On Tuesday, September 12, The Board for International Food and Agricultural Development (BIFAD) will hold a public meeting covering the U.S Government’s Global Food Security Research Strategy: From Upstream Research to Development Impact. Jim Ash, leader of Husch Blackwell’s Food & Agribusiness group, is a member of BIFAD and will be moderating an afternoon panel on the topic of Leveraging Private Sector Innovation. Tomorrow’s meeting is open to anyone who would like to listen and participate. The agenda can be accessed here and will be livestreamed here. A list of topics that will be covered includes:

  • Update on Global Food Security Act
  • U.S. Government’s Global Food Security Research Strategy Overview
  • Cutting Edge Science for Development
  • Practical Application of Research Results
  • Applying Research to Emerging Threats
  • Federal and State Investments in Agricultural Research
  • Leveraging Private Sector Innovation

The Chicago Tribune reported on McDonald’s plans to serve more anti-biotic free meat.

The Food Dive discussed a law suit against the USDA to release a study on GMO labeling.

The Financial Buzz discussed an ag coalition’s recommendations for the farm bill.

Farm and Dairy discussed a new feed intake study on cattle breeds.

The Texas Tribune reported on the impact of Hurricane Harvey on Texas agriculture.

 

 

On February 17, 2017, we blogged about the Fifth Circuit’s ruling in Markle Interests LLC v. U.S. Fish & Wildlife Service, upholding the Service’s designation of 1500 acres of Louisiana property as critical habitat for the dusky gopher frog, despite the absence of the frog from that land for over 50 years and the complete inability of the property to support the frog.

Markle has now filed a petition for certiorari, supported by a number of amici curiae, including the Chamber of Commerce and 18 state attorneys general.  The same 18 attorneys general have filed suit in District Court to enjoin the 2016 amendments to the regulations.

USAgNet discussed the veterinary feed directive.

The Globe and Mail reported on Starbucks’ push into the Chinese market.

Sports Illustrated reported on food safety at major league ballparks.

The Kansas City Business Journal discussed a Boulevard Brewing collaboration on an MLS beer series.

The Denver Post discussed a new method to combat food waste.

 

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 into compliance. Read Husch Blackwell’s analysis of the decision and its implications here.

Earlier this week, the U.S. Environmental Protection Agency (EPA) filed a motion to stay the mandate for six months. If the stay is issued, farms will have until January to come into compliance with the reporting requirements. It will also give the farming industry more time to file a petition for certiorari with the US Supreme Court and challenge the D.C. Circuit decision.   Otherwise, October 1 will be the deadline for filing a petition for certiorari as the mandate will be issued on that date and the reporting requirement will then take immediate effect.

According to EPA, farmers from all over the country have asked EPA for help in calculating their emissions. A stay is needed so the agency can develop guidance on how to measure emissions from animal waste and comply with the new reporting requirements. A stay would also provide farms relief from enforcement actions while they come into compliance. EPCRA and CERCLA contain citizen suit provisions and noncompliance carries the risk of administrative, civil, or even criminal penalties. A stay of the issuance of the mandate would allow farms temporary relief from these risks and enable them to focus on coming into compliance.

On June 22, 2017, we blogged about the status of so-called “ag-gag laws” in various states. The purpose of such laws is to prevent undercover exposure of mistreatment of farm animals.  On July 7, 2017, a federal district court held that Utah’s ag-gag law violated the First Amendment.

The Utah statute criminalized four kinds of conduct.  It made it illegal to gain access to an agricultural operation under false pretenses. It also prohibited bugging an agricultural operation; filming such an operation after applying for employment with an intent to film; and filming such an operation while trespassing.

The Animal Legal Defense Fund and others sought to enjoin the statute as a violation of their First Amendment rights.  The State countered that the statute only prohibits lies and that the First Amendment does not protect lies.  In United States v. Alvarez, the Supreme Court held that lies were unprotected only if they cause legally cognizable harm. The District Court concluded that false pretenses incidental to filming animal abuse caused no such harm.

The State first claimed that the statute protected the health of animals and other employees.  The District Court agreed that this would qualify as legally cognizable harm under Alvarez and it recognized that some lies – the ability to operate farm machinery competently, for example – could indeed cover it.  But many of the lies that undercover operatives tell – their longstanding desire to work on a farm, for example – would not cause such harm, so the statute was fatally overbroad.

The State next argued that trespass in and of itself was legally cognizable harm.  Plaintiffs countered that they had consent, albeit induced by deception.  The District Court held that whether the consent was effective depended on the type of harm that the liar causes.  If the liar causes the kind of harm that trespass was intended to protect – interference with ownership or possession of land – the lie vitiated the consent.  If the lie causes some other type of harm, however, the consent remains in effect.

Once again, the District Court recognized that some liars could indeed injure ownership or possession of property and hence be guilty of trespass.  But other kinds of liars – e.g., the food critic who conceals his identity from the restaurant – would never cause trespass-type harm.  So, once again, the statute was fatally overbroad.

The State’s final argument was that lying to obtain employment causes harm because the employer is paying money on the false assumption that it has a loyal employee.  Again, however, the statute criminalized many more lies than merely ones made to obtain employment so it again was overbroad.

Alternatively, the State contended that the statute’s recording provisions were constitutional, because recording audio or film is not itself speech.  The District Court observed that the Supreme Court had held that the right to broadcast such things as movies was protected and thus the right to record them in the first place was necessarily protected.

The State’s final argument that the First Amendment did not apply was that the statute only regulated speech on private property and private landowners have the right to exclude others.  This argument failed because the entity attempting to regulate speech is the State, not the owner of the agricultural production facility.

The District Court held that strict scrutiny was the appropriate standard of review because the statute regulated on the basis of content, thus requiring the State to prove a compelling governmental interest protected by a narrowly tailored statute.  As a practical matter, application of strict scrutiny is almost always fatal to a statute, and so it is here.

The State argued that it had a compelling interest in avoiding disease and injury to workers or animals from incompetent undercover agents.  But the State produced no evidence that undercover agents caused these problems and purely speculative harm is never a compelling state interest.  Moreover, there were plenty of other ways to avoid these evils.

Expect an appeal.  The same issue is currently before the Tenth Circuit on an appeal from an order sustaining Wyoming’s ag-gag law.

The Milwaukee Journal Sentinel reported on potential Wisconsin rules limiting manure spreading.

Food Dive discussed Amazon Prime grocery items.

The Produce News discussed the growth of Colorado farmers markets.

NationSwell discussed California use of wastewater to irrigate crops.

ABC News reported on efforts to turn ugly vegetables into usable products.

 

USAgNet reported on soybean and corn acreage.

Global Meat News reported on the reopening of Chinese markets to U.S. beef.

The Minneapolis Star Tribune reported on a court decision ordering the EPA to continue implementation of emission rules.

The Los Angeles Times discussed soy milk naming issues.

USAgNet discussed soy bean farmers engagement with global partners.