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 November 11, 2020, we blogged about Oklahoma’s meatless meat statute.  Like similar statutes in other states, the primary purpose of the Oklahoma law was to protect traditional producer of meat and poultry from competition from plant- and cell-based producers of meatless meat.  Unlike other states, however, Oklahoma did not attempt to ban the use of the word “meat,” or other descriptors such as “bacon” or “burger.”  Oklahoma merely required producers of meatless meat to proclaim its origins in labeling of the same size and font as the product’s name.

On November 19, 2020, the District Court denied plaintiffs’ motion for a preliminary injunction.  The Court held that the governing case was Zauderer v. Office of Disciplinary Counsel, which allows the government to require disclosure of purely factual and uncontroversial information, so long as it is reasonably related to a substantial government interest and not unduly burdensome.
Continue Reading Meatless Meat Update

California egg law - carton of eggsOn October 19, 2019, and December 4, 2019, we blogged about the North American Meat Institute’s challenge to California Proposition 12.  Proposition 12 prohibits the sale in California of pork or veal derived from animals confined in conditions that do not comply with the strict California standards.  It builds on the previous ban on the sale of eggs discussed in Association des Eleveurs de Canards et d’Oies du Quebec v. Harris, 870 F.3d 1140 (9th Cir. 2017) (the foie gras case), about which we blogged on May 29, 2018.

As we reported on December 4, 2019, the District Court denied NAMI’s motion for preliminary injunction.  On October 15, 2020, the Ninth Circuit affirmed in a short, per curiam opinion.

The Ninth Circuit panel held that NAMI had presented no evidence that the purpose of the statute was to discriminate against out-of-state businesses.  It also held that Proposition 12 does not have a discriminatory effect because “it treats in-state meat producers the same as out-of-state producers.”
Continue Reading Update on California Proposition 12

We have blogged on several occasions, most recently on June 4, 2020, about state laws attempting to shield traditional producers of meat and poultry from competition from producers of plant- and cell-based meat. These statutes typically attempt to prohibit such producers from calling their product “meat.” Most such statutes have been stricken, in whole or in part, on First Amendment grounds.

The latest state to enter the fray is Oklahoma. Unlike other states, Oklahoma did not prohibit the marketing of meatless meat as meat. Instead, it required disclosure of the product’s vegan status in “type that is uniform in size and prominence to the name of the product.” Violators could be liable for $10,000 fines and even jail time.

The practical effect of this statute, however, is to prohibit sales of meatless meat in Oklahoma. No other state imposes such a requirement, so the producer has a choice: redesign the entire label for Oklahoma sales or stay out of the state. In addition, as a matter of marketing strategy, producers want the largest type for the name of the product – not a disclosure.

Upton’s Naturals and the Plant-Based Foods Association have sued to enjoin the statute. They argue that the statute compels speech. Under the First Amendment, states have the right to compel such speech only when necessary to prevent deception. Plaintiffs argue there is nothing misleading about their current labels, given that they clearly disclose the origin of the product. At the very least, therefore, the statute must survive intermediate scrutiny to satisfy the First Amendment.
Continue Reading Meatless Meat Update

On October 7, 2020, we blogged about the request by the Harvard Law Animal Law and Policy Clinic that the Department of Agriculture (USDA) and the Food Safety Inspection Service (FSIS) refrain from proposing regulations governing so-called meatless meat products: foods that resemble traditional meats and poultry but derived from cell culture or plants.

On October 19, 2020, two industry groups asked the USDA to do the opposite. The Alliance for Meat, Poultry and Seafood Innovation (representing cell-based producers) and the North American Meat Institute (representing traditional producers) requested the USDA to solicit the data needed to establish mandatory labeling requirements for meatless meat.

Their letter noted that the launch date for marketing cell-based meat is fast approaching. The producers of such products want clear and truthful labeling that enables consumers to distinguish them from conventional meat and disparages neither kind of product.
Continue Reading Meatless Meat Regulatory Update

We have blogged, most recently on July 30, 2019, about Minnesota’s farm winery statute. The statute allows local wineries to sell direct to retailers and the public, unlike the traditional three-stage manufacturer-distributor-retailer system. In order to qualify for the farm winery license, the winery must obtain 50% or more of its ingredients from Minnesota

We have blogged on several occasions, most recently on June 19, 2020, about so-called “meatless meat” statutes – statutes intended to regulate the labeling of products resembling traditional meat or poultry but produced from plant- or lab-based materials. The Food Safety and Inspection Service (FSIS) of the Department of Agriculture has concurrent jurisdiction over such matters along with the FDA, and the agencies are contemplating issuing regulations.

The Harvard Law Animal Law and Policy Clinic (ALPC) recently asked FSIS to postpone any regulations in the area of lab-based meat until it has a better understanding of the safety of such products and has had an opportunity to review proposed labels.

The idea of lab-based meat was first bruited in 1930. The first patent for such a product was awarded in 1999 and numerous start-ups claim that they are ready, or almost ready, to sell lab-based meat commercially.
Continue Reading Update On Meatless Meat

Have you ever heard the term, “smells like money”?  Under the ever-changing economic landscape affecting farmers throughout the country, many are looking to diversify their agricultural operation from an exclusive row-crop operation to include livestock production. 
Continue Reading From Corn to Cattle: Under Right-to-Farm Act Laws, Farmers May Have Flexibility to Diversify and Expand Their Farming Operation

Husch Blackwell will host BioBreak on the Plaza: The Future of Biopressing Technology in our Kansas City office on December 11, from 3:45-6:30 p.m. The panel will discuss what makes biologics unique from other pharmaceuticals and treatments, what the bioprocessing industry looks like in our region, and the types of innovation happening within these fields.

Continue Reading The Future of Bioprocessing Technology