Let’s Play Pundit

By Eric F. Greenberg, Attorney-at-law

Let’s Play Pundit

There are lots of things all Americans agree on. I’m joking of course.

Lately, the divided state of America has been rather self-evident. The Presidential election’s over, but roughly half the country is happy, the other half unhappy. Meanwhile, lots of pundit types are furiously analyzing and predicting, so I will offer my 2 cents, too. Five cents, actually.

When I say the election’s over, I am implying that I don’t give any weight to the various legal allegations of fraud and a “rigged” election the President and other Republicans have been tossing around in the week or so since voting ended. Take it from a lawyer, there’s a big difference between having enough information sufficient to allow you to Tweet or hold a press conference, where rumors or even speculation will do, and having enough information sufficient to prove, or even properly allege, a legal case to a judge. If I turn out to be wrong, I will admit it loudly in a future column, and as penance will tell embarrassing stories about myself, such as why I had to take my driver’s license test three times.

1. COVID STILL HERE: The pandemic is still here, and at press time was growing larger than it has ever been. President-elect Joe Biden has said he’d take aggressive action against it and has already named his own task force. There’s a lot of attention to its effects on businesses, in addition to effects on health.

Interestingly, although the COVID-19 pandemic shut down or damaged many businesses of various types and sizes, many contract packaging and manufacturing businesses have found their business increasing during recent months, probably due to upticks in stay-at-home activities and meals, online gifting, consumers stocking up in preparation for possible shortages, and other influences. Industry data has shown an increase in contract packaging and manufacturing of 11.7% Compound Annual Growth Rate over the last five years, including the pandemic era.

2. NEW LAWS? ONLY MAYBE: Biden has already emphasized that he will take a different approach to addressing various topics, including environmental, infrastructure, taxes, and COVID, but if any of his plans require new or different laws, that is, Congressional action, and thus he’s probably dreaming. I don’t expect the still-Republican-controlled U.S. Senate to become suddenly cooperative with Democrats. There’s some chance the two runoff elections in Georgia, set for early January, could shift control of the Senate to Democrats, and if that happens, new laws become more of a possibility.

3. NEW REGULATIONS? MORE LIKELY: If it’s changes to regulations that Biden wants, he’ll have more ability to make those than changes to laws. It’s always a good idea to eliminate or change regulatory programs that aren’t effective. My pet peeve with the often-touted Trump program to “reduce regulations” was that it spoke about regulations as if they were pests that are always bad for business and for people, so that simply cutting the number of them was a good idea, regardless of what they did or why they were made in the first place.

I have heard the President tout his reductions of regulations dozens of times, and never once heard him mention the subject matters of the regulations involved, but it appears a lot of the regulations his administration eliminated (or tried to) involved environmental requirements about air and water quality.

It may seem like governments can do whatever they want with regulations, but that’s not quite so. Federal law requires changes to regulations or the making of new ones, except in emergencies, to follow a specified proposal/public comments/finalization process. Courts will strike down regulations if the agency doesn’t follow those steps or doesn’t articulate rational reasons for what they do, or if the courts find their actions to be “arbitrary” or “capricious.”

A new administration with a general philosophy in favor of the occasional regulation on any topic could mean we’ll see more complexities for business, perhaps also, finally, progress on cannabis regulation, that could provide more certainty and loosen up markets for packaging and labeling. Remember too that while businesses usually don’t like the idea of new regulatory requirements, the more the federal government regulates, the less individual states are likely to do so, with their potentially more-burdensome and non-uniform approaches.

What we might see is not so much changing laws or regulations, but big changes resulting from agencies simply reordering their priorities, emphasizing or de-emphasizing development of new programs or enforcement of specific requirements.

4. EXECUTIVE ORDERS? YES, AND ALREADY: Presidential executive orders can be made whenever the President wants to issue them, though many of them are more symbolic than substantive, and it’s not unusual for one President to issue orders that have the opposite substance, or form, than a prior President’s orders. In fact, Biden has said already that he will sign orders that will reverse what President Trump did and recommit the U.S. to the Paris environmental accords, and rejoin the World Health Organization, so if those are bad for your business, expect headaches to return.

5. NOW WHAT?: There’s been so much commentary about how at-odds the American public is, and it’s clear that it’s deeper than merely one’s opinion of Donald Trump. Philosophies of the role of government are behind a lot of the divide, and alas part of the divide is due to too many people taking their cues from batty conspiracy theories. Nevertheless, I am completely confident that we can make it through this. A good start would be remembering Abraham Lincoln’s formula for our nation after the Civil War, “With malice toward none, with charity for all….” PW

Eric Greenberg can be reached at [email protected]. Or visit his firm’s Web site at www.ericfgreenbergpc.com.

INFORMATIONAL ONLY, NOT LEGAL ADVICE.

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WHAT ONE COURT CASE CAN TEACH

What One Court Case Can Teach

By Eric F. Greenberg, Attorney-at-law

To help understand the recent scourge of private lawsuits brought against food packagers over the information on their product labels, let’s dive deeply into the recent decision in Mazella v. The Coca-Cola Company, in which consumers in New York State sued Coke claiming its bottled Gold Peak iced tea was misleadingly labeled as being “slightly sweet.” Spoiler alert: The case was dismissed—that is, thrown out—by the judge. I’ll discuss the judge’s lengthy Opinion and Order from July 21. (I can send you a copy if you ask for it at my email address below.)

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