect the public from the threat of fake goods.

-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 $2.37 trillion to the U.S. economy annually andhas the largest economic multiplier of any major sector and accounts for 63% 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 Twitter and Facebook, please visitwww.nam.org.

Washington, D.C. – National Association of Manufacturers President and CEO Jay Timmons delivered the eighth-annual NAM State of Manufacturing Address today at equipment manufacturer Vermeer Corporation in Pella, Iowa. Speaking to Vermeer Corporation employees, business and community leaders and local manufacturers, Timmons highlighted the NAM’s ambitious plan to address the industry’s growing workforce crisis with the groundbreaking, multimillion-dollar “Creators Wanted” campaign.

In his remarks, Timmons said:

“For 125 years, your NAM has led the business community and fought for all who make things in America. And all of you in this room, and the 13 million men and women in our industry, some of whom are watching today, are part of the storied history of building an exceptional nation. And Vermeer, this very company, embodies the story of manufacturers’ progress.”

. . . .

“In this pivotal year, the NAM and The Manufacturing Institute, our workforce and education partner, are setting out on an unprecedented campaign to inspire a new generation—and tell the real story of our industry. . . . Our historic effort, called “Creators Wanted,” is a capital campaign that will support the programs of the Manufacturing Institute—including the STEP Women’s Initiative, youth engagement and Heroes MAKE America, which trains our returning servicemembers for high-paying manufacturing jobs.”

. . . .

“Just yesterday, in his remarks at the World Economic Forum, President Trump touted manufacturing’s growth and success during his presidency. As I’ve said before, from tax reform to regulatory certainty to leveling the playing field, promises made to manufacturers have been promises kept—and the employment and output numbers show it.”

. . . .

“Here’s what I will say about this election . . . It’s not the label next to a candidate’s name—whether an “R,” a “D” or an “I”—that determines whether he or she will be a good president or even a good member of Congress. The test is whether he or she will work to uphold the values that make America exceptional. These are the same four values, the same four pillars, that make our industry’s success possible.”

Timmons also noted the generous contributions made by Vermeer and Pella Corporation to the NAM’s Creators Wanted campaign.

“And I am proud to announce today that Vermeer Corporation, along with your foundation and Mary and Dr. Dale Andringa, have contributed $100,000 to this cause. And another local manufacturer, Pella Corporation, is also leading by example with a $100,000 contribution of their own,” said Timmons.

Vermeer Corporation President and CEO Jason Andringa thanked Timmons for his visit and the NAM’s commitment to ensuring the long-term success of manufacturing in the United States.

“Thank you to Jay Timmons and the National Association of Manufacturers for visiting Vermeer Corporation and recognizing the incredible work of our team members and manufacturers across the country,” said Andringa. “These men and women truly demonstrate the impact our industry makes every day and represent the success of American manufacturing.”

To read the full address, click here.

-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 $2.37 trillion to the U.S. economy annually and has the largest economic multiplier of any major sector and accounts for 63% 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 Twitter and Facebook, please visit www.nam.org.

Washington, D.C. – National Association of Manufacturers President and CEO Jay Timmons released the following statement after joining President Donald Trump at the White House as he announced proposed updates to the National Environmental Policy Act implementing regulations.

President Trump is once again taking action to power our industry—and our economy—forward. The NAM’s Building to Win infrastructure plan called for exactly this type of modernization—because our efforts should be used for building the infrastructure Americans desperately need, not wasted on mountains of paperwork and endless delays.

We thank the administration for listening to manufacturers—and working to ensure that the 21st-century highways, bridges, power lines, cell towers and more that we rely on get built. Our hope is that these improvements will modernize infrastructure permitting so we can get more shovels in the ground and even more manufacturers to work. Manufacturers will continue keeping our promise to reduce our environmental footprint through innovation and sustainable practices—because we know that economic growth and environmental stewardship can and must go hand-in-hand.

-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 multiplier 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 Twitter and Facebook, please visit www.nam.org.

The Manufacturers’ Center for Legal Action is the voice for manufacturers in the courts, fighting to advance policy objectives and advocate for strategic manufacturing interests. National Association of Manufacturers Senior Vice President, General Counsel and Corporate Secretary Linda Kelly leads the MCLA. Here she breaks down manufacturers’ biggest victories in 2019 and what is ahead for 2020.

What were the key legal issues for manufacturers this year?

Manufacturers face all sorts of issues in the courts. And even though only one company’s name may be on a case, the outcome can have profound effects across the entire industry on everything from project permitting to free speech.

This year, we filed amicus—or “friend of the court”—briefs in 74 cases. These address issues like regulatory overreach, product liability, labor and employment law, environmental issues, arbitration, class actions, free speech of manufacturers, ERISA, Alien Tort Statute, tax and international issues. If it matters to manufacturers, we’re on it.

We are also part of a dozen ongoing cases, including ones related to tax incentives, regulatory certainty and the manufacturing workforce. In the environmental space, the NAM has intervened in several cases to protect sensible pro-manufacturing regulatory reforms.

What legal wins did manufacturers accomplish in 2019?

We saw big wins this year invalidating the onerous Waters of the United States rule, preserving energy infrastructure projects, protecting Clean Air Act permitting reforms, securing manufacturers’ rights against government compelled speech, reversing overbroad collective bargaining interpretations by the National Labor Relations Board and more.

What does the invalidation of the 2015 Waters of the United States rule mean for manufacturers?

In two words: clarity and certainty. The 2015 rule was bafflingly unclear and uncertain. It left manufacturers to wonder whether wet areas on their property required a federal permit for any commercial activity there—at the risk of fines of $50,000 per day or more for the “wrong” interpretation. Two federal courts invalidated the rule in response to NAM litigation, which followed a NAM-led win in the U.S. Supreme Court in 2018 that allowed those cases to move forward. Soon thereafter, the EPA formally rescinded the rule.

What legal issues should manufacturers pay attention to in 2020?

Federal agencies will continue their regulatory reform efforts, and groups opposed to those reforms will continue to sue to block them. The MCLA stands ready to intervene in those cases or file briefs to provide the manufacturing perspective to the courts.

We are likely to see appellate court rulings next year interpreting whether making and selling energy products is a “public nuisance” for which companies can be held liable. We are confident the courts will apply the law fairly and reject these groundless lawsuits. But if a court finds in favor of the plaintiffs, we could see the U.S. Supreme Court again weigh in on the scope of public nuisance law.

Plaintiffs’ lawyers will keep trying to twist legal precedent to profit at the expense of manufacturers, and the MCLA will fight them every step of the way to benefit the people who make things in America.

This week, the Securities and Exchange Commission (SEC) unveiled two rule proposals to provide oversight of proxy advisory firms and make targeted reforms to the shareholder proposal process. The National Association of Manufacturers has led the effort to bring these reforms to the proxy process, which are intended to make the proxy process more responsible to Main Street investors and more reflective of business realities.

Proxy advisory firms make voting recommendations to the asset managers who oversee Americans’ retirement savings. As a result, the firms have enormous influence over the policies of publicly traded companies, impacting the direction of businesses they have no stake in as well as the life savings of millions of Main Street investors. Unfortunately, a lack of oversight means proxy advisory firms often operate with undisclosed conflicts of interest and inadequate transparency, implement one-size-fits-all decision-making and make errors that impose significant costs and damaging policies on manufacturers and workers.

The SEC’s first proposed rule would institute reforms to the process by which proxy firms make recommendations and engage with issuers and investors, including requirements that the firms disclose their conflicts of interest and allow companies to highlight potential errors and misleading methodologies.

“This is a significant victory for manufacturers, workers and middle-class Americans across the country,” said Charles Crain, Director of Tax and Domestic Economic Policy at the National Association of Manufacturers. “Americans deserve a proxy process that protects their hard-earned money and sets up reasonable guardrails for the firms that impact their retirement savings, and that’s exactly what this rule proposes.”

A second SEC rule proposal would modify the submission and resubmission thresholds for placing shareholder proposals on companies’ proxy ballots, streamlining and depoliticizing the process in order to focus company management on the issues that impact investors’ long-term savings. Combined with the proxy firm proposal, these reforms represent the capstone of many years of advocacy and hard work from manufacturers across the country. Going forward, the SEC will hear public comments on both proposals as the agency works to finalize and implement the new rules.

“These rules will help ensure that proxy voting decisions are made in the best interests of Americans saving for a secure retirement and manufacturers planning for long-term growth,” said Crain. “At the NAM, we intend to keep working with the SEC to ensure that both proposals are finalized and implemented appropriately in the weeks and months ahead.”

Washington, D.C. – National Association of Manufacturers President and CEO Jay Timmons released the following statement on the Securities and Exchange Commission’s proposed proxy rulemaking:

Today’s announcement shows the SEC has listened to manufacturers’ concerns—and is taking action to rein in the abuses and risky practices of proxy advisory firms and politically motivated activists. Manufacturers across the country have called for reforms to help enhance our ability to grow and thrive in America. Proxy advisory firms are unregulated actors that put Main Street investors’ retirement savings at risk through their error- and conflict-ridden reports, while activists pressure manufacturers to focus on political issues at the expense of company growth. Reforming the proxy process will empower manufacturers to invest in our people and our communities more confidently—and to power economic growth for all Americans. The NAM looks forward to continuing to work with the SEC to finalize and implement this important rule proposal.

Background
The NAM has led the effort in favor of SEC action to ensure proxy advisory firms work in the best interest of manufacturers and manufacturing workers. Over the past two years, the NAM has written several comment letters to the SEC urging reforms to the proxy process, supported legislation passed by the House of Representatives to increase SEC oversight of proxy advisory firms and launched a six-figure ad campaign in conjunction with the U.S. Chamber of Commerce, including the website ProxyReforms.com, to highlight the issues that companies face in their interactions with proxy advisory firms and provide a feedback portal for businesses to share their stories.

-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 multiplier 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.

President Trump signed two executive orders this week that will require federal agencies to go through a process of public input when issuing major guidance documents, and will force agencies to make useful guidance documents more openly available for the public. That process of issuing notice and soliciting public input is similar to what agencies are required to follow when issuing regulations.

“This is serious, real regulatory reform and the NAM has lobbied for changes like these for years,” the National Association of Manufacturers’ Vice President of Labor, Legal and Regulatory Policy Patrick Hedren said. “These two new executive orders make the world of agency guidance more transparent, and they give manufacturers a seat at the table when agencies begin to draft new guidance documents.”

Representing a federal agency’s current thinking on a topic, guidance documents can be issued faster than regulations and previously did not require a notice and comment period. While these documents are not meant to be legally binding, they often are the basis for regulatory enforcement decisions, and manufacturers tend to view them as binding from a practical perspective. The White House said guidance documents should be subject to the same level of public scrutiny because they can be just as impactful as regulations.

“Agency guidance is often crucial to help manufactures understand complex regulations and statutes,” Hedren said. “But at the same time this sub-regulatory ‘dark matter’ can create chaos for heavily regulated industries like ours when agencies try to use the guidance process to end-run important rulemaking protections like notice and comment.”

Since the executive orders go into effect immediately, agencies will now implement their responses to the orders.

A version of this news article appeared in The Input, the NAM’s members-only weekday morning newsletter for manufacturing executives.