April 21, 2018

Weekly litigation report — April 21, 2018

By James S. Burling Vice President for Litigation

Florida turns a deaf ear to economic liberty

Today we filed this complaint in Taylor v. Pohill, which challenges Florida’s outdated licensing requirements for sellers of hearing aids.  Our client, Dan Taylor, gave up his license after 30 years, because the state’s regulations were made for older models, not the updated, technologically sophisticated models that he and his customers prefer.  Modern technology allows hearing aids to be tuned using computers, or even smart phones, but Florida’s licensing requirements impose procedures relevant to models from the ‘80s.  As the FDA has noted, licensing schemes like Florida’s increase the cost and reduce access to modern hearing aids—and they’re preempted by the agency’s regulations.

Service says the jumping mouse is its own subspecies, but can’t say why

The U.S. Fish and Wildlife Service this week denied our petition to delist the Preble’s meadow jumping mouse under the Endangered Species Act.  The mouse has become the poster rodent for endangered species controversy, in particular over the standards (or lack thereof) for determining whether a given population of wildlife is sufficiently “distinct” from other populations of the same species to be classified as its own “subspecies.”  Our petition relied on a 2013 University of New Mexico study which found that the Preble’s is really no different from plentiful mouse populations extending from Colorado into Canada.  The Service wasn’t convinced, noting that the study disclaimed any attempt at a wholesale revision of North American jumping mouse taxonomy.  Our answer is, “who cares?” It shouldn’t be necessary to redo all jumping mouse taxonomy, so long as it can be shown that the Preble’s itself does not qualify as its own subspecies.  For more on the Service’s denial and its flaws, see our blog post here.

Wisconsin’s butter taste test flunks constitutional scrutiny

On Monday, we filed our opening brief in Minerva Dairy v. Harsdorff in the Seventh Circuit. In Minerva Dairy, we seek to vindicate the right of a fifth-generation artisanal butter maker to sell his butter without the government’s stamp of approval. Wisconsin prohibits our client from selling his delicious and safe-to-eat butter simply because it has not been graded by taste testers. Wisconsin says that the grading requirement is needed to tell consumers how “pleasing” a butter is. But just as the government has no business mandating the cuddly-ness of blankets or the writeability of pens, it has no business mandating the pleasing-ness of butter. Consumers can decide for themselves which butters they prefer. For more on our challenge to Wisconsin’s arbitrary and unconstitutional law, see our blog post here.

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