Category: Ag Law

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.

---

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

The Food and Drug Administration (“FDA”) is responsible for the labeling of dairy products, among other things.  In part, it regulates labels through the creation of “standards of identity,” which outline how specific words may be used.  FDA is given authority in the Federal Food Drug and Cosmetic Act (“FFDCA”) to enforce those standards.  Under the FFDCA, a food is misbranded if it is labeled using a word for which a standard of identity has been established, but the food does not match the requirements.  In these situations, FDA has a range of options from warning letters or a seizure of the mislabeled product up to fines or even criminal prosecution.

In 2018, FDA asked for comments about the labeling of plant-based products with names of dairy foods.  They wanted to learn more about how consumers use them and how they understand terms such as “milk” or “yogurt” when included in the product names.    

Since that time, FDA changed the standard of identity for “yogurt.”  As of this July, “yogurt” is limited to the food produced by culturing at least one “basic dairy ingredient” and any “optional dairy ingredients” along with a “characterizing bacterial culture.”  21 CFR § 131.200.  Based on that definition,  non-dairy alternatives will be excluded from using the word “yogurt.”  

The recent change to the standard for yogurt is in contrast to the standard of identity for milk, which has been in place for decades.  “Milk” is “the lacteal secretion, practically free from colostrum, obtained by the complete milking of one or more healthy cows.” 21 CFR § 131.110.  Based on that definition standard, non-dairy substitutes should not be able to use the term. However, FDA has discretion to decide what standards to focus its enforcement resources on, and so far, the agency has not chosen to strictly enforce the standard of identity for milk. As a result, non-dairy substitutes made of almonds, soy, oats, or rice claim the “milk” label alongside the dairy variety. 

FDA intends to submit a draft guidance for industry regarding the labeling of plant-based milk alternatives by the end of June 2022.  The guidance, along with any changes to the regulatory standard of identity, will be important in determining whether plant-based products may continue use the term “milk.”  Just as important for dairy producers, though, will be whether the FDA intends to enforce the standards as written, or allow continued expansion of the terms.   

Rumley, Beth. “What’s in A Name? Standards of Identity for “Milk” & “Yogurt.” Southern Ag Today 1(46.5). November 12, 2021. Permalink