Agency Publicity in the Internet Era

Administrative Conference of the United States (ACUS)

REPORT

This report was prepared for the consideration of the Administrative
Conference of the United States. The opinions, views, and
recommendations expressed are those of the author and do not necessarily
reflect those of the members of the Conference or its committees, except
where formal recommendations of the Conference are cited.

September 25, 2015

Consultant:
NATHAN CORTEZ
Adelfa Botello Callejo Endowed Professor
of Law in Leadership & Latino Studies,
Associate Dean for Research
Southern Methodist University
Dedman School of Law
ncortez@smu.edu

CONTENTS
I. EXECUTIVE SUMMARY .................................................................................................1
A. Traditional Publicity and Conference Recommendation 73-1 ...................................1
B. Modern Challenges.....................................................................................................2
C. Methodology ..............................................................................................................2
D. Findings ......................................................................................................................3
E. Recommendations for Reform ...................................................................................4
II. TRADITIONAL PUBLICITY AND RECOMMENDATION 73-1 ..............................6
A. Defining “Agency Publicity” .....................................................................................6
B. Why Agencies Issue Publicity ....................................................................................7
1. To Inform or Warn ..............................................................................................7
2. To Pressure or Sanction ......................................................................................8
C. Problematic Publicity .................................................................................................9
1. Premature Publicity .............................................................................................9
2. Excessive Publicity .............................................................................................10
3. Publicity as a Sanction ........................................................................................10
4. Inaccurate Publicity.............................................................................................11
D. Recommendation 73-1 ...............................................................................................12
E. Implementation of Recommendation 73-1 .................................................................13
III. MODERN PUBLICITY ...................................................................................................14
A. More Ways to Issue Publicity.....................................................................................15
1. Agency Websites.................................................................................................15
2. Social Media .......................................................................................................16
3. Agency Databases ...............................................................................................17
B. More Agency Incentives to Use Publicity ..................................................................21
C. More Opportunities to Misinterpret Publicity ............................................................23
D. Hyper-Responsive Capital Markets ............................................................................25
E. Information/Data Quality Act.....................................................................................27
IV. CASE STUDIES................................................................................................................30
A. U.S. Food and Drug Administration (FDA) ...............................................................30
B. U.S. Federal Trade Commission (FTC) .....................................................................49
C. Consumer Financial Protection Bureau (CFPB) ........................................................62
V. RECOMMENDATIONS FOR UPDATED REFORMS ................................................76
A. Improving Agency Practices ......................................................................................76
1. Written Policies ...................................................................................................77
2. Publication of Policies.........................................................................................81
3. Advanced Notice to Subjects ..............................................................................81
4. Corrections and Retractions ................................................................................83
5. Publicizing Investigations, Complaints, and Other Preliminary Actions ............84
6. Timing Announcements to Avoid Capital Market Shocks .................................89
7. Social Media Announcements.............................................................................90
8. Procedures Governing Database Disclosures......................................................93
9. OMB Clarifications to the Scope of the Information Quality Act ......................99
10. Review by an Ombudsman, Inspector General, or the GAO ..............................100
B. Statutory Reforms.......................................................................................................102
C. Judicial Review Reforms............................................................................................104

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I. EXECUTIVE SUMMARY
A. Traditional Publicity and Conference Recommendation 73-1
In June 1973, the Administrative Conference of the United States (ACUS) adopted
Recommendation No. 73-1, Adverse Agency Publicity. 1 The Recommendation
responded to several well-known incidents in which a press release or other agency
announcement caused significant damage to a product, company, or even an entire
industry. ACUS called for each agency to adopt published rules that “balance the need
for adequately serving the public interest and the need for adequately protecting persons
affected by adverse agency publicity.” 2 These rules, according to the recommendation,
should require that publicity (1) be accurate and not disparaging, (2) announce
investigations and other pending actions only in carefully prescribed circumstances, (3)
fulfill an authorized purpose, (4) disclose when any information has a limited basis and
give parties advanced notice when practicable, and (5) be corrected or retracted when
erroneous or misleading. 3 By the late 1970s, only three agencies had created such
rulesthe Federal Power Commission (FPC), the Securities and Exchange Commission
(SEC), and the Department of Health, Education, and Welfare (HEW). 4 Nine other
agencies claimed that their internal procedures complied with the “spirit” of
Recommendation 73-1, though they did not adopt rules. 5 Two agencies, the
Environmental Protection Agency (EPA) and the Nuclear Regulatory Commission
(NRC), took the position that their practices accorded with the Recommendation 73-1,
but objected to some of the recommendations and otherwise refused to implement the
recommendation. 6 Implementation by other agencies was undetermined at the time.
Decades later, I renewed the call for standards after finding that many of the same risks
reported by Professor Ernest Gellhorn still persisted. 7 Agency announcements can be
essential to protect consumers and allow consumers to make smarter, more informed
decisions. And agencies are often authorized, or even required, by statute to issue
publicity. However, like agencies in the 1960s and 1970s, modern agencies occasionally
issue publicity that is inaccurate, misleading, premature, excessive, or used to sanction
regulated parties rather than inform the public. Moreover, like Gellhorn, I found that
agency practices were not subject to many meaningful external constraints by courts or
by Congress, though many agencies themselves have adopted internal procedures
governing their practices.
1

38 Fed. Reg. 16,839 (Jun. 27, 1973); codified at 1 C.F.R. § 305.73-1(a).
Id.
3
Id.
4
18 C.F.R. §§ 1.6, 1.36; SEC Administrative Regulations §§ 161 et seq.; 45 C.F.R. pt. 17.
5
Letter from G. William Frick, EPA General Counsel, to Robert A. Anthony, ACUS Chairman, of
June 9, 1977 (on file with ACUS); Letter from Marcus A. Rowden, NRC Chairman, to Robert A. Anthony,
ACUS Chairman (May 31, 1977) (on file with ACUS).
6
Id. at 27.
7
Nathan Cortez, Adverse Publicity by Administrative Agencies in the Internet Era, 2011 B.Y.U. L.
REV. 1371 (2011); Ernest Gellhorn, Adverse Publicity by Administrative Agencies, 86 HARV. L. REV. 1380
(1973).
2

1

B. Modern Challenges
My research also identified a number of challenges posed by modern agency publicity.
Though agencies continue to issue traditional press releases, agencies now also rely
heavily on modern, Internet-based disclosures. Today, agencies publish massive amounts
of adverse information about regulated parties or products on their web sites, and
increasingly use social media and searchable online databases to amplify this information.
Encouraged by recent “open government” initiatives, 8 agencies use information
disclosure not just to enhance government transparency, but to pursue regulatory aims.
Thus, my research finds that agencies have many more ways and perhaps more incentives
to issue publicity than in 1973. I also find that modern forms of publicity are, in some
instances, written, presented, and disseminated in ways that could increase the risk that
audiences will misinterpret the information. Moreover, hyper-responsive capital markets
now respond more swiftly and perhaps more hastily to agency announcements, regardless
of whether the information is accurate or interpreted correctly. Very few statutes address
modern agency disclosures, and it is unclear how laws like the Information Quality Act
(IQA) 9 might apply. As such, old problems with agency publicity are occurring in new
forms.
C. Methodology
The findings and recommendations in this Report are the product of a methodology
developed in conjunction with Conference staff. The foundation is my 2011 article,
Adverse Publicity by Administrative Agencies in the Internet Era, 10 which itself owes
much to Gellhorn’s 1973 study. 11 Added to this foundation was the following research:
• A literature review for articles published since my 2011 article.
• A review of Conference files related to Recommendation 73-1.
• A survey of federal judicial opinions involving challenges to agency publicity.
My 2011 article identified 26 relevant opinions since 1973. 12 Appendix C,
attached, includes a list of 33 such opinions published between 1974 and 2014,
representing 30 unique cases. The chart features a description of the relevant facts
and holdings in each case.
• A survey of agency databases that contain negative information about identified
products or parties, compiled with the help of Conference staff, at Appendix E.
• A survey of agency publicity policies and practices, culled from the literature,
from case law, and from agency publications and web sites.
8

See, e.g., Presidential Documents, Memorandum on Transparency and Open Government, 74 Fed.
Reg. 4683, 4685 (Jan. 21, 2009).
9
Treasury and General Government Appropriations Act for Fiscal Year 2001 § 515, Pub. L. No. 106554, 114 Stat. 2763, 2763A-153-54 (2001), codified at 44 U.S.C. § 3516.
10
Cortez, supra note 7.
11
Gellhorn, supra note 7.
12
Cortez, supra note 7, at 1375.

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• Detailed case studies of three agencies, the Food and Drug Administration
(FDA), the Federal Trade Commission (FTC), and the Consumer Financial
Protection Bureau (CFPB).
• Interviews of 18 individuals, including officials from all three agencies, and
representatives from both industry and consumer groups, as listed in Appendix B.
• A survey of agency guidelines promulgated pursuant to OMB’s guidelines
implementing the Information Quality Act (IQA), compiled with the help of
Conference staff, attached as Appendix G.

Yet, despite these efforts, we were not able to survey all agencies or all publicity
practices. The sheer number of agencies and the number and complexity of the issues
prohibit a comprehensive survey. The three case studies were chosen to represent a range
of agency practices, given their discrete regulatory missions. Of course, these agencies
may not capture the full range of practices by all agencies. We did survey a much broader
range of agencies wherever practicable. For example, Appendix E (Sample of Agency
Databases) and Appendix G (Agency IQA Guidelines) were created after surveying
nearly all federal agencies.
D. Findings
From this research emerge several key findings that inform the recommendations below:
Publicity is more voluminous and varied now. Although agencies still rely on press
releases and other traditional forms of publicity, the volume of such announcements is
dwarfed by the volume of information about regulated parties that agencies publish
online, using their web sites, social media, searchable databases, and other electronic
means. In fact, the use of massive, searchable, online databases has become increasingly
popular in recent years, and may soon eclipse other forms of disclosure as the preferred
tool for agencies. Thus, what I call “modern publicity” tends to be written, presented, and
disseminated in ways that could magnify the issues associated with traditional publicity.
Agency rationales have evolved. Although agencies still use publicity to inform and warn
the public, and infrequently to sanction a regulated party, agency rationales have evolved.
Both agencies and open government initiatives invoke transparency as a dominant
justification. Some agencies even cite the First Amendment concept of “the marketplace
of ideas” as a justification for broad disclosures. Thus, agencies today seem to use
modern forms of publicity less as a targeted sanction and more as a diffuse tool to
encourage industry-wide compliance and achieve other regulatory aims. The burdens of
disclosure tend to be much more marbled and less concentrated on a specific party.
Challenges have evolved. Modern publicity still raises the same concerns as in 1973.
Although not frequently abused, agency publicity still can be premature, excessive,
misleading, inaccurate, or used in coercive ways. Today, modern publicity is more
voluminous, more varied, and more likely to be misprocessed by Internet audiences,
including capital markets. Thus, as information disclosure has become a preferred

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method among agencies, it has also become more difficult to manage. Many agencies
must maintain multiple internal organizations dedicated to public affairs, media relations,
social media, and FOIA. Many also maintain Chief Information Officers (CIOs). 13 Given
emerging agency capabilities, and given the longstanding concerns with agency publicity,
it is more important than ever for agencies to maintain clear policies and procedures.
Agency practices. My research shows that agencies seem to be sensitive to the power of
agency publicity and the need to ensure accuracy. The three agencies examined all have
multiple layers of review and approval for traditional announcements, and these layers
are designed to ensure accuracy above all else. Not all agencies publish their internal
policies and procedures, however. Agency practices vary on announcing investigations,
complaints, and other pending agency actions, though most agencies acknowledge the
problems with announcing that an agency has initiated an investigation (as opposed to
concluding one). Finally, agencies report receiving few objections to their press releases
or similar announcements, though perhaps this is due to the lack of clear procedures for
registering objections. (Moreover, instances rarely are documented by the media or via
litigation, but off-the-record conversations indicate that regulated parties still view some
agency announcements as problematic or unfair.) Most agencies do not have clear
procedures for requesting corrections or retractions to publicity, for example.
Informal customs predominate. Although some agencies have robust written policies and
procedures governing their publicity practices, other agencies rely on informal custom
and tradition. However, informal customs can break down, and even agencies staffed
with professionals of immense goodwill can benefit from clear written policies and
procedures. Moreover, many agencies fail to publish their policies or otherwise explain
how the subjects of publicity can seek recourse. Again, these problems predate (and
partially motivated) Recommendation 73-1. There seem to be few written policies and
procedures governing agency databases (with the notable exception of the CFPB’s
Consumer Complaint Database), even if the database is authorized by statute. Moreover,
although agency use of social media is subject to dozens of federal guidelines published
by the Office of Management and Budget (OMB) and the General Services
Administration (GSA), 14 these guidelines largely ignore the longstanding problems posed
by agency publicity, focusing instead on privacy, security, and technical considerations.
E. Recommendations for Reform
I considered recommendations directed to all three branchesexecutive, legislative, and
judicial. Most important are the recommendations to agencies. I urge agencies to make
their publicity practices more transparent and to conform not only to existing law, but
also to principles of good governance. The recommendations to Congress are mostly to
13

See CIO.gov, Members, https://cio.gov/about/members/ (displaying almost 50 different agency Chief
Information Officers (CIOs) that are members of the U.S. Chief Information Officer and Federal CIO
Council, established by Executive Order 13011 and codified by the E-Government Act of 2002) (last
visited Aug. 7, 2015).
14
General Services Administration, DigitalGov, Checklist of Requirements for Federal Websites and
Digital Services, http://www.digitalgov.gov/resources/checklist-of-requirements-for-federal-digitalservices/ (last visited June 11, 2015).

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clarify existing law, particularly the scope of the Information Quality Act. Finally, after
much careful thought, and a change of opinion, 15 I do not recommend judicial review of
agency publicity absent the exceptional circumstances already recognized by courts.
Improving agency practices. Several groups, both in and out of agencies, said they would
support the Conference recommending best practices for agencies. 16 Based on my
research, and based on these discussions, I recommend the following ten best practices:
1. Written policies. Agencies should adopt written policies that address the content of agency
announcements and the procedures for issuing them.
2. Publication of policies. Agencies should publish their written policies online.
3. Advanced notice. Agencies should give advanced notice to subjects identified in publicity,
but only when the subject is not already aware of an ongoing agency action, unless such
notice would be impracticable or inconsistent with the nature of the proceeding.
4. Corrections and retractions. Agencies should adopt procedures for correcting and retracting
materially inaccurate statements, subject to exceptions in the public interest.
5. Publicizing investigations, complaints, and other preliminary actions. Agencies should not
publicize investigations except in rare circumstances as required by the public interest, and
should publicize complaints and other preliminary actions only with a clear explanation that
the action is tentative and non-final.
6. Capital market reactions. Agencies should consider the potential capital market reactions to
their announcements and should, when practicable and subject to exceptions in the public
interest, try to minimize potential capital market shocks.
7. Social media. Agencies should incorporate into their social media policies best practices and
procedures that apply to traditional types of agency publicity, such as clear lines of
responsibility for publishing information via agency accounts and safeguards to ensure the
accuracy of statements.
8. Database disclosures. Agencies should adopt written policies governing online databases
that contain adverse information about identified parties. Those policies should ensure that
(i) the data are accurate, (ii) that users are informed of the source(s), context, and any
limitations of the data, and (iii) that subjects are given the chance to post responses or
request corrections or retractions, subject to reasonable exceptions in the public interest.
9. Clarifying the Information Quality Act. The OMB should clarify that the Information
Quality Act applies to new substantive information in press releases that is not covered by
previous information dissemination subject to the Act. The OMB should also consider
updating its guidelines to account for the different types of databases published by agencies.
10. Fielding objections. Agencies that are not subject to the Information Quality Act, and do not
otherwise have post-publication procedures for requesting corrections to information should
direct objections to the agency’s announcement to the Ombudsman or Inspector General, as
appropriate.
15

Cortez, supra note 7, at 1441-53 (arguing for judicial review of agency publicity).
See, e.g., Interview with Sean Moulton, Director, Open Government Policy, and Scott Klinger,
Director, Revenue and Spending Policies, Center for Effective Government (formerly OMB Watch) (May
27, 2015); Interview with officials from the FTC Office of General Counsel (May 27, 2015).
16

5

Statutory reforms. Due to the challenges of legislating agency-by-agency, I recommend
that Congress consider amending the Administrative Procedure Act (APA) or the
Information Quality Act (IQA) to require agencies to publish written procedures
governing their use of publicity, including procedures tailored to social media, online
databases, and other new forms of agency disclosure.
Judicial review reforms. Given significant doctrinal and practical barriers to meaningful
judicial review, I do not recommend judicial review of agency publicity outside the
“compelling” circumstances envisioned (but yet to be encountered) by courts.
* * *
II. TRADITIONAL PUBLICITY AND RECOMMENDATION 73-1
At the June 1973 Plenary Session of the Administrative Conference, the Conference
adopted Recommendation 73-1, Adverse Agency Publicity. 17 The recommendation
responded to several well-known incidents in which a federal agency issued a press
release or other public announcement that caused significant harm to the product,
company, or industry identified. In this part, I briefly revisit why agencies issue publicity,
why such publicity can be problematic, and what the Conference recommended in 1973.
But first, I consider the scope of what counts as “agency publicity.”
A. Defining “Agency Publicity”
Recommendation 73-1 defined “adverse agency publicity” as “statements made by an
agency or its personnel which invite public attention to an agency’s action or policy and
which may adversely affect persons identified therein.” 18 The Conference distinguished
such publicity “from the mere decision to make records available to the public rather than
preserve their confidentiality,” as the latter is governed by the Freedom of Information
Act (FOIA). 19
Of course, the Conference drew this distinction well before agencies created public web
sites that contain voluminous materials about regulated parties. 20 Today, agencies draw
attention to their online materials to varying degrees. The most salient documents usually
are accompanied by agency press releases and more traditional announcements. However,
even when agencies “passively” post information to their web sites, this information can
be picked up quickly by the media, the trade press, industry lawyers, and by
bloggersmaking the distinction between “actively” publicizing information and
“passively” releasing it more murky. 21 The distinction is blurred further by recent “open
17

38 Fed. Reg. 16,839 (Jun. 27, 1973); codified at 1 C.F.R. § 305.73-1(a).
1 C.F.R. § 305.73-1(a); 38 Fed. Reg. 16,839 (Jun. 27, 1973).
19
Id.; Freedom of Information Act, 5 U.S.C. § 552.
20
Cortez, supra note 7, at 1392-93 (citing federal laws that required and encourages agencies to post
documents and other information online).
21
Id. at 1438-39. Note also that the Supreme Court rejected the distinction between active and passive
disclosures of information by the CPSC under the Consumer Product Safety Act. CPSC v. GTE Sylvania,
18

6

government” and “smart disclosure” initiatives, which encourage agencies to publish
large amounts of information online, including large datasets about regulated parties.
However, there remains a meaningful distinction between information that agencies
believe “to be true and that the public should rely on,” and information released by
agencies without any express or implicit endorsement. 22 For example, information
released in response to a FOIA request does not carry the same “government imprimatur
on the document” as an affirmative statement by the agency. 23
Although my previous research focused on information that the government specifically
endorses in some way and takes some affirmative step to publicize, 24 this Report
considers both discrete public announcements identifying a particular product and/or
company, and modern agency databases that release large swaths of information about
multiple products and/or companies.
B. Why Agencies Issue Publicity
Agencies have several motivations for issuing adverse publicity, and these motivations
have not changed much since Ernest Gellhorn’s study was published in 1973. 25 The three
primary agency motivations are to inform, to warn, or to sanction.
1. To Inform or Warn
Agency use of publicity to inform or warn the public is relatively common and
noncontroversial. Recommendation 73-1 emphasized that agency publicity is often
necessary “to warn of a danger to public health or safety or a threat of significant
economic harm, or to serve other legitimate public purposes.” 26 Indeed, most agencies
must inform or warn the public, often by statutory mandate. For example, the CPSC must
“protect the public against unreasonable risks of injury” and “assist consumers in
evaluating the comparative safety of consumer products.” 27 The FDA must alert the
public to an “imminent danger to health, or gross deception of the consumer.” 28 The FTC
is given discretion to “make public” information obtained by it “in the public interest”
and to publish its reports and decisions “as may be best adapted for public information
and use,” 29 which has long been interpreted to authorize news releases. 30 Congress even
authorizes the U.S. Patent and Trademark Office (PTO) to publicize complaints made

Inc., 447 U.S. 102, 107-08 (1980).
22
Cortez, supra note 7, at 1439 (citing CPSC v. GTE Sylvania, 447 U.S. at 107).
23
Id. (citing Pierce & Stevens Chem. Corp. v. CPSC, 585 F.2d 1382, 1388 (2d Cir. 1978)).
24
Id.
25
Gellhorn, supra note 7, at 1381.
26
1 C.F.R. § 305.73-1(a); 38 Fed. Reg. 16,839 (Jun. 27, 1973).
27
15 U.S.C. § 2051(b).
28
21 U.S.C. §§ 301, 375(b).
29
15 U.S.C. § 46(f).
30
FTC v. Cinderella Career & Finishing Sch., Inc., 404 F.2d 1308, 1314 (D.C. Cir. 1968); FTC v.
Freecom Commc’ns, Inc., 966 F. Supp. 1066, 1067 (D. Utah 1997).

7

against invention promoters. 31 In fact, information disclosure may be a raison d’être for
the SEC.32 Agencies also defend their use of publicity as necessary to prevent rumors or
confusion and to ensure that media coverage is accurate. 33 In my recent interviews with
officials from the CFPB, FDA, and FTC, the agencies cited similar justifications. 34
These uses confer clear public benefits and must not be taken for granted. Recent
initiatives promoting “open government” and “smart disclosure” are only the most recent
manifestations of what most people expect of federal agencies.
2. To Pressure or Sanction
More controversially, agencies sometimes use publicity to pressure or sanction alleged
regulatory violators. As Gellhorn noted, publicity can serve as a form of sanction
(intended or not) when it punishes, deters, or coerces the parties identified therein. 35 The
effect can be severe on companies sensitive to public disapproval, particularly publiclytraded companies. 36 Indeed, because agency announcements can have such a quick and
dramatic effect on company stock prices, the threat of publicity has been referred to as a
“guerilla” tactic, “arm-twisting,” or a lesser form of “blackmail.” 37 Long ago, the SEC
and other agencies used to be notorious for sanctioning companies via publicity. 38
Perhaps more commonly, agencies sometimes use publicity not as a standalone sanction,
but as an extrastatutory method to amplify sanctions. 39 Publicity can be a convenient,
low-cost way to enhance sanctions, pressure targets into compliance or settlement, or
make up for limited statutory enforcement authority or even difficulties in proving
violations. 40 It is not unusual for enforcement agencies, for example, to publicize
investigations, complaints, or successful settlements or judgments. In 1973, the
Conference encouraged agencies not to use publicity when it is “excessive or it serves no
31
Inventors’ Rights Act of 1999, codified at 35 U.S.C. 297(d). PTO’s implementing regulations are at
37 C.F.R. § 4.1.
32
Gellhorn, supra note 7, at 1394.
33
Cortez, supra note 7, at 1379 (citing SEC Office of Inspector Gen., Report of Investigation No. OIG534: Allegations of Improper Coordination Between the SEC and Other Governmental Entities Concerning
the SEC’s Enforcement Action Against Goldman Sachs & Co. 62 (Sep. 30, 2010),
http://www.sec.gov/foia/docs/oig-534.pdf; FDA Administrative Practices and Procedures, 42 Fed. Reg.
12,436, 12,439 (Mar. 4, 1977) (to be codified at 21 C.F.R. pt. 2)).
34
Interview with Officials in the FTC’s Office of Public Affairs (May 27, 2015); Interview with
Jennifer Howard, Assistant Director, CFPB Office of Communications (May 28, 2015); Interview with
Heidi Rebello, Acting Assistant Commissioner for Media Affairs, FDA Office of External Affairs (August
5, 2015).
35
Gellhorn, supra note 7, at 1383.
36
Id.; Cortez, supra note 7, at 1379.
37
James T. O’Reilly, The 411 on 515: How OIRA’s Expanded Information Roles in 2002 Will Impact
Rulemaking and Agency Publicity Actions, 54 ADMIN. L. REV. 835, 836 (2002); Lars Noah, Administrative
Arm-Twisting in the Shadow of Congressional Delegations of Authority, 1997 WIS. L. REV. 874.
38
Gellhorn, supra note 7, at 1406, n.107.
39
Gellhorn, Noah, and I all pursue this issue. See Gellhorn, supra note 7, at 1398-1401; Noah, supra
note 37, at 876; Cortez, supra note 7, at 1379.
40
Cortez, supra note 7, at 1379; Gellhorn, supra note 7, at 1398-99 (citing the EEOC as an early
example, which has a “broad mandate and limited enforcement powers”).

8

authorized agency purpose.” 41 As I discuss below, 42 modern agencies may still find
publicity to be efficient and attractive compared to other, more formal actions.
C. Problematic Publicity
Recommendation 73-1 observed that “adverse agency publicity is undesirable when it is
erroneous, misleading or excessive or it serves no authorized agency purpose.” 43
Gellhorn documented extensively these problems in his 1973 report, and my 2011 article
found that many of the same problems remain. 44 The core problems fall into four general
categories.
1. Premature Publicity
Publicity can be premature, such as when an agency publicizes that it has begun
investigating a party without also clarifying that the allegations have not been proven or
fully adjudicated. Since 1973, numerous parties have sued agencies for publicizing
investigations or complaints (though none of the suits have been successful). 45
Congressional statutes and White House directives have not been consistent on whether
agencies should publicize investigations and complaints. On one hand, Congress has
specifically authorized agencies to publicize complaints against certain parties, 46 and
recent “open government” initiatives by the White House have led several agencies to
create online databases of consumer complaints. 47 On the other hand, Congress has
banned other agencies from publicizing their investigations because it decided that
publicity in those circumstances may be premature and unfair. 48
Second, many agencies must also alert the public to health or consumer risks in the face
of incomplete information and scientific uncertainty. But even these announcements can
be premature. 49 For example, in 2008 the FDA and Centers for Disease Control and
41

1 C.F.R. § 305.73-1(a); 38 Fed. Reg. 16,839 (Jun. 27, 1973).
See Part III.B.1, infra (“More Agency Incentives to Use Adverse Publicity”).
43
1 C.F.R. § 305.73-1(a); 38 Fed. Reg. 16,839 (Jun. 27, 1973).
44
Cortez, supra note 7, at 1380-88.
45
In Appendix C (Table of Federal Cases, 1974-2014), see Wilson v. McHugh, 842 F. Supp. 2d 310
(D.D.C. 2012); Barry v. SEC, 2012 WL 760456 (E.D.N.Y. 2012); Invention Submission Corp. v. Rogan,
357 F.3d 452 (4th Cir. 2004); Doe v. United States, 83 F. Supp. 2d 833 (S.D. Tex. 2000); FTC v. Freecom
Comm., Inc., 966 F. Supp. 1066 (D. Utah 1997); First Jersey Securities, Inc. v. SEC, 553 F. Supp. 205
(D.N.J. 1982); EEOC v. Sears, Roebuck & Co., 1980 WL 108 (N.D. Ga. 1980); Trans World Accounts, Inc.
v. Associated Press, 425 F. Supp. 814 (N.D. Cal. 1977); Relco, Inc. v. CPSC, 391 F. Supp. 841 (S.D. Tex.
1975).
46
The Inventors’ Rights Act of 1999 authorizes the PTO to publicize complaints against invention
submission promoters.
47
See Part II.D.5, infra (describing the CFPB’s database of consumer complaints against certain
consumer finance companies, and OSHA’s proposal to publish workplace injury records).
48
The Federal Election Campaign Act prohibits the FEC from publicizing investigations for campaign
finance violations. 2 U.S.C. § 437g(a); see also Common Cause v. FEC, 83 F.R.D. 410, 411 (D.D.C. 1979)
(citing the legislative history to 2 U.S.C. § 437).
49
Administrative Conference of the United States (ACUS), Conference Recommendation 73-1 ¶ 3
(adopted June 8, 1973); 38 Fed. Reg. 16,389 (Jun. 27, 1973); 1 C.F.R. § 305.73-1 (recommending that
42

9

Prevention (CDC) incorrectly identified tomatoes as the source of a salmonella outbreak,
costing the tomato industry an estimated $200 million.50 More broadly, my 2011 article
surveyed 1,542 FDA “press announcements” released between 2004 and 2010, finding
that 74% of the announcements that identified a specific product or party and were
adverse in some way also announced a pending or preliminary determination.
Undoubtedly, many of these announcements were necessary to protect public health, and
agencies like FDA should not be deterred from warning the public. But because
premature publicity can be incredibly damaging, it is worth considering procedural
protections that limit the risk of premature publicity.
2. Excessive Publicity
Publicity can be excessive when an agency uses unnecessary or pejorative language, or
goes beyond factual reporting. The most commonly cited example is the infamous 1959
press conference during which the Secretary of Health, Education, and Welfare (HEW,
the precursor to HHS) warned the public to not eat potentially-carcinogenic cranberries,
punctuating the statement by noting that he, personally, would be avoiding cranberries
that Thanksgiving. 51 The Secretary failed to clarify that only cranberries from
Washington and Oregon might be unsafe, costing the industry $21.5 million in lost
surplus that year$8.5 million of which was indemnified by a private bill in Congress. 52
Recommendation 73-1 directed agencies to limit adverse publicity to factual content that
is accurate and does not contain disparaging terminology. 53
3. Publicity as a Sanction
There is also a long history of agencies using publicity to punish or pressure alleged
regulatory violators. 54 Indeed, the D.C. Circuit has suggested repeatedly that agency
publicity is only reviewable under the APA if it is intended to penalize or sanction the
target, or is false. 55 The legislative history to the APA includes a House Report
suggesting that the unauthorized use of adverse publicity as a sanction was viewed as a

adverse publicity, except in certain limited circumstances described in paragraph 2, “should issue only after
the agency has taken reasonable precautions to assure that the information stated is accurate and that the
publicity fulfills an authorized purpose.”).
50
Denis G. Maki, Coming to Grips with Foodborne InfectionPeanut Butter, Peppers, and
Nationwide Salmonella Outbreaks, 360 NEW ENG. J. MED. 949 (2009).
51
Gellhorn, supra note 7.
52
Id. at 1409-10 n.118.
53
Recommendation 73-1, supra note 2, at ¶ 1. 38 Fed. Reg. 16,839 (Jun. 27, 1973), codified at 1 C.F.R.
§ 305.73-1(a).
54
The example cited in a 1941 report of the Attorney General’s Commission on Administrative
Procedures alleged that the Federal Alcohol Administration abused its power by threatening to issue
adverse publicity as an extra-legal sanction “even when the validity of its dictates was not free from doubt.”
FINAL REPORT OF THE ATT’Y GEN.’S COMM’N ON ADMIN. PROCEDURES, S. DOC. NO. 77-8, at 135 (1941).
Lars Noah also examined the use of publicity as an extra-statutory tactic. See Noah, supra note 37.
55
See, e.g., Industrial Safety Equipment Ass’n, Inc. v. EPA, 837 F.2d 1115, 1119 (D.C. Cir. 1988).

10

“troublesome subject” at the time.56 In several cases, parties have alleged that an agency
used publicity to sanction them, 57 but courts have yet to sustain such a challenge.
Despite the dearth of published judicial opinions on this issue, there are several notable
examples of agency publicity causing significant damage. In 2003, the FDA publicly
reprimanded a company for misrepresenting the benefits and risks of its cancer drug, but
did not inform the company of its objections before publishing them. 58 The company’s
stock price reportedly dropped 25% within hours of trading. 59 The 1959 cranberry scare
cost the industry $21.5 million, and became known throughout the industry as “Black
Monday.” 60 More recent incidents have been even more costly. In 2008, the tomato
industry lost $200 million after press releases by the FDA and CDC incorrectly identified
tomatoes rather than peppers as the source of a salmonella outbreak. 61 Publicly available
documents suggest that the FDA and CDC were simply responding to a public health
crisis without intending to sanction the industry. Nevertheless, the episode demonstrates
that the damage from agency publicity can be unavoidably indeterminate and almost
impossible to calibrate.
Because it is difficult to determine agency motivations, it is important that agencies not
devise novel uses for press releases beyond what is contemplated by statute. 62
4. Inaccurate Publicity
Finally, agency announcements can be problematic when they are inaccurate, as
demonstrated by the 2008 FDA and CDC salmonella press releases, 63 or by the series of
inaccurate product safety warnings by the CPSC that led Congress to amend the
Consumer Product Safety Act in 1981. 64 Recommendation 73-1 urged agencies to issue
retractions or corrections in such cases. 65 In judicial challenges to agency publicity,
56

H.Rep. No. 79-1980, 79th Cong., 2d Sess. (1946) (House of Representatives Report on the APA).
Barry v. SEC, 2012 WL 760456 (E.D.N.Y. 2012); Trudeau v. FTC, 384 F. Supp. 2d 281 (D.D.C.
2005); Invention Submission Corp. v. Rogan, 357 F.3d 452 (4th Cir. 2004); Industrial Safety Equipment
Ass’n, Inc. v. EPA, 837 F.2d 1115 (D.C. Cir. 1988).
58
FDA, Talk Paper T03-18: FDA Warns Public About Misrepresentations in Marketing Claims About
Drug to Treat Cancer (Mar. 14, 2003). Typically, before the FDA publishes a Warning Letter or similar
public notice of alleged regulatory violations, the FDA will contact the party privately to offer a chance to
come into compliance. The lack of prior notice may increase the punitive impact of adverse publicity, or
perhaps reveal the agency’s punitive intent.
59
William W. Vodra, Nathan G. Cortez, & David E. Korn, The Food and Drug Administration’s
Evolving Regulation of Press Releases: Limits and Challenges, 61 FOOD & DRUG L.J. 623, 249 (2006);
FDA Responds in Kind to SuperGen: Talk Paper Answers Press Release, “THE PINK SHEET,” Mar. 17,
2003, at 7.
60
Gellhorn, supra note 7, at 1408, 1409-10, n.118.
61
Cortez, supra note 7, at 1381-82; Denis G. Maki, Coming to Grips with Foodborne
InfectionPeanut Butter, Peppers, and Nationwide Salmonella Outbreak, 360 N. ENG. J. MED. 949 (2009).
62
Gellhorn, supra note 7, at 1383, 1419-20.
63
Maki, supra note 61.
64
Omnibus Budget Reconciliation Act of 1981, Pub. L. No. 97-35, 95 Stat. 703 (1981) (amending the
Consumer Product Safety Act); see also James T. O’Reilly, Libels on Government Websites: Exploring
Remedies for Federal Internet Defamation, 55 ADMIN. L. REV. 507, 542-43 (2003).
65
Recommendation 73-1, supra note 1, at ¶ 5.
57

11

parties often argue that the announcements were inaccurate, perhaps encouraged by the
D.C. Circuit’s suggestion in Industrial Safety Equipment that agency publicity might be
reviewable if it is false. 66 Nevertheless, in several cases evaluating the accuracy of
agency press releases, courts largely find them to be truthful and not misleading. 67
Moreover, my review of agency practices finds that agencies in general are very careful
to ensure the accuracy of their announcements, and that most inaccuracies seem to result
from good faith mistakes by agencies that must inform or warn the public with imperfect
information. Still, such mistakes can be particularly costly.
D. Recommendation 73-1
In light of such concerns, the Conference recommended in 1973 that agencies publish
written rules that contain minimum standards for issuing publicity, and that such rules
apply to “investigatory, rulemaking and agency adjudicatory processes as well as
informal agency actions.” 68 In adopting such rules, the Conference recommended that
“each agency should balance the need for adequately serving the public interest and the
need for adequately protecting persons affected by adverse agency publicity.” 69 The
Conference recommended five standards:
1. Content standards. The Conference recommended that agency announcements be
factual and accurate, and avoid using “disparaging terminology.” 70
2. Investigations, complaints, and other preliminary actions. The Conference
recommended that agencies issue publicity announcing investigations or pending trialtype proceedings only in limited circumstances, and according to three criteria. First,
agencies should use publicity to warn the public of a significant risk to public health or
substantial economic harm, unless the party responsible immediately discontinues the
offending practice. 71 Second, agencies should announce preliminary actions when
necessary to notify parties that might be affected or desire to participate in the proceeding.
And third, agencies should announce preliminary actions when the information is already
available to the public or subject to media publicity and the agency’s purpose is to “foster
agency efficiency, public understanding, or the accuracy of news coverage.” 72
3. Authorized purpose. The Conference also recommended that announcements that do
not qualify under the three criteria above “should issue only after the agency has taken
66

Industrial Safety Equipment Ass’n, Inc. v. EPA, 837 F.2d 1115 (D.C. Cir. 1988).
See, e.g., Harkonen v. Dep’t of Justice, 2012 WL 6019571 (N.D. Cal. 2012); Wilson v. McHugh,
842 F. Supp. 2d 310 (D.D.C. 2012); United States v. 52,823 Children’s Dolls, More or Less, 1989 WL
140250 (S.D.N.Y. 1989).
68
Recommendation 73-1, supra note 1.
69
Id.
70
Id.
71
Id. Note, however, that this specific recommendation was criticized as a form of back-room
blackmail, viewed unfavorably after the Watergate scandal. See, e.g., Stanley E. Cohen, Curbs on
Regulatory Press Releases – Would They Hurt or Help Businesses?, ADVERTISING AGE (June 18, 1973) (on
file with ACUS).
72
Recommendation 73-1, supra note 1.
67

12

reasonable precautions to assure that the information stated is accurate and that the
publicity fulfills an authorized purpose.” 73
4. Advanced notice. The Conference recommended that agencies should “prominently”
disclose when the information in agency publicity has a limited basis. Moreover,
respondents or prospective respondents in agency actions should be given advanced
notice of agency publicity and a reasonable opportunity to prepare a response “if
practicable and consistent with the nature of the proceeding.” 74
5. Corrections and retractions. Finally, the Conference recommended that any person
named in an agency announcement that is “shown to be erroneous or misleading” should
be allowed to request a correction or retraction, and that such correction or retraction be
issued “in the same manner (or as close thereto as feasible) as that by which the original
publicity was disseminated.” 75
These five standards, occupying less than a page in the Federal Register, represented a
much narrower version of the detailed standards recommended by Professor Gellhorn in
his report and accompanying law review articlewhich recommended, among other
things, judicial review and several statutory amendments. 76 Nevertheless, these five
standards were not widely implemented by agencies.
E. Implementation of Recommendation 73-1
Less than a month after the Conference adopted Recommendation 73-1, ACUS Chairman
Antonin Scalia defended it against criticisms in the media, writing:
[I]t has always seemed to me the most valuable role of wise men to counsel that
side of a difficult issue that is currently ignored in the heat of popular concern….
If there is such a thing as news suppression, there is also such a thing as “trial by
press release.” 77

Only the Federal Power Commission (now the Federal Energy Regulatory Commission)
and SEC promulgated regulations in response to Recommendation 73-1. 78 Nine other
agencies took the position that, though they had not adopted formal rules implementing
the recommendation, they felt that their procedures embodied the spirit of the
recommendation. For instance, the FTC pointed to its 1972 Public Information Policy
Guidebook, which predated Recommendation 73-1. 79 And in response to the Conferences’
73

Id.
Id.
75
Id.
76
See, e.g., Gellhorn, supra note 7.
77
Letter from Antonin Scalia to Editor, Advertising Age, of June 29, 1973.
78
Letter from John N. Nassikas, Federal Power Commission Chairman, to Antonin Scalia, ACUS
Chairman, of Sep. 24, 1973 (on file with ACUS); Letter from Philip A. Loomis, Jr., SEC Commissioner, to
John F. Cushman, ACUS Executive Director, of Jul. 22, 1974 (on file with ACUS).
79
Letter from Charles A. Tobin, FTC Secretary, to Antonin Scalia, ACUS Chairman, of Jan. 8, 1974
(on file with ACUS).
74

13

inquiry, EPA stated that its informal procedure was adequate in dealing with the concerns
of the Recommendation but said it would not incorporate the principles of the
Recommendation in its published regulation; 80 the NRC opposed the recommendation
that agencies balance public and private interests before publicity is released. 81
Implementation by twelve additional agencies either was undetermined or not applicable,
the latter because the agencies did not issue adverse publicity. 82 The CPSC and ITC
reported in that they were drafting rules to implement the recommendation, 83 although
Congress in 1982 addressed CPSC publicity practices by statute, 84 which the CPSC then
implemented by rule. 85
Both the FDA and its then parent agency (HEW) initially disputed parts of
Recommendation 73-1, but HEW subsequently promulgated a rule titled Release of
Adverse Information to News Media in 1976, 86 and the FDA proposed its own rule in
1977 87 (although it was never finalized). 88 Today, FDA generally follows the HHS rule
originally promulgated by HEW. 89
The three case studies below demonstrate that agencies generally follow the principles of
balance and fairness embodied in Recommendation 73-1, though perhaps not the full
contours of the recommendation.
III. MODERN PUBLICITY
Contemporary agency “publicity” seems to be much more voluminous and varied than in
1973. Although agencies continue to issue press releases and other traditional forms of
publicity, agencies now rely heavily on modern modes of communication, virtually all
related to Internet platforms. Indeed, a primary motivation for revisiting
Recommendation 73-1 and Professor Gellhorn’s work was to reexamine the issues raised
by agency publicity in light of modern modes of communication.
My research finds that in the four decades since Recommendation 73-1, five interrelated
developments may compound the potential problems with agency publicity: (1) modern
80

Letter from Robert V. Zener, EPA Acting Deputy General Counsel, to Antonin Scalia, ACUS
Chairman, of Oct. 2, 1973 (on file with ACUS).
81
Letter from James T. Ramey, Commissioner, Atomic Energy Commission, to John F. Cushman,
ACUS Executive Director, of Apr. 13, 1973 (on file with ACUS).
82
Correspondence on file with ACUS.
83
Letter from Michael A. Brown, CPSC Acting General Counsel, to Antonin Scalia, ACUS Chairman,
of Sep. 12, 1973 (on file with ACUS).
84
15 U.S.C. § 2055(b).
85
16 C.F.R. part 1101.
86
HEW, Release of Information to News Media, 41 Fed. Reg. 2 (Jan. 2, 1976), codified at 45 C.F.R. pt.
17.
87
FDA, Administrative Practices and Procedures, 42 Fed. Reg. 12,436, 12,440-41 (Mar. 4, 1977) (to
be codified at 21 C.F.R. pt. 2).
88
FDA, Withdrawal of Certain Pre-1986 Proposed Rules, 56 Fed. Reg. 67,440, 67,446 (Dec. 30, 1991).
89
Interview with Heidi Rebello, supra note 34; James T. O’Reilly, Food and Drug Administration §
22.41 (3d ed. 2010).

14

agencies have many more ways to issue publicity and disseminate information than in the
1970s; (2) modern agencies likely have even more incentives now to use information as a
regulatory tool and eschew more formal enforcement actions; (3) new media make it
easier for audiences to misinterpret or mischaracterize agency announcements; (4) hyperresponsive capital markets now process agency announcements more swiftly and perhaps
more hastily, multiplying the potential damage; and (5) Congress and the White House
have specifically considered some agency publication practices, particularly through the
Information Quality Act (IQA). This part considers these five developments in turn.
A. More Ways to Issue Publicity
For at least the last 15 years, modern agencies have relied heavily on their web sites to
disseminate information to the public. More recently, agencies also have begun to use
social media services like Twitter to communicate with the public. And, perhaps even
more recently, agencies have begun to publish large online databases on their web sites,
making large swaths of potentially adverse information about private parties available in
public, searchable, sortable, and machine-readable formats. These three practices raise
many of the same issues as traditional publicity, as well as some novel ones. Today,
many agencies seem to use online information disclosure not just to increase government
transparency, but to pursue regulatory aims. 90 As a former General Counsel for the EPA
explained, “Information … can be a supplement, sometimes even an alternative, to
regulation. When broadly available, information can change behavior.” 91
1. Agency Websites
The most significant point of departure from 1973 is that virtually all modern agencies
operate their own web sites, 92 which endow agencies with a platform to publish
information about the thousands of actions or decisions they make each week. 93 For
example, agency web sites often publish licensing applications, company reports, product
complaints, notices of alleged violations (and company responses), documents obtained
during agency investigations, settlement agreements, and other potentially negative
information that identifies a specific product or company. 94 In fact, press releases and
other traditional announcements by agencies may represent a small fraction of the
adverse information that an agency publishes. 95 The information published may come
from regulated parties, competitors, consumers, or from the government itself. 96 Agency
James W. Conrad, Jr., The Information Quality ActAntiregulatory Costs of Mythic Proportions?
12 KAN. J.L. & PUB. POL’Y 521, 527 (2002-03).
91
ENVIRONMENTAL LAW INSTITUTE, THE ENVIRONMENTAL FORUM 36 (July/August 1998); Conrad,
supra note 90, at 527.
92
The federal government website, USA.gov, lists a master index of U.S. government departments and
agencies, with links to their web sites. USA.gov, A-Z Index of U.S. Government Departments and
Agencies, http://www.usa.gov/directory/federal/ (last visited June 10, 2015); Conrad, supra note 90, at 526.
93
James O’Reilly, Libels on Government Websites: Exploring Remedies for Federal Internet
Defamation, 55 ADMIN. L. REV. 507, 508 (2003).
94
Cortez, supra note 7, at 1392-93.
95
Id. at 1393; O’Reilly, Libels on Government Websites, at 507.
96
Conrad, supra note 90, at 528-29.
90

15

web sites thus allow regulators to “publish a staggering amount of freestanding
information about companies that is not disclosed as part of rulemaking.” 97 As one
observer notes, “[v]irtually all new documents released publicly by federal agencies, and
many historic documents, are now available on their web sites.” 98 Not all of this
information is actively publicized by agencies in the way that a traditional press release
would be publicized, and agencies seem to draw public attention to these materials to
varying degrees. Thus, it can be hard to generalize about information agencies post online.
As commonplace as agency web sites are today, two statutes helped move the trend. In
1996, the Electronic Freedom of Information Act Amendments required agencies to
create “electronic reading rooms” to make public important documents, including those
frequently requested or likely to be requested by FOIA. 99 And in 2002, the EGovernment Act required agencies to solicit and accept public comments online during
rulemaking. 100 Agencies have been further encouraged to use their web sites by the
Obama Administration. The day after President Obama took office in 2009, he published
a Memorandum on Transparency and Open Government, calling for the heads of
departments and agencies to “harness new technologies to put information about their
decisions online and readily available to the public.” 101 Thus, agency use of web sites is a
well-entrenched and probably underexamined phenomenon. 102
2. Social Media
Second, modern agencies have embraced social media to communicate with the public.
Some of the more frequently used platforms are Facebook, Twitter, YouTube, and Flickr.
For example, the EPA’s main web page features a “Connect with EPA” section, which
includes links to the agency’s blogs, Twitter profiles, Facebook pages, YouTube page,
Flickr stream, and Pinterest page. 103 A page displaying all EPA social media includes 34
unique Twitter accounts, 31 Facebook profiles, nine blogs, two discussion forums, one
YouTube channel, one Flickr photo stream, one Google+ profile, one Instagram feed, one
Foursquare page, and links to EPA podcasts and RSS feeds. 104 Other agencies also have
multiple profiles with services like Twitter and Facebook. 105 By contrast, a newer agency
like the CFPB has comparatively fewer social media pages. 106
97

Cortez, supra note 7, at 1392 (citing Conrad, supra note 90, at 526).
Conrad, supra note 90, at 527.
99
Pub. L. No. 104-231, 110 Stat. 3048 (1996), codified at 5 U.S.C. § 552; Cortez, supra note 7, at
1392.
100
Pub. L. No. 107-347, § 206, 116 Stat. 2899, 2915-16 (2002).
101
Memorandum on Transparency and Open Government, supra note 8. Note that later, the Obama
Administration limited the scope of this directive to executive agencies rather than independent agencies.
Exec. Order No. 13,563, 76 Fed. Reg. 3821 (Jan. 18, 2011).
102
A few scholars, notably James O’Reilly, have written on agency use of web sites. See, e.g.,
O’Reilly, supra note 64; O’Reilly, Libels on Government Web Sites, supra note 37; Conrad, supra note 90;
Cortez, supra note 7.
103
U.S. Environmental Protection Agency, http://www.epa.gov (last visited Dec. 15, 2014). This page
does not include a link to the EPA’s Pinterest page (https://www.pinterest.com/epagov/).
104
EPA, Social Media, http://www2.epa.gov/home/social-media.
105
See, e.g., FDA, Interactive Media, http://www.fda.gov/NewsEvents/InteractiveMedia/default.htm
(last visited Dec. 15, 2014); FTC, Stay Connected, https://www.ftc.gov/stay-connected (last visited Dec. 15,
98

16

Social media differ in important ways from traditional print and broadcast media. For
example, they are much more interactive and generally produce information in much
shorter bursts. Twitter, for example, is famous for its 140-character (not word) limit.
Social media platforms also tend to encourage users to rely on images and short videos
rather than long text-based documents. These features seem designed to maximize quick
consumption and wide disseminationencouraging users to forward, share, repost,
retweet, and “like” posts. As such, agency social media announcements tend to be highly
condensed, with less room to explain the nuance of complex regulatory actions. 107
Although most social media allow links to full text documents, it is not clear how
frequently readers follow these links.
Another departure point for social media is the volume and variety of platforms. The
federal web site USA.gov lists 21 different social media services used by the federal
government. 108 And many of these services perform very different functions. Flickr is a
photo-sharing service. 109 Foursquare is a map-based social network. 110 YouTube hosts
videos. 111 Instagram is a photo-based social network. 112 Disqus is an online discussion
feature added to web pages. 113 Although not all of these services are used to publish
adverse information, some of them are. For example, many agencies use Twitter to
announce enforcement actions, product recalls, and other alerts. 114 Social media allow
agencies to communicate with the public more quickly and more casually than ever. 115
3. Agency Databases
A third new tool for agencies since 1973 is the use of searchable online databases.
2014);
106

Consumer Financial Protection Bureau, http://www.consumerfinance.gov/ (under “Stay Connected”
heading, listing just one profile under Facebook, Twitter, YouTube, and Flickr) (last visited Dec. 15, 2014).
Note, however, that the CFPB’s Office of Servicemember Affairs maintains its own Twitter and Facebook
accounts. See CFPB, Office of Servicemember Affairs, Information for Servicemembers,
http://www.consumerfinance.gov/servicemembers/ (last visited Sep. 9, 2015) (listed under “Connect with
Us”).
107
Cortez, supra note 7, at 1394.
108
The federal web site USA.gov lists the following 21 social media services used by the federal
government: Blip; Disqus; Facebook; Flickr; Foursquare; Github; Google+; IdeaScale; LinkedIn; Meetup;
Myspace; Posterous; Scribd; Slideshare; Socrata; Tumblr; Twitter; Uservoice; Ustream; Vimeo; and
Youtube. USA.gov, Federal Government Social Media Registry, https://www.usa.gov/verify-social-media
(last visited July 28, 2015).
109
FDA, Flickr, http://www.flickr.com/photos/fdaphotos/.
110
EPA, Foursquare, http://foursquare.com/epagov.
111
CFPB, YouTube, http://www.youtube.com/user/cfpbvideo.
112
U.S. Department of Labor, Instagram, http://instagram.com/USDOL.
113
Disqus, http://disqus.com/.
114
In July 2010, the SEC tweeted that Goldman Sachs had agreed to pay $550 million to settle charges
against it, with a link to the SEC press release. Press Release, SEC, Goldman Sachs to Pay Record $550
Million to Settle SEC Charges Related to Subprime Mortgage CDO (Jul. 15, 2010),
http://www.sec.gov/news/press/2010/2010-123.htm. The FDA has several Twitter feeds dedicated to recalls
of drugs, devices, and tobacco products. Cortez, supra note 7, at 1394.
115
Cortez, supra note 7, at 1394.

17

Federal agencies now maintain perhaps thousands of searchable online databasesan
undetermined portion of which contain potentially negative information about named
products or parties. The precise number of such databases is not clear. The General
Services Administration (GSA) runs the federal web site Data.gov, which links to many
of these databases. Currently, Data.gov lists 174 different federal, state, and local public
organizations that publish “datasets” online. 116 And many of these organizations publish
hundreds of datasets each. For example, the Department of Homeland Security is credited
with 312 datasets, while the Department of Education is credited with 277 datasets. 117
Other agencies, like the CFPB, are credited with very few datasets, although they are
high-profile ones. 118
The databases of concern to this project are those that contain potentially negative
information about an identified private product, person, or firm. Appendix E highlights
some of the more notable agency databases of this sort, explaining their purpose(s), any
statutory authorization they can claim, and any relevant litigation. For example, the
Centers for Medicare and Medicaid Services (CMS) publishes databases with quality
ratings of Medicare physicians, hospitals, and nursing homes, including rates of
complications and death, and aggregated patient surveys. 119 The CFPB publishes
consumer complaints against banks and other financial institutions, with detailed
information about the nature of the complaint and the company’s response. 120 The CPSC
publishes a searchable database of product safety problems and recalls, 121 while the FDA
publishes similar databases containing reports of safety problems with drugs and medical
devices. 122 As Appendix E shows, several agencies now operate such databases. And
more are planned. The Occupational Safety and Health Administration (OSHA) proposes
to publish workplace injury records online. 123
The use of databases as a regulatory toolto change behavioris not entirely new. Their
use may date back to 1986, when Congress required the EPA to establish a Toxic Release
Inventory (TRI) to track chemical releases by facilities nationwide. 124 The Act required
116

Data.gov, Organizations, http://catalog.data.gov/organization (last visited June 11, 2015). Note that
the list of datasets seems to be incomplete, as it excludes datasets from agencies like the FDA, which
publishes multiple adverse event product databases. See Appendix E: Sample of Agency Databases.
117
Id. (last visited June 11, 2015).
118
Data.gov, Organizations, CFPB, http://catalog.data.gov/organization/cfpb-gov (last visited June 11,
2015).
119
See, e.g., Medicare.gov, Hospital Compare, http://www.medicare.gov/hospitalcompare/search.html
(last visited June 11, 2015).
120
CFPB, Consumer Complaint Database, http://www.consumerfinance.gov/complaintdatabase/. See
also Ian Ayres, Jeff Lingwall, & Sonia Steinway, Skeletons in the Database: An Early Analysis of the
CFPB’s Consumer Complaints (draft), http://islandia.law.yale.edu/ayres/CFPB%20paper%20v10.pdf.
121
CPSC, SaferProducts.gov, http://www.saferproducts.gov/Default.aspx (last visited June 11, 2015).
122
See, e.g., FDA, Manufacturer and User Facility Device Experience (MAUDE) Database,
http://www.fda.gov/MedicalDevices/DeviceRegulationandGuidance/PostmarketRequirements/ReportingA
dverseEvents/ucm127891.htm.
123
Jenna Greene, OSHA’s Proposed Database Draws Fire, THE AMERICAN LAWYER (Jan. 27, 2014),
http://www.americanlawyer.com/id=1202639865807/OSHA's-Proposed-Database-Draws-Fire.
124
Emergency Planning and Community Right-to-Know Act of 1986, Pub. L. No. 99-499 Subtitle A,
codified at 42 U.S.C. §§ 11001-11050.

18

the EPA to maintain the information “in a computer data base … accessible to any
person.” 125 TRI has been applauded for having a “significant impact on firm-level
emissions” and inspiring similar disclosure efforts in the United States and globally. 126
Interest in using databases for regulatory ends was renewed by the Obama Administration,
which has pushed “open government,” “smart disclosure,” and “open data” initiatives.127
One of President Obama first’s official acts in office was to direct executive departments
and agencies to “harness new technologies to put information about their decisions online
and readily available to the public.” 128 The site Data.gov both is a product of these
initiatives and showcases their massive scope.
Agencies’ widespread use of databases may blur the traditional distinction between
“actively” publicizing negative information and “passively” releasing it.
Recommendation 73-1 was careful to distinguish agency statements that “invite public
attention … from the mere decision to make records available to the public rather than
preserve their confidentiality,” 129 as those decisions are governed by FOIA. Similarly, my
2011 article purposefully excluded “reverse FOIA” cases in which private parties sued to
prevent agencies from releasing certain information. 130 Although my article observed that
the distinction between active publicity and more passively releasing information was a
less meaningful one than in 1973, 131 I found that most courts conclude that FOIA
responses by agencies do not carry the same “government imprimatur on the document”
as affirmative statements by agencies. 132 However, in a recent case, a district court found
that a product safety report posted in the CPSC’s SaferProducts.gov database “bears the
Government’s stamp of approval through its publication on an official website that, by its
terms, is a repository of reports regarding ‘unsafe products.’” 133 The court sustained the
anonymous company’s challenge, finding that posting a “materially inaccurate” report on
SaferProducts.gov was not only “final agency action” under the APA, but also arbitrary
and capricious and in violation of the CPSC’s own database regulations. 134

125

42 U.S.C. § 11023(j); Conrad, supra note 90, at 527.
Mark A. Cohen & W. Kip Viscusi, The Role of Information Disclosure in Climate Mitigation Policy,
3 (4) CLIMATE CHANGE ECON. 1250020-1, 1250020-2 (2012); Interview with Sean Moulton & Scott
Klinger, supra note 16.
127
See, e.g., Memorandum on Transparency and Open Government, supra note 8; Executive Office of
the President, National Science and Technology Council, Smart Disclosure and Consumer Decisionmaking:
Report of the Task Force on Smart Disclosure (May 2013),
http://www.whitehouse.gov/sites/default/files/microsites/ostp/report_of_the_task_force_on_smart_disclosu
re.pdf.
128
Memorandum on Transparency and Open Government, supra note 8. Note that later, the Obama
Administration limited the scope of this directive to executive agencies rather than independent agencies.
Exec. Order No. 13,563, 76 Fed. Reg. 3821 (Jan. 18, 2011).
129
1 C.F.R. § 305.73-1(a); 38 Fed. Reg. 16,839 (Jun. 27, 1973).
130
Cortez, supra, note 7, at 1439.
131
Id.
132
Pierce & Stevens Chem. Corp. v. CPSC, 585 F.2d 1382, 1388 (2d Cir. 1978) (holding that the
Consumer Product Safety Act’s disclosure procedures did not apply to proactive disclosures pursuant to
FOIA requests).
133
Company Doe v. Tenenbaum, 900 F. Supp. 2d 572, 597 (D. Md. 2012).
134
Id.
126

19

An important point is that different agency databases may be populated by different data
sources, 135 requiring different standards. For example, there is a reduced risk of
publishing inaccurate information if it comes directly from the party identified, as in the
case of the EPA’s Toxics Release Inventory (TRI). In contrast, the CFPB’s Consumer
Complaint Database includes information reported by consumers, which is sometimes
disputed by companies. As such, the CFPB gives the companies identified in complaints
the opportunity to verify a commercial relationship with the complainant and publish a
response. 136 Other databases include information generated by agencies as part of their
regulatory responsibilities. For example, OSHA maintains a database of agency
enforcement inspections, searchable by establishment. 137 Similarly, the FDA maintains a
database of Warning Letters, searchable by company, subject, and the like. 138
Information in these databases also is often preliminary and/or disputed. Finally, some
databases compile information from a variety of sources. Medicare’s Physician Compare,
Hospital Compare, and Nursing Home Compare web sites allow users to sift through a
massive, searchable database of publicly- and privately-generated information about
Medicare providers. 139 In short, although the traditional problems with agency publicity
apply to agency databases, mitigating these problems may require responses that are
highly tailored depending on the type of database.
Perhaps a model for operating modern agency databases is the CPSC’s site,
SaferProducts.gov, which features a searchable database of consumer product safety
incident reports. 140 In 2008, Congress passed the Consumer Product Safety Improvement
Act, 141 which required the CPSC to establish on its web site a searchable product safety
database. 142 The Act required the database to include “reports of harm relating to the use
of consumer products” as reported by consumers, state and local governments, and by
other parties. 143 Each report must describe the product or substance, identify the
manufacturer or labeler, describe the harm relating to the product or substance, and report
any corrective actions taken. 144 The statute requires the Commission to “provide clear
and conspicuous notice to users of the database that the Commission does not guarantee
the accuracy, completeness, or adequacy of the contents of the database.” 145 The statute
135

See, e.g., Conrad, supra note 90, at 528.
See, Consumer Financial Protection Bureau, Part IV.C, infra.
137
OSHA, Establishment Search Page, https://www.osha.gov/pls/imis/establishment.html (last visited
June 12, 2015); Conrad, supra note 90, at 528.
138
FDA, Warning Letters,
http://www.fda.gov/ICECI/EnforcementActions/WarningLetters/default.htm (last visited June 12, 2015).
139
See Appendix E: Samples of Agency Databases.
140
Search Recalls and Reports, http://www.saferproducts.gov/Search/default.aspx (last visited
September 18, 2015)
141
Consumer Product Safety Improvement Act of 2008, Pub. L. No. 110-314, 122 Stat. 3016 (codified
in scattered sections of 15 U.S.C.).
142
CPSIA § 212; 15 U.S.C. § 2055a.
143
15 U.S.C. § 2055(b)(1)(A).
144
15 U.S.C. § 2055(b).
145
15 U.S.C. § 2055(b)(5). The web site (SaferProducts.gov) includes a disclaimer that “CPSC does
not guarantee the accuracy, completeness, or adequacy of the contents of the Publicly Available Consumer
Product Safety Information Database on SaferProducts.gov, particularly with respect to information
submitted by people outside of CPSC.” See SaferProducts.gov, http://www.saferproducts.gov (last visited
Nov. 6, 2014). Note that the court in Company Doe v. Tenenbaum called this “boilerplate” that “would not
136

20

also includes procedural requirements. For example, the Commission “shall” provide
manufacturers or labelers the chance to comment on reports, and request that these
comments be included in the report. 146 It also requires the Commission to consider
objections that the information in a report is “materially inaccurate,” though the Act
allows the Commission to determine when information meets that standard. 147 In
implementing regulations, the Commission defines “materially inaccurate” information
as information “that is false or misleading, and which is so substantial and important as to
affect a reasonable consumer’s decision making about the product.” 148 In 2012, as noted
above, a federal court held that the Commission failed to follow its own regulations in
posting “materially inaccurate” information on the site. 149
As agencies rely more on databases for regulatory purposes, SaferProducts.gov might
serve as a model. The database is authorized by statute. The Commission takes pains to
notify users that it does not guarantee the accuracy or completeness of the information
published. And there are clear standards and procedures, published in the Code of Federal
Regulations, that give companies the opportunity to comment on reports or object to them,
guided by robust standards (“materially inaccurate”).
B. More Agency Incentives to Use Publicity
Agencies today may have more incentives to rely on adverse publicity than agencies in
the early 1970s. At that time, most agencies were beginning to rely more on rulemaking
and less on case-by-case adjudication. 150 As agencies began to use rulemaking to respond
to problems of greater scope and complexity, the legislative, executive, and judicial
branches gradually imposed various procedural checks and balances on agency
rulemaking, which progressively “ossified” the process and burdened rulemaking
initiatives. 151 Although agencies have long relied on informal methods beyond traditional
rulemaking and adjudication, 152 the ossification of rulemaking and increasingly
aggressive judicial review led agencies with finite resources and expanding

interest an ordinary consumer.” 900 F. Supp. 2d at 598.
146
15 U.S.C. § 2055(c)(2).
147
15 U.S.C. § 2055(c)(4).
148
16 C.F.R. § 1102.26(a)(1).
149
Tenenbaum, 900 F. Supp. 2d 572 (D. Md. 2012).
150
M. Elizabeth Magill, Agency Choice of Policymaking Form, 71 U. CHI. L. REV. 1383, 1398-99
(2004).
151
There is quite a large literature on the ossification of rulemaking. See, e.g., Jerry L. Mashaw &
David L. Harfst, The Struggle for Auto Safety, (Harvard 1990); Thomas O. McGarity, Some Thoughts on
“Deossifying” the Rulemaking Process, 41 DUKE L.J. 1385 (1992); Jim Rossi, Redeeming Judicial Review:
The Hard Look Doctrine and the Federal Regulatory Efforts to Restructure the Electric Utility Industry,
1994 WIS. L. REV. 763; Paul R. Verkuil, Rulemaking OssificationA Modest Proposal, 47 ADMIN. L. REV.
453 (1995); Richard J. Pierce, Jr., Seven Ways to Deossify Agency Rulemaking, 47 ADMIN. L. REV. 59
(1995); Mark Seidenfeld, Demystifying Deossification: Rethinking Recent Proposals to Modify Judicial
Review of Notice and Comment Rulemaking, 75 TEX. L. REV. 483 (1997); Richard J. Pierce, Jr., Judicial
Review of Agency Actions in a Period of Diminishing Agency Resources, 49 ADMIN. L. REV. 61 (1997).
152
Noah, supra note 37, at 874.

21

responsibilities to develop an arsenal of informal tools not specifically authorized by
statute and not subject to judicial review. 153
Although much attention has been focused on agencies’ increased use of guidance
documents, 154 adverse publicity emerged as one of the most efficient and effective forms
of extrastatutory “arm-twisting” that agencies could deploy. 155 Even agencies with robust
statutory enforcement authority find adverse publicity (or simply the threat of it) to be
more effective than formal enforcement actions that typically require “cumbersome
judicial proceedings.” 156 Thus, agencies struggling with resource constraints and/or
increased regulatory burdens may find that issuing publicity is particularly convenient
and effective compared to traditional statutory tools. 157
The basic calculus that makes publicity attractive to agencieslow marginal cost of
publication and almost immediate benefits in the form of increased complianceremains
applicable today. Perhaps not surprisingly, then, agencies continue to make
announcements that raise objections from targets. One notable example is the Department
of Education, which in 2014 published a list of 55 U.S. colleges and universities that it
was investigating for inadequately handling sexual assault allegations. 158 The Department
emphasized that the comprehensive list represented a shift from earlier agency practices,
when the Department would publicly confirm investigations but not publicize a list of
them. 159 The press release quotes a Department official “to make it clear that a college or
university’s appearance on this list and being the subject of a Title IX investigation in no
way indicates at this stage that the college or university is violating or has violated the
law.” 160 Page views for the press release were “unprecedented” according to the
Department, setting an all-time record for visits to the Department’s web site and social
media views. 161 Finally, in March 2015, the Department published a list of 556 colleges
and universities that did not meet the Department’s “financial responsibility test,” 162
153

Id.at 875; Cortez, supra note 7, at 1391.
See, e.g., Peter L. Strauss, Comment, The Rulemaking Continuum, 41 DUKE L.J. 1463, 1468-71
(1992); Todd D. Rakoff, The Choice Between Formal and Informal Modes of Administrative Regulation,
52 ADMIN. L. REV. 159 (2000); Nina A. Mendelson, Regulatory Beneficiaries and Informal Agency
Policymaking, 92 CORNELL L. REV. 397, 398 (2007). Indeed, the House Committee on Government
Reform investigated the use and potential abuse of guidance documents by agencies. COMM. ON GOV’T
REFORM, NON-BINDING LEGAL EFFECT OF AGENCY GUIDANCE DOCUMENTS, H. REP. NO. 106-1009 (2000).
155
Noah, supra note 37, at 874. Noah defines “arm-twisting” as “a threat by an agency to impose a
sanction or withhold a benefit in hopes of encouraging ‘voluntary’ compliance with a request that the
agency could not impose directly on a regulated entity.”
156
Id.at 888-89; Cortez, supra note 7, at 1391-92.
157
I posit that there is a connection between increased agency responsibilities under stagnant budgets
and the use of relatively low-cost tools like adverse publicity. Testing the causal connection empirically,
however, may be difficult without a control or a baseline.
158
DOE, Press Release, U.S. Department of Education Releases List of Higher Education Institutions
with Open Title IX Sexual Violence Investigations (May 1, 2014), http://www.ed.gov/news/pressreleases/us-department-education-releases-list-higher-education-institutions-open-title-i (last visited June
10, 2015); Michael Stratford, The Government’s New List, INSIDE HIGHER ED (May 2, 2014).
159
DOE, supra note 158.
160
Id. (quoting Assistant Secretary for Civil Rights, Catherine E. Lhamon).
161
Stratford, supra note 158.
162
Department of Education, Heightened Cash Monitoring, https://studentaid.ed.gov/sa/about/data154

22

which raised objections that the Department was using a “shaming technique” and had
publicly “accused innocent schools of violations and failed to correct its mistakes.”163
(Note, importantly, that the Department had been criticized for keeping the list of
colleges “secret” and may have been required to release the information under FOIA. 164)
The Undersecretary of Education responded that the potential risks to institutions were
outweighed by the benefits of releasing the information to students and their families. 165
C. More Opportunities to Misinterpret Publicity
A third reason for updating Recommendation 73-1 is to consider how audiences consume
modern agency publicity. My research found that newer forms of publicity are written,
presented, and disseminated in a way that potentially increases the risk that audiences
will misinterpret the agency’s announcement.
To be sure, the traditional agency press releasedrafted carefully by public affairs
professionals, vetted through various levels of agency and perhaps even legal review, and
sent directly to a curated list of media recipientsstill seems to be standard practice at
most agencies. 166 But even this traditional practice has been transformed by modern
media. For example, in addition to sending a traditional press release to a list of recipients,
an agency might also publish multiple versions on its web site and write very short blurbs
about it on social media platforms. Again, the information release is more voluminous
and varied than in 1973, increasing the risk that at least some important facts or nuances
will be lost in translation somewhere along the way.
Social media in particular increase the risk that audiences will misread, misunderstand, or
mischaracterize agency announcements. Again, most social media are designed to
generate information that can be consumed quickly and shared widely. The best example
is Twitter, which limits each “tweet” to 140 characters, inclusive of characters used in
hyperlinks. Thus, a tweet is more akin to a newspaper headline than the body of the
article. For example, the SEC recently used its “SEC Enforcement” account on Twitter to
announce an enforcement proceeding to its followers: 167

center/school/hcm (click on “List of Institutions on HCM as of March 1, 2015”) (last visited June 10, 2015).
163
Claudio Sanchez, The Opposite of the Dean’s List, NATIONAL PUBLIC RADIO (Apr. 1, 2015),
http://www.npr.org/blogs/ed/2015/04/01/396681248/the-opposite-of-the-deans-list.
164
See, e.g., Michael Stratford, U.S. Keeps Scrutiny of Risky Colleges Secret, INSIDE HIGHER ED (Mar.
26, 2015), https://www.insidehighered.com/news/2015/03/26/education-dept-keeps-secret-names-collegesfound-be-risky-students-taxpayers.
165
Id. (citing discussion with Undersecretary Ted Mitchell).
166
Interview with Officials from FTC Office of Public Affairs, supra note 34; Interview with Heidi
Rebello, supra note 34; Interview with Jennifer Howard, supra note 34.
167
SEC Enforcement, Twitter (Dec. 16, 2014),
https://twitter.com/SEC_Enforcement/status/544901298991419392 (“Admin Proceeding: Paul J. Pollack
and Montgomery Street Research, LLC http://ow.ly/2SaAfb”).

23

The hyperlink loads a PDF document of a cease-and-desist order filed by the SEC
alleging certain violations of the Securities Exchange Act. The 92-character
announcement on Twitter displays the name of a person and his company
prominently. The only context it gives is the phrase “Admin Proceeding,” which may
not be familiar to many readers. However, being posted on the SEC Enforcement
account, it is clear that Mr. Pollack and Montgomery Street Research are the targets
of SEC enforcement, though the tweet itself does not clarify whether the charges have
been proven or are contested. The post was “retweeted” once and “favorited” once by
different Twitter users. There were 4,013 posts on the SEC Enforcement Twitter feed as
of June 11, 2015, and my review of the last six months suggests that the vast majority
were of this nature.
Social media also make it very easy for users to repeat and share the information. Agency
Twitter accounts often have thousands or even hundreds of thousands of followers,
including reporters for the lay media and trade press. For example, the SEC Enforcement
feed had 5,124 followers on June 11, 2015. 168 But this was dwarfed by the EPA’s main
Twitter account, which had roughly 251,000 followers as of December 16, 2014. 169
Another interesting problem not present in 1973 is the risk of audiences’ not
understanding whether a federal agency owns a certain social media profile and thus is
responsible for authoring its content. For example, my 2011 article found examples of
private citizens creating profiles or pages with federal agency names on Facebook and
Twitter. 170 These services now verify accounts for public figures and institutions like
federal agencies, usually by displaying a blue or green check mark. But non-government
users still appear to be creating social media profiles for agencies. 171 Twitter seems to be
particularly problematic. The Twitter profile “@FDAWarning” appears to be run by a
non-agency source. 172 In fact, the federal web site USA.gov now offers a site that allows
users to verify federal government social media accounts. 173 It is not clear how many
168

SEC Enforcement, Twitter, https://twitter.com/sec_enforcement (last visited June 11, 2015).
See EPA, Twitter, https://twitter.com/epa (last visited Dec. 16, 2014). Of course, not all of these
followers are human usersmany are automated accounts, or “Twitter bots.” See, e.g., Rob Dubbin, The
Rise of Twitter Bots, NEW YORKER (Nov. 14, 2013), http://www.newyorker.com/tech/elements/the-rise-oftwitter-bots.
170
Cortez, supra note 7, at 1395 (finding a Facebook page for the FDA that was not being run by the
FDA).
171
For example, a recent search found a Facebook profile for the SEC that does not appear to be
maintained by the SEC. U.S. Securities and Exchange Commission, Facebook,
https://www.facebook.com/pages/US-Securities-and-Exchange-Commission/109531262399131# (last
visited Dec. 16, 2014).
172
FDA Warning, Twitter, https://twitter.com/FDAWarning (last visited Dec. 16, 2014).
173
USA.gov, Verify U.S. Federal Government Social Media Accounts,
http://www.usa.gov/Contact/verify-social-media.shtml (last visited Dec. 16, 2014).
169

24

non-agency sources operate social media profiles with agency names in the title, and
whether the followers, subscribers, or audience for these announcements appreciate the
difference.
My non-exhaustive review finds scattered policies governing social media practices, but
most such policies are silent on potential problems caused by adverse agency publicity.
The General Services Administration (GSA) runs a web site, www.digitalgov.gov, that
serves as a resource for federal agencies operating web sites and social media accounts.
The site includes a helpful and quite lengthy list of laws, regulations, and policies that
govern “federal public web sites and digital services,” including FOIA, the IQA, and
various OMB memoranda. 174 Although the GSA does not seem to impose any hard
requirements on federal agenciesrelying instead of OMB directives and other
sourcesit seems to be an appropriate vehicle for disseminating best practices.
D. Hyper-Responsive Capital Markets
A fourth reason for updating Recommendation 73-1 is to reconsider agency publicity
practices in light of modern capital markets. Internet-powered capital markets seem to
respond more swiftly and perhaps more hastily to agency announcements, multiplying the
magnitude for potential damage to company reputation and stock price, thus reducing
agencies’ margin for error. As my 2011 article demonstrated, company stock prices
respond rapidly to new information, regardless of whether that information is accurate or
interpreted correctly. 175
Although instances of stock price drops in response to agency announcements rarely are
reported in the media or subject to litigation, a few examples demonstrate the stakes.
Perhaps the most notable recent example of capital markets over-responding to inaccurate
information is the Bloomberg News fiasco with United Airlines. In 2008, Bloomberg’s
financial news service mistakenly republished an old 2002 story announcing that United
would be filing for bankruptcy. 176 That day, United stock lost 76% of its value (roughly
$1 billion) in just over thirty minutes before trading was suspended by NASDAQ. 177
Bloomberg had apparently relied on third-party content providers to find current news on
publicly-traded companies, and one such provider had reposted the old 2002 story after
174
DigitalGov, supra note 11. The site refers repeatedly to the May 2012 Digital Government Strategy
released by the White House. Digital Government: Building a 21st Century Platform to Better Serve the
American People, https://www.whitehouse.gov/sites/default/files/omb/egov/digital-government/digitalgovernment.html (last visited June 11, 2015).
175
Cortez, supra note 7, at 1396. The “efficient market hypothesis” (EMH) posits that securities prices
rapidly reflect all available information without bias, meaning that stock prices rapidly respond to public
information. Id., at 1397-98 (citing the EMH literature). Indeed, “event studies” use econometrics to
measure how stock prices respond to certain events, such as corporate or legal announcements, or proposed
regulatory actions. Id. at 1397-98 (citing Sanjai Bhagat & Roberta Romano, Event Studies and the Law:
Part I: Technique and Corporate Litigation, 4 AM. L. & ECON. REV. 141, 144 (2002)).
176
Cortez, supra note 7, at 1396.
177
Id. (citing Frank Ahrens, 2002’s News, Yesterday’s Sell-Off, Wash. Post, Sep. 9, 2008, at A1; Carlos
Carvalho, Nicholas Klagge, & Emanuel Moench, The Persistent Effects of a False News Shock: Fed.
Reserve Bank of New York Staff Report No. 374, at 1 (revised June 2011),
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1408169).

25

searching for United on Google. 178 Notably, Bloomberg posted a quick correction just 15
minutes later. 179 Although United stock largely rebounded, the news shock persisted for
days as United stock traded lower than before the incident. 180
My research found some examples of stock price responses to agency announcements,
although again, news reports seem to be rare. For example, one company lost 35% of its
stock value a day after the FDA publicized manufacturing violations, leading the
company to suspend manufacturing and lay off 350 employees. 181 Another company lost
25% of its stock value within hours of an FDA announcement that publicized the FDA’s
objections to the company’s own press release. 182 This announcement was notable in that
the FDA reportedly did not notify the company of its objections beforehand and
considered the approach a novel way to address industry conduct. 183 Finally, Goldman
Sachs suffered “the biggest one-day decline in its stock in over a year” after the SEC
announced charges against the company, 184 despite the SEC’s efforts to temper the media
and market reaction by making the announcement on a Friday and combining it with a
second announcement. 185
These incidents demonstrate that “the market apparently reacts to a headline as much as
anything else.” 186 Responding to this general problem, the New York Stock Exchange
(NYSE) asked the SEC either to give it advanced notice of major enforcement
announcements or announce them during non-trading hours, so as to minimize the news
shock. 187 But the SEC denied the request on the grounds that leaks might compromise the
effort and that announcements with a major impact on trading would be rare. 188 However,
our research found at least one agency, the Centers for Medicare and Medicaid Services
(CMS), with a policy that prohibits agency employees from releasing “market sensitive”
informationinformation that “may have stock or bond market implications”unless
properly authorized. 189 The CMS “Employee Nondisclosure Policy” recommends that the
178

Cortez, supra note 7, at 1396 (citing Ahrens, supra note 177).
Id. (citing CARVALHO ET AL., supra note 177).
180
Id. (citing CARVALHO ET AL., supra note 177).
181
Id. at 1404 (citing James G. Dickinson, Publicity as Punishment, MED. DEVICE & DIAGNOSTIC
INDUSTRY 24 (Jan. 1992); O’REILLY, supra note 89, at § 22.42).
182
Cortez, supra note 7, at 1404-05 (citing FDA, Talk Paper T03-18: FDA Warns Public About
Misrepresentations in Marketing Claims About Drug to Treat Cancer (Mar. 14, 2003); William W. Vodra,
Nathan G. Cortez, & David E. Korn, The Food and Drug Administration’s Evolving Regulation of Press
Releases: Limits and Challenges, 61 FOOD & DRUG L.J. 623, 649 (2006); FDA Responds in Kind to
SuperGen: Talk Paper Answers Press Release, “THE PINK SHEET,” Mar. 17, 2003 at 7).
183
Id. at 1404-05.
184
Id. at 1424 (quoting SEC OIG, supra note 33, at 65).
185
Id. (citing SEC OIG, supra note 33, at 49, 51, 55).
186
Id. at 1396 (citing Ahrens, supra note 177).
187
Id. at 1396-97 (citing SEC Office of Inspector Gen., Report of Investigation No. OIG-534:
Allegations of Improper Coordination Between the SEC and Other Governmental Entities Concerning the
SEC’s Enforcement Action Against Goldman Sachs & Co. 62 (Sep. 30, 2010),
http://www.sec.gov/foia/docs/oig-534.pdf).
188
Id. at 1397 n.151 (citing SEC OIG, supra note 33, at 65-71).
189
Memorandum on Employee Nondisclosure Policy from James Webber, Director, Office of
Operations Management, Centers for Medicare and Medicaid Services, to “All CMS Employees” of Sep. 7,
2010 (on file with author).
179

26

even when properly authorized, release of market-sensitive information be performed
only during non-trading hours to “err on the side of caution.” 190
Roughly a year later, media reports suggested that CMS had failed to adhere to this
policy. 191 In February 2011, CMS sent a memorandum during trading hours to roughly
6,500 private insurers that operate Medicare Advantage Plans. 192 The memo announced
that CMS would rethink its plan to increase government audits of the Medicare payments
to these insurers, which might result in massive repayments from the insurers to the
government. Shortly after an investment analyst flagged the memo, stock prices for the
publicly-traded companies shot up, creating billions in new equity for the companies. 193
CMS officials called the announcement “routine,” but the analyst emphasized that CMS
rarely announces major changes outside of publishing proposed and final rules in the
Federal Register. 194 In the face of media scrutiny, a CMS spokesman defended the memo
as a “standard communication,” noting that the agency “can’t control how people react to
a memo like this.” 195 This episode highlights, again, how quickly capital markets can
react to agency announcements, and how even written agency policies like CMS’s may
not prevent all lapses. Still, it is not clear how often stock prices change dramatically in
response to agency announcements, as reports of such instances remain rare.
E. Information/Data Quality Act
Finally, agency practices are also worth revisiting since 1973 in light of congressional
action, particularly the Information Quality Act of 2001, sometimes referred to as the
Data Quality Act. 196 The Act required the Office of Management and Budget (OMB) to
issue government-wide guidelines for “ensuring and maximizing the quality, objectivity,
utility, and integrity of information … disseminated by the government.” 197 It also
required the OMB to “establish administrative mechanisms allowing affected persons to
seek and obtain correction of information maintained and disseminated by the agency”
that does not meet those standards. 198 In 2002, the OMB finalized guidelines

190

Id. The 2010 memorandum discusses making disclosures during non-trading hours, but the attached
CMS Employee Nondisclosure Policy is largely silent on this specific issue, focusing instead on employee
disclosure of non-public information more generally. The CMS memorandum and policy came to light after
the Center for Public Integrity sued CMS in 2014 for failing to respond to a FOIA request for documents
relating to the Medicare Advantage Program. Complaint, Center for Public Integrity v. HHS, Civil Action
No. 14-887 (D.D.C., May 27, 2014).
191
Fred Schulte, How Medicare Advantage Investors Profited from Loose Government Lips, NPR
NEWS (May 19, 2015).
192
Id.
193
Id.
194
Id. (quoting first a statement by CMS officials, and then the bank analyst that highlighted the CMS
memo).
195
Id. (quoting Aaron Albright from CMS).
196
Treasury and General Government Appropriations Act for Fiscal Year 2001 § 515, Pub. L. No. 106554, 114 Stat. 2763, 2763A-153-54 (2001); 44 U.S.C. § 3516.
197
Id. The Information Quality Act built on earlier requirements in the Paperwork Reduction Act that
addressed information dissemination. See Paperwork Reduction Act of 1995, Pub. L. No. 104-13, 109 Stat.
163, 168.
198
Id.

27

implementing the Act, 199 followed by agencies’ issuing their own guidelines. 200
However, since 2001 it has been unclear whether “press releases” and similar agency
announcements are subject to the Information Quality Act and OMB guidelines. On one
hand, the Act itself does not exempt press releases. The Act states broadly that the OMB
guidelines should “apply to Federal agency dissemination of public information,
regardless of the form or format in which such information is disseminated.” 201 On the
other hand, OMB’s final guidelines specifically exclude “press releases” from the
definition of “dissemination” (defined broadly as “agency initiated or sponsored
distribution of information to the public”). 202 The exemption for “press releases” was not
included in the OMB’s proposed guidelines; it first appeared in the OMB’s interim final
guidelines, without explanation. 203
A further complication is that the Office of Information and Regulatory Affairs (OIRA)
seemed to support individual agency guidelines that narrowed the OMB’s exemption for
press releases to only those releases that are based on a precursor document that is itself
subject to the Act. 204 For example, the EPA’s guidelines exempt only press releases and
other communications that announce or give public notice of information that EPA had
already disseminated elsewhere. 205 Similarly, OIRA seemed to view favorably a similar
approach by HHS and FDA that exempts press releases from their Information Quality
Act guidelines unless the press release contains new substantive information not covered
by previous information dissemination subject to the Act. 206 Several other agencies have
drafted their own IQA guidelines to narrow the OMB’s exemption for “press releases.”
Appendix G surveys 42 different agency IQA guidelines, finding that most agencies
significantly narrow the OMB’s exemption for press releases in this way:
Guidelines narrow the OMB’s exemption for press releases:
Guidelines adopt the OMB’s broad exemption for press releases:
Guidelines are unclear or do not address press releases directly:
Guidelines conflict on whether the broad or narrow exemption applies:
TOTAL

199

23
11
5
3
42

66 Fed. Reg. 34489 (Jun. 28, 2001) (proposed guidelines); 66 Fed. Reg. 49718 (Sep. 28, 2001); 67
Fed. Reg. 369 (Jan. 3, 2002); 67 Fed. Reg. 8452 (Feb. 22, 2002).
200
OMB, Agency Information Quality Guidelines,
https://www.whitehouse.gov/omb/inforeg_agency_info_quality_links/ (last visited June 15, 2015).
201
44 U.S.C. § 3504(d)(1).
202
67 Fed. Reg. at 8460.
203
See, OMB, Guidelines for Ensuring and Maximizing the Quality, Objectivity, Utility, and Integrity
of Information Disseminated by Federal Agencies, Final Guidelines, with Request for Comments, 66 Fed.
Reg. 49718, 49725 (Sep. 28, 2001).
204
Memorandum for President’s Management Council, Agency Draft Information Quality Guidelines,
from John D. Graham, Administrator, Office of Information and Regulatory Affairs (OIRA), Office of
Management and Budget (OMB), dated June 10, 2002,
https://www.whitehouse.gov/sites/default/files/omb/inforeg/iqg_comments.pdf (last visited June 12, 2015).
Attached to this Memorandum is a document titled “OIRA Review of Information Quality Guidelines
Drafted by Agencies,” also dated June 10, 2002.
205
Id. at 4.
206
Id. at 17.

28

According to an OIRA memorandum to agencies issued in 2002, narrowing the
exemption for press releases in this way “avoids creating an incentive to misuse press
releases to circumvent information quality standards.” 207 Thus, OIRA seemed to approve
of agencies’ narrowing the exemption for press releases. However, some agencies appear
to be applying the press release exemption broadly, not narrowly. 208 Although the
National Institutes of Health (NIH)’s National Toxicology Program (NTP) previously
agreed to correct a press release and fact sheet posted on the NTP’s web site, 209 that same
year, the NIH refused to consider the substance underlying a similar request by the Salt
Institute because the NIH’s Information Quality Guidelines exempt press releasesthe
broad reading. 210
In contrast to press releases, it would seem on first glance that agency databases clearly
would be covered by the Information Quality Act and OMB guidelines. Indeed, the Act
seems designed for things like agency databases. Yet, as with press releases, the Act’s
application to databases is unclear, and probably varies by database. Again, the broad
wording of the Act states that the OMB guidelines should apply to agency “dissemination
of public information, regardless of the form or format.” 211 And the OMB guidelines
define “information” as “any communication or representation of knowledge such as
facts or data, in any medium or form,” 212 including “information that an agency
disseminates from a web page.” 213
However, the OMB excludes from coverage “opinions, where the agency’s presentation
makes it clear that what is being offered is someone’s opinion rather than fact or the
agency’s views.” 214 The guidelines also exempt “adjudicative processes.” 215
Thus, the one law that might be used to discipline modern agency announcements has, in
some situations, been construed as not applying to many agency announcements. 216
207

Id. at 4.
See, e.g., OIRA, OMB, Information Quality: A Report to Congress, Fiscal Year 2003,
https://www.whitehouse.gov/sites/default/files/omb/assets/omb/inforeg/fy03_info_quality_rpt.pdf (last
visited June 12, 2015). In this 2003 report, requests to correct or retract press releases were denied by the
NIH (pp. 50-51) and FDIC (p. 122). Requests to address press releases were agreed to by the National
Toxicology Program (p. 50).
209
Id. at 50.
210
Id. at 50-51.
211
44 U.S.C. § 3504(d)(1).
212
67 Fed. Reg. at 8458-59.
213
Id. at 8460.
214
67 Fed. Reg. at 377.
215
Id.
216
On a related point, it remains doubtful that the Information Quality Act creates judiciallyenforceable rights, such that a party could sue an agency for violating its own information quality
guidelines, or for denying a request to correct or retract information. Every court considering the question
has answered it in the negative. See, e.g., Harkonen v. U.S. Dep’t of Justice, 2012 WL 6019571 (N.D. Cal.
2012) (not reported in F. Supp. 2d) (see analysis of Prime Time at *31-32); Styrene Information and
Research Center, Inc. v. Sebelius, 944 F. Supp. 2d 71, 82 (D.D.C. 2013); Family Farm Alliance v. Salazar,
759 F. Supp. 2d 1083, 1095 (E.D. Cal. 2010); Prime Time Int’l Co. v. Vilsack, 599 F.3d 678 (D.C. Cir.
2010) (only court to reach merits of a claim under the IQA, but finding no cause of action); Salt. Inst. v.
Leavitt, 440 F.3d 156, 158-59 (4th Cir. 2006) (discussing the IQA in depth, but finding no cause of action).
208

29

IV. CASE STUDIES
I evaluate in detail the policies and practices of three agenciesthe FDA, the FTC, and
the CFPB. These case studies offer a more granular picture of how agencies try to
balance competing public and private interests when issuing various forms of publicity,
including newer forms like social media and online databases.
A. U.S. Food and Drug Administration (FDA)
The FDA featured prominently in earlier studies on agency publicity. 217 It was one of the
only agencies to propose a rule in response to Recommendation 73-1, 218 and is a frequent
litigant in cases challenging agency publicity. 219 As the earlier studies observe, FDA
publicity can devastate products, companies, or even entire industries. Yet, more than
most agencies, FDA publicity is an essential tool for alerting the public to serious health
risks, often in the face of factual and scientific uncertainty.
Benefits and uses of publicity. The FDA uses publicity to warn consumers about
hazardous products or “gross economic deception.” 220 The agency also uses publicity to
educate consumers, solicit public comments, clarify the agency’s views on matters of
public interest, and report on FDA studies, investigations, and enforcement activities.221
FDA officials describe two overarching goals of publicityto educate the public, and to
further its public health mission. 222 FDA officials also note that publicity aimed to
educate the public can, for example, help consumers make smarter purchasing decisions
and avoid potentially adulterated or unsafe products. In litigation, the FDA vigorously
defends its discretion to warn the public of health and safety risks, even with incomplete
factual and scientific information. 223 Former FDA officials emphasize that publicity is a
very powerful tool for protecting public health because the agency has direct access to the
media and enjoys credibility on product-specific warnings. 224 Current FDA officials
carefully consider whether to make announcements, given the potential impact of FDA
publicity. 225 In short, the FDA can directly affect how, and indeed whether, the public
uses regulated products. 226 The agency has long been aware of this power, and such
awareness may temper any inclinations to abuse it. 227

217

See, e.g., Gellhorn, supra note 7; Cortez, supra note 7, at 1401-15.
42 Fed. Reg. 12,436.
219
See Appendix C (Table of Federal Cases: 1974-2014).
220
See, e.g., 42 Fed. Reg. at 12,436.
221
Id.
222
Interview with Heidi Rebello, supra note 34; Interview with Ann Wion, Senior Advisor to the Chief
Counsel, FDA Office of the Chief Counsel (Aug. 5, 2015).
223
See, e.g., Fisher Bros. Sales, Inc. v. U.S., 46 F.3d 279, 287 (3d Cir. 1995).
224
Interview with Wayne Pines, President, Regulatory Services and Health Care, APCO Worldwide
(Jul. 7, 2015) (former FDA Chief of Press Relations (1975-78) and Associate Commissioner for Public
Affairs (1978-82)).
225
Interview with Heidi Rebello, supra note 34.
226
Interview with Wayne Pines, supra note 224.
227
Id.
218

30

Publicity as a regulatory tool. In the past, FDA has used publicity as a regulatory tool,
treating both publicity and Warning Letters as a form of informal enforcement. 228
Although the statute gives the FDA discretion to not report “minor violations” for
prosecution if the agency “believes that the public interest will be adequately served by a
suitable written notice or warning,” 229 the agency does not limit Warning Letters or
publicity to such “minor violations.” Wayne Pines, former FDA Chief of Press Relations
and Associate Commissioner for Public Affairs, explains that FDA senior leadership has
long believed that Congress authorized FDA “to use publicity as an enforcement tool.”230
Current FDA officials stress that FDA no longer views publicity as an enforcement tool.
The burdens of publicity. Academics have observed that FDA sometimes wields publicity,
or merely the threat of it, as a regulatory weapon. 231 Former FDA officials also recognize
that “publicity from the FDA is a very, very powerful tool.” 232 For example, in 2003 the
FDA published a “Talk Paper” to criticize an allegedly misleading press release by a drug
company about its cancer drug. 233 The agency reportedly did not notify the company of
its objections beforehand, and the company’s stock price fell 25% within hours. 234 There
are also documented cases of FDA publicity leading directly to the closure of
manufacturing plants, employee layoffs, and products being removed from retail stores
nationwide. 235 As Gellhorn noted, publicity by the FDA can be particularly damaging
because consumers have a very low tolerance for perceived risks to the safety of food and
drugs. 236 FDA officials have long been aware that the agency’s power of publicity can be
“infinitely larger than any other power” the FDA possesses, and cite instances in which
“FDA has come out publicly and just eliminated products from the market.” 237 Thus,
although FDA usually is justified in warning the public of product hazards, former
officials worry that the risk of abuse of agency discretion is greater with publicity than in
any other area. 238
FDA’s current position. The FDA no longer views publicity as an enforcement tool.
Rather, the FDA views publicity as necessary for providing relevant health information to
the public, given its statutorily-mandated mission to promote and protect the public
228

Cortez, supra note 7, at 1414; 21 C.F.R. § 100(j)(1); State Enforcement Provisions of the Nutrition
Labeling and Education Act of 1990, 58 Fed. Reg. 2457, 2457 (Jan. 6, 1993).
229
21 U.S.C. § 336 (2013).
230
Interview with Wayne Pines, supra note 224.
231
See, e.g., Cortez, supra note 7, at 1402; Noah, supra note 37, at 890.
232
Interview with Wayne Pines, supra note 224.
233
FDA Talk Paper, supra note 58.
234
Vodra et al., supra note 59, at 649; FDA Responds in Kind to SuperGen, supra note 59, at 6.
235
Dickinson, supra note 181, at 24; O’REILLY, supra note 89, at § 22.42; FDA QUARTERLY REPORT,
FIRST QUARTER 1987, at 20 (1987); Cortez, supra note 7, at 1404.
236
Gellhorn, supra note 7, at 1410; Cortez, supra note 7, at 1403.
237
Interview with Peter Barton Hutt, Senior Counsel, Covington & Burling LLP (Nov. 7, 2014) (Hutt
was Chief Counsel at FDA from 1971-75). In 1966, for example, the FDA announced that Borden’s Starlac
Powdered Milk had tested positive for salmonella. The company refused to recall the product, and there
were no positive cases of salmonellosis linked to Starlac. But FDA’s announcement effectively removed
Starlac from the marketit was never marketed again. See, Infectious Diseases: Salmonella and Starlac,
TIME (Nov. 11, 1966), http://content.time.com/time/magazine/article/0,9171,843035,00.html (subscription
required).
238
Interview with Peter Barton Hutt, supra note 237.

31

health, and given the broad scope of consumer products the FDA regulatese.g., drugs,
medical devices, foods, and tobacco. FDA views its disclosure of public health
information as being governed by applicable laws and regulations, including 21 U.S.C. §
331(j) and 18 U.S.C. § 1905. The FDA is sensitive to potential economic harm that may
result to regulated entities. However, the agency has procedures in place to ensure the
information it provides to the public is accurate. Moreover, there is a public health need
for FDA to provide information essential to the public about a particular health risk.
Statutory authority. Because FDA publicity can be so damaging, its authority to issue it
has been questioned. However, more than most agencies, the FDA can claim explicit
statutory authority to issue publicity. 239 Section 705 of the Federal Food, Drug, and
Cosmetic Act (titled “Publicity”) grants the FDA broad authority to disseminate
information about regulated products that, in the agency’s opinion, present an “imminent
danger to health or gross deception to the consumer.” 240 The same section requires the
FDA to publish “reports summarizing all judgments, decrees, and court orders,”
including “the nature of the charge and the disposition thereof.” 241 The statute makes
clear that nothing prohibits the FDA from reporting the results of investigations. 242 Thus,
the statute authorizes FDA to publish complaints, for example, as long as the agency
explains the nature of the charge and clarifies that the charges have not been
adjudicated. 243 Other parts of the statute explicitly authorize FDA to notify health
professionals and consumers of product risks, 244 which would justify broad publicity in
most cases.
Implicit authority. The FDA has also asserted that it has broad, implicit authority to
issue publicity. The Public Health Service Act requires FDA to publish information about
the products it regulates. 245 Moreover, the FDA cites the Supreme Court’s opinion in
Barr v. Matteo for the proposition that publicity is a core discretionary function of
agencies. 246 The FDA has long viewed these powers expansively. 247 Former FDA Chief
Counsel Peter Barton Hutt once remarked that the Federal Food, Drug, and Cosmetic Act
“must be regarded as a constitution” that gives the agency broad discretion to protect
public health. 248 And in legal challenges to FDA publicity, the agency argues that it
enjoys almost unreviewable discretion to warn the public 249 arguments viewed with
skepticism by some courts and scholars. The D.C. District Court, for example, wrote that

239

Cortez, supra note 7, at 1405; Gellhorn, supra note 7, at 1408.
FDCA § 705(b), 21 U.S.C. § 375(b) (2013).
241
FDCA § 705(a), 21 U.S.C. § 375(a) (2013).
242
FDCA § 705(b), 21 U.S.C. § 375(b) (2013).
243
Cortez, supra note 7, at 1405.
244
See, e.g., 21 U.S.C. §§ 360h(a), (e)(2)(B) (allowing FDA to warn individuals and health
professionals of risks for specific medical devices).
245
PHSA §§ 301, 310, 42 U.S.C. §§ 241, 242o.
246
42 Fed. Reg. at 12,437; Barr v. Matteo, 360 U.S. 564 (1959).
247
Cortez, supra note 7, at 1406.
248
Peter Barton Hutt, Philosophy of Regulation under the Federal Food, Drug, and Cosmetic Act, 28
FOOD DRUG COSM. L.J. 177, 178 (1973).
249
Cortez, supra note 7, at 1441-47.
240

32

the FDA’s publicity practices might allow it to “effectively regulate industry without ever
exposing itself to judicial review.” 250
Litigation. Although litigation challenging agency publicity remains somewhat rare, FDA
is one of the most frequently sued agencies, along with the FTC and the CPSC. 251 Like
most other agencies, FDA frequently takes the position that agency publicity is not
subject to judicial review under the APA, 252 and is protected by sovereign immunity and
executive privilege. 253 As with other agencies, courts generally agree. 254 As noted above,
FDA in the past had viewed publicity as a form of informal enforcement. 255 But again,
some courts and scholars have been uncomfortable with publicity yielded this way. One
district court, considering arguments that the FDA had targeted specific companies with a
publicity campaign, wrote that the FDA could not have it both ways:
This Court cannot now say that a focused effort such as this may be is immune
from judicial review because the agency says its decision is tentative and open to
reconsideration. If the FDA’s view is, in fact, so tentative that it is not yet ripe for
judicial review, it may not be appropriate to take actions which directly result in
harm to those private parties who dare to disagree with them. 256

The court observed that it would be “inherently unfair” to allow FDA to use publicity to
“enforce its determination without allowing the affected party an opportunity to prove
that the FDA’s position is wrong.” 257 Although the district court’s opinion is an outlier, it
expresses a common frustration with the lack of redress for agency publicity. Indeed, a
former lawyer in the Office of Chief Counsel concludes that “there is relatively little a
company can do in most circumstances to significantly diminish the effect of [an FDA]
release.” 258
Proposed rule. Given the widely-recognized power of FDA publicity, the agency
proposed a rule in 1977 that would have set standards and procedures for issuing it. 259
The proposal was an attempt to codify FDA’s existing practices and implement both
Recommendation 73-1 and a 1976 rule by its parent agency, then the Department of
Health, Education, and Welfare (HEW). 260 The preamble cites the usual benefits of
250

Washington Legal Found. v. Kessler, 880 F. Supp. 26, 34 (D.D.C. 1995); Cortez, supra note 7, at

1441.
251

See Appendix C: Table of Federal Cases (1974-2014).
Cortez, supra note 7, at 1414; Noah, supra note 37, at 887.
253
See, e.g., Ajay Nutrition Foods, Inc. v. FDA, 378 F.Supp. 210 (D.N.J. 1974), aff’d, 513 F.2d 625
(3d Cir. 1975).
254
See Appendix C: Table of Federal Cases (1974-2014).
255
Cortez, supra note 7, at 1414; State Enforcement Provisions of the Nutrition Labeling and
Education Act of 1990, 58 Fed. Reg. 2457, 2457 (Jan. 6, 1993).
256
Den-Mat Corp. v. FDA, No. MJG-92-444, 1992 WL 208962, at *5 (D. Md. 1992); Cortez, supra
note 7, at 1415.
257
Id. at *5; Cortez, supra note 7, at 1415.
258
Levine, infra note 288, at 277; Cortez, supra note 7, at 1415.
259
FDA, Administrative Practices and Procedures: Publicity Policy, 42 Fed. Reg. 12,436, 12,440-41
(Mar. 4, 1977) (to be codified at 21 C.F.R. pt. 2).
260
Id. The proposed rule was part of a larger initiative at FDA to promulgate rules governing its
practices. FDA was one of the first agencies to propose rules implementing the Government in the
252

33

publicitywarning and informing the publicbut also acknowledges that publicity can
interfere with ongoing criminal and civil cases, and may “cause economic harm” to the
parties identified. 261 The rule would have set distinct standards and procedures for
publicizing criminal trials, civil litigation, investigations, and administrative hearings.262
The rule also would have given advanced notice to parties identified in publicity and
allowed them to request corrections or retractions for any information that was
“materially erroneous or misleading.” 263 In the end, FDA never finalized the rule, and
withdrew it summarily years later. 264
HHS rule. Without its own publicity policy, the FDA was left with the 1976 rule by HEW
(now the Department of Health and Human Services (HHS)). The rule, “Release of
Adverse Information to News Media,” 265 endorses Recommendation 73-1 and tracks it
closely. 266 For example, the rule applies to “adverse information,” defined as “any
statement or release by the Department or any principal operating component made to the
news media inviting public attention to an action or a finding by the Department or
principal operating component of the Department which may adversely affect persons or
organizations identified therein.” 267 The rule’s basic principle is that such information
“shall be factual in content and accurate in description,” avoiding “[d]isparaging
terminology not essential to the content and purpose of the publicity.” 268 The rule also
requires the Department and its sub-agencies to take reasonable precautions to assure that
the information is accurate and fulfills an authorized purpose, again tracking
Recommendation 73-1. 269 Information released should provide context, including the
nature of any studies performed, the sources of any data, and whether the information is
based on allegations that have yet to be fully adjudicated. 270 In response to public
comments, the Department emphasized that FDA would retain broad discretion to issue
publicity “when necessary to protect public health or safety.” 271
HHS guidelines. Perhaps more important than the HHS rule are the HHS Guidelines
on the Provision of Information to the News Media, which apply to “information in any
form provided to news and information media, especially information that has the
potential to generate media attention, public interest, or inquiry.” 272 As FDA officials
Sunshine Act and FOIA. Interview with Peter Barton Hutt, supra note 237 (Hutt was Chief Counsel at FDA
from 1971-75).
261
42 Fed. Reg. at 12,436.
262
Id. at 12,440-41.
263
Id. at 12,441.
264
Withdrawal of Certain Pre-1986 Proposed Rules, 56 Fed. Reg. 67,440, 67,446 (Dec. 30, 1991).
265
45 C.F.R. pt. 17.
266
Department of Health, Education, and Welfare, Notice of Proposed Rulemaking: Release of
Adverse Information to News Media, 39 Fed. Reg. 28,643 (Aug. 9, 1974); Department of Health,
Education, and Welfare, Policies: Part 17 – Release of Adverse Information to News Media, 41 Fed. Reg. 2
(Jan. 2, 1976).
267
45 C.F.R. § 17.1.
268
45 C.F.R. § 17.2.
269
45 C.F.R. § 17.3.
270
45 C.F.R. § 17.5.
271
41 Fed. Reg. at 3.
272
HHS, Office of the Assistant Secretary for Public Affairs (ASPA), Guidelines on the Provision of

34

explain, the Guidelines articulate the basic philosophy and operating principles used by
HHS and its sub-agencies. 273 The FDA’s News Media web site links to the Guidelines.274
Several parts of the Guidelines emphasize that communications must be “accurate.” 275
They also encourage employees to “[a]ct promptly to correct the record or erroneous
information, when appropriate.” 276 The Guidelines describe the responsibilities of the
HHS Office of the Assistant Secretary for Public Affairs (ASPA), News Division, and
how it should coordinate with other offices, divisions, and programs. 277 The Guidelines
also prescribe, very broadly, that the ASPA News Division “will coordinate the review
and clearance of departmental press materials by appropriate officials,” but describe no
detailed procedures for this process. 278 FDA officials explain that all press
announcements are reviewed by the FDA’s Office of Chief Counsel and HHS. 279
Publicizing preliminary actions. In addition to announcing the results of enforcement
actionsconsent decrees, settlements, judgments, and criminal sentencesFDA also
regularly publishes press releases announcing unresolved actions, including
investigations, civil complaints, and criminal charges and indictments. 280 The HHS rule
limits announcements of investigations or “pending agency trial-type proceedings” to
cases where there is a significant risk to public health or substantial economic harm. 281
Moreover, the rule allows HHS or its sub-agencies to withhold releasing adverse
information if “public harm can be avoided by immediate discontinuance of an offending
practice.” 282
Advanced notice. The HHS rule allows agencies to provide advanced notice of
publicity to identified parties “if practicable and consistent with the nature of the
proceeding.” 283 This provision gives parties a chance to prepare a public response in
advance, but does not create a right to edit or object to the agency’s announcement.284
The FDA recognized in its 1977 proposal that identified parties are generally aware that
they are on the agency’s radar 285a notion reiterated by current officials. 286 Sometimes,
FDA will contact the company to verify certain facts before publishing a press release,

Information to the News Media (March 2012), http://www.hhs.gov/news/media_policy.html (last visited
August 5, 2015). The Guidelines, by their terms, apply to “press releases” and “blogs and other Internet
postings used to convey news or items of public interest.”
273
Interview with Heidi Rebello, supra note 34.
274
FDA, News Media Policies,
http://www.fda.gov/NewsEvents/Newsroom/NewsEmbargoPolicy/default.htm (last visited Aug. 5, 2015).
275
HHS, Guidelines, supra note 272.
276
Id.
277
Id.
278
Id.
279
Interview with Heidi Rebello, supra note 34.
280
Cortez, supra note 7, at 1408.
281
45 C.F.R. § 17.4.
282
Id.
283
45 C.F.R. § 17.6.
284
Id.
285
42 Fed. Reg. at 12,439; Cortez, supra note 7, at 1407-08.
286
Interview with Jarilyn Dupont, Director of Regulatory Policy, FDA Office of Policy (Aug. 5, 2015).

35

but will not share the contents of the release with the company. 287 Thus, the FDA “does
not negotiate with the company about the text of the FDA announcement” or “share the
text of a press communication with a company in advance.” 288 Long ago, FDA adopted a
policy that doing so would be inconsistent with the agency’s FOIA policies. 289
Corrections and retractions. The HHS rule allows parties to request that the agency
correct or retract information that is inaccurate or misleading, and provides that the
response will be made “in the same manner” as the original announcement. 290 Similarly,
as noted above, HHS Guidelines encourage employees to “[a]ct promptly to correct the
record or erroneous information, when appropriate.” 291 FDA’s 1977 proposed rule would
have allowed private parties to file a citizen petition to the Assistant Commissioner for
Public Affairs requesting the agency to correct or retract publicity, including procedures
for expediting requests. 292 But current FDA officials believe that informal
communications are likely to be more effective than formal filings. 293
FDA Manuals. Apart from HHS rules and guidelines, a variety of FDA employee
manuals address publicity. The most significant seems to be the Regulatory Procedures
Manual, which addresses publicity in several sections, particularly those dealing with
recalls and emergencies. 294 (Note, however, that FDA indicates that some parts of the
Manual are outdated and are thus undergoing review and revision.) Additionally, some
FDA product centers mention publicity in their own manuals. The FDA’s Center for
Veterinary Medicine states that staff should avoid “[p]remature publicity concerning
investigations and adverse reactions.” 295 My previous research evaluated a detailed
manual by the Center for Drug Evaluation and Research that included one section
(4112.1) with detailed policies for issuing press releases, Talk Papers, and other
announcements, but the section was deemed obsolete by FDA and is no longer published
online. 296 Finally, FDA officials describe internal policies and procedures that are not
publicly available, but these were not produced at the time of our interview. 297

287

Interview with Wayne Pines, supra note 224.
Arthur N. Levine, FDA Enforcement: How it Works, in A PRACTICAL GUIDE TO FOOD AND DRUG
LAW AND REGULATION 277 (Kenneth R. Piña & Wayne L. Pines eds., 2d. ed. 2002).
289
42 Fed. Reg. at 12,439; Interview with Wayne Pines, supra note 224.
290
45 C.F.R. § 17.7.
291
HHS, Guidelines, supra note 272.
292
42 Fed. Reg. at 12,441.
293
Interview with Ann Wion, and Heidi Rebello, supra notes 222, 34; Interview with Mark Raza,
Principal Deputy Chief Counsel, FDA Office of the Chief Counsel (Aug. 5, 2015).
294
FDA, REGULATORY PROCEDURES MANUAL,
http://www.fda.gov/iceci/compliancemanuals/regulatoryproceduresmanual/default.htm (last visited July 17,
2015).
295
FDA Center for Veterinary Medicine, PROGRAM POLICY AND PROCEDURES MANUAL § 1240.3520.
296
The manual, titled CDER, MANUAL OF POLICIES AND PROCEDURES (MAPP) 4112.1, CDER/FDA
Press Office Interactions in the Preparation and Clearance of Written Documents for the Public (2001);
Cortez, supra note 7, at 1406-07, 1407 n.222.
297
Interview with Heidi Rebello, supra note 34.
288

36

Publicizing recalls. One of the FDA’s most important public health duties is to notify
the public of recalls. 298 Although the FDA has been criticized in the past for publicizing
inaccurate recall information or using recalls in lieu of more appropriate sanctions, 299 the
agency must retain maximum discretion to warn the public. 300 Courts generally protect
this discretion. 301 And, to the agency’s credit, it generally “reserves publicity for products
that pose the most serious risks.” 302 The Regulatory Procedures Manual discusses
procedures for notifying the public and other government agencies of recalls, 303 although
the FDA notes that some parts of the Manual are outdated and are currently undergoing
revision. The Manual explains that recall notices are superintended by the Associate
Commissioner for Public Affairs. 304 (Note this position no longer exists. The FDA
currently has an Associate Commissioner for External Affairs and an Assistant
Commissioner for Media Affairs.) The Manual also states that “[a]gency policy gives the
recalling firm the first opportunity to prepare and issue publicity concerning its recall.”305
FDA also provides guidance to industry for notifying the public. 306 The guidance
emphasizes that FDA will issue its own press release for a recall if the firm fails to do so
or if the firm’s press release is inadequate. 307 In the past, FDA had to rely heavily on
publicity during food recalls because it lacked mandatory recall authority. 308 When
Congress granted this authority, it also specified what types of information the FDA
should provide to the public during a recall. 309 Although the FDA necessarily must
publicize recalls with incomplete information, recalls are based on the best available
scientific information, often including Health Hazard Evaluations.
Publicizing enforcement actions. The Regulatory Procedures Manual provides
detailed procedures for issuing press releases regarding agency enforcement actions, 310
though again agency officials stress that the Manual’s outdated provisions are undergoing
review and revision. Nevertheless, the Manual states that enforcement staff can
298

Id.
See, e.g., Gellhorn, supra note 7, at 1410-16; Noah, supra note 37, at 874-75, 888.
300
Cortez, supra note 7, at 1411.
301
Id. (citing Sperling & Schwartz, Inc. v. United States, 218 Ct. Cl. 625, 626-27 (1978) (finding that
FDA had a rational basis for warning the public about excessive levels of lead in dishware)).
302
Cortez, supra note 7, at 1411; FDA, For Consumers, FDA 101: Product RecallsFrom First Alert
to Effectiveness Checks, http://www.fda.gov/ForConsumers/ConsumerUpdates/ucm049070.htm (last
updated May 18, 2010).
303
REGULATORY PROCEDURES MANUAL, supra note 294, at § 7-7.
304
Id. at § 7-7-3.
305
Id.
306
FDA, Guidance for Industry: Product Recalls, Including Removals and Corrections (Nov. 3, 2003),
http://www.fda.gov/Safety/Recalls/IndustryGuidance/ucm129259.htm (see the section “Public
Notification”).
307
Id. at § B.1.
308
Interview with Richard Williams, Vice President for Policy Research, Mercatus Center, George
Mason University (Nov. 12, 2014) (Williams was at the FDA’s Center for Food Safety and Applied
Nutrition (CFSAN) for 27 years, and was formerly its Director for Social Sciences); Interview with Ann
Wion, supra note 222 (noting that FDA now has mandatory recall authority for foods under the Food
Safety Modernization Act, or FSMA).
309
Food Safety Modernization Act (FSMA) § 206, Pub. L. No. 111-353, 124 Stat. 3885, 3941 (2011)
(amending FDCA § 423), codified at 21 U.S.C. § 350l(g) (“Mandatory Recall Authority”).
310
REGULATORY PROCEDURES MANUAL, supra note 294, at § 6-2-17; Exhibit 6-10.
299

37

recommend that FDA issue a press release, but the decision rests with the Office of
Public Affairs (which was renamed the Office of Media Affairs, a part of the Office of
External Affairs). 311 The press release should describe the enforcement action, including
the type of action, the basis for the action, and the firm’s name, location, product(s)
implicated, and the relevant geographical market. 312 FDA staff must coordinate with any
Assistant U.S. Attorneys working on the case. 313 There seems to be a relatively clear set
of procedures for drafting and clearing FDA press releases. The Office of External
Affairs writes the first draft based on model press releases and routes it first to the
appropriate product center, 314 then to the Office of Regulatory Affairs (ORA), and then to
the lead case attorney from the Office of Chief Counsel (OCC). 315 Sometimes, one of the
FDA’s product centers writes the first draft, then seeks review. Once these three offices
review the press release for accuracy, the Office of External Affairs will “route it through
… standard press release clearance process, which involves top agency officials.” 316
After this, the Office of External Affairs solicits final edits from the offices. 317
FDA practices. I interviewed Heidi Rebello, the Acting Assistant Commissioner for
Media Affairs in the FDA’s Office of External Affairs, who described FDA practices.
Although former FDA officials recalled that FDA employees followed informal customs
rather than written policies, 318 current FDA officials stress the importance of written
policies. 319 According to Rebello, FDA press officers are “intimately aware” of these
policies. 320 Staff are required to follow standard operating procedures, and their
performance evaluations consider how well they do so. 321 The internal policies are very
detailed, and Rebello makes minor updates frequently. 322 New employees are trained on
these procedures and given hard copies as part of their orientation packets. 323 Rebello
also noted that FDA’s internal policies and procedures for issuing press releases are
consistent with the other federal agencies at which she has worked (the EPA and
USDA). 324

311

Id. at § 6-2-17; FDA, About FDA: Office of External Affairs Organization,
http://www.fda.gov/AboutFDA/CentersOffices/OrganizationCharts/ucm380930.htm.
312
Id. at Ex. 6-10.
313
Id.
314
The FDA has six product “centers”: the Center for Food Safety and Applied Nutrition (CFSAN);
the Center for Veterinary Medicine (CVM); the Center for Biologics Evaluation and Research (CBER); the
Center for Tobacco Products (CTP); the Center for Drug Evaluation and Research (CDER); and the Center
for Devices and Radiological Health (CDRH). See FDA, About FDA, FDA Organization Overview,
http://www.fda.gov/AboutFDA/CentersOffices/OrganizationCharts/ucm380930.htm.
315
Id. at Ex. 6-10.
316
Id.
317
Id.
318
Interview with Richard Williams, supra note 308; Interview with Wayne Pines, supra note 224
(speaking to FDA practices when he was at the agency).
319
Interview with Heidi Rebello, supra note 34.
320
Id.
321
Id.
322
Id.
323
Id.
324
Id.

38

Forms of publicity. FDA publicity is packaged in several different forms, perhaps due to
its obligation to warn the public of product risks. My earlier review found that FDA
makes announcements about specific products or companies in 28 different forms, 325
most of which read as product warnings. The agency’s Newsroom site houses its press
announcements, including news releases, statements, and transcripts of press conferences.
It also lists other resources, including Warning Letters, the weekly “tip sheet” for media,
and the FDA’s blog. 326 But beyond these five forms, the FDA uses at least 23 other forms
(undoubtedly there are more) to warn the public about specific products:
Forms of FDA Product Announcements
•
•
•
•
•
•
•
•
•
•
•

Advice for Patients;
Consumer Updates;
Field Action Notification;
Field Correction;
Frequently Asked Questions;
Important Information;
Important Customer Notification;
Important Notice;
Important Safety Information;
Information Alert;
Information for Health Care Professionals;

•
•
•
•
•
•
•
•
•
•
•

Market Withdrawal;
Notice of Field Correction;
Notice to Readers;
Product Withdrawal;
Public Health Advisory;
Public Health Notification;
Recall;
Safety Communication;
Urgent Instruction Correction;
Urgent Removal; and
Urgent Notification.

Some of these labels suggest different intended audiences, and some labels have legal
significance. For example, product “corrections,” “recalls,” and “withdrawals” have
different regulatory meanings. 327 Moreover, these announcements may not be mutually
exclusiveeach could be accompanied by a separate press release, Warning Letter, or
the like. In short, the FDA often uses multiple overlapping announcements to
communicate product risks. The point is not to question how the FDA labels these
announcements, but simply to note their volume and variety. FDA publicity, broadly
construed, comes in many forms. 328
Warning Letters. Some of these forms, such as Warning Letters and Talk Papers,
have long caused confusion. Both have been used to publicize FDA’s objections to
specific products or conduct. For example, FDA publishes hundreds if not thousands of
Warning Letters on its web site that identify specific objections to specific products or
practices. 329 Warning Letters are not formal enforcement action; they typically precede it.
The letters are used to notify individuals and firms of alleged violations, often based on
inspectional findings, and give firms “an opportunity to take voluntary and prompt
corrective action” before FDA initiates enforcement. 330 Although FDA explains that it is
not required to warn companies before taking enforcement action, “most individuals and
325

Cortez, supra note 7, at 1410.
FDA, Newsroom, http://www.fda.gov/NewsEvents/Newsroom/default.htm.
327
Cortez, supra note 7, at 1410.
328
Id. at 1409.
329
FDA, Inspections, Compliance, Enforcement, and Criminal Investigations: Warning Letters,
http://www.fda.gov/ICECI/EnforcementActions/WarningLetters/ (last visited July 20, 2015).
330
FDA, REGULATORY PROCEDURES MANUAL, supra note 294, at 4-1-1.
326

39

firms will voluntarily comply with the law.” 331 The agency emphasizes that “[a] Warning
Letter is the agency’s principal means of achieving prompt voluntary compliance” with
the statute and regulations. 332 Less frequently, and not recently, FDA has used Talk
Papers to publicize its objections to company conduct, even though Talk Papers were
ostensibly designed to guide FDA staff internally. 333 Talk Papers are no longer used,
according to FDA officials. 334
FDA.gov. Perhaps equally important is the massive amount of information that FDA
publishes about companies and products on its web site, www.fda.gov. Like other
agencies, the FDA is required to post important information online. 335 But perhaps more
than other agencies, the FDA can publish a large variety of documents with information
adverse to regulated parties, including legal complaints, inspectional observations,
product recalls, Warning Letters, and other agency objections that have not been fully
resolved or adjudicated. 336 (Note, however, that comments submitted to the docket on
FDA’s Transparency Initiative indicated public interest in receiving such information.337)
Although the FDA has long tried to distinguish active publicity versus passive
disclosure, 338 the distinction has eroded during an era of sprawling agency web sites that
post thousands of documents that are readily available to the media and trade press. 339
Survey of FDA press releases. A major feature of my earlier research was a substantive
review of all “press announcements” posted on the FDA’s web site between 2004 and
2010. 340 A chart with my findings is reproduced in Appendix D. I found that during this
331

Id.
Id.
333
The public was long confused about what a “Talk Paper” signified from the agency. I described this
confusion and the FDA’s changing explanations for Talk Papers in my 2011 article. Cortez, supra note 7, at
1410 n.243. Originally, FDA explained that Talk Papers were intended for internal use as a way to ensure
that agency staff responded consistently to public questions on current topics of interest. However, the FDA
later explained that it distributed Talk Papers to the media. Wayne Pines explained during our interview
that Talk Papers were designed to allow FDA to make external, public announcements without having to go
through the HHS process for clearing press releases. Interview with Wayne Pines, supra note 224. Thus, a
document ostensibly created for internal uses was used externallywhich might be the case with much of
the material published on FDA’s web site.
334
Interview with Heidi Rebello, supra note 34.
335
See, e.g., Electronic Freedom of Information Act Amendments of 1996, Pub. L. No. 104-231, 110
Stat. 3048 (codified at 5 U.S.C. § 552); Cortez, supra note 7, at 1392. Note, also, that Congressional
directives require FDA to post information such as “signals of safety concerns” even if not “proven” at the
time of publication.
336
Cortez, supra note 7, at 1411.
337
FDA, FDA Transparency Initiative,
http://www.fda.gov/AboutFDA/Transparency/TransparencyInitiative/ (last updated Apr. 22, 2014).
338
See, e.g., 42 Fed. Reg. at 12,436-37 (distinguishing adverse publicity from the FDA Consumer
magazine, the Drug Bulletin, and other publications reporting actions taken by FDA); Cortez, supra note 7,
at 1411-12 n.252.
339
Cortez, supra note 7, at 1412.
340
Id. at 1412-13. The agency seems to use the terms “press announcement” and “press release”
synonymously, and still posts them on its web site. FDA, Press Announcements,
http://www.fda.gov/NewsEvents/Newsroom/PressAnnouncements/default.htm (last visited July 21, 2015).
The site contains an archive of press releases back to 2004. See, e.g., FDA, News and Events, 2004 Press
Announcements, http://www.fda.gov/newsevents/newsroom/pressannouncements/2004/default.htm (last
332

40

seven-year period, FDA issued 1,542 unique press releasesa little less than one every
business day. 341 Of those, 65% (1,009) identified a specific product, company, or
individual. 342 Of this group, 62% (622) were negative or adverse in some way; most of
the positive announcements publicized product approvals by FDA. 343 And of the 622
press releases that both identified a specific product or party and were adverse in some
way, 74% (463) involved some sort of preliminary or pending agency action that had not
yet reached a final, determinative conclusion. 344 Thus, around 30% of all press releases
during this time (463 out of 1,542) qualified as adverse publicity involving a pending or
preliminary agency action. 345
Of course, many of these announcements involved product recalls, which are often based
on Health Hazard Evaluations and other scientific analyses. And many other
announcements undoubtedly involved actions that concluded with successful judgments,
orders, or settlements for the agency, or voluntary compliance by the firm. 346 Although
the practice of issuing such announcements certainly is understandable given FDA’s duty
to alert the public to health risks, the sheer volume of early-stage adverse announcements
may raise the risk of errors. 347
Scientific uncertainty. As noted in my earlier research, “FDA is understandably
protective of its duty to warn the public of dangerous products and other health risks,”
and “routinely emphasizes that it must warn the public of health risks, even when acting
on limited information and scientific uncertainty.” 348 During interviews, FDA officials
emphasized that the agency uses its best judgments of the science and public health risks
when deciding to communicate with the public. 349 Indeed, courts have recognized that
FDA and other agencies must exercise judgment to decide when “it is more desirable to
make a decision based on the currently available information than to wait for more
complete data or more confirmation of the existing data.” 350 After the FDA rescinded a
1971 warning that canned green beans might contain botulism, Commissioner Charles
Edwards defended the agency’s decision to warn the public before reaching a definitive
conclusion: “In dealing with life or death problems like botulism, there are times when
the public interest demands action before the scientific case is complete. The decision
always must be made in favor of consumer protection.” 351 This stance is consistent with
other FDA disclosure and reporting practices, including its adverse event reporting
visited July 21, 2015).
341
Cortez, supra note 7, at 1413 (this number excludes duplicate press releases issued in foreign
languages).
342
Cortez, supra note 7, at 1413.
343
Id. at 1413; Interview with Wayne Pines, supra note 224 (noting that a high proportion of FDA
press releases announce product approvals).
344
Cortez, supra note 7, at 1413.
345
Id. at 1413-14.
346
Id. at 1414.
347
Id.
348
Id. at 1403.
349
Interview with Ann Wion, supra note 222.
350
Fisher Bros., 46 F.3d at 287.
351
HEW Release No. 71-67 (Nov. 1, 1971); Gellhorn, supra note 7, at 1415 n.142; Cortez, supra note
7, at 1403.

41

system, which requires reports of adverse events “associated” with a product even before
causation can be established. 352 Today, FDA officials explain that the agency has made
great strides improving its ability to investigate the sources of foodborne illnesses, for
example, which also improves the agency’s confidence in the accuracy of early
announcements. 353 In short, the FDA generally engages in significant scientific analyses
and review before publicizing problems with products.
Risk communication. Along these same lines, FDA is improving its understanding of
how to communicate risk information effectively. The agency has a Risk Communication
Advisory Committee that has published guides and strategic plans discussing how best to
communicate risks associated with regulated products. 354 Thus, the FDA actively selfreflects on its communications practices.
* * *
Social media. FDA public outreach is prolific, no more so than on social media. In
addition to a blog, email alerts, videos, and podcasts, the FDA maintains social media
accounts on Facebook, Pinterest, Flickr, YouTube, and Twitter. 355 Currently, the FDA
maintains 17 different Twitter accounts, including FDA Drug Information, 356 FDA
Food, 357 and FDA Recalls. 358 FDA Recalls and FDA MedWatch identify products and
firms in their announcements:

Other FDA Twitter accounts use company-specific information more sparingly. For
example, FDA Tobacco includes a string of public health messages, 359 and the FDA
Twitter account for medical devices includes a string of notices for new guidance
documents and upcoming workshops. 360 The FDA’s account on the photo sharing site
Flickr includes recalls, with photos of the labels of products being recalled. 361

352

21 C.F.R. § 314.80; Cortez, supra note 7, at 1403.
Interview with Ann Wion, supra note 222.
354
FDA, Risk Communication Advisory Committee,
http://www.fda.gov/AdvisoryCommittees/CommitteesMeetingMaterials/RiskCommunicationAdvisoryCom
mittee/default.htm (last visited Aug. 5, 2015).
355
FDA, Interactive Media, http://www.fda.gov/NewsEvents/InteractiveMedia/default.htm (last
updated Apr. 15, 2015).
356
FDA, FDA Drug Information, https://twitter.com/FDA_Drug_Info (last visited July 22, 2015).
357
FDA, FDA Food, https://twitter.com/fdafood (last visited July 22, 2015).
358
FDA, FDA Recalls, https://twitter.com/FDArecalls (last visited July 22, 2015).
359
FDA, FDA Tobacco, https://twitter.com/FDArecalls (last visited July 22, 2015).
360
FDA, FDA/CDRH Industry, https://twitter.com/FDACDRHIndustry (last visited July 22, 2015).
361
See, e.g., FDA, Recalled – 0.9% Sodium Chloride Injection, USP; 50mL and 100mL,
https://www.flickr.com/photos/fdaphotos/19837034796/ (July 17, 2015).
353

42

HHS social media policies. Social media is handled primarily by the Web and Digital
Media Staff within the FDA’s Office of External Affairs. 362 As with press releases and
other communications, FDA follows HHS guidelines. HHS identifies well over a dozen
federal policies that apply to HHS agencies’ use of social media, including policies
governing internal agency approvals, information security, privacy, and “Linking, Liking,
Following, and Endorsement.” 363 The policies emphasize that all “official uses of social
media must be approved” and that the “decision to use a social media tool (or
combination of tools) must be based on a strategic communications plan and must
address the commitment of resources necessary to manage and maintain the public
engagement.” 364 HHS also requires that “[a]ll content posted to third-party sites should
also be verifiable through an agency’s official site,” and “provide a link back to the
agency’s official site.” 365 Finally, HHS urges employees to consider whether “following
an organization [on social media] may convey endorsement of the entire entity, while
retweeting or reposting content from another entity may only imply endorsement of the
content that is being reposted.” 366 FDA staff also noted that the GSA guidelines apply to
the agency’s use of social media. 367 In short, there are many different HHS and
government-wide rules and guidelines that apply to FDA social media use.
* * *
FDA databases. The FDA maintains several databases that track problems with products
and/or manufacturers. For example, the FDA Enforcement Report database displays
recalls for all regulated products, including biologics, cosmetics, devices, drugs, food,
and veterinary drugs. 368 The FDA Adverse Event Reporting System (FAERS) includes a
database of medication errors and adverse drug events reported to the agency. 369 A
similar, searchable database exists for medical devices. 370 FDA also maintains a
searchable database of inspection result classifications for manufacturing facilities, 371 and
a list of people debarred from submitting drug product applications. 372 There are, of
362
Interview with Heidi Rebello, supra note 34; FDA, Web and Digital Media Staff,
http://www.fda.gov/AboutFDA/CentersOffices/OC/OfficeofExternalAffairs/ucm342971.htm (last visited
Aug. 5, 2015).
363
HHS, Policies that Apply to Social Media, http://www.hhs.gov/web/socialmedia/policies/ (last
visited Aug. 5, 2015).
364
Id.
365
Id.
366
Id.
367
Interview with Heidi Rebello, supra note 34; GSA, DigitalGov, supra note 11.
368
FDA, Enforcement Reports, http://www.fda.gov/Safety/Recalls/EnforcementReports/default.htm
(last visited July 22, 2015). Although reports are separated by week, users can search the entire database,
dating back to 2004.
369
FDA, FDA Adverse Event Reporting System (FAERS),
http://www.fda.gov/Drugs/GuidanceComplianceRegulatoryInformation/Surveillance/AdverseDrugEffects/
default.htm (last visited July 22, 2015).
370
FDA, MAUDE – Manufacturer and User Facility Device Experience,
https://www.accessdata.fda.gov/scripts/cdrh/cfdocs/cfmaude/search.cfm (last visited July 22, 2015).
371
FDA, Inspection Classification Database Search, http://www.accessdata.fda.gov/scripts/inspsearch/
(last visited July 22, 2015).
372
FDA, FDA Debarment List (Drug Product Applications),
http://www.accessdata.fda.gov/scripts/inspsearch/ (last visited July 22, 2015).

43

course, databases that do not necessarily focus on the negative. For example, the FDA
maintains searchable databases of product approvals. Other representative FDA databases
are included in Appendix E. 373 FDA officials explain that some of these databases
include information that must be published by statute. 374
Open FDA. The FDA is beginning to publish these and other databases in more userfriendly formats on its Open FDA site. 375 Currently, Open FDA has separate pages for
drugs, devices, and food. All three include an Enforcement Reports database. 376 The drug
and device sites also include adverse event databases. 377 Open FDA publishes both
individual reports and trend analyses. For example, it noted that as of July 2015, the
adverse drug event database contained nearly five million reports since 2004, with an
interactive chart showing the number per year. 378 To former FDA officials, these “open
data” initiatives are nothing new to the FDA, 379 which has maintained an adverse event
database in some form since 1967, 380 and has probably published it online for nearly two
decades. A former official explains that the new “Open FDA” initiative 381 takes for
granted that FOIA long ago “opened the FDA.” 382 Current FDA officials emphasize that
the agency is trying to make public information that could be subject to FOIA requests, or
otherwise are required to be published by statute. 383
Disclaimers. Some of the FDA’s online databases include noteworthy disclaimers about
the accuracy and reliability of the data. For example, FDA publishes a large database of
reports from hospitals, manufacturers, and others who suspect that a medical device may
have caused or contributed to death or serious injury. Below the search fields are several
disclaimers, including the following two:
Although [Medical Device Reports] are a valuable source of information, this passive
surveillance system has limitations, including the potential submission of incomplete,
inaccurate, untimely, unverified, or biased data. In addition, the incidence or prevalence
of an event cannot be determined from this reporting system alone due to potential underreporting of events and lack of information about frequency of device use.
***
Confirming whether a device actually caused a specific event can be difficult based
solely on information provided in a given report. Establishing a cause-and-effect

373
This site also includes searchable product databases. FDA, For Industry: Search Databases,
http://www.fda.gov/ForIndustry/FDABasicsforIndustry/ucm234631.htm (last updated Apr. 13, 2015).
374
Interview with Jarilyn Dupont, supra note 286.
375
FDA, Open FDA, https://open.fda.gov/ (last visited July 23, 2015).
376
Id.
377
Id.
378
FDA, Adverse Drug Event Reports Since 2004, OPEN FDA, https://open.fda.gov/drug/event/ (last
visited July 22, 2015).
379
Interview with Peter Barton Hutt, supra note 237.
380
Dr. David Gortler, Adverse Event Database (AERS Database),
http://faculty.georgetown.edu/dg298/adverse-event-database.html (last visited July 22, 2015).
381
FDA, Open FDA, https://open.fda.gov/ (last visited July 22, 2015).
382
Interview with Peter Barton Hutt, supra note 237.
383
Interview with Mark Raza, supra note 293.

44

relationship is especially difficult if circumstances surrounding the event have not been
verified or if the device in question has not been directly evaluated. 384

Similarly, the FDA’s adverse drug event database notes that the “data does have
limitations”:
First, there is no certainty that the reported event (adverse event or medication error) was
actually due to the product. FDA does not require that a causal relationship between a
product and event be proven, and reports do not always contain enough detail to properly
evaluate an event. Further, FDA does not receive reports for every adverse event or
medication error that occurs with a product. Many factors can influence whether or not an
event will be reported, such as the time a product has been marketed and publicity about
an event. Therefore, FAERS data cannot be used to calculate the incidence of an adverse
event or medication error in the U.S. population. 385

Thus, the FDA seems to appreciate the value of providing context for negative data. It is
less clear whether public audiences read or appreciate the FDA’s disclaimers. However,
FDA officials do reiterate these caveats to reporters who use these databases to write
stories, and work with reporters to help them understand the nature of the data. 386 FDA
officials cited significant interest by the media and other groups in adverse events
associated with childhood vaccines. 387 FDA staff spent extensive time and resources in
the 1990s explaining the nature of the information posted in its adverse event databases,
including basic concepts like numerators and denominators and what kinds of
conclusions could fairly be drawn from the data. 388
Objections to FDA databases are rare. FDA officials could not recall instances in which
manufacturers objected to information published in one of its databases. 389 Perhaps this is
because the FDA regularly posts physician labeling for each product online shortly after
the agency approves the product. 390 The approved physician labeling includes a
significant amount of negative information uncovered from extensive clinical testing,
including specific warnings, precautions, and adverse reactions (which often include data
related to deaths and other serious complications). 391 Thus, adverse events posted in the
FDA’s online databases may replicate dangers and deaths that are forecasted in the
approved labeling already published online.
* * *

384

FDA, MAUDE – Manufacturer and User Facility Device Experience,
https://www.accessdata.fda.gov/scripts/cdrh/cfdocs/cfmaude/search.cfm#disclaimer (last visited July 23,
2015).
385
FDA, FAERS, supra note 369.
386
Interview with Heidi Rebello, supra note 34.
387
Interview with Mark Raza, supra note 293.
388
Id.
389
Interview with Ann Wion, Mark Raza, and Heidi Rebello, supra notes 222, 293, 34.
390
Interview with Ann Wion and Heidi Rebello, supra notes 222, 34.
391
See 21 C.F.R. §§ 201.56, 201.57.

45

Best practices. FDA officials are in favor of the Conference’s identifying best
practices. 392 They stress that the FDA prides itself on maintaining good procedures and
ensuring that employees know and understand these procedures. 393 The agency takes a
very “intentional approach” to its internal procedures. 394 Ann Wion, Senior Advisor to
the Chief Counsel, noted that without such procedures, agencies may be more likely to
make mistakes in issuing publicity; having procedures in place does not completely
eliminate mistakes, but makes them less likely. 395 Former FDA officials seem to agree.
The former Associate Commissioner for Public Affairs supports the Conference’s
recommending that agencies adopt written policies governing their publicity practices. 396
He explained that, after leaving the agency, he thought it would be worthwhile for FDA
to develop a rule or guidance on its publicity practices. 397 However, he cautioned that
such a document must be formulated properly, noting that it can be difficult to commit
agency practices to writing. 398 Like other agency officials, he also cautioned that any
written policy would have to define practices and procedures broadly. 399 Highly-specific
requirements might be difficult to follow, might unnecessarily constrain the agency, and
would require numerous exceptions. 400 Unforeseen circumstances will always arise. 401
He suggested that recommendations express broad statements of principles rather than
technical details. 402 More importantly, if the agency does adopt written policies, it should
take care to train officials on the policy and ensure that they understand the power of
publicity to affect companies and products. 403 These lessons are not necessarily passed
down from generation to generation at the agency, and each new generation should not
have to re-learn these lessons anew. 404 My interview with Heidi Rebello suggests that the
FDA currently meets many of these recommendations. 405
Information Quality Act. The FDA adopted its own information quality guidelines, 406 and
is also subject to those of HHS and OMB. 407 Like many other agencies, both FDA and
392

Interview with Ann Wion, supra note 222.
Id.
394
Id.
395
Id.
396
Interview with Wayne Pines, supra note 224.
397
Id.
398
Id.
399
Id.
400
Id.
401
Id.
402
Id.
403
Id.
404
Id.
405
Interview with Heidi Rebello, supra note 34.
406
HHS, Office of the Assistant Secretary for Planning and Evaluation (ASPE), HHS Guidelines for
Ensuring and Maximizing the Quality, Objectivity, Utility, and Integrity of Information Disseminated to
the Public (Oct. 1, 2002), http://aspe.hhs.gov/report/hhs-guidelines-ensuring-and-maximizing-qualityobjectivity-utility-and-integrity-information-disseminated-public/f-food-and-drug-administration.
407
HHS, HHS Guidelines for Ensuring and Maximizing the Quality, Objectivity, Utility, and Integrity
of Information Disseminated to the Public, http://aspe.hhs.gov/report/hhs-guidelines-ensuring-andmaximizing-quality-objectivity-utility-and-integrity-information-disseminated-public. FDA also maintains
its own standards for peer review of scientific information. See FDA, Peer Review of Scientific
Information and Assessments,
393

46

HHS guidelines narrow the OMB’s exemption for press releases. FDA exempts press
releases “unless they contain new substantive information not covered by previous
information dissemination,” and HHS guidelines “do not apply to … press releases that
support the announcement or give public notice of information that the agency
disseminates elsewhere.” 408 Although the HHS guidelines do not explicitly state that
press releases are exempt only if they include new information not covered by the IQA,
that seems to be the intent of the exemption. Also, like some other agencies, HHS
exempts “opinions, when the agency’s presentation makes clear that what is disseminated
is someone’s opinion rather than fact or agency views.” 409 This language might
reasonably be construed as exempting the FDA’s adverse event databases, which include
reports from patients, physicians, facilities, and other users. HHS guidelines emphasize
that disseminating timely and accurate information to the public “is a critical component
of the missions of many HHS programs,” and thus HHS and its agencies play “a major
role in information dissemination.” 410 HHS guidelines, more than most, emphasize these
core functions and explicitly retain discretion to protect public health, particularly during
emergencies. 411 FDA guidelines also emphasize that the agency “may need to
disseminate information without fully applying the principles for assuring the quality,
objectivity, utility, and integrity of the information” disseminated, particularly in public
health emergencies. 412
IQA litigation. Recently, the FDA and HHS were sued to correct a 2001 statement to
the Drug Enforcement Administration (DEA) that marijuana had no accepted medical
usesa highly contested assertion that is periodically reconsidered by the agencies. The
plaintiffs, Americans for Safe Access, petitioned HHS in 2004 to correct its public
statements to this effect. In 2007, a district court granted the agencies’ motion to dismiss
on the grounds that the IQA does not provide judicial review. 413 In 2010, the 9th Circuit
affirmed the decision, finding that both courts lacked jurisdiction because the failure of
HHS to respond immediately to the petition did not constitute final agency action (the
issue had been pending in a rulemaking petition). 414

http://www.fda.gov/ScienceResearch/SpecialTopics/PeerReviewofScientificInformationandAssessments/de
fault.htm (page last updated July 17, 2015).
408
HHS Guidelines, supra notes 407, at § 3; FDA Guidelines, supra note 406, at Part II.
409
HHS Guidelines, supra note 407, at § 3.
410
Id. at § 4.b.
411
Id. at § 4.h. (“Several HHS agencies are responsible for dissemination of authoritative health,
medical and safety information on a real time basis in order to protect the health of the public against
urgent and emerging threats. Accordingly, nothing in these guidelines relating to reproducibility or peer
review shall be construed to limit or delay the timely flow of vital information from agencies to medical
providers, patients, health agencies, and the public. HHS reserves the right to waive information quality
standards temporarily for agencies addressing urgent situations (e.g., imminent threats to public health or
homeland security) in accordance with the latitude described in both the OMB and agency specific
guidelines.”).
412
FDA Guidelines, supra note 406, at Part VIII.
413
Americans for Safe Access v. HHS, 2007 WL 2141289, at *3 (N.D. Cal. 2007). The court granted
plaintiffs leave to amend their complaint because HHS and FDA did not respond to their IQA petition in a
timely manner. See also Americans for Safe Access v. HHS, 2007 WL 4168511 (N.D. Cal. 2007).
414
Americans for Safe Access v. HHS, 399 Fed. Appx. 314 (9th Cir. 2010).

47

Ombudsman. Like other agencies, the FDA has an Office of the Ombudsman, housed
within the Office of Scientific Integrity. 415 But perhaps unlike other agencies, FDA also
has ombudsmen in five of its six product centers. 416 If the center ombudsmen cannot
resolve a problem, it will be escalated to the main Office of the Ombudsman. 417 The FDA
Office of the Ombudsman helps coordinate complaints under the IQA, 418 and the various
FDA ombudsman offices do handle complaints about FDA publicity. Most offices report
that they receive one or two such complaints per year.
Corrections. FDA officials explain that parties should have an opportunity to request
corrections from FDA or otherwise express their objections to FDA publicity. 419
However, they believe informal discussion would be more effective than formal requests,
such as filing a Citizens Petition. 420 Jarilyn Dupont, Director of Regulatory Policy,
explained that an FDA press release usually occurs at the end of a long process and after
“hours of meetings” with the company; it is not the initial contact. 421 Thus, FDA press
releases rarely will be a surprise to companies, and companies will have several points of
contact if they do have complaints. The Office of Media Affairs does field objections
regarding press announcements, but these are rare. 422

415
FDA, The FDA Ombudsman,
http://www.fda.gov/AboutFDA/CentersOffices/OC/OfficeofScientificandMedicalPrograms/ucm197508.ht
m (last updated Apr. 16, 2015).
416
FDA, Product Center Ombudsmen,
http://www.fda.gov/AboutFDA/CentersOffices/OC/OfficeofScientificandMedicalPrograms/ucm2005612.ht
m (last updated Mar. 18, 2015). Only the FDA’s Center for Food Safety and Applied Nutrition (CFSAN)
lacks its own product center ombudsman.
417
Id.
418
FDA, FDA’s Office of the Ombudsman: Dispute Resolution and Problem Solving, at 2,
http://www.fda.gov/downloads/aboutfda/centersoffices/oc/officeofscientificandmedicalprograms/ucm1643
30.pdf (last visited July 22, 2015).
419
Interview with Ann Wion, supra note 222.
420
Id.
421
Interview with Jarilyn Dupont, supra note 286.
422
Interview with Heidi Rebello, supra note 34.

48

B. U.S. Federal Trade Commission (FTC)
The FTC is worth examining for a few reasons. First, it was a focus of Professor
Gellhorn’s report that formed the basis for Recommendation 73-1. Gellhorn praised the
FTC for having “the most sophisticated publicity policies and practices of the regulatory
and executive agencies examined.” 423 By 1973, not only had the D.C. Circuit upheld the
FTC’s practices, 424 but the Commission had already articulated its policies “in
continually evolving agency rules, manuals, and guidebooks.” 425 Thus, it is worth
reexamining whether the FTC remains a useful model for other agencies. Second, as a
classic enforcement agency, the FTC’s approach to publicizing investigations, complaints,
and settlements is worth revisiting, as is its use of social media. Finally, the
Commission’s database practices are worth examining. The FTC maintains the Consumer
Sentinel Network (“Sentinel”), a massive, nonpublic database of consumer complaints
made available to law enforcement organizations. 426 The Commission resists open-ended
requests to publicly disclose complaints in Sentinel, 427 but makes discrete disclosures in
response to particularized FOIA requests. In this part I examine the FTC’s publicity
practices, database practices, social media practices, and potential reforms.
Statutory authority. Like other agencies, the FTC can make a strong case that it has broad,
implicit statutory authorityand perhaps even explicit authorityto issue publicity. 428
Section 46(f) of the FTC Act authorizes the Commission “[t]o make public from time to
time such portions of the information obtained by it … as are in the public interest” and
“to provide for the publication of its reports and decisions in such form and manner as
may be best adapted for public information and use.” 429 Long ago the D.C. Circuit
interpreted this language as authorizing the FTC “to alert the public of suspected
violations of the law by factual press release,” noting that “Congress obviously has been
long aware of and acquiesced in the Commission’s press release procedures.” 430 More
recently, district courts have interpreted this language as “explicitly authoriz[ing] the
FTC to make news releases.” 431
Benefits of publicity. The FTC’s public information policies are based on the premise that
the public has a “right to know what the Commission is doing, tempered by the

423

Gellhorn, supra note 7, at 1388.
FTC v. Cinderella Career & Finishing Schools, Inc., 404 F.2d 1308, 1309 (D.C. Cir. 1968) (refusing
to grant review of an FTC news release announcing that the Commission had “reason to believe” that
several companies were engaged in unfair and deceptive trade practices).
425
Gellhorn, supra note 7, at 1388; Cortez, supra note 7, at 1416.
426
FTC, Consumer Sentinel Network, https://www.ftc.gov/enforcement/consumer-sentinel-network
(last visited July 6, 2015).
427
Complaint, Ayuda, Inc. v. Fed. Trade Comm’n, No. 1:13 Civ. 1266 (D.D.C. filed Aug. 20, 2013).
428
Cortez, supra note 7, at 1416.
429
15 U.S.C. § 46(f)
430
Cinderella, 404 F.2d at 1314. See also, Bristol-Myers Co. v. FTC, 424 F.2d 935, 940 (D.C. Cir.
1970), in which the D.C. Circuit found that the FTC “is specifically authorized by statute to publicize
information acquired by it”; Indus. Safety Equip. Ass’n v. EPA, 837 F.2d 1115, 1119 (D.C. Cir. 1988).
431
FTC v. Freecom Communications, 966 F. Supp. 1066, 1067 (D. Utah 1997); Trudeau v. FTC, 384 F.
Supp. 2d 281, 290-91 (D.D.C. 2005) (citing Cinderella and Bristol-Myers).
424

49

parameters established by the FTC Act and the Commission’s Rules.” 432 FTC officials
also emphasize that the Commission is not only a law enforcement agency, but also
conducts consumer education and outreach. 433 Thus, warning consumers of unfair or
deceptive business practices is a core function of the Commissionone long intended by
Congress and recognized by courts. In FTC v. Cinderella Career & Finishing Schools,
Inc., the D.C. Circuit explained:
If the unsophisticated consumer is to be protected in any measure from deceptive
or unfair practices, it is essential that he be informed in some manner as to the
identity of those most likely to prey upon him… Certainly advice through news
media as to actions being taken by a government agency in his behalf constitutes
a prophylactic step…. 434

The FTC’s Office of Public Affairs (OPA) drafts press releases to be understandable to
ordinary consumers and works with journalists to explain complex Commission
actions. 435 The director of OPA emphasized that his office wants the public to clearly
understand the Commission’s work. 436
Operating Manual. Gellhorn applauded the FTC’s Public Information Policy Guidebook,
published in 1972, 437 as being “both sensible and sensitive,” revealing “a thoughtful
attempt to balance administrative efficiency, the public’s need for warning, and private
interests.” 438 Now, the Commission articulates some of its policies in an Operating
Manual, published online. 439 The Manual addresses “news releases” in various chapters,
but focuses on them in Chapter 17 (Public Information and Education). The section on
news releases is brief:
News releases are issued to inform the public of actions taken by the
Commission, such as the issuance of complaints, decisions and orders,
acceptance of consent agreements, promulgation of trade regulation rules, and
other significant actions. When a memorandum recommending such action is
forwarded to the Commission, a copy will also be circulated to OPA. That Office
will, after consultation with staff and review by the appropriate Bureau Director,
Office Head, or designee, prepare a news release appropriate to the Commission
action, not necessarily the staff recommendation.440

432

FTC Operating Manual (Release 14-01), at Ch. 17.2.1.
Interview with officials from the FTC Office of General Counsel, supra note 16.
434
See, e.g., Cinderella Career & Finishing Schools, supra note 30, at 1314.
435
Interview with officials from the FTC Office of Public Affairs, supra note 34.
436
Id.
437
ACUS maintains on file a version of the FTC’s Public Information Policy Guidebook updated in
1975. However, only two pages of the policy are included (pages 14-15), and the document seems to be
incomplete.
438
Gellhorn, supra note 7, at 1388; Cortez, supra note 7, at 1416.
439
See FTC, FTC Administrative Staff Manuals, https://www.ftc.gov/about-ftc/foia/foia-resources/ftcadministrative-staff-manuals.
440
FTC OPERATING MANUAL, supra note 432, at Ch. 17.2.2.
433

50

Limited use of Operating Manual. Although my interview with FTC officials suggests
that the Commission roughly follows the procedures above, officials emphasize that other
sections of the Operating Manual are outdated in parts and may not be closely followed
at all times. 441 They describe the Manual as a “framework” for staff rather than a “stepby-step guide” on how to do something. 442 In fact, many FTC staff may not have looked
at the Manual recently, as they are aware that more updated procedures may be available
elsewhere. 443 It was written in the late 1970s, and some parts have not been updated since
then. 444 However, Chapter 17, which focuses on news releases, was updated in 2014; at
that time and periodically since then, the Commission has reminded its staff about the
FTC press policy. 445 In addition, OPA has a small staff and all of them are familiar with
the Manual and the press policy. 446 OPA placed an emphasis on having the press releases
be “accurate” and “fair.” 447
Press release practices. The OPA director described Commission practices for issuing
press releases. When drafting a press release related to an enforcement action, for
example, OPA will receive supporting documents from the Commission’s litigating team,
and will draft a one- to two-page press release based on these documents. 448 If the press
release announces the initiation of a law enforcement proceeding, OPA explains the
nature of the Commission’s action and makes clear that the complaint involves
allegations and not proven violations. OPA will try to use plain language to explain the
Commission action being announced. 449 OPA sends a first draft to the litigation staff,
who will review for accuracy. 450 This back-and-forth editing process continues until
relevant Commission staff are satisfied with the language of the release. 451 FTC officials
could not recall disagreements between staff; the drafting and vetting process eventually
produces a consensus. 452 If there were a disagreement, OPA and the Chairwoman both
have “final say.” 453 The process can be quite simple or quite prolonged depending on the
case. 454 All press releases deal with public actions taken by the Commission through a
vote, the announcement of a public event held by the agency, or other Commission
activities. 455 Then OPA will send the press release to the Chairwoman for approval, and
once approved, will post it publicly. 456 The OPA director emphasized that “the system
has checks and balances” to ensure the content of announcements is accurate. 457 Officials
441

Interview with officials from the FTC Office of General Counsel, supra note 16.
Id.
443
Id.
444
Id.
445
Id.
446
Interview with officials from the FTC Office of Public Affairs, supra note 34.
447
Id.
448
Id.
449
Id.
450
Id.
451
Id.
452
Interview with officials from the FTC Office of General Counsel, supra note 16.
453
Id.
454
Interview with officials from the FTC Office of Public Affairs, supra note 34.
455
Id.
456
Id.
457
Id.
442

51

in the Office of General Counsel explained that the published press release is based
closely on the public documents such as a complaint or settlement document, and that the
web version of the announcement will link to the original documents, supplemental
documents, and any Commissioners’ statements as well. 458 Officials in the Office of
General Counsel added that the press release would contain “no new information” outside
the public documents. 459 Sometimes, FTC bureau directors or the Chairwoman are
quoted in press releases. 460 Litigation staff rarely are quoted. 461
Investigations. FTC investigations are nonpublic unless otherwise directed by the
Commission. 462 Thus, according to the Manual, the existence of the investigation, the
identity of the parties, the facts, and any other nonpublic information “can be disclosed
only in accordance with the Commission’s directive and procedures.” 463 Those
procedures, described in the Manual, state that “the Commission may issue a news
release announcing a nonpublic industrywide investigation or an investigation of
practices involving a risk to public health or safety or a significant risk of economic
harm.” 464 The Commission may also announce “public investigations.” 465 However, FTC
officials explained that references to “public investigations” 466 are dated, and refer to a
time decades ago when the Commission initiated large rulemaking proceedings and
announced fact-gathering investigations. 467 The officials explained that the Commission
no longer conducts “public” investigations. 468 Nevertheless, the Manual cites the risk of
“premature adverse publicity” 469 and seems sensitive to longstanding concerns with
publicizing investigations. Later, the Manual dictates that “Staff should not initiate media
contacts about investigations or other non-public law enforcement matters under any
circumstances” and “should not respond to any press inquiry” about non-public
enforcement matters without first notifying OPA to get clearance. 470 FTC officials were
not aware of the FTC’s ever publicizing investigations, explaining that the Commission’s
blanket policy is “very careful” not to disclose them. 471 It is probably important, however,
that the Manual includes language to allow the Commission to announce investigations
when there is a significant risk to public health or economic harm. 472

458

Interview with officials from the FTC Office of General Counsel, supra note 16.
Id.
460
Interview with officials from the FTC Office of Public Affairs, supra note 34.
461
Id.
462
FTC OPERATING MANUAL, supra note 432, at Ch. 3.1.2.3.
463
Id. at Ch. 3.1.2.3.
464
Id. at Ch. 3.3.3.1.
465
Id. at Ch. 3.3.3.2.
466
Id.
467
Interview with officials from the FTC Office of General Counsel, supra note 16.
468
Id.
469
FTC OPERATING MANUAL, supra note 432, at Ch. 3.3.3.1.
470
Id. at Ch. 17.2.5.
471
Interview with officials from the FTC Office of Public Affairs, supra note 34.
472
FTC OPERATING MANUAL, supra note 432, at Ch. 3.3.3.1. The Manual also permits the
Commission to issue a news release announcing closure of an investigation when directed by the
Commission, particularly when a news release announced the investigation. Id. at Ch. 3.3.7.4.6.
459

52

No publicity absent enforcement action. FTC officials explained that the Commission
does not identify companies or individuals in press releases absent an enforcement
action. 473 The FTC may broadly warn consumers about a specific practice (for example,
alerting consumers to donation scams shortly after a natural disaster), but will publish
these as “consumer alerts” or “scam alerts” rather than press releases. 474 When it
publishes these alerts, the Commission will not name specific firms or individuals. 475
Timing press releases. Depending on the specific circumstances of the case, the
Commission occasionally will time press releases to minimize capital market
reactions. 476 Most press releases are issued during business hours. 477 FTC officials
explained that with global capital markets and after-hours trading, it would be difficult to
avoid at least some capital market reactions. 478 The Commission times press releases to
coincide with Commission votes and court filings, and takes care to issue the press
release only after the filing or the votes are public. 479 Sometimes the subject of an
enforcement action will ask to see the Commission’s press release in advance, but the
FTC declines such requests. 480
Corrections or retractions. FTC officials explain that the subjects of press releases do not
necessarily want or need to request corrections or retractions. 481 Commission staff,
including bureau directors, will often meet with the subject prior to filing a complaint,
and the subject will be aware of any ongoing investigation. 482 Thus, by the time the
Commission publishes a press release, the subject will have several points of contact
within the agency if they do object. 483
Litigation against the FTC. Despite the FTC’s sensitivity to concerns with adverse
publicity, it is one of the most frequently sued agencies. 484 The Commission has been
sued four times since 1974. 485 However, courts uniformly reject challenges that the
Commission is violating its statutory authority or acting ultra vires. 486 Moreover, in the
few instances in which parties have charged the FTC with violating its own publicity
policies, courts have rejected these challenges without much discussion. 487 Aside from
the occasional lawsuit, FTC officials could not recall any instances in which the subject

473

Interview with officials from the FTC Office of Public Affairs, supra note 34.
Id.
475
Id.
476
Id.
477
Id.
478
Id.
479
Interview with officials from the FTC Office of General Counsel, supra note 16.
480
Id.
481
Id.
482
Id. (noting an exception for fraud cases, in which the FTC must act quickly).
483
Id.
484
See Appendix C, infra; Cortez, supra note 7, at 1417.
485
Appendix C, infra.
486
Cortez, supra note 7, at 1417.
487
Id. (citing FTC v. Magui Publishers, Inc., No. CV 89-3818-RSWL, 1990 WL 132719 at *1-2 (C.D.
Cal. 1990) (rejecting a claim that the FTC violated its Operating Manual, § 17.2.5).
474

53

of an FTC press release objected to it. 488 The last objection was by Kevin Trudeau a
decade ago. 489
Trudeau v. FTC. The D.C. Circuit has addressed FTC publicity practices from time to
time over the last five decades. 490 The latest opportunity was in Trudeau v. FTC, a case
involving the Commission’s longstanding dispute with an infomercial marketer. 491 The
Commission had filed several complaints against Trudeau for marketing sham treatments
for a variety of health conditions, including obesity and cancer. 492 Five days after a court
entered a final order prohibiting Trudeau from participating in infomercials, the FTC
described the order in a press release on its web site. 493
Trudeau sued the Commission after it refused to remove the press release from its site,
arguing that the announcement mischaracterized the settlement and retaliated against him
for criticizing the FTC, in violation of both the APA and section 46(f) of the FTC Act. 494
The press release was titled “Kevin Trudeau Banned from Infomercials” and quoted an
FTC official who said that Trudeau had “misled American consumers for years” and was
a “habitual false advertiser.” 495 Trudeau’s objections were numeroushe objected to
what he deemed to be inaccurate media reports based on the press release, objected that
the FTC’s announcement was the second result on Google searches for his name, and
claimed that the announcement damaged his ability to contract with vendors, citing a
contract rescinded by Ed McMahon. 496
Both the D.C. district and circuit courts engaged in lengthy analyses of the merits,
focusing on whether the FTC’s press release was reviewable as “final agency action”
under the APA and whether the APA provided a cause of action. The District Court
granted the FTC’s motion to dismiss on both grounds, 497 which the D.C. Circuit largely
upheld. 498 Although the D.C. Circuit acknowledged that agency publicity may constitute
“final agency action” in certain circumstancesnotably, when the announcement is false
or misleading, or when it is intended as a sanctionit found that this was not such a case,
and noted that the D.C. Circuit had never encountered such a case. 499 Trudeau presented
no evidence that the FTC’s press release was false or misleading. 500 The court evaluated
488

Interview with officials from the FTC Office of Public Affairs and FTC Office of General Counsel,
supra notes 34, 16.
489
Interview with officials from the FTC Office of General Counsel, supra note 16.
490
See, e.g., FTC v. Cinderella Career and Finishing Schools, Inc., 404 F.2d 1308 (1968).
491
Trudeau v. FTC, 384 F. Supp. 2d 281 (D.D.C. 2005), aff’d, 456 F.3d 178 (D.C. Cir. 2006).
492
Trudeau, 456 F.3d at 180.
493
Trudeau, 384 F. Supp. 2d at 284-85.
494
Id. at 282-83.
495
Id. at 285; Trudeau, 456 F.3d at 195.
496
Trudeau, 384 F. Supp. 2d at 285-86; Trudeau, 456 F.3d at 196.
497
Trudeau, 384 F. Supp. 2d at 288-90.
498
Trudeau, 456 F.3d at 183-87. Note that the D.C. Circuit disagreed with the District Court’s
conclusion that it lacked jurisdiction because the press release was not “final agency action” under APA §
704, explaining that a lack of “final agency action” would not cost federal courts their jurisdiction but
would prevent the plaintiff from asserting a cause of action under APA § 704. Id. at 183-87.
499
Id. at 188-97.
500
Id. at 191-97.

54

each of Trudeau’s objections, parsing the language that the FTC used versus the language
Trudeau wanted the FTC to use. The court found that “no reasonable person could
misinterpret the press release in the ways that Trudeau suggests.” 501 The D.C. Circuit
concluded: “In the end, … it comes down to whether Trudeau has the right to take a red
pencil to the language of the FTC’s press release. He does not.”
Thus, although the FTC has had to defend its publicity practices more than most
agencies, such challenges remain relatively infrequent and uniformly unsuccessful.
* * *
Consumer Sentinel Network. The FTC also maintains the Consumer Sentinel Network, a
secure, nonpublic database of over 10 million consumer complaints, 502 accessible by
roughly 1,000 different federal, state, local, and international law enforcement bodies.503
Sentinel receives complaints from roughly 40 different law enforcement agencies and by
certain nongovernmental organizations like the Better Business Bureau. 504 Federal
agencies like the CFPB and the FBI’s Internet Crime Complaint Center also feed it
complaints. 505 The FTC has long been a repository for consumer complaints, and in 1997
the Commission created Sentinel to track complaints of fraud and identity theft. 506 Now,
the FTC sorts complaints into 30 different categories, including identity theft, debt
collection, telephone and mobile services, and many others. 507 The Sentinel network
includes three different databasesone for identity theft complaints, one for complaints
about the Do Not Call Registry, and a large database for fraud and other consumer
complaints. 508
Uses. Sentinel is an enforcement tool for the FTC and other agencies. For example, FTC
enforcement staff will query Sentinel to uncover complaint trends in different product or
service categories, or to research complaints against an existing enforcement target. 509
The Commission publishes aggregate data from Sentinel, organized by product code or
service code, but does not publish information concerning specific firms or
501

Id. at 196-97.
The FTC has a five-year data retention policy, and so purges older complaints. Thus, aggregate
complaint data does not include complaints received from 2001 to 2009. See FTC, DATA BOOK, infra note
503, at 5 n.1. The total number of complaints in Sentinel, including older complaints, is estimated to be
over 20 million. See Interview with officials from the FTC Office of General Counsel, supra note 16.
503
FTC, Consumer Sentinel Network, https://www.ftc.gov/enforcement/consumer-sentinel-network;
FTC, CONSUMER SENTINEL NETWORK DATA BOOK FOR JANUARY – DECEMBER 2014 (Feb. 2015),
https://www.ftc.gov/system/files/documents/reports/consumer-sentinel-network-data-book-januarydecember-2014/sentinel-cy2014-1.pdf (last visited July 9, 2015); Interview with officials from the FTC
Office of General Counsel, supra note 16.
504
FTC, DATA BOOK, supra note 503, at 2; Interview with officials from the FTC Office of General
Counsel, supra note 16.
505
FTC, DATA BOOK, supra note 503, at 2.
506
Interview with officials from the FTC Office of General Counsel, supra note 16; FTC, DATA BOOK,
supra note 503, at 2.
507
FTC, DATA BOOK, supra note 503, at 6 (listing 30 complaint categories by volume).
508
Ayuda, Inc. v. FTC, 2014 WL 4829574 at *1 (D.D.C. 2014).
509
Interview with officials from the FTC Office of General Counsel, supra note 16.
502

55

individuals. 510 The annual Consumer Sentinel Network Data Book does not seem to name
companies. 511 As such, FTC officials report that companies do not object to being
included in Sentinel, and the Commission does not share information with companies
who are the subject of complaints, except to the extent they might request the information
via FOIA. 512
Unverified complaints. The FTC explains that Sentinel “is based on unverified
complaints reported by consumers” and “is not based on a consumer survey.” 513 The
Commission does not verify complaints. 514 If the Commission does initiate an
enforcement action, it might use data from Sentinel to gather facts or seek affidavits.515
But entries in Sentinel are simply data points and do not form the major basis for FTC
complaints. 516 FTC officials do recommend that any agencies considering establishing
their own complaint databases use quality controls to ensure the accuracy of the
complaint intake process by outside contractors. 517 FTC officials also recommend that
agencies effectively manage consumer expectations and make clear that the agency will
not necessarily act on individual complaints. 518
Nonpublic database. As a nonpublic, inward-facing database, Sentinel should be
distinguished from public-facing counterparts like the CFPB’s Consumer Complaint
Database. 519 As such, the FTC generally opposes open-ended requests to publish
information in Sentinel.520 Any disclosure by the Commission is passive, again contrary
to public databases that actively disclose information about identified firms or individuals.
The FTC only affirmatively discloses information in Sentinel in very broad, aggregated
formats. Individual complaints are only disclosed in response to particularized FOIA
requests. 521 After the Commission created Sentinel in the late 1990s, it considered at
length what information might have to be disclosed under FOIA. 522 Although FOIA
exempts “investigatory records compiled for law enforcement purposes,” 523 the
Commission determined that there was no basis for withholding Sentinel complaints
except when the Commission could show that a particular disclosure was going to
impede an investigation in some non-conjectural fashion, or when another FOIA
510

Id.; FTC, DATA BOOK, supra note 503.
See, e.g., FTC, DATA BOOK, supra note 503.
512
Interview with officials from the FTC Office of General Counsel, supra note 16.
513
FTC, DATA BOOK, supra note 503, at 2.
514
Interview with officials from the FTC Office of General Counsel, supra note 16.
515
Id.
516
Id.
517
Id.
518
Id.
519
See, CFPB, Part IV.C. infra.
520
FTC officials have noted that open-ended disclosures would require substantial expenditures of
limited agency resources.
521
Interview with officials from the FTC Office of General Counsel, supra note 16.
522
Id.
523
FTC, FOIA Exemptions, https://www.ftc.gov/about-ftc/foia/exemptions (Exemption 7). The
Commission indicates in its annual FOIA reports that it also denies FOIA requests for complaints under
Exemption 6 (personal privacy). See FTC, Freedom of Information Act Annual Report, Fiscal Year 2014
(Oct. 1, 2013 – Sep. 30, 2014), at 3, https://www.ftc.gov/system/files/documents/reports/foia-reportfy14/2014r-fo.pdf.
511

56

exemption applied. 524 FTC officials estimate that the Commission receives roughly 1,400
FOIA requests every year, and that requests for information in Sentinel are “some
measurable percentage.” 525 Officials report that when the Commission does disclose
information from Sentinel, it is much easier to release auto-filled fields in complaints
than free-form fields that require individual review. 526 The Commission’s main concern
is releasing consumers’ personal information. 527
Ayuda v. FTC. By and large, the FTC has not been asked to make Sentinel broadly
available to the public. 528 One exception was a request by several non-profit groups,
including Ayuda and Catholic Charities, which submitted several FOIA requests for data
about all the complaints in Sentinel, including company names, contact information, and
consumers’ comments. 529 The FTC’s FOIA Unit initially denied the request due to the
burden of individually reviewing millions of complaints and redacting personal
information. 530 After an administrative appeal, the Commission granted access to the data
fields that could be released without individual review because they do not elicit freeform responses (except ZIP code fields), but denied their request for all free-form fieldsincluding company name and contact informationbecause they must be reviewed to
identify and redact personal information that is exempt from disclosure under FOIA. 531
The FTC’s FOIA Unit also denied access to company names and contact information. 532
Ayuda’s lawsuit argued that the subjects of the complaints in Sentinel do not have any
privacy interest in the accusations against them. But the D.C. District Court held for the
Commission on summary judgment on this issue, noting that “individuals accused of
wrongdoing also have a substantial privacy interest in their names and addresses not
being disclosed” because the “database contains allegations of illegal conduct, and there
is no filter for weeding out the legitimate complaints from those completely lacking in a
factual or legal basis.” 533 The court also emphasized the reputational and privacy
implications of being included in a government enforcement database:
[B]y having one’s personal information included in a complaint, that person is
both accused of an illegal activity and associated with a federal agency’s crime
enforcement effort. Cf. Fund for Constitutional Gov’t v. Nat’l Archives &
Records Serv., 485 F. Supp. 1, 6 (D.D.C. 1978) (“An individual does not lose his
right to privacy simply because he has been investigated and subsequently not
charged with any offense. Indeed, such an individual may require even greater
protection, especially where … the mere connection of an individual’s name with

524

Interview with officials from the FTC Office of General Counsel, supra note 16.
Id. at 9. Note that the FTC’s annual FOIA report does not indicate what percentage of FOIA
requests seek Sentinel information. FTC, FOIA Annual Report, supra note 523.
526
Interview with officials from the FTC Office of General Counsel, supra note 16.
527
Id.
528
Id.
529
Ayuda, Inc. v. FTC, 2014 WL 4829574 at *2 (D.D.C. 2014).
530
Id. at *3-4.
531
Id. at *2.
532
Id. at *3-4.
533
Id. at *10.
525

57

a well-known investigation may be both embarrassing and damaging.”). 534

The plaintiffs were unsuccessful in convincing the court that the public interest
outweighed the privacy rights of individuals whose information might be released. In
particular, the court rejected the argument that a broad release of Sentinel complaints
would help the public evaluate the FTC’s performance, noting that the plaintiffs’
proposed purpose for the data, which included the creation of “a consumer review tool
akin to Yelp.com,” 535 “serve purely private interests disassociated from monitoring the
agency’s functioning.” 536 The court also agreed with the FTC that Sentinel complaints
qualify as law enforcement records under FOIA Exemption 7(c). 537
* * *
Social media. Like other agencies, the FTC uses social media to communicate with the
public. The Commission currently uses Twitter, Facebook, YouTube, and LinkedIn. 538 It
has nine separate Twitter accounts, five of which are personalized for the four
Commissioners and Chairwoman. 539 FTC announcements on Twitter seem to be geared
primarily towards alerting consumers to unfair or deceptive practices, without identifying
specific violators. Although the FTC does use Twitter to highlight enforcement actions, it
tends not to name the company:

540

FTC officials explained that social media can be important for reaching younger
audiences. 541 Over half of all visitors to the FTC’s web site visit on smart phones or from
social media sites. 542
Challenges of social media. FTC officials recognized that social media can present
problems due to their truncated formats. 543 They also note that once a post is made public,

534

Id. at *11 (quoting the Supreme Court in Reporters Comm., 489 U.S. at 773).
Id. at *11.
536
Id. at *12.
537
Id. at *15.
538
FTC, Social Media, https://www.ftc.gov/news-events/social-media (last visited July 8, 2015).
539
Id.
540
FTC, Twitter, https://twitter.com/FTC (screenshot captured on July 8, 2015).
541
Interview with officials from the FTC Office of Public Affairs, supra note 34.
542
Id.
543
Id.
535

58

“it is very hard to take back.” 544 Thus, the FTC was one of the last agencies to join social
media, and did so only after the Commission had created policies to ensure its proper use
and compliance with federal obligations like the Federal Records Act. 545 These written
policies are not public 546 and were not provided at the time of our interview. Finally,
although FTC officials are aware of fake FTC social media accounts, or accounts that use
the FTC’s name, the Commission assumes that audiences can distinguish them from
authentic accounts and thus does not pay much attention to them. 547 One reason for this
assumption is the use by many social media platforms of procedures to verify the identity
of account holders, marking verified accounts with check marks or other notations.
Social media practices. FTC officials emphasized that the Commission tries to be very
careful using social media, explaining that posts can reach large audiences
immediately. 548 The Commission uses “security protocols” to limit unauthorized access
to Commission accounts, and strictly limits the Commission staff who are authorized to
post from these accounts. 549 The staff who are authorized are subject to strict
protocols. 550 FTC officials emphasized that its policies are “careful” and “robust.” 551 The
Office of Public Affairs has a dedicated staff member responsible for social media. 552
Social Media Task Force. The Commission maintains a Social Media Task Force with
representatives from various FTC offices and bureaus, including the Office of General
Counsel, the Office of Public Affairs, and staff who handle enforcement and consumer
education. 553 The Task Force evaluates whether social media platforms are appropriate
for Commission use, assessing potential audiences, legal requirements, security protocols,
and the like. 554
* * *
Information/Data Quality Act. Like other agencies, the FTC posts its Information Quality
Act guidelines online, 555 as required by the OMB. More importantly, like some other
agencies, 556 the FTC exempts press releases, but not if they “contain new substantive
544

Id.
Id.
546
Interview with officials from the FTC Office of General Counsel, supra note 16.
547
Interview with officials from the FTC Office of Public Affairs, supra note 34.
548
Interview with officials from the FTC Office of Public Affairs and Office of General Counsel,
supra notes 34, 16.
549
Interview with officials from the FTC Office of Public Affairs, supra note 34.
550
Id.
551
Id.
552
Id.
553
Interview with officials from the FTC Office of Public Affairs and Office of General Counsel,
supra notes 34, 16.
554
Interview with officials from the FTC Office of Public Affairs, supra note 34.
555
FTC, Data Quality Act, https://www.ftc.gov/site-information/website-policy/data-quality-act (last
visited July 9, 2015); FTC, Guidelines for Ensuring and Maximizing the Quality, Objectivity, Utility, and
Integrity of Information Disseminated by the Federal Trade Commission, https://www.ftc.gov/data-qualityact/guidelines-for-ensuring (last visited July 9, 2015).
556
See Appendix G, infra.
545

59

information not covered by a previous information dissemination covered by the
guidelines.” 557 Again, this narrows the broad exemption for press releases in the OMB
guidelines. 558 However, Commission guidelines also exempt information that derives
from adjudicatory processes, including factual allegations, evidence, analyses, findings,
determinations, rulings, and opinions. 559 Thus, a press release announcing a complaint
filed by the FTC would be exempt. Similarly, there seem to be several grounds under
FTC guidelines for exempting information in Sentinel. For example, complaints in
Sentinel would be exempt if “the agency’s presentation makes clear that what is being
offered is someone’s opinion rather than fact or the agency’s views.” 560 Moreover,
because Sentinel is a non-public database intended for law enforcement bodies, it might
also be exempt because distribution is “limited to government employees or agency
contractors or grantees” and the information is “intended merely for intra- or inter-agency
use or sharing.” 561 In contrast to press releases, Sentinel complaints are non-public and
thus present a very weak case for coverage under the IQA.
Best practices. FTC officials support the Conference’s recommending best practices for
agencies. 562 FTC officials welcomed recommendations that would improve the practices,
procedures, and transparency of government agencies, and help the Commission provide
more useful information to consumers. 563 FTC officials believe that because the
Commission is a relatively small agency, it is somewhat easier for staff to be trained on
new policies. 564 For example, FTC staff receive guidance on the Commission’s rules
governing the treatment of nonpublic information, and are mostly aware that Section 10
of the FTC Act imposes criminal sanctions for unauthorized disclosures. 565 The
Commission also reminds its staff periodically about the FTC’s press policy.
Judicial review. FTC officials would oppose any Conference recommendation that
Congress amend the APA or any other statutes to make press releases judicially
reviewable. 566 They note, in any event, that judicial review might be available under
current doctrines, under some circumstances. 567 Still, FTC officials think that more
readily-available judicial review could interfere with agencies’ missions to provide the
public with useful information. 568 FTC officials also are concerned that defending
lawsuits would divert limited agency resources. 569
Inspector General or OMB review. FTC officials would support Inspector General review
of the Commission’s publicity practices if there is any doubt about the propriety of
557

FTC, Data Quality Act Guidelines, supra note 555, at § V.B.5.
67 Fed. Reg. at 377.
559
FTC, Data Quality Act Guidelines, supra note 555, at § V.B.9.
560
Id. at § V.A.
561
Id. at §§ V.B.1, V.B.2.
562
Interview with officials from the FTC Office of General Counsel, supra note 16.
563
Id.
564
Id.
565
See, e.g., 15 U.S.C. § 50; 16 C.F.R. §§ 4.09-4.11.
566
Interview with officials from the FTC Office of General Counsel, supra note 16.
567
Id.
568
Id.
569
Id.
558

60

agency actions. 570 The Inspector General can provide independent analysis, as it has done
for other FTC practices. 571 However, FTC officials did not necessarily favor review by
the OMB, expressing concern about adding layers of pre-publication review and diverting
scarce agency resources. 572
Ombudsman. The FTC does not have an ombudsman. FTC officials explained that the
Commission is a small agency with a structure that makes it easy to identify who within
the Commission can be contacted. Officials had no position on whether an ombudsman
would be useful for resolving complaints. 573

570

Id.
Id.
572
Id.
573
Id.
571

61

C. Consumer Financial Protection Bureau (CFPB)
The CFPB deserves special attention because it is a new agency operating under a new
statute and is on the forefront of the “open data” trend. As Katherine Porter notes, “the
CFPB is a unique agency, born of a crisis and being designed in a world of new
technology.” 574 Created by Title X of the Dodd-Frank Wall Street Reform and Consumer
Protection Act of 2010, 575 the Bureau is responsible for regulating consumer financial
products and services. 576 Though the Bureau is an independent executive agency, it
resides within the Federal Reserve for budget purposes. 577 Over 12% of the Bureau’s
budget is dedicated to the Office of Consumer Response, 578 which operates the formal
consumer complaint process. The most notable feature of this process is that complaints
are published in a massive, searchable, sortable Consumer Complaint Database online. 579
Complaint Database. The Bureau’s database currently allows consumers to submit
complaints for 11 categories of financial products, including mortgages, student loans,
auto loans, bank accounts, credit cards, debt collection services, and others. 580 Bureau
procedures for publishing complaints are described exhaustively in Policy Statements
published in the Federal Register. 581 Consumers can submit complaints in several ways,
including through the Bureau’s web site. 582 The intake process prompts consumers to fill
in a series of data fields, including their contact information, the name of the company
involved, the type of product or service involved (including any relevant account
numbers), and the type of issue or problem. 583 The Bureau authenticates this information
574

Katherine Porter, The Complaint Conundrum: Thoughts on the CFPB’s Complaint Mechanism, 7
BROOK. J. CORP. FIN. & COM. L. 57, 86 (2012).
575
Dodd-Frank Wall Street Reform and Consumer Protection Act, Pub. L. No. 111-203, 124 Stat. 1376
(2010) (codified in scattered sections of 12 U.S.C.). The germinal idea for a consumer financial protection
agency comes from a 2007 essay by Elizabeth Warren, then a Harvard Law Professor and now a U.S.
Senator. See Elizabeth Warren, Unsafe at Any Rate, DEMOCRACY (Summer 2007).
576
12 U.S.C. § 5491(a).
577
Ian Ayres, Jeff Lingwall, & Sonia Steinway, Skeletons in the Database: An Early Analysis of the
CFPB’s Consumer Complaints, 19 FORDHAM J. CORP. & FIN. L. 343, 347 n.6 (2014) (citing Arthur
Delaney & Shahien Nasirirpour, Dodd Unveils Financial Regulatory Reform Bill with ‘Consumer
Financial Protection Bureau,’ HUFFINGTON POST (June 17, 2010),
http://www.huffingtonpost.com/2010/03/15/dodd-unveils-financial-re_n_499569 (last visited July 2, 2015).
578
CFPB, Strategic Plan, Budget, and Performance Plan and Report (Mar. 2014) 14
http://files.consumerfinance.gov/f/strategic-plan-budget-and-performance-plan-and-report-FY2013-15.pdf
(roughly $73 million of the Bureau’s $583 million budget for FY 2015) (last visited July 2, 2015).
579
CFPB, Consumer Complaint Database, http://www.consumerfinance.gov/complaintdatabase/ (last
visited July 2, 2015).
580
See CFPB, Consumer Complaint Database, http://www.consumerfinance.gov/complaint/ (last
visited May 5, 2015). The database began by posting credit card complaints only, see CFPB, Disclosure of
Certain Credit Card Complaint Data, 76 Fed. Reg. 76,628 (Dec. 8, 2011), before broadening the database to
all products and services regulated by the Bureau. CFPB, Disclosure of Consumer Complaint Data, 77 Fed.
Reg. 37,616 (Jun. 22, 2012).
581
See, e.g., CFPB, Notice of Final Policy Statement: Disclosure of Certain Credit Card Complaint
Data, 77 Fed. Reg. 37,558 (Jun. 22, 2012).
582
CFPB, Disclosure of Consumer Complaint Data, 77 Fed. Reg. 37,616 (Jun. 22, 2012).
583
Id. at 37,616-17. The database includes the following fields:
(i)
Bureau-assigned unique ID number;
(ii) Channel of submission to Bureau;

62

and then forwards the complaint to the company for response. 584 In essence, the database
is a public window into the Bureau’s case management system. 585 The database is
searchable and sortablelisting for each complaint the type of product, the primary and
secondary complaints, the name of the company, the company’s response, and whether
the company’s response was timely and further disputed by the customer. 586
Company responses. Companies respond to complaints through a secure online Company
Portal, 587 guided by a Company Portal Manual. 588 Companies can choose one of ten
response categories:
Closed with monetary relief;
Closed with non-monetary relief;
Closed with explanation;
Closed;
In progress;

Alerted CFPB;
Incorrect company;
Duplicate CFPB case reported;
Redirected to related company;
Sent to regulator. 589

Responses categorized by companies as “In progress” indicate that the company could
not close the complaint within 15 days, giving the company a total of 60 days to
respond. 590 Late responses not categorized by companies as “In progress” are tagged by
the Bureau as “Past due.” 591 Those without a response after 30 days are tagged as “No
response.” 592 These responses are published.
Publication criteria. The Bureau will withhold publication unless a complaint meets each
of the publication criteria. For example, the Bureau’s policy is to exclude complaints that
(i) are missing critical information, such as the name of the company or product category,

(iii) Date of submission to Bureau;
(iv) Consumer’s 5-digit zip code;
(v)
Product or service;
(vi) Sub-product;
(vii) Issue;
(viii) Date of submission to company;
(ix) Company name;
(x)
Company response category;
(xi) Whether the company response was timely; and
(xii) Whether the consumer disputed the response.
78 Fed. Reg. at 21,225.
584
77 Fed. Reg. at 37,616.
585
Interview with Darian Dorsey, Chief of Staff, Office of Consumer Response, CFPB (May 28, 2015).
586
A screenshot of credit card complaints listed in the database is attached in Appendix F.
587
CFPB, Sign Up to Address Complaints, http://www.consumerfinance.gov/company-signup/ (last
visited July 2, 2015).
588
CFPB, Company Portal Manual (Version 2.14) (May 2015),
http://www.cfjblaw.com/files/Uploads/Documents/Resources/cfpb-company-portal-manual-may-2015.pdf
(last visited July 2, 2015).
589
Id. at 19.
590
Id. at 24.
591
Id.
592
Id.

63

(ii) have been referred to other agencies, (iii) are duplicative, (iv) would reveal trade
secrets, (v) are fraudulently submitted, or (vi) identify the incorrect company. 593
Publishing complaint narratives. Initially, the Bureau decided not to publish consumers’
narrative comments in their complaints, 594 expressing concern that personally identifiable
information could not be redacted sufficiently to ensure privacy. 595 But the Bureau
reversed course, proposing in July 2014 to publish narratives, 596 finalizing the proposal in
March 2015. 597 For a narrative to be published, the consumer must give consent and the
narrative must be scrubbed of personal information. 598 Industry members “nearly
uniformly opposed” the proposal, 599 questioning the Bureau’s statutory authority and
raising other concerns about unnecessary harm to company reputations, echoing
longstanding concerns with adverse publicity. 600 Industry commenters also objected that
the Bureau did not verify complaints. However, the Bureau’s screening and
authentication process gives companies ample opportunity to object before a complaint is
published. 601 Acknowledging industry concerns over publishing consumer narratives, the
Bureau proposed to allow companies to publish their own narrative responses. 602 But
financial industry commenters preferred to respond with pre-set, “structured” responses
rather than free-form, “unstructured” ones. 603 The nine optional responses are: 604

593

Id. at 26; 78 Fed. Reg. at 21,225.
77 Fed. Reg. at 37,568.
595
Id. at 37,566.
596
Disclosure of Consumer Complaint Narrative Data, Notice of Proposed Policy Statement with
Request for Public Comment, 79 Fed. Reg. 42,765 (Jul. 23, 2014). The privacy concerns are addressed with
relatively robust “scrubbing standards.” See CFPB, Office of Consumer Response, Narrative Scrubbing
Standard (March 2015) (copy on file with author).
597
CFPB, Final Policy Statement: Disclosure of Consumer Complaint Narrative Data, 80 Fed. Reg.
15,572 (Mar. 24, 2015).
598
80 Fed. Reg. at 15,583.
599
78 Fed. Reg. at 21,224.
600
See, e.g., Public Interest Comment, Mercatus Center, George Mason University (Sep. 10, 2014),
http://mercatus.org/sites/default/files/Peirce-Soliman-CFPB-Consumer-Complaint-PIC-091014.pdf; see
also 80 Fed. Reg. at 15,581.
601
80 Fed. Reg. at 15,576-77.
602
79 Fed. Reg. at 42,768. Consumer groups pushed to allow companies to respond with narrative
comments. 78 Fed. Reg. at 21,224.
603
Companies seemed opposed to posting their own narrative responses for several reasons, including
legal, business, and practical. 80 Fed. Reg. at 15,577. Companies also cited reputational concerns as a
disincentive to respond. 80 Fed. Reg. at 15,578, 15,581.
604
Company Portal Manual, supra note 588, at 29. Companies, again, are not obligated to choose a
narrative response. 80 Fed. Reg. at 15,583.
594

64

Category
Company acted
appropriately
Factual dispute
Unable to verify facts
Misunderstanding
Discontinued policy or
procedure
Opportunity for
improvement
Isolated error
Third party
No public response

Description displayed in Consumer Complaint Database
Company believes it acted appropriately as authorized by contract or law.
Company disputes the facts presented in the complaint.
Company can’t verify or dispute the facts in the complaint.
Company believes the complaint is the result of a misunderstanding.
Company believes complaint relates to a discontinued policy or procedure.
Company believes complaint represents an opportunity for improvement to
better serve consumers
Company believes complaint is the result of an isolated error
Company believes complaint caused principally by actions of third party
outside the control or direction of the company
Company chooses not to provide a public response

Benefits of publishing narratives. Public comments from consumer groups, open
government groups, privacy groups, and individuals favored publishing complaint
narratives. 605 Indeed, major news organizations and press associations favored publishing
narratives even without consumer consent. 606 Sean Moulton and Scott Klinger from the
Center for Effective Government noted that narratives are more compelling than sanitized
data and can help concretize otherwise anonymous problems. 607 Bureau staff also
stressed the value of giving context to complaints, citing as one example a woman in
Columbus, Ohio, who had been waiting months for a mortgage servicer to send her
$66,000 after her house burned down. 608 After months of unsuccessful haggling, she
submitted a complaint to the Bureau, which prompted the company to send her check
overnight. 609 Without this narrative, the database would indicate merely that a complaint
had a been submitted about a mortgage servicing company in Columbus, Ohio, and that
monetary relief had been the responsewith no sense that the complaint process had
resolved months of being displaced from home. 610
Benefits of the database more generally. Disclosing complaints even without narratives
confers several public benefits. The intended beneficiaries are consumers, the Bureau,
other regulators, researchers, and even the companies identified in complaints. 611 But the
main intended beneficiaries are consumers. 612 The Bureau and consumers groups note
that publishing complaint data is a “public service” and helps “fulfill the Bureau’s
affirmative disclosure requirements under FOIA.” 613 Consumer advocates argue that the
605

80 Fed. Reg. at 15,576.
80 Fed. Reg. at 15,576 (citing comments by the Reporters Committee for Freedom of the Press).
607
Interview with Sean Moulton & Scott Klinger, supra note 16.
608
Interview with Darian Dorsey, supra note 585.
609
Id. The woman gave the Bureau permission to use her story after she sent a written Thank You note
to the agency.
610
Interview with Darian Dorsey, supra note 585.
611
Id.; 76 Fed. Reg. at 76,630-631.
612
78 Fed. Reg. at 21,225. The Dodd-Frank Act tasked the Bureau with providing consumers “timely
and understandable information to make responsible decisions about financial transactions” and help the
market “operate transparently and efficiently.” 12 U.S.C. § 5511(b)(1), (5).
613
CFPB, Final Policy Statement: Disclosure of Consumer Complaint Data, 78 Fed. Reg. 21,218,
606

65

database can “empower” consumers to better understand financial services and avoid
“bad actors.” 614 They also argue that “disclosure is one of the best tools government
agencies can use” and that complaint data can help “detect trends of unfair, deceptive, or
abusive acts and practices.” 615 Although the Bureau itself analyzes complaint data to
make mandated reports to Congress, 616 the database is meant for external consumption.
Director Richard Cordray encouraged “the public, including consumers, the companies
that serve them, analysts, data scientists, civic hackers, developers, policymakers,
journalists, and academics, to analyze, augment, and build on the public database.” 617
Academics have begun to publish empirical studies based on complaint data. 618 Public
interest researchers like U.S. PIRG are using the database to produce reports on specific
financial products, such as credit cards and debt collection. 619 Bureau staff hope that third
parties develop mobile apps and other information products based on complaint data. 620
U.S. News and World Report published in August 2015 a ranking of credit cards based in
part on data from the Bureau’s database. 621 Firms like Deloitte are publishing reports
based on complaint data, encouraging companies to “turn what they hear from the
CFPB’s consumer complaint database into a business advantage.” 622 Indeed, Bureau staff
report that companies are addressing potential problems, such as long customer phone
trees, in response to consumer complaints. 623 One of the original aspirations for the
database was to encourage upward competition on customer service and complaint
handling. 624 Indeed, Bureau staff tell anecdotes that companies are comparing themselves
to competitors based on database metricswith some companies tying executive bonuses
to how well the company responds to complaints. 625 The Bureau occasionally analogizes
its database to federal airline data, which is used by third parties to create ratings systems,

21,220 (Apr. 10, 2013).
614
Id. at 21,220.
615
Id.
616
12 U.S.C. § 5496(c)(4).
617
Richard Cordray, Director, CFPB, Remarks at the Consumer Response Field Hearing (Mar. 28,
2013), http://www.consumerfinance.gov/speeches/prepared-remarks-of-director-richard-cordray-at-theconsumer-response-field-hearing/ (last visited July 2, 2015).
618
See, e.g., Ian Ayres, Jeff Lingwall, & Sonia Steinway, Skeletons in the Database: An Early Analysis
of the CFPB’s Consumer Complaints, 19 FORDHAM J. CORP. & FIN. L. 343 (2014).
619
Interview with Darian Dorsey, supra note 585. See, e.g., U.S. PIRG, Reports: The CFPB Gets
Results for Consumers, http://www.uspirg.org/page/usf/reports-cfpb-gets-results-consumers (last visited
June 30, 2015) (linking to several reports). (U.S. PIRG is the federation of state public interest research
groups (PIRGs)).
620
Interview with Darian Dorsey, supra note 585 (citing as an example the mobile app Hipmunk,
https://itunes.apple.com/us/app/hipmunk-flight-hotel-search/id419950680, which uses government data on
flight delays to help customers book flights).
621
U.S. News & World Report, How U.S. News Ranks the Best Credit Cards,
http://money.usnews.com/money/personal-finance/articles/2015/08/13/how-us-news-ranks-the-best-creditcards?page=3 (Aug. 13, 2015).
622
Deloitte, Analysis: CFPB’s Consumer Complaint Database: Deloitte’s Analysis Reveals Valuable
Insights, http://www2.deloitte.com/us/en/pages/financial-services/articles/consumer-financial-protectionbureau-cfpb-consumer-complaint-database.html (last visited June 30, 2015).
623
Interview with Darian Dorsey, at 2.
624
CFPB, Disclosure of Certain Credit Card Complaint Data, 76 Fed. Reg. 76,628, 76,630 n.9 (Dec. 8,
2011).
625
Interview with Darian Dorsey, supra note 585.

66

and by airlines to distinguish themselves from competitors. 626 The Bureau concludes that
after complaint data is made public, “The marketplace of ideas then does the rest.” 627
Industry concerns. The complaint database has been controversial, of course, to the
companies identified in it. Industry members have filed a cascade of public comments
opposing Bureau proposals. 628 These are the most salient industry objections and how the
Bureau addresses them:
1. Lack of complaint verification. Industry comments object that because the Bureau
does not verify complaints, the database publishes complaints that lack factual support or
legal merit and thus represent mere opinion. 629 Industry members also argued that it is
unfair to publish complaints resolved without any showing of company fault, perhaps in
violation of their due process rights. 630 Industry also objected that publication by a
government agency would give complaints the “appearance” of being validated by the
Bureau. 631
Although the Bureau agrees that it does not fully verify claims made in complaints, it
emphasizes that the Bureau “authenticates” complaints to confirm a commercial
relationship between the consumer and the company. 632 The current system for
authentication seems to be robust. Companies can respond to complaints via the secure
online Company Portal, which allows companies to deny a commercial relationship or
otherwise respond to valid customers. 633 As such, Bureau staff report that the number of
complaints posted without either company confirmation or a response within 15 days is
“very, very low.” 634 Of the roughly 600,000 complaints the Bureau has processed, only
around 380,000 have been published in the database. 635 In 2014, 62% of the complaints
submitted (roughly 156,600 of 250,700) were sent to companies for review. 636 The 38%
not sent to companies were referred to other agencies (25%), were incomplete (10%), or
were still pending (3%). 637 Companies responded to roughly 94% of the complaints sent
to them. 638 In short, there are several opportunities for companies to interject before a
626

76 Fed. Reg. at 76,631.
Id.
628
See, e.g. CFPB, Notice of Final Policy Statement: Disclosure of Certain Credit Card Complaint
Data, 77 Fed. Reg. 37,558, 37,559 (Jun. 22, 2012); Public Comments to Docket No. CFPB-2011-0040,
http://www.regulations.gov/#!searchResults;rpp=25;po=0;s=cfpb-2011-0040 (last visited July 2, 2015).
629
77 Fed. Reg. at 37,561.
630
Id.
631
80 Fed. Reg. 15,572, 15,581.
632
77 Fed. Reg. at 37,561; 78 Fed. Reg. at 21,221.
633
Company Portal Manual, supra note 588, at 7.
634
Interview with Darian Dorsey, supra note 585.
635
Id. Note that the Consumer Response Annual Report for 2014 states that the CFPB has “handled
approximately 558,800 consumer complaints” as of February 28, 2015. See CFPB, Consumer Response
Annual Report: January 1 – December 31, 2014 (Mar. 2015), at 6,
http://files.consumerfinance.gov/f/201503_cfpb_consumer-response-annual-report-2014.pdf (last visited
June 30, 2015).
636
Consumer Response Annual Report: January 1 – December 31, 2014, supra note 635, at 40; 78 Fed.
Reg. at 21,221.
637
Consumer Response Annual Report: January 1 – December 31, 2014, supra note 635, at 40 n.18.
638
Id. at 40 n.19 (roughly 147,100 out of 156,600).
627

67

false or fraudulent complaint is published. Bureau staff believe that the only way such a
complaint would be posted is if the company failed to respond to the complaint. 639
Bureau staff emphasize that information published in the database is provided directly
by consumers and companies rather than the Bureau. 640 The Bureau sees the database as
a record of consumers and companies speaking to each othershining a light on how
companies treat their customers. 641
Nevertheless, the Bureau responded to industry concerns by noting that it “plans to
specifically disclaim the accuracy of complaints when the data are made available.”642
Currently, the Bureau web site includes the disclaimer: “We don’t verify all the facts
alleged in these complaints but we take steps to confirm a commercial relationship
between the consumer and company.” 643 Consumer groups commented that “the lack of
verification presented only minimal risks to companies because of the controls in place to
ensure that complaints must come from actual customers … [and] that companies are
given adequate time to challenge the customer/company relationship.” 644 The benefits of
disclosure, they argued, outweigh the “speculative harm of unverified complaints.” 645 My
review confirms that there are sufficient safeguards to ensure that false or fraudulent
complaints can be identified well before publication. 646
2. Non-representative complaints. Industry commenters also objected to the Bureau
publishing self-selected complaints, arguing that a non-random database would provide
consumers, academics, and researchers with unreliable information. 647 In response, the
Bureau replied that it would “inform consumers and any other public database users that
the data reflect only the … complaints that consumers submit to the Bureau.” 648 The
Bureau explained that it would work with commenters to identify ways to normalize the
data, 649 but Bureau staff explained the difficulty of gathering sufficient information to do
so effectively. 650

639

Interview with Darian Dorsey, supra note 585; 78 Fed. Reg. at 21,223 (“No company will be
associated with a complaint if it demonstrates a reasonable basis to challenge a commercial relationship
with the consumer.”).
640
Interview with Darian Dorsey, at 3. Bureau staff emphasized any Bureau information added to the
case management system is used only internally and not presented to the public. Id.
641
Interview with Darian Dorsey, supra note 585.
642
77 Fed. Reg. at 37,561; 78 Fed. Reg. at 21,221.
643
CFPB, Consumer Complaint Database, http://www.consumerfinance.gov/complaintdatabase/ (last
visited Nov. 4, 2014).
644
78 Fed. Reg. at 21,221.
645
Id.
646
Interview with Darian Dorsey, supra note 585. The Bureau refers multiple times to allegations by a
company commenter that at least one outside party had used the company’s name unlawfully to defraud
customers and generate complaints against that company. See, e.g., 80 Fed. Reg. at 15,576.
647
77 Fed. Reg. at 37,561.
648
Id.
649
78 Fed. Reg. at 21,222.
650
Interview with Darian Dorsey, supra note 585.

68

3. Lack of context. A related objection is that the complaint data lacks context and
thus might lead consumers and the media to overlook its limitations.651 Commenters also
argued that audiences might believe that the information was being endorsed by the
Bureau, even with disclaimers to the contrary. 652 The Bureau did not find these
arguments convincing, but solicited suggestions on how best to provide context. Bureau
staff commented on the difficulty of normalizing the data to better reflect, for example,
what proportion of consumer accounts were the subject of complaints between banks of
different sizes. 653
4. Manipulation. Industry commenters also objected that the database would be
susceptible to manipulation, for example by third parties submitting false complaints. The
Bureau responded that the burden of filing complaints was not negligible and that several
procedural barriers, such as the requirement of providing a real customer account number,
and the procedures for seeking company responses before publication, would deter or
detect false complaints. 654 The Bureau itself can also intervene if it observes anomalies in
mass complaint submissions, for example. 655
5. Reputational harms. Industry commenters objected that identifying company
names in the database would harm their reputations, which might be compounded by
“viral media” or serve as “fodder for plaintiffs’ lawyers.” 656 Commenters also argued that
company names should be exempt from disclosure under FOIA because disclosure would
cause the companies substantial competitive harm. 657 The Bureau responded that any
“unwarranted public criticism, reputational harm, and perhaps even a loss of existing or
prospective customers” would be a burden shared by all companies, and that disclaimers
could “warn consumers that the public database contains data reflecting unverified
complaints.” 658 Consumer groups commented that disclosing company names was a
significant feature of the Bureau’s proposal, noting that “other complaint databases that
disclose the identity of specific companieslike NHTSAhave created pressure on
companies to improve whatever metrics are measured by the public database.” 659 Finally,
responding to arguments that publishing complaint narratives would harm companies’
reputations, the Bureau noted that more information is usually better in the marketplace
of ideas. 660
6. Overinclusiveness. The complaint database is intended to increase the transparency
of markets for various financial products and services, and thus includes complaints that
651

77 Fed. Reg. at 37,562.
Id.
653
Interview with Darian Dorsey, supra note 585; 78 Fed. Reg. at 21,222.
654
77 Fed. Reg. at 37,562; 78 Fed. Reg. at 21,222.
655
78 Fed. Reg. at 21,222.
656
77 Fed. Reg. at 37,564; 78 Fed. Reg. at 21,222.
657
77 Fed. Reg. at 37,562-63. Note that Exemption 4 of FOIA allows agencies to withhold trade
secrets or confidential commercial information if it would result in competitive harm to the business,
among other things. The Bureau cites several cases interpreting the scope of Exemption 4 in favor of
disclosure.
658
77 Fed. Reg. at 37,563.
659
Id. at 37,564 (quoting the Bureau’s characterization of the consumer groups’ comments).
660
80 Fed. Reg. 15,572, 15,581.
652

69

are not necessarily violations of the law. 661 The Bureau defines “complaints” as
“submissions that express dissatisfaction with, or communicate suspicion of wrongful
conduct by, an identifiable entity related to a consumer’s personal experience with a
financial product or service.” 662 Thus, the database includes not only potential legal
violations, “but also vague expressions of being wronged.” 663 As one observer notes
astutely, “Dissatisfied consumers can be widespread in lawful industries; indeed,
financial services may be a poster child for such an industry.” 664 To combat a one-side
presentation of this dissatisfaction, companies are permitted to review and respond to
complaints before publication. Although consumer dissatisfaction can help inform future
legislation and rulemaking efforts, 665 it is also used as a pressure point or enforcement
lever, much like traditional agency publicity.
7. Statutory authority. The Bureau cites several provisions in the Dodd-Frank Act as
authorizing public disclosure of consumer complaint data. 666 Dodd-Frank clearly
authorizes the Bureau to maintain a centralized database of consumer complaints. 667 But
industry members have questioned the Bureau’s statutory authority to make this database
public. 668 Several sections of the Dodd-Frank Act clearly contemplate publication of
individual complaint data so long as confidential information is not published. 669 Indeed,
Congress emphasized that the “primary functions of the Bureau” include “collecting,
investigating, and responding to consumer complaints” and “publishing information” on
consumer financial markets. 670 If the Bureau may use complaint data to guide its own
activities, the Bureau reasoned, then “there is good reason to allow consumers and
outside researchers to weigh the importance of complaint data in their own research,
analysis, and decision-making.” 671 The Bureau justifies its public database by pointing to
three statutory provisions: the requirement that the Bureau make reports to Congress; 672
the authority to provide consumers with information to make financial decisions and help
the market operate transparently; 673 and the broad authority to make public nonconfidential information “as is in the public interest” and via “appropriate formats.”674
Bureau staff also report that information in the database was the subject of frequent FOIA

661

Porter, supra note 574, at 78.
CFPB, SEMI-ANNUAL REPORT OF THE CONSUMER FINANCIAL PROTECTION BUREAU 17 n.13,
http://files.consumerfinance.gov/f/2012/01/Congressional_Report_Jan2012.pdf.
663
Porter, supra note 574, at 78.
664
Id.
665
Id. at 79-80.
666
See, e.g., 76 Fed. Reg. at 76,629.
667
Dodd-Frank Wall Street Reform and Consumer Protection Act, Pub. L. No. 111-203, §
1013(b)(3)(A), 12 Stat. 1376, 1969 (2010), codified at 12 U.S.C. § 5493(b)(3)(A) (requiring the Bureau to
“establish a unit whose functions shall include establishing a single, toll-free telephone number, a website,
and a database or utilizing an existing database to facilitate the centralized collection of, monitoring of, and
response to consumer complaints regarding consumer financial products or services…”).
668
See, e.g., 77 Fed. Reg. at 37,560-561.
669
Dodd-Frank Act §§ 1013, 1022, 1034; 77 Fed. Reg. at 37,561; 80 Fed. Reg. at 15,575.
670
12 U.S.C. § 5511(c)(2), (3).
671
78 Fed. Reg. at 21,223.
672
Dodd-Frank Act § 1013(b)(3)(C).
673
12 U.S.C. § 5511(b)(1), (5).
674
12 U.S.C. §§ 5492(a); 5512(c)(3)(B), (c)(8).
662

70

requests from the outset and would be sought repeatedly were it not made public. 675
Posting the information systematically is much more efficient than responding to
repeated FOIA requests, according to Bureau staff. 676
Responsive to industry concerns. My review of these objections shows that although
the Bureau and companies certainly disagree on important points, the Bureau has been
painstakingly transparent and relatively responsive to industry concerns. The long
process of proposing, building, and refining the complaint database, detailed in numerous
Federal Register discussions, shows that the Bureau has been sensitive to industry input,
granting companies more time to respond, varying standards between industries that
operate differently, and repeatedly soliciting industry input. 677
* * *
Traditional publicity. Like other agencies, the CFPB publicizes complaints filed against
alleged regulatory violators. For example, the Bureau published a press release in May
2015 explaining that it filed suit against the firm Nationwide Biweekly Administration
for misleading consumers about savings from biweekly loan payoff programs. 678 The
news release clarifies that “The Bureau’s complaint is not a finding or ruling that the
defendants have actually violated the law” and includes a link to the full complaint. A
quick review shows that the Bureau frequently publicizes complaints like this 679 I
found seven web pages’ worth of “enforcement” press releases. 680
The press release process. The Bureau’s Office of Communications drafts press releases,
working with the Office of Enforcement to publicize enforcement actions and the Office
of Consumer Response to alert consumers that might be affected. 681 I interviewed
Jennifer Howard, Assistant Director for the Bureau’s Office of Communications, who
described agency practices. Howard explained that her office is careful to ensure the
accuracy of press releases (often through multiple rounds of edits with the input of
Bureau counsel and enforcement staff), strike the appropriate tone, and include necessary
caveats for publicizing pending and unresolved legal actions. 682 Bureau staff report that
they have a written process to clear press announcements. 683 My interview with Bureau
staff suggested that written policies and procedures are not closely followed, but that
press announcements are carefully written by the Office of Communications with clear
675

Interview with Darian Dorsey, supra note 585.
Id. at 9.
677
Id. at 10.
678
CFPB, CFPB Files Suit Against Nationwide Biweekly for Luring Consumers with False Promises
of Mortgage Savings (May 11, 2015), http://www.consumerfinance.gov/newsroom/cfpb-files-suit-againstnationwide-biweekly-for-luring-consumers-with-false-promises-of-mortgage-savings/.
679
See, e.g., CFPB, “CFPB and State of Maryland Take Action Against “Pay to Play” Mortgage
Kickback Scheme” (Apr. 29, 2015), http://www.consumerfinance.gov/newsroom/cfpb-and-state-ofmaryland-take-action-against-pay-to-play-mortgage-kickback-scheme/.
680
CFPB, Newsroom, http://www.consumerfinance.gov/newsroom/?topic=enforcement (narrowed by
selecting “Enforcement” under “Topic”).
681
Interview with Jennifer Howard, Assistant Director, supra note 34.
682
Id.
683
Id.
676

71

lines of review and approval. 684 Bureau staff also expressed concern that an additional
written policy might challenging to execute in practice if not drafted with sufficient
flexibility. 685 However, staff were interested in identifying best practices culled from
other agencies. 686
Naming companies in press releases. It is not Bureau practice to name companies in
press announcements in the absence of an enforcement action, unless the announcement
is positive (and even then it is rare). 687 Bureau staff indicated that the agency does not
want to “pick winners and losers.” 688 When the Office of Communications does issue a
press release on a “widespread” problem, it will focus on the industry or the specific
market and not “call out a particular company.” 689 The Bureau does publicize its
database, including on social media, 690 but generally does not spotlight specific
companies. Specific Bureau offices, such as the Office of Students and the Office of
Servicemember Affairs, will issue periodic reports based on trends identified in the
database, and these reports will name specific companies. 691 For example, a mid-year
report on student loan complaints identified the five companies with the highest volume
of complaints. 692 The report notes that “Due to the lack of publicly-available data on
private student loans, these tables are not indexed for market share.” 693 Notwithstanding
these congressionally-mandated reports, Bureau staff emphasize that the agency is “very
leery of naming companies.” 694
Benefits of publicity. Bureau staff emphasized the importance of using press
announcements to reach the general public, noting that press releases can “reach
Americans where they are, at the airport or at home,” and that few people follow the
Bureau on Twitter, for example. 695 Bureau staff also emphasized that both press and
social media announcements are written to be understandable to regular consumers.
Identifying the appropriate audience can be a struggle, given the Bureau’s many
constituents (industry, consumers, Congress). 696 For example, Howard observed that
highly technical legal language in press releases “doesn’t mean anything” to

684

Id.
Interview with Jennifer Howard and Darian Dorsey, supra notes 34, 585.
686
Id.
687
Interview with Jennifer Howard, supra note 34 (using as an example a Bureau announcement that
credited Discover with disclosing free consumer credit scores on their credit card bills).
688
Interview with Jennifer Howard, supra note 34.
689
Id.
690
CFPB, Twitter, https://twitter.com/CFPB/status/614153117630861314 (last visited July 1, 2015).
691
Interview with Jennifer Howard, supra note 34.
692
See, e.g., CFPB, Mid-Year Update on Student Loan Complaints (June 2015) at 7, Tbl. 2,
http://files.consumerfinance.gov/f/201506_cfpb_mid-year-update-on-student-loan-complaints.pdf (last
visited July 1, 2015) (identifying five companies with the highest volume of student loan complaints).
693
Id. at 5-6.
694
Interview with Jennifer Howard, supra note 34. Note that Howard acknowledged that the Office of
Students does “list student loan servicers” in its periodic reports on database complaints. Id. at 9.
695
Interview with Darian Dorsey, supra note 585.
696
Interview with Jennifer Howard, supra note 34.
685

72

consumers. 697 In her words, “consumer education is the priority” so “plain language is
unbelievably critical.” 698
Publicizing enforcement actions. In publicizing enforcement actions, the Office of
Communications works with Bureau counsel and enforcement staff to ensure the
accuracy of the announcement. 699 Often, announcements will go through “multiple
rounds of edits.” 700 Companies are not notified in advance of a press release, although
Bureau staff suggest that companies are aware that announcements usually follow
publication of a complaint. 701 A press release is issued concurrently with the Bureau
filing an enforcement action, and is meant to communicate the action in plain language
for lay audiences. 702 Bureau staff could not recall any objections by companies to such
announcements. 703 The Bureau does not publicize investigations. 704
Timing press releases. The Bureau does not embargo or otherwise time press
announcements to avoid influencing stock markets. 705 Bureau staff explained that a press
embargo on a potentially market-moving announcement might encourage early leaks,
given the large size of the Bureau’s press list. 706
* * *
Social media. The Bureau maintains social media accounts on Facebook, Flickr, Twitter,
and YouTube. 707 The Bureau’s Office of Consumer Education and Engagement handles
social media rather than the Office of Communications. 708 Bureau staff explain that the
agency uses social media more as “an opportunity to engage directly with consumers”
rather than a “publicity platform.” 709 A very cursory review of the Bureau’s Twitter feed
confirms this use. 710 The Bureau did not identify policies or procedures governing its use
of social media. 711
* * *

697

Id.
Id.
699
Id.
700
Id.
701
Id. Bureau regulations on “Disclosure of Records and Information” at 12 C.F.R. part 1070 do not
seem to address publication of complaints and enforcement actions.
702
Interview with Jennifer Howard and Darian Dorsey, supra notes 34, 585.
703
Id.
704
Bureau regulations at 12 C.F.R. part 1080 state that Bureau investigations are non-public. 12 C.F.R.
§ 1080.14(b).
705
Interview with Jennifer Howard, supra note 34.
706
Id.
707
CFPB, http://www.consumerfinance.gov/ (last visited July 1, 2015).
708
Interview with Jennifer Howard, supra note 34.
709
Id.
710
CFPB, at https://twitter.com/CFPB (last visited July 1, 2015).
711
Interview with Jennifer Howard, supra note 34.
698

73

The CFPB should be credited for being exceedingly transparent in its operations and
solicitous of industry concerns in constructing its complaint database. Like other agencies,
the Bureau’s publicity practices seem to be sensitive to longstanding concerns but lack
the discipline that might come with written policies and procedures. The Bureau is still a
young agency, but staff report that the Bureau has never been sued over entries in its
complaint database. 712 Thus, I briefly consider other potential checks on Bureau
practices:
Information Quality Act. It is not clear whether the IQA applies to the Consumer
Complaint Database, and the Bureau has not taken a position on this question. 713 The
Bureau has adopted its own Information Quality Guidelines pursuant to the Act and
OMB guidelines, 714 which state that the guidelines apply to “information that the Bureau
posts on the internet” and to “Bureau-sponsored distribution of information” (meaning
“any information distributed by a third party at the direction of the Bureau or information
the Bureau has the authority to review and approve prior to release”). 715 This broad
language would seem to apply to the Consumer Complaint Database. But the Bureau’s
Guidelines do not make clear whether they exempt the database, as they exclude
“archival records, public filings, subpoenas, or adjudicative processes.” 716 Similarly, the
OMB’s guidelines exclude information posted by agencies that “makes [] clear that what
is being offered is someone’s opinion rather than fact or the agency’s views.” 717 These
provisions could be read to exclude the Consumer Complaint Database from the IQA.
Industry members, like the American Bankers Association, have argued that the IQA
should apply to the database. 718 The Bureau’s Information Quality site includes
documents relating to one request 719 that the Bureau retract a white paper on payday
loans. 720 Though the request did not relate to the complaint database, it demonstrates how
Bureau reports and analyses of complaint data might inspire requests for correction or
retraction under the IQA. In light of my review above, requests to correct or retract

712
Interview with Scott Everett, Examiner, Midwest Region, CFPB Division of Supervision,
Enforcement & Fair Lending (May 28, 2015).
713
Id.
714
Treasury and General Government Appropriations Act for Fiscal Year 2001, Pub. L. No. 106-554;
OMB, Guidelines for Ensuring and Maximizing the Quality, Objectivity, Utility, and Integrity of
Information Disseminated by Federal Agencies, 67 Fed. Reg. 8452 (Feb. 22, 2002).
715
CFPB, Information Quality Guidelines, http://www.consumerfinance.gov/informationquality/.
716
Id. Note that the Bureau does not make any kind of determination as to the merits of the consumer’s
complaint, and thus entries in the Complaint Database may not represent “adjudicative processes.”
717
OMB, 67 Fed. Reg. at 8460.
718
See, e.g., Letter from Wayne A. Abernathy of the American Bankers Association to Hon. Mark
Bialek, Inspector General, Board of Governors of the Federal Reserve System (Jan. 12, 2015),
http://www.cfpbmonitor.com/files/2015/01/LTC-ConsCompDatabase2015Jan.pdf (last visited July 2,
2015).
719
Petition of Community Financial Services Association of America, Ltd. for Retraction of “Payday
Loans and Deposit Advance Products: A White Paper of Initial Data Findings” (Jun. 20, 2013),
http://files.consumerfinance.gov/f/201308_cfpb_cfsa-information-quality-act-petition-to-CFPB.pdf (last
visited July 2, 2015).
720
CFPB, Payday Loans and Deposit Advance Products: A White Paper of Initial Data Findings (Apr.
24, 2013), http://files.consumerfinance.gov/f/201304_cfpb_payday-dap-whitepaper.pdf (last visited July 2,
2015).

74

database entries under the IQA would seem to be redundant given the opportunities
companies have to respond via the Company Portal.
Ombudsman. The Bureau has an Ombudsman, 721 which has received complaints about
the database, among other things. 722 Some companies that disagree with Bureau decisions
will contact the Ombudsman in addition to utilizing notice-and-comment periods, writing
letters to Director Cordray, and using the press. 723 In fact, some companies will file
complaints with the Ombudsman that track closely the public comments they file. 724 Staff
report that the Bureau’s Office of Consumer Response meets monthly with the
Ombudsman. 725 In some other agencies, the ombudsman receives most consumer
complaints; in the Bureau, the Office of Consumer Response serves that role. 726 The
Ombudsman might be an effective restraint if the Bureau were to ever turn more
aggressive with its publicity or database practices.
Inspector General. The Federal Reserve’s Office of Inspector General has oversight
responsibility for the CFPB. 727 For example, it is auditing the Bureau’s complaint
database “to assess the effectiveness of the CFPB's controls over the accuracy and
completeness of the public complaint database.” 728 Inspectors General provide another
avenue for industry members to voice their preferences and pursue complaints. 729

721

CFPB, Ombudsman’s Office, http://www.consumerfinance.gov/ombudsman/ (last visited July 1,

2015).
722

CFPB, Ombudsman’s Office, Annual Report to the Director (Nov. 17, 2014),
http://files.consumerfinance.gov/f/201411_cfpb_report_ombudsman-office.pdf (last visited July 1, 2015).
723
Interview with Darian Dorsey, at 11, supra note 585.
724
Id.
725
Id.
726
Id.
727
Office of Inspector General, Board of Governors of the Federal Reserve System, CFPB Activity,
http://oig.federalreserve.gov/cfpb-activity.htm (last visited July 3, 2015).
728
See Federal Reserve, OIG, Work Plan (Current as of June 5, 2015),
http://oig.federalreserve.gov/reports/work-plan-full.htm#CFPBOngoing (“Audit of the CFPB’s Public
Consumer Complaint Database”).
729
For example, the American Bankers Association encouraged the Federal Reserve OIG’s audit of the
CFPB’s database, arguing that the Bureau has become “an official purveyor of unsubstantiated, and
potentially false, information.” Letter from Wayne A. Abernathy of the American Bankers Association to
Hon. Mark Bialek, Inspector General, Board of Governors of the Federal Reserve System (Jan. 12, 2015),
http://www.cfpbmonitor.com/files/2015/01/LTC-ConsCompDatabase2015Jan.pdf (last visited July 2,
2015).

75

V. RECOMMENDATIONS FOR UPDATED REFORMS
Agency publicity remains a conundrum four decades after Conference Recommendation
73-1. Agencies must retain wide discretion to inform the public, but sometimes exercise
this discretion in damaging ways. Part II detailed how agency publicity can be
problematic when it is premature, excessive, inaccurate, or used as a sanction. This latter
use, a technique sometimes called “naming and shaming,” can be particularly
problematic. As Eric Posner notes, “shaming is the very antithesis of the law.” 730
In this spirit, I consider recommendations directed to all three branchesexecutive,
legislative, and judicial. Most important are the recommendations to agencies. I urge
agencies to make their publicity practices more transparent and to conform not only to
existing law, but also to principles of good governance. The recommendations to
Congress are mostly to clarify existing law. Finally, after much careful thought, and a
change of opinion, 731 I do not recommend judicial review of agency publicity absent the
exceptional circumstances already recognized by courts.
A. Improving Agency Practices
In 1973, the Conference recommended that agencies “balance the need for adequately
serving the public interest and the need for adequately protecting persons affected by
adverse agency publicity.” 732 Thus, Recommendation 73-1 was directed solely at
agencies. Today, several groups, both in and out of agencies, said they would support
Conference recommendations for best practices. 733 In light of these discussions, and in
light of the research above, I recommend the following ten best practices:
1. Written policies. Agencies should adopt written policies that address the content of agency
announcements and the procedures for issuing them.
2. Publication of policies. Agencies should publish their written policies online.
3. Advanced notice. Agencies should consider giving advanced notice to subjects identified in
publicity, but only when the subject is not already aware of an ongoing agency action, unless
such notice would be impracticable or inconsistent with the nature of the proceeding
4. Corrections and retractions. Agencies should adopt procedures for correcting and retracting
materially inaccurate statements, subject to exceptions in the public interest.
5. Publicizing investigations, complaints, and other preliminary actions. Agencies should not
publicize investigations except in rare circumstances as required by the public interest, and
should publicize complaints and other preliminary actions only with a clear explanation that
the action is tentative and non-final.

730

Eric Posner, A Terrible Shame: Enforcing Moral Norms Without the Law Is No Way to Create a
Virtuous Society, SLATE.COM (Apr. 9, 2015) (noting that, on the whole, the law on using shame as a
sanction is ambivalent and incoherent).
731
Cortez, supra note 7, at 1441-53 (arguing for judicial review of agency publicity).
732
1 C.F.R. § 305.73-1; 38 Fed. Reg. 16,839 (Jun. 27, 1973).
733
See, e.g., Interview with Sean Moulton & Scott Klinger, supra note 16; Interview with officials
from the FTC Office of General Counsel, supra note 16;

76

6. Capital market reactions. Agencies should consider the potential capital market reactions to
their announcements and should, when practicable and subject to exceptions in the public
interest, try to minimize potential capital market shocks.
7. Social media. Agencies should incorporate into their social media policies best practices and
procedures that apply to traditional types of agency publicity, such as clear lines of
responsibility for publishing information via agency accounts and safeguards to ensure the
accuracy of statements.
8. Database disclosures. Agencies should adopt written policies governing online databases
that contain adverse information about identified parties. Those policies should ensure that
(i) the data are accurate, (ii) that users are informed of the source(s), context, and any
limitations of the data, and (iii) that subjects are given the chance to post responses or
request corrections or retractions, subject to reasonable exceptions in the public interest.
9. Clarifying the Information Quality Act. The OMB should clarify that the Information
Quality Act applies to new substantive information in press releases that is not covered by
previous information dissemination subject to the Act. The OMB should also consider
updating its guidelines to account for the different types of databases published by agencies.
10. Fielding objections. Agencies that are not subject to the Information Quality Act, and do not
otherwise have post-publication procedures for requesting corrections to information should
direct objections to the agency’s announcement to the Ombudsman or Inspector General, as
appropriate.

1. Written Policies
Recommendation. Agencies should adopt written policies that address the content of
agency announcements and the procedures for issuing them.
This recommendation is not new. Gellhorn’s 1973 article found that very few agencies
had established written policies. 734 ACUS thus recommended that “Each agency should
state in its published rules the procedures and policies to be followed in publicizing
agency action or policy, and internal operating practices should assure compliance.” 735
However, few agencies implemented this recommendation. The ACUS files contain a
1974 letter from John Cushman, who observed: “I suspect you will find a number of
agencies who say in effect that they agree with [the] Recommendation in principle but
who are not willing to state their policies in regulations or even a policy statement.”736
His letter viewed the need for a written policy as probably “vital” to Recommendation
73-1, “since it may be the only way to test whether [an] agency will do anything.” 737 My
non-exhaustive review identified only the following written policies, some of which may
be outdated or not followed:

734

Gellhorn, supra note 7, at 1384.
1 C.F.R. § 305.73-1; 38 Fed. Reg. 16,839 (Jun. 27, 1973).
736
Letter from John F. Cushman to Ed Leahy of Jan. 4, 1974) (internal quotations omitted) (on file
with ACUS).
737
Id.
735

77

Agency

Written Publicity Policy

Public?

Bureau of Alcohol, Tobacco,
and Firearms (ATF) 738

ATF Directive O 1200.7

No 739

Consumer Product Safety
Commission (CPSC)

Information Disclosure Under Section 6(b) of the
Consumer Product Safety Act, 16 C.F.R. part 1101

Yes 740

Federal Power Commission
(FPC) 741

18 C.F.R. §§ 1.6 and 1.36

Yes 742

Federal Trade Commission
(FTC)

Operating Manual, Chapter 17 § 2.5

Yes 743

Department of Health and
Human Services (HHS)

Release of Adverse Information to News Media, 45
C.F.R. part 17

Yes 744

Securities and Exchange
Commission (SEC)

SEC Administrative Regulations on “Press Relations
Policies and Procedures”

Yes 745

The need for written policies. Even agencies staffed with professionals of immense
goodwill can benefit from adopting written policies. Although agency practices may be
constrained by internal protocolsor by what Gellhorn called “custom, habit, and natural
bureaucratic caution” 746the four-decade interim shows that agencies sometimes breach
these self-restraints. Moreover, agencies with written policies are probably less likely to
abuse publicity than agencies without them. 747 Further, written publicity policies can be
an important way to preserve best practices. As one former FDA official explained, the
lessons of the 1960s and 1970s have not necessarily been passed down to later
generations at agencies, and without written policies, agency staff might have to re-learn
those lessons through trial and error. 748 Of the three agencies examined in detail, the FTC
seems to have the clearest publicly-available written policies, although FTC officials are
quick to note that the agency’s policies are not always embedded in the Operating
Manual. 749 Yet, the FTC’s publicity policy was updated in 2014 and is included in the
Operating Manual, perhaps indicating that the earlier FTC policies praised by Gellhorn
have survived in some form.

738

Today, the agency is named the Bureau of Alcohol, Tobacco, Firearms, and Explosives.
This policy was at issue in Banfi Products Corp. v. United States, 40 Fed. Cl. 107 (1997). I could
not find the policy on the current ATF web site. See ATF, https://www.atf.gov/ (last visited July 24, 2015).
740
16 C.F.R. part 1101.
741
The FPC is now the Federal Energy Regulatory Commission (FERC).
742
Currently, publicity practices are not addressed in FERC regulations. Sections 1b.9 and 1b.20
address the confidentiality of FERC investigations. See 18 C.F.R. §§ 1b.9, 1b.20.
743
FTC, Administrative Staff Manuals, Operating Manual, https://www.ftc.gov/about-ftc/foia/foiaresources/ftc-administrative-staff-manuals.
744
45 C.F.R. part 17.
745
SECR 18-2, Section B(15)(c).
746
Gellhorn, supra note 7, at 1419.
747
Cortez, supra note 7, at 1429; Gellhorn, supra note 7, at 1423 n.174 (comparing the FTC’s record
with written policies to the EEOC’s record without them).
748
Interview with Wayne Pines, supra note 224.
749
See Part IV.B, supra.
739

78

The need to observe written policies. Just as important as establishing written policies, it
is important that agencies make staff aware of these policies and provide training. Both
current and former public affairs officials noted that their agencies issued publicity
without following any written guidelines. 750 Again, staff may be completely unaware of
such policies, leaving them to rely on custom, habit, and self-restraint. Several current
and former officials emphasized that written policies would be most useful if drafted with
sufficient generality; but they worried that adopting highly specified policies and
procedures might unnecessarily constrain agency discretion, frustrate attempts to notify
the public, and possibly lead to non-compliance. The most useful written policies, many
noted, would express broad principles and procedures, preserving agency discretion,
particularly in emergencies and when otherwise required in the public interest.
Content guidelines. Written policies should address the content of agency announcements.
In 1973, the Conference recommended that “All adverse agency publicity should be
factual in content and accurate in description,” and that “Disparaging terminology should
be avoided.” 751 The Conference also urged agencies to take “reasonable precautions to
assure that the information stated is accurate and that the publicity fulfills an authorized
purpose.” 752 These recommendations remain relevant today. The three agencies
examined in Part IV seem to recognize the power of their publicity and take care to
ensure that announcements are accurate. But again, occasional disputes over the language
used by some agencies shows that content guidelines remain useful. 753 Still, courts are
correct in declining to demand perfection of agencies in formulating announcements, and
agencies “cannot be blamed because certain media reports inaccurately reported an
accurate press release.” 754 FDA once defended its discretion “even if there is the
possibility that the information may be ignored, misinterpreted, oversimplified,
overstated, or misunderstood by the media or by the public.” 755
Still, agencies should strive for press releases that will not, in fact, be misinterpreted. 756 A
best practice followed by many enforcement agencies is to provide prominent links to
underlying documents in a case, such as complaints, settlements, and orders. Applying
the Information/Data Quality Act to new information published in press releases, as many
agencies do, 757 may also help ensure that the content of announcements is accurate and
not unnecessarily pejorative. Finally, agency guidelines should require agencies to clarify
the preliminary nature of investigations, complaints, and other actions that have not been
resolved. 758

750

See, e.g., Interview with Wayne Pines, supra note 224; Interview with Jennifer Howard, supra note

34.
751

1 C.F.R. § 305.73-1; 38 Fed. Reg. 16,839 (Jun. 27, 1973).
1 C.F.R. § 305.73-1; 38 Fed. Reg. 16,839 (Jun. 27, 1973).
753
Cortez, supra note 7, at 1430 (citing instances in which parties objected to pejorative language used
by the FDA and FTC, though courts largely rejected these challenges).
754
Trudeau, 384 F. Supp. 2d at 293.
755
42 Fed. Reg. at 12,437.
756
Cortez, supra note 7, at 1432.
757
See Part III.E, supra.
758
See Part V.A.5, infra.
752

79

Procedural guidelines. With all the different ways agencies can reach the public
todayincluding press releases, social media posts, and countless types of
announcements on agency web sitesit is more important than ever that agencies
articulate clear procedures. 759 Rather than specifying such procedures here, it is probably
more useful to identify broad principles and best practices for agencies to follow. Of
course, agencies adopting procedures would have to tailor them to their own needs.
Policies for who may issue publicity. Gellhorn recommended that agencies adopt
policies that clarify who within the agency may issue publicity and answer media
inquiries. 760 By and large, the agencies I studied seem to observe protocols on these
matters, though the protocols may not be in writing.
Procedures to ensure accuracy. Second, agencies should establish procedures to
ensure the accuracy of publicity. For example, the FTC uses a painstaking, multi-tiered
process to review and clear press releases that discuss enforcement actions. 761 The CFPB
also subjects press releases to multiple rounds of edits with clear stages of review and
approval. 762 The HHS rule requires its agencies like FDA to take reasonable precautions
to assure the information in announcements is accurate, per Recommendation 73-1.763
Agencies should also consider not only the technical accuracy of their statements, but
also the impression left by the announcement as a whole. 764 Thus, for example, an agency
should not suggest in the title of an announcement something that is not fully supported
in the body of the text. 765
Likelihood of harm and alternatives. Both Gellhorn and ACUS recommended that
agencies use publicity only as necessary and consider alternatives that might be equally
effective. 766 Gellhorn also urged agencies to consider the likelihood of causing severe
harm to the subject. 767 It might be difficult to prescribe this consideration in writing,
other than to include a general statement in agency policies emphasizing that adverse
publicity can cause harms that can be indeterminate and difficult to calibrate.
Exceptions in the public interest. Agencies should consider adopting reasonable
exemptions in their publicity policies for emergencies and the like, tailored to the
agency’s individual needs and statutory authorities. For example, the FDA should
maintain significant discretion to warn the public of product risks that might cause death
or severe injuries, or gross economic losses. Several agency officials emphasized the
need for flexibility and warned that strict policies might chill important agency
announcements.
759

Cortez, supra note
Gellhorn, supra note 7, at 1430.
761
See Part IV.B, supra.
762
See Part IV.C, supra.
763
See Part IV.A, supra.
764
Cortez, supra note 7, at 1432.
765
See, e.g., Trudeau, 384 F. Supp. 2d, at 292. Note, however, that the court rejected Trudeau’s claim
that the title of the press release was false or misleading.
766
Gellhorn, supra note 7, at 1426; 38 Fed. Reg. at 16,839.
767
Gellhorn, supra note 7, at 1427-28.
760

80

2. Publication of Policies
Recommendation. Agencies should publish their written policies online.
If few agencies have adopted written publicity policies, even fewer have published them.
However, in an era of sprawling agency web sites, when many agencies publish detailed
employee manuals, handbooks, and other internal policies online, reasons for not
publishing a written publicity policy seem scarce. Indeed, the FDA publishes its
extensive Regulatory Procedures Manual online, as does the FTC its long Operating
Manual. 768 As Peter Barton Hutt explained regarding the FDA’s 1977 proposed rule,
agencies have a duty to tell the public what is and is not permitted. 769 Publication of
written policies not only establishes expectations for regulated parties, but may serve an
internal prophylactic purpose by encouraging agency personnel to exercise their
discretion wisely. 770 Moreover, if agencies do offer procedures for subjects to seek
corrections or retractions, agencies will have to publish these procedures. One model is
the Information/Data Quality Act. The OMB guidelines implementing the Act require
agencies to post their guidelines on their web sites. 771 It does not appear that agencies are
inundated with requests under the Act, despite publication of their policies.
3. Advanced Notice to Subjects
Recommendation. Agencies should give advanced notice to subjects identified in
publicity, but only when the subject is not already aware of an ongoing agency action,
unless such notice would be impracticable or inconsistent with the nature of the
proceeding.
History. In 1973, the Conference similarly recommended that the subjects of publicity be
“given advanced notice” and “a reasonable opportunity” to respond in advance “if
practicable and consistent with the nature of the proceeding.” 772 The Conference did not
recognize an exception for parties who are already aware of an ongoing agency action.
Some agencies objected to these recommendations. 773
Problems with lack of notice. The lack of advanced notice can be particularly
damagingand seem particularly unfairto the subjects of agency publicity. When
agencies take enforcement actions, both due process and the APA typically require that
agencies give the targets prior notice and an opportunity to respond. 774 But when
agencies issue publicity, they sometimes do not provide these basic procedural
protections. For example, in 2003, the FDA publicized objections to a drug company’s
768

See Parts IV.A and IV.B, supra.
Interview with Peter Barton Hutt, supra note 237.
770
Noah, supra note 37, at 940; Cortez, supra note 7, at 1429-30.
771
OMB, Guidelines, supra note 714 OR 203 ?; OMB, Agency Information Quality Guidelines,
https://www.whitehouse.gov/omb/inforeg_agency_info_quality_links/ (last visited July 24, 2015).
772
1 C.F.R. § 305.73-1; 38 Fed. Reg. 16,839 (Jun. 27, 1973).
773
Letters on file with ACUS.
774
APA §§ 5-8, 5 U.S.C. §§ 554-57; Cortez, supra note 7, at 1383.
769

81

press release, but did not notify the company of the agency’s objections beforehand. 775
The company’s stock price dropped nearly 25% within hours of the announcement. 776
Courts, however, have not always been sympathetic to parties challenging a lack of prior
notice. The D.C. District Court held long ago that the FDA did not have to provide a prior
hearing before issuing adverse publicity condemning a cancer clinic for making illegal
marketing claims. 777 Thus, as Gellhorn emphasized, “usually no protection other than the
common sense and good will of the administrator prevents unreasonable use of coercive
publicity.” 778 A former FDA lawyer also observed that “there is relatively little a
company can do” to stop adverse publicity. 779 Thus, principles of good governance
probably dictate that agencies provide some basic due process to subjects.
Agency practices. Agency practices on giving advanced notice vary. HHS rules allow
FDA and other sub-agencies to provide advanced notice “if practicable and consistent
with the nature of the proceeding.” 780 The rule notes that this provision gives subjects an
opportunity to prepare their own public response, but does not give them a right to edit or
object to the agency’s announcement. 781 FDA’s practice is to notify subjects that a press
release is coming but to not negotiate over the text of the announcement (or even to
provide the text prior to publication). 782 As noted above, the SEC failed to make
sufficient efforts to give advanced notice to Goldman Sachs before filing its complaint,
contrary to SEC Administrative Regulation SECR 18-2. 783 Multiple agencies explained
that most subjects of adverse publicity are already aware that they are on the agency’s
radar. 784 The FTC, for example, generally meets with the subjects of investigations
before filing a complaint, meaning the subject will be aware of the investigation. 785
Analogs. Congress has shown sensitivity to agency disclosures without prior notice. The
Toxic Substances Control Act makes it a crime to publicly disclose confidential
information that manufacturers have submitted to the EPA unless the agency gives thirty
days advanced notice. 786 Exceptions allow EPA to disclose such information if necessary
to protect public health or the environment. But even then, the EPA must provide either
15 days or 24 hours advanced notice, depending on the significance of the threat. 787 Other
laws make it a crime for agency personnel to publicly disclose confidential company
information. 788 Similarly, good database practices support some form of advanced notice.
775

Vodra et al., supra note 59, at 649.
FDA Responds in Kind to SuperGen, supra note 59, at 6; Vodra et al., supra note 59, at 649.
777
Hoxsey Cancer Clinic v. Folsom, 155 F. Supp. 376, 377-78 (D.D.C. 1957).
778
Gellhorn, supra note 7, at 1420.
779
Levine, supra note 288, at 277.
780
45 C.F.R. § 17.6.
781
Id.
782
Levine, supra note 288, at 277.
783
SEC OIG, supra note 33, at 57-65. Note that the OIG found that SEC staff took differing views on
whether the Commission should give advanced notice to defendants in advance of filing a complaint, and
recommended that the SEC consider revising SECR 18-2.
784
See, e.g., 42 Fed. Reg. at 12,439; Interview with Jennifer Howard (CFPB), supra note 34.
785
Interview with officials from the FTC Office of General Counsel, supra note 16.
786
15 U.S.C. § 2613(c).
787
15 U.S.C. § 2613(c)(2)(B)(i).
788
See, e.g., 15 U.S.C. § 50; 16 C.F.R. §§ 4.09-4.11.
776

82

The CFPB’s consumer complaint database, for example, gives companies ample
opportunity to learn about and verify complaints before they are published online. 789
Exceptions. If agencies do adopt a policy to provide advanced notice, they should have
sufficient leeway to also adopt exceptions relevant to the agency’s mission and statutory
responsibilities. For example, the EPA and FDA should be able to forego advanced
notice during emergencies or if otherwise contrary to the public interest. Consumer
protection agencies like the FTC and CFPB should be able to recognize exceptions if
there is a risk of significant economic harm. Finally, all enforcement agencies should be
able to adopt exceptions if prior notice would compromise ongoing surveillance,
investigations, or other enforcement activities.
4. Corrections and Retractions
Recommendation. Agencies should adopt procedures for correcting and retracting
materially inaccurate statements, subject to emergencies and other exceptions in the
public interest.
History. In 1973, the Conference recommended that when agency publicity is erroneous
or misleading, parties may request corrections or retractions, to be published in as close
to the same manner as feasible to the original publicity. 790 Although agency retractions
“are infamous for going unnoticed,” 791 providing post-publication procedures should
ameliorate most disputes over agency publicity. 792 Doing so also achieves a measure of
symmetryfor example, agencies frequently publicize when they bring successful
enforcement actions, but rarely publicize investigations that found no wrongdoing or
complaints that failed. 793 Moreover, many suspect that when agencies do make such
announcements, they do not publicize them with the same vigor, nor do media give them
the same level of attention. 794 Thus, procedures for requesting corrections and retractions
can help soften criticisms that agencies use publicity unfairly.
Agency practices. Agency practices for corrections and retractions vary. The HHS rule
discussed above 795 allows parties to request that HHS or its sub-agencies correct or
retract information that is inaccurate or misleading, and provides that the response will be

789

Part IV.C, supra.
1 C.F.R. § 305.73-1; 38 Fed. Reg. 16,839 (Jun. 27, 1973).
791
Cortez, supra note 7, at 1437 (citing O’Reilly, The 411 on 515, supra note 37, at 849). For example,
the National Highway Traffic Safety Administration (NHTSA) believes that corrective announcements can
undo the damage from earlier errors. NHTSA, Petitions for Rulemaking, Defect and Noncompliance
Orders, 60 Fed. Reg. 17,254, 17,257 (1995) (noting that suppliers whose components or parts are
erroneously identified as defective in recall notices can simply counter “[a]ny adverse publicity that does
affect a supplier … by publicizing the correct information when it becomes available”).
792
Cortez, supra note 7, at 1437-38.
793
Id. at 1437. Note that the FTC will publish a “closing letter” if an investigation finds no violations.
FTC, Commission Closing Letters, https://www.ftc.gov/enforcement/cases-proceedings/closing-letters-andother-public-statements/commission-closing-letters (last visited July 27, 2015).
794
Gellhorn, supra note 7, at 1391-92; Cortez, supra note 7, at 1437.
795
Part IV.A, supra.
790

83

made “in the same manner” as the original announcement. 796 The FTC does not make
clear any procedures for making such requests, and FTC officials explain that the subjects
of press releases do not necessarily want or need to request corrections or retractions. 797
Nonetheless, FTC officials note that aggrieved parties will have several points of contact
with the Commission should they object to an announcement. 798 Another example that
also applies to agency databases is the EPA, which designates agency personnel to
consider objections that data entered on the EPA web site are incorrect. 799 EPA will then
identify the data with yellow flag icons, indicating that the data are disputed. 800
Recommended procedures. Agencies should provide clear instructions for parties to
request that agencies correct or retract information in an agency announcement. Subjects
seem to prefer that the information be removed completely, but also welcome corrections
and retractions. 801 Because many agencies apply the Information/Data Quality Act to
press releases that contain new information that is not already subject to the Act, these
procedures might suffice. 802 Other agencies should consider extending the Act to press
releases in this manner, contrary to the OMB’s guidelines. Second, it should not be
difficult for agencies that maintain media distribution lists to reach the same audience
twice. 803 Third, agencies should use the same method of distribution as the original
announcement. Fourth, agencies should also establish clear deadlines for responding to
the request, and make available procedures for seeking expedited reviews. 804 For
example, the FDA’s proposed 1977 policy required subjects to send expedited requests to
the Assistant Commissioner for Public Affairs. 805 Fifth, it is important that agencies tailor
these procedures to meet their own unique circumstances and needs. Finally, disputed
requests might be appealed to an agency Ombudsman, Chief Information Officer, or
Inspector General. 806 Providing an appeal mechanism could help agencies generate more
credibility and perhaps deter litigation. 807
5. Publicizing Investigations, Complaints, and Other Preliminary Actions
Recommendation. Agencies should not publicize investigations except in rare
circumstances as required in the public interest, and should publicize complaints and
other preliminary actions only with a clear explanation that the action is tentative and
non-final.

796

45 C.F.R. § 17.7.
Interview with officials from the FTC Office of General Counsel, supra note 16.
798
Id.
799
O’Reilly, Libels on Government Websites, supra note 93, at 514, 533-36.
800
Id. at 534.
801
Id. at 534-36.
802
The Act required the OMB to “establish administrative mechanisms allowing affected persons to
seek and obtain correction of information maintained and disseminated by the agency” that does not meet
the required standards for quality, objectivity, and the like. 44 U.S.C. § 3516(b)(2)(B).
803
O’Reilly, Libels on Government Websites, supra note 37, at 536.
804
Cortez, supra note 7, at 1438; O’Reilly, Libels on Government Websites, supra note 93, at 537.
805
42 Fed. Reg. at 12,440-41.
806
See, e.g., O’Reilly, Libels on Government Websites, supra note 93, at 538-39.
807
O’Reilly, The 411 on 515, supra note 37, at 848; Cortez, supra note 7, at 1438.
797

84

History. In 1973, the Conference recommended that agencies publicize investigations or
“pending agency trial-type proceedings only in limited circumstances” and subject to
certain criteria. 808 For example, agencies should issue such publicity when “there is a
significant risk the public health or safety may be impaired or substantial economic harm
may occur unless the public is immediately notified.” 809 However, when feasible, the
Conference recommended that agencies give parties a chance to cease immediately the
offending practice and avoid public harm in lieu of using adverse publicity. 810 Such
publicity might also be necessary, according to Recommendation 73-1, when required to
notify interested parties of pending agency adjudications, or when information about the
adverse agency action is already public and likely to be covered by the media (but only to
ensure accurate media coverage and “public understanding”). 811 However, a critique of
Recommendation 73-1 in the media sums up the counterargument well:
The heart of the problem is in the peculiar role of the regulatory agency itself.
Litigated cases, like those which worry the Administrative Conference, are part
of the regulatory agency’s broader effort to devise and enforce solutions to
complex public problems. So these cases are more than private squabbles
between prosecutor and accused. 812

Risks of premature publicity. As noted above, 813 agency publicity can be problematic
when it is premature, such as when an agency publicizes that it has initiated an
investigation into certain practices without also clarifying that the allegations have not
been proven yet. Since 1973, numerous parties have sued agencies for publicizing
investigations or complaints, showing that such announcements remain controversial. 814
There are also well-known instances of early-stage publicity causing significant harm to
industry. Perhaps the most recent case was the FDA and CDC incorrectly identifying
tomatoes as the source of a salmonella outbreak in 2008, costing the tomato industry
roughly $200 million. 815 Of course, publicity of preliminary agency actions may be
necessary in many cases, particularly when required to alert the public to health or safety
risks. Again, agencies should retain maximum discretion to make such announcements.
Statutory authority. As explained above, Congress and the White House have not taken a
consistent stance on whether agencies should publicize investigations and complaints.
For example, the PTO may publicize complaints against invention submission
promoters, 816 but the FEC is prohibited from publicizing investigations into suspected
violations of campaign finance laws. 817 And another statute prohibits the Equal
808

1 C.F.R. § 305.73-1; 38 Fed. Reg. 16,839 (Jun. 27, 1973).
1 C.F.R. § 305.73-1; 38 Fed. Reg. 16,839 (Jun. 27, 1973).
810
1 C.F.R. § 305.73-1; 38 Fed. Reg. 16,839 (Jun. 27, 1973).
811
1 C.F.R. § 305.73-1; 38 Fed. Reg. 16,839 (Jun. 27, 1973).
812
Stanley E. Cohen, Curbs on Regulatory Press Releases – Would They Hurt or Help Businesses?,
ADVERTISING AGE (June 18, 1973) (on file with ACUS).
813
Part II.C.1, supra.
814
Appendix C (Table of Federal Cases, 1974-2014).
815
Maki, supra note 61.
816
35 U.S.C. § 297(d).
817
Federal Election Campaign Act, 2 U.S.C. § 437g(a)(4)(B), (a)(12)(A); Common Cause v. FEC, 83
F.R.D. 410, 412 (D.D.C. 1979); Cortez, supra note 7, at 1435.
809

85

Employment Opportunity Commission (EEOC) from “making public” information that it
obtains while investigating or negotiating with employers suspected of violating federal
antidiscrimination laws. 818 There are likely several other similar statutes governing
agencies. 819 Thus, statutory authority for this practice varies. It is likely that most
agencies do not receive explicit direction one way or the other.
Agency practices. Most agencies “regularly publicize every significant formal action,”
even when not necessary to warn the public. 820 My review of FDA, FTC, and CFPB
practices show that most agencies are sensitive to the dangers of publicizing
investigations, but regularly publicize agency complaints. Agencies do, however, use
disclaimers and links to full court documents to provide context for such announcements.
FDA. Although HHS rules limit announcements of investigations or pending
proceedings to when there is a significant risk to public health or substantial economic
harm, 821 the FDA regularly publicizes preliminary actions, including investigations, civil
complaints, and criminal charges and indictments. 822 My empirical review of FDA press
announcements between 2004 and 2010 showed that a high percentage of negative press
releases that identified specific products or parties involved some preliminary or tentative
agency determination (74%), rather than a final, determinative action (26%). 823 Of course,
many of these press releases announce product recalls, perhaps one of the FDA’s most
important functions. The Federal Food, Drug, and Cosmetic Act allows FDA to
disseminate information about regulated products, and clarifies that nothing prohibits
FDA from publishing the results of investigations. 824 The FDA’s Regulatory Procedures
Manual includes detailed procedures for issuing press releases regarding enforcement
actions. 825 Note also that the FDA publishes on its web site Warning Letters and records
of inspectional observations, including company responses.
FTC. The FTC treats investigations as non-public, but regularly publicizes formal
complaints initiating law enforcement actions. 826 As early as 1918, the FTC adopted a
policy of issuing press releases when it filed complaints, 827 and the D.C. Circuit upheld
this practice in 1968. 828 The FTC’s policy is a thoughtful onethe Commission takes
care when announcing formal complaints to clarify that the case has not yet been
adjudicated. 829 Even though these disclaimers are not always effective, 830 they should be
818
Civil Rights Act §§ 706(b), 709(e), 42 U.S.C. §§ 2000e-5(b), 2000e-8(e); Sears, Roebuck & Co. v.
EEOC, 581 F.2d 941 (D.C. Cir. 1978); Cortez, supra note 7, at 1435.
819
See, e.g., 15 U.S.C. § 50 (making it a crime for FTC employees to make public confidential
information).
820
Gellhorn, supra note 7, at 1392; see also FTC, Enforcement, https://www.ftc.gov/enforcement (last
visited Aug. 21, 2015) (linking to several pages of enforcement announcements and documents).
821
45 C.F.R. § 17.4.
822
Cortez, supra note 7, at 1408.
823
See Part IV.A, supra; Appendix D (FDA Press Announcements, 2004-2010), infra.
824
FDCA § 705(b); 21 U.S.C. § 375(b).
825
Part IV.A, supra.
826
Part IV.B, supra.
827
Gellhorn, supra note 7, at 1388-89.
828
FTC v. Cinderella Career & Finishing Sch., Inc., 404 F.2d 1308, 1313-14 (D.C. Cir. 1968).
829
Gellhorn, supra note 7; Interview with Officials from FTC Office of Public Affairs, supra note 34.

86

required at minimum. The FTC’s Operating Manual provides detailed requirements on
making public both investigations and complaints. FTC officials explain that
investigations are no longer made public. Both the FTC Manual and agency officials
describe careful procedures for drafting and approving press releases for FTC complaints.
These procedures are designed to ensure that the announcement is factual and accurate.
CFPB. One of the CFPB’s most controversial practices is to publish consumer
complaints in an online database. 831 But the CFPB’s publication criteria, and the
procedures allowing companies to review and verify complaints before publication, seem
to provide adequate quality assurance. Moreover, the Bureau disclaims the accuracy of
the entries, emphasizing that the information is provided by consumers and companies,
rather than the Bureau. 832 Traditional press releases sometimes announce complaints
against regulated firms. The CFPB web site includes roughly seven pages of
“enforcement” press releases. 833 Like the FDA and FTC, the CFPB uses a multi-tiered
approval process to ensure the accuracy of such announcements. However, Bureau
regulations provide that investigations are non-public. 834
Incomplete information. The Conference recognized that agencies must sometimes
disclose information that “has a limited basis,” such as when allegations are made but not
fully adjudicated, but urged agencies to “prominently” disclose the limited basis and
tentative nature of the information. 835 Agencies like the EPA and FDA might also have to
alert the public to potentially dangerous products amid substantial scientific uncertainty.
Again, as the Conference recommended four decades ago, agencies should clarify when
the factual or scientific basis for the announcement is tentative and subject to change.
Compliance or publication. Recommendation 73-1 endorsed the practice of agencies’
using the threat of publicity to encourage quick compliance. 836 The Conference stated
that “where public harm can be avoided by immediate discontinuance of an offending
practice, a respondent should be allowed an opportunity, where feasible, to cease the
practice (pending a legal test) in lieu of adverse agency publicity.” 837 This
recommendation was criticized as “blackmail,” 838 A magazine article argued that
agencies could use this leverage to say “Either quietly stop now and avoid publicity … or
face the kind of publicity you don’t want.” 839 It is also interesting to note that public
criticisms of Recommendation 73-1 frequently invoked the then-recent Watergate
scandal and the dangers of executive secrecy. However, courts have approved of this use
of publicity. One court in 1977 noted that the FTC publicizes complaints in part “to
830

Cortez, supra note 7, at 1431.
Part IV.C, supra.
832
I discuss recommendations for agency databases more fully in Part V.A.8, infra.
833
CFPB, Newsroom, supra note 680.
834
12 C.F.R. § 1080.14(b).
835
1 C.F.R. § 305.73-1; 38 Fed. Reg. 16,839 (Jun. 27, 1973).
836
38 Fed. Reg. 16,839 (Jun. 27, 1973).
837
Id.
838
Stanley E. Cohen, Curbs on Regulatory Press Releases – Would They Hurt or Help Businesses?,
ADVERTISING AGE (June 18, 1973) (on file with ACUS).
839
Id.
831

87

induce respondents to agree promptly to remedial orders without the necessity of
extended legal proceedings.” 840 Similarly, HHS rules allow sub-agencies like the FDA to
withhold releasing adverse information to the public if “public harm can be avoided by
immediate discontinuance of an offending practice.” 841 Undoubtedly, the threat of
publicity can be a strikingly effectiveif coerciveregulatory tool. 842
Clarifying the nature of the action. Agency policies should require that announcements
clarify the nature of any agency enforcement action as best as possible. Agencies should
take particular care when announcing pending or preliminary agency actions via social
media or other truncated formats. 843 Companies often express concern that agency
announcements misstate the nature of the agency’s action or mislead the public to believe
that the allegations are more definitive than they are. 844 Agencies press releases are not
“obliged to repeat every word or phrase in a settlement,” 845 but they should avoid using
language in titles and headings that are likely to be misinterpreted. 846 Agencies should
remain sensitive to these concerns.
Exceptions. There are obvious exceptions in the public interest that must be recognized.
Agencies do not always have the luxury of waiting for cases to conclude to alert the
public. For example, agencies like the CPSC, EPA, and FDA must announce product
recalls or other public health hazards. 847 These agencies are often in a Catch-22, as they
are often criticized for not making these announcements soon enough. 848 For example,
the NHTSA has long been criticized for publicizing vehicle defects months or years after
they are first suspected. 849 Observers worry that regulated companies might use
procedures for correcting or retracting publicity to delay important agency
announcements. 850 Thus, agencies should have flexibility to make public announcements
before notifying or responding to identified parties. 851 Again, agencies should have
discretion to balance the public and private interests at stake.

840
Trans World Accounts, Inc. v. Associated Press, 425 F. Supp. 814, 820 (N.D. Cal. 1977). FTC
officials note that the court appears to have misread the FTC Act and rules on this point, explaining that 15
U.S.C. § 45 and 16 C.F.R. §§ 2.31-32 do not govern the Commission’s procedures for issuing proposed
complaints.
841
45 C.F.R. § 17.4.
842
Cortez, supra note 7, at 1427; Noah, supra note 37, at 875; Gellhorn, supra note 7, at 1421.
843
See Part V.7, infra, for a fuller discussion.
844
See, e.g., Kaiser Aluminum & Chem. Corp. v. CPSC, 414 F. Supp. 1047, 1061-62 (D. Del. 1976)
(alleging that the CPSC’s public announcements led the public to believe that the CPSC had made a final
determination based on more convincing evidence than it really possessed).
845
Trudeau, 384 F. Supp. 2d at 292.
846
Cortez, supra note 7, at 1431.
847
Id. at 1436.
848
Id.
849
Contrast Gellhorn, supra note 7, at 1418, with the recent criticism of Toyota and other
manufacturers. See, e.g., 156 CONG. REC. S2759-60 (daily ed. Apr. 28, 2010) (statement of Sen. Barbara
Boxer).
850
O’Reilly, Libels on Government Websites, supra note 93, at 546-47; Cortez, supra note 7, at 1437;
Sidney A. Shapiro, The Information Quality Act and Environmental Protection: The Perils of Reform by
Appropriations Rider, 28 WM. & MARY ENVT’L L. & POL’Y REV. 339, 358-61 (2004).
851
Cortez, supra note 7, at 1437.

88

6. Timing Announcements to Avoid Capital Market Shocks
Recommendation. Agencies should consider the potential capital market reactions to their
announcements and should, when practicable and subject to exceptions in the public
interest, try to minimize potential capital market shocks.
Hyper-sensitive market reactions. As I explain above, the potential impact of agency
publicity is magnified by modern capital markets, made hyper-responsive by Internet
technologies. 852 Company stock prices can be extremely sensitive to agency
announcements, regardless whether the announcement is inaccurate or misinterpreted.
Recent incidents involving CMS, FDA, and SEC announcements demonstrate how
markets can react quickly and hastily to adverse publicity.
Agency rules. Agency publicity policies are largely silent on whether agencies should
consider or try to avoid capital market reactions to their announcements. One exception is
a memorandum by the Centers for Medicare and Medicaid Services (CMS), which
discourages employees from releasing “market sensitive” information that “may have
stock or bond market implications” during trading hours. 853 Otherwise, the HHS rule854
and the FTC Operating Manual 855 are both silent on this issue. The CFPB also does not
seem to have a written policy on this issue.
Agency practices. Agency practices vary, of course, but also tend to disregard potential
capital market reactions in favor of other considerations. The FTC publishes press
releases during business hours (which are roughly coterminous with trading hours) and
does not try to minimize market reactions. 856 Similarly, the CFPB does not embargo
press releases to avoid influencing capital markets. 857 The SEC has refused to give NYSE
advanced notice of major enforcement actions or to make such announcements during
non-trading hours. 858 Even CMS, which has a policy on point, made a recent public
announcement that influenced billions of dollars in trading, seemingly oblivious to the
potential market response. 859 Thus, many agencies seem to make announcements without
overriding concern for their potential market impact. Agencies cite several reasons for
not limiting announcements to non-trading hours or otherwise trying to minimize market
reactions. The CFPB and SEC both cite the potential for early leaks. 860 CMS, FDA, and
FTC officials argue that the agencies cannot predict or control market reactions. 861 FTC
officials explain that global capital markets and after-hours trading make it difficult to
852

Part III.D, supra.
Memorandum on Employee Nondisclosure Policy from James Webber, supra note 189.
854
45 C.F.R. part 17.
855
FTC Operating Manual, supra note 432.
856
Interview with officials from the FTC Office of Public Affairs, supra note 34.
857
Interview with Jennifer Howard, supra note 34.
858
Cortez, supra note 7, at 1397 n.151 (citing SEC OIG, supra note 33, at 65-71).
859
Part III.D, supra.
860
Interview with Jennifer Howard, supra note 34; Cortez, supra note 7, at 1397 n.151 (citing SEC
OIG, supra note 33, at 65-71).
861
Schulte, supra note 191, (quoting Aaron Albright from CMS); Interview with officials from the
FTC Office of Public Affairs, supra note 34.
853

89

avoid market reactions completely. 862 FTC officials also explain that press releases
regarding enforcement actions are timed to issue when the complaint is filed or when
Commission votes are made public, not when markets are closed. 863 Thus, although many
agencies are aware of potential market reactions to their announcements, such reactions
do not seem to be an overriding concern for them. A more deliberate policy might be
warranted.
Exceptions in the public interest. Again, agencies should be able to adopt exceptions, in
the public interest, tailored to their statutory responsibilities. For example, agencies like
the CPSC, EPA, and FDA should be able to alert the public to health and safety risks
during trading hours. The risk of substantial harm or death should trump, obviously, the
risk of causing capital market shocks. The FDA, for example, stresses that public
announcements can be critical in avoiding deaths or serious injury, citing several recent
examples, including the 2013 warnings of non-sterile drugs distributed by pharmacy
compounders, the 2012 peanut products recall, the 2008 recall of heparin, and the 2007
recall of pet food tainted by melamine. Similarly, consumer protection agencies like the
CFPB and FTC should be able to alert consumers to fraud and other substantial risks of
economic harm. Thus, this is a soft recommendationagencies should consider the
potential capital market reactions to their announcements, balancing public and private
interests when timing announcements. Agencies should not, for example, restrict
announcements to non-trading hours when necessary to alert the public, or when the
announcement truly is routine (notwithstanding the CMS example above).
7. Social Media Announcements
Recommendation. Agencies should incorporate into their social media policies best
practices and procedures that apply to other types of agency publicity, such as clear lines
of responsibility for publishing information via agency accounts and safeguards to ensure
the accuracy of statements.
Agency uses. As explained above, modern agencies use social media platforms such as
Facebook, Twitter, and YouTube to communicate with the public. 864 These and other
social media platforms are designed to disseminate information widely and
immediatelymaking them an important new tool for agencies. Social media can also be
important for reaching younger audiences. 865
Agency challenges. However, social media exacerbate some of the longstanding problems
with agency publicity. Wide, immediate publication amplifies the reach of agency
publicity, and short, truncated formats probably increase the risk that audiences will
misread, misunderstand, or mischaracterize complex regulatory actions. Moreover, the
volume and variety of social media platformsincluding frequent changes to these
platformscreate challenges for agencies. Agencies seem to recognize these dangers.
862

Interview with officials from the FTC Office of Public Affairs, supra note 34.
Id.
864
Part III.A.2, supra.
865
Interview with officials from the FTC Office of Public Affairs, supra note 34.
863

90

The FTC, for example, has been exceedingly cautious with its use of social media, and
did not establish such accounts until the Commission had created policies to ensure
proper use. 866
Agency practices. Social media practices among agencies are evolving. The federal web
site USA.gov lists 21 different social media services used by the federal government.867
As noted above, agencies make prolific use of social media to reach the public. The FDA
maintains 17 different Twitter accounts, in addition to accounts on Facebook, Pinterest,
Flickr, and YouTube. 868 The FTC maintains nine separate Twitter accounts (including
five for each of the commissioners and Chairwoman), in addition to accounts on
Facebook, YouTube, and LinkedIn. 869 And the CFPB maintains accounts on Facebook,
Flickr, Twitter, and YouTube. 870 My earlier research found that agencies like the EPA
also maintain over a dozen Twitter feeds. 871
Types of announcements. The case studies show that the CFPB, FDA, and FTC all
use social media to announce enforcement actions. The FDA, for example, operates
multiple social media accounts solely to announce recalls and other product alerts. 872
However, many agency announcements do not name specific companies or products. A
large portion of the FTC’s announcements on Twitter, for example, draw attention to
unfair or deceptive trade practices, but without identifying specific violators. 873 Even
when the FTC announces enforcement actions on Twitter, it tends not to name companies
in the post itself. 874 The CFPB uses social media more to engage and educate consumers
rather than to publicize enforcement actions. 875 For the most part, agencies seem to use
social media for a variety of purposes and to reach a variety of audiences. Thus, agency
practices can be difficult to generalize.
Dedicated personnel. Some agencies designate personnel responsible for social media
accounts. The organizational chart for the FDA’s Office of External Affairs shows “Web
and Digital Media” as staffed by Charles Mulieri. 876 The FTC’s Office of Public Affairs
has a staff member responsible for social media. 877 And the CFPB handles social media
through its Office of Consumer Education and Engagement, rather than through its Office

866

Id.
USA.gov, Federal Government Social Media Registry, supra note 108.
868
Part IV.A, supra.
869
Part IV.B, supra.
870
CFPB, http://www.consumerfinance.gov (last visited July 28, 2015) (displaying links to the
Bureau’s social media accounts).
871
Cortez, supra note 7, at 1394 (tallying 18 separate Twitter accounts maintained by the EPA).
872
See FDA Recalls, http://twitter.com/FDArecalls (last visited July 22, 2015); FDA MedWatch,
http://twitter.com/fdamedwatch (last visited July 28, 2015).
873
Part IV.B, supra.
874
Id.
875
Interview with Jennifer Howard, supra note 34.
876
FDA, Office of External Affairs Organization,
http://www.fda.gov/AboutFDA/CentersOffices/OrganizationCharts/ucm380930.htm (last visited July 28,
2015).
877
Interview with officials from the FTC Office of Public Affairs, supra note 34.
867

91

of Communications. 878 Agencies should establish clear internal lines of responsibility for
using social media on the agency’s behalf.
Written policies. The FTC reportedly uses written policies to govern staff use of
social media on the Commission’s behalf, but did not produce these policies at the time
of our interview. 879 The FTC also established a “Social Media Task Force” to evaluate
whether different platforms are appropriate for Commission use. 880 CFPB officials could
not identify policies or procedures that govern social media use by the Bureau. 881 The
FDA is subject to extensive social media rules by its parent agency, HHS. 882 All agencies
are subject to extensive guidelines published by OMB and the GSA, but these guidelines
largely focus on privacy, security, and other technical recommendations, ignoring the
unique problems of adverse agency publicity.
Security. As with agency web sites, agencies should take care to limit access to the
agency’s social media accounts. The FTC makes use of such protocols, and strictly limits
the staff who are authorized to post from Commission accounts. 883 FTC officials said
they were aware of fake FTC social media accounts, but assume that audiences can
distinguish them from authentic agency accounts, given account verification symbols
offered by social media services. 884 The U.S. Chief Information Officer (CIO) publishes
Guidelines for Secure Use of Social Media by Federal Departments and Agencies, which
includes a mix of technical and common sense recommendations for agencies, focusing
on cybersecurity. 885 The OMB has also published memoranda on the use of social media
and third-party platforms and web sites by agencies. 886 Given the use of agency names in
social media accounts maintained by non-agency users, agencies should make use of
account verification features when available on the social media platform.

878

Interview with Jennifer Howard, supra note 34.
Interview with officials from the FTC Office of General Counsel, supra note 16.
880
Interview with officials from the FTC Office of Public Affairs and Office of General Counsel,
supra notes 34, 16.
881
Interview with Jennifer Howard, supra note 34.
882
HHS, Policies that Apply to Social Media, http://www.hhs.gov/web/socialmedia/policies/ (last
visited Aug. 5, 2015).
883
Interview with officials from the FTC Office of Public Affairs, supra note 34.
884
Id.
885
U.S. CIO Council, Guidelines for Secure Use of Social Media by Federal Departments and
Agencies (Sep. 2009), https://cio.gov/wpcontent/uploads/downloads/2012/09/Guidelines_for_Secure_Use_Social_Media_v01-0.pdf (last visited
Aug. 5, 2015).
886
Memorandum for the Heads of Executive Departments and Agencies, and Independent Regulatory
Agencies from Cass R. Sunstein, OMB Administrator, “Social Media, Web-Based Interactive Technologies,
and the Paperwork Reduction Act” (Apr. 7, 2010),
https://www.whitehouse.gov/sites/default/files/omb/assets/inforeg/SocialMediaGuidance_04072010.pdf;
Memorandum for the Heads of Executive Departments and Agencies from Peter R. Orszag, OMB Director,
“Guidance for Agency Use of Third-Party Websites and Applications” (Jun. 25, 2010) (OMB
Memorandum 10-23), https://www.whitehouse.gov/sites/default/files/omb/assets/memoranda_2010/m1023.pdf.
879

92

8. Procedures Governing Database Disclosures
Recommendation. Agencies should adopt written policies governing online databases that
contain adverse information about identified parties. Those policies should ensure that (i)
the data are accurate, (ii) that users understand the source(s), context, and any limitations
of the data, and (iii) that subjects are given the chance to post responses or request
corrections or retractions, subject to reasonable exceptions in the public interest.
A popular tool for agencies. As noted above, federal agencies now maintain perhaps
hundreds or even thousands of searchable online databases, many of which contain
negative information about identified products or parties. 887 Data.gov lists 174 different
federal, state, and local public entities that maintain online datasets, several of which
publish hundreds of datasets each. 888 Appendix E provides a sample of roughly two
dozen federal databases that contain negative information about identified parties. These
include CMS databases that use Medicare data to disclose patient satisfaction surveys,
rates of complications and deaths, and other quality metrics. 889 The CFTC publishes a
searchable online database of sanctions against regulated firms and individuals. 890 The
CPSC publishes a database of product recalls and other safety problems. 891 The
Department of Transportation publishes large datasets of airline and airport statistics,
including on-time departure rates and lost luggage rates. 892 The EPA posts several
databases online, including its Enforcement and Compliance History Online (ECHO) and
the well-known Toxic Release Inventory Program (TRI). 893 Other databases publish large
amounts of data on government contractors or banned exporters, for example. 894 And, of
course, the databases maintained by the FDA, FTC, and CFPB were described in detail
above. 895
Diversity of databases. The volume and variety of agency databases makes
generalizations difficult. They vary widely in purpose, scope, design, data sources, and
other key characteristics. As such, agencies should tailor these recommendations to fit the
functions of their own databases. Yet, my review also suggests that best practices are
emerging. For example, when the CFPB began designing its consumer complaint
database, staff consulted with other agencies to try to identify best practices and potential
complications. 896 It is in this spirit that I make the following observations and
recommendations.

887

Part III.A.3, supra.
Id.
889
CMS, Hospital Compare, Physician Compare, and Nursing Home Compare, Appendix E, infra.
890
CFTC, Discipline History, Appendix E, infra.
891
CPSC, SaferProducts.gov, Appendix E, infra.
892
DOT, Airlines and Airports Data and Statistics, Appendix E, infra.
893
EPA, Enforcement and Compliance History Online, and Toxic Release Inventory Program,
Appendix E, infra.
894
Consolidated Screening List, and System for Award Management (SAM), Appendix E, infra.
895
See Parts IV.A, IV.B, IV.C, supra.
896
Interview with Darian Dorsey, supra note 585.
888

93

The need for accuracy. It is paramount that agency databases include accurate
information. Government agencies are perhaps the most trusted source of information,897
and agency databases tend to carry the imprimatur of the government. Thus, a court
recently sustained a challenge against a “materially inaccurate” report on the CPSC’s
database, SaferProducts.gov, noting that the report “bears the Government’s stamp of
approval through its publication on an official website that, by its terms, is a repository of
reports regarding ‘unsafe products.’” 898 Agencies also play an important informationforcing role in various markets. 899 In fact, some believe that agencies can use information
disclosure to replace traditional command-and-control regulation, citing the EPA’s Toxic
Release Inventory database as a classic example. 900 The Obama Administration endorses
these ideas, 901 as does the occasional statute. 902
Problems with database disclosures. Objections to agency databases echo many of the
longstanding objections to agency publicity. Subjects argue, for example, that complaints
posted in online databases are unverified, and thus might lack factual support or a legal
basis. They argue that data are presented without context because they are not
randomized or normalized. Subjects also note that data can be manipulated during the
intake process, with parties posting false or fraudulent reports or complaints. Subjects
describe reputational harms akin to those suffered by the subjects of adverse publicity,
including competitive harms, the risk of viral publicity, and providing fodder for
plaintiffs’ lawyers. 903 Subjects also object that databases give the appearance of being
endorsed by the government. Even courts recognize that inclusion in an agency database
may signal the government’s official condemnation. 904 As databases become a more
popular tool for agencies, it is important that subjects believe they are being treated fairly.
Ensuring accuracy. No database is error-free. 905 As such, agencies should try to ensure
the accuracy of any information that is presented as factual. If the information is not
presented as accurate and objectivesuch as databases of third party
complaintsagencies should clearly explain the nature and any limitations of the
information (see Providing disclaimers, limitations, and context below). Indeed,
databases containing data only from regulated parties, without review or challenge by an
agency or by regulatory beneficiaries, might also require explanation of the potentially
one-sided nature of the information being presented.
Pre-publication procedures. An emerging best practice is to provide the subjects of
negative database entries with pre-publication procedures to comment on, challenge, or
897

Interview with Sean Moulton & Scott Klinger, supra note 16.
Company Doe v. Tenenbaum, supra note 133, at 597 (finding that publishing the report online was
both “final agency action” and “arbitrary and capricious”).
899
Interview with Sean Moulton & Scott Klinger, supra note 16.
900
Id.
901
Memorandum on Transparency and Open Government, supra note 8
902
See, e.g., Consumer Product Safety Improvement Act of 2008, supra note 141 (requiring the CPSC
to create on its web site a searchable product safety database).
903
CFPB, Part IV.C, supra.
904
Ayuda v. FTC, supra note 427, at *11; Company Doe, supra note 133, at 597.
905
Interview with Sean Moulton, supra note 16.
898

94

correct the information before it is posted. The CPSC, for example, is required by statute
to allow companies to comment on reports to SaferProducts.gov, and to request that their
comments be included in the published report. 906 The statute also requires the CPSC to
consider objections that any information is “materially inaccurate,” though it allows the
Commission to determine what meets that standard. 907 The CPSC posts clear procedures
in the Code of Federal Regulations. 908 Similarly, the CFPB authenticates consumer
complaints and provides clear procedures for companies to verify a commercial
relationship with the consumer and post the company’s response. 909 The CFPB also has
adopted clear publication criteria that each complaint must meet before it is published. 910
Post-publication procedures. If pre-publication procedures do not ensure the accuracy
of database entries, then agencies should provide post-publication procedures to subjects.
Similar to the Information/Data Quality Act, subjects should be able to challenge
materially inaccurate entries and request corrections and/or retractions. Ideally, agencies
would provide procedures for expediting requests, as the FDA contemplated long ago.
Agencies should consider the feasibility of flagging for readers what data is being
challenged. The EPA, for example, marks disputed data on its web site with yellow flag
icons. 911
Providing disclaimers, limitations, and context. For databases that do not purport to
contain only objective, verified facts, agencies should take care to provide necessary
disclaimers and context for the data, including any limitations of the dataset. Doctors, for
example, have long lamented “surgical report cards” used by state and federal regulators,
which publish death and complication rates for surgeons, but fail to normalize for riskier
patient populations. This can create perverse incentives for surgeons to avoid high-risk
populations who might need surgery the most. 912
Several agency databases do disclaim their accuracy. The FDA’s adverse event database
for medical devices includes a disclaimer that its “surveillance system has limitations,
including the potential submission of incomplete, inaccurate, untimely, unverified, or
biased data.” 913 Similarly, the FDA’s adverse event database for drugs explains in detail
the limitations of the data, emphasizing that “there is no certainty that the reported event
… was actually due to the product.” 914 The CFPB complaint database site includes the
disclaimer: “We don’t verify all the facts alleged in these complaints but we take steps to
confirm a commercial relationship between the consumer and company.” 915 Even the
906

15 U.S.C. § 2055(c)(2).
15 U.S.C. § 2055(c)(4).
908
16 C.F.R. § 1102.26.
909
Part IV.C, supra; CFPB, Company Portal Manual, supra note 588.
910
Part IV.C, supra.
911
O’Reilly, Libels on Government Websites, supra note 93, at 534; Cortez, supra note 7, at 1419.
912
See, e.g., Sandeep Jauhar, Giving Doctors Grades, N.Y. TIMES (Jul. 22, 2015),
http://www.nytimes.com/2015/07/22/opinion/giving-doctors-grades.html.
913
FDA, MAUDE, supra note 370.
914
FDA, FAERS, supra note 369.
915
CFPB, Consumer Complaint Database, http://www.consumerfinance.gov/complaintdatabase/ (last
visited Nov. 4, 2014).
907

95

aggregated and anonymized data that the FTC publishes about the consumer complaints
contained in its nonpublic Consumer Sentinel database includes disclaimers that the
aggregated data is based on “unverified complaints.” 916 Sometimes, Congress requires
the disclaimer. The statute requiring the CPSC to create SaferProducts.gov requires the
Commission to “provide clear and conspicuous notice to users of the database that the
Commission does not guarantee the accuracy, completeness, or adequacy of the contents
of the database.” 917 Thus, SaferProducts.gov includes a disclaimer that tracks the statute
almost verbatim. 918 Note, however, that a court called this language “boilerplate” that
“would not interest an ordinary consumer.” 919 Thus, the old concern that corrective
publicity cannot undo erroneous agency publicity probably applies to agency databases as
well.
Clarifying the source(s) of data. Agency databases are populated with data from different
sources, which may require different quality controls to ensure accuracy. The CFPB’s
database, for example, presents information provided directly by consumers and
companies rather than by the Bureau. 920 However, because government agencies are a
trusted source of information, it is essential that agencies clearly distinguish for readers
databases that publish objective, government-endorsed data from databases that publish
consumer complaints, industry accounts, or other subjective or unverified information.921
Moreover, there may be a reduced risk of publishing inaccurate data if the data comes
directly from the subject, as in the case of the EPA’s Toxic Release Inventory database.
Databases populated with information from third parties, such as customers, might
require additional steps to verify the information. For example, the CFPB gives
companies identified in complaints a chance to verify a commercial relationship with the
customer and post a response. 922 Other databases are populated by data generated by the
agency itself, such as the numerous enforcement databases listed in Appendix E. These
databases will include information that is disputed, which makes pre-publication
verification and post-publication appeals particularly important. Finally, some databases,
like Medicare’s provider quality ratings, cull data from a number of objective and
subjective sources, and require more careful explanation.
High-volume databases. Large datasets may be attractive to agencies, but they also create
challenges. When the CFPB created its consumer complaint handling system, it surveyed
other agencies to identify best practices, but found that other systems were smaller in
scale and based on different regulatory models. 923 For example, the Bureau initially
916

FTC, DATA BOOK, supra note 503.
15 U.S.C. § 2055(b)(5).
918
SaferProducts.gov, http://www.saferproducts.gov (last visited July 29, 2015) (“CPSC does not
guarantee the accuracy, completeness, or adequacy of the contents of the Publicly Available Consumer
Product Safety Information Database on SaferProducts.gov, particularly with respect to information
submitted by people outside of CPSC.”).
919
Company Doe v. Tenenbaum, supra note 133, at 598.
920
Interview with Darian Dorsey, supra note 585. Bureau staff emphasized any Bureau information
added to the case management system is used only internally and not presented to the public. Id.
921
Interview with Sean Moulton & Scott Klinger, supra note 16.
922
Part IV.C, supra.
923
Interview with Darian Dorsey, supra note 585.
917

96

looked to the Office of the Comptroller of the Currency’s (OCC’s) consumer complaint
handling system to understand its approach to handling high volumes (around 90,000
complaints at that time). 924 But the Bureau now processes over 25,000 complaints per
month. 925 Agencies with high-volume systems like the CFPB and FTC emphasize that
other agencies considering their own databases should use quality controls to ensure the
accuracy of the intake process, particularly by outside contractors. 926
Design. Creating databases from scratch, rather than from existing complaint or case
management systems, seems to be an advantage for agencies. The CFPB was probably
able to be more thoughtful and open about the data it collects because it designed the
database from scratch and considered these issues prior to gathering data. 927 The CFPB’s
Consumer Complaint Database, for example, essentially is a small “public window” into
the Bureau’s case management system. 928 But Bureau staff were able to consider
carefully how and what information they would collect as they designed the database and
company response system. 929
Timing. Databases that populate automatically probably require more pre-publication
quality assurance than databases populated manually. For example, fields in the CFPB’s
database populate in real time and get published nightly, 930 but the Bureau has a
relatively robust process for verifying commercial relationships and allowing companies
to respond before a complaint is published.931 Having clear publication criteria probably
reduces the number of complaints by subjects.
Privacy. A major consideration for agencies that publish consumer reports is maintaining
consumer privacy. The Privacy Act governs how agencies collect, maintain, use, and
disseminate personal information. 932 CFPB officials report that the Bureau struggled with
privacy questions as it developed the Consumer Complaint Database. The CFPB now
uses a three-step process to scrub personal information from consumer complaint
narratives: (i) a computer program identifies and scrubs personal information; (ii) a
trained human reviewer reads narratives to scrub additional personal information that
may have been missed; and (iii) a quality assurance specialist performs a second human
review, sending narratives back for reprocessing if they still contain personal
information. 933 Importantly, the CFPB’s scrubbing process removes not just obvious
personal information, but also related information that might be used to identify the
consumer, such as medical conditions, employment information, and proper place
924

Id. The public arm of the OCC’s consumer complaint case management system is
http://www.helpwithmybank.gov/ (last visited June 30, 2015).
925
Id.
926
See, e.g., Interview with officials from the FTC Office of General Counsel, supra note 16.
927
Interview with Darian Dorsey, supra note 585.
928
Id.
929
Id.
930
CFPB, Consumer Response Annual Report: January 1 – December 31, 2013 (March 2014) at 8;
Interview with Darian Dorsey, supra note 585.
931
Part IV.C, supra.
932
Privacy Act of 1974, Pub. L. No. 93-579, codified at 5 U.S.C. § 552a.
933
CFPB, Office of Consumer Response, Narrative Scrubbing Standard, supra note 596, at 3.

97

names. 934 The CFPB said that it “relied heavily on guidance by the Department of Health
and Human Services regarding de-identification of health data” used for the HIPAA
Privacy Rule. 935 The CFPB, like other agencies, maintains a Chief Privacy Officer. 936
The FTC has no plans to make its Sentinel database public (as its purpose is to serve as
an enforcement tool for the FTC and other agencies), but FTC officials explained that
doing so would require relatively sophisticated software and substantial human resources
to scrub each complaint of individually identifiable information. 937 Both would require a
major investment of manpower and budget. 938 In response to FOIA requests for
particularized information in Sentinel, the FTC’s main concern is to redact individuals’
personal information. 939
Cybersecurity. A related suggestion is that agencies also consider cybersecurity measures.
The CFPB considered security measures as it developed its database. 940 The Federal
Information Security Management Act of 2002 (FISMA) requires agencies to develop
agency-wide information security programs. 941 The Federal Reserve OIG audits the
CFPB’s information security practices annually. 942
Information/Data Quality Act. Agencies should consider whether the Information/Data
Quality Act should be applied to each database they maintain. As noted above, the Act
seems better designed for agency databases than press releases. 943 Although the Act
states that it should apply to agency “dissemination of public information” regardless of
the form or format, 944 the OMB excludes “opinions” when the agency’s presentation
makes clear that the information is someone’s opinion rather than fact or the agency’s
own views. 945 Thus, the CFPB’s consumer complaint database and portions of the reports
on the CPSC’s SaferProducts.gov database might not fall under the IQA guidelinesso
long as the agencies clearly present the information as opinions by third parties. The
OMB also exempts “adjudicative processes,” 946 which might exclude many of the
enforcement databases in Appendix E.
Notwithstanding the legal scope of the Act (or OMB guidelines), it might be appropriate
in many instances to apply the Act to online databases. The Act helps ensure that the
934

Id.
80 Fed. Reg. at 15,583.
936
See 12 C.F.R. §§ 1070.50, 1070.51.
937
Interview with officials from the FTC Office of General Counsel, supra note 16.
938
Id.
939
Id.
940
Interview with Darian Dorsey, supra note 585.
941
Pub. L. No. 107-347, 116 Stat. 2899, 2946. (the short title is the E-Government Act of 2002).
942
See, e.g., Board of Governors of the Federal Reserve System, Office of Inspector General, 2014
Audit of the CFPB’s Information Security Program (Nov. 14, 2014),
http://oig.federalreserve.gov/reports/cfpb-information-security-program-nov2014.pdf (last visited July 2,
2015).
943
Part III.E, supra.
944
44 U.S.C. § 3504(d)(1).
945
67 Fed. Reg. at 377.
946
67 Fed. Reg. at 8460.
935

98

information is subject to minimum standards for accuracy and objectivity, and would
require procedures for parties to request corrections. Consumer groups were concerned
that the Act would be used to suppress, delay, or dilute information published by agencies
and thus should not apply to databases. 947 These groups strongly suspected that industry
would misuse the IQA to protect company interests. 948 Agencies should consider the
benefits and burdens of applying the Act to each database they maintain. Again, given the
volume and variety of agency databases, it is difficult to produce a blanket
recommendation on this issue.
9. OMB Clarifications to the Scope of the Information Quality Act
Recommendation. The OMB should clarify that the Information/Data Quality Act applies
to new substantive information in press releases that is not covered by previous
information dissemination subject to the Act. The OMB should also consider updating its
guidelines to account for the different types of databases published by agencies.
Benefits of applying the IQA. As discussed above, the IQA is well-suited to address some
of the longstanding problems with agency publicity. The IQA requires agencies to ensure
the quality, objectivity, utility, and integrity of certain information they disseminate.949
These requirements, if applied to agency publicity, would go a long way toward
addressing many of the longstanding problems with it. The IQA also requires agencies to
allow affected persons to request that agencies correct information that fails to meet the
substantive standards. 950 This requirement, if applied to agency publicity that contains
new substantive information, would also mitigate due process and other procedural
concerns with agency publicity practices. Applying the IQA to agency publicity would
seem to be palatable to agencies, as the IQA does not create judicially-enforceable rights
for private parties. 951
Unclear scope of the IQA. However, as explained in detail above, it is not clear whether
the IQA applies to press releases or to agency disclosures that constitute opinions. 952
Again, the IQA by its terms applies very broadly to “agency dissemination of public
information, regardless of the form or format in which such information is
disseminated.” 953 Although the IQA does not exempt press releases, the OMB’s final
guidelines inserted such an exemption without elaboration. 954 Compounding the
confusion, several agencies have drafted their own IQA guidelines to narrow the OMB’s
exemption for “press releases” to only those that are based on a precursor document that
is itself subject to the IQA. Appendix G surveys 42 different agency IQA guidelines, 955
947

Interview with Sean Moulton & Scott Klinger, supra note 16.
Id.
949
44 U.S.C. § 3516(b)(2)(A).
950
44 U.S.C. § 3516(b)(2)(B).
951
See Part III.E, n.216, supra (citing cases).
952
Part III.E, supra.
953
44 U.S.C. § 3504(d)(1).
954
67 Fed. Reg. at 8460.
955
Both the OMB and the Center for Regulatory Effectiveness maintain extensive lists of agency data
quality guidelines. See OMB, Agency Information Quality Guidelines, supra note 200; Center for
948

99

finding that most agencies narrow the OMB’s exemption for press releases in this way:

Guidelines that narrow the OMB’s exemption for press releases:
Guidelines that adopt the OMB’s broad exemption for press releases:
Guidelines that are unclear or do not address press releases directly:
Guidelines that conflict on whether broad or narrow exemption applies:
TOTAL

23
11
5
3
42

OIRA seems to have supported narrowing the press release exemption, noting in a
memorandum that doing so “avoids creating an incentive to misuse press releases to
circumvent information quality standards.” 956 Yet, OIRA has not stopped other agencies
from applying the press release exemption broadly, rather than narrowly. 957 As such, the
OMB should update its government-wide guidelines to make clear that the IQA applies to
new substantive information in press releases and other agency publicity that does not
derive from a precursor document subject to the IQA.
Applying the IQA to agency databases. As explained in the previous section, 958 the great
variety of agency databases deters any blanket recommendations. However, I encourage
agencies to evaluate whether their data quality guidelines should apply to online
databases that include negative information about identified products or parties. Again,
OMB exemptions for “opinions” and “adjudicative processes” might exclude several
important databases from the scope of data quality protections. Nevertheless, agencies
should consider using pre- and post-publication procedures to ensure the accuracy of data
posted online, and should consider using appropriate disclaimers to ensure that users
understand the context and any limitations of the data.
10. Review by an Ombudsman, Inspector General, or the GAO
Recommendation. Agencies that are not subject to the Information Quality Act, and do not
otherwise have post-publication procedures for requesting corrections to information should
direct objections to the agency’s announcement to the Ombudsman or Inspector General, as
appropriate.

Ombudsman review. In many agencies, the Office of Ombudsman would be well-suited
to hear complaints regarding inaccurate or unfair agency publicity. The CFPB’s
Ombudsman, for example, has heard complaints about the Consumer Complaint
Database. 959 The FDA maintains several product-specific ombudsmen, as well as a
centralized Office of the Ombudsman, 960 which has handled complaints under the
Regulatory Effectiveness, Data Quality Guidelines by Agency, http://www.thecre.com/quality/agencydatabase.html (last visited July 30, 2015).
956
Part III.E, supra; Memorandum for President’s Management Council from John D. Graham, supra
note 204.
957
Part III.E, supra (citing the NIH guidelines and the Salt Institute case).
958
Part V.A.8, supra.
959
CFPB, Ombudsman’s Office, Annual Report to the Director, supra note 722.
960
FDA, Product Center Ombudsmen, supra note 416.

100

Information/Data Quality Act, 961 and supports review by an Ombudsman. However,
some agencies, like the FTC, do not have an ombudsman. 962 Such agencies would need
to identify an Inspector General or equivalent to handle such reviews.
Inspector General review. An alternative to using an ombudsman is to use an Inspector
General to field objections to agency publicity practices. Inspectors General provide
another avenue for industry members to voice their preferences. 963 For example, the
SEC’s Office of Inspector General published a thorough review of Commission practices
when asked to investigate whether the SEC had violated its own policies in publicizing a
complaint against Goldman Sachs. 964 The report provides the most detailed review of an
agency’s internal deliberations over publicity since Gellhorn’s 1973 report. 965 FTC
officials said they would support Inspector General review of the Commission’s publicity
practices if there is any doubt about the propriety of agency practices, citing the Inspector
General’s capacity for independent analysis and its past evaluation of other FTC practices
as an analog. 966 Another indication that Inspector General review might be suitable for
agency publicity is the ongoing review of the CFPB’s consumer complaint database by
the Federal Reserve’s Office of Inspector General. 967 The office is auditing the CFPB
database “to assess the effectiveness of the CFPB's controls over the accuracy and
completeness of the public complaint database.” 968
Review by the Government Accountability Office (GAO). GAO review of agency
publicity practices or incidents may be another way to counterbalance agency discretion.
An attorney in private practice explained that although GAO review does not always
change agency behavior, agencies generally take such reviews seriously. 969 GAO
reviews, in her view, can range from being a “nuisance” to “serious,” and can bring
unwanted scrutiny to an agency. 970 Another benefit of GAO review is that private parties
harmed by agency publicity might be more willing to complain to the GAO than to the
agency itself. 971 Firms with repeated, ongoing business with agencies may be reluctant to
challenge agency practices. 972 Nevertheless, as an arm of Congress, the GAO may not be
an appropriate entity to review complaints from parties affected by executive branch
961

FDA, FDA’s Office of the Ombudsman: Dispute Resolution and Problem Solving, supra note 418,

at 2.
962

Interview with officials from the FTC Office of General Counsel, supra note 16.
For example, the American Bankers Association encouraged the Federal Reserve OIG’s audit of the
CFPB’s database, arguing that the Bureau has become “an official purveyor of unsubstantiated, and
potentially false, information.” Letter from Wayne A. Abernathy of the American Bankers Association to
Hon. Mark Bialek, Inspector General, Board of Governors of the Federal Reserve System (Jan. 12, 2015),
http://www.cfpbmonitor.com/files/2015/01/LTC-ConsCompDatabase2015Jan.pdf (last visited July 2,
2015).
964
SEC Office of Inspector Gen., supra note 33.
965
Cortez, supra note 7, at 1424 (noting that the SEC OIG reviewed over 3.4 million emails from 64
separate SEC employees and took sworn testimony from 32 witnesses to produce its report).
966
Interview with officials from the FTC Office of General Counsel, supra note 16.
967
Federal Reserve, OIG, Work Plan, supra note 728.
968
Id.
969
Interview with Megan Brown, Partner, Wiley Rein LLP (Apr. 7, 2015).
970
Id.
971
Id.
972
Id.
963

101

agency action. Congress can request or order the GAO to examine agency policies,
practices, and procedures, but may not be an appropriate arbiter of complaints by
regulated parties with executive branch agencies.
B. Statutory Reforms
Recommendation. Congress should consider amending the Administrative Procedure Act
or the Information Quality Act to require agencies to publish written procedures
governing their use of publicity, including procedures tailored to social media, online
databases, and other new forms of agency disclosure.
Authorizing publicity? Parties aggrieved by agency publicity sometimes argue that the
agency acted ultra vires or otherwise lacked statutory authority to make the
announcement. Courts almost uniformly reject such arguments, given broadly-worded
statutes and the basic need for agencies to communicate with the public. 973 In 1973,
Gellhorn recommended that Congress specify which agencies could issue adverse
publicity, under which circumstances, and via which procedures. 974 Although
Recommendation 73-1 asked agencies to ensure that adverse publicity “fulfills an
authorized purpose,” 975 it stopped short of adopting Gellhorn’s full recommendation. My
prior research concluded that the full recommendation might be too ambitious today, as it
would require Congress to legislate agency-by-agency, with a fair bit of specificity. 976
Administrative Procedure Act. A relatively straightforward alternative would be to amend
the APA to make clear that agencies do have discretion to issue publicity or otherwise to
communicate with the public (perhaps a superfluous point), but require agencies to adopt
written policies. Given how few agencies formally implemented Recommendation 731, 977 an amendment to the APA would ensure more optimal compliance. The amendment
could be very short, and would need to reserve discretion for agencies to tailor
procedures to fit their regulatory responsibilities. However, because agency authority to
issue publicity does not seem to be a seriously contested issueand perhaps one not
appropriately addressed by the APAthe major contribution would be to codify the call
for agencies to publish written procedures. FTC officials note that a detailed
recommendation about agency procedures, as this might be, would not be appropriate to
address via the APA, which contains broader mandates. It is also worth noting that in
1970, the American Bar Association (ABA) adopted a resolution that “prejudicial agency
publicity” may be grounds for setting aside an agency action, and recommended
amending the APA to provide a cause of action for any person aggrieved by prejudicial
agency publicity in relation to an agency investigation or proceeding. 978 ACUS published
a statement in 1973 explaining that it “does not favor at this time amending the
973

See Appendix C: Table of Federal Cases (1974-2014).
Gellhorn, supra note 4, at 1435-39.
975
38 Fed. Reg. at 16,839.
976
Cortez, supra note 7, at 1440-41.
977
Part II.E, supra.
978
The 12 ABA Recommendations for Improved Procedures for Federal Agencies, 24 ADMIN L. REV.
389, 410-411 (1970) (reprinting the ABA resolution and recommendation, calling for a new section 560 of
Title 5 of the U.S. Code).
974

102

Administrative Procedure Act to treat agency issuance of prejudicial publicity,” as it
believed there was an “adequate legal remedy for agency publicity which affects the
integrity of an on-the-record agency proceeding.” 979
Federal Tort Claims Act. Gellhorn also recommended that Congress amend the Federal
Tort Claims Act (FTCA) 980 to compensate parties injured by agency publicity. 981 Injured
parties should be compensated, he thought, when the publicity was (i) directed at the
party, (ii) “materially erroneous, substantially misleading, or clearly excessive,” and (iii)
“not remedied by the final administrative action.” 982 The academic literatureboth
before 1973 and sinceconcludes that neither federal statutes nor judicial review
provides remedies for parties injured by agency publicity. 983 As with the APA, courts
routinely dismiss claims under the FTCA, which specifically excludes libel, slander, and
other government statements that would qualify as intentional torts, and broadly excludes
“discretionary functions.” 984 Appendix C documents these cases. As explained in the next
section, I do not endorse this recommendation, as judicial review of agency publicity
poses several problemslegal and practical.
Information Quality Act. A final target for congressional reform might be the IQA. 985
Amending the Act would allow Congress to resolve several ambiguities with the Act,
particularly whether it should apply to agency publicity, including newer forms like
social media and online databases. It would also require consideration of the appropriate
procedures for requesting corrections, retractions, or disclaimers. Finally, amendments to
the IQA would also allow stakeholdersCongress, agencies, the subjects of publicity,
and regulatory beneficiaries 986to carefully consider how to balance public and private
interests. The IQA was passed with little attention, as a rider to an appropriations bill,987
and might benefit from being more fully ventilated. An alternative, short of amendment,
would be for the OMB to address these issues via guidance, after soliciting public
comment.

979

ACUS, Statement # 2, Statement of the Administrative Conference on the ABA Proposal to Amend
the Administrative Procedure Act at 5 (adopted June 7-8, 1973) (on file with author).
980
28 U.S.C. §§ 1291, 1346, 1402, 1504, 2110, 2401–02, 2411–12, 2671–80.
981
Gellhorn, supra note 7, at 1437-39.
982
Id.; Cortez, supra note 7, at 1391.
983
See, e.g., Noah, supra note 37, at 889-91; James T. O’Reilly, The 411 on 515: How OIRA’s
Expanded Information Roles in 2002 Will Impact Rulemaking and Agency Publicity Actions, 54 ADMIN. L.
REV. 835, 838 (2002); O’Reilly, Libels on Government Web Sites, supra note 93, at 511-12.
984
Appendix C: Table of Federal Cases (1974-2014); Cortez, supra note 7, at 1448.
985
44 U.S.C. §§ 3504(d)(1), 3516.
986
“Regulatory beneficiaries” are those who benefit from the regulation of others. See Nina A.
Mendelson, Regulatory Beneficiaries and Informal Agency Policymaking, 92 CORNELL L. REV. 397, 40102 (2007).
987
Treasury and General Government Appropriations Act for Fiscal Year 2001 § 515, Pub. L. No. 106554, 114 Stat. 2763, 2763A-153-154 (2001). Although private parties have been able to comment on many
of the dozens of IQA guidelines published by agencies, see Center for Regulatory Effectiveness, supra note
955, more centralized debate might be useful, given the IQA’s relevance to many modern agency
communications.

103

C. Judicial Review Reforms
Recommendation. I do not recommend judicial review of agency publicity outside the
“compelling” circumstances envisioned (but yet to be encountered) by courts.
Survey of cases since 1973. The academic literature uniformly concludes that judicial
review is not available for parties injured by agency publicity. 988 My 2011 article
reviewed 26 federal court opinions since 1973 involving agency publicity. Appendix C
updates this research, showing a total of 33 federal court opinions since 1973,
representing 30 unique judicial challenges to agency publicity. Twenty of these
challenged agency press releases. Eight challenged agency press conferences or other
statements (or leaks) to the media. The other suits involved agency publications, such as
public warning letter, a guide, and even agency dissemination of a scientific journal
article written by agency scientists. Two cases involved either the threat or possibility of
publicity. 989 Finally, the chart includes one “reverse FOIA” case, in which plaintiffs
challenged a federal statute that prohibits the FEC from making public its investigations
into suspected campaign finance violations. 990 (Note that some of these cases involve
multiple types of announcements.)
Only three of the 33 opinions are favorable to the challenger. Two of these cases deny
very early agency motions to dismiss, and thus may be of limited importance. In DenMat Corp. v. United States, a district court refused to grant the FDA’s motion to dismiss,
allowing Den-Mat a chance to establish its claims that a Warning Letter and
accompanying publicity could qualify as final agency action. 991 In Kaiser Aluminum &
Chemical Corp. v. CPSC, another district court denied the CPSC’s motion to dismiss,
finding that CPSC press releases and fact sheets were final agency action. 992 The third
case, Reliance Electric Co. v. CPSC, was a “reverse FOIA” case in which a company
challenged the CPSC’s releasing roughly 500 pages of investigative documents in
response to a FOIA request. 993 The D.C. Circuit remanded to require the CPSC to
respond to the company’s objections that some of the documents were inaccurate. There
is no record that any of these challengers obtained equitable or monetary relief in these
cases.
Thus, notwithstanding a few minor victories, the case law since 1973 confirms the
988
See, e.g., Cortez, supra note 7, at 1441-53; Noah, supra note 37, at 889-91; O’Reilly, The 411 on
515, supra note 37, at 838; O’Reilly, Libels on Government Web Sites, supra note 93, at 511-12.
989
First Jersey Securities, Inc. v. SEC, 553 F. Supp. 205 (D.N.J. 1982); Premo Pharmaceutical
Laboratories, Inc. v. U.S., 1980 WL 588226 (S.D.N.Y. 1980).
990
Common Cause v. FEC, 83 F.R.D. 410 (D.D.C. 1979).
991
Den-Mat Corp. v. U.S., 1992 WL 208962 (D. Md. 1992). See Appendix C for a full description of
the facts and holding. The holding in this case is an outlier not only with regard to the reviewability of
agency publicity, but also as to the reviewability of FDA Warning Letters. See, e.g., Holistic Candlers and
Consumer’s Ass’n v. FDA, 664 F.3d 940 (D.C. Cir. 2012) (finding an FDA Warning Letter to not
constitute final agency action under the APA).
992
Kaiser Aluminum and Chemical Corp. v. U.S. Consumer Prod. Safety Comm., 414 F. Supp. 1047
(D. Del. 1976). See Appendix C for a full description of the facts and holding.
993
Reliance Electric Company v. Consumer Prod. Safety Comm., 924 F.2d 274 (D.C. Cir. 1991). See
Appendix C for a full description of the facts and holding.

104

original observation by ACUS that agency publicity “is almost never subject to effective
judicial review.” 994 There are several reasons why this is so. Challengers (and courts)
struggle to locate appropriate causes of action. Moreover, agency publicity raises
complicated questions about exhaustion of administrative remedies, ripeness doctrine,
sovereign immunity, the record to be reviewed, and the lack of suitable remedies.
What cause of action? Aggrieved parties have struggled to find an appropriate cause of
action for challenging agency publicity. Most parties sue under the APA. 995 APA § 704
offers a generic cause of action to parties aggrieved by agency action. 996 And APA § 706
directs courts to “hold unlawful and set aside agency action” that is “in excess of
statutory jurisdiction, authority, or limitations, or short of statutory right.” 997 However,
most challenges under the APA fail for one of the following two reasons.
Publicity is not “agency action.” Although there is a “strong presumption that
Congress intends judicial review of administrative action,” 998 courts routinely decline to
review agency publicity on the grounds that it is not “agency action,” or is not “final,” or
both, under the APA. 999 The D.C. Circuit has hinted that agency publicity might be
reviewable if the agency intended it as a sanction, or if it was false, but the court has yet
to encounter such a case. 1000 The APA defines “agency action” to include “the whole or
part of an agency rule, order, license, sanction, relief, or the equivalent or denial
thereof.” 1001 As Appendix C shows, courts sometimes evaluate whether agency publicity
qualifies as a “sanction.” The APA defines “sanction” as “an agency … prohibition,
requirement, limitation, or other condition affecting the freedom of a person[, or] …
taking other compulsory or restrictive action.” 1002 The legislative history to the APA
shows that publicity used as a sanction was a “troublesome subject” to Congress,
particularly when the agency lacked statutory authority for this purpose. 1003 Moreover,
the D.C. Circuit has steadily retreated from its assertion almost 70 years ago that agency
publicity is never reviewable under the APA. 1004 But only one courta Delaware District
Courthas found agency publicity to constitute “final agency action.” 1005 Again, the D.C.
Circuit and other courts have yet to encounter a suitable case for review. The D.C. Circuit
has noted that “adverse impact alone would not necessarily make agency publicity
reviewable as a sanction,” explaining that the aggrieved party would have to show
evidence that the agency intended to penalize the company or that the publicity was

994

Recommendation 73-1, supra note 2.
Appendix C, infra.
996
Md. Dep’t of Human Res. v. Dep’t of Health and Human Servs., 763 F.2d 1441, 1445 n.1 (D.C.
Circ. 1985).
997
APA § 706(2)(C), 5 U.S.C. § 706(2)(C).
998
Bowen v. Mich. Acad. of Family Physicians, 476 U.S. 667, 670 (1986).
999
5 U.S.C. §§ 551(13), 704.
1000
Cortez, supra note 20, at 1442.
1001
5 U.S.C. § 551(13) (emphasis added).
1002
5 U.S.C. § 551(10)(a), (g).
1003
Indus. Safety Equip. Ass’n v. EPA, 837 F.2d 1115, 1119 (D.C. Cir. 1988) (quoting H.R. REP. NO.
79-1980, at 40 (1946) (House of Representatives Report on APA)); Cortez, supra note 7, at 1442.
1004
Hearst Radio v. FCC, 167 F.2d 225 (D.C. Cir. 1948).
1005
Kaiser Aluminum, 414 F. Supp. 1047.
995

105

false. 1006 This might require a showing that the publicity “caused destruction of property
or revocation of a license.” 1007 The most notable recent decision on this issue is Trudeau
v. FTC, discussed above, 1008 in which an infomercial producer challenged a press release
by the FTC describing their settlement. 1009 The D.C. Circuit held that Trudeau did not
have a valid cause of action under the APA, observing that the circuit had “never found a
press release of the kind at issue here to constitute ‘final agency action’ under the
APA.” 1010 The D.C. Circuit did not categorically bar such an action, but found that the
FTC’s press release was neither false nor misleading, concluding that “no reasonable
person could misinterpret the press release in the ways that Trudeau suggests.” 1011
Publicity is not “final.” If a separate statute does not specifically grant judicial review,
the APA allows courts to review only “final” agency actions rather than tentative,
intermediate, or interlocutory decisions. 1012 Courts have interpreted “finality” to mean
that the agency’s decision is the consummation of its decision-making process and
determines a party’s legal rights or obligations, or otherwise has some legal consequence
for the party. 1013 However, agency publicity is rarely intended to represent a final or
binding determination by the agency. 1014 Again, although the D.C. Circuit has hinted that
adverse publicity that is intended to sanction, or is demonstrably false, could be “final,” it
has never encountered such a case. 1015 The district court in Trudeau noted that courts
must review agency announcements “with care,” and that they reside “at the outermost
boundaries of the definitions of both ‘final’ and ‘agency action.’” 1016
Other potential causes of action. Aside from the APA, parties have challenged
agency publicity under the Privacy Act, the Information/Data Quality Act, the Federal
Tort Claims Act (FTCA), and the due process clause of the Constitution. Each of these
vehicles lacks in some way. For example, the FTCA specifically excludes libel, slander,
and other statements by the government that would qualify as intentional torts. 1017 Courts
have interpreted these exclusions as covering press releases. 1018 The FTCA also includes
a sprawling exception for discretionary functions, which courts have interpreted as

1006

Indus. Safety Equip., 837 F.2d at 1119.
Id. (internal quotations and citation omitted).
1008
Part III.B, supra.
1009
Trudeau v. FTC, 456 F.3d 178 (D.C. Cir. 2006).
1010
Id. at 189.
1011
Id. at 192, 197.
1012
APA § 704; 5 U.S.C. § 704.
1013
Whitman v. Am. Trucking Ass’n, 531 U.S. 457, 478 (2001); Bennett v. Spear, 520 U.S. 154, 17778 (1997); Abbott Labs. v. Gardner, 387 U.S. 136, 148 (1967); Ciba-Geigy Corp. v. EPA, 801 F.2d 430,
435-36 (D.C. Cir. 1986).
1014
O’Reilly, Libels on Government Websites, supra note 93, at 512.
1015
Id. at 1444 (citing cases, including one possible exception, a 1976 case in Delaware District Court,
Kaiser Aluminum & Chem. Corp. v. CPSC, 414 F. Supp. 1047, 1053-54 (D. Del. 1976)).
1016
Trudeau, 384 F. Supp. 2d at 290.
1017
28 U.S.C. §§ 2671-2680.
1018
See, e.g., Fisher Bros. Sales v. United States, 46 F.3d 279, 288 (3d Cir. 1995); Banfi, 41 Fed Cl. at
583-84; Lance Indus., Inc. v. United States, 3 Cl. Ct. 762, 777-78 (1983).
1007

106

covering not only the initial decision to issue a press release, but also the underlying data
upon which the press release relies. 1019
Only four of the 30 distinct cases in Appendix C involve due process arguments, and
courts give these claims only superficial treatment. 1020 Plaintiffs have also asserted
violations of the First Amendment and the Bill of Attainder Clause, but these claims are
no more successful. 1021
As a last resort, several parties have sought relief via private bills in Congress. Private
bills entail a house of Congress’s adopting a bill asking the Court of Federal Claims to
determine whether the U.S. government should compensate a party for injuries caused by
an agency. 1022 If the Court of Federal Claims agrees, Congress must adopt a private law
approving the compensation, and it must be signed by the President. 1023 However, as
Appendix C shows, the Court of Federal Claims routinely denies compensation for
agency publicity, largely because agency publicity is not compensable under the
FTCA. 1024 As long as the agency has a rational basis for issuing the publicity and did not
make an error, courts are reluctant to grant compensation. 1025
Other barriers to review. Other legal and practical barriers weigh against judicial review
of agency publicity, at least outside of the “compelling” cases envisioned by some courts.
Exhaustion. Many claims against agencies are frustrated because the challenger failed
to exhaust administrative remedies. Of course, most agencies provide no such remedies
for adverse publicity. 1026 Even regimes like the IQA that do provide administrative
procedures are found not to entail judicial review. 1027 Sometimes, a party can seek
judicial review before exhausting administrative remedies if the agency’s procedures
cannot provide effective relief. For example, one court allowed a challenge to proceed
because the company alleged that the agency’s public statements would continue to cause
severe damage to the company. 1028 Thus, courts might be sympathetic if the harm is
immediate and agency procedures provide no real remedy. 1029 Otherwise, agencies
frequently invoke the exhaustion doctrine, even without providing adequate
administrative remedies.

1019

28 U.S.C. § 2680(a); Banfi Prods. Corp., 40 Fed. Cl. at 125-26; Fisher Bros. Sales, 46 F.3d at 282.
Indus. Safety Equip. Ass’n v. EPA, 837 F.2d at 1121-22 (D.C. Cir. 1988); Impro Prods., 722 F.2d
845; EEOC v. Sears, Roebuck & Co., 504 F. Supp. 241 (N.D. Ill. 1980); Ajay Nutrition Foods, Inc. v. FDA,
378 F. Supp. 210 (D.N.J. 1974), aff’d mem., 513 F.2d 625 (3d Cir. 1975).
1021
Trudeau, 456 F.3d at 191 & n.23; EEOC v. Sears, Roebuck & Co, 504 F. Supp. at 270.
1022
28 U.S.C. § 2509.
1023
Id.
1024
Cortez, supra note 7, at 1451-52.
1025
See, e.g., Sperling & Schwartz, Inc. v. United States, 218 Cl. Ct. 625 (1978).
1026
Cortez, supra note 7, at 1445.
1027
See Part III.E, supra.
1028
Kaiser Aluminum, 414 F. Supp. At 1055.
1029
Cortez, supra note 7, at 1446.
1020

107

Ripeness. Even if agency publicity constitutes final agency action, it must also be ripe
for review. 1030 Most courts decline to review agency publicity even if it has a significant
practical effect on the company. 1031 However, the district court in Den-Mat rejected the
FDA’s motion to dismiss for lack of ripeness, finding that FDA threats in a Warning
Letter essentially demanded “compliance” with the agency’s position and was more
definitive, final, and harmful than in most cases because the FDA said it would
recommend that other federal agencies not award contracts to the company unless the
allegations were resolved. 1032 The court noted that FDA had already “utilized the public
press to enforce its determination.” 1033 Under ripeness doctrine, the court found that the
company was in a Catch-22either comply with the FDA’s demands or risk an
enforcement action. 1034 Still, the opinion in Den-Mat is an outlier with regard to both
publicity and Warning Letters. Such holdings remain the exception, not the rule, and lack
of ripeness remains a barrier for most litigants.
Sovereign immunity. Compounding matters for litigants, agencies and agency
officials that make public statements may be immune from suit. When agency officials
are sued in their individual capacities to avoid sovereign immunity, the officials can
invoke executive privilege to make statements to the public. 1035 Moreover, agencies
might have a First Amendment right to issue publicity. One court emphasized that courts
“should be hesitant to restrain the Government in speaking out about matters of public
concern absent some very strong overriding showing of inappropriate harm.” 1036
Record for review. Another major barrier for effective judicial review is identifying
an appropriate record for review. A claim that an agency abused its discretion would need
to be proven by reference to internal agency documents, such as e-mails, memoranda, and
the like. Moreover, claims that an agency intended to sanction a company via publicity
would need to be supported by evidence of such intent. As the Inspector General
investigation into the SEC’s announcement of its complaint against Goldman Sachs
demonstrates, such inquiries can be exceedingly difficult. 1037 The Inspector General
reviewed over 3.4 million emails from 64 separate SEC employees and took sworn
testimony from 32 witnesses to produce its report. 1038 More readily-available judicial
review of agency publicity could be a significant burden to agencies and detract
significantly from their regulatory responsibilities.

1030

U.S. CONST. art. III, § 2, cl. 1; Abbott Labs., 387 U.S. 136 (1967).
See, e.g., Relco, Inc. v. CPSC, 391 F. Supp. at 846-47.
1032
1992 WL 208962 at *4-5.
1033
Id. at *5.
1034
Id.
1035
See Barr v. Matteo, 360 U.S. 564 (1959) (finding executive privilege against a defamation claim
for a press release issued by the Acting Director of the Office of Rent Stabilization announcing his intent to
suspend employees); Ajay Nutrition Foods, 378 F. Supp. at 216-17 (holding that the FDA Commissioner
and Secretary of HEW were protected by executive privilege when making public statements and issuing
press releases critical of regulated industries).
1036
FTC v. Freecom Communications, 966 F. Supp. 1066, 1070-71 (D. Utah 1997) (acknowledging
the lack of such an argument from the government).
1037
Cortez, supra note 7, at 1424 n.330 (citing SEC OIG, supra note 33, at 1-2).
1038
SEC OIG, supra note 33, at 1-2.
1031

108

Remedies. A final barrier to effective judicial review is the difficulty in crafting an
appropriate remedy for parties aggrieved by agency publicity. Both courts and scholars
struggle to identify workable, satisfactory remedies. Indeed, part of the reluctance to
recognize judicial review in statutes like the IQA probably stems from the difficulty in
identifying an appropriate, judicially enforceable remedy.
For these reasons, I do not recommend judicial review of agency publicity, absent the
“compelling” circumstances envisioned by courts.

109

APPENDICES

Appendix A: Conference Recommendation 73-1 (adopted June 8, 1973); 38 Fed. Reg.
16,389 (Jun. 27, 1973); 1 C.F.R. § 305.73-1.
Appendix B: List of Interviews (2014-2015)
Appendix C: Table of Federal Cases (1974-2014)
Appendix D: FDA Press Releases (2004-2010)
Appendix E: Sample of Agency Databases
Appendix F: Sample of CFPB Consumer Complaint Data
Appendix G: Agency IQA Guidelines

110