Week in Review

IN THE NEWS

• The European Union (EU) and Japan signed an agreement lifting almost all tariffs between them. In addition to removing barriers to trade, the agreement promoted sustainable development and included a specific commitment to the Paris Climate Agreement. European Commission President Jean-Claude Juncker asserted that the agreement makes “a statement about the future of fair and free trade” and that “we are stronger and better off when we work together.”
• The EU and Japan also agreed to recognize their data protection systems as “equivalent.” Once finalized according to the EU’s General Data Protection Regulation, this mutual adequacy agreement will pave the way for safe transfers of personal data between the EU and Japan for both commercial and law enforcement purposes. Věra Jourová, EU Commissioner for Justice, Consumers and Gender Equality, praised the agreement, stating that “data is the fuel of global economy” and that together the EU and Japan could “shape the global standards for data protection.”
• Federal Communications Commission (FCC) Chairman Ajit Pai expressed “serious concerns” about the proposed merger between Sinclair Broadcast Group and Tribune Media. Pai designated the transaction for review by an administrative law judge, as evidence suggested that the merger would allow Sinclair to control certain broadcast stations “in practice, even if not in name, in violation of the law.” In response, Sinclair spokesperson Ronn Torossian reportedly stated that they were “prepared to resolve any perceived issues and look forward to finalizing our acquisition of Tribune Media.”
• The European Commission fined Google €4.34 billion for suppressing competition in the smart phone operating systems market, in violation of EU antitrust rules. European Commissioner for Competition Margrethe Vestager said that Google “denied European consumers the benefits of effective competition in the important mobile sphere.” Google announced its intent to appeal the decision, stating that Android has actually been “good for consumers.”
• The City Council of San Diego established new regulations for short-term home rentals. The legislation included license and registration requirements for hosts, increased code enforcement, taxes, and a nightly rental surcharge to support affordable housing in the city. San Diego Mayor Kevin L. Faulconer praised the compromise as “an established set of rules that protects neighborhood quality of life,” but an Airbnb spokesman reportedly stated that the new rules were “an affront to thousands of responsible, hard-working San Diegans.”
• The U.S. Government Accountability Office (GAO) found that the majority of school districts do not test their water for lead and, of the schools that do, approximately 40 percent reported elevated levels of lead. In a report, GAO noted that the U.S. Environmental Protection Agency’s (EPA) guidance on when a school should remediate its lead levels was “potentially misleading and unclear.” The report recommended that EPA and the U.S. Department of Education encourage testing and clarify guidance on how schools should address lead in their drinking water. This same week, EPA’s Inspector General issued a separate report, following from the Flint, Michigan water crisis, that urges the agency to improve its oversight of state public drinking water programs more generally.
• In a landslide vote, the U.S. House of Representatives passed a package of bills that would ease business regulations, including regulations that affect the investment activity of “angel investors.” Collectively dubbed the JOBS and Investor Confidence Act of 2018, the bills purportedly would make it easier for startup companies to get investments, so that more everyday investors may participate. House Speaker Paul Ryan (R-Wis.) said that the legislative package would “cut down on regulations that are holding back small businesses and start-ups.”
• California’s cannabis licensing authorities proposed new regulations for the legal cannabis market. The current emergency regulations will remain in place until the normal rulemaking process is undertaken, during which time public comments may be submitted in writing or at upcoming public hearings. Bureau of Cannabis Control Chief Lori Ajax stated that the proposed regulations “include changes that make it easier for businesses to operate and strengthen public health and safety policies.”
• The U.S. Department of Labor (DOL) rescinded the Obama-era “persuader rule.” The rule would have forced employers to disclose outside consultants hired to counter union organizing efforts, but it had been blocked by a federal district judge in Texas. “By rescinding this rule, the Department stands up for the rights of Americans to ask a question of their attorney without mandated disclosure to the government,” stated DOL’s Office of Policy Deputy Assistant Secretary Nathan Mehrens.

WHAT WE’RE READING THIS WEEK

• The United States and the EU are diverging in their approaches to antitrust enforcement, wrote Henry Farrell of the Elliott School of International Affairs at George Washington University, in an article for The Monkey Cage. U.S. antitrust law focuses “overwhelmingly” on harm to consumers, Farrell noted. EU antitrust law, by contrast, also considers harm to competitors on the grounds that protecting competitors protects competition, which protects consumers. Farrell argued that the EU is “likely to be become increasingly aggressive” against U.S. e-commerce companies, even though the United States shies away from large-scale antitrust investigations.
• In a recent paper Romain Dambre, an associate at Kirkland & Ellis LLP, summarized the current U.S. regulatory framework for initial coin offerings (ICOs) of digital currencies. Dambre outlined the challenges of applying the U.S. Securities and Exchange Commission’s (SEC) traditional regulatory framework to ICOs because not all digital currencies are definitively classified as securities. Dambre called for the SEC to develop a clear regulatory plan for ICOs with enough flexibility to adapt to new and changing technologies.
• In a public interest comment, Susan E. Dudley, director of the George Washington University Regulatory Studies Center, discussed an Advance Notice of Proposed Rulemaking (ANPRM) from EPA. The ANPRM sought comment on whether EPA should implement a more “consistent and transparent” approach to using cost-benefit analysis in regulations. Dudley noted that courts are reading ambiguous language in environmental statutes to support cost-benefit analysis and asserted that “EPA should interpret its various statutory standards through a lens of standard benefit-cost analysis principles.”