Week in Review

IN THE NEWS

• Attorneys General for 17 states called on the U.S. Department of Labor to withdraw its proposed tip-pooling rule. The Attorneys General argued that the proposed rule should be withdrawn because “hardworking men and women…depend on every penny they’ve earned to feed their families” and because the Labor Department reportedly disregarded an economic analysis that highlighted how much money tipped employees would lose.
• Officials from the U.S. Securities and Exchange Commission (SEC) and the U.S. Commodity Futures Trading Commission (CFTC) urged the U.S. Senate Banking Committee to take steps to regulate cryptocurrencies. SEC Commissioner Jay Clayton told the Committee that although Initial Coin Offerings (ICO) appear to be subject to securities regulations, most ICOs “are being conducted illegally.”
• The Seattle Ethics and Elections Commission reportedly said that Facebook violated the City’s election code by failing to disclose who paid for political advertisements that appeared on Facebook. A Facebook spokesperson reportedly claimed that Facebook “provided relevant information;” however, Wayne Barnett, the Commission’s Executive Director, reportedly said that Facebook’s disclosures were too incomplete “to meet their public obligation.”
• The U.S. House of Representatives passed a bill that would change Obama-era calorie labeling requirements for certain restaurant chains, which must comply with the requirements by May. Specifically, instead of having to list calorie counts based on standard serving sizes, these restaurants would be able to choose how to display calorie counts on their menus based on a serving size of their choice. Representative Cathy McMorris Rodgers (R-Wash.), who introduced the bill, praised the “flexibility” the bill affords restaurants trying to follow labeling requirements. But Representative Jan Schakowsky (D-Ill.) reportedly said, “We should not be undermining efforts to educate consumers about the nutritional value of foods, including calories.”
• Norway and the European Union (EU) entered into an agreement to combat fraud and recover claims within the value added tax (VAT) system, which is a “consumption tax assessed on the value added to goods and services.” The agreement will allow for the creation of a legal framework for cooperation between the EU and Norway to ensure compliance and protection of VAT revenue and the exchange of information. The agreement also sets procedures for recovering claims relating to VAT.
• In a letter signed by over three hundred supporters, medical and legal experts asked the U.S. House of Representatives Committee on Energy and Commerce to oppose a “right to try” bill the U.S. Senate passed in August. The bill would allow terminally ill patients to use drugs that the U.S. Food and Drug Administration (FDA) has not yet approved. The experts said, “FDA is not the obstacle to patient access to” unapproved drugs and that FDA “plays a vital role in ensuring proper patient safeguards are in place.” The experts called the “right to try” method “misguided,” noting that it “would likely do more harm than good.”
• Airlines for America (A4A) sued the Washington State Department of Labor and Industries alleging the 2016 Washington Paid Sick Leave Act violates the U.S. Constitution as it applies to flight crew members. The law established a uniform minimum wage across the state of Washington and required that employers give out dedicated paid sick leave. The federal government regulates nearly every facet of air travel, and A4A argued that allowing the state of Washington to “regulate the provision and use of paid sick leave for flight crew thwarts this uniform system of federal regulation” required by the Commerce Clause.
• FDA declared the substance “kratom” an opioid. FDA said kratom—which comes from plants and is sometimes used to alleviate symptoms of opioid withdrawal—has no medical purpose and that people should not use kratom in lieu of prescription opioids. FDA expressed concern over the “novel risks” kratom presents, as the drug can be created, marketed, and used in many forms.
• The State of Vermont Public Utilities Commission determined it had the authority to regulate Voice over Internet Protocol (VoIP) service—using broadband Internet connection to make voice calls. The Commission’s order reaffirmed the 2013 Vermont Supreme Court decision that VoIP is a “telecommunications service” under federal law rather than an information service and initiated further proceedings to determine how the state will regulate this service.

WHAT WE’RE READING THIS WEEK

• In a piece for Scientific American, Zack Colman of The Christian Science Monitor argued that President Donald Trump’s claim that his Administration had “eliminated more regulations in its first year than any administration in history” is not entirely true. Colman explained that “there’s a long, legal process for undoing a regulation” and that President Trump “has mostly halted regulations” and undone Obama-era executive orders.
• In a report for the Brookings Center on Regulation and Markets, Connor Raso, counsel for the SEC, discussed the strategies the Trump Administration could use to legally delay regulations. Some of the strategies Raso noted include delaying the effective dates for rules that have not yet taken effect, failing to defend a rule that has been challenged in court, or asking the court to remand the rule to the agency for further consideration. Raso argued that “speedy delay” of rules is the “essence” of the current Administration’s efforts to repeal Obama-era rules, and that full repeal takes too long and is less valuable after the rule has taken effect.
• In an article for the Michigan Law Review, Gillian E. Metzger of Columbia Law School and Kevin M. Stack of Vanderbilt Law School examined the “internal forces” of administrative law. Internal forces, they noted, include directives and guidance “through which agencies structure the discretion of their employees and presidents control the workings of the executive branch.” Metzger and Stack argued for more support for internal administrative law because it supports “agency accountability and administrative legitimacy.”