Consumer Law & Policy Blog

FDA: Lots of pregnant women and kids under 6 tested for lead since 2014 should be retested

A company called Magellan Diagnostics touts itself as "the most trusted name in lead testing." But the Food and Drug Administration disagrees, saying that many of the company's products are inaccurate. The problem may go all the way back to 2014. And the problem appears to be false negatives -- some of the company's lead tests show lower-than-actual levels. So, pregnant women who have used the company's products and parents who have had their kids tested with the company's products need to take note. Apparently, many Magellan lead testing products are used in doctors' offices. As the FDA explains:

The U.S. Food and Drug Administration and Centers for Disease Control and Prevention are warning Americans that certain lead tests manufactured by Magellan Diagnostics may provide inaccurate results for some children and adults in the United States. The CDC recommends that parents of children younger than six years (72 months) of age, and currently pregnant women and nursing mothers who have been tested for lead exposure consult a health care professional about whether they should be retested. * * *

The FDA’s warning is based on currently available data that indicate Magellan lead tests, when performed on blood drawn from a vein, may provide results that are lower than the actual level of lead in the blood. Currently, the FDA believes the issue may date back to 2014. The warning includes all four of Magellan Diagnostics’ lead testing systems: LeadCare; LeadCare II; LeadCare Plus; and LeadCare Ultra. At this time, all LeadCare systems can be used with blood from a finger or heel stick, including the LeadCare II system - a system found in many doctors’ offices and clinics.

The New York Times has coverage here.

Duranske Article on Regulation Health and Wellness Claims

Sarah Duranske of Stanford has written This Article Makes You Smarter (Or, Regulating Health and Wellness Claims), Forthcoming in the American Journal of Law and Medicine. Here is the abstract:

Information has power – to inspire, to transform, and to harm. Recent technological advancements have enabled the creation of products that offer consumers direct access to a level of personal health information unprecedented in history. But how are we to balance the promise of health and wellness information with its risks?

Two agencies are tasked with protecting consumers from false claims of health products: the FDA and the FTC. This Article investigates if they are up to the task. In part a study of agency policymaking choices, and in part a prescription for more thoughtful and focused regulation, this Article compares both intra-agency and inter-agency regulation of informational health and wellness products. Certain procedural and substantive characteristics of FDA regulation are unsuited to informational health and wellness products, rendering comprehensive regulation by the FDA unrealistic. This gap creates an opportunity for the FTC to use its distinct and well-tailored enforcement tools to police harmful product claims that escape the FDA’s purview. I posit that by tailoring the FDA’s responsibility and sustaining the FTC’s engagement with health claims, the agencies can dovetail into a cohesive and comprehensive regulatory regime.

Times: No, Your Phone Didn’t Ring. So Why Voice Mail From a Telemarketer?

Here. Excerpt:

[C]alls are quietly deposited through a back door, directly into a voice mail box — to the surprise and (presumably) irritation of the recipient, who cannot do anything to block them.

Regulators are considering whether to ban these messages. They have been hearing from ringless voice mail providers and pro-business groups, which argue that these messages should not qualify as calls and, therefore, should be exempt from consumer protection laws that ban similar types of telephone marketing.

* * *

The [Federal Communications C]ommission is collecting public comments on the issue after receiving a petition from a ringless voice mail provider that wants to avoid regulation under the Telephone Consumer Protection Act of 1991. * * *

Even consumers on the “Do Not Call” list could potentially be bombarded by telemarketers, advocates said. “The legal question is whether the people sending the messages would be required to comply with the Do Not Call list,” Ms. [Margot] Saunders [of NCLC] said. “We read the law to possibly not apply if they are not considered calls.”

Bair Article: Dynamic Rationality

Stephanie Plamondon Bair of Brigham Young has written Dynamic Rationality, Forthcoming in the Ohio State Law Journal.  Here is the abstract:

In 1998, Christine Jolls, Cass Sunstein, and Richard Thaler published A Behavioral Approach to Law and Economics, one of the most important pieces of scholarship in decades. Their Article famously proposes a departure from the classical law and economics approach to legal analysis. Breaking from classical law and economics’ rational actor construct, the authors apply empirical insights about human behavior to introduce the concept of a boundedly rational actor limited by cognitive constraints. Over the past two decades, the behavioral law and economics approach, with its focus on the boundedly rational actor, has contributed needed realism to legal analyses.

Unfortunately, the current approach to behavioral law and economics is incomplete. Indeed, sometimes it even conflicts with empirical lessons about how the brain actually works. In particular, rationality is not exogenous to policy, but instead has a dynamic character that can be molded in long-lasting ways over time by specific laws and policies. By overlooking the dynamic nature of rationality, behavioral law and economics cannot reach its full potential, and in fact, may harm the very people it is intended to benefit. A policy enacted to preserve consumer autonomy, for instance, may actually undermine autonomous decision-making in the long term.

In this Article, I take the first step in remedying this oversight. Drawing on the insights of neuroscience, I explain why rationality is endogenous and dynamic and what this means for behavioral law and economics. Working from examples in advertising and criminal law, I explain that dynamic rationality can and should be accounted for. Doing so will increase the prescriptive and normative power of behavioral law and economics and prevent policies from being introduced that undermine rather than advance social welfare.

More on the Financial Choice Act Vote Next Week

On Tuesday at 5:00 pm, the House Rules Committee will hold a hearing on the Financial Choice Act, presumably to grant a rule for full House consideration later in the week. The Committee Report accompanying the bill is linked to here.

Bloomberg's Perry Cooper's Thorough Report on the Status of Various Arbitration Rules

Here.  Excerpt on the CFPB's proposed arbitration reg:

[Ballard Spahr's] Alan S. Kaplinsky told Bloomberg BNA that “it would be bordering on reckless” for CFPB Director Richard Cordray to finalize the rule because of the risk it will be overturned under the [Congressional Review Act].* * *

Congressional Republicans will be in lock step against it, he predicted. “The forces behind an override will be very very strong.”

But consumer advocate [Public Justic's] F. Paul Bland * * * called fears about CRA reversal “a recipe for paralysis.” “You miss all the shots you don’t take,” he said.

He pointed to the Wells Fargo fake account scandal, which snowballed to affect two million customers because mandatory arbitration shut down two early suits. Negative attention on Wells Fargo makes reversing the CFPB a “very hard vote for a lot of Republicans” in Congress, he told Bloomberg BNA.

* * *

[Rutgers Professor David] Noll suggested that Cordray is taking Congress’s temperature and might be waiting to release the rule until congressional support for the administration splinters further

Consumers advocates' big effect on air trravel

The Washington Post has this article.

AFR: Sham Poll Tells Lobbyists What They Want to Hear

The Consumer Bankers Association has been touting a poll it commissioned from Morning Consult finding, as the CBA headline put it: Most Votes in Key Battleground States Support Structural Reforms to CFPB. Or, to put it another way, most voters when asked if they prefer a single director or a bipartisan commission, prefer the bipartisan commission.  But here's some of what Americans for Financial Reform has to say about it:

“This poll is a quintessential example of a survey that has been designed to produce a specific result — one that is at odds with everything else we know about public opinion on consumer protection and Wall Street reform,” according to Celinda Lake and Daniel Gotoff of Lake Research Partners.

Here’s something it proves beyond any doubt: if you write a poll question artfully, you’ll get the answer you’re after. Put the label “bipartisan” on just about anything, for example, and people will say they’re for it.

For more, go here.