In case you missed it while preparing for your Turkey dinner, on November 22, 2021, the United States Supreme Court decided 9-0 that the Equitable Apportionment Doctrine, which had prior to this decision been held to apply only to surface waters, now also applies to interstate aquifers i.e., underground waters.  Mississippi v. Tennessee, et al. [1] Continue Reading Water Law Update: The Equitable Apportionment Doctrine: It’s not Just for Rivers and Streams Anymore

The Federal Trade Commission (FTC) has launched an inquiry into the ongoing supply chain disruptions affecting a broad array of goods across the economy. Using a compulsory process to investigate the competitive impact of supply chain disruptions in consumer goods, under Section 6(b) of the Federal Trade Commission Act, 15 U.S.C. § 46(b), the FTC is requiring nine large retailers, wholesalers, and consumer good suppliers to supply information on the causes for the disruptions and the ongoing impact for consumers and competition. Additionally, the FTC is requesting comments from the public, including retailers, suppliers, wholesalers, consumers, and other interested parties.

The FTC intends to understand the disruptions better and “examine whether supply chain disruptions are leading to specific bottlenecks, shortages, anticompetitive practices, or contributing to rising consumer prices.” Continue Reading FTC Investigates Supply Chain Issues and Impact on Consumers

In March 2020, the Food and Drug Administration (FDA) issued temporary guidance documents allowing for the increased production of alcohol-based hand sanitizer during the COVID-19 outbreak. Due to that guidance, most consumers and healthcare personnel have been able to obtain hand sanitizer without difficulty. Now the FDA plans to withdraw the temporary guidance on December 31st, 2021. This withdrawal impacts any company manufacturing alcohol-based hand sanitizers under the temporary policies. Continue Reading FDA’s Withdrawal of Temporary Guidance for Alcohol-Based Hand Sanitizers

On August 23rd the U.S. Court of Appeals for the Federal Circuit (“Federal Circuit”) struck down federal regulations restricting refunds on export taxes and restricting beer and wine manufacturers greater tax refunds for duties paid on imports. In National Association of Manufacturers v. Department of the Treasury (see ruling here), the Federal Circuit upheld the lower court, the Court of International Trade (“CIT”), and ruled against the U.S. Treasury Department’s revised definition of duty drawback for wine.  Under U.S. tax law, the duty drawback program allows companies to apply for and receive certain tax refunds of excise taxes paid on imported goods. For example, a wine importer and manufacturer could recoup duties paid on 100 bottles of imported wine by exporting 100 bottles of similarly priced wine of the same class/type.

Under a revised 2018 rule, the Treasury Department changed the interpretation of the statutory definition of drawback (19 U.S.C. § 1313(v)) to exclude goods imported and then exported duty-free.  The Treasury Department argued that the current scheme allows wine companies to receive a near total refund of the excise taxes paid on imports. The Treasury Department also argued that other industries could benefit from the same scheme following the liberalization of substitution drawback requirements. The National Association of Manufacturers (“NAM”) and the Beer Institute brought a lawsuit claiming that the interpretation was contrary to law, arbitrary and capricious, and impermissibly retroactive. In January 2020, the CIT ruled that federal regulations could not limit when American companies were eligible for a refund of excise taxes on imports after those companies export similar products. The CIT determined that the intent of Congress was to expand exports at the expense of lost excise tax revenue.

The Federal Circuit affirmed the CIT’s finding that the statutory definition of drawback was unambiguous and thus, inappropriate for administrative interpretation and Chevron deference. The Court noted that drawback is “designed to incentivize exports from the United States and allow U.S. exporters to compete more fairly with overseas competitors.” NAM’s Senior Vice President and General Counsel, Linda Kelly, stated in response to the Federal Court decision, “this program helps manufacturers in America level the playing field when they sell to overseas markets.” Given the above, this court decision will preserve important tax incentives for beer and wine manufacturers and suppliers that export product from the United States.

We have previously blogged about ag-gag laws in general and the Iowa law in particular, the last post about Iowa being on January 3, 2020.  Animal rights groups such a People for the Ethical Treatment of Animals (PETA) or the Animal Legal Defense Fund (ALDF) conduct undercover investigations of farm and ranch properties to uncover incidents of animal abuse.  They often gain access to the property by subterfuge, such as applying for employment without disclosing their true motive. Continue Reading Iowa Ag Gag Law Update

Husch Blackwell Partner Michael Annis and Senior Associate Emily Lyons are slated to provide five On-Demand Webinar Sessions at this year’s Digital Animal Health Summit hosted by the KC Animal Health Corridor on August 24, 2021.

The Digital Animal Health Summit features 1:1 business partnering, on-demand webinars, emerging company presentations and live stream programming with industry leaders. The Summit brings together organizations from within the Kansas City Animal Health Corridor, which is home to more than 300 animal health companies, representing the largest concentration in the world. Continue Reading Lyons & Annis to speak at Digital Animal Health Summit

On June 12, 2020, we blogged about the so-called ag gag law enacted by the Arkansas legislature.  Animal rights organizations such as People for the Ethical Treatment of Animals (PETA) or the Animal Legal Defense Fund (ALDF) often conduct undercover investigations of farms and ranches to uncover abusive practices and publicize them to the world.  A typical method for undercover investigation is to seek employment under false pretenses, then secretly film possible abuses. Continue Reading Arkansas Ag Gag Update

In addition to the regulatory requirements imposed on beer labels, as discussed in the Anatomy of a Beer Label: Part I on COLAs, and the intellectual property protection offered by trademarks, as discussed in the Anatomy of a Beer Label: Part II, brewers may consider the value they can create through trade dress and copyright. Continue Reading Anatomy of a Beer Label: Part III

On April 20, 2020, we blogged about the legal challenge to Montana’s requirement that sellers of cattle must contribute $1.00 per head to Montana’s Beef Council to fund advertisements for beef.  Many sellers would prefer to keep the money and spend it on their own forms of advertising.

As we explained in the previous post, the legitimacy of this requirement depends on whether the government has control over the content of the advertising.  If it does, courts treat the speech as the government’s and there is no First Amendment issue.  If government does not control the content of the advertising, the requirement constitutes compelled speech, which the First Amendment prohibits. Continue Reading Update on Cattle Checkoff