Week in Review

IN THE NEWS

• The Democratic presidential debates this week featured twenty candidates for the Democratic nomination for president over the course of two nights. Candidates discussed their policy positions on a variety of regulatory topics including health care, climate change, and immigration reform. The next debates are scheduled for mid-September and will likely narrow the field of debate participants by requiring candidates to achieve higher poll numbers and garner more donors in order to qualify.
• The Antitrust Division of the U.S. Department of Justice along with five states’ attorneys general agreed to settle their investigations into the proposed merger between Sprint and T-Mobile. In exchange for approval of the merger, the companies agreed to sell Sprint’s prepaid businesses to satellite television provider Dish Network and allow Dish to access the merged company’s network for seven years. After a 60-day comment period, the deal becomes final if a federal judge finds it in the public interest. Thirteen states and the District of Columbia, however, are maintaining their suit challenging the merger as anticompetitive.
• The U.S. Department of Health and Human Services announced that it and its sub-agency, the U.S. Food and Drug Administration (FDA), will propose a rule to lower prescription drug prices by allowing importation of certain drugs from Canada. Under the planned proposed rulemaking, states, wholesalers, and pharmacists would be able to apply to import drugs approved for use in Canada that comply with section 505 of the U.S. Food, Drug, and Cosmetics Act (FDCA). Some commentators have opposed the proposal on the grounds that it will undermine the FDCA, although Canadian Minister of Health Ginette Petitpas-Taylor reportedly defended Canada’s drug regulatory standards.
• The U.S. Environmental Protection Agency (EPA) announced a proposed rule that would eliminate a restriction on coal ash—the residue left after burning coal. EPA Administrator Andrew Wheeler stated that the proposed rule would “further responsible management of coal ash while protecting human health and the environment.” Lisa Evans, senior counsel at Earthjustice, criticized the proposed rule as a “gift” from Wheeler “to his former employers at the cost of public health.”
• EPA also announced a proposed rule intended to streamline the New Source Review permitting process for certain power plants. The rule would allow facilities to consider both projected emissions increases and decreases when considering whether a new project would result in a significant emissions increase. EPA Administrator Wheeler stated that the proposed rule would “remove a major obstacle to the construction of cleaner and more efficient facilities,” but John Walke of the Natural Resources Defense Council reportedly stated that the rule masks the fact that it would “increase air pollution significantly.”
• President Donald Trump tweeted that the United States would be imposing a 10 percent tariff on $300 billion of Chinese goods beginning in September. Combined with existing tariffs, these new tariffs would cover almost all imports from China. David French, senior vice president at the National Retail Federation, criticized the move, claiming that the additional tariffs “will only threaten U.S. jobs and raise costs for American families.”
• A class of plaintiffs sued credit card company Capital One following its announcement that a hacker had accessed “certain types of personal information” of over 100 million of its customers and credit card applicants. The company had stated that “it is unlikely that the information was used for fraud or disseminated” and noted that the alleged hacker had been apprehended by federal law enforcement. The plaintiffs, however, claimed that Capital One breached its implied contract with its customers and applicants and negligently failed to exercise care in securing their personal information, including by failing to follow data security practices recommended by the Federal Trade Commission.
• FDA issued a final rule allowing soy leghemoglobin—a key ingredient of the meatless Impossible Burger—as a color additive in plant-based ground beef analogue products sold uncooked to consumers. The color additive was previously allowed only in products that were already cooked when sold to consumers, such as in restaurants, and the new ruling would enable consumers to purchase the uncooked meat substitute in grocery stores. FDA will accept objections and requests for hearing on the rule until September 3.
• The U.S. Senate Committee on Banking, Housing, and Urban Affairs held a hearing this week entitled “Examining Regulatory Frameworks for Digital Currencies and Blockchain.” The hearing addressed potential strategies and roadblocks to regulating cryptocurrencies and paid special attention to the cryptocurrency proposed by Facebook, called Libra.

WHAT WE’RE READING THIS WEEK

• In 2018, a college student found that an app that tracks runners’ routes had inadvertently revealed the location of the United States military’s forward operating bases. This incident and others support the need for new regulation and legislation on the privacy concerns implicated by both commercial and government satellite tracking, according to Anne Toomey McKenna and Amy C. Gaudion of Penn State Dickinson Law School and Jenni L. Evans of the Penn State Department of Meteorology and Atmospheric Science. They argued that the National Oceanic and Atmospheric Administration should require commercial satellite tracking applicants to “specify data type, collection method, whether and how the data will be aggregated with other sources (if known), and how the data will be sold or disseminated.” They suggested that Congress legislate rules on satellite–smart device data aggregation to bridge the “disconnect between satellite regulation and domestic privacy and electronic surveillance law.”
• Agencies ought to shift from employing design-based standards to using performance-based standards instead, argued Laura Montgomery of the Columbus School of Law at Catholic University, Patrick McLaughlin and Tyler Richards of the Mercatus Center at George Mason University, and Mark Febrizio of the Regulatory Studies Center at George Washington University in a working paper. They observed that the Clinton Administration issued Executive Order 12866, which instructed agencies to prefer performance standards, and which subsequent administrations have either reaffirmed or left untouched. They also drew attention to the approaches of the Federal Aviation Administration and of the Federal Railroad Administration as examples to other agencies on how to employ more performance standards.
• Professor Eva Micheler and LLM candidate Martyna Sucharzewska of the London School of Economics and Political Science (LSE) reported on the key takeaways from a recent LSE conference addressing the use of technology in law, finance, and regulation. The report summarized the perspective of conference speakers who addressed artificial intelligence, distributed ledger technology, smart contracts, and other developing areas of technology that could benefit from regulatory attention.