Earthworms, caffeine, and Utah laws and regulations

Friday , March 28, 2014 - 12:21 PM

Contributed, E. Kent Winward

My son is starting his science fair project for this spring. Numerous debates ensued in the household over what would be a great science fair project. Since he is 11, I mentioned a sadistic science fair project where earthworms are trained to avoid an electric rod that provides a mild shock. Then the earthworms are severed and when they grow into two new earthworms, the clone worms are tested to see if they remember the electric rod. In part, because of glares from my wife and concerns of the science fair being picketed by PETA, we chose a different project that did two things: a) appealed to the 11-year-old male psyche and b) accomplished a legitimate parental objective.

In our house, we have laws and rules. Laws are fairly inviolable and are not often challenged. Rules on the other hand (especially rules requiring different behavior from the child than the parent or older siblings) are subject to constant challenge. For example, no caffeine for the child. Anyone who is a parent can immediately see the wisdom in this rule and immediately see why our 11-year-old constantly challenges us on this rule, especially as his teenage sister imbibes a small reservoir of Coca-Cola on a daily basis.

From this rule, we decided to create the science fair project. We would create a situation where we could test the impact of caffeine on our 11-year-old, measuring blood pressure and heart rate on different days and eliminating as many variables as possible. The goal of the experiment is to show the wisdom of the parents, one of which is drinking caffeine at 4 a.m. and writing this column. The hook to entice the 11-year-old is he gets to drink a real live cola or two. No Red Bull — even science fairs have their limits. My protests that we can’t experiment on earthworms, but we can on 11-year-olds were largely disregarded.

OK, you are thinking, what does this have to do with “Business Law” in the Standard? Good question. Like our household, our state and federal governments have laws and they have rules. In government, the rules are called “regulations.” The Legislature will pass laws and the laws contain language like this:

(2) In addition to other rulemaking required by law, each agency shall make rules when agency action:

(a) authorizes, requires, or prohibits an action;

(b) provides or prohibits a material benefit;

(c) applies to a class of persons or another agency; and

(d) is explicitly or implicitly authorized by statute.

And you are thinking: with laws, like this, why do we want regulation?

Of the 428 laws passed by the Utah Legislature in 2013, 64 of those laws required rulemaking from state agencies. Right now the Utah Code or what most of us think of as the “law” is about the same size as the rules from all the state agencies. Each business day last year brought the citizens of Utah 5.7 new regulations or 1,482 new regulations.

Utah is actually a little behind the federal government in getting pending regulations before the public. At, you are instructed to sign up at each individual state agency to track new and proposed regulation. The federal government has the Office of Information and Regulatory Affairs that vets the rules from all the federal agencies and all the proposed regulations can be found at

One big difference between regulations and laws is the flexibility in regulations. The rules are proposed by hard-working civil servants who know the narrow area they are dealing with, but when translated for the average citizen, the rules can seem arbitrary and confusing. Efforts need to be made to make regulation more transparent and accessible to regular citizens.

We must treat our regulations more like science fair projects with experimentation and testing. Very few are going to argue with the auto safety regulations that have dropped traffic fatalities to the lowest level since 1949. Our regulators need to ask, what are the costs and benefits of the regulation? Or do we still need this regulation? And test those questions and then let the public know the results.

Our 11-year-old is soon going to have a very clear idea of caffeine’s impact on his health and his body. As citizens we need the same kind of information, so we can weigh in on regulations and rules that impact our health, safety and lives.

E. Kent Winward is an Ogden attorney. He can be reached at 801-392-8200 or

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