France to Keep Temporary Ban on Monsanto Corn

By: Arthur Cook, Staff Member

As we have discussed before, concerns over everybody’s favorite shady conglomerate Monsanto continue to mount.  On Saturday, September 18, 2012, French Prime Minister Jean-Marc Ayrault announced the continuation of the temporary ban on

MON810, a genetically-modified strain of corn.

[1]

This is not the first attempt by French officials to ban MON810. In 2008, France banned MON810 after protests against the modified corn.

[2]

However, a French court overturned the ban.

[3]

The French government then reversed the French court, instating a temporary ban on MON810, citing “environmental” concerns, and labeled the move a precautionary one.

[4]

Now, Prime Minister Ayrault indicates the ban will continue for some time. 

This ban is largely out-of-step with the rest of the world: the European Union continues to approve the use of MON810, even in the face of French concerns regarding the environment.

[5]

The United States permits utilization of MON810, as does the rest of North America.

[6]

France has had

more than just this quibble with parent company Monsanto, however. France found Monsanto guilty of chemical poisoning stemming from a person who reported suffering neurological problems after inhaling one of Monsanto’s weedkillers.

[7]

Whether or not this continuation of the ban results from new research linking MON810 to actual adverse effects on the environment, or this act is simply French officials responding to strong opposition to genetically-modified crops is not yet clear.

[8]

It should be noted, however, that MON810 is the only genetically-modified crop allowed in Europe at this time.

[9]

[1]

Marion Douet, “France to maintain ban on GMO crops”

Reuters (

Sept. 15, 2012),

http://www.reuters.com/article/2012/09/15/france-environment-gmo-idUSL5E8KF1OH20120915

.

[2]

Adam Vaughan, “French ban of Monsanto GM maize rejected by EU”

The Guardian

(May 22, 2012), 

http://www.guardian.co.uk/environment/2012/may/22/french-ban-gm-maize-rejected

.

[3]

Id.

[4]

“France bans strain of Monsanto GM maize” AFP (March 16, 2012)

http://www.google.com/hostednews/afp/article/ALeqM5g35IMv82EiHUZTEBI7Yadp2y74CA

.

[5]

Vaughan,

supra

note 2.

[6]

GM Crop Database, Center for Environmental Risk Assessment, accessible at:

http://www.cera-gmc.org/?action=gm_crop_database&mode=ShowProd&data=mon810

.

[7]

Douet,

supra

note 1.

[8]

Id

.

[9]

“France Says No to Genetically Modified Crops, No to Fracking”

Common Dreams

(Sept. 16, 2012),

https://www.commondreams.org/headline/2012/09/16

.

Perceived Problems with the Dodd-Frank Wall Street Reform and Consumer Protection Act

By: Raabia Wazir, Staff Member

In July 2010, Congress passed the Dodd-Frank Wall Street Reform and Consumer Protection Act, a section of which directs the Securities and Exchange Commission (SEC) to issue rules requiring companies to disclose their use of conflict minerals if those minerals are “necessary to the functionality or production of a product.”

[1]

Conflict minerals include tin, tantalum, tungsten and gold that originate from the Democratic Republic of Congo (DRC) or one of nine adjoining countries

[2]

and are commonly used in the manufacture of appliances, jewelry, and electronics.

[3]

Congress explained in Section 1502 of the Act that the trade of conflict minerals is helping finance armed groups responsible for extremely violent conflicts in the DRC, and gender- and sexual-based violence in particular.[4] Some statistics suggest that over a third of the DRC’s total mineral profits goes to armed groups, and three-quarters of the armed groups revenue is mine-related.

[5]

By mandating disclosure requirements, Congress hoped to frustrate the groups’ funding and combat the humanitarian crisis in the region.   

On August 22, 2012, the SEC released its final rule, requiring companies that use tin, tantalum, tungsten or gold to first conduct a country of origin inquiry.

[6]

If it is possible that the minerals originated from central Africa, then the company must exercise due diligence on the source and chain of custody of the minerals and file a Conflict Minerals Report.

[7]

Then, if the company finds that the minerals financed or benefited armed groups, they must disclose this information and identify the facilities and mines that the minerals originated from with the greatest possible specificity.

[8]

The companies will not be banned from using conflict minerals, but they must be forthright and open about whether, for example, the metal in their products are derived from slave labor.

Industry groups like the U.S. Chamber of Commerce and the American Petroleum Institute profess to support the noble intentions of the law, but insist that the rule is expensive and unfeasible for large companies.

[9]

The SEC identified about 6,000 listed companies directly affected by its rules

[10]

but the National Association of Manufacturers say that each of those companies would have between 2,000 and 10,000 first-tier suppliers.

[11]

These supply chains are enormous and complex, and the listed companies may only trust a supplier’s account of its compliance if they have good reason to do so.

[12]

One solution is for public companies to seek indemnification from their suppliers if they rely on a “conflict free” designation that proves to be inaccurate. Analysts are poring over other provisions of rule, with much hinging on questions like the definition of “manufacturing” and “generic.”

[13]

The Enough Project and Global Witness, the advocacy groups that led the push for the 1502 legislation, are also unhappy with the rule.

[14]

They feel it is long overdue after being held up for sixteen months beyond deadline, and they are frustrated that the SEC will allow companies to declare the mineral origins of products to be “indeterminable” for up to four years.

[15]

Allowing further delay is simply unacceptable considering the scale of the humanitarian crisis.

Still other critics argue that the new rule oversimplifies and exacerbates a complex geopolitical conflict. Political Scientist Laura Seay argues that even prior to the new rule, Section 1502 (nicknamed “Obama’s Law”) led to a de facto boycott on Congolese minerals, putting millions of artisanal miners out of work, increasing smuggling, pushing militant groups to find other sources of revenue, and ultimately failing to reduce the level of violence in the region.

[16]

Seay recommends providing humanitarian relief to the miners who have lost their livelihood and employing them instead in traceability schemes.

[17]

Under the new rule, listed companies will have until May 31, 2014, to make their first disclosures of whether the minerals they use in manufacturing are “conflict-free.”

[18]

[1]

Press Release,

SEC Adopts Rule for Disclosing Use of Conflict Mineral

,

Securities and Exchange Commission

(August 22, 2012), http://www.sec.gov/news/press/2012/2012-163.htm

[2]

Patricia Jurewicz.

Conflict Mineral Rule 1502 – What’s All the Fuss About?

,

Triple Pundit

(August 21, 2012), http://www.triplepundit.com/2012/08/conflict-mineral-rule-1502-whats-all-fuss-about/

[3]

Brady Dennis,

SEC adopts rules on African ‘conflict’ minerals

,

The Washington Post

(August 22, 2012), http://www.washingtonpost.com/business/economy/sec-adopts-rules-on-africa-conflict-minerals/2012/08/22/a3084a86-ec7c-11e1-9ddc-340d5efb1e9c_story.html

[4]

15

U.S.C.

§ 78(m), available at http://www.sec.gov/about/laws/wallstreetreform-cpa.pdf

[5]

Drew Hendricks,

Cleaning Up Conflict Minerals

,

National Geographic

(September 12, 2012), http://newswatch.nationalgeographic.com/2012/09/12/cleaning-up-conflict-minerals/

[6]

Supra

, note 1.

[7]

Id

.

[8]

Id.

[9]

Supra

, note 3.

[10]

Nick Elliott,

Conflict Minerals Rules Could Reverberate Through Supply Chain

,

The Wall Street Journal

(September 14, 2012), http://blogs.wsj.com/corruption-currents/2012/09/14/conflict-minerals-rules-could-reverberate-through-supply-chain/

[11]

Id.

[12]

Id.

[13]

Tim Worstall,

SEC Conflict Minerals Ruling: Does It Actually Affect Apple, Phone Makers, Or Even Electronics Companies?

,

Forbes

(August 24, 2012), http://www.forbes.com/sites/timworstall/2012/08/24/sec-conflict-minerals-ruling-does-it-actually-affect-apple-phone-makers-or-even-electronics-companies/2/

[14]

Clair Provost,

Eastern Congo's poor left counting the cost of conflict-free gadgets

,

The Guardian

(September 3, 2012), http://www.guardian.co.uk/global-development/2012/sep/03/eastern-congo-poor-conflict-free-gadgets

[15]

Press Release,

Global Witness comment on SEC conflict minerals rule,

Global Witness

(August 29, 2012), http://www.globalwitness.org/library/global-witness-comment-sec-conflict-minerals-rule

[16]

Laura Seay,

What’s Wrong with Dodd-Frank 1502?  Conflict Minerals, Civilian Livelihoods, and the Unintended Consequences of Western Advocacy

,

Center for Global Development

(January 2012), http://www.cgdev.org/files/1425843_file_Seay_Dodd_Frank_FINAL.pdf

[17]

Id.

[18]

Supra

, note 3.

The Commerce Clause, the American Farmer, and the Role of Wickard v. Filburn in the Healthcare Decision

By: Jocelyn Arlinghaus, Staff Member

Roscoe Filburn was a fifth generation small town farmer from Montgomery County, Ohio.

[1]

A hard working American farmer during the wake of The Great Depression, he raised dairy cattle, sold milk, and harvested eggs to sell to local citizens.

[2]

In addition, he planted wheat each fall to harvest the following summer for personal uses such as feeding his livestock, making flour for his family, and replanting for the following growing season.

[3]

In 1938, Congress passed the Agriculture Reform Act with the goal of controlling the crop supply and stabilizing plummeting commodity prices.

[4]

The Act encouraged farmers to purchase wheat by limiting the amount they were allowed to grow themselves and assessing penalties for cultivating over the allotted amount. While the terms of the Act allowed Filburn to cultivate 11.1 acres of wheat, he harvested 23 acres and was assessed a penalty of forty-nine cents on each extra bushel – totaling a fine of $117.11.

[5]

Filburn challenged the assessment under the Commerce Clause, arguing that it went beyond the scope of Congress’ power.

[6]

While Congress has long been granted the power to regulate all instrumentalities of interstate commerce, Filburn argued that it had no business regulating local operations that had only an indirect effect upon interstate commerce.

[7]

Because Filburn was growing wheat merely for personal use, he argued that the law was unconstitutional as applied to him.

[8]

The case eventually made its way to the Supreme Court where, in one of the most influential Supreme Court cases in history, the Court upheld the law against Filburn.

[9]

Writing for the unanimous Court, Justice Robert H. Jackson reasoned that even though Filburn did not sell wheat on an open market and

"though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce."

[10]

Thus the Court concluded that even though Filburn didn’t buy or sell wheat, he still impacted the wheat market.

[11]

Every bushel he grew was a bushel he didn’t buy, which ultimately affected the price of wheat on the market.

[12]

Wickard v. Filburn

formed the basis for the Supreme Court’s modern understanding of the scope of Congress’ power under the Commerce Clause.

[13]

70 years in the books, the case took center stage as a controlling precedent in the Supreme Court’s healthcare decision, announced on June 28, 2012.

[14]

  In

Filburn

, Congress’ limitation on the amount of wheat that could be cultivated in a certain year was within the scope of their power to regulate interstate commerce even though Filburn grew wheat for personal use and did not buy or sell it on the national market.

[15]

Along these lines, the Court considered whether the Commerce Clause could be applied to uphold the individual healthcare mandate and require citizens to purchase health insurance.

The Supreme Court devoted three days to oral arguments, much of which was centered on the respective opponents’ interpretations of

Filburn.

[16]

Supporters of the healthcare mandate argued that

Filburn

has vested in the federal government the authority to regulate individuals’ choices in matters affecting the national economy.

[17]

If the government had the authority to make farmers purchase wheat or pay a penalty, certainly it could mandate that individuals obtain health insurance or be subject to a penalty.

[18]

Further, supporters drew an analogy between the wheat in

Filburn

and an individuals’ decision to go without healthcare, suggesting that allowing individuals to go without healthcare significantly impacts the national economy by raising insurance rates and forcing hospitals to pay for the medical care of those that cannot afford it.

[19]

Opponents of the law told a much different tale. They argued that there was a significant difference in the practice of offering an

incentive

to encourage farmers to buy wheat by imposing penalties for growing their own and the practice of forcing people to buy health insurance or face a penalty.

[20]

In a 5-4 split on this issue, the Supreme Court refused to extend the government’s power under the Commerce Clause to the individual healthcare mandate.

[21]

Chief Justice John Roberts distinguished

Filburn

, arguing that the farmer was

actively

growing wheat and choosing to participate in the activity of farming while those not buying health insurance weren’t doing anything.

[22]

While the law in

Filburn

regulated economic

activity

, the individual mandate penalized economic

inactivity

. The

inactivity

of refusing to purchase health insurance did not invoke the Commerce Clause in the same way as did the

act

ivity

of harvesting wheat. After addressing the remaining issues, the Court ultimately held that while the Commerce Clause could not be invoked, the individual mandate was valid under the government’s taxing authority.

[23]

Filburn died in 1987 at the age of 85.

[24]

One can only imagine that he would have been pleased to a see a small piece of the broad precedent chipped away. Since his time, legal scholars continue to question the principles upon which his case rested, namely the expansion of Congress’ power under the Commerce Clause to regulate noncommercial activity.[25

]

Meanwhile, American farmers have resisted the individual healthcare mandate on grounds that the expenses that it will impose will create significant financial hardships for them.

[26]

They continue to push for additional action to address these remaining concerns.

[27]

Stay tuned.

[1]

Jim Chen,

Filburn’s Legacy

, 52

Emory L.J.

1719, 1733 (2003).

[2]

Id.

at 1734.

[3]

Id.

[4]

See

id.

[5]

Id.

at 1734, 1736.

[6]

Ariane de Vogue,

Long-Dead Ohio Farmer, Roscoe Filburn, Plays Crucial Role in Health Care Fight

,

ABC News

(Jan. 30, 2012),

http://abcnews.go.com/Politics/long-dead-ohio-farmer-roscoe-filburn-plays-crucial/story?id=15460050#.UFd8SY2PXg8

.

[7]

Id.

[8]

Id.

[9]

Id.

[10]

Wickard v. Filburn

, 317 U.S. 111, 125 (1942).

[11]

David Kestenbaum,

The Farmer and the Commerce Clause

,

National Public Radio

(July 05, 2012, 03:06 AM),

http://www.npr.org/blogs/money/2012/07/05/156232075/the-farmer-and-the-commerce-clause

[12]

Id.

[13]

Adam Liptak

, At Heart of Health Law Clash, a 1942 Case of a Farmer’s Wheat

,

The New York Times

(March 19, 2012), 

http://www.nytimes.com/2012/03/20/us/politics/at-center-of-health-care-fight-roscoe-filburns-1942-commerce-case.html?pagewanted=all&_moc.semityn.www

[14]

Id.

[15]

Kestenbaum,

supra

note 11.

[16]

Liptak

, supra

note 13.

[17]

Id.

[18]

Id.

[19]

Id.

[20]

Id.

[21]

Kestenbaum,

supra

note 11.

[22]

Id.

[23]

Id.

[24]

Chen,

supra

note 1, at 1768.

[25]

See

Alex Kreit,

Why is Congress Still Regulating Noncommercial Activity?

, 28

Harv. J.L. & Pub. Pol’y

169 (2004).

[26]

Healthcare Decision Handed Down

,

Southern Farmer

(June 28, 2012),

http://farmprogress.com/story-healthcare-decision-handed-down-0-61006

[27]

Id.

A Lesson in Drafting: What Not To Do

By: Matt Hassen, Staff Member 

Since earlier this year, the Michigan Department of Natural Resources (DNR) has been enforcing an invasive species order prohibiting the possession of feral swine, among other invasive species.

[1]

Feral swine are problematic for two reasons according to the DNR. First, they host parasites and diseases that affect humans, livestock, and wildlife.

[2]

Second, they can cause damage to forests, agricultural lands, and water resources.

[3]

Based on sightings and reported killings by the end of 2011, the DNR estimated the Michigan feral swine population to number between 1,000 and 3,000.

[4]

Recent litigation exposed an epic failure of statutory and regulatory drafting.

The Michigan Animal Farmers Association (MAFA) argues that feral swine fail to meet the statutory requirements for listing as a prohibited species.

[5]

Specifically, a prohibited species must be “not native to this state.”

[6]

Unfortunately, the legislature failed to define “native” in the invasive species act – kind of a strange omission for legislation limited in scope to non-native species. So, MAFA argued that feral swine are “native” under the definition of “native” included in the animal industry act.

[7]

The court held that the invasive species act and the animal industry act are not

in pari materia

– they have different general purposes and do not relate to the same subject matter.

[8]

Instead, the court was left to rely on the definition of “native” found in

Random House Webster's College Dictionary

.

[9]

The statute also requires that “[t]he organism is not naturalized in this state or, if naturalized, is not widely distributed in this state.”

[10]

MAFA made the same argument regarding the word “naturalized,” but again the court went with Webster’s.

[11]

One has to wonder why the legislature would omit critical definitions key to determining the scope of their invasive species legislation.

From the regulatory side, in a declaratory ruling in December 2011, the Michigan DNR listed eight physical characteristics it would use to distinguish feral swine from domestic pigs.

[12]

  The problem? The guidelines are incredibly vague. According to a state Senator, if “the tail is either curly or straight, you can be a felon for owning that hog.”

[13]

Even the wildlife biologist in charge of overseeing the order was quoted as saying, “some of the characteristics in the ruling are similar to a domestic hog breed.”

[14]

The court ended up rejecting MAFA’s summary judgment and preliminary injunction motions. But, the hallmark of successful drafting is not that it holds up in court, rather that it avoids confusion and litigation in the first place.

[1]

DNR Order Listing Sporting Swine as Invasive Species Takes Effect,

Michigan DNR

, (Oct. 10, 2011)

http://www.michigan.gov/dnr/0,4570,7-153-10371_10402-263850--,00.html

.

[2]

Michigan DNR, False Rumors About Feral Swine Enforcement - Setting the Record Straight,

Michigan DNR,

http://www.michigan.gov/dnr/0,4570,7-153-10370_12145_55230---,00.html.

[3]

Id

.

[4]

Id

.

[5]

 Mich. Animal Farmers Ass'n v. Dep’t of Natural Res. and Env’t, No. 305302, 2012 WL 676386, at*5 (Mich. Ct. App. Mar. 1, 2012).

[6]

M

ich. Comp. Laws §

324.41302(3)(a)(i) (2012).

[7]

Mich. Animal Farmers Ass'n v. Dep’t of Natural Res. and Env’t, No. 305302, 2012 WL 676386, at*5.

[8]

Id

.

[9]

Id

. at *6.

[10]

M

ich. Comp. Laws §

324.41302(3)(a)(ii) (2012).

[11]

Mich. Animal Farmers Ass'n v. Dep’t of Natural Res. and Env’t, No. 305302, 2012 WL 676386, at*6.

[12]

“In the Matter of Michigan Animal Farmers Association Request for Declaratory Ruling,”

Michigan DNR

, (Dec. 13, 2011) http://www.michigan.gov/documents/dnr/MDNR_DECLARATORY_RULING_2011-12-13_FINAL_371200_7.pdf.

[13]

Elizabeth Meister and Dan Collison, “Battle Over Michigan's New Swine Rules Goes Hog Wild,”

NPR Food Blog

, (Aug. 31, 2012) http://www.npr.org/blogs/thesalt/2012/08/31/160394513/battle-over-michigans-new-swine-rules-goes-hog-wild.

[14]

Id

.

The Food Safety and Modernization Act meets Opposition from Local Governments

By: Colby Khoshreza, Staff Member

A growing movement towards food safety, which was kicked into high gear last year with the passage of the Food Safety and Modernization Act, has been met with some resistance by several local governments who have recently passed food sovereignty ordinances.  The ordinances raise a challenge to state and federal regulations, which mandate inspection and licensing requirements as tools to promote food safety. 

Over the past year, over eight towns in Maine have passed local food and community self governance ordinances that give more control over how small farms and local food producers sell their crops to the general public.

[1]

  In opposition to federal and state laws, which often require at least some level of regulation, the ordinances permit growers and food producers to sell their products without licenses, permits or inspections.

[2]

  The local ordinances essentially give farmers approval to bypass state and federal regulatory requirements when their products are sold directly to consumers.

[3]

Currently, three states have towns and cities that have passed similar ordinances.

[4]

  Towns in Vermont, California and Maine have all passed similar ordinances in the past year.

[5]

  The ordinances lessen standards on the local farmers thus allowing them to avoid making expensive upgrades and investments necessary to meet state and federal food safety requirements.  Upgrades such as new cooling systems, septic systems and other equipment, commonly cost tens of thousands of dollars, a huge burden on small producers who only sell their produce to a limited number of consumers.

[6]

These enactments bring into question the validity of the ordinances in light of state and federal laws, including the recently enacted Food Safety and Modernization Act, which require inspection, licensing and regulation of food production and sale.  State agriculture officials in Maine have deemed the ordinances ineffective as state and federal law supersede them.

[7]

  However, warnings from state officials about the invalidity of the food sovereignty laws have not necessarily deterred towns and their residents from passing further ordinances; two were just enacted last month.

[8]

This movement by local towns, many of which are heavily based in small farming, is likely a reaction to increased regulatory efforts enacted by both the Food and Drug Administration and U.S. Department of Agriculture in the last couple of years.  Much of the new regulation requires additional upgrades, which means increased costs for food producers both domestically and abroad.  While some of the regulations are tedious and expensive, they are often not as onerous as some farmers make them out to be.  The ultimate goal of promoting consumer health and safety lends strong support to stringent regulatory standards and local ordinances such as these will likely fail when they do not meet state mandates in the areas of food safety.  

[1]

More towns pass food sovereignty ordinances,

MAINE BUSINESS NEWS SOURCE (June 22, 2012),

http://www.mainebiz.biz/apps/pbcs.dll/article?AID=/20120622/NEWS0101/120629976

. 

[2]

Id.

[3]

Clarke Canfield,

Some towns try to loosen reins on food producers,

BUSINESS WEEK (June 22, 2012),

http://www.businessweek.com/ap/2012-06-22/some-towns-try-to-loosen-reins-on-food-producers

. 

[4]

Id. 

[5]

Id. 

[6]

Id.

[7]

Some towns looking to ordinances to make local farms exempt from state regulations,

THE WASHINGTON POST (June 22, 2012)

http://www.washingtonpost.com/lifestyle/food/some-towns-looking-to-ordinances-to-make-local-farms-exempt-from-state-regulations/2012/06/22/gJQANxnOuV_story.html

. 

[8]

Id.  

Proposal for Decriminalization of Medicinal Marijuana Could Lead to Economic Boom for State of Kentucky

By: Samuel Jones, Staff Member

Just as the smoke cleared from the illuminating display of fireworks, another firestorm erupted in Frankfort, KY, this time involving a much different type of smoke.  Senator Perry Clark (D-Louisville) unveiled legislation to legalize the use of medicinal marijuana, and permit possession of small amounts of it without risk of criminal infraction.  Senator Clark wanted to get an early start promoting the legislation to make marijuana available by prescription to cancer patients and others who would benefit from the "miracle plant."

[1]

The proposal explicitly states that it relates only to medicinal usage of marijuana, and allows for the creation of various statutes under KRS 218A, the Controlled Substance section of the KY Revised Statutes, to reduce the illegality of marijuana possession to a Schedule II drug, the same level as opiates, salts, and coca leaves.

[2]

  Though Clark himself  and many others see the passage of this bill as a long shot, Kentucky would become the 19

th

state (including D.C.) to legalize the use of marijuana, and thereby open the floodgates to a whole new industry that is turning significant profits.

[iii]

 While there are political, moral, and personal elements to this issue, the economic and agricultural aspects should not go unnoticed.  Given Kentucky’s temperate climate, high precipitation, and large amounts of arable land, this state is prime real estate for marijuana growth.  This makes it relatively easy for individuals to grow private stashes and doubly hard for law enforcement to control and eliminate its illegal production. In fact, in the 2010 KY Crime Report, over 34% of drug related arrests involved marijuana use or possession, and law enforcement has seen substantial increases in those amounts already.

[iv]

The high amount of costs required to arrest offenders, charge and litigate cases, house convicted criminals, and provide rehabilitation costs no doubt takes a heavy toll on the state budget.  In 2011, Kentucky’s General Assembly voted to reduce the charge of marijuana possession from a class A misdemeanor to a class B misdemeanor, reducing the jail sentence from a maximum of 90 days down to 45 days.

[v]

This was likely done to provide some relief to the heavy costs required to equip state officials in the war of illegal drug use and trafficking.  It is obvious that battling illegal marijuana use is becoming expensive, so legislators are beginning to find new ways to reduce the costs of enforcing drug policy and possibly tap into the trending market.

Aside from easing the burden levied on tax payers for law enforcement, harnessing the possible industry of marijuana growth could also provide financial relief to a struggling economy.  Other states that have legalized medicinal marijuana use have seen economic gains from marketing this drug that has demonstrated positive physical effects.   It is estimated that Californians alone spend roughly $1.4 billion on medicinal marijuana, a large portion of that reverting back to the state government in forms of permits, licenses, and sales taxes.

[vi]

 In Colorado, the state collected $5 million in sales tax from medical marijuana distributors last year, more than doubling the revenue from the 2010.

[vii]

   With state funded institutions facing funding cuts and the rising number of arrests associated with marijuana possession, the state legislature needs to thoroughly examine all avenues of possible fundraising, one of those methods being the rising marijuana industry.   

The decriminalization of medicinal marijuana will likely be a hot topic during the next session of the Kentucky General Assembly.  The political debate is sure to cause divisions among the state residents, but the agricultural statistics are promising, as evidenced by other states that have legalized this type of use and seen financial gains.  A thorough analysis of the potential agricultural and economic boom that could come to Kentucky after the legalization of marijuana should certainly be included in the legislative discussion.

[1]

Roger Alford,

Sen. Clark Moves to Legal

ize Medical Marijuana

,

Lexington Herald-Leader

, July 5, 2012, 

http://www.kentucky.com/2012/07/05/2248986/clark-prepares-to-unveil marijuana.html#storylink=misearch

.

[2]

2012 Bill Tracking KY S.B. 129;

See

KY. REV. STATE. ANN. §218A.070 (LexisNexis 2012).

[3]

17 Legal Medical Marijuana States and DC: Laws, Fees, and Possession Limits

, ProCon.org (July 7, 2012, 

10:30PM) 

http://medicalmarijuana.procon.org/view.resource.phpresourceID=000881#California

.

[4]

2010 Commw. of Ky. Crime Rep

. 102-104,

http://www.kentuckystatepolice.org/pdf/cik_2010.pdf

.

[5]

Assembly Ends Marijuana Arrests

, THE STATE JOURNAL (Mar. 6, 2011), http://www.state-

journal.com/citizen%20news/2011/03/06/assembly-ends-marijuana-arrests.

[6]

Rober A. Mikos,

A Critical Appraisal of the Department of Justice's New Approach to Medical Marijuana

22 

Stan. L. & Pol'y Rev

633, 655 (2011). 

[7]

Michael Cooper,

Struggling Cities Turn to a Crop for Cash

,

N.Y. Times

(Feb. 11, 2012)

http://www.nytimes.com/2012/02/12/us/cities-turn-to-a-crop-for-cash-medical-marijuana.html

.

Increased Bicycle Use Means It Is Time to Revisit Vehicle Laws

By: Robert Proudfoot, Staff Member

With environmental advocates pushing for bicycling as an alternative to automobiles through new users and Bike Share programs, bicycling laws become more important as way to eliminate safety risks and provide standards of conduct for predictable road use.  Currently, t

he state and local laws for bicyclists are ambiguous; sometimes they are motor vehicles or other times pedestrians.  In some states, bicyclists are not subject to

violations for driving under the influence laws (“DUI laws”) while theses laws apply in other states.

[1]

  Further, state uninsured motorist insurance coverage does not apply to accidents with bicyclists.

[2]

  For traffic violations, some courts have ruled that bicycles are “vehicles” and subject to traffic laws.

[3]

  This piecemeal approach for bicycling serves to muddle the regulatory environment and create uncertainty as to the rights and duties of all road users.

Bicycle advocates have long debated

whether a bicycling should be considered use of a vehicle or not under state law.

[4]

The United Kingdom struggled with this ambiguity more than a hundred years ago when it defined a bicycle use as a “carriage” in regulation.

[5]

  By placing bicycles into an already defined category of vehicle, it required riders to have a “lamp” and give an audible signal for passing.

[6]

An Oregon case,

State v. Potter

, exemplifies the strained application of vehicle definitions to bicycling in the United States.

[7]

  In that case, a bicyclist was cited for a traffic violation but appealed the decision on the basis that the relevant law only applied to “motor vehicles” and not “vehicles.”

[8]

  The court agreed that the law was only for “motor vehicles” but held that another statute gives a bicyclist the “

same rights and duties as the driver of any other

vehicle” which includes motor vehicles.

[9]

  The court ruled that the bicycle, even though it was only a vehicle, had to follow the motor vehicle traffic law in question

.

[10]

In California, bicyclists also have the same rights and duties as drivers of motor vehicles.

[11]

Bicycle lanes are regulated separately in different states as well.

[12]

  In California, it is considered another lane of traffic that automobiles must cross to turn right, similar to bus lanes.

[13]

  In Oregon, automobiles must yield to a bicycle lane behind them before making any turns.

[14]

   While Oregon’s law is meant to protect bicyclists from right-hook accidents from turning automobiles, collisions still occur and the law has confused some.

[15]

Bike share programs implemented in places like New York City, Washington, D.C., and Miami have further complicated the issue.

[16]

  In these cities, there is an increasing amount of first-time or casual bicyclists. This group may not understand the fact that while bicycles are not legally defined as motor vehicles, bicyclists are required to follow traffic laws as a vehicle.

[17]

  The new riders ride on sidewalks, go down one-way streets the wrong way, and slalom in and out of traffic unpredictably.

[18]

New York City just recently started aggressively issuing tickets to commercial bicyclists, such as food delivery or messenger persons, for riding on the sidewalks, violating traffic laws, and unsafe riding.

[19]

  In Florida and most other states, even though a bicycle is considered a vehicle under state law, a bicyclist has the right to ride on a sidewalk.

[20]

As public officials struggle to define a bicycle’s official legal status on roads and sidewalks, tensions between bicyclists, automobiles, and pedestrians are on the rise. The legal issue and conflict will continue as bicycling increases in popularity as an environmentally friendly alternative.

[1]

State v. Johnson

, 203 N.J. Super. 436, 438, 497 A.2d 242, 243 (Ch. Div. 1985) (bicyclists cannot violate driving under the influence laws for motor vehicles);

Contra

State v. Tehan

, 190 N.J. Super. 348, 351, 463 A.2d 403, 404 (Ch. Div. 1982);

N.J. Stat. Ann

. § 39:1-1 (West 2009) (excludes bicycles from a motor vehicle definition for driving under the influence violations).

Compare

City of Montesano v. Wells

, 79 Wash. App. 529, 533, 902 P.2d 1266, 1268 (1995) (held bicycles are not motor vehicles);

Wash. Rev. Code Ann

. § 46.61.502(1) (West 2012) (The statute states that driving under the influence applies if “a person drives a vehicle” which contradicts the court’s interpretation of it applying only to “motor vehicles”).

[2]

Chong v. California State Auto. Assn.

, 48 Cal. App. 4th 285, 288, 55 Cal. Rptr. 2d 648, 650 (1996)(holds bicycles are not motor vehicles as defined by state insurance law);

Cal. Ins. Code

§ 11580.06 (a) (West 2012) (defines “motor vehicles”);

See also

9 Couch on Ins. § 123:23 (3d. ed. 2011).

[3]

Green v. Pedigo

, 75 Cal. App. 2d 300, 305, 170 P.2d 999, 1003 (1946) (when a bicyclist and motorist meet at an intersection, the person on the left must yield according to traffic laws).

[4]

Fred Oswald, Et  Al.,

“Bike = Vehicle?  To be or not to be?”.

Bikelaws.org

,

http://bikelaws.org/

(last visited July 16, 2012).

[5]

Local Government Act, 1888. § 85(1). (U.K.) (1888)

available at

http://www.legislation.gov.uk/ukpga/1888/41/pdfs/ukpga_18880041_en.pdf

.

[6]

Id

. at §§ 85(1)(a), (b).

[7]

State v. Potter

, 57 P.3d 944 (Or. App. 2002).

[8]

Id.

at 945-46.

[9]

Id.

at 945

[10]

Id.

[11]

Cal. Veh. Code

§ 21200(a) (West 2011);

See also

California Driver Handbook – Sharing the Road. California

Department of Motor Vehicles

.

http://www.dmv.ca.gov/pubs/hdbk/shr_slow_veh.htm#bike

(last visited July 15, 2012).

[12]

See

Bike Lanes & Right Turns

,

San Francisco Bike Coalition

,

http://www.sfbike.org/?bikelane_right_turns

(last visited July 15, 2012).

[13]

Cal. Veh. Code

§§ 21209(a); 21717 (West 2012).

[14]

Or. Rev. Stat. Ann. § 811.050

(West 2012).

[15]

Stuart Tomlinson,

Women’s Death throws spotlight on ‘right hood’ bicycle accidents

, 

Oregonian

(May 18, 2012,10:20 AM), 

http://www.oregonlive.com/portland/index.ssf/2012/05/bicyclists_death_throws_spotli.html

.

[16]

Alan Gomez,

Bike Sharing Stokes Conflicts Between Drivers, Cyclists

, USA TODAY (July 7, 2012),

http://www.usatoday.com/news/nation/story/2012-07-07/bike-share-programs/56068082/1

.

[17]

Id.

[18]

Ted Johnson,

An Arizona Hick Tries Capital Bikeshare

,

CommutebyBike.com

(June 28, 2012),

http://www.commutebybike.com/2012/06/28/an-arizona-hick-tries-capital-bikeshare-part-2/

(at least one account of unsafe Bike Share users).

[19]

Matt Flegenheimer

,

In Fight Against Unsafe Delivery Cyclists, a Focus on Employers

,

New York Times

(July 13, 2012),

http://www.nytimes.com/2012/07/14/nyregion/new-york-going-after-unsafe-delivery-cyclists.html

.

[20]

Fla. Stat. Ann.

§

316.2065 (West 2012).

The Drought's effect on corn and its subsequent effect on meat prices

By: Toney Robinette, Staff Member  

The United States is currently facing the worst drought since 1956.

[1]

  The drought is causing several food crops around the nation to die in the field.  Corn is the nation's largest legal cash crop, with an estimated value of $76.5 billion in 2011, and this drop in production may cause serious price increases.

[2]

  Missouri and Indiana are also having poor or very poor crops in more than 70% of their corn yields.

[3]

  This significant drop in yield has caused prices to increase by 55% since June 15

th

.

[4]

  This means that corn prices have increased to $7.96 per bushel.

[5]

Because corn is such an integral part of industry and food production this could have a far reaching impact beyond what consumers pay for it at the grocery store.  Corn is an essential feed for several types of domesticated livestock like chicken and cattle.  It is also used in ethanol and as an artificial sweetener.  Its myriad of uses could cause costs to increase for companies such as General Mills, Coca-cola and McDonald's.

[6]

  This means that costs from meat, sweetener and even fuel could increase due to the drought.  While food prices typically only increase around 1% overall for every 50% increase in corn prices, other more attenuated food types see larger increases.  For example, meat prices could possibly increase by nearly 10% due to the drought's effects on corn yield.

[7]

This significant drop in production is also uniquely affecting the Commonwealth.  The USDA's weekly crop bulletin said the Commonwealth of Kentucky has been experiencing the worst effects on its corn crop with 77 percent of the crop being of poor or very poor conditions.

[8]

  The University of Kentucky's Forage Specialist Garry Lacefield says that one of the major effects of a drought on corn growth is the issue of nitrogen build up.

[9]

  Nitrogen is an essential element in the growth and development of corn but without any water the nitrogen is not converted into useful materials.  Corn is often used as feed for cattle but this nitrogen build up could possibly damage this crop's potential for use in cattle feed.  If the Commonwealth's corn fields do not receive enough water, the nitrogen levels could reach such a level that using the corn as feed could prove toxic to cattle.  While silage, a process in which corn is stored in a silo without drying, could lower nitrogen levels by 30 to 50 percent, it may still be toxic to many head of cattle.

[10]

  Lacefield recommends more nitrogen testing before administering the corn as feed but this could further increase already high meat prices.  On top of the already increased meat prices and the possible death of cattle due to nitrogen, Kentucky could also possibly see an increase in meat prices higher than anywhere else in the country.

[1] 

Angelo Young,

No Respite for US Crops; Kentucky Corn Hit Hardest,

International Business Times

(July 19, 2012), http://www.ibtimes.com/articles/364740/20120719/corn-prices-drought-2008-food-crisis-heatwave.htm.

[2] 

Luzi Ann Javier and Jeff Wilson,

Crop Prices Drop After Surging to Record on U.S. Midwest,

Bloomsburg Business Week

(Jul. 23, 2012), http://www.businessweek.com/news/2012-07-23/crop-prices-drop-after-surging-to-record-on-u-dot-s-dot-drought.

[3] 

Weekly Weather and Crop Bulletin

,

U.S. Dept. of Agriculture

 (Jul. 17, 2012),

http://www.usda.gov/oce/weather/pubs/Weekly/Wwcb/wwcb.pdf

[4] 

Supra

note 2.

[5] 

Hibah Yousuf,

Corn, Soybean Prices Shoot Up as Drought Worsens,

CNN Money

(Jul. 20, 2012), http://money.cnn.com/2012/07/19/investing/corn-soybean-prices/index.htm.

[6] 

Id.

[7] 

Hibah Yousuf,

Your Burger is About to get Pricier

,

CNN Money (

Jul. 18, 2012), http://money.cnn.com/2012/07/18/investing/corn-prices-food-inflation/index.htm?iid=EL.

[8] 

Supra

note 3.

[9] 

Angela Hatton,

Nitrogen Levels High in Drought Damaged Corn

, WKMS (Jul. 17, 2012), http://wkms.org/post/nitrogen-levels-high-drought-damaged-corn.

[10] 

Id.

Doping Horses

Image Source

By: Breck Norment, Staff Member 

Our hearts race when a fleet of horses tear down a dirt track while pounding their hooves in a rhythmic dance of speed.  While many of us love horse racing, we tend to get caught up in the madness at the tracks and forget about the welfare of horses.  But it is all too sobering to watch a horse fall during a race, because we know how that horse’s story will likely end.  Only in rare circumstances can injured horses survive, and many are put down before they are removed from the racetrack.    

Approximately 24 horses die each week at American racetracks.[1]  Although many unfortunate events can lead to the injury and ultimate death of a horse during a race, the use of various drugs during race-day could be one of the leading causes of this ever increasing problem.[2]  Some of the drugs given to horses include a substance secreted from the skin of a frog in South America that can numb pain and increase hyperactivity in a horse.[3]  When given to a horse on race-day, this can be a dangerous combination.        

This issue of horse doping dates back to the nineteenth century, but it has been relatively dismissed – until recently.[4]  Legislators and other racing industry figures have begun to push for some type of legislation to combat these dangerous practices.[5] 

Some of the industry’s leaders insist that Congress has the duty to step in with federal legislation to oversee the various types of drugs administered to horses at racetracks.[6]  Senator Tom Udall from New Mexico, who chaired the Senate Commerce Committee hearing, “proposed legislation to ban race-day medication” at racetracks.[7]  Sen. Udall expressed his concern with the use of painkillers and other drugs on horses on race-days.[8]  He explained that injured horses with masked pain continue to “charge down the track” and endanger everything in their path.[9]      

Others argue against federal legislation because they believe the federal government lacks the necessary “experience or expertise in horse racing.”[10]  As such, they argue that a coalition of states should enact a uniform set of rules for horse tracks to follow.[11]     

Perhaps the latter solution would be most favorable, but further federal government action may be required if the horse racing states cannot come to an agreement.  Either way, the sport must have rules designed to avoid these tragic deaths. 

---

[1] Walt Bogdanich, Joe Drape, Dara L. Miles, & Griffin Palmer, Death and Disarray at America’s Racetracks - Mangled Horses, Maimed Jockeys, New York Times (March 24, 2012), http://www.nytimes.com/2012/03/25/us/death-and-disarray-at-americas-racetracks.html?pagewanted=all.

[2] Id.

[3] Eliana Dockterman, Frog Juice:  Horse Racing’s New Doping Scandal, Time News Feed (June 21, 2012); see also, http://newsfeed.time.com/2012/06/21/frog-juice-horse-racings-new-doping-scandal/; See also Catherine Barrett, “Frog Juice” Has Legislators Hopping Mad, Ky. J. Equine, Agric. & Nat. resources L.Blog, (July 19, 2012), http://www.kjeanrl.com/.

[4] Id.

[5] Frederic J. Frommer, Need for federal oversight of horse racing debated, The Associated Press & Yahoo! Sports (July 12, 2012), http://sports.yahoo.com/news/federal-oversight-horse-racing-debated-183610459--spt.html.

[6] Id.

[7] Id.

[8] Jerry Bossert, New Mexico Senator pushing to end doping in horse racing, New York Daily News (July 12, 2012), http://www.nydailynews.com/sports/more-sports/new-mexico-senator-pushing-doping-horse-racing-article-1.1113554.

[9] Id.

[10] See Frommer, supra note 5.

[11] Id.