Public Safety

Beef (and Residual Hormones?). It’s What’s for Dinner.

Kira Le, MJLST Staffer

The beef industry in the United States has been using hormones, both natural and synthetic, to increase the size of cattle prior to slaughter for more than a century.[1] Capsules are implanted under the skin behind a cow’s ear and release specific doses of hormones over a period of time with the goal of increasing the animal’s size more quickly. Because the use of these hormones in the beef industry involves both drug regulation and food safety regulations, both the U.S. Food and Drug Administration (FDA) and the United States Department of Agriculture (USDA) are responsible for ensuring the safety of the practice and regulating its use.[2] According to the FDA, “scientific data” is used to establish “acceptable” safe limits for hormones in meat by the time it is consumed.[3] Agricultural science experts support the fact that the naturally-occurring hormones used in beef production, such as estrogen, are used in amounts much smaller than those that can be found in other common foods, such as eggs and tofu.[4] However, the debate within the scientific community, and between jurisdictions that allow the sale of hormone-treated beef (such as the United States) and those that have banned its importation (such as the European Union), is still raging on in 2022 and has led to significant distrust in the beef industry by consumers.[5] With the release of research earlier this year presenting opposing conclusions regarding the safety of the use of synthetic hormones in the beef industry, the FDA has a responsibility to acknowledge evidence suggesting that such practices may be harmful to human health.

Some defend the use of hormones in the beef industry as perfectly safe and, at this point, necessary to sustainably feed a planet on which the demand for meat continues to increase with a growing population. Others, such as the European Union and China, both of which have restricted the importation of beef from cattle implanted with growth-promoting hormones, argue that the practice threatens human health.[6] For example, a report out of Food Research Collaboration found that a routinely-used hormone in United States beef production posed a significant risk of cancer.[7] Such a finding is reminiscent of when, in the not-too-distant past, known carcinogen diethylstilbestrol (DES) was used in U.S. cattle production and led to dangerous meat being stocked on grocery store shelves.[8]

This year, research published in the Journal of Applied Animal Research discussed the effects that residual hormones left in beef and the environment have on human health in the United States.[9] Approximately 63% of beef cattle in the United States are implanted with hormones, most of which are synthetic.[10] Despite organizations and agencies such as the FDA assuring consumers that the use of these synthetic hormones in cattle production is safe, the residues that can be left behind may be carcinogenic and/or lead to reproductive or developmental issues in humans.[11] Furthermore, the National Residue Program (NRP), housed in the USDA, is not only the “only federal effort that routinely examines food animal products for drug residues,” but also only examines tissues not commonly consumed, such as the liver and kidney.[12] Researchers Quaid and Abdoun offer the example of Zeranol, a genotoxic synthetic hormone used in beef production in the United States that activates estrogen receptors, causing dependent cell proliferation in the mammary glands that may result in breast cancer.[13] They also noted the problem of residual hormones found in the environment surrounding cattle production locations, which have been found to reduce human male reproductive health and increase the risk of some endocrine cancers.[14]

Also this year, researchers published an article in the Journal of Animal Science claiming that despite the “growing concern” of the effects of residual hormones on human health, including the earlier onset of puberty in girls and an increase in estrogen-related diseases attributed to the excessive consumption of beef, research shows that cattle treated with hormones, “when given at proper administration levels, do not lead to toxic or harmful levels of hormonal residues in their tissues.”[15] The researchers concluded that the hormones have no effect on human health and are not the cause of disease.[16]

Perhaps it is time for the FDA to acknowledge and address the scientific disagreements on the safety of the use of hormones – synthetic hormones, especially – in beef production, as well as reassure consumers that players in the agriculture industry are abiding by safety regulations. Better yet, considering the currentness of the research, the inconsistency of the conclusions, and the seriousness of the issue, formal hearings – held by either the FDA or Congress – may be necessary to rebuild the trust of consumers in the U.S. beef industry.

Notes

[1] Synthetic Hormone Use in Beef and the U.S. Regulatory Dilemma, DES Daughter (Nov. 20, 2016), https://diethylstilbestrol.co.uk/synthetic-hormone-use-in-beef-and-the-us-regulatory-dilemma/.

[2] Id.

[3] Steroid Hormone Implants Used for Growth in Food-Producing Animals, U.S. Food and Drug Admin (Apr. 13, 2022), https://www.fda.gov/animal-veterinary/product-safety-information/steroid-hormone-implants-used-growth-food-producing-animals.

[4] Amanda Blair, Hormones in Beef: Myths vs. Facts, S.D. State Univ. Extension (July 13, 2022), https://extension.sdstate.edu/hormones-beef-myths-vs-facts.

[5] See Julia Calderone, Here’s Why Farmers Inject Hormones Into Beef But Never Into Poultry, Insider (Mar. 31, 2016), https://www.businessinsider.com/no-hormones-chicken-poultry-usda-fda-2016-3 (discussing the debate within the scientific community over whether the use of hormones in animals raised for human consumption is a risk to human health).

[6] New Generation of Livestock Drugs Linked to Cancer, Rafter W. Ranch (June 8, 2022), https://rafterwranch.net/livestock-drugs-linked-to-cancer/.

[7] Id.

[8] Synthetic Hormone Use in Beef and the U.S. Regulatory Dilemma, DES Daughter (Nov. 20, 2016), https://diethylstilbestrol.co.uk/synthetic-hormone-use-in-beef-and-the-us-regulatory-dilemma/.

[9] Mohammed M. Quaid & Khalid A. Abdoun, Safety and Concerns of Hormonal Application in Farm Animal Production: A Review, 50 J. of Applied Animal Rsch. 426 (2022).

[10] Id. at 428.

[11] Id. at 429–30.

[12] Id. at 430.

[13] Id. at 432–33.

[14] Id. at 435.

[15] Holly C. Evans et al., Harnessing the Value of Reproductive Hormones in Cattle Production with Considerations to Animal Welfare and Human Health, 100 J. of Animal Sci. 1, 9 (2022).

[16] Id.


Electric Scooter Regulations in Winter: Why the “Brake” in Service?

Warren Cormack, MJLST Staffer

In the summer of 2018, the city of Minneapolis began a pilot project to introduce 600 electric rental scooters, primarily to the downtown area. The city approved operations for Jump, Lyft, Spin, and Lime in 2019. Two thousand scooters were slated to hit the Minneapolis streets, but the companies deployed less than one thousand to Minneapolis for much of the 2019 season. Still, half a year ago, ride-share scooters from the 2019 authorization could be found all over the streets of Minneapolis and users “racked up about 225,000 rides.”

Minneapolis is a city with a strong winter biking tradition. Yet in February, with winter in full swing, electric scooters are nowhere to be seen. What happened?

The short answer is that Minneapolis’ second pilot program for electric scooters ended in November 2019. When we dig deeper, though, some interesting dynamics affect the use of electric scooters in winter.

Though scooter companies initially targeted warm-weather cities, now colder cities like MilwaukeeBoston, and Minneapolis face challenges associated with operating electric scooters in colder weather. For example, when snow emergencies hit, cities may have to ask companies to remove scooters from the roads.

An important concern for cities is safety. This was a major reason why Minneapolis ended the 2019 scooter pilot in late November. Minneapolis scooter companies agreed that 6 to 10 inches of snow was too much to operate safely. Scooter companies are already being sued for the injuries that they cause, and the odds that someone might injure themselves while riding on snowy ground is higher than when the streets are clear. Still, scooter companies have shown a desire to keep their scooters running unless a winter storm hits.

Though Denver’s weather is not as cold as Minneapolis, it does snow there. Denver’s scooters arrived in May 2018 and the city regulated their numbers within two months. Still, the city did not regulate the months within which the scooters would be available for use. A spokeswoman for Denver Public Works reportedly said: “I think riders are going to have to make their own choices if they want to ride an electric scooter in the winter months.” Denver’s comparable warmth may affect how the city balances safety concerns.

The cold weather is not only an issue for riders. “Scooter companies are still learning how their vehicles perform in various weather conditions and from regular use.” Scooters generally either operate on bike lanes or sidewalks. In either location, the small wheels and limited batteries of scooters can negatively impact their winter-weather suitability. The major scooter models currently in use have minimum operating temperatures of fourteen degrees Fahrenheit. Possibly in response to the limits of popular scooters, Bird (one of the major scooter companies) designed a scooter with more battery and pronounced tire treads. Tier is another company developing scooters that can handle cold weather. The effects of winter may be over-hyped, however. According to a scooter expert, scooters may become slower during the winter, but the cold does not damage their battery.

A final winter issue is simply a lack of riders. Even for European scooter companies that operate throughout the year, about half of the riders stop riding during the winter. Minneapolis data also reflect a roughly 50% decrease from summer’s peak to November. College riders leave home for winter break, prompting companies to reduce the number of deployed scooters. A lack of winter riders caused Lime to ramp down operations in Milwaukee. Though riders in relatively snowy cities like Denver have found that people use scooters through the winter, scooter companies facing higher maintenance costs and lower ridership may be wise to reduce their fleet size.

Scooters may leave for the winter due to safety, maintenance, or lower ridership. This may be caused by city policy or by the companies themselves. If the companies continue to make their scooters more capable of enduring the winter, cities may begin to find themselves at odds with electric scooter companies’ desire to stay open for business.


Timing Trouble: to what extent should we assume people will break the law?

Jack Brooksbank, MJLST Staffer

City planners and civil engineers across the country face a little-known, yet extremely important, question when designing road systems: how long should the green lights last? Anyone who has ever had a regular commute probably wishes the answer was simply “longer,” but this seemingly minor detail can get quite complex. Traffic light timing decisions are made by both government officials and specialist consulting firms, based on extensive studies, and supported by academic papers. The practice of traffic light timing is so established that it has its own lingo.

Perhaps the most important part of traffic light timing is coordination. Engineers try to set the cycles of lights on a given route in concert, so that a car passing through one green light finds the next light turning green in time for it to continue. “The intent of coordinating traffic signals is to provide smooth flow of traffic along streets and highways in order to reduce travel times, stops and delay.” When done well, it leads to a phenomenon known in the industry as a “green wave,” where a car hits every green light in a row and never needs to come to a stop.

It’s not just a minor detail, either. Coordination can have some serious benefits for a city. One town revamping its timing scheme estimated it would reduce travel times by as much as 10%. And although making the morning commute go more smoothly is a worthy goal in itself, proper light timing can create other benefits too. Efficient traffic light timing can even help the environment: by reducing the number of stops, and the total time spent driving, coordinated traffic signals reduce the amount of fuel burned, and greenhouse gasses produced, by commuters.

However, timing traffic lights relies in large part on one central assumption: that a car leaving one green light takes a certain amount of time to get to the next one. This raises a potential problem: drivers don’t follow the speed limit. Indeed, one study found that nearly 70% of all drivers regularly speed! When timing traffic lights, then, designers must make a choice: do they time the lights based on the legal speed limit, or based on the speed drivers actually go?

If timing is based on the speed limit, many cars will still arrive at the next light before it has turned green. The coordination of signals won’t have mattered, and the cars will still have to come to a stop. By basing the timing on the wrong speed, the designers have negated the benefit of their careful work, and might as well have saved the time and money needed for figuring out how to coordinate the signals in the first place. But, if instead timing is based on the speed drivers really travel, designers are essentially rewarding illegal behavior—and punishing those drivers who do actually follow the law with extra stops and delays!

Most major cities now rely on actuated controllers, or devices that detect when cars are approaching in order to trigger light changes without human input. Some cities are even experimenting with AI-based systems that take the design out of human hands completely. Advances in technology have thus heavily favored the “actual speed” approach, but is this because a decision was made to accommodate speeding drivers? Or have cities, in their enthusiasm to reduce congestion, simply adopted the latest in technology without considering the policy choice that it entails?

Also, if traffic lights should be timed for the actual speed cars travel, it may raise further implications for other areas of law that rely on questionable assumptions of human behavior. Perhaps most notable is the law of contracts, which generally relies heavily on the assumption that people read contracts before signing them. But as electronic devices, apps, and online content proliferate, this assumption gets farther from the truth. And people can hardly be blamed for agreeing without reading: one investigation in Norway found that people have an average of 33 apps on their smartphones, and that reading the terms and conditions of that many apps would take an average of 31 hours. Another investigation found that simply reading all the website privacy policies an average internet user encounters in a year would require 76 eight-hour days of reading! If we should time traffic lights to account for people being too impatient to follow the legal speed limit, surely we should update the laws of contract to account for such a crushing reading load. Perhaps it is time to reform many areas of law, so that they are no longer grounded on unrealistic expectations of human behavior.

 


E-Bikes: Protections, Safety and Liability on the Road

Alex Wolf, MJLST Staffer

E-bikes, or electronic bikes, are kind of a hybrid between an electric scooter and a regular bicycle. In appearance, they’re no different than your normal two-wheeled bike, but e-bikes have a motor that lets the rider reach brisk speeds without much pedaling effort. There are two classes of motors, hub motors and mid-drive motors. Hub motors are installed in the hub gear and mid-drive motors are installed between the pedals at the bottom bracket of the bike. The usual advice for e-bike newbies is to start with a hub motor; it is simpler to install and it has fewer working parts (creating less risk of a slip/accident and lasting longer). However, the mid-drives have now outpaced the hubs in popularity; for biking enthusiasts, the gear shifts feel more natural and the extra power is great for terrain or mountain biking.

E-bikes are on the streets, so states and localities need to decide how to regulate them. Wisconsin Governor Tony Evers recently signed a law that incorporates e-bikes into an existing law governing safety regulations for bicycles. The law creates a three-tiered “e-bike class” system, based on the maximum speed the e-bike can reach with its motor. Although e-bike riders don’t need any license or permit to operate, riders must be 16 years or older to ride e-bikes that can reach 28 mph. These regulations are similar to those previously enacted in Illinois and Michigan.

Like electronic scooters, e-bikes pose more safety issues than non-mechanized transportation. Reliable data is very hard to find (as e-bikes are new on the scene), but news reports indicate that older bikers are getting injured at higher rates than others. New York Governor Andrew Cuomo vetoed a bill that would’ve reauthorized electronic scooters and e-bikes on paths and bike lanes. He said that he believed the bill lacked important safety requirements, namely helmet use. However, Governor Phil Murphy of neighboring New Jersey eagerly signed a bill permitting scooters and e-bikes, hoping that “By bringing our motor vehicle laws into the 21st century, we will enable the rollout of e-bikes in Jersey City’s bike share program and expand the transportation options available to New Jerseyans.”

What can we expect for e-bikes in the near future? The annual e-bike market has surpassed $1.5 billion, with recognizable brands like BMW and Harley-Davidson jumping headfirst into this exciting commercial domain. We might soon see the statistic of the number of Americans who bike to work, currently about 1%, tick upwards. Minneapolis’ Nice Ride is leading the way for e-bikes in Minnesota, working with Lyft to bring 2,000 e-bikes to the city sometime in 2020. Minnesota law does not require either a license or a special motorized bicycle permit, but it does have other safety precautions like headlight use and an adult riding along if a minor is operating. So, if you’ve got the means, let it ride!


Lime and Bird Have Tough Legal Challenges Ahead

Nick Hankins, MJLST Staffer 

The hottest trend in on-demand transportation is the emergence of electric scooters. Two of the biggest suppliers of on demand scooters, Lime and Bird, have invaded cities across the country. Scooters are a quick, easy, and cheap way to travel short distances; riders can simply find a scooter, sign into the app, and go. They also have the added benefit of servicing gaps within a city’s public transportation system. Despite the benefits that these companies can bring to a community, Lime and Bird have significant legal hurdles to overcome.

Problematically for cities, pedestrians, and probably the scooter companies, is that unlike bike sharing platforms, once a rider is done with a scooter it is simply left discarded. Both Lime and Bird encourage their users to park their scooters close to the curb, away from walkways, driveways, ramps, and fire hydrants. However, in practice, scooters tend to be left strewn across the middle of sidewalks and other undesirable places. Aside from being a public nuisance, unaware pedestrians have been injured after tripping over misplaced scooters.

These features have caused a big headache for cities especially since companies like Bird and Lime generally install their scooters in cities without seeking prior approval. However, the do-first-and-ask-forgiveness-later approach has begun to haunt companies that attempt to cut cities entirely out of the process. For example after Milwaukee tried to ban Bird’s scooters (and Bird’s subsequent refusal to remove its scooters), Milwaukee moved to seek a temporary injunction to immediately have the scooters removed. Additionally, after failing to secure the proper business licensure and vendor permitting, Bird had to settle a dispute with the City of Santa Monica  for $300,000 and an agreement to run a weeklong public safety campaign on public buses. Other cities like Saint Paul, San Francisco, and Indianapolis required scooter companies to temporarily remove their scooters until regulations could be firmly decided upon.

Aside from legal complications stemming from municipal regulation, scooter companies may soon have to defend their products in court. As the electric scooter craze is gaining traction, riders are increasingly ending up in the emergency room in horrific scooter-related accidents. The types of injuries involved in these accidents are varied. Some accidents have to do with the laissez-faire storage practice as pedestrians trip over discarded scooters. Other injuries involve user error. In one case, for example, a rider crashed into a 2 year-old  who was walking out onto a sidewalk. Likely the most problematic injuries for scooter companies, involve technical malfunctions (especially those involving the breaks). Accordingly, it’s unsurprising that personal injury lawyers are beginning to chase scooters in hopes of getting their next big payday.

In short, Lime and Bird offer a unique solution for people who need to travel short distances. However, both companies will soon have to figure out ways to work with cities and how to avoid tort exposure.

As an aside, both companies will also have to deal with whatever fall-out comes from having teens charge their scooters.


The Future of AI in Self-Driving Vehicles

Kevin Boyle, MJLST Staffer

 

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

 

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

 

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

 

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

 

 


Permissionless Innovation or Precautionary Principle: The Policy Menu of the Future

Ethan Konschuh, MJLST Staffer

In their recent paper, Guns, Limbs, and Toys: What Future for 3D Printing?, published in the Minnesota Journal of Law, Science, and Technology Volume 17, Issue 2, Adam Thierer and Adam Marcus discussed the potential regulatory frameworks for technological innovations that could spur what they call “the next great industrial revolution.”  They believe that 3D printing, one such innovation, could offer such great benefits that it could significantly enhance global welfare.  However, they worry that preemptive regulations on the technology could undermine these benefits before giving them a chance to be realized.  The paper advocates for a method of regulation called “permissionless innovation,” as opposed to regulations following the “precautionary principle.”  While there are many pros to the former, it could leave unchecked the risks curtailed by the latter.

“Permissionless innovation refers to the notion that experimentation with new technologies and business models should generally be permitted by default.”  It follows from the idea that unless a compelling case can be made that a new invention will bring serious harm to society, innovation should be allowed to continue unabated, and problems, should they arise, can be addressed later.  The authors point to numerous benefits of this approach with respect to emerging technologies.  One of the most obvious benefits is that this type of regulatory framework does not prematurely inhibit potential benefits.  “Regulatory systems based on precautionary thinking focus on preemptive remedies that aim to predict the future and its hypothetical problems. But if public policy is rooted in fear of hypothetical worst-case scenarios, it means that best-case scenarios will never come about.”  It would also preserve the modern startup culture where “just about anyone can afford to launch a business.”  Implementing a framework based on the precautionary principle will create barriers to entry and raise the cost of innovation.  This would also reduce the ability to maximize competitive advantage through trial and error, which refines the technology and efficient allocation of resources for development.  As an example of the potential detriments to competitive advantage from preemptive regulation, the authors point to the different policies of the Europe and the U.S. in the mid-nineties internet explosion where the former preemptively regulated and the latter allowed for permissionless innovation, resulting in the U.S. being a global leader in information technologies and Europe lagging far behind.

An alternative regulatory approach discussed in the article is based on the precautionary principle, which generally refers to the belief that new innovations should be curtailed or disallowed until it can be proven that they will not cause harm.  This approach, while posing problems of its own discussed above, would solve some of the problems arising under permissionless innovation.  While there are many economic and social benefits to permissionless innovation as the bedrock on which policy rests, it inherently allows for the “error” half of “trial and error.”  The whole concept is rooted in the idea of ex post regulation, creating policy to correct for problems that have already occurred.  While traditionally, as shown through the internet regulation difference and outcome between Europe and the U.S., the risk of error has not outweighed the benefits that result, new technologies pose new risks.

For example, in the realm of 3D printing, one of the hot topics is 3D printed firearms.  Current laws would not make 3D printed guns illegal, as most regulations focus on the sale and distribution of firearms, not creation for personal use.  The reasons why it might be more prudent to adopt a precautionary principle approach to regulating this technology are obvious.  To adopt an ex post approach to something that could have such dire consequences could be disastrous, especially considering the amount of time required to adopt policy and implement regulations.  Permissionless innovation could thus become a sort of self-fulfilling prophecy in that major tragedies resulting from 3D printing could result in exactly what advocates of permissionless innovation seek to prevent in the first place: strict regulation that undermines the development of the technology.

The debate will likely heat up as technology continues to develop.  In the era of self-driving cars, private drones, big data, and other technologies that continue to change the way that humans interact with the world around them, 3D printing is not the only area in which this discussion will arise.  The policy decisions that will be made in the next few years will have far reaching consequences that are difficult to predict.  Do the economic and social benefits of being able to manufacture goods at home outweigh the risks of legal, discrete self-armament and its consequences?  The proverbial pill may be too large for some to swallow.


A View to the Development of the FAA’s Ban on the Use of Galaxy 7 Phones on Airplanes.

Joshua Wold, MJLST Staffer

Samsung’s Galaxy Note 7 has problems. Under normal charging and use conditions, the battery in some devices can start on fire. As of September 1, Samsung reported that 35 of these problems had come to its attention, and more have been reported since that time. Samsung has already begun a recall—officially a “replacement program”—offering to replace the potentially dangerous devices with new ones. At the same time, US government agencies are also moving to prevent the harm that a malfunction from these devices could cause.

The Federal Aviation Administration (FAA) has not banned the device from airplanes. According to Matt Novak at Gizmodo, the FAA stated on September 6th that it was “working on guidance related to this issue,” and said, “If the device is recalled by the manufacturer, airline crew and passengers will not be able to bring recalled batteries or electronics that contain recalled batteries in the cabin of an aircraft, or in carry-on and checked baggage.” On September 8th, the FAA issued a statement “strongly” advising airline passengers to keep the devices off, not charge them while aboard, and to keep them out of checked baggage.

Then, on September 9th the Consumer Product Safety Commission (CPSC) put out a press release urging Galaxy Note 7 owners to power off the device, and not to charge or use it. The press release indicated that it was cooperating with Samsung “to formally announce an official recall of the devices, as soon as possible.”

Based on the comments made to Gizmodo, the FAA appeared unwilling to ban the device until the official recall was put into effect. This is understandable. Cell phones are a significant part of modern life. Nearly every person getting onto a plane is carrying at least one. TSA would thus be forced to distinguish between types of cell phones. Its task would be complicated by cases and other types of personalization which obscure the appearance of a cell phone.

Even more challenging, however, is the fact that some versions of the Note 7 have a battery which is not prone to overheating, and poses no threat. Unless these safe phones were to also be banned, security personnel would need to determine which battery was in a phone in order to know if it were permissible. People want to have their phones when they get wherever they are flying to, and banning a safe phone because it looks like an unsafe phone seems like a sure recipe for passenger dissatisfaction.

It may seem that a ban is be appropriate despite the difficulties. Certainly, the potential for harm is significant. A widely circulated photo of a Jeep engulfed in flames is evocative of the threat, and airline passengers have gotten used to restrictions on items which seem to pose even less risk than an exploding phone. FAA’s suggestion that those with Note 7 phones simply turn them off and not charge them may have had the potential to eliminate the threat. On the one hand, it was only a strong recommendation, and not a rule. On the other hand, with airlines repeating the FAA’s warning, it seems unlikely that many people would have failed to take it seriously.

On the 15th of September, the situation changed further, as the CPSC announced an official recall. With that decision, the ground mentioned to Gizmodo for not instituting a ban disappeared. Considering  some data (which can be found here), suggesting that people aren’t really taking Samsung’s warnings seriously, it seemed very likely that the FAA would decide to strengthen their recommendation against use to a prohibition on use, or even a prohibition on flying with the phones at all.

On the next day, September 16th, the FAA banned use of the phone on airplanes, but not the phones themselves. This new policy fits with the reality of modern cellphone use, that people rely on their phones, even if they are fire hazards. While this move takes the pressure off the TSA (which is probably a good move in terms of the overall happiness of air travelers), the regulation (which can be found here) doesn’t specifically mention the Galaxy Note 7, but refers instead to “defective or recalled” lithium batteries.

Of course, this creates the same sort of enforcement problems as appeared with earlier recommendations: can airline staff identify a Galaxy Note 7 with such “defective or recalled” lithium batteries? The FAA itself notes that it is difficult to distinguish between phones which have had the battery replaced and those which are still risked. The FAA’s recommendation on how to manage this problem is pretty general, and it essentially boils down to training of airline staff, and provision of information to airline passengers. One hopes that this is sufficient.