Free Lunch Podcast Episode 27 – Virginia’s (Un)happy Hour: Is the State Restricting Ads and Economic Rights?

In Virginia, it’s perfectly legal to have a happy hour; it’s just illegal to talk about it. The state has several advertising restrictions that opponents claim are outdated and prevent businesses from communicating entirely truthful information about their legal happy hour practices–including the price of any drink. These laws affect entrepreneurs like Chef Geoff Tracy, who owns three restaurants in the DC metro area. In this Teleforum, Chef Geoff tells his story of how these restrictions have driven up the cost of doing business, how they have forced him to alter his successful business model, and why he ultimately decided to sue Virginia over them. Chef Geoff’s attorney, Anastasia Boden of the Pacific Legal Foundation (PLF), will discuss the lawsuit, explaining why she believes economic regulations are a growing threat to businesses and share what PLF is doing to fight for economic liberty and free speech in the courts.

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Free Lunch Podcast Episode 26 – Self-Driving Vehicles: Addressing the Challenges of Groundbreaking Innovation

Self-driving vehicles may be on American roads sooner than many think. As a result, the Department of Transportation and National Highway Traffic Safety Administration have been increasingly focused on examining the potential regulatory barriers calling for comments on various federal motor vehicle safety standards (FMVSS) that need to be changed and updates to the existing policy guidance on self-driving vehicles. Accommodating the deployment of self-driving vehicles will necessitate addressing outdated FMVSS, current definitions of “driver” or “operator,” cybersecurity and privacy concerns, and a regulatory landscape where various authorities are divided between states and the federal government.

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Free Lunch Podcast Episode 25 – Is the FDA’s Rule on Cigars & Vaping Products Constitutional?

Invoking the Tobacco Control Act, the FDA issued an omnibus regulation of cigars, pipe tobacco, and vaping products in 2016. That Rule required all of these products to go through an FDA review process similar to that for prescription drugs and medical devices and to bear large warnings covering 30 percent of two panels of each package and 20 percent of all advertisements—even though some vaping products contain no tobacco or nicotine. The Rule also prohibits truthful statements about the products, including whether they contain tobacco or not, without costly FDA pre-approval, and the speakers bear the burden to prove the net value of their speech to consumers as a whole, whatever that means. Although the Trump Administration delayed some aspects of the Rule, current and delayed mandates threaten the vitality of major industry sectors, including the large health warnings and prior approval of truthful speech. In addition to the usual regulatory questions, our speakers raise fundamental constitutional challenges to the Rule…

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Free Lunch Podcast Episode 24 – The Commenting Power: Agency Accountability through Public Participation

Did you know that you have a say in the U.S. government’s regulatory process?

The Administrative Procedure Act (APA) requires that most regulations promulgated by administrative agencies go through a process called “notice and comment rulemaking.” Stripped to its basics, that means that the agency must give notice of a proposed rulemaking and then give the public a chance to comment.  The law allows ordinary citizens, as much as sophisticated interest groups, opportunities to participate in, and have opinions heard on, the development of regulations…

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Free Lunch Podcast Episode 23 – Regulatory Scorecard: A Conversation with Administrator Neomi Rao

In 2017, the U.S. experienced a dramatic shift in regulatory policy at the federal level.  This shift is attributable to a new presidential administration that has made regulatory reform a priority. This priority is evidenced by numerous regulatory initiatives including Executive Order 13771 that directs agencies, among other things, to repeal two regulations for every new regulation promulgated. The Administration recently reported that it had far exceeded this goal by instead, repealing twenty-two regulations for every new regulation created. However, debate remains over how the new administration’s regulatory efforts, in its totality, should be scored thus far. We are pleased to have OIRA Administrator Neomi Rao as our Free Lunch podcast guest to share her perspective on that question.

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Free Lunch Podcast Episode 22 – En Banc D.C. Circuit Upholds CFPB Constitutionality

On Wednesday, January 31, the full United States Court of Appeals for the District of Columbia Circuit voted 7-3 to uphold the Consumer Financial Protection Bureau (CFPB) against a separation-of-powers challenge to its uniquely independent structure. The court’s majority opinion and the various concurring and dissenting opinions total 250 pages, and all were written in the shadow of the Supreme Court, which could soon be called on to clarify the constitutional law of independent agencies. Ambassador C. Boyden Gray and Boyden Gray & Associates Partner Adam Gustafson will deliver an update on the case and discuss whether it is likely to reach the Supreme Court of the United States…

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Free Lunch Podcast Episode 21 – Fintech and Federal Alternatives to State Money Transmission Licensing

Today’s money transmitters are Internet businesses. The money is digital, it might even be cryptocurrency. The business can have customers in every state and nation from day one. The services are diverse and innovative from instant payments between a ridesharing driver and a passenger to custody and exchange of dollars for bitcoin. Western Union’s new contemporaries aren’t just Paypal and Venmo; today they are also Google, Amazon and Coinbase.

And yet, money transmitters must still go regulator to regulator, explain their business, and become licensed in 53 states and territories under statutes that were originally drafted to keep check-cashers honest. Some argue that a federal alternative to that regulatory structure needs to be developed if the US is to stay competitive in financial technologies.

Peter Van Valkenburgh will discuss these issues and Coin Center’s new discussion paper that explores how this federal structure could be developed.

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Free Lunch Podcast Episode 20 – Shining a Light on Regulatory Dark Matter: Regulating Through Guidance

For many years, concerns have been raised that the development and use of guidance documents by agencies should be better managed and more transparent and accountable. There also has been growing concern that, in some cases, guidance documents are being used in lieu of regulations to practically bind regulated parties, without observing the procedural safeguards required of regulations. Paul Noe will discuss how, ten years ago, these concerns had led the White House Office of Management and Budget to issue a government-wide “Bulletin for Agency Good Guidance Practices” during the Administration of President George W. Bush. He also will discuss past shortcomings in the implementation of the OMB Bulletin and offer suggestions on how more could be done to promote good guidance practices across the government.  In addition, Stephen Cox will discuss how these concerns are being addressed by the current Department of Justice.  For example, in November, the Attorney General issued a department-wide memorandum entitled, “Prohibition on Improper Guidance Documents,” and, in December, announced the rescission of twenty-five guidance documents that were unnecessary, inconsistent with existing law, or otherwise improper…

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Free Lunch Podcast Episode 19 – The 2017 Mercatus Report: The Implications of Regulating Over the Long-Term

Federal regulations have accumulated over many decades, so much that it would require over three years to read through them all if you started today. The buildup of regulations over time leads to duplicative, obsolete, conflicting, and even contradictory rules and the multiplicity of regulatory constraints complicates and distorts the decision-making processes of firms operating in the economy. Firms respond to both individual regulations and regulatory accumulation by altering their plans for research and development, for expansion, and for updating equipment and processes. Because of the important role innovation and productivity growth play in an economy, these distortions may have consequences for the growth of the economy in the long run…

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Free Lunch Podcast Episode 18 – Does the Migratory Bird Treaty Act Prohibit Incidental or Accidental Killing?

Pursuant to a modern interpretation of a 100-year old law, every American who owns a cat, drives a car, or owns a home with windows is a potential criminal.  The Migratory Bird Treaty Act is a strict liability statute that was passed in 1918 to prevent commercial hunting and poaching from driving migratory birds into extinction.  Decades later, government lawyers began using this hunting and poaching law to prosecute people for accidental bird deaths resulting from otherwise lawful activity.  The result was the imposition of a greater duty to protect the lives of birds, prosecutorial discretion to decide which people and industries would be held to account for “incidental takings,” and a collection of formal and informal guidance from enforcement agencies about how to comply to avoid jail time and heavy fines.  In this episode of Free Lunch, learn how we got here, what the Department of the Interior is doing in this regulatory space, and what effect the DOI’s actions will have…

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