GM sets out five criteria for upholding a law under this general regulation of trade branch.
- This is not a test, and a law need not necessarily meet all 5, but so far, the two biggest statutes upheld under this branch have both met all 5 factors.ROCLN
- 1.Regulatory scheme
- 2.Oversight of regulatory agency
- 3.Concerned with regulation of trade as a whole; NOT concerned with a particular industry or collection of industries.
- 4.Legislation is beyond the capabilities of prov jurs.
- 5.National scheme is necessary to avoid potential negative consequences that one prov’s approach could have elsewhere in country.
- #3-5 more important than #1-2. #4-5 similar to Provincial Inability Test (national concern branch of POGG)
- For #4-5, consider whether it is necessary for Parl to regulate this subject matter, or just more efficient. If provs are still capable of regulating this subject matter, or if law contains an opt-out clause which seems to concede the ability of the provs to deal with this on their own, then the chances are long against upholding the law.