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Political Theater and Kentucky Gambling Expansion

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By: Staff Member, Thomas E. Travis[1]

The Kentucky General Assembly currently has two gambling bills pending before it this session. First, House Bill 67 proposes a change to the Kentucky State Constitution to allow the General Assembly to permit and regulate casino gambling in the state.[2] The Kentucky Constitution currently bans all forms of “lotteries,” granting an exemption for the state lottery.[3] Kentucky courts have interpreted this ban to be inapplicable to horse racing,[4] but casino gambling is within the scope of the prohibition, requiring a constitutional amendment to legalize it.[5] Second, House Bill 68 is essentially an enabling act, substantively establishing the permit process and regulatory structure in the case that casino gambling is legalized.[6]

Stan Cave, head of the Family Foundation and Chief of Staff to former Governor Ernie Fletcher (a staunch opponent of racetrack gambling expansion), recently declared that the passage of HB 68 in the 2014 session would be unconstitutional. He claimed it is unconstitutional to pass the enabling act before the public passes the amendment. Further, Mr. Cave contends that if HB 68 were passed, “lawmakers would violate their oath of office to uphold the constitution.”[7]

While Mr. Cave’s rhetoric may score political points with Kentucky’s religious voters, it is unlikely there is much basis to his contention. HB 68 itself contemplates the fact that the statute would be dead letter if the amendment failed to pass.[8] In other words, passage of the bill would confer no actual governmental authority to expand gambling; it would merely have the expansion “shovel ready” upon approval of the amendment. Furthermore, it is a stretch to suggest that the oath of office is violated in passing a bill that is later found to be unconstitutional, especially on grounds as shaky as in the instant circumstance.

Despite the fact that a constitutional challenge would be feeble at best, this does raise questions about the political motivations in packaging the bills. Perhaps prospectively enabling the expansion represents a growing concern among state Democrats that Republicans will take control of the General Assembly and Governor’s Mansion. While a large part of the social conservative coalition still exists, many Republicans, including likely gubernatorial candidate James Comer, the Commissioner of Agriculture, are on board with the expansion.[9]

In short, a constitutional challenge to HB 68 is in large part political theater to galvanize support for November. Despite doubtful illegality, the political undertones suggest this is a conversation warranting further attention. Whether it is electoral paranoia or campaign strategy, the packaged legislation will continue to spark controversy until the voters speak.
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[1] Staff Member of the Kentucky Journal of Equine, Agriculture, and Natural Resources Law 2013-2014: B.S. 2012 Western Kentucky University; J.D. expected May 2015 University of Kentucky. The author would like to thank Professor Scott Bauries for his advice on this topic.
[2] H.B. 67, 2014 Gen. Assemb., Reg. Sess. (Ky. 2014).
[3] Ky. Const. § 226(3) (“Except as provided in this section, lotteries and gift enterprises are forbidden, and no privileges shall be granted for such purposes, and none shall be exercised, and no schemes for similar purposes shall be allowed. The General Assembly shall enforce this section by proper penalties. All lottery privileges or charters heretofore granted are revoked.”).
[4] See Commonwealth v. Kentucky Jockey Club, 38 S.W. 2d 987 (Ky. 1931).
[5] See OAG 93-58.
[6] H.B. 68, 2014 Gen. Assemb., Reg. Sess. (Ky. 2014).
[7] Brammer, supra note 2.
[8] H.B. 68, 2014 Gen. Assemb., Reg. Sess. (Ky. 2014) (“effective upon certification of election results in November 2014 if a constitutional amendment is enacted by the General Assembly and approved by the voters permitting the General Assembly to authorize casino gaming”).
[9] Kentucky Wins, Our Coalition, http://kywins.com/our-coalition (last visited February 23, 2014).

A New Approach to Regulating Tobacco Use

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By: Jake Thompson, Staff Member

In New York City, tobacco users will be facing a new tobacco ordinance, which will go into effect March 19, 2014.[i] This ordinance contains many parts and new requirements that include, among other things, higher fines for illegal tobacco sales and even a price floor on a pack of cigarettes of $10.50.[ii] On the same day this ordinance was passed, another ordinance was also passed, which increased the minimum age for purchasing tobacco products from 18 to 21.[iii] Surprisingly, however, none of these restrictions have drawn the ire of store owners and tobacco companies as much as a part of the ordinance that basically bans the use of coupons and promotional discounts for tobacco products, as evidenced by a lawsuit challenging this latter requirement of the ordinance but not any of the other requirements.[iv] Interestingly, while the price floor only applied to cigarettes, the ban on coupons applied to all tobacco products.[v]

Challenging the ordnance alongside a slew of tobacco companies are the New York Association of Convenience Stores and the Bodega Association of the United States.[vi] They are challenging the so-called “coupon ban” on the grounds that the ban violates the First Amendment rights of the plaintiffs by limiting their ability to communicate truthful and lawful discount information about their products to their customers.[vii] While noting that these grounds alone should be sufficient to strike down the ordinance, the plaintiffs further argue that the Federal Cigarette Labeling and Advertising Act and other state law preempt the ordinance.[viii] The argument is basically that the Federal and state laws already regulate the sale of tobacco products, and promotions and these existing laws take precedence over local laws that might be passed, including laws that impose broader restrictions.[ix]

While some might be inclined to dismiss the lawsuit as just another example of tobacco companies protecting their bottom line, it must be remembered that in this lawsuit, neither the price floor on cigarettes nor the minimum age increase have been challenged.[x] The plaintiffs, which, again, include convenience store trade associations, are only trying to protect what they believe is a constitutional right. Further, as a more practical matter, tobacco users in the year 2014 are certainly aware of the plethora of studies touting the harmful effects of all tobacco use in all of its forms. Tobacco users also are faced with fewer and fewer places across the country that even allow smoking or the use of smokeless tobacco. If users continue to consciously make the choice to purchase and use tobacco products, should it really be a government prerogative to prevent them from using a coupon to purchase a can of snuff or a $10.50 pack of cigarettes?
_________________
[i] Greg Ryan, Tobacco Companies Sue NYC to Kill Coupon, Discount Ban, Law360.com (Jan. 31, 2014, 6:36 PM), http://www.law360.com/articles/505922/tobacco-companies-sue-nyc-to-kill-coupon-discount-ban.
[ii] Id.
[iii]Id.
[iv]Id.
[v] Tobacco Companies Sue to Block NYC Law Banning Cigarette Coupons, Discounts, The Republic (Jan. 30, 2014, 5:40 PM), http://www.therepublic.com/view/story/1497f39c14e149499b7decef67d69f35/US--NYC-Cigarette-Prices
[vi]Charlie Minato, Press Release: NATO Files Lawsuit Over New York City Over Tobacco Discount Law, Halfwheel.com (Jan. 30, 2014), http://halfwheel.com/press-release-nato-injunction-new-york-city-over-tobacco-discount-law
[vii] Ryan, supra note i.
[viii] Id.
[ix] Id.
[x] Id.

No One Wants a Lame Horse: The Positive Effects of Gene Therapy on Equine Osteoarthritis

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By: Whitney Stepp, Staff Member

Osteoarthritis (OA) is a degenerative and career-compromising disease in horses that is often emotionally and financially draining for owners. [i] OA a painful, incurable condition primarily characterized by the progressive destruction of articular cartilage[ii] and is also responsible for up to 60% of lameness in performance and pleasure horses.[iii] Equine lameness “is mild or severe loss of ability to move normally that can be caused by problems in a horse’s bones, muscles, nerves, tendons, ligaments, brains, circulation, and metabolism.”[iv] The majority of horse lameness problems occur in the foot,[v] which impairs their ability to do what they were in most cases purchased to do. Thus, it’s in a horse owner’s best interest to not only be aware of the symptoms of OA, but knowledgeable of the most effective treatments.

As with any medical diagnosis, progression of osteoarthritis can be slowed down with early corrective treatment.[vi] There are currently many symptomatic treatment options that veterinarians utilize to relieve clinical signs of Osteoarthritis, such as: prescription medications, icing, pressure wraps, exercise protocols, and dietary management to name a few.[vii] Unfortunately, while the current treatment options relieve clinical signs of OA, they have not been shown to prevent progression. [viii]

In a recent study, conducted by Dr. Ashlee Watts, DVM, an assistant professor at the Texas A & M College of Veterinary Medicine & Biomedical Sciences, a type of gene therapy, (using genes to treat or prevent disease), combined with mesenchymal stem cells, (MSC), was shown to reduce the progression of OA.[ix] The study consisted of thirteen mature Thoroughbreds in the early stages of experimentally induced OA, in all cases affecting the middle carpal bone that is located in knee.[x] Fourteen days after induction, seven horses received placebo injections to treat their OA, while the other six horses received the MSC and gene therapy injections in the affected joints.[xi] Dr. Watts admits that the process is complex, but in simple terms, she utilized gene therapy to augment stem cells to reduce destructive pathways in the joint and increase healing pathways.[xii]

The key results of the study revealed that there were no adverse effects of treatment with the combination of MSC and gene therapy. More importantly, in the week following treatment the researchers[xiii] observed significant improvements in range of motion and joint swelling in the joints treated, as compared to those that only received the placebo drug.[xiv] Also, the joints that were treated had reduced scarring on the joints and higher glycosaminoglycan levels that protect degenerating cartilage. Further, there was improved cartilage matrix gene expression, which is responsible for absorbing shock during weight bearing.[xv] Basically, the building/healing growth factor increased in production, improving soft tissue healing and reducing scar tissue formation, which in allows for more normal movement of the effected joints,[xvi] thus more activity for the injured horse.

Dr. Watts concluded that OA progression was significantly reduced in her model. [xvii] She also believes that “the stem cells may be the keep to major treatments without the gene therapy.”[xviii] It should be noted that further testing is needed in the area of gene therapy and equine clinical practices. With more experimentation and a potential third testing group that only received stem cells as opposed of the combination, researchers may discover major treatment improvements that lead to a complete stop in progression.

Essentially, the use of gene therapy is still in its infancy stages when it comes to clinical practices in equine medicine.[xix] However, more exploration into the possibilities for the use of gene therapy to treat equine injuries would be beneficial to horse owners in Kentucky and across the nation.
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[i] Blood-Horse Publications, Equine Osteoarthritis, Ask the Vet Live, (2014), www.thehorse.com/ask-the-vet/29970/equine-osteoarthritis .
[ii] Erica Larson, Gene Therapy, Stem Cells’ Effects on Equine Osteoarthritis, (Feb. 8, 2014), www.thehorse.com/articles/33350/gene-therapy-stem-cells-eefects-on-equine-osteoarthritis.
[iii] Vetoquinol, Equine Osteoarthritis, Osteoarthritis Fact Sheet, www.equistro.com (last visited February 15, 2014).
[iv] PetMed Express, What is Horse Lameness, (2014), www.1800petmeds.com/education/what-is-horse-lameness-52.htm.
[v] Id.
[vi] Vetoquinol, supra note iii.
[vii] Id.
[viii] Larson, supra note ii.
[ix] Id.
[x] Id.
[xi] Id.
[xii]Erica Larson, Gene Therapy, Stem Cells’ Effects on Equine Osteoarthritis, (Feb 11, 2014), www.farms.com.
[xiii] Id.
[xiv] Erica Larson, Gene Therapy, Stem Cells’ Effects on Equine Osteoarthritis, (Feb. 8, 2014), www.thehorse.com/articles/33350/gene-therapy-stem-cells-eefects-on-equine-osteoarthritis.
[xv] Id.
[xvi] Id.
[xvii] Id.
[xviii] Id.
[xix] Id.

Products Liability Action Against Manufacturers and Retailers of Synthetic Marijuana in Kentucky

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By: Scarlett Steuart, Staff Member

Since its appearance in 2006, the use of synthetic marijuana, commonly known as “Spice,” has been on the rise.[i] Spice is a combination of herbs laced with synthetic chemicals, and when used, it produces a similar experience as marijuana.[ii] The Spice label only includes the warning “not for human consumption.”[iii] As a result of the marketing and labeling of synthetic marijuana, primarily young people are being injured. With the criminal law system struggling to keep up with the rapid development and changes of synthetic marijuana, products liability law may be an option of redress. Focusing on Kentucky law, a controversial issue exists as to whether or not a products liability claim for synthetic marijuana is currently permissible.

In 1966, the Kentucky Court of Appeals recognized strict liability in the case Dealers Transport Company v. Battery Distributing Company.[iv] In 1978, the Kentucky General Assembly enacted the Products Liability Act of Kentucky.[v] The Act’s scope is broad and is intended to apply to all products liability claims.[vi] The Act also creates certain presumptions of non-defectiveness, until rebutted by a preponderance of the evidence, based upon time periods.[vii] Additionally, the Act seeks to limit who may be held liable.[viii] If a manufacturer is identified and subject to the jurisdiction of the court, those in the chain of distribution, such as wholesaler distributors or retailers, may avoid liability.[ix] However, a defendant in the chain of distribution may be held liable if they knew or should have known that the product was defective and unreasonably dangerous to the consumer.[x]

The issue in a synthetic marijuana products liability claim is whether the cautionary language of “not for human consumption” constitutes an adequate warning in the light of the foreseeable use and user of the product. In order to be found defective, the plaintiff would be required to show that the risks posed by consuming synthetic marijuana outweigh the manufacturer’s burden of including additional warnings on the synthetic marijuana’s packaging.[xi] The Kentucky courts might consider the warning inadequate because it is not proportional to the potential risks. The warning fails to provide adequate notice of the possible dangers of misusing the product and consumption, which includes the symptoms of rapid heart rate, vomiting, confusion, hallucinations, withdrawal, and addiction symptoms.[xii] If the warning is deemed inadequate, then the synthetic marijuana was sold in a defective condition unreasonably dangerous.

Additionally, wholesale distributors and retailers may be held liable since they have been alerted to the fact that the synthetic marijuana contains an inadequate warning regarding its consumption. Distributors and retailers, such as gas stations, are aware, or should be aware, that packaging only contains the warning “not for human consumption” and that many young people are purchasing synthetic marijuana and suffering from adverse health effects due to consumption. By failing to take action, Kentucky courts may be willing to hold wholesale distributors and retailers liable along with the manufacturers.
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[i]National Institute on Drug Abuse. DrugFacts: Spice (Synthetic Marijuana), 1, available at http://www.drugabuse.gov/publications/drugfacts/spice-synthetic-marijuana (revised December 2012).
[ii] Id.
[iii] Id.
[iv] Dealers Transport Co. v. Battery Distributing Co., 402 S.W.2d 441, 445–46 (Ky. App. 1965).
[v] KRS 411.300-411.350.
[vi] KRS 411.300(1).
[vii] KRS 411.310.
[viii] KRS 411.320.
[ix] KRS 411.340.
[x] Id.
[xi] See Nichols v. Union Underwear Co., Inc., 602 S.W.2d 429, 433 (Ky. 1980).
[xii] National Institute on Drug Abuse. DrugFacts: Spice (Synthetic Marijuana). http://www.drugabuse.gov/publications/drugfacts/spice-synthetic-marijuana (last revised December 2012).

I Love the Smell of Licorice in the Morning: Public Water Systems Protection after Freedom Industries

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By: Stephen F. Soltis,[1] Staff Member

John Denver once asked for the country roads to take him home to West Virginia. However, after January 9, 2014, Mr. Denver may be less enthralled to return to the Mountain State. The morning of January 9, 10,000 gallons of 4-methylcyclohexane methanol (MCHM), a licorice smelling chemical that is used to process coal, leaked from a storage tank at Freedom Industries near Charleston, West Virginia.[2] Freedom Industries was located directly on the Elk River and was approximately one mile upstream from the West Virginia American Water Company’s (WVAM) municipal water intakes.[3] The MCHM entered the intakes and contaminated the tap water of 300,000 West Virginia residents.[4]

Within hours of the spill, multiple businesses filed lawsuits against Freedom Industries and WVAM.[5] However, these legal measures are largely remedial, and can only compensate for the economic harm already incurred. Congressional and state lawmakers should examine the cause of the leak, determine whether the subsequent contamination of the Kanawha Valley’s drinking water was the result of regulatory gaps, and whether these gaps should be closed.

MCHM did not fit within the existing federal statutory framework designed to protect the environment. The Clean Water Act primarily regulates intended discharges into the “waters of the United States.”[6] However, the Freedom Industries incident was an accident.[7] The Safe Drinking Water Act (SDWA) utilizes health-based standards to control the amount of pollutants in drinking water,[8] but the SDWA does not define MCHM.[9]

There are two proposals pending that, if adopted, may prevent another Freedom Industries incident. The first proposal involves amending the Toxic Substances Control Act (TSCA) by creating stricter oversight of permitted industrial chemicals, including MCHM.[10] However, amending TSCA would likely have far reaching consequences on the industry, and political pressure would likely defeat strict regulations.

The second proposed action is the Chemical Safety and Drinking Water Protection Act of 2014 introduced by Senators Manchin, Boxer, and Rockefeller.[11] This pending legislation would amend the SDWA and require states or the Administrator to create “a chemical storage facility source water protection program.”[12] This program protects “public water systems” from releases of chemicals from facilities covered within the Act.[13] The Act establishes minimum requirements for the program, including “leak detection”, “spill and overfill control”, and “an emergency response and communication plan.”[14]

An ongoing concern with MCHM is that a safe level of exposure has yet to be defined.[15] The Material Safety Data Sheet for MCHM lacks key information regarding MCHM’s dose toxicity and germ cell mutagenicity.[16] The proposed drinking water safety bill directly addresses this concern by requiring notice “to the Administrator” or “the appropriate State agency” of “the potential toxicity of stored chemicals to humans and the environment.”[17]

The proposed legislation is a proactive approach that safeguards public water supplies. The bill requires identification of facilities that could potentially release chemicals into public waters, and establishes a regulatory regime to safeguard against these facilities contaminating the public water system.[18] By requiring increased control over chemical facilities near public water sources, the Act is a first step in safeguarding the water that runs alongside those country roads, and restoring West Virginians’ peace of mind.
_________________
[1] J.D. Candidate, May 2015, University of Kentucky College of Law. The author would like to thank Professor Michael Healy for his guidance in navigating this emerging topic.
[2] 2014 West Virginia Chemical Spill, CDC.gov, http://emergency.cdc.gov/chemical/MCHM/westvirginia2014/index.asp (last visited Feb. 11, 2014).
[3] Id.
[4] Id.
[5] Kate White, Lawyers seek to consolidate water lawsuits, W.V. Gazette, (Jan. 12, 2014), http://www.wvgazette.com/News/201401120046?page=2.
[6] See Clean Water Act, 33 U.S.C. § 1251 (1976).
[7] Brad Plumer, Five big questions about the massive chemical spill in West Virginia, Wash. Post, (Jan. 21, 2014), http://www.washingtonpost.com/blogs/wonkblog/wp/2014/01/21/five-big-questions-about-the-massive-chemical-spill-in-west-virginia/.
[8] See Safe Drinking Water Act, 42 U.S.C. § 300(f).
[9] Id.
[10] Joel Achenbach, W.Va. chemical spill poses a new test for lawmakers, Wash. Post, (Jan. 19, 2014), http://www.washingtonpost.com/national/health-science/west-virginia-chemical-spill-in-elk-river-poses-a-new-chemistry-test-for-lawmakers.
[11] Chemical Safety and Drinking Water Act, S. 1961, 113th Cong. (2014).
[12] Id. at § 1472(a).
[13] Id.
[14] Id. at § 1472(b).
[15] Ken Ward Jr., Questions remain about MCHM screening level, W.V. Gazette, (Feb. 8, 2014), http://www.wvgazette.com/News/201402080047.
[16] Achenbach, supra note 10.
[17] Chemical Safety and Drinking Water Act, S. 1961, 113th Cong. § 1472 (2014).
[18] See Id.

What’s In Your Trash?

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By: Jazmin Smith, Staff Member

I admit it. I am guilty of buying too many bananas on occasion and letting them go to waste, but haven’t we all done it? Americans throw away anywhere from twenty-nine to forty percent of food produced each year,[i] and nine out of ten families are guilty of needlessly throwing away food.[ii] Food makes up the largest percentage of waste in landfills.[iii] It also has the lowest recovery rate of any material, and produces methane, which contributes to greenhouse gas emissions.[iv] While fifty million Americans are food insecure,[v] so much food goes to waste, and confusing date labeling is one of the contributing factors.

It turns out, that expiration and “sell by” dates have very little bearing on food safety. The dates are merely suggestions from manufacturers for when food is at its “peak quality.”[vi] One of the many problems associated with food labeling is the lack of federal standards and the variability of local rules. Moreover, inconsistent policies harm manufacturers and cause waste at the manufacturer/retail level.[vii] Finally, labeling frustrates recovery and redistribution programs, as it makes handling past-dated products difficult and legally complex.[viii]

The Natural Resources Defense Council prescribes several improvements that could be made to the labeling system. First, “sell by” dates are not for consumers, so they shouldn’t be visible to them.[ix] Those dates are for retailers, and they tend to only confuse consumers. The next step is establishing a more clear and uniform system. Using uniform language and a more consistent date selection method for manufacturers could achieve this.[x] Packages should also include more safety information, such as time-temperature indicators.[xi] Products could contain a safety label or a QR code that consumers mat scan if they would like more information.[xii]

Better labeling alone cannot end the food waste problem because consumers tend to have a “better safe than sorry” attitude. This is where food recovery programs come in. Manufacturers and consumers are wary about donating past-dated food because they don’t want to become liable for outbreaks of foodborne illness, but the Bill Emerson Good Samaritan Food Donation Act actually absolves liability of those who donate to nonprofit organizations.[xiii] The Food Recovery Project at the University of Arkansas School of Law brings awareness to the protection of the Bill Emerson Act and encourages food donation/recovery. Several ways to achieve recovery include: turning table scraps into animal feed, composting, mindful grocery shopping, more creative menus (Freeze those brown bananas and make banana bread!), and advanced meal planning.[xiv]

Food waste is an issue that most of us don’t even contemplate when we toss out those eggs that are two weeks past the “expiration” date, but with a little bit of research and planning, it is something that can easily be reduced. Food recovery helps food-insecure families and provides an opportunity to put food waste back into food production through composting. Next time you clean out your pantry, consider whether the product is really expired, and if it is, consider whether there is an alternative way to use it.
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[i] James Haley, The Legal Guide to the Bill Emerson Good Samaritan Food Donation Act, University of Arkansas School of Law (Aug. 8, 2013), http://media.law.uark.edu/arklawnotes/2013/08/08/the-legal-guide-to-the-bill-emerson-good-samaritan-food-donation-act/.
[ii] The Dating Game: How Confusing Food Date Labels Lead to Food Waste in America, National Resources Defense Council (Oct. 22, 2013), http://www.nrdc.org/food/expiration-dates.asp.
[iii] James Haley, The Legal Guide to the Bill Emerson Good Samaritan Food Donation Act, University of Arkansas School of Law (Aug. 8, 2013), http://media.law.uark.edu/arklawnotes/2013/08/08/the-legal-guide-to-the-bill-emerson-good-samaritan-food-donation-act/.
[iv] Id.
[v] Food Recovery: A Legal Guide, University of Arkansas School of Law, http://law.uark.edu/documents/2013/06/Legal-Guide-To-Food-Recovery.pdf.
[vi] The Dating Game: How Confusing Food Date Labels Lead to Food Waste in America, National Resources Defense Council (Oct. 22, 2013), http://www.nrdc.org/food/expiration-dates.asp.
[vii] Id.
[viii] Id.
[ix] Id.
[x] Id.
[xi] Id.
[xii] Id.
[xiii] James Haley, The Legal Guide to the Bill Emerson Good Samaritan Food Donation Act, University of Arkansas School of Law (Aug. 8, 2013), http://media.law.uark.edu/arklawnotes/2013/08/08/the-legal-guide-to-the-bill-emerson-good-samaritan-food-donation-act/.
[xiv] The Dating Game: How Confusing Food Date Labels Lead to Food Waste in America, National Resources Defense Council (Oct. 22, 2013), http://www.nrdc.org/food/expiration-dates.asp.

Just Say No…To High Risk Antibiotics

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By: Amelia Sandot, Staff Member

The saying goes “you are what you eat,” but we don’t really think about what keeps our food healthy enough to be eaten. The focus seems to be on the quality of food we feed the animals we later plan on consuming. Recently, however, the concern seems to be shifting towards the medicine we are giving our food. According to a recent National Public Radio (NPR) article, many years ago the Food and Drug Administration (FDA) found that many of the common antibiotics still fed to our animals pose a “high risk” to humans.[1]

From 2001 to 2010, the FDA conducted a study on some 30 types of previously approved antibiotics for animals, such as chickens, cows, and pigs.[2] Of the 30 antibiotics studied, 18 were found to be unsafe for human consumption because of the risk that they could introduce “antibiotic-resistant bacteria.”[3] Since the conclusion of the study, the FDA has done little to nothing to stop the use of these antibiotics on animals, says the National Resources Defense Council (NRDC), the group who released the documents containing the FDA’s conclusions.[4] According to the NRDC’s report, none of the 30 antibiotics tested would be approved as new drugs if they were introduced today under the 2003 FDA guidelines.[5]

The problem with the antibiotics is that they are not being used to cure the animals of diseases but are instead being used so that the animals eat more and grow quicker.[6] This abuse of the antibiotics creates bacteria that resist the antibiotics and can be transferred to humans who use similar antibiotics to fight disease.[7] This creates a serious problem when there is a disease outbreak and known antibiotics cannot be used as the cure.

As of late, the FDA is beginning to “phase out” the use of the antibiotics as growth stimulants.[8] The FDA has released rules, which prohibit the use of antibiotics for anything other than disease prevention.[9] The new rules also require that a veterinarian monitor all antibiotic use.[10] It is reassuring to see that steps are being taken to guarantee that the foods we consume are safe and healthy because anything labeled “high risk” probably should not be eaten.
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[1] Carmen Cordova, Playing Chicken with Antibiotics: Previously Undisclosed FDA Documents Show Antibiotic Feed Additives Don’t Meet the Agency’s Own Safety Standards, NRDC Issue Brief, 2, (2014), http://www.nrdc.org/food/saving-antibiotics/files/antibiotic-feed-fda-documents-IB.pdf.
[2] Dan Charles, FDA Found Drugs Used in Food Animals to be ‘High Risk,’ Food for Thought (Jan. 28, 2014, 10:37 AM), http://www.npr.org/blogs/thesalt/2014/01/27/267225093/fda-found-drugs-used-in-food-animals-to-be-high-risk.
[3] See Cardova, supra note 1, at 6.
[4] See Charles, supra note 2.
[5] See Cordova, supra note 1, at 7.
[6] See Charles, supra note 2.
[7] Id.
[8] Id.
[9] Webinar to Address FDA Decision on Antibiotics Use in Food Animals, Farm.com, (2014), http://www.farms.com/news/webinar-to-address-fda-decision-on-antibiotics-use-in-food-animals-71420.aspx.
[10] Supra.

Living In Fear: The Impact Of The Patient Protection & Affordable Care Act On American Farmers

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By: Rictrell Pirtle, Staff Member

Paul Nord is a small-town crop farmer in Indiana who was injured during a routine farming exercise.[1] Paul’s 600-pound mower crushed two of his toes while he performed an act that he had done thousands of times before.[2] Unfortunately, Paul’s story is not unique to farmers. Paul is one of many farmers who routinely injury themselves in farming related accidents.[3] Many of these farmers either do not have health care coverage or have high health insurance premiums. This has left many farmers, like Paul, worrying about paying unbridled amounts in hospital bills. This is where the Patient Protection and Affordable Care Act (ACA) helps. It provides low-cost health insurance for many Americans who may not have otherwise been able to afford health insurance. This is a welcomed surprised to many farmers who fear bankruptcy due to hospital bills.

The Patient Protection and Affordable Care Act became effective on January 1, 2014.[4] This act seeks to provide lower-cost health insurance for millions of Americans.[5] Specifically, it expands Medicaid coverage to low-income individuals in states that decide to expand their Medicaid programs.[6] The ACA pays special attention to farmers and other individuals living in rural areas.[7] First, farm families are eligible for group rates, which ensures that all members of the family are insured regardless of their working status or pre-existing conditions.[8] Second, the ACA provides cost sharing assistance for individuals below 250 percent of the federal poverty line.[9] “Cost-sharing assistance increases an insurance company’s share of covered medical benefits by reducing out-of-pocket costs for certain lower income individuals and families.”[10] Third, the ACA provides tax credits for individuals with income between 100 and 400 percent of the federal poverty line.[11] This credit reduces health insurance premiums or reduces the carrier’s federal tax liability.[12] Lastly, small businesses with fifty or fewer employees are eligible for tax credits for providing health insurance to their employees.[13] These benefits have been a welcome surprise to many farmers, like those here in the Bluegrass State.

Farming provides financial stability for many Kentuckians. Like all Americans, Kentucky farmers want to enjoy a life free of financial woes. The ACA provides Kentucky farmers with a sense of security that if a health crisis occurs they will be covered. They will no longer have to decide between paying for medical costs and providing for their families. Accidents like Paul’s will no longer threaten to bankrupt Kentucky farm families.

Farming is a dangerous job and accidents can occur in an instant.[14] The threat of injury often looms in the minds of farmers and their families. The ACA helps farmers worry less about paying high amounts for hospital bills. It provides a safety net for the people who feed America.
 _________________
[1] Sehvilla Mann, Affordable Care Act’s Impact on Hoosier Farmers Uncertain, Indiana University School of Journalism, http://journalism.indiana.edu/studentwork/gallery/affordable-care-acts-impact-on-hoosier-farmers-uncertain/ (last visited Jan. 25, 2014).
[2] Id.
[3] Agricultural Safety, Center for Disease Control and Prevention, http://www.cdc.gov/niosh/topics/aginjury/ (last visited Jan. 25, 2014).
[4] Patient Protection and Affordable Care Act, Pub. L. No. 148, 124 Stat. 119.
[5] Id.
[6] Id.
[7] Id.
[8] Patient Protection and Affordable Care Act, Pub. L. No. 148, 124 Stat. 119; See also Mike Rosmann, Can Affordable Care Act Benefit Farm, Rural Residents, Iowa Farmer Today, Sept. 19, 2013, available at http://www.iowafarmertoday.com/feature/columnists/farm_and_ranch_life/can-affordable-care-act-benefit-farm-rural-residents/article_a86ba224-2160-11e3-8fc8-001a4bcf887a.html.
[9] Jon M. Bailey, Making Health Insurance Affordable: Assistance
to Individuals and Families in the Affordable Care Act, Center for Rural Affairs, Aug. 2013, at 5.
[10] Id.
[11] Id. at 2.
[12] Id. at 3.
[13] Mike Rosmann, Can Affordable Care Act benefit farm, rural residents, Iowa Farmer Today, Sept. 19, 2013, available at http://www.iowafarmertoday.com/feature/columnists/farm_and_ranch_life/can-affordable-care-act-benefit-farm-rural-residents/article_a86ba224-2160-11e3-8fc8-001a4bcf887a.html.
[14] Agricultural Safety, Center for Disease Control and Prevention, http://www.cdc.gov/niosh/topics/aginjury/ (last visited Jan. 25, 2014).

The Cold, Hard “Hoof” About Zilmax

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By: Young-Eun Park, Staff Member

What does it feel like to have your toenails yanked off?[i] Ask the 75 cows that lost their hooves last year. It all started in August 2013, when employees at the Tyson Foods Inc. slaughterhouse noticed that 17 cows were hobbling down the ramps of the cattle trailer.[ii] The reason? Their hooves were “basically coming apart.”[iii] All seventeen animals were euthanized.[iv]

The seventeen animals had one aspect in common: in the weeks before the cattle were shipped to the slaughterhouse, all had been fed Merck & Company’s feed additive, Zilmax.[v] Zilmax is a supplement that makes cattle gain extra weight.[vi] During its manufacture, an estimated 70 to 80 percent of the US cattle herd was being fed Zilmax or its substitute.[vii] However, shortly after discovery of the crumbling hooves, Merck suspended sales in the US and Canada and promised to do research to determine whether Zilmax was the cause of these disturbing side effects.[viii]

This January, after a third-party investigation, Merck announced that it will resume sales of Zilmax since the “hoof loss was not due to the fact these animals had received Zilmax.”[ix]

Merck’s study draws a sigh of relief until the evidence is actually analyzed. First, Merck declined to identify the name of the third-party investigators or provide more detail on the findings[x], which makes a mysterious study backed by a company with $160 million in sales at stake[xi] completely useless. In fact, statistics point very convincingly towards Zilmax as being the culprit for cattle’s crippling side effects: in the two years after Zilmax was introduced, the number of cattle euthanized before slaughter rose nearly 175 percent from previous levels.[xii] The current plateau is at 1,600 to 2,300, well above the average of 670 a year in the four years before Zilmax’s 2007 debut.[xiii] Meatpacking plants and other countries are calling Merck’s bluff, with Tyson and Cargill refusing to accept Zilmax-fed cattle until Merck can prove that it’s safe,[xiv] and China refusing to accept meat from cattle fed with Zilmax.[xv]

Both Merck and the FDA insist that Zilmax-fed cattle are perfectly safe to consume, but that is not the issue.[xvi] Whether safe or not, Zilmax causes severe and unnecessary suffering in cattle. Already banned for use in horses because of the severe side effects,[xvii] cows experiencing lost hooves take tentative steps, as if walking on glass, and even when prodded, they refuse to rise to their feet.[xviii] These cows are inevitably euthanized, and neither the wellbeing of the animal nor its purpose of human consumption is ever realized. Echoing this view, both Tyson[xix] and Cargill have stated that their refusal to accept Zilmax-fed cows is not a food safety issue, but linked to its commitment to ensure the welfare of cattle harvested in the industry.[xx]

In an already mechanized and industrialized food industry, some weight should be given to animal treatment, even if the end product is safe to consume. Animal welfare is an important and integral part of animal agriculture and should be considered when making decisions about what we feed to livestock. Furthermore, while Zilmax-fed cows may be safe to consume at the outset, there is no telling what long-term effects the drug will have on humans. In the meantime, meatpacking plants, farmers, and other involved industries should refuse to use Zilmax even after its reintroduction into the market. That way, we won’t ever have to wonder what it feels like to live without toenails, and thankfully, cattle won’t have to experience it either.
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[i] P.J. Huffstutter and Tom Polansek, Lost hooves, dead cattle before Merck halted Zilmax sales, AGWEEK (Jan. 6, 2014), http://www.agweek.com/event/article/id/22402/#sthash.sYuGa8CH.dpuf.
[ii] Tracy Staton, Mulling a Zilmax relaunch, Merck faces reports of hoofless cattle and skeptical customers, FIERCE PHARMA (Jan. 2, 2014), http://www.fiercepharma.com/story/mulling-zilmax-relaunch-merck-faces-reports-hoofless-cattle-and-skeptical-c/2014-01-02.
[iii] See Huffstutter, supra note 1.
[iv] See Staton, supra note 1.
[v] See Huffstutter, supra note 1.
[vi] Zilmax, Merck Animal Health (last visited January 22, 2014), http://www.merck-animal-health-usa.com/products/zilmax/overview.aspx.
[vii] Cargill’s view on Zilmax being pulled from the market, Cargill (last visited January 22, 2014), http://www.cargill.com/news/cargill-view-on-zilmax-being-pulled-from-the-market/index.jsp.
[viii] See Huffstutter, supra note 1.
[ix] Lance Turner, Reuters: Lost Hooves Prompted Tyson Foods to End Use of Zilmax, ARKANSAS BUSINESS (Jan. 6, 2014), http://www.arkansasbusiness.com/post/96448/reuters-lost-hooves-prompted-tyson-foods-to-end-use-of-zilmax.
[x] See Huffstutter, supra note 1.
[xi] See Staton, supra note 1.
[xii] See Huffstutter, supra note 1.
[xiii] Id.
[xiv] See Staton, supra note 1.
[xv] Id.
[xvi] See Huffstutter, supra note 1.
[xvii] Dr. Mercola, Merck Continues Promoting Zilmax, Despite Cattle Losing Their Hooves, Mercola.com (Jan. 15, 2014), http://articles.mercola.com/sites/articles/archive/2014/01/15/zilmax-beta-agonist-drug.aspx.
[xviii] See Huffstutter, supra note 1.
[xix] Mercola, supra note 1.
[xx] Cargill, supra note 1.