RTP's Fourth Branch Podcast

Food is a necessity for life. It should therefore surprise few that the federal government regulates the production and processing of food before it reaches our dinner tables. Labels indicating some meats are “USDA-Prime” or confirming that the product was inspected and approved as safe before delivery to the grocery store reflect this regulatory role.

While labels may make the regulation apparent, which part of the administrative state handles that regulation can be less clear. Two agencies: the United States Department of Agriculture (USDA) and the Food and Drug Administration (FDA) -- part of the Department of Health and Human Services -- both have jurisdiction over the foods we consume. Which agency handles what is not always apparent. Recent illnesses and deaths involving baby formula and spinach -- both under the FDA's inspection jurisdiction -- have emphasized that regulatory structure can have life-or-death consequences. This has led some on both sides of the aisle to suggest a revamp of how we handle food safety regulation. One group contends the FDA should take the lead (Food being literally in the name); a second argues the USDA should run point (agriculture being the first step to food production), and a third group argues creating a separate agency entirely would be the best solution. The FDA itself has proposed an internal reorganization to emphasize its food safety mandate.

This panel of FDA and USDA veterans whose service spanned multiple administrations will examine the questions (1) how safe is our food, (2) is a reorganization of the agencies that handle food safety necessary to achieve the maximum level of safety, and (3) how should such a reorganization look.

Featuring:

• Dr. Mindy Brashears, Associate Vice President of Research, Endowed Chair, Professor & Director, International Center for Food Industry Excellence, Texas Tech University; Former Under Secretary of Agriculture for Food Safety, United States Department of Agriculture
• Dr. Stephen Ostroff, Former Acting Commissioner and Former Deputy Commissioner for Foods and Veterinary Medicine, United States Food and Drug Administration
• Frank Yiannas, Former Deputy Commissioner for Food Policy and Response, United States Food and Drug Administration
• [Moderator] Hon. Stephen Alexander Vaden, Judge, United States Court of International Trade; Former General Counsel of the United States Department of Agriculture

Visit our website - www.RegProject.org - to learn more, view all of our content, and connect with us on social media.

On December 30, 2022, the Environmental Protection Agency (EPA) published an updated rule on the Renewable Fuel Standard (RFS) that represents a significant departure from previous RFS rules. It includes a major new regulatory regime for Renewable Identification Numbers from renewable electricity (eRINs) and it proposes renewable fuel volume targets that are no longer prescribed in statute.
In this webinar, leading experts will provide background on the RFS, delve into the details of the proposed rule, including its potential costs and benefits, and address questions regarding statutory authority and the non-delegation doctrine. Within the next two months, the agency is expected to finalize this rule that could drastically change the nature of the RFS.
Featuring:

Jonathan Brightbill, Partner, Winston & Strawn LLP
Brendan Williams, Vice President of Government Relations, PBF Energy
[Moderator] Daren Bakst, Senior Fellow and Deputy Director of the Center for Energy and Environment, Competitive Enterprise Institute

Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.

In a highly anticipated decision, the Supreme Court held in Axon Enterprise, Inc. v. FTC (consolidated with Cochran v. SEC) that federal district courts have jurisdiction to resolve challenges to the structure and existence of federal agencies whose decisions are subject to review in a court of appeals. The decision confirms that regulated entities in enforcement proceedings before the FTC and SEC need not await a final agency decision to raise these fundamental challenges—and it raises a number of questions as well. What types of questions are covered by Axon? Which other agencies are implicated by the decision? What does this decision mean for the future of administrative enforcement?

The European Union is considering adopting a wide-ranging regulatory regime for the licensing and litigation of standard essential patents (SEPs). Proposed for release on World IP Day (April 26, 2023), a leak revealed the EU plan to create an administrative tribunal to perform mandatory “essentiality checks” of certain SEPs, set royalty rates for those SEPs, mandate public disclosure of licenses, and provide mandatory but non-binding conciliation for disputes. Critics contend that this regulatory regime is unnecessary and will stifle the explosive rate of innovation in mobile telecommunications with added costs. Supporters argue this regime will bring more certainty in the marketplace and reduce costs in litigation over SEPs. This panel of experts will discuss the EU proposal and its implications for participation in standards development, patent law, commercial law, competition law and innovation policy in the global innovation economy.
Featuring:

Elisabeth Opie, Founder and Principal Solicitor, Opie International Technology Lawyers
Adam Mossoff, Professor of Law, Antonin Scalia Law School, George Mason University
Jorge Contreras, Professor of Law, University of Utah College of Law
[Moderator] Urška Petrovčič, Senior Fellow, Hudson Institute

Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.

Artificial Intelligence (AI), once the stuff of science fiction, is now more than ever a part of everyday life, regularly affecting the lives of individuals the world over, sometimes in ways they may not even know. AI is increasingly used both in the public and private sectors for facial recognition, dataset analysis, risk and performance predictions, and much more, though how companies use it and the actual input it has can be unclear.
Experts have warned that the expanded use of AI, especially in areas related to labor and employment, if uninvestigated, could pose serious issues. Some contend that the use of AI tools can help make hiring processes more efficient and perhaps remove human biases from the equations. Others note that while this may be an admirable goal, many AI tools have been shown to produce discriminatory outcomes. The opaque nature of how some of these AI tools operate further complicates matters, as how an AI came to a particular decision and the data it referenced may not be clear to the human reviewer, thus making the identification of discriminatory practices harder to identify.
All of these issues, especially given the increasing use of AI tools in the hiring processes of many companies, raise several questions concerning AI’s entrance into the Labor and Employment space. What benefits and challenges does using AI in hiring present? How can AI be used to combat discrimination? What happens when AI itself is discriminatory, how can that be identified and addressed? What statutes and regulations apply to AI, and do the existing legal and regulatory frameworks concerning anti-discrimination in labor and employment suffice to address the novel nature of AI?
Featuring:

David Fortney, Co-Founder, Fortney & Scott LLC, & former Chief Legal Officer, U.S. Department of Labor
Prof. Aram Gavoor, Associate Dean for Academic Affairs; Professorial Lecturer in Law, The George Washington University
Hon. Keith Sonderling, Commissioner, Equal Employment Opportunity Commission
Moderator: Hon. Phillip Miscimarra, Partner, Morgan & Lewis, & former Chairman, National Labor Relations Board

Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.

Artificial Intelligence (AI), once the stuff of science fiction, is now more than ever a part of everyday life, regularly affecting the lives of individuals the world over, sometimes in ways they may not even know. AI is increasingly used both in the public and private sectors for facial recognition, dataset analysis, risk and performance predictions, and much more, though how companies use it and the actual input it has can be unclear.
Experts have warned that the expanded use of AI, especially in areas related to labor and employment, if uninvestigated, could pose serious issues. Some contend that the use of AI tools can help make hiring processes more efficient and perhaps remove human biases from the equations. Others note that while this may be an admirable goal, many AI tools have been shown to produce discriminatory outcomes. The opaque nature of how some of these AI tools operate further complicates matters, as how an AI came to a particular decision and the data it referenced may not be clear to the human reviewer, thus making the identification of discriminatory practices harder to identify.
All of these issues, especially given the increasing use of AI tools in the hiring processes of many companies, raise several questions concerning AI’s entrance into the Labor and Employment space. What benefits and challenges does using AI in hiring present? How can AI be used to combat discrimination? What happens when AI itself is discriminatory, how can that be identified and addressed? What statutes and regulations apply to AI, and do the existing legal and regulatory frameworks concerning anti-discrimination in labor and employment suffice to address the novel nature of AI?
Featuring:

Hon. Keith Sonderling, Commissioner, Equal Employment Opportunity Commission

Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.

What happens when the Administration's "whole-of-government approach" to climate change meets federal contracting? The Department of Defense, the Government Services Administration, and NASA have jointly proposed a revision to the Federal Acquisition Regulations that would require government contractors to publicly disclose greenhouse gas emissions and climate-related financial risk and to set science-based reduction targets. The agencies cast the proposal as a way to reduce climate-related risks, increase U.S. competitiveness, and promote economic growth. But critics say that the proposed rule would exceed the agencies' authority, increase federal procurement costs, and unconstitutionally delegate policy-making authority to the private entities that would be charged with policing contractors' compliance.

The panel will discuss the origins as well as the potential benefits and risks of this innovation in government contracting policy.

Featuring:

John Kostyack, Ceres Accelerator for Sustainable Capital Markets, Ceres
Brian Richman, Associate, Gibson, Dunn & Crutcher
Markus Speidel, Procurement Law Alumnus, The George Washington University
Moderator: Adam Gustafson, Senior Counsel for Environmental and Regulatory Affairs, Boeing

Visit our website - www.RegProject.org - to learn more, view all of our content, and connect with us on social media.

Social media platforms have emerged as the new “town square” and a key forum for public debate, but some have questioned whether that debate is as open and robust as it should be. On the other hand, some worry that efforts to regulate social media platforms may themselves crimp debate. At the heart of the discussion is Section 230 of the Communications Decency Act. A panel of experts discussed what Section 230 permits and doesn’t permit—a question now before a number of courts, including the U.S. Supreme Court in Gonzalez v. Google.

Featuring:

• Ashkhen Kazaryan, Senior Fellow, Free Speech & Peace, Stand Together
• Randolph May, President, The Free State Foundation
• Joel Thayer, President, Digital Progress Institute
• Moderator: Boyd Garriott, Associate, Wiley Rein LLP

Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.

*******
As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.

Recent months have seen a flurry of notable developments at the Federal Trade Commission, including oral arguments in the high-profile Axon v. FTC and SEC v. Cochran Supreme Court cases, administrative complaints challenging deals between Altria and JUUL and Illumina and GRAIL, and FTC Commissioner Christine Wilson’s announced resignation.

This episode is a live recording of a panel of antitrust law experts examining these developments and debating what might come next at the FTC.

Featuring:

• Debbie Feinstein, Partner, Arnold & Porter; Former Director, Bureau of Competition, Federal Trade Commission
• Hon. William Kovacic, Global Competition Professor of Law and Policy, The George Washington University Law School; Former Chairman, Federal Trade Commission
• Prof. Richard J. Pierce, Lyle T. Alverson Professor of Law, George Washington University Law School
• Hon. Joshua D. Wright, University Professor and Executive Director, Global Antitrust Institute, Antonin Scalia Law School, George Mason University; Former Commissioner, Federal Trade Commission
• Moderator: Bilal Sayyed, Senior Adjunct Fellow, TechFreedom; Former Director, Office of Policy Planning, Federal Trade Commission

Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.

*******
As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.

In late February 2023, the FDA released its responses to the December 2022 Reagan-Udall Foundation reports on the FDA's Human Foods and Tobacco programs.
In this follow-on explainer podcast, we once again host Jeff Stier to discuss what these initial responses include, what issues they address, and what one might want to watch moving forward.
Featuring:

Jeff Stier, Senior Fellow, Consumer Choice Center and Taxpayers Protection Alliance

Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.