Administrative Law Essay Competition Winners

In the spring of 2022, University of Pennsylvania Carey Law School Dean Sophia Lee hosted an essay competition for students enrolled in her administrative law course. Each student in her class researched a federal rulemaking or proposal and then wrote an essay about it. The top essays were selected and submitted to The Regulatory Review, and our editorial team followed a blind review process and further selected the two best essays to publish.

We are pleased to announce that the 2022 winning essays were authored by Samuel Rossum, a member of the University of Pennsylvania Carey Law School Class of 2023, and Hannah Leibson, a member of the University of Pennsylvania Carey Law School Class of 2022. Their essays appear below.

We extend to Samuel and Hannah our sincerest congratulations—as we also congratulate and thank all the students whose excellent essays we read. We especially thank and applaud Dean Lee for her innovative and insightful teaching of administrative law.

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Rules on Alcohol Serving Facts May No Longer Be Left to Age

Samuel Rossum

A federal agency plans to require long-awaited alcoholic beverage labels that display nutritional information.

Analysis | Health

A shot of gin contains roughly 116 calories. In other words, 1.5 ounces of vodka is higher in calories than 12 ounces of light beer. But one poring over the label on a bottle of vodka would be hard-pressed to find that information.

And current regulations by the Alcohol and Tobacco Tax and Trade Bureau (TTB) make that perfectly legal. Nutritional fact labels are not required on alcoholic products.

But that may be due to change very soon. The agency described plans this year to regulate what nutritional information is displayed on alcoholic products.

In 2018, TTB embarked on a course of regulation to modernize labeling and advertisement requirements for wine, distilled spirits, and malt beverages. Yet by February 2022, the agency’s final rule imposed no new obligations on industry members and instead provided them with additional flexibility in crafting labels and ads.

Want to slap the American flag on your bottle of bourbon? Go ahead, so long as you do not give the impression that the government is endorsing your product. Need to warn consumers that a competitor’s tequila is made with genetically modified agave? If it is true, that ad would likely have passed muster.

But not everyone agrees that modernization should only equate to liberalization. Critics argue that consumers should have greater awareness of a beverage’s alcohol content, serving size, calories, ingredients, and allergen information before imbibing.

In fact, some advocacy groups sued TTB to compel a decision on the inclusion of these nutritional details. They argued that TTB has failed to respond to a twenty-year-old petition to the agency demanding such action.

And a month after the suit was filed, TTB announced its intention to open three new rulemakings on the issues of labeling nutrients, allergens, and ingredients in alcohol.

Consumer groups lauded this “groundbreaking” shift in policy.

“For too long, the alcohol industry has kept consumers in the dark,” said Thomas Gremillion, Director of Food Policy at Consumer Federation of America.

Beyond those policy concerns, observers have also emphasized the need to synchronize TTB standards with policies of the Food and Drug Administration (FDA), which do not reach most alcoholic beverages.

For example, the FDA directs Americans to monitor their caloric intake from alcoholic beverages, yet the TTB’s hands-off approach may prevent the diet-conscious from readily discovering this information.

Similarly, FDA requires that certain chain restaurants display nutritional information for alcoholic beverages, but a craft beer purchased at a corner store could very well omit that same information.

Allergen information presents similar risks. While FDA-regulated products mandate labeling of major allergens, most alcoholic beverages fall under a voluntary disclosure scheme.

Leaving these life-or-death matters to “guesswork,” the critics opined, is an abdication of the TTB’s responsibilities. The gluten-intolerant may know to steer clear of beer, but they may not be savvy enough to refrain from drinking ouzo. And those with seafood allergies may not realize that a Bud Light “Clamato” really does contain clam juice.

TTB originally parried these remarks as all being outside the scope of the regulation since the proposed rule had already disclaimed any notion that it would address “Serving Facts.” Indeed, the Bureau has continually avoided addressing the issue, such as when it abandoned a rulemaking in its early stages back in 2007.

After being sued, however, TTB has changed its tune, promising three new rulemakings this year. Although none of the rulemakings have yet begun, consumer advocacy groups see “light at the end of the tunnel.”

By contrast, although many alcohol industry representatives recognize that disclosure requirements have been a long time coming, a majority of winemakers still oppose ingredient and nutrition facts labeling. WineAmerica noted its intention to advocate off-label electronic information disclosures, rather than printing the details directly on the bottle.

For now, those who are spirited about spirits must await news on TTB’s rulemakings to determine whether the agency has felt enough pressure from consumer advocates to adopt nutritional information standards on alcoholic products.

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The FCC’s Fight Against Russian Disinformation

Hannah Leibson

Federal agency implements more stringent rules for identification of foreign sponsors in broadcast media.

News | Process

As the war in Ukraine wears on, Vladimir Putin is winning the disinformation war in Russia.

When the war began, he banned popular social media platforms, including Facebook and Instagram, and blocked airtime for many international news channels. In its place, government-sponsored channels such as RT and Radio Sputnik dominate the airwaves, disseminating propaganda to Russian citizens. These programs restrict the war narrative to the Kremlin’s own version of the unfolding events.

Watching from afar, the United States government and cable industry took steps to pierce this disinformation bubble before it reached American media consumers.

First, major digital programming distributor DirecTV dropped RT America—a Russian government funded U.S. news network—from its platform. In addition, all twelve years of its archived programming was deleted from its website. This action mirrored a similar response by the European Union just days earlier.

Second, the Federal Communication Commission’s (FCC) foreign sponsorship identification rules went into effect, which require television broadcasters to make on-air disclosures for all foreign government-sponsored programming.

These rules aim to remove “potential ambiguity” in broadcast messaging and deter foreign governments from seeking to “persuade the American public” on national airwaves.

In a press release following the rollout, FCC Chair Jessica Rosenworcel remarked how “in light of recent events, this effort—which is all about transparency—has taken on new importance. It is essential that audiences know when a broadcast station has been compensated to air content coming from a foreign government.”

Direct evidence that Russia and China were purchasing broadcast time in increasing proportions in markets all across the United States led to rising urgency that these rules take effect as soon as possible. The rules were adopted unanimously in April 2021 by all five FCC commissioners.

Federal communications law prohibits foreign governments from owning broadcast licenses, but foreign government are freely able to purchase air time from other licensees. Until now, however, no guidelines existed for how and when foreign government-sponsored programming had to be publicly disclosed to viewers.

The rules seek to increase public awareness of the source of paid programming.

While these rules have been celebrated as a win by the FCC, the National Association of Broadcasters (NAB) has been fiercely opposed to their implementation. NAB contends that the rules are “burdensome” in nature and address a “phantom harm” that has not been well-documented.

NAB, along with several other industry groups, asked a federal court to delay the rules. The suit alleged that the rules violate the First Amendment and are arbitrary and capricious under the Administrative Procedure Act.

The FCC, however, maintained that the rules do not violate the First Amendment because they are “content neutral” and apply equally to all foreign broadcast programming.

The court permitted the rules to go into effect as litigation continues. But NAB scored a legal victory over the FCC on a related provision. The FCC had ordered broadcasters to go through several steps to verify whether a sponsor is or is supported by a foreign government, including to verify their identity against two different federal databases.

A federal court vacated that double-verification requirement. The court held that the FCC had “no authority” to impose such a requirement and had attempted to broaden the “broadcasters’ narrow duty of inquiry” into a sponsor’s identity.

In the wake of that ruling, the FCC has called for public comments on a new proposed rulemaking. The new proposal would instead require broadcasters to submit a certification form as to whether the sponsor is a foreign government.

As these rules and lawsuits make their way through the federal system, it will remain to be seen whether the FCC can significantly curtail Russian disinformation in the United States.