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This Week in Federal Regulatory Takeover
“As the presidential primaries dominate the news, under the radar the Obama administration continues its unilateral assault on the economy and civil society. Consider the news from just this week.” So I wrote last month. Is it poor form to start a new post with exactly the same opening?
1. Yesterday, the Food and Drug Administration announced that they will extend tobacco regulations to e-cigarettes:
“This action is a milestone in consumer protection — going forward, the FDA will be able to review new tobacco products not yet on the market, help prevent misleading claims by tobacco product manufacturers, evaluate the ingredients of tobacco products and how they are made, and communicate the potential risks of tobacco products,” the agency said in announcing the extension of its authority.
The usual constellation of leftist interest groups is thrilled, citing consumer protection and child safety. However, the new requirements for FDA approval promise to devastate the industry:
The most onerous requirement, say e-cigarette and e-liquid manufacturers: a retroactive premarket approval process for all e-cigarette products, from e-liquids to vaporizers. Companies must provide a detailed listing of each product’s ingredients as well as extensive research findings on the impact of their products on the public’s health, which will cost at least $2 million per product to satisfy, says Cynthia Cabrera, executive director of the Smoke Free Alternatives Trade Association.
This requirement will be straightforward for Big Tobacco to meet. Smaller companies, on the other hand, will have a harder time:
Shaun Copper has owned and operated Workshop Vapor Company in Colorado Springs for about a year and a half, but he and many other shop owners are worried about their future.
“There are estimates that 99 percent of the industry will be done in 2 years,” Copper said….
“At my shop, I have products that I bring in from other vendors. I also have my own that I make, and so not only do I have to hope that my vendors have the means to go through these pre-market approvals, I have to look at them as well,” Copper said.
But just one application could cost hundreds of thousands of dollars.
“You do the math and go how could anybody survive that?” Copper said.
As a result, tobacco smokers will lose a tool for smoking cessation, and many former smokers are expected to revert to tobacco.
The rule goes into effect in 90 days. Left unaddressed are (a) how a product without any actual tobacco is considered a “tobacco product”; and (b) where an agency gets the authority to unilaterally expand its own Congressional mandate.
2. On Wednesday, the Department of Justice inserted itself into state legislation, to address the civil rights issue of our time: Transgender bathrooms.
The U.S. Justice Department said Wednesday that a North Carolina law limiting protections to LGBT people violates federal civil rights laws and can’t be enforced….
In a letter to Gov. Pat McCrory, the department put the state on notice that federal officials view the state law as violating federal Civil Rights Act protections barring workplace discrimination based on sex. Provisions of the state law directed at transgender state employees violate their anti-discrimination protections, the letter said….
The Justice Department’s letter said the law also violates Title IX of the Civil Rights Act, which bars discrimination in education based on sex. That could lead to North Carolina losing hundreds of millions of dollars in federal school funding.
The DOJ demanded a response by Monday. Although it initially appeared as if the state would not be able to respond in such an abbreviated timeframe (with regard to Federal agencies, response times are, well, asymmetrical), Gov. McCrory now says he anticipates the state will in fact respond in time.
3. On Wednesday, the Fish and Wildlife Service announced a plan to quadruple the number of bald eagles that wind farms can kill annually, for 30 years.
Fish and Wildlife Service Director Dan Ashe said the proposal will “provide a path forward” for maintaining eagle populations while also spurring development of a pollution-free energy source that’s intended to ease global warming, a cornerstone of President Barack Obama’s energy plan.
Ashe said the 162-page proposal would protect eagles and at the same time “help the country reduce its reliance on fossil fuels” such as coal and oil that contribute to global warming.
Where does the agency get its authority from?
Golden and bald eagles are not endangered species but are protected under the Bald and Golden Eagle Protection Act and the Migratory Bird Treaty Act. The laws prohibit killing, selling or otherwise harming eagles, their nests or eggs without a permit.
The plan is similar to one issued in 2013 and struck down by a Federal judge because the agency failed to follow procedure. It had tried to classify its action as an “administrative change” so as to avoid environmental review.
Meanwhile, as Fish & Wildlife expands permits to facilitate Obama’s pet boondoggle — and new bird killings — it is stingy with permits for Americans who own artifacts with eagle feathers. Even when the eagles in question are long dead, permits for religious expression are not so readily forthcoming.
With regard to the symbolism of the matter — the Obama Administration giving its friends license to slaughter the national bird: No decent novelist would dare use such imagery. It would be too obvious and heavy-handed.
Published in General
Hair yanking screams with eyeballs mimicking the warning swirls on a jet turbine are the way I addressed this and the govco tarbaby absorbed it all without incident, notice, or caring in the slightest.
And in other news, the FDA is trying to take over state food regulations. Of course it sounds just fine—safety and all that—but in fact it ends up doing just what all such takeovers do: wrecking local business, threatening the viability of small farmers and local food sources, and supporting large producers.
Here is an example:
Until recently, [North Carolina] farmers slaughtering and processing rabbits could do so in the open air with minimal expense; on-farm rabbit processing has an excellent track record for food safety. Then, however, the North Carolina Department of Agriculture issued a regulation adopting the federal CGMPs7 and applied it to rabbit processing; as a result producers wanting to process rabbits on the farm must do so in an enclosed facility, substantially driving up costs for those who can afford it.
Every chance I get I rant about over-regulation, because I find that everyone has experienced some example or other of this, and liberals are just as angry as conservatives, only they haven’t put the facts together quite yet. It ain’t all federal, either. In my little blue city, speed limits are rapidly being reduced to 25 mph and bike lanes (empty for the most part) will be built with our new property tax increase (yay!), along with a new public pre-kindergarten program (double yay!). Drivers are especially angry, and I stoke that at every opportunity.
One of my staunchly Democratic coworkers serves on his town’s assembly. He is livid that the Obama administration is using novel legal interpretations to circumvent local zoning laws in order to advance housing integration. Apparently developers who build low-income housing are automatically given some variance to build not only the low-income housing, but also more lucrative developments as well — and there’s nothing the town or the state can do. Yet my coworker continues to support the expansion of the regulatory state generally.
All the teachers I know hate NCLB, Common Core, and other centralized reform efforts. But they also support the expansion of the regulatory state generally.
How bad do things have to get before personal experience penetrates their ideological barriers?
@#34: you’re right, Son. I’ve one friend who is starting to think like a libertarian, which is about the best I, an old so-con, can do, but most of the Progressives I speak with are very hard cases. Hatred of conservative religious thinking is wrapped up in this, too, which can make things ugly.
I find that the best prospects are people who own their own business, but there is no guarantee that they will understand their own interest, unless maybe the armed government man is at the door. OTOH, everyone hates and fears the IRS. I got a very good response at a recent meeting of business people when I severely criticized our tax code. It helped that I could argue that no country burdens its citizens with a tax system as ours does. Progs are always ready to hear how much better everyone else is. [edited for silly error]
But yeah, you’re right. Sigh.
Both the GOPe and his supporters look at Trump and C-4
The regulations on various bird feathers particularly aggravate me, for some reason. They’ve been around in some form for about a century, I think, but I don’t remember the details. There was something about feathers from rare birds being used in women’s hats, and the restrictions just expanded from there. So I think we’ve gotten over the elaborate feathered hat era and can safely repeal these laws without driving the birds to extinction. Today, what happens is that people see a pretty feather on the ground, pick it up, and keep it. Perfectly normal. But it turns out to be from any one of a number of listed birds, they’re in an awful lot of trouble if it’s ever found out.
Back during the previous Clinton administration (and boy do I look forward to a repeat of THAT), some artist gave the Clintons a gift—a work of art that included some particular bird feather she’d found on the ground. It might have been from a migratory bird, not necessarily an eagle. The Clintons noticed and called the Feds in to investigate her! I assume she was prosecuted, but I don’t remember. What a bunch of ungrateful slobs.
Do you know the story of the frog & the scorpion?
The joys of shared culture: I laughed out loud when I read that sentence.
The joys of the Internet: If I hadn’t already known the reference, I could have Googled or Bing’d it.
We are all Tamarians.
Instead of thinking of it as a federal regulatory takeover, I think of it more as Republican passivity and acquiescence.
& republican passivity & acquiescence, too!
I can’t believe it’s been nearly two whole years since I wrote this: http://ricochet.com/archives/petitioning-the-sovereign/
Letting them kill more eagles really sickens me. Those birds mate for life, and it takes mom and dad to raise the young ones. Didn’t anybody learn anything from watching the eagle cams this spring, including the one in Washington, DC? So dad flies off one morning and gets whacked by a wind mill and never comes back, not only is he gone, but his offspring probably die. A few years from now people will be wondering why the eagle population has plunged. This is insanity. An oil company kills one bird and is fined hundreds if not thousands of dollars.
Indeed. How many bald eagles need to die for a mistake?
The cognitive dissonance is strong in them.
They will never budge.
You may have previously written about this, but to me as a landowner the quintessential example of regulatory overreach is the Waters of the US (WOTUS) rule. If you own any even slightly moist land, you probably know about it–or you should, since it will impact you. You’ll need a federal permit for any activity on any such land. 33 states sued, in various separate lawsuits, to enjoin its enforcement. When the first injunction was granted, EPA said: fine, but this only stops us in the 3 states which were plaintiffs in that one lawsuit. After another injunction in another case was granted, EPA agreed to suspend enforcement nationwide while litigation was pending.
And then–what? I’ve been trying to check the status but find nothing on the net about it since that point.
(I’ve noticed it doesn’t seem to matter much what states want. Like, f’rinstance, about 35 states’ governors advised the Feds they would not take an influx of Syrian refugees last year, remember? But somehow, when the fed budget passed, it included provision for 300K of ’em–and not a peep outta the states. )
Wise Son of Spengler, if you know anything about the current status of the WOTUS lawsuits, do please advise!
Unfortunately (perhaps fortunately for my sanity), I don’t. IIRC, Richard Epstein did a podcast on them not too long ago. I agree that this is yet another infuriating case of Federal regulators expanding their own authority well beyond what Congress intended.