The UAW's messaging around the works council idea. (UAW.org)
This week at Volkswagen's plant in Chattanooga, Tenn., 1,570 workers will vote on whether to join the United Auto Workers. It's a big deal: While the big three American carmakers are all unionized, so far the foreign companies have avoided it by locating in Southern states with strong Right to Work laws. From their perspective, unions usually just mean work stoppages, expensive benefit plans, and the inability to fire people at will.
That's what's weird about the VW vote: The German company is campaigning for the UAW, not against it, in a kind of employer-union partnership America has seldom seen. What gives?
Well, VW is kind of different, as automakers go. It understands how having a union can boost productivity and allow it greater flexibility in adjusting to downturns. It should know: The rest of its plants are unionized too.
This would also be something new for the United Auto Workers. They wouldn't have the same relationship with VW as they do with Chrysler, General Motors, and Ford. Rather, the idea is to create something called a "works council," which are widespread across Europe and enjoy tremendous influence over how plants are run. In America, that kind of body can't be established without a union vote -- but crucially, the works council would be independent of the union, meaning the UAW would give up some control as soon as it gained it.
While the details of the arrangement would be ironed out after the election, works councils -- which are elected by all workers in a factory, both blue and white collar, whether or not they belong to the union -- usually help decide things like staffing schedules and working conditions, while the union bargains on wages and benefits. They have the right to review certain types of information about how the company is doing financially, which often means that they're more sympathetic towards management's desire to make cutbacks when times are tough. During the recession, for example, German works councils helped the company reduce hours across the board rather than laying people off, containing unemployment until the economy recovered.
In the early 1990s, Harvard labor law expert Paul C. Weiler interviewed managers about why they valued works councils. One representative executive told him:
There are three major advantages of councils. You're forced to consider in your decision making process the effect on the employees in advance…this avoids costly mistakes. Second, works councils will in the final run support the company. They will take into account the pressing needs of the company more than a trade union can, on the outside. And third, works councils explain and defend certain decisions of the company towards the employees. Once decisions are made, they are easier to implement.
In that way, works councils can be an ally of management in keeping the business strong for the sake of keeping workers employed over the long term. Weiler was given this example:
[The parent company made] an agreement with the works council to introduce a flexible work-time system, around-the-clock operation through Saturday, starting again Sunday night. They were under tremendous pressure from the union not to do this, but let us go ahead. We couldn't have gotten that out of the union.… Our works council people are not hostile to rationalization of automation. On the contrary, they ask us to automate, to modernize our machinery so that our operations can be competitive. They say, 'We know that we lose jobs by this, but we agree that this is a good thing.'
Works councils are also typically not allowed to call strikes, but they also don't usually need to, because their authority is baked into their agreements with the company (and, in Europe, usually enforced by law). If the UAW wants to strike over wages and benefits, it's still able to do so, but the likelihood of arriving at a mutually agreeable solution without one is much higher.
That's why VW wants its plant to go union. According to VW's global works council leader, Bernard Osterloh, the company even sees its culture of worker codetermination as a "competitive advantage."
That doesn't mean, however, that the vote is unopposed. National anti-union groups and the state's Republican leaders are campaigning against the UAW, saying unionization will spread like a contagion through Tennessee's other auto plants. “Then it’s BMW, then it’s Mercedes, then it’s Nissan, hurting the entire Southeast if they get the momentum," said Sen. Bob Corker (R.-Tenn.).
BMW likes its works councils too, though. Apparently, some politicians think they know what's good for auto makers better than the companies do themselves.
LaurakoontzSame thing happens in our house, daily.
LaurakoontzNOOOOOOOOOOOOOOOOOOOO
The nation’s top telecom regulator is planning to propose allowing passengers to make cellphone calls and use their data plans while on an airliner, officials said Thursday. Read more at the Switch.
Rumors of witchcraft began spreading through the Salem Massachusetts colony prior to 1692 and helped fuel the turmoil between the different religious sects in the area. Life at that time was strictly governed by the church. Music, dancing and the celebration of holidays were forbidden because the belief was this activity was Pagan. Ironically, the only celebrating tolerated was for the agricultural harvest.
The children of John Goodwin, a local mason, apparently were tempted by the Devil himself to steal linen from an old woman named Mary Glover who was miserable and often described as a “Witch”. She allegedly retaliated and was accused of casting a spell on the Goodwin children for their crime. When four of the six kids began to suffer from the “Disease of Astonishment,” with symptoms of hallucinations, back and neck pain, random outcries and loss of neurological control over body functionality, witchcraft was implicated and so began the craze of 1692.
Crops of rye were grown in the Salem vicinity around the time when many individuals were deemed “Possessed” by the Court of Law. The cold winter followed by a wet spring caused “Claviceps” (a group of fungi) to grow on some of the grains. The “Ergot” fungus blight, which formed an alkaloid producing mold was toxic and actually caused the strange behaviors exemplified by the people who were thought to be affected by witchcraft. A foodborne intoxication occurred when the contaminated rye was consumed and this theory was not discovered until 1976 by Linda Caporael.
Adulterated food can kill you in more ways than one.
Nineteen of the accused witches were hanged to death. Their bodies cut from the trees and throw into shallow ditches only to be recovered by family members under the cover of darkness and buried in unmarked graves. Others refused to testify in court and were subject to “Peine Forte Et Dure” where they were placed under rocks and pressed with the heavy load until information was disclosed or in one case, crushed to death.
Most of the evidence used to convict the witches in 1692 was “Spectral,” where the accused admitted to seeing a ghostly apparition, shape or Devil afflict them with the loss of body control, delirium and odd speech.
This tragic case of American history can repeat itself in the sometimes complacent food service industry in regards to food safety. Just like in 1692, some people are unaware of the ever changing, “Emerging” pathogenic dangers that are out there. Education through training is paramount in protecting the health and well-being of today’s consumer.
Unfortunately in some cases, it is the liability — not the witchcraft — that motivates compliance.
LaurakoontzI don't understand anything about anything.
LaurakoontzIf Grover Norquist thinks you're an asshole, you're definitely an asshole.
Grover Norquist is the president of Americans for Tax Reform and the creator of the anti-tax pledge that nearly every Republican in Congress has signed. We spoke on Tuesday about the government shutdown and its consequences for his agenda. A transcript of our conversation, edited for length and clarity, follows.
"V" for "very low taxes." (Bill O'Leary / The Washington Post)
Ezra Klein: So, do you think a shutdown is good for the issues and ideas you’re trying to push?
Grover Norquist: Not necessarily. I think the original plan for the Republicans was to move the continuing resolution past the debt ceiling and then to sit down with Obama and decide whether he would be willing to trade some relaxation of the sequester for significant reforms of entitlements. That was something Obama might well do. Democrats in the House and the Senate are very concerned about caps and limits in sequestration. Republicans could get significant long-term entitlement reform -- all on the spending side, I’m assured by leadership -- for some relaxation of sequester.
Something like that might’ve worked out. There was also the possibility, and I was an advocate, of pushing for delay. I thought Obama might do that. And even if he didn’t, I liked the idea of a two-month conversation over how Obama has delayed Obamacare for big business and big contributors and organized labor but not for you. So how about all Americans get treated equally and we have rule of law and delay everything? Obama was thoughtful enough to time Obamacare and its taxes to kick in after he was safely reelected. Those senators running in 2014 were not given the same courtesy. Why not give them that?
EK: That sounds like the strategy that got us the shutdown, though.
GN: No, the leverage isn’t the debt ceiling. It’s not the CR. It’s the sequester. Democrats think this is desperate privation. It’s like the Kennedy kids with only one six-pack. They feel they’ve never been so mistreated. So there’s something they want. And there’s something Republicans want. So you could see a deal there. And the leverage was the sequester. That’s what struck me as what leadership was thinking about, and it made a great deal of sense.
The second thought was to have a conversation over the one-year delay. A two-month conversation about delay would be healthy for the body politic. And maybe you’d get the delay. There’s no shame in the delay. Microsoft is always delaying Office. You could do it without humiliating the president.
But that’s not what we did. Ted Cruz, from left field, said we have to defund Obamacare permanently in this CR. If they offered the Keystone pipeline and the privatization of Fannie and Freddie you couldn’t take that. We only want this, and we only want it on Tuesday -- Wednesday is no good. The debt ceiling is no good. So that got locked in as a principle. And people went out on talk radio and said if you’re not for this you’re a coward, you’re a RINO.
EK: And that got in the way of the larger strategy?
GN: I’m cheerful because every Republicans is for repeal of Obamacare. When’s the last time we passed a big government entitlement and every Republican opposed it and kept pointing out that it’s a mistake? There’s unanimity among Republicans. They all voted against the thing being created and for it being repealed.
The only confusion that comes out is that Cruz stood on the side and confused people about the fact that every Republican agrees. He said if you don’t agree with my tactic and with the specific structure of my idea, you’re bad. He said if the House would simply pass the bill with defunding he would force the Senate to act. He would lead this grass-roots movement that would get Democrats to change their mind. So the House passed it, it went to the Senate, and Ted Cruz said, oh, we don’t have the votes over here. And I can’t find the e-mails or ads targeting Democrats to support it. Cruz said he would deliver the votes and he didn’t deliver any Democratic votes. He pushed House Republicans into traffic and wandered away.
So then the House said, breaking completely with Cruz because Cruz thinks if you’re not defunding the whole thing it’s treason, that there’s delay. There’s getting rid of medical device taxes. They’ve done a series of things to hold together Republicans and break with Cruz. But because we started with the Cruz approach this got to the shutdown.
EK: What do you think happens next?
GN: I think the president must think he can spin a government shutdown. I think he’s already screwed it up. Putting up barriers so guys in wheelchairs can’t go to the World War II memorial. It’s an open-air memorial. They put up those barriers in the middle of the night. They did it on overtime!
The president threatened not to pay the military. So Republicans passed the bill paying the military. Democrats threatened to not pay veterans. So Republicans are passing a bill to pay veterans. Democrats cannot with a straight face blame Republicans for any of the things that happen in these agencies. It’s the president playing politics. I think it puts him in an awkward position.
And now we have a series of Democrats running for the Senate trying desperately to show they’re not clones of Reid and Obama, and they just made them vote once again for Obamacare. Just to remind everybody. We have enough votes in the last few days showing these Democrats do what Harry Reid and Barack Obama want and not what North Carolina and Arkansas and Alaska want. I don’t think Reid’s paying attention to what he’s doing to his candidates.
Look, these were the guys who thought sequestration was a great win for them and who made 85 percent of the Bush tax cuts permanent. The Bush tax cuts were an upper hand he could have used to control the country for years. If he would have extended it for a year we’d be talking about whether there should be a tax increase right now. You shouldn’t spend too much time thinking you’re dealing with political geniuses here.
EK: Walk me through the endgame though. The day before the shutdown ends, what will have happened in Washington?
GN: Unlike some other institutions in this town, I work to give some reasonable advice to members of Congress and shape public opinion. But I don’t micromanage the negotiations of House and Senate guys with the White House or stand outside the negotiations and announce somebody should lay down a nonnegotiable demand with a tactic and a date attached to it.
Republicans have their principles. Let’s have health-care be more consumer-oriented, let’s not raise taxes, let’s reform government. I could imagine many things that would work inside those principles, but I’m not in Obama’s head. I don’t know how he values those things. If I were him I’d trade some money off the sequester today for reforms in entitlements that take place a long time from now. Those reforms will be done by somebody. You might as well get something for them. Someday Republicans will hold the White House and the Senate and they’ll pass the Ryan plan. You might as well get something for it.
EK: One aspect of this that you mention quite a bit, but that’s been somewhat lost in the debate, is that Republicans have really managed to hold the spending levels in the CR down. They’re below the original Ryan budget, for instance, and well below what President Obama and the Senate Democrats wanted. Yet Republicans feel like they’re failing because they’re focused on Obamacare. Do you think Republicans are winning on spending?
GN: Yes, absolutely. We won in 2011 and then again with the president making 85 percent of the Bush tax cuts permanent. We really did get caps and sequestration that limits government spending. If we just went home and put the government on autopilot it would be a win. This Republican Congress has made a fundamental shift in the size of government equation.
Sequester is the big win. It defines the decade. You still have to fix long-term entitlements, but the other team isn’t willing to do that. So you either wait for a Republican president and the Ryan plan or you get people so concerned about sequestration that they’re willing to come to the table and fix entitlements long-term.
EK: You say the other side isn’t willing to fix entitlements. But President Obama has a budget that includes chained-CPI. It includes the same level of Medicare savings that Ryan includes over the next decade. They’ve said they’re open to a deal on Social Security. They say the problem is that your side simply refuses to accept any tax increases -- even if it’s just in the form of cutting tax breaks -- as part of the deal and that that’s what is standing in the way of fixing entitlements.
GN: We’re in favor of phasing out any and all tax credits and deductions in return for lower rates. But we’re not for the effort by the administration to cripple tax reform by taking them and spending them.
The sequester changed the dynamic. You might’ve been able to sell some Republican bean counter on the idea that raising taxes and cutting spending are the same things because they reduce the deficit. But they’re not. We’re not raising taxes for entitlement reform. The Republican leadership has been very clear all along that no tax increase is on the table and if they did chained-CPI then the part of chained-CPI that’s a tax increase would have to be offset by rate reductions or tax cuts.
The administration asking us to raise taxes is not an offer; that’s not a compromise. That’s just losing. I’m in favor of compromise. When we did the $2.5 trillion spending restraint in the BCA, we wanted $6 trillion. I considered myself very compromised. Overly reasonable.
RELATED: 19 lawmakers who say they don't deserve salaries during the shutdown
This was originally published Oct. 1 on Maryn McKenna’s Superbug Blog, hosted by Wired Science.
There’s going to be a lot — a lot — of coverage today on the federal shutdown, what it means and how long it might go on. I thought it might be worth quickly highlighting how it affects the parts of the government readers here care most about: public health, global health, food safety and the spread of scary diseases.
Most of those government functions are contained within the Cabinet-level Department of Health and Human Services, where 52 percent of the employees have been sent home. So the news is not good.
The U.S. Centers for Disease Control and Prevention furloughed 68 percent of its people — not just here in Atlanta, but globally. Yesterday I asked a longtime acquaintance there what was likely to happen and she said:
“I know that we will not be conducting multi-state outbreak investigations. States may continue to find outbreaks, but we won’t be doing the cross-state consultation and laboratory work to link outbreaks that might cross state borders, such as a recent Hep A outbreak. We will not be doing rapid response for vaccine preventable disease cases or outbreaks, such as measles. We won’t be monitoring seasonal influenza activity in the U.S. as flu season begins.
“Surveillance for other emerging infectious disease outbreaks, such as H7N9 and MERS, will be weakened. We won’t be doing routine inspections of BSL3 and BSL 4 labs as part of the select agent program. Our work to prevent HIV/STDs and TB in the states using molecular epidemiology will be discontinued.”
Let’s unpack that a little bit. In the U.S., the flu season is beginning. This year’s flu vaccine has been manufactured and is either already in the hands of state and local health departments or with doctors or on its way to them via the commercial middlemen who handle distribution for the manufacturers. (OnTwitter today, Jim Garrow of the Philadelphia Department of Public Health confirmed that they already have an inventory of flu vaccine.)
So flu prevention won’t necessarily be harmed — except for those people who don’t get a flu shot unless CDC’s public health campaigns remind them because there won’t be any such campaigns. But flu surveillance, which CDC conducts and also assembles out of data sent to it by health departments and by networks of physicians, is on the shelf. Here’s what CDC’s flu-surveillance homepage looks like right now:
(The original page is here.)
And here is what that means: We are now at the start of flu season. If this season becomes a bad one — a rogue virus, an uneven epidemic, a concentration of cases in the elderly or the very young or in a particular city or state — we’ll have no way of knowing. And, for what it’s worth, we’ll have no way of directing additional public-health or research help because they’ve all been sent home. In tracking flu, one of the most unpredictable and mutable human-disease viruses around, we have been blinded. And, if the shutdown continues more than a few weeks, then that blindness will also blanket development of next year’s flu vaccine — because, within a few weeks, CDC researchers would start analyzing this year’s northern and southern hemisphere viruses to determine what ought to be included in next year’s vaccine mix.
That blindness is not limited to the U.S. CDC loans scientists and sends money to the World Health Organization and to dozens of countries in the industrialized and developing worlds. One of its specialties is helping to track the emergence of new flu viruses that have pandemic potential. That global spyglass has just been shuttered. And, we are less than two weeks from the official beginning of the hajj, the worldwide pilgrimage of observant Muslims to the holy sites of Saudi Arabia — where, if you’ve been following along, MERS has been slowly growing for more than a year. Health planners have been quietly fretting for months that the hajj might allow the spread of MERS outside of the Middle East — a reasonable fear, as that has happened in past hajj seasons with other diseases. But with the shutdown, we lose some of the most accurate tools for finding that out.
This enforced ignorance of disease spread isn’t hypothetical. Just this morning, the WHO tweeted that there is a three-country outbreak of more than 200 cases of polio in the Horn of Africa. The top polio-hunters in the worldwide eradication effort, the ones who developed the “molecular clock” that allows the eradication campaign to trace new cases back to their source, work at — yup, CDC.
The shutdown’s risks to health aren’t limited to what CDC does. The Food and Drug Administration has sent home 45 percent of its staff. The ones who remain can do so because they work in programs that receive user fees such as reviews of proposed new pharmaceuticals. Those can continue provided the application for review was already submitted. (New reviews, according to FDA’s statement today, are out of luck.) But food safety — always an underfunded mandate — is in real danger. HHS’s memo on shutdown staffing acknowledged this:
“FDA will be unable to support the majority of its food safety, nutrition, and cosmetics activities. FDA will also have to cease safety activities such as routine establishment inspections, some compliance and enforcement activities, monitoring of imports, notification programs (e.g., food contact substances, infant formula), and the majority of the laboratory research necessary to inform public health decision-making.”
Translated, that means: No foodborne outbreak tracking; no inspection of food imports; no lab research; no publishing of guidance documents. (Food Safety News and Regulatory Focus have more.)
At the U.S. Department of Agriculture — which attends to about 15 percent of the U.S. food supply, including meat, compared to FDA’s 85 percent — things are a bit better. Eighty-seven percent of its staff have been retained, including most of the Food Safety and Inspection Service. In its shutdown memo, USDA says FSIS falls under an Office of Management and Budget shutdown category described as “necessary to perform activities necessarily implied by law” (for wonks, that’s No. 3 of the five categories). Thus, they can continue to conduct meat, poultry and egg inspections on-site; that is, at plants and packing houses. However, the agency loses personnel as follows:
“The following headquarters staffs performing the central program guidance, coordination, direction and planning functions described will be furloughed except as minimally required in direct support of Agency field operations:
- Inspection Operations (Office of Field Operations): Responsible for planning, coordinating and directing the Meat, Poultry, and Egg Products Inspection programs. Due to the large numbers of in plant inspection personnel who support excepted activities, most individuals in this area would be excepted and on duty.
- Public Health Science (Office of Public Health Science): The Public Health Science Program is responsible for planning, coordinating and directing all scientific guidance and support in chemistry, epidemiology, pathology, toxicology, nutrition, and parasitological. The Public Health Science Program also performs Agency risk assessments, directs the residue testing program, and also performs activities that address zoonotic diseases. With the exception of the laboratory function within Public Health Science, designations for these functions would be non-excepted, with limited individuals being identified as excepted and on duty. The majority of all Laboratory functions will be excepted.
- International Programs (Office of Field Operations, Office of Policy and Program Development, and Office of Investigation, Enforcement and Audit): The International Programs are responsible for ensuring that meat, poultry, and egg products from foreign countries are safe and wholesome. Program personnel also confer with foreign governments on issues involving imports and exports of meat, poultry and egg products and international food safety standards. A substantial number of these programs other than inspection of imports and certifying products for export would not be excepted.”
I know other Wired colleagues are going to tackle the shutdown’s effect on the rest of the government science apparatus. There is no question, though, that public and global health and food safety are experiencing great impact. Better hope there are no major outbreaks brewing and that no food producer or manufacturer — or food importer in a country with lower standards — decides that now is the time to try to slip something by government-funded detection and response. As of this morning, the protections we rely on are no longer there.
The National Endowment for the Arts came out Thursday with its quadrennial survey of public participation in the arts, and the topline numbers are pretty dismal. The percent of U.S. adults who attended at least one kind of arts performance or visited an art museum or gallery is the lowest it's ever been measured, having declined nearly 8 percent since 1992.
The shrinkage was particularly pronounced for non-musical plays, which dove 12 percent over the last four years, though the percentage of those attending jazz and classical performances, outdoor music festivals and opera dropped as well.
What's going on here? Could it be falling public investment in the arts? Maybe, although that's not dramatically lower than it was in 1992, according to Americans for the Arts:
That doesn't seem like it could be totally responsible. Perhaps, instead, it's because peoples' discretionary incomes took such a beating over the past five years. Movie-going was actually up substantially, suggesting that Americans might have opted for lower-cost entertainment. And it looks like Americans for the Arts' "Arts Index," which incorporates arts exports, tourism, the health of non-profits and education, closely tracks the broader economy:
Still, as far as willingness to shell out for concert tickets, it seems that there's something more fundamental going on. People just aren't as interested in sitting down and having art rendered unto them in a completely passive way, says Americans for the Arts' vice president for research and policy Randy Cohen. The Washington National Opera may have needed to be bailed out by the Kennedy Center, he points out, but its simulcasts before Washington Nationals games became popular.
"You could ask the question, are Washingtonians no longer interested in opera?" says Cohen. "The problem may not be opera so much, but rather how people want to experience it. Sometimes, wouldn't you rather have a chili dog and a beer while you watch the opera?"
Or even be in the opera -- or symphony, like the Baltimore Symphony allows fans to do with its "rusty musicians" program. There's evidence that Americans are more interested in making art part of their daily lives: Arts volunteerism is up, musical instrument sales are rising from their 2009 low point, the number of arts degrees conferred by colleges has grown from 75,000 per year a decade ago to 129,000 today, and more than a third of Americans in the NEA survey reported consuming art in some form through their mobile devices. Some of it looks a little different: There's the more technology-oriented Maker movement, for example, and a boom in the discipline of industrial design.
All of which may not be good news for the professional arts organizations that have served as our suppliers of high culture for centuries. But we do know, at least, that America has not collapsed into Philistinism yet.
LaurakoontzMore things you can never eat again.
A large number of fish imported from China and Vietnam and sold in at least some U.S. supermarkets contain unnatural levels of formaldehyde, a known carcinogen, according to tests performed and verified by researchers at a North Carolina chemical engineering firm and North Carolina State University.
Around 25 percent of all the fish purchased from supermarkets by researchers in the Raleigh, N.C., area were found to contain formaldehyde, a toxic chemical compound commonly used as a medical disinfectant or embalming agent. All of the fish found to contain the compound were imported from Asian countries, and it was not found in fish from the U.S. or other regions.
The researchers only collected samples from supermarkets around Raleigh, N.C., and could not comment on whether or not the same results could be applied to fish sold nationwide.
Formaldehyde is illegal in food beyond any naturally occurring trace amounts. But, according to chemical engineer A. James Attar and his colleagues who conducted the tests, the U.S. Food and Drug Administration does not test any imported fish for formaldehyde contamination, and only 4 percent of imported fish gets tested for any contaminants at all.
“The look on my face when we found this – it was a complete shocker,” said Jason Morton, Attar’s colleague at N.C.-based Appealing Products, Inc.
Attar, Morton and another colleague at Appealing Products, Matthew Schwartz, came across the alarming revelation when they set out to validate a new formaldehyde test they developed for Bangladeshi clients who needed a cheap way to detect contaminated fish.
To verify the accuracy of their test, the team purchased domestic and imported fish from supermarkets around Raleigh, NC, with the intent of purposefully contaminating them with formaldehyde and then verifying that their test worked.
Instead, they found that about one in four fish was already contaminated with formaldehyde. The commonality between all the contaminated fish? They were imported from Asian countries, predominantly China and Vietnam.
Not all of the Asian fish were contaminated, but many were, Attar said.
The FDA has not had the opportunity to analyze the fish samples tested by Appealing Products, nor has the agency had the opportunity to review the test methods utilized.
“The FDA’s priority is to ensure that both domestic and imported seafood is safe and that we are protecting consumers from products that can cause illness,” the agency told Food Safety News. “To accomplish this, FDA oversees a comprehensive food safety program designed to ensure the safety of all seafood sold in the United States. This prevention-oriented program includes risk based inspections, product testing, and assessments of foreign countries regulation of aquaculture facilities.”
All foods imports entering the U.S. are screened electronically by the FDA. A subset of those foods are physically inspected at rates based on the potential risk associated with them, with some samples undergoing lab analysis.
“FDA encourages anyone who has evidence that an FDA regulated product violates food safety laws and regulations to contact FDA,” the agency added.
Attar and Morton stopped short of accusing Asian fish companies of intentionally adding formaldehyde to fish to prevent spoilage, though it appears to be a common problem in Bangladesh, where formaldehyde might preserve fish when refrigerators or ice aren’t available. (Think of frogs preserved for dissection in a high-school science lab.)
Attar and his team first uncovered the issue in February 2013, and then spent six months routinely testing samples, finding the same results. Their results were then verified by researchers at North Carolina State.
Attar said the sampling was restricted to purchases from Raleigh only and might not reflect fish in supermarkets nationwide.
“But, empirically, this is what we found,” he added.
Formaldehyde is present in some fish at small, naturally occurring levels. But everything observed in the Asian fish found that they were contaminated with far higher-than-normal or acceptable levels, Attar said.
The team tested whether or not levels of formaldehyde increased in cuts of fish as they aged, but the levels remained the same. They also tested the same species harvested from both Chinese and U.S. companies, finding that the Chinese-caught fish contained formaldehyde, while the U.S.-caught fish of the same species did not.
According to the National Oceanic and Atmospheric Association, the U.S. imports approximately 91 percent of its seafood. China alone accounts for approximately 89 percent of global aquaculture production.
Appealing Products’ formaldehyde test costs approximately $1 per swab, which is applied to a cut of fish and turns purple in the presence of formaldehyde. The company has shipped 100,000 tests to Bangladesh and anticipates orders from companies in other Asian countries. More information on the tests can be found at formaldehydetests.com.
Documented instances of intentional formaldehyde contamination of food have occurred in China, Vietnam, Indonesia and Thailand.
Attar and Morton said that their evidence makes a strong case for improved testing on seafood imports in the U.S., especially from Asian countries.
“I cannot say that companies are adding formaldehyde to fish, but our findings are higher than what naturally occurs,” Morton said.
LaurakoontzPerhaps of interest to Zack, who is reading the Henrietta Lacks book now.
In her 2010 book The Immortal Life of Henrietta Lacks, Rebecca Skloot told the story of Henrietta Lacks and the cell lines derived from her cervical tumor biospecimen (cell lines known to scientists simply as “HeLa cells”). To make a long story short, in 1951 physicians at Johns Hopkins Hospital took a biopsy from a patient, Henrietta Lacks, and from that biospecimen developed the first human cancer cell line. The biospecimen was taken without Lacks’ knowledge or informed consent. No laws were broken in the creation of the HeLa cell lines that are now recognized (pdf) as “the most widely used human cell line in the world.” She died in 1951, and it was reportedly not until 1973 that her family learned about the HeLa cells (two years after Henrietta Lacks’ name was published as the source of HeLa cells in a scientific journal). As the table below shows, this incident occurred long before the adoption of regulations and ethical guidelines for biomedical research that, today, generally require researchers to obtain voluntary, informed consent from individuals before performing biomedical experiments.
Significant Developments in Ethical and Legal Governance of Biomedical Research
| Year | Policy | Policy Summary | Source of Policy |
| 1947 | Nuremburg Code (pdf) | Advocates for informed consent and voluntary participation in medical research | United States v. Brandt (Nuremberg Military Tribunal) |
| 1948 | Universal Declaration of Human Rights | Includes Art. 27 (1): “Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.” | United Nations |
| 1964 | Declaration of Helsinki | Issues ethical principles for medical research | World Medical Association |
| 1974 |
National Research Act (pdf), Pub. L. 93-348 |
Creates the National Commission for the Protection of Human Subjects of Biomedical and Behavioral Research and requiring creation of Institutional Review Boards (IRBs) to review study protocols – Prompted by publicity of the Tuskegee Syphilis Study | U.S. Congress |
| 1979 | Belmont Report | Articulates ethical principles of (1) respect for persons, (2) beneficence, and (3) justice for research involving human subjects | National Commission for the Protection of Human Subjects of Biomedical and Behavioral Research |
| 1991 |
The Common Rule, 45 CFR 46 subpart A |
Establishes basic protections for human subjects in research conducted by or supported by the DHHS | Department of Health and Human Services and other federal agencies and departments |
| 2011 | “Human Subjects Research Protections: Enhancing Protections for Research Subjects and Reducing Burden, Delay, and Ambiguity for Investigators” Advance Notice of Public Rulemaking (ANPRM) (pdf), 76 FR 44512 | Proposes policy changes to the basic protections for research involving human subjects/participants | Department of Health and Human Services |
Recent HeLa Genome Sequencing Efforts and Bioethical Controversy
In March 2013, scientists from European Molecular Biology Laboratory in Heidelberg, Germany, published the genomic sequencing of a HeLa cell line and deposited that genomic sequence data in an online, open-access database (JJ Landry et al. 2013). At that time, a separate, more detailed sequencing effort of a second HeLa cell line was in preparation for publication by scientists from the University of Washington in Seattle, WA (Adey et al. 2013). The family of Henrietta Lacks had not been consulted or notified prior to the publication of the HeLa cell line sequence. While there was no law requiring such action, the circumstances surrounding the Henrietta Lacks story led many bioethicists to question why the family was left in the dark yet again.
The initial reaction to the publication of the HeLa cell line sequence data prompted the researchers to remove the data from the online databases. While some scholars wondered how this drastic action could be warranted given the vast amounts of genomic data for HeLa cell lines already published, other scholars questioned how the peer-review process failed to consider the interests of the family of Henrietta Lacks. Skloot herself responded critically to the publication in an op-ed piece published in the New York Times as “The Immortal Life of Henrietta Lacks: the Sequel.” There, Skloot underscored that privacy concerns by and respect for members of the Lacks family are at the heart of the controversy. And while she acknowledged that consent had not been required, Skloot condemned the “whole system” of biomedical research for failing to raise questions about consent during the peer-review process.
For further reading on the March incident and discussion:
Special Rules for HeLa Genomic Research
Over the following four months (April to July 2013), engagement with family members of Henrietta Lacks by the National Institutes of Health (NIH) – along with the assistance of Rebecca Skloot – culminated in a consent agreement setting forth how genome sequence data from HeLa cell lines can be published and shared for additional research. The agreement requires (1) any publication of HeLa sequence data to be placed in a controlled-access database (known as dbGaP, the Database of Genotypes And Phenotypes), (2) the creation of a HeLa Genome Data Access Working Group that will process applications for access to the data and on which the Henrietta Lacks family members will have representation, and (3) a request that any research study provide acknowledgement to Henrietta Lacks and her family for their generous contributions to the biomedical community. The agreement does not involve any compensation or rights to benefit from products and discoveries generated with or derived from the HeLa cell lines or genomic data. These rules – involvement of family members to determine, on a case-by-case basis, whether access to HeLa genomic data should be granted and a mandate regarding where data can be deposited – are described by the NIH Director and NIH Deputy Director for Science, Outreach, and Policy as “not setting a precedent for research with previously stored, de-identified specimens.” The factors identified by Hudson and Collins as setting the Lacks case apart and justifying the special rules for HeLa genome research are (1) the collection of the biospecimens without consent for collection and use, (2) the pervasive usage of the resulting cell lines in biomedical research, and (3) the extent to which the family members of the biospecimen’s source are known by name. The researchers who sequenced two HeLa cell lines have cooperated with the consent agreement described above.
For further reading on the August updates:
Beyond Henrietta Lacks and HeLa Cell Lines
There are many challenging ethical and legal issues raised by the Henrietta Lacks case:
These topics — informed consent, open access for genomic research, property rights in genetic material and data, gene patents, familial searching, and surreptitious testing — are familiar and frequent topics in the Genomics Law Report. While the Lacks case is the focus of much attention these days, the challenges of informed consent were also brought to the forefront not too long ago in the controversial research involving the Havasupai Indians. In 2010 the Havasupai, challenging the adequacy of the informed consent when biospecimens were believed to have been collected only for diabetes research but were later discovered to have been used in research for other purposes, successfully limited genomic research using their samples and settled litigation against the researchers at Arizona State University. Another example of the bioethical challenges with research involving samples collected prior to modern bioethical research principles is the persistent controversy surrounding Yanomami studies by James Neel and Napoleon Chagnon in the 1960s and 1970s. (For further reading on the Yanomami controversy, see “Sociobalderdash and the Yanomami?” Part I and Part II at The Mermaid’s Tale). Even the Personal Genome Project — with an intricate informed consent process (including an entrance exam), participant control of their profile information, and participant assumption of risk associated with the placement of their genomic data into the public domain — has had its own brush with controversy, as differing expectations popped up regarding demonstrations of participant’s risk of re-identification.
While policymakers debate potential reforms to provide better protection for research participants in this global, mobile, genomic, informational age, there are no easy answers. Context has always been key, and what is “reasonable” is an evolving standard. It is also important to avoid falling into the trap of the historian’s fallacy. Practices considered appropriate and acceptable for biomedical research decades ago may be considered wholly unacceptable today. Using one family’s experience as a case study to advocate for policy reform can be persuasive and effective. But there is a point at which the advocacy itself becomes exploitative and even counter-productive. Has Skloot (any of the bioethicists, journalists, or others for that matter) crossed that line by continuing to draw attention to the Lacks family? Declaring HeLa cells as her “legacy” or the Lacks family legacy (as has been done in reporting the agreement reached for HeLa genomic research to continue with Lacks family support) does not demonstrate that the important lessons of the Henrietta Lacks case have been learned. Indeed, it seems quite presumptuous of us all to declare what someone else’s (or indeed what an entire family’s) legacy is – a point more fully articulated by Ken Weiss at The Mermaid’s Tale. To learn the lesson requires all of us to engage in active and proactive policymaking rather than reactive cries for policy reform. Personally, I am tired of the lack of political will to do anything on any issue unless we have a tragedy with which to force the reforms through. That type of policymaking is bad for all of us.
We must consider the diverse perspectives, needs, and interests of the individuals making generous contributions to science. At the same time, we must determine the boundaries of their say regarding what happens with those contributions (whether biospecimens or data), both now and in the future. We need to throw away the “one-size-fits-none” approach to the protection of research participants. Transforming the biomedical research enterprise into a participatory process is one step in the right direction, but it is not possible for all situations (unless research with archived samples were to cease). There is no one (singular) ethical “right way” to conduct scientific research. Ethical issues are not just implications, complications, or after-the-fact consequences of genomic research. The ethical dimensions must be integrated within research design and practice in order, quite simply, to do better science.
1) It was going to be a long day. It was important to pack snacks.
(John A. Kouns)
2) And to stay cool.
(AP)
3. Look at how many people were there.
(Bruce Davidson / Magnum Photos)
4) Seriously. So many people.
(Everett Collection Inc. / Alamy)
5) No caption needed.
(AFP/Getty Images)
6) What Lincoln saw.
What Lincoln saw. (James K. W. Atherton / UPI)
More great photos here.
About a year ago, in Washington’s Mount Pleasant neighborhood, an independent grocer called Bestway changed hands. The new owner is In Suk Pak, a South Korean by way of Pennsylvania. He renamed the store Bestworld, replacing the second word of the big-block letters out front. Then he rejiggered the store’s product mix to fit the neighborhood’s changing demographics, adding gourmet chips and high-end beers, and Asian items like wasabi peas and dried seaweed.
But there was one aisle he didn’t touch: Goya’s, which is festooned with blue Goya-labeled tape and features a Goya-logoed spice rack. The aisle is densely packed with sacks, cans, boxes, bottles and jars of every imaginable bean, grain, sauce, juice and spice. The Goya salesperson just tells him what he needs to fill the section, and he’s happy to take the advice.
In Suk Pak, not shown, owner of the grocery store Bestworld, caters to his customers by stocking his store with a wide variety of Goya products. (Nikki Kahn/The Washington Post)
“I’m not Latino. I don’t know what they eat,” says Pak, shuffling around in a pink striped polo shirt supervising stocking on a Wednesday morning. Plus, he says, all the neighborhood’s non-Hispanic residents will buy Goya, too. Though it’s not as if there’s any shortage: Just a block away, Progreso International also stocks Goya products — they’re both cheap and of good quality, the proprietor says. That level of trust among urban Hispanic communities has landed Goya in nearly every corner bodega and medium-size independent grocery store like Bestworld.
And while Goya seems exotic, the company, is based in New Jersey. It was founded 77 years ago by Spaniards who had come to New York through Puerto Rico. It’s hired enough natives to develop a flavor profile that’s decently close to the real thing and has marketed itself as an Hispanic-owned company. Now, it’s the largest Hispanic-owned food company in the United States, with $1.3 billion in sales last year (still a long way behind market giants like General Mills, which brought in $16.7 billion in 2012).
But the burgeoning Hispanic population isn’t enough for Goya. It has started moving into other foreign cuisines, like Indian and Chinese, in a bid to become the food company for all people new to America. It’s also developing products for second and third generations of immigrants, who might want something pre-cooked but still homey-tasting, or who might have intermarried with other nationalities and want to mix everything together (“Latin Fusion” is featured prominently in the Web site’s recipe section).
“It’s a United Nations kind of label,” says Bob Gorland, a supermarket consultant at Matthew P. Casey & Associates. He regards Goya, more than any other brand, as a section unto itself, much like the kosher aisle or natural foods area.
Now, as the “general market” becomes more interested in ethnic cuisines, Goya has positioned itself as the “authentic” option that you don’t have to rummage through ethnic markets to find. In other words, Goya is becoming mainstream.
Which, commercially, is a pretty unbeatable approach.
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Goya — so named after the Spanish painter because founder Prudencio Unanue Ortiz liked the simplicity and vague familiarity of the name — started out packing and selling olives and olive oil in Lower Manhattan. It’s now a sprawling network of 16 worldwide processing and distribution centers, mostly U.S. based in the United States. In Spain, Goya now supplies the reverse immigrant population from Latin American countries. Although the bulk of Goya’s beans are grown in the United States, many of its specialty products come from around the world: coconut water from Thailand, yucca from Costa Rica, quinoa from Peru.
The company headquarters is across the street from the Secaucus, N.J., train station, but visitors are advised to take a cab door to door, so as not to get lost in the nest of highways in between. The factory entryway, lined with little plaques signifying production records, smells like motes of adobo have drifted through ceiling vents. On the reception desk is a copy of “The Inferno,” by Dan Brown, who after “The Da Vinci Code” moved on to conspiracies surrounding public health. (Later the book would pop into a conversation with a senior executive, who thought of it when speaking of the trade-off between relying on genetically modified crops and the need to feed a booming global population.)
To see the actual packing underway, visitors don a hairnet and earplugs and push through a door to the factory floor, where machines deposit rice into pre-printed boxes, spice into packets and beans into bags (most of the canning is done up in Buffalo). A scale can tell whether there are even a few grams are missing and will boot an offending product off the assembly line into a bin. From there, conveyor belts run along the ceiling, ferrying boxes toward a device that packs them neatly into palettes, ready for storage.
In modern food processing, everyone’s a manager, just watching to make sure the robots are doing their jobs right and sweep up the stray grains that fall onto the floor. From there, it’s another very short cab ride to the cavernous warehouse, which is a vast facility stacked floor to ceiling both with gigantic sacks of raw ingredients on their way to packaging as well as Goya’s 2,200 finished products (plus quite a few products from other big brands like Nestle that Goya stores and distributes). Forklifts glide silently among them, pulling things out for loading onto trucks for delivery runs up and down the Eastern Seaboard.
The fact that Goya has warehouses at all is unusual. Many big food companies just ship their products directly to ones belonging to grocery chains, like Safeway, which load their own trucks from there. Goya has always done direct store delivery (or “DSD” in industry jargon), because, as the owners see it, every store has a different audience. The sales staff researches local immigrant groups with the help of a business intelligence tool called Geoscape, as well as more enterprising techniques, like hanging out at the local money transfer franchise to see where people are sending checks home to. That way, Goya they know how to stock exactly what Cubans or Salvadorans or Peruvians are looking for, which creates brand loyalty.
“To us, it’s important to make the connection through a product that maybe we’re not going to sell truckloads of, but we’re going to have the product on the shelf so when a consumer goes in they say, ‘Wow, I can relate to Goya because it’s authentic, this product makes me feel like I’m at home,’” says Peter Unanue, the chief executive’s younger brother and an executive vice president in charge of distribution.
In regentrified neighborhoods, like parts of downtown Philadelphia that are now packed with yuppies, the less exotic products sell better. “You put a pacaya or a loroco in, and they don’t know what to do with it,” says Juan Lopez, Goya’s district manager for the Mid-Atlantic. “You put a low-sodium yellow rice, pretty much everybody across the board eats beans and rice.” (Though a jar of pacaya or loroco might also convince yuppies that the rest of Goya’s products are more authentic than most). Often, Goya’s representatives will even help the big supermarkets decide how to stock the rest of their store to welcome local immigrant groups, like selling plantains and yucca in the produce section if there are lots of Mexicans living nearby, and consulting on the right cuts of meat.
In more and more demographics, Goya is now familiar.
“People have the tendency to be a little more creative with what they’re cooking, and I think they get that alternative with the products Goya offers,” says Gary Budd, who manages stocking for Giant Foods in the Mid-Atlantic. Usually he’ll put all Goya’s products in one aisle, but if it looks like they’re selling well and have crossover appeal — like yellow rice — he’ll stock some of them in the general sections as well. At Giant, Goya advertisements play on the intercom, in a female voice with no hint of a Hispanic accent.
Some natural foods have made that leap, too: Kashi cereal, for example, appears both in the natural-foods section and the regular cereal aisle. “We see a lot of that, switching over to the mainstream,” he says.
Now even Wal-Mart is seeing things Goya’s way. “When we first started to do business with them, they wanted to put a generic program in place,” Lopez says. “It wasn’t successful because of the diverse ethnicities.”
Goya certainly isn’t without competition — from name brands like Del Monte and Bush’s, but also often from supermarkets themselves. Giant and Target will put a store-brand can of beans right next to Goya’s, at a few nickels off the price. In those situations, Goya likes to contend that its products are just higher quality than the generic brand; it has run ads showing a dumped-out Goya can having more actual beans in it than a cheaper substitute.
“Can the homemaker risk saving 10 cents, to make a dish, and they go home, and it turns out lousy?” says Joe Perez, Goya’s senior vice president in charge of sales and marketing.
The difference in quality isn’t necessarily noticeable, even to discerning palates. “They’ve never seemed better to me,” says Mark Bittman, the New York Times food writer and best-selling cookbook author. “I’ve never detected the slightest difference in canned beans, except sometimes they taste tinny. And overly salty. But both of those phenomena have occurred with Goya, in my experience.”
Ubiquity, however, is an even bigger advantage for Goya than perceptions of quality. Food bloggers will sometimes specify Goya ingredients because it’s the easiest way to identify what to look for.
Yvette Marquez runs a popular Mexican food Web site called Muy Bueno. She started out in El Paso, where there were lots of options for ingredients. Now she’s in Denver, where she’s found that the ethnic food aisles often can be pretty much are more limited to Goya products. “I’ve recommended Goya products because I know people will be able to find it,” she says. Plus, they have items like ready-made empanada dough.
But, she notes, it’s not exactly gourmet fare. The hipster foodies will still probably seek out super-specialty items in bodegas that carry things the supermarkets won’t. For everyone else, there’s Goya.
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Upstairs from the break room at the Goya plant, past the test kitchen, across a floor full of sales and advertising people, is Bob Unanue’s office. It’s full of the memorabilia from the past of a three quarters of a century run, including a 6.6-pound coffee-table book commemorating Goya’s 75th anniversary and a three-foot-tall model can of beans.
Bob Unanue, president of Goya foods, Inc. (Yana Paskova/For The Washington Post)
In 2004, Unanue took over from his uncle Joseph, who died in June. Inheriting an empire has piled on the frequent-flier miles. He breezes in, puts down his coat and heaves himself into a couch, just back from a few days at a bean convention in Chicago.
At conventions, buyers like Unanue forge and maintain relationships with farmers from the “bean belt” that stretches from New York over the mountains to Idaho. “I learned something yesterday I didn’t know, which happens a lot,” Unanue begins in a soft Jersey accent. “The average age of a bean farmer is 63 years old. It’s a lot more work than if you’re planting corn or soybeans.” That launches a diatribe against federal ethanol requirements for gasoline that have boosted the price of corn — and the cost of farming, even for beans.
That’s a real concern for Goya, which can’t stray far from its low-cost price point and which is scrambling to supply a ballooning infrastructure. The company has opened facilities in the past few years in Miami, Houston and outside Chicago, and it’s expanding westward and into Mexico. Meanwhile, its product line has doubled over the past eight years, moving into categories like healthy food lines and organics.
Huge food companies typically diversify their offerings — and bolster their authenticity in hopes of resonating with the immigrant crowd — by buying smaller brands like Hormel Foods did with La Victoria Mexican products, Campbell Soup did with Pace Salsa, and B&G Foods did with Ortega.
Goya banks on its own authenticity, developing all its own products along two basic principles: First, stick with tropical cuisines that share ingredients, like coconut milk and pigeon peas that can be adapted for Indian recipes (they also sell imported Basmati rice and Jasmine rice for Thai food). Second, develop more convenient products that serve the upwardly mobile immigrant, like microwaveable rice and beans, low-sodium and sugar-free colas, baby food in Latin flavors and even stuff in squeeze tubes. And all the while, teach the rest of the market how to use your foods, which Goya does through a series of cookbooks, especially for cuisines as they start growing popular — Peruvian ceviche, for example.
“People get educated through a trendy approach,” Unanue says.
Sometimes, though, Goya you can’t do it all itself. For its new line of baked beans, which have no Spanish on their shiny metallic labels, Goya partnered with another processor. If the product starts to sell well, Unanue says, they’ll bring the production in house.
While charging into the 21st century, Goya is also a very old-world American company in many ways. It has a high cost structure, with a large sales force and labor-intensive delivery model. At the same time, its growth potential makes it an attractive acquisition target. Buyout offers come his way “all the time,” Unanue says. But he says he couldn’t be less interested in selling to some megacorporation or hedge fund that might turn Goya into a financial instrument, like KKR did with Nabisco.
“Sometimes, an outside company would come in and say, ‘Well, the way you do business is very expensive,’ ” Unanue says. “We can cut costs, and then there’s hundreds of brokers out of jobs, hundreds of drivers out of jobs, and warehouse people, and we’re not serving the consumer.”
Plus, that might ultimately not be good for the business. Joe Perez takes Progresso Soup — now owned by General Mills — as a cautionary tale.
“Progresso in its day, the 1950s and 1960s, was the Goya of Italian food. And now what is Progresso? It’s a soup company,” Perez says. “They were lulled into believing ‘yes, go through the major chains, don’t have a single focus, we’ll take these items only.’ For two or three years, sales were booming, and after that, they started to decline. Then it became a question of the chain saying, ‘We don’t need all these items, let’s get rid of them.’ You lose your authenticity. It becomes, ‘Well, we don’t really need you anymore, there’s all these other lines. You’re not that special. You’ve lost your reason for being.’ ”
America already has a Sysco foods, after all, which supplies general staples in bulk. What Goya is becoming is a Sysco for the new America, where chipotle is as common as ketchup. At the end of the day, what’s good for immigrant America is good for Goya.
“We are a country of immigrants, and thank goodness,” he says. “Because that way, we can tailor our product lines to all those who are coming in.”
Jennifer K. Wagner, J.D., Ph.D., is a solo-practicing attorney in State College, PA and a research associate at the University of Pennsylvania’s Center for the Integration of Genetic Healthcare Technologies.
Oral arguments in Maryland v. King were held on February 26, 2013, as reported previously here on GLR. Following oral arguments, I stated, “If forced to predict, I would anticipate a split decision that uses a broad definition of ‘identification’ and upholds this ‘fingerprint for the 21st Century;’ however, I haven’t the foggiest as to whether a biometric identification exception will be created or whether a balancing test will be applied to reach that decision.” While the Court deliberated and legal scholars, law enforcement, and many other individuals anxiously awaited a decision, Carl Starger provided a helpful visual analysis of the cases touched upon during oral arguments and David Kaye provided a useful scorecard on DNA collection prior to conviction. Well, the wait is now over. On June 3, 2013, the Supreme Court issued its decision to uphold DNA fingerprinting as routine arrest booking procedure, with Justice Kennedy delivering the opinion, joined by Chief Justice Roberts and Justices Thomas, Breyer, and Alito. Justice Scalia wrote a brutal dissent that was joined by Justices Ginsburg, Sotomayor, and Kagan.
The question before the Court was whether the Fourth Amendment to the U.S. Constitution permits DNA fingerprinting as part of routine booking procedures upon arrest, as authorized by Maryland’s DNA Collection Act. The Fourth Amendment provides:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
The Court’s majority opinion addressed the question as framed by the Petitioner (the prosecution, the state of Maryland): “Does the fourth amendment allow States to collect and analyze DNA from people arrested and charged with serious crimes?” The dissenting justices, in contrast, addressed the question as framed by the Respondent (King, the defendant): “Whether the Fourth Amendment permits the warrantless collection and analysis of DNA from a person who has been arrested for, but not convicted of, a criminal offense, solely for use in investigating other offenses for which there is no individualized suspicion.” Not surprisingly, the majority and dissenting opinions stand in stark contrast with one another. The one thing the majority and the dissenters agreed on is that the collection of DNA using a buccal swab to generate a Combined DNA Index System, or CODIS, profile (an individual’s genotype at a standard set of loci, as explained previously here on GLR) is a search and, accordingly, is subject to the limitations imposed by the Fourth Amendment—in particular, that the search must be reasonable.
Summary of the Court’s Opinion
The Court situated its decision to permit DNA fingerprinting as a routine arrest booking procedure for serious offenses within the contexts of a valid search incident to arrest. A “search incident to arrest” is a legal term of art describing a category of searches that do not require search warrants. These are typically marked by the possibility an arrestee could reach a weapon, that evidence nearby could be destroyed, or other exigent circumstances. In Maryland v. King, however, the Court did not state that DNA fingerprinting upon arrest as a routine booking procedure was itself a search incident to arrest. This point was not missed by the justices dissenting from the Court’s opinion, who questioned this legal reasoning.
DNA Collection and Process are Searches; the Balancing Test of Reasonableness Applies
The Court acknowledged that DNA fingerprinting is a search and, accordingly, subject to the Fourth Amendment’s reasonableness requirement; however, the Court rejected the adoption of a per se rule that such searches are always unreasonable in the absence of a warrant. Instead, the majority applied a balancing test for reasonableness, citing the 1995 case of Veronia School District 47J v. Acton—an opinion, coincidentally, penned by Justice Scalia and joined by the late Chief Justice Rehnquist and Justices Kennedy, Thomas, Breyer, and Ginsburg. In Veronia, the Court signaled that the reasonableness test, balancing the privacy interests of the individual against the government interests in the search, is appropriately applied when there is no clear precedent for the type of search in question. In Veronia, Justice Scalia wrote,
As the text of the Fourth Amendment indicates, the ultimate measure of the constitutionality of a governmental search is ‘reasonableness.’ At least in a case such as this, where there was no clear practice, either approving or disapproving the type of search at issue, at the time the constitutional provision was enacted, whether a particular search meets the reasonableness standard “is judged by balancing its intrusion on the individual’s Fourth Amendment interests against its promotion of legitimate governmental interests.”
The Court reiterated in Maryland v. King that “the need for a warrant is perhaps least when the search involves no discretion” on the part of the law enforcement officer and emphasized that DNA fingerprinting is a procedure that is standardized by CODIS. The Court reasoned that the use of DNA collection to identify the person being arrested and tried for a crime “is not subject to the judgment of officers whose perspective might be ‘colored by their primary involvement in the often competitive enterprise of ferreting out crime’” (quoting Terry v. Ohio) and stated that DNA fingerprinting upon arrest falls into a category of cases within which the “touchstone of the Fourth Amendment is reasonableness.”
Five distinct, legitimate governmental interests in the “identification” of arrestees
The Court articulated the government’s interest as “the need for law enforcement officers in a safe and accurate way to process and identify the persons and possessions they must take into custody.” “When probable cause exists to remove an individual from the normal channels of society and hold him in legal custody, DNA identification plays a critical role in serving those interests.” The majority explained that arrestees often carry false documentation, lie about their identity, and change their appearances to avoid accurate identification and proper affiliation with their criminal history.
Five distinct government interests in identification upon arrest were articulated in Maryland v. King:
1. Identity is defined broadly and includes names, physical appearances, and social security numbers as well as criminal histories. The task of identification necessitates searching public records for identification information other than that shared by the arrestee.
2. Law enforcement has an obligation to ensure that custody of arrestee does not endanger those already in custody or the staff of the detention facility. Officers are permitted to search arrestees for weapons and examine arrestees’ bodies for tattoos that may signal gang affiliations (and hence potential past or habit of violent behavior) and examination of arrestees’ DNA to identify whether the arrestee may be wanted for or has been convicted of prior crimes would be similarly useful.
3. The government has an interest in ensuring that the accused are available for trial. Arrestees may be higher flight risks if they have committed crimes for which they have not yet been prosecuted. Thus, government has a legitimate interest in checking whether the arrestee’s CODIS profile is affiliated with DNA profiles from crime scenes.
4. Past conduct (suspected or adjudicated) is relevant to assessing the danger the individual poses to the public and is informative in bail decisions.
5. Proper identification within the CODIS database may serve to exonerate individuals who have been wrongfully accused or convicted of prior crimes.
DNA fingerprinting is a superior tool serving those legitimate government interests
Having recognized these government interests and reiterated that “the Court has been reluctant to circumscribe the authority of the police to conduct reasonable booking searches,” the Court turned its focus to the superiority of DNA fingerprinting in properly establishing the identity of arrestees. The Court reviewed prior identification tools (including mug shot photographs, anthropometric data collected within the Bertillon System, and traditional fingerprinting), pointing to rulings from other courts indicating that these identification tools were not only for the identification of the person accused for the immediate crime but also to identify the person as being affiliated with other criminal activity, regardless of whether that activity had yet been prosecuted. The Court dismissed King’s argument that the speed of processing of DNA fingerprints makes the technique inferior to traditional fingerprinting, noting that rapid fingerprinting analysis through the Integrated Automated Fingerprint Identification System (IAFIS) is “itself of recent vintage.” Moreover, the Court explained, “The question of how long it takes to process identifying information obtained from a valid search goes only to the efficacy of the search for its purpose of prompt identification, not the constitutionality of the search.” The majority stated, “Just as fingerprinting was constitutional for generations prior to the introduction of IAFIS, DNA identification of arrestees is a permissible tool of law enforcement today.”
Arrestees have diminished expectations of privacy in identification information
The Court casually described the arrestees’ expectations of privacy as diminished, drawing a brief distinction between a “search incident to an arrest” and so-called “special needs searches.” While acknowledging that some searches of arrestees may require a warrant because they are particularly intrusive or involve higher expectations of privacy, the Court failed to find such facts in this case. The Court underscored the minimal invasiveness of the buccal swab, the standardized procedure of CODIS profiling that involves only pre-established set of loci informative only for identification (and not informative for medical traits or conditions), and the existing limitations within the statutes even if the CODIS loci were to become medically informative. (For a refresher on the loci analyzed for CODIS profiles and what information can be derived from them, see previous GLR coverage here).
With that, the Court held that “DNA identification of arrestees is a reasonable search that can be considered part of a routine booking procedure.”
Summary of the Dissenting Opinion
Justice Scalia spared no sarcasm in his dissenting opinion. Consider the following gems:
• “The Court’s assertion that DNA is being taken, not to solve crimes, but to identify those in the State’s custody, taxes the credulity of the credulous.”
• “Why spill so much ink on the special need of identification if a special need is not required? Why not just come out and say that any suspicionless search of an arrestee is allowed if it will be useful to solve crimes? The Court does not say that because most Members of the Court do not believe it.”
• “I hope that the Maryland officials who read the Court’s opinion do not take it seriously. Acting on the Court’s misperception of Maryland law could lead to jail time.”
• “It gets worse…”
• “Make no mistake about it: As an entirely predictable consequence of today’s decision, your DNA can be taken and entered into a national DNA database if you are ever arrested, rightly or wrongly, and for whatever reason.”
• “Perhaps the construction of such a genetic panopticon is wise. But I doubt that the proud men who wrote the charter of our liberties would have been so eager to open their mouths for royal inspection.”
Beyond the provocative rhetoric, the dissenting opinion had substance. It attacked the heart of the Court’s opinion: its broad and poorly articulated conceptualization of “identification” and the weak rationale provided to justify the application of the balancing test.
The dissent contains an interesting discussion on the databases against which DNA fingerprints of arrestees are compared, noting that the arrestee DNA fingerprints are compared not to the database of convicted or arrested individuals but only to the unsolved crimes database. The dissent then highlighted that this is illogical if the purpose is “identification,” as the former database contains names, physical descriptions, and other personal information but the latter “stores ‘no names or other personal identifiers of the offenders, arrestees, or detainees.’” This is based on a premise hotly debated—whether a genome is ever de-identified or anonymous or, by contrast, whether it is itself always a personal identifier. The dissent took a narrow view of identification and suggested that a CODIS profile without a name affiliated with it is “unknown.” The majority seemed to disagree that a CODIS profile unlinked to other personal identifying information is “unknown.” Rather, with the ruling in Maryland v. King, the majority seemed to downgrade the status of a name as the most important personal identifier of an individual. The idea that a CODIS profile is itself a personal identifier (the equivalent of a name) is in line with previous treatment of (1) John/Jane Doe arrest warrants (i.e., warrants naming the accused by the description of the CODIS profile rather than a given name) and (2) non-testimonial identification orders (the constitutionality of which has not yet been addressed directly by the Supreme Court). Should the constitutionality of Jane/John Doe arrest warrants come before the Court, it will be interesting to see if the current alliances of justices hold. Checking outstanding warrants at the time of arrest (an accepted practice) would be undermined if outstanding warrants were permitted to identify perpetrators by CODIS profile alone but government officials were permitted only to check whether outstanding warrants list given names.
Additionally, the dissent criticized the analogies made by the Court in reaching its ruling. The dissent criticized these analogies (between mug shot photos and CODIS profiles, anthropometric data and CODIS profiles, and fingerprints and CODIS profiles) not because of notable differences in the type or degree of information each method provides but rather because of the Court’s characterization of the way in which those methods have come to be accepted as reasonable. The dissenting justices acknowledged that arrestees do not have a reasonable expectation of privacy in their physical appearance: mug shot photos do not even constitute a search to which Fourth Amendment analysis applies. The analogy with CODIS profiles, then, is strained, because the Court agreed that DNA sampling and analysis is a search to which Fourth Amendment analysis applies. The dissent also acknowledged anthropometric data is regularly collected upon arrest and further acknowledged that this data collection is for identification purposes (“to verify…the person arrested today is the same person that was arrested a year ago”). Recall that the Court had listed this purpose among the legitimate government interests in DNA fingerprints. Nonetheless, the dissent criticized the use of this analogy, arguing that the Bertillon system data, unlike the DNA fingerprints, were “not, in the ordinary case, used to solve unsolved crimes.” The dissent continued by shining a spotlight on the fact that traditional fingerprinting has been assumed to be reasonable for decades; however, the Court has never specifically determined traditional fingerprinting to be reasonable under the “modern era” of Fourth Amendment jurisprudence (e.g., Katz v. United States). Fingerprinting was already accepted practice and no longer in controversy by that time.
As expected from Justice’s Kagan and Scalia’s questions during oral arguments (see Key Question #5 from GLR’s previous coverage of the oral arguments), the dissent attacked the Court for basing its decision on possible uses of DNA fingerprints and technological capabilities that may be forthcoming but not yet here. The dissent emphasized the relevant facts are not how DNA fingerprinting might be used or implemented at some point in the near or distant future but, rather, how the practice was used with the Respondent, King. Justice Scalia noted, “Solving unsolved crimes is a noble objective, but it occupies a lower place in the American pantheon of noble objectives than the protection of our people from suspicionless law-enforcement searches.”
In closing, the dissent stated that the Court’s ruling in Maryland v. King would have an “ironic result”: only those individuals who were arrested, DNA-fingerprinted, and subsequently not convicted will be burdened by the connections the DNA fingerprinting makes possible to unsolved cases. Those individuals who are arrested and subsequently convicted would be subjected to DNA fingerprinting at the time of conviction, so they are not burdened by the Maryland v. King ruling. The dissent described such individuals as “people who are innocent of the State’s accusations.” It is true that, in such a case, those individuals would have been acquitted of the original arrest charges; however, it bears reminding that the individuals would remain presumed innocent for the crime(s) with which DNA fingerprinting connected them and that any subsequent cases would require the prosecution to meet the necessary burden of proof for those crimes. DNA fingerprints are not inherently inculpatory: the inculpatory nature arises from any nexus the DNA fingerprints have with any crime scene or catalogued evidence. An illustration may help clarify this point: the dissent is, in essence, arguing that if a rapist’s name were written on a condom wrapper left at the crime scene and an individual of that same name is arrested for unrelated charges, law enforcement is prohibited from connecting the arrestee’s name with that same name on the condom rapper and adding that charge against the arrestee. The name, by itself, is not inculpatory. It is the name’s nexus with the crime scene evidence that is inculpatory and the prosecution would still bear the burden of proving beyond a reasonable doubt that the arrested individual was the source of the condom wrapper, that the timing was such that the condom rapper is from the assault, etc. The dissent’s rationale, however, is that such an arrestee has a reasonable expectation of privacy in his name that overrides law enforcement’s interest in, at time of the unrelated arrest, even checking to see if his name is linked to a criminal record or cases generally (including that separate rape case). Conceptualizing a CODIS profile or genome as a name provides clarity in interpreting whether Maryland v. King was rightly decided.
Concluding Remarks on Maryland v. King
The Court’s failure to clearly delineate the boundary of the term “identification” is problematic, and the Court’s explanation did not enumerate two searches involved in the process of DNA fingerprinting: (1) an initial search of the DNA sample to generate the CODIS profile and (2) a subsequent search involving the comparison of the CODIS profile against the existing databases. It seems apparent that the Court meant that examining the connection of an arrestee to other criminal cases (regardless of whether the examination relies upon connections drawn out with a name, facial appearance, fingerprint, social security number, address, license number, or any other personal identifier and regardless of whether those cases have been fully prosecuted or remain open) is of legitimate government interest at the time of arrest in evaluating the identity of the person arrested. The dissent overlooked or dismissed this point and focused only on the fact that if this information had been obtained, and if a connection was made with a case, the individual might be forced to face the criminal consequences of the elucidation of that connection. The Court’s logic seemed to be as follows: (1) if you have no reasonable expectation of privacy in your potential connections to criminal cases (closed or open) at the time you are arrested for a serious offense, (2) then it is reasonable—if a cold hit link to an open case is located during the DNA fingerprinting process—that such information be used as a sufficient basis (individualized suspicion and probable cause) to obtain a search warrant for a confirmation sample and/or to proceed with an arrest and prosecution for that other crime.
The Court could have been clearer by acknowledging that genomes are never “unknown” or establishing that genomes are an acceptable way of knowing someone’s identity regardless of other possible means (such as a name or alias). This might have averted some of the dissent. Additionally, to reach its holding that DNA fingerprinting of arrestees is permissible under the Fourth Amendment, the Court (1) could have acknowledged that law enforcement historically has been required to obtain a warrant for crime-solving searches to be reasonable but also (2) could have articulated a categorical biometric identification exception to that Fourth Amendment’s warrant clause. But the Court did not. Instead, the Court rests the reasonableness of DNA fingerprinting by its analogy to other arrest booking procedures. Therein lies the opinion’s weakness, because—as Justice Scalia explained in his rebuttal of the analogies to mug shot photos, Bertillon measurements, and traditional fingerprints—the Supreme Court has not specifically determined those arrest booking procedures to be constitutional under this Fourth Amendment analysis of reasonableness.
Another area of concern with the Maryland v. King ruling is the casual way in which the expectations of privacy for arrestees in identification information (again, not clearly defined but seemingly interpreted broadly) were described as diminished. Many might agree that arrestees have diminished expectations of privacy in their identification but, as the Dissent, disagree that a cold hit with a database is “identification” as any layperson would understand it to be. While Justice Scalia may have exaggerated that one could be DNA fingerprinted and that fingerprint stored ad infinitum regardless if one is “ever arrested, rightly or wrongly, and for whatever reason,” police officers do have wide discretion in determining when to make an arrest when probable cause is present (though probable cause is necessary). Maryland’s DNA Collection Act seems to safeguard against the DNA fingerprint being generated and uploaded into the system until arraignment, which may mitigate the expansion of law enforcement databases due to officers exercising poor discretion when making an initial arrest. However, the Court’s ruling in Maryland v. King does raise red flags of disproportionate impacts. Racial minorities are disproportionately stopped, which creates a disproportionate possibility of being arrested, which now subsequently creates a disproportionate risk of being DNA fingerprinted and connected with unsolved crimes. The genomic revolution has an opportunity to help mitigate racial disparities in health and justice. Unfortunately, the passive and implicit policies taking shape in the US are creating an opportunity for the genomic revolution to exacerbate those racial disparities. This disturbing problem highlights an important point of interpretation of the Maryland v. King decision: deciding a practice is constitutionally permissible is not synonymous with deciding a practice is good policy. It is possible that reactions to the Court’s decision in Maryland v. King may provide the support necessary to convince Congress to pass the End Racial Profiling Act (S. 1038), prompt calls for legislation that pull back authorizations for DNA fingerprinting upon arrest (e.g., limiting applicable offenses for which the practice applies, clarifying authorized uses, requiring automatic expungement, imposing additional safeguards against misuse, etc.), or galvanize advocates of a universal database that may alleviate inequities of risks and benefits in a genomic age (e.g., here).
Finally, it is important to underscore the limitations of Maryland v. King. The case involved Maryland’s DNA Collection Act, and not the federal DNA Fingerprint Act of 2005 or any of the similar state statutes. (An overview of DNA collection acts is available here.) The Court’s holding did not address the permissibility of DNA fingerprinting prior to arrest (such as during a Terry stop) or the permissibility of DNA fingerprinting for less serious offenses than authorized by the relatively narrow Maryland statute. For DNA fingerprinting being conducted under existing and potentially forthcoming state statutes, questions will still remain as to whether the practices are permissible under state constitutions (which sometimes provide heightened privacy protections than the baseline of protections of the Fourth Amendment of the U.S. Constitution). For the federal DNA Fingerprinting Act of 2005, the clear precedent remains U.S. v. Mitchell. There are a number of cases in various federal circuits that have been on hold pending the Court’s review of Maryland v. King, and it is likely that some of these will now move forward to challenge broader DNA fingerprinting practices than those that Maryland’s DNA Collection Act authorizes. The Dissent encouraged the Court’s decision to be challenged and repudiated, so stay tuned.
For additional coverage on the decision, see “DNA Swabbing: A Genetic Panopticon?” on HuffPostLive hosted by Michael Sacks on June 4, 2013.
As you’re probably aware, black Americans are arrested for marijuana possession far more frequently than whites. You may also know that there’s not much evidence that black people consume marijuana with greater regularity than whites do.
But the extent of the disparity between the rate of arrest and the rate of use for white and black Americans may surprise you. The ACLU has an absurdly comprehensive new report tracking marijuana possession arrests for blacks and whites at the national, state and county level. Sure enough, they find that black and white people use marijuana at roughly the same rates:
In at least one year, the white usage rate was higher. The others, the black usage rate was higher, but in no year were results for the two races that different. For young people ages 18-25, the rates of use are higher for whites:
And more blacks say they’ve never used marijuana:
Of course, this doesn’t translate to roughly equal arrest rates. Not even close:
And this is a uniform phenomenon. It’s not that some states treat the races equally and others treat them really unequally. Only in Hawaii are the rates even close to equal, and that’s biased by the fact that blacks make up only 1.6 percent of the population. In the state with the second-lowest disparity, Alaska, blacks are 1.6 times more likely to be arrested. In the state with the biggest, Iowa, blacks are 8.34 times more likely to be arrested. D.C. has the second biggest; in the District, blacks are 8.05 times more likely to be arrested.
Similarly, the vast majority of counties arrest blacks at a higher rate than whites, with some having a disparity of greater than 10 to 1:
And this includes a lot of urban areas that are highly populated and liberal-leaning. Cook County, Illinois, which includes Chicago, has one of the largest disparities of any county. So does New York County (Manhattan) and Kings County, N.Y. (Brooklyn):
How important is this? Well, while making up a quite small share of our prison population, marijuana possession charges make up nearly half of total drug arrests:
Obviously, being arrested without going to jail is a lot better than getting arrested and going to jail. But it’s still a major nuisance, leading to fines, long hours of community service and thousands of dollars in legal fees.
The report does suggest that legal reforms, in particular decriminalization, is effective at reducing overall arrest rates. Massachusetts decriminalized the possession of small amounts of marijuana in 2009, and arrests dropped an enormous amount:
But interestingly, the racial disparity in arrests did not fall at all:
In 2008, the black arrest rate in Massachusetts was 3.41 times the white arrest rate. In 2009, it was 5.4 times the white arrest rate. Now, the importance of the disparity diminishes when overall arrests are falling that dramatically, and there’s no reason to think that decriminalization caused the disparity to increase; in 2010, it fell back down to 3.81.
But it’s hard to make the case that decriminalization made enforcement more equitable. Indeed, as Stanford med school Professor Keith Humphreys notes, the states that have legalized or decriminalized marijuana to date all have smaller-than-average black populations. That suggests that whatever benefits casual marijuana users have received from those policies have mainly accrued to white smokers.
LaurakoontzWHAT IS THIS?!!?!
I don’t know what this is. Do you know what this is? I got this from Gabe Delahaye at Videogum, and he seems to know what it is. Help me:
LaurakoontzZack: Can totally make a hacked version of this in 30 days when our homemade tripel sec is done!
The Lucien Gaudin is a classic but obscure cocktail that celebrates the well decorated French early 20th century fencer of the same name. You may notice it shares similarities with the Negroni. Both feature gin and Campari. The Lucien Gaudin however has the distinct presence of orange, both from the flavor with the Cointreau and in aroma of the orange peel garnish. The Lucien Gaudin is a dry, crisp classic that is light on its feet.
I’ve created a modern twist on the classic above that shifts the orientation from orange to grapefruit. With the craft brew scene gaining popularity in the United States I decided to feature a familiar flavor profile, the pairing of hops and grapefruit. I made a grapefruit hop syrup that gives this recipe a magnificent citrus and hop aroma. And I paired that with the citrusy quinine bite of Cocchi Americano. I also like how the subtle Artemisia flower notes pair with the hops. Bluecoat Gin is my choice of gin here. Feel free to deviate. I chose it because its aroma and palette includes a lot of citrus.
Stir all ingredients except the garnish with ice. Strain into chilled cocktail glass. Garnish with the grapefruit twist.
Our user base recently grew 15x (and counting), and this changed everything. In a week we have gone from a personal project ran by three friends to a personal project ran by three friends with about 150,000 users.
Thank you everyone for your kind words, support, critique and active participation!
We are doing everything to bring things back to normal again, and we need your support.
We pay lots of attention to user requests, so we could not ignore the one where you had been asking for a way to donate us money.
We have been looking for a good way to accept donations, and we found Flattr. It is a simple way to manage your micro donations. You can either donate us fixed amount of money, or press the “flattr” button, and then your monthly budget would be distributed it among us and other projects you donated to during a month.
If you feel like donating a significant sum or you find flattr inconvenient, drop us a note (hello@theoldreader.com), we will figure something out.
If it’s a stretch, please don’t feel obligated to send us anything. We will use the money to expand our server infrastructure, which will help us to refresh feeds more often, process import queue more quickly, and even might even allow us to get more external resources to implement new features sooner.
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(photo by rossomakha)
