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What are Advisory Opinions?

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Advisory Opinions: Understanding Government Guidance and Legal Limits

Advisory opinions are formal statements issued by government agencies or officials to clarify the interpretation and application of laws and regulations. These opinions serve as valuable guidance for individuals and organizations seeking to ensure compliance.

What Are Advisory Opinions?

  • Purpose: They provide official interpretations, helping clarify complex legal matters.
  • Request: Individuals or entities often request these opinions to understand their legal obligations.
  • Agency Authority: Agencies like the Food and Drug Administration (FDA) and the Department of Health and Human Services (HHS) issue such opinions.

Examples of Advisory Opinions in Action:

  • FDA Advisory Opinions:
    • According to 21 C.F.R. § 10.85, an FDA Commissioner's advisory opinion represents the agency's official stance.
    • The FDA is bound by its advisory opinions until they are amended or revoked.
    • The FDA generally cannot pursue legal action against those who comply with a valid advisory opinion.
  • HHS Advisory Opinions:
    • Under 42 U.S.C.A. § 1320a-7d, the Secretary of HHS, in consultation with the Attorney General, issues advisory opinions on matters like prohibited remuneration under the Social Security Act.
    • These opinions are binding on the Secretary and the requesting parties.

Key Distinction: Advisory Opinions vs. Court Rulings

  • Not Legally Binding on Courts: While advisory opinions offer authoritative guidance from agencies, they do not have the force of law in judicial proceedings.
  • Court's Role: Courts adjudicate actual controversies, not hypothetical ones.
    • As established in California War Veterans for Justice v. Hayden, 176 Cal.App.3d 982 (1986), California courts do not issue advisory opinions.
  • Federal Law: The prohibition against advisory opinions in federal law stems from the separation of powers and the "case or controversy" requirement of Article III of the U.S. Constitution, as highlighted in Flast v. Cohen, 392 U.S. 83 (1968).

In Summary:

Advisory opinions are a crucial tool for understanding and complying with regulations. They represent official agency interpretations. However, it's vital to remember that courts are not bound by these opinions and focus on resolving real legal disputes.