Consumer Law & Policy Blog

Rates of people lacking health insurance continue to drop in most states

Read this analysis by Gallup. Not surprisingly, the uninsured rates are dropping in states that opted for the Affordable Care Act's Medicaid expansion. Perhaps more surprising is that states that have set up their own health-care exchanges (or have state-federal partnerships), as opposed to states that depend on the federal exchange, generally are the states that have done the best in reducing uninsured rates.

"FTC to Clarify Its Powers to Police Unfair Competition"

The Wall Street Journal reports:

The Federal Trade Commission in its 100-year history has never agreed on formal principles for policing companies engaged in “unfair” competition. That looks set to change.

Members of the FTC are close to a bipartisan agreement to lay out for the first time how the commission views its authority to bring cases against businesses it believes compete unfairly, according to people familiar with the deliberations.

The full story is here. (Subscription may be required.)

"Why the FTC is showing up at hackers’ biggest conferences"

...is the title of this eye-opening piece in the Washington Post about what the FTC is seeking to learn from hackers about data privacy.

As the Post reports,

FTC Commissioner Terrell McSweeny and the agency's chief technologist Ashkan Soltani are in Las Vegas this week to talk with hackers and security researchers attending the Black Hat and DEF CON conferences. The agency wants their input as it navigates the increasingly complicated digital world in which consumers now live, McSweeny says.

Read the article, in the form of a Q + A with McSweeny, here.

 

"Coca-Cola Funds Scientists Who Shift Blame for Obesity Away From Bad Diets"

That's the title of this article in yesterday's NY Times by Anahad O'Connor. Coke is the world's largest marketer of sugary drinks. O'Connor explains that Coke gives "financial and logistical support" for "a new nonprofit organization called the Global Energy Balance Network." (The group's name -- The Global Energy Balance Network -- is more inscrutable than, say, The Tobacco Institute.) The new group "promotes the argument that weight-conscious Americans are overly fixated on how much they eat and drink while not paying enough attention to exercise."

But many scientists believe that, generally, exercise has only a small impact on a person's weight and that diet can have a much larger one. O'Connor's article is worth a read.

O'Connor's article reminded me of the video recently released by the Center for Science in the Public Interest, which takes off on Coke's famous "Hilltop" ad to focus on the association between drinking a lot of sugary drinks and diabetes (and all the horrible conditions associated with diabetes). Click here or on the embedded video below to watch that video.

 

Fish Oil, Pharma and the First Amendment

     A few weeks back I blogged here about pharmaceutical manufacturer Amarin’s lawsuit aiming to allow it to market a fish-oil based drug for a use not approved by the FDA. The FDA denied approval because it concluded the drug had no demonstrated therapeutic benefits for that use, but Amarin claims a First Amendment right to market it for the use anyway.

    Today Amarin, and by extension big Pharma, won an important early battle in that case when the U.S. District Court for the Southern District of New York, in a 70+-page opinion by Judge Paul Engelmayer, ruled that Amarin was entitled to a preliminary injunction allowing it to promote the drug for the unapproved use.

    I won’t attempt to explain everything in the opinion in a short blog post, but the nub of it is this: Judge Engelmayer held that Amarin was likely to prevail in its argument that when a drug manufacturer has obtained approval to market a drug for one use, the First Amendment entitles it to market the drug for unapproved uses as well unless the FDA can prove that its marketing is false or misleading (or, perhaps, would promote an unsafe use of the drug). The ruling thus effectively reverses the Food, Drug & Cosmetic Act principle that the burden is on a manufacturer to prove a drug safe and effective for a particular use before it may market the drug for that use.

Cell location data and the Fourth Amendment

...is the subject of a pending cert. petition to the Supreme Court, reports Ars Technica (here). The issue is whether law enforcement's use of cell phone data to locate a person is subject to the privacy protections of the Fourth Amendment (such as the warrant requirement). The en banc Eleventh Circuit answered no (here). The petition's chances got a boost this week when the Fourth Circuit took the opposite view, rejecting a "shrunken Fourth Amendment" and holding that law enforcement's use of cell location data requires a warrant (here).

At the heart of the debate is whether the third-party doctrine, under which a person has no reasonable expectation of privacy in information voluntarily disclosed to the third party, applies to cell phone information. The third-party doctrine was developed in the 1970s in a very different technological landscape. Today everyone with a cell phone unavoidably shares information about themselves, including location information, with their providers. If the third-party doctrine applies, none of this information is protected by the Fourth Amendment. Will the same Supreme Court that unanimously rejected the constitutionality of round-the-clock GPS surveillance in U.S. v. Jones and unanimously required a warrant to search the contents of a cellphone in Riley v. California extend the third-party doctrine to today's technology? It seems unlikely.

Pew on prepaid cards

A Pew report from earlier this summer investigates the use of prepaid cards -- who uses them, and how, and what regulation might be needed. The report found a huge rise in use. More specifically: "The report finds that many 'unbanked' consumers, those without bank accounts, are using prepaid cards like checking accounts, underscoring the need for the Consumer Financial Protection Bureau (CFPB) to finalize rules it has proposed that would extend greater safeguards to prepaid card users."

Check it out here.

Seventh Circuit Abandons Damasco, Says Offers of Judgment Don't Moot Cases

    In Chapman v. All American Painting, Inc., the Seventh Circuit today overruled a string of decisions, including Damasco v. Clearwire Corp., and held that a rejected offer of judgment that would have provided a plaintiff with complete relief does not moot the plaintiff's claims. The court adopted the analysis of Justice Kagan's dissenting opinion in Genesis Healthcare Corp. v. Symczyk (which, as the Seventh Circuit pointed out, was not disagreed with by the majority in the case) that a rejected offer of judgment cannot have mootness consequences because it does not prevent the court from providing effectual relief.

    The opinion was written by Judge Easterbrook and joined by Judge Posner (who had earlier pioneered the now-disavowed view that a rejected offer of judgment may moot a plaintiff's claim). The court explained that it realized the issue is currently before the Supreme Court in Campbell-Ewald Co. v. Gomez but wanted to "clean up the law of this circuit promptly, rather than require [litigants] to wait another year for the Supreme Court’s decision."

DARK Act Basics

    You may know that H.R. 1599, the "Safe and Accurate Food Labeling Act of 2015" passed the House of Representatives a couple of weeks back and has been referred to committee in the Senate. You may also know that the bill would ban states from requiring labeling of foods containing genetically engineered (GE) ingredients, and that its opponents have dubbed it the Denying Americans the Right to Know Act, or DARK Act. But what all is in the bill? More than you might think.

    First, the basics. The bill passed the House of Representatives on July 23 by a vote of 275 to 150, with support from 94% of House Republicans and 25% of House Democrats. The engrossed (i.e., passed) House bill has been referred to the Senate Agriculture Committee, though there is as yet no corresponding Senate bill.

    If enacted in its current form, the bill would, broadly speaking, do three things, only one of which focuses specifically on labeling of GE foods. First, it would define when GE plants can be sold for use in foods and preempt any state law restrictions on such sales. Second, it would limit the ability of food manufacturers to label their foods as either free from or containing GE ingredients, and it would preempt state labeling requirements for GE foods. And third, it would require development of federal standards for labeling foods marketed as "natural" and preempt state laws on that subject as well.

Jon Stewart's hilarious, incisive, influential run

...comes to an end tonight with his last episode hosting the show. In addition to covering issues of war and peace, politics, and the media, Jon Stewart has frequently covered issues of importance to consumers.

If you're feeling nostalgic for all things Stewart (as I am today), here's a collection of some of his pieces our blog has flagged over the years:

On MERS and wrongful foreclosures

On Dodd-Frank

On Congress and science

On accountability for Wall Street, as compared with Occupy Wall Street

Interviewing CFPB head Richard Cordray

On campaign finance

On the JPMorgan mortgage securities settlement

And here's one of numerous interviews with financial reform champion (and now Senator) Elizabeth Warren. (In her first appearance, here, she cogently explains the needed components of the financial regulatory system.)

Thanks, Jon, for bringing much-needed attention and outrage to these issues and many others and for making us laugh as you did it.