Week in Review

IN THE NEWS

• The U.S. Food and Drug Administration (FDA) officially raised the national minimum age to purchase tobacco products from 18 to 21. The move came a week after President Donald J. Trump signed legislation that amended the Federal Food, Drug, and Cosmetic Act to require the agency to raise the minimum age within six months. Matthew L. Myers, president of the Campaign for Tobacco-Free Kids, called the measure a “positive step” but cautioned that it is “not a substitute for prohibiting the flavored e-cigarettes that are luring and addicting our kids.”
• FDA announced an enforcement policy against unauthorized flavored vaping products, citing concerns that companies have targeted children. FDA emphasized that the enforcement priorities are not a ban on flavored vaping products because FDA could still authorize a flavored product if a company could demonstrate the product’s impact on youth initiation and use. In response, President Donald J. Trump stated that “we have to protect our families; at the same time, it’s a big industry, and we want to protect the industry.”
• The Federal Reserve released a report concluding that the Trump Administration’s 2018 tariffs on imports have negatively impacted the domestic manufacturing sector. The report’s authors wrote that the tariffs “are associated with relative reductions in manufacturing employment and relative increases in producer prices,” and that any protectionist gains were more than offset by rising costs of raw goods and retaliatory tariffs implemented by other countries.
• The Science Advisory Board of the U.S. Environmental Protection Agency published four draft reports criticizing recent rollbacks of environmental regulations. The reports reiterated that the loosening of certain environmental regulations—such as fuel efficiency standards and redefining the “waters of the United States”— were based on weak scientific analysis that went against established science. In one report, the Science Advisory Board pointed to the rule narrowing the definition of the waters of the United States under the Clean Water Act as having “no scientific justification.”
• The California Department of Motor Vehicles approved a testing program for self-driving delivery trucks on public roads. As with the existing self-driving passenger vehicle testing protocol, companies seeking to test self-driving trucks will apply to the agency for a testing permit. Some permits even allow testing without a safety driver, though Waymo—Google’s self-driving car project—is currently the state’s only permit-holder for driverless testing of autonomous passenger cars.
• The U.S. Court of Appeals for the District of Columbia Circuit dismissed a lawsuit challenging President Obama’s decision to protect thousands of miles of ocean in New England by designating a new national monument. The ruling allows an earlier district court decision upholding the designation to stand. “Today’s decision affirms that presidents have the authority to protect marine areas like this for the benefit of current and future generations,” said Kate Desormeau, senior attorney for the Natural Resources Defense Council.

WHAT WE’RE READING THIS WEEK

• In an article published in the Michigan Law Review, Professor Nicholas Bagley of the University of Michigan Law School argued that certain procedural constraints within administrative law should be eliminated as counterproductive and unnecessary. One redundancy, according to Bagley, is the Office of Information and Regulatory Affairs, which he described as a “drag on regulation without adequate justification.”
• FDA failed to conduct the studies necessary to assess the effectiveness of its opiate risk mitigation program, wrote James Heyward, Lily Olson, Joshua Sharfstein, Elizabeth Stuart, and Caleb Alexander of the Johns Hopkins Bloomberg School of Public Health, and Peter Lurie of the Center for Science in the Public Interest in the Journal of the American Medical Association. The authors reviewed over 9,000 pages of agency documents on the risk mitigation program—implemented as the chief response to a rising and “disproportionate safety problem associated with these products”—and determined that FDA failed to fulfil their promise to collect the data necessary to determine if prescribed training on the risks of extended release and long acting opioids resulted in improved patient safety outcomes.
• The Trump Administration has largely failed to deliver on its promise to deconstruct the administrative state, Phillip Wallach of free-market think tank R Street wrote for the National Review. Despite some successes, such as President Trump’s order establishing a regulatory budget, Wallach argued that the current Administration’s deregulatory initiatives have been closer to “misbranded good-government reform” than a fundamental transformation of government. “The old order has proven itself more than capable of withstanding this president’s antiregulatory efforts,” he concluded.

FLASHBACK FRIDAY

• In a 2018 essay for The Regulatory Review, Ronald A. Cass, president of Cass & Associates and dean emeritus of Boston University School of Law, explained that the doctrine of deference awarded to reasonable agency interpretation—known as Chevrondeference—could be refined with the appointment of Justice Brett Kavanaugh to the U.S. Supreme Court. Cass noted that Justice Kavanaugh has suggested creating a more specific methodology beyond a broad deference doctrine to ensure more predictable outcomes.