Is an undersized red grouper a “tangible object” within the meaning of the Sarbanes-Oxley Act? Is a cigarette a “combination product” to deliver a drug (nicotine) to the body within the meaning of the Food, Drug, and Cosmetic Act? These are classic puzzles of statutory interpretation that courts are frequently called on to resolve. What may surprise an ordinary person, however, is that different interpretive rules apply to one question and not the other. That is so because the Sarbanes-Oxley Act is a criminal statute and the Food, Drug, and Cosmetic Act authorizes regulatory action. Prosecutors read criminal statutes to know when they can impose penal sanctions on defendants and administrative agencies read authorizing statutes to know when they may regulate an industry. But statutes in both contexts are often ambiguous as to the precise extent of penal or regulatory liability, creating the need for judicial intervention. 

The Supreme Court has come to stringently interpret administrative laws using the major questions doctrine, but it reads criminal statutes expansively without invoking the canon of lenity which would similarly narrow the statute’s meaning. As a result, the Court gives regulated industries the benefit of the doubt under ambiguous statutes without extending the same benefit to criminal defendants. This Note argues that the Court lacks a principled reason for the disparity between criminal and administrative contexts and calls for the restoration of lenity.

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