Forbes reported on the tension between the meat and plant-based industries.

Beverage Daily discussed Michelob launch of organic grain beer.

CNN reported on Sam’s Club entry into grocery delivery market.

Financial Buzz discussed collaboration between conservationists and agriculture industry on monarch habitats.

The Guardian reported on an EU assessment of the dangers of pesticides to bee populations.


Food Quality News discussed a USDA proposal to revise swine inspection rules.

Food Engineering discussed the status of FSMA compliance.

The New York Times reported on the opening of the Amazon Go grocery store.

USAgNet discussed a research program at the University of Colorado designed to increase greenhouse efficiency.

The Financial Buzz reported on a Vancouver based partnership developing hemp infused craft beer.


On June 22, 2017, September 15, 2017 and October 12, 2017, we blogged about so-called ag-gag laws, laws designed to prevent investigative journalism about producers of food. These laws raise serious First Amendment questions and many have been challenged in court.

The United States Court of Appeals for the Ninth Circuit is the latest to weigh in, resolving a challenge to Idaho’s ag-gag law. The statute created a new crime:  interference with agricultural production.  Such interference consists of:

  • Entry into an agricultural facility by force, threat, misrepresentation or trespass.
  • Acquisition of records of such a facility by force, threat, misrepresentation or trespass.
  • Obtaining employment in such a facility by force, threat, misrepresentation or trespass, with intent to injure the facility’s operations.
  • Making audio or video recordings of the operations of such a facility without consent.

The District Court enjoined enforcement of all four provisions. The Ninth Circuit affirmed in part and reversed in part.  The Court held that the ban on entering onto property by misrepresentation violated the First Amendment.  The Supreme Court has held that not all false speech is unprotected by the First Amendment.  Rather, it is only when such speech obtains material gain or inflicts harm that it is outside constitutional protection.  Here, gaining entry to property to film cruelty to animals does not in and of itself inflict harm or provide material gain.

The Court observed that plaintiffs had only challenged the misrepresentation element and did not challenge entry by force, threat or trespass. It suggested severing that one word to salvage the statute.

Judge Bea dissented from this part of the opinion. He would have found that trespass to property is a cognizable legal harm.  Under Idaho law, a consent to entry that is induced by misrepresentation is invalid.

The Court unanimously reached a different conclusion with respect to the ban on obtaining records by misrepresentation. Obtaining such records can cause material harm to the producer.  For example, people opposed to fur coats could cause considerable damage to mink breeders by destroying breeding records.  Other records might contain proprietary and confidential information, the loss of which would cause material injury.  Conversely, acquisition of such information could give the perpetrator material gain.  So this part of the statute passes muster because it serves a legitimate public purpose.

The Court also unanimously upheld the ban on obtaining employment by misrepresentation, with the intent of causing damage to an agricultural producer. An employee clearly obtains material gain by virtue of picking up his or her paycheck.  The Supreme Court clearly held that an offer of employment is valuable consideration, and hence supports the statute.

The Court unanimously agreed with the District Court that the ban on recording was unconstitutional. It is clear that the process of creating content protected by the First Amendment is also protected; otherwise, an offensive book would never be published.  It is equally clear that the recording statute was content-based, so it has to survive strict scrutiny to satisfy the First Amendment.

The Court held that the recording statute was both underinclusive and overinclusive. It was underinclusive because it banned recordings but not photographs; and because it was limited to operations as opposed to, for example, vineyards.  It was overinclusive because, to the extent the recordings invaded protected legal rights, the producers have a remedy.

Even absent the entry and recording elements, the Idaho ag-gag law is likely to substantially restrict investigative journalism. By far the most common means of gaining access for undercover reporting is a false job application.  That was how Upton Sinclair gained the knowledge he needed to write The Jungle.  It is not clear how an undercover journalist could otherwise gain access to a production facility for any substantial period of time.  And it seems reasonably clear that a desire to expose unsafe or inhumane practices would include the intent to injure those operations.

Several challenges to similar statute are percolating through the federal courts of appeals and it would not be surprising to see a successful certiorari petition to the Supreme Court of the United States.

On March 16, 2017, and June 6, 2017, we blogged about Missouri’s legal challenge to California’s egg rules.  Now, there are two motions pending in the Supreme Court of the United States challenging the California law and a similar law in Massachusetts.

California requires its egg producers to provide substantially more space per egg-laying hen than is the industry standard. Obviously, that significantly raises the cost of producing any single egg.  To protect its producers, California prohibits the sale of eggs from any other state that do not conform to the same space standards.  Federal courts rejected Missouri’s pre-enforcement challenge on the ground that the State had sustained no concrete injury, and did not reach the merits.

In 2016, Massachusetts adopted a similar law via an initiative petition.  The Massachusetts law applies to pigs and veal, in addition to eggs.  Like California, it prohibits the sale in Massachusetts of eggs, pork or veal that does not comply with Massachusetts’ space requirements.

Earlier this month, Missouri joined twelve other states in seeking leave to sue California in an original action in the Supreme Court.  Missouri attached to its proposed complaint a 41-page expert report analyzing the increased costs imposed by California’s regulations.  According to the report, Missouri pays between $18,000 and $76,000 in additional costs to buy eggs for its correctional facilities.  Nationwide, the report estimates that consumers will pay between $227 million and $911 million in additional costs.  Thus, the Missouri complaint alleges both direct injury to the State in the form of higher prices it must pay for eggs and parens patriae injury to Missouri consumers.

The Missouri complaint alleges that the federal Egg Product Inspection Act (EPIA) preempts any state regulation of eggs that are “in addition to or different from” federal regulations issued under the EPIA.  In 2012, in National Meat Association v. Harris, a unanimous Supreme Court held that identical language in the Federal Meat Inspection Act preempted California’s attempt to regulate slaughterhouses.  Missouri also alleges that California’s egg rules violate the dormant commerce clause by effectively subjecting every State to its regulations. Continue Reading California Egg Update