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(a) Different types of sunset clauses

Sunset clauses can be qualified as ‘reflexive’, when they are included in the rule or statute to expire; or ‘irreflexive’, if the clauses are placed outside it and the statute which they apply to.[1] Reflexive sunset clauses are the most common forms of sunset clauses and they are often contained in a specific section of the statute. Example 2.3 illustrates a reflexive sunset clause included in the US Federal Food, Drug Administration Safety and Innovation Act which is applicable to two specific provisions of the statute.

EXAMPLE 2.3 SUNSET CLAUSE IN THE FEDERAL FOOD, DRUG ADMINISTRATION SAFETY AND INNOVATION ACT

207. SUNSET CLAUSE. IN GENERAL. - Sections 737 and 738 of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 739i; 739j) shall cease to be effective October 1, 2017. Section 738A (21 U.S.C. 739j-1) of the Federal Food, Drug, and Cosmetic Act (regarding reauthorization and reporting).84

Sunset clauses incorporated in specific legislative acts should not be confused with those that are applied to a wider group of laws or even the generality of regulations enacted by a particular lawmaker - the so-called general sunset clauses. To illustrate, in Germany, many Lander have employed sunset provisions imposing a general time limitation to their laws. This has been the case in North-Rhine Westphalia, Low-Saxony, Hessen and Bremen. According to an empirical research performed by the Bertelsmann Stiftung in 2010, the number of state regulations including sunset provisions varied between 6 per cent in Lower Saxony and more than 60 per cent in Hesse, North Rhine-Westphalia and Saarland.[2] [3] The federation has only enacted sunset clauses on an ad hoc basis and for designated laws. The adoption of general sunset clauses was also suggested in the Netherlands in 2005 by the Council of Economic Advisors, but this proposal did not gather sufficient support.[4]

  • [1] Finn, ‘Sunset Clauses and Democratic Deliberation’, n. 73 above.
  • [2] Food and Drug Administration Safety and Innovation Act 112th Congress,2011-2013, S. 3187 (112th) text as of 27 June 2012 (Passed Congress/EnrolledBill).
  • [3] Bertelsmann Stiftung, Sunset Legislation and Better Regulation, n. 31above.
  • [4] Opinion of the Council of Economic Advisors (Advies van de Raad vanEconomisch Adviseurs) 19 May 2005, De wetten en regels die droom en daadverstoren; Bureaucratisering en overregulering, Tweede Kamer, 2004-2005, 30123, no. 2.
 
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