Week in Review

IN THE NEWS 

• The U.S. Supreme Court issued an order temporarily preventing the termination of the Title 42 policy, which has allowed border officials to “expel” migrants seeking asylum in the name of public health during the COVID-19 pandemic. In May 2022, the Administration sought to end the controversial policy, but a federal judge blocked the termination before it could take effect. In separate litigation, however, a different federal court ordered the policy’s termination by Wednesday, December 21. In response, 19 Republican-led states tried and failed to secure an emergency stay of the policy, arguing that the program’s termination would lead to an unmanageable influx of immigrants, and they appealed to the Supreme Court. The Biden Administration opposed the states’ motion but asked to delay termination until December 27. Experts expect the Supreme Court to issue a final decision on Title 42 quickly.
• The U.S. Federal Trade Commission (FTC) has commenced a review of the Green Guides, an FTC document designed to help marketers avoid making misleading environmental claims to consumers. In addition to promoting general principles, the guides provide advice for specific types of environmental claims, such as claims about carbon offsets or renewable energy, with model examples. The FTC requested comment on the continued use of the guides, how the guides should be modified, and whether the FTC should attempt to codify the guides into law, among other questions.
• The California Air Resources Board approved a final 2022 plan to set the state on a path to carbon neutrality by 2045. The plan provides for a shift of all sectors of the state’s economy, including power generation, transportation, and agriculture, away from fossil fuel production. Notably, the plan commits to not building new fossil fuel-fired power plants. The Board claimed that once fully implemented, the plan will add four million jobs to California’s economy and save $200 billion in health care costs due to reduced pollution over the next two decades, in addition to helping mitigate the effects of climate change.
• The U.S. Department of Energy announced a proposed rule that would strengthen energy conservation standards for light bulbs. The proposed rule would hasten the phaseout of compact fluorescent bulbs by increasing the minimum efficiency for most bulbs from 45 to over 120 lumens per watt. The Department estimated that the rule would collectively save consumers $20 billion and reduce greenhouse gas emissions by an amount equivalent to the yearly electricity use of 29 million homes. The announcement cited the rule as part of the Biden Administration’s goal to reach net-zero emissions by 2050.
• President Joseph R. Biden’s nominee to lead the Office of Information and Regulatory Affairs, Richard Revesz, won Senate confirmation, giving the office its first permanent director in almost two years. OIRA is charged with reviewing executive branch regulations and coordinating government information gathering, among other responsibilities. Revesz has stated he plans to stick with a traditional cost-benefit framework when analyzing regulations, but he has previously argued this framework must be applied in a manner less deferential to business interests. A challenge Revesz will immediately face is reworking the Biden Administration’s regulations targeting climate change that were struck down in part by the U.S. Supreme Court in West Virginia v. EPA.

WHAT WE’RE READING THIS WEEK

• In an article published in The Georgetown Law Journal, Alexandra J. Roberts of the University of New Hampshire Franklin Pierce School of Law addressed the ways that influencer marketing can deceive and harm consumers. She explained how consumers place trust in influencers, which renders them vulnerable to deception. But she noted that the FTC lacks the authority and resources to hold influencers accountable. The Lanham Act, however, allows private parties to hold them accountable, Roberts explained. Roberts contended that business owners are best positioned to litigate against influencers because of their resources and industry knowledge. Therefore, rather than relying solely on the FTC to regulate deceptive marketing, Roberts argued that companies should use the private right of action provided by the Lanham Act to combat false influencing.
• In an article published in The American Journal of Medicine, Matt Lamkin of the University of Tulsa College of Law analyzed the obstacles to incorporating psychedelic drugs into clinical practice. Despite promising psychedelic research in the mid-20th century, the Controlled Substances Act effectively banned psychedelics and inhibited research, Lamkin explained. Even if psychedelic drugs win U.S. Food and Drug Administration approval, they still cannot be legally prescribed because of their status as Schedule I substances, Lamkin contended. Furthermore, he explained that even if psychedelics’ Schedule I status is changed, some states can require regulatory action or new legislation before such drugs can be legally prescribed.
• In an article published in the Notre Dame Journal of International & Comparative Law, Juan E. Mendez of the American University Washington College of Law proposed reforms to the United Nations Standard Minimum Rules for the Treatment of Prisoners. Mendez argued that the revised rules should recognize the “right to access” standard and adequate medical, psychiatric, and dental care. This recognition would call for measures such as an absolute prohibition on engaging in torture, the provision of medical supplies to prisons, and procedural safeguards, such as routine medical examinations, Mendez argued. Mendez also recommended providing special measures to protect vulnerable or high-risk groups such as children, mothers, and LGBTQ+ persons in the criminal justice system.

EDITOR’S CHOICE

• In an essay in The Regulatory Review, Jonathan Baron, a professor at the University of Pennsylvania, argued that federal agencies should consider a global scope when determining the social cost of carbon. By limiting analysis of the social cost of carbon to the United States, federal agencies will develop less regulation and thereby cause greater harm to more people both inside and outside the United States, according to Baron. He concluded that psychologically and morally, regulations that consider a global calculation of the social cost of carbon maximize the benefit to the United States and avoid “committing acts of aggression” against other nations.