Consumer Law & Policy Blog

A Dash of Trademark Good Sense at HHS

by Paul Alan Levy

At a time when many federal agencies are moving to exert greater control over their names and seals, both seeking to monetize them as well as to engage in old-fashioned trademark bullying, it is nice to see that the Department of Health and Human Services has decided to pull back from that approach.  

Politico called attention back in April to proposed HHS regulations that would have declared that the HHS “seal, symbol and logo” were only for official use, and that any use by anybody outside the federal government, even by non-profit or advocacy groups, was strictly forbidden without the agency’s express written permission, and that violation of this rule was subject to prosecution.  Although I can understand a federal agency’s wanting to prevent a misleading use of its symbol to confuse consumers into believing that a given use is sponsored by that agency — a particular problem at HHS, where scammers frequently trying to trick elderly  people into trusting them with respect to social security and medicare benefits — I have less sympathy with the misuse of trademark-like rights to prevent the public from identifying the agency as a topic of discussion.  

And that includes admiration – today, anybody can walk down to the mall and buy a cheap Tshirt or hat emblazoned with the initials FBI.  Should we let the FBI monetize such uses, just as football and baseball teams were allowed, by using consumer surveys from an academic master whose deceptive survey tactics on behalf of his clients have since been exposed, to develop a line of caselaw that prevents members of the public from wearing the names and logos of the New York Yankees or Dallas Cowboys without paying rents to those teams?  The FBI got its head handed back to it when it tried such nonsense vis-a-vis Wikipedia a few years ago.

HHS has not addressed those issues directly, but Politico reported yesterday that HHS had retracted the proposed rules after receiving one “significant adverse comment.”   The office of public affairs advised that the Department's general counsel's office had taken charge of this issue. 

To which I say, bravo to its general counsel's office!  

My Latest Op-Ed, on Data Brokers

by Jeff Sovern

Here, in the Pittsburgh Post-Gazette.

On proposed changes to the federal rules of civil procedure

Arthur Bryant of Public Justice has this post, entitled Access to Justice At Stake with Federal Rules Changes, about "the critical importance of the Federal Rules process" and the importance of fair rules to ensure access to the civil justice system.

[Note, 6/5/14 - The link is not currently working. Seems to be a problem with the Public Justice website. I am leaving the post up in case the link is fixed.]

Seventh Circuit throws out consumer class-action settlement in a far-ranging opinion

by Brian Wolfman

In Eubank v. Pella Corporation, No. 13-2091 (June 2, 2014), Judge Richard Posner makes so many useful points about class-action settlements that it's not sensible to try to summarize them here. Read the opinion for yourself!

Just one point for now: As I've mentioned before, class-action settlement proponents often argue that one sign of a good settlement is a low number of opt-outs. But in small-claims class actions that's nonsense. The whole point of a small-claims class action is that it aggregates claims that, generally speaking, no plaintiff (or lawyer) could afford to bring on a non-class basis. So, generally, it makes no sense to opt out in a small-claims class action. Yet, settlement proponents continue to advance this argument, and, sadly, some courts have accepted it. On the other hand, some courts have understood just how weak the argument is. None has put it quite as bluntly as Judge Posner put it in Eubank. After citing emprical work showing that opt-out rates typically are very low, he declared: "a low opt out rate is no evidence that a class action settlement was 'fair' to the members of the class."

The Food & Drug Administration launches "Open FDA," a program aimed at putting large data sets in the hands of researchers, the public, and industry

The federal Food & Drug Administration has launched what it's calling Open FDA. Here's how the agency is describing its new program:

OpenFDA is specifically designed to make it easier for web developers, researchers, and the public to access and use the many large, important, health data sets collected by the agency. These publicly available data sets, once successfully integrated and analyzed, can provide knowledge and insights that cannot be gained from any other single source. Consider the 3 million plus reports of drug adverse reactions or medication errors submitted to FAERS, the FDA Adverse Event Reporting System (previously AERS), since 2004. Researchers, scientists, software developers, and other technically-focused individuals in both the private and public sectors have always been invited to mine that publicly available data set – and others – to educate consumers, which in turn can further our regulatory or scientific missions, and ultimately, save lives. ... In the past, these vast datasets could be difficult for industry to access and to use.  Pharmaceutical companies, for example, send hundreds of Freedom of Information Act (FOIA) requests to FDA every year because that has been one of the ways they could get this data. Other methods called for downloading large amounts of files encoded in a variety of formats or not fully documented, or using a website to point-and-click and browse through a database – all slow and labor-intensive processes. OpenFDA will make our publicly available data accessible in a structured, computer-readable format. It provides a “search-based” Application Programming Interface – the set of requirements that govern how one software application can talk to another – that makes it possible to find both structured and unstructured content online. Software developers can now build their own applications (such as a mobile phone app or an interactive website) that can quickly search, query or pull massive amounts of public information instantaneously and directly from FDA datasets in real time on an “as-needed” basis. Additionally, with this approach, applications can be built on one common platform that is free and open to use. Publicly available data provided through openFDA are in the public domain with a CC0 Public Domain Dedication.

For much more information on the program, go here.

- See more at: http://blogs.fda.gov/fdavoice/index.php/2014/06/openfda-innovative-initiative-opens-door-to-wealth-of-fdas-publicly-available-data/?source=govdelivery&utm_medium=email&utm_source=govdelivery#sthash.OeDQcTQo.dpuf