As expected, anti-vaccine Health Secretary Robert F. Kennedy Jr. has significantly rewritten the charter for a federal vaccine advisory panel. The edits give him more power to appoint his like-minded allies as federal advisors, shift the panel's focus to alleged vaccine injuries and risks, and welcome fringe groups and anti-vaccine organizations to the Centers for Disease Control and Prevention.

On Monday, a notice in the Federal Register indicated Kennedy renewed the charter for the CDC's Advisory Committee on Immunization Practices (ACIP), which is done every two years, with the last term having ended April 1. But instead of the usual humdrum renewal process, the notice on Monday indicated big changes were coming to the defining document of the panel, which heavily influences federal vaccine policy that, in turn, influences state requirements and insurance coverage.

The new charter, published Thursday, reveals new responsibilities that redirect advisors toward topics and terms dear to anti-vaccine activists. For instance, ACIP members will now be responsible for "considering analysis of cumulative effects of vaccines and their constituent components." This wording echoes explicit goals of Kennedy's anti-vaccine allies, who aim to pin complex conditions—such as allergies, autism, and neurodevelopmental conditions—on combinations of vaccinations or common ingredients in those shots, such as aluminum adjuvants. This is a pivot from anti-vaccine activists' earlier attacks that focused on individual vaccines, such as the false, fraudulent claim that the measles vaccine is linked to autism—a claim that has been roundly debunked by dozens of high-quality studies.

The charter now explicitly tasks ACIP with monitoring mRNA vaccines, which have always been in ACIP's purview, but are particularly reviled by Kennedy and those in his sphere. Kennedy once falsely claimed the mRNA COVID-19 vaccine was "the deadliest vaccine ever made."

Concerning changes

Among other changes, ACIP is now charged with "reviewing vaccination schedules by other countries and international organizations. This follows Kennedy's unilateral decision at the beginning of the year to dramatically slash the CDC's childhood vaccine schedule to match the oddly narrow schedule in Denmark, a small country with a relatively homogenous population and universal healthcare.

As for ACIP members themselves, the edited charter vastly broadens the requirements for serving as an advisor. In the previous charter, members needed to be "knowledgeable in the fields of immunization practices and public health." But now they can be knowledgeable in a variety of fields, including one as expansive as "medicine." Despite that wide-ranging category, the new charter identifies other fields, including toxicology, pediatric neurodevelopment, and one listed as "recovery from serious vaccine injuries."

These broadened categories follow a court defeat that temporarily blocked Kennedy's ACIP appointees for lacking relevant expertise to serve on the panel. Kennedy had removed the 17 expert advisors on ACIP last year and replaced them with hand-selected allies that largely share his anti-vaccine views. With the new requirements, Kennedy will likely have little problem installing more advisors of his choosing.

Last, the charter lists 33 non-voting liaisons for ACIP, including standard members like the American Medical Association and the American Academy of Pediatrics. But now it also includes fringe and alarming organizations. Those include: the Association of American Physicians and Surgeons, a politically conservative organization that spreads medical misinformation and conspiracy theories, such as HIV/AIDS denialism; the Independent Medical Alliance (formerly Front Line COVID-19 Critical Care Alliance), which pushed the false COVID-19 treatments hydroxychloroquine and ivermectin amid the pandemic; the Medical Academy of Pediatrics and Special Needs, which supports the false claim that vaccines cause autism; and Physicians for Informed Consent, an anti-vaccine organization.

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Under anti-vaccine Health Secretary Robert F. Kennedy Jr., scientists at the Centers for Disease Control and Prevention have been blocked from publishing a scientifically vetted study finding significant health benefits from this season's COVID-19 vaccines, according to reporting by The Washington Post.

The move adds to longstanding concern among health experts that chaos and political interference under Kennedy—a staunch anti-vaccine activist who has long falsely maligned COVID-19 vaccines—is deeply undermining science at federal agencies and beyond.

CDC scientists and insiders told the Post that the COVID-19 vaccine study went through the agency's standard scientific review process and was slated for publication on March 19 in the agency's Morbidity and Mortality Weekly Report (MMWR). But acting CDC director Jay Bhattacharya blocked the scheduled publication and is holding the study, claiming he has concerns about its methodology.

Agency scientists talked with the Post on the condition of anonymity for fear of retaliation from the Trump administration.

According to a summary the Post obtained, the study concluded that between September and December of last year, healthy adults vaccinated with a 2025–2026 COVID-19 vaccine saw the risk of emergency department or urgent care visits cut by 50 percent, and the risk of COVID-19-associated hospitalizations cut by 55 percent, compared with healthy adults who did not get this season's shot.

Bhattacharya reportedly took issue with the test-negative design of the study, which is a well-established method to examine real-world data on vaccine effectiveness. This type of observational study looks at people who have symptoms related to the disease of interest (in this case, COVID-19) and have the same test-seeking behavior. Those who test positive for the disease of interest become positive cases in the study, and those who test negative are test-negative controls. Researchers then compare the two groups based on vaccination status.

Routine methods

Test-negative case-control design studies have been widely used to assess the effectiveness of many types of vaccines. In fact, the CDC published a study in the MMWR last month—a week before the COVID-19 study was set to publish—examining this year's flu shot effectiveness with the same design. But the method gained a higher profile during the pandemic, with hundreds of studies using it to estimate COVID-19 vaccine effectiveness. Analyses have found that, like any observational study design, there are potential biases, but it's generally considered to produce reliable estimates when those biases are controlled.

Andrew Nixon, spokesperson for the Department of Health and Human Services, which oversees the CDC, told the Post in a statement that "It’s routine for CDC leadership to review and flag concerns about MMWR papers, especially relating to their methodology, leading up to planned publication."

Nixon said Bhattacharya, who is also head of the National Institutes of Health under Kennedy, was concerned by "the observational method used in the study to calculate vaccine effectiveness" and "wants to make sure that the paper uses the most appropriate methodology for such a study." Nixon added that the agency's "scientific team is working to address these concerns."

Dan Jernigan, who headed CDC’s influenza division for six years and resigned last year in protest of Kennedy's political interference at the agency, suggested to the Post that stalling the paper fits with Kennedy's anti-vaccine agenda.

"The secretary has already taken steps to try and remove the availability of the vaccine from children and others, so if you're putting out an MMWR that the vaccine is effective at preventing hospitalizations and medical care visits … that message is not in line with the direction you’ve been taking with the removal of the vaccine," he said.

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Anti-vaccine Health Secretary Robert F. Kennedy Jr. has amended the charter of a federal vaccine advisory panel to seemingly grant himself more power to hand-pick members and loosen membership requirements, according to a notice published today in the Federal Register.

The changes come after a federal judge last month temporarily blocked advisors Kennedy had hand-selected, following his firing of all 17 experts from the Centers for Disease Control and Prevention's Advisory Committee on Immunization Practices (ACIP). The judge, US District Judge Brian Murphy, ruled that Kennedy's anti-vaccine-leaning picks largely lacked expertise in relevant fields as required under the current charter. They also failed to meet broader federal regulations that advisory committees be "fairly balanced" in representing the views within relevant fields.

"A committee of non-experts cannot be said to embody 'fairly balanced… points of view' within the relevant scientific community," Murphy wrote. "It is more accurate to say that they do not represent points of view within the relevant expert community."

The ruling has suspended all activity of the ACIP panel. It also temporarily reverses all the changes Kennedy's ACIP had made to federal vaccine policy, including dropping recommendations for COVID-19 vaccines and a birth dose of the Hepatitis B vaccine. Both were widely decried by medical and public health organizations.

The updated charter published today may be Kennedy's next move to restore his vision for ACIP, which he had largely stocked with allies that share his anti-vaccine views.

Broad authority

ACIP's charter is renewed every two years, and the last renewal period ended April 1, 2026. For at least the last two decades, renewal notices in the Federal Register have been brief and unremarkable. But this year's renewal laid out a significant amount of new language, some of which addressed the criteria for selecting members.

Most notably, the current charter includes a lengthy sentence on membership terms that begins by stating that ACIP members "shall be selected by the Secretary ..." But the renewal notice today includes a nearly identical sentence, with the change that ACIP members "shall be selected and appointed by the HHS Secretary." The edit appears to enshrine Kennedy's ability to unilaterally install ACIP members.

The membership criteria are also dramatically different between the current charter and today's renewal. Currently, ACIP members "shall be selected from authorities who are knowledgeable in the fields of immunization practices and public health, have expertise in the use of vaccines and other immunobiologic agents in clinical practice or preventive medicine, have expertise with clinical or laboratory vaccine research, or have expertise in assessment of vaccine efficacy and safety." These specific core requirements of expertise in immunization practices and vaccine science were central to Murphy's findings that Kennedy's appointees were unfit to be on the committee.

The renewal notice did not mention these criteria, but instead discussed members having a "geographic balance" (representing different parts of the country) and a "balance of specialty areas." It provided a lengthy list of specialty areas that span a much larger swath of medical and scientific fields and potentially beyond. They include: "biostatistics, toxicology, immunology, epidemiology, pediatrics, internal medicine, family medicine, nursing, consumer issues, state and local health department perspective, academic perspective, public health perspective, etc."

Suggested changes

Some of the changes in the renewal may stem from a push made by an anti-vaccine group close to Kennedy. The group is Informed Consent Action Network (ICAN), headed by Kennedy's anti-vaccine ally Del Bigtree, who is working with Aaron Siri, a lawyer who worked on Kennedy's failed presidential campaign and has filed numerous lawsuits seeking compensation for alleged vaccine injuries. Siri is also notable for petitioning the Food and Drug Administration to revoke the polio vaccine.

Last month, ICAN urged Kennedy to revise ACIP's charter, and Siri's law firm provided a draft, complete with track-changed text, of what they want for the new charter. The draft states that ACIP members should have expertise in any area "deemed relevant by the Secretary." But, it specifically states that "At least two members shall have direct and substantial experience advocating for and/or treating those injured by vaccines."

The Department of Health and Human Services did not respond to questions from Ars Technica about changes to the renewal notice or potential updates to the CDC's full charter language. Spokesperson Andrew Nixon only said in an emailed statement that the renewal is part of "routine statutory requirements and do not signal any broader policy shift."

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Last time, we looked at adding or removing a handle from an active Msg­Wait­For­Multiple­Objects, and observed that we could send a message to both break out of the wait and update the list of handles. But what if the other thread is waiting in a Wait­For­Multiple­Objects? You can’t send a message since Wait­For­Multiple­Objects doesn’t wake for messages.

You can fake it by using an event which means “I want to change the list of handles.” The background thread can add that handle to its list, and if the “I want to change the list of handles” event is signaled, it updates its list.

One of the easier ways to represent the desired change is to maintain two lists, the “active” list (the one being waited on) and the “desired” list (the one you want to change it to). The background thread can make whatever changes to the “desired” list it wants, and then it signals the “changed” event. The waiting thread sees that the “changed” event is set and copies the “desired” list to the “active” list. This copying needs to be done with Duplicate­Handle because the background thread might close a handle in the “desired” list, and we can’t close a handle while it is being waited on.

wil::unique_handle duplicate_handle(HANDLE other)
{
    HANDLE result;
    THROW_IF_WIN32_BOOL_FALSE(
        DuplicateHandle(GetCurrentProcess(), other,
            GetCurrentProcess(), &result,
            0, FALSE, DUPLICATE_SAME_ACCESS));
    return wil::unique_handle(result);
}

This helper function duplicates a raw HANDLE and returns it in a wil::unique_handle. The duplicate handle has its own lifetime separate from the original. The waiting thread operates on a copy of the handles, so that it is unaffected by changes to the original handles.

std::mutex desiredMutex;
_Guarded_by_(desiredMutex) std::vector<wil::unique_handle> desiredHandles;
_Guarded_by_(desiredMutex) std::vector<std::function<void()>> desiredActions;

The desiredHandles is a vector of handles we want to be waiting for, and the The desiredActions is a parallel vector of things to do for each of those handles.

// auto-reset, initially unsignaled
wil::unique_handle changed(CreateEvent(nullptr, FALSE, FALSE, nullptr));

void waiting_thread()
{
    while (true)
    {
        std::vector<wil::unique_handle> handles;
        std::vector<std::function<void()>> actions;
        {
            std::lock_guard guard(desiredMutex);

            handles.reserve(desiredHandles.size() + 1);
            std::transform(desiredHandles.begin(), desiredHandles.end(),
                std::back_inserter(handles),
                [](auto&& h) { return duplicate_handle(h.get()); });
            // Add the bonus "changed" handle
            handles.emplace_back(duplicate_handle(changed.get()));

            actions = desiredActions;
        }

        auto count = static_cast<DWORD>(handles.size());
                        
        auto result = WaitForMultipleObjects(count,
                        handles.data()->addressof(), FALSE, INFINITE);
        auto index = result - WAIT_OBJECT_0;
        if (index == count - 1) {
            // the list changed. Loop back to update.
            continue;
        } else if (index < count - 1) {
            actions[index]();
        } else {
            // deal with unexpected result
            FAIL_FAST(); // (replace this with your favorite error recovery)
        }
    }
}

The waiting thread makes a copy of the desiredHandles and desiredActions, and adds the changed handle to the end so we will wake up if somebody changes the list. We operate on the copy so that any changes to desiredHandles and desiredActions that occur while we are waiting won’t affect us. Note that the copy in handles is done via Duplicate­Handle so that it operates on a separate set of handles. That way, if another thread closes a handle in desiredHandles, it won’t affect us.

void change_handle_list()
{
    std::lock_guard guard(desiredMutex);
    ⟦ make changes to desiredHandles and desiredActions ⟧
    SetEvent(changed.get());
}

Any time somebody wants to change the list of handles, they take the desiredMutex lock and can proceed to make whatever changes they want. These changes won’t affect the waiting thread because it is operating on duplicate handles. When finished, we set the changed event to wake up the waiting thread so it can pick up the new set of handles.

Right now, the purpose of the changed event is to wake up the blocking call, but we could also use it as a way to know whether we should update our captured handles. This allows us to reuse the handle array if there were no changes.

void waiting_thread()
{
    bool update = true;                        
    std::vector<wil::unique_handle> handles;   
    std::vector<std::function<void()>> actions;

    while (true)
    {
        if (std::exchange(update, false)) {
            std::lock_guard guard(desiredMutex);

            handles.clear();
            handles.reserve(desiredHandles.size() + 1);
            std::transform(desiredHandles.begin(), desiredHandles.end(),
                std::back_inserter(handles),
                [](auto&& h) { return duplicate_handle(h.get()); });
            // Add the bonus "changed" handle
            handles.emplace_back(duplicate_handle(changed.get()));

            actions = desiredActions;
        }

        auto count = static_cast<DWORD>(handles.size());
                        
        auto result = WaitForMultipleObjects(count,
                        handles.data()->get(), FALSE, INFINITE);
        auto index = result - WAIT_OBJECT_0;
        if (index == count - 1) {
            // the list changed. Loop back to update.
            update = true;
            continue;
        } else if (index < count - 1) {
            actions[index]();
        } else {
            // deal with unexpected result
            FAIL_FAST(); // (replace this with your favorite error recovery)
        }
    }
}

In this design, changes to the handle list are asynchronous. They don’t take effect immediately, because the waiting thread might be busy running an action. Instead, they take effect when the waiting thread gets around to making another copy of the desiredHandles vector and call Wait­For­Multiple­Objects again. This could be a problem: You ask to remove a handle, and then clean up the things that the handle depended on. But before the worker thread can process the removal, the handle is signaled. The result is that the worker thread calls your callback after you thought had told it to stop!

Next time, we’ll see what we can do to make the changes synchronous.

The post How do you add or remove a handle from an active <CODE>Wait­For­Multiple­Objects</CODE>? appeared first on The Old New Thing.

At one time, the US electricity grid ran mostly on coal.

But coal-fired power plants have steadily been decommissioned. Power producers found the plants were too expensive to operate and carried risks tied to toxic air pollution, waste and climate-warming emissions.

Then President Donald Trump returned to the White House last year with a fresh zeal to revive the coal industry. His Department of Energy invoked emergency powers to force utilities to keep old plants operating.

Not only is this bad policy, it’s also a misuse of a law designed for wartime, according to legal scholars and analysts. If allowed to stand, this poses problems for utilities, grid operators and regulators who plan for decades-long timeframes, only to be overruled by short-term political imperatives that favor certain industries.

“It’s just illegal,” said Alexandra Klass, a professor at University of Michigan Michigan Law School, about the emergency orders. She served in the Biden administration as a deputy general counsel at the Department of Energy.

Environmental advocates and state officials have challenged the orders in court, with cases underway in the US Court of Appeals for the District of Columbia Circuit.

I’m focusing on the emergency orders because I don’t think the public grasps how much these actions undermine the principles of utility planning and regulation, with harmful consequences for consumer bills and the climate.

While the Trump administration props up coal, it aims to slow the deployment of clean alternatives with actions such as a stop-work order on offshore wind and slow-walking permits to build onshore wind.

Klass co-authored a new essay with Dave Owen of UC Law San Francisco in the Michigan Law Review Online that examines the history and current use of presidential emergency powers on energy.

The Department of Energy under President Donald Trump is invoking Section 202(c) of the Federal Power Act, a provision first used by President Franklin D. Roosevelt in 1941 to meet electricity demand in the Southeastern United States in the run-up to US entry into World War II. The idea was that the government needed the ability to step in to meet short-term needs when existing regulations failed to do so.

The government issued 23 orders under Section 202(c) during the 1940s and almost none in the decades that followed.

In the first Trump administration and the Biden administration, the Department of Energy used the power 12 times in response to requests from utilities or grid operators, usually for permission to operate plants briefly in excess of emissions limits.

Since returning to office in 2025, Trump has used this power differently, seemingly to benefit coal producers by preventing coal plants from closing. The key difference is that this latest wave of orders, starting in May 2025 with the JH Campbell plant in Michigan, was not sought by plant owners.

“What the administration is doing now is using these 202(c) orders to basically override all of the long-term resource adequacy and grid planning that states, regional transmission organizations and utilities do,” Klass said. “And this is now coming in saying, ‘We don’t care what any of you experts and planners have to say. We want to save the coal industry, and we’re going to use this emergency authority that’s not designed for long-term resource planning.’”

Consumers Energy, the utility that operates JH Campbell, had planned to close the plant and replace it with a less-expensive combination of a natural gas plant and renewables that already were online.

Think of this in terms of the car you drive. You bought a new car and then the government says you need to keep your old one and continue driving it, even if it’s spewing black smoke and costs more to run than your new one.

The JH Campbell plant, opened in 1960, has a summer generating capacity of 1,331 megawatts. In 2024, it emitted 8.9 million tons of carbon dioxide, ranking 19th among US power plants, based on an analysis of federal Energy Information Administration data.

It got its fuel last year from the country’s two largest coal mines by production, North Antelope Rochelle Mine and Black Thunder, according to regulatory filings. Both are based in Wyoming and they are owned by Peabody Energy and Core Natural Resources, respectively.

James Grech, Peabody’s CEO, is also the chair of the Department of Energy’s National Coal Council. Jimmy Brock, Core’s CEO, is the vice chair. The Trump administration reconstituted the council last year after it had lapsed under the Biden administration. It was founded during the Reagan administration and advises the secretary of energy on policy, technology and markets.

I reached out to Peabody and Core and did not receive an immediate response.

Since ordering JH Campbell to remain open, the Trump administration has issued orders for five other plants: Eddystone in Pennsylvania, Centralia in Washington, RM Schahfer and Culley in Indiana and Craig Station in Colorado. All run on coal except for Eddystone which runs on natural gas and oil.

And, the administration may just be getting started.

“I think as part of the national energy emergency which President Trump has declared we’ve got to keep every plant open,” said Interior Secretary Doug Burgum last month in an interview with Bloomberg News. “And if there have been units at a coal plant that have been shut down, we need to bring those back on.”

For context, the country has 169,417 megawatts of coal-fired power plants.

Of that total, 40,784 megawatts have retirement dates listed by the EIA. More than half of that total is set to shut down before 2029 and would be caught up in a policy barring the closure of any coal plant on Trump’s watch.

While the administration can slow the decline, coal’s long-term retreat is near-inevitable. As recently as 2005, the country generated at least half of its electricity from coal-fired power plants. The share plummeted to a low of 15 percent in 2024, then rebounded slightly to 17 percent in 2025.

For coal power to make a sustained comeback in this country, developers would need to start building new plants. The best possibility right now may be the Terra Energy Center in Alaska, a proposal to build a 1,250-megawatt coal-fired power plant that would be the first of its kind in the United States since 2013. But this kind of project is speculative, and it’s not yet clear that it will find the right combination of financing and reliable coal supply.

Energy Secretary Chris Wright had said the emergency orders are necessary to keep electricity reliable and affordable.

“The states that have rushed to close their coal plants have also had rapidly escalating electricity prices,” he said in a Jan. 19 appearance on Fox Business. “Americans don’t like that. President Trump doesn’t like it.”

His comment leaves a lot to unpack for an energy analyst. But rather than go into the reasons electricity prices have risen, which is something Marianne Lavelle and I covered in- depth for ICN last month, I’ll just note that the administration’s policy is making power more expensive.

In a February regulatory filing, Consumers Energy reported that it had spent $290 million to operate the plant since the first emergency order. Of this total, $155 million was offset by revenue from the grid operator, leaving $135 million to be covered by the utility’s customers.

“It’s definitely interfering with the ability of utilities to make sure that they’re able to supply the lowest cost, most reliable energy to their customers, as well as states’ abilities to plan their own generation,” said Michelle Solomon, a manager in the electricity program at the think tank Energy Innovation.

If the courts don’t rein in Trump’s use of 202(c), then there is little recourse. Congress could seek to modify the law on emergency powers, but that seems far from likely.

If we want a system in which experts make decisions based on the public interest and economics, then leaders will need to spend the post-Trump years making rules that aren’t so easy to abuse.

This story originally appeared on Inside Climate News.

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A federal appeals court ruled that New Jersey cannot regulate sports bets on prediction markets because the US Commodity Futures Trading Commission (CFTC) has exclusive jurisdiction.

Kalshi, which is registered with the CFTC as a designated contract market (DCM), last year won a preliminary injunction preventing the New Jersey Division of Gaming Enforcement from enforcing a state law against its sports-related event contracts. The injunction issued by a district court was upheld today in a 2-1 decision by judges at the US Court of Appeals for the 3rd Circuit.

The CFTC has exclusive jurisdiction over DCMs under the Commodity Exchange Act, a US law. The question in the Kalshi lawsuit is whether the CFTC's exclusive jurisdiction "preempts New Jersey gambling laws and the state constitution’s prohibition on collegiate sports betting," the appeals court majority wrote. "New Jersey frames the issue broadly (regulating all sports gambling) rather than narrowly (regulating trading on federally designated contract markets)."

Chief Judge Michael Chagares and Circuit Judge David Porter sided with Kalshi in a decision written by Porter, saying that the federal law's text "suggests that the narrow framing is the better reading." It thus "preempts state laws that directly interfere with swaps traded on DCMs. Kalshi’s sports-related event contracts are swaps traded on a CFTC-licensed DCM, so the CFTC has exclusive jurisdiction."

The case began last year after New Jersey sent a cease-and-desist letter to Kalshi, alleging that it was listing unauthorized sports wagers in violation of the New Jersey Sports Wagering Act and the New Jersey constitution. The state's Sports Wagering Act requires licenses to offer sports wagers, and the state constitution prohibits betting on college sports.

"Virtually indistinguishable" from online sportsbooks

Circuit Judge Jane Roth dissented, writing that the Kalshi "offerings are virtually indistinguishable from the betting products available on online sportsbooks, such as DraftKings and FanDuel." Roth recounted looking at the Kalshi page for the Carolina Panthers versus Tampa Bay Buccaneers football game on January 3, 2026, and seeing an extensive list of available bets.

"I could have bet on the winner (game outcome). I could have also bet on whether I believed Tampa Bay would win by more than 2.5 points (point spread), whether the two teams would collectively score 45 or more points (game props), or whether former Tampa Bay wide receiver Mike Evans would score a touchdown (player props)," she wrote.

Online sportsbooks offering similar wagers are regulated by states such as New Jersey, but "Kalshi asserts that it is outside the bounds of state regulation because it does not offer gambling products," Roth wrote. "Instead, Kalshi contends its offered sports-event contracts are swaps, subject to the exclusive jurisdiction of the CFTC. The Majority agrees, holding that Kalshi’s registration as a DCM and branding of its wagers as sports-event contracts are acts of alchemy that transmute its products from sports gambling to futures trading. I see Kalshi’s actions as a performative sleight meant to obscure the reality that Kalshi’s products are sports gambling. Because Kalshi is facilitating gambling, it can be subjected to state regulation."

This is apparently the first appeals court ruling on the topic, but it probably won't end the ongoing debate about the regulation of sports wagers on prediction markets. As law firm Holland & Knight wrote in February, Kalshi has gotten favorable rulings at the US district court level in New Jersey and Tennessee, but suffered losses in Maryland and Nevada.

"With nearly 50 active cases addressing the oversight of event contracts—involving multiple platforms across jurisdictions from New York to Nevada to Tennessee—courts at every level are now grappling with fundamental questions of federalism, preemption and statutory interpretation," Holland & Knight wrote.

CFTC defends "exclusive" authority

The CFTC filed lawsuits last week against Arizona, Connecticut, and Illinois to challenge the states' attempts to regulate prediction markets. “The CFTC will continue to safeguard its exclusive regulatory authority over these markets and defend market participants against overzealous state regulators,” CFTC Chairman Michael Selig said on Thursday. The agency is also seeking public comment on how it should regulate prediction markets, including those related to gaming.

Congress could step in. On March 23, Senator Adam Schiff (D-Calif.) and Senator John Curtis (R-Utah) introduced legislation to prohibit CFTC-registered entities from listing prediction contracts that resemble sports bets or casino-style games.

“Sports prediction contracts are sports bets—just with a different name," Schiff said. "And yet, these contracts have been offered in all fifty states in clear violation of state and federal law. Rather than enforce the law, the CFTC is greenlighting these markets and even promoting their growth. It’s time for Congress to step in and eliminate this backdoor which violates state consumer protections, intrudes upon tribal sovereignty, and offers no public revenue."

Curtis said he's worried about young people being "exposed to addictive sports betting and casino-style gaming contracts that belong under state control, not under federal regulators. Our bipartisan legislation clarifies regulatory jurisdiction, ensuring that states can maintain their authority over sports betting and casino gaming."

Swaps defined broadly in US law

The 3rd Circuit ruling said the Dodd-Frank Act of 2010 amended the Commodity Exchange Act by "adding a new class of futures known as 'swaps' and expanding the CFTC’s exclusive jurisdiction 'with respect to accounts, agreements... and transactions involving swaps or contracts of sale of a commodity for future delivery... traded or executed on a [DCM.]'"

Under the law, swaps include event contracts, judges noted. The Dodd-Frank Act gave the CFTC discretionary power to review and prohibit six categories of contracts if it concludes any violate the public interest. Those categories include gaming contracts. So far, the CFTC "has not yet acted to review or prohibit any sports-related event contracts," the ruling said.

"Congress gave the CFTC exclusive jurisdiction over trades on DCMs, provided for continued state regulation of trades conducted off DCMs, and recognized that while event contracts could involve gaming, the CFTC has discretionary power to review and prohibit those contracts," the majority said. "Thus, it was reasonable for the District Court to conclude that Kalshi was likely to succeed in showing that the Act preempts New Jersey law from reaching into Kalshi’s CFTC-licensed DCM to ban sports-related event contracts."

Roth's dissent acknowledged that a plain reading of the US law's "text suggests that Kalshi’s sports-event contracts fit comfortably within the statutory definition" of swaps. "On the other hand, we should not read statutes literally 'if reliance on that language would defeat the plain purpose of the statute,' or would 'def[y] rationality,'" she said. "As New Jersey argues, Kalshi’s proffered definition would likely encompass virtually every kind of wager that could exist, including classic casino games and charity raffles."

The law defines swap to include contracts in which payment "is dependent on the occurrence, nonoccurrence, or the extent of the occurrence of an event or contingency associated with a potential financial, economic, or commercial consequence." Roth said that with this expansive definition, "even a bet over the outcome of a friendly neighborhood ping pong match" would qualify.

"Moreover, because the trading of swaps outside DCMs is illegal under 7 U.S.C. § 2(e), any individual who engages in gambling outside of a DCM would commit a felony were we to take the definition of swaps to its logical extreme," Roth wrote. "Congress could not have intended for such a rationality-defying outcome."

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