supreme court

SCOTUS Skeptical of an FDA Acting Arbitrarily Against Vape Products

Washington, D.C. – The U.S. Supreme Court today heard oral arguments in FDA v. Wages and White Lion Investments, LLC, a pivotal case concerning the Food and Drug Administration’s rejection of applications to market flavored nicotine vaping devices.

This is a landmark case for regulatory accountability related to public health and consumer choice.

At issue is whether the FDA acted arbitrarily and capriciously when denying numerous premarket tobacco product applications (PMTA), as alleged by the manufacturers and affirmed by the U.S. Court of Appeals for the 5th Circuit, which accused the FDA of a “regulatory switcheroo”.

Elizabeth Hicks, US Affairs Analyst of the Consumer Choice Center, observed today’s arguments and weighed in on the consequences of the case for consumers,

“This case underscores the need for fairness and transparency in regulatory processes. The FDA’s blanket denials have placed enormous hurdles on firms providing harm-reduction alternatives, potentially decimating an industry that millions of adult consumers rely on to transition away from smoking traditional cigarettes.”

Advocates of prohibition on flavored e-liquids, including groups like the American Medical Association, have characterized these products as targeting youth rather than adult consumers. Arguments in front of SCOTUS focused on whether the FDA had been transparent and consistent in why product applications were denied and what was lacking in the marketing plans of the applicants.

Associate Justice Clarence Thomas observed that the FDA guidance was indeed “a moving target” that shifted throughout the process, while Associate Justice Neil Gorsuch lamented that applicants where not granted conditions for jury trials in administrative cases, as the Court outlined in SEC v. Jarkesy.

Hicks continued, “The FDA’s rejection of Triton and Vapetasia’s applications demonstrates a failure to balance or even understand public health priorities and opportunities provided by less harmful nicotine products. While we all agree on the need to keep these products out of the hands of young people, denying adult smokers access to safer alternatives like flavored vaping devices could have dire consequences for harm-reduction efforts. Regulatory decisions should be evidence-based, not rooted in unachievable or shifting standards that are unreasonable to provide.”

The Consumer Choice Center calls on policymakers and regulators to prioritize consumer access to safer alternatives and ensure regulatory clarity around nicotine products.

###

The Consumer Choice Center is an independent, nonpartisan consumer advocacy group championing the benefits of freedom of choice, innovation, and abundance in everyday life for consumers in over 100 countries. We closely monitor regulatory trends in Washington, Brussels, Ottawa, Brasilia, London, and Geneva.

Find out more at www.consumerchoicecenter.org

NetChoice Cases: The First Amendment a back-to-back champ at the Supreme Court

WASHINGTON, D.C. – The First Amendment is a back-to-back champ.

In an opinion delivered on Monday, the nation’s highest court sent back two separate cases brought by industry association NetChoice and other parties against the states of both Texas and Florida for their recent social media laws.

These laws tied the hands of social media companies by not allowing them to moderate the content on their platforms, which would have First Amendment implications.

Yaël Ossowski, deputy director of the consumer advocacy group Consumer Choice Center, responds:

“The issues of social media censorship and jawboning by government agencies are both legitimate and concerning for citizens and online users across the country. Thankfully, however, the Supreme Court recognized that the lawsuits concerning laws passed by both Texas and Florida have not done a proper evaluation of the First Amendment applications and protections afforded to social media companies as well as users,” said Ossowski.

“While this battle will rage on, it is clear that the First Amendment is a clear back-to-back winner in the courts, and we as Internet users and consumers are better off as a result. We are all concerned about getting booted or censored on social media, but it is not by tying the hands of social media networks and forcing them to carry certain information or profiles that we will achieve freer speech online,” added Ossowski.

“Inviting the government to weigh in on content decisions made by private Internet companies is an obvious path to abuse, and one that the NetChoice cases demonstrate rather well. We hope these cases in the lower courts are reconsidered with good faith for the protections that the First Amendment offers while remaining cautious of yet more state regulation of what happens on the Internet.

“The future of free speech online and the First Amendment depend on rejecting overly broad state laws that force content decisions that undermind Section 230,” concluded Ossowski.

About the Consumer Choice Center:

The Consumer Choice Center is a non-profit organization dedicated to defending the rights of consumers around the world. Our mission is to promote freedom of choice, healthy competition, and evidence-based policies that benefit consumers. We work to ensure that consumers have access to a variety of quality products and services and can make informed decisions about their lifestyle and consumption.

Find out more at www.consumerchoicecenter.org

Consumers should applaud SCOTUS’s opinion on Jarkesy restoring civil rights to those pursued by administrative agencies

WASHINGTON, D.C. – Late last week, the U.S. Supreme Court delivered another magnanimous opinion in a lawsuit concerning the rights of citizens subject to enforcement action by federal agencies.

In SEC v. Jarkesy, it was held that any person held liable for civil penalties by an administrative agency is afforded the right of a jury trial – as stipulated by the Seventh Amendment – to have those claims heard in court.

Yaël Ossowski, deputy director of the consumer advocacy group Consumer Choice Center, responds:

“Along with the bombshell ruling of the Supreme Court reversing Chevron deference, the court’s opinion in SEC v. Jarkesy helps put administrative agencies in check and to ensure that individuals, firms, and organizations that find themselves the target of enforcement actions can have those accusations heard in a court of law,” said Ossowski.

“As we’ve seen too often with Commissioner Gary Gensler’s Securities and Exchange Commission, too many innovative cryptocurrency companies that offer great services for consumers have had their fates decided for them by unaccountable actions that have been nearly impossible to counter without a fair and balanced hearing before a judge.

“It’s a relief to see the Supreme Court come out strongly against administrative law judges and agencies that have abused American businesses and their many consumers. Time and time again, these judges, appointed and hired by agencies, including the Securities and Exchange Commission, Federal Trade Commission, and Department of Labor, have ruled in manners that are inconsistent with existing law and common sense — often enriching large corporations at the expense of everyone else.

“By reaffirming that the Seventh Amendment to the U.S. Constitution affords the American people the right to a trial by jury, the Supreme Court confirmed what we have all known for decades: the use of in-house administrative law judges typically violates judicial and statutory norms. We look forward to seeing how Jarkesy limits the use and power of ALJs within the SEC, FTC, DOL, and other agencies so that every American business and consumer can receive the fair legal proceedings they are entitled to,” concludes Ossowski.

The Consumer Choice Center firmly believes that this decision will lead to a more transparent, fair, and accountable regulatory process, benefiting consumers by preventing the kind of overreach that reduces choices, raises prices, and squashes innovation.

About the Consumer Choice Center:

Find out more at www.consumerchoicecenter.org

Good Riddance, Chevron Doctrine

Washington, D.C. – The Consumer Choice Center (CCC) celebrates today’s Supreme Court decision overturning the 1984 ‘Chevron‘ doctrine, an outdated ruling that exploded the power of the federal government to use the administrative state to craft rules in the absence of clear legislation from Congress.

Chevron enabled unelected federal bureaucrats to interpret and implement regulations on business, public health, consumers, and much more, drastically increasing the cost of compliance and leading to higher prices for consumers.

Yaël Ossowski, Deputy Director of the Consumer Choice Center, commented on the ruling, stating, “This is a monumental win for consumers and rule of law. The Chevron doctrine had allowed federal agencies to overstep their bounds, creating an unbalanced regulatory environment that often worked against the interests of consumers. The Supreme Court’s decision restores a much-needed check on regulatory power.“

The ruling arose from cases brought by Atlantic herring fishermen in New Jersey and Rhode Island, who challenged a 2020 National Marine Fisheries Service rule requiring them to pay for government-mandated “observers”. Lower courts had upheld this requirement based on the Chevron precedent. The fishermen appealed, and today in the highest court in the land, they won.

“Whether it’s the haphazard rule making from the Securities and Exchange Commission (SEC) on cryptocurrencies or ESG disclosure requirements, expansive EPA rules on emissions that practically no vehicles can match, or the overzealous FDA’s regulatory denials on nicotine alternative products, overturn of Chevron puts power back into the hands of the people through Congress, rather than the administrative state. No longer will agency “experts” have broad authority not explicitly granted by law. This is a great day for the rule of law and a more humble, restrained, and focused Executive Branch, which will benefits consumers who want the freedom to choose,” added Ossowski.

The Consumer Choice Center firmly believes that this decision will lead to a more transparent and accountable regulatory process, which benefits consumers by preventing the kind of overreach that reduces choices, raises prices, and squashes innovation.

About the Consumer Choice Center:

Find out more at www.consumerchoicecenter.org

US Supreme Court bails out the Consumer Financial Protection Bureau, but dire reform is needed

Today, the US Supreme Court delivered an opinion on the constitutionally of the Consumer Financial Protection Bureau‘s funding.

This is important, as CFPB operates with a Federal Reserve slush fund, not constrained by Congress. Oversight is also limited. In a 7-2 opinion, SC sided with CFPB. But questions remain.

The CFPB was created to police “unfair, deceptive, or abusive” practices by firms offering consumer finance products (loans, credit, payday advances, etc.) Its goal is to protect consumers, but as mass debanking for nonprofits and individuals proves, this hasn’t happened.

And with yet more regulatory uncertainty on the horizon with regard to FinTech legislation and consumers’ access to innovation financial products, the CFPB must face dire reform.

Unlike other government agencies, there no requirements to follow a formal “rule process” allowing citizens to voice their concerns if they disagree with a proposal. We can dispute over authority for agency rules (#overturnChevron), but no mandate for comments is a glaring issue.

The Fifth Circuit Court of Appeals found a problem with CFPB’s structure and funding, and agreed with the complaints that charge that the agency circumnavigates congressional authority and oversight (which SC ruled on).

At the Consumer Choice Center, we absolutely agree that there’s a role for government institutions to protect consumers – especially in the market for financial products. But when rules are burdensome, reduce availability of credit, and make it more difficult for Americans to finance their lives and businesses, this is worth another look. And likely some Congressional action.

We must remember that CFPB was a brainchild of now Sen. Elizabeth Warren, one of the most hostile politicians in DC on innovative financial products and technologies that actually help consumers.

At best, CFPB is an agency without watchers. At its worst, it’s an unaccountable bureaucracy that is halting innovation. Either way, there must be another way.

There are still many questions we’d like to ask, and perhaps some suggestions to reform CFPB in the next Congress. We look forward to more positive reform to better empower consumers and push forward on financial innovation.

SCOTUS Skeptical of an FDA Acting Arbitrarily Against Vape Products

Consumers should applaud SCOTUS’s opinion on Jarkesy restoring civil rights to those pursued by administrative agencies

Good Riddance, Chevron Doctrine

US Supreme Court bails out the Consumer Financial Protection Bureau, but dire reform is needed

Follow us

WASHINGTON

BRUSSELS

LONDON

KUALA LUMPUR

OTTAWA