Regulations – Page 69 – artdiamondblog.com

FTC Retaliated Against, and Destroyed, Innocent Firm that Stood Up for Rule of Law

(p. A17) Sometimes winning is still losing. That is certainly true for companies that find themselves caught in the cross hairs of the federal government. Since 2013, my organization has defended one such company, the cancer-screening LabMD, against meritless allegations from the Federal Trade Commission. Last Friday, [November 13, 2015] the FTC’s chief administrative-law judge dismissed the agency’s complaint. But it was too late. The reputational damage and expense of a six-year federal investigation forced LabMD to close last year.
. . .
Unlike many other companies in similar situations, . . . , LabMD refused to cave and in 2012 went public with the ordeal. In what appeared to be retaliation, the FTC sued LabMD in 2013, alleging that the company engaged in “unreasonable” data-security practices that amounted to an “unfair” trade practice by not taking reasonable steps to protect patient information. FTC officials publicly attacked LabMD and imposed arduous demands on the doctors who used the company’s diagnostic services. In just one example, the FTC subpoenaed a Florida oncology lab to produce documents and appear for depositions before government lawyers–all at the doctors’ expense.
Yet after years of investigation and enforcement action, the FTC never produced a single patient or doctor who suffered or who alleged identity theft or harm because of LabMD’s data-security practices. The FTC never claimed that LabMD violated HIPAA regulations, and until 2014–four years after its investigation began–never offered any data-security standards with which LabMD failed to comply.
. . .
. . . , the FTC is likely to simply disregard the 92-page decision–which weighed witness credibility and the law–and side with commission staff. That’s the still greater injustice: The FTC is not bound by administrative-law judge rulings. In fact, the agency has disregarded every adverse ruling over the past two decades, according to a February analysis by former FTC Commissioner Joshua Wright. Defendants’ only recourse is appealing in federal court, a fresh burden in legal fees.
That’s what happens when a federal agency serves as its own detective, prosecutor, judge, jury and executioner. As Mr. Wright observed, the FTC’s record is “a strong sign of an unhealthy and biased institutional process.” And he puts it perhaps most powerfully: “Even bank robbery prosecutions have less predictable outcomes than administrative adjudication at the FTC.” Winning against the federal government should never require losing so much.

For the full commentary, see:
DAN EPSTEIN. “Hounded Out of Business by Regulators; The company LabMD finally won its six-year battle with the FTC, but vindication came too late.” The Wall Street Journal (Fri., Nov. 20, 2015): A17.
(Note: ellipses, and bracketed date, added.)
(Note: the online version of the commentary was updated on Nov. 19, 2015.)

Recycling Is Costly “Religious Ritual”

John Tierney penned another eye-opening commentary, this one as a cover-story for the SundayReview Section of The New York Times. A few of the best passages are quoted below.

(p. 1) In 1996, I wrote a long article for The New York Times Magazine arguing that the recycling process as we carried it out was wasteful.

. . .
So, what’s happened since then? While it’s true that the recycling message has reached more people than ever, when it comes to the bottom line, both economically and environmentally, not much has changed at all.
Despite decades of exhortations and man-(p. 4)dates, it’s still typically more expensive for municipalities to recycle household waste than to send it to a landfill. Prices for recyclable materials have plummeted because of lower oil prices and reduced demand for them overseas. The slump has forced some recycling companies to shut plants and cancel plans for new technologies.
. . .
One of the original goals of the recycling movement was to avert a supposed crisis because there was no room left in the nation’s landfills. But that media-inspired fear was never realistic in a country with so much open space. In reporting the 1996 article I found that all the trash generated by Americans for the next 1,000 years would fit on one-tenth of 1 percent of the land available for grazing. And that tiny amount of land wouldn’t be lost forever, because landfills are typically covered with grass and converted to parkland, like the Freshkills Park being created on Staten Island.
. . .
Last week the National Institutes of Health announced that it had prematurely ended a large national study of how best to treat people with high blood pressure because of its exceptional results.
In this trial of more than 9,000 people age 50 and older with high blood pressure, an aggressive treatment strategy to keep systolic blood pressure below 120 was compared with a conventional one aimed at keeping it below 140. The subjects all had a high risk of heart attacks, stroke and heart failure. The N.I.H. concluded, six years into a planned eight-year study, that for these patients, pushing blood pressure down far below currently recommended levels was very beneficial.
. . .
As a business, recycling is on the wrong side of two long-term global economic trends. For centuries, the real cost of labor has been increasing while the real cost of raw materials has been declining. That’s why we can afford to buy so much more stuff than our ancestors could. As a labor-intensive activity, recycling is an increasingly expensive way to produce materials that are less and less valuable.
Recyclers have tried to improve the economics by automating the sorting process, but they’ve been frustrated by politicians eager to increase recycling rates by adding new materials of little value. The more types of trash that are recycled, the more difficult it becomes to sort the valuable from the worthless.
In New York City, the net cost of recycling a ton of trash is now $300 more than it would cost to bury the trash instead. That adds up to millions of extra dollars per year — about half the budget of the parks department — that New Yorkers are spending for the privilege of recycling. That money could buy far more valuable benefits, including more significant reductions in greenhouse emissions.
So what is a socially conscious, sensible person to do?
It would be much simpler and more effective to impose the equivalent of a carbon tax on garbage, as Thomas C. Kinnaman has proposed after conducting what is probably the most thorough comparison of the social costs of recycling, landfilling and incineration. Dr. Kinnaman, an economist at Bucknell University, considered everything from environmental damage to the pleasure that some people take in recycling (the “warm glow” that makes them willing to pay extra to do it).
He concludes that the social good would be optimized by subsidizing the recycling of some metals, and by imposing a $15 tax on each ton of trash that goes to the landfill. That tax would offset the environmental costs, chiefly the greenhouse impact, and allow each municipality to make a guilt-free choice based on local economics and its citizens’ wishes. The result, Dr. Kinnaman predicts, would be a lot less recycling than there is today.
Then why do so many public officials keep vowing to do more of it? Special-interest politics is one reason — pressure from green groups — but it’s also because recycling intuitively appeals to many voters: It makes people feel virtuous, especially affluent people who feel guilty about their enormous environmental footprint. It is less an ethical activity than a religious ritual, like the ones performed by Catholics to obtain indulgences for their sins.
Religious rituals don’t need any practical justification for the believers who perform them voluntarily. But many recyclers want more than just the freedom to practice their religion. They want to make these rituals mandatory for everyone else, too, with stiff fines for sinners who don’t sort properly. Seattle has become so aggressive that the city is being sued by residents who maintain that the inspectors rooting through their trash are violating their constitutional right to privacy.

For the full commentary, see:
JOHN TIERNEY. “The Reign of Recycling.” The New York Times, SundayReview Section (Sun., OCT. 4, 2015): 1 & 4.
(Note: ellipses added.)
(Note: the online version of the commentary has the date OCT. 3, 2015.)

The Kinnaman paper mentioned above, is:
Kinnaman, Thomas C., Takayoshi Shinkuma, and Masashi Yamamoto. “The Socially Optimal Recycling Rate: Evidence from Japan.” Journal of Environmental Economics & Management 68, no. 1 (July 2014): 54-70.

“Strong-Willed Scientists Overstated the Significance of Their Studies”

The New York Times seems open to the idea that strong-willed scientists might overstate their results in science food studies. I wonder if The New York Times would be open to the same possibility in science climate studies?

(p. A19) For two generations, Americans ate fewer eggs and other animal products because policy makers told them that fat and cholesterol were bad for their health. Now both dogmas have been debunked in quick succession.
. . .
Epidemiological data can be used to suggest hypotheses but not to prove them.
Instead of accepting that this evidence was inadequate to give sound advice, strong-willed scientists overstated the significance of their studies.
Much of the epidemiological data underpinning the government’s dietary advice comes from studies run by Harvard’s school of public health. In 2011, directors of the National Institute of Statistical Sciences analyzed many of Harvard’s most important findings and found that they could not be reproduced in clinical trials.
It’s no surprise that longstanding nutritional guidelines are now being challenged.
In 2013, government advice to reduce salt intake (which remains in the current report) was contradicted by an authoritative Institute of Medicine study. And several recent meta-analyses have cast serious doubt on whether saturated fats are linked to heart disease, as the dietary guidelines continue to assert.
Uncertain science should no longer guide our nutrition policy. Indeed, cutting fat and cholesterol, as Americans have conscientiously done, may have even worsened our health.

For the full commentary, see:
NINA TEICHOLZ. “The Government’s Bad Diet Advice.” The New York Times (Sat., FEB. 21, 2015): A19.
(Note: ellipsis added.)
(Note: the online version of the commentary has the date FEB. 20, 2015.)

FCC Gains Arbitrary Power Over Internet Innovation

(p. A11) Imagine if Steve Jobs, Larry Page or Mark Zuckerberg had been obliged to ask bureaucrats in Washington if it was OK to launch the iPhone, Gmail, or Facebook’s forthcoming Oculus virtual-reality service. Ridiculous, right? Not anymore.
A few days before the Independence Day holiday weekend, the Federal Communications Commission announced what amounts to a system of permission slips for the Internet.
. . .
As the FCC begins to issue guidance and enforcement actions, it’s becoming clearer that critics who feared there would be significant legal uncertainty were right. Under its new “transparency” rule, for example, the agency on June 17 conjured out of thin air an astonishing $100 million fine against AT&T, even though the firm explained its mobile-data plans on its websites and in numerous emails and texts to customers.
The FCC’s new “Internet Conduct Standard,” meanwhile, is no standard at all. It is an undefined catchall for any future behavior the agency doesn’t like.
. . .
From the beginning, Internet pioneers operated in an environment of “permissionless innovation.” FCC Chairman Tom Wheeler now insists that “it makes sense to have somebody watching over their shoulder and ready to jump in if necessary.” But the agency is jumping in to demand that innovators get permission before they offer new services to consumers. The result will be less innovation.

For the full commentary, see:
BRET SWANSON. “Permission Slips for Internet Innovation; The FCC’s new Web rules are already as onerous as feared and favor some business models over others.” The Wall Street Journal (Sat., Aug. 15, 2015): A11.
(Note: ellipses added.)
(Note: the online version of the commentary has the date Aug. 14, 2015.)

Feds Constrain Startups

(p. A15) Virtually every state has suffered a drop in startups, which suggests that this is a national, and not a regional or state, problem.
. . .
If history is any indication, many of today’s economic heavyweights will ultimately decline as new businesses take their place. Research by the Kaufman Foundation shows that only about half of the 1995 Fortune 500 firms remained on the list in 2010.
Startups also have declined in high technology. John Haltiwanger of the University of Maryland reports that there are fewer startups in high technology and information-processing since 2000, as well as fewer high-growth startups–annual employment growth of more than 25%–across all sectors. Even more troubling is that the smaller number of high-growth startups is not growing as quickly as in the past.
. . .
Surveys by John Dearie and Courtney Gerduldig, authors of “Where the Jobs Are: Entrepreneurship and the Soul of the American Economy” (2013), show that entrepreneurs report being hamstrung by difficulties in finding skilled workers, by a complex tax code that penalizes small business, by regulations that raise the costs of doing business, and by difficulties in obtaining financing that have worsened since 2008.

For the full story, see:
EDWARD C. PRESCOTT and LEE E. OHANIAN. “Behind the Productivity Plunge: Fewer Startups; New businesses were created at a 30% lower rate in 2012 than the annual average rate in the 1980s.” The Wall Street Journal (Thurs., June 26, 2014): A15.
(Note: ellipses added.)
(Note: the online version of the story has the date June 25, 2014.)

Belgian Government Mandates Mayo to Be No Less than 80% Fat

(p. A1) BRUSSELS–Mayonnaise here is a sauce celebre, so important that a 60-year-old royal decree governs what goes in it.
. . .
Belgian mayonnaise must contain at least 80% fat and 7.5% egg yolk. European rivals are permitted to sell mayo with a mere 70% fat and 5% egg yolk.

For the full story, see:
TOM FAIRLESS. “No Yolk, Belgian Food Producers Fed Up with Mayonnaise Rules; But effort to relax royal recipe doesn’t go down well with chefs; yellow peas.” The Wall Street Journal (Mon., Sept. 20, 2015): A1 & A10.
(Note: ellipsis added.)
(Note: the online version of the story has the date Sept. 20, 2015 and the title “In Belgium, Mayonnaise Makers Want a New Recipe; But effort to relax royal recipe doesn’t go down well with chefs; yell;ow peas.”)

Increasing Recalls of Organic Food Due to Bacterial Contamination

(p. B3) New data collected by Stericycle, a company that handles recalls for businesses, shows a sharp jump in the number of recalls of organic food products.
Organic food products accounted for 7 percent of all food units recalled so far this year, compared with 2 percent of those recalled last year, according to data from the Food and Drug Administration and the Department of Agriculture that Stericycle uses to compile its quarterly report on recalls.
In 2012 and 2013, only 1 percent of total units of food recalled were organic.
Kevin Pollack, a vice president at Stericycle, said the growing consumer and corporate demand for organic ingredients was at least partly responsible for the increase.
“What’s striking is that since 2012, all organic recalls have been driven by bacterial contamination, like salmonella, listeria and hepatitis A, rather than a problem with a label,” Mr. Pollack said. “This is a fairly serious and really important issue because a lot of consumers just aren’t aware of it.”

For the full story, see:
STEPHANIE STROM. “Private Analysis Shows a Sharp Increase in the Number of Organic Food Recalls.” The New York Times (Fri., Aug. 21, 2015): B3.
(Note: the online version of the story has the date AUG. 20, 2015, and has the title “Recalls of Organic Food on the Rise, Report Says.” The last paragraph quoted above differs in the print and online versions; the version quoted is the print version. The online version of the paragraph is: “According to Stericycle, 87 percent of organic recalls since 2012 were for bacterial contamination, like salmonella and listeria, rather than a problem with a label. “This is a fairly serious and really important issue because a lot of consumers just aren’t aware of it,” Mr. Pollack said.”)

Average Length of 10-K Reports Rises to 41,911 Words

Source of graph: online version of the WSJ article quoted and cited below.

(p. B1) General Electric Co.’s chief financial officer was taken aback by the industrial conglomerate’s 246-page annual report.

The 10-K and supporting documents his finance team and others at the company produced was meant to give investors a comprehensive picture of GE’s businesses and financial performance over the previous 12 months. It did everything but.
Packed with text on the company’s internal controls, auditor statements and regulator-mandated boilerplate on “inflation, recession and currency volatility,” the 2013 annual report was 109,894 words long. “Not a retail investor on planet Earth could get through” it, let alone understand it, said GE finance chief Jeffrey Bornstein.
Companies are spending an increasing amount of time and energy beefing up their regulatory filings to meet disclosure requirements. The average 10K is getting longer–about 42,000 words in 2013, up from roughly 30,000 words in 2000. By comparison, the text of the Sarbanes-Oxley Act of 2002 has 32,000 words.

For the full story, see:
VIPAL MONGA and EMILY CHASAN. “The 109,894-Word Annual Report.” The Wall Street Journal (Tues., June 2, 2015): B1 & B10.

Plant Breeders Use Old Sloppy “Natural” Process to Avoid Regulatory Stasis

(p. A11) What’s in a name?
A lot, if the name is genetically modified organism, or G.M.O., which many people are dead set against. But what if scientists used the precise techniques of today’s molecular biology to give back to plants genes that had long ago been bred out of them? And what if that process were called “rewilding?”
That is the idea being floated by a group at the University of Copenhagen, which is proposing the name for the process that would result if scientists took a gene or two from an ancient plant variety and melded it with more modern species to promote greater resistant to drought, for example.
“I consider this something worth discussing,” said Michael B. Palmgren, a plant biologist at the Danish university who headed a group, including scientists, ethicists and lawyers, that is funded by the university and the Danish National Research Foundation.
They pondered the problem of fragile plants in organic farming, came up with the rewilding idea, and published their proposal Thursday in the journal Trends in Plant Science.
. . .
The idea of restoring long-lost genes to plants is not new, said Julian I. Schroeder, a plant researcher at the University of California, Davis. But, wary of the taint of genetic engineering, scientists have used traditional breeding methods to cross modern plants with ancient ones until they have the gene they want in a crop plant that needs it. The tedious process inevitably drags other genes along with the one that is targeted. But the older process is “natural,” Dr. Schroeder said.
. . .
Researchers have previously crossbred wheat plants with traits found in ancient varieties, noted Maarten Van Ginkel, who headed such a program in Mexico at the International Maize and Wheat Improvement Center.
“We selected for disease resistance, drought tolerance,” he said. “This method works but it has drawbacks. You prefer to move only the genes you want.”
When Dr. Van Ginkel crossbred for traits, he did not look for the specific genes conferring those traits. But with the flood-resistant rice plants, researchers knew exactly which gene they wanted. Nonetheless, they crossbred and did not use precision breeding to alter the plants.
Asked why not, Dr. Schroeder had a simple answer — a complex maze of regulations governing genetically engineered crops. With crossbreeding, he said, “the first varieties hit the fields in a couple of years.”
And if the researchers had used precision breeding to get the gene into the rice?
“They would still be stuck in the regulatory process,” Dr. Schroeder said.

For the full story, see:
GINA KOLATA. “A Proposal to Modify Plants Gives G.M.O. Debate New Life.” The Wall Street Journal (Fri., MAY 29, 2015): A11.
(Note: ellipses added.)
(Note: the online version of the story has the date MAY 28, 2015.)

Institutional Improvements Can Sometimes Be Designed, Rather than Only Spontaneous

A distinguished school of libertarian and neo-Austrian economic thought argues, following F.A. Hayek, that institutional improvements only arise from spontaneous order, and never from conscious design. There is something to their argument, but the designs of Alvin Roth provide counter-examples.

(p. A13) Mr. Roth’s work has been to discover the most efficient and equitable methods of matching and implement them in the world. He writes with verve and style, describing many market malfunctions–from aboriginal tribes in Australia arranging marriages for children not yet born to judges bending every rule in the book to hire law clerks years before they have graduated from law school–and how we ought to think about them.

Mr. Roth’s approach contrasts with standard debates over free markets versus government regulation. We want markets to be thick, quick, timely and trustworthy, but without careful design markets can become thin, slow, ill-timed and dangerous for the honest. The solution to these problems is unlikely to be regulation legislated from on high. Instead what Mr. Roth practices is nuanced market design created mostly by market participants. Mr. Roth found, for example, that even though the problems in the market for gastroenterologists and law clerks looked the same (hiring started years before schooling ended), the solutions had to be subtly different because of differences in culture, history and norms.

For the full review, see:
ALEX TABARROK. “BOOKSHELF; The Designer of Markets; In some markets, price isn’t the determining factor. You can choose to go to Harvard, but Harvard has to choose to accept you first.” The Wall Street Journal (Tues., JUNE 16, 2015): A13.
(Note: ellipses added.)
(Note: the online version of the review has the date JUNE 15, 2015, and has the title “BOOKSHELF; Matchmaker, Make Me a Market; In some markets, price isn’t the determining factor. You can choose to go to Harvard, but Harvard has to choose to accept you first.”)

The book under review is:
Roth, Alvin E. Who Gets What — and Why: The New Economics of Matchmaking and Market Design. New York: Houghton Mifflin Harcourt Publishing Co., 2015.

Drinking Water Not Harmed by Fracking

(p. A13) Fracking isn’t causing widespread damage to the nation’s drinking water, the Obama administration said in a long-awaited report released Thursday.
The U.S. Environmental Protection Agency–after a four-year study that is the U.S. government’s most comprehensive examination of the issue to date–concluded that hydraulic fracturing, as being carried out by industry and regulated by states, isn’t having “widespread, systemic impacts on drinking water.”

For the full story, see:
RUSSELL GOLD And AMY HARDER. “Fracking’s Harm to Water Not Widespread, EPA Says.” The Wall Street Journal (Fri., June 5, 2015): A5.
(Note: the date of the online version of the story is June 4, 2015, and has the title “Fracking Has Had No ‘Widespread’ Impact on Drinking Water, EPA Finds.”)