USDA’s Unconstitutional Ban of Food and Beverage Ads Establishes Dangerous Precedent

high-school-cafeteria-coloradoIn the dog days of summer 2016, the US Department of Agriculture (USDA) ordered local government authorities to ban advertising for a select group of “disfavored” food and beverage products. The agency’s brazen action establishes a deeply troubling precedent in government’s efforts to usurp our freedom to choose what we eat and drink. Over the last several years, Washington Legal Foundation has closely tracked and strategically opposed actions such as USDA’s ban through our “Eating Away Our Freedoms” project. We launched that project five years ago this month on October 20, 2011.

The website is organized by the four major tactics that activists use to denigrate certain foods and beverages and to stigmatize consumers’ choice of those products: regulation, litigation, taxation, and public-relations demonization. For several years, the “regulation” page contained far fewer references to news articles and other analyses than the other three. But as government’s appetite for food-related mandates and restrictions has grown, the number of “regulation” entries has ballooned. USDA’s ad ban is perhaps the most pernicious regulation has ever encountered. Continue reading

Telecom Regulation Experts Question FCC’s Conformity to Law, Constitution at WLF Briefing


  • Commissioner Ajit Pai, Federal Communications Commission
  • Harold Furchtgott-Roth, The Hudson Institute and FCC Commissioner, 1997-2001
  • Brett A. Shumate, Wiley Rein LLP

Related WLF Materials:


Divergent Philosophies on Merger Enforcement Emerge from Senior DOJ, FTC Antitrust Officials’ Speeches

Antitrust & Competition — U.S. Department of Justice

swisherAnthony W. Swisher, a Partner in the Washington, DC office of Squire Patton Boggs (US) LLP.

*Ed. Note: With this post, Mr. Swisher is assuming the role of Featured Expert Contributor on Antitrust & Competition—DOJ.  The WLF Legal Pulse welcomes him on board, and we thank his predecessor, Mark J. Botti, for his contributions on DOJ-Antitrust matters during the past two years.

Observers looking for clues as to how federal antitrust enforcement could develop in the next administration took note of a June speech by Senator Elizabeth Warren. Senator Warren laid out some aggressive policy views that would result in a marked shift in antitrust enforcement doctrine if put into place. She decried a so-called “concentration problem” and lamented that “competition is dying.” Senator Warren called for the antitrust enforcement agencies to “hold the line” on horizontal mergers, and was sharply critical of the established agency practice of obtaining divestiture relief, claiming that “too often, [divestitures] don’t work.” Continue reading

The Supreme Court’s NOT Top 10: October Term 2015 Petitions the Justices Should Have Granted

supreme courtThis Monday the U.S. Supreme Court will conduct its Long Conference, so named for the larger than usual number of certiorari petitions it considers there.  With the fate of so many cert petitions hanging in the balance—and the overwhelming majority of them about to be denied—now is an opportune time to look back at the top 10 cases that were wrongly denied cert in the Court’s last term.

As with the previous installments of my “Not Top 10” list (see here and here), no more than half the cases discussed below will be ones in which Washington Legal Foundation filed a brief in support of certiorari.  Also, the cases will once again be limited to those that affect economic liberty, including the need for legal certainty around key legal policies and regulatory regimes.  From WLF’s free-enterprise perspective, those cases that implicate competition in the marketplace, limited and accountable government, individual and business civil liberties, or rule of law concerns matter the most. Continue reading

Update: FCC Declines Appeal of Sixth Circuit Loss in Municipal Broadband Preemption Case

FCCThe Federal Communications Commission (FCC) announced on August 29 that it will not be appealing its loss in the US Court of Appeals for the Sixth Circuit in Tennessee v. FCC. The August 10 decision held that FCC lacked the authority under Telecommunications Act § 706 to preempt state limits on municipalities’ offering of broadband services. Washington Legal Foundation supported the Petitioners in the case with an amicus brief on which we represented former FCC Commissioner Harold Furchtgott-Roth.

FCC argued that § 706 granted the Commission broad public-interest authority to dictate how states regulated the activities of their own local towns and cities. Tennessee and North Carolina both permit municipalities to offer government-owned broadband services, but they limit the offering of those services to the municipalities’ geographical borders. The Commission acknowledged it could not prohibit states from banning municipal broadband, but asserted that once states allowed such services, § 706 empowered FCC to preempt state policies that stood “as a barrier to infrastructure investment and broadband deployment.”

As former Commissioner Furchtgott-Roth and his Hudson Institute colleague Arielle Roth explained in an August 18 WLF Legal Pulse post, “The Sixth Circuit correctly rejected FCC’s basis for preempting the North Carolina and Tennessee statutes, stating that nowhere in § 706 did Congress indicate an intent to preempt internal state laws governing broadband deployment.”

The extent of FCC’s overreach was made manifest last November when the Department of Justice declined to sign FCC’s Sixth Circuit brief. Experts noted at the time that DOJ’s absence conveyed a not-so-subtle message to the Sixth Circuit. The Sixth Circuit sent an even clearer message to FCC with its August 10 decision, one that the Commission finally appears to have received.

Crusade or Charade?: What’s Really Motivating Efforts to Mandate GMO-Labeling?


Because “public-interest” groups cloak themselves with the feel-good mantle of protecting consumers, the environment, animals, etc., the motives of such groups rarely get questioned. But several recent developments show that all too often, activists put their own self-interest before the public’s interest.

Consider, for example, environmental groups’ opposition to a Washington state ballot measure going before voters this fall. Initiative 732 pursues a major environmentalist goal—carbon-emissions reduction—by imposing an excise tax. Revenues from the carbon tax would in turn fund sales, manufacturing, and low-income-household tax cuts. In other words, it’s revenue neutral, and that doesn’t sit well with green activists who see climate change as an effective proxy for a broader ideological goal: expanding government. Continue reading

Sixth Circuit Protects Federalism from an Overreaching Federal Communications Commission

harold_frRothGuest Commentary

By Arielle Roth and Harold Furchtgott-Roth, The Hudson Institute*

With the U.S. Court of Appeals for the DC Circuit granting it unprecedented authority over broadband companies in its June 14, 2016 network neutrality ruling, the Federal Communication Commission’s (FCC) regulatory authority over the internet is on the rise. However, a ruling last week by the Sixth Circuit, which overturned an FCC attempt to interfere with the internal affairs of two states’ broadband markets, reminded the Commission that there are limits to its power under the Telecommunications Act of 1996. Consistent with an amicus brief filed in the case by Washington Legal Foundation (and on behalf of one of the authors of this post), the court held that FCC that may not act in contravention of federalism principles and the rule of law. Continue reading