I recently had the chance to sit down and discuss another fascinating forthcoming article with Lars Noah, Chesterfield Smith Eminent Scholar and Professor of Law, at the University of Florida Law. His article Time to Bite the Bullet?: How an Emboldened FDA Could Take Aim at the Firearms Industry, forthcoming in the Connecticut Law Review, describes how the FDA could assert device jurisdiction over firearms and ammunition and impose regulations to increase public safety. Below are the abstract and video. Check it out!
Firearms continue to cause tremendous losses in the United States, prompting increasingly frustrated calls for a public health response to this endemic problem. Although Congress has legislated repeatedly on the issue over the last century, it has not managed to do anything remotely comprehensive in the aggregate. This paper offers a radical new approach that has gone entirely unnoticed. Much as it tried to do a quarter of a century ago in asserting jurisdiction over tobacco products, the U.S. Food and Drug Administration (FDA) could try to use its “device” authority to rein in companies that manufacture firearms and accessories with far too little oversight at present. “Device” jurisdiction brings with it a wide range of powers that would give the agency tremendous flexibility in designing various ways of making guns and ammunition less hazardous to the community. Such an initiative would confront serious political hurdles, of course, to say nothing of an undoubtedly skeptical response by the federal judiciary on both statutory and constitutional grounds. Nonetheless, as happened with the FDA’s ultimately unsuccessful tobacco product rulemaking, simply making the effort might generate some much needed momentum for seriously addressing this scourge.