farm and barn animal rights, ag-gag lawsFor the past 45 years, California’s Agricultural Labor Relations Board (ALRB) has promulgated a regulation requiring producers of agricultural products to give union organizers access to their property.  Access is limited to four 30-day periods per calendar year.  Organizers can access the property one hour before start of work, one hour after end of work, and one hour over the lunch break.  In 1976, the California Supreme Court held that the regulation did not constitute a taking of producers’ property.

The United States Supreme Court recently granted a petition for certiorari in a case challenging the ALRB’s regulation.  In 2016, two producers sued the ALRB, primarily on the theory that the regulation established an easement over their property for the benefit of union organizers and hence constituted a per se physical taking, requiring compensation.  The District Court dismissed the complaint and a divided panel of the Ninth Circuit affirmed.  Over a strong dissent by eight judges, the Ninth Circuit denied rehearing en banc.

The growers argued that the regulation was a per se taking because it allowed a permanent physical invasion of their property.  The panel opinion rejected that theory, because the alleged invasion was not “permanent and continuous.”  Rather, it was limited to three hours a day for not more than 120 days per year.  The opinion also held that the right to exclude others was merely one strand in the bundle of property rights.
Continue Reading Ag Producers Challenge Union Access To Property

A recent decision of the Trademark Trial and Appeal Board (“TTAB”) highlights the overlap between trademark law and food regulatory law as well as the United States’ and Europe’s different approaches to Geographic Indications (“GIs”).  GIs identify the particular location where an agricultural product (such as cheese, wine, or spirits) originates.

Interprofession du Gruyère, a Swiss association, and Syndicat Interprofessionnel du Gruyère, a French association, jointly filed a U.S. trademark application at the U.S. Patent and Trademark Office (“USPTO”) on September 17, 2015 to register the term GRUYERE as a certification mark for cheese.  The Swiss association already owned Registration Number 4,398,395 for the certification mark LE GRUYERE SWITZERLAND AOC and Design.  In the new application, the French and Swiss associations sought to register the term GRUYERE as a word mark, meaning that they made no claim to a particular stylization or design.  In effect, if the USPTO granted registration of the French and Swiss associations’ application, the associations could prevent others in the U.S. from using the term “gruyere” on cheese made outside of the Gruyere region of Switzerland and France.

The U.S. Dairy Export Council and several other entities filed to oppose the associations’ application on the basis that the term “gruyere” is generic for a style of cheese in the U.S.  (In full disclosure, Emily was employed during part of this proceeding at the International Dairy Foods Association, another opposer in the case, and assisted it in this proceeding before joining Husch Blackwell.)  Most of the other entities ultimately withdrew their oppositions or the TTAB dismissed their claims.
Continue Reading The Trademark Trial and Appeal Board Rules U.S. Cheesemakers Can “Say, Gruyere!”

On January 16, 2019, we blogged about the successful challenge to Iowa’s so-called Ag-Gag Law, designed to prevent undercover investigations of abusive farm practices. As expected, the state of Iowa has appealed that decision to the Eighth Circuit.

Last month the Farm Bill 2018 (Agricultural Improvement Protection Act of 2018) was signed into law. Section 10108 of that bill pertains to the Plant Variety Protection Act, which now has been amended to include Intellectual Property (IP) protection for asexually reproduced plant varieties.

Continue Reading Significant Changes to Agricultural Improvement Act of 2018 – Plant Variety Protection Act Amended

On May 16, 2018, we blogged about California’s compulsory arbitration requirements for unionized agricultural workers, the California Supreme Court’s rejection of constitutional challenges to that statute, and the petition for certiorari filed by the employer, Gerawan Farms. A majority of Gerawan’s employees signed a petition seeking an election on whether to decertify the union.  The

“Real food that matters for life’s moments.”  That’s Campbell’s stated purpose, and it’s commitment to increasing shelf space for plant-based options was further evidenced by its decision to join the Plant Based Food Association (PBFA) on October 30. The press release may be read here.

Campbell may be the first major food company to

At the end of 2016, the U.S. Department of Agriculture’s (USDA) Grain Inspection, Packers and Stockyards Administration (GIPSA) proposed a rule to “clarify the conduct or action . . . that GIPSA considers unfair, unjustly discriminatory, or deceptive and a violation of section 202(a) of the [Packers and Stockyards] Act” (the P&S Act, codified at

In April 2017, the D.C. Circuit issued a decision in Waterkeeper Alliance v. EPA, 853 F.3d 527, which, if upheld, will require approximately 63,000 small- and medium-sized farms that were previously exempt from the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) and Emergency Planning and Community Right-to-Know Act (EPCRA) reporting requirements to come