IEEPA Tariffs Head to Supreme Court: Could Refunds Be Next? What Businesses Should Know
On Nov. 5, the U.S. Supreme Court will hear the Administration’s appeal of the split decision upholding the Court of International Trade’s order striking down use of the International Emergency Economic Powers Act (IEEPA) as a basis for imposing tariffs on trading partners around the world. Court observers expect a decision soon after oral argument. A ruling could unlock significant tariff refunds for importers — but the path forward remains uncertain, and businesses should be ready to act.
The case concerns two sets of tariffs imposed by the Administration under IEEPA: (1) the fentanyl/immigration tariffs imposed on Canada, China and Mexico in February and March 2025, as subsequently amended, and (2) the reciprocal tariffs imposed on most trading partners in April 2025, as subsequently amended.
How Refunds Could Play Out If the Court Affirms
If the decision of the U.S. Court of Appeals for the Federal Circuit (CAFC) is affirmed, the federal government could be required to refund the challenged IEEPA tariffs paid by importers. The court may hold that all, some or none of the challenged tariffs are lawful, or remand the case for additional proceedings. However, no clear procedure or timeline exists for unwinding the tariffs collected.
Three potential refund scenarios include:
The court could dictate refund eligibility requirements and deadlines;
The Administration could issue guidance in implementing the refund process; or
Importers could be instructed to simply rely on the conventional tariff refund process.
Although additional tariffs imposed on Brazil and India under IEEPA are not directly at issue, the Court’s ruling could impact their viability — depending on what, if any, guardrails the Court places on the Administration’s use of the IEEPA to set tariffs on trading partners.
What Steps Businesses Can Take Now
The attached fact sheet provides guidance on preparing for potential IEEPA refunds. Polsinelli will issue another e-alert updating guidance once the Supreme Court acts.
New National Security Tariffs on Trucks, Truck Parts and Buses Take Effect Nov. 1
Key Takeaways:
New tariffs on trucks, truck parts and buses become effective Nov. 1, 2025: These new tariffs on imported medium- and heavy-duty trucks (collectively, “trucks”) and truck parts, as well as on buses follow the Secretary of Commerce’s investigation conducted under Section 232 of the Trade Expansion Act (Section 232), which found that imports of these products threaten national security by causing the U.S. to become overly reliant on foreign supply chains.
Special rules, offsets and duty rate adjustments apply: The tariff on trucks qualifying for preferential treatment under the United States-Mexico-Canada Agreement (USMCA), will apply only to the value of their non-U.S. content, not to the full value of the vehicle. An import adjustment offset will be provided to producers that assemble trucks in the U.S. In addition, aluminum or steel imported from Canada and Mexico used in U.S. truck or bus manufacturing, may be subject to reduced tariffs.
Tariffs will not be stacked on top of others: Trucks, truck parts and buses subject to these new tariffs will not be subject to additional or existing sectoral tariffs on steel, aluminum, copper, autos and auto parts, and lumber. They also will not be subject to reciprocal tariffs or additional tariffs imposed on Canada, Mexico, Brazil or India.
On Oct. 17, 2025, President Trump signed a Proclamation imposing new Section 232 tariffs – a 25 percent ad valorem duty on imports of trucks and truck parts and a 10 percent ad valorem duty on imports of buses – effective Nov. 1, 2025. According to the Proclamation, this Section 232 action “builds on previous actions taken by the Trump Administration to ensure U.S. trade and industrial policies serve the national interest.”
Businesses involved in the production, import or assembly of trucks, buses or related components should act quickly to evaluate their exposure, determine whether exemptions or offsets apply and prepare for the Nov. 1 effective date.
National Security Findings Underpin New Tariffs
The tariffs follow a Section 232 investigation by the Department of Commerce that found these imports pose a threat to national security by increasing reliance on foreign supply chains.
As the Secretary found, trucks, truck parts and buses are essential to national security, playing a vital role in military readiness, through transport of personnel, weapons systems, ground defense vehicles and critical supplies. They also support emergency response across medical, law enforcement and disaster relief efforts by enabling mobile coordination, evacuation and field-operations capabilities. But as offshoring has increased, imports have increased their penetration of the U.S. market, weakening domestic supply chains and exposing national security vulnerabilities. The new Section 232 tariffs are intended to curb that reliance, strengthen domestic manufacturing and secure supply chains essential for national and economic security.
Special Rules Apply to USMCA-Compliant Trucks and Truck Parts
Special rules apply to USMCA-compliant trucks and truck parts. Tariffs on trucks that qualify for preferential treatment under the USMCA, will apply only to their non-U.S. content, calculated by subtracting the value of the U.S. content in the truck from the vehicle’s total value.
USMCA-compliant truck parts will not be subject to the additional tariff until “such time that the Secretary, in consultation with the Commissioner of U.S. Customs and Border Protection (CBP), establishes a process to apply the tariff exclusively to the value of the non-United States content” and publishes a Federal Register notice.
Trucks Assembled Domestically Eligible for Offsets
To incentivize domestic truck production, trucks that undergo final assembly in the U.S. will qualify for an import adjustment offset. Under this program, manufacturers may apply for an offset equal to 3.75 percent of the aggregate Manufacturer’s Suggested Retail Price (MSRP) value of all trucks they assemble in the U.S. annually from April 5, 2025, through April 30, 2030.
Recognizing the shared suppliers and supply chains between U.S. truck and auto producers, the Administration also aligned the Section 232 autos tariff program with the new truck offsets and extended the offset eligibility period for auto manufacturers through April 30, 2030.
Lower Rates May Apply to Aluminum and Steel from Canada and Mexico
To better address national security concerns identified in the Section 232 actions on aluminum and steel, the Administration authorized the Secretary of Commerce to reduce tariffs on certain aluminum and steel imports from 50 percent to 25 percent. The reduced rates apply to aluminum and steel from Canada or Mexico supplied to U.S. truck and auto producers.
These duty reductions are limited in two ways. First, they apply only to “quantities of aluminum or steel equal to newly committed United States production capacity, as determined by the Secretary.” Second, the lower rates are available only for “imports of aluminum and steel that qualify for preferential treatment under the USMCA and that were smelted and cast or melted and poured in Canada or Mexico.”
No Tariff Stacking on Trucks, Truck Parts or Buses
Products subject to these new tariffs on trucks, truck parts and buses will not be subject to additional or existing tariffs on steel, aluminum, copper, autos and auto parts and lumber. They also will not be subject to reciprocal tariffs or the tariffs imposed on Canada, Mexico, Brazil or India.
FTC Abandons Efforts to Ban Virtually Non-Competes
After a year-and-a-half of uncertainty, the Federal Trade Commission’s efforts to ban employers from enforcing most non-complete clauses against employees have come to an end. Last year, the FTC fought to issue such a prohibition, but after being blocked in the courts and a change in leadership after the 2024 presidential election, the FTC recently abandoned this effort.
In April 2024, the FTC under the Biden Administration issued its final “Non-Compete Clause Rule,” which would have banned most employment non-competes in the United States. If it had gone into effect, the rule would have impacted an estimated 30 million U.S. employees covered by a non-compete agreement.
The sweeping new FTC rule was set to take effect last September, but several lawsuits were filed to challenge it. In one of those cases, the U.S. District Court for the Northern District of Texas, in August 2024, blocked the rule from taking effect nationwide. A number of business groups, including the U.S. Chamber of Commerce, had argued (among other things) that the FTC had overstepped its authority by issuing a blanket ban on non-competes. The FTC appealed that court decision, as well as another ruling against the FTC’s non-compete rule in a separate case. Those two appeals slowly worked their way through the courts.
But those appeals were filed by the FTC under the Biden Administration. Following the presidential election, the Trump Administration’s FTC leadership indicated it has different priorities and perspective. In September 2025, the FTC voted 3-1 to dismiss its appeals and abandon its non-compete rule. The legal result is that the FTC’s non-compete rule remains enjoined and may not be enforced.
While this skirmish may be over, that does not mean the end of federal efforts to limit non-compete agreements. Current FTC Chairman Andrew N. Ferguson warned businesses in his statement about the non-compete rule that the FTC would continue enforcement actions against “unlawful non-compete agreements” in specific cases, and noted the recent filing of a complaint against a large business that allegedly sought to “curtail worker mobility and workers’ ability to negotiate better employment terms.”
For employers that routinely use non-compete agreements with its employees, the demise of the FTC rule will provide a measure of certainty. However, efforts to limit the use of non-compete agreements in employment likely will continue at both the federal and state level.
November 3, 2025- A Key Date in the FAR Overhaul Process
Under Executive Order 14275, Restoring Common Sense to Federal Procurement, and accompanying OMB Memorandum M-25-26, the FAR Council is undertaking a comprehensive redesign of the Federal Acquisition Regulations (FAR). The stated goal of this “Revolutionary FAR Overhaul (RFO)” is to streamline the FAR, eliminate non-statutory or duplicative provisions, adopt clearer or “plain language” drafting, and more closely align the FAR structure with the acquisition life cycle.
As part of the transition, the FAR Council has published model deviation text for numerous FAR parts (e.g., Parts 15, 16, 22, 23, 25, 32, 42, 53) and requested informal public feedback through November 3, 2025. The model deviation text is intended as a “bridge” during the transition — a consistent template for agency class deviations pending formal FAR rewriting and codification.
Concurrent with the public comment window, certain agencies have issued class deviations adopting the model deviation text for certain FAR parts, with many deviations slated to become effective November 3, 2025.
Thus, November 3 is a pivotal date: It is both the deadline for public comment on much of the model deviation text and the effective date for a wave of class deviations adopting that text.
Scope of the Public Comment Opportunity
By November 3, 2025, at 4:30 p.m. ET, the public may submit feedback on the proposed model deviation text for all FAR parts (including FAR Parts 14, 15, 16, 22, 23, 25, 32, 37, 41, 42, 47, 53).
While this comment period is described as “informal,” the FAR Council has stated that feedback will be considered in the development of the formal rulemaking (i.e., in drafting final FAR rewrite proposals).
Notably, the FAR Council has also made clear that it does not intend to issue individualized responses to every comment, but that all input will be reviewed and may influence the final versions.
Why You Should Engage
For government contractors, industry associations, acquisition professionals, small businesses, and other stakeholders, this is a rare opportunity to influence FAR changes before they become more entrenched. Key issues to scrutinize include:
Unintended consequences or gaps in the model text (e.g., removed or rephrased provisions that may impact risk, oversight, disputes, or compliance burdens).
Transitions for existing contracts or solicitations – whether the deviation text sufficiently contemplates legacy obligations, amendments, or recompetition.
Interplay with agency regulations or statutes – for instance, where the new FAR model text may conflict with existing SBA or other implementing rules.
Clarity, consistency, and interpretability – i.e., does the model deviation text succeed in simplifying the language without sacrificing enforceability or certainty.
Suggestions for further refinement or alternative approaches – especially if a stakeholder has identified areas where the model text may be deficient or overly burdensome.
Risks of Not Participating
Once the public comment period closes and agencies begin to incorporate or rely on deviations (and later FAR rewrites), opportunities to propose alternative language or mitigate problematic provisions may be more constrained. Stakeholders who do not participate risk having to adjust reactively.
November 3, 2025: Effective Date of Certain Class Deviations
On November 3, 2025, certain agency class deviations implementing the FAR Council’s model deviation text will become effective. Some examples:
GSA / FAR Part 33 – Class Deviation RFO-2025-33 (removing § 33.212, among other changes) becomes effective November 3.
GSA / FAR Part 38 – GSA’s class deviation removing FAR Part 38 entirely (shifting Schedule procedures to GSAR) takes effect November 3.
GSA / FAR Part 30 – Deviation implementing RFO model deviation text for cost accounting rules becomes effective November 3.
DOE / FAR Part 49 – A class deviation to adopt model text for termination clauses becomes effective November 3.
DOE / FAR Part 7 – A class deviation implementing model deviation text for acquisition planning becomes effective November 3.
GSA / FAR Part 12 – GSA’s deviation adopting the FAR Council’s revised Part 12 and associated revisions in Part 52 will take effect November 3, 2025.
These deviations mean that, for new solicitations or new contracts (and, in some cases, for task orders or modifications), contracting officers must use the RFO model deviation language in place of the existing codified FAR language (to the extent applicable).
Notably, these deviations will likely remain in effect until they are rescinded or incorporated into the revised FAR itself.
Key Implementation Considerations
Templates, provisions, and clauses – Agencies and contractors will need to adjust template solicitations, contract clauses (Part 52), and internal standard operating procedures to reflect the new deviation text.
Open or in-flight solicitations and contracts – For existing solicitations or awarded contracts, contracting officers have discretion to apply or not apply the new deviation text. The deviations do not automatically apply to existing documents unless amended or agreed.
Coordination with agency acquisition workforce – Contracting personnel must be trained, informed, and aligned to ensure consistent adoption of RFO text. Internal guidance, training, and oversight mechanisms will need adjustment.
Monitoring incorporation into the FAR – Over time, the intention is to formally codify many (or all) of these deviations into the revised FAR. Until then, the deviations operate as stopgap measures — but the transition period may carry legal and interpretive risk.
Potential conflicts or gaps – If a class deviation omits or modifies a provision in a way that raises ambiguity or inconsistency (e.g., with statute, executive order, or agency policy), contractors will need to be proactive in flagging the issue, and contracting officers will need to carefully assess risk and consider fallback or remedial approaches.
Suggested Steps for Stakeholders Between Now and November 3
Inventory and compare – Review the model deviation texts for the FAR parts relevant to your business or agency. Compare them side by side with the existing FAR language and identify material changes (additions, deletions, reorganizations).
Prepare comments – Draft and submit comments that are grounded in real-world contract experience, risk analysis, implementation feasibility, or clarity concerns. Aim for specificity (e.g., “Section X, line Y, removes provision Z, but that may cause issue A in scenario B”).
Coordinate internally – Contractors should coordinate with their procurement teams, government contracts legal counsel, and leadership to understand how their bids or proposals will need to adapt.
Monitor agency deviations – Track which agencies are issuing class deviations and for which FAR parts. Where your contracts or potential solicitations intersect with these agencies, you’ll want to align to the new textual requirements come November 3.
Plan for the transition period – Be prepared to manage mixed contracts and solicitations — some under old FAR text, some under new deviation text.
Watch for formal FAR rulemaking – After the RFO model deviation and agency deviation phase, the FAR Council is expected to proceed with formal rulemaking (notices of proposed rulemaking, etc.). Comments now may influence that process, but later rulemaking may further revise text. Thus, stakeholders should remain engaged.
Conclusion
November 3, 2025. represents a hinge in the FAR’s modernization process. On that day, the public comment window on many RFO model deviation texts closes, and a new wave of agency class deviations will go into effect, embedding the new language in actual solicitations and contracts.
For federal contractors, agencies, and others in the federal procurement space, the intervening days are a critical window to influence, adapt, and prepare for a new era in government contracting. Missing the deadline may mean missing the chance to shape the “final” form of the new FAR.
BIS Expands Export Controls with New Affiliates Rule
On September 29, 2025, the U.S. Department of Commerce’s Bureau of Industry and Security (“BIS”) issued a pivotal interim final rule under the U.S. Export Administration Regulations (“EAR”) significantly broadening the scope of end-user-based export controls (the “Affiliates Rule”). Effective immediately, the Affiliates Rule extends end-user-based licensing requirements to foreign entities that are, directly or indirectly, owned 50 percent or more, individually or in aggregate, by entities on the Affiliate Lists.
The Affiliates Rule
The Affiliates Rule expands existing export control restrictions to cover export, reexport, and transfer (in-country) of items subject to the EAR involving any entity that is 50 percent or more owned, directly or indirectly, individually or in aggregate, by one or more parties designated on the: (i) Entity List (“Entity List”), (ii) Military End-User List (“MEU List”), or (iii) Specially Designated Nationals and Blocked Persons designated under programs listed in EAR Part §744.8 (“SDN List”)(collectively, the “Affiliate Lists” and “Targeted Affiliates”). The Affiliate Lists identify individuals, organizations and addresses that are subject to export, reexport and transfer (in-country) restrictions involving items subject to the EAR.
BIS has historically applied a “legally distinct” standard distinguishing subsidiaries and other legally distinct affiliates of the entities on the Affiliate Lists, thereby excluding such entities from licensing requirements. This change now aligns the Affiliate Lists with the U.S. Department of the Treasury’s Office of Foreign Assets Control (“OFAC”) sanction list restrictions, many of which have historically applied a 50 percent rule to include affiliated entities.
Moreover, Targeted Affiliates may be subject to rules arising from more than one restricted entity on an Affiliate List, so the Affiliates Rule applies the “rule of most restrictiveness,” making the Targeted Affiliate subject to the strictest license requirements applicable and ensuring that Targeted Affiliates cannot benefit from less stringent controls due to diversified ownership among entities on the Affiliate Lists. The preamble to the Affiliates Rule includes direct examples applying the “rule of most restrictiveness” (see Affiliate Rule; Preamble Part II (A)(2)). BIS has published updated Entity List FAQs to assist with nuanced compliance obligations, and BIS will be accepting public comments on the Affiliates Rule through October 29, 2025.
Screening Requirements
The Affiliates Rule adds significant compliance screening obligations:
“When an exporter, reexporter, or transferor has ‘knowledge’ that a foreign entity that is a party to the transaction has one or more owners that are listed on the Entity List or the MEU List, it has an affirmative duty to determine the percentage of ownership by those listed entities and if that is not possible, to obtain a license from BIS if required under the Entity List or MEU List based on the requirements for the listed owner or owners of that foreign entity, unless a license exception is available” (see Affiliate Rule; EAR Part §732 Supplement No. 3 to Part 732—BIS’s “Know Your Customer” Guidance and Red Flags).
Pursuant to FAQ 41, these screening obligations mean:
“An exporter, reexporter, or transferor with “knowledge” that a party to the transaction has an owner or owners that are on the Entity List or MEU List has an affirmative duty to determine the percentage of ownership.
If the exporter, reexporter, or transferor is not able to determine the percentage of ownership, the exporter, reexporter, or transferor must apply for a license from BIS if a license is required under the Entity List or MEU List for the listed owner(s).
If an exporter, reexporter, or transferor does not apply for a license and subsequently it is determined that the party to the transaction was in fact subject to a license requirement . . . the exporter, reexporter, or transferor may be determined to have had “knowledge” that a violation was about to occur and continued to proceed with the transaction. . . .” (see FAQ 41).
For those instances when ownership cannot be reliably determined under the Affiliates Rule, then exporters, reexporters or transferors must treat the Red Flag 29 situation as triggering a duty to: (i) conduct further due diligence, (ii) resolve the ownership question, or (iii) seek a license from BIS before proceeding with the transaction, unless a license exception is available. Red Flag 29 is part of BIS’s long-standing “Know Your Customer” guidance, which outlines specific warning signs, known as red flags, that may indicate a transaction involving a prohibited end-user, end-use, or destination. Knowledge under the EAR includes not only positive knowledge that the circumstance exists or is substantially certain to occur, but also an awareness of a high probability of its existence or future occurrence.
Savings Clause, TGL, and Removal Requests
Within the Affiliates Rule, BIS provided a savings clause permitting shipments en route pursuant to actual orders with the transfer completed by no later than October 29, 2025, to avoid the new requirements under the Affiliates Rule. BIS also issued a narrowly tailored Temporary General License providing limited transitional relief (“TGL”). The TGL permits the following transactions to proceed without the new additional scrutiny:
exports, reexports or transfers (in country) to or within any Country Group A:5 or A:6 countries when an affiliate is a party to the transaction; or
exports, reexports or transfers (in-country) to or within any destination other than Country Group E:1 or E:2 countries (i.e., Cuba, Iran, North Korea, and Syria) when an affiliate is a party to the transaction and that affiliate is a joint venture with a non-listed and non-affiliate entity that is headquartered in the U.S. or Country Group A:5 or A:6” (see Affiliate Rule; EAR Part §736; Supplement No. 1 to Part 736—General Orders).
Country Groups A:5 and A:6 collectively cover a broad range of U.S.-allied countries, while excluding countries such as China and Russia. The limited TGL transitional relief lasts for a 60-day period ending November 28, 2025.
The Affiliates Rule also expanded the Entity List removal request process of EAR Part §744.16 to accommodate requests from Targeted Affiliates. The request for modification may be submitted for review to the interagency End-User Review Committee composed of representatives of the Departments of Commerce, War, Energy, State, and potentially Treasury.
Compliance Steps: How to Comply with New Affiliates Rule
Consistent with the Affiliates Rule, BIS clarifies that the Consolidated Screening List no longer comprises an exhaustive list of foreign entities subject to restrictions, so reliance on the Consolidated Screening List alone is insufficient. To mitigate risk and ensure compliance, companies must promptly reassess internal compliance protocols to review existing counterparty relationships, pending transactions, and export activities to ensure alignment with the new regulatory expectations by evaluating whether supplemental diligence is necessary in light of the broadened scope of the Affiliates Rule.
Additional compliance steps may include (i) screening distributors and customers for a nexus to Targeted Affiliates, (ii) reviewing and revising end-use/end-user certifications to better flag Targeted Affiliates, and (iii) mapping ownership structures to identify entities that may be Targeted Affiliates.
Conclusion
Companies involved in the export, reexport, or transfer (in-country) of items subject to the EAR must promptly reassess internal compliance protocols to review existing relationships with distributors, supply chain participants, and customers. They also must undertake robust due diligence, particularly with respect to ownership and affiliation structures; otherwise, companies risk exposure to the strict liability and administrative penalties of BIS.
Increased Risk of UK Sanctions Enforcement–An Analysis of Recent Sanctions Enforcement Action in the United Kingdom
On 30 September 2025, the UK’s Office of Financial Sanctions Implementation (OFSI) published a penalty notice regarding a breach of UK financial sanctions by Colorcon Limited (Colorcon). This decision is part of a wider trend of increasing scrutiny in relation to UK sanctions enforcement.
Recent enforcement actions
Colorcon
In its most recent enforcement decision, OFSI imposed a £152,750 fine on UK-registered Colorcon for making payments to accounts held at sanctioned banks when closing its Moscow office. Out of the 123 payments made, only 44 were permitted under a general licence for companies winding down their Russian operations—the total amount transferred in breach was £128,277.
Whilst Colorcon’s employees were not sanctioned, the fact that they held accounts at sanctioned banks meant that the transfers made funds available to Designated Persons (DPs).
Colorcon notified OFSI of the breaches four months after their discovery. Although OFSI acknowledged the company’s full disclosure and subsequent cooperation, the delay meant the disclosure could not be considered prompt. Accordingly, a 35% discount was applied to the penalty instead of the maximum 50% available for voluntary disclosures.
Vanquis Bank
On 8 September 2025, OFSI issued a Disclosure Notice—a form of nonmonetary penalty—against Vanquis Bank Limited (Vanquis) for making funds available to a DP.
The day before notifying Vanquis of the DP’s details, OFSI prewarned it that a suspected customer was to be designated under terror financing risks. Despite receiving a prenotification from OFSI, the bank did not restrict the customer’s account for eight days following the designation. During that time, the DP managed to withdraw £200 in cash and made a £8.99 transaction. Vanquis notified OFSI of the breach 13 days after the designation.
OFSI concluded that a Disclosure Notice was a proportionate response due to Vanquis’s voluntary reporting and cooperation, as well as the low value of the breach. However, OFSI remarked that Financial Conduct Authority (FCA)-regulated bodies are expected to understand sanctions risks and employ appropriate control measures.
Markom Management
On 31 July 2025, OFSI published a £300,000 penalty notice against UK-incorporated Markom Management Limited (MML) regarding a payment of £416,590 to a DP.
MML forms part of the Markom Group, which includes Markom Management Cyprus (MMC). Following an overpayment involving MMC, MML instructed Gazprombank to transfer RUB 33 million (or £416,590) from MMC’s account to the DP’s account. This payment made funds directly available to a DP, designated for their financial connections to those involved in the destabilisation of eastern Ukraine.
MML notified OFSI eight months after the breach, which was identified as a result of third-party activity. The breach was aggravated by MML’s lack of policies or controls to manage sanctions risks related to informal transactions within the Markom Group.
Key compliance lessons
The recent enforcement action in the United Kingdom highlights lessons to be learned by those subject to compliance with the UK sanctions regime, including:
Regularly reassess your sanctions compliance policies and processes so that they adequately address your level of exposure to sanctions risks. Having a compliance process will not be a mitigating factor if it is not fit for purpose.
Do not solely rely on third parties to undertake your sanctions screening without knowledge or understanding of their processes.
Apply screening to both internal and external transactions.
Disclose a breach to OFSI as quickly as possible but ensure appropriate legal advice is sought in this regard.
If you seek to rely upon a general or special licence, ensure you identify the limits of the licence and any related reporting requirements so that you are not at risk of conducting transactions or undertaking prohibited activities outside of its scope.
Ensure appropriate policies and procedures are in place, particularly for organisations regulated by a professional body, such as the FCA.
Immediately take appropriate steps and screening measures if you receive a prenotification from OFSI that a customer or associate may be designated in the near future.
Reply promptly to OFSI if you receive a request for information.
Conclusion
Considering the examples above, OFSI’s most recent decisions signal a more forceful approach to UK sanctions enforcement. Businesses are expected to be proactive in their compliance, with an emphasis placed on prompt and voluntary disclosure.
Keeping in mind OFSI’s ongoing consultation on strengthening its enforcement powers, it is likely that compliance and reporting obligations will significantly increase in the future. Accordingly, organisations should act as soon as possible to ensure their compliance processes are adequate.
If you have any questions or would like to discuss what the sanctions enforcement regime means for you, please do not hesitate to contact the authors listed above.
Trump Administration Executive Order Tracker
Below is a tracker of healthcare-related executive orders (EOs) issued by the Trump administration, including overviews of each EO and the date each EO was signed. We will regularly update this tracker as additional EOs are published.
It is important to note that EOs, on their own, do not effectuate policies. Rather, in most cases, they put forth policy goals and call on federal agencies to examine old or institute new policies that align with those goals.
Date Signed
Executive Order Title
Summary
October 15, 2025
Ensuring Continued Accountability in Federal Hiring
The Executive Order implements controls on federal hiring, with the goal of having an efficient federal workforce aligned with the administration’s priorities. Agencies must follow the Merit Hiring Plan issued by OPM in May 2025, establish Strategic Hiring Committees, and submit Annual Staffing Plans with quarterly updates to OPM and OMB. Exceptions apply for national security, public safety, and other designated roles, and the EO states it shall not adversely impact Medicare benefits.
September 30, 2025
Unlocking Cures for Pediatric Cancer With Artificial Intelligence
This Executive Order directs the MAHA Commission, HHS, the Assistant to the President for Science and Technology (APST), and the Special Advisor for AI and Crypto to use artificial intelligence to improve pediatric cancer diagnosis, treatment, and prevention. Agencies shall prioritize enhancing clinical trial design, data infrastructure, and biological analysis through AI and seek ways to increase investments in pediatric cancer research—including doubling funding for the Childhood Cancer Data Initiative. The EO encourages private sector innovation and mandates integration of AI into health data systems to improve research and trial outcomes. HHS is also tasked with finalizing interoperability standards to ensure secure, privacy-compliant use of patient data in AI applications.
September 29, 2025
Continuance of Certain Federal Advisory Committees
This Executive Order extends the following Department of Health and Human Services advisory committees through September 30, 2027: the Presidential Advisory Council on HIV/AIDS, the President’s Committee for People with Intellectual Disabilities, the Advisory Board on Radiation and Worker Health, and the President’s Council on Sports, Fitness, and Nutrition.
August 13, 2025
Ensuring American Pharmaceutical Supply Chain Resilience by Filling the Strategic Active Pharmaceutical Ingredients Reserve
This EO directs HHS to strengthen domestic pharmaceutical supply chains by stockpiling Active Pharmaceutical Ingredients (APIs) for critical medicines. Within 30 days, The Office of the Assistant Secretary for Preparedness and Response (ASPR) must identify approximately 26 especially critical drugs and assess available funding to acquire a 6-month supply of APIs, prioritizing domestic sources. Within 120 days, ASPR must prepare the Strategic API Reserve (SAPIR) repository to begin receiving APIs and fill it within 30 days of readiness. Within 90 days, ASPR must update the 2022 list of 86 essential medicines and develop a plan to source, store, and maintain APIs for those not covered in the critical drugs list. The plan must also include a proposal and cost estimate for opening a second SAPIR repository within one year.
August 7, 2025
Improving Oversight of Federal Grantmaking
This EO aims to ensure federal funding does not go to what the administration considers “wasteful grants.” It requires each agency to designate an appointee of President Trump to be responsible for reviewing new funding opportunity announcements and discretionary grants to ensure they are consistent with agency priorities. It states specific items must include, such as review by subject matter experts and interagency coordination to determine if the funding opportunity has been addressed by another announcement. The EO lists principles for this review, including that preference be given to institutions with lower indirect cost rates, awards be given to a broad range of recipients, recipients commit to complying with Gold Standard Science, and that awards are not used to fund or promote racial preferences, denial of the sex binary, or illegal immigration. The EO directs agencies to designate appointees of President Trump to review discretionary awards on an annual basis for consistency with agency priorities, including an accountability mechanism for officials responsible for selection and granting of awards. OMB must revise the Uniform Guidance to require all discretionary grants to permit termination for convenience, including when the award no longer advances agency priorities. Within 30 days, agencies must submit a report to OMB detailing if its standard terms and conditions for discretionary awards permit termination for convenience and must revise terms and conditions of existing discretionary grants to permit such termination.
July 31, 2025
President’s Council on Sports, Fitness, and Nutrition, and the Reestablishment of the Presidential Fitness Test
This EO modifies a Bush Administration EO to reestablish the Presidential Fitness Test, to be administered by HHS. It establishes the President’s Council on Sports, Fitness, and Nutrition, which will consist of 30 individuals appointed by the President and will be funded by HHS. The Council shall advise the President, including on strategies to address the growing national security threat posed by the increasing rates of childhood obesity, chronic diseases, and sedentary lifestyles.
July 24, 2025
Ending Crime and Disorder on America’s Streets
This EO directs the Attorney General to collaborate with HHS to seek the reversal, if appropriate, of judicial precedents and the termination of consent decrees that impede the encouragement of civil commitment of individuals with mental illness who pose a risk to themselves or the public and who are homeless. It directs HHS to prioritize discretionary federal assistance for states and cities that enforce prohibitions against open drug use, urban camping, loitering, and squatting and that provide individuals with serious mental illness, a substance use disorder, or who are homeless with assisted outpatient treatment or move them into a treatment center. The EO also directs HHS to ensure SAMHSA discretionary grants do not fund harm reduction or safe consumption efforts; to provide technical assistance to assisted outpatient treatment programs on the civil commitment process; and ensure federal funding for Federally Qualified Health Centers and Certified Community Behavioral Health Clinics reduces homelessness. The EO also calls for the end of federal grants that support “housing first” policies.
July 23, 2025
Accelerating Federal Permitting of Data Center Infrastructure
This EO directs the Secretary of Commerce and Director OSTP to launch an initiative that will provide financial support to “qualifying projects,” as defined in the EO, to support data center infrastructure. All agencies shall also provide OSTP with existing financial mechanisms to assist with these efforts. The EO revokes a January 2025 Biden-era EO, Advancing United States Leadership in Artificial Intelligence Infrastructure. The EO requires the Council on Environmental Quality to establish new categorical exclusions to cover projects funded by this initiative that do not have a significant effect on the human environment, with the goal of expediting construction. The EO directs the Environmental Protection Agency (EPA) to expedite permitting by modifying regulations. EPA shall also identify Brownfield Sites and Superfund Sites for use by these projects and issue guidance on such sites within 180 days. The EO directs federal agencies, such as the Department of the Interior, to identify federal land that can be authorized for data center construction.
July 23, 2025
Promoting the Export of the American AI Technology Stack
This EO directs the Secretary of Commerce to establish and implement the American AI Exports Program within 90 days. The Secretary of Commerce will issue a 90-day public call for proposals to be included in the program, and, in consultation with the Secretary of State, Secretary of Defense, Secretary of Energy, and Director of OSTP, evaluate and select proposals for inclusion in the program. The EO directs the Economic Diplomacy Action Group (EDAG) to coordinate mobilization of federal financing tools for AI export packages. These tools include direct loans, loan and credit guarantees, equity investments, co-financing, political risk insurance, technical assistance, and feasibility studies. The EO also delegates authority to appoint EDAG members to the Administrator of the Small Business Administration (SBA) and the Director of OSTP. The EO specifies that the Secretary of State will be responsible for developing and executing federal strategy to promote the export of American AI technologies and standards, coordinating US participation in multilateral initiatives and country-specific partnerships for AI deployment and export promotion, supporting partner countries in fostering pro innovation regulatory, data, and infrastructure environments, analyzing market access, including barriers to trade, and coordinating with SBA’s Office of Investment and Innovation to facilitate investment in US small businesses that develop AI technologies and manufacture AI infrastructure, hardware, and systems.
July 23, 2025
Preventing Woke AI in the Federal Government
This EO requires agency heads to only procure large-language models (LLMs) that abide by “unbiased AI principles,” which are truth-seeking and ideological neutrality. The EO directs the Director of the Office of Management and Budget (OMB), in consultation with the Administrator for Federal Procurement Policy, the Administrator of General Services, and the Director of Office of Science and Technology Policy (OSTP) to issue guidance implementing the requirements related to unbiased AI principles within 120 days. Each agency head must include terms in each new LLM federal contract requiring that the LLM comply with the unbiased AI principles and outlining procedure for noncompliance, revise existing contracts to include the terms outlined above, and within 90 days of OMB issuing the specified guidance, adopt procedures to ensure compliance with unbiased AI principles.
July 17, 2025
Creating Schedule G in the Expected Service
This EO creates a new classification of non-career federal employees (Schedule G). These employees will engage in policymaking or policy-advocating work. The aim of the new schedule is to “enhance government efficiency and accountability.” The new schedule specifically aims to improve operations at the Department of Veterans Affairs.
May 23, 2025
Restoring Gold Standard Science in America
This EO directs the Office of Science and Technology Policy (OSTP) to issue guidance for agencies within 30 days for adopting new “gold standard” science principles, including that science is reproducible, transparent, collaborative, and without conflicts of interest. Federal agencies shall update their processes and report to OSTP within 60 days about implementation progress. Within 30 days, federal agencies shall also ensure that employees are not engaging in scientific misconduct, publicly report certain data, and communicate uncertainty. The EO states that the Biden Administration politicized science by encouraging agencies to incorporate diversity, equity, and inclusion , and it reinstates previous scientific integrity policies. The Trump Administration encourages American research organizations to adopt these standards.
May 12, 2025
Delivering Most-Favored Nation Prescription Drug Pricing to American Patients
This EO instructs the U.S. Trade Representative and the Secretary of Commerce to ensure foreign countries are not engaged in practices that lead to high drug prices in the United States. Second, the EO instructs the Secretary of Health and Human Services (HHS) to facilitate direct-to-consumer purchasing programs for drug manufacturers that sell their products to Americans at the most-favored-nation price. Third, the EO provides the Secretary of HHS, in coordination with other relevant agencies, 30 days to bring prices for pharmaceutical drugs in line with comparable developed nations. If significant process toward most-favored-nation pricing is not delivered at that time, HHS at that point, in conjunction with the Centers for Medicare and Medicaid Services, must develop rule-making to impose most-favored-nation pricing. Fourth, HHS and the Food and Drug Administration (FDA) must consider certifying that the importation of certain prescription drugs from other developed countries is safe, and if such certification is made, FDA must create a waiver process to allow for the importation of prescription drugs. Fifth, a number of federal agencies, including the Federal Trade Commission, the Attorney General, and the Department of Commerce, are instructed to investigate any anti-competitive practices leading to higher prices. Finally, the FDA is instructed to review and potentially modify or revoke approvals granted for drugs, for drugs that maybe be unsafe, ineffective, or improperly marketed.
May 5, 2025
Improving The Safety and Security of Biological Research
This EO directs the Office of Science and Technology Policy (OSTP), in consultation with HHS, to establish guidance to halt Federal funding of gain-of-function research conducted in certain countries of concern where agencies believe there to be inadequate oversight. The EO directs HHS to include new enforcement terms in every life-science research contract or grant, including a requirement that recipients do not operate or fund gain-of-function research in foreign countries, of which violation would lead to a revocation of funding and up to a 5-year ban of HHS funding. Within 180 days, OSTP shall develop and implement a strategy to limit and track gain-of-function research that occurs in the US without federal funding. OSTP shall also ensure that federal funding recipients have a mechanism to report gain-of-function research, including research funded without federal dollars. Such information shall be made public, along with research funding that has been halted pursuant to this EO.
May 5, 2025
Regulatory Relief to Promote Domestic Production of Critical Medicines
This EO aims to streamline regulations and eliminate barriers to domestic pharmaceutical manufacturing to enhance the timeliness and predictability of agency reviews, making the US more competitive in producing safe and effective medicines. The FDA and EPA are tasked, within 180 days, with reviewing and updating domestic pharmaceutical manufacturing regulations to ensure efficient inspections and approvals of new and expanded manufacturing capacities and to enable US-based manufacturing. Within 90 days, the FDA must develop and advance improvements to the risk-based inspection regime of overseas manufacturing facilities involved in the supply of US medicines, funded by increased fees on foreign manufacturing facilities. The order also designates the EPA as the lead agency for coordinating environmental permits, in coordination with OMB.
April 24, 2025
Strengthening Probationary Periods in the Federal Service
This EO issues a new Civil Service Rule, through the Office of Personnel Management, that will require agencies to approve a probationary employee as a tenured federal employee, instead of an automatic process at the end of a probationary period. Agencies shall consider the employee’s performance and conduct, the needs and interest of the agency, and if the employee’s continued employment would advance the agency’s goals and efficiency. The EO notes it is the responsibility of the employee to demonstrate why their continued employment would serve the public’s interest. Within 15 days of this EO, each agency shall identify employees whose probationary or trial period ends in 90 days or more. Agencies shall meet with probationary employees at least 60 days before their probationary period ends to assess if their employment shall continue, and the agency shall then shall make a decision at least 30 days before a probationary period ends and put the decision in writing.
April 23, 2025
Reforming Accreditation to Strengthen Higher Education
This EO directs the Secretary of Education to deny, monitor, suspend, or terminate accreditation recognition for accrediting agencies if they impose diversity, equity, and inclusion (DEI) requirements as part of their accreditation standards. Additionally, it instructs the Attorney General and the Secretary of Education, in consultation with the Secretary of Health and Human Services, to discontinue DEI-related practices in medical and graduate schools.
April 16, 2025
Ensuring Commercial, Cost-Effective Solution in Federal Contracts
This EO states that agencies should prioritize procurement of commercially available products and services, as opposed to non-commercial goods (such as highly specialized, Government-unique systems, custom-developed products or services, or research and development requirements where the agency has not identified a satisfactory commercial option). It directs agencies within 60 days to conduct a review of all open solicitations and notices for non-commercial products and services, consolidate them into one application, and send it, including the market research and price analysis used to justify the procurement of a non-commercial product or service, to the agency’s approval authority. The approval authority will then make recommendations to advance commercial procurement within 30 days. If an agency is proposing to solicit a non-commercial product or service, the contracting officer shall detail the specific reasons a non-commercial good is needed, and a final decision may be made with consultation from the Office of Management and Budget.
April 15, 2025
Restoring Common Sense to Federal Procurement
This EO notes that the Federal Acquisition Regulation (FAR), which established uniform procedures for acquisitions across agencies, is an overcomplicated regulatory framework, at 2,000 pages. The EO directs agencies and the Office of Federal Public Procurement Policy, within 180 days, to amend the FAR to only include provisions required by statute or essential to sound procurement. The EO notes this will advance the goals of the January EO, Unleashing Prosperity Through Deregulation. Within 15 days, agencies with procurement authority shall designate an official to work on FAR reform and provide recommendations. Within 20 days, the Office of Management and Budget shall issue implementation guidance and propose new agency supplemental regulations and internal guidance that promote expedited and streamlined acquisitions.
April 15, 2025
Lowering Drug Prices by Once Again Putting Americans First
This EO directs HHS within 60 days to propose and seek comment on revisions to the Medicare Drug Price Negotiation Program for initial price applicability in 2028. HHS should also work with Congress to address the timing disparity between small-molecule and biologic drugs, conduct a survey to determine hospital acquisition costs for outpatient drugs and propose adjustments to align Medicare reimbursement with those costs, condition health center grant funding on providing insulin and injectable epinephrine at or below the 340B acquisition cost plus a minimal administrative fee, and address payment incentives that encourage shifting of drug administration volume from physician office settings to hospital outpatient departments. The EO directs the CMS Innovation Center to develop a prescription drug payment model for high-cost Medicare-covered prescription drugs and biologicals, including those outside of the Medicare Drug Price Negotiation Program. The EO directs the FDA to accelerate the review of generics, biosimilars, and over-the-counter conversions and streamline the drug importation program under section 804 of the Federal Food, Drug, and Cosmetic Act to help states reduce costs. The EO directs the Department of Labor to propose new transparency requirements for pharmacy benefit manager compensation under the Employee Retirement Income Security Act of 1974. The EO directs HHS, the Department of Justice, the Department of Commerce, and the Federal Trade Commission to develop recommendations to “reduce anti-competitive behavior from pharmaceutical manufacturers.”
April 9, 2025
Reducing Anti-Competitive Regulatory Barriers
This EO directs agencies to identify regulations that create monopolies, impose unnecessary barriers to market entry, or limit competition and recommend recission or modification. Agencies should send their findings to the Attorney General and the Federal Trade Commission (FTC) within 70 days. The EO also directs the FTC, within 10 days, to issue an RFI seeking public input on anti-competitive regulations and, within 90 days, create a list of anti-competitive regulations to be rescinded or modified. The proposed recissions or modifications could be incorporated into the Unified Regulatory Agenda.
March 20, 2025
Stopping Waste, Fraud, and Abuse by Eliminating Information Silos
This EO requires agencies to ensure federal officials have access to all unclassified agency records, data, software systems, and information technology systems (including data from State programs that receive Federal funding) for purposes of eliminating waste, fraud, and abuse. The goal of the EO is to facilitate intra- and inter-agency sharing of records. The EO also requires agencies, within 30 days, to rescind or modify all agency guidance that serves as a barrier to the inter- or intra-agency sharing of unclassified information and, within 45 days, catalogue classified information policies to assess if they are unnecessarily classified.
March 20, 2025
Eliminating Waste and Saving Taxpayer Dollars by Consolidating Procurement
This EO requires agencies to allow the General Services Administration (GSA) to conduct domestic procurement with respect to common goods and services for the agency. Within 90 days, GSA shall submit a comprehensive plan to OMB for the GSA to procure common goods and services. Further, within 30 days, OMB shall designate the GSA as the executive agent for all Government-wide acquisition contracts for information technology, which GSA can then defer or decline when necessary to ensure continuity of service or as otherwise appropriate. The EO directs GSA, on an ongoing basis, to rationalize Government-wide indefinite delivery contract vehicles for information technology for agencies, including as part of identifying and eliminating contract duplication, redundancy, and other inefficiencies.
March 18, 2025
Achieving Efficiency Through State and Local Preparedness
This EO seeks to expand the role of states and localities in national resilience and preparedness, which will likely have impacts on drug supply chain issues and future pandemic response. The EO directs the Assistant to the President for National Security Affairs (APNSA), in coordination with other relevant agencies, to publish a National Resilience Strategy within 90 days. APNSA should also review critical infrastructure policies (including previous EOs on supply chain) and recommend a risk-informed approach within 180 days. APNSA shall review all national continuity policies and recommend options to modernize and streamline the current approach within 180 days. APNSA shall review the findings of the Federal Emergency Management Agency Council and all national preparedness and response policies and provide recommendations to edit policies so that they can reformulate the process and metrics for federal responsibility within 240 days. APNSA shall also create a National Risk Register within 240 days.
March 14, 2025
Continuing the Reduction of the Federal Bureaucracy
This EO continues efforts to reduce the Federal government. The EO directs certain governmental entities to be eliminated to the maximum extent consistent with applicable law, including the United States Interagency Council on Homelessness, the Community Development Financial Institutions Fund, and the Minority Business Development Agency. Within 7 days of this EO, the head of each governmental entity listed shall submit a report to the Office of Management and Budget (OMB) confirming compliance and explaining which functions of the entity are statutorily required. The EO also directs the OMB to reject funding requests for governmental agencies that do not comply with this order.
March 7, 2025
Restoring Public Service Loan Forgiveness
This EO directs the Secretary of Education to edit the Public Service Loan Forgiveness Program to exclude organizations that engage in “child abuse, including the chemical and surgical castration or mutilation of children or the trafficking of children to so-called transgender sanctuary States for purposes of emancipation from their lawful parents.”
February 26, 2025
Implementing The President’s “Department of Government Efficiency” Cost Efficiency Initiative
This EO requires agencies to build a centralized technological system to record every payment issued by the agency pursuant to each contract and grant, along with a written justification for each payment. The system must include a mechanism to pause and rapidly review any payment for which the approving employee has not submitted a written justification. Agencies, working with their DOGE team lead, shall issue guidance on the written justification requirement. The EO requires all agencies, in consultation with DOGE, to review existing contracts and grants and terminate or modify them to “promote efficiency and advance the policies of the current Administration” within 30 days. Agencies must also review contracting policies, procedures, and personnel and issue guidance on signing new contracts or modifying existing contracts to promote efficiency and the policies of the current administration. The EO also makes changes to non-essential travel justifications and credit cards, along with requiring agencies to submit information on property subject to the agency’s administration.
February 25, 2025
Making America Healthy Again by Empowering Patients with Clear, Accurate, and Actionable Healthcare Pricing Information
The EO references work from the first Trump administration on healthcare price transparency, and it states that the federal government will continue to promote universal access to clear and accurate healthcare prices and will take all necessary steps to improve existing price transparency requirements, increase enforcement of price transparency requirements, and identify opportunities to further empower patients with meaningful price information, potentially including through the expansion of existing price transparency requirements. The EO directs the Departments of Treasury, Labor, and Health and Human Services to “rapidly implement and enforce” price transparency regulations within 90 days. Actions specified include: requiring the disclosure of the prices of items and services, not estimates, issuing updated guidance or proposed regulatory action ensuring pricing information is standardized and comparable across hospitals and plans, and issuing guidance or proposed regulatory action updating enforcement policies designed to ensure compliance.
February 19, 2025
Ending Taxpayer Subsidization of Open Borders
This EO directs agencies to identify all federally funded programs that currently allow undocumented immigrants to obtain cash or non-cash benefits, and take action, consistent with applicable law, to align those programs with existing federal laws, including the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA). It directs agencies to ensure that eligibility verification systems ensure that taxpayer-funded benefits exclude ineligible immigrants. It directs DOGE to identify other sources of federal funding for undocumented individuals and recommend additional agency actions to align with this EO.
February 19, 2025
Commencing the Reduction of the Federal Bureaucracy
In accordance with this EO, HHS shall terminate the Secretary’s Advisory Committee on Long COVID, and CMS shall terminate the Health Equity Advisory Committee. The EO calls for the termination of the Presidential Management Fellows program. This EO also directs non-statutory components and functions of certain foreign affairs governmental entities to be eliminated, as allowed under applicable law, and directs such entities to submit a report stating if components of their entity are statutorily-required.
February 19, 2025
Ensuring Lawful Governance and Implementing the President’s “Department of Government Efficiency” Deregulatory Initiative
This EO directs agency heads to work in coordination with DOGE team leads and OMB to review all regulations subject to their jurisdiction for consistency with law and Administration policy. Within 60 days, agencies shall submit to OMB a list of certain regulations, including those that the agency believes are unconstitutional, are not authorized by statutory authority, and impose undue burdens on small businesses, among other types of regulations. It directs agencies to de-prioritize enforcement actions that enforce regulations that go beyond the powers vested by the Constitution, and ensure enforcement actions are compliant with law and Administration policy. The EO directs OMB to issue implementation guidance.
February 18, 2025
Ensuring Accountability for All Agencies
This EO requires independent agencies, including the Federal Trade Commission, to submit proposed regulations to the Office of Information and Regulatory Affairs (OIRA) before publication in the Federal Register. The EO directs the Office of Management and Budget (OMB) to establish performance standards and management objectives for independent agencies and to review independent agency actions for consistency with the President’s priorities. The EO states that only the President and Attorney General can provide interpretations of law for the executive branch. It directs independent agencies to regularly consult with and coordinate policies and priorities with OMB, DPC, and the White House National Economic Council.
February 18, 2025
Expanding Access to In Vitro Fertilization
This EO directs the Domestic Policy Council (DPC) to submit a list of policy recommendations on protecting IVF access and reducing out-of-pocket and health plan costs for IVF treatment.
February 14, 2025
Keeping Education Accessible and Ending COVID-19 Vaccine Mandates in Schools
This EO directs the Secretary of Education to issue guidelines to elementary schools, local educational agencies, State educational agencies, secondary schools, and institutions of higher education regarding those entities’ legal obligations with respect to parental authority, religious freedom, disability accommodations, and equal protection under law for COVID-19 vaccine school mandates. It directs the Secretary of Education, in consultation with the Secretary of Health and Human Services, to develop a plan to end COVID-19 vaccine school mandates. The plan should also include a list of discretionary Federal grants and contracts provided to schools that are non-compliant with the guidelines issued and each agency’s process for preventing Federal funds from being provided to, and rescinding Federal funds from, entities that are non-compliant with the guidelines.
February 13, 2025
Establishing the President’s Make America Healthy Again Commission
The EO states that agencies that address health must focus on reversing chronic diseases, including mental health disorders, obesity, diabetes, and other chronic diseases. The EO specifically states that all federally funded health research should be transparent and have open-source data, directs the NIH to prioritize research on why Americans are getting sick, directs all agencies to work with farmers to ensure food is healthy and affordable, and directs agencies to ensure expanded treatment options are available, including with flexible health insurance coverage. The EO establishes the President’s Make America Healthy Again Commission, which will be chaired by RFK Jr. The first mission of the Commission will be to address childhood chronic diseases, with actions including studying contributing causes, assisting the President with public education, and providing government-wide recommendations on how to address childhood chronic diseases. Within 100 days, the Commission must submit a Make Our Children Healthy Again Assessment, which should include specific items such as comparing childhood chronic diseases in the US to other countries and reporting on best practices for prevention. Within 180 days, the Commission must submit a strategy on how to restructure the government’s response to childhood chronic diseases.
February 11, 2025
Implementing The President’s “Department of Government Efficiency” Workforce Optimization Initiative
This EO requires agencies to implement a workforce optimization initiative, stating each agency can hire no more than one employee for every four employees that depart and agency heads, in consultation with their DOGE team lead, must develop a hiring plan. The hiring plan requires: new career appointment hiring decisions be made in consultation with the agency’s DOGE team lead; no vacancies for career appointments be filled that the DOGE team lead deems should not be filled unless the agency head decides otherwise; DOGE team leads must provide the US DOGE Service (USDS) Administrator with a monthly hiring report. Agency heads should prepare for large-scale reductions in force (RIFs), particularly in offices that perform functions not mandated by statute and including employees working in DEI initiatives. Agency heads must submit a report identifying statutes that establish the agency, or subcomponents of the agency, as statutorily required entities.
January 31, 2025
Unleashing Prosperity through Deregulation
This EO requires that whenever an agency promulgates a new rule, regulation, or guidance, it must identify at least 10 existing rules, regulations, or guidance documents to be repealed. The Director of the Office of Management and Budget will ensure standardized measurement and estimation of regulatory costs. It requires that for fiscal year 2025, the total incremental cost of all new regulations, including repealed regulations, be significantly less than zero. It is unclear what this 10-to-1 ratio means in practice. A rule, regulation, or a guidance document could be one thousand pages, or it could be one paragraph. It could represent a significant policy, or it could be a minor, technical requirement.
January 28, 2025
Protecting Children from Chemical and Surgical Mutilation
This EO states that the policy of the US is to “not fund, sponsor, promote, assist, or support the so-called “transition” of a child from one sex to another.” The EO directs agencies to rescind or amend any guidance that relies on guidance from the World Professional Association for Transgender Health (WPATH). It directs HHS to publish a literature review on best practices for promoting the health of children who assert gender dysphoria. It directs agencies who provide research or education grants to medical institutions to ensure grantees are not performing any care that is prohibited under this EO. It directs HHS, TRICARE, and the federal employee health benefits program to not cover this care, and it directs HHS to take such action through vehicles such as Medicare or Medicaid conditions of participation, section 1557, or mandatory drug use reviews. It directs the Attorney General to investigate any companies that provide medications related to transition that may have long-term side effects, and urges the Attorney General to pass legislation with Congress that enacts a private right of action for children and their parents.
January 27, 2025
Reinstating Service Members Discharged Under the Military’s COVID-19 Mandate
This EO reinstates service members that were discharged for refusing to comply with the COVID-19 vaccine mandate that was imposed in August 2021 and rescinded January 2023. The EO directs them to be reinstated at their former rank and receive full back pay.
January 24, 2025
Enforcing the Hyde Amendment
This EO revokes two Biden-era reproductive health EOs. The EO also directs the Office of Management and Budget to issue guidance ensuring agencies comply with the Hyde Amendment, which is passed by Congress annually and prohibits federal funding for abortion.
January 23, 2025
Removing Barriers to American Leadership in Artificial Intelligence
The EO directs the Assistant to the President for Science and Technology (APST), the Special Advisor for AI and Crypto, and the Assistant to the President for National Security Affairs (APNSA), in coordination with the heads of relevant agencies, to develop and submit to the President an action plan to achieve the policy set forth in this EO. It also directs those officials to review all policies, directives, regulations, orders, and other actions taken pursuant to the revoked Executive Order 14110 of October 30, 2023 (Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence) and propose suspending, revising, or rescinding any actions inconsistent with this new EO.
January 23, 2025
President’s Council of Advisors on Science and Technology
This EO establishes the President’s Council of Advisors on Science and Technology (PCAST), that will be composed of no more than 24 members and will be co-chaired by the Assistant to the President for Science and Technology (APST) and the Special Advisor for AI & Crypto. The remaining members will be appointed by the President and include individuals and representatives from sectors outside of the Federal Government. The Co-Chairs may designate up to two Vice Chairs of the PCAST from among the non-Federal members of the PCAST. The PCAST will advise the President on matters involving science, technology, education, and innovation policy. Additionally, the PCAST will provide the President with scientific information that is needed to inform public policy relating to the economy, workers, national and homeland security, and other topics. The PCAST will meet regularly and solicit information from stakeholders, along with serving in specified advisory committee and panel roles. It also revokes Biden’s EO of the same name that created his PCAST.
January 20, 2025
Withdrawing the US from the World Health Organization
This EO provides notice of intent to withdraw from the World Health Organization (WHO), citing mishandling of the COVID-19 pandemic and an inability to demonstrate independence from the political influence of WHO member states. It directs the State Department and Office of Management and Budget to pause transfer of funds to the WHO and recall any personnel working in any capacity at the WHO.
Courts Holds FTC Labeling Rule Does Not Preempt California’s Made in USA Statute
Two separate cases recently decided in California federal court considered whether the Federal Trade Commission’s “all or virtually all” “Made in USA” standard is inconsistent with or preempted by California domestic origin claim law and the safe harbors included therein.
In both instances, the courts held that the federal law did not preempt California’s safe harbors for unqualified Made in USA claims. Consult with a Made in USA attorney about the applicability and importance of these recent holdings to marketers and manufacturers.
The California Unqualified Made in USA Safe Harbors
By way of background, California Business and Professions Code § 17533.7 provides that it is unlawful to market a product as “Made in USA” if any part of it is “entirely or substantially made, manufactured, or produced outside of the United States.”
There are two safe harbors pursuant to the California statute that permit promoting a product in an unqualified manner as “Made in UDA” even if it contains some foreign input. A seasoned FTC defense lawyer is able to guide advertisers and manufacturers about the nuances and limitations of the safe harbors.
The first safe harbor exists where the foreign content does not exceed 5% of the product’s final wholesale value. The second safe harbor exists where the foreign input does not exceed 10%, provided that the foreign content cannot be produced or sourced in the United States.
Recent California Court Rulings
Without delving into other pertinent aspects of the cases, including pertinent facts considered by both courts, in McCoy v. McCormick & Co., a magistrate judge held that there exists no inconsistency between California’s safe harbors and the FTC’s “all or virtually all” standard. In Corona v. It’s a New 10, LLC, the court held that the FTC Labeling Rule standard did not preempt California’s safe harbors.
Granted, the FTC “all or virtually all” standard considers other factors, in addition to cost. Compliance with California’s statute does not necessarily mean compliance with the FTC Labeling Rule “all or virtually” all standard.
An experienced Made in USA attorney if you are a manufacturer or reseller interested in implementing preventative compliance protocols in order to minimize liability exposure, or if you have received a Civil Investigative Demand from a governmental agency.
Takeaway: Those that advertise, marketing, label and/or package products that include unqualified express or implied domestic origin claims, including resellers, should take note of these decisions. The decisions should be of particular interest to those that rely upon the safe harbors set forth in California Business and Professions Code § 17533.7. Discretion and risk tolerance may dictate reliance upon the standard that imposes the more onerous requirements. Compliance with the California statute may not necessarily provide protection in the event compliance with the federal “all or virtually all” standard. If you have any questions about “Made in USA” claims or compliant country-of-origin disclosures, contact a seasoned FTC Made in USA attorney that can also assist with the assessment of compliance under both federal and applicable state legal regulations.
If It’s Broken, Please Fix It – The CFTC Proposes to Resolve Compliance Challenges for Swap Dealers
The Commodity Futures Trading Commission (“CFTC” or “Commission”) proposed targeted amendments (“Proposal”) to its business conduct and documentation requirements for swap dealers (“SDs”) on September 24.[1] The Proposal is designed to address long-standing compliance concerns from market participants regarding the application of certain external business conduct standards and swap trading relationship documentation rules, particularly in the context of cleared swaps and prime brokerage arrangements. All of these concerns were previously addressed by CFTC staff through various no-action letters (“NALs”). The Proposal, in large part, seeks to codify the relief set forth in such NALs.[2] Additionally, the Proposal reflects Acting Chairman Caroline D. Pham’s objective of “right-sizing and fixing” the CFTC’s Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank Act”) rulemakings.[3]
Key Features of the Proposal
The Proposal would provide specific exceptions to compliance with certain business conduct and documentation requirements in two main scenarios:
1. Cleared Swaps Executed Contemporaneously with Execution:When parties intend for a swap to be cleared immediately upon execution, the Proposal would exempt swap dealers and major swap participants[4] from certain business conduct and documentation obligations that have been viewed as impeding efficient trading in these circumstances. Among other items, the Proposal includes the following:
CFTC Rule
Title / Requirement
Description of Requirement
Proposal: Treatment for ITBC Swaps (Swaps Intended to Be Cleared)
§ 23.402
General Provisions
Policies and procedures; KYC/true name and owner; reliance on reps; disclosure mechanics; recordkeeping.
Partial exemption. New § 23.402(h) disapplies the KYC/true name and owner for ITBC swaps.
§ 23.431(a)
Disclosure of Material Information
Requires pre-trade disclosure of (i) material risks, (ii) material characteristics, (iii) price, and (iv) conflicts of interest.
Exempt. The Proposal disapplies pre-trade disclosures for A-ITBC swaps (Anonymous ITBC Swaps) ITBC swaps executed on a DCM, SEF, or Exempt SEF.
§ 23.431(a)(3)(i)
Pre-Trade Mid-Market Mark (“PTMMM”)
Requires disclosure of the PTMMM prior to entering a swap.
Fully eliminated. The Proposal removes § 23.431(a)(3)(i) altogether for all swaps (not just ITBC).
§ 23.431(b)
Right to Scenario Analysis
Requires SDs to notify counterparties of their right to request a scenario analysis.
Fully eliminated. The Proposal removes the scenario-analysis disclosure requirement entirely for all swaps, including ITBC.
§ 23.432
Disclosure of Right to Clear a Swap
Requires informing counterparties that a swap may be cleared and how.
Exempt. The Commission notes that for ITBC swaps (and A-ITBC swaps), the counterparty has the present intention to clear the swap prior to execution and thus has no need to receive notice of the right to clear the swap or choose the clearinghouse.”[5]
§ 23.433
Communication Standards
Requires communications to be fair, balanced, and not misleading.
No exemption. Conduct standards remain in effect.
§ 23.434
Recommendations to Counterparties (Suitability)
Requires SDs making swap recommendations to ensure suitability based on counterparty information.
Exempt. The exemption is for (i) A–ITBC Swaps and (ii) ITBC Swaps executed on DCM/SEFs/Exempt SEFs. The Commission explains that standardized cleared swaps have “sufficient information about the pricing and material risks and characteristics of such swaps.”[6]
§ 23.440–23.451
Duties to Special Entities
Include best-interest duties, qualification checks for advisors, and recordkeeping for Special Entities.
Exempt. The exemption is for (i) A–ITBC and (ii) ITBC initiated by a Special Entity on DCM/SEF/Exempt SEF where the SD does not know the counterparty’s Special Entity status.
§ 23.504 (Subpart I)
Swap Trading Relationship Documentation (STRD)
Requires SDs to establish written documentation covering credit support, netting, and valuation before execution.
Exempt. The Proposal exempts ITBC swaps from the § 23.504 documentation requirement.
2. Swaps Subject to Qualifying Prime Broker Arrangements:
For swaps executed under prime brokerage arrangements that meet specified conditions, the Proposal would similarly provide relief from certain requirements that have proven impracticable or impossible to comply with in this context, especially for arrangements established before the implementation of the Commission’s swap rules.
CFTC Rule
Title / Requirement
Description of Requirement
Relief / Exemption for Qualifying Prime Brokerage Arrangements
§ 23.431(a)
Disclosures of Material Information
Requires SDs to disclose material risks, characteristics, price, and conflicts of interest prior to execution.
Exempt. PB/SDs would not be required to provide these disclosures for “Permitted PB Transactions,” so long as (i) the PB Counterparty acknowledges receipt of the PB’s “Regulatory Disclosures,” and (ii) the PB/SD is not aware of facts making its disclosures misleading.[7] PB Counterparties may request updated disclosures in writing before execution.
§ 23.431(a)(3)(i)
Pre-Trade Mid-Market Mark (PTMMM)
Requires SDs to provide a PTMMM before execution.
Fully removed. The Proposal eliminates this for all swaps, making this relief permanent.
§ 23.431(b)
Scenario Analysis Disclosure
Requires SDs to notify counterparties of their right to a scenario analysis.
Fully removed. The Proposal relieves PB/SDs from the obligation to provide scenario-analysis rights.
§ 23.203
Recordkeeping
Requires SDs to maintain complete records of all swap activity.
Partially retained. PB/SDs must maintain a record of (i) the Prime Broker Arrangement and (ii) the counterparty’s acknowledgement until five years after all PB transactions under that arrangement terminate.
§ 23.401(g)
Definition of “Qualifying Prime Broker Arrangement”
Introduces the defined term and qualifying conditions.
New provision. Defines “Qualifying PB Arrangement” and ties relief to conditions such as (a) execution of mirror and trigger swaps, (b) credit intermediation role of PB, and (c) execution in accordance with the customer’s instruction and acknowledgement of disclosures.
Alignment with Existing No-Action Relief; Technical Clarifications
The Proposal is intended to codify and supersede several long-standing no-action positions issued by the Market Participants Division (“MPD”),[8] which have allowed market participants to operate under these exceptions without adverse regulatory consequences. The Commission has observed that these no-action positions have effectively addressed market concerns without negative impact, and the proposed amendments would formalize these outcomes, with some modifications.
CFTC Staff Letter
Topic
Prior No-Action
The Proposal
12-58
Request for Relief Regarding Obligation to Provide Pre-Trade Mid-Market Mark for Certain Credit Default Swaps and Interest Rate Swaps
12-58 excused SDs from providing a PTMMM for specified, liquid untranched CDS indices and standard-term interest-rate swaps when real-time bid/offer pricing was electronically available and counterparties consented in advance.
The Proposal repeals § 23.431(a)(3)(i) in its entirety, eliminating the PTMMM disclosure requirement for all swaps. The Commission found that the PTMMM “provides no useful information to counterparties and delays efficient execution.”[9]Thus, the specific relief originally granted in 12-58 becomes permanent, expanded to all swaps rather than limited to index CDS and interest rate swaps.
13-11
Time Limited Relief for Swap Dealers in Connection with Prime Brokerage Arrangements
13-11 acknowledged that prime brokers (“PBs”) cannot know price or counterparty terms before executing “trigger” and “mirror” swaps and therefore cannot satisfy the PTMMM and scenario-analysis disclosure requirements under § 23.431(a)–(b). It allowed PB SDs to allocate disclosure responsibilities to the executing (“trigger”) SD or, for Exempt FX Transactions, omit the PTMMM and scenario-analysis disclosures altogether.
The Proposal creates a permanent exemption for swaps executed pursuant to prime brokerage arrangements that meet specified qualifying conditions. The Commission expressly recognized the “significant structural and informational hurdles” in PB transactions and determined that long-standing no-action relief “sufficiently addressed these hurdles”[10] with no adverse consequences.Accordingly, the amendments will embed the 13-11 framework directly into the rule text and remove the need for staff-level relief.
13-12
Relief for Swap Dealers and Major Swap Participants Regarding the Obligation to Provide Certain Disclosures for Certain Transactions Under Regulation 23.431
13-12 (revising 12-42) provided that SDs need not disclose a PTMMM for (a) short-tenor physically-settled FX swaps, forwards, or vanilla options among the 31 major “BIS currencies,” and (b) Exempt FX Transactions executed anonymously on non-SEF trading platforms, so long as bid/offer quotes were electronically available and counterparties consented.
Because the Proposal eliminates the PTMMM requirement altogether, all relief in 13-12 becomes moot. The rule recognizes that “the PTMMM Requirement has been unworkable in a wide variety of contexts,”[11] including the FX market, and formally repeals the underlying obligation.
19-06
No- Action Position for Off-SEF Swaps Executed Pursuant to Prime Brokerage Arrangements
19-06 extended the 13-11 relief to PB swaps executed anonymously on a SEF, where PBs could not provide pre-trade disclosures to their customers before execution of the “mirror” swap.
The proposed amendments incorporate 19-06 by expanding the prime brokerage exemption to cover both on- and off-SEF PB transactions. The Commission confirmed that “PB arrangements common in the swaps and Exempt FX Transaction markets… present significant structural and informational hurdles” and that 13-11 and 19-06 “appear to have sufficiently addressed these significant structural and informational hurdles.”[12]
23-01
Revised No-Action Positions for Swaps Intended to be Cleared
23-01 superseded 13-70 and reaffirmed relief for SDs entering into ITBC Swaps—those executed with the intent to clear immediately—where the business-conduct and documentation rules were impracticable and unnecessary. It extended the relief to swaps executed or cleared on Exempt SEFs and Exempt DCOs.
The Proposal creates a rule-based exemption for swaps “intended to be cleared contemporaneously with execution.” The Commission reasoned that standardized cleared swaps already provide transparent pricing and risk information, and that compliance hindered efficient trading of cleared swaps. This codifies and broadens the 23-01 (and 13-70) no-action positions.
25-09
No-Action Position for Swap Dealers and Major Swap Participants Regarding the Obligation to Provide a Pre-Trade Mid-Market Mark under 17 CFR 23.431(a)(3)(i)
25-09 provided industry-wide relief from § 23.431(a)(3)(i) pending Commission rulemaking, citing that the PTMMM does not provide significant informational value, imposes significant operational burdens, and impedes prompt execution.
The Proposal formally eliminates the PTMMM disclosure obligation, achieving the precise regulatory outcome anticipated by 25-09. Upon adoption of the final rule, MPD will withdraw 25-09, 12-58, and 13-12 as moot.
Beyond the primary exceptions, the Proposal includes other technical changes to streamline and clarify the rules.
The Proposal eliminates § 23.431(a)(3)(i) (pre-trade mid-market mark) outright. It then moves “price” and “compensation” disclosures into § 23.431(a)(2) and (a)(3) respectively, adjusting the rule text accordingly.
§ 23.431(b) would be replaced with “[RESERVED]”, removing the notice/right to request scenario analysis (and its embedded methodology elements) from the external business-conduct rule set.
To line up the business-conduct disclosure with Part 45 reporting and the uncleared margin framework, the Commission revises the definition/standard used for the “daily mark” and renumbers current § 23.431(d)(2) to § 23.431(d)(3), so firms can make one valuation calculation that satisfies all three purposes (disclosure, SDR reporting, and VM).
The Proposal standardizes references to “swap entity” (meaning SD) throughout Subpart H and fixes capitalization inconsistencies in the regulatory text.
Key Takeaways
If adopted as final, SDs will have to update compliance controls to address the fact that many of these requirements no longer apply. SDs will also need to update compliance manuals to remove discussions of the vacated requirements as well as cross-references to various staff no-action letters that will be withdrawn.
There are some issues that the industry may want to address in the Proposal, which were particularly troublesome from a compliance perspective in the prior no-action letters. For example, one condition in Letter 23-01 that has proven difficult to practically implement is the condition that if an intended-to-be-cleared (“ITBC”) swap is rejected from clearing, the ITBC swap is deemed void ab initio. It will be interesting to see how the Commission plans to address this and other conditions in prior relief letters in the final rule.
The CFTC is seeking public comment on the Proposal, with a deadline for submissions set for October 24, 2025. Upon adoption of the final rule, the relevant no-action letters are expected to be withdrawn to avoid regulatory overlap.
[1] Proposed Amendments, Revisions to Business Conduct and Swap Documentation Requirements for Swap Dealers and Major Swap Participants, 90 Fed. Reg. 47136 (Sept. 30, 2025), available at: https://www.cftc.gov/sites/default/files/2025/09/2025-18924a.pdf.
[2] As reflected in no-action positions contained in NALs 12–58, 13–11, 13–12, 19–06, 23–01, and 25–09.
[3] Caroline D. Pham, Acting Chairman, CFTC, “Acting Chairman Pham Statement on Spring 2025 Unified Agenda” (Sept. 4, 2025), available at: https://www.cftc.gov/PressRoom/SpeechesTestimony/phamstatement090425.
[4] Currently, there are no major swap participants registered with the Commission.
[5] Supra n.1 at 47149.
[6] Id.
[7] Supra n.1 at 47147.
[8] MPD was formed in October 2020 as part of the CFTC’s reorganization. Before the 2020 reorganization, MPD was known as the Division of Swap Dealer and Intermediary Oversight (“DSIO”).
[9] Supra n.1 at 47140.
[10] Id. at 47140.
[11] Id. at 47141.
[12] Id. at 47140
Competition Currents | October 2025
In This Issue1
United States | Netherlands | Poland | Italy | European Union
United States
A. Federal Trade Commission (FTC)
1. Federal Trade Commission files to accede to vacatur of non-compete clause rule.
On Sept. 5, the FTC announced it had formally abandoned its appeals in two United States Courts of Appeals injunctions against enforcement of its 2024 rule that effectively banned and/or voided all employee non-competes nationwide. Please see the GT Alert FTC Completes Strategy Pivot: Drops Nationwide Noncompete Ban, Targets Individual Cases for more details on this deal.
2. Three directors resign from Sevita board of directors in response to the FTC’s ongoing enforcement efforts against interlocking directorates.
Continuing its focus on Section 8 violations of the Clayton Act (prohibiting interlocking directorates), the FTC announced on Sept. 15 that three board members resigned their positions on the board of directors of Sevita Health in response to FTC Section 8 enforcement. Per the press release, these directors served on the board of each of Sevita and Beacon Specialized Living Services, Inc., with both organizations providing services to individuals with intellectual and developmental disabilities. Of the actions, Daniel Guarnera, director of the FTC’s Bureau of Competition stated: “We are pleased that the firms involved in this case worked with the FTC to resolve this issue quickly. We encourage all firms to review their board memberships to avoid any overlaps with competitors—including when new board members are added as a result of investments by private equity firms or other new shareholders.”
3. FTC recommends anticompetitive regulations for deletion or revision.
On Sept. 16, FTC Chairman Andrew N. Ferguson submitted the agency’s recommendations for reducing anti-competitive regulatory barriers, in response to President Trump’s executive order “Reducing Anticompetitive Regulatory Barriers,” announced in April. The FTC’s recommendations for deletion or modification include: (a) Department of Transportation regulations giving contracting preferences for projects to businesses owned by “socially and economically disadvantaged individuals”; (b) Department of Education regulations permitting colleges to include the cost of textbooks and supplies with annual tuition, covered by financial aid, while noting that students must opt out to avoid these charges, which may raise prices for students and foreclosure of rival book stores; (c) a Consumer Product Safety Commission proposed rule requiring table saws to use finger detection technology, as proposed by the sole patent holder of the finger detection technology, using rulemaking to eliminate competition; and (d) a Forest Service Handbook the Department of Agriculture Forest Service issued establishing eligibility and qualification requirements for administering certain grazing permits, which may inhibit entry by new entrants.
4. FTC and DOJ issue fiscal year 2024 Hart-Scott-Rodino annual report.
On Sept. 17, 2025, the FTC and DOJ released their Hart-Scott-Rodino Annual Report for Fiscal Year 2024 (Oct. 1, 2023-Sept. 30, 2024). In fiscal year 2024, 2,031 transactions were notified under the HSR Act, and the agencies filed a combined total of 32 merger enforcement actions.
5. FTC alters final consent order in response to public comments, preventing coordination in global advertising merger.
On Sept. 26, the FTC announced that at the conclusion of the public comment period, it had approved the final order clearing the way for Omnicom Group’s $13.5 billion acquisition of The Interpublic Group of Companies. The consent order prohibits the combined firm from denying advertising to certain media publishers based on the publisher’s political or ideological viewpoints. Changes to the final order included a clarification of the order’s scope and a compliance monitor.
6. FTC sues Zillow and Redfin over illegal agreement to suppress rental advertising competition.
The FTC announced on Sept. 30 that it (and five state attorneys general) had sued Zillow and Redfin, alleging the parties entered into an illegal agreement that removes Redfin as a competitor in the market for placing advertising of rental housing advertising on internet listing services. According to the complaint, Zillow paid Redfin $100 million to end contracts with advertising customers and help Zillow take over that business, to stop competing in the multifamily rental advertising market for up to nine years, and to serve only as an exclusive syndicator of Zillow listings, essentially making Redfin’s sites duplicates of the listings on Zillow’s. According to the FTC, this arrangement violates antitrust laws by reducing competition, potentially leading to higher prices and worse terms for advertisers and less innovation in services for renters. The complaint seeks to end the agreement and restore competition, possibly through asset-divestiture or reconstructing the businesses.
7. FTC denies petition to reopen EQT, Quantum Energy order.
In October 2023, the FTC approved a final consent order to resolve its antitrust concerns surrounding a deal between private equity firm Quantum Energy Partners and natural gas producer EQT Corporation, where the parties are competitors in the production and sale of natural gas in the Appalachian Basin. Under the consent order, Quantum is prohibited from serving on the EQT board to prevent an interlocking directorate and must sell its EQT shares. The FTC denied a petition seeking to reopen and set aside a final consent order involving a $5.2 billion cash-and-stock deal between Quantum and EQT. In July 2025, the FTC sought public comment on a petition to reopen and set aside the final consent, however, on Sept. 30 the FTC announced it was denying the petition since Quantum did not identify any changes that would justify it.
8. Status of FTC online services during 2025 lapse in funding.
Per the FTC website: “The FTC is closed as of midnight Wednesday, October 1, 2025, due to the lapse in government funding… The Premerger Notification Office (PNO) will remain open to accept filings. PNO staff will be online from 9 am to 1 pm ET each business day. During the shutdown, the PNO will not answer HSR questions or grant early termination. As usual, filings may be submitted at any time, but any filing received after 5 pm ET will be treated as filed on the next regular business day. Waiting periods will be unaffected and run as usual.”
B. Department of Justice (DOJ) Civil Antitrust Division
1. Antitrust Division contributes to efforts to promote prosperity through deregulation.
As discussed above, on Sept. 17, 2025, the DOJ announced its collaboration with the FTC to identify over 125 anticompetitive regulations in response to in response to President Trump’s executive order on “Reducing Anticompetitive Regulatory Barriers.” Of the effort, Assistant Attorney General Abigail Slater stated: “In America we believe in free markets, not central planning by government regulators or powerful monopolists. Lowering barriers to entry by removing anticompetitive regulations will free America’s innovators and entrepreneurs to do what they do best: drive America’s future success.”
2. DOJ and USDA coordinate to protect competition in agricultural inputs.
On Sept. 29, the DOJ and the U.S. Department of Agriculture announced their Memorandum of Understanding (MOU) to partner in promoting free market competition, thereby lowering input costs in key agricultural markets, including feed, fertilizer, fuel, and equipment. The goal is to ensure farmers and ranchers have competitive access to these key agriculture inputs. The MOU establishes regular communication channels and designates personnel from both agencies to work together on these efforts.
3. Georgetown Law 19th Annual Global Antitrust Enforcement Symposium.
On Sept. 16, representatives from both the FTC and DOJ, including FTC Chairman Andrew Ferguson and AAG Slater, participated in Georgetown Law’s 19th Annual Global Antitrust Enforcement Symposium. Ferguson noted the FTC’s continuity from Trump 1.0, including Big Tech cases, and noted Trump 2.0’s plan to return to regular order, such as restoring early termination and a return to remedies in deals. He noted the FTC’s continued interest in labor markets, particularly non-compete agreements in health care. Other panel participants noted a current trend towards fewer new regulations, but aggressive enforcement of the laws currently in effect (with examples including the Robinson-Patman cases continuing as well as interlocking directorate enforcement). Slater gave a speech emphasizing that antitrust laws are the free market laws, and compared data as the new oil (i.e., input affecting many different industries). For her, competitive markets are the key to innovation, with the need for antitrust laws to encourage entrenched firms to innovate rather than exclude. Panelists also discussed continued enforcement of non-competes, and a recommendation for companies to look closely at their non-competes to consider if they are truly necessary, as well as a suggestion for buyers to consider targeted non-compete agreements during merger review. In terms of merger review, the antitrust agencies also have an eye on HSR gamesmanship, including privilege call abuses.
C. U.S. Litigation
1. Gibson, et al. v. Cendyn Group, LLC, et al., Case No. 24-3576 (9th Cir. June 7, 2024).
On Sept. 30, 2025, a proposed class of Las Vegas casino-hotel guests asked the Ninth Circuit to reconsider its prior ruling on their antitrust claims. The proposed class alleged that defendant hotel operators and hospitality software companies conspired to increase hotel room prices. The petition argues an August ruling by the Ninth Circuit “implicitly overruled” its 2003 decision in Paladin Associates Inc. v. Montana Power Co. by not examining whether alleged anticompetitive business agreements between the hotel operators and the software companies allegedly harmed consumers.
2. Cavalleri et al v. Hermes International, et al., Case No. 3:24-cv-01707 (N.D. Cal. March 19, 2024).
On Sept. 17, 2025, Judge James Donato of the Northen District of California dismissed with prejudice a proposed class action that accused Hermes of unlawfully tying the sale of its Birkin handbag to other expensive items. The consumers alleged that Hermes’ practice constitutes illegal tying under federal antitrust law because it conditions the sale of a dominant product (here, the Birkin handbag) on the purchase of another product. Judge Donato, however, found the plaintiffs failed to plausibly allege that Hermes engaged in anticompetitive conduct: “The failure to adequately plead a relevant tying market, market power in the relevant market, and injury to competition in a tied product market, command dismissal of the Sherman Act claims.”
3. CVS Pharmacy, Inc. v. Takeda Pharmaceutical Co. Ltd. et al., Case No. 3:25-cv-07646 (N.D. Cal. Sept. 9, 2025).
CVS Pharmacy Inc. filed a complaint in the Northern District of California on Sept. 9, 2025, alleging that defendant drugmaker Takeda Pharmaceutical Co. Ltd. and other entities engaged in a “horizontal conspiracy and agreement” to restrain competition in the U.S. market for the acid reflux drug Dexilant and its generic equivalents. The complaint alleges Takeda paid TWi Pharmaceuticals Inc. more than $9 million in cash to delay the launch of a generic version of Dexilant for 18 months after Takeda’s key patent on the drug expired and granted TWi exclusive rights to a generic version or its own abbreviated new drug application product. CVS argues this deal was an illegal “reverse payment” in violation of antitrust law that harmed CVS, which was forced to pay higher prices for Dexilant and the generic version that had no competition.
Netherlands
A. Dutch ACM
OptiGroup (via Hygos) cleared to buy Paardekooper assets; ACM also grants standstill waiver.
The Dutch Competition Authority (ACM) has approved OptiGroup’s acquisition of certain Paardekooper packaging assets and granted an exemption from the statutory standstill, allowing the parties to close early. The authority first issued the waiver on Sept. 19, 2025, and followed with the formal clearance decision on Sept. 29, 2025, finding minimal risk to effective competition given the presence of multiple alternative suppliers. This combination of fast-track waiver and unconditional clearance is relatively rare and may provide a useful precedent for time-sensitive deals in fragmented B2B markets.
B. Dutch Court Decisions
1. AG Dutch Supreme Court: recourse for ACM cartel fines within corporate groups may be possible under strict conditions.
On Sept. 19, 2025, the Advocate General (AG) at the Dutch Supreme Court delivered an opinion addressing whether a parent company that has paid a competition law fine the ACM imposes may seek recourse or indemnification from a (former) subsidiary that directly participated in the infringement. The issue arises from a dispute following a corporate restructuring, where the parent sought partial reimbursement of the fine, arguing that the subsidiary had been the operational entity responsible for the anticompetitive conduct.
The AG acknowledged that EU competition law holds undertakings jointly and severally liable but found that Dutch civil law may allow internal recourse under specific circumstances, provided that it does not undermine the deterrent effect of fines. The opinion identifies several potential legal bases, unjust enrichment, tort (onrechtmatige daad), or contractual allocation clauses, but stresses that any claim must be consistent with EU principles of effectiveness and equivalence.
In particular, the AG noted that recourse may be acceptable where the paying entity did not itself participate in the infringement, or where parties had previously agreed on internal risk allocation, but cautioned that courts should prevent “fine shifting” that would weaken enforcement. The case is now before the Dutch Supreme Court, whose ruling may clarify how far corporate groups can redistribute competition law liabilities under Dutch law, a matter of growing importance in follow-up litigation after ACM decisions.
2. Rotterdam District Court upholds ACM’s fine for resale price maintenance and information exchange in consumer electronics.
The District Court of Rotterdam dismissed an appeal by a consumer electronics supplier challenging an ACM fine of €7.94 million for resale price maintenance and horizontal information exchange. The ACM had found that between 2018 and 2020, the supplier coordinated retail pricing of televisions and audio systems through its selective distribution network and monitored compliance via online pricing tools.
The court upheld the ACM’s classification of the conduct as a restriction by object under Article 101(1) of the Treaty on the Functioning of the European Union and Article 6 Dutch Competition Act, stressing that the supplier’s actions went beyond legitimate vertical communications. According to the court, internal correspondence and retailer feedback demonstrated that the company’s pricing instructions eliminated retailers’ autonomy and effectively maintained resale prices across channels. Furthermore, the court agreed with the ACM that the exchanges of market data and pricing feedback between the supplier and retailers amounted to an unlawful flow of competitively sensitive information, further reducing uncertainty in the market. The court found that the ACM had adequately substantiated both the infringement and the proportionality of the fine, noting that no mitigating factors warranted a reduction.
Poland
President of the Polish Office of Competition and Consumer Protection (UOKiK President)
1. UOKiK charges Biedronka over misleading price promotions.
On Sept. 9, 2025, the President of the Polish Office of Competition and Consumer Protection (UOKiK President) brought charges against Jeronimo Martins Polska, operator of the Biedronka supermarket chain, for allegedly presenting promotional prices in a manner misleading to consumers. According to the UOKiK President, some of Biedronka’s bundling offers (such as “buy-one-get-one” or “buy three at a discount”) did not clearly indicate the actual unit price of the products. Prominent price tags displayed the price that only applied when buying two or more items, while the regular single-item price was reduced to fine print. This practice allegedly made it difficult for consumers to understand the actual price of a single product and to compare prices across retailers.
The UOKiK President also alleged so-called “false discounts.” In some cases, reductions were calculated from the current price rather than the lowest price in the preceding 30 days, contrary to the requirements of the EU Omnibus Directive. As a result, consumers were led to believe that savings were greater than they actually were. According to the UOKiK President, in some instances, the “discounted” price was even higher than the lowest price charged in the 30 days prior to the promotion.
The proceedings concern not only the company but also three members of its management board who, according to UOKiK, approved and supervised the design of price labels. The case forms part of UOKiK’s wider enforcement activity around price transparency, in which several other major retailers and platforms have already been investigated.
2. Possible price-fixing in the fruit market.
On Sept. 29, 2025, the UOKiK President announced that it had brought charges against five companies operating fruit collection centers in the Wielkopolska region and against one manager for suspected price-fixing in the purchase of soft fruits such as currants, cherries, and plums. The office believes that between 2022 and 2024, the companies exchanged sensitive price information and applied coordinated prices in their dealings with local farmers. According to the UOKiK President, this might have led to growers receiving artificially lowered prices for their produce over three consecutive harvest seasons.
Evidence was gathered during dawn raids, including at the headquarters of one of the firms. The UOKiK President also inspected several major processors—Austria Juice Poland, Döhler, and Rauch Polska—as well as other collection centers, to determine whether unlawful coordination may also have occurred at higher levels of the supply chain.
If confirmed, the conduct would be recognized as an unlawful price-fixing cartel. The companies may face fines of up to 10% of their turnover, while individuals may be fined up to PLN 2 million. As in other cartel cases, UOKiK reminded market participants of the availability of the leniency program, which offers immunity or significant reductions in fines to the undertakings or managers who come forward with evidence of collusion.
Italy
Italian Competition Authority (AGCM)
1. €5 million fine for ALD Automotive over unfair commercial practices.
The Italian Competition Authority (AGCM) has fined ALD Automotive Italia S.r.l. €5 million for engaging in unfair commercial practices concerning an optional service offered under long-term car rental contracts.
According to AGCM, ALD failed to provide clear and comprehensive pre-contractual and contractual information regarding the nature, key features, and terms of the paid optional service designed to limit liability for vehicle damage. Consumers were not adequately informed that each damage event had to be promptly reported through the company’s online portal to benefit from the liability exclusion.
AGCM also found that the criteria distinguishing between ordinary wear and tear and chargeable damages were not transparently disclosed. Furthermore, AGCM deemed aggressive the practice of charging customers for damages identified only at the end-of-contract vehicle inspection—often minor and not easily visible—thereby preventing customers from relying on the expected liability limitation.
This decision highlights AGCM’s continued focus on transparency and fairness in consumer contracts, especially within the long-term car rental sector.
2. AGCM and CONSOB sign memorandum of understanding to cooperate on shared areas of interest.
On Sept. 16, 2025, AGCM and the Italian Securities and Exchange Commission (CONSOB) entered into a three-year memorandum of understanding aimed at strengthening cooperation in areas of overlapping interest.
Under the agreement, AGCM and CONSOB will exchange mutual referrals when, in the course of their respective investigations, facts emerge that may implicate a breach of the rules and regulations falling within the scope of the jurisdiction of the other authority. They will also periodically share information on their general enforcement strategies and ongoing activities.
Joint efforts may include coordinated fact-finding inquiries, co-prepared submissions to parliament and government on topics of mutual concern, and consultation during investigations launched under either authority’s mandate. A technical working group—composed of relevant office heads from both institutions—will convene as needed to oversee implementation, modification, or extension of the protocol.
The memorandum of understanding also contemplates cooperating in training initiatives and developing shared policy or regulatory proposals, including in cutting-edge areas such as artificial intelligence and crypto assets.
European Union
A. European Commission
The European Commission launches consultation on revised rules for technology transfer agreements.
The European Commission published draft revisions to the Technology Transfer Block Exemption Regulation (TTBER) and its accompanying guidelines and invited stakeholders to submit comments. Technology transfer agreements, such as patent or software licenses, are often pro-competitive because they facilitate the diffusion of innovation, but they may also include restrictions that raise antitrust concerns. The TTBER creates a safe harbor by exempting agreements that comply with specified conditions, aiming to provide legal certainty under Article 101 TFEU.
The proposed updates reflect market changes and recent case law. They include clarifications on market share thresholds (with a longer grace period when parties exceed the limits), modifications to the safe harbor for technology pools to ensure transparency and compliance, and new guidance on Licensing Negotiation Groups to help distinguish legitimate collective bargaining from buyer cartels. For the first time, the guidelines also cover data licensing, reflecting the growing importance of data in innovation and production. Stakeholders have until Oct. 23, 2025, to comment, with final rules expected before the current TTBER expires on April 30, 2026.
B. CJEU Decisions
1. The CJEU clarifies procedural rights and effectiveness in follow-on damages litigation (Case C-253/23, ASG 2 v North Rhine-Westphalia).
The Court of Justice of the European Union (CJEU) delivered its judgment in ASG 2 v North Rhine-Westphalia (C-253/23), a preliminary ruling from the Regional Court of Dortmund concerning the interplay between EU competition law and the Damages Directive (2014/104/EU). The case arose from a follow-on claim in which ASG 2, a special-purpose vehicle, had acquired and bundled damage claims from several sawmills allegedly harmed by a wood procurement cartel. The referring court sought guidance on how national procedural rules governing access to evidence and defendants’ rights of defense must be applied to ensure the effectiveness of Article 101 TFEU.
The CJEU held that national courts must interpret domestic rules on disclosure and burden of proof in a manner that does not make it excessively difficult to enforce competition-law damages. At the same time, defendants retain the right to contest the relevance or confidentiality of evidence, provided that proportionality is observed. The judgment reinforces the need for national courts to strike a careful balance between protecting business secrets and safeguarding claimants’ ability to obtain compensation.
2. The CJEU rules on limitation periods in competition damages actions (Case C-21/24, CP v Nissan Iberia).
On Sept. 4, 2025, the CJEU issued a landmark ruling in CP v Nissan Iberia (C-21/24), interpreting limitation periods for follow-on damages claims under EU competition law. The CJEU held that the limitation period for bringing a civil action cannot begin to run while the underlying infringement decision of a national competition authority is still subject to judicial review (i.e., it may only start when the decision becomes final and binding).
The decision provides clarity for claimants and defendants in member-state courts, ensuring that victims of anticompetitive conduct have a realistic window to seek compensation once administrative proceedings have concluded.
1 Due to the terms of GT’s retention by certain of its clients, these summaries may not include developments relating to matters involving those clients.
Additional Authors: Holly Smith Letourneau, Sarah-Michelle Stearns, Yongho “Andrew” Lee, Alexa S. Minesinger, Alexander L. Nowinski, Nicole Ring, Miguel Flores Bernés, Rocío Olea Salgado, Valery Dayne García Zavala, Hans Urlus, Dr. Robert Hardy, Chazz Sutherland, Manish Das, Johnny Shearman, Robert Gago, Filip Drgas, Paweł Fortuna, Ewa Głowacka, Edoardo Gambaro, Pietro Missanelli, Martino Basilisco, Yuji Ogiwara, Mitsuru Tadatsu, Mari Arakawa, Tomoharu Tazumi, Philip Ruan, and Dawn (Dan) Zhang.
China Expands Export Control on Rare Earth Minerals and More
On October 9, 2025, China’s Ministry of Commerce (MOFCOM) announced two new decrees (the “New Rules”) significantly expanding and strengthening export controls over the rare earth supply chain: Decree No. 61 primarily targets foreign-made rare earth metals and products, while Decree No. 62 focuses on the control of rare earth-related technology.
The New Rules broaden the scope of China’s rare earth export controls from metals and products to include related technology, services and support, as well as extends the reach from Chinese-origin rare earths to include foreign-made products containing Chinese-origin rare earths, or products manufactured using Chinese technology. Some of these concepts are novel to China’s export control policy but should be familiar to those acquainted with the US Export Administration Regulations (EAR).
MOFCOM mentioned in a press conference that since China initiated the rare earth export control in April, some foreign entities were discovered to have directly, or after processing, transferred Chinese-origin controlled rare earth items to certain organizations and individuals, which have been used directly or indirectly in military and other sensitive fields. The Chinese law enforcement authorities have also discovered instances where some foreign entities illegally obtained rare earth technology from China, produced rare earth-related items and supplied them to users in military and other sensitive fields. These New Rules are designed to counter such circumvention and safeguard national security.
It is worth noting that on the same day, MOFCOM released another four decrees to impose export control on (i) certain rare earth manufacturing equipment and related materials and components, (ii) five rare earth minerals, i.e., Holmium, Erbium, Thulium, Europium, Ytterbium and related materials, (iii) certain materials and components relating to lithium batteries and artificial graphite anode materials and (iv) certain superhard materials; and a fifth decree to place 14 companies to China’s Unreliable Entity List.
Control of Foreign-Made Products – Extraterritorial Application
Products Subject to Export Control
The New Rules, for the first time, extend China’s export control authority to foreign-made products. The following items produced outside of China are now subject to Chinese export controls:
Part Two Items (downstream products like specific magnets and sputtering targets) [1] that contain, incorporate or intermingles with Chinese-origin Part One Items (specific metals and oxides), where the value of the Part One Items accounts for 0.1% or more of the total value of the Part Two Items
Part One Items and Part Two Items produced using Chinese-origin technology related to rare earth mining, smelting and separation, metal refining, magnetic material manufacturing and rare earth secondary resource recycling
Licensing Requirement
Foreign exporters must obtain a dual-use item export license from MOFCOM before exporting the above items to countries and regions other than China. It remains unclear whether “export” here includes in-country transfer (transfer to another party within the same country) or is limited solely to transfer from one country to another.
Compliance Notification Letter
Both the initial Chinese exporter and subsequent foreign exporters must issue a compliance notification letter (in MOFCOM’s unified format) to their respective customers and end-users. This letter will inform the customer that the product contains Chinese-origin rare earths and that the export of subsequent products manufactured using this material requires a Chinese export license.
Effective Date
These rules will take effect on December 1, 2025.
2. Export Controls on Rare Earth Technology
The New Rules bring almost all rare earth-related technologies under export control, including:
Technologies and their carriers related to rare earth mining, smelting and separation, metal refining, magnetic material manufacturing and rare earth secondary resource recycling (Control Code: 1E902.a)
Technologies related to assembly, debugging, maintenance, repair and upgrade of production lines for the activities listed above (Control Code: 1E902.b)
The regulations further clarify that “export” not only refers to transfer from China to outside of China, but also includes providing technology to foreigners within or outside China through any means of transfer or provision, such as intellectual property (IP) licensing, investment, exchange, consulting, joint research and development (R&D), employment, etc.
3. Restrictions on Foreign Rare Earth Activities (End-use Control)
The New Rules implement an end-use restriction for foreign rare earth-related activities (as opposed to being solely based on the items). This means that even if the item involved is not a controlled item, its export is still subject to control if it is used in rare earth-related activities abroad.
Specifically, if an exporter knowingly exports non-controlled goods, technology and services that would be used for or substantially contributes to foreign rare earth mining, smelting and separation, metal refining, magnetic material manufacturing or rare earth secondary resource recycling activities, the exporter must apply to MOFCOM for a dual-use item export license.
4. Restrictions on Chinese Persons’ Participation in Foreign Rare Earth Activities
Also similar to relevant Bureau of Industry & Security (BIS) rules, the New Rules prohibit Chinese citizens and organizations from providing any substantive assistance and support for foreign rare earth mining, smelting and separation, metal refining, magnetic material manufacturing or rare earth secondary resource recycling activities without a license.
5. Case-by-Case Review of Advanced Semiconductor and AI Uses
Similar to restrictions imposed by the US BIS on China’s advanced semiconductor industry, the New Rules stipulate that export applications for the following end-uses relating to advanced chips and artificial intelligence (AI) will be subject to a case-by-case review by MOFCOM. This means that all relevant export applications (including rare earths and all other items subject to Chinese export control) will face stricter scrutiny:
R&D or production of logic chips at 14 nanometers and below
R&D or production of memory chips at 256 layers and above
Manufacturing equipment, testing equipment and materials for manufacturing the aforementioned process node semiconductors
R&D of AI with potential military uses
6. The 50% Rule
The New Rules introduce a rule similar to the US Office of Foreign Asset Control’s (OFAC’s) 50% Rule, and the recent BIS Affiliates Rule, stating that export applications to importers and end-users listed on the MOFCOM’s Export Control Watchlist （管控名单）and Concern List（关注名单） (including their subsidiaries, branches and other affiliates where they hold 50% or more of the controlling equity) will be denied in principle.
[1] Part Two Items under Decree No.61:
I. Rare Earth Permanent Magnet Materials
Samarium-Cobalt (SmCo) permanent magnet materials.
Terbium-containing (Tb) Neodymium-Iron-Boron (NdFeB) permanent magnet materials.
Dysprosium-containing (Dy) Neodymium-Iron-Boron (NdFeB) permanent magnet materials.
Parts, components, and assemblies containing any of the above materials.
II. Rare Earth Sputtering Targets
Targets containing Samarium (Sm): a. Samarium targets. b. Samarium-Cobalt alloy targets. c. Samarium-Iron alloy targets.
Targets containing Gadolinium (Gd): a. Gadolinium targets. b. Gadolinium-Iron alloy targets. c. Gadolinium-Cobalt alloy targets.
Targets containing Terbium (Tb): a. Terbium targets. b. Terbium-Cobalt alloy targets. c. Terbium-Dysprosium-Iron alloy targets.
Targets containing Dysprosium (Dy): a. Dysprosium targets. b. Terbium-Dysprosium-Iron alloy targets.
Lutetium (Lu) targets.
Scandium (Sc) targets.
Targets containing Yttrium (Y): a. Yttrium targets. b. Yttrium-Aluminum alloy targets. c. Yttrium-Zirconium alloy targets.
OSHA and OSHRC in Transition, Part I- Early and Evolving Constitutional Challenges
The Occupational Safety and Health Administration (OSHA) and the Occupational Safety and Health Review Commission (OSHRC) emerged from the Occupational Safety and Health Act of 1970 to address widespread concerns about workplace safety. The statute reflects a deliberate structural choice: OSHA operates within the U.S. Department of Labor (DOL) as an executive enforcement and rulemaking agency, while OSHRC functions as an independent, adjudicatory commission to ensure impartial review of OSHA citations. From inception, this bifurcated design raised separation-of-powers questions central to administrative law: how far the U.S. Congress may insulate adjudicators from presidential influence, the extent to which it may delegate policymaking discretion to the executive, and the constitutional limits governing agency adjudication and the right to a jury trial.
Quick Hits
Humphrey’s Executor v. United States, decided in 1935, has long supported the independence of agencies like OSHRC.
Recent Supreme Court decisions are reshaping the legal status and enforcement mechanisms of OSHA and OSHRC.
For nearly a century, the constitutional legitimacy of independent agencies has rested on the Supreme Court of the United States’ decision in Humphrey’s Executor v. United States. In that 1935 decision, the Court upheld for-cause removal protections for commissioners of the Federal Trade Commission (FTC) on the theory that Congress may shield officials who exercise quasi-legislative and quasi-judicial functions from at-will presidential removal. Humphrey’s Executor distinguished purely executive officers, who remain subject to unrestricted presidential control, and thereby furnished the legal foundation for independent commissions across the administrative state, including OSHRC. Although OSHA, as an executive agency, does not directly depend on Humphrey’s Executor for its structure, the decision’s logic sustained the broader framework in which Congress delegated substantial policymaking and enforcement authority to agencies outside direct political control.
Early constitutional challenges to OSHA focused on the nondelegation doctrine, due process, and the separation of functions. In Industrial Union Department, AFL-CIO v. American Petroleum Institute, the Supreme Court narrowly construed OSHA’s standard-setting authority without invalidating the OSH Act, signaling unease with open-ended delegations while declining to revive a robust nondelegation regime. Courts likewise rejected claims that OSHA’s enforcement role and OSHRC’s adjudicatory function impermissibly commingled prosecutorial and judicial power, emphasizing statutory and procedural separations designed to preserve fair process.
Humphrey’s Executor has long anchored judicial approval of OSHRC’s independence. OSHRC’s multimember composition, appointment with Senate confirmation, and for-cause removal protections were understood to promote neutral adjudication, aligning the commission with the FTC template. Yet modern jurisprudence has narrowed Humphrey’s Executor’s scope. In Free Enterprise Fund v. Public Company Accounting Oversight Board, the Court invalidated dual layers of for-cause removal protection, underscoring the president’s duty under Article II of the U.S. Constitution to ensure faithful execution of the laws. In Seila Law LLC v. Consumer Financial Protection Bureau, the Court struck down for-cause removal protection for a single-director agency, characterizing Humphrey’s Executor as a “narrow exception” limited to multimember expert bodies that do not wield substantial executive power.
More recently, the Court’s decision in U.S. Securities and Exchange Commission v. Jarkesy has sharpened Article III and Seventh Amendment concerns. Where an agency seeks civil penalties for claims analogous to common law causes of action, the Constitution may require adjudication before an Article III court with a jury. Although Atlas Roofing Co. v. Occupational Safety and Health Review Commission once sustained administrative adjudication in the OSHA context as involving public rights, Jarkesy signals a willingness to revisit the contours of administrative enforcement and the boundary between public and private rights. These developments, coupled with litigation questioning multiple layers of administrative law judge (ALJ) removal protection and the U.S. Department of Justice’s evolving litigation posture, have reconfigured the terrain for constitutional challenges to OSHA and OSHRC.
In this first part of a two-part series on OSHA’s and OSHRC’s future direction, we have traced the statutory design of OSHA and OSHRC, the stabilizing role of Humphrey’s Executor, and the early constitutional challenges that shaped the agencies’ operational baseline. With this foundation established, we turn next to the modern wave of litigation and Supreme Court decisions that are reshaping the legal status of independent adjudication, presidential removal power, and the right to a jury trial in administrative enforcement. The doctrinal pillars that once secured OSHA and OSHRC now face sustained pressure from recent Supreme Court decisions and lower court rulings; Part II of this series analyzes these contemporary challenges and their implications for the future structure and enforcement mechanisms of workplace safety regulation.