Friday, March 27, 2015

Capitalist Agriculture & Biotechnology: Toward Delineating the Contexts and Contours of Post-Academic Science

The latest issue of the “independent socialist” periodical, Monthly Review, has two articles that might interest this blog’s readers (socialist or not): Fred Magdoff’s, “A Rational Agriculture Is Incompatible with Capitalism,” and Michael Friedman’s “GMOs: Capitalism’s Distortion of Biological Processes.” With the “print” icon one can access PDF versions of either article.

Fred Magdoff “is professor emeritus of plant and soil science at the University of Vermont and a long-time commentator on political-economic topics. He is co-author, with John Bellamy Foster, of The Great Financial Crisis (2009) and What Every Environmentalist Needs to Know About Capitalism (2011),” as well as co-editor, with Brian Tokar, of Agriculture and Food in Crisis (2010), all three volumes published by Monthly Review Press.

Michael Friedman “earned his PhD in biology at the Genomics Laboratory at the American Museum of Natural History and currently works as an adjunct at City University of New York (CUNY).”

On the nature of “post-academic science,” please see the indispensable characterization and transdisciplinary analysis in John Ziman’s Real Science: What it is, and what it means (Cambridge University Press, 2000).

Thursday, March 05, 2015

Sixteen Things to Know About the Des Moines Water Works Proposed Lawsuit

Record high nitrate levels have been found in Des Moines' water -  6 times higher than federal limits. In early February, Des Moines Water Works indicated its intention to sue several Iowa drainage districts for failing to properly regulate the pollutants that flow into its water source.

The water quality problem faced in Des Moines and the proposed lawsuit raise many challenging issues. 

The following remarks were presented by Professor Neil Hamilton at the 2015 Iowa Water Conference, March 3, 2015, in Ames, Iowa.  Professor Hamilton is the Dwight D. Opperman Chair of Law and serves as the Director of Agricultural Law Center at Drake University Law School. Appreciation is extended to Professor Hamilton for sharing his remarks with Agricultural Law. 

Sixteen Things to Know About the DMWW Proposed Drainage District Lawsuit

First lets talk about the key legal issues in the dispute. As a starting point the potential lawsuit by the Des Moines Water Works against drainage districts in Sac, Calhoun and Buena Vista Counties raises important legal issues concerning the interpretation and application of the Clean Water Act (CWA) and of the authority and legal status of Iowa’s drainage districts. Many are issues of first impression – meaning the federal courts have not considered them previously. While some may believe the idea of a lawsuit is unhelpful – the claims are not frivolous or without merit, instead they raise important questions for the courts and society to address.

1. The proposed lawsuit is a citizen suit under the Clean Water Act claiming the drainage districts are point sources which need NPDES permits from the EPA –  The Clean Water Act (CWA) is the major federal law designed to protect water and prevent pollution. It authorizes EPA – and the states which administer the law, in Iowa the DNR, to issue NPDES permits (National Pollution Discharge Elimination System) to point sources – such as pipes and ditches – to allow them within in limits and after treatment to discharge pollution into the waters of the U.S.

The CWA – and most other environmental laws – include provisions allowing interested citizens to bring lawsuits to enforce the law after notifying the authorities of their intention. Citizen suits expand the resources available to protect the environment and the notice requirements give the government the first opportunity to act. This potential suit involves a series of complex and important legal questions the federal court will be asked to resolve.

2. Key legal issue # 1 – the drainage ditches are artificial conveyances of polluted ground - The key legal claim is the drainage districts built, manage, and maintain the system of drainage ditches which artificially collect, convey and discharge polluted groundwater into Iowa’s rivers and streams imposing costs on the DMWW and others who use the water. This makes the districts point sources under the CWA which need permits to discharge – no different than the discharge coming out of the pipe at a municipal sewage treatment plant or a private factory.

Presently EPA and the state do not treat drainage districts as point sources, but instead consider them to be an exempt nonpoint source - carrying water running off farm fields after storms. Under the CWA nonpoint sources are exempt from any permit requirements – which is why the CWA is largely a non-issue for most of agriculture – the exception being some concentrated animal feeding operations (CAFOs) are considered point sources and may be required to obtain a permit.

3. Key legal issue #2 - nitrates enter drainage ditches from groundwater – The second key legal claim is the nitrate contaminated water flowing in the drainage ditches is primarily ground water coming from tile outlets collected in the ditches and it is not surface water run-off. This issue is critical to the DMWW lawsuit because the CWA definition of exempt nonpoint sources includes “agricultural stormwater discharges.” This means the outcome of the case may hinge on whether what comes out of a tile line is considered groundwater or stormwater surface discharge.

When Congress wrote the CWA it did not define “agricultural stormwater runoff” and the federal courts have never had to answer what this means. Some observers believe tile lines have always been exempt from the CWA but no federal case law or legislation supports this. The courts have looked at “irrigation return flows” but that exemption is not applicable here. The importance of the groundwater-surface runoff distinction means the evidence of water contamination and the timing of the measurements will be critical evidentiary issues.

4. Key legal issue #3 - the lawsuit is against drainage districts not farmers – The lawsuit is not directed at individual farmers and landowners and not at tile outlets – but instead is directed at the drainage districts which under Iowa law are undeniably responsible for creating, operating, and maintaining the drainage ditches and system. Iowa has an extensive body of statutory law – over 70 pages and a constitutional amendment- on drainage districts, but a common understanding of their legal status and authority is not widely shared by lawyers, public officials, or farmers. Most Iowans including many in this room have no experience with drainage districts because they only operate in some parts of the state. The lawsuit raises important questions about the legal and jurisdictional relation between drainage districts and county governments, in part, because some districts are managed by county supervisors who also serve as trustees for the districts. That is the case for the three counties involved here - but one important legal issue will be whether the lawsuit is against the counties or against the districts?

5. Key legal point #4 - nothing will happen quickly – The citizen suit provision requires 60 days notice but it is uncertain when or even if the DMWW will actually file a lawsuit. It could happen next week or next year – or be postponed indefinitely if the board feels meaningful action is taking place. For example if the Legislature votes to raise the sales tax 3/8 cents to fund IWILL -the Natural Resources and Outdoor Trust Fund to provide steady and significant funding to share the cost of water quality actions needed by farmers and landowners – the suit may not proceed.

Even if a suit is filed it will trigger legal maneuvering: parties seeking to intervene on either side; lengthy discovery – gathering information and evidence; procedural disputes over whether the court has jurisdiction or the parties have standing to sue. Once it goes to trial and the court decides if the ditches are point sources – any ruling will likely be appealed.

The fact litigation takes time doesn’t mean it isn’t valid – and is certainly no reason for the state or farmers to stop taking action to protect Iowa’s waters.

6. The DMWW choice of drainage districts was very strategic – One of the key strengths of the DMWW litigation may be in the choice of the districts it has notified of the potential suit. The choices were not random but instead the districts were selected because they are predominantly agricultural and because the DMWW was able to obtain and verify credible and accurate readings of significant nitrate water pollution taken from publicly accessible sites, in part relying on U.S. Geological Survey testing.

The wisdom of this approach is reflected in the fact that with all the criticism of the possible lawsuit no one has challenged the claims about the high nitrate levels. This approach was in part designed to avoid the “lack of credible data” defense which some in agriculture have used in the past as a way to delay action. It also nullifies the goose poop and golf course arguments some have used to deflect responsibility

7. Implications or Possible Effects of a Ruling for DMWW are unclear – Assuming the federal court rules the drainage districts are point sources and need NPDES permits from EPA – the implications of the ruling or “what happens next” are uncertain. First, EPA and Iowa don’t consider districts a point source so there are no rules or standards for how to grant them permits to control discharges – like other point sources. EPA and Iowa would need to develop a permitting process. It could require districts to act to address water quality but EPA could also develop a “general permit” for drainage districts requiring little action on their part.

8. What could the drainage districts do to protect water quality? - A second aspect of the “what happens next” issue concerns exactly what legal authority do the drainage districts have to require farmers and landowners subject to their jurisdiction to take action? Clearly the districts have significant legal powers including the power of eminent domain, taxing authority through the levying of assessments on landowners, and the ability to enter onto property to construct and perform maintenance of ditches.

While districts may not have implemented rules to protect water quality – it is not unreasonable to believe they may have the legal power to do so – such as by requiring vegetative buffers on fields adjacent to ditches – or even requiring some form of treatment for water emptying into ditches from tile outlets. For example, could the districts require farmers to create wetlands or even purchase district owned land to be used as wetlands to treat water flowing through the systems? The truth is this is a largely unexplored area of Iowa law.

Now let me share some general observations about how we got into this situation.

9. The proposed lawsuit was predictable and is understandable – The DMWW warned people over 18 months ago it faced the need to consider filling suit unless aggressive and meaningful steps were taken to address the water quality problems in the Raccoon River. This action – which the DMWW board does not take lightly or without significant costs and risks - grows out of frustration with the state’s reliance on the entirely voluntary Nutrient Reduction Strategy (NRS) and the paltry funding the state has allocated to the water quality initiative.

Why did the DMWW decide to take this action now? It is uncertain why the DMWW decided to act but key factors or tipping points in the decision probably include the Governor’s May 2014 veto of the supplemental appropriation for the NRS which showed a lack of good faith and this winter’s spike in nitrate levels in the water which illustrated the growing and serious nature of the pollution problem. Claims about progress being made with the NRS and about the need for more time for it to work may be factors. The DMWW appears to be tired of waiting.

10. The real issue is accountability and responsibility – The DMWW board is obligated under the Safe Drinking Water Act to protect the 500,000 customers it serves. The board appears frustrated others in the watershed including drainage districts and farmers are not required – under current legal interpretations – to account for their impacts on water quality. They may feel the claims of “progress” with the NRS – aren’t supported by measureable improvements – and reflect a lack of urgency. In other words - talk is cheap and actions so far have been minimal – the lawsuit seeks to share the responsibility for clean water.

11. Dispute illustrates legal ironies and conflicts in Iowa’s water debate – First, we have a local unit of government with regulatory authority created to protect soil and water quality – the soil and water conservation districts, but they are not in the case, instead the drainage districts which were not created to protect water quality are.

Second, many believe surface runoff is the cause of water pollution, but the reality is surface runoff dilutes contamination and it is more likely the later ground water discharges from tile lines cause the increases in nitrate levels – that is why the suit focuses on groundwater.

Third, many agricultural groups claim nonfarm sources are contributors to water pollution in Iowa – the goose poop and golf course argument – which is why these drainage districts were singled out – they are predominantly agricultural areas.

Fourth the anti-regulatory dogma driving much of the Iowa debate about agriculture and water quality has delayed consideration and adoption of effective and low cost regulatory steps that could have addressed the problems before now and helped avoid the litigation.

12. Reactions to the proposed lawsuit are mixed but generally positive – News of the proposed suit was greeted with many predictable reactions – ranging from the Governor’s silly comment Des Moines had declared war on rural Iowa to the suggestion by some pork producers to boycott Des Moines. But the lawsuit has also generated a perhaps surprising level of supportive comments from across rural Iowa and from other communities – which illustrate a collective concern about the quality of Iowa’s water and the deterioration in our commitment to soil conservation and natural resource protection.

The recent Iowa poll shows a majority of Iowans, both urban and rural, support the idea of the suit. The poll is a significant indicator of the public attitudes about the need for action.

Surprisingly - this threatened litigation may turn out to be one of the most important things to happen in Iowa’s natural resource debate in decades – because it is making people think and may lead people – including local and state officials, farmers, and others - to take action.

13. Inadequacy of Nutrient Reduction Strategy are at the heart of the dispute – The proposed lawsuit has brought into focus some of the perceived inadequacies of the NRS, e.g. it is entirely voluntary; it has no standards, timelines or measurements; and the lack of funding for implementation. The NRS is not really a plan because it has no funding commitments or timelines for action. At best it is a promise we will try harder and at worst it is a continuation of Iowa’s legacy of delay and denial when it comes to dealing with natural resource issues.

The NRS fails to create a funding mechanism so the many farmers taking action to protect water quality can receive support for their efforts. Groups like the Iowa Soybean Association are providing critical leadership on innovative approaches to water quality.

Funding allocated to the NRS is minimal compared to the projected costs. Some point to how quickly the state’s cost share money is claimed - less than 5 days in 2014 - as a sign of success; but more realistically doesn’t this indicate the inadequacy of state funding?

Allocating a few thousand dollars to each county should be seen an embarrassment not a sign of commitment – or the basis to claim significant progress.

If we are serious about addressing water quality – and protecting soil – we should pass the IWILL legislation to increase the sales tax 3/8 cent so the Natural Resources and Outdoors Trust Fund has the cost sharing funds needed to help farmers. We now have a bill S.F. 357 introduced March 2nd by Senators Johnson and Dearden.

14. We Need a Regulatory Reality Check – Much support for the NRS as the “solution” to Iowa’s water problems is really an effort to prevent any consideration or use of regulatory approaches. Consider how often you hear leaders talk about how “one-size fits all” regulations are not the answer and no regulation will improve water quality. The “anti-regulation” dogma - championed by the Farm Bureau and others - is uninformed and shows a basic misunderstanding for how law works and for how the state and nation have historically made progress addressing soil conservation.

First, regulations are key to the legal system, they are how law is delivered - such as signing up for ARC or PLC payments as many of you will do at FSA offices this month. Regulations establish objective processes and responsibilities or duties for all individuals in society. Second, regulations operate by being uniform - one size fits all – the same rules apply to all citizens – you don’t get to make your own rules. If you want to buy crop insurance you follow the RMA rules.

Consider two examples – speed limits and blood alcohol limits. You can’t drive 60 in a school zone and then tell the officer its OK because you are really careful – or blow a .16 and explain it is all good because you can handle your liquor! The rules are the same for all of us. You comply with rules mainly because you accept the responsibility to act to protect the public – not because you fear the fines. The point is regulations don’t prevent people who want to comply from doing so – but they do require actions by those who would otherwise refuse to act.

Third, regulations establish responsibilities for people or they face risks. Consider how the 1985 conservation title – with sodbuster, highly erodible land, conservation compliance, and swampbuster provisions– was the key for making real progress in reducing soil losses in Iowa and across the nation. These are regulations - they were voluntary only if you wanted to operate without farm programs – and still are today - if you don’t want crop insurance. But rules like conservation compliance let you choose how to comply, they don’t require only one practice.

15. Iowa’s water will not be clean until rules require individual responsibility – The range of entirely unregulated farming actions that can impact Iowa’s water quality – such as unrestricted tiling and farming next to stream banks - means there is a key role for regulatory approaches. Iowa law already establishes a duty on all landowners to protect the soil and meet soil loss limits set by county soil districts. We need a similar rule for water quality. But any rules adopted will not need to be onerous, overly restrictive or costly. For example, here are two regulations that would be effective, relatively easy to adopt and have limited costs.

First, Iowa could require people farming next to rivers, streams and ditches to plant vegetative buffer strips of a minimum width. Second Iowa could require anyone applying fertilizer to develop a nutrient management plan to inform their decisions. How you comply with either requirement would be up to the farmer and landowner but everyone would need to comply. If you don’t think these rules are possible think again – Minnesota requires stream-side buffers and Ohio has recently adopted the nutrient planning rules. Adopting both measures would help protect Iowa’s water and share the responsibility, ideas most Iowans embrace.

In 1979 the Iowa Supreme Court faced a constitutional challenge to the law requiring landowners comply with soil loss limits. In Woodbury County Soil Conservation District v. Ortner the Court upheld the law, noting:

It should take no extended discussion to demonstrate agriculture is important to the welfare and prosperity of this state. It has been judicially recognized as our leading industry. The state has a vital interest in protecting its soil as the greatest of its natural resources, and it has the right to do so.

This means the state has the legal authority to impose a duty to protect water quality – if we choose to do so.

16. There are risks and uncertainties for farmers with the lawsuit – Clearly the lawsuit makes people nervous because it involves untested theories – and the outcome is hard to predict. DMWW officials are quick to point out they are not suing farmers or tile outlets – but this is a bit disingenuous because if the court agrees drainage districts are point sources they may have to take steps to obtain permits – which could result in farm level impacts. The DMWW suit may require actions by farmers living in drainage districts – we just don’t yet know what they might be. This is one more reason for farmers and all of us to protect water quality.

Conclusion - What is next? – The lawsuit can’t be wished away and there is little the legislature or Governor can do to influence what the DMWW decides – other than getting serious about water quality. DMWW faces significant economic costs – perhaps as much as $100 million if forced to build a new nitrate removal plant. Doing so would make the water safe to drink but do nothing to help Iowa find long-term solutions to a serious matter. The real answer is for all of us to collaborate and support innovative efforts to protect our water – and soil – and support profitable, sustainable farming.

Saturday, February 28, 2015

Food Aid & Farmers Markets

“Hunger benefits programs are vital to many farmers markets”
 By Russ Parsons for the Los Angeles Times, February 24, 2015

Peppers from the Gardena farmers market. (Ken Hively / Los Angeles Times)
Most people think of farmers markets as places where famous chefs shop for precious fruits and vegetables, or where passionate cooks can meet their friends for a pleasant morning’s shopping. But for many Los Angeles County farmers markets, it is customers at the other end of the economic spectrum who are the backbone of the business. Particularly at small and mid-sized markets in poor neighborhoods, food stamps — now called CalFresh — and WIC [Women, Infants and Children] benefits make up the bulk of farmers market business. More than 60 Los Angeles County markets now accept benefits.

For Celeste Colford, shopping at the Friday market in a parking lot of the First Congregational Church in downtown Long Beach, being able to use the benefits to buy fresh fruits and vegetables is a key step in the road back from hard times. “I first started coming here because I was homeless and I really looked forward to the market because I could sit down in a quiet place and buy fresh fruit and vegetables and get my mind off things; it was really good for me,” she says.

Colford continues to come to the market now that she has an apartment of her own because “the fruits and vegetables are always really fresh and they’re always in season. Plus, I trust the farmers.” Julie Schwarz, manager at the Long Beach market, estimates 65% of sales comes from customers using benefits. “This market probably wouldn’t be alive today if it wasn’t for them,” she says. Farmer Roland Tamai, who sells collards, kale, chard, beets and strawberries, among other items, says: “In the beginning, I was a little skeptical about the whole thing, but this is a huge part of our business, especially at this market. “We get a lot of low-income families from this area shopping here and I’d say that it makes up up to 40% of our sales any Friday. I love it. We get business and the customers get to buy fresh fruits and vegetables. Everybody’s happy."

The amount of sales might surprise you. Ida Edwards, manager at the Saturday market in Gardena says her customers regularly redeem $1,000 to $2,000 in benefits every week. “It’s good business for us and it keeps getting better.” Indeed, at the farmers markets run by Sustainable Economic Enterprises of Los Angeles (SEE-LA), the use of benefits has increased as much as 50% over the last year, says Jackie Sauceda-Rivera, director of Programs, Benefit & Incentive Programs. Nationally, the value of benefits used at farmers markets almost quintupled between 2009 and 2013 — to more than $21 million, according to one study. [….] 

For the rest of the article, see here.

Saturday, January 24, 2015

Call for Papers: Current Issues of Agricultural Law in a Global Perspective

Scuola Superiore Sant'Anna

Editor's note: This announcement has been posted on behalf of Andrea Saba, Scuola Superiore Sant'Anna, Pisa, Italy.

Call for Papers: International Colloquium, Current Issues of Agricultural Law in a Global Perspective, Pisa, Italy, September 17-18, 2015

  • Deadline for abstract: April 3, 2015
  • Deadline for draft paper: July 3, 2015

The Scuola Superiore Sant'Anna and the Institute of Law, Politics and Sustainability are pleased to announce the First Edition of the International Colloquium on Current Issues in Agricultural Law in a Global Perspective. The Colloquium is intended to be an opportunity for post-docs and Ph.D candidates to present and discuss their research results and methodological approaches in a supportive environment. The aim is to build a community of early career researchers interested in agricultural law and its intersections with other legal areas.

We welcome both theoretical and empirical papers as well as studies on issues at the local, regional and international levels. The main topics include:

  • Natural Resources and Environmental Protection at the cross-roads with Agricultural Law;
  • Agricultural Models and People’s Rights;
  • Agri-Food Production: Tradition and Technologies;
  • International Trade Agreements, Investment Law and Agriculture

Those interested should submit a short CV and 400 word abstract to no later than April 3, 2015.

For full details, including information about application processes, please see the official call for papers.

Saturday, November 15, 2014

"All I know is that I like to eat kale."

NPR's All Things Considered ran a delightful story on the kids at Watkins Elementary in Washington, D.C. Why These Kids Love Kale, (Nov. 14, 2014).

There, thanks to Food Prints, a program founded by the program D.C. nonprofit FRESHFARM Markets, the kids have a garden that they tend. They grow healthy food as a class, and then they all get to help prepare it.  As 9-year-old Alex Edwards says, "All I know is that I like to eat kale. I like it, I like it, I like it!"

There are lots of problems in the world right now.  Lots of problems with our food system, significant environmental challenges, and increasing inequalities.  So, once in a while, it is refreshing to hear a story that reminds us that not all problems are overwhelming or insurmountable.
"A big part of it is allowing them to do real work," says FoodPrints Program Director Jennifer Mampara. She believes kids get tired of doing work that only is meant to keep them busy. With Foodprints, "they really go into a real garden. They're really harvesting it out of the ground. And they're actually cooking the food themselves."
It's actually a very Montessorian concept - the belief children want to learn how to do things for themselves and to do productive work. I observed it first hand in my past days in running a Montessori pre-school and child care center.

School gardens and involving children in food preparation is such a simple concept.  But, of all the things we do to try improve our food system, it may turn out to be one of the most enduring and significant.

Changing the way we think about food, one child at a time.

Saturday, October 25, 2014

New and Significant Documentary: Food Chains

I am writing this post from LAX, on my way home from the UCLA-Harvard Law School Food Law & Policy Conference.  It was an excellent conference, bringing together food law scholars and policy experts from across the world.  There were many highlights, including a fantastic key note address by Dr. David Kessler.  Special thanks go to Michael Roberts, Director of the Resnick Program for Food Law & Policy for his work in pulling together such an excellent event.

One aspect of the conference provided a unique opportunity.  After the substantive sessions, conference participants were treated to a private screening of the new film Food Chains followed by a panel discussion that included the film's Director, Sanjay Rawal.  I recommend this film highly to anyone involved in agricultural law, food law, or interested in our food system.

Food Chains is the story of farmworkers in America, through the lens of the Coalition of Immokalee Workers (CIW) in Southern Florida.  Their courage and the successes they have achieved is a story of human dignity and hope.  But, their struggles continue to be daunting.

As the film's website notes, "[t]here is more interest in food these days than ever, yet there is very little interest in the hands that pick it."  Daniel Rothenberg expressed a similar theme in his description of the underworld of agricultural labor in his phenomenal book, With These Hands: The Hidden World of Migrant Farmworkers Today. When I have taught my Agricultural Labor Law class, I have always assigned this book.  In recent years, a few students have questioned whether the types of abusive labor practices described in the book could still be prevalent. The book was first written in that late 1990's and published in paperback in 2000.  While I tell them that little has changed, Food Chains makes the point in a way that I could never do on my own.  And, it does so with documented personal stories from the workers themselves as they battle for a better life -  and for the rights that most workers take for granted.

Food Chains is now being screened at locations across the country. It will be released nationwide November 21st.  Information about screenings and the release is available on the film website and on its Facebook page.

I encourage everyone to view this important film.  It tells the back story of something that touches us all -  the fruit and vegetables we eat.  Every time we order a salad, have a hamburger with a slice of tomato on it, or enjoy fruit on our morning cereal - we should consider the workers who provided us with the produce we enjoy. They deserve a safe working environment and a living wage.  All too often today, they have neither.  Food Chains is, in effect, a sequel to the landmark documentary, Harvest of Shame. It is tragic that so little has changed.  As a society, we need to ask why and to finally fix the problem.  Food Chains is an important first step.

And our event occurred appropriately on World Food Day,  a related milestone was announced as well -  the CIW revealed its new food label.

Tuesday, October 07, 2014

Did the dismissal of Missouri v. Harris have an unanticipated effect?

Source:  Center for Food Safety
The latest chapter in the California battery cage saga ended last week.  State of Missouri, et al. v. Harris is no more.

Background:  California’s Prevention of Farm Cruelty Act was enacted in a 2008 ballot initiative (Prop 2).  The law, which takes effect on January 1, 2015, criminalizes production practices that involve confining or tethering a farmed animal “for all or the majority of the day, in a manner that prevents such animal from (a) lying down, standing up, and fully extending his or her limbs; and (b) turning around freely.”  One such confinement practice is the use of battery cages for laying hens, so the department of agriculture issued specific hen housing standards.  At the urging of California egg producers, in 2010 the legislature enacted AB 1437, which, as of January 1, will ban the sale of eggs for human consumption produced in violation of the new standards.  In February the state of Missouri filed for declaratory relief, alleging that AB 1437 violates the “dormant” commerce clause and is otherwise preempted by the Poultry Products Inspection Act.  Alabama, Kentucky, Nebraska, Oklahoma, and Governor Branstad of Iowa joined as plaintiffs in Missouri v. Harris shortly thereafter.)  The Humane Society of the U.S. (HSUS) and the Association of California Egg Farmers joined as Defendant-Intervenors in March and April, respectively.

Last week, the U.S. District Court for the Eastern District of California dismissed the case for lack of standing.  Plaintiffs based their standing on the parens patriae doctrine, claiming to represent the interests of their respective citizenry.  The court disagreed, finding it "patently clear" that Plaintiffs were actually representing the interests of “a discrete group of egg farmers,” and an undefined group at that.

Plaintiffs' standing argument suffered from a lack of evidence of its projected injuries.  Most telling was the insistence that allegations as to California's "effort to restrain interstate commerce" were sufficient for "alleg[ing] injury to quasi-sovereign interests."  Further, Plaintiffs argued that imminent injuries to egg producers (that is, to those which have not begun converting production methods) would reverberate to their citizenries at large.  Stated plainly, business interests = public interests. The court wasn't having it.  Characterizing the states' attempts at parens patriae standing as “futile,” the court dismissed with prejudice.

How could the challengers have made such a fundamental mistake?  More to the point, who and where were the "discrete group of egg farmers"?  Not a single producer or trade organization moved to intervene or file an amicus brief.  The only friend of the court was the Missouri Liberty Project, formed in March 2014 by the attorney representing Hobby Lobby in last term’s Burwell v. Hobby Lobby Stores.  California was joined by eleven amici, including the Animal Legal Defense Fund and the Center for Food Safety.

Where were the trade organizations?  

To be sure, United Egg Producers (UEP) would have been an obvious choice of plaintiff.  However, given the UEP’s very public support for the Egg Products Inspection Act Amendments in 2012 and 2013 (S. 820 / H.R. 1731), the organization would have struggled to meet the high standards for obtaining declaratory and injunctive judgments.  Had it not been struck from the 2014 farm bill during final discussions, the "Egg Bill" would have mandated phasing out use of battery cages over the next 15 years.  Despite UEP's recent policy reversal, the horse chicken has left the barn.

Nor should it come as a surprise that the USDA Agriculture Marketing Service’s American Egg Board has kept quiet for now.  In 2008, the HSUS successfully enjoined AEB from improperly using federal check-off funds in a media campaign to oppose Proposition 2.  Californians for Humane Farms v. Schafer, No. C 08-03843 MHP, 2008 WL 4449583 (Sept. 29, 2008 N. D. Calif.).  That leaves the U.S. Poultry and Egg Association, which doesn’t appear to participate in litigation efforts.

Where were the egg producers?  

Several factors suggest that taking the lead on this challenge would be a public relations debacle for egg producers:  1) the increased media attention on industrial animal farming practices; 2) the expanding community of retailers, restaurants, and manufacturers announcing intentions to source eggs from non-battery cage producers (Heinz being the most recent); 3) the aforementioned “Egg Bill” campaign; and 4) the fact that California joins Massachusetts, Oregon, and Washington in raising standards for egg-laying hens. (The European Union’s 1999 ban on battery cages took effect in 2012.)

Although I can’t predict what will happen next with A.B. 1437, the dismissal of Missouri v. Harris likely made an impression on at least one Supreme Court justice.

Heads up:  Association des Eleveurs de Canards et d’oies du Quebec v. Harris

This week, the U.S. Supreme Court deferred rendering a decision on a petition for certiorari over another California farmed animal production practices law, the "foie gras ban."

In 2005, California’s legislature banned the production and sale of foie gras.  More precisely, the act bans “force feed[ing] a bird for the purpose of enlarging the bird's liver beyond normal size, or hir[ing] another person to do so,” Calif. Health & Safety code § 25981, and selling products resulting from these methods, § 25982.  In 2012 the ban became effective and was immediately challenged by a Canadian trade group, (the Association des Éleveurs de Canards et d'Oies du Québec), a New York-based foie gras producer (Hudson Valley Foie Gras, LLC), and a chain of Californian restaurants. Notably, no American trade organization representing the U.S. poultry industry joined.

Plaintiffs challenged the statute as (1) void for vagueness; (2) a due process violation for “imposition of penalty without requiring mens rea for conduct not involving public health or safety”; and 3) a violation of the dormant Commerce Clause.  The district court denied Plaintiffs’ Motion for Preliminary Injunction, finding an insufficient showing of irreparable harm and likelihood of success on the merits, and the ninth circuit affirmed. 729 F.3d 937 (9th Cir. 2013).

Plaintiffs appealed to the highest court, which considered the case in its first conference this term. Last week, before the ruling in Missouri v. Harris, the Supreme Court granted petitions for 11 new cases – and Canards was not one of them.  It would have been reasonable to assume that the Court was planning to deny cert.  Yesterday, however, when the Court issued orders (including denials of petition), Canards was missing from the list.  Stay tuned.

The question presented:

Whether the Commerce Clause allows California to impose a complete ban on the sale of wholesome, USDA-approved poultry products from other States and countries - in this case, foie gras - based solely on the agricultural methods used by out-of-state farmers who raise their animals entirely beyond California's borders.

Thursday, September 11, 2014

Publication Opportunity and Symposium Announcement: "The Sustainable Table"

The Journal of Environmental and Sustainability Law (JESL) was established at the University of Missouri Law School in 1993 as the Missouri Environmental Law & Policy Review (MELPR). In the spring of 2012, MELPR became JESL. JESL focuses on national environmental issues, with an emphasis on law and policy relevant to a sustainable world. JESL publishes two editions a year, one in the spring and one in the fall.

JESL editors invite article submissions, and are very receptive to work focusing on food law and policy issues. Submission via ExpressO or via email to Articles Editor Allison Tungate ( is preferred. Relatively quick decision, editing, and publication timeframes are available.

In Addition, JESL’s annual symposium for 2015 will take as its theme “The Sustainable Table.” The tentative date is Friday, April 3, 2015. Authors interested in presenting and publishing their work as part of the symposium are encouraged to contact Symposium Editor Ted Lynch ( or Editor-in-Chief Scott Martin (

Sunday, August 24, 2014

Journal of Food Law & Policy Seeking Article Submissions

The Journal of Food Law & Policy is seeking article submissions.  For ten years, the Journal has been a leading voice in the food law and policy movement, publishing legal scholarship on a wide variety of food law issues. While some articles have reflected the traditional food and drug law approach and presented excellent regulatory analysis, more typically, the articles have presented a look beyond this. They have discussed the most relevant current food policy issues, often with a systemic perspective that transcends the legal academy's traditional approach. The Journal strives for excellent scholarship with "real world" significance -  a mission appropriate for the one area of law that touches everyone in the world -  food.

The Journal's leadership role and its tenth anniversary were noted by authors Baylen Linnekin (Keep Food Legal) and Emily Broad Lieb (Harvard's Food Law and Policy Clinic) in their recent article, Food Law & Policy: The Fertile Field's Origins & First Decade. It was published at 2014 Wisc. L. Rev. 557 last Spring.  A companion video, Food Law & Policy describes the emerging discipline, interviews leaders in the field, and credits the Journal for its innovation. My appreciation is extended to Baylen and Emily for this recognition and for the opportunity to participate in the video.

The Journal of Food Law & Policy continues to be the only student-edited U.S. law journal focused exclusively on food law and policy issues. Journal articles are available on both Westlaw and Hein On Line, and a new web site will soon post past issues for download.  Regular features include food law updates from the United States, the European Union, and Canada. The Journal is published twice a year and is edited by some of the top law students at the University of Arkansas School of Law. I am privileged to serve as the faculty advisor.

This year's Editor in Chief is A. Jordan Broyles. I worked closely with Jordan last year as a Journal candidate when she undertook the challenging task of writing about the historical struggle in regulating raw milk sales. I am confident that Jordan will be an excellent leader for the Journal this year, and I look forward to working with her, the board, and the new candidates.

In a new development, I am pleased to announce that this year at the request of the Journal, we are connecting the LL.M. Program in Agricultural & Food Law with the Journal by adding an LL.M. Advisor from this year's class. LL.M. candidate Justin Crawley has agreed to serve in this capacity and has already begun work with the Journal staff.  Justin received his from J.D. from Appalachian School of Law where he served as Senior Editor of the Appalachian Natural Resources Law Journal and was the recipient of “Exceptional Service Award” for outstanding performance on a student publication.  Justin also served as the President and Chief of the Executive Board of the Environmental Law Society. His leadership and support will be very helpful to Jordan and her staff.

Please consider submitting your publication to the Journal. We may be able to include additional articles in our Fall publication, offering a very prompt production schedule.  Submission can be made through ExPresso or by direct delivery via e-mail to  Written submissions can be sent to the address below.  Please include a brief abstract and CV or resume with each submission.

Journal of Food Law and Policy
University of Arkansas School of Law
1045 West Maple Street
Fayetteville, AR 72701

Sunday, June 22, 2014

The 2 Percent: America's Million Dollar Farms

One of my summer projects is an update of my book, Food, Farming & Sustainability: Readings in Agricultural Law.  Here is an excerpt that I am working on that ties together some interesting resources that I have been meaning to blog about.

Million-Dollar Farms:  The “2-4 Percent” of Agriculture

Everyone has heard of the economic category of the “1 percent” of Americans – the political rallying point against excessive income disparity in the United States that was most visibly emphasized by Occupy Wall Street and its followers.  A less well known category is the small percentage of U.S. agriculture that owns increasing amounts of land, exercises significant market power, and is responsible for producing the majority of our commercial food stocks.  While some might not like it, we are far more dependent on these mega-farms that most people realize.

USDA data from 2007 indicates that 37 percent of very large family farms and 13 percent of non-family farms have annual sales of $1 million or more. These farms are referred to as the “Million-Dollar farms.”  They made up only 2 percent of all U.S. farms — there were 47,600 million-dollar farms in 2007 —but the USDA reports that they accounted for 53 percent of production. These farms dominated in producing certain high value crops such as vegetables, fruits and tree nuts, nursery and greenhouse products.  They produced approximately 60 to 70 percent of hogs, dairy, poultry, and beef.  Eighty-six percent of these million dollar farms were categorized by USDA as family farms.  See, Robert A. Hoppe & David Banker, Structure and Finances of Family Farms — Family Farm Report 2010 Edition 2, USDA, ERS, Bull. No. 66 (July 2010).

Note that the USDA defines "family farms" without limit to size, value, or business entity, focusing solely on ownership.
[A family farm is] any farm where the majority of the business is owned by the operator and individuals related to the operator by blood or marriage, including relatives who do not reside in the operator’s household. Nonfamily farms include any farm where the operator and relatives do not own a majority of the business. For example, nonfamily farms include farms operated by publicly held corporations, but also farms equally owned by three unrelated business partners, as well as farms operated by a hired manager for a family of absentee owners.
Analysis of the data from the 2012 Census of Agriculture is just coming out from the USDA.  It reflects an increase in the percentage of Million-Dollar Farms and an increase in their production.  Farms with sales of $1 million or more now constitute 4 percent of all farms, and in 2012, they produced 66 percent of the total value of U.S. production.

Most Million-Dollar farms produce between $1 million and $4,999,999 in annual sales, but 2007 data indicates that 5,200 farms —11 percent of the million dollar farms—have sales of  at least $5 million. These farms produce 35 to 45 percent of beef (largely in feedlots), milk, and high-value crops. Sixty-four percent of these mega-million dollar farms are categorized as family farms.  Id.

See also, Robert Hoppe, Penni Korb, and David E. Banker, Million-Dollar Farms in the New Century, USDA ERS, Bull. No. 42 (Dec. 2008).

Really large scale farming has been in the news of late, providing a face of sorts to these mega-farms. Last April, the New York Times did a feature story on a highly computerized large dairy farm that incorporates robotics, With Farm Robotics, the Cows Decide When It’s Milking Time by Jesse McKinley (Apr, 22, 2014). The upbeat article focused on the technology and how its use provided advantages for both the farmer and his or her cows.  It's an interesting story showcased with this video.

The New York Times article did not explore the costs of the new technology, the size of operation needed to justify the capital expenditures, implications associated with this size of dairy, an increasing need to get cows to produce more milk (to pay for the technology), or the impact on either the dairy industry in general or the rural communities where they are located.

One of these consequences was touched on in a very recent story on National Public Radio, All Things Considered, The Making of Megafarms: A Mixture of Pride and Pain (June 16, 2014). This broadcast told a poignant story about large-scale Midwestern agriculture, farm consolidation, and the impact on rural communities. The story focused on a family farm in Kansas made up of 16,000 acres of land, spread throughout 3 areas in Kansas, hundreds of miles apart. The farmer-owners actually live in the suburbs of Manhattan, Kansas, with management conducted largely by computer.  Where once the land was owned and operated by dozens of smaller family farms who supported the local economy, the entire high-tech operation now is run by the farmer, his father-in-law, and seven employees.

So many issues to discuss and debate.

For those hoping to use the book edits for Fall teaching, we will make arrangements for you to have the materials as a supplement to the book.  Please email me directly for more information, I will keep you updated when the edits are complete,  Susan Schneider.

Sunday, June 08, 2014

Graduate Assistantships in Agricultural & Food Law

From the LL.M. Program in Agricultural & Food Law:

I am pleased to announce that we have received additional funding for several new graduate assistantships for the LL.M. Program in Agricultural & Food Law at the University of Arkansas School of Law for the 2014-15 academic year.  These graduate assistantships provide for a full tuition waiver for the 9 month program plus a stipend of $3,000 per semester.  GAs agree to assist with research and projects part-time (usually about 10 hours per week during the semester), gaining valuable experience beyond the classroom.

For over thirty years, we have been educating attorneys in the specialized laws that apply to agriculture, and for the last ten years, we have integrated the study of food law into our curriculum.  We provide a unique opportunity to consider all aspects of our food system -  from traditional farming and ranching to urban agriculture, from agribusiness to farmers markets, from farm subsidies to food assistance, literally from the farm to the table.  We consider consumer, producer, processor, and retailer perspectives.

Our alumni have done well with job placement.  A listing of positions accepted by our recent graduates can be found on our agfoodllm blog.  And, we are proud to have a number of our alumni serving in leadership positions at the USDA. Additional information about our Program and our alumni is available on the blog.

Beginning this fall, the Program includes a new distance option that allows attorneys to attend classes via their desktop computer or tablet, with a complete integration of distance and face-to-face classes. Graduate Assistantships, however, are limited to students who attend face-to-face.

As most of our class is already in place, interested students should contact us ASAP to apply. Competition for the GA positions may be high.  The LL.M. office can be reached at (479) 575-3706; or you can email me ( or email Sarah Hiatt at

Susan Schneider

Monday, May 19, 2014

Local Food Movement & the Quapaw Tribe

KJRH Television of Tulsa, Oklahoma reports the following interesting news:

The Quapaw Tribe is creating an agricultural program that will supply locally grown products for its casino restaurant.

Tribe Chairman John Berrey says the new program will include four greenhouses, which will be used to cultivate vegetables and herbs for the Downstream Casino Resort's Red Oak Steakhouse.

An additional 140 head of cattle will provide meat for the restaurant, and beehives will be used to make honey for salad dressings and sauces.

Berrey says the program will create new jobs for tribal members and add to the economic diversity of the Quapaw Tribe.

Sunday, May 11, 2014

Harvesting the Law: Neil Hamilton on Agricultural Legislation

For anyone interested in the development and evolution of agricultural law,  a new thought-provoking article published by Neil Hamilton is a great read.  It's Harvesting the Law: Personal Reflections on Thirty Years of Change in Agricultural Legislation.

Neil has been a law professor focused on agricultural law issues for over thirty years, and a list of the titles of his publications over those years looks like the table of contents of a treatise on emerging agricultural law subjects.  Neil started his legal career working on behalf of farmers during the farm financial crisis of the 1980s and was one of the early leaders in the rebirth of agricultural law as a recognized discipline. His rich historical perspective comes through in an analysis that is both candid and critical.

The article focuses on legislation, a subject that Neil has taught for years at Drake University School of Law, and it examines the development and evolution of agricultural-related legislation in the United States. He classifies the development and focus of agricultural legislation into four distinct but overlapping eras: the traditional development period, the transitional family farm period, the industrial agriculture "Big Ag" period, and the post-industrial food democracy period.  For each period, he examines the role that law plays in promoting the goals and values of the period. His analysis identifies the predictability of legal conflicts between different versions of agriculture, especially during the periods of transition between eras – and identifies several current legal disputes that reflect this ongoing process.

The article also presents observations on the generational differences in students and professors of agricultural and food law.  The influences associated with "when" and "where" people were raised and the type of agricultural they experienced are discussed. One change that is observed - the newer generation of agricultural and food law professors are predominantly female. Another change is that many drawn to the discipline now were not originally tied to the agricultural sector, and they come to the topic through food, nutrition, environmental concerns or other emerging topics such as animal welfare, food access, and farm worker concerns.

The articles uses a legislative analysis to characterize various examples of agricultural legislation in terms of purpose, effectiveness, and who the laws serve.  It categorizes agricultural legislation, giving Neil an opportunity to present his own view of the wisdom and efficacy of each approach.  His categories are thought-provoking and provide a useful framework, even for those who may see the laws differently. His long term perspectives on the industry and attempts to protect it are instructive both for those in the academy and for those considering the future of farming.

The article concludes with examples of important agricultural law topics for future development, issues that are worthy of legislative effort as we work to determine how to sustainably produce the food and fiber we need.

The article provides another example of why agricultural law is a fascinating and challenging area of study and practice.

Sunday, April 27, 2014

LL.M. Program: Agricultural and Food Law Opportunities

I am looking forward to blogging about the robotic milking technology that Jim Chen @chenx064 tweeted about this week, and I will get to that first thing tomorrow.

Today, I'd like to do a brief announcement / recruiting pitch. We have some exciting opportunities for recent law graduates and experienced attorneys who are interested in the subjects we write about in this blog -  agriculture, food, rurality, sustainability, natural resources, and the environment. I am sure that Agricultural Law readers will agree that there are fascinating, important, and incredibly complex issues in this area.

The LL.M. Program in Agricultural & Food Law is pleased to announce an expanded curriculum that includes new courses on emerging issues such as urban agriculture, food justice, and local/regional foods. Changes in the 2014 Farm Bill, including the farm programs, crop insurance, enhanced support for organic agriculture, and the nutrition programs are incorporated throughout our curriculum.

A limited number of Graduate Assistantships are available to LL.M. Candidates who attend the Program face-to-face. These provide for a full tuition waiver plus a small stipend.  As our alumni have learned, Northwest Arkansas is beautiful place to live and study.  Full time, the program takes just two semesters.

For information on agricultural & food law employment opportunities, view the list of jobs that our recent alumni have landed. This list is all the more impressive when you realize that we have admitted only 10-15 students per year.

 We are also excited to launch a distance degree option for our Program beginning Fall 2014. Full, part-time, and non-degree enrollment options are available.
  • The distance option offers full integration with our longstanding face-to-face program. Distance students will have the opportunity to participate in on-campus classes through synchronous videoconferencing. Classroom capture and online exercises will allow participation when video-conferencing is not convenient. 
  • Innovative hybrid courses using a flipped model of instruction will also be available to both face-to-face students and online students. 
  • Our approach to distance education is being guided by the course design and technology professionals at the University of Arkansas Global Campus.  Unlike many other distance programs, ours is run 100% by our university and fully within our careful control. No private, for-profit corporations are involved.
  • Condensed course taught by recognized leaders in the ag & food community will continue to be available to all in an intensive conference-style format. 
For more information, the slideshow Why Study Agricultural & Food Law is helpful.  Our blog, agfoodllm chronicles information about our classes, our students, and our alumni.

And, our new program flyer explains our approach.

Interested attorneys and law students can contact me directly, email the Program at, or call (479) 575-3706.


Susan Schneider

Sunday, April 20, 2014

Dear Food

This short video makes an excellent point, and it makes me even more proud that we have embarked on our Food Recovery Project. For food recovery resources, visit the Food Recovery Project blog or our Food Recovery Project website.

General Mills: We've Listened

Yesterday, General Mills posted an announcement on their website by Kirstie Foster, titled, We’ve Listened – and We’re Changing Our Legal Terms Back.  

Bill Marler blogged about it on Food Safety News with his Publisher’s Platform article, I’m having Cheerios for Breakfast; General Mills Decides to Focus on Food Safety Instead of Litigation.

General Mills had initially announced new legal terms that attempted to force consumers with any type of complaint into commercial arbitration. Consumers would have legally agreed to this limitation on their basic rights to go to court simply by accepting an online coupon from the General Mills website.

The new policy was first reported in the New York Times article, When ‘Liking’ a Brand Online Voids the Right to Sue by Stephanie Strom.  It was picked up by several other media outlets, Bill Marler blogged about it on Food Safety News, General Mills: You Can't Sue Me!, and we posted about it on Agricultural Law,  General Mills: Brilliant Legal Maneuver of the Worst Public Relations Move Ever.

The new policy was short lived.  The consumer backlash and the negative publicity made General Mills reconsider the wisdom of this approach, and as noted by Ms Foster, they rescinded the policy. Saving face, they referred to those who "misread" the policy and misunderstood their attempts to "streamline" the process of resolving complaints.  That said, it was pretty clearly a policy intended to limit the rights of consumers to sue General Mills in court, forcing them into the much more restrictive and industry-friendly commercial arbitration.

I am not a fan of frivolous lawsuits, and I personally think that judges should be more active in dismissing them. But, there is a lot of room to debate frivolity. With an FDA that is overburdened and underfunded, there is often no one "minding the store" on labeling issues. Without the threat of court action, there would be even less incentive for manufacturers to be upfront with their use of claims and promises.

For example, the FDA has consistently refused to define the term "natural" even though it is one that consumers often have relied on in making their purchasing decisions. And, sometimes, those consumers have been shocked to find out what ingredients were used in products labeled as "natural."

Moreover, on its face, the mandatory arbitration clause applied to all manner of claims, "contract, tort, statute, fraud, misrepresentation, or any other legal theory." This would have forced serious food borne illness and even wrongful death claims out of court and into binding arbitration.

As a law professor, I usually view things from the perspective of how we can teach our students to be better lawyers. It seems that this incident may be a great example to use in the classroom.

Being a smart lawyer can be different than being a good lawyer.  It appears that the smart lawyers representing General Mills could have stepped back from their legal analysis to do some practical analysis.  How are our customers going to react to this?  What does this action do to the trust that we have worked so hard to build up? Do we accomplish our legal goal at the expense of our public image? And, finally, is it right to trick our customers into agreeing to something that they do not understand? As Bill Marler noted, they would be better served to put their efforts into making good, honest, healthy and safe products.

Congratulations to General Mills for having the wisdom to call this policy back before any more damage was done to its reputation.  I'll have a bowl of Cheerios as well.

Thursday, April 17, 2014

General Mills: Brilliant Legal Maneuver, or the Worst Public Relations Move Ever

In recent years, there has been a flurry of legislative efforts to protect the image of farm and food products. For example, "ag gag" statutes provide a form of heightened legal protection from potential lawsuits. 

General Mills has taken a different route. It has developed an innovative self-help strategy to lure its customers into signing away any right to sue them.  And, it is causing a stir across the internet.

As explained in the New York Times, April 16, 2014 -  When ‘Liking’ a Brand Online Voids the Right to Sue by Stephanie Strom -  
Might downloading a 50-cent coupon for Cheerios cost you legal rights? 
General Mills, the maker of cereals like Cheerios and Chex as well as brands like Bisquick and Betty Crocker, has quietly added language to its website to alert consumers that they give up their right to sue the company if they download coupons, “join” it in online communities like Facebook, enter a company-sponsored sweepstakes or contest or interact with it in a variety of other ways. 
Instead, anyone who has received anything that could be construed as a benefit and who then has a dispute with the company over its products will have to use informal negotiation via email or go through arbitration to seek relief, according to the new terms posted on its site.
In language added on Tuesday after The New York Times contacted it about the changes, General Mills seemed to go even further, suggesting that buying its products would bind consumers to those terms. 
“We’ve updated our privacy policy,” the company wrote in a thin, gray bar across the top of its home page. “Please note we also have new legal terms which require all disputes related to the purchase or use of any General Mills product or service to be resolved through binding arbitration.” 

The General Mills website, with the described language at the top,  is pictured above, and a hotlink is provided for a larger image of the language on the actual website.

University of Arkansas School of Law Professor Christopher Kelley had this response:

Dear General Mills,

I, as a person born in 1947, write to terminate any and all agreements, express or implied, between us save for our agreement set forth in the following paragraph:
We agree that if you use of any information about my consumer purchase preferences, however expressed, including aggregated information about the consumer purchase preferences of persons born in 1947 in which information about my consumer purchase preferences might be included, you will waive any and all claims and defenses, legal and equitable, in any dispute between us until this agreement is terminated by either you or me. You may terminate this agreement at any time by notifying me that you have permanently ceased to use any information about my consumer purchase preferences, however expressed, including aggregated information about the consumer purchase preferences of persons born in 1947 in which information about my consumer purchase preferences might be included. 
To allay any concerns that you might have about this agreement being inimical to your financial interests, I will use my best efforts to avoid any dispute between us by not knowingly purchasing your products.

My regards,