Time discussed an ongoing lawsuit between Pabst and MillerCoors.

Food Dive reported on large company start-up incubators.

The Minneapolis Star Tribune discussed the growth of Uber Eats.

The Washington Times discussed the slowing of the craft beer market.

The Minneapolis Star Tribune reported on the impact of a warming ocean on shellfish in the Northeast U.S.

 

We have blogged on several occasions, most recently on June 7, 2018, about the varied fate of so-called “ag-gag” laws. These laws seek to prevent, in one way or another, undercover investigations of the quality of producers’ facilities, usually involving care of animals or poultry.  On September 15, 2017, we blogged about the Tenth Circuit’s partial reversal of an order dismissing a complaint against the Wyoming version of an ag-gag statute.

The statute made it a civil and criminal offense to trespass on private property en route to public property, if the objective was to gather information about producer operations. The issue on remand was whether this statute violated the First Amendment.

On cross-motions for summary judgment, the District Court held that the statute was unconstitutional. It is clear that the First Amendment protects the gathering of information for ultimate use in speech; otherwise, it would be entirely too easy to shut down speech before it ever took place.  The statute was content-based because it only applied to collection of data about land and land use, and not to other purposes.  Thus, it was subject to strict scrutiny.

The statute failed strict scrutiny. The asserted governmental interest was in protecting the property rights of private citizens.  But it made no effort to do so for anyone not collecting data about producer operations.  The Court found this to be especially problematic given that producers deposed in the case had equal or greater problems with trespassing hunters and campers.  Moreover, the statute was not narrowly tailored to that interest.

The Court held that the State could criminalize trespass without any requirement of subsequent engagement with speech. This suggests that the State could accomplish its objective of shutting down speech about producers’ operations merely by strengthening a facially neutral trespass statute.  That in turn raises the prospect of an as-applied challenge to an amended statute.

Farms.com discussed a proposed EPA rule exempting farms from emission reporting.

USAgNet discussed EU restrictions on use of antibiotics on healthy farm animals.

The Conversation reported on current efforts to develop compostable food packaging.

The Environmental Leader reported on the rise of packaging-free grocery stores.

Agweb reported on FDA approval of drug to reduce manure gas emissions.

 

The state and federal governments tax a wide variety of growers of agricultural products to fund generic advertising – e.g., beef producers to fund “Beef: It’s What’s For Dinner” or pork producers to fund “Pork: The Other White Meat.” Many growers would prefer not to fund these programs, but the Supreme Court has generally upheld them as long as the content was dictated or approved by a government agency.

These kinds of marketing efforts date to the 1930’s at the state level and the mid-1960’s at the federal level. They can cost large growers several hundred thousand dollars a year. The rationale is that all growers benefit from the increased demand supposedly generated by generic advertising, so the program must be compulsory to avoid free riders from benefiting from the advertising without sharing its costs. Not all growers agree with this proposition. Some of them argue that generic advertising is harmful to their interests, because they market their product on the basis that they are different from, and better quality than, generic products.

In 1976, the Supreme Court decided Virginia Board of Pharmacy v. Virginia Citizens Consumer Council, Inc. 425 U.S. 748 (1976). Virginia Citizens held that the First Amendment protects commercial speech such as advertising, at least so long as the advertising is truthful and not deceptive. And the Court has long held that the First Amendment also largely protects people from compelled speech – being forced to support speech with which they disagree.

In 1988, a California fruit grower challenged the marketing tax on First Amendment grounds. In Glickman v. Wileman Bros. & Elliott, 531 U.S. 457 (1997), by a 5-4 vote, the Supreme Court upheld the program. The majority held that the program did not compel Wileman to engage in speech, merely to contribute money to fund it. Because the end product contained no ideological or political message, it did not run afoul of the First Amendment. Continue Reading Compelled Speech

Digital Journal discussed the impact of climate change on barley crops and beer production.

Food Dive discussed a new website aimed at helping consumers understand the environmental impact of the food they eat.

Western Farm Press reported on a USDA, EPA and FDA partnership to reduce food waste.

The East Bay Times discussed California ballot issues on cage free eggs and animal welfare.

The High Plains Journal discussed low-interest USDA loan for victims of natural disasters.

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