In case you missed it while preparing for your Turkey dinner, on November 22, 2021, the United States Supreme Court decided 9-0 that the Equitable Apportionment Doctrine, which had prior to this decision been held to apply only to surface waters, now also applies to interstate aquifers i.e., underground waters.  Mississippi v. Tennessee, et al. [1]
Continue Reading Water Law Update: The Equitable Apportionment Doctrine: It’s not Just for Rivers and Streams Anymore

We have previously blogged about ag-gag laws in general and the Iowa law in particular, the last post about Iowa being on January 3, 2020.  Animal rights groups such a People for the Ethical Treatment of Animals (PETA) or the Animal Legal Defense Fund (ALDF) conduct undercover investigations of farm and ranch properties to uncover incidents of animal abuse.  They often gain access to the property by subterfuge, such as applying for employment without disclosing their true motive.
Continue Reading Iowa Ag Gag Law Update

On June 12, 2020, we blogged about the so-called ag gag law enacted by the Arkansas legislature.  Animal rights organizations such as People for the Ethical Treatment of Animals (PETA) or the Animal Legal Defense Fund (ALDF) often conduct undercover investigations of farms and ranches to uncover abusive practices and publicize them to the world.  A typical method for undercover investigation is to seek employment under false pretenses, then secretly film possible abuses.
Continue Reading Arkansas Ag Gag Update

In December 2020, the US Congress voted to pass, and the President signed, the long-awaited Craft Beverage Modernization and Tax Reform Act (“CMBTRA”), making permanent the reduction in the federal excise tax (“FET”) rate paid by distillers.

The CMBTRA was originally signed into law on January 1, 2018 as a two-year tax break for producers,

On December 29, 2020, the U.S. Food and Drug Administration (FDA) announced in a Federal Register notice the 2021 fee schedule for its Over-the-Counter Monograph Drug User Fee Program.  That user fee program was an addition made in the Coronavirus Aid, Relief, and Economic Security (CARES) Act and authorized FDA to assess and collect user fees from qualifying manufacturers of OTC monograph drugs and submitters of OTC monograph order requests.

These user fees concern over-the-counter (OTC) monograph drugs, which are nonprescription drugs without an approved new drug application which are governed by the provisions of section 505G of the Federal Food Drug and Cosmetic Act (21 U.S.C. 355h).  Under the new fee schedule, FDA will assess a fee for certain facilities registered with FDA and for the submission of an OTC monograph order request (OMOR).  An OMOR is an industry request for an administrative order to add, remove, or change an OTC drug monograph, which is submitted under section 505G(b)(5) of the Federal Food Drug and Cosmetic Act (21 U.S.C. § 355h(b)(5)).

The announcement took some by surprise, particularly those in the craft distilling industry that shifted production to FDA regulated hand sanitizers, a type of OTC monograph drug, during the COVID-19 public health emergency.  By December 31, 2020, the Department of Health and Human Services (HHS) took action over FDA’s fee schedule.  In a post on Twitter, the HHS Chief of Staff, citing the small businesses who stepped up to provide hand sanitizer in the face of the pandemic, announced that HHS had “directed FDA to cease enforcement of these arbitrary, surprise user fees.”  HHS Office of Public Affairs (Dec. 31, 2020), at https://twitter.com/SpoxHHS/status/1344782160084037639.
Continue Reading Holiday Confusion for the Over-the-Counter Drug Industry: FDA Announces OTC Fee Schedule That HHS Quickly Withdraws

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

The United States Department of Agriculture (USDA) Agricultural Marketing Service (AMS) has proposed to amend the organic regulations to strengthen oversight and enforcement of the production, handling, and sale of organic agricultural products. This is one of the largest overhauls since the National Organic Program (NOP) was established.
Continue Reading USDA’s Proposed Rules on Organic Enforcement

We have on several occasions, most recently on February 5, 2020, blogged about so-called “ag gag” laws, statutes designed to prevent undercover investigations of agricultural producers. Since that post, the United States District Court for the Eastern District of Arkansas has dismissed plaintiffs’ challenge to the Arkansas statute for want of standing.
Continue Reading Ag-Gag Law Update

On November 5, 2018, we blogged about the circumstances under which checkoff dues violate the First Amendment.  Such dues are common in the ag sector.  Growers of cattle, for example, pay dues of $1 per head to various organizations that use the money for generic advertising.  These dues are by no means entirely popular with growers.  Large producers can pay hundreds of thousands of dollars a year.  Many growers would prefer to tailor their own advertising rather than relying on generic ads.  Constitutional challenges to the checkoff are not uncommon.
Continue Reading Update on Checkoff Dues