Exploring Influencing Factors to Incorporation by Reference Use: A Comparative Analysis of Canada and the United States

There is a long literature on standards, regulation, and legislation as forms of regulatory governance. Yet, little research has explored the combination of these forms of regulatory governance and what factors influence these combinations’ use. One such combination is incorporation by reference (IbR) – where a particular standard becomes referenced within a regulation or legislation. While we know IbR has been widely used in the United States (US) and Canada, it is unclear what the influencing factors are to these IbR uses. Past regulatory governance research has found that regulatory and legislative, government-wide and department/agency-level policy, and international body policy efforts can influence particular forms of regulatory governance usage. This paper explores these previously identified influencing factors against IbR use across Canada and the US. This exploration was completed using a novel dataset of Canadian IbR instances (1400+ instances from 1946 to 2024) and an existing dataset of the US’s IbR instances (26000+ instances from 1931 to 2024). Our findings suggest that Canadian regulatory and legislative IbR efforts have more influence over IbR usage than the other influencing factors. While the US shows mixed results across these influencing factors, with some seemingly leading to increases in IbR usage and others being followed by decreases or unchanged usage trends. We also found that Canada took a concerted approach, with almost all influence efforts being taken over a short duration, while the US’s influencing efforts took place over several decades. The pervasive use of IbR demands further scholarly attention given its consequences for regulatory governance, such as the trade-offs between expertise and efficiency and giving private actors power to shape regulatory provisions; concerted vs. fragmented policy efforts around regulatory governance; and government decision-making around IbR national or international standards, and the implications of those decisions.