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Dissenting Statement of Christine S. Wilson

Notice of Proposed Rulemaking: Energy Labeling Rule

December 10, 2018

I dissent from the Commission’s decision to issue a Federal Register Notice seeking 

comment on the proposed changes to the Energy Labeling Rule. I appreciate that 

staff undertook this Rule review to improve its organization and clarity. Moreover, I 

understand that the Commission is required by statute to issue a rule governing the 

energy labeling of appliances.1 I question, however, whether it is necessary for the 

Rule to prescribe the weight of the paper (58 pounds per 500 sheets) a manufacturer 

must use when printing the EnergyGuide label and the minimum peel capacity of the 

adhesive it must use to affix the label to the appliance. I believe this Commission 

should review its roster of rules with a deregulatory mindset. Consequently, the 

Commission should use this opportunity to rethink its approach to the scope and detail 

of this Rule’s requirements.

Freeing businesses from unnecessarily prescriptive requirements benefits consumers. 

Airlines are one oft-quoted example. In the late 1970s, Alfred E. Kahn was appointed 

to run the Civil Aeronautics Board, which at that time regulated both price and nonprice aspects of competition, including airline routes, fares, and schedules. 

Regulations even went so far as to specify the size of sandwiches served in flight.

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Soon after taking office, Kahn recommended disbanding the agency, and Congress 

agreed.3 The changes were dramatic: inflation-adjusted round-trip airfares roughly 

halved over the next 30 years.4 On some routes, prices fell even further. For 

example, the minimum inflation-adjusted price an airline could charge between New 

York and Los Angeles was $1,442 in 1974; consumers now routinely pay less than 

$300.5

Although deregulating energy labeling pales in comparison to Kahn’s comprehensive 

deregulation of the airline industry, the same principle – to leave firms room to 

experiment within the bounds set by applicable law – applies here. For example, a 

manufacturer with particularly impressive energy conservation statistics might wish to 

 

1 Energy Policy and Conservation Act, 42 U.S.C. 6295.

2 Interview with Alfred E. Kahn, Professor Emeritus of Economics, Cornell University, available at 

https://www.pbs.org/fmc/interviews/kahn.htm (“Since the airlines could not compete in price, they 

competed in quality. . . . Instead of competing on the meals that they gave and free in-flight 

entertainment, under regulation, internationally, that was prohibited, because that was another kind of 

competition. So they actually regulated the size of sandwiches in the international routes.”).

3 The CAB’s micromanagement of airlines’ operations – up to and including sandwich sizes – led thenCAB Chairman Kahn, later the “Father of Deregulation,” to ask “Is this what my mother raised me to 

do?” See HERBERT HOVENKAMP, THE OPENING OF AMERICAN LAW: NEOCLASSICAL

LEGAL THOUGHT, 1870-1970, at 321 (2015) (providing quote without attribution); see also Nancy 

L. Rose, In Remembrance of Alfred E. Kahn: Fred Kahn’s Impact on Deregulation and Regulatory 

Reform, 102 Am. Econ. Rev. Papers & Proceedings 376 (2012).

4 See, e.g., Derek Thompson, How Airline Ticket Prices Fell 50% in 30 Years (and Why Nobody 

Noticed), The Atlantic, Feb. 28, 2013, https://www.theatlantic.com/business/archive/2013/02/howairline-ticket-prices-fell-50-in-30-years-and-why-nobody-noticed/273506/

5 Id.
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trumpet that achievement with a larger and more detailed graphic. A manufacturer 

with less impressive statistics must of course satisfy its baseline labeling obligations. 

Surely, we as a Commission can provide guidance on labeling requirements without 

dictating minutia involving the type of paper and adhesive employed. 

In short, I support fulfilling the statutory mandate that Congress has imposed, but 

cannot vote to issue the Rule in its present form. As it stands, the Rule is laden with 

many additional commandments that go far beyond what is necessary to fulfill our 

obligation under the relevant statute. Although the Commission long ago abandoned 

some of the most egregious instances of invasive regulatory zeal that earned it the 

sobriquet of the “second most powerful legislature in Washington,”6forswearing new 

mistakes is not enough. We must also revisit and pare back existing regulatory 

excesses, including some of the requirements contained in this rule.

 

6 See, e.g., J. Howard Beales III & Timothy J. Muris, FTC Consumer Protection at 100: 1970s Redux 

or Protecting Markets to Protect Consumers?, 83 Geo. Wash. L. Rev. 2157, 2159 (2015) (quoting Jean 

Carper, The Backlash at the FTC, Wash. Post, Feb. 6, 1977, at C1).