Ag & Food Law Blog

Welcome to the Ag & Food Law Blog

Welcome to the Ag & Food Law Blog, a comprehensive news, research, and information resource on agricultural and food law for the nation’s agricultural community.

It is provided by the National Agricultural Law Center, the nation’s leading source of agricultural and food law research and information. Located in Fayetteville, Arkansas the National Agricultural Law Center serves the nation's agricultural community and is a unit of the University of Arkansas System Division of Agriculture. In addition, the Center leads the eXtension Community of Practice for Agricultural and Food Law.

Third Annual Mid-South Agricultural and Environmental Law Conference, April 21-22

Posted February 18, 2016

Agriculture in the Mid-South is uniquely impacted by changes and developments in state, federal, and international laws and policies. Hosted by the Agricultural & Food Law Consortium, the Third Annual Mid-South Agricultural and Environmental Law Conference, April 21-22 in Memphis, TN, is part of a long-term effort to provide relevant and timely agricultural and environmental legal research and information to attorneys, lenders, accountants, tax consultants, students and other agricultural professionals involved in the agriculture and aquaculture industries in the southern U.S.

Conference highlights and panel discussions include:

- Agricultural & Environmental Law Updates

- Managing Risk in a Faltering Ag Economy

- Handling an Ag Bankruptcy

- Navigating Wetlands Issues

- Legal Issues & Liability in Agricultural Nutrient Management

This year's program is approved for six hours of CLE credit in Alabama, Mississippi, and Tennessee, including one hour of ethics. Further, it has been submitted for CLE credit in Arkansas and for real estate continuing education in Arkansas.

The conference kicks off Thursday, April 21, with a “BBQ & Beer” reception at Memphis' famous Rendezvous barbecue restaurant.

To register for the conference, please click here.

USDA proposes improving healthy food access

Posted February 18, 2016

Under a proposed rule change announced Tuesday by the USDA, retailers who accept food stamps would have to stock a wider variety of healthy food options or risk losing their ability to accept Supplemental Nutrition Assistance Program (SNAP) money.

The AP reports that the proposed rules are designed to ensure that the 46 million-plus Americans who use food stamps have better access to healthy foods. A person using food stamp dollars could still purchase junk food, but would have more options in the store to buy fruits, vegetables, dairy, meats and bread.

According to the Federal Register website, the Food and Nutrition Service (FNS) is proposing changes that address depth of stock, amend the definition of staple foods, and amend the definition of “retail food store” to clarify when a retailer is a restaurant rather than a retail food store. The rulemaking also proposes that FNS begin disclosing to the public specific information about retailers who have violated SNAP rules.

The 2014 Farm Bill increases the requirement that certain SNAP authorized retail food stores have available on a continuous basis at least three varieties of items in each of four staple food categories to a mandatory statutory minimum of seven varieties. Further, the 2014 Farm Bill increases the minimum number of categories in which perishable foods are required from two to three.

Kevin Concannon, USDA undersecretary for food, nutrition and consumer services, said in a statement, "USDA is committed to expanding access for SNAP participants to the types of foods that are important to a healthy diet. This proposed rule ensures that retailers who accept SNAP benefits offer a variety of products to support healthy choices for those participating in the program."

However, in a message on its website, the National Association of Convenience Stores (NACS), an industry trade group, says the rule change goes “significantly beyond” the statutory requirements in the 2014 Farm Bill and concluded that, “As currently drafted, the proposal will make it increasingly difficult for convenience store owners and operators to participate in SNAP, which in turn will negatively impact the many SNAP recipients that use their benefits at NACS members’ stores.”

Comments on this proposed rule can be made via the Federal e-Rulemaking Portal until April 18, 2016.

Mid-South Farm & Gin Show February 26 & 27 in Memphis

Posted February 17, 2016

The 64th Annual Mid-South Farm & Gin Show will be held February 26 & 27 at the Cook County Convention Center in Memphis, TN. Attendees can move through three full floors of the latest equipment and machinery and talk one-on-one with industry and company representatives of more than 400 exhibitors.

Additionally, State Farm Bureau presidents and Commissioner/Secretary of Agriculture from Arkansas, Mississippi, and Tennessee will hold “Meet and Greet” sessions providing an opportunity for farmers and others to speak to ag officials. These sessions are in addition to educational seminars and Ag Update meetings scheduled for both days of the show.

Ag Update seminars will be held at 8:30 a.m. on Friday and Saturday. On Friday, speakers will include Shane Stephens of the National Cotton Council with a cotton issues update, Carl Brothers of Riceland Foods with a wheat and rice market outlook, and Joe Nicosia of Louis Dreyfus with a cotton market outlook. On Saturday, Richard Brock of Brock & Associates will provide a grain marketing outlook.

Online registration and more information available here.

(Image courtesy Robert Goodson, U of Arkansas System Division of Agriculture)

Court rules on agency interpretation of statutes regarding incidental take

Posted February 16, 2016

A U.S. District Court in Puerto Rico has determined that the Endangered Species Act does not require agencies to monitor incidental take in every location where take occurs. Critically, the court concluded that it can only interfere with an agency’s interpretation of a statute if that interpretation is unreasonable.

In Center for Biological Diversity v. National Marine Fisheries Service (NFMS), plaintiffs challenged a recent NFMS Biological Opinion concluding that the incidental take on elkhorn and staghorn coral, resulting from continued fishing levels for parrotfish and surgeonfish, would not jeopardize their existence or impact their habitat in the U.S. Caribbean. The coral are a “threatened species” under the Endangered Species Act (ESA).

The U.S. Fish & Wildlife Service issues incidental take permits to private, non-federal entities undertaking projects that might result in the take of an endangered or threatened species. Per the ESA, 'take' means to “harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct." Application for incidental take permits is subject to certain requirements, including preparation of a conservation plan by permit applicants.

In this case, NMFS argued that it could use its monitoring results in St. Croix as a proxy for its take requirements in Puerto Rico and St. Thomas/St. John. Plaintiffs argued, on the other hand, that the Revised Incidental Take Statement omitting monitoring requirements in St. Thomas/St. Johns and Puerto Rico violated the Endangered Species Act.

The court found that NMFS's use of St. Croix as a proxy for the Puerto Rico and St. Thomas/St. John areas was reasonable despite plaintiffs’ contention that their method was not representative of coral populations elsewhere. The court determined that although NFMS’s decision to use St. Croix as a proxy was arbitrary, plaintiffs were unable to prove that St. Croix was an inadequate proxy for the rest of the U.S. Caribbean. Furthermore, the court found that plaintiffs did not offer legal authority supporting their theory that the Endangered Species Act requires monitoring incidental take “in every location where take occurs.”

The court also concluded that given the statutory and regulatory silence regarding the monitoring required of locations where incidental take occurs, they must defer to the agency's interpretation and may only interfere when it is unreasonable. In reaching this conclusion, the court cited Biodiversity Legal Found.v. Babbitt, 146 F.3d 1249, 1253 (10th Cir. 1998) which stated, “A challenge to an agency construction of a statutory provision must fail if, in light of Congress' ambiguity or silence, the agency's action ‘is a reasonable choice.’”

(Image courtesy pixabay.com)

Nebraska law allows meatpackers to own hogs

Posted February 16, 2016

Per nationalhogfarmer.com, Nebraska meatpackers can now own hogs.

Under LB176, passed February 5, a person who owns, leases or holds a legal interest in a swine production operation can enter into a contract to produce swine for a packer. The producer, or contract grower, will own the land and facilities used to raise the livestock while the packer owns the swine.

State Senator Ken Schilz said Nebraska was the only state that prohibited packers from directly or indirectly owning hogs. Because packers in other states are not subject to that restriction, packers who process Nebraska hogs could move to neighboring states.

In an editorial in the Schuyler Sun, Senator Jerry Johnson observed, “Supporters of LB176 argued that passage of this measure would give the Nebraska farmer another tool to compete in today's economy. It was said that young farmers would be helped by this bill as providing a source of income in an otherwise volatile industry with less risk. It was also said Nebraska farmers contract now with big corporations like Smithfield or Tyson, but ship their animals out of state for processing. Under this bill, processing will take place in the state. Jobs will be created and economic advantages will result.”

Opponents of the bill argued it would negatively impact family farms. Senator Al Davis of Hyannis told Fortune magazine that contract farming has become more prevalent in livestock states where packer bans have been overturned and that the contract model can be dangerous for farmers. Davis contends that many farmers who sign such contracts take on huge loans to pay for the infrastructure required to meet packers’ demands for large herds, leaving them unable to negotiate higher prices.

A copy of the approved bill may be viewed here.

Court rejects lawsuit alleging Chipotle’s advertising deceived customers

Posted February 15, 2016

A federal judge in California recently rejected a lawsuit that alleged Chipotle deceived consumers by advertising its menu as GMO-free, concluding that the plaintiff failed to state a specific claim against the fast-food chain.

In Colleen Gallagher v. Chiptle Mexican Grill, Inc., Chipotle avoided a proposed class action claiming the restaurant chain falsely advertised its menu as free of genetically modified ingredients. The court found that the plaintiff’s claims were not specific and did not hold to a consistent definition of “GMO."

The plaintiff contended that Chipotle’s GMO claims were false or misleading because the fast-food chain sells meat and dairy products derived from animals that consume genetically modified food and because Chipotle sells third-party soft drinks containing GMOs.

Per her complaint, Gallagher defined “GMO” as “any organism whose genetic material has been altered using genetic engineering techniques.” The court noted that the plaintiff’s complaint recognized that the term “organic” is used to describe "non-GMO meat and dairy products sourced from animals that did not consume genetically modified feed."

Critically, however, the court determined that the plaintiff never alleged in her complaint that Chipotle represented its ingredients as “organic” or explained “why a reasonable consumer would interpret “non-GMO” to mean the same thing as “organic.” Furthermore, the plaintiff never alleged that she actually purchased any food items containing GMOs and therefore, did not suffer an injury-in-fact.

U.S. District Judge Haywood S. Gilliam, Jr. dismissed the suit, but gave the plaintiff leave to file an updated version clarifying why reasonable consumers would likely be deceived by Chipotle’s GMO claims.