Week in Review

IN THE NEWS

• The U.S. Food and Drug Administration proposed guidance that would ease restrictions on blood donations from men who have sex with men. Under the current policy, men who have sex with men may not donate blood if they have had sexual contact with other men in the previous three months. The new guidance replaces these time-based prohibitions with gender-inclusive questions that focus on the donor’s individual risk of transmitting HIV. Tony Morrison, a spokesperson for the LGBTQ+ media advocacy organization GLAAD, noted that the proposal represents “a tremendous leap forward in elevating science over stigma.”
• The U.S. Department of Health and Human Services (HHS), the U.S. Department of the Treasury, and the U.S. Department of Labor proposed a new rule to increase access to birth control under the Affordable Care Act. Current regulations require private insurance plans to provide contraception at no cost but grant employers the right to seek religious or moral exemptions to prevent the health plans they sponsor from offering this benefit. The proposed regulation removes moral objections as grounds for an exemption. The proposal also allows individuals whose health plans are sponsored by employers receiving a religious exemption to still obtain free birth control. HHS Secretary Xaviar Becerra stated that the new proposal sends a message to people seeking birth control “across the country, we have your back.”
• The U.S. Environmental Protection Agency (EPA) proposed a rule that would set new standards for national ambient air quality standards. The rule would reduce acceptable annual levels of fine particulate matter, which is made up of small liquid and solid particles, to reduce the public’s exposure to its harmful health effects. EPA noted that this revision reflects scientific evidence showing that exposure to fine particulate matter can lead to heart problems or even death. EPA Administrator Michael S. Regan remarked that the rule “will help ensure that all communities, especially the most vulnerable among us, are protected from exposure to harmful pollution.”
• The Consumer Financial Protection Bureau proposed a rule that seeks to lower credit card late fees. The rule would prohibit late fees above 25 percent of the missed credit card bill, whereas current fees can amount to up to 100 percent of the bill. Under the current rule, credit card companies can charge up to $30 per missed payment and $41 for subsequent missed payments. The proposed rule would limit the missed payment fee to $8 and require companies to prove that a higher fee is necessary before charging users.
• Utah Governor Spencer Cox signed a bill into law that prohibits transgender youth from receiving gender-affirming medical care, including surgeries and hormone treatments. Cox argued that it is best to pause these treatments until “more and better research can help determine the long-term consequences.” The ACLU of Utah, which had urged Cox to veto the bill, contended that the new restrictions will have “damaging and potentially catastrophic effects” on people with gender dysmorphia by denying them “the only evidence-based treatment available for this serious medical condition.”
• EPA denied a mine permit proposal to extract metal ores in Bristol Bay, Alaska and prohibited mine waste discharge there under the Clean Water Act. EPA explained that the determination should protect Bristol Bay’s wild salmon ecosystem. EPA Administrator Michael Regan described the bay’s watershed as a “vital economic driver” and stated that the agency’s action preserves “the way of life for more than two dozen Alaska Native villages.”
• The U.S. Securities and Exchange Commission (SEC) proposed a rule to update its ethics compliance regulations for its own employees. The rule would prohibit SEC employees from investing in funds controlled by SEC-regulated entities, such as broker dealers. The SEC would also be permitted to use an automated application to collect data about employee securities transactions from brokerage firms or financial institutions.
• The U.S. Fish and Wildlife Service issued a final rule listing the Sacramento Mountains checkerspot butterfly as an endangered species. The agency explained that recreation by humans, wildfires, climate change, and invasive species have eroded suitable habitats for the butterfly. The agency’s classification of the checkerspot butterfly as endangered authorized funding for recovery efforts for the butterfly, such as habitat restoration and breeding in captivity.

WHAT WE’RE READING THIS WEEK

• In a forthcoming article in the North Carolina Law Review, Victoria J. Haneman and David P. Weber, professors at Creighton University School of Law, argued that student visa restrictions prevent foreign student athletes from benefiting from recent NCAA rule changes that allow student athletes to profit off of their names, images, and likenesses. Haneman and Weber noted that student athletes likely do not qualify for any of the exceptions allowing foreign students to work in the United States, such as those allowing students to work part-time in areas closely related to their fields of study. Haneman and Weber concluded that Congress should amend existing immigration laws to allow foreign student athletes to profit just as their domestic teammates do without having to risk student visa statuses.
• In a Brookings Institution report, Tom Wheeler, a visiting fellow at Brookings, and David Simpson, professor at Virginia Tech, argued that new 5G wireless networks deliver important new capabilities, including automation technology using wireless devices, but require regulatory oversight to protect against their increase in network security issues. 5G networks, Wheeler and Simpson noted, are part of a trend to increase corporate digitization by housing more business transactions and data on wireless networks. Because 5G networks increase network traffic, Wheeler and Simpson explained, new cybersecurity threats can come up, such as malicious codes within software that can compromise data. Wheeler and Simpson emphasized that addressing 5G security threats requires a new agile regulatory model, which should include participation from the corporate sector.
• In an article in the Washington University Law Review, Christopher Buccafusco, professor at Duke University School of Law, and Jonathan S. Masur, professor at the University of Chicago Law School, argued that patents encourage pharmaceutical firms to create profitable drugs rather than encouraging innovation for public welfare. Buccafusco and Masur claimed that drug profitability discourages production of drugs for diseases that affect poorer people. Buccafusco and Masur clarified that there are research tools—such as quality-adjusted life years—that can measure whether a patent promotes welfare and can be used to compare patents. Buccafusco and Masur urged policymakers to use these tools to whittle down legal protections for patents with “an insubstantial effect on human welfare” and increase the patent term on those with a substantial effect to encourage production of less profitable drugs.

EDITOR’S CHOICE

• In an essay in The Regulatory Review, Peter Howard, economics director at the Institute for Policy Integrity, and Justin Gundlach, senior manager at the Building Decarbonization Coalition, argued that the social cost of carbon is an essential justification for climate policy. The social cost of carbon, Howard and Gundlach outlined, is a calculation of the cost to society for every one ton of carbon polluters emit into the atmosphere. The Biden Administration can use the social cost of carbon, Howard and Gundlach explained, to evaluate the costs and benefits of potential environmental policies that address climate change. Howard and Gundlach noted that some economists have previously underestimated how high this cost should be by not including climate tipping points. The Biden Administration updated the SCC’s calculation in January 2022, which, Howard and Gundlach noted, will improve the SCC’s accuracy and value.