Agricultural Law

Back to the Land: A Greece-U.S. Comparison

2012-01-24T07:51:00.011-06:00

A front-page feature in the New York Times a couple of weeks ago reported on a trend in Greece--a trend for people to get back to the land, back to agricultural livelihoods. Journalist Rachel Donadio links that trend to Greece's economic crisis and the fiscal austerity with which the government has responded. Of course, it's also become trendy in the United States (though not necessarily a widespread phenomenon) for young(ish) people to get back to the land, to take up farming of certain types, e.,g., organic, boutique. So I thought I would compare and contrast what is happening in Greece with what is happening in the United States. "Apples to apples" data are not available for the two countries, but a partial look at the who, what and why of "new" farmers is possible.

Greece: Donadio writes of an "exodus of Greeks who are fleeing to the countryside and looking to the nation's rich rural past a guide to the future." With Greek unemployment at 18% and as high as 35% for those between the ages of 15 and 29, the agricultural sector is bucking this trend, having added 32,000 jobs between 2008 and 2010. Significantly, "most of them [have gone to] Greeks, not migrant workers from abroad." While the story features two 30-something couples who have moved to the island of Chios ("closer to Izmir, Turkey than to Athens) to take up smallish agricultural enterprises, Donadio reports that the greatest increase in new farmers has been among those aged 45 to 65.

Donadio doesn't make a big deal of the distinction between agricultural entrepreneurs and farm laborers, though she mentions both in the story. (A Legal Ruralism post about this distinction is here.) Regarding the entrepreneurs, Donadio writes:

In Greece, as elsewhere in the Mediterranean, most families have traditionally invested heavily in real estate and land, which are seen as farm more stable than financial investments, and it is common for even low-income Greeks to have inherited family property.

Donadio quotes the president of a farm school in Salonika, where applications have recently tripled: "young people frequently come to him and say, 'I have two acres from my grandfather in such-and-such place. Can I do something with it?'"

Agricultural roots seem to have influenced the decisions of the two couples Donadio features, both of which moved to Chios, where they had family connections. One couple, trained as agriculturalists but working in other sectors in Athens until a few years ago, are growing edible snails for export. They used $50,000 in family savings to get started. The other couple are cultivating mastic from 400 trees in southern Chios. Neither couple has yet to turn a profit, and the mastic farmers have turned to ecotourism to supplement their income. The edible snail farmers will have their first harvest this year. Both couples expressed confidence in their undertakings, and one is quoted:

In big cities, there's no future for ... young people, the only choice is for them to go to the countryside or to go abroad.

The same can hardly be said of the United States, where the fiscal crisis that began unfolding in 2008 has not been as acute as in Greece. I doubt that many young Americans take up farming because they feel they have no choice. Rather, those set to inherit farms still take over from their parents because of attachment to the lifestyle and place. In addition, the newfound popularity of certain types of agricultural undertakings seems attributable to rising attention to where our food comes from--to locavore, vegan, and organic trends. My students and I have discussed these trends on Legal Ruralism here, here here, and here. A story in the Sacramento Bee in April, 2010 suggests that--as in Greece--those starting up small farms in the United States are typically urbanites and suburbanites drawn back to the land. (A related post is here). As in Greece, younger people in the United States are increasingly the ones drawn to these sorts of farming.

While Donadio reports that many Greeks have access to family land, the same cannot be said of the United States. A recent survey by the National Young Farmers Coalition found that access to land was a major obstacle to those desiring to farm in the United States, second only to the barrier presented by lack of access to capital.

Based on Donadio's story, it seems that those who have recently started farming in Greece include not only the youngish in their 20s and 30s looking for an out from the economic disaster, but also the middle aged. In the United States, farmers tend also to be an aging group. As of 2007, about 30% of U.S. farmers were 65 or older, and the age of principal farm operators was 57 years. According to a recent publication of the National Young Farmers' Coalition, one in four farmers will retire in the next 20 years. So, even as fresh blood is flowing into farming, the business/vocation remains dominated by the middle aged. What is not clear is the extent to which the middle aged--whether new to farming or not--engage in intensive production agriculture or in smaller-scale boutique and organic farms. Either way, it seems that the demographics of farmer/entrepreneurs in the two nations are similar. Another similarity between Greece and the United States is that agritourism (especially in relation to boutique agriculture) is helping keep farms out of the red. See earlier posts on Legal Ruralism here and here.

One distinction between Greece and the United States, however, may lie in who is doing the agricultural labor--versus the agricultural entrepreneurship. Donadio reports that most farm jobs in Greece are going to Greeks. In the United States, however, little doubt exists that immigrants do the vast majority of agricultural grunt work. Read more here, here and here.

Donadio makes no mention of what, if anything, the Greek government is doing to foster the back-to-the land movement. Of course, the USDA has several programs that seek to assist would-be farmers with obstacles to getting started, though the recent Young Farmers publication suggests that the programs are insufficient.

A final similarity is worth pointing out: what I label the "back to the land" movement is not subsistence farming in either the U.S. or Greece. These farmers are relying on markets for their products--and those markets appear to be very often associated with foodie trends and relatively affluent consumers. What better example of this than edible snails for export?

See another post about Greece that links agriculture to rural self-sufficiency here. Listen to yesterday's NPR story about Arizona farmers reclaiming land sold previously sold to land developers; that story notes that both established and new farmers are taking advantage of the land available--though the new and younger farmers are typically able only to lease, not to buy. A recent story about how the South African government is encouraging a new generation of farmers is here.

Cross posted on Legal Ruralism.

Call for Papers: Rural Sociological Society's 75th Annual Meeting

2012-01-20T08:35:00.013-06:00

I plan to attend the Annual Meeting of the Rural Sociological Society (RSS) for the fifth time this year--and to participate in the organization's celebration of its 75th anniversary. The meeting will be July 26-29 in Chicago, right back at the Palmer House Hotel where the inaugural meeting was held in 1937. Ag law folks may know that 2012 just happens also to be the 150th anniversary of the founding of the U.S. Department of Agriculture.

Participating in RSS meetings has proved to be an important source of ideas, inspiration and contacts in relation to my scholarship about the intersection of law with rural livelihoods. In fact, I often declare RSS my "favorite meeting of the year" because everyone there cares about rural people and places. Taking rural livelihoods seriously is the shared foundation. As readers of the Ag Law Blog will appreciate, such is hardly the case at most law prof conferences. Rather, attending law prof meetings (even warm and fuzzy ones like Law and Society's Annual Meeting) often reinforces the sense that I am writing my way into the very obscurity associated with rural people and places. "Rural people, you say ... how interesting, even exotic, but that has nothing to do with me and my scholarship." By extension, the message seems to be that rural people and places have nothing to do with anything that matters. And so the legal academy steams forward, oblivious to its metro-centrism.

With that endorsement of RSS, I am hoping to attract some ag law scholars to this year's RSS meeting. I'm getting lonely being the only lawyer at RSS, but that's not the only reason you should attend. Like me, I suspect ag law folks have a lot to learn from rural sociologists. In particular, ag law profs may find of special interest sessions organized by the Sociology of Food and Agriculture Research Interest Group. I have presented my work at RSS every year I have attended, and I have found that it fits nicely on the panels of mostly rural sociologists. Plus, the meeting has become more cross-disciplinary in recent years, with scholars from geography, anthropology, and various branches of the humanities also participating.

My final endorsement is based on my attendance of last year's "pre-conference" of the RSS annual meeting in Boise. I participated in one of many field trips on offer, traveling with other scholars to Idaho's

Magic Valley to visit a dairy farm. (Photos top and left of field trip, Jerome, Idaho. Yes, those are rural sociologists in a milking parlor. Read a post about the field trip here). Did you know that Idaho is now the third largest milk-producing state in the nation? Field trip participants considered a number of aspects of the growth of the dairy industry in the Magic Valley: environmental, labor, immigration. Ag law scholars would have felt right at home.

Here's the call for the 75th meeting, with a February 15, 2012 deadline for abstracts and proposals:

Increasing inequality of wealth and income in the United States is a symptom of a deeper problem of increasingly concentrated power wielded by distant actors with no sense of commitment to place. Corporate consolidation and the federal government's commitment to the fetish of free trade have created an economic system disembedded from social life as lived by most citizens. The twin processes of consolidation and separation threaten the social contract upon which our society is based. This contemporary legitimacy crisis has spawned a curious ideological consensus between Tea Party advocates and Progressive who share a common fear of the big and distant.
Inequalities exist within and between communities and regions, and of course between nations. Everywhere we simultaneously see conspicuous displays of wealth and landscapes of despair. Over the past half century and more, rural sociologists have chronicled the steady decline experienced by many parts of rural America due to decisions made far away in corporate boardrooms and legislative bodies. Parallel changes have affected urban industrial centers through government acquiescence to or even encouragement of corporate disinvestment.
Reform of this economic system is made difficult by the mutual dependence that big corporations and big government have upon each other.
Resistance to distant forces is increasingly visible as each neighborhood fights a big box development, as each community invests in a local food system, and each time a group of citizens bands together to fight threats to environmental and public health which governments are happy to permit as the price of economic growth. Higher energy prices and technological developments are likely to create new opportunities to build local economies around local needs and resources.
The movement towards localism is inspired by the idea that the economy is something we participate in, not something that is done to us.
In this conference, we encourage participants to explore the potential that localism has to create vibrant economies that offer not only a market alternative but a values-alternative to our contemporary economic system.

Go here to submit your abstract.

If you plan to attend RSS in Chicago, please write me offline and let me know. I am hoping to organize a round table of legal scholars at this year's meeting (assuming we can get a critical mass to the meeting) to have a discussion about what a "law and rural society" thread of scholarship might look like. After all, Law and Society is a flourishing sub-discipline. By carving out a scholarly space for legal scholars interested in food, agriculture and the rural, we are likely to reveal Law and Society's metronormativity--just like the establishment of the Rural Sociological Society's founding in 1937 highlighted the implicit metro bias of the American Sociological Association.

Cross-posted to Legal Ruralism.

Law & the Future of the Food Movement

2012-01-18T09:05:00.002-06:00

Last month, Emily Broad Leib, Senior Clinical Fellow in the Health Law and Policy Clinic at Harvard Law School spoke at a TEDx forum on food policy.

Well-crafted food policy should fulfill a range of goals, including increasing access to healthy foods, improving economic development for small producers, reducing obesity and diet-related disease, and increasing food security.

Professor Leib discusses the role that lawyers (and law students) can play in developing food policy and encourages law schools to get involved.

Here is her excellent presentation -

"Safe and Suitable" Meat Processing Ingredients

2012-01-12T10:01:00.002-06:00

Those interested in what's in their food and how their food has been produced might want to check out the USDA FSIS Notice issued last week. It includes a chart that lists the "Safe and Suitable Ingredients" that may be "used in the production of meat, poultry, and egg products."

This Notice provides an interesting window to the world of modern meat production. Some will react positively, noting the advantages that chemical compositions have provided us in establishing a safe system of meat production. Many chemicals are intended to serve as antimicrobials. Others will be dismayed at the laundry list of chemical washes, baths, injections, and sprays used on a typical serving of meat.

Either way, note the last column in the chart, "labeling requirements." The labeling requirement for the use of many of these chemicals is "[n]one under the conditions of use."

For example, as is set forth in the chart, under our current system of labeling law, anhydrous ammonia can be used in ground beef, followed with a carbon dioxide treatment "in accordance with current industry standards of good manufacturing practice" without any labeling requirement. This is because anhydrous ammonia is considered a "processing aid."

FDA regulations define a "processing aids" as

Substances that are added to a food during the processing of such food but are removed in some manner from the food before it is packaged in its finished form;
Substances that are added to a food during processing, are converted into constituents normally present in the food, and do not significantly increase the amount of the constituents naturally found in food; or
Substances that are added to a food for their technical or functional effect in the processing but are present in the finished food at insignificant levels and do not have any technical or functional effect in that food.

See 21 CFR 101.100(a)(3)(ii).

Note that a "blend of salt, lemon extract, and grapefruit extract" also serves as an antimicrobial in hamburger, but FSIS requires that the "[p]roduct must be descriptively labeled" when this it is used.

As a side note, University of Arkansas researchers are doing some very interesting work on feeding cows orange peels as an "antimicrobial boost." See, Cleaning Cows From the Inside Out.

But, back to the Notice. Another category of chemicals that are also immune from labeling requirements are "secondary direct food additives." These are defined as "substances whose functionality is required during the manufacture or processing of a food and are ordinarily removed from the final food. Although residuals might carry over to the final food, residuals must not exhibit any technical effects. Secondary direct food additives are consistent with FDA’s definition of a processing aid so labeling is not required." See 21 C.F.R. pt. 173.

Carbon monoxide gas is used in many meat packaging systems to preserve the fresh color of the product as well as its stated purpose "to maintain wholesomeness, provide flexibility in distribution, and reduce shrinkage of the meat." It's use will not show up on the label because it is considered a "secondary direct food additive."

I find all this strangely fascinating. When we talk about our "food system," it is a lot more complex than most people realize.

AALS Agricultural Law Presentation: Obama Administration Initiatives

2012-01-09T19:25:00.001-06:00

The American Association of Law Schools (AALS) Agricultural Law Section met at the AALS Annual Conference in Washington, D.C. on Saturday, January 7, 2012 and a panel presentation was delivered. The presentation focused on agricultural and food law initiatives undertaken by the Obama administration. The section also unanimously voted to change the name of the section to “Agricultural and Food Law,” recognizing the essential link between our agricultural laws and our food system.

The section was pleased to host a special guest on its panel, Janie Simms Hipp, Senior Advisor to Secretary Vilsack on Tribal Relations and Director of Office of Tribal Relations at USDA. Ms Hipp spoke on civil rights initiatives at the USDA including the settlement of the In re Black Farmers case involving late claims in the prior Pigford case and the settlement of the Keepseagle class action discrimination case brought on behalf of Native American farmers.
Professor Alison Peck from the University of West Virginia College of Law spoke on environmental issues under the USDA, focusing on the recent approval of a number of genetically modified crops and the difficulty Secretary Vilsack has had in achieving “co-existence” between GM and non-GM production. Professor Peck will chair our section for the coming year and will plan next year's panel presentation.

My role on the panel was to consider issues related to food, and I focused specifically on the initiatives undertaken by the Obama administration that reflect a contrast with the prior administration. I highlighted three categories of initiatives: 1) The active promotion of local and regional food systems; 2) The establishment of prevention as the primary focus of the government’s efforts to promote food safety; and, 3) The development of coordinated nutrition policies to address health issues, and in particular childhood obesity.

Before considering these initiatives, I set the stage by reviewing the forces at work in influencing our food system, highlighting the advocates for change and those with vested interests that are often threatened by reform.

The podcast for our presentation will be available in the future, and we hope to post it on this blog. In the meantime, the slideshow from my presentation is posted here.

Law Professors Going Back to School

2011-12-10T16:22:00.001-06:00

Both this academic year and last year in the LL.M. Program in Agricultural & Food Law, we have had the honor of hosting visiting scholars, law professors from other schools that attended the LL.M. Program as degree candidates.

Last year, Professor Tae Huan Keum came to study with us for his sabbatical from the Seoul National University in Korea. While in the Program, he researched and wrote an article on the regulation of U.S. beef and the risk of Bovine Spongiform Encephalopathy (BSE or "Made Cow" disease), a major issue in U.S. trade negotiations with South Korea. I recently received an email from him that referenced his "wonderful experience in Fayetteville" where he was able to "meet the issues of the American agriculture, smart students, enthusiastic professors, and the Razorback Football team. . . From the introduction to American agriculture to all the classes including Food, Farming, Sustainability, I was given new insights and was made to consider solutions to the problems of agriculture."

This year, we are proud to host Professor Martha Dragich, James S. Rollins Professor of Law at University of Missouri – Columbia School of Law. Her interest in food law and our food system led her to study with us, and she has provided a significant contribution to our studies so far this year. Her impressive publication record and her thoughtful approach to scholarship has led many of our young scholars to seek out her advice. And, the food she has prepared for the class has been amazing. Indeed, we met the "Slow Food Challenge" at Martha's house this fall! Martha is also a talented photographer, and she has allowed us to use her photos of produce at the Fayetteville Farmers Market on our brochures.

This year's class also includes Volha Samasuk, Senior Lecturer, Belarusian State University Law Department, Minsk, Belarus. Volha was interested in our program because of her work with international food safety and quality standards through the Belarus Food Safety Improvement Project of the International Finance Corporation in The World Bank Group. She has also been a fantastic contributor - sharing the world of Belaraus with us, and most recently, the secrets of Eastern European potato pancakes at the end of the semester party!

We are fortunate to have these professors with us. We hope that their example encourages others to take a year, or even just semester off to "return to school" and study with us. We can all learn from each other!

Izeman: Wanted: Food Lawyers!

2011-12-06T16:54:00.001-06:00

I was delighted to see Mark Izeman’s Blog, Switchboard post an article this week titled, Wanted: Food Lawyers! Izeman writes that his "advice to law students and new lawyers is to consider how you can apply your skills to the fast growing local, sustainable food movement that seeks to fix our broken national food system." He says we need "new laws and policies to strengthen their local food systems." And, he lists three additional initiatives that will require lawyers to implement.

The development of "sustainability standards," that will help retailers and consumers assess their food choices accurately with an eye toward sustainability;

Establishing food equity through policies that will correct distribution barriers and other causes of food deserts, helping everyone to have access to healthier food.

Crafting new laws and policies that address scalability issues, supporting and designing local food systems that can go a step beyond small scale local food efforts to help create a stronger local food system.

I commend Mr. Izeman for recognizing the important and positive effect that lawyers can have in shaping policy to meet the needs of communities.

At the University of Arkansas School of Law, we believe that our LL.M. Program in Agricultural & Food Law helps to serve these needs. We work hard to give our LL.M. candidates the tools necessary to meet these and other challenges, along with a sense of positive purpose and a desire to help their community, whether rural or urban. As the only LL.M. Program in the U.S. specializing in agricultural or food law, we serve a unique role. And, by emphasizing "food, farming and sustainability" as our guiding motto, we offer a long term look at our food system from "farm to fork," for this generation and the next.

I would add three more initiatives to Mr. Izeman's list. These relate to the connection between food law and agricultural law -

Understanding the complexities of agriculture and agricultural law in a way that can inform positive policy making;

Fostering positive communication and understanding between rural and urban interests, between farm and consumer interests, and by appreciating the differences and finding common ground.

Evaluating agricultural policy in terms of environmental sustainability in the face of climate change.

We have many challenges ahead of us. Well educated food and agricultural law attorneys can help us face these challenges.

Hormone Levels in Beef and Lamb: Is Anyone Concerned?

2011-10-15T12:01:00.005-05:00

The Federal Food, Drug, and Cosmetic Act (21 U.S.C. §360b) directs the FDA to establish maximum tolerance levels for the use of approved animal drugs given to food-producing animals, with the tolerance level set as the maximum level allowed in the food to be consumed.

While the use of antibiotics in food animal production receives a fair amount of coverage in the news and is the subject of a good deal of discussion, the use of hormones in meat production has not been in the news lately. I am not sure if this because people assume that hormones are being used safely and accept the use as an appropriate way of decreasing the cost of production; because people simply don't care; or because people are largely unaware of their use.

In preparing for an upcoming "2011 Food Law Update" presentation at the American Agricultural Law Association conference, I found a Federal Register notice that surprised me.

On September 19, 2011, the FDA dramatically increased the amount of progesterone allowed in beef and lamb. 76 Fed. Reg. 57,907 (Sept. 19, 2011) (to be codified at 21 C.F.R. pt. 556). This final rule and "technical amendment" was immediately effective. As noted in the rule, “Progesterone is approved for use in subcutaneous implants used for increased rate of weight gain in suckling beef calves and steers (21 CFR 522.1940) and in vaginal inserts used for management of the estrous cycle in female cattle and ewes (21 CFR 529.1940).” The new rule applies to the amount of the progesterone that can show up in the meat.

I looked to the Code of Federal Regulations for the old standard and made the following chart to show a comparison of the new allowances.

Comparison of Prior and New Allowable Amounts of Progesterone in Meat Cuts for Human Consumption in Parts Per Billion (PPB)
	Prior level — 21 C.F.R. § 556.540	New level — 56 Fed. Reg. 57,907
Beef: Muscle	3	5
Beef: Fat	12	30
Beef: Kidney	9	30
Beef: Liver	6	15
Lamb: Muscle	3	5
Lamb: Fat, Kidney	15	30
Liver	15	15

I did a quick web search, and no one seems to have commented about this change. It seems significant to me, and I am curious about what others think.

Food insecurity has reached higher levels in America than in China

2011-10-13T12:19:00.003-05:00

Gallup surveys in China and the United States suggest that America has fallen behind China in providing food security to the neediest segments of its society:

Gallup surveys in China and the U.S. reveal Chinese are struggling less than Americans to put food on their tables. Six percent of Chinese in 2011 say there have been times in the past 12 months when they did not have enough money to buy food that they or their family needed, down significantly from 16% in 2008. Over the same period, the percentage of Americans saying they did not have money for food in the previous 12 months more than doubled from 9% in 2008 to 19% in 2011.

An unapologetically capitalistic, profit-oriented source interprets this development in unambiguously ominous terms:

More Americans have trouble providing food to their families than the Chinese do. That is extraordinary news because the U.S. is the world’s leading consumer economy and China is only considered an emerging one. The information says a great deal about how the people below the poverty line in America have seen their fortunes fall rapidly, probably in part because of the economy. There is no evidence that the situation will get better.

Rotting Crops, Prisoners and Inmates

2011-10-11T15:45:00.013-05:00

Without access to an adequate workforce, squash and other fast growing crops are left to rot in the fields. Its direct consequences moreover span to include economic distress and potential forfeiture of farming enterprises for owner operators. A recent University of Georgia report underscores a projected loss for the State's agricultural sector of $391 million to this year's production of fruits and vegetables. Aside from the losses and economic threat to owner operators, further losses also extend to consumers who relish the Vidalia onions and cucumbers that are so closely linked to the State's agricultural identity.

Nor is Georgia is alone but a severe labor shortage in Alabama is also witnessing extreme economic losses in the millions to the agricultural sector. Before the violins come out with sad musical notes, fault lies on both states and demonstrate the proven trajectory that follows when heinous narrow sighted legislation is adopted.

Specifically, both states adopted extreme anti-immigration legislation. When a federal court recently upheld most provisions of the Alabama law, the governor boasted the State had "...the strongest immigration law in the country." the Governor's boasting stems from the legislation that inter alia permits state and local police to "ask" for immigration papers during routine traffic stops, renders most contracts with undocumented individuals unenforceable, and "requiring schools to ascertain the immigration status of children at registration time." He did not however reconcile federal preemption law nor all those other federal values that promote a unified immigration system across the country. Both of which are defeating such bills as attempted in yet other states.

Immediately following the ruling whether documented or not innumerable laborers left the states. In Alabama for example, they left everything behind and in some instances selling their fully furnished mobile homes for a thousand dollars or less. They also took with them the economic contributions they make to the states that run from tax dollars to generating new business enterprises. Or in this instance the sought after labor that would have in the alternative saved those fields of bounty.

Nor can one fault them for leaving. Why? Its no secret that racial profiling increases when an individual appears "foreign sounding" or "foreign looking." It also appears its time for many of us to start carrying passports when traveling through either Alabama or Georgia.

In considering the complaints of owner operators over their distress of laborers leaving Georgia, John McMillian, Commissioner of the State's Department of Agriculture and Industries is turning to inmates through work release programs. McMillian is not suggesting something new and transformative. Agriculture for example has employed prisoners as laborers such as in the Midwest during World War II when German POWs worked on farms harvesting regional crops.

Other states have also employed inmates but the practice (aside from slave labor charges) is recognized as a short-term fix to a sector in dire need of rehabitation when contemplating workforce needs. Inmate labor for example is neither as reliable nor productive as migrant workers. In giving the Commissioner the benefit of the doubt this quick fix moreover fails any long term planning or neglects the complexities inherent in providing safe and reasonable terms and conditions of employment to attact a talented and able workforce.

From such restrictive state driven immigration "laws" an opportunity nonetheless emerges. Specifically promoting federal reform that fundamentally does not injure farm workers as well as the nation as a whole. If workers are seeking entry into the nation, a better response would be to engage in beneficial immigration reform at the federal level. Such reform could provide an opportunity to promulgate and adopt however a fairer working arrangement for laborers than current existing federal law. At a base level any new legislation specific to both laborers from foreign nations and domestic would and should be tethered to improved terms and conditions of employment, a fair labor rate, and safe housing for workers. In sum basic economic theory informs that in times of shortages prices escalate. We should expect the same when attracting a workforce fundamental to the sector and with causal relationships to keeping the sector safe from economic ruin.

"We eat animals because they taste good"

2011-09-26T16:14:00.002-05:00

. . . and other arguments in a spirited debate over the ethics of killing animals for food, fur, and/or leather.

Food Law & Apple Juice: Integrating Dr. Oz and FDA into the Classroom

2011-09-18T15:12:00.003-05:00

The adage "never a dull moment" could easily be applied to my efforts to teach my Food Law & Policy class.

This week, our syllabus guided us into the rather technical area of ingredient labeling. The massive Food & Drug Law casebook by noted scholars Peter Barton Hutt, Richard Merrill, and Lewis Grossman has an excellent unit on the Regulation of Food Labeling. I supplemented it with specific materials and a presentation on the use of the term "organic" (defined and regulated under the National Organic Standards) and the term "natural" (largely undefined and the subject of much litigation and consternation). The evening before class, as I was putting my final touches on a PowerPoint presentation, I made one last visit to the FDA website. There, flashing on the FDA news screen was an enticing photo of apple juice being poured into a glass, with the intriguing caption, Questions & Answers: Apple Juice and Arsenic. I clicked on the link, and in addition to the Questions and Answers, there were prominent links to letters from FDA to Dr. Oz, both dated this week. As we always begin class by discussing food law news stories, I had to investigate.

For those of you (surely there must be some out there) who are not familiar with Dr. Oz, he is a wildly popular cardiothoracic surgeon turned day-time celebrity. His daily television show focuses on medical issues and personal health, and there is often a good deal of drama. Last week, his show, Arsenic in Apple Juice, revealed private test results that showed levels of arsenic in apple juice that exceeded the U.S. national standards for arsenic in drinking water (10 ppb). There is currently no specific standard for levels of arsenic in apple juice, although FDA has reportedly set 23 ppb as a level of concern.

In an effort to allay consumer concerns, FDA challenged both Dr. Oz's actual test results and his methodology. FDA stated that their testing showed the products all well within the 10 ppb level, and in addition, claimed that his numbers reflected total arsenic levels as opposed to inorganic levels. The FDA explains this difference as follows:

There are two types of arsenic: organic and inorganic. The inorganic forms of arsenic are the harmful forms, while the organic forms of arsenic are essentially harmless. Because both forms of arsenic have been found in soil and ground water, small amounts may be found in certain food and beverage products, including fruit juices and juice concentrates.

See also, FDA: Apple Juice is Safe To Drink, Levels in Water explanation.

All of this discussion went on "in real time," before and after the broadcast, with an almost frantic pace in the media. Google "apple juice arsenic" to see what I mean. The story continues on with groups lining up on one side or the other.

As a consumer, I was of course interested to learn more about apple juice safety. As law professor, the story seemed a perfect opportunity to explore the complexities of food regulation. This story involves agriculture and how our food is produced; different standards for production in different countries; the regulation of potentially toxic substances in food; the division authorities in the regulation of our food system; the question of acceptable risk; the difficulty of translating scientific analysis into sound policy; and the impact of the media on consumer choice, and eventually on the marketplace.

Here is some background, some related information that seems relevant, and some of my own commentary.

Arsenic is naturally occurring and widely dispersed in the environment. Many forms of arsenic contamination of wells used for drinking water results from natural sources in the environment. See, Dartmouth Toxic Research Superfund Program, Arsenic FAQ. In addition, however, arsenic has had many commercial uses.

Arsenic has a long history as a poison- a rodent poison in particular - and great lore as a homicidal agent. Humans have exploited its toxic properties in weed killers, fungicides and insecticides, especially in vineyards, apple orchards, and cotton and tobacco fields. Arsenic has also been used as an embalming agent, to preserve specimens in taxidermy and to defoliate cotton for harvesting.

The regulation of arsenic levels is thus particularly complex because it is both naturally occurring and occurring as a result of commercial use.

It is also complex because we do not fully understand how arsenic affects human health. For a fascinating overview of issues regarding arsenic and health, see The Facts on Arsenic published by the Dartmouth Toxic Metals Superfund Research Program. There is, however increasing and well documented evidence of the link between long term arsenic exposure and serious health problems, including cancer. The EPA reports that:

Non-cancer effects can include thickening and discoloration of the skin, stomach pain, nausea, vomiting; diarrhea; numbness in hands and feet; partial paralysis; and blindness. Arsenic has been linked to cancer of the bladder, lungs, skin, kidney, nasal passages, liver, and prostate.

Arsenic levels in groundwater have been a concern in the U.S. for some time, prompting the EPA under the Obama administration to revive its 10 ppb maximum tolerance under the authority of the Safe Drinking Water Act. This level is widely supported in the scientific community and was enacted during the Clinton administration. It was withdrawn in 2001 by the Bush administration.

Regarding the inorganic and organic arsenic issue, the FDA correctly asserts that research indicates that inorganic arsenic is much more toxic than organic forms of arsenic.

However, the most recent research also indicates that the lesser toxic organic arsenic can be transformed into the more toxic inorganic form after ingestion.

This research was the basis for the June 2011 FDA announcement that Pfizer would "voluntarily suspend" the sale of the arsenical animal drug 3-Nitro® (Roxarsone). This announcement did not receive a lot of media attention, nor do most consumers realize that arsenic-based animal drugs are approved for use in chickens, turkeys, and pigs, with Roxarsone commonly used in poultry production. See FDA FAQ regarding its announcement; NY Times article, Pfizer Suspends Sales of Chicken Drug With Arsenic.

The FDA assures consumers that while inorganic arsenic was found in livers of the chickens who received Roxarsone, no human health risk was associated with chicken consumption.

While Pfizer has suspended sale of Roxarsone in the U.S., it continues to manufacture and export roxarsone overseas. The FDA reports that it is "taking steps to alert our international partners about our research findings. They will then make their own decisions regarding what actions to take, if any, with respect to this product within the context of their own communities and regulatory systems."

The use of arsenic in poultry production has resulted in problems with arsenic levels in manure applied as fertilizer. USDA research has confirmed that fields where poultry litter is applied can accumulate significant levels of arsenic.

Concerns about arsenic in juices sold in the U.S. have been raised previously by several consumer food groups and by academic researchers.

A 2009 study published in the American Journal of Environmental Science, Presence of Arsenic in Commercial Beverages reported that many commercial beverages contained levels of arsenic that exceeded the 10 ppb standard for drinking water.

Independent testing commissioned by the St. Petersburg Times in Florida revealed levels of arsenic that ranged from 0 to as high as 35 ppb in the apple juice they tested. Arsenic in apple juice: How much is too much? "More than a quarter of the 18 samples tested by the Times contained between 25 and 35 parts per billion of arsenic — amounts that surpass the Food and Drug Administration's 'level of concern' for heavy metals in juices.

In light of these concerns, the FDA reports that it has been tracking total arsenic contamination in apple and other juices for about six years, since foreign producers started gaining an increasing share of the juice market. According to its website posting, FDA: Apple Juice is Safe To Drink, Hunting Inorganic Arsenic:

The agency searches for potential contaminants in fruit juices and fruit juice concentrate in three ways:
FDA issues import alerts to keep potentially dangerous products from other countries out of the U.S. marketplace. The agency has issued a specific alert that requires importers to prove their fruit juices and concentrates are safe for consumption before they are allowed to enter the U.S.
As part of the FDA Total Diet Study program, the agency annually tests baby foods and apple juice samples for the presence of arsenic.
The agency collects and tests food and beverage samples in another program that looks for harmful substances in foods. Apple juice is one of the targeted products because investigators want to check for total and, if necessary, inorganic arsenic.

I personally found Dr. Oz's show (available online on his website) to be overly dramatic, with too much emotional discussion of poisoning our children. Knowing that FDA would be challenging his test results, he should have verified his numbers with a second, objective series of tests. And, he should have discussed the risk level in an objective context. On the other hand, his show has been remarkably effective in generating interest in issues that deserve our immediate and focused attention.

An increasing percentage of food consumed in the U.S. is imported, and it is produced in ways that are not in keeping with our standards for food safety.

The FDA does not have the resources that it needs to implement necessary protections in an increasingly complex global food system.

Despite some calls for decreased regulation, increased regulation is needed to set minimum standards for arsenic contamination and other contaminants. Without a regulatory floor, companies with lax ingredient standards will continue to drive other companies out of business or force them to compete at the lower level of quality.

Our food system continues to reward "cheap" at the expense of quality. Consumers need to demand higher quality and reward the individuals and the companies that produce it.

We need to consider contaminants from combined sources and evaluate cumulative effects rather than evaluating each item individually.

We should stop the exportation of arsenic-based animal drugs and encourage other countries to ban its use.

We should eliminate the use of arsenic-based chemical pesticides. While the EPA published its notice announcing a phase-out of the use of of organic arsenicals as pesticides for most uses, it is still allowed in cotton production.

And, finally, in keeping with my class' study of food labeling, Dr. Oz was correct in his instruction to his audience that they should look at their product labels. He was also correct in noting that it may be hard to find where the country of origin information is located. Mandatory country of origin labeling is required under the Tariff Act of 1890 and regulated by the U.S. Customs Service. However, the courts have held that this information need not be listed on the main product display panel. I'd like to see that changed as well.

Thoughts on agricultural law and on teaching it as a law school subject

2011-08-21T14:13:00.009-05:00

Nearly two years after the fact, but just in time for the 2011-12 academic year, the Agricultural Law blog is pleased to present the audio proceedings of the 2009 meeting of the Agricultural Law Section of the Association of American Law Section. This blog has offered coverage of that meeting, courtesy of Anthony Schutz and Susan Schneider. Susan has also kindly committed her 2009 presentation to paper and posted it to SSRN.

I am now pleased to add my own contribution to Agricultural Law's coverage of the 2009 presentation, which addressed these two questions: First, what is agricultural law? Second, how can we best teach it?

2009 AALS Conference, Agricultural Law Section, What Is Agricultural Law? (comments by Anthony Schutz, Susan Schneider, Drew Kershen, and Jim Chen)

Trespass Claim for Pesticide Drift

2011-08-03T16:32:00.003-05:00

The following article was written by Nancy Burke, Jeff Peterson, and Jessica Mitchell, of the Gray Plant Mooty Law Firm in Minnesota. The article summarizes the significant pesticide drift ruling issued by the Minnesota Court of Appeals.
Beyond the substantive importance of this decision, the article is further evidence of a subject near and dear to my heart - increasing interest in agricultural and food law. In recent posts, I highlighted this increasing interest by featuring new law school courses and activities. A similar phenomenon is occurring at a number of law firms, and these firms are using web resources to demonstrate their interest and expertise in these emerging topics.

Pesticide overspray drift to a neighboring property in Minnesota may now qualify as a trespass, thanks to the Minnesota Court of Appeals’ recent decision in Johnson, et al., v. Paynesville Farmers Union Cooperative Oil Co., No. A10-1596, A10-2135 (July 25, 2011). The ruling allows neighboring property owners to pursue trespass claims against spray applicators for any damages the neighbor believes a spray product caused.

In Johnson, organic farmers Oluf and Debra Johnson (the Johnsons) sued Paynesville Farmers Union Cooperative Oil Company (PFUC) alleging that PFUC’s spray pesticide and herbicide applications drifted onto the Johnsons’ adjacent cropped fields and caused damage. The Johnsons’ claims included nuisance, negligence, and trespass. Allegedly, drift occurred on multiple occasions and caused impacted crops to lose their organic certification along with the higher prices they command in the marketplace. The Johnsons also claimed that in response to the pesticide/herbicide drift, the Minnesota Department of Agriculture required impacted land to be removed from organic farming for three years and directed some crops to be destroyed. PFUC moved for summary judgment on all claims, and as to the trespass claim, PFUC argued that Minnesota law precluded “trespass by particulate matter.” The Stearns County District Court agreed and granted PFUC’s motion.

The appellate court reversed the judgment on all claims, including the trespass claim, and ruled that pesticide overspray could qualify as an unlawful entry onto the plaintiffs’ land. In so holding, the court distinguished Wendinger v. Forst Farms, Inc., 662 N.W.2d 546 (Minn. App. 2003), in which it had decided that offensive odors cannot support a claim for trespass. Specifically, the Johnson court distinguished the odors in Wendinger that, as “transient fumes,” may interfere with the enjoyment and use of property, from the liquid pesticide drift that “descends and clings to soil or plants” and remains on the property in a manner that interferes with the Johnsons’ right of possession. In differentiating odors from pesticide drift, the court of appeals clarified that, contrary to the trial court’s decision, simply because an intrusive substance may consist of “particulate matter” does not prevent it from qualifying as a trespass.

Notably, the appellate court’s decision in Johnson also addressed proof of damages relating to organic product certification under the National Organic Program (NOP) regulations (7 C.F.R. Part 205) promulgated under the Organic Foods Production Act, 7 U.S.C. §§6501 – 6523, and adopted by reference in Minnesota law (Minn. Stat. §31.925). While a detailed discussion is beyond this article’s scope, it bears mentioning that the court decided the 5 percent tolerance limit for detectible residue of prohibited substances (e.g., pesticides) established under the NOP’s organic certification regulations does not provide an automatic safe harbor for organic farmers. As a result, the court allowed the Johnsons’ damages claims to proceed whether or not those tolerance limits were exceeded.

Johnson reflects the nationwide trend of allowing private party claims against spray applicators for damages resulting from pesticide/herbicide drift, whether under trespass, nuisance, or negligence theories. Most jurisdictions now recognize that agricultural chemical drift provides sufficient grounds for a trespass claim, and some courts are issuing injunctions against applicators to prohibit drift. These trespass actions impose liability on the applicators without the need to prove any negligence or unlawful conduct.

Oxfam Map Highlights "Pressure Points" of Hunger and Food Price Spikes

2011-08-03T15:49:00.002-05:00

Myriad Genes To Patent

2011-08-02T15:38:00.002-05:00

The United States Supreme Court must be despairing of how many patent appeals are coming its way. After all, patent law is few people's cup of tea. As one old, though obscure, joke puts it:

Question: What's the difference between a patent attorney and a tax attorney?
Answer: Patent attorneys are like tax attorneys, but without the scintillating personalities!

Watch out, Supremes, because the Court of Appeals for the Federal Circuit may have just teed you up to grant yet another writ of certiorari in a patent case.

Like Prometheus v. Mayo, a dispute focused on the patentability of methods of medical diagnosis and treatment, Association for Molecular Patholody v. Myriad raises fundamental questions of patentable subject matter and the interpretation of 35 U.S.C. 101. On July 29, 2011, the Court of Appeals for the Federal Circuit largely overturned a decision on summary judgment by Judge Sweet of the Southern District of New York that rendered unpatentable claims to isolated DNA molecules per se and methods of diagnosis relying on comparisons of mutated DNA molecules with corresponding patient DNA samples.

It would be natural for the Supreme Court to combine the appeals of Prometheus v. Mayo and Association for Molecular Pathology v. Myriad because they both probe similar and related issues of patentable subject matter. Such a combined appeal would have the potential to settle fundamental issues of patent eligibility surrounding many biotechnology inventions for a generation.

The eyes of biologists, the biotechnology industry, and patient advocacy groups are now firmly fixed upon the Supremes.

More agricultural law at LEXVIVO.

When Patents Attack

2011-08-02T15:37:00.002-05:00

This American Life, a quirky and wonderful weekly radio program on National Public Radio, has featured stories on comedians, how to speak to kids, psychopaths, unconditional love, and mind games. On July 22, 2011, TAL investigated a special breed of trolls: patent trolls. Here is how TAL describes the program:

Why would a company rent an office in a tiny town in East Texas, put a nameplate on the door, and leave it completely empty for a year? The answer involves a controversial billionaire physicist in Seattle, a 40 pound cookbook, and a war waging right now, all across the software and tech industries. We take you inside this war, and tell the fascinating story of how an idea enshrined in the US constitution to promote progress and innovation, is now being used to do the opposite.

This patent who dunnit is fascinating and entertaining. Moreover, it transforms a field of law often viewed - even by other, non-patent, attorneys - as dry, technical, and inaccessible, into something that, like Lord Byron, seems mad, bad, and dangerous to know. Listen to the program here.

Hear it before you go infringing. You'll never go in the patent pool again!

More agricultural law at LEXVIVO.

Prometheus Rebound To The Supreme Court

2011-07-06T23:24:00.001-05:00

On its second opportunity, the United States Supreme Court has granted a writ of certiorari to hear an appeal of Prometheus Laboratories, Inc. v. Mayo Collaborative Services and Mayo Clinic Rochester ("Prometheus v. Mayo"), a decision by the Court of Appeals for the Federal Circuit ("Federal Circuit") that ratified - for the second time - the patentability of methods to determine optimal drug dosage levels in therapeutic treatments. This bodes ill for the patentability of inventions involving methods of medical diagnosis and therapy.
As discussed previously on LEXVIVO, on December 17, 2010, Prometheus, Inc., a San Diego-based biotechnology company, prevailed in appealing a district court's grant of summary judgment that had found claims in Prometheus' exclusively licensed patents (U.S. Pat. Nos. 6,355,623 and 6,680,302) invalid as drawn to non-statutory subject matter under 35 U.S.C. §101. In Prometheus v. Mayo, a unanimous panel of the Federal Circuit "again [held] that Prometheus' method claims recite patentable subject matter under §101." The court's previous finding that Prometheus' claims constituted statutory subject matter was successfully appealed by defendants-appellees Mayo Collaborative Services and Mayo Clinic Rochester (hereafter, "Mayo") to the Supreme Court, which vacated and remanded the Federal Circuit's decision on April 29, 2010, "for further consideration in light of Bilski v. Kappos," a business method patent case the Supreme Court had decided the day before. It would appear that the Supreme Court has now called two strikes on the Federal Circuit on this issue.

The claims at issue cover methods for determining the optimal dosage of thiopurine drugs, such as 6-mercaptopurine and azathiopurine, used to treat inflammatory bowel diseases that include Crohn's disease and ulcerative colitis. For example, claim 1 of the '623 patent involves (1) administering a drug capable of producing 6-thioguanine inside a patient suffering from a gastrointestinal disorder, (2) determining the concentration of 6-thioguanine in the patient's blood, and (3) indicating the need to increase or decrease the drug's dosage depending on whether the drug's blood concentration is outside of the therapeutically desired range of 230-400 pmol per 80,000,000 red blood cells.

Now, the Supreme Court will have an opportunity to clarify the patentability of inventions directed to methods of diagnosing medical conditions, as well as those that combine such diagnostic methods with methods of treatment. Any optimism the biotechnology industry might have derived from the Federal Circuit's December 17, 2010, decision in Prometheus v. Mayo may now be tempered by the specter of the Supreme Court adopting the argument that Justice Stephen Breyer (joined by now-retired Justices John Paul Stephens and David Souter) made in his vigorous dissent to the dismissal of the writ of certiorari of a kindred case, Laboratory Corporation v. Metabolite Laboratories, Inc.. In his dissent, Breyer described the medical diagnostic method contested in that case as follows:

At most, respondents have simply described the natural
law at issue in the abstract patent language of a "process." But they cannot avoid the fact that the process is no more than an instruction to read some numbers in light of medical knowledge.

A similar conclusion in Prometheus v. Mayo by a majority of the Supreme Court could redraw the boundaries of patentable biological subject matter in United States patent law.

See more agricultural law at LEXVIVO.

Farming and Pride

2011-07-06T12:41:00.000-05:00

A comment and a quotation from Mark Bittman's column, Banned in the Barn, in today's New York Times really hit me.

“When I grew up here,” said an Iowan I spent some time with, “people were proud of their animals. They’d have signs with their breeds, or their names, and they’d offer to show you around.” That’s no longer the case with most animal operations in Iowa.

Bittman's editorial is about his difficulty getting access to industrialized animal farms. Even though state efforts to ban photography on animal farms (without express permission) failed, he writes about the difficulty in getting farmers to give him permission to enter animal facilities.

On one hand, I certainly can understand the farmers' concerns. His reputation precedes him. But, I agree with him that, "[w]e need more visibility, not less."

If proponents of an industrialized style of farm animal production believe that this is the best method to use, then let true transparency convince consumers of that. And, I don't mean an advertising campaign - I mean transparency. This is how we raise farm animals. After all, we are talking about our food supply.

Which brings me back to the quote.

I remember the pride that my father had for his dairy operation and for his cows. He might not have agreed with Mr. Bittman on all points, but he would have been very happy to show him around the farm. He was proud of the way he cared for his animals.

I look forward to the column next week, when Mr. Bittman promises information about operations that "give us reason to hope."

Poisoned: The True Story of the E. coli Outbreak that Changed the Way Americans Eat

2011-06-28T11:08:00.003-05:00

The recent outbreak of serious E. coli illness in Europe has now claimed 48 lives, and E. coli 0104:H4 is now reported to have turned up as well in Bordeaux, France. Food Safety News, the online national newspaper devoted to food safety and food policy issues, keeps on top of the European epidemic as well as reporting on U.S. outbreaks such as FDA's recent warning not to eat Evergreen Sprouts.

Food Safety News, now recognized as a premier source of food safety reporting, was created by Marler Clark, as the brain child of the firm's founder, Bill Marler. Marler's presence in the food safety arena is impossible to miss. He has represented victims in almost all of the serious food borne illness outbreaks in the U.S.; he was a tireless advocate for the Food Safety Modernization Act (with his memorable "Put a Lawyer Out of Business" campaign); he is frequently interviewed in national media outlets; and, he is all over the internet on blogs, twitter feeds, and on facebook.

The recently released book, Poisoned: The True Story of the E. coli Outbreak that Changed the Way Americans Eat, by Jeff Benedict tells the story of the first major E. coli 0157:H7 outbreak in the U.S., the 1993 Jack in the Box outbreak, and how a struggling young lawyer, Bill Marler, began his career in food safety litigation. It is also the story of a nations lost innocence, as food borne illness is recognized as a serious threat and not just a passing stomach ache.

The New York Times published a review of Poisoned this week, A Timely E. Coli Story, Spun as a Legal Thriller by Dr. Abigail Zuger.

With “Poisoned,” Jeff Benedict manages to deliver the full literary experience of a medico-legal thriller in a work of nonfiction that, fortuitously enough, could not be more relevant to recent headlines. . . .

Over a period of a few weeks, more than 700 cases scattered across four Western states; four children died gruesomely, with bleeding intestines and kidney failure. But Mr. Benedict, a lawyer turned journalist, pays relatively little attention to the story’s medical complexities; his focus is the gruesome and complicated legal tangle that ensued.

Poisoned, however is about more than the legal tangle. It is a story about the people in the middle of that tangle. While Bill Marler is the central character, the personal struggle of nine-year old Brianne Kiner and her family is a primary focus. Brianne was "given up for dead in the intensive care unit, only to survive with significant disabilities." Moreover, the personal stories of the Jack in the Box executives are highlighted. And, the story would not be complete without the colorful defense attorney, Bob Piper, "a stout, hard-drinking man who sported pictures of nude women on his suspenders" and an attorney "known to be devastatingly effective in court."

In some ways, Poisoned is an odd combination. It is good summer read - easy, quick reading with suspense and personal drama, a far cry from the law books we pour over during the academic year. But, on the other hand, it is deliberately unsettling and thought provoking, particularly if you read Food Safety News and follow Bill Marler's career. I am not so sure that the outbreak really "changed the way Americans eat" as much as we would like to think it did.

National Geographic Discusses Decreasing Genetic Diversity in Our Food System

2011-06-19T11:32:00.000-05:00

The recently released July issue of National Geographic Magazine highlights the issue of genetic diversity, or more accurately, the lack of genetic diversity in our modern food supply.

The feature article is Food Ark by Charles Siebert. It discusses the rapid loss of genetic diversity and explains why this loss should be of concern to us.

Food varieties extinction is happening all over the world—and it's happening fast. In the United States an estimated 90 percent of our historic fruit and vegetable varieties have vanished. Of the 7,000 apple varieties that were grown in the 1800s, fewer than a hundred remain. In the Philippines thousands of varieties of rice once thrived; now only up to a hundred are grown there. In China 90 percent of the wheat varieties cultivated just a century ago have disappeared. Experts estimate that we have lost more than half of the world's food varieties over the past century. As for the 8,000 known livestock breeds, 1,600 are endangered or already extinct.

The article discusses the risk that this presents by highlighting current concerns regarding the wheat stem rust, Puccinia graminis, a fungus with a "virulent and fast-mutating strain dubbed Ug99." Ninety percent of the wheat currently under commercial cultivation is susceptible to this deadly fungus.

As the article points out, "[t]he irony is that the dangerous dwindling of diversity in our food supply is the unanticipated result of an agricultural triumph" as we continue to specialize production and isolate the traits we wish to encourage.

Other articles and graphics in the issue include Counting on Uncommon Chickens, a graphic series that highlights the impact of "world’s reliance on a few high-yielding breeds." Nearly a third of chicken breeds are at risk for extinction. And, there is a graphic series titled Sustainable Beef that addresses cattle breeds; That's a Potato, considers the amazing diversity of this important food crop; Seeds Worth Saving, highlights the importance of non-food, but food-related genetic diversity; and a Sidebar features tips on Growing Your Own Heirlooms.

One of my favorites is the following graphic - Our Dwindling Food Variety.

A lot to consider.

These geese will be cooked

2011-06-15T14:46:00.002-05:00

Canada geese represent a serious urban menace. Their molting season presents local governments a short, annual window of opportunity to respond by culling geese en masse. After an outcry over the failure in 2010 to convert culled geese into low-cost, high-protein food, New York officials will not consign this year's harvest to the landfill. Instead, geese from Brooklyn's Prospect Park are destined for slaughter and distribution to food banks.

Pasture-Raised Dairy: Policy Considerations

2011-05-20T17:12:00.000-05:00

While the sale of raw milk is the hot topic in the news these days, a far more important debate is ongoing in the dairy industry. Should the movement toward concentrated dairy operations be continued, or would a return to pasture-raised dairy production, improved through modern scientific research, offer better returns and environmental benefits? Daniel Klein's Pasture-Raised Dairy post on the HuffPost Food Blog offers an insightful interview with Dr. Francis Thicke.

The Perennial Plate Extras: Interview with Francis Thicke from Daniel Klein on Vimeo.

Tilapia: The flip side of the perfect factory fish

2011-05-03T07:11:00.003-05:00

Tilapia is traditionally regarded as the fish in the biblical story of Jesus feeding a multitude of five thousand. The question is the price we pay for farmed tilapia as part of the contemporary food supply. It is fish, to be sure, but it doesn't offer the same nutritional value as species far richer in omega 3 fatty acids. Tilapia is also one of the world's most destructively invasive fish species. What makes tilapia so destructive is its rapid feeding and growth cycle and its adaptability to a wide variety of habitats. Those are also the perfect traits for a factory fish.

As global aquaculture in tilapia booms, the words of Danilo Sosa, a technician with Nicanor Fish Farms in Nicaragua, bear remembering: “Nature is for maintaining species; what we do is make fillets.”

Osama Bin Laden - Pioneer Of Bioterrorism

2011-05-01T22:54:00.003-05:00

It appears that Osama bin Laden was killed on May 1, 2011. Among his nefarious "accomplishments", bin Laden was the first internationally prominent proponent of bioterrorism. Worries about the deliberate misuse of biological agents have prompted the United States Federal government to set up new anti-bioterrorism facilities, such as the Center for Excellence for Emerging and Zoonotic Animal Disease, to be located in Kansas. Despite the demise of bin Laden, the threat of bioterrorism is likely to remain firmly fixed both in the public consciousness and in the wishlists of terrorists.

More agricultural law at LEXVIVO.

Agricultural & Food Law at the University of New Hampshire

2011-04-30T20:30:00.001-05:00

The University of New Hampshire School of Law has a variety of innovative agricultural and food law activities. Professor Margaret Sova McCabe provided me with information about these activities, and I am happy to include them in our reporting about law school initiatives. Professor McCabe has focused much of her writing in the area of food and agricultural law and has been active in the AALS Agricultural Law section.

Professor McCabe teaches Agriculture and Food Law Topics. The course surveys diverse topics from "veggie libel" to genetically engineered crops to obesity regulation. Professor McCabe reports that her goal in the course is "to show students how basic concepts learned in torts, contracts, administrative law, and other courses apply to food and agriculture." Her students prepare presentations on topics, allowing them to explore their own interests in the area. This year's presentations included SNAP and Food Affordability; Anti-Trust Issues in the Dairy Industry; and Regulating Sodium in the American Food Supply.

The class takes at least one field trip - this spring they went to the University of New Hampshire Dairies in Lee and Durham, New Hampshire. UNH, the flagship of the university system, operates two dairies: one organic and one conventional. The purpose of the trip is to allow the students to understand how different regulatory systems produce different "real world" results. It is also an opportunity for students to connect with the food system outside of the classroom. UNH Law is clearly proud of its agricultural law initiatives - a recent UNH Law blog post highlights that dairy trip and present a great slide show of the students' experience.

This year UNH Law also offered its first Animal Law course. Taught by adjunct professor Trish Morris, who has an animal law practice, the class educates students about the many legal issues that relate to animals. The Animal Law class also participated in the dairy field trip.

Agricultural and food law has also made its way into the UNH School of Law clinics. The Administrative Law Clinic is now helping the NH Department of Agriculture, Markets, and Food draft administrative rules. Due to budget cuts, retirements, and other pressing duties the Department needed help with its rulemaking projects. Thanks to the efforts of NH Agriculture Commissioner Lorraine Merrill, NH State Veterinarian, Dr. Steve Crawford, and Professors Mary-Pilkington Casey and Margaret Sova McCabe, UNH School of Law is now providing the agency with rule drafts and related documents.

As the Memorandum of Agreement between the state and the school approaches its first anniversary, students have been working on NH’s beekeeping, animal population control, and marketing rules, along with the Department’s organizational and procedural rules. Students are able to experience rule drafting and gain understanding of the demands on a small, but essential, state agency. Students also come to understand the importance of agriculture to the state’s economy. The rulemaking project is exciting because it allows UNH Law students to participate in the administrative process while providing an essential service to the state, especially in tough fiscal times.

Another example of the innovative ways in which law schools are tapping into student interest in learning more about where their food comes from, how its regulated, and how our legal system affects our food system. Thanks, Margaret, for your work at UNH and for passing this report on to us!

On Fast Track, Patent Office Run Over By Budget Deal

2011-04-27T22:51:00.002-05:00

As LEXVIVO previously reported, the United States Patent and Trademark Office ("USPTO") entered 2011 by proposing several significant reforms designed to improve the efficiency and quality of the patent application process. Included in these proposed changes were a new fast-track patent pathway and new satellite Patent Offices. The Federal budget compromise recently agreed between Congress and President Obama, the Full-Year Continuing Appropriations Act, 2011 (Pub. Law 112-10), brings this brief patent office perestroika to a halt. Here is an email USPTO Director David Kappos sent to his employees last week:

As you may know, the FY 2011 budget was signed by the president on April 15, 2011 and contains the USPTO’s appropriation through the end of this fiscal year, September 30, 2011. With the enactment of the Full-Year Continuing Appropriations Act, 2011 (Pub. Law 112-10), USPTO spending authority for FY 2011 has been limited to $2.09 billion. In view of the funding cuts reflected in the final budget and affecting the U.S. government as a whole, we will be unable to expend the additional $85-100 million in fees that we will be collecting during this fiscal year—funds that we had anticipated being able to use to fund operations this year.

In short, the Continuing Appropriations Act for FY 2011 does not allow us to maintain spending at the levels planned for this year. Further, I am mindful of the fact that we may very well be operating at the FY 2011 level for the foreseeable future. As a result, we have had to make some difficult decisions in order to ensure the responsible stewardship of the agency. It is against that backdrop that I must reluctantly announce, effective immediately, that:

• All overtime is suspended until further notice;

• Hiring—both for new positions and for backfills—is frozen for the rest of the year unless an exemption is given by the Office of the Under Secretary;

• Funding for employee training will be limited to mandatory training for the remainder of the year;

• Funding for contracting of Patent Cooperation Treaty (PCT) search is significantly reduced;

• The opening of the planned Nationwide Workforce satellite office in Detroit and any consideration of other satellite locations are postponed until further notice;

• Only limited funding will be available for mission-critical IT capital investments;

• The Track One expedited patent examination program, scheduled to go into effect on May 4, 2011, is postponed until further notice.

In addition, all business units will be required to reduce all other non-compensation-related expenses, including travel, conferences and contracts.

Trademark activities are unaffected and will maintain normal operations.

I want each of you to know that we have not come by these decisions easily. I recognize that these measures will place additional burdens on your offices, your staff, and your ability to carry out the agency’s mission. However, I believe that they are absolutely necessary to ensuring that the agency can continue to operate through the remainder of this fiscal year and into FY 2012.

I thank you for continuing cooperation and patience, and I appreciate your dedication and service during this challenging time.

David Kappos

Under Secretary of Commerce for Intellectual Property and Director of the USPTO

Ironically, the USPTO does not contribute materially to the Federal deficit. Instead, it is financially self-supporting, covering its operations through the collection of fees from patent and trademark applicants. However, Congress has traditionally appropriated these fees for other governmental purposes, leaving the USPTO continually short of money to pay for improvements, such as skilled new patent examiners to help alleviate the huge backlog of patent applications. In an age of austerity, the USPTO might be celebrated as a governmental exemplar of financial self-sufficiency. Instead, it continues to act as a piggy bank continually filled by inventors, only to be raided by Congress. It is difficult to see how this strategy benefits technological innovation.

More agricultural law at LEXVIVO.

Opening The Closed While Closing The Open

2011-04-22T18:21:00.002-05:00

The Public Patent Foundation describes its mission as "Representing the Public's Interests in the Patent System." As its website explains,

Undeserved Patents and Unsound Patent Policy Harm the Public
... by making things more expensive, if not impossible to afford;
... by preventing scientists from advancing technology;
... by unfairly prejudicing small businesses; and
... by restraining civil liberties and individual freedoms.
PUBPAT Represents the Public's Interests Against Undeserved Patents and Unsound Patent Policy

Patent Attorney David Garrod, who has served as Senior Litigation Counsel for the Public Patent Foundation, assisted the Public Patent Foundation in its campaign against false patent marking, and authored several free claim construction dictionaries. Meanwhile, his company, Bedrock Computer Technologies, LLC, asserted its own patent (United States Patent No. 5,893,120, entitled "Methods and Apparatus for Information Storage and Retrieval Using a Hashing Technique with External Chaining and On-The-Fly Removal of Expired Data") against software giants such as Google, Amazon, and PayPal. On April 21, 2011, Bedrock won a $5 million jury award against Google, whose use of open source Linux software code allegedly infringed claims of the '120 patent.

The result is a fascinating and apparently quixotic juxtaposition of opening the closed while simultaneously closing the open, and is as clear as mud.

More agricultural law at LEXVIVO.

Strawberry Fields and Farm Workers

2011-04-19T11:03:00.008-05:00

While the sun is generally credited for various forms of skin cancer, recent studies link the health of farmworkers employed in fields that are sprayed with pesticides. Though sun exposure can also be attributed to the rising rate of melanoma, studies also show links to farm labor employment. Even more specifically studies indicate that farm workers exposed to pesticides have higher chances of developing the skin disease. The damage however doesn't end there. The correlations between pesticide use and brain cancer are also emerging.

The USDA and others including William Kandel underscore farmworkers ". . . . make a major contribution to agriculture by providing labor during critical production periods." To what extent then are we protecting the nation's farm workers?

Generally federal law governs and obligates agricultural employers to an environmental and health and safety legal regime. Some states moreover have also undertaken their own pesticide reporting requirements that track usage amount and exposure. California for example adopted the Farm Worker Health Act to monitor pesticide exposure and protect workers. To the detriment of farm laborers however the State also approved the use of methyl iodide asserting that its decision followed extensive research.

Methyl iodide is employed to fumigate the soil before the planting of strawberries and yet scientists characterize the pesticide as "one of the most toxic chemicals one earth." Many strawberry owners nonetheless insist that its use is critical to producing and harvesting the fruit. Against such assertions it is difficult to reconcile the use value of methyl iodide against its well established links with inter alia cancer and miscarriages and the host of health challenges farm laborers experience.

Numerous hearings and extensive protests from farmworkers, environmentalists and activists have failed to obtain the reversal of the State's decision to approve the use of this particular pesticide. The State's resistance to reconsider its decision renders it difficult to reconcile the well established importance of farm laborers in feeding the nation. This inaction thereby obligated farmworkers and environmental groups to file a lawsuit earlier this year challenging the approval of methyl iodide in the State. The lawsuit is also grounded on assertions that the State violated various laws that are aimed at protecting workers.

It is no secret that farm workers "load, mix and apply hazardous pesticide chemicals, including organophosphates and carbamates." Yet remedies law chases causation to establish damages for work related injuries. In innumerable instances farmworkers lack health insurance and the financial means to establish the causative links with the health related injuries from pesticide use.

Although causative links present formidable challenges a few obvious clues exist as to the immediate impact of methyl iodide on workers. Farmworkers for example tell us that: ". . . .first we smell the pesticides, then our eyes burn, our noses run and our throats hurt." Is the long sought after ban of methyl iodide forthcoming?

Perhaps as a "warning" to recalcitrant states and perhaps responding to the numerous panels and hearings on the pesticide's impact on workers, the Environmental Protection Agency, announced it would reconsider allowing the use of methyl iodide. It recently opened a commentary period to the public.

April 30th however ends the comment period. If the assertions of the USDA, agricultural employers and others constitute value as to the importance of farm laborers then time is of the essence.

Third year law student and my research assistant for two years, April Stancliff contributed to this posting.

The Patent Conference

2011-04-07T16:40:00.005-05:00

Early in A Connecticut Yankee In King Arthur's Court, the titular Yankee, Hank Morgan, upon becoming King Arthur's "perpectual minister and executive", explains the importance he places on patents:

the very first official thing I did, in my administration—and it was on the very first day of it, too—was to start a patent office; for I knew that a country without a patent office and good patent laws was just a crab, and couldn't travel any way but sideways or backways.

Although this sentiment appears in a work of humor, many earnestly share Morgan's views on the importance of patents. The recent explosion of patent scholarship reflects the growing perception that patents and patent systems are crucial instruments of public policy - instruments capable of generating benefits and costs for society. Now, the increasingly important field of patent research has its own annual home: The Patent Conference.

On April 8, 2011, the inaugural Patent Conference will be held at the University of Kansas School of Law. The Patent Conference will be an annual event featuring the bleeding edge of patent scholarship. This year, The Patent Conference schedule features research on patent infringement, patent damages, patent courts, empirical patent analysis, patent litigation, interdisciplinary patent studies, and Asian patent law. Here is a press release from the inaugural host institution, the University of Kansas School of Law, describing the event:

Conference to bring world’s top patent scholars to School of Law
LAWRENCE — A critical mass of the world’s foremost patent scholars will present their latest research at the inaugural Patent Conference at the University of Kansas School of Law.

The Patent Conference, or PatCon, will run from 8 a.m. to 6 p.m. Friday, April 8, in the Stinson Morrison Hecker Lecture Hall, 104 Green Hall. The event is free and open to the public.

The conference is a cooperative effort between the KU School of Law, the Chicago-Kent College of Law, the University of San Diego School of Law and Boston College Law School to hold an annual conference at which patent scholars in law, economics, management science and other disciplines can share their research. After this year’s inaugural conference, future gatherings will rotate among the four schools, returning to KU in 2015.

“The scholarly study of patents has exploded in importance over the last decade,” said Andrew Torrance, a KU associate professor of law and an internationally known scholar in patent law, intellectual property law, food and drug law, and biodiversity law. “It has undergone a rapid transformation from a small niche field within intellectual property, largely overshadowed by copyright and trademark law, to an academic discipline that now attracts the enthusiastic attention of schools of law, business, public policy, engineering and medicine, as well as departments of economics, history, science and technology studies — and even science and mathematics.

“Clearly, the time has arrived for the field to have a permanent academic home, which is why we decided to found The Patent Conference.”

Torrance cofounded the conference with his colleagues David Schwartz, Chicago-Kent College of Law; Ted Sichelman, University of San Diego School of Law; and David Olson, Boston College Law School.

Nearly 40 patent scholars will make presentations in a series of panel discussions. Broad themes will include patent infringement, patent damages, patent courts, empirical patent analysis, patent litigation, interdisciplinary patent studies and Asian patent law. A complete schedule is available on the law school website.

“We are delighted that the response to the inaugural Patent Conference has been so positive,” Torrance said. “With almost 40 confirmed speakers from dozens of institutions in attendance, many of the finest patent scholars in the world will be presenting their work right here at KU School of Law. In a world that depends on technological innovation more than ever before, the cofounders and I hope this event will help spur the field of patent research to even greater success.”

The Patent Conference is sponsored by Shook, Hardy & Bacon LLP and the KU School of Law.

Patent law has attracted considerable controversy of late. Patents are capable of inspiring both passionate support from those who believe they are necessary to spur technological innovation, on the one hand, and grave concern from those who oppose the monopoly rights to exclude others they confer upon their owners and favor more open models of innovation, on the other. The importance of these and other issues has led to the founding of The Patent Conference, which will provide an annual venue for the free exchange of ideas and research about patents.

More agricultural law at LEXVIVO.

Agricultural & Food Law at UCLA

2011-04-05T22:21:00.000-05:00

UCLA School of Law is also moving forward to address cutting edge issues of food and agricultural law. I have been delighted to be in touch with LL.M. Program alumnus, Michael Roberts who reported on his work at UCLA as an adjunct professor. Michael serves as Special Counsel to the Roll Law Group LLP, a law firm that exclusively represents Roll Global Corporation, a private holding company headquartered in Los Angeles with farming and food companies worldwide. Michael also directs the Center for Food Law & Policy.

And, my aglaw posts have yielded a new contact, Distinguished Professor Grace Ganz Blumberg. Professor Blumberg plans to teach an Agricultural Law course in the near future, emphasizing critical environmental and labor law issues, relying largely on Food Farming & Sustainability: Readings in Agricultural Law. UCLA may thus be the first top-twenty law school to offer an Agricultural Law class since the early days of agricultural law studies in the 1940's when Harvard and Yale both offered courses.

Last fall, UCLA brought Michael Roberts on board as an adjunct professor to teach a new seminar course, Consumer Food Law and Policy. This new course was open to 2nd and 3rd year law students as an elective. Although it was initially capped at sixteen students, twenty-four registered and were allowed to take the class - exceptionally high interest for a first time class. Michael noted that there seemed to be a high level of interest in food issues among the UCLA law students.

The course looked at food law and policy issues through the legal prism of the consumer, giving particular focus to "urban" issues related to food/agriculture. For example, the class considered some of the current debates involving food regulation and examined the assumptions about consumers made by legislators and government agencies in drafting policy.

Michael brought in a number of guest speakers from California and nationally. The class covered food safety, labeling, advertising, nutrition and food policy in general, in the context in the context of local, regional, and international perspectives. The course is expected to be a regular offering each Fall.

Michael also reports that he has been meeting with the UCLA Dean, Rachel Moran to discuss his work as Director of the new Center for Food Law & Policy in Los Angeles. The mission of CFLP is "to advance thoughtful policymaking through innovative legal scholarship to help consumers make informed food choices." Each year, CFLP will host a seminar on a timely issue relating to food law and policy. CFLP solicits prominent lawyers, doctors, and other professionals to author papers on the given topic for that year. The papers are self -published by CFLP, and the authors presents their work at the yearly seminar. The 2011 seminar will focus on "law as a tool to address the problem of obesity."

Again, exciting work to report on!

Agricultural & Food Law at Stanford

2011-03-20T11:12:00.007-05:00

I was pleased to receive information on some of the exciting agricultural and food law activities at Stanford Law School from Professor Jay Mitchell. I have had the pleasure of corresponding with Jay regarding his innovative clinical work with food system clients and met him at the American Agricultural Law Association conference last fall in Omaha. I have been hoping to post about Jay's clinical work, as it might serve as a helpful model for other schools. This clinical work, plus the amazing interdisciplinary research and conferences organized at Stanford are very inspirational. Great work being done.

Here is a sampling of just some of the work going on at Stanford Law with respect to agricultural and food law issues -

Transactional Clinic

Students in Stanford’s transactional clinic, the Organizations and Transactions Clinic (“O&T”) regularly represent nonprofit organizations involved in sustainable agriculture, food security and food system reform. The clinic, which opened in spring 2008, works with established Northern California nonprofits on corporate governance, contract and risk management matters. O&T is a one-quarter course designed to help prepare students for institutional corporate practice and, at the same time, help them see how corporate lawyers can serve community as well as commercial organizations through pro bono, board service and volunteer work.

Associate Professor Jay Mitchell serves as clinic director, and he reports that food system clients represent almost 30% of O&T’s clients, with the projects generally involving real property, organizational programming, direct marketing or governance matters.

Real property projects that the clinic has undertaken include:

development of a lease and operating policies for an agricultural education organization that leases land to its beginning farmer students;
preparation of a license agreement and operating policies for a sponsor of a multi-user agricultural park; and,
development of a model community garden lease and participant agreements.

Programming matters have included:

advice and document preparation regarding community produce gleaning and local food branding programs;
development of applications, liability releases and policies for program participants and volunteers; and,
revision of contracts used by food banks with satellite food distribution sites.

Marketing matters have included:

assisting a large farmers’ market sponsor with a complete revision of its market rules and regulations;
development of a template site agreement for use with municipalities, shopping center operators and other owners of farmers' market sites; and
development of documents for CSAs and for programs designed to help small farmers get access to institutional buyers.

Jay noted that the focus on these types of clients was a deliberate design decision made early on in the clinic’s history. He just finished work on an excellent article that he shared with me that describes the the types of opportunities presented. In his article, he argues persuasively that structural and other attributes of the food system make it an unusually attractive source of projects for transactional clinics and other programs focused on experiential learning in non-litigation settings. Jay's article will appear in the Spring issue of the Journal of Food Law & Policy.

Jay encourages other clinic directors to explore food system opportunities -- as he notes, these clients are everywhere, the system’s diversity of activities, actors and legal issues means that students can encounter a variety of legal subject matters and skill demands in a variety of modes, the familiarity and topicality of the sector creates considerable potential for student interest, and the area calls out for dedication of legal talent and pro bono resources. His sense is that the sector can generate challenging and engaging projects for helping prepare students for transactional practice and their responsibilities as lawyers.

Jay would be happy to talk with clinic directors and others interested in exploring similar opportunities. He can be reached via email at Stanford.

Stanford University Initiatives

Stanford Law faculty members regularly participate in university initiatives relating to food policy.

For example, Professor Buzz Thompson spoke about the Farm Bill at the November 2010 Food Summit that, through the leadership of the School of Medicine, brought together experts from across all of the university’s schools in a set of plenary and breakout sessions. Video clips from this excellent conference are available from the Food Summit Video Library.

Next month, Professor Thompson, along with Professor Mariano-Florentino Cuellar, will speak at the conference, Connecting the Dots: The Food, Energy, Water and Climate Nexus.

Professor Thompson directs the university’s interdisciplinary Woods Institute for the Environment and is a senior fellow at Stanford’s Freeman Splogi Institute for International Studies. The two institutes jointly sponsor the Program on Food Security and the Environment, which brings together scholars from diverse disciplines for research on global issues of hunger, food security and the environment.

From early 2009 through the summer of 2010, Professor Cuellar was on leave from Stanford to serve as Special Assistant to the President for Justice and Regulatory Policy at the White House. He led the Domestic Policy Council’s work on a variety of subjects, including public health, food safety and rural and agricultural policy, and was actively involved in the development of the Food Safety Modernization Act.

Food Policy Symposium

The Stanford Law & Policy Review sponsored a food policy symposium in 2010 focused on environmental and market regulation issues. The journal hosted panel discussions and published articles concerning labeling, food safety and nutrient pollution. The symposium volume is Issue 2 of Volume 21.

Stanford Law is leading the way in the integration of food law, agricultural law, and environmental law, and I am delighted to have the opportunity to post about the exciting work that is going on. I welcome updates as clearly, this is an area that will only grow in importance.

West Virginia College of Law: Agricultural Law Initiatives

2011-03-13T15:52:00.001-05:00

One of our alumni from the LL.M. Program in Agricultural & Food Law replied to my call for news regarding law school initiatives in agricultural & food law. Alison Peck, who teaches at the West Virginia College of Law reported on a variety of innovative projects that she is involved in.

Alison reports that she teaches courses related to the question of how the law can guide sustainable development, particularly with relation to global food production and distribution. Her courses include Agriculture & Rural Land Use, Natural Resources, International Environmental Law, International Trade Law, Property, and a seminar in Sustainable Development. These courses will eventually be part of the WVU College of Law's new Energy and Sustainability Law Program and Center.

I should note that before Alison joined the West Virginia faculty, she developed and taught an excellent seminar in Sustainable Agriculture in our LL.M. Program.

Working together with West Virginia's Future Farmers of America (FFA), Alison and her colleague, Professor Grace Wigal have established the first annual Agricultural Law Moot Court Competition for West Virginia high schools students. Through the program, FFA students will have an opportunity to practice their advocacy skills with the help of law faculty and students in Alison's Agriculture & Rural Land Use class. They will argue before state court judges. This year's problem focuses on the prospect of greenhouse gas regulation of agriculture.

Alison is recognized for her scholarship on the issue of agricultural biotechnology. She has published a number of scholarly articles and legal updates relating to international trade in agricultural products, especially agricultural plant biotechnology. She was a featured guest relating to these issues on Chicago Public Radio's "Worldview," and have commented on these issues for publications such as New York Times/Greenwire and Science magazine.

Alison's current research focuses on a recent trend in contemporary political rhetoric about regulation of food consumer choices to reduce obesity costs. Opponents to such measure evoke founding principles of U.S. constitutional democracy, the founding fathers, and events such as the Boston Tea party. The article reviews the history of the non-importation and non-consumption agreements of the pre-Revolutionary era and argues that this movement was motivated by many of the same concerns that animate modern food policy: rising shared social costs resulting from ostensiby "private" consumption choices.

This summer, Alison will teach in WVU College of Law's Brazil Study Abroad program. She plans to lead students in discussion relating to issues affecting Brazil and the Amazon River, including deforestation, climate change, biodiversity conservation, bioprospecting/biopiracy, benefit sharing, and compulsory licensing of pharmaceuticals. At Centro Universitario Vila Velha, she will lecture to Brazilian and U.S. law students about the Brazil-U.S. trade wars over cotton and ethanol subsidies.

Fascinating work, Alison. Thanks for letting me post on it.

Farmer-Labor Connections in Wisconsin

2011-03-12T15:00:00.001-06:00

I grew up on a small (by today's standards) dairy farm in Minnesota. Although my parents never ran for office, political discussions were commonplace and part of our every day family discourse. They were proud members of the Democratic Farmer Labor Party, the DFL. I recall being confused as a young child about references to the Democratic and the Republican parties on a national level, as I always thought it was the DFL versus the Republicans.

With this upbringing, the link between family farmers and the middle-class workers that form the backbone of the U.S. labor force always seemed so natural to me. It was at DFL conventions that urban and rural interests got to better understand each other.

So, it was with great pride and a lot of nostalgia, that I read about the Tractorcade to Madison, Wisconsin to protest the recent legislation cutting off the collective bargaining rights of public workers.

In the video embedded below and recorded at the Tractorcade demonstration, one farmer explains why the workers' struggle is "a farmer's issue." Hubert Humphrey must be smiling down on him.

Thanks to Twitterer, Peter Patau @MadisonGuy for posting the video stream on his website. There is a slide show of fascinating photos from the Wisconsin protest posted on Peter's website as well. The picture posted above is from that selection.

Law School Work in Food & Agriculture

2011-03-11T13:50:00.003-06:00

A couple weeks ago, I posted on the interesting food law work going on at Harvard - work that is largely student generated and student centered. I have contacted a number of colleagues that I happen to know are leading work in this area, and I hope to be receiving information on new classes, clinical and skills work, and at least one new center. The work is inspiring.

I am certain that there are other exciting law school activities going on out there - let me know, and I would be delighted to post about your activities.
Susan Schneider

The LL.M. Program in Agricultural & Food Law

While waiting for your submissions, I am always happy to post about the work we are doing here at the University of Arkansas School of Law. We offer the LL.M. Program in Agricultural & Food Law, providing an opportunity for attorneys to focus on the full range of legal issues affecting our food system.

Our curriculum includes many of the traditional aspects of agricultural law - e.g., a study of federal farm programs, the environmental regulation of agriculture, and agricultural finance and credit issues. But, it also includes food law & policy courses that cover issues such as food labeling, food safety, food policy issues, and specific rules such as the national organic standards. Integrated throughout the curriculum is the concept of sustainability, with the phrase "Food, Farming & Sustainability" often used as our guiding inspiration. We offer twenty-four credits of specialized instruction over two semesters. More information about our Program and the work of our alumni can be found on the aglaw llm blog or our twitter account, @aglawllm.

The LL.M. Program at Arkansas has been in existence for 31 years. Thanks to the increasing interest in agricultural and food law issues, we are receiving more applications than ever before. We have been able to raise our admissions standards while also increasing our class size. We have our largest class ever this year - 19 candidates. Our experienced attorneys have professional experience that includes leadership at Wal-Mart as Sustainable Development Director, Judge Advocate service at the Pentagon, service as an FAA Regional Environmental Counsel, and international customs work as a practicing attorney. We also host a professor of law from Yeunganam University in the Republic of Korea. Our recent law graduates obtained their degrees from the University of Iowa, Ohio State University, Washington University, the University of Oregon, Hofstra University, the University of Miami, Mercer University, Novgorod State University in Novgorod, Russia, and our own University of Arkansas School of Law.

Food & Agriculture at Law Schools: Harvard Law School

2011-02-26T20:18:00.002-06:00

As was reported in Food & Agriculture: New Trend in Higher Education, undergraduate academic programs have picked up on growing interest in agricultural & food policy. Law Schools are now joining the ranks of those captivated by issues involving our food system - and there are some fascinating projects and opportunities.

This is the first of a series of posts highlighting the work that law students and their professors are doing in the area of agricultural & food law. It is my hope that through these posts, we can connect law school initiatives, learn from each other, and develop ways to collaborate. Please contact me directly (Susan Schneider) if you know of law school work that we can highlight.

We begin with Harvard Law School where noted food law expert Peter Barton Hutt has taught a very popular course on Food & Drug Law for many years.

Recently, there are additional new opportunities at Harvard to explore food policy issues. In 2010, law students formed the Harvard Food Law Society, and in a less than a year developed a membership of 150 students. That same year, Harvard Senior Clinical Fellow, Emily Broad began work on a new Food Policy Initiative.

I asked Emily and Nate Rosenberg, President of the Food Law Society to describe their work for this posting.

Harvard Law School – Food Policy Initiative of the
Health Law and Policy Clinic

The Food Policy Initiative of the Harvard Law School Health Law and Policy Clinic links Harvard Law students with opportunities to work with clients and communities on food policy issues. It draws on the work of the joint Harvard Law School/Mississippi State University Delta Project, which combines grassroots initiatives involving local farmers, community members, farmers markets, and schools, with state-level advocacy work in Mississippi to bring about legal and policy change.

The Initiative aims to increase access to healthy foods, prevent diet-related diseases such as obesity and type 2 diabetes, and assist small farmers and producers in participating in local food markets. It is engaged in a range of food policy project areas, including:

Assisting with the development and research needs of state and local food policy councils, i.e., groups of community stakeholders working to promote laws and policies that increase access to healthy food and rational farm policies;
Assessing food safety rules to inform law and policy changes that would increase the economic opportunities for small local producers, including working with state governments to allow for the in-home production of certain low-risk food products;
Establishing and supporting rural farmers markets, including breaking down barriers to the use of SNAP (food stamps) and WIC Farmers Market Nutrition Program food benefits;
Analyzing and recommending ways to increase access to healthy produce for low-income individuals, individuals surviving on food benefit programs, and those living in “food deserts;”
Identifying and breaking down legal and non-legal barriers that stand in the way of small producers going beyond direct farm-to-consumer sales to sell at grocery stores, restaurants, and Farm to School or Farm to Institution programs;
Investigating best practices for school policies to promote healthy school environments.

Current projects include helping Mississippi farmers markets access EBT machines to promote SNAP (food stamp) use at markets in Mississippi; analyzing and recommending an overhaul of the Mississippi WIC food distribution program to help promote food access for WIC participants; working with various food stakeholders (restaurants, farmers, farmers markets, produce trucks) and the Shelby County Health Department to update to the Memphis Food Code; and identifying and advocating for legislative changes to protect and promote “true” farmers and farmers markets, rather than food peddlers and resellers, in Arkansas.

The Food Policy Initiative currently focuses its work in the Delta region, with projects underway in Mississippi, Arkansas, and Tennessee; however, the geographic scope of the Initiative is not limited. The knowledge and experience developed in the Delta should carry over to replicate work in other communities, using the expertise gained to help build similar federal, state, and local advocacy infrastructure around access to food and assisting small producers around the country.

Each semester, 8-10 law students are involved in the Food Policy Initiative through enrollment in the Health Law Clinic, and another 30-40 students are working on food law projects through the Harvard Food Law Society, the Harvard Law School Mississippi Delta Project, and other pro bono opportunities available through the Food Policy Initiative.

For more information about the Food Policy Initiative, current projects, or ways to collaborate with the Initiative, contact Emily Broad, Senior Clinical Fellow, Health Law and Policy Clinic.

Harvard Food Law Society

In the Spring of 2010, a new Harvard Law School student association, the Food Law Society, was organized by students Nate Rosenberg and Michelle Ahmadian. It was founded to provide students interested in food law with an opportunity to come together, host food law speakers and events, and work on pro bono student projects in the field of food law.

The Society was founded with the conviction that food law and food policy profoundly affect the environment, public health, and development. Nate and Michelle wanted to create an organization that would allow law students to engage in these issues directly and foster dialogue on food-related issues in the legal community.

By the time the fall semester of 2010 began, the Society had over 50 members, and an ambitious set of events planned for the year.

Pictured right, The Harvard Food Law Society's first Executive Board. From left to right: Projects Chair Patrick O'Leary, President Nathan Rosenberg, 3L Representative Nigel Barrella, 2L Representative Jenny Klein, Alumni/Career Relations Chair Jennifer Kan, 3L Representative Jared Policicchio, Speakers and Events Chair Krista DeBoer. Not pictured: Secretary/Treasurer Sarah Jelsema, Social/Outreach Chair Jennifer Lee, LLM Representative Cateano Altafin Rodriques da Cunha, and Emily Broad, Faculty Sponsor.

By February of 2011, the Society had tripled its membership, created a website with an active blog, completed a project with Law for Food, and started work on two new pro bono projects under Emily Broad’s supervision. The first project is a collaboration with The Food Trust focused on improving access to nutritious foods in rural food deserts. Another team is working on a small producer’s guide to the new Food Safety Modernization Act. This spring a number of lectures have also been scheduled, bringing in experts on subjects ranging from soil science to nutrition.

Next year the Society hopes to expand its pro bono projects program, host a conference on the interrelationships between food, public health, and nutrition, and publish career and internship guides about opportunities for law students and lawyers to work in the field of food law and policy. It also aims to create ties with students on campuses around the country and, if there’s interest, start a national organization.

Interview with Nate Rosenberg, President, Harvard Food Law Society

1. What led you to forming a Food Law Society at Harvard?

As a first-year law student I found out that some personal health problems were caused by gluten. I had been interested in food policy for a while--I even considered majoring in International Agricultural Development at one point--but this experience made food-related issues more salient.

Becky Goldberg, an HLS alumna and FDA Foods Counselor, told me in an interview for the blog that she became interested in food law after it suddenly dawned on her that many of the food-related issues she was interested in were “fundamentally tied to the law.” I didn’t have a “lightbulb-over-the-head epiphany” like Becky, but I slowly arrived at the same conclusion. Forming the Food Law Society seemed like a natural next step.

2. Do you find that there is student interest in food law & policy issues?

There is an overwhelming amount of interest. I was surprised by the response to our initial recruitment email and our first info session, which drew almost 50 people. Food is becoming a major political issue, and there is an intense desire among many to learn more and get involved.

3. What are the goals of the Food Law Society?

Our constitution states, “The Food Law Society of Harvard Law School is a nonpartisan society whose mission is to strengthen the capacity of its members to respond to local, national, and international problems in food policy and their effects on public health, the environment, national security and development. The Society advocates an approach to food policy that is sustainable within each of these domains.”

More practically, we want to provide law students with opportunities to gain experience in food law and policy. We also want to increase awareness in the legal community and the broader public of the importance of food policy. Currently, we are the sole chapter of the Food Law Society; however we have talked about creating a national organization. I would love to hear from anyone interested in starting a chapter at their law school.

4. Are there adequate opportunities for studying food law & policy issues in your law school?

No, but that’s changing. The Food Policy Initiative of the Harvard Health Law Clinic continues to grow and Emily Broad and Robert Greenwald plan to offer an innovative course on food policy in the near future. This is my second semester working on food-related projects through the Food Policy Initiative. Through the Clinic, I’m learning a tremendous amount while working on projects including efforts to revise the Memphis Food Code and to expand Farm to School programs in Mississippi.

Peter Barton Hutt also does an amazing job teaching Food and Drug Law, but that course focuses on FDA regulatory law. Hutt, in the inaugural issue of the Journal of Food Law and Policy, wrote that “a true understanding” of food law and policy extends far beyond the “narrow confines” of the regulatory law surrounding food products. I tend to agree with him. The Harvard Law administration has been incredibly supportive of the Food Law Society so far, and I hope that they will continue to respond to student interest by adding courses in agricultural law and broader food law and policy.

5. Are there any activities (past or future) that you would like me to mention?

Definitely. Our Speakers and Events Chair, Krista DeBoer, has an amazing set of speakers lined up this semester, including Frederick Kaufman, whose July 2010 cover story for Harper’s was instrumental in revealing the role that investment banks played in the 2008 global food crisis. You can read about our other events planned this semester on the Events link on our website.

Our Projects Chair, Patrick O’Leary, is leading two projects this semester with Emily Broad. One will focus on the potential to improve access to nutritious food in rural areas, while the other will involve preparing a small producer’s guide to Food Safety and Modernization Act. These projects are described in greater detail on our website’s Projects page.

We have a blog, which contains a series of interviews on careers in food law. We plan to add more content to it soon.

We’re also working on career and internship guides to food law and policy. If anyone has any suggestions or would like their organization represented in the guides, I encourage them to contact me at nrosenberg@jd11.law.harvard.edu.

Finally, we’re hosting a conference on public health and nutrition for the fall. We hope to have more details about the conference in the coming months.

6. How many students are involved?

About one hundred and fifty students are currently involved in the Food Law Society.

7. Is there anything else you would like to discuss?

I want to thank Emily Broad for supporting the Food Law Society as our faculty sponsor. Her sustained involvement, guidance, and creativity have been essential to the Food Law Society’s development.

Again, my thanks to Emily and to Nate for documenting the excellent food law & policy work that is ongoing at Harvard. Their energy is contagious, and the work they are doing is amazing.

"Helping Veterans Trade Their Swords for Plows"

2011-02-06T08:48:00.001-06:00

In Helping Veterans Trade Their Swords for Plows, Patricia Leagh Browne reports for the The New York Times on some amazing efforts to assist combat veterans readjust to civilian life and to develop new careers - in sustainable and organic farming. The physical exercise, the discipline, the attention to detail, the commitment to the mission are all factors that naturally link their military service to the labor intensive and focused skills associated with organic and sustainable farming. And, it allows them to "be a creator rather than a destoyer."

The article makes fascinating connections and reports on a variety of different programs. All connect the needs of returning veterans with the need of the United States to replenish its aging workforce of farmers. Half of our current farmers are expected to retire in the next decade.

Archi's Acres in describes itself on its website "as a pro-American and a pro-veteran company which created its Veterans Sustainable Agriculture Training (VSAT) program to offer combat veterans meaningful employment opportunities in a high growth potential industry." It uses a proprietary technology that it says consumes "up to 90% LESS water then convention agricultural systems."

Combat Boots to Cowboy Boots at the University of Nebraska College of Technical Agriculture is described as part of a "veteran-centric" farming operation.

The Farmer-Veteran Coalition, also described in the Times article, posted a video yesterday entitled "A Greater Mission" to document the problems experienced by veterans and the role that agricultural training can play. It describes the transitions, connections, and rewards associated with the agricultural projects. The coalition lists partners in the veterans-farming programs and provides links to their websites.

Critical to each of these programs is not simply a connection between the veterans and agriculture, but a focus on sustainable farming. The careful study of natural processes, the sustainable use of natural resources, and the application of the knowledge gained to increase the quality and quantity of production - therein lies the therapy and the satisfaction. A slide show on the NYTimes website documents this in images.

It is my greatest hope that our agricultural policies will reward these efforts and the participating veterans by making sure that there is a place for them in our food system.

Comments on Round-up Ready Alfalfa Decision

2011-02-02T16:32:00.000-06:00

Some follow up comments on the deregulation of Round-up Ready (RR) Alfalfa. See Andrew's informative post about the recent USDA decision.

Secretary Vilsack proposed an approach he termed coexistence in an open letter to stakeholders on December 30, 2010. His plan was to allow the planting of RR alfalfa, but to impose restrictions that would attempt to protect neighboring farmers from cross-pollination. The USDA's Environmental Impact Statement confirms that cross pollination will be a problem, and that the rights of alfalfa growers who wish to grow organic or even just non-RR alfalfa will likely be infringed.

Organic feed is needed in the production of both organic dairy products and organic meat. Alfalfa is an extremely important feed source, particularly in the winter in colder climates.

Some in the biotechnology industry and non-organic agriculture reacted to the suggestion of "co-existence" with great anger, some calling for Secretary Vilsack's firing. When the decision to de-regulate and abandon the co-existence agenda was issued, their reaction was positive. Representatives of the National Corn Growers Association thanked Vilsack "for keeping grower choice as a priority. . . A clean, full deregulation . . . lets farmers plant the kind of alfalfa they choose this spring.”

Choice. It seems that many people seemed to have missed the point of co-existence. Farmers could choose to plant RR alfalfa, but they would have to do so in a manner that did not infringe on the choice of their neighbors to not grow RR alfalfa.

There is already a shortage of organic livestock feed, raising prices and limiting domestic availability. In order to meet increasing U.S. demand for organic products, we import significant amounts organic food. Despite the recession, consumers' interest in organic products continues to rise. In a free market society, shouldn't consumers have the choice to purchase organic food if they want?

Proponents of organic agriculture will proceed with litigation challenging the USDA decision. Nuisance suits will likely be brought by farmer's whose fields are contaminated, prompting farmer vs farmer litigation. Monsanto may even sue farmers for the unlicensed use of RR alfalfa when it is discovered in their fields.

And all this to what end? In a recent note, Michael Pollan referred to RR alfalfa as "a bad solution to a non-existent problem." He noted that "[a]lfalfa is a perennial grass that doesn't suffer from serious weed problems. In fact, ninety-three percent of alfalfa fields receive no herbicide at all." Moreover, thanks largely to the overuse of Round up, it is "well on its way to obsolescence." Weeds resistance to Round Up has been a significant and increasing problem throughout the country, and that is only expected to increase.

Let's hope that farmers choose to plant regular-old alfalfa, rejecting the costly new patented product now on the market.

USDA Decides GM-Alfalfa Is No Little Rascal

2011-01-31T17:48:00.004-06:00

Alfalfa (Medicago sativa) is one of the most important crop plants in the world. Its uses range from cattle forage to human food. Worldwide, it is cultivated more than any other legume crop. Monsanto Corporation developed a patented genetically modified ("GM") variety of alfalfa - Roundup Ready Alfalfa - that is resistant to glyphosate (N-(phosphonomethyl) glycine), a powerful herbicide used to eliminate weeds from agricultural fields.

As discussed earlier at LEXVIVO, Roundup Ready Alfalfa has inspired considerable legal controversy - controversy that has already reached the U.S. Supreme Court. On January 27, 2011, the United States Department of Agriculture ("USDA"), after completing an Environmental Impact Statement, announced in a press release that it has opted for full deregulation of Roundup Ready Alfalfa. This decision will place no more restrictions on Monsanto's GM-alfalfa than on non-GM varieties. As the USDA's press release relates,

"After conducting a thorough and transparent examination of alfalfa through a multi-alternative environmental impact statement (EIS) and several public comment opportunities, APHIS has determined that Roundup Ready alfalfa is as safe as traditionally bred alfalfa," Agriculture Secretary Tom Vilsack said.

This decision comes on the heels of a January 19, 2011, letter that U.S. Representative Frank Lucas (R-Okla.) and U.S. Senators Saxby Chambliss (R-Ga.) and Pat Roberts (R-Kansas) sent to USDA Secretary Tom Vilsack, warning that taking into account non-scientific factors in the regulation of GM-alfalfa would exceed the statutory authority granted to his agency by the Plant Protection Act:

It is unfortunate that those critical of the technology have decided to litigate and as you rightly point out that courts may unwisely interfere in normal commerce. However, the alternative you propose and include in the EIS is equally disturbing since it politicizes the regulatory process and goes beyond your statutory authority and indeed Congress’ intent in the Plant Protection Act (PPA). The PPA requires the Secretary to make a scientific determination if the product under review is a plant pest (7 U.S.C. 7711(c)(3)). If the final decision is that the product is not a plant pest, nor would the movement of the product in question impose the risk of dissemination of a plant pest, then USDA has no authority to impose further restrictions (7 U.S.C. 7712(a)).

Further legal challenges of GM-alfalfa are certain, especially from organic farmers who worry that GM-pollen will infect the their non-GM crops. As a signal that it takes the growing war between advocates of agricultural biotechnology and organic farming seriously, USDA has decided to resurrect its Advisory Committee on Biotechnology and 21st Century Agriculture and the National Genetic Resources Advisory Committee to

tackle a broad range of issues, from ensuring the availability of high quality seed, to helping ensure that growers have access to the best tools available to support their production choices, to whether risk management and indemnification options can play a role.

Victory in this battle goes to agricultural biotechnology, but the wider war will assuredly continue. In the meantime, the Food and Agriculture Organization of the United Nations ("FAO") has reported that food prices reached near-record heights in 2010.

More agricultural law at LEXVIVO.

The Pickle Project

2011-01-28T18:18:00.001-06:00

I just learned about a unique food, agriculture, and culture project spearheaded by two Fulbright Research Fellows, Sarah Crow and Linda Norris. Both had the opportunity to live in Ukraine, a fascinating country with long standing food and agricultural traditions. Building upon their experiences, Sarah and Linda have developed the Pickle Project, a multifaceted effort that observes the Ukrainian food system and uses it "as a lens for exploring sustainability, community and change."

This is how they describe their work:

The recent designation of several foods and food practices by UNESCO as “intangible cultural heritage of humanity” illustrates a growing recognition of the importance of food and food systems. For food is not merely a commodity but also a symbol of identity and a direct reflection of the human condition and our natural environment. As noted food scholar Marion Nestle suggests, food makes abstractions real and the political personal (2009). This arena of research is underdeveloped in Ukraine, a nation, landscape and culture with an intimate and rich history related to food production, scarcity, diversity and identity.

The Pickle Project ventures to illuminate those connections in contemporary Ukraine, through personal stories, profiles and recipes, and share them with diverse audiences using multiple vehicles. These include social media, The Pickle Project blog, Twitter (you can follow us @PickleProject) and Facebook networks but also through the development of innovative traveling exhibitions and programs, that would tour the United States and Ukraine. This suite of methods is designed to stimulate community conversations about the interesting and increasingly relevant issues of food, culture and sustainability.

My husband and fellow Ag Law blogger, Christopher Kelley, was a Fulbright Scholar in Ukraine five years ago, and his experiences there led to rich connections with this fascinating country and its wonderful people. From my visits and the Ukrainians that are our friends, I can attest to the intimate connections and the deep culture and tradition associated with Ukrainian food. Sarah and Linda may really be on to something here - particularly, as Ukraine's rich agricultural land comes under increased pressure for foreign control.

In addition to following the links above, check out their Kickstarter page. They are raising funds for the project and are close to their goal - although they have a February 1 deadline.

Innovation As An Innovation

2011-01-27T23:48:00.002-06:00

On January 25, 2011, U.S. President Barack Obama delivered a State of the Union Address packed with references to innovation. In fact, he mentioned "innovation" no fewer than nine times during his speech. In each of his 2010 and 2009 Addresses, President Obama mentioned innovation only twice. During his entire eight years as U.S. President, George W. Bush mentioned innovation quite sparingly in State of the Union Addresses: twice each in 2006 and 2003. Even technophile President William J. Clinton employed the word only four times in his two terms in office. So, why is innovation suddenly so popular with President Obama?

There are a number of possible explanations for why innovation has caught the presidential, and national, Zeitgeist. One reason is that technological innovation is closely associated with economic growth. From Robert Solow's neoclassical growth model, which estimated that about four fifths of productivity gains stem from new technology, to Paul Romer's suggestion that investments in research and development may be particularly effective means of encouraging technological improvements, much modern economic thought recommends the promotion of innovation as an especially wise policy goal.

Another motivation is the fashionable fear that the United States is at risk from being overtaken by China, whose students (along with students from South Korea, Finland, Canada, and quite a few other countries) recently outperformed their American colleagues in science, mathematics, and other subjects in the Organisation for Economic Cooperation and Development's Programme for International Student Assessment ("PISA"). The sensation caused several weeks ago by Amy Chua's publication of Battle Hymn of the Tiger Mother, in which she critiques the results of what she pejoratively terms "Western" parenting, tapped this Angst and found a gusher.

A third explanation may arise from a dawning realization that classical models of innovation may not be succeeding as well as they once did. Witness the National Institutes of Health's new National Center for Advancing Translational Sciences ("NCATS"), whose euphemistic goal, "to leverage science to bring new ideas and materials to the attention of industry by demonstrating their value," is a reaction to the worrying relative decline in the rate of discovery, development, and market-availability of new pharmaceutical drugs, coupled with a looming "patent cliff" off which many existing medicines are beginning to tumble.

Finally, the fruits of innovation, such as the iPad, the Nissan Leaf, and Roundup Ready alfalfa, are usually viewed as cool, compelling, and a welcome distraction from the distressing realities of slow economic growth and high unemployment. Where the Romans had panem et circenses, one can now enjoy the latest update of Angry Birds.

More agricultural law at LEXVIVO.

New Report: Food Safety and Liability Insurance

2011-01-26T20:56:00.001-06:00

Food safety and related liability issues can be a particular concern for small and limited resource producers who want to sell local food directly to institutions such as colleges, universities, and public schools. The Community Food Security Coalition just released a new report on this subject called Food Safety and Liability Insurance: Emerging Issues for Farmers and Institutions. It is designed to assist producers, agricultural professionals, and food service operators. The reports is available for free download. The publication was funded through the USDA Risk Management Agency.

This new resource was brought to my attention by Marne Coit of Greenfield Research & Consulting LLC, who assisted with the report. Marne is a graduate of the LL.M. Program in Agricultural & Food Law and previously served as a Staff Attorney with the National Agricultural Law Center.

Food, Farming & Sustainability

2011-01-10T15:19:00.003-06:00

I am pleased to announce that my new casebook, Food, Farming & Sustainability: Readings in Agricultural Law, has been published by Carolina Press. I even found it posted on Amazon.

It is my hope that this casebook will encourage more law professors to teach, and more law students to enroll in, courses that explore our agricultural laws and the policies surrounding our food system. And, as it attempts to address some of the concerns about our food system, I hope that it leads to thoughtful and constructive discussion.

Here is the description of the book, as provided on the back cover:

Agricultural law is the study of the unique network of laws that apply to the production, marketing, and sale of agricultural products—the food we eat, the natural fibers we wear, and increasingly, the bio-fuels that run our vehicles.

Traditionally, agriculture has been favored with exemptions, exceptions, and special rules that reflect the uniqueness and the political power of the industry. In recent years, the study of agricultural law has expanded beyond its traditional scope to include issues of food safety and sustainability. Popular interest in agriculture has increased as consumers seek to know more about their food and where it comes from.

This book provides an issues-based study of these complex topics. It is divided into units designed to introduce some of the critical legal issues facing the industry and consumers today including: federal farm programs, the structure of farms and industrialized agriculture, environmental concerns, migrant labor issues, farm animal welfare, agricultural commercial law, and other topics. The book provides a mix of readings in law and policy. From its initial discussion of “agricultural exceptionalism” to its concluding remarks on the future of our food system, the book is certain to spark thoughtful dialogue.

The book is "[d]edicated to my grandparents and my parents, for affording me the great opportunity to be raised on a family farm; to my sister and her family for the care that they provide in preserving that farm; to my husband and colleague, Christopher Kelley for his inspiration and dedication to excellence; and to all of our past and future students in the LL.M. Program in Agricultural & Food Law at the University of Arkansas School of Law."

Particular thanks is extended to this year's and last year's class of LL.M. candidates for their patience and support while I worked on the book. Their energy and their interest in agricultural and food law was very inspiring!

The Foody Blues - FDA Of Future Passed

2011-01-08T14:29:00.001-06:00

On January 4, 2011, President Obama signed into law the Food Safety Modernization Act ("FSMA"), which the U.S. Senate and House both passed in late 2010. The FSMA amends the existing Food, Drug and Cosmetics Act in numerous ways, but four changes stand out in particular:

(1) FDA must develop and employ science-based standards that govern the growing and harvesting of fruits and vegetables, and these standards must take into account both anthropogenic and "natural" risks to food safety,

(2) Food facilities must produce written assessments that identify risks to the food they handle, and specify prophylactic measures to minimum these identified risks,

(3) FDA must greatly step up its inspections of food facilities, both in the U.S. and abroad, and

(4) FDA will now possess enhanced recall authority, allowing the agency to force recalls of unsafe food if the producer of the food fails to do so voluntarily, and will be able to suspend registration of food facilities connected to unsafe food.

Here is how Food and Drugs Commissioner Margaret Hamburg describes the new FSMA:

Each year, foodborne illness strikes 48 million Americans, hospitalizing a hundred thousand and killing thousands. I thank the President and members of Congress for recognizing that the burden that foodborne illness places on the American people is too great, and for taking this action.

The historic legislation the President will sign tomorrow directs the Food and Drug Administration, working with a wide range of public and private partners, to build a new system of food safety oversight – one focused on applying, more comprehensively than ever, the best available science and good common sense to prevent the problems that can make people sick...

This law represents a sea change for food safety in America, bringing a new focus on prevention, and I expect that in the coming years it will have a dramatic and positive effect on the safety of the food supply.

Two of the greatest challenges faced by the FDA in implementing the FSMA will be time and money. To meet the aggressive schedule of inspections and other actions mandated by the FSMA, the agency will have to hire many new employees with expensive scientific credentials. The new Republican-dominated House may balk at supplying any new funds in the new era of austerity they have announced. However, food safety is a very popular political issue, and woe betide the future electoral prospects of any politician seen to be advocating less of it.

More agricultural law at LEXVIVO.

OU Law School New LL.M. Program

2011-01-05T10:02:00.003-06:00

The University of Oklahoma Announces the John B. Turner LL.M. Program in Energy, Natural Resources and Indigenous Peoples

The John B. Turner LL.M Program extends the University of Oklahoma's long history of excellence and expertise in law relating to energy, natural resources, and American Indians and all indigenous peoples. The first class will enter the one-year program in late August 2011. For more information, including application forms, see http://www.law.ou.edu/llm.

Sustainable development of all forms of energy, water, and agricultural resources will continue to be challenging and vitally important to the global economy. Increasingly, development occurs on or near lands claimed by indigenous populations. While some native peoples may enjoy sovereign or quasi-sovereign rights to these lands, they often have little or no control, receive few benefits, and yet suffer the bulk of environmental and social problems that may arise. This program is designed to be flexible, allowing international and American students to study in all three areas or concentrate their studies in any one or two of these areas.

The John B. Turner LL.M. program offers a combination of courses available only at the University of Oklahoma. In addition to studying with the outstanding faculty at the College of Law, students have unique interdisciplinary opportunities to receive credit for related courses offered by other departments. The LL.M. program also includes guest lectures, field trips, and social and networking opportunities. The College of Law has one of the most favorable faculty-student ratios among law schools world-wide, so students will enjoy unsurpassed opportunities for close interaction with full-time faculty.

Legendary professors, including Richard Hemingway, Victor Kulp, Eugene Kuntz, Maurice Merrill, Joe Rarick, and Rennard Strickland have made the College of Law a national leader in energy, natural resources, and indigenous peoples. Professors who continue this tradition include Owen Anderson (oil and gas law, both domestic and international), Taiawagi Helton (environmental law and Indian natural resources law), Drew Kershen (water law, agricultural law, international bio-technology law), Peter Krug (international and comparative law), Emily Meazell (energy law), Joyce Palomar (land tenure security, real estate development and land use law), Lindsay Robertson (Indian law, indigenous peoples, human rights law), and Murray Tabb (environmental law). In addition, the College is fortunate to have several distinguished adjunct and visiting professors who teach highly specialized classes in this program area.

To earn an LL.M. degree, students are required to be present in residence at OU attending classes and must successfully complete 24 units of credit over two semesters of study, subject to possible extension for cause. All students must take 18 hours of courses (15 if they are approved by the LLM Committee for a thesis) in the areas of energy, natural resources, and indigenous peoples and the balance in approved electives. Most international students will be required to take a 1-credit class on American Legal Systems and a 1-credit class on Legal Research. For course information, see
http://jay.law.ou.edu/studentinfo/coursedescription/llmcourses.cfm

The University of Oklahoma College of Law is located on a beautiful bicycle-friendly campus centered in the heart of Norman, Oklahoma. Norman is located approximately 30 minutes from Will Rogers International Airport in Oklahoma City, Oklahoma. Norman is 180 miles north of Dallas, Texas. Norman was recently ranked #6 in terms of livability in a recent Money magazine survey. Nearby Oklahoma City, the state's Capital, was ranked America's most affordable city by Forbes magazine, which praised the metro area for its high quality of life.

House Passes The FDA Food Safety Modernization Act

2011-01-02T22:42:00.001-06:00

On December 21, 2010, the U.S. House of Representatives passed the "FDA Food Safety Modernization Act" by a decisive 215 to 144 vote margin. As discussed yesterday, in "Senate Votes For Mom And (Safer) Apple Pie," this legislation represents the most significant overhaul to food-related regulation in the history of the Food, Drug, and Cosmetic Act. When President Obama signs these amendments into law, as he is sure to do, LEXVIVO will discuss further the new paradigm of food safety regulation this Act will represent.

More agricultural law at LEXVIVO.

Senate Votes For Mom And (Safer) Apple Pie

2011-01-02T22:42:00.000-06:00

In a surprise to many, late on December 19, 2010, the United States Senate unanimously passed a modified version of S.510, the "FDA Food Safety Modernization Act," by voice vote. If passed by the House, this bill will constitute perhaps the most significant overhaul to the food regulation provisions of the Food, Drug, and Cosmetic Act since its inception in 1938. Soon after becoming President in 2009, Barack Obama came under intense pressure to improve regulation of food safety in the wake of a deadly Salmonella outbreak that contaminated peanut butter and melamine contamination of food imports from China. Titles I and II attempt to strengthen the capacity of the Food and Drug Administration to avoid food safety problems, and Title III focuses on the safety of food imported from other countries. LEXVIVO will provide additional coverage of this bill if it is approved by the House during this session of Congress, which approval now seems likely. President Obama strongly supports this bill, assuring that it will become law if passed by the House.

More agricultural law at LEXVIVO.

Patently Innovative China

2011-01-02T22:36:00.002-06:00

China long ago became a manufacturing superpower. However, its earlier-industrialized competitors have consoled themselves that China is merely a copycat of others' innovation. The government of China is not content with such a role. Even though the evidence that patents best spur innovation is far from conclusive, the Sunday New York Times today (January 2, 2011) reports that patents are a central pillar in the official Chinese strategy to foster a culture of home-grown invention.

The article, "When Innovation, Too, Is Made in China," references a document entitled "National Patent Development Strategy (2011-2020)," recently published by the State Intellectual Property Office of China ("SIPO"), and suggests that China plans to double its complement of patent examiners and to increase its utility patent filings to an impressive 1,000,000 by 2015. By contrast, the United States Patent and Trademark Office ("USPTO") employed 6,413 utility, plant, and reissue patent examiners in the fourth quarter of 2009, and, during the whole of 2009, received 456,106 utility patent applications, of which 49.3% had a U.S. resident as first-listed inventor. As the article also notes, to increase patent filings by its own residents, "China has introduced an array of incentives [including] cash bonuses, better housing for individual filers and tax breaks for companies that are prolific patent producers."

China may find, as other countries have before, that the connections between patents and innovation remain less than fully elucidated. As Eric von Hippel has persuasively demonstrated, much innovation is either open (that is, non-proprietary), generated by users rather than producers, or both. James Besson and Michael Meurer have shown that the relative costs and benefits of patents differ between fields, and the costs may sometimes outweigh the benefits. And, the results of experiments (for example, see the article "Patents and the Regress of Useful Arts," published in the Columbia Science and Technology Law Review (2009)) by Profs. Bill Tomlinson and Andrew W. Torrance (author of LEXVIVO) using a variety of simplified computer-based simulations of patent systems have found relatively greater rates of innovation in systems lacking patent protection (for more, see the August 16, 2010, Google Tech Talk "The Patent Game: Experiments in the Cathedral of Law").

Patent law, patent economics, and the innovation process are all exceedingly complicated. Even an otherwise fascinating New York Times article stumbles on specifics, stating that, unlike China, "[i]n the American system, there are no utility patents," despite the fact the United States patent system does, indeed, offer utility patents; where China does differ is in offering petty patents ("utility model" protection) for minor incremental innovations. Better public understanding of the specifics of patent systems would help improve policy debates about innovation. More fundamentally, much additional research will be required to determine the conditions under which patent systems best spur innovation. By setting an aggressive set of patenting goals, China is clearly signaling its intentions to become a patent superpower. However, achieving the status of innovation superpower may require more than patents alone.

More agricultural law at LEXVIVO.

Genetically Modified Food For Legal Thought

2010-12-28T01:28:00.000-06:00

he United States Department of Agriculture ("USDA") justifies the Plant Protection Act ("PPA")(7 U.S.C. §7701 et seq.) as "necessary because of the major impact plant pests currently have and could have on the agriculture, environment, economy, and commerce of the United States." The PPA empowers the Animal and Plant Health Inspection Service ("APHIS") "to prohibit or restrict the importation, exportation, and the interstate movement of plants, plant products, certain biological control organisms, noxious weeds and plant pests." Under subsections of 7 CFR §440, APHIS presumes certain genetically modified ("GM") crops to constitute plant pests. However, the owner of a GM crop may petition APHIS to have that GM crop deregulated upon a showing that it poses no plant pest risk.

In 2004, Monsanto petitioned APHIS to have two types its GM Roundup Ready Alfalfa ("RRA") granted nonregulated status. After drafting an environmental assessment of the environmental impact of granting this petition, and soliciting public comments on the issue, APHIS granted Monsanto a "Finding of No Significant Impact," and the RRAs were deregulated. Several seed farms and environmental groups filed suit in the federal district court for the Northern District of California, winning a preliminary (and, later, a permanent) injunction largely banning any planting of the RRAs until APHIS complied with NEPA (the "National Environmental Policy Act", 42 U.S.C. §4321 et seq.) by preparing an environmental impact statement ("EIS") on RRA deregulation. On appeal, the Ninth Circuit Court of Appeals affirmed, after finding that the district court below had not abused its discretion. In Monsanto v. Geertson Seed Farms (decided on June 21, 2010), an almost unanimous U.S. Supreme Court reversed the judgment of the Ninth Circuit, finding that "the District Court had abused its discretion in enjoining APHIS from effecting a partial deregulation and in prohibiting the possibility of planting [RRAs] in accordance with the terms of such a deregulation," and remanded the case.

On December, 2010, APHIS released its final EIS, which found the RRAs substantially equivalent to non-GM alfalfas. Normally, such a finding of substantial equivalence would warrant deregulation. However, the USDA expressed its preference that deregulation of the RRAs be accompanied by safeguards to prevent genes from GM alfalfa from contaminating neighboring organic crops. The issue of colliding GM and non-GM crops has already reached the courts on several occasions, most notably in In re Starlink Corn Products Liability Litigation (N.D. Illinois 2002) and Monsanto v. Schmeiser (Supreme Court of Canada 2004). Like the English Railway Fires Acts, which were intended to provide modest compensation to owners (often farmers) whose lands were damaged by sparks from steam engines, while simultaneously preventing tort liability from discouraging the perceived economic progress offered by railways, the PPA deregulation pathway could become a method of encouraging the expansion of GM crops. The decision by APHIS to deregulate, but only with potentially onerous conditions, has even raised the ire of, among others, the Wall Street Journal, which led its December 27, 2010, editorial page with an indictment of USDA's decision to rely on non-scientific factors alongside scientific ones. The editorial warns that "[i]f nonscience criteria are introduced as considerations for allowing the sale of biotech crops, the effect would be disastrous for the USDA's regulatory reputation."

If GM crops continue to be rapidly adopted around the world, legal issues involving colliding crops are sure to become more common. Managing the legal consequences of such collisions awaits solutions.

More agricultural law at LEXVIVO.

Sustainable agriculture

2010-12-16T15:22:00.002-06:00

Several weeks ago, Susan Schneider posted about a new group promoting production agriculture. In that post Susan spoke of the need for a dialogue about sustainable agriculture, as opposed to advertising campaigns. I agree with her. Thus, I offer several brief comments about sustainable agriculture.

Sustainable agriculture will be technologically neutral. Standards that a priori rule out certain techniques or approaches are not technologically neutral and will not be promote sustainable values for the environment, for the community, or for the economics of farmers.
On this point, the Plant Biotechnology Journal (2011) 9, pp. 2-21 has a good review article entitled, "The role of transgenic crops in sustainable development."

Sustainable agricutlure will be scale neutral. Standards that attempt to classify small as good and large as bad are not scale neutral and will not promote sustainable values. On this point with regard to safe food, it is important to remember that bacteria, yeasts, fungi, and other mycotoxins give not one whit of concern for the size of the farm these living entities contaminate. Indeed, much evidence exists that small-sized farms often have higher contaminantion rates than larger farms.
Two examples make this point.
Free range chickens and other open pen livestock are often more contaminated because these free range animals more readily encounter bacteria, yeasts, fungi, and mycotoxins that exist very widely in the soils and on the plants where the livestock ranges. What counts is management, not the size of the farm.
Raw milk is a second example in which the enthusiasm for small farms ignores the significant and dangerous contamination that easily occurs. Pasturization was and is a great social health advance and standards should not disparage food safety for an ideological preference for small or "natural."

A Lecture on Collective Grassland Management

2010-12-08T15:23:00.002-06:00

A video of a recent presentation I made can be found at this link. The paper upon which the presentation is based (which I think I've posted before) can be downloaded at this link.

This isn't shameless self-promotion (at least not totally). If you have thoughts on the subject, I would be happy to hear from you.

Dirt! The Movie

2010-12-07T18:35:00.004-06:00

Check local PBS listings to watch an interesting documentary that is being shown this week on the acclaimed series, Independent Lens. The docmentary, Dirt! The Movie "tells the story of Earth’s most valuable and underappreciated source of fertility — from its miraculous beginning to its tragic degradation." What could be more relevant to the study of agricultural law?

Floods, drought, climate change, and even war are all directly related to the fate of humble dirt. Made from the same elements as stars, plants, and human beings, dirt is very much alive. One teaspoon of dirt contains a billion organisms working in balance to sustain a series of complex, thriving communities that are invisibly a part of our daily lives. . . .This insightful and timely film tells the story of the glorious and unappreciated material beneath our feet.

Publication Opportunity: Journal of Food Law & Policy

2010-12-06T22:13:00.000-06:00

The Journal of Food Law & Policy at the University of Arkansas School of Law is seeking submissions for its Spring 2011 issue. This Journal, the only student-edited U.S. law journal focused exclusively on food law issues, was started in July 2005, and it is now well established in the academic community. Available on both Westlaw and Hein On Line, the Journal features articles on a wide range of current issues of food law and policy. It includes regular 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.

Article submissions can be e-mailed to foodlaw@uark.edu.

For more information, or to make a submission, contact the Journal via e-mail at foodlaw@uark.edu or by phone at (479) 575-2754.

Divided We Eat

2010-11-28T15:00:00.000-06:00

Newsweek Magazine has a very interesting article, written by Lisa Miller and published November 22, 2010, with associated photo essays and side articles on American eating choices. It is titled, Divided We Eat.

As more of us indulge our passion for local, organic delicacies, a growing number of Americans don’t have enough nutritious food to eat. How we can bridge the gap.

It's an interesting read, and I encourage our readers to check it out. Don't miss the link to the listing of the Ten Things That Changed the Way We Eat.

Alliance Seeks to Boost Image of Production Agriculture

2010-11-22T11:34:00.001-06:00

There is a news item that has been picked up by a number of sources - the formation of a new alliance of agricultural groups for the purpose of marketing the benefits of production agriculture. Those concerned about aspects of current agricultural production panned the new alliance and those concerned about media criticism of agricultural production cheered. The Shook, Hardy & Bacon Food & Beverage Litigation Newsletter provided a neutral news recap excerpted as follows:

Agriculture Groups Form Alliance to Bolster Image of U.S. Farm Production Methods

A coalition of 24 farmer- and rancher-led organizations has reportedly formed an alliance to “develop and implement a well-funded, long-term, and coordinated public trust campaign for American agriculture.” The U.S. Farmers & Ranchers Alliance (USFRA) includes organizations from virtually all aspects of agriculture that share the goal of bolstering the image of farm production methods.

According to a November 11, 2010, USFRA press release, the alliance’s initial focus will be to (i) “increase consumer, consumer influencer and thought leader trust and confidence in today’s agriculture”; (ii) “serve as a resource to food companies on the benefits of today’s agricultural production”; (iii) “work with leading health, environmental and dietary organizations to demonstrate the benefits of today’s agricultural production”; and (iv) “increase the role of U.S. farmers and ranchers as the voice of animal and crop agriculture on local, state and national food issues.”. . .

“The sun rises today on a new, collaborative and coordinated effort by many segments of production agriculture to tell our great story as never before,” newly-elected USFRA Chair Bob Stallman said in a statement. . . . See USFRA Press Release, November 11, 2010; National Journal Daily, November 12, 2010.

I don't think that what agriculture needs is a better marketing campaign. I agree that farmers and non-farm consumers need to learn more about each other. But one-way street lobbying efforts are not the way to achieve that result.

The agricultural sector is doing a lot of great things. But there are also some significant problems that have resulted from our phenomenal production. A little self-reflection is called for.

The press releases issued by the new USFRA all seem to imply that if we just tell everyone how good agriculture is, the problems will go away. However, an ad campaign will not clean up wells contaminated by industrialized dairy operations. It will not create more water when underground acquifers are depleted. It will not halt the spread of antibiotic resistant bacteria. It will not slow fossil fuel consumption. It will not make our food any safer or pay our migrant workers a living wage.

Shouldn't funds be spent to figure out ways to address these and other significant problems while preserving agricultural productivity? Wouldn't it be fantastic to see agricultural groups coming together to solve problems, or even more amazing - coming together with consumer groups to discuss solutions to our problems? Isn't an ad campaign just another way to pretend that the problems don't exist?

Let's have an honest discussion, i.e., a dialogue about the sustainability of our food system - environmental sustainability, social sustainability and economic sustainability (making sure that farmers earn enough to cover the costs of good production practices), not an ad campaign. The farmers that I admire are the kind of people that step up to problems and are always looking for better ways to do things. Not shoving problems under the rug and advertising complacency.

By the way, the acronym USFRA is already in use by the U.S. First Responders Association, a non-profit, network, of firefighters, EMS, rescue, police officers, military and civilian support teams.

Pesticide Residue Conflict Puts UDSA in the Middle

2010-11-09T11:47:00.002-06:00

In September, a USDA press release announced a round of new USDA grants of "Funds to Enhance the Competitiveness of Specialty Crops." Most appear to be great projects, and it is nice to see healthy food getting government dollars.

The Atlantic, however, did some digging into the grant recipients - When Big Ag Attacks: Government Sponsored Pesticide Propaganda. As reported, One California grant goes to:

"Partner with the Alliance for Food and Farming to correct the misconception that some fresh produce items contain excessive amounts of pesticide residues by providing the media, the public and various target audiences with scientific information concerning the safety of fresh fruits and vegetables."

According to the organizations' website, Alliance for Food and Farming was formed in 1989 and currently has a membership of approximately 50 farmers or farm groups who represent producers of U.S. fruit, vegetable and other specialty crops. The Atlantic, however, refers to it as a PR front, with directors from corporate agriculture.

In July 2010, Alliance launched a website blasting an Environmental Working Group's website and specifically its, Shoppers Guide to Pesticides. The Shoppers Guide lists the fruits and vegetables most likely and those least likely to contain pesticide residues. EWG specifically recommends "that people eat healthy by eating more fruits and vegetables, whether conventional or organic,” but cautions consumers to consider pesticide residue in the selections they make.

The Alliance website, Safe Fruits and Vegetables challenges the EWG guide, stating that it is:

(a) misleading to consumers, (b) an impediment to public health because it discourages consumption of fresh produce and (c) lacks scientific evidence that the pesticide levels found pose any risk. As a result, there is no reason why a consumer should use this list to guide their purchasing decisions for fruits and vegetables.

Apparently, the Alliance now has funds from the USDA for additional testing. Two facts are disturbing about this grant. First, the grant specifies that the testing is supposed to "correct the misconception" about pesticides in produce. Isn't that bad science per se, as it pre-determines the desired outcome? And second, it turns out that the USDA may be funding research to refute its own research.

EWG analysts have developed the Guide based on data from nearly 89,000 tests for pesticide residues in produce conducted between 2000 and 2008 and collected by the U.S. Department of Agriculture and the U.S. Food and Drug Administration.

I'd like to see USDA stick with funding good research, not research designed to promote one crop or one method of farming over another. Isn't that what good science is all about? Funding a grant for research with a pre-designed outcome just reinforces public cynicism. Let's put research dollars into reducing and eliminating pesticide residues, not into public relations campaigns.

The Role of Government and the Dairy Check Off

2010-11-07T13:48:00.000-06:00

Much has been made about "limited" government in this election season, but unfortunately much of that discussion has been more about slogans than about any real analysis.

The New York Times raised a related issue today that takes the role of government discussion in a different direction, highlighting a problem that I have raised for years in my teaching of agricultural law subjects. The USDA is consistently expected to balance two distinct and often divergent roles - supporting the U.S. agricultural industry and supporting a healthy and safe food system.

The New York Times article, While Warning About Fat, US Pushes Cheese Sales provides a concrete example. The USDA is both involved in promoting cheese consumption and in encouraging us to eat a diet with less saturated fat. The article quotes Dr. Walter C. Willett, chairman of the Harvard School of Public Health Nutrition Department. "The USDA should not be involved in these programs that are promoting foods that we are consuming too much of already."

The article discusses Dairy Management, an organization funded by the dairy industry through its government-backed "check-off program" as the entity that is actively promoting the increased consumption of cheese. This, in and of itself, is not unusual. Almost all food producers actively promote their products. We are literally bombarded with television advertisements, celebrity endorsements, "happy meals," grocery product placement tricks, etc., all designed to get us to eat foods, many of which are not good for us, at least in the quantity we eat them. It should be no surprise that the dairy industry wants us to eat more cheese. As Dairy Management brags on its website:

Between 1983 — the year the dairy checkoff came into existence — and the present, sales have increased by nearly 90 pounds per capita, an increase of 17 percent. Today, per capita consumption is growing at a healthy pace, outpacing population growth.

It is the involvement of the government that creates the real controversy. And, this is a complex issue. One cannot "follow the money" and understand the story. The dairy check-off program, like other agricultural check-off programs, is funded almost exclusively by dairy producers and processors through a mandatory check-off system. The only specific allegation of USDA funding is money provided to Dairy Management for the promotion of dairy products for export markets.

The government connection is more structural. The check-off system was created by Congress. The dairy check-off is one of a number of similar systems (e.g., pork and beef check offs). It is mandatory, and in response to a challenge by smaller producers, it was upheld by the U.S. Supreme Court as a constitutional exercise of "government speech."

As the USDA explains with respect to the dairy program:

The Dairy Production Stabilization Act of 1983 (Dairy Act) authorized a national producer program for dairy product promotion, research, and nutrition education to increase human consumption of milk and dairy products and reduce milk surpluses. This self-help program is funded by a mandatory 15-cent-per-hundredweight assessment on all milk produced in the contiguous 48 States and marketed commercially by dairy farmers. It is administered by the National Dairy Promotion and Research Board (Dairy Board).

Consider what Justice Scalia said in the Supreme Court case that upheld the constitutionality of the beef check-off system. This similar system was challenged by smaller producers who did not feel that its message served them well. The court rejected the challenge, holding it was protected "government speech."

The message set out in the beef promotions is from beginning to end the message established by the Federal Government. Congress has directed the implementation of a “coordinated program” of promotion, “including paid advertising, to advance the image and desirability of beef and beef products.” 7 U.S.C. §§ 2901(b), 2902(13). Congress and the Secretary have also specified, in general terms, what the promotional campaigns shall contain, see, e.g., § 2904(4)(B)(i) (campaigns “shall ... take into account” different types of beef products), and what they shall not, see, e.g., 7 CFR § 1260.169(d) (2004) (campaigns shall not, without prior approval, refer “to a brand or trade name of any beef product”). Thus, Congress and the Secretary have set out the overarching message and some of its elements, and they have left the development of the remaining details to an entity whose members are answerable to the Secretary (and in some cases appointed by him as well).

Moreover, the record demonstrates that the Secretary exercises final approval authority over every word used in every promotional campaign. All proposed promotional messages are reviewed by Department officials both for substance and for wording, and some proposals are rejected or rewritten by the Department. Nor is the Secretary's role limited to final approval or rejection: Officials of the Department also attend and participate in the open meetings at which proposals are developed.

Johanns v. Livestock Marketing Ass'n, 544 U.S. 550, 125 S.Ct. 2055 (2005).

The New York Times article raises a very important issue. Justice Souter actually raised a similar point in his dissent, noting that USDA dietary guidelines were inconsistent with the additional consumption of beef advocated by the ad campaign. What the Times article may miss, however, is that this is not a problem within the USDA. Secretary Vilsack has done more than any USDA Secretary of Agriculture has ever done to promote healthy foods. His department, however, has been given duties that sometimes cannot be reconciled. Congress needs to address the issue and de-couple the government from industry advertising. And, then, if the ads are false (as in the referenced claim that dairy products will help to reduce weight), the FTC should challenge them.

New Book on Farm Programs and Habitat Conservation

2010-10-24T15:46:00.003-05:00

The National Sustainable Agriculture Coalition (NSAC) recently announced the release of a new resource, Conserving Habitat through the Federal Farm Bill: A Guide for Land Trusts and Landowners.

NSAC describes the book as a collaboration of six organizations. "Principal author Aimee Weldon, with the Potomac Conservancy, brought together contributing authors from NSAC, the Izaak Walton League of America, Defenders of Wildlife and the Intermountain West Joint Venture. The Biophilia Foundation and the Living Lands Project at the Defenders of Wildlife provided financial support and the North American Bird Conservation Initiative assisted with the technical content."

The book includes:

A concise introduction to the federal conservation programs authorized under the Farm Bill, the agencies involved and general eligibility requirements;
Detailed information on those conservation programs that can best be used to improve wildlife habitat conservation;
Advice for the selection of the programs to match conservation and biodiversity goals;
Advice regarding the application process;
Recommendations on how to actively participate in the implementation of the programs to further local priorities;
Case studies of the successful use of the programs to maximize wildlife and habitat benefits.

The guide promises to be a very helpful resource. it is available in a free download as a pdf document.

Questioning U.S. Food Aid: Corn/Soy Flour

2010-10-16T20:09:00.003-05:00

From Doctors Without Borders, a compelling request.

Starved for Attention is a campaign to expose a significant problem with U.S. international food aid. The corn/soy flour that we send may relieve hunger, but it does not provide adequate nutrition for malnourished children. Yet, we spend millions of dollars subsidizing production, purchasing the corn and soy, manufacturing it into flour and shipping it in-kind to countries in need. Many recognize the problem, but we slow to correct it.

I invite you to read the letter from Sophie Delaunay, Executive Director U.S Section of Médecins Sans Frontières/Doctors Without Borders (MSF).

Food & Agricultural Law Student Writing Competition

2010-10-14T11:04:00.006-05:00

On October 1, I had the pleasure of providing the keynote luncheon speech at the Cultivating Our Future food and agriculture conference hosted by the The Journal of Environmental Law and Litigation (JELL) and the Wayne Morse Center for Law and Politics at the University of Oregon School of Law. Neil Hamilton provided the closing keynote address, and fellow blogger Anthony Schutz presented via video conference.

JELL and the Morse Center are again teaming up to announce the 2010‐2011 JELL Writing Competition. This year’s contest topic is Food and Agriculture Law and Policy, and the competition is open to students at accredited law schools in the United States and Canada who are enrolled as of the competition deadline of January 31, 2011.

Papers will be accepted on any issue concerning food/agriculture law and policy. However, topics addressed in articles recently appeared in the Journal of Environmental Law and Litigation will not be favored. Competitors are encouraged to review previous JELL articles as posted on the JELL website.

The winner of the competition will receive a cash prize of $500 and the possibility of publishing the winning paper in the Journal of Environmental Law and Litigation’s spring 2011 issue. Authors of other entries of publishable quality may also be offered the opportunity to publish in JELL.

All entries must be received no later than 6:00 p.m. Pacific Time on January 31, 2011. Entries will be acknowledged upon receipt. All entries become the property of the Journal of Environmental Law and Litigation. Submissions will be judged by JELL editors, Wayne Morse staff, Environmental and Natural Resources Law Center faculty, Legal Research and Writing law faculty, and local attorneys with an interest in food and agriculture law and policy.

Papers will be judged on the basis of originality and timeliness of the topic, knowledge and use of applicable legal principles, proper and articulate analysis of the issues, use of authorities and extent of research, logic and reasoning in analysis, ingenuity and ability to argue by analogy, clarity and organization, correctness of format and citations, grammar and writing style, and strength and logic of conclusions.

Entries must be a minimum of 20 pages in length and a maximum of 40 pages in length, excluding endnotes, double‐spaced using Times New Roman 12‐point font with one‐inch top, bottom, and side margins. All citations should conform to the Bluebook (19th ed.). All entries must have only one author, be previously unpublished, and not currently submitted for publication elsewhere. Papers entered in the JELL writing competition may not be submitted for consideration to any other publication until after the winner is announced.

Submissions may be emailed to the Journal of Environmental Law and Litigation at daviss@uoregon.edu by the competition deadline. Please use “JELL Writing Competition Submission” as the subject line of the email message. Entries must be attached in Microsoft Word .doc or .docx formatting.

If submitting by email, the body of the message containing the attached submission must include the author's name, school, expected year of graduation, current address, permanent
address, and email address. No identifying information (name, school, etc.) should appear on the paper itself.

Although email submissions are preferred, hardcopy entries are acceptable. No identifying information should appear in the body of the paper, but should be included on a cover page. If submitting a hardcopy entry, mail it to the address below and send an email to
daviss@uoregon.edu to notify JELL that you are sending a hardcopy submission, or fax your entry to the number below. Hardcopy entries must be received by 6:00 p.m. Pacific Time on
January 31, 2011.

Failure to follow these guidelines may result in the rejection of a submission.

Mail or fax entries to:

JELL 2010‐2011 Writing Competition Phone: (541) 346‐3844
Journal of Environmental Law and Litigation Fax: (541) 346‐1564
ATTN: Writing Competition Editor Email: daviss@uoregon.edu
138 Knight Law Building
1515 Agate Street
Eugene, OR 97403

Please pass this announcement on to any interested law students. Its a great opportunity to explore a fascinating area of law.

Blogger Report From the AALA Conference

2010-10-11T12:50:00.013-05:00

The American Agricultural Law Association Annual Symposium was held October 7-9, 2010 in Omaha, Nebraska. It was a very successful conference, with record attendance of 295 participants.

Over fifty law students attended, and I was pleased to accompany sixteen of our current class of LL.M. candidates. Fellow AgLaw blogger, Anthony Schutz and I both presented to the general session, with Anthony presenting the Update on Environmental Law and Agriculture. I presented the Food Law Update. And, I am delighted to report that we each received awards.

Anthony's excellent article, Grassland Governance and Common-Interest Communities received the Professional Scholarship Award. This article suggests a model for collective action among ranch owners to create common-interest communities in order to enhance opportunities for marketing “nature-based experiences” to customers. It illustrates the use of private law to create and support environmentally beneficial use beyond the scope of what one individual landowner could accomplish. It is a creative and well-articulated proposal published in Environmental Law & Sustainability. Anthony also presented the article at the recent University of Oregon Journal of Environmental Law & Litigation seminar, Cultivating our Future: New Landscapes in Food and Agricultural Law and Policy. The award was well deserved.

I was very honored to receive the AALA Distinguished Service Award. The Distinguished Service Award is given to a member of the AALA who demonstrates “sustained excellence” in contributing to the development of agricultural law. Making the award to Anthony in the picture above and to me in the lower photo is Jesse Richardson, practicing attorney and Associate Professor, Virginia Tech, Chair of the AALA Awards Committee and recently elected AALA Board of Directors member.

The Use of Best Management Practices to Reduce Nutrient Pollution in the Everglades Agricultural Area

2010-10-11T06:01:00.004-05:00

It is only after my recent move to South Florida where I routinely drive on the Sawgrass Expressway that I appreciate how the wild beauty of the South Florida Everglades lives cheek to jowl with the buzz and press of busy city life.

William H. Owen captures this juxtaposition in a recent Earth Magazine article:

As the sun rises over the vast Florida Everglades, the endangered Florida panther quietly stalks a white-tailed deer in the tall grass. A raccoon fishes for its breakfast of crayfish. A small flock of rose-colored waterfowl flies overhead, a reminder of the vast flocks of wading birds that once called the Everglades home. A couple of otters roll around in the water nearby, keeping a watchful eye out for ubiquitous alligators. Manatees swim silently below the surface in Florida Bay, at the southern end of the Everglades ecosystem. Suddenly, a tractor engine revs to life as a farmer prepares to harvest his sugarcane, and the noise of commuters driving to work on the Sawgrass Expressway disturbs the calm. Such is life in the Everglades, where modern civilization meets wild in a vast subtropical wetland.

The Everglades is the largest subtropical wetland in the United States. It is an internationally recognized ecosystem that covers approximately two million acres in South Florida. Urban and agricultural development has endangered the biotic integrity of this ecosystem. One example of this development is the Everglades Agricultural Area (EAA). The EAA is one of several large portions of the original Everglades that was drained for commercial, agricultural and residential development. The EAA is approximately 700,000 acres and is 27% of the original Everglades. Drainage waters from the agricultural lands in the EAA contain nutrients, primarily phosphorous, from the use of fertilizers, herbicides and pesticides. This agricultural runoff flows downstream to areas that include the Everglades National Park. These excess nutrients have allowed nutrient loving plants like cattails to overrun the wetlands, displacing native species such as sawgrass.

In an article titled Reducing Nutrient Pollution in the Everglades Agricultural Area through Best Management Practices, Professor Alfred R. Light chronicles the social, legal and regulatory history of nutrient pollution reduction efforts in the EAA. Professor Light explains how the EAA farmers have recently used Best Management Practices to take the irrigation water with high phosphorous levels that flows into their fields and reduce those levels before allowing the runoff to drain downstream. Professor Light suggests that the successful use of Best Management Practices by EAA farmers will be a bellwether for other US farmers facing similar nutrient pollution problems. The abstract of the Article reads:

Some Florida farmers recently have been reducing the level of nutrient pollution discharged from their fields and entering sensitive Florida ecosystems from the level found in the irrigation water they use. They are doing this while continuing to operate their productive farms. Setting a water quality standard seems to have driven actual “real world” improvements in water quality in Florida, including development of the data and research needed to support those improvements. Mandatory BMPs seem to have worked in reducing phosphorus concentrations in water leaving the EAA. In fact, phosphorus concentrations in water leaving the EAA are about half of the concentrations in irrigation water entering the region. Other regions of the country with significant nutrient pollution thus may be looking to Florida to find out how farmers can be part of the solution rather than part of the problem. Florida’s BMP program in the EAA thus may be a bellwether for other states seeking to confront the challenges of nutrient pollution.

Agricultural Law Highlighted in Food Safety News

2010-09-16T11:30:00.007-05:00

Agricultural law as a discipline and the LL.M. Program in Agricultural & Food Law are featured in a headline article, Learning the Law From Farm to Fork, on Food Safety News today. The article was written by Claire Mitchell, a current LL.M. candidate and the recipient of the Marler Clark Graduate Assistantship in the LL.M. Program.

Home Canning

2010-09-11T13:08:00.006-05:00

The next step for gardeners and those who buy in-season fresh fruits and vegetables at farmers markets: home canning.

National Public Radio did a wonderful story on tomato canning, Overloaded from your Garden? Just Can it!

The descriptions and the sounds of canning brought back all of my memories from canning on our family farm. Tomatoes, pickles, and grape juice were the favorites, and I have never found anything in the stores that tasted as good. For those of you who have canned, listen to this story and enjoy - you will love the sound of the jars sealing at the end. For those of you who have never tried it, be inspired.

Here are some of my memories -

Update on Pavlovsk

2010-08-31T17:50:00.003-05:00

National Public Radio provided additional information on the proposed sale and development of Pavlovsk Experiment Station in an interesting article, Researchers Fight to Save Fruits of Their Labor. This issue was first noted here in the previous post, Can Twitter Save Rare Pavlovsk Plants?

Leonid Burmistrov, a fruit and crop researcher at the institute for 40 years was interviewed for the story.

Scientists have left over the years, he says, as the government cut funding. But through it all, he says, the research station has collected fruit and berry varieties from around the world, stayed in touch with scientists abroad and cataloged everything.

"Like [what is] winter-resistant, resistant to different kind of fungi, diseases or bacteria," Burmistrov says. "What is the quality? What is the taste? And so, so on."

The idea of ripping these plants from the ground for the sake of development?

"No," he says sternly, standing amid fruit trees. "It's not possible to think about the possibility."

But it still a very real possibility. Here is the podcast.

Cloned Steer Wins Iowa 4H Competition

2010-08-28T11:23:00.002-05:00

"I Pledge my Head to clearer thinking,
my Heart to greater loyalty,
my Hands to larger service,
and my Health to better living,
for my club, my community, my country, and my world."

The blue-ribbon winner of the Iowa State Fair "Big Steer" competition at the Iowa State Fair this year was a clone of last year's winner.

As was reported in the Des Moines Register, "Doc" is a clone of "Wade," the 2008 champ, and both were shown by Tyler Faber, the son of the owner of a company specializing in advanced livestock genetic reproductive techniques. Tyler's father stated that "[t]he steer was cloned and shown at the fair to highlight cloning and what it can do." Doc's entry into the competition did not violate any rules, and his status as a clone was listed on his registration.

Even if one accepts Doc's success as evidence of the scientific advantage that cloning may present to the production of individual livestock, I have some problems with it . . .

First, again assuming that cloning a prize animal presents an advantage - doesn't cloning last year's winner raise some kind of fairness issue? How about all of the teens that do not have an extra $15,000 - 20,000 to invest in a cloned embryo?

Second, the whole purpose underlying Doc's entry seems to have been marketing. What an advertisement for Tyler's dad's business - the name of which is intentionally omitted from this blog. I don't like mixing advertising and children - and I don't like a government sponsored youth activity being used to showcase an individual's business venture.

Third, I am not comfortable with the not-so-subtle effort to advance the acceptability of cloning through 4-H channels. The fact that Doc was allowed to compete and to win is clearly part of the effort to get the public used to the idea of livestock cloning. It sends the message that cloning is not only okay, it produces winners.

With regard to my indoctrination complaint, however, I have to admit that I am off the mark historically - look what I found on the early history of 4-H, dating back to around the beginning of the 20th century -

[R]esearchers at experiment stations of the land-grant college system and USDA saw that adults in the farming community did not readily accept new agricultural discoveries. But, educators found that youth would "experiment" with these new ideas and then share their experiences and successes with the adults.

So rural youth programs became a way to introduce new agriculture technology to the adults.

I guess that most governments see the potential value of youth organizations. It is significant. I would argue that a special responsibility should go along with the associated educational role, however, particularly in a democracy. I hope that readers take the photo of the Young Pioneers with the good humor that was intended.

Of course, my view of cloning colors my perceptions. I admit that if we were encouraging 4H youth to learn how to raise livestock without sub-therapeutic antibiotics instead of advising them that it is a good way to promote weight gain, I'd probably be all for it.

But, I find cloning to be such an ill-advised technological path. When we are now realizing that we have a significant problem with a lack of bio-diversity in almost all aspects of modern agricultural production, we develop an incredibly expensive new way to exactly replicate an individual animal? Who in the livestock industry is going to benefit from this technology? What is it going to do for beginning producers and smaller ranchers? What are the benefits for consumers?

I think we can do better with science and technology. We have some real problems to address.

Publication Opportunity: Journal of Food Law & Policy

2010-08-18T07:59:00.002-05:00

I am pleased to serve as advisor to the Journal of Food Law & Policy at the University of Arkansas School of Law. This Journal, the only student-edited U.S. law journal focused exclusively on food law issues was started in July 2005, and it is now well established in the academic community. Available on both Westlaw and Hein On Line, the Journal features articles on a wide range of current issues of food law and policy and includes regular 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.

This year's Journal editor, Scott Lar asked me to post a notice inviting both submissions and subscriptions.

Article submissions can be e-mailed to foodlaw@uark.edu. The Journal is seeking articles for publication Spring 2011, but may also have room for an additional article in the Fall 2010 issue - a good opportunity for a quick publishing turn-around.

For more information, or to make a submission, contact the Journal via e-mail at foodlaw@uark.edu or by phone at (479) 575-2754.

The yearly subscription rate is $34. Subscription payments can be mailed to:
Journal of Food Law and Policy
University of Arkansas School of Law
107 Waterman Hall
Fayetteville, AR 72701

Student Opportunities

2010-08-17T14:44:00.001-05:00

In conjunction with the annual conference for the American Agricultural Law Association, this opportunity has emerged. I encourage all current law students to take part.

Can Twitter Help Save Pavlovsk Rare Plants?

2010-08-14T13:15:00.007-05:00

Worldwide, many have been waiting and hoping for word from Russia that the irreplaceable and historic Pavlovsk Experimental Station outside of St. Petersburg, Russia would be spared destruction, hoping that the thousands of rare trees and other plants grown there could be saved.

Ninety percent of the varieties grown at Pavlovsk are not available anywhere else in the world. Included are unique varieties of strawberries, plums, pears, apples and currants. The destruction of the plants at the Pavlovsk Station will eliminate those varieties - a particularly troubling and ironic outcome in this, the International Year of Biodiversity.

The scientists who are attempting to save the station lost a court battle last week. The court granted rights to the federally-owned land to a government housing development agency that plans to demolish the station and construct housing units. The scientists have appealed the court's decision.

Interest in the preservation of these rare plants is not sentimental interest. They provide the raw material for developing new varieties of crops - something that will likely be needed as we confront water shortages, a changing climate, and changing plant pests.

As was reported in The LA Times -

"Saving varieties is critical for breeding," said Kent Bradford, a plant scientist at UC Davis. "When breeders are faced with a new issue, like a disease or growing in a new area, they need to go back to that diversity to see which ones are resistant or have traits that they like."

The Vavilov Research Institute that runs the Pavlovsk station holds a special place in Russian history. During the World War II siege of the city, Institute scientists chose to starve to death rather than eat the precious seeds in their rare seed bank.

The next court hearing, anticipated in about a month, will finalize the fate of the station and its treasures. In the meantime, Cary Fowler of the Global Crop Diversity Trust called upon those concerned to tweet Russian President Medvedev with their concerns and provided the suggested message in both English and Russian in his Huffington Post blog posting. On August 13, President Medveded responded, on Twitter, with the following tweet:

"Received the Civic Chamber's appeal over the Pavlov Experimental Station. Gave the instruction for this issue to be scrutinised."

I just decided to follow him on Twitter - KremlinRussia_E. I notice that he and the White House follow each other, which I guess is a good thing . . . You can follow the discourse and/or voice your opinion at the hashtag #Pavlovsk. Global Crop Diversity Trust also has an online petition to sign.

Agricultural Law: Inflated Claims of Antibiotic 'Over-use'

2010-08-03T09:01:00.001-05:00

With regard to Mr. Miller's recent post, Agricultural Law: Inflated Claims of Antibiotic 'Over-use', herd health is an interesting subject and some would argue that such a claim is also inflated.

CAFO Implementation Guidance under the CWA

2010-07-27T10:10:00.003-05:00

— Nick Welding, UNL Law '11

The recent release of the EPA’s “Implementation Guidance on CAFO Regulations”is likely to add to the conflict between the EPA, environmental groups, and CAFO owners/operators regarding proper implementation of the Clean Water Act (CWA). The guidance, released on May 28th, is the product of a settlement agreement between the EPA and Natural Resources Defense Council, Sierra Club, and Waterkeeper Alliance. According to the settlement, the guidance is to assist permitting authorities with implementation of the NPDES permit regulations and Effluent Limitations Guidelines and Standards for CAFOs. The released guidance identifies certain factors and circumstances that the EPA believes will lead to a “discharge into waters of the United States,” which, in turn, will trigger the NPDES permit requirement. However, none of the standards or levels provided by the guidance are dispositive. Overall, the guidance seems to further obscure the already muddy waters surrounding exactly when a CAFO must obtain a NPDES permit and whether the EPA has authority to regulate CAFO’s under the Clean Water Act absent an actual “discharge”.

The EPA’s first attempt to require CAFOs to obtain NPDES permits absent an actual “discharge” was in 2003. Under the 2003 regulations, any CAFO that was found to have the “potential to discharge” was required to obtain a permit, whether or not an actual discharge occurred. Opponents of the 2003 rule successfully thwarted this attempt in Waterkeeper Alliance v. EPA, where the 2nd Circuit invalidated several parts of the rule, including the “potential to discharge” permit requirement. The 2nd Circuit held that the EPA lacked statutory authority to require a NPDES permit when a “discharge” has not occurred. In direct response to Waterkeeper, the EPA promulgated a revised rule in 2008. In the 2008 rule, the EPA again attempted to require CAFO’s to obtain a NPDES permit absent an actual discharge. Under the 2008 rule, a CAFO must obtain a NPDES permit if it is found to “propose to discharge.” The rule calls for an objective assessment by a CAFO owner/operator to determine if the operation is designed, constructed, operated, and maintained such that a discharge will occur.

Following the release of the 2008 regulation, environmental groups sued the EPA and obtained the EPA’s agreement to publish the Implementation Guidance at issue. According to the settlement, the guidance is to assist permitting authorities by “specifying the kinds of operations and factual circumstances that EPA anticipates may trigger the duty to apply for permits as discharging or proposing to discharge.” CAFO owners/operators/permitting authorities are to consider these factors and circumstances when determining if a particular operation “proposes to discharge” and is subject to NPDES permit requirements. The EPA acknowledges in the new guidance that no one factor is determinative as to whether a permit is required. Rather, the factors are to be considered collectively.

The new guidance seeks to supplement the 2008 regulations by calling for an assessment of climatic, hydrologic, and topographic factors in “relevant areas of consideration” for all CAFO’s, regardless of the type of on-site livestock. These areas include the animal confinement, waste storage and handling, mortality management, and land application areas. These areas are considered potential sources of pollution that are related to the design, construction, operation and maintenance of a CAFO. The guidance then identifies livestock-specific factors that should be considered for dairy, beef cattle, swine, and poultry CAFO’s.

Since the guidance is based off of factors and circumstances other than an actual discharge into waters of the U.S., it seems as though the EPA is attempting to create a regulatory presumption that a CAFO which does not satisfy the identified appropriate factors and circumstances will eventually (and unlawfully, unless permitted to do so) discharge into waters of the U.S. Even before its release, some environmentalists believed that the EPA would ground its authority to establish such a presumption on a footnote found in Waterkeeper. In the footnote, the 2nd Circuit appears to hint that the EPA can create a presumption by stating, “we need not consider whether the record here supports the EPA's determination that Large CAFOs may reasonably be presumed to be such potential dischargers... In our view, the EPA has marshaled evidence suggesting that such a prophylactic measure may be necessary to effectively regulate water pollution from Large CAFOs, given that Large CAFOs are important contributors to water pollution and that they have, historically at least, improperly tried to circumvent the permitting process.”

Even if the EPA does have the authority establish a regulatory presumption and to require CAFO’s to obtain NPDES permits absent an actual discharge, the question remains how much weight it should be given. The guidance states that it is not legally enforceable and does not confer any legal rights or impose any legal obligations on any CAFO operation. The EPA suggests that an objective assessment will provide permitting authorities with a common basis for determining if the CAFO is required to obtain a permit. Nevertheless, the EPA asserts in pending litigation in the 5th Circuit (National Pork Producers Council, et al. v. EPA, et al) that it has the authority under Chemical Manufacturers Association v. DOT (D.C. Circuit) to establish appropriate regulatory presumptions and that courts have and will give deference to these presumptions.

When the guidance hits the ground and is put into use by permitting authorities, it will be interesting to see how a combination of factors will lead to a final determination of whether a permit is required. A substantial amount of disagreement is likely when state agencies, which are responsible for issuing NPDES permits in accordance with the CWA, base permit requirements off of an “objective assessment” performed by the CAFO owner/operator — an objective assessment that consists of an almost endless number of factors, some of which are not within the control of the CAFO owner/operator. It is reasonable to surmise that avoiding such an unpredictable and potentially varied basis for determining permit requirements was in the mind of the 5th Circuit when it limited EPA authority to actual discharges in Waterkeeper.

At the end of the day, one has to question the EPA‘s attempt to sidestep Waterkeeper and wonder how the costly new requirements will impact CAFO’s and production agriculture as a whole. Of course protecting water quality is crucial and CAFO’s have traditionally been able to avoid CWA coverage, but at what point does the CAFO regulation not fit within the intent of the CWA and instead call for an effort that addresses both agricultural and environmental interests?

Inflated Claims of Antibiotic 'Over-use'

2010-07-23T09:03:00.002-05:00

Political writer Gregg Easterbrook once remarked, "Torture the numbers long enough and they will eventually confess to anything." So is the case with the statistics thrown around regarding how U.S. farmers "over-use" antibiotics.

Although the FDA strictly regulates the type, form and dosage of antibiotics farmers can and cannot use in their animals, the reality is nobody knows exactly how much is eventually consumed at the farm and veterinary clinic. So the question is: Can your customers trust the numbers? A LITTLE PERSPECTIVE
The statistics most typically cited are based on interpretations and misinterpretations of a 2001 report called "Hogging It: Estimates of Antibiotic Abuse in Livestock." Commissioned by Boston's Union of Concerned Scientists (UCS), an advocacy group critical of numerous social issues including carbon emissions, SUVs, biotech and the war in Iraq, it claimed farmers use an "enormous" 24.6 million pounds of antibiotics yearly for “non-therapeutic” purposes, or 70 percent of all U.S. antibiotics. However:

The study's own authors concede there's no way to know which farms do and don’t use antibiotics, how long they use them, and which animals they choose to medicate. So they guessed. For cattle and hogs, they based their guess on a single USDA survey in each market which asked just a handful of questions about antibiotic use among dozens of others. Lacking a similar survey in poultry, UCS simply assumed all farms use them, based on a single-sentence opinion plucked from a 253-page National Research Council review of the issue. UCS then simply multiplied its guesses by the total number of animals and birds sent to market during the year.
To convert the 24.6 million pound guess into a percentage, the UCS authors likewise guessed at the total number of human prescriptions, based on — for inpatients — a National Center for Health Statistics survey and — for outpatients — the kind of market survey they dismiss as unreliable when done by animal-drug makers. They then estimated a "most likely" antibiotic poundage total by assuming what doctors ordered to fill those prescriptions. It "grossly underestimates the amount of hospital prescribing," according to Tamar Barlam, MD, former antibiotic resistance project director for the Center for Science in the Public Interest.
To support its belief antibiotics are "misused" and "nonessential," UCS invented a definition for "non-therapeutic" to count uses that keep animals from getting sick — a definition not supported by FDA. In the decade since the report, the phantom definition has suffered even further rendition creep, to the point it's now shorthanded to accounts like the Organic Trade Associations openly false accusation that "...70 percent of all antibiotics made in the United States are used to fatten up livestock."
The UCS report and those who use it employ some statistical sleight of hand to further inflate the implied risk that farm antibiotic consumption might be contributing to human drug failures. Not every type of antibiotic they stuff into their calculations is relevant to the resistance debate. Several antimicrobials — those known as ionophores, bambermycins, carbadox, tiamulin and organic arsenicals — are never used in humans. So, their use in farm animals poses no risk of causing human antimicrobials to fail. Subtract UCS's own estimates for how much of those antibimicrobials are used from the inflated statistics, and the oft-repeated 70 percent figure immediately falls to only 37 percent.
The 70 percent figure is obese with other paunchy inflations, including claiming poultry farmers use 1.8 million pounds of two antibiotics which poultry veterinarians agree are rarely if ever used, and counting nearly 22 tons of one antibiotic in pig farms that has never even been sold in the United States.

EPA Consideration Of Strict Coarse Particle Standard Sparks Industry Fear

2010-07-22T12:29:00.000-05:00

EPA's latest policy assessment for its ongoing review of the agency's particulate matter (PM) ambient air standards includes a first-time proposed range of limits for a stricter coarse PM (PM10) standard, sparking fear from the mining and agriculture industries -- large sources of PM10 emissions -- that the standard would be impossible to meet.

In its second external review draft of the policy assessment for the PM national ambient air quality standard (NAAQS) review, EPA floats the possibility of a 24-hour NAAQS for PM10 in the range of 65 micrograms per cubic meter (ug/m3) and 85 ug/m3 -- much lower than the existing 150 ug/m3 standard.

However, EPA is also considering a new approach to setting the standard that would allow more exceedances of the ug/m3 limit before the agency deems an area out of attainment with the NAAQS. Environmentalists caution that this approach to implementing the standard makes it less stringent than it first appears.

The agency also leaves the door open to retaining the existing PM10 standard, depending on whether EPA opts not to take into account new data showing harmful effects on human health from PM10 exposure.

The policy assessment released July 8 is designed to “bridge the gap” between highly technical risk assessments and decisions to be taken by the agency on whether to revise the NAAQS, EPA says. The agency will take comment until Aug. 16 from its Clean Air Scientific Advisory Committee (CASAC) and the public on the policy paper, which offers proposed ranges for a NAAQS revision unlike earlier science-focused risk and exposure assessments.

EPA staff in the policy assessment cautions that there is considerable uncertainty associated with the science behind course PM risks. For example, the body of experimental human inhalation studies is relatively sparse, monitoring for course PM is less widespread than that for fine PM (PM2.5), and “very little information is available to inform weight of evidence conclusions for endpoints associated with long-term exposures.”

Despite the uncertainty, EPA staff recommends changing the PM10 standard, but cautions that “standard levels around the upper end of this range are most strongly supported by the evidence.”

The existing form of the standard permits only one exceedance of the NAAQS level in a three-year period. In the policy paper, EPA says that if it tightens the standard within its 65-85 ug/m3 range, it could switch to a so-called 98th percentile form, which would allow 21 exceedances over three years. While activists endorse a stricter PM10 standard, they are raising early concerns about the change in form.

A source with the American Lung Association (ALA) says that a new ambient PM10 standard of 85 ug/m3 using the revised form is “not really that much of a reduction” in air pollution. A NAAQS set at the lower end of the range, however, would be significantly more stringent than the existing limit.

Even with a 65 ug/m3 limit ALA would probably take issue with the proposed form. “We have had problems, historically, with the 98th percentile,” as this allows too many spikes in pollution, the source says, adding that this will likely be reflected in ALA's upcoming comments on the policy paper.

To implement the standard, states would have to craft state implementation plans (SIPs) -- air quality blueprints that detail the emission controls they will impose on sources under their regulatory control in order to cut PM10 emissions and attain the standard. Mining and agricultural operations in rural areas tend to have high levels of PM10 emissions and would therefore be likely targets for new controls in SIPs under a stricter NAAQS.

Agriculture, Mining Industry Objections

Despite environmentalists' doubts that a tighter standard would be sufficiently stringent if EPA changes the form, farming and mining groups are already alarmed at the prospect of a tougher standard in the proposed range -- regardless of the form that EPA selects. “I think that agricultural operations . . . would have a very difficult time achieving a standard set that low,” says a National Cattlemen's Beef Association source.

Farming and ranching operations can produce significant amounts of dust that contribute to PM10 formation, particularly in the West. But the source says there may be no options for cutting dust from the sector to meet a stricter standard, because farmers are already employing best management practices to reduce dust. The source says it is unclear what technology options are available to curb dust in inherently dusty regions.

Similarly, a National Mining Association (NMA) source says that the mining industry is a large source of PM10 emissions but it would be difficult to meet a stricter PM10 standard because industry is already using best management practices for controlling those emissions. If EPA tightens the PM10 standard, “we are not sure there is anything to be done about it,” the source says, adding that a standard at the stricter end of the proposed range would be a “real regulatory stretch,” with few remedies available from the industry to meet the standard.

The NMA source also highlights apparent doubts EPA staff expresses in the policy assessment over uncertainties in the science on PM10's harmful effects, saying “EPA says it would be justified in leaving the standard unchanged” if policymakers feel those uncertainties are sufficiently serious.

The ALA source, however, rejects the industry arguments and says a lack of emission control technology should not be the driver behind a NAAQS revision. The Clean Air Act requires that NAAQS be set based only on public health criteria, and the act has always been a “technology forcing” law that drives innovation, the source says.

Tighter PM2.5 Standard

The draft policy paper also reiterates earlier EPA staff recommendations to tighten the existing annual PM2.5 standard of 15 ug/m3 to a range of 11-13 ug/m3, and either retain the existing 24-hour PM2.5 NAAQS of 35 ug/m3 or revise it down to a stricter level of 30 ug/m3. PM2.5 is widely considered to present the greater public health risk, and is a more urban problem than PM10, which is predominantly an issue in rural areas.

EPA staff further recommend a tightening of the secondary [welfare-based] NAAQS for PM2.5. At present, there are secondary standards for PM set at the same levels as the primary NAAQS, but the policy assessment treats criteria for setting secondary NAAQS related to visibility separately from criteria not based on visibility.

“Staff concludes that the currently available information clearly calls into question the adequacy of the current standards,” the document says, “and that consideration should be given to establishing a new indicator based on speciated PM2.5 mass and relative humidity to calculate PM2.5 light extinction.”

EPA says that the new PM2.5 standard should use a 1-hour averaging time, considering only daylight hours with relative humidity no higher than 90 percent, and a level of PM2.5 light extinction in the range of 191 to 64 inverse megameters (Mm-1.) Light extinction is this context is PM's ability to impair visibility by scattering and absorbing light waves.

CASAC has previously said that using light extinction rather than traditional methods could be technically difficult to achieve. For example, many existing technologies for measuring light extinction are inadequate for the indicator EPA wants to use because they use the wrong wavelength of light.

On secondary effects not related to visibility effects, the policy assessment says “staff concludes that the currently available information supports retaining control of both fine and coarse particles to address PM-related effects on ecosystems and materials damage and soiling, but that there [is] insufficient information to assess the adequacy of protection afforded by the current standards.”

Further, EPA concludes that there is currently not enough information available for a NAAQS to be based on the contribution to climate change of PM or its constituents. The climate effects of PM are a new area of inquiry for the agency, but the state of the current science does not yet support regulatory action despite EPA's clear conviction, expressed in the policy assessment and earlier scientific documents, that PM does have a direct impact.

PM constituents such as black carbon, organic carbon, sulfates and nitrates all have an effect on climate, EPA acknowledges, although the relationships between these pollutants and atmospheric warming and cooling are complex and not well understood. “The current state of the science of climate alterations attributed to PM is in flux as a result of continually updated information,” the policy assessment states.

EPA to Seek Remand to Revise Livestock Emissions Reporting Exemption

2010-07-22T12:13:00.002-05:00

I was invited to join this blog by James Chen and am excited to be a part of this. Some of you know me but to just give a little of my background. I grew up on a 1,000 acre diversified livestock farm (dairy cows, hogs and chickens) in Northern Indiana. I obtained B.S. degrees in Agronomy and Animal Science and an M.S. in International Agriculture with an emphasis in Ag. Econ. I attended the University of Arkansas Law School. Since law school I have worked as an Extension Specialist for the University of Missouri and then as commodity director for Indiana Farm Bureau. I then spent 7 years as the livestock policy specialist for the American Farm Bureau. I have been General Counsel to Rose Acre Farms for the past five years. Rose Acre Farms is the largest family owned and operated layer operation in the US. We have approximately 25 million laying chickens in 6 (soon to be 7) states. My main interests are in environmental ag law and regualtions and ag anti-trust and competition.

EPA will ask a federal appeals court to remand its litigated rule exempting concentrated animal feeding operations (CAFOs) from reporting most hazardous
air emissions under Superfund and right-to-know laws so it can revise the rule, but environmentalists say talks on the issue have failed and they are
urging the court to allow their suit to move forward.

EPA in a July 7 filing with the U.S. Court of Appeals for the District of Columbia Circuit says that the agency intends to seek a voluntary remand of its 2008 CAFO emissions reporting rule that created the exemptions from reporting requirements. The agency says it wants the remand so that it can reconsider the rule, including the various complaints raised by environmentalists and industry groups that filed suit over the CAFO reporting exemptions.

The D.C. Circuit in 2009 agreed to a request from all parties to hold the case in abeyance pending settlement talks. "If this matter is remanded to EPA for further administrative consideration, there will be nothing before this Court for briefing," EPA says.

EPA's filing is in response to a June 28 filing from environmentalists in the suit, Waterkeeper Alliance, et al. v. EPA, in which they say that the settlement talks have failed and the lawsuit should proceed. The environmental groups argue that the agency has had plenty of time to retract the rule and urge the court to reopen the case, according to the filing. "Briefing should proceed because EPA cannot address the deficiencies of the final rule by voluntarily tinkering with the terms of the reporting exemptions."

EPA's rule exempted all CAFOs from reporting their hazardous air emissions under the Comprehensive Environmental Response, Compensation, and Liability Act, and exempted
all but the largest CAFOs from reporting emissions under the Emergency Planning and Community Right-to-Know Act. Environmentalists, including Waterkeeper Alliance,
Sierra Club, the Humane Society of the United States, and the Environmental Integrity
Project, filed suit over the rule arguing any exemption from reporting under the laws is illegal. The groups argue that the exemptions violate the plain language of the laws and that EPA
lacks the authority to carve out the exemptions for the livestock industry. Even though EPA is finalizing data from a study of CAFO emissions, the groups say there is no reason to delay revising the rule until the study is final because the groups say EPA acknowledged the rule was based on the likelihood of emergency personnel responding to reports, not the amount of emissions or health risks.

The industry group National Pork Producers Council sued arguing CAFOs should be exempt from all reporting under both laws. The National Chicken Council, National Turkey Federation, and the U.S. Poultry & Egg Association intervened on behalf of EPA.

Recent Publication

2010-07-21T09:18:00.002-05:00

I've recently published an article on rural development, nature-based entrepreneurs, and common-interest communities. It is available for free at http://www.mdpi.com/2071-1050/2/7/2320/

Update: USDA and Shirley Sherrod

2010-07-20T18:40:00.002-05:00

The NBC Nightly News featured a story this evening on Shirley Sherrod and the reports of her "racist" remarks. It confirmed the post I did this morning, Politics and Race in Agriculture. The full and unedited tape of her comments revealed that she told the meeting of the NAACP the same story I heard her tell last year - a story of how black and white need to come together to help each other. The white farmer and his wife referenced in the story even came forward to voice their support. The NAACP, who initially condemned her remarks, admitted that they had been "snookered" by the false news report.

If good people are forced to resign whenever an unscrupulous blogger or TV news station presents a false story about them, it only serves to give power to those who make up these lies.

I am hoping that Secretary Vilsack will do the honorable thing and admit that a mistake was made. Maybe then, this story can serve as a platform for an honest discussion of the lies making their way through the media these days.

Visit msnbc.com for breaking news, world news, and news about the economy

Federal Preemption, Nonambulatory Cows and "Hogwash"

2010-07-20T13:11:00.003-05:00

It is not this editor’s intent in this post to indicate her feelings on agricultural animal husbandry practices. In contrast the focus here centers on National Meat Association v. Brown, 2010 WL 1225477 (C.A. 9 Cal.) (2010), a case that portends of possible forthcoming developments with potential impact for the nation’s meat processors, animal rights activists, and preemption scholars grounded in agriculture law. Ultimately the case proves intriguing for students of Agricultural Law as to the nature of federal/state relationships, the diversity of plaintiffs and defendants involved with further contemplations of feeding the nation and the legal mechanisms employed to ensure food safety.

The facts reveal that on January 30, 2008, The Humane Society released a video depicting images of nonambulatory cows and triggered the largest beef recall in the United States. The videos revealed cows that had been kicked, electrocuted, dragged with chains and rammed with forklifts at California's Westland/Hallmark slaughterhouse. The reason for such tactics was to enable the cows to stand or walk. Other methods were employed but compounding the issue including warnings from public health officials that downed cattle might impact consumers’ health. In response California promulgated a state law that banned the slaughter of nonambulatory animals.

Before implementation of the statute the National Meat Association (“NMA”) comprising a trade association that represented packers and processors of swine livestock and pork production filed an action in federal district court seeking declaratory and injunctive relief. NMA asserted that the Federal Meat Inspection Act (“FMIA”) preempted California law. The party defendants at the appellate level included a range of animal rights groups including The Humane Society, Farm Sanctuary, Humane Farming Association, and the Animal Legal Defense Fund. The case is challenging and could prove of value to the study of Agricultural Law for several reasons. I am thus tempted to include it in my Agricultural Law Seminar. Any thoughts to the contrary of course would be greatly appreciated.

First, NMA established that the FMIA “did not expressly preempt California statute banning slaughter of nonambulatory animals.” The rationale stemmed in part from the interpretation that the “state ban did not require any additional or different inspections than did federal law.” Second, the NMA nonetheless established the substantial likelihood of success on the merits of the claim that the inhumane treatment ban was expressly preempted. This resulted from the distinctions between federal law’s broader measures and use of additional equipment in treating downer animals as opposed to the California statute ban on such practices. At this juncture could NMA rest on its laurels?

To its detriment NMA did not succeed on the merits of its plea because it also failed to demonstrate a critical element in their request for an injunction— irreparable harm. Undermining its plea moreover highlights NMA failing to show in the alternative that the “public interest and balance of hardship favored injunctive relief.” The appellate court therefore vacated the lower court’s preliminary injunction ruling. So far and at this moment of time good news for the party defendants with a few lessons for agricultural law students.

At times law students default to federal law without regard to its relationship to state law. For agricultural law students the case illustrates the nature of federal state hierarchies with the complexities of states attempting to regulate food production. For example, the appellate court in its rationale against the reasoning that states were barred from adding their own regulatory structures declared: . . . .“Hogwash.”

This language wanders into the realm of legal realism adding to the jurisprudence of agricultural law. How? The appellate court’s contextual framework tells us that states “aren’t limited to excluding animals from slaughter on a species-wide basis. What if a state wanted to ban the slaughter of a specific breed of pig not the entire species? Or to allow wild dogs and horses to be slaughter but not domesticated companions?. . . .” Other examples are provided but here the court reasons: “Regulating what kinds of animals may be slaughtered calls for a host of practical, moral and public health judgments that go far beyond those made in the FMIA.” In other words, “. . . .these are the kinds of judgments reserved to the states and nothing in the FMIA requires states to make them on a species-wide basis or not at all. Federal law regulates the meat inspection process; states are free to decide which animals may be turned into meat.”

The case underscores further reasons as to whether to include it in the study of agricultural law but its value reaches into the entangled nature of preliminary injunctive relief with appellate court rulings. The rules in force underscore how equitable constraints can sustain a law. The decision and its contextual framework thus bring to mind how law shapes the contours of agricultural practices. The decision speaks volumes of the future and unknown possibilities for all parties as to whether or not irreparable harm will ultimately be shown at some point in the future. While I am sure there are more theoretical legal lessons one more emerges. Specifically and whether animal rights activists will be able to participate and ultimately influence the nation’s food production systems.

Politics and Race in Agriculture

2010-07-20T10:34:00.006-05:00

About a year ago, I heard a moving speech about bringing down racial barriers, and the point of the speech was that family farmers with financial problems, struggling to keep pace with large commercial agriculture - white, black, hispanic, native american, hmong, male and female - needed to look past race, past gender and work together.

The speech talked honestly about the barriers we all confront, and the speaker spoke of her own struggles to put aside her anger over discrimination. She told a story of her experience over 25 years ago in a very different southwest Georgia. An African American farmer herself, she and her family had experienced horrific discrimination at the hands of white neighbors and USDA officials. Serving as a farm advocate during the farm financial crisis of the 1980's, she was called upon to help a white farmer who she knew felt superior to her. She shared her internal struggle and the path that she took to help him and to reconcile her feelings. The story ended with her current friendship with the farmer and his family, and it merged into an uplifting story of healing and the changing times of race relations in this country.

Telling this story again, this time to an audience that included someone with a tape recorder and an apparent connection to a tea party blogger cost this person, Shirley Sherrod, her position as USDA's Georgia State Director of Rural Development.

Please take a moment to read the CBS news story announcing her resignation.

The New Mandatory EU Organic Label

2010-07-05T14:53:00.002-05:00

As of July 1, new regulations came into effect that require the use of the European organic logo on pre-packaged organic food and beverage products. The European Commission states that the new logo is designed to provide a consumer with “complete confidence” that the goods they purchase are produced in line with EU organic farming regulations.

The logo is made up of 12 stars in the shape of a leaf. According to FOODnavigator.com

[w]here used, the logo must be accompanied by an indication of the place where the agricultural raw materials were farmed, stating that raw materials originate from 'EU Agriculture', 'non-EU Agriculture' or 'EU/non-EU Agriculture'. If all raw materials have been farmed in only one country, the name of this specific country, in or outside the EU, can be indicated instead. National, region, or private labels will be allowed to appear on packaging alongside the common EU logo. Under the EU’s new regulations, products can only be labelled as organic if:
• At least 95 per cent of the product's ingredients of agricultural origin have been organically produced;
• The product complies with the rules of the official inspection scheme;
• The product has come directly from the producer or preparer in a sealed package;
• The product bears the name of the producer, the preparer or vendor and the name or code of the inspection body
• The product does not contain GMOs

The new EU rules also set out conditions for organic aquaculture production of fish, shellfish and seaweed. These specify that biodiversity should be respected, and do not allow the use of induced spawning by artificial hormones.

Antibiotic Use in Livestock Production: New FDA Guidance

2010-06-28T15:58:00.004-05:00

Today, the FDA announced the issuance of its Draft Guidance on The Judicious Use of Medically Important Antimicrobials in Food-Producing Animals. FDA's press release states that this guidance is "intended to help reduce the development of resistance to medically important antimicrobial drugs" and calls for their "judicious [use] in animal agriculture."

The draft guidance summarizes the current research on antimicrobial resistance and concludes that "using medically important antimicrobial drugs for production or growth enhancing purposes (i.e., non-therapeutic or subtherapeutic uses) in food-producing animals is not in the interest of protecting and promoting the public health." The guidance recommends "phasing in measures that would limit medically important antimicrobial drugs to uses in food-producing animals that are considered necessary for assuring animal health and that include veterinary oversight or consultation."

Although some in the livestock industry are likely to criticize the report, the development of antibiotic resistant bacteria is (or should be) of particular concern to those in livestock production, where farmers, farm workers, and meat processors are particularly vulnerable and are already contracting resistant infections.

The Pew Commission on Industrial Animal Production estimates that seventy percent of antibiotics are used in livestock production, most for increased growth production and disease prevention rather than treatment. The World Health Organization and many medical groups have long called for greater regulation to preserve antimicrobials for true public health needs.

While there are multiple causes underlying the development of antibiotic resistance, feeding livestock antibiotics and other antimicrobials at sub-therapeutic levels for growth promotion and to allow greater concentration of production is not a wise use of these critical weapons against disease. The public health risk is far too great.

The Guidance is available online on the FDA's website. Comments are requested. The Federal Register announcement will be published on June 29, 2010.

The Risks of Farming

2010-06-26T12:34:00.003-05:00

I returned to our family farm this week for my annual summer visit. One of the first items on the Minnesota “to do” list was to visit the local pick-your-own fruit farm, Afton Apple for strawberry picking. In a short time, we picked four beautiful boxes of strawberries, and I was again struck by the sweet flavor and tender texture - so different from the ones shipped across country. When picking our berries, I tried to be a responsible picker, carefully getting all of the berries in my assigned row and even picking off and discarding some of the over-ripe berries that would tax future production. I hoped to return to the patch next week for a second picking.

That very night, storms moved through the area. Three inches of rain, some hail, and high winds hit hard and fast.

I called Afton Apple this morning to check their recorded message about the crop. Gone was yesterday’s cheerful message declaring that “strawberry picking is great and the berries are excellent.” The new message announced that “because of the hail and wind, we lost the crop tonight. . . The strawberry season is over.”

A sad reminder of the vulnerability of crops and another reason that farming is a different kind of business.

Challenges to Agricultural Policy: Diet

2010-06-16T09:14:00.008-05:00

Two issues are certain to change American agriculture. There are questions about timing - how fast or how slow policies will change and agriculture will adapt. And, there are questions about how the changes will occur, who will benefit and who will lose. But these two issues - health and energy - are two of the most important challenges to confront our society. And agriculture is right in the middle of each one. This post addresses the first - the issue American health and our diet.

The 2010 Dietary Guidelines Advisory Committee, established jointly by the Secretaries of USDA and HHS was charged with reviewing the current U.S. Dietary Guidelines and recommending updates. The committee's report, 2010 Dietary Guidelines for Americans was released yesterday.

For the first time, the report confronted an American public of whom the majority are overweight or obese and yet under-nourished in several key nutrients. The recommendations could have been taken from a Michael Pollan book -

On average, Americans of all ages consume too few vegetables, fruits, high-fiber whole grains, low-fat milk and milk products, and seafood and they eat too much added sugars, solid fats, refined grains, and sodium. SoFAS (added sugars and solid fats) contribute approximately 35 percent of calories to the American diet.

Here are three of the main recommendations:

• Reduce the incidence and prevalence of overweight and obesity of the US population by reducing overall calorie intake and increasing physical activity.

• Shift food intake patterns to a more plant-based diet that emphasizes vegetables, cooked dry beans and peas, fruits, whole grains, nuts, and seeds. In addition, increase the intake of seafood and fat-free and low-fat milk and milk products and consume only moderate amounts of lean meats, poultry, and eggs.

• Significantly reduce intake of foods containing added sugars and solid fats because these dietary components contribute excess calories and few, if any, nutrients. In addition, reduce sodium intake and lower intake of refined grains, especially refined grains that are coupled with added sugar, solid fat, and sodium.

Compare this to Pollan's advice in In Defense of Food - "Eat food. Not too much. Mostly plants."

The report talks about the importance of all elements of government and society working together to attempt to shift dietary and lifestyle patterns away from our current dangerous path.

I submit that agricultural policy must come on board with this shift. We can no longer ignore the fact that agricultural policies favor the production of foods and food ingredients that are a significant part of the problem. Policies that have encouraged the overproduction of commodity crops such as corn have enabled the development of processed foods and meat products that are cheaper than and easier to acquire than the basic "plant-based foods" that we should be eating. Policies that are focused on the economic interests of those most powerful in the agricultural and food industries without a consideration of the overall food system that is created is part of the problem.

A coordinated strategic plan that includes all sectors of society, including individuals, families, educators, communities, physicians and allied health professionals, public health advocates, policy makers, scientists, and small and large businesses (e.g., farmers, agricultural producers, food scientists, food manufacturers, and food retailers of all kinds), should be engaged in the development and ultimate implementation of a plan to help all Americans eat well, be physically active, and maintain good health and function. It is important that any strategic plan is evidence-informed, action-oriented, and focused on changes in systems in these sectors.

The following recommendations, excerpted from the report should be included as primary goals of our future farm policy.

• For all Americans, especially those with low income, create greater financial incentives to purchase, prepare, and consume vegetables and fruit, whole grains, seafood, fat-free and low-fat milk and milk products, lean meats, and other healthy foods.
• Improve the availability of affordable fresh produce through greater access to grocery stores, produce trucks, and farmers’ markets.
• Increase environmentally sustainable production of vegetables, fruits, and fiber-rich whole grains.
• Ensure household food security through measures that provide access to adequate amounts of foods that are nutritious and safe to eat.

In a recent article, I called for an agricultural policy based on the goal of producing healthy, affordable food in a sustainable manner. A Reconsideration of Agricultural Law: A Call for the Law of Food, Farming, and Sustainability. This report supports that call.

The USDA is seeking comments on the report and a hearing will be held July 8, 2010.

Written comments can be submitted at www.dietaryguidelines.gov or mailed to Carole Davis, Co-Executive Secretary, Dietary Guidelines Advisory Committee, USDA Center for Nutrition Policy and Promotion, Room 1034, Alexandria, VA 22302.

To provide oral testimony at the July 8 public meeting, you must register by going to
www.dietaryguidelines.gov or by calling Crystal Tyler at (202) 314-4701 prior to 5 p.m. EDT on June 30. The meeting will be held in the Jefferson Auditorium in the USDA South Building, 14th Street and Independence Avenue, S.W., on July 8 beginning at 9:00 a.m. and ending not later than 5:00 p.m.

Food Propaganda

2010-06-11T10:39:00.004-05:00

Salon delivers a great review some of the best/worst examples of food being renamed to match current political fashion - 10 tragic moments in food propaganda: From Freedom Fries to Mecca Cola. It offers examples from all political persuasions around the world and is billed as "a slide show of sadly politicized food to embarrass all eaters."

Well worth a look.

North Dakota Anti-Corporate Farming Law Decision

2010-06-05T18:42:00.004-05:00

The North Dakota Supreme Court last month issued a decision related to the state's anti-corporate farming law, which I discussed over at Business Law Prof Blog. I hope no one minds the crosspost, but I thought it might be of some interest.

A Food Desert in the Delta

2010-06-03T17:44:00.006-05:00

Tonight the PBS News Hour continued its reporting on the obesity epidemic, focusing on Mississippi, the state with the "highest rate of childhood obesity in the country [where] 44 percent of kids ages 10 to 17 are obese or overweight."

Tonight's report, In Mississippi, Growing Vegetables in a 'Food Desert' focuses on the delta region, and it considers the problem of "food deserts," areas where it is difficult to purchase healthy foods. Food in a "food desert" can often be found only in a convenience store, gas station or liquor store. That food is often highly processed junk food - high calorie, high fat, sodium filled chips and snacks. Grocery stores with a good selection of produce may be many miles away.

It is particularly ironic to find a food desert in the Delta - known for its prime agricultural soil. However, most of the farms in the Delta grow commodity crops that are shipped out of the region. And, despite the wealth of some of the large landowners, the poverty rate is among the worst in the country.

Enter, the local food movement and the re-education of people in the skills of gardening. A web feature on this last point is provided below.

The full report is now available at the News Hour website.

Agriculture and the American Power Act

2010-05-12T14:52:00.003-05:00

It has been a while since I posted something here, but then, it has been a while since anything new related to energy and agriculture has grabbed my attention. That all changed today with the release of the American Power Act, proposed by Senators John F. Kerry and Joseph I. Lieberman.

The bill has a number of agriculture-related provisions. Here, in my view, are some of the most relevant ones:

Title II, Global Warming Pollution Reduction, section 2001 amends the Clean Air Act: Section 734 provides several opportunities for offset credit programs designed to reduce domestic carbon emissions. Possible project types (to be considered by a newly created Advisory Board) include “agricultural, grassland, and rangeland sequestration and management practices” and “changes in carbon stocks attributed to land use change and forestry activities.”

Section 2001 also amends the Clean Air Act with section 741 requires the Secretary of Agriculture to assess the amount of agricultural land removed from agricultural production as part of landowners’ participation in “afforestation projects” under any offset program created by the Act, including periodic evaluation and updating of the program.

Title VIII of the Clean Air Act would also be amended to require an “annual accounting of sequestration and emissions of greenhouse gases from forests and forest products.”

Section 2214 of the American Power Act, under the “Achieving Fast Mitigation” portion of the bill related to “Black Carbon,” seeks enhanced soil sequestration and, to that end, will provide “grants to up to 60 facilities to conduct research, develop, demonstrate and deploy biochar production technology for the purpose of sequestering carbon.”

Subtitle E of the Act, which provides for regulation of greenhouse gas markets, amends the Commodity Exchange Act (CEA) to regulate greenhouse gas instruments in the same manner as agricultural commodities, under section 2403 (labeled “swap transactions”).

Clean Energy Jobs are promoted in Title IV, Subtitle B, Part III, Agriculture. This section adds a “Carbon conservation program,” which would establish “a program for investing in agriculture and forestry projects to sequester carbon and reduce greenhouse gas emissions” (Section 4152). It was would also create a “Carbon conservation fund” in the Treasury to carry out this part of the bill (Section 4153).

Notwithstanding (and perhaps because of) significant and broad ranging support, my first impression is that this bill says a lot, but isn't likely to do very much. Perhaps I'm being too cynical and a little additional reflection (and deeper analysis) will change that impression.

More from EPA on Chesapeake Strategy

2010-05-12T09:10:00.002-05:00

Today, the EPA released more details on the New Federal Strategy for restoring and protecting the fragile Chesepeake Bay watershed. See prior post on the settlement of lawsuit that helped to bring about this approach. Excerpts, focusing on the agricultural components of the strategy are as follows:

To restore clean water, EPA will implement the Chesapeake total maximum daily load (a pollution diet for the Chesapeake Bay and local waterways), expand regulation of urban and suburban stormwater and concentrated animal feeding operations and increase enforcement activities and funding for state regulatory programs.

The U.S. Department of Agriculture (USDA) will provide farmers and forest owners throughout the bay watershed with the resources to prevent soil erosion and keep nitrogen and phosphorous out of local waterways. USDA will target federal funding to the places where it will have the greatest water quality impact and ensure that agricultural producers’ conservation efforts are accurately reported. USDA will also lead a federal initiative to develop a watershed-wide environmental services market that would allow producers to generate tradable water quality credits in return for installing effective conservation practices.

“A thriving, sustainable agricultural sector is critical to restoration of the Chesapeake Bay,” said USDA Secretary Tom Vilsack. “We will help the bay watershed’s farmers and forest owners put new conservation practices on 4 million acres of agricultural lands so that agriculture can build on the improvements in nutrient and sediment reductions that we have seen over the last 2 years.”

Conserving 2 million acres of natural areas, forests and farmland preserves the environmental, recreational, cultural and economic benefits these lands provide. To protect priority lands, the Department of the Interior will launch a collaborative Chesapeake Treasured Landscape Initiative and expand land conservation by coordinating federal funding and providing community assistance. Interior will also develop a plan for increasing public access to the bay and its rivers.

EPA Announces Settlement of Chesapeake Bay Lawsuit

2010-05-12T07:35:00.002-05:00

From the EPA press release:

The U.S. Environmental Protection Agency announced today that it reached settlement with the Chesapeake Bay Foundation, four former Maryland, Virginia and Washington,D.C. elected officials, and organizations representing watermen and sports fishermen in resolving a lawsuit filed in January 2009 claiming that EPA had failed to take adequate measures to protect and restore the Chesapeake Bay. The lawsuit, Fowler v. EPA, is pending in federal district court for the District of Columbia.

The settlement agreement, negotiated with groups and individuals with a long history of advocating protection and restoration of the bay, tracks much of the comprehensive suite of strong regulatory and other actions that EPA has initiated or pledged to take under the Obama administration to restore water quality in the Chesapeake Bay and its tributaries. These actions include establishing the stringent Chesapeake Bay total maximum daily load (TMDL), putting in place an effective implementation framework, expanding its review of Chesapeake Bay watershed permits, and initiating rulemaking for new regulations for concentrated animal feeding operations and urban and suburban stormwater. The agreement also includes a commitment to establish a publicly accessible tracking and accounting system to monitor progress in reducing pollution through the TMDL and two-year milestones.

* * *

Cud

2010-05-09T13:00:00.001-05:00

From southern Georgia, the story of White Oak Pastures.

CUD from Joe York on Vimeo.

Study: Growing More Veggies Could Profit Midwest

2010-05-07T20:09:00.005-05:00

An AP article by Michael J. Crumb, Study: Growing More Veggies Could Profit Midwest, provides a persuasive rebuttal to the complaints of the Republican Senators who recently criticized the USDA Know Your Farmer, Know Your Food program. These complaints were discussed in a previous post, Senators Challenge Know Your Farmer Program.

An Iowa State University study considered the impact of farmers in six Midwestern states (Illinois, Indiana, Iowa, Michigan, Minnesota and Wisconsin) raising 28 crops in quantities large enough to meet local demand. It showed that this level of regional production would spur "$882 million in sales, more than 9,300 jobs and about $395 million in labor income." And, the equivalent of "[o]ne of Iowa's 99 counties could meet the demand for all six states," according to Rich Pirog, associate director for the Leopold Center for Sustainable Agriculture at Iowa State.

It makes sense to Larry Alsum, who owns Alsum Farms and Produce Inc. in Friesland, Wis. Alsum grows five varieties of potatoes and handles wholesale distribution for farmers who grow a wide variety of produce, including cabbage, sweet corn, squash, watermelons and cucumbers.

"I think it's a win-win scenario, both in opportunities for farmers in the Midwest and reduced cost of transportation that you have in bringing in California produce," Alsum said. "We also see this as an opportunity for people to become more aware of where their food is coming from."

The article also notes, however, that significant impediments exist to bringing about this type of change to a midwestern regional food system.

David Swenson, the Iowa State economist who conducted the research, said it would be a significant shift in how the nation grows food, given that the Midwest ceded production of fruits and vegetables to other parts of the country long ago.

The advent of commodity payment programs in the 1930s, the development of refrigerated trucks and the interstate highway system, and a hodge-podge of other policies encouraged farmers to grow crops where it could be done most efficiently.

The question of efficiency should be reconsidered acknowledging today's recognition of water subsidies, transportation costs, and loss of quality. Those factors seem to point to regional food systems - as envisioned by Know Your Farmer, Know Your Food.

Food, Inc. -- A Nebraska Point of View

2010-05-07T10:25:00.004-05:00

Food, Inc. -- A Nebraska Point of View

Related to the previous post, there was an uproar from some producer groups in Nebraska as well. So, in response, our educational television station aired a Nebraska producer's response. It can be accessed at the link above.

The producers assembled for the response panel are interesting. Perhaps the most interesting thing about the exercise for me is trying to figure out whether these producers are typical or representative of the "industry." One runs a 5,000 head feeding operation and has gotten many awards for her production practices. Another runs a diversified crop operation that includes some organic production. The last is a dairy producer marketing as a local producer in eastern Nebraska (and I personally buy lots of the products their company produces).

While some of the panelists were non-responsive on some of the questions asked, the general theme of their position was not altogether hostile to the views presented in Food, Inc. Indeed, I tend to think that there is much that producers and Pollan agree with. Intellectual property rights in seed, the enforcement thereof, immigration issues and packing houses, and producing what consumers want are all areas of common ground. Indeed, after watching the response, I was left wondering what, precisely, producers find objectionable about Pollan's work.

Food Inc. and Commentary

2010-05-06T10:48:00.017-05:00

Many public television stations aired the documentary, Food Inc. over the course of the last few weeks. The film has spawned a variety of conversations about our food system. One particularly informative debate was broadcast on a Special Edition of An Iowa Journal. Recognizing the importance of agriculture to the state of Iowa, the episode challenged some of the criticisms of our food system expressed in Food Inc.

Although it could be argued that the host should have been more neutral rather than taking on a defense of Iowa agriculture, there was important information provided. Two agricultural experts were invited to reflect on the film. Agricultural law scholar Neil Hamilton, Dwight D. Opperman chair of law at Drake University and Director of the Drake Agricultural Law Center and Craig Lang, president of the Iowa Farm Bureau Federation offered commentary, often providing different perspectives for plotting the future of a successful and sustainable U.S. agriculture.

This special edition of Iowa Journal provides a helpful forum for a discussion of the myriad of agricultural and food law issues presented in Food Inc. It is available for online viewing on the Iowa Public Television website.