2017

Scents: The Unconventional Potential for Trademarks

Amber Peterson, MJLST Staffer

Trademarks are intended to create an immediate brand recognition in the consumer’s mind. Consumers who are satisfied with a product must have a way to easily distinguish it from nearly identical or similar products from competitors. Thus, trademarks play a powerful role in branding and marketing as seen in the Nike “swoosh” and the Target bullseye. These traditional marks or logos are what are typically thought of when thinking about trademarks. However, unconventional trademarks such as the catch phrase “Hasta la Vista Baby” from the film, “The Terminator” and the red color of Christian Louboutin soles can be just as effective to identify a product or service.

The key requirement is distinctiveness. If a product can be thought of as inherently distinctive, it can be trademarked. Thus, the United States Patent and Trademark Office allows the trademarking of a scent since scent is distinctive in that it is deeply tied to memory recognition. Although this option is available, few have accomplished the task since the Patent and Trademark Office has put strict boundaries around what smells qualify.

First, the scent must serve no important practical function other than to help identify and distinguish the brand. This means that those smells whose only purpose is smell-related, such as perfumes and air fresheners, cannot receive scent trademark protection. Second, a detailed written description of the non-visual mark is required to complete the registration process. The problem with scents is the subjective nature of them. The perception of smell can be very different among a number of noses and is thus open to interpretation. This creates difficulty in successfully representing the scent graphically which is required to determine whether something is or is not appropriate for a trademark.

To date, there are only about 12 scent trademarks in the United States (e.g., the flowery musk smell in Verizon Wireless stores and the pina colada scent that a ukulele company scents its ukuleles with). As evidenced, the process of registering a scent can be challenging. However, there are marketing advantages that may make it worthwhile if the product or service resonates more deeply with a consumer compared to a typical visual mark or logo trademark.


Artificial Wombs and the Abortion Debate

Henry Rymer, MJLST Staffer

In a study published in the latter part of April 2017, a group of scientists reported that they had created an “extra-uterine system” that assisted in the gestation, and eventual birth, of several fetal lambs. This device, which houses the fetus in a clear plastic bag, is filled with a synthetic amniotic fluid that flows in and out of the bag through a pump system. While inside this artificial womb, the fetus is attached to a machine outside of the bag by its umbilical cord. This machine is used for several purposes: providing nutrition to the fetus, giving the fetus necessary medication, providing the blood of the fetus with a blend of air, oxygen and nitrogen, and removing carbon dioxide from the bloodstream. The scientists report that in housing the premature lamb fetuses in this system, the scientists were able to “maintain stable haemodynamics, have normal blood gas and oxygenation parameters, and maintain patency of the fetal circulation” within the fetuses. Additionally, the scientists report that the fetal lambs subject to this test were able to demonstrate “normal somatic growth, lung maturation and brain growth and myelination.” The scientists’ report that they believe that this extra-uterine system would not be relegated only to animal use, as they believe that the device could support a premature human infant “for up to four weeks.”

With the advent of this new piece of neonatal technology, specifically with the implications of what this invention (and others like it) would have on fetal development for humans, the artificial womb poses the power to completely shift the paradigm in regards to how the abortion debate is framed. In particular, the impact that this invention will have when combined with American jurisprudence will surely be a new point of contention between Pro-Abortion activists and their Anti-Abortion counterparts.

With the Supreme Court case of Planned Parenthood v. Casey, SCOTUS re-enshrined the thesis of Roe v. Wade: namely that women have the right to have an abortion prior to the viability of the fetus. Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 846. The Casey court also stated that states have the power to “restrict abortions after fetal viability, if the law contains exceptions for pregnancies which endanger the woman’s life or health” and that the “State has a legitimate interest from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child.” Id.

The arguments that arise from the advent of an artificial womb in conjunction with case law flows from the notion of what a “viable” fetus would be after extra-uterine systems become more mainstream and sophisticated. If these machines develop to a point in which they can take a fetus the moment after conception and develop it for its entire gestation period, will abortion procedures become completely outlawed? Will “viability” remain the measure by which a fetus is distinguished from a human, or will a new metric be invented to replace “viability?” Additionally, will this be a problem that the courts will have to answer? The legislature? Or a combination of both? The invention of artificial wombs seems to be a periphery legal issue that will not have to be answered for some time yet. However, there are many questions that need to be answered as technology improves and develops, and the abortion debate will not be a topic that will remain untouched as humanity moves into the future.


The Future of AI in Self-Driving Vehicles

Kevin Boyle, MJLST Staffer

 

Last week, artificial intelligence (AI) made a big splash in the news after Russian President Vladimir Putin and billionaire tech giant Elon Musk both commented on the subject. Putin stated that whoever becomes the leader in artificial intelligence (AI) will become “the ruler of the world.” Elon Musk followed up Putin’s comments by declaring that competition for AI superiority between nations will most likely be the cause of World War III. These bold predictions grabbed the headlines; but in the same week, Lyft announced a new partnership with a company that produces AI for self-driving cars and the House passed the SELF DRIVE Act. The Lyft deal and the House bill are positive signs for investors of the autonomous vehicle industries; however, the legal landscape remains uncertain. As Putin and Musk have predicted, AI is certain to have a major impact on our future, but current legal hurdles exist before AI’s applications in self-driving vehicles can reach its potential.

 

One of the legal hurdles that currently exists is the varying laws between state and federal authorities. For example, Companies such as Google and Ford would like to introduce cars with no pedals or steering wheels that are operated entirely by AI. However, most states still require that a human driver be able to take “active physical control” of the car to manually override the autonomous vehicle. This requires a steering wheel and brakes, which would make those cars illegal to operate. At the federal level, the FAA requires that commercial drones be flown by certified operators, not computers or AI. Requiring operators instead of AI to steer drones for deliveries severely limits the potential of this innovative technology. Furthermore, international treaties, including the Geneva Convention, need to be addressed before we see fully autonomous cars.

 

The bipartisan SELF DRIVE Act recently passed by the House attempts to address most of the issues created by the patchwork of local, state, and federal regulations so that AI in self-driving cars can reach its potential. The House bill proposed clear guidelines for car manufacture guidelines, clarified the role of the NHTSA in regulating automated driving systems, and detailed cybersecurity requirements for automated vehicles. The Senate, however, is drafting its own bill for the SELF DRIVE Act. This week, the Senate Commerce, Science, and Transportation Committee will convene a hearing on automated safety technology in self-driving vehicles and the potential impacts on the economy. The committee will hear testimony from car manufacturers, public interest groups, and labor unions. Some of these groups will inevitably lobby against this bill and self-driving technology for fear of the potentially devastating impact on jobs in some industries. But ideally, the Senate bill will stick to the fundamentals from the House bill, which focuses on prioritizing safety, strengthening cybersecurity, and promoting the continued innovation of AI in autonomous vehicles.

 

Several legal obstacles still exist that are preventing the implementation of AI in automated vehicles. Congress’ SELF DRIVE Act has the potential to be a step in the right direction. The Senate needs to maintain the basic elements of the bill passed in the House to help advance the use of the innovative AI technology in self-driving cars. Unlike Musk, Mark Zuckerberg has taken a stance similar to those in the auto industry, and believes AI will bring about countless “improvements in the quality of our lives,” especially in the application of AI in self-driving vehicles.

 

 


Snortable Chocolate Fails the Smell Test, But What Exactly Is It?

Tommy Tobin, MJLST Guest Blogger

 

Snorting chocolate does not sound like a good idea. In fact, it sounds downright crazy. Enter the aptly named “Coco Loko.”

As reported by the AP, Coco Loko is a cocktail of cacao powder and common energy-drink ingredients, such as guarana and taurine. Marketed by a company called Legal Lean, the product makes several bold claims and promises, including feelings similar to ecstasy and “a steady rush of euphoric energy that is great for party goers to dance the night away without a crash.” Oddly, that promised effect is juxtaposed with promises of “calm focus” and “natural relaxation.”

Legal Lean advises users to “consume responsibly.” Warnings include the all too familiar boilerplate that product statements have not been evaluated by FDA and that the products are not intended to diagnose or treat any disease. A notable product warning also advises potential customers that Coco Loko is “not recommended for children or pregnant women.” Legal Lean also notes that the product “may impair your ability to drive a car or operate machinery, and may cause health problems.” It is certainly helpful that the company recognizes that snorting a chocolate concoction up one’s nose may result in health issues and is warning potential consumers accordingly. Self magazine summarized the situation succinctly: “If it sounds like a bad idea to snort what basically amounts to glorified hot chocolate mix, you’re right.”

As the Huffington Post recently put it, “snortable chocolate exists now, for some reason.” The mere fact that this product exists raises myriad questions, not least of which is what the product actually is and how it will be regulated.

According to ABC News, FDA is currently weighing whether the product falls within its jurisdiction and is currently “not prepared to issue a determination regarding whether and how this product is subject to FDA jurisdiction at this time. In reaching that decision, FDA will need to evaluate the product labeling, marketing information, and/or any other information pertaining to the product’s intended use.”

While the intricacies of regulatory classifications are enough to make one crazy, Coco Loko’s regulatory future remains to be seen. As the administrative law bloodhounds at FDA continue their work sniffing out the proper classification for this product, here are some preliminary thoughts.

 

Is Coco Loko a Food?

Strictly speaking, probably not. The statutory definition of food, 21 U.S.C. § 321 (f), is not tremendously helpful here. The statute’s most applicable definition defines “food” as an article used for food or drink for man or other animals. Snorting something through one’s nose is not generally how most people consume their food or drink, especially as the nose is woefully devoid of taste buds.

Legal Lean may argue that an alternative use of the product is as a hot chocolate mix. Presumably, the Coco Loko powder could be used as a drink when dissolved in hot water. Even so, the company markets the product as “infused raw cacao snuff.”

The product’s marketing as “snuff” is highly suggestive that the company does not consider that the product is meant to be food, given that “snuff” is taken through the nose. Put differently, the company may huff and puff that the product is a “food,” but in the end, the stuff is “snuff” by their own admission.

 

Is it a Drug?

Possibly. Coco Loko is likely not a “drug” under 21 U.S.C. § 321 (g). One applicable definition of “drug” includes items “intended for use in the diagnosis, cure, mitigation, treatment, or prevention of disease in man or other animals.” Such an intention is expressly disclaimed by the makers of Coco Loko.

Another definition of “drug” applies to “articles (other than food) intended to affect the structure or any function of the body of man or other animals,” with a carve-out for foods and dietary supplements. Coco Loko does promise a rush of serotonin and endorphins, as well as “increased overall happiness.”

The structure or function claims made by Coco Loko could make it a “drug” if it is found to be neither a food nor dietary supplement. Put another way, the product appears to be an inhaled stimulant, and regulators could plausibly put it in the category of “drug” given the claims the product is making, in the case that the product does not fit in other categories.

 

Is it a Dietary Supplement?

It depends. Regulators could label Coco Loko as a “dietary supplement” under 21 U.S.C. § 321 (ff). Just as the definition of “food” was quite broad, so too is the statutory definition of “dietary supplements,” which helpfully notes that the term:

 

1) means a product (other than tobacco) intended to supplement the diet that bears or contains one or more of the following dietary ingredients:

(A) a vitamin;

(B) a mineral;

(C) an herb or other botanical;

(D) an amino acid;

(E) a dietary substance for use by man to supplement the diet by increasing the total dietary intake; or

(F) a concentrate, metabolite, constituent, extract, or combination of any ingredient described in clause (A), (B), (C), (D), or (E).”

 

Given the inclusion of cacao in the product, a colorable claim could be that Coco Loko contains a dietary substance used by man to supplement the diet. That said, is someone actually supplementing their diet by inhaling through their nose? Not being a doctor myself, I can only surmise that the snorted chocolate may have a circuitous path from the nose to one’s stomach—if it ends up there at all.

More on the nose, US News & World Report notes that the product’s label includes B vitamins, ginkgo biloba, blood flow-improving amino acid L-Arginine, as well as energy drink staples guarana and taurine. So, it would seem that Coco Loko would meet the vitamin and amino acid test.

Other aspects of the “dietary supplement” definition in 21 U.S.C. § 321 (ff) include that the item must not represent itself for use as a conventional food or as a sole item of a meal or the diet. “Dietary supplements” must also be labeled as such. If its labeling does not call it a “dietary supplement,” Coco Loko cannot be a “dietary supplement.” According to Ars Technica, Legal Lean is already marketing Coco Loko as a “dietary supplement.”

Incorporated by reference into the § 321 (ff) definition of “dietary supplements” is the requirement that the product be intended for ingestion under 21 U.S.C. § 350 (c)(1)(B). That section requires products be “intended for ingestion in tablet, capsule, powder, softgel, gelcap, or liquid form.” While Coco Loko is a powder, it is unlikely that it is “ingested” in the typical meaning of that term. The statutory provision also provides an alternative definition for items “not intended for ingestion in such a form” that are otherwise “not represented as conventional food and is not represented for use as a sole item of a meal or of the diet.” Both incorporated definitions are predicated on “ingestion,” and Coco Loko’s method of intake is unlikely to fit the plain meaning of “ingestion.”

By analogy, a suppository also bypasses the mouth when they are taken into the body. Even so, suppositories generally go into one end of the alimentary canal—rather than the sinuses or the lungs. Moreover, neither suppositories nor this inhaled chocolate are “ingested.” No less an authority than the Oxford English Dictionary includes a definition of “ingest” that equates ingestion with the introduction of material into the stomach or mouth.

Coco Loko faces an uphill battle getting a “dietary supplement” label given that is probably not “ingested” or intended for ingestion. According to the FDA Law Blog, “FDA has consistently taken the position that articles not intended for ingestion do not qualify as dietary supplements.” In the end, FDA may find that “ingestion” is distinct from insufflation, or the act of breathing something into the body.

Even if Coco Loko is labeled as a “dietary supplement” and met other aspects of the § 321 (ff) definition, the Secretary of Health and Human Services, pursuant to 21 U.S.C. § 342 (f), could conceivably find that it presents a “significant or unreasonable risk of illness or injury.” While unlikely, the Secretary has the authority to declare a dietary supplement so unsafe that it poses “an imminent hazard to public health or safety.” That said, do not hold your breath for such a declaration—if you do, it’d be harder to inhale the chocolate.

 

Concluding Thoughts

While the safety and propriety of snorting crystalline chocolate powder through one’s nostrils is up for debate, FDA is hard at work sniffing out the proper regulatory classification of Coco Loko.

My preliminary thought is that Coco Loko might be labeled a “dietary supplement,” given its ingredients. On the other hand, its method of delivery—through the nasal passage—is not one typically seen in dietary supplements and is unlikely to fit the “intended for ingestion” prong of the incorporated statutory definition.

Alternatively, FDA may label the product a “drug,” especially with its “structure or function” claims. Either way, if you think I’m going to go snort chocolate anytime soon—you’re loko.


U of M Asserts Sovereign Immunity Prevents USPTO from Invalidating Its Patents

Prof. Richard Stern, MJLST Guest Blogger

The University of Minnesota owns a number of patents on cell phone signal processing technology that was invented by Professor Georgios Giannakis of U of M’s Department of Electrical and Computer Engineering and his colleagues. The U of M claims that AT&T, Sprint, T-Mobile, and Cellco Partnership (a joint venture between Verizon and Vodaphone, doing business as Verizon Wireless) are infringing five of these patents, and in 2014 it sued the companies in Minnesota federal district court for patent infringement. The U of M is “a great research university,” President Eric Kaler said, and “must vigorously protect our faculty, [their] discoveries and the overall interests of our university.” (The U collects about $40 million annually in royalties from licensing and the commercialization of faculty work.) Apparently, the cell phone carriers infringed the patents by utilizing Ericsson radio chips that code signals for wireless transmission and practicing patented methods the chips performed.

 

The case was assigned to Chief Judge John R. Tunheim in Minneapolis, who denied the defendants’ motion to dismiss the case for defective pleading, in September 2015. He did reject the U’s claim, however, that the defendants engaged in “willful blindness” in infringing the patents. Judge Tunheim said that the U “alleges no actions that would constitute deliberate avoidance of knowledge” that they were infringing, although they did know of the patents and they “actively entice[d] their customers through advertising, marketing and sales activity to use [their] infringing products.”

 

Ericsson, the wireless carriers’ equipment supplier, then acted to protect its defendant customers against the U by intervening in the Minnesota infringement suit. Ericsson then filed inter partes review (IPR) proceedings in the USPTO to invalidate the U of M patents on which the U was suing the carriers. An IPR is a new type of administrative proceeding that the recent America Invents Act established to provide a swifter and supposedly cheaper way for small companies to resist demands by trolls that they pay patent tribute. Instead of engaging in district court litigation, an aggrieved party can seek an IPR before the USPTO, which then employs its patent expertise to determine whether the patents it issued are invalid, and (if so) consequently relieving the aggrieved party from infringement liability (an invalid patent cannot be infringed).

 

Here is where the complications set in. The 11th Amendment preserves state sovereign immunity against suit—“The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States . . . .” Thus, when a patent owner sued a Florida state agency that provided college tuition payment plans, for patent infringement, the Supreme Court held the law subjecting states to infringement liability unconstitutional under the 11th Amendment. Florida Prepaid Postsecondary Ed. Expense Bd. v. College Savings Bank, 527 U.S. 627 (1999). Accordingly, in two January 2017 IPR cases, the USPTO held that the 11th Amendment required it not to allow proceedings before it against Maryland and Florida. Neochord, Inc. v. Univ. of Maryland, Baltimore and Harpoon Medical, Inc., IPR2016-00208 (May 23, 2017), http://www.ptablitigationblog.com/wp-content/uploads/2017/06/IPR2016-00208.pdf; Covidien LP v. University of Florida Research Found. Inc., IPR2016-01274 (Jan. 25, 2017), http://www.finnegan.com/files/upload/LES_Insights_Column/2017/CovidienvUFIPRNos20160126476.pdf. Although waiver was urged, the USPTO said it was inapplicable because the 11th Amendment is jurisdictional—it deprived the tribunal of any jurisdiction to act, so that jurisdiction could be considered at any time. Waiver requires an affirmative act of invoking federal jurisdiction in the relevant tribunal, and that had not occurred.

 

Ericsson argued, in support of its claim that there was jurisdiction to hear its IPR challenges, that the U had waived its 11th Amendment immunity by suing Ericsson’s customers in the Minnesota district court. Ericsson said that the U “has consented to jurisdiction,” when it sued Ericsson’s customers in the district court, because by filing lawsuits against Ericsson’s customers, “it could surely anticipate” that Ericsson would bring an IPR case at the USPTO to invalidate the patents asserted against its customers for using its products. The U has now urged the USPTO to dismiss Ericsson’s IPR cases, insisting that it has not waived its sovereign immunity by suing the phone carriers—not Ericsson, a third party to the U’s patent infringement suits.

 

The U argues that the law is clear that a waiver must be personal, i.e., filing a lawsuit or counterclaims in the same action and in the same forum. Thus, in Regents of Univ. of New Mexico v. Knight, 321 F.3d 1111, 1125 (Fed. Cir. 2003), the Federal Circuit held that it would be unfair to let New Mexico sue in federal court to enforce a right to ownership of patents arising from contracts “and, at the same time, to claim immunity from liability [in the same case] for royalties or other compensation arising from those same contracts and conduct.” The court added, “Moreover, because a state as plaintiff can surely anticipate that a defendant will have to file any compulsory counterclaims [in the same case] or be forever barred from doing so, it is not unreasonable to view the state as having consented to such counterclaims.” Id. at 1126. On the other hand, the Federal Circuit has held that “a state that files a [patent infringement] lawsuit in one district court does not waive its immunity in a related [invalidity declaratory judgment] lawsuit filed by a party in another district court.” Board of Regents of the Univ. of Wis. Sys. v. Phoenix Int’l Software, Inc., 653 F.3d 448, 462 (7th Cir. 2011) (citing Tegic Communications Corp. v. Board of Regents of the Univ. of Texas Sys., 458 F.3d 1335, 1342 (Fed. Cir. 2006)).

 

In the Tegic case, in which UT sued Tegic’s customers for patent infringement in Texas, the Federal Circuit held that UT waived its immunity against a declaratory judgment counterclaim in Texas. But UT did not waive immunity against the separate declaratory judgment action that Tegic wanted to bring in Washington (where Tegic resided). The court said that if Tegic wanted to litigate patent validity, it could intervene in the Texas case and subject itself to infringement liability if the patent was valid and infringed. This is consistent with the Supreme Court’s concept in the College Savings Bank that the 11th Amendment is more about where a state is willing to be sued than whether it can be sued—for example, most states allow suits against them in their own courts of general jurisdiction. (But they don’t want to be sued in another jurisdiction.)

 

Based on this case law, the U argued: “IPR petitions are [not] counterclaims nor adjudicated in the same forum—they are a different action brought in a different forum.” Further, “a state that files an infringement action does not waive its immunity from a different action challenging the patent in a different forum.” The USPTO had said previously that it was not passing on what would happen if the patentee did file a patent infringement suit, as U of M did here. Furthermore, Ericsson did intervene in the Minnesota district court patent infringement suit, as the Tegic court said the equipment seller should if it wanted to challenge validity. But the Minnesota district court has stayed the federal patent action (at Ericsson’s request) to await the result in the IPR case, as district courts usually do in order to let the experts in the USPTO resolve the patent issues for them. (Presumably, the court will vacate its stay if the IPR case is dismissed.)

 

The U quoted the Federal Circuit opinion in Tegic that insisted that Tegic could not show that adjudication of its claim of invalidity was “not available in the Texas action,” and the U then argued, “Similarly, Ericsson cannot show that adjudication of invalidity counterclaims is not available in the Minnesota court,” where the U has (constructively) waived its immunity. There is a serious conflict here between the respective policies of the 11th Amendment that states should not be subjected to forums not of their choice and of the America Invents Act that a cheap, fast, expert determination of patent validity should be available in lieu of litigation in courts. Like the College Savings Bank case, this case may well end up in the Supreme Court. One important issue, not raised or resolved so far, is whether Congress may constitutionally impose, as a condition of the statutory right to acquire the benefit of a patent, and thus make as an integral element of the patent right, that the patent is subject to validity determination in IPR proceedings. Or would the 11th Amendment make that an unconstitutional condition on a benefit, as applied to a state, rather than a legitimate part of the statutory definition of a patent right?


Happy Mother’s Day to all the Moms!: Law, Science, Technology and Beagles

Angela Fralish, MJLST Guest Blogger

Beagles are well-known as a quintessential family dog because they love humans and listen to their owners (most of the time). What is less known, is that those same traits are the primary reasons they are used in 95% of canine medical experimentation. Although, beagles are not biologically comparable to humans, they are compliant people-pleasers, making them ideal subjects for scientific experiments.

This reality is a hard pill to swallow for animal lovers and scientists alike. To scientists, research beagles are a necessary evil decreasing the pain and suffering of humans. To advocates, beagles are victims of unspeakable cruelty.

One law bridges the divide between these opposing views to help the beagles. The Beagle Freedom Bill, created by the Beagle Freedom Project (BFP), forges a compromise between animal rights lawyers, scientists and medical technologists. The Bill asks that ”tax-payer funded laboratories offer up the “experimentally-spent” dogs and cats for public adoption through rescue organizations.” In other words, once the beagle is no longer used for research, the dog is given a home instead of euthanasia. Minnesota was the first state to sign the Bill into law in 2014, and since then, 5 more states have joined. Currently, 5 additional states are considering adopting this law as well.

In addition to legislative measures, the BFP has found other ways to help research beagles. They have created new technology such as the Cruelty-Cutter app which helps shoppers easily scan products for humane animal testing, and sued the USDA demanding restoration of scrubbed animal records. The Beagle Freedom Project is a leader in animal science law and a great example of how lawyers, scientists and technologists can work together for the greater good of both humans and animals.

Scientists are working to replace this “necessary evil” as well. According to Dr. Teresa Arora’s article Substitute of Animals in Drug Research: An Approach Towards Fulfillment of 4Rs, research methods are being developed that are “superior to using animals to learn about human disease or predict the safety of new drugs [and include] stem cells, microdosing, DNA chips, microfluidics chips, human tissue, new imaging technologies, and post-marketing drug surveillance.” There is even a Center for Alternatives to Animal Testing at John Hopkins University and the NC3R in the UK.

For an employee of medical research looking to carve out meaning in their every day workweek, helping research animals through new collaborative measures is one way to answer the call. As a lawyer, scientists or technologist, you can help develop policy, arbitrate between groups, hold violators accountable, assist in medical technology development, vote for the Beagle Freedom Bill or adopt a research beagle. According to Congressman Earl Blumenauer, “members of Congress are realizing that protecting animals is not just the right thing to do, it’s also developing to become potent politically.” Congress will need help understanding the relationship between animal models and science in order to make improvements. That help will come from people who work in these fields on a daily basis.

The Beagle Freedom Bill highlights the plight of animals languishing in labs and promotes cruelty-free lifestyle choices everyone can make. Now that BFP has opened the door, it is time for all of us to show a little gratitude to the beagles for their sacrifice in advancing medical science such as chemotherapy and insulin. We can do this in our own unique ways, and although we can’t change the world for all beagles, for some beagles, we can change the world.

As Mahatma Ghandi stated, “The greatness of a nation and its moral progress can be judged by the way its animals are treated.” I hope ours is one of progress.


Say Goodbye to Net Neutrality: Why FCC Protection of the Open Internet Is Over

Kristin McGaver, MJLST Guest Blogger

[Editor’s Note: Ms. McGaver’s blog topic serves as a nice preview for two articles being published in this Spring’s Issue 18.2, one on the FCC generally by researchers Brent Skorup and Joe Kane, and one on the Open Internet Order more specifically by MJLST Staffer Paul Gaus.]

Net neutrality is a complex issue at the forefront of many current online regulation debates. In these debates, it is often unclear what the concept of “net neutrality” actually entails, what parties and actors it affects, and how many different approaches to its regulation exist. Nevertheless, Ajit Pai—newly appointed chairman of the United States Federal Communications Commission (“FCC”)—thinks, “the issue is pretty simple.” Pai is openly opposed to net neutrality and has publicly expressed his intent not to enforce current FCC regulations pertaining to the issue with his recently acquired position of power. This is troubling to many net neutrality supporters. Open Internet advocates are rightfully concerned that Pai will hinder recent success for the advancement and protection of net neutrality achieved under former President Obama, resulting in the FCC’s 2015 “Protecting and Promoting the Open Internet” Regulation. With Pai at the FCC helm, net neutrality policy in the United States (“US”) is noticeably in flux. Thus, even though official policies protecting net neutrality exist on the books, the circumstances surrounding their enforcement and longevity leave much gray area to be explored, chiseled out, and set into stone.

Net neutrality is the idea that all Internet traffic should be treated equally. Yet, since 2003 when Tim Wu coined the term, scholars and commentators cannot agree on a standard definition since that very definition is at the base of a multi-layered over-arching debate. In the US, the most recent FCC articulation of net neutrality is defined by three principles—“no blocking, no throttling and no paid prioriti[z]ation.” These principles mean that ISPs should not be allowed to charge companies or websites higher rates for speedier connections or charge the user higher amounts for specific services. The new “bright-line” rules forbid ISPs from restricting access, tampering with Internet traffic, or favoring certain kinds of traffic via the use of “fast lanes.” Markedly, one thing the 2015 Regulation did not completely forbid is “zero-rating” or “the practice of allowing customers to consume content from certain platforms without it counting towards their data plan cap”—a practice many see as violating net neutrality. Even with this and other exceptions, the 2015 Regulation’s passing was not met without resistance: Republican Senator Ted Cruz from Texas tweeted that the 2015 Regulation was “Obamacare for the Internet.”

Additionally, net neutrality supporters and the FCC majority did not have long to bask in their success after the 2015 Regulation’s approval. The United States Telecom Association and Alamo Broadband quickly challenged it in a lawsuit. Because the new regulation re-classified ISPs as common carriers and therefore subject to the FCC’s authority, Telecom claimed that the FCC was overreaching, harming businesses, and impeding innovation in the field. Fortunately for the FCC, the United States Court of Appeals for the District of Columbia upheld the 2015 Regulation in a 2–to–1 decision.

Yet, the waves are far from settling for the FCC and net neutrality supporters in the US. Following the D.C. Circuit’s 2016 decision, American company AT&T and other members of the cable and telecom industry signaled an intent to continue the challenge, potentially all the way to the Supreme Court. More importantly, the lead dissenter to the 2015 Regulation is now chairman of the FCC. In his first few months as Chairman, Ajit Pai declined to comment on whether the FCC plans to enforce the 2015 Regulation. Pai’s “no comment” does not look promising for net neutrality or for those hoping the US will maintain its intent to protect the open Internet as was articulated in the 2015 Regulation.

Although the 2015 Regulation remains on the books, the likelihood that it is carefully enforced, or really enforced at all, is pretty low. This leaves a total lack of accountability for breaching ISPs. Achieving a policy that is not entirely spineless is admittedly complicated in the context of an Internet that is constantly evolving and a market that is increasingly dominated by just a few ISPs. But, effective policies are not impossible, as evidenced by success in the European Union and several of their member states in setting policies that protect and promote net neutrality. It is clear from these examples that effective net neutrality regulation in the online context requires setting, maintaining, and enforcing official articulations of policy. However, with a clear signal from the FCC chairman to back away from the enforcement of a set policy, it will be as if no regulation exists at all.


Perpetuating Inequality and Illness Through Environmental Injustice

Nick Redmond, MJLST Staffer

In Sidney D. Watson’s Lessons from Ferguson and Beyond, published in issue 1 of MJLST’s 18th volume, the author focuses on issues of inherent racial bias in access to health care for African Americans, and how the Affordable Care Act may be able to help. The author “explores the structural, institutional, and interpersonal biases that operate in the health care system and that exacerbate Black/white health disparities.” The article’s focus on health care in particular is a critical component of inequality in the U.S., but it also only briefly touches on another important piece of the disparity puzzle: environmental justice. Conversations about environmental justice have taken place in multiple contexts, and in many ways serve to emphasize the multiple facets of racial disparity in the U.S., including police violence, access to health care, access to education, and other issues which are all influenced by the accessibility and the dangers of our built environment.

Such systemic inequalities can include access to public transportation and competitive employment, but they can also be problems of proximity to coal plants or petroleum refineries or even a lack of proximity to public natural spaces for healthy recreation. Lack of access to safe, clean, and enjoyable public parks, for instance, can serve to exacerbate the prevalence of diabetes and obesity, and even take a toll on the mental health of residents trapped in concrete jungles (which the article refers to as “social determinants” of poor health). Though there is some indication that environmental factors can harm neighborhoods regardless of income, industrial zones and polluted environments tend to lie just around the corner from low-income neighborhoods and disproportionately affect those who live there, primarily communities of color.

Often the result of urban development plans, housing prices, and even exclusionary zoning, issues of environmental justice are an insidious form of inequality that are often on the periphery of our national political conversations, if addressed at all. Indeed, the U.S. Environmental Protection Agency’s Office of Civil rights (established in 1993) has not once made a formal finding of discrimination, despite President Bill Clinton’s executive order which made it the duty of federal agencies to consider environmental justice in their actions. When the primary federal agency tasked with ensuring access to environmental justice appears to be asleep at the wheel, what recourse do communities have? The answer, it seems, is depressingly little.

A high profile example in our current discourse, environmental justice appears to have failed Flint, Michigan, and it seems likely that the issue won’t be resolved any time soon. Other examples like Columbus, Mississippi and Anniston, Alabama, are becoming more and more prevalent at a disturbingly high rate. Impoverished people with little political or legal recourse struggle against the might of the booming natural gas industry and new advances in hydraulic fracturing, and as water runs out these communities will be the first to feel the squeeze of rising food prices and access to the most essential resource on the planet.

At risk of sounding apocalyptic, there is some hope. National groups like the NRDC or the ACLU have long litigated these issues with success, and more local or regional groups like the Minnesota Center for Environmental Advocacy or the Southern Environmental Law Center have made enormous impacts for communities of color and the public at large. But as Sidney Watson states at the end of her article: “[w]e need to talk about race, health, and health care. We need to take action to reduce and eliminate racial inequities in health care.” These same sentiments apply to our built environment and the communities that we have pushed to the periphery to take the brunt of the harmful effects of our dirty technologies and waste. Few people would choose to live near a coal plant; those who are forced to do so are often trapped in an endless cycle of illness, poverty, and segregation.


What’s in that? The Dilemma of Artificial Flavor, Natural Flavor & Artificial Color

Zach Berger, MJLST Executive Editor

By law, most food is required to display nutritional information; if a product bears nutrient content or health messages, it must comply with specific requirements. However, as questioned by J.C. Horvath in volume 13 of MJLST, do these requirements really help consumers? For example, how often do you see “contains artificial flavor” or something similar listed on your groceries? The use of the non-descriptive descriptor phrases such as “artificial flavor,” “natural flavor,” and ‘artificial color” are common on food labels, yet do not help the average consumer. These phrases can substitute for over 3900 different food additives. The difference between artificial and natural flavors is much more technical than meaningful as both contain chemicals. The distinction comes from the source of the chemicals. In reality, there is little difference between the two, as both are made in a laboratory by a trained professional, a “flavorist,” who blends appropriate chemicals together in the right proportions.

The Food and Drug Administration (FDA) does regulate these additives, but once a substance is Generally Recognized as Safe (GRAS) it may be added to anything without further testing for any unexpected chemical interactions with other ingredients. Examples of ingredients that fall under GRAS[1] range from beef tallow, lard, and gelatin to ambergris a “waxy substance generated in the digestive system of and regurgitated by sperm whales” and Lcystine, “a dough conditioner often derived from duck feathers or human hair.” Basically, these non-descriptive descriptors don’t tell the consumer anything useful, so companies allowed to use these stand-ins?

The Food industry is generally reluctant about releasing all of its ingredients in order to prevent competitors from easily replicating their product. However, “the information that would actually be useful to consumers tends to be categorical information. Things such as whether or not the product conflicts with dietary restrictions or contains artificial hormones or genetically engineered products. The goal of food labeling is clarity for the consumer and the use of the non-descriptive descriptor phrases are anything but clear; for the average consumer, they may as well not even be on the packaging. To make labeling more informative, Horvath recommended “FDA-mandated universal allergen warnings and front-of-pack labels to better educate consumers.” Whatever the solution is, it is time to end the use of non-descriptive descriptors.

[1] 21 C.F.R. 182.1–.99


Fore! Golf Ball Fragments Found in Frozen Hash Browns

By Guest Blogger Tommy Tobin

While golfing at the local links may be a popular pastime for many Americans, consumers don’t expect that golf balls will appear alongside their sausage links on the breakfast plate.

In one of the most unusual food recalls in recent memory, consumers in multiple states are warned that their frozen hash browns may contain golf ball fragments. According to the voluntary recall notice, the potatoes used for these products may have inadvertently been harvested with golf balls.

As hard as the idea may be to swallow, consumption of golf balls or their fragments is not advisable. Golf balls aren’t even a good source of iron as they’re made of resin and rubber. McCain Foods USA warns that consumption of golf ball fragments “may pose a choking hazard or other physical injury to the mouth.”

The affected products were distributed after January 19, 2017 with the production code date B170119. They were sold in two pound bags of Southern Style frozen hash browns under two different labels: Roundy’s and Harris Teeter. The Roundy’s-branded products were shipped to multiple supermarket chains in Illinois and Wisconsin. The Harris Teeter brand “Southern Style” products were shipped to Delaware, Florida, Georgia, Virginia, North Carolina, South Carolina, Maryland, and the District of Columbia.

The recall notice urges consumers in possession of the affected product “not to consume them” and directs consumers to either throw the product away or return it to the store of purchase. No injuries have yet been reported with regard to this recall.

As the Washington Post recently noted, people enjoy hash browns in numerous different ways, with chefs and home cooks each “adding their own special ingredients, although never golf balls.”