Week in Review

IN THE NEWS

• The U.S. Supreme Court granted a temporary stay on decisions by lower courts that banned or limited access to mifepristone, an FDA-approved pill for medication abortion. The temporary stay returns the case to the U.S. Court of Appeals for the Fifth Circuit, which has scheduled oral arguments in the case for next month. In a statement after the decision was announced, President Joseph R. Biden declared that the government will “continue to defend FDA’s independent, expert authority to review, approve, and regulate a wide range of prescription drugs.”
• Missouri Attorney General Andrew Bailey implemented an emergency rule limiting access to gender-affirming care for both minors and adults. The new rule prohibits providers from offering gender-affirming care to anyone who has not received at least 15 hourly sessions of therapy over the past 18 months, as well as those who have not been screened for autism. Opponents of the move have filed a petition to block the rule’s implementation, arguing that the rule exceeds the Attorney General’s powers to issue consumer protection regulations. Robert Fischer, communications director of PROMO, an LGBTQ advocacy group in Missouri, contended the rule amounts to “an all-out attack on transgender Missourians’ lives and the very ability to exist.”
• The U.S. Environmental Protection Agency (EPA) proposed several amendments to the emissions standards that apply to the industry that manufactures widely used organic chemicals, such as acetone and glycerol. The proposed changes include updates to EPA’s new source performance standards for the industry and amendments to the standards that govern the manufacturers’ emissions of hazardous pollutants. In its announcement, EPA outlined a public engagement process for the proposed amendments, including the scheduling of a hearing for public comment.
• The Federal Trade Commission proposed a rule that would set clearer requirements for all negative option features—contracts that permit consumer silence to constitute acceptance of terms, such as auto-renewal contracts—in all media. If passed, the rule would standardize differing requirements for negative option contracts offered via telephone, internet, print, and in-person. Under the rule, firms must provide, in a “clear and conspicuous” manner, information about the contract’s terms, including deadlines, ranges of costs, recurring payments, and cancellation processes. The rule would also classify businesses’ failures to disclose this information as unfair or deceptive practices designed to lure consumers into purchasing goods they do not want and subject those businesses to civil penalties.
• The Federal Transit Administration proposed new requirements for its safety plans that would enhance safety for all transit workers and passengers. The new requirements include establishing a safety committee tasked with setting and achieving safety performance targets, risk reduction and education programs, and de-escalation training for certain transit workers. The agency stated that the proposed rule aims to reduce the risk of fatalities and encourage local transit departments to implement such risk-mitigating technologies and processes.
• Minnesota Governor Tim Walz and Washington Governor Jay Inslee each signed bills to codify protections to abortion access in their respective states. Walz signed a suite of bills that safeguard access to abortion and protect patients’ ability to receive gender-affirming care in the state. Inslee signed bills that remove co-pays for abortion seekers, protect doctors who provide abortion services and gender-affirming care, and shield abortion patients from prosecution.
• Arizona Governor Katie Hobbs vetoed a bill that would have allowed home cooks to legally sell perishable food items, such as tamales. The bill would have established an online registry of at-home food preparers who completed mandatory food handler training, maintained active certification, and re-register with the state every three years. Critics of the bill claimed it would be costly to enforce these food safety regulations in the cottage food industry. Proponents of the bill, such as Representative Teresa Martinez, argued that the Governor’s veto disproportionately impacts the working-class Latino community by refusing to legalize the sale of home-cooked food.
• The National Credit Union Administration (NCUA) released a request for information on current and future climate and natural disaster risks to federally insured credit unions and other financial institutions. In the announcement, the NCUA explained it seeks input on the development of potential future guidance, regulation, reporting requirements, or supervisory approaches that could aid federally insured credit unions’ management of climate-related financial risks. NCUA Chair Todd M. Harper suggested that this input would help “the NCUA understand any potential risks extreme weather events may have on the credit union system.”

WHAT WE’RE READING THIS WEEK

• In a recent article in the Vanderbilt Law Review, Allison M. Whelan, assistant professor at the Georgia State University College of Law, highlighted that executive interference in scientific decision-making by agencies such as the U.S. Food and Drug Administration risks harming public health. Whelan argued that scientific decisions, unlike policy decisions, should remain free from political influence, or what she terms “internal agency capture.” Whelan offered new solutions to correct the inadequate safeguards currently in place, including a new proposed scientific integrity office and more congressional and judicial oversight over executive interference with agencies.
• In a forthcoming article in the North Carolina Law Review, Georgetown University Law Center professor Brian D. Galle and Boston College Law School professor Stephen E. Shay explained that recent executive and judicial scrutiny in tax administration is costing the government important revenue and slowing the regulatory process. Galle and Shay argued that if courts impose traditional procedural restraints on tax administration, then these procedures will confuse taxpayers with legal jargon and cost the government in money, efficiency, and time.
• In a forthcoming article in the Notre Dame Law Review, Ronald Levin, a professor at the Washington University in St. Louis School of Law, argued that district court judges’ power to overturn agency rules—vacatur—serves to hold agencies accountable. Levin suggested that vacatur is within a judge’s power under the Administrative Procedure Act, but disputed the common narrative that vacatur leaves too much power to judges. To ensure that judges do not deploy the remedy too frequently, Levin argued that the U.S. Congress could take certain steps, such as requiring three-judge panels to decide cases involving vacatur that would lead to a nationwide injunction.

EDITOR’S CHOICE

• In an essay in The Regulatory Review, Samuel Becher, a professor at Victoria University of Wellington, argued that although consumers have a duty to read online terms and conditions contracts, companies are under no obligation to make those contracts readable. Becher noted that a recent study found standard terms and conditions contracts are written in language resembling academic articles and require more than 14 years of education to be fully understood. Becher concluded that these findings should give courts and legislatures pause before contending that consumers are consenting to these agreements.