Category: Ag Law

On March 11, 2022, the United States Court of Appeals for the Tenth Circuit dismissed a case holding that beef products labeled as “Product of the U.S.A” are not misleading. Thornton v. Tyson Foods, Inc., — F.4^th —, No. 20-cv-2124, 2022 WL 727628 (10th Cir. 2022). Robin Thornton, one of the plaintiffs, is a beef consumer and claimed that “Product of the U.S.A.” labels deceived her into thinking the labeled beef originated from cattle born, raised, and slaughtered in the United States. The other plaintiff, Michael Lucero, is a beef producer who claimed he was paid less for his domestic cattle as a result of Defendant’s labeling practices. Both plaintiffs claimed that “Product of the U.S.A.” labels are misleading when the beef is derived from cattle either imported live or imported post-slaughter. Both plaintiffs brought their claims under New Mexico state law, not under the Federal Meat Inspection Act (FMIA). However, the main issue in the case was whether the FMIA preempts such state law claims.

This case dealt with two provisions of the FMIA. Under the first provision, meat labels must not be “false or misleading” and must be “approved by the Secretary” of Agriculture. 21 U.S.C. § 607(d). Secondly, the FMIA prohibits states from imposing any additional requirements which are “in addition to, or different than” the requirements imposed by the FMIA. 21 U.S.C. § 678.

The court reasoned that there is a presumption that labels are not false or misleading if the Secretary of Agriculture, through the Food Safety and Inspection Service (FSIS), approves the labels. Because FSIS approved Defendant’s labels, the court found that the labels were not misleading. Therefore, the court held that the plaintiffs failed to state a false advertising claim.

Additionally, the court found that the plaintiffs’ state law claims are expressly preempted by the FMIA. The court explained that if a federal statute expressly preempts state laws, then the corresponding state law must be interpreted and applied the same way as the federal law. Therefore, the court held that the FMIA expressly preempts state laws, and therefore, New Mexico state law must be interpreted and applied exactly as the FMIA.  

However, not all of the Circuit Court judges who heard this case agreed. One dissenting judge disagreed with the majority opinion, and argued that just because FSIS approved a label does not mean that the label is not false or misleading. The dissent focused on the language of the FMIA, which states meat labels must “not [be] false or misleading and … [must be] approved by the Secretary.” Thornton v. Tyson, (quoting 21 U.S.C. § 607(d)). The dissent argued that the use of “and” to connect these two requirements suggests the FMIA “contemplates the existence of—and indeed proscribes—labels that are both misleading and approved by the Secretary.”   

If the plaintiffs choose to, they can appeal the 10th Circuit’s opinion to the Supreme Court of the United States. However, the Supreme Court only hears a fraction of the cases appealed to them. Also, regarding “Product of the U.S.A” labeling, FSIS currently has an information collection request awaiting approval from the Office of Management and Budget (OMB). FSIS is seeking approval to conduct a “web-based survey/experiment to help gauge consumer awareness and understanding of current ‘Product of USA’ labeling claims on meat (beef and pork) products and consumer willingness to pay”.

Caracciolo, Jana. “The 10th Circuit Dismisses “Product of the U.S.A.” Mislabeling Claims“. Southern Ag Today 2(14.5). April 1, 2022. Permalink

Congress enacted the Agricultural Foreign Investment Disclosure Act of 1978 (AFIDA) to establish a nationwide scheme for collecting information on foreign investments in U.S. agricultural land. Under AFIDA, certain foreign investors are required to disclose their acquisitions and holdings in farm, ranch, and forestland to the United States Department of Agriculture (USDA). This data collected by USDA is compiled into an annual report to demonstrate the effect foreign holdings have on family farms and rural communities.

Recently, USDA published its latest AFIDA report, which provides data on foreign landholdings through December 31, 2020. According to the report, foreign persons hold an interest in almost 37.6 million acres of private U.S. agricultural land, an increase of 2.4 million acres from 2019. Since 2015, foreign investments have increased an average of 2.2 million acres per year.

The increased agricultural landholdings of foreign investors has become a growing concern for a few state legislatures. Over the past year, states such as Missouri, Indiana, Texas, and Alabama have considered legislation that would restrict foreign investments and ownership of agricultural land within the boundaries of their state. This is not a new concept, however, as ownership of agricultural land by foreign persons or entities has been an issue that traces to the origins of the U.S.

Today, approximately thirteen states specifically forbid or limit nonresident aliens foreign business and corporations, and foreign governments form acquiring or owning an interest in agricultural land within their state. However, state laws vary widely, and some states restrict only certain purchases while allowing for at least some level of foreign ownership of agricultural land. In response to the recently reported AFIDA data, more states may begin considering legislation aimed at limiting or restricting foreign investments in their states’ agricultural land.

Citations:

U.S. Department of Agriculture, Farm Service Agency. Foreign Holdings of U.S. Agricultural Land. Accessed February 10, 2022. https://www.fsa.usda.gov/Assets/USDA-FSA-Public/usdafiles/EPAS/PDF/2020_afida_annual_report.pdf.

Brown, Micha. “Foreign Ownership of Agricultural Land in the United States“. Southern Ag Today 2(8.5). February 18, 2022. Permalink

goal of ensuring that all Americans have access to affordable, reliable, high-speed internet. The Bipartisan Infrastructure Law plans to invest $65 billion to help with this effort, with funding falling into seven major program areas. These areas include: (1) the Broadband Equity, Access, and Deployment Program ($42.45 billion), (2) the Affordable Connectivity Program ($14.2 billion); (3) Digital Equity Planning, Capacity and Competitive Grants ($2.75 billion); (4) the Tribal Broadband Connectivity Program ($2 billion), (5) Rural Broadband Programs at the Department of Agriculture ($2 billion); (6) the Middle Mile Broadband Infrastructure Program ($1 billion); and (7) Private Activity Bonds ($600 million).

Access to affordable, reliable, high-speed internet is a need expressed by socially disadvantaged farmers and ranchers (SDFR) in a research study conducted by Tougaloo College under the guidance of the SDFR Policy Research Center (Policy Center) at Alcorn State University.  The research study sought to identify factors that hindered SDFR’s access to technology and the use of technology in the poverty-stricken counties located in Mississippi. After surveying respondents in 46 of the 82 counties in Mississippi, the study found that the internet was the most frequently referenced source for information about new technology.

According to USDA’s report, “Farm Computer Usage and Ownership”, 25% of farms in the United States have no access to the internet. As agricultural technology continues to change, become smarter and, integrate within agriculture tools that farmers utilize daily, they will likely require use of the internet and data to expand their knowledge of tools that may create greater farm productivity.  With the expansion of broadband access to communities like those of the farmers surveyed, farmers will be able to learn more about agricultural technology.

Love, April S. . “The Bipartisan Infrastructure Law Could Offer New Information to SDFRs in Rural America“. Southern Ag Today 2(7.5). February 11, 2022. Permalink

As the New Year begins, tax documents are spread across kitchen tables, pulled from basement boxes, amassed in spreadsheets, and stuffed in mailboxes to CPAs across America. As the saying goes, there are two certainties in life: death and taxes. One is dreaded and the other is often neglected. As a global pandemic extends another season and reminders of our health and longevity flash across headlines, this is your friendly reminder that while you’re digging up those tax documents, revisit your estate plan. An uncomfortable truth is that if you neglect to do your estate planning, the state will do it for you. A comprehensive estate plan includes succession planning, a very different beast from estate planning. A succession plan sets forth how your enterprise (i.e. farm) will continue operating after you are no longer running the business. However, doing one without the other is like rowing a boat without an oar. 

To get the most out of your estate planning effort, do these things every year: 

1. Review your executor(s), beneficiaries, trustee(s), guardian(s), personal representative(s), and other appointed roles under your estate planning documents; 
2. Review your assets, accounts, life insurance policies, and charitable giving wishes; 
3. Discuss with your CPA the benefits and limitations on gifting assets during your lifetime; 
4. Ensure that your estate plan and succession plan compliment, and do not conflict, with each other; 
5. Ensure that your durable power of attorney and living will are consistent with your wishes. 

Some of the most voluminous estate plans may fail to adequately provide for a testator’s desires if they aren’t routinely revisited and updated. Reconsider a plan that leaves your estate planning to others, such as your children or other heirs. Your assets are your responsibility. Leaving difficult decisions to your heirs can leave them vulnerable to discourse and overwhelmed, particularly when they are aggrieved. A relevant, thorough, and thoughtful estate plan may be the best gift you could ever leave behind.

Friedel, Jennifer. “Revisit Your Estate Plan“. Southern Ag Today 2(3.5). January 14, 2022. Permalink

Lawsuits involving plaintiffs who have alleged that exposure to glyphosate caused their non-Hodgkin’s lymphoma continue to make their way through the court system. Over the past year, the issue of preemption has become a focus of these lawsuits. Preemption occurs when a “higher” level of government reduces the authority of a “lower” level of government and may occur when a federal law and a state law conflict. In glyphosate lawsuits, the defendant Bayer has argued that the Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”), the federal law governing pesticide regulation, preempts the state law failure-to-warn claims raised by most glyphosate plaintiffs.

FIFRA regulates the labeling of pesticides. A pesticide may not be distributed or sold in the United States until it has a label approved under FIFRA. Additionally, states may not impose any labeling or packaging requirements that are “in addition to or different from” those required by FIFRA. Plaintiffs bringing state law failure-to-warn claims are arguing that had the label included adequate warnings about the risks of glyphosate, then their injuries would not have occurred. So far, juries have found in favor of plaintiffs on these claims.

Bayer has appealed these jury findings, arguing that FIFRA’s prohibition on states imposing additional or different pesticide labeling requirements preempts failure-to-warn claims. If the state law claims are preempted by FIFRA, then Bayer argues that those claims should never have been raised in court.

Courts have split on the issue. A state court in California dismissed a plaintiff’s failure-to-warm claims, finding that the claims were preempted because the approved label for glyphosate does not require a carcinogen warning. However, both a California state appellate court and the Ninth Circuit have ruled the opposite. Those courts found that the failure-to-warn claims were not preempted because FIFRA prohibits pesticides from being “misbranded.” A pesticide is misbranded if its label does not contain a warning which may be necessary to protect human health. The Ninth Circuit concluded that FIFRA’s prohibition on misbranding was broader than the state law failure-to-warn and that such claims were therefore not preempted.

Bayer has appealed the Ninth Circuit’s decision to the Supreme Court. If the Court takes up the case, a ruling could impact not just glyphosate lawsuits, but any pesticide lawsuit where a plaintiff raises a state law failure-to-warn claim.

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Rollins, Brigit. “What is Preemption and How Might it Affect Glyphosate Litigation.” Southern Ag Today 1(51.5). December 17, 2021. Permalink