A lot has been written about this ban both before and after a New York Supreme Court judge struck it down on Monday.  Some of it has been fairly misleading and some of it has been relatively accurate.  The case has nothing to do with equal protection under the U.S. Constitution, or indeed the U.S. Constitution at all.  Rather, it was mainly decided based on an interpretation of a document that is, in its origins, older than the Constitution:  the New York City Charter, a document that began in the reign of James II, the man for whom the city and state were named.  Ultimately, the question was not so much the wisdom of the ban, but whether the Board of Health, a body appointed entirely by the Mayor without even City Council ratification, had the power to institute it, or whether that power was held by the City Council or the New York State Legislature, each of which had failed to pass similar legislation.  Unless you are seriously concerned about the separation of powers doctrine under New York law (city or state), the vast majority of the case is of little interest and creates no precedent for what other jurisdictions may or may not do.

Much attention has been given to the judge's alternative ruling that the ban was "arbitrary and capricious" because it covered only some establishments and because it exempted certain drinks.  The former of these is really a question of the authority of the Board of Health, which by a "memorandum of understanding" has ceded jurisdiction over grocery stores and convenience stores, as opposed to restaurants, to the state authorities.  The court hints, however, that one problem with the ban is that that Board of Health did not seek, before imposing it, to coordinate with the state, which the MOU apparently required. 

The latter can certainly be criticized.  If you can get unlimited refills of a 16 ounce cup, have you accomplished anything?  Some would argue that you have.  Alcoholic beverages and milk-based beverages were exempt, which raises other issues.  An article on the Bloomberg website, of all things, suggests that the result of the judge's action might be a broader ban.  The director of the World Health Organization's Orwellian-sounding "Center on Public Health Law and Human Rights" argues that the ban was "legal and right."  Mayor Bloomberg, not surprisingly, vows to succeed on appeal. 

More interesting is the number of different ways in which New York restaurants had chosen to comply with the ban, and the cost of being required to be in a position to comply only to have the ban struck down just before it went into effect.  16 oz. cups were at a premium in the city before the ban was struck down; as the case goes through appeal, there will be more uncertainty about what those subject to the former ban may do, and if the mayor wins on appeal, how quickly they would have to comply with a reintroduced ban. While the organizations that challenged the law clearly had the right to do so, for many New York restaurant owners the real concern is certainty.  They'd rather know what their duties are far in advance of having to implement them because they can't change their practices on a dime.  This appeal doesn't do them any favors at all.

The Washington Supreme Court's decision in Bylsma v. Burger King Corp., which covers a tiny but critical part of the policeman's lawsuit, has gotten a lot of publicity.  Let me give you three quick points that most of the reporting misses:

• The guy who spat on the burger pled guilty to assault and was sentenced to 90 days in jail, was fired, and is not a defendant in the lawsuit.
• The lawsuit, as it currently stands, has nothing to do with respondeat superior or whether the restaurant was negligent in hiring the guy who spat.
• The case was decided under Washington law, and the real impact will be under Washington's Products Liability Act, which gives restaurants like the Burger King franchise here, and Burger King itself, few defenses to this action. 

Much more after the jump. 

There are plenty of lawsuits claiming that food was intentionally tainted by spit and sometimes worse.  But there are two differences between Officer Bylsma's case and most of the others.  First, he had the spit tested for DNA and then traced the DNA to a specific employee at the restaurant.  I don't think most individuals have either access to a DNA lab nor will law enforcement ordinarily issue the kind of warrant needed to obtain DNA samples for a simple alleged misdemeanor.  And, second, Officer Bylsma did not taste the burger, so he cannot claim any form of physical harm from ingesting it. 

All he alleges is "emotional distress, including vomiting, nausea, food aversion, and sleeplessness".  The question is whether this is sufficient to give him a remedy at law.  And it's here where the peculiarity of Washington's Product Liability Act takes over.  This law was enacted in 1981 to "provide a single cause of action for 'harm caused by the manufacture, production, making, construction, fabrication, design, formula, preparation, assembly, installation, testing, warnings, instructions, marketing, packaging, storage or labeling of [a] product.'"  It provides for liability on a negligence basis for some defects and provides for strict liability "if the claimant's harm was proximately caused by the fact that the product was not reasonably safe in construction or not reasonably safe because it did not conform to the manufacturer's express warranty or to the implied warranties under" Article 2 of the Uniform Commercial Code.

RCW 7.72.030(2)(a) is the key to plaintiff's case:

A product is not reasonably safe in construction if, when the product left the control of the manufacturer, the product deviated in some material way from the design specifications or performance standards of the manufacturer, or deviated in some material way from otherwise identical units of the same product line.

Here, the restaurant itself is the "manufacturer."  So, to follow the language applied to this case, when the burger left the restaurant, it deviated in a material way from the design specifications or performance standards of the restaurant, because it included a glob of spit.

How does Burger King get sued?  Under the Products Liability Act, a product seller who is not the manufacturer is liable in a number of different cases, one of which is "The product was marketed under a trade name or brand name of the product seller."  So Burger King is is in the same boat as its franchisee.

Is there any defense?  The federal magistrate in Oregon, applying Washington law, believed that there was a complete defense.  Three dissenting justices of the Washngton Supreme Court agreed. The defense hinged on the definition of the word "harm" in the Products Liability Act.  The definition, as the court recognized, is circular:  " 'Harm' includes any damages recognized by the courts of this state."  In other words, the Legislature expressly allowed for the creation of judge-made law here. 

Note that this definition differs from the Model Uniform Product Liability Act, upon which most of the Product Liability Act was based.  Its definition of "harm" is "The UPLA defines  "mental anguish or emotional harm" only if "attendant to . . . personal physical injuries" or "caused by . . . being placed in direct personal physical danger and manifested by a substantial objective symptom."  Under the model act, Officer Bylsma would have lost his case.  But the Washington Legislature wanted its courts to define harm over time.  And this they did.

Also note that this case came to the Washington Supreme Court on a certified question from the Ninth Circuit Court of Appeals, which was reviewing the magistrate's dismissal of the case, which had been agreed to by the district court judge in Oregon.  So the Washington court was answering a hypothetical question on a federal case in another state, but the implications, because of Washington's peculiar statute, apply, other than to Officer Byslma's case, initially only in Washington. 

The question asked was whether the Products Liability Law "permits relief for emotional distress damages, in the absence of physical injury, caused to the direct purchaser by being served and touching, but not consuming, a contaminated food product."  What the court held was that the Products Liability Law "permits relief in such circumstances, but only if the emotional distress is a reasonable reaction and manifest by objective symptomatology."  But the court answers the first question itself, apparently as a matter of law:  "Thus, when a food manufacturer serves a contaminated food product, it is well within the scope of foreseeable harmful consequences that the individual served will suffer emotional distress."  So the only real defense left to the restaurant and franchisor is "objective symptomology."  A good trial lawyer will consider that a speed bump, and not a large one.

The court engaged in the fiction that it was just finding the law, not making it.  It did not--and was probably not briefed to--consider the implications of applying strict liability in this context to the food industry.  But those implications can be large.  When there is a need for a recall, ordinarily retailers are happy when customers return the potentially contaminated food unused and unopen for a refund.  Suddenly, in Washington, those customers are potential plaintiffs ready to complain of how their lives are ruined because they can't walk down the produce aisle or past the meat counter without getting the heebie-jeebies over the food they returned.  Every hair found on a salad may need to be handled not by an adjustment to the bill and a free drink coupon, but also a release.  It is hard to see how the cost-benefit analysis really favors this tort.   Short of the Washington legislature acting, however, the Washington Supreme Court has had the final word on this issue.
 

If that's not entirely clear, don't blame the messenger.

An interesting case out of the U.S. Bankruptcy Court for the Central District of Illinois asked this question:  does the Food Security Act apply to proceeds?  Here are the basic facts of CNH Capital America LLC v. Trainor Grain & Supply Co.:  Both CNH and Trainor had financed crops for farmers named Printz, who are now in bankruptcy.  CNH had the earlier filed financing statement.  Trainor was also the grain elevator which bought the crops.  CNH did not comply with the notice provisions of the Food Security Act.  Trainor had therefore, there was no dispute, purchased the crops free and clear of CNH's lien.  But what about the proceeds?  Trainor simply offset them against its debt and paid nothing to the Printzes.  Would it be able to walk away without paying, despite CNH's earlier filed financing statement?

Your ordinary buyer, when it pays for the crops, is concerned about double payment, which is why it will check the Food Security Act filings or notices of its seller.  In essence, Trainor wasn't making any payment at all; no cash was changing hands.  If it was wrong, it still had its debt.  That probably isn't worth much without collateral and with the farmers in bankruptcy, but also, as a secured party, it was clearly in second position behind another creditor. 

And that, in essence, is what the court held.  The Food Security Act protects a buyer.  If a secured creditor does not comply with its notice provisions (which, in some states like Idaho and Oregon, are essentially the same as for filing a financing statement, while in others, like Washington and, presumably, Illinois, involve actually sending notice to known prospective buyers of the farm products), then the buyer gets full title to the goods.  But what it does not get is priority in proceeds as well. 

Think of it this way:  if there were no Farm Products Exception--the rule that applies to purchasers of every kind of goods except farm products--would a buyer who also had a second security interest be able to take the goods by setting off its debt against the interests of a first priority secured creditor?  I think not, and that is what the court ruled here.

What if Trainor had paid the farmers and the farmers had turned around and paid Trainor in cash?  Under 9-332 of the UCC, unless Trainor and the farmers had been in collusion, Trainor would, outside of bankruptcy, have taken good title to the funds.  Of course, in bankruptcy, this was likely to be a preference and thus recoverable just as the setoff in the actual case was. 

The case involved the standard guaranty required by federal law.  At the end of the guaranty form, the supplier had added, "This Guaranty shall not render Seller liable for any incidental or consequential damages of whatsoever nature nor shall it extend to the benefit of persons or corporations other than" buyer.  The goods that were shipped under this guaranty were found contaminated with E. coli and the buyer sued for, among other things, its consequential damages.  The Wisconsin Supreme Court affirmed the intermediate appellate court's decision that this language was ineffective to disclaim consequential damages.  After the jump, we'll discuss why.

The court answered that question in the negative, and it relied on the express words used in the disclaimer in the Guaranty.  "The words, 'This Guaranty,' focus the limitation of damages on those damages that may flow from a breach of the express warranties set out in 'This Guaranty' . . . .  They say nothing about damages that may arise from the breach of an implied warranty . . . ." 

Exactly.  The standard "boilerplate" provision reads more like this:  "Under no circumstances may either party be liable to the other for any special, incidental, consequential or punitive damges in any action arising out of this contract, whether considered in contract, in tort of otherwise."  The words attached to the Guaranty were far more limited, and the words were given meaning by the Wisconsin Supreme Court.

There are many factors to consider in deciding whether to disclaim implied warranties and whether to limit damages.  In contracts related to food, implied warranties are disclaimed far less frequently than in other sales of goods.  Parties often exclude incidental damages without understanding what they are giving up.  But the lesson from the Wisconsin Supreme Court is always good:  the words you choose matter.  There is no "inconsequential" boiilerplate.

First, what is a "merchant" under Article 2?  Section 2-104(1) of the UCC contains the definition. 

"Merchant" means a person that deals in goods of the kind or otherwise holds itself out by occupation as having knowledge or skill peculiar to the practices or goods involved in the transaction or to which the knowledge or skill may be attributed by the person's employment of an agent or broker or other intermediary that holds itself out by occupation as having the knowledge or skill.

After the jump, we'll explore why it's important to be or not be a merchant, how the Tennessee court applied it to farmers and what it means for the farmers from which you may buy farm products.

Between merchants if within a reasonable time a writing in confirmation of the contract and sufficient against the sender is received and the party receiving it has reason to know its contents, it satisfies the requirements of subsection (1) against such party unless written notice of objection to its contents is given within ten days after it is received.
 

That is a handy way to avoid needing to getting a signature on a document; it also follows the general sense of the law merchant, on which Article 2 is based, that between merchants formalities are regularly not followed in the interest of speeding up commerce. 

The Tennessee Decision.  The Tennessee court did not plough new ground, but provided a good summary of the state of the law on whether a farmer can be a merchant. In essence, the court held that whether a farmer is a merchant under Article 2 is to be decided on the facts related to the particular farmer.  A farmer who is aware of the practice of selling forward contracts on an oral basis and who is familiar with the markets involved in such sales may be a merchant, while one who merely grows a crop for a sale to a single buyer may not be. 

A key point is that the focus is on the farmer, not necessarily the transaction itself.  In other words, it is the sophistication of the party, not the complexity of the transaction, that will determine whether the farmer is a merchant for Article 2 purposes.

What it Means.  As in any test that is based on facts and circumstances, you will not be able to know in advance with perfect certainty if you are buying from a merchant or not.  If you're buying a small quantity of organic vegetables from someone who is selling you their entire crop, it's probably a good guess they are not a merchant.  If you are buying large quantities from someone who sells to large agribusiness companies as well as you, and who quotes you both a current spot price and an historical price without needing to look on a monitor, they are probably a merchant.  There will be cases in between where you can't know for certain, and simply relying on the merchant exception can give your seller a defense if they don't want to sell. 

The merchant exception, though, is not the only exception to the statute of frauds; on the other hand, the status of the other party as a merchant does not satisfy the exception without complying with the rest of 2-201(2).  If it matters enough, get it in writing.

In a well-reasoned decision following North Carolina law, the judge found the plaintiff’s claim that the defendants had sold him a food item that contained the utensil and he had unwittingly digested it impossible to swallow. This was because the plaintiff had to stack “inference upon inference” in his attempt to prove that the restaurant had anything to do with this injury. 

First, there was no proof that the object had been in any food (under the Uniform Commercial Code, food is "goods") the restaurant had sold him, a necessary factor in his theory of breach of the warranty of merchantability. The plaintiff relied only on circumstantial evidence—he claimed he had eaten at that restaurant, no other restaurant in its chain and no similar restaurant (though in other restaurants) in the relevant time period. But that was not enough. His doctors merely testified that the object caused his symptoms; they didn’t have anything to say about how it got there. Defendants’ experts, on the other hand, showed what you might expect: objects like that don’t get into your lungs when you simply eat them. Instead, there must be some “severe mental depression” that suppresses the coughing instinct. What can cause that? Drug or alcohol abuse. And there was substantial evidence the plaintiff was using both around the time he took ill.

Moreover, when foreign objects get into the lungs, unlike the stomach, they don’t degrade or degenerate. So the absence of any food-related objects in his lungs along with the plastic negated the likelihood that the plastic entered his lungs while he was eating the restaurant’s food.

The utensils were available free to anyone who came to the restaurant, or any other one in the chain, which again did not support any inference that the only way one could have entered his lung was through ingestion of the restaurant’s food. And there was no evidence that anything like this had ever happened before, or that among the tiny number of complaints of foreign objects in the restaurant’s food was there a fact pattern even remotely similar. So the complaint was dismissed on summary judgment.

This case demonstrates more than that there are successful defenses to claims for violation of the warranty of merchantability even in a case where a defendant’s logo is found in an unusual place. Causation is not something that can be assumed, or proven by piling “inference upon inference,” and is a defense that should always be examined. 

By pure coincidence, one of Ken's favorite topics was in the news this week. Ken had written two big pieces on raw milk for this blog, which can be found here and here.  Tyler wrote about another development here. 

What happened in Oregon is sad:  20 people were apparently sickened in a single outbreak, including four children, and two of the victims may have long-term complications.  E.Coli O157:H7 is not fun for anyone. 

The real issue, as the article points out, is what the right level of regulation would be.  It's not easy to answer.  Drinking raw milk is simply dangerous; it's like playing Russian roulette without knowing how many chambers are in the gun or how many are filled.  Ban it and the users go underground.  Legalize it and yes, some bad batches will not be caught by inspectors (this happens with a lot of other foods, too, in case you hadn't noticed).  You can try to educate people about it, but if there's anything we know now it is that official education on almost any topic will lead to dissent.  There's no perfect solution in a free society. 

Notwithstanding that its very title is a synonym for blandness, White Bread tells a compelling story in an accessible way. Over and over, we see how industry, government, science and the media gang up on their nemeses—home bakers and small-scale bakeries. Muckrakers warned of “disease-breeding bread” and a newspaper claimed, “Dough kneaded with the hands always runs the risk of contagion.” The result was the rise of industrially-baked bread, nearly all white bread.

Bobrow-Strain also tells the story of food evangelists like Sylvester Graham (namesake but probably not the inventor of the eponymous cracker) and how fortifying bread with vitamins was a factor in winning World War II. He reveals that much of America’s current industrial bread is actually owned by Grupo Bimbo, the Mexican baking conglomerate, which owns such iconic brands as Sara Lee, Arnold, Orowheat and Roman-Meal. He describes the counterculture’s push for whole wheat bread and how it has, with help from large-scale bakeries, overtaken white bread in the past few years for the first time. 

The food liability takeaway here is nothing new, but a good reminder in a nice package: there is always a way to question conclusions from government or academia for their potential bias. If you are challenging a government mandate, find the bias and attack it. If you are on the side of the mandate, be ready for a challenge from the other side. The kind of research Bobrow-Strain has undertaken here is available on almost any government food mandate. Ignore it at your peril.

The other one really describes the one story in the book where government had nothing to do with it: the advent of sliced bread. July 6, 1928 (a couple days after my dad turned two and three weeks before my mom was born) was the date the Chillicothe Baking Company in Missouri produced the world’s first pre-sliced bread, invented by Otto Rohwedder. And, amazingly, it was indeed the best thing, the thing that legitimately can be compared favorably to any invention—television, the Walkman®, the VCR, the personal computer, the cell phone. Within weeks, sales of sliced bread soared 2000%. By 1929, it had pretty much swept the country. A bakery in Florida was struggling because it bucked the trend; when it gave in, its sales increased 600% immediately.  By 1936, 90% of commercially bought bread in the United States was sliced.  

Bobrow-Strain asks a legitimate question: why did this innovation so completely sweep the country? Though I bake my own bread and slice it by hand, I think I have the answer. In those days, households often had far more people in them than they do today. Families had more children, and several generations of a family could live in one house (my great-grandparents and a great-uncle and great-aunt lived under the same roof as my grandparents when my mother was born). And people didn’t buy lunch at school or at work; they made it, and it was nearly always sandwiches. So imagine a family of six kids and four adults, all the kids school-age and three of the adults working out of the house. Two slices of toast at breakfast and two sandwiches apiece, that’s about sixty slices of bread a day to prepare in time for people to leave the house in the morning. Sliced bread would be a pretty legitimate labor-savings, and at essentially no cost.  Best thing indeed.

The case involves facts that wouldn't seem to implicate any issues we discuss on this blog.  Simply put, a motorist made an illegal left turn across traffic mid-block in Anchorage and killed a motorcyclist heading in the opposite direction. The motorcyclist crashed into the car, so presumably he didn’t have enough time to swerve or stop.  The unstated but obvious subtext, of course, is that the motorist did not have the resources to fulfill the damages caused. 

So whom did the estate sue?  The franchisee and owner of the land on which a fast food restaurant sits.   Their alleged mistake:  not taking sufficient steps to warn the motorist not to make an illegal left turn into the exit to their drive-through. 

Understand, the case had been dismissed on a Rule 12(b)(6) motion, which presents a pretty high standard, "failure to state a claim on which relief can be granted."  But it's hard to see where the claim is here. 

Mickelsen’s complaint alleges that [defendants] created an entry and exit system that had the effect of enticing . . . patrons to enter the premises by making an illegal turn across two lanes of traffic, that . . . customers in fact regularly used the short-cut, that [defendants] w[ere] or should have been aware of such use, and that this dangerous condition led to the fatal accident.

This is notwithstanding that the left turn involved illegally turning across a double yellow line and that there are, not surprisingly, traffic laws that impose on a driver making any kind of left turn the duty to do so only when no oncoming driver might smash into your car. Neither of those traffic laws relate to whether there is a driveway the illegal and negligent driver is turning into or the identity of the business that driver may be trying to patronize. And just to make it clear, “[b]ecause the width of the curb-cut accommodates only one vehicle at a time, drivers must often roll one tire over the raised curb in completing the short-cut maneuver.” So drivers would need to violate two important traffic laws and roll over a raised curb to undertake this “short-cut.” This, in Alaska, is “enticement” that is sufficient to create a cause of action that must be defended at great cost.  (more after the jump)

Webb established that “[a] landowner or owner of other property must act as a reasonable person in maintaining his property in a reasonably safe condition in view of all of the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden on the respective parties of avoiding the risk.”

Here’s the difference: Webb involved a landowner, in this case the City and Borough of Sitka, which had put out a sidewalk on which the plaintiff had tripped and fallen. There was simply no issue in Webb as to the relation between the plaintiff and the defendant; the defendant was on the plaintiff’s sidewalk when she tripped and broke her hip. The Alaska Supreme Court declared this “controlling precedent” establishing the restaurant’s duty to the motorcyclist who was passing by when the motorist had made its doubly illegal left-hand turn. It is pretty close to impossible to see why.

There was a dissent in Mickelsen and it will not surprise you that it has the better of the argument, by far.

I do not believe that [defendants’] duty extends to [plaintiff], an innocent person with no connection to [defendants] (that is, he was not a customer of [the restaurant] but merely an innocent person driving past the restaurant on a public highway when another person made an illegal turn in front of him, causing the collision and his death). I also think that [defendants] have no duty to prevent a person from making an illegal turn in his wrongful attempt to shortcut into [defendants’] parking lot. To extend a business’s duty to the circumstances of this case will vastly expand the potential liability and attendant costs to businesses all over Alaska. This places an intolerable burden not only on those businesses, but on society at large, because the costs of this greatly expanded liability will surely be passed down to the people in the form of higher costs for goods and services, higher insurance costs, and increased litigation.

The dissenting justice, Justice Craig Stowers, added that the plaintiff was asking the court to

impose liability on anyone who is aware of another’s self-destructive behavior, has any ability to prevent that behavior, and fails to save the injured party from his or her own conduct. Such a holding would transform the law of negligence from a means whereby a person may recover for losses caused by the danger which another’s unreasonable behavior created, to a mechanism permitting persons injured by their own conduct to compel any who failed to prevent that conduct to share in the burden of their negligence.

But that language, Justice Stowers pointed out, came out of another Alaska Supreme Court case, one that the majority had distinguished because the “self-destructive behavior” was that of the plaintiff (who was injured while sledding on a defendant’s street). But the principle it represents, that we do not impose tort liability on people without there being a clear duty to protect other people from foreseeable harm, is far more germane to the case than Webb decision, which did not have to consider those issues at all. 

To return to Mr. Kaufman, imagine that his lawyer had been killed while jaywalking to greet someone who turned out not to be him. In Alaska, his heirs might well have been able to get past as 12(b)(6) motion to sue Mr. Kaufman for his audacity in permitting another person to look like him.  

So I read with some interest the various stories that have circulated around the Internet with titles like "EU Says Water is Not Healthy" and "Now barmy EU says you CAN'T claim drinking water stops dehydration."  And this, of course, is to answer yesterday's pop quiz, which you'll recall asked if the following statement is true:

The regular consumption of significant amounts of water can reduce the risk of development of dehydration and of concomitant decrease of performance.

This was the question asked of a particular European Union agency with respect to a particular European Union law and the answer they gave was negative.  Which of course set off a firestorm of laughter and ridicule, followed by a reverse firestorm of alleged common sense explanations for why the EU was right.  With respect, pretty much everyone has exaggerated something here, intentionally or unintentionally. 

For reference, here are the EU Scientific Opinion and the EU regulation implementing the scientific opinion.  I'm afraid they're not quite Shakespeare or even Stephen King.

First, let's parse the words a bit.  The claim relates to "water" not "bottled water" or some particular brand of bottled water.  The claim also states that "regular consumption" of water "can reduce" the development of dehydration, not that it is necessary for it, or that other beverages or water ingested in other ways are or are not another way to achieve it. 

Now, let's affirm what the EU has done and not done.  It has stated that in connection with a claim for foods within the EU, this claim is not authorized (20 days after publication in the official journal of the EU).  It expressly states that it is "binding and directly applicable in all member states."  Thus, the EU official who stated, as quoted in The Express as saying, "Either way the final decision is for member states", was saying something directly contradicted by the regulation's own words.  A British bottled water seller has vowed to defy the ban and British health officials have not ruled out taking action against it. 

Clearly, the EU has also not said water isn't good for you, or that it's bad for you, or anything of that sort.  And there is some question as to whether the law the application was sent in under was the right one; is "dehydration" a disease or a condition, for instance?  Yet even the most cogent defense of the ruling I've read, by a professor of nutritiion at Robert Gordon University in Aberdeen, takes liberties with the facts.  I'm no nutritionist, and I'll accept that someone can live a perfectly healthy life without ever once ingesting water in its pure form (the comments on most of these articles include at least one person who suggests that beer is a fine substitute). I also accept that pure water alone may not solve all cases of dehydration.   But the claim is not that drinking water as such is necessary, or that it is sufficient, but that it is useful.  So when the professor, in defending the EU ruling, said, "Also, it could be used to imply that there is something special about bottled water which is not the case," he's simply wrong.  If I say that Drug X may lower your cholesterol that doesn't imply that there is something about Drug X that is special compared to Drug Y which may also lower your cholesterol.  The same is true of water. 

Is the following statement true or false?

The regular consumption of significant amounts of water can reduce the risk of development of dehydration and of concomitant decrease of performance.

I'll be back with the "answer" tomorrow.

Click on the links above to see the positions of the two sides.  Basically, Dr. Oz did a study of apple juice and found elevated levels of arsenic in excess of the amounts the FDA approves for simple bottled water.  Weighing in on the side of Dr. Besser (or perhaps vice versa), though, is the FDA itself, which rather loudly is proclaiming "tosh."  Or, rather, "Apple Juice is Safe to Drink." 

It's hard to wade through the rhetoric here to figure out who's "right", particularly when even Dr. Oz is not recommending anyone give up apple juice because of the risk of arsenic.  The FDA and the manufacturers all dispute both Dr. Oz's test results--they both tested juice from the same batches and came up with significantly lower levels of total arsenic--and criticize him for testing only for total arsenic, instead of distinguishing between inorganic arsenic, which is really bad, and organic arsenic, which the FDA says is generally safe and is ordinarily the kind of arsenic found in apple juice (but not in bottled water).  Dr. Oz's response doesn't seem to be all that persuasive; if the juice doesn't test for too much inorganic arsenic (or too much total arsenic), does it matter that it comes from countries that use arsenic as pesticides?  And arguments about whether apple juice is better for you than eating raw apples are neither made stronger nor weaker if the level of arsenic is insignificant. 

Although known to the ancients as a poison, arsenic has many benign uses, including being used in the first effective treatment of syphillis.  Along with other poisonous chemicals, it was used for centuries in makeup.  The plot of Dorothy L. Sayers novel Strong Poison centers on a murder by arsenic poisoning, where the murderer (SPOILER ALERT!) developed a resistance to arsenic over time, and thus survived while eating the exact meal as his victim.  The story was suggested by the tale of King Mithridates, as A.E. Housman wrote in "A Shropshire Lad,"

They put arsenic in his meat

And stared aghast to watch him eat;

Today, arsenic is used in semiconductors and light-emitting diodes.

It is not for this blog, of course, to weigh in on the actual merits of the controversy.  But we note that comments in the popular media about the safety of food can have a really strong, negative impact on purveyors of food items, whether they are true or not.  A strong debate about food safety is always welcome, but the use of sensationalist headlines and a failure to meet scientific arguments head on can leave misleading impressions that can have really significant impacts on real people.  Stay tuned.

Here's what one of his food and beverage clients just said about David:

Stoel Rives, under David Goodnight's leadership, provided absolutely outstanding legal counsel for our small business.  The partners at our firm marveled at his ability to litigate a very complex arbitration case to a successful outcome and then help connect us to the deep resources of Stoel Rives to solve the varied corporate and tax challenges we face as a small business.  We were very impressed by the breadth and depth of legal counsel at Stoel Rives and have recommended your firm to a number of our friends who own small businesses and people that were in need of professional legal advice.   Truly, we can't thank David Goodnight and the legal team at Stoel Rives enough for what they have done for our company.

And here's another testimonial from a client in the pharmaceutical industry:

I could not have been more fortunate than to have the opportunity to work with David as our attorney to handle a legal matter for my company. His expertise and clear explanation of options, strategies, possible outcomes, and recommendations helped me to make the right decisions for our company. I never felt worried about our position with David on our team. He helped me and our company to take a strong position in a difficult legal matter without putting us at risk to overspend or overextend ourselves at anytime. His calm, strong, and thoughtful attitude made me feel that he was working for our good at all times. Thanks to David, we achieved success in the legal matter that he handled for us. If our company or I am ever in the position to need an attorney with David’s expertise, I would not hesitate to call on him again. He’s remarkable.

David's clients include GE, Amazon.com, International Paper, Qwest Corporation, Century Link and Weyerhaeuser Company.  He has been selected numerous times as one of Washington's top 100 lawyers, is recognized by Chambers and selected as a litigation star by Benchmark and Washington CEO.  We're extremely pleased to have him join our team. 

Please join us in welcoming David to the blog.

Food hazards found at farmers markets, officials want fee hike

When Ken first came to Stoel Rives, he was the second lawyer in our office admitted in Alaska, and unlike the first (me) he had actually practiced there.  We first spent time together discussing Alaska projects, but it was our mutual shared love of the Seattle Mariners that was the bedrock of our longstanding friendship.  Kellogg's is lucky to have him, even though he's promised that he will not, and his children will not, change their Mariner loyalty.  And he's fortunate to be working at a company associated with the kind of joy shown in that old Doonesbury cartoon.  Battle Creek makes one think of cereal and box tops traded in for toys, and cereal and box tops make one think of Kellogg's (even though Post is located there, too).  It's a great opportunity for Ken to work on food safety inside at such an iconic company, and we wish him well.  Plus we expect to hear from him--and even have him blog right here. 

While Ken has obviously been a gigantic part of our food liability efforts here at Stoel, he leaves behind both a legacy of people he has trained and worked with, and a culture adapted to the legal needs of the food industry.  Watch this space in future weeks as we introduce you to some of the great people who stand ready to serve you!

I have to admit I didn't give a lot of thought to what was going on in Japan, what with all that other stuff going on, but this morning I saw this article in Slate.  What the article points out is that both the actual food safety situation, and the psychological food safety situation, in Japan will be issues for a long time to come:  years, not months. 

By coincidence, I received an email from Second Harvest Japan.  And that led to this link to a means of making a tax-deductible donation to provide food to people in the affected areas.  So I did that.  I'd ask you to consider doing it, too.

What is revolutionary about the study may be surprising to non-scientists. What the scientists did with cattle was to study the interaction between infected animals and healthy ones in order to learn exactly when the infected animals were actually transmitting the disease. You may well think, "don't we know this already?  Was I coughing into my elbow for no reason at all?"  The answer is, we didn't know it at this level of detail, and when fashioning quarantines of people or animals, or mandatory culls of animals, knowing it at this level of detail can save lives and money.  As Mark Woolhouse, one of the scientists who co-authored the study, said as quoted in Science Daily,

If you do things like measure virus in the blood, you're taking no account of the clinical state of the animal. People might imagine that the clinical signs of a virus -- the symptoms, such as sneezing -- have something to do with its transmission. But, while there has been a lot of thoughtful speculation on the topic, there haven't been many actual studies.

As a result of the study, for these animals and with this one disease, they estimated that the actual period of transmission was much shorter than had been previously thought, and not necessarily related to the animal showing the outward signs of the disease. 

In reading this, I was reminded of a statement in Simon Winchester’s Atlantic, where he points out how much more we know about the surface of the moon than the undersea part of the surface of the earth. The same can be said for the way microorganisms operate in the environment as close as your nose or a cut on your skin. Although it is obviously a different thing to study foot-and-mouth disease for cows, who are unwitting subjects, than, say, influenza on humans, these techniques may be applicable in some ways to study a whole range of diseases, which can refine the public health reaction to a host of outbreaks. The study suggests that if diagnostic tools can be found to pinpoint the moment of contagion, quarantine can be more effective and possibly both shorter and involving fewer subjects, and more destructive means of prevention like culling may be avoided.  To quote further from Woolhouse's interview with Science Daily:

We now know that there is a window where, if affected cattle are detected and removed from the herd promptly, there may be no need for pre-emptive culling in the immediate area of an infected farm.  We have an opportunity now to develop new test systems which can detect infected animals earlier and reduce the spread of the disease.

This is a two-edged sword, and potentially both edges can be used for good.  If we can develop tools to find contagious subjects more exactly, we can take effective steps to quarantine them for just the right period of time.  And we would be able to rule out non-contagious subjects that are currently impacted out of an abundance of caution.

Which brings us back to the past.  Now that we know what we know, what of the thousands of British cows slaughtered in 2001, including those at farms where the cows showed no symptoms but were located next to the outbreaks? The study certainly suggests that this was unnecessary. But before any British cattle farmers consider calling in a solicitor, however, they need to understand a couple of things. First, public health officials have historically always been given a lot of leeway in terms of making decisions to promote the general welfare.  When the cows are showing signs of disease, no one has the time to do a ten-month study; you do what you can  right then.  Second, and most germane, liability, if any, would be based on the state of knowledge at the time of the incident. It could hardly be treated any other way. This both acknowledges the state of (or lack of) knowledge and encourages the advance of scientific learning. If you try one solution and it seems like it could be improved, you’re less likely to improve it if you might end up being liable for how your first attempt worked out. 

• Reheat them to 165 degrees Fahrenheit just before eating
• Don't keep them in the refrigerator longer than five days after opening

Which kind of takes the "cold" out of cold cuts, doesn' t it? 

Ms. Weise's article then goes on to explain what a change this would be in the behavior of people who are often dependent on lunch meats as a relatively inexpensive source of protein, and to question where the source of this advice is coming from.  The CDC, for its part, notes that listeria doesn't go away when refrigerated and doesn't give either visual or olfactory clues to its presence.  The industry response is that consumers should look for products containing antimicrobials like sodium lactate or potassium lactate. 

As the article implies, this advice is counterintuitive for many people.  Moreover, as one person quoted in the article points out, the placing of the label of "risky" on such an ordinary item takes away some of life's enjoyment as well.  That is not to deny that the risk is real, but it is akin to a "Black Swan" event whose probability may be low but where the consequences of the event occurring are high and can change the way we think.  Pregnant women and people with weakened immune systems are at high risk, but constitute a more discrete part of the population that is generally more likely to consider itself in need of health information.  I'm 54 and don't think of myself as at extra risk of this kind of food-borne illness. 

On the other hand, I haven't eaten any cold cuts or hot dogs since I started getting a reaction to them while still in my 30s. 

The title of this entry is a pun, because quinoa is pronounced "Kin Wa".  That's appropriate because in Hebrew the word for Passover is also a pun, meaning both "pass over" and "lamb", denoting the sign of the lamb on the doorposts of the Jews designating that the angel of death would pass over their homes on his way to foment the tenth and last plague on the Egyptians.  There is a great debate about quinoa, a grain not known in Biblical places in Biblical times.  Can we eat quinoa?  A New York Times article on Sunday stated the state of the debate.  Since I doubt anyone was in a position to take a four-day trek into the Bolivian wilderness to inspect quinoa processing operations in time for a holiday that began Monday night, the decision to eat quinoa or not must be left to the individual conscience.  Assuming you know where you can get quinoa anyway. 

Which brings up the larger point, as the New York Daily News asks, why do Seders, indeed Passover in general, put the "fun" in dysfunctional?   Growing up, I remember Seders with my entire extended family at my great aunt's house, the only time during the year everyone would be together at once, but I also remember how little I understood of the davening in Ashkenazic Hebew at warp speed (the term hadn't been invented yet) and how so many of us little kids would end up being disciplined because we couldn't sit still through the hours of reading the entire Haggadah.  The most wonderful Seder I remember was the first one, as an adult and a parent, where we had four children and eight adults (one child per family) and all the children made it through the entire service (much in English, much shortened), each one participating and no one leaving the table.  At the end we all agreed to do it again together every year.  Which we did until my own son, the eldest of the children, left for college, with additional children, another family, wandering members of extended families and the effects of one divorce bending but not breaking the group.  The last time we were all together, the group strained the size of our dining room, but it was a happy strain.

One thing we did every year was read passages from 1001 Questions About Pesach, where we learned that a certain Ashkenazic rabbi believed that someone somewhere would soak fresh garlic in beer, so garlic was not permitted at Passover.  And we would talk about these things, adults and children.  We resolved the garlic thing against the rabbi's ruling, by the way.

My mother, like many others, has long sought to find ways to make cakes, breads and rolls in ways that meet the strict Passover requirements.  Our family has rebelled against this idea.  Many Orthodox families will stress over the preparations for the holiday for a month or more before.  Our family has resolved this differently.  Our view is that the Jews in Egypt got no notice of the Exodus, that was why they didn't have time to prepare.  So we eat things that can be hastily prepared; our typical Passover meal is a fritata made with fresh vegetables. 

Okay, so what's the "food liability law" angle to this?  Well, there was one other key article this week, this from the Wall Street Journal, about the different degrees of preparation certain rabbis insist upon.  There are different organizations with different certification standards, each with a different mark.  And if you are not someone who accepts a particular mark, it is as though the food contained ham, cheese and, for Passover, French bread.  If you invite a particularly observant Jew to your home, and assure him or her that all the food will be Kosher for Passover, do not be surprised if instead of a simple thank you, you are subjected to a cross-examination about every item. 

Is there consensus?  Yes, it is pretty clear that an unpeeled piece of fruit, which can be washed by the eater himself or herself, wll be acceptable.  Better yet, an unpeeled banana, which need not be washed to be eaten.