The Volokh Conspiracy - Interesting Opinion About DEA's Revoking License to Distribute Sudafed-Like Products:

The opinion in Novelty, Inc. v. DEA is dated June 22, but it seems to have been released just a couple of days ago. There's a particularly interesting dissent by Judge Janice Rogers Brown, which begins:

Tellingly called poor man's crack (especially telling, as crack is already poor man's cocaine), methamphetamine -- meth -- is a national scourge....

But we don't toss the law aside in our zeal to eradicate even an obvious menace. The Deputy Administrator (DA) here has done just that,[fn1] in the process crippling a successful enterprise and costing many employees their jobs. In rejecting the ALJ's recommendation that Novelty be allowed to retain its registration, the DA transforms a trivial violation of Novelty's own rules into an imminent danger to the public health and shifts the burden to Novelty to explain why some of the thousands of convenience stores it services are busier than others. Subject to this perverse alchemy, ordinary business practices somehow provide proof of rampant lawlessness. Thus, the DA (1) misreads a statute so any place used for distribution is a "principal place of business," even a padlocked storage shed; (2) uses the average sales of every convenience store serviced by Novelty as a proxy for legitimate demand at each location without regard to any individual characteristics; and (3) finds Novelty's efforts to stay in business after its registration was suspended to be proof of villainy. Because "[t]he war on drugs is not an excuse to violate the norms of fair play and evenhandedness," United States v. Cuellar, 478 F.3d 282, 307 (5th Cir. 2007) (en banc) (Smith, J., dissenting), rev'd 128 S. Ct. 1994 (2008), I respectfully dissent....

[Footnote 1:] As the Administrative Law Judge (ALJ) perceptively observed, no party "dispute[s] that illegal methamphetamine is a major drug problem in the United States," but the agency "seems to be trying to remedy this problem by restricting or eliminating the availability of such over-the-counter products by removing the distributors of [these] products to convenience stores from the market place" altogether, despite lacking sufficient record evidence. In re Novelty Distrib., No. 08-33, slip op. at 93 (May 21, 2008) (Recommended Ruling of the Administrative Law Judge) ("ALJ Ruling").

An interesting issue that the court didn't squarely deal with (Judge Henderson rejects it out of hand, but Judge Tatel simply concludes that it's irrelevant to the license revocation dispute, and Judge Brown doesn't address it) is whether the DEA investigators violated the First Amendment by restraining "Novelty's video and audio recording of DEA investigators while they conducted their investigation."

	[Eugene Volokh, July 9, 2009 at 6:53pm] Trackbacks Interesting Opinion About DEA's Revoking License to Distribute Sudafed-Like Products: The opinion in Novelty, Inc. v. DEA is dated June 22, but it seems to have been released just a couple of days ago. There's a particularly interesting dissent by Judge Janice Rogers Brown, which begins: Tellingly called poor man's crack (especially telling, as crack is already poor man's cocaine), methamphetamine -- meth -- is a national scourge.... But we don't toss the law aside in our zeal to eradicate even an obvious menace. The Deputy Administrator (DA) here has done just that,[fn1] in the process crippling a successful enterprise and costing many employees their jobs. In rejecting the ALJ's recommendation that Novelty be allowed to retain its registration, the DA transforms a trivial violation of Novelty's own rules into an imminent danger to the public health and shifts the burden to Novelty to explain why some of the thousands of convenience stores it services are busier than others. Subject to this perverse alchemy, ordinary business practices somehow provide proof of rampant lawlessness. Thus, the DA (1) misreads a statute so any place used for distribution is a "principal place of business," even a padlocked storage shed; (2) uses the average sales of every convenience store serviced by Novelty as a proxy for legitimate demand at each location without regard to any individual characteristics; and (3) finds Novelty's efforts to stay in business after its registration was suspended to be proof of villainy. Because "[t]he war on drugs is not an excuse to violate the norms of fair play and evenhandedness," United States v. Cuellar, 478 F.3d 282, 307 (5th Cir. 2007) (en banc) (Smith, J., dissenting), rev'd 128 S. Ct. 1994 (2008), I respectfully dissent.... [Footnote 1:] As the Administrative Law Judge (ALJ) perceptively observed, no party "dispute[s] that illegal methamphetamine is a major drug problem in the United States," but the agency "seems to be trying to remedy this problem by restricting or eliminating the availability of such over-the-counter products by removing the distributors of [these] products to convenience stores from the market place" altogether, despite lacking sufficient record evidence. In re Novelty Distrib., No. 08-33, slip op. at 93 (May 21, 2008) (Recommended Ruling of the Administrative Law Judge) ("ALJ Ruling"). An interesting issue that the court didn't squarely deal with (Judge Henderson rejects it out of hand, but Judge Tatel simply concludes that it's irrelevant to the license revocation dispute, and Judge Brown doesn't address it) is whether the DEA investigators violated the First Amendment by restraining "Novelty's video and audio recording of DEA investigators while they conducted their investigation."