The Supreme Court recently granted certiorari to review an opinion of the Sixth Circuit on constitutional limits on states’ ability to regulate the distribution of alcohol beverages. Tennessee Wine & Spirits Retailers Ass’n v. Byrd, No. 18-96.

With the advent of the 21st Amendment in 1933, which turned control of alcohol beverage regulation over to the states, temperance groups insisted on a rigid, three-tier system for the distribution of alcohol. Typically, under state laws a manufacturer of alcohol beverages can only sell to a distributor and it may not have any ownership interest in the distributor. The distributor in turn sells to retailers who sell to the general public. Neither the manufacturer nor the distributor may have any ownership interest in the retailer. Consumers can only purchase alcohol beverages from retailers.

The rise of the internet and direct delivery companies such as Amazon has undermined this rigid distribution system. The State of Michigan amended its statute to permit wineries located in Michigan to sell directly to consumers. Out-of-state wineries, however, could only sell to Michigan distributors. In Granholm v. Heald, 544 U.S. 460 (2005), a surprisingly divided Supreme Court held, 5-4, that its anti-discrimination holdings under the Commerce Clause trumped the states’ residual authority under the 21st Amendment. It also held that the direct-sale statute impermissibly discriminated in favor of in-state wineries.

Granholm settled the question of whether states could discriminate against out-of-state manufacturers. It left open the question of whether the Commerce Clause also protected wholesalers and retailers and the lower courts are divided on that point. Granholm clearly held that the three-tier system is not a per se violation of the Commerce Clause. Based on that holding, the Second, Fourth and Eighth Circuits have all held that Granholm does not apply to wholesalers and retailers.  The Fifth and Sixth Circuits have reached the opposite result. Continue Reading Constitutional Requirements For Distribution Of Alcohol

On June 29, 2018, we blogged about the dusky gopher frog, an obscure endangered species that lives only in a small area of Mississippi. The U.S. Fish & Wildlife Service nonetheless designated several hundred acres in Louisiana as critical habitat, even though the frog has not lived there for over 50 years and could not survive without substantial changes to the property.  The government has no legal authority to direct the owner of private land to make such changes.  A badly divided Fifth Circuit upheld the designation.

On Monday, October 1, 2018, the Supreme Court heard argument in the landowner’s appeal. Weyerhaeuser Co. v. U.S. Fish & Wildlife Service, No. 17-71.  Based on the judges’ questions, the Court appears to be dividing along familiar lines, assuming the silent Justice Thomas agrees with the conservatives.

One never knows how a case may turn out until the opinion is published, and there are several issues both legal and factual on which the justices have not really staked out a position.  The first is whether land could ever be “critical habitat” under the Endangered Species Act if the endangered species does not currently inhabit it and could not survive without changes to the land.  The liberal justices apparently think that the answer is yes, if the cost of the changes is reasonable.  The alternative, they suggested, would be to allow the species to expire.

Weyerhaeuser disagreed on both the legal and the factual aspects of that hypothetical, arguing that the plain meaning of “habitat” is where a plant grows or an animal lives. Weyerhaeuser also argued that the cost would be unreasonable and that the government could always buy the land and make the necessary improvements itself.

The more conservative justices wanted to know where in the statute one could find the reasonableness concept.  They also wanted to know who was supposed to pay for the necessary changes and why the government could not take other steps to preserve the species.

The parties also clashed on a technical point of administrative law.  The Secretary of the Interior has discretionary authority to exclude land from the critical habitat if s/he determines that the benefits of exclusion outweigh the benefits of inclusion.  The Fifth Circuit held that such a decision was not subject to judicial review.  Weyerhaeuser argued that the Court had previously held that the Administrative Procedure Act does authorize such review and gave an example of how irrational it thought the failure to exclude its lands from critical habitat really was.  The Deputy Solicitor General did not reach the issue.

The most interesting part of the argument is what was not addressed: Chevron deference. Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837 (1984), held that an agency’s formal interpretation of an ambiguous statute is entitled to deference and can be overturned only if the interpretation is unreasonable.  It has been a major factor in the rise of the administrative branch of the executive and several Supreme Court justices have called for its reconsideration.  But no one mentioned the doctrine.

The Court will likely issue an opinion early next year.

Recent technological developments have made possible meatless meat – lab grown or plant-based products that look, cook and taste like traditional beef, pork or poultry. Proponents of the new technology argue that meatless meat is much healthier than traditional meat and imposes far fewer environmental consequences.

Producers of traditional meat have responded to this competitive threat with legislation.  The last legislative session in Missouri produced § 265.494(7), R.S.Mo., which makes it a criminal offense to represent as meat any product that is “not derived from harvested production livestock or poultry.” Violation of the statute is a class A misdemeanor punishable by up to one year in prison and/or a $1,000 fine.  This is the first such statute in the nation, although likely not the last.

The Missouri Department of Agriculture has provided guidelines for acceptable advertising of meatless meat.  The Department will not refer for criminal prosecution any product bearing a prominent disclaimer such as “veggie,” “plant-based” or “lab grown.”  That construction is substantially narrower than the plain terms of the statute, which appears to ban any reference to meat and it is not binding on Missouri prosecutors.

Turtle Island Foods, a plant-based meat producer and the Good Food Institute, a non-profit group promoting meatless meat, have now sued to enjoin enforcement of the statute.  The defendant is Mark Richardson, the prosecuting attorney in Cole County, as the representative of a class consisting of all Missouri prosecuting attorneys.

The suit alleges three legal grounds for the injunction.  First, it claims that the statute violates the First Amendment by prohibiting meatless meat producers from providing truthful, beneficial information to consumers.  For example, the lawsuit alleges that consumers would benefit from a description of the product as burgers or hot dogs, because it enables meaningful comparison-shopping.  So long as there is full disclosure that the meatless meat is plant-based or lab-grown, consumers will not be misled. Continue Reading Missouri Meatless Meat Statute

On May 16, 2018 and June 13, 2018, we blogged about Gerawan Farms, a California agricultural company whose members wanted to decertify the United Farm Workers. The employees voted in 2013 but the California Agricultural Labor Relations Board (ALRB) impounded the ballots and refused to count them. The ALRB held that Gerawan had committed unfair labor practices that nullified the election. Last summer, the California court of appeals reversed that ruling and remanded the case to the ALRB.

Now, five years after the fact, the ballots were finally counted. By a margin of well over five to one, the employees voted to decertify the union. But the union intends to keep pressing its objections. The court of appeals had held that the union would have to prove that the unfair practices affected the outcome and, with a five to one margin of victory, that would be an upward battle.

The ALRB has now endorsed the election. The Board adhered to its previous ruling that Gerawan had committed unfair labor practices.  In light of the overwhelming margin of the election, however, the ALRB also held that those practices could not have affected the outcome.

This result likely moots Gerawan’s pending petition for certiorari.

 

The Washington Post reported on gene editing technology.

The Los Angeles Times reported on Brazilian efforts to deregulate pesticides.

Food Safety News discussed FDA review of link between pet diet and heart disease.

Food Dive discussed a study on the cost of eliminating antibiotics in the beef industry.

Fresh Plaza reported on a USDA study estimating the costs to comply with the Food Safety Modernization Act.

 

AgWeb discussed current U.S. drought conditions.

The New York Times reported on the development of self-destructing plastic.

CNBC reported on rideshare technology aimed at reducing food waste.

The Economic Times discussed efforts by India and China to reduce farm subsidies of developed nations.

Reuters reported on the lifting of GMO ban for U.S. wildlife refuges.