Sunday, September 29, 2013

Why can you be arrested for killer cantaloupe?

In 2011, a deadly listeria outbreak killed 33 and hospitalized 147. Cantaloupe from Jensen Farms in southeastern Colorado was the source of the outbreak.

Image courtesy News21 National

FDA inspectors found unsanitary conditions in the Jensen Farms cantaloupe packing facility, where cantaloupes were processed on potato cleaning equipment without using a chlorine wash.

This week, the government filed criminal misdemeanor charges of introducing adulterated food into interstate commerce against Eric and Ryan Jensen, who own the cantaloupe packing facility. Trial is scheduled for December 1, 2013. The brothers each face up to six years in prison and a $1.5 million dollar fine.

This case is the second of its kind brought this year. In February, the government charged four former employees of Peanut Corporation of America with scheming to manufacture and ship tainted peanuts. Their peanuts became peanut butter tainted with salmonella, which killed nine and sickened hundreds in 2009.

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Saturday, September 28, 2013

Why is marijuana usage illegal in (parts of?) the United States?

Back in the day, marijuana was a remedy for everything from gout to inflamed skin.

Image courtesy Matthew Kenwrick
In the early 1900s, however, marijuana paranoia arose--for various reasons, but with an ugly racialized dimension. As Matt Thompson characterizes one explanation, "Pot was outlawed because MEXICANS."

Marijuana laws passed in fits and starts in the early 20th century. By the 1930s, about half of the states prohibited marijuana. The Federal Bureau of Narcotics strongly encouraged states to adopt laws regulating marijuana usage, and even adopted a Uniform State Narcotic Act for states to use as a model.

The first federal ban was passed in 1937: the Marihuana Tax Act. In 1969, the Supreme Court ruled part of the Marihuana Tax Act unconstitutional. Complying with that part of the law required a marijuana user to incriminate him/herself in violation of the 5th Amendment. The next year, Congress responded by repealing the Marihuana Tax Act and replacing it with the Controlled Substances Act. The Controlled Substances Act created five schedules classifying substances according to their potential for abuse, currently accepted medical use in treatment in the United States, and international treaties. A drug is classified as "Schedule I" if it has 1) a high potential for abuse, 2) no currently accepted medical use in treatment in the United States, 3) a lack of accepted safety for use under medical supervision. 

In 1970, Dr. Roger Egeberg, Assistant Secretary of Health, wrote a letter recommending that marijuana be classified as a "Schedule I" substance. His reasoning:

"Since there is still a considerable void in our knowledge of the plant and effects of the active drug contained in it, our recommendation is that marijuana be retained within schedule 1 at least until the completion of certain studies now underway to resolve the issue."

Recently, states are reversing the trend and decriminalizing marijuana, sometimes for medical use (California) and sometimes for recreational use (Colorado, Washington). State law is preempted by federal law, meaning that federal law will always trump if federal and state law conflict. However, the Obama Administration announced last month that it would not challenge state laws decriminalizing marijuana so long as they regulated its sale and distribution.

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Thursday, September 26, 2013

Why can you buy gas with an 85 octane rating in Colorado when the standard is usually 87?

Why are there regional variations in octane ratings? Why do some Rocky Mountain states allow 85, 85.5, 86, or 86.5 octane fuel to be sold?

Image courtesy Upupa4me.

You guessed it. Law! And the standards law relies on. And altitude.

Higher octane ratings mean the fuel is higher performing, or that it is better able to resist combustion (especially uncontrolled burn, or "engine knocking").

Many states, including Colorado, peg their laws on the American Society for Testing and Materials standard. ASTM is a standards development organization founded in 1898. By statute, Colorado can legally sell whatever the ASTM determines it can. Go read the statute below--it's kind of crazy!

An American Petroleum Institute study showed that cars would perform as well using 85 at high altitude as they would using 87 at lower altitude. Refineries can't sell 85 many places, and it is cheaper to produce--so it is cheap to buy in Colorado.

Since 1984, however, cars have been manufactured to automatically adjust for altitude as cars have shifted from carburetors to fuel-injection engines. A 2001 study from the Colorado Legislative Council (the state legislature's research group) called into question the 85-is-fine-at-high-altitude finding for newer cars.

In 2006, ASTM acknowledged it might be time to take another look at this standard. But the standard apparently hasn't changed. To this day, you can still buy 85 at Colorado pumps.

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Wednesday, September 25, 2013

Why aren't movies rated by the government?

Why aren't movies rated by the government?

Image courtesy M4D Group.

They were, before the 1960s! Some states and big cities used to have movie ratings boards, like the Maryland State Board of Censors. Then the U.S. Supreme Court decided it was not such a good idea to allow this state board to continue weeding through what movies could be shown.

The reason? Unlike alcohol, films count as "speech" and are protected under the First Amendment. Without systems in place to protect the important Free Speech right involved, it is not OK to require films to be submitted for approval before a state or local board before they may be shown.

Since 1968, the Motion Picture Association of America (MPAA), a trade association, is responsible for the G through NC-17 ratings you see at movie theaters. The ratings system is voluntary. If you are not allowed in to see a movie, it is because of theater policy.

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Tuesday, September 24, 2013

Why does FM radio go from 87.9 to 107.9?

In the United States, the frequency modulation ("FM") radio band stretches from 87.7 MHz (megahertz) to 108 MHz. The center frequencies are probably 87.9 - 107.9 on your car radio.

Image courtesy paulswansen.

Stations from 88-92 MHz (the "reserved band") are legally reserved for noncommercial radio. This probably explains why NPR is usually on the lower number stations.

Why is FM radio here? The Law (tm)!

The Federal Communications Commission ("FCC") allocated FM radio stations in this part of the radio frequency spectrum after World War II.

The frequency spectrum is like a neighborhood, with frequencies carved out by the International Telecommunications Union ("ITU") for different parts of the world. The ITU, a specialized agency of the United Nations headquartered in Geneva, Switzerland, was originally founded as the International Telegraph Union under the 1865 International Telegraph Convention.

The United States, in turn, carves out its spectrum for various uses, including television, satellite, GPS, and radio in the Frequency Allocation Table, a regulation published at 47 C.F.R. § 2.106. The FCC allocates civilian commercial uses, while the National Telecommunications and Information Administration ("NTIA") allocates military uses.

So who are FM radio's "neighbors," if you could extend your car radio below 87.9 and above 107.9? Just underneath the FM band are what used to be analog television channels 5 and 6. And above: satellite communications.

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Monday, September 23, 2013

Why does bedding have a tag that says "Not to Be Removed Except By Consumer?"

Back in the day, mattresses came stuffed with nasty stuff.

Not my modern mattress! All new material, baby.
Secondhand stuffing could carry contaminants: lice, bedbugs, chemicals, you name it. Gross.

So many states, pursuant to their police powers to regulate the health, safety, and welfare of their citizens, passed bedding labeling laws to inform consumers whether their bedding was made from new or recycled materials.

Thanks to the "except by the consumer" language, you are free to remove the tag yourself. However, some mattress manufacturers require the "law tag" to be included in a warranty claim.

Somebody should get Mickey Morelli a lawyer. He's a wrongly convicted man.

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Sunday, September 22, 2013

Why is everything on 8.5" x 11" paper?

Turns out that paper doesn't just naturally grow on trees in 8.5" x 11" sheets.

Image courtesy FeatheredTar

In fact, most of the world uses the international standard A4 size, 8.3" x 11.7". Until a few decades ago, the official paper size of the U.S. government was 8" x 10.5".

When Herbert Hoover was Secretary of Commerce, he proposed using 8" x 10.5" ("government-letter size") for all government forms. One explanation is that this was the size used by schools, and using a standard size would lower prices.

On August 30, 1921, President Herbert Hoover set up the Committee on the Simplification of Paper Sizes as part of his Elimination of Waste in Industry program.

Richard P. Stephenson, who was in the Office of Records Management in 1979 at the Government Services Administration, sorrowfully recounted a 1923 meeting between the 8" x 10.5" and 8.5" x 11" camps: ". . . .  [T]hey did not agree."

The 8" x 10.5" government-letter size camp won out for 58 years. But with the rising prominence of photocopy machines, the commercial letter 8.5" x 11" size eventually edged out its smaller competitor. Congress and the courts had already moved away from the smaller paper.

Effective January 1, 1980, the government adopted  8.5" x 11" letter size paper as the standard size for U.S. government forms. Senator Claiborne Pell (D-RI) sent a memo addressed "To the Heads of All Departments and Agencies" to inform them that the Joint Committee on Printing had unanimously adopted a new standard paper size.

The change was not a small one. In 1978, the government used 1.4 billion sheets of paper.

Interestingly enough, this has become an evidentiary question for conspiracy theorists and 20th Century history buffs alike. An original document printed in the 40s and 50s would have been printed on smaller government size paper.

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Saturday, September 21, 2013

Why can I only find 15% ABV beer?

Why do some states limit the alcohol by volume (or "% ABV") of certain types of alcohol?

Image courtesy greencolander.
Or, why can't I buy Dogfish Head's 120 Minute IPA in Alabama?

States and local governments can regulate alcohol because they have police power to regulate the health, safety, and welfare of their citizens. State liquor laws are quirky and vary widely, and include: 
  • Who can buy alcohol (18 year olds or 21 year olds*--as of 1988, everywhere but Puerto Rico and the U.S. Virgin Islands has a minimum purchase age of 21)
  • What alcohol can be sold (i.e. 3.2 beer only, or only beer under a certain ABV)
  • When alcohol can be purchased (i.e. not after 8 p.m., not on Sunday, not on Election Day)
  • Where alcohol can be purchased (i.e. grocery store, liquor store, state-run store only)
  • How alcohol can be purchased (i.e., no happy hours, must be ordered with food)
* But the law can't treat men and women differently. Oklahoma found this out the hard way when the United States Supreme Court struck down the Oklahoma law that allowed women but not men to purchase 3.2 beer between the ages of 18 and 21. Incidentally, this case -- Craig v. Boren -- gave us the intermediate scrutiny test for gender discrimination. 

These laws can be tough to change, since legislators are often reluctant to appear soft on laws that regulate "vice." However, as microbreweries grow in economic importance, many state legislatures are now moving to relax their liquor laws.

Someday, even Alabamans may enjoy a 20% ABV 120 Minute IPA.

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Thursday, September 19, 2013

Why are California beaches free to the public?

As a former Californian (and a Californian at heart), I was horrified to learn that some beaches in other parts of the world charge admission.

Image courtesy Andrew Osterberg.

Free beaches are, sadly, not the norm.

California is a special place. The state constitution even carves out a public right to access beaches:
No individual, partnership, or corporation, claiming or possessing the frontage or tidal lands. . . shall be permitted to exclude the right of way to such water . . . so that access to the navigable waters of this State shall always be attainable for the people thereof. 
Article X, Sec. 4.

California Proposition 20--and four years later, the 1976 California Coastal Commission Act--set up the California Coastal Commission, a state agency charged with protecting the state's coastline. Part of its mission is to ensure public access for recreation.

According to Molly Selvin, Associate Dean for Interdisciplinary Programs at Southwestern Law School, the "public trust" doctrine underpinning these laws is what has kept California beaches open to the public.

What is the dividing line? Wet sand and dry sand! California law carves out the land below the median high tide line as public.

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Wednesday, September 18, 2013

Why does Netflix only have some shows while Amazon Prime has others?

An ever-present question in my very obviously very busy and important life is: why does Netflix Watch Instantly only have some shows and not others?

Image courtesy goodncrazy.

Answer: contract law!

Netflix (like Hulu and Amazon Prime) negotiates content deals with media creators. These multi-million dollar contracts provide for Netflix to acquire "streaming rights" to show episodes and movies via their website. For example, in 2013, Netflix let deals with Starz and Viacom lapse while forming new agreements with Disney to show their 2016 movies.

Annoyingly, for those of us subscribers who would prefer to watch all of our shows via one provider, streaming video providers negotiate exclusive contracts. For a price, they gain the only rights to show certain content. Amazon Prime, for instance, recently garnered exclusive rights to Under the Dome. The providers appear to be jockeying for certain valuable markets, with Amazon Prime and Netflix Instant focusing on children's programming. Rumor has it that Netflix is even watching statistics from illegal pirated video sites to know what content to procure.

So next time you are cursing the fact that you cannot watch House of Cards on Amazon Prime, just remember--you have contract law to thank.

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Tuesday, September 17, 2013

Why are some water supplies fluoridated, but not others?

Image courtesy dangoodwin.

Answer: THE LAW! Or at least, that's part of the story. Courts have been reluctant to strike down local laws requiring water supplies to be fluoridated.

Colorado dentist Frederic K. McKay discovered fluoride's cavity prevention power in 1909. The good news is, children who grew up drinking naturally fluoridated water in the Pikes Peak region had fewer cavities than children from other regions. The bad news is, their teeth were brown and mottled with "Colorado Brown Stain" (ew), now more palatably known as dental fluorosis. There is some truth to the saying "too much of a good thing," and fluoride is no exception.

In 1945, Grand Rapids, Michigan, became the first city to add fluoride to the city water supply. Incidentally, this was ten years before Crest introduced fluoride toothpaste.

But not all was happy in fluoridated water land. Various groups began to question the wisdom of fluoridating water, on health, religious, environmental, and even (paranoid?) political grounds. Scientists began to question the benefits of fluoridated water, especially as weighed against fluoride's health risks--beyond causing the oh-so-attractive Rocky Mountain Mottled Teeth, fluoride can also have adverse effects on bone density at higher concentrations. In 1997, the Food and Drug Administration began to require toothpaste manufacturers to place poison control labels on tubes warning of the dangers of ingesting fluoride. The Environmental Protection Agency regulates fluoride in drinking water, and sets standards for the allowable concentration in water supplies at 4 parts per million. Meanwhile, Christian Scientists began to protest that fluoridation of water supply was forced medication. The Sierra Club has also opposed fluoridation on environmental grounds. During the Cold War, fears even arose that fluoride in the water was a communist plot.

Generally, it is local governments that pass laws related to artificial fluoridation of water supplies. Fluoridation laws are made under the local government's police power to regulate the health, safety, and welfare of their citizens. Several challenges have been brought in the courts against local laws on grounds that it is mandatory medical treatment that violates due process. However, no local fluoridation law has been struck down.

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Monday, September 16, 2013

Why are TV commercials still so much louder than shows?

The old woman inside of me rejoiced when Congress passed the Commercial Advertisement Loudness Mitigation (CALM) Act. There is nothing worse than falling asleep in front of the TV, only to be awakened by a commercial for a horror film.

Image courtesy espensorvik

Apparently, California Representative Anna Eshoo (D-Menlo Park) got the idea after a loud commercial interrupted her family's dinner. She asked her brother-in-law to turn it down, and he responded, "Well, you’re the congresswoman. Why don’t you do something about it?’’

The Act directed the Federal Communications Commission to establish rules regulating the volume of commercials. The rules went into effect on December 13, 2012, and required TV stations, cable and satellite providers to control the volume of their commercials. Small companies can request a one-year waiver.

However, it seems to me like a lot of commercials continue to be louder. Am I the only one?

If you're feeling the old lady vibe, you can complain to the FCC about any commercials that are volume offenders.

How to File a Form 2000G – Loud Commercial Complaint:
1. Click on the Complaint Type button “Broadcast (TV and Radio), Cable, and Satellite Issues”
2. Click on the Category button “Loud Commercials.” Fill in as many details as possible.
3. Click on “Complete the form” to submit your complaint online.

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Sunday, September 15, 2013

Why are California avocados better?

It is a truth universally acknowledged that an avocado in California must be better than avocados in other states.

But why?

Image courtesy ollesvenson.


Or at least, that's part of the story.

The more oil an avocado has, the better its flavor. Since 1925, California law--Section 792 of the Agricultural Code, to be exact--prohibited the transportation or sale in California of avocados which contain "less than 8 per cent of oil, by weight . . . excluding the skin and seed."

This upset avocado growers in Florida, because they played the rules by a different game: federal marketing guidelines that made no reference to oil content. They sued to prevent California from enforcing the 8% law, but ultimately lost in the U.S. Supreme Court.

Now, the avocado case is famous, and is included in Constitutional Law textbooks as an example of Supreme Court jurisprudence on preemption. Preemption is the idea that, if a federal law conflicts with a state or local law, the federal law controls. But in the Florida Lime & Avocado Growers case, the Supreme Court upheld the California law, stating that the federal law provided a floor, but not a ceiling, for what state laws can do. The California law was free to be stricter than the federal law so long as it did not directly conflict with it.

In other news, please don't give a California law enforcement officer reasonable belief that you are in unlawful possession of avocados:

45038.  Upon reasonable belief that a person is in unlawful
possession of avocados regulated by this chapter, the avocados may be seized by the director or any peace officer and shall be turned over to the custody of the director.

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Saturday, September 14, 2013

Why do we drive on the right?

If you wanted to drive on the left side of the road, could you? You could try, but it's against the law! 

Image by Roland Tanglao, 2/5/10, Vancouver, BC
Creative Commons Use. 

Legend has it that the American custom of right-handed driving began in an effort to cast off the customs of the old world and British rule. Left-handed driving in Britain apparently made sense in the horse and buggy days, when right-handed riders hoped to keep their strong side ready for sword fights with passersby.

Albert C. Rose, "unofficial historian" of the U.S. Bureau of Public Roads from 1919 to 1950, provides a more practical explanation: right-handed driving was the most convenient way to travel in a Conestoga Wagon. He notes the first codification of right-handed driving occurred in 1792, when Pennsylvania lawmakers passed legislation establishing a turnpike from Lancaster to Philadelphia. By the Civil War, drivers in every state drove on the right.

In the early 20th century, cars became more common. With a growing number of drivers terrorizing the roadways, states began to codify traffic rules in Motor Vehicle Acts. The "Father of Traffic Safety," William P. Eno, published Rules of the Road in 1903, which informed many local traffic codes.

Some countries, like troublemaker Canada, had messier colonial pasts resulting in formerly French parts of the country driving on the right and British parts driving on the left. To keep confusion to a minimum across the globe, and I'm not even kidding about this, 95 countries ratified an international treaty on road traffic in 1949. The Geneva Convention on Road Traffic signatories agreed that traffic would uniformly keep to one side of the road--the same side of the road--in each country.

In 1966, President Lyndon Johnson signed the National Traffic and Motor Vehicle Safety Act and the Highway Safety Act, which gave the federal government purview over drivers and driving for the first time. Previously, it had been up to states and local governments to regulate the rules of the road.

Today, traffic codes such as Section 21651(b) of the California Vehicle Code make it a crime to drive on the left side of a divided highway. It can cost you two points on your license!

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