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02/22/2017

FDA is Trying to Snuff Out America’s Cigar Industry

New rule would cripple a $20 billion industry and put thousands of American jobs in danger

Washington, D.C. – Cause of Action Institute (“CoA Institute”) today filed an amicus curiae brief in support of Plaintiffs the Cigar Association of America, the International Premium Cigar and Pipe Retailers Association, and Cigar Rights of America in their lawsuit against the Food and Drug Administration (“FDA”) challenging a new regulation with far-ranging, negative economic impacts on consumers and small businesses engaged in the premium cigar industry. The new regulation finalized by FDA unfairly targets America’s smaller-scale cigar manufacturers, trampling on a proud American heritage and eliminating economic opportunity for many small businesses.

“Common sense appears to be dead at the FDA,” said Patrick Massari, Assistant Vice President at CoA Institute. “Inexplicably, the FDA ignored tens of thousands of comments from the premium cigar industry, Congress, local government, media, and the citizens of the United States, particularly those affected in ways large and small by FDA’s power grab. Under this new rule, the tradition of premium, hand-rolled cigars handed down by generations will turn into a corporate profit mill.”

In its brief, CoA Institute argues that FDA failed to conduct a legally sufficient cost-benefit analysis, as required by federal law and Executive Orders issued by President Clinton and President Obama. Specifically, President Clinton’s 1993 EO 12866 requires that “[e]ach agency shall tailor its regulations to impose the least burden on society, including individuals, businesses of differing sizes, and other entities (including small communities and governmental entities), consistent with obtaining the regulatory objectives, taking into account, among other things, and to the extent practicable, the costs of cumulative regulations.” [emphasis added].

The limited analysis FDA produced either omitted or glossed over several important costs:

  • First, premium cigar prices will substantially increase for all consumers as a result of the rule;
  • Second, the sheer compliance costs of FDA’s regulation will be so high that smaller, family-owned businesses will no longer be able to comply;
  • Third, the resulting government-defined marketplace will cripple consumer choice and bar future innovation.

Many companies will likely have no choice but to sell out to larger corporations, which will then dominate the market as regulation-protected monopolies.

The FDA itself admits that it failed to do any analysis on consumer choice, saying: “We lack a baseline estimate of consumer valuation of tobacco product variety, making it impossible to estimate how consumers who continue to use tobacco products would value the potential loss of variety due to product exit under this final rule.” Instead, the FDA ignored this essential element of cost-benefit analysis by pretending that such data does not exist.

In its brief, CoA Institute calls on the Court to order FDA to reopen its cost-benefit analysis and to vacate and remand the final rule.

The full amicus brief can be found here

About Cause of Action Institute:

Cause of Action Institute is a 501(c)(3) non-profit working to enhance individual and economic liberty by limiting the power of the administrative state to make decisions that are contrary to freedom and prosperity by advocating for a transparent and accountable government free from abuse.

For information regarding this press release, please contact Zachary Kurz, Director of Communications at CoA Institute: zachary.kurz@causeofaction.org

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02/3/2017

CoA Institute Investigates EPA Employees Using Electronic Messaging Apps to Thwart Transparency

Washington D.C. – Cause of Action Institute (“CoA Institute”) has filed a Freedom of Information Act (“FOIA”) request after recent media reports identified a number of career EPA employees possibly using an encrypted electronic messaging app called “Signal” to communicate about work-related issues, including how to prevent political appointees from “undermin[ing] their agency’s mission to protect public health and the environment” or “delet[ing] valuable scientific data.”

“It appears that some employees at the EPA may be using encrypted apps on their phones to avoid transparency laws in an effort to conceal their communications from internal and external oversight,” said CoA Assistant Vice President Henry Kerner. “Under the Federal Records Act, the EPA has a legal obligation to preserve all records made by employees working on official government business.  This obligation is all the more important if EPA employees are using personal cellular devices or private accounts for such purposes.  These messages must also be made available under the Freedom of Information Act.  Agency leadership, Congress, and the public have a right to know if federal employees are using encrypted electronic messages to evade transparency.”

It is unknown whether these employees discuss work related issues on Signal using their EPA-issued or personal devices. Under the Federal Records Act, the EPA has a legal obligation to preserve records evidencing employees working on government business, no matter the medium of their communication. CoA Institute is submitting this Freedom of Information Act request and notifying Acting Administrator McCabe of her obligation under the Federal Records Act to ensure that all work-related Signal messages are retained or retrieved by the EPA.

The full FOIA can be found here.

 

 

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02/1/2017

Read Mark Steyn’s Comments on CoA Institute’s Amicus Curiae Brief

Last week, Cause of Action Institute filed an amicus curiae brief on behalf of Dr. Judith A. Curry. Read Mark Steyn’s rundown of the brief here.

The brief itself can be found here.

February 28, 2017 Update:

Today, the District of Columbia Court of Appeals ordered Michael Mann to file a response to the Competitive Enterprise Institute’s petition for rehearing en banc.  This is a good sign that the court is taking the petition seriously and digging into the issues.  We hope that they grant the petition and overturn the panel.

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01/31/2017

Cause of Action Institute Files Motion to Dismiss FTC’s Baseless Data Security Charges Against D-Link Systems Inc.

WASHINGTON – Cause of Action Institute (“CoA Institute”) on behalf of D-Link Systems, Inc. today filed in the U.S. District Court for Northern California a Motion to Dismiss the baseless charges brought by the Federal Trade Commission (“FTC”) regarding the company’s security practices for consumer routers and IP cameras.

In an eleventh-hour attempt to expand its own authority to regulate the Internet of Things (“IoT”) before the new administration took office, the FTC in early January filed a complaint against D-Link Systems. The complaint makes vague and unsubstantiated allegations, without asserting a single data breach of any product sold by D-Link Systems in the U.S. Instead, the FTC speculates that consumers were placed “at risk,” to be hacked, but fails to allege, as it must, that consumers suffered or are likely to suffer actual substantial injuries. D-Link Systems stands behind its products and maintains a robust range of procedures to address potential security vulnerabilities.

“This is a case of politicized government overreach without justification or any evidence of consumer injury,” said Patrick Massari, assistant vice president, CoA Institute. “In fact, to her credit, Acting Chairwoman Ohlhausen voted not to bring this case and has spoken out against the agency filing other lawsuits ‘on the eve of a new presidential administration’ that are based on a flawed legal theory and lack economic and evidentiary support.

“This case should be dismissed now. Congress did not delegate to FTC the authority to regulate data security for IoT companies, and therefore FTC’s putative regulation is beyond its legal power. Moreover, the FTC fails in its Complaint to plead the basic elements of proof necessary for a Section 5 ‘unfairness’ violation. The FTC’s action sets a dangerous precedent, whereby the federal government could subject liability to any company that makes an internet-connected product. The FTC’s lawsuit violates D-Link Systems’ due process rights, and will no doubt have a chilling effect on innovation. For these reasons we have urged the Court to dismiss this Complaint in its entirety.”

The FTC has no authority under Section 5(n) of the FTC Act to declare unlawful an act or practice “on the grounds that such act or practice is unfair unless the act or practice causes or is likely to cause substantial injury to consumers which is not reasonably avoidable by consumers themselves and not outweighed by countervailing benefits to consumers or to competition.” As D-Link Systems Inc.’s Motion to Dismiss points out, the FTC’s Complaint pleads legal conclusions couched as hypothetical, speculative factual allegations.  FTC’s “deception” allegations should also be dismissed for failure to meet the heightened pleading standards set by Federal Rule of Civil Procedure 9(b), which requires such claims to be pled with particularity.

Read the full Motion to Dismiss here Exhibits can be found here

About Cause of Action Institute:  Cause of Action Institute is a 501(c)(3) non-profit working to enhance individual and economic liberty by limiting the power of the administrative state to make decisions that are contrary to freedom and prosperity by advocating for a transparent and accountable government free from abuse.

For information regarding this press release, please contact Zachary Kurz, Director of Communications: zachary.kurz@causeofaction.org

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01/25/2017

CoA Institute files Amicus Brief on Behalf of Dr. Judith Curry in Support of Rigorous and Open Debate on Climate Science

Washington, D.C. – Jan. 25, 2017 – Cause of Action Institute (“CoA Institute”) today filed an amicus curiae brief on behalf of prominent climate scientist Dr. Judith A. Curry in support of a petition for rehearing in the Competitive Enterprise Institute v. Michael Mann lawsuit in the D.C. Court of Appeals.  The brief argues that Dr. Mann has transgressed the basic norms of scientific behavior and First Amendment principles by trying to use the court system to silence critics of his methodological approach to climate science.

“Scientists should not use the court system to silence people who are critical of their work.  Public exposure of a scientist’s methodologies and an openness to defend those methodologies is at the very core of scientific progress,” said Dr. Judith Curry.  “The court needs to know how far Dr. Mann has strayed from the core philosophy of science with this lawsuit.”

“Dr. Curry has been the repeated victim of Dr. Mann’s efforts to silence and harass her for criticizing his work.  She finds it hypocritical that Dr. Mann is trying to use the court system to silence his critics while engaging in similar behavior toward other scientists,” said CoA Institute Acting President John Vecchione.  “We are proud to have had the opportunity to help Dr. Curry express her staunch support for the First Amendment and her belief in the importance of maintaining a rigorous and open debate about climate science.”

The amicus brief is available here.  The brief was accompanied by a motion seeking the court’s leave to file.

About Cause of Action Institute
Cause of Action Institute is a 501(c)(3) non-profit working to enhance individual and economic liberty by limiting the power of the administrative state to make decisions that are contrary to freedom and prosperity by advocating for a transparent and accountable government free from abuse.

For information regarding this press release, please contact Zachary Kurz, Director of Communications at CoA Institute: zachary.kurz@causeofaction.org

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01/25/2017

CoA Institute Sues BLM for Shielding Information on Expansion of Federal Lands

Washington, D.C. – Cause of Action Institute (“CoA Institute”) today sued the Bureau of Land Management (“BLM”) to obtain access to records about the agency’s acquisition of land in Arizona, Nevada, and New Mexico.  Last year, the BLM asked Congress for nearly $90 million for new purchases, even though the agency already is responsible for about 250 million acres of federally-owned land.  Americans deserve to understand how and why the BLM wants to increase its control over land that could otherwise be used for private or state purposes.

To shed light on the BLM’s land deals and ensure that the agency is responsibly managing its resources, CoA Institute submitted a Freedom of Information Act (“FOIA”) request on August 10, 2016 seeking purchase agreements, appraisals, and related communications.  Nearly six months later, the agency has failed to issue a final determination on CoA Institute’s request or produce responsive records as required by FOIA.

CoA Institute Assistant Vice President Lee Steven: “When the Bureau of Land Management buys private land to add to the hundreds of millions of acres the federal government already owns, Americans have a right to know why. According to the Congressional Research Service, the federal government owns almost half the land of 11 western states and more than 60 percent of Alaska. The last thing these states need is more federal control of their land.”

The full complaint can be found here.

Exhibits in the complaint can be found here.

CoA Institute is a non-profit strategic oversight group committed to ensuring that government decision-making is open, honest, and fair.

For information regarding this press release, please contact Zachary Kurz, Director of Communications: zachary.kurz@causeofaction.org

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01/10/2017

Cause of Action Institute to Defend D-Link Systems Against FTC’s Baseless Data Security Charges

Washington, D.C. – Jan. 10, 2017 – Cause of Action Institute (“CoA Institute”) today announced it will represent D-Link Systems, Inc. (“D-Link Systems”) in its defense against recent unwarranted and baseless charges brought by the Federal Trade Commission (“FTC”) regarding the company’s security practices for consumer routers and IP cameras.

“It sets a dangerous precedent for the federal government to go after a good company and put American jobs at risk without a single instance of actual or likely consumer harm,” said Cause of Action Institute Assistant Vice President Patrick Massari. “This lawsuit is another instance of the FTC’s unchecked regulatory overreach. If the FTC can bring a lawsuit on the mere potential of a data security breach, nearly every company will be subject to unconstrained and unexplored data security liability.  Such limitless liability coupled with FTC’s history of unrelentingly litigious oversight will no doubt have a chilling effect on innovation in the Internet of Things. Privacy advocates and consumers at large should applaud our client’s courage for fighting these incendiary claims and refusing to be held hostage by the FTC for the next 20 years.”

D-Link Systems has retained CoA Institute due to its successful track record fighting government abuse. CoA Institute relentlessly defended LabMD, a small cancer diagnostics company, against a similar unwarranted FTC overreach into data security oversight.

“We are pleased Cause of Action Institute will be joining our fight against these false allegations,” said William Brown, chief information security officer, D-Link Systems, Inc. “We are committed to protecting customer security, which the complaint affirmed by citing no actual data breach. Global connectivity relies on an unfettered commitment to security; we will continue to maintain and enhance the integrity of all D-Link Systems products.”

About Cause of Action Institute
Cause of Action Institute is a 501(c)(3) non-profit working to enhance individual and economic liberty by limiting the power of the administrative state to make decisions that are contrary to freedom and prosperity by advocating for a transparent and accountable government free from abuse.

About D-Link Systems, Inc.
D-Link Systems is a global leader in connectivity for home, small business, mid- to large-sized enterprise environments, and service providers.

For information regarding this press release, please contact Zachary Kurz, Director of Communications at CoA Institute: zachary.kurz@causeofaction.org

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