Week in Review

IN THE NEWS

• The U.S. Food and Drug Administration (FDA) approved the first oral contraceptive available in the United States without a prescription. Opill, a daily “mini-pill” containing only one hormone, will be sold online and in stores in the first quarter of 2024 according to its manufacturer, Perrigo. FDA’s approval of Opill is expected to expand access to birth control, especially to the uninsured, at a time when abortion restrictions are tightening across the country. Frederique Welgryn, Perrigo’s Global Vice President for Women’s Health, called FDA’s approval “a groundbreaking expansion for women’s health” in the United States.
• The U.S. Environmental Protection Agency (EPA) proposed stricter regulations on the removal of lead-based paint dust in residential buildings and child care facilities. Under the draft rule, any amount of lead dust above zero would be classified as hazardous, a move that EPA contended would limit lead exposure for almost half a million children yearly. The proposed rule would impose lead testing requirements for property owners if a child showed symptoms of lead exposure. If tests confirm the presence of lead, property owners would then be required to pay for the cleanup. Michal Freedhoff, assistant administrator of EPA’s Office of Chemical Safety and Pollution, emphasized the danger that lead poses to children in any amount, and she explained that the proposed regulations would “bring us closer to eradicating lead-based paint hazards.”
• The U.S. Court of Appeals for the District of Columbia Circuit upheld, but narrowed, the Fight Online Sex Trafficking Act, which exempts online platforms from the broad immunity granted to such platforms under Section 230 of the Communications Decency Act and enables them to be held liable for enabling sex trafficking. In writing the opinion for the court, Judge Patricia Millett concluded that, even though the law could be read more broadly, a limited reading is necessary to avoid “grave constitutional concerns.” Robert Corn-Revere, a First Amendment lawyer who argued the case against the Fight Online Sex Trafficking Act, believed the court “made the statute more precise than the original drafters may have intended.” As neither the plaintiffs nor the defendants are satisfied with this decision, both parties are reviewing their options going forward.
• Michael Barr, the Board of Governors of the Federal Reserve System’s top financial oversight regulator, announced a proposal requiring banks to use a standardized method to estimate credit, operational, and trading risks instead of relying on their own estimates. Barr explained that another change would be equivalent to requiring larger banks to hold “an additional $2 of capital for every $100 of risk-weighted assets,” although the Federal Reserve estimates that those banks already have enough capital to meet the increased requirements. To address issues that some banks faced after the failure of Silicon Valley Bank, the Federal Reserve also proposed a long-term debt requirement for all banks with more than $100 billion in assets, reasoning that long-term debt may cushion bank failures because the debt “can be converted to equity and used to absorb losses.”
• The Federal Communications Commission (FCC) issued a proposed rule to eliminate illegal robocalls. The proposed rule includes several additional measures to protect consumers, such as requiring call-blocking notifications and caller information displays. The FCC also suggested implementing penalties for voice service providers that fail to prevent illegal robocalls. The proposed rule supplements a companion rule finalized last month, as both extend existing consumer robocall protections in an effort to protect consumers and “hold voice service providers responsible for the calls on their networks.”
• A New York State Supreme Court judge blocked a New York City rule that would require food delivery companies to pay their couriers almost $18 an hour, more than double the current average wage for these workers. The ruling came in response to lawsuits filed by Uber, DoorDash, and Grubhub challenging the city’s Department of Consumer and Worker Protection for relying upon “flawed” data and “biased” surveys. Although New York City Mayor Eric Adams praised efforts to compensate delivery drivers, the food delivery companies expressed concern over the swift implementation of the rule and its financial impact on customers.
• The U.S. Department of Health and Human Services (HHS), the Department of Labor, and the Department of the Treasury issued a proposed rule to protect consumers from deceptive health insurance practices and increase access to comprehensive insurance coverage. The proposed rule would revise the definition of short-term, limited-duration insurance (STLDI), which covers individuals during gaps in their insurance coverage. The proposed change would limit the definition of STLDI to insurance plans less than four months in duration. HHS, Labor Department, and Treasury Department argued that reducing the duration of STLDI plans would encourage consumers to enroll in comprehensive health care plans regulated by the Affordable Care Act. Opponents, such as U.S. Representative Jason Smith (R-Mo.), stated that the rule would remove “the coverage many Americans have and can afford today.”
• The U.S. Court of Appeals for the Sixth Circuit reversed a lower court’s decision striking down a Tennessee law that banned certain gender-affirming care for minors. The Sixth Circuit’s ruling permits the law to take effect pending a full review of the appeal. Chief Judge Jeffrey Sutton reasoned that difficult questions on emerging policy issues, such as the long-term health of children with gender dysphoria, were best left to legislatures. Tennessee Attorney General Jonathan Skrmetti called the ruling “a big win,” while the American Civil Liberties Union of Tennessee stated it “will continue to challenge this law until it is permanently defeated.”
• The U.S. Senate confirmed the nomination of Kalpana Kotagal for a position on the Equal Employment Opportunity Commission (EEOC). Kotagal, a graduate of the University of Pennsylvania’s law school, has been a partner at the law firm of Cohen Milstein, where she has practiced employment and civil rights law and served as the chair of the law firm’s Hiring and Diversity Committee. With Kotagal’s confirmation, Democrats now hold a majority of the five seats that make up the EEOC.

WHAT WE’RE READING THIS WEEK

• In a Cato Institute report, Jennifer Huddleston, Technology Policy Research Fellow at Cato and an adjunct professor at the Antonin Scalia Law School at George Mason University, argued that well-intentioned regulations crafted to keep minors safe online may cause more harm than good. Huddleston found that current approaches to online safety result in “concerning consequences for speech and privacy of all internet users.” Huddleston concluded that policymakers must conduct further research on the impacts of social media on minors—both positive and negative—and improve the digital literacy curriculum in schools.
• In a recent paper in the Administrative Law Review, Michael Asimow, Professor of Law Emeritus at UCLA School of Law, analyzed the value of “greenlighting” procedures within federal regulatory agencies, in which the heads of an agency determine whether to accept a staff’s decision to charge a target with a violation of the law. Asimow argued that more robust greenlighting practices, such as requiring written memoranda and notice-and-comment processes, could promote accountability for prosecutorial discretion and lead to better use of limited enforcement resources. For more routine cases, Asimow recommended that agencies consider adopting formal guidelines for prosecutorial discretion and instituting a peer-review process at the staff level.
• In an Urban Institute report, Jason Cohn, a research analyst at the Center on Education Data and Policy, discussed possible policy solutions to support student loan borrowers in danger of default after the U.S. Supreme Court’s ruling in Biden v. Nebraska. Cohn argued that automatic enrollment in income-driven repayment plans and the expansion of eligibility criteria for loan rehabilitation—where a borrower in default makes a series of on-time payments according to a revised plan with their creditor—will mitigate the punitive nature of some repayment plans. Cohn explained that these changes would both reduce a borrower’s chance of default and lessen the severity of the consequences of a default.

EDITOR’S CHOICE

• In an essay in The Regulatory Review, Joseph Sexton, a partner at the law firm Galanda Broadman, recounted the efforts of Indigenous tribes near Kennewick, Washington, to repatriate the remains of a prehistoric skeleton under the Native American Graves Protection and Repatriation Act. Sexton, who represented one of the Tribes involved, argued that narrow approaches to how cultural affiliation to remains may be demonstrated, such as by requiring DNA testing, could cause future harm to Tribes, as some Tribes may object to those procedures. As a result, Sexton urged courts to heed the U.S. Department of the Interior’s mandate requiring agencies to consider “ethnohistorical” evidence, which includes linguistic evidence, folklore, and oral tradition.