- “Scott Gottlieb’s FDA Is Moving Toward a Stealth Ban on Cigarettes and Cigars” [Jacob Grier, Reason]
- Supreme Court should take Melissa and Aaron Klein cake-refusal case from Oregon and resolve the issues of free expression it dodged in Masterpiece [Ilya Shapiro and Patrick Moran, ABA Journal, earlier on Melissa and Aaron Klein cake-refusal case including oppressive $135,000 fine levied by Oregon BOLI (Bureau of Labor and Industries)]
- “Administrative Law Is Bunk. We Need a Bundesverwaltungsgericht” [Michael Greve, responses from Mike Rappaport, Philip Wallach, and Ilan Wurman, and rejoinder from Greve]
- New York’s family court system is failing children and their families [Naomi Riley/City Journal, thanks for quote]
- “The Emmys People Are Opposing A Pet Products Company Named After A Dog Named ‘Emmy'” [Tim Geigner, TechDirt]
- Metaphor alert: “Lawmaker Injured by Flying Constitution” [Kevin Underhill, Lowering the Bar, and funny throughout]
- Federal judge Preska of Southern District of New York rules structure of Consumer Financial Protection Bureau unconstitutional, creating split with D.C. Circuit which upheld CFPB structure;
- “Australia Attempts to Fight Tobacco Black Markets by Banning Large Cash Transactions” [Scott Shackford]
- “Restoring Accountability to the Business of Banking” [John A. Allison and Lydia Mashburn, Washington Examiner]
- NAM is among backers of Main Street Investors Coalition that will push back against corporate governance and shareholder activism forces on Left [Bainbridge; Alicia McElhaney, Institutional Investor]
- Supreme Court agrees to hear SEC enforcement action case on scope of liability for false statements [Greg Stohr, Bloomberg; Peter J. Henning, New York Times DealBook; Lorenzo v. Securities and Exchange Commission]
- “Why the Fall in IPOs Is a Threat to Popular Capitalism” [Diego Zuluaga, Cato]
- Outcry among British doctors after trainee pediatrician convicted of negligent homicide in death of patient following systemic errors at understaffed hospital [Telegraph, Saurabh Jha, Medscape, General Medical Council]
- “There’s no particular reason to think that smokers will be happier with denatured tobacco than drinkers have been with weak beer.” [J.D. Tuccille on FDA plans to reduce nicotine level in cigarettes]
- “Why Doesn’t the Surgeon General Seek FDA Reclassification of Naloxone to OTC?” [Jeffrey Singer, Cato]
- “1 in 3 physicians has been sued; by age 55, 1 in 2 hit with suit” [Kevin B. O’Reilly, AMA Wire] “Best and worst states for doctors” [John S Kiernan, WalletHub]
- “Soon came a ‘routine’ urine drug test, ostensibly to ensure she didn’t abuse the powerful drug. A year later, she got the bill for that test. It was $17,850.” [Beth Mole, ArsTechnica]
- Milkshakes could be next as sugar-tax Tories in Britain pursue the logic of joylessness [Andrew Stuttaford, National Review]
- “Trump Joins Campaign To Force Big Pharma To Pay for Opioid Crisis” [Ira Stoll] “Records show all-out, unsolicited attorney scramble to sign up Texas counties for opioid litigation” [David Yates, Southeast Texas Record] “Plaintiff Lawyers See Nationwide Settlement As Only End For Opioid Lawsuits” [Daniel Fisher, LNL/Forbes] “Leading Opioid Litigation Firm Becomes a Top Donor to McCaskill Leading Up to Report’s Release” [Ethan Stoetzer, Inside Sources]
- NYT columnist David Leonhardt pens column urging cutting back on sweets as a political gesture against “attempts to profit off your body,” and others push back [Ira Stoll; Tamar Haspel, citing this 2016 piece on how the science is more complicated]
- “Study: Medical Expenses Cause Close to 4% of Personal Bankruptcies—not 60%” [Michael Cannon, Cato; earlier here, etc., related here]
- Genetic engineering of animal life: “How the FDA Virtually Destroyed an Entire Sector of Biotechnology” [John Cohrssen and Henry Miller, Cato “Regulation”]
- “Very cheap (tobacco) products should no longer be available.” Why should you get to decide that for other people? [John Stossel, Reason]
- Lawyer ads scare patients out of taking needed medication [download Cary Silverman, U.S. Chamber Institute for Legal Reform via John O’Brien, Forbes]
As I noted in this space a year and a half ago, the Food and Drug Administration’s restrictions on vaping (e-cigarette) products — which questionably apply the Tobacco Control Act to products that contain no tobacco — “will drastically restrict and maybe even ban a popular option for smokers seeking to quit the cigarette habit. It’s not just an assault on individual choice and commercial freedom — it could wind up killing people.” Along the way, the agency would dent consumer choice in the cigar market.
Now the Pacific Legal Foundation has filed a challenge to the FDA rules, with separate legal actions in three courts. PLF’s central objection is that the regulation was issued by a career FDA civil servant without proper legal authority to do so. Ilya Shapiro, Washington Examiner:
It turns out that the FDA has for many years been delegating its rulemaking authority to its “associate commissioner for policy,” a career civil-service position two rungs below FDA Commissioner in the bureaucratic depth chart. For eight years, the Associate Commissioner for Policy has been a woman by the name of Leslie Kux. It was Kux, not then-Secretary Sylvia Burwell or then-Commissioner Robert Califf, who signed and issued the Deeming Rule.
Why is this a problem? Because the Constitution draws a distinction between “Officers of the United States” and mere employees of the federal government. Only officers can exercise “significant authority” under federal law. But in exchange for that greater power, officers must go through a constitutionally prescribed procedure, typically nomination by the president and confirmation by the Senate (with a few exceptions applicable only to inferior officers). This ensures that anyone appointed to a policymaking role — one whose duties go beyond the ministerial and advisory — will first have their character and judgment vetted by the politically accountable Senate (who shares in the blame when an appointment goes wrong).
The power to issue a final rule is indisputably a “significant authority” reserved only to officers.
While FDA commissioners have purported to delegate rule issuance authority to the permanent employee, PLF argues that the Constitution does not permit them to evade its prescription by such means.
Beyond that, the rules’ restrictions on marketing — which forbid companies to promote vaping as a method of harm reduction that could benefit existing smokers, even if that statement is plainly true — run into the First Amendment and the protections it affords to much truthful commercial speech. PLF:
The vaping edict flouts the First Amendment by forcing businesses to run a daunting regulatory gauntlet in order to advertise truthful information. The government can’t require pre-approval for truthful speech, and it especially can’t shift the burden of proof to the speaker to prove the benefits of his speech will outweigh any harms the government perceives may result.
Beyond violating the Constitution, the vaping rule is horrible public policy: it threatens to shut down thousands of small businesses that provide potentially life-saving products and creates a public safety hazard by making it very difficult to improve and repair products.
- “Survey: Most Docs Sued for Malpractice” [John Commins, Health Leader on Medscape survey] “The Missing Link in Lavern’s Law” (New York) [Peter A. Kolbert and Andrew S. Kaufman, New York Law Journal]
- Prescription spirits: why many physicians prospered so mightily during Prohibition [Paula Mejia, Atlas Obscura]
- Third Circuit greenlights consumer financial injury class action claiming eyedrop container dispenses eyedrops that are too big [Beck and McConnell on Alcon suit; see also earlier Posner on Allergan case]
- AI in health care, spot the legal issues: “For the First Time, a Robot Passed a Medical Licensing Exam” [in China; Dom Galeon, Futurism]
- “Why FDA regulations limiting e-cigarette marketing may cost lives and violate the Constitution” [Jonathan Adler; related, Jacob Sullum, earlier here, etc.] Anti-vaping crusade represents broader scandal of public health [John Tierney, City Journal]
- Off-label prescribing offers a window on a world with much less FDA regulation, and overall it’s an attractive one [Alex Tabarrok]
Federal judges have fined the Jacksonville law firm of Farah & Farah $9.1 million over improperly handled claims against a fund set up after litigation to compensate smokers in the state of Florida [WTLV/First Coast News]:
The judges’ order states 1,250 frivolous tobacco claims were filed by Farah & Farah and the Wilner Firm against the Engle Trust Fund….
…cases filed collectively by Jacksonville attorneys Charlie Farah and Norwood Wilner prompted a U.S. Attorney Special Master seven month investigation into possible misconduct in 2012.
The investigation revealed some cases filed by the attorneys were for deceased clients, non-smokers, those who did not suffer from one of the required diseases, and 572 that did not authorize the attorneys to file lawsuits on their behalf.
More: Glenn Lammi.
- Research by Todd Henderson et al. suggests that lawyers may often do well as CEOs, and anticipating and reducing litigation risk may be a key mechanism [Stephen Bainbridge]
- Canada: Couple sues neighbors for $2.5 million for copying their house’s architecture [Rain Noe, Core77]
- Abraham Lincoln on public choice and the aligning of interest with ethical duty [David Henderson]
- Redistricting, Anne Arundel county executive allies with trial lawyers to file opioids suit, Baltimore police, Montgomery County minimum wage in my latest Maryland policy roundup [Free State Notes]
- Black smokers in the U.S. are more likely than whites to prefer menthol, and prohibitionists frame foiling their wishes as a matter of racial justice [Christian Britschgi]
- Here come the trustbusting conservatives back again, no more convincing this time around [Steven Greenhut]
- Relatively funny, clever, and pleasant nastygram, as nastygrams go, on Netflix “Stranger Things” pop-up [BGR]
- “Taser: Can’t say our weapons killed somebody unless the autopsy says so. Also Taser: If the autopsy blames our weapon, we might sue you.” [@bradheath on Jason Szep, Tim Reid, and Peter Eisler Reuters investigation]
- Fourth Circuit asked to overturn forfeiture of antiquarian coins seized under “cultural patrimony” law [Peter Tompa, Antique Coin Collectors Guild]
- Videos from April conference at Scalia/George Mason on due process and the administrative state: Neomi Rao, Philip Hamburger, Gary Lawson, Ronald Cass, Jonathan Adler, Hon. Doug Ginsburg, and many other stars;
- Nice try, censorship fans: study from Stanton Glantz et al. tries to link teen smoking to movie depictions of smoking, resulting in epic fail [Brad Rodu]
- Facebook weeds out a million accounts a day, some in error. Takedown laws will lift false positive rate [Mike Masnick]