Author: Rusty Rumley

The U.S. Court of Appeals  for the Fourth Circuit (“4^th Circuit”) recently decided InterProfession Du Gruyere vs. U.S. Dairy Export Council, which considered whether a geographic indication was essential to the use of the label “gruyère.”  The 4^th Circuit decided that it was not, finding that using that term on labels in the United States does not depend on where the cheese was produced (often referred to as a geographical indication), but merely on whether it meets Food and Drug Administration’s (FDA) standard of identity.

FDA is responsible for the labeling of dairy products, among other things.  It partially regulates labels by creating “standards of identity,” outlining how specific words may be used.  FDA has created a standard of identity for gruyère cheese, defining it by the process needed to create the cheese, not by the location where the cheese is made.  

In Europe, however, the label can only be used on cheese produced in the Alps region, near the Swiss/French border.  As a result, a group of Swiss and French cheese producers brought the lawsuit at issue today.  Ultimately, the court decided that FDA- and ultimately American consumers- saw gruyère as a type of cheese (similar to a label of “mozzarella” or “cheddar”) rather than one produced in a specific place.  

Geographical indications are used worldwide, helping protect producers’ market share in specific regions.  Whether you’re interested in “Idaho Potatoes” or “Parmigiano-Reggiano,” a part of the label’s meaning includes an indication of the area where the product originated.  This case illustrates a trend that international food and beverage manufacturers are becoming more proactive in protecting names with a regional geographical significance.  This is an important international trade issue because we expect similar litigation from other affected producers. On a larger scale, the European Union focuses on including geographical indicators as a critical part of trade deals and we expect this trend to continue.  To learn more about geographical indications and international trade, click here for a National Agricultural Law Center webinar.

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Rumley, Rusty. “A Cheese by Any Other Name.” Southern Ag Today 3(12.5). March 24, 2023. Permalink

Questions regarding fence disputes are a regular inquiry at the National Agricultural Law Center.  For such a common issue, one would assume that this area of the law is relatively straightforward, but that is not always the case!   All fifty states have passed laws relating to fences and livestock running at large, but there are significant differences between the states and sometimes even within the same state.  For example, Texas is an “open range” state which means that livestock owners are not required to fence in their livestock; however, counties can, and have, adopted local stock laws that effectively close the range in those counties.  It can be very difficult to determine whether a Texas county has adopted a local stock law closing the open range in that county because older records are often hard to find and may not be found online. 

The confusing nature of fence laws causes numerous problems across the country, but a few general rules apply to most of the southern states.  If you have livestock, you typically have a duty to keep them on your property (except for some counties in Texas.)  What constitutes a legal fence is typically found in your state law, but the fence must be sufficient to keep your livestock on your own property.  The last area where significant questions arise covers maintaining and paying for the boundary fences between neighbors.  Once again, this area of the law is highly dependent on where your property is located.  It is dependent on the state, but some states have antiquated fence laws which further complicates the problem.  To read your state fence law, click here.  

If you do have a fence issue with your neighbor, the cheapest way for both parties to resolve the dispute is to come to an agreement that everyone can accept.  Fences are not cheap, but lawsuits will typically cost more in the long run.  

Source – the National Agricultural Law Center

Rumley, Rusty. “Fence Laws for Rural Landowners“. Southern Ag Today 2(24.5). June 10, 2022. Permalink

Private companies are approaching farmers and forest landowners about entering into carbon contracts, generating a lot of interest.  Carbon contracts are voluntary agreements that landowners can enter into promising to use certain practices such as limited/no-till farming, planting cover crops, or forego the harvesting of mature timber and then paying the farmer for sequestered carbon.  Contracts are difficult to come by and typically contain confidentiality clauses; however, there are some common elements that landowners should be aware of before signing.

• The length of the contracts can vary substantially.  I have read contracts that range from one year to ten years in length, and some may be longer.  One contract required the storage of carbon in the field for the next one hundred years.  Ensure that you can comply with the contract for the entire life of the agreement.
• To measure the carbon sequestered, the landowner often has to grant the other party access to the property to take those measurements. 
• Payments, and payment mechanisms, can vary substantially. For example, some contracts pay for certain practices, such $3 per acre for no-till farming, while other contracts pay based on the tons of carbon sequestered, typically around $15-$20 per ton, but this can vary as well.
• Read the definitions section carefully, as words may not mean what you think they mean.
• Many contracts pay only for the carbon sequestered and allow the other party to sell off other environmental benefits, such as water quality credits. Unfortunately, some of the contracts do not have a mechanism to enable the landowner to realize any gain from the sale of other environmental benefits, so make sure that your contract allows you to profit from all potential environmental benefits.

If approached with a carbon contract, read it carefully, make sure that it makes financial sense to adopt the practices you will be required to follow, and consult with a knowledgeable attorney before signing.

Source – Considering Carbon Series from the National Agricultural Law Center

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Rumley, Rusty. “Carbon Contracts for Farmers.” Southern Ag Today 1(43.5). October 22, 2021. Permalink