The Faculty Lounge

CRISPR in Agriculture: An overview of the gene-edited food that probably isn't a GMO

On Monday of this week, TIME announced its 2016 Person of the Year shortlist. Many of the names were unsurprising: Donald Trump, Hillary Clinton, Simone Biles, and Beyoncé Knowles all seem to make sense. One entry in particular, however, seemed like a bit of an outlier -- the CRISPR Scientists. As outlined in TIME's announcement: 

These scientists have developed a groundbreaking new technology that can edit DNA, a technique that has the potential to transform science and the human experience, as it could be used to find and remove mutations responsible for incurable diseases.

I've been following this technology for a little while, so when the announcement was released, I immediately wondered how it would impact everything else happening in the food law arena right now and in the future.

CRISPR, the shorthand reference for "clustered regularly interspaced short palindromic repeats" (pronounced crisper), has been touted as a technology that has the potential to quite literally change the world. Scientists believe it can be used for everything from potentially curing cancer, to saving the lives of children who are allergic to vaccinations, to de-extinction of the wooly mammoth.

The One Where Joe Miller Eats a Dog Biscuit

That would be Episode 72 of the always interesting, frequently zany Oral Argument podcast, in which I join Joe Miller and Christian Turner to talk about the Dallas Cowboys, the new Star Wars movie and, eventually (starting at around the 23-minute mark), the Facebook mood contagion experiment and whether Facebook should be regulated like a utility or a burrito stand. And yes, Joe does actually eat a dog biscuit during the show. One of the ones pictured here, in fact. Joe reports that, inexplicably, the peanut butter treats taste like chicken.

The Ethics of Punking the Diet-Research Media Complex (and Millions of Readers)

A remarkable new “sting” of the "diet research-media complex" was just revealed. It tells us little we didn’t already know and has potentially caused a fair amount of damage, spread across millions of people. It does, however, offer an opportunity to explore the importance of prospective group review of non-consensual human subjects research—and the limits of IRBs applying the Common Rule in serving that function in contexts like this.

Journalist John Bohannon, two German reporters, a doctor and a statistician recruited 16 German subjects through Facebook into a three-week randomized controlled trial of diet and weight loss. One-third were told to follow a low-carb diet, one-third were told to cut carbs but add 1.5 ounces of dark chocolate (about 230 calories) per day, and one-third served as control subjects and were told to make no changes to their current diet. They were all given questionnaires and blood tests in advance to ensure they didn't have diabetes, eating disorders, or other conditions that would make the study dangerous for them, and these tests were repeated after the study. They were each paid 150 Euros (~$163) for their trouble.

But it turns out that Bohannon, the good doctor (who had written a book about dietary pseudoscience), and their colleagues were not at all interested in studying diet. Instead, they wanted to show how easy it is for bad science to be published and reported by the media. The design of the diet trial was deliberately poor. It involved only a handful of subjects, had a poor balance of age and of men and women, and so on. But, through the magic of p-hacking, they managed several statistically significant results: eating chocolate accelerates weight loss and leads to healthier cholesterol levels and increased well-being.

They wrote up the results, submitted the manuscript to twenty predatory journals known to publish basically anything for a price, picked one of the “multiple” ones that accepted it, and wrote a check. (The journal that published the paper now says it did so “by mistake” and has removed it from its website, but you can read it here.) Then they cooked up a press release, sent it out to numerous journalists and media outlets, and waited. Several (of various quality, focus, and circulation) took the bait and passed on to their readers the good news that adding chocolate to a "strict" low-carb diet would "accelerate weight loss." As Bohannon brags:

It made the front page of Bild, Europe’s largest daily newspaper, just beneath their update about the Germanwings crash. From there, it ricocheted around the internet and beyond, making news in more than 20 countries and half a dozen languages. It was discussed on television news shows. It appeared in glossy print, most recently in the June issue of Shape magazine (“Why You Must Eat Chocolate Daily”, page 128).

Then, yesterday, Bohannon exposed his own “con” in io9, an online science and technology magazine, under a headline that blared: I Fooled Millions Into Thinking Chocolate Helps Weight Loss.

Was the sting ethical?

Call for Abstracts: Constitutional Challenges to the Regulation of Food, Drugs, Medical Devices, Cosmetics, and Tobacco Products

At the request of the organizers, I'm passing on the following:

The Food and Drug Law Journal is pleased to announce a forthcoming symposium—Constitutional Challenges to the Regulation of Food, Drugs, Medical Devices, Cosmetics, and Tobacco Products—to be held at the Georgetown University Law Center (GULC) on Friday, October 30, 2015, and co-sponsored by the Food and Drug Law Institute and GULC's O’Neill Institute for National and Global Health Law.

The deadline for submitting abstracts is June 1, 2015. Download more information about the symposium here.

Shanghai: Work, Food, and More

I was in Shanghai last week for the first time, attending a conference and an alumni dinner. The conference – The 2014 International Forum on Financial Law — was at KoGuan Law School at Shanghai Jiao Tong University and was a lot of fun. The conference format was a new one for me and I thought worked very well, especially for an international audience.

The morning consisted of public lectures by party officials, regulators, practitioners, and academics with simultaneous translation. One or two of the Chinese academics were fairly critical of various aspects of the Chinese legal system, and watching the responses from fellow presenters and audience members was especially interesting, though I’m sure that I missed many of the subtleties of these exchanges.

The afternoon was divided into parallel sessions, one in Chinese and one in English, with paper presentations by invited guests. My presentation was in the English session, of course, so I can only speak to the specifics of that one, but I was very pleased with the quality of the presentations and discussion. I learned some new things about emerging corporate law and financial regulation issues in China, Singapore, and Japan, and was struck by both the similarities and the differences of the concerns: for example, several of the papers were on shadow banking in China, which is clearly a concern (as it is in the U.S.), but the character of shadow banking appears quite different in China, making the US experience only partially comparable.

My panel line-up was scheduled as follows, though for scheduling reasons there was a last minute switch of Shen Wei’s presentation on Chinese local government debt and shadow banking (which was excellent) instead of Cheng-Yun Tsang (who did a fine job on the next panel):

Host: Shen Wei, Professor of KoGuan Law School, SJTU

Discussant: Douglas Arner, Professor of The University of Hong Kong

Speakers:

Kim Krawiec, Professor of School of Law, Duke University

Wang Jiangyu, Associate Professor of Law School, National University of Singapore

Manabu Matsunaka, Professor of Nagoya University

Tang Yingmao, Associate Professor of Law School, Peking University

Cheng-Yun Tsang, Doctoral Student of School of Law, Duke University

Naturally, I made time for some food tourism as well (courtesy of UnTour, which I highly recommend). Included are photos of my street food breakfast in Shanghai on the day of departure, which was delicious, and can be roughly divided into three categories: noodles, dim sum, and deep fried dough (yum, yum!)

 

Shelf Life Extended, Wal-Mart Makes Hostess Twinkies Fresh Longer

I k now.  It's been hours since I've discussed new developments in the Hostess rollout story.  But I hadn't focused on this incredible new feature of the Wal-Mart Hostess Twinkie: it lasts twenty days longer than the old version.  Apparently, the new spongy delight cake will stay fresh and delicious for 45 days now - up 20 days from its old 25 day shelf-life.  The twin evils of moisture release and mold growth were holding Hostess back in the old days.  Somehow, Wal-Mart put these demons in their place and brought forward a convenience food you can keep around the house for a full  month and a half.   That's long enough to send them with your kid to 6 weeks of overnight camp! (Oops.  It's a little too late for this summer.)

Hell...if you can double the number of transistors on an integrated circuit every 18 months,  technology should permit the doubling of a Twinkie's shelf-life every 83 years!  To think my great-grand-children might keep their Twinkies for a full three months.

 

Hostess Cupcakes Return To Walmart -- Early. Crack Open The Kim Crawford!

Just 48 hours ago, I was excited to let people know that Twinkies were back on the market as of this weekend.  Sadly, I reported, we'd have to wait until later in the summer for the chocolate tier of treats.  Well...those reports were flat wrong.  This very day, as I headed to my local Walmart Twinkie section, I came upon the crown jewel of the faux bakery collection: the delicious, creme filled chocoate cupcake.   

I'm thnking they'll go great with a splashy New Zealand Sauvignon Blanc.  

Image: MY cupcakes photographed on kitchen counter prior to breaking open the box.

Twinkies Are Back (at Wal-Mart); When Will Hostess Ho-Ho's, Suzy-Q's, Zingers, And Sno-Balls Return?

Hostess pastries are back, now as an in-house brand for Wal-Mart.  As of today, Twinkies hit the first Wal-Mart...and they'll be in thousands of stores by Sunday.  I trust that at least a few of our allegedly high-brow, locavoracious, Wal-Mart hating readers will make the pilgrimage to the House that Sam Built in the next few days to stock up on those death-encouraging, Kessler-enraging, artificially flavored, colored, and textured treats.

But what about those of us who were never really taken by the Twinkie?  Those of us who prefer chocolate style junk food treats?  Don't despair!  It appears that Ho-Ho's, Cupcakes, Zingers and Suzy-Q's will arrive later this summer.  With Sno-Balls coming in the fall, presumably in time to mock those disgusting, cold, and flavorless "genuine" snowballs.

Of course, Wal-Mart wasn't the inevitable caretaker of Hostess.  It could have gone to the nation's largest retailer of pastries, after all.  A Zinger and a tall Kati Kati anyone?

Image: Zingers from those halcyon days of Dolly Madison Bakery, before being acquired by Hostess.

The Best High Tea In New York City? Afternoon Tea At The Hotel Lowell Pembroke Room

One of the great pleasures of a trip to NYC is a stop for afternoon tea.  No, it's not London.  But the city does have a number of wonderful places to stop for some afternoon relaxation.  Among the city's finer options is, of course, The Russian Tea Room.  But I don't think I've ever had a nicer trip back to 1948 than tea at the Hotel Lowell on the Upper East Side.  The dining room and the service both feel as if they'd been preserved from that moment, 65 years ago.  Sure, the tea was delicious.  The place was filled with grown ups when we were there, but our flock of three girls - ages 8-11 - were welcomed and felt entirely comfortable.  And when it turned out that  the restaurant had run out of Nutella (for about 10 minutes), the girls were treated to a mind boggling martini glass filled with candies.  Anything to keep their spirits up!

It's not just the restaurant.  The Hotel Lowell is a gem, through and through.  I've heard it said that it's best New York hotel you've never heard of.  

But I don't have to rely on hearsay when it comes to high tea.  The girls left the experienced awed.  We couldn't have asked for better.

Bloomberg, Big Soda and Micropaternalism

Mayor Bloomberg's NYC ban on selling super-size sugary sodas in certain venues has repeatedly been in the news lately, particularly after a NY Supreme Ct. judge imposed a judicial stay on the ban last week.  Since the ban has raised issues of paternalism, obesity, the "nanny" state, agency creativity, over-regulation, poverty, and race, there has understandably a huge kerfluffle,with the New York Times, the Huffington Post, Rick Hills and Ethan Leib at Prawfs, Aaron Saiger at Concurring Opinions, and Mark Bittman all weighing in.

But what best explains  the ban, the stay, and the furor, given the edict's limited reach?  A very interesting new article entitled MICROPATERNALISM , written by David Adam Friedman, provides a fascinating and original theory to explain why:

In this Article, I have created a theory of “micropaternalism” to capture the essence of a unique regulatory dynamic. As I define it, micropaternalism describes when policymakers paternalistically regulate a narrow area, thereby provoking public debate about the underlying controversial issues addressed by the regulation. The loss of autonomy, even in a narrow zone, can instigate a broad-ranging discussion that ultimately influences social norms.

For example, Mayor Michael Bloomberg’s attempt to limit the portion sizes of sugary drink servings in New York City started a legal fight and a loud social fight about public health and paternalism. The New York City Board of Health enacted a code that covered an extremely narrow piece of the obesity problem, but the public debate took place on a big stage. Discussions about obesity as a public health problem leapt from the policy sphere to the popular sphere. In the long run, the dialogue may have more of an impact on public attitudes and private behavior than the actual regulation—a regulation that may not even prove enforceable. By putting the issue before the public and raising awareness, the debate about overconsumption could potentially reset norms.

Best read and enjoyed with a Big Gulp. 

Addictive Junk Foods

The New York Times has a very provocative article coming out in tomorrow's magazine about the junk food industry.  It is definitely worth a read.  The author draws parallels between the big food industry tactics and big tobacco.  This is an analogy made earlier by Kelly Brownell  Rudd Center for Food Policy and Obesityand his co-author Kenneth Warner in this article "The Perils of Ignoring History: Big Tobacco Played Dirty and Millions Died. How Similar is Big Food"? The Perils of Ignoring History.  One aspect of this story that may be a revelation to many people is the degree to which food has been deliberately engineered to engender what the article calls "the bliss" point.  What should be apparent is that the industry has spent, and continues to spend, billions of dollars on engineering these foods and fine-tuning their marketing pitches. And data mining allows them to be more fine-tuned than ever, as this article from Advertising Age suggests. Facebook to Partner with Acxiom.

A good deal of the advertising dollars spent by advertisers or these products are spent directing ads at children and teens, which, when one considers what is being pitched, doesn't make the analogy between tobacco and junk food seem that far fetched. See for example this quote from the AdAge article: "The targeting would hypothetically enable Coca-Cola to target to teenagers who've bought soda in the last month..."

I have long wondered why it doesn't bother people more than it seems to that so much money is spent pitching directly to kids,  since no one thinks children or teenagers are fully rational choosers (even if we pretend for sake of argument that adults are). So why is it okay to train this battery of persuasive efforts at them? And in many cases marketing efforts are clearly aimed at very young children. The figure of Ronald McDonald is an example.  Is Ronald McDonald the New Joe Camel?

However, just as this issue is getting more attention (again - it saw a good run in the 1970s in the FTC's ill-fated  "Kid-Vid" investigation),  the commercial speech doctrine has become so much more protective of advertising that any proposed restriction on advertising, even if it is to apply only to the most vulnerable group, children, is likely to fail First Amendment scrutiny. Indeed, some academics argued that even the mere proposal by an Interagency Working Group see here formed to try to propose industry self-regulatory guidelines on marketing of junk food to children, would fail the First Amendment because mere publication of such suggestions which did not have the force of law, might have a "chilling effect."  See here and here . It appears it was the government not the marketers, which was "chilled." FTC weakens proposals.  The irony is that given the state of the law, it might be easier to ban certain products, as mayor Bloomberg did, than it is to regulate the marketing of those same products. Yet, for those worried about the "Nanny state" a ban is arguably far more intrusive on liberty than a ban on marketing -- except the marketers' liberty. But the whole idea in protecting commercial speech was that it was supposed to further consumers' liberty, not advertisers. So this is a bit of a puzzle. 

Costco Prepares For Armageddon

Way back in the stone age, as a young pup, when I was blogging at Concurring Opinions, I was intrigued by Costco's entry into the casket business.  Now those crafty marketers are back, staking out that intermediate space between death and life (as we presently know it): the world that requires a 1 year emergency food kit for a family of four.  

And here's a hint for those of you considering ordering those 30,144 servings of delicious dried food ("simple to prepare without electricity") as a Christmas present: wait until December 27 and Costco is going to hack $500 dollars off the price.  

Of course, it's hard to perfectly time these things and you don't want to get it wrong.  Perhaps its best to pay full price and stock up today.  You'll probably want to order the 2000 pounds of Organic Valley dry milk to go go with it - one gets thirsty underground.

A Memorable Thanksgiving Bird

I've never heard of, or seen, a bacon wrapped turkey.  But today, the Swarthmore Co-op (my local gourmet-ish food store) featured this elaborately bandaged bird on its Facebook page.   I don't have a good excuse for sharing the picture except that it was one of the more memorable images I've seen recently.  People will disagree about whether it's disgusting or incredibly alluring - but I certainly didn't find it to be mundane.  Happy holidays!

 

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Candy Caned (Or, The Outer Limits of Legitimate Property Security)

Two weeks ago, a man allegedly attempted to steal a Snickers™ bar from a 7-Eleven store in Brooklyn, New York. In response, three clerks accosted the man, tackled him, bit him, slammed his hand in the store’s doors, and stripped away his clothing, leaving him injured and nearly naked. The incident was captured by cameraphone video (warning: nudity, offensive language, and violence). The video shows the three store workers pushing, pulling, biting, and kicking the accused. (One can also see their faces when they realize that the incident is being recorded.) This incident has prompted a spirited discussion (at least among some New Yorkers) over whether the store clerks went “too far.” But what is “too far” in this context? Where does legitimate property security end and (illegitimate) violence begin?

Shoplifting is, admittedly, a major issue for the retail industry; theft accounts for billions of dollars in losses. And despite the economic effects of shoplifting, few shoplifters are ever caught. When shoplifters are apprehended, police intervention is not always available: Earlier this year, Dallas police announced that officers would not be dispatched for thefts totaling less than $50. Yet, while few people debate a retailer’s right to loss prevention, there is a line (in fact, a gulf) between loss prevention and brutality.

The 7-Eleven fracas has also prompted a conversation over whether the actions of the clerks were racially motivated. In recent years, New York City retailers have made news over their disparate treatment of suspected shoplifters of color. In 2006, Macy’s paid $600,000 to settle a case brought by former AG Eliot Spitzer over the retailer’s discriminatory treatment of black and Latino shoppers. In the Macy’s case, Latinos were five times more likely and blacks were three times more likely to be handcuffed than whites detained on allegations of shoplifting.

Troublingly, the 7-Eleven incident bears an eerie resemblance to another with which I have some familiarity. Imagine the scene: A girl visiting a chain grocery store allegedly puts a piece of candy into her pocket; before she leaves the store, the store manager detains her, binds her hands, and physically restrains her in view of passersby. The differences between this story and the 7-Eleven stripping are few: both involve national chains; both involve a single item of candy; both involve a retail employee responding to a suspected petty loss with disproportionate violence against a person of color. The primary difference between these incidents is that the 7-Eleven fracas occurred two weeks ago, while the situation involving the girl happened in 1930 in Jim Crow Georgia.

Charlie Mae Dowling, a twelve-year-old black girl, entered a Georgia A&P store, and picked up a single piece of candy from the floor. The store manager observed Dowling as she put the candy in her pocket; in response, he accosted her, forced her to pay for the candy, detained her, tied her hands together, physically forced her hands up above her head, and tied her to a rope suspended from the ceiling. The manager kept the girl in this position for two hours – during which time he threatened to kill her – until her mother arrived and paid the store $5 for the girl’s release. A civil jury later awarded Dowling money damages on the grounds that she had been "inhumanely assault[ed]" and "tortured" by the store manager (upheld on appeal at Great Atlantic & Pacific Tea Co. v. Dowling, 43 Ga.App. 549, 159 S.E. 609 (Ct. App. 1931)).

Research suggests that retail property security measures are differentially applied depending upon the race of the suspected shoplifter, with blacks and Latinos subject to physical restraints and criminal prosecutions more often than others. Without speculating over the motivations of these individual store clerks, I’d suggest that wherever violence is employed to protect property, we should be suspicious, as Daniel J. Sharfstein demonstrates in his brilliant article (on ssrn here) on the persuasive connection between property claims and violence against disfavored people. Sure, chasing down a thief may be an “expression of professionalism” (in Sharfstein’s words) for the store clerk, but I wonder how far a retailer should be allowed to go before liability attaches. In other words, are canings over candy ever within the bounds of legitimate property security?

The Death of the Suit?

    At my law school, particularly before we merged with the University of Massachusetts, many of the students were not familiar with business dress. Our school is located in an area that has many first and second generation immigrants and has a history that is more blue than white collar. Because of this, many on our faculty attempt to model “proper” business attire for an attorney by dressing in a style that is conservative, traditional and main-stream.

    Recently, I have had the chance to visit several major U.S. cities and have noted a big change in general dress standards. For example, on recent trip to NYC, I dined at several top-drawer restaurants, Le Bernardin, for example (deserving all of the accolades it has gotten, by the way). Ten years ago, no sane person would think about entering that style of a restaurant without wearing business attire; indeed, many top restaurants had and enforced a dress code. On my recent trips, however, I found that business attire is now the exception with many diners wearing much more casual attire, i.e., shorts and a polo shirt in Le Bernardin. I found the same thing to be true in other cities in both the South and West.

    My question is whether the time spent talking to students about business attire is now wasted. After all, it wasn’t long ago that no lawyer would enter a courtroom with less than a wig and robe. Is business dress dying?

Starbucks To Eliminate Crushed Bugs From Its Food And Drinks

I shit you not. More than anything, this explains why most of us really don't want to know the details about what we eat.  No wonder those red velvet whoopie pies aren't Kosher!

Uneeda Biscuit Sign, Church Hill

Here's a picture of the Uneeda Biscuit sign on Church Hill in Richmond.  I was pleasantly surprised to see that it's still there; I remember seeing that when I first moved to Richmond way back in August 1990.  Lots of water under the bridge since then, obvioulsy.  One of these days I hope to find the slide I took of this back in 1990!

What To Drink During Final Exams

"Brain Toniq is no marketing gimmick." 

Additional info here.

And here's a link for those who think a single can won't suffice.

Counter Culture Comes To Philadelphia: In Honor Of A Great Cup Of Coffee

Longtime readers know that I love drinking and writing about coffee.  I've pondered how to get fat faster at Starbucks, whether Starbucks will start selling booze, menu mischief at Starbucks drive throughs, Starbucks secret menu, and coffee at the AALS.  Yes, there has been an obsessive focus on Starbucks here - which is an artifact of its ubiquity.  In my own defense, I have advocated for fine alternatives such as California's Graffeo and Philly's La Colombe.

Today I want to make the case for the roaster of the tastiest, brightest java I've had in a very long time: Counter Culture Coffee, out of Durham, NC.  Why am I so moved?  One totally awesome cup of Papua New Guinea coffee which spirited me through an entire exam review session in Criminal Law this morning.  And while I'm in the mood to promote things that bring me joy, let me also mention the best prepared coffee in all of Philadelphia - a little gem named Town Hall Coffee in (gasp!) suburban Merion Station, Pennsylvania. Every cup is prepared via pour-over, with freshly ground coffee.  It takes forever, but the result is spectacular. 

Last class of the term.  Incredible cup of coffee.  Is this a day for Lotto or what?

Who Needs a Pick-Me-Up?

As if the UCC itself didn't provide a sufficient buzz, now comes ... UCC coffee!

(Hat tip to Bob Lawless at Credit Slips.)