Research Articles
Our research publications are a vital part of the Center's mission to conduct objective, timely, and non-partisan research into agricultural and food law issues and to provide that scholarship to the agricultural and food law communities. Information provided in these articles and presentations is not intended to be taken as legal advice nor as a substitute for qualified legal counsel.
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Index of Research Publications
Administrative Law
Agritourism
PowerPoint Presentation (Mirus)
Alternative Dispute Resolution (ADR)
Animal Feeding Operations
Animal Law
Animal Identification
(Pendergrass)
(Pendergrass)
Bankruptcy
Property of the Bankruptcy Estate (Schneider)
Post-Till v. SCS Credit Corp. (Pittman)
Biotechnology
and Coexistence Measures (Peck)
(Redick and Adrian)
Varieties: A First Step Towards Coexistence (Endres)
Business Organizations/Cooperatives
Commercial Transactions
Contracts and Leases
Corporate Farming Laws
Industries: Taking Stock of the Road Ahead (Pittman)
Crop Insurance
Environmental Law
Estate Planning and Taxation
Farm Programs
A Practitioner's View (O'Brien)
Finance and Credit
Food Labeling
Food Safety
PowerPoint Presentation (Roberts)
Information, Incentives, and Penalties (Roberts)
to Regulation of the Beef Industry (Houston)
to Take Photographs Under the Federal Food, Drug, and Cosmetic Act (Fortin)
International Trade
or Are "The Times They Are A-Changin'"? (Roberts)
A Practitioner's View (O'Brien)
Labor
(Springsteen)
Landowner Liability
Land Use
Legal Research
Livestock Marketing
Industries: Taking Stock of the Road Ahead (Pittman)
Packers and Stockyards Act (Lauck)
Local Food Systems
Food Movement (Coit)
Organic and Sustainable Agriculture
Food Industry Professionals (Jillian)
Perishable Agricultural Commodities
Pesticides
Renewable Energy
Recent Developments (Foy)
Rural Development
Secured Transactions
Urbanization and Agriculture
Meaning in Old Definitions (Branan)
Water Law
States' Right-To-Farm Statutes
Elizabeth Springsteem
Staff Attorney
National Agricultural Law Center
All fifty states have enacted right-to-farm laws that seek to protect qualifying farmers and ranchers from nuisance lawsuits filed by individuals who move into a rural area where normal farming operations exist, and who later use nuisance actions to attempt to stop those ongoing operations. While the overall statutory schemes might be similar, each state has noticeably different content in the specific details of the laws. States' Right-to-Farm Statutes provides the statutory text of each state's laws, along with the date of its possible expiration. The primary aim of this compilation is to provide the researcher with easy and free access to a state's statutory language by simply clicking on the state's image in the map provided. Access to the state legislative site where the official language of the statute is maintained is also provided. Download this compilation.
Posted: June 5, 2009
State and Federal Climate Change Statutes
L. Paul Goeringer
Research Associate
National Agricultural Law Center
Global climate change is an area many state governments and the federal government are working towards combating. Currently thirty-seven states and the federal government have specific statutes to monitor and counter the effects of global climate change. These statutes range from greenhouse gas monitoring to the creation of regional carbon markets to carbon sequestration programs. This compilation is provided as a researcher-friendly resource guide for examining how states and federal government are combating global climate change. Download this compilation.
Posted: May 14, 2009
Risk Management and Legal Liability: Issues to Consider - PowerPoint Presentation
Marne Coit
Staff Attorney
National Agricultural Law Center
This presentation was given in January, 2009 at the Oklahoma and Arkansas Horticulture Industries Show and introduces risk management issues that producers should consider, as well as potential solutions to many of those issues. Special attention is given to business organizations, estate planning, contracts, food safety, and liability issues. Download this presentation.
Posted: May 13, 2009
Agricultural Contracts and the Leasing of Land - PowerPoint Presentation
Rusty Rumley
Staff Attorney
National Agricultural Law Center
This presentation was given on March 10, 2009 to the Arkansas Women in Agriculture Annual Conference and introduces contracts and leases from a basic law perspective, as well as an agriculture-specific viewpoint, with special attention given to issues that should be considered when drafting a contract or lease to prevent future problems. Download this presentation.
Posted: May 13, 2009
Agricultural Labor: An Employer's Obligations and Responsibilities - PowerPoint Presentation
Elizabeth R. Springsteen
Staff Attorney
National Agricultural Law Center
This is a presentation that was given to the Arkansas Women in Agriculture Annual Conference on March 10, 2009 and introduces agricultural employer liability for actions that employees commit, as well as outlining the laws that employers are responsible for following, including the Fair Labor Standards Act, the Migrant and Seasonal Workers Protection Act, the Immigration Reform and Control Act, OSHA, and tax (IRS) responsibilities. Tips to help employers of agricultural labor reduce liability are also presented. Download this presentation.
Posted: May 13, 2009
Food Safety and Vendor Liability - PowerPoint Presentation
Marne Coit
Staff Attorney
National Agricultural Law Center
This presentation was given at the Farmers' Markets as a Community Collaboration Conference on February 6, 2009 and introduces issues relevant to food vendors, especially those issues involving food safety. It introduces steps that vendors can take to limit liability, and briefly touches upon the different laws governing food safety on the federal and state level. A section on raw milk, a current issue in food safety and liability, is also discussed. Download this presentation.
Posted: May 13, 2009
Legal Risk Management: Protecting Your Farm and Family - PowerPoint Presentation
Shannon Mirus
Staff Attorney
National Agricultural Law Center
This February 21, 2009 presentation was given to participants in Arkansas' Annie's Project, a multi-state educational program designed to empower farm women to be better business partners through networks. Risk management issues that producers should consider, as well as potential solutions to many of these issues are introduced, with special attention given to negligence and premise liability, the use of business organizations as protection for assets, and issues involved in forming and enforcing contracts. Download this presentation.
Posted: May 13, 2009
The Nature of Agritourism: Legal Risk Management for Agritourism Operators - PowerPoint Presentation
Shannon Mirus
Staff Attorney
National Agricultural Law Center
This presentation was given on February 10, 2009 to participants in the "Nature of Agritourism" conference and introduces risk management issues that individuals involved or interested in agritourism should consider. Special attention is given to negligence and premise liability, the use of business organizations as protection for assets, and Arkansas' recreational use statute. Download this presentation.
Posted: May 13, 2009
Environmental Law: Federal Laws That Affect Agriculture - PowerPoint Presentation
Elizabeth R. Springsteen
Staff Attorney
National Agricultural Law Center
This presentation was given on April 23, 2009 as a guest lecture to undergraduate students enrolled in the Agricultural Law course offered by the University of Arkansas Dale Bumpers College of Agricultural, Food and Life Sciences. Environmental laws that are important to individuals involved in agriculture are introduced and briefly outlined, including Clean Water Act, Clean Air Act, FIFRA, Endangered Species Act and CERCLA, as well as several conservation programs. Download this presentation.
Posted: May 13, 2009
Contracts in Local Food Sales, U.S. Virgin Islands - PowerPoint Presentation
Marne Coit
Staff Attorney
National Agricultural Law Center
This PowerPoint is a May, 2008 presentation for a project titled "Trade, Tenure, and Tourism in the U.S. Virgin Islands: Understanding the Policy Framework that Will Increase Sustainable Agriculture in the U.S. Virgin Islands." Important issues for producers considering contracting their goods, as well as for the buyers who are considering contracting to purchase locally produced goods, are introduced, as well as basic contract principles, applicable laws, and terms to consider when negotiating and drafting contracts in local food sales. Download this presentation.
Posted: May 13, 2009
States' Biofuels Statutory Citations
Shannon Mirus
Staff Attorney
and
Paul Goeringer
Research Associate
National Agricultural Law Center
Each state in the United States has enacted statutes relating to biofuels. These statutes vary from tax incentives for biofuel production to labeling of biofuel for resale to the very definition of a biofuel. This compilation of state statutory citations focuses predominantly on biofuels laws in effect January 1, 1970 through December 31, 2007. In some instances, regulations have been included in the compilation due to their significance. This compilation is intended to serve as a researcher-friendly inventory of state laws by providing the formal title of relevant legislation, the standard legal citation for each statute and a brief description of the law. Some statutes and regulation listed do not specifically relate to biofuels but are included because of their complementary relationship to the evolution of biofuels law in the state.
Download this article.
Posted: April 28, 2009.
Biofuels Statutory Citations: United States Federal Laws
Shannon Mirus
Staff Attorney
National Agricultural Law Center
This compilation of federal statutory citations focuses predominantly on biofuels laws in effect January 1, 1970 through December 31, 2007. In some instances, regulations have been included in the compilation due to their significance. This compilation is intended to serve as a researcher-friendly inventory of federal laws by providing the formal title of relevant legislation, the standard legal citation for each statute and a brief description of the law. Some statutes and regulations listed, such as the Trans-Alaska Pipeline Authorization Act, do not specifically relate to biofuels but are included because of their complementary relationship to the evolution of biofuels law in the U.S.
Download this article.
Posted: April 28, 2009.
European Union Food Law Update - IV
Emilie H. Leibovitch
Law Office of Emilie H. Leibovitch
Brussels, Belgium
This European Union Food Law Update addresses significant changes in European Union (EU) food law that occurred between 2006 and early 2008. The update is different from previous ones, as it is organized by the subject areas addressed by the developments. The published regulations, proposals, cases, and other relevant news are thus incorporated under their corresponding topic headings.
Download this article.
Posted: April 9, 2009.
State Listings: Water Law Offices
L. Paul Goeringer
and
Angela Boyd
Research Associates
National Agricultural Law Center
This publication provides a state-by-state listing of the agencies responsible for water resources and environmental quality. Click on the hyperlinked agency name to be transferred to the appropriate agency site. Download this article.
Posted: March 25, 2009.
Business Organizations Forms and Filling Information
Rusty Rumley
Research Associates
National Agricultural Law Center
This publication provides a state-by-state listing of links to information necessary to file and/or create a business organization, along with the forms necessary to do so. If an online filing system is available, a link has been provided to it; if online filing is not available, the state will often provide downloadable forms. Download this article.
Posted: March 10, 2009.
U.C.C. Forms and Filling Information
Elizabeth Springsteen
Staff Attorney
National Agricultural Law Center
This publication provides a state-by-state listing of links to information necessary to file a UCC filing statement and to search the filings, along with the forms necessary to do so. If an online filing system is available, a link has been provided to it. Download this article.
Posted: March 5, 2009.
Updated Statutory Agricultural Lien Charts
Elizabeth Springsteen
Staff Attorney
and
Jennifer Fiser
Research Associate
National Agricultural Law Center
State statutory liens on agricultural products, equipment and production inputs are nonconsensual interests. The liens arise by operation of law, without the consent of the lien debtor, when the specific requirements of the statutes creating the lien are met. These liens may be scattered throughout a state's code. Moreover, statutory provisions as to filing and priority of these liens may vary greatly among the states, and even within a single state. These Statutory Agricultural Lien Charts, originally published in 1993 and thoroughly reviewed and updated in 2009, compile and tabulate the main provisions of statutory agricultural liens in all fifty states. Download this article.
Posted: March 4, 2009.
States' Alternative Dispute Resolution (ADR) Statutes
Rusty W. Rumley
Research Associate
National Agricultural Law Center
All fifty states have enacted statutes and administrative code provisions that create an alternative to traditional litigation. While many states have adopted some version of the Uniform Arbitration Act, the Revised Uniform Arbitration Act, or the Uniform Mediation Act, there are also many laws and regulations that create or mandate various forms of dispute resolution unique or particular to the specific state in which it was enacted. This publication provides the statutory text of each state's ADR statutes and administrative code provisions, along with the date to which it is current. Download this article.
Posted: March 4, 2009.
Jumping on the Next Bandwagon: An Overview of the Policy and Legal Aspects of the Local Food Movement
Marne Coit
Staff Attorney
National Agricultural Law Center
This article is an exploration of this new and growing local food movement. It is not a cohesive movement, nor is it one that is organized by a particular group. Rather, it is a grassroots movement comprised of people who are interested, for various reasons, in obtaining food grown or produced where they live or in producing this food themselves. The purpose of this article is to explore what the local food movement is, why consumers are interested in basing their food purchasing choices on where their food originates, current and future regulation of local food, and where this movement may be headed in the future. Download this article.
Posted: February 19, 2009.
Secured Lending in the Produce Industry: What Every Bank Should Know
Jason R. Klinowski
Senior Associate
Keaton & Associates, P.C.
One of the most misunderstood and hotly contested areas of litigation under the Perishable Agricultural Commodities Act (the "PACA") involves balancing the rights of a secured lender against an unpaid PACA trust beneficiary. A significant contributing factor to the misunderstandings appurtenant to such litigation is the shortage of controlling case law. In an effort to guide litigants through such a dispute, this article provides an explanation of the PACA trust and its limits. Further, this article will introduce and analyze the key decisions addressing the rights of secured lenders and unpaid PACA trust beneficiaries. Download this article.
Posted: January 23, 2009.
International Legal Issues Concerning Animal Cloning and Nanotechnology -- More of the Same or Are "The Times
They Are A-Changin'"?
Michael T. Roberts
Attorney at Law
In the global food system, emerging technologies such as use of growth-promotion hormones for cattle, genetic modification for plants and animals and, in more recent times, animal cloning and nanotechnology spark methods of production that are both novel and engender controversy. These technologies spawn debate over legal, ethical, social, moral, and religious issues. The divergent responses to these issues that sharply divide the worlds trading partners have mushroomed into widely-followed, protracted disputes at the World Trade Organization (WTO). This article outlines the international law framework that will deal with these issues and will explain the factual and legal backdrop in the two food-production cases before the WTO that have created sharp divisions between the United States and Europe and agitated the world food community for years: EC Measures Concerning Meat and Meat Products (Hormone Beef) and European Communities-Measures Affecting the Approval and Marketing of Biotech Products (Biotech Products). This article also briefly summarizes the emerging technologies used in the production of food product, animal cloning and nanotechnology, examines the developing national regulatory responses in the United States and Europe, and poses twenty issues that help frame the debate over these emerging technologies. Download this article.
Posted: December 4, 2008.
State-Level Catfish Labeling Laws
Elizabeth R. Springsteen
Staff Attorney
National Agricultural Law Center
Amid concerns over the viability of the domestic catfish industry and increasing importation of Vietnamese products labeled as "catfish," Congress added language to the 2002 Farm Bill (Farm Security and Rural Investment Act of 2002) requiring retail-level country-of-origin-labeling (COOL) for seafood, including catfish. However, the issue has also been regulated on the state level as well. Currently, six states- Tennessee, Louisiana, Arkansas, Mississippi, Alabama and Kansas- have labeling requirements for the sale of catfish. The purpose of this paper is to compare and contrast the provisions and requirements of the state statutes. Download this article.
Posted: October 1, 2008.
Plant Biotechnology Law After Geertson Seed Farms: Potential Impacts on Regulation, Liability, and Coexistence Measures
Alison E. Peck
Research Assistant
National Agricultural Law Center
In the 2007 decision Geertson Seed Farms v. Johanns, a district court held that the U.S. Department of Agricultures Animal and Plant Health Inspection Service violated the National Environmental Policy Act by deregulating genetically engineered alfalfa without performing an environmental impact assessment. This article reviews the Geertson decision and considers its actual and potential impact on the legal landscape related to plant biotechnology. After a summary of the decision, it briefly reviews the landscape of biotech regulation, liability rules, and coexistence strategies. Download this article.
Posted: September 22, 2008.
Guide to Compliance with the Japanese Positive List
Deanna Fortna Jones
Senior Attorney
Archer Daniels Midland Company
Effective May 29, 2006, the Japanese authorities implemented new regulations for maximum residue limits (MRLs) of approximately 800 agricultural chemicals in foods imported into Japan.. These new MRLs, together with approximately 10,000 existing MRLS already established by the Japanese government, are known as the positive list," compliance with which is necessary for importing food and food components into Japan. This practical article outlines steps that companies should take and concerns they should address to minimize the risk of economic harm resulting from a potential delay or ban. Download this article.
Posted: September 22, 2008.
States' Agritourism Statutes
Shannon Mirus
Staff Attorney
National Agricultural Law Center
Currently, nineteen states in the United States have enacted statutes that address agritourism. These statutes vary from liability protections for agritourism operators to tax credits to zoning requirements. Familiarity with these statutes is essential to anyone who engages in agritourism. States' Agritourism Statutes provides the statutory text of each of the states' agritourism statutes. It is important to note that there are other statutes that impact agritourism operators in each state; however, the statutes included below are the statutes that specifically mention and directly address agritourism. Several states have pending legislation; these new statutes will be added to the compilation as they are passed. The primary aim of this compilation is to provide the researcher with easy and free access to a state's statutory language by simply clicking on the state's image in the map below. Download this article.
Posted: August 8, 2008.
The Renewable Fuels Standard Provisions Under the Clean Air Act: Overview and Recent Developments
Eric Foy
Research Associate
National Agricultural Law Center
Pursuant to the Federal Clean Air Act (CAA), as amended by Section 1501 of the Energy Policy Act of 2005, Congress required the Environmental Protection Agency to promulgate regulations implementing a renewable fuels program. These regulations are commonly referred to as the Renewable Fuels Standards (RFS). The RFS outline the total volume of renewable fuel that must be blended each year as part of the domestic fuel supply. In addition, EPA allows states to petition for waiver of the RFS in the event of severe economic or environmental harm, or inadequate domestic supply of renewable fuel. This article discusses the RFS and addresses the recent petition for waiver of the RFS submitted by the state of Texas. Download this article.
Posted: July 8, 2008.
Animal Cruelty Statutes - A State-By-State Analysis
Elizabeth R. Springsteen
Research Associate
National Agricultural Law Center
This article is a companion publication to States' Animal Cruelty Statutes and presents a state-by-state survey of classifications and penalties for acts of animal cruelty. Because each state differs in its definition of "cruelty," it is not meant to characterize specific acts as belonging to a certain category and thus meriting a specific punishment in the listed state. Instead, it is a reflection of how the individual states criminalize and punish different levels of animal-abusive criminal behavior. Download this article.
Posted: May 2, 2008.
States' Animal Cruelty Statutes
Elizabeth R. Springsteen
Research Associate
National Agricultural Law Center
Each state in the United States has enacted statutes to punish individuals who engage in cruelty to animals. While there are many similar characteristics, the actual codified provisions vary drastically from state to state. Familiarity with these statutes is essential to anyone who interacts with animals--from recreational hunting to raising livestock, from owning a pet to living alongside wild animals. States' Animal Cruelty Statutes provides the statutory text of each state's animal cruelty statutes, along with the date of its possible expiration. The primary aim of this compilation is to provide the researcher with easy and free access to a state's statutory language by simply clicking on the state's image in the map provided. Download this article.
Posted: May 2, 2008.
Private Standards in the Global Food Sector: Relationship to WTO Agreements - PowerPoint Presentation
Michael T. Roberts
Attorney at Law
This PowerPoint is an expanded version of a presentation that was given on March 24, 2008, to the Institute of International Economic Law at the Georgetown University Law Center and introduces the legal issues associated with the interplay between private and public standards in the global food sector via the World Trade Organization's (WTO) agreements on Sanitary and Phytosanitary measures (SPS) and Technical Barriers to Trade (TBT). Download this presentation.
Posted: April 21, 2008.
States' Recreational Use Statutes
Elizabeth R. Springsteen
and
Rusty R. Rumley
National Agricultural Law Center
All 50 states in the United States have enacted statutes that confer some degree of liability protection to landowners who allow the general public to enter upon or make use of their land for recreational purposes. Commonly referred to as "recreational use statutes," these laws promote the public policy of encouraging landowners to open their lands so the public may access a wider range of recreational activities. These statutes are of particular importance to agricultural and rural owners of land. This article provides the statutory text of each state's recreational use statute, along with the date of its possible expiration. The primary aim of this compilation is to provide the researcher with easy and free access to a state's statutory language by simply clicking on the state's image on the map provided.
Download this article.
Posted: February 8, 2008.
Introduction to Food Law in the People's Republic of China
Michael T. Roberts
Attorney at Law
The adequacy of the food regulation system in the People's Republic of China (PRC) has captured attention worldwide following numerous high profile cases of food safety problems in Chinese exports. Notwithstanding the dearth of primary and interpretative sources in English, this article seeks to facilitate an understanding of the regulation of food safety in China. This article begins with a brief narrative of recent food safety issues in China and an overview of the legal system in China then introduces food law in China, with a particular focus on the regulation of food safety. This analysis covers the administrative organization of government bodies that have authority over food safety and the substantive regulatory provisions that govern these government bodies and the safety of food product. Finally, the most recent developments of food law in China are briefly described. Download this article.
Posted: November 16, 2007
European Union Food Law Update - III
Nicole Coutrelis
Attorney at Law, Coutrelis & Associates
Brussels, Belgium and Paris, France
The purpose of this update is to present the main events that have taken place in the food law sector in the European Union (E.U.) in the second half of 2005. This update concentrates on fundamental topics and focuses on food and thus excludes from its scope questions regarding the management of agricultural products (Common Agricultural Policy, or CAP). The update is divided into four main sections: published regulations, pending draft regulations, cases, and other relevant news. Download this article
Posted: November 16, 2007
United States Food Law Update - III
Michael T. Roberts
Member, Agriculture and Food Law Practice Group
Venable LLP
Washington, DC
This update summarizes significant changes and developments in food law over the second half of 2000 and provides a starting point for scholars, practitioners, food scientists, and policymakers to better understand the shaping of food law in modern society. Tracing the development of food law through these updates also builds an important historical context for the overall development of food law. New developments in state law, while certainly important and deserving of attention, are beyond the scope of this update. Download this article
Posted: November 16, 2007
Role of Regulation in Minimizing Terrorist Threats Against the Food Supply: Information, Incentives, and Penalties
Michael T. Roberts
Attorney at Law
Measuring the effectiveness of the government's response to the threat of food terrorism is not easy. Much has been written about the role of government regulation in reducing health risks. Rather than devise a regulatory construct specifically to address the threat of food terrorism, this article evaluates the government's efforts, within the existing regulatory construct, to minimize the risk of food terrorism by focusing on the effectiveness of the government's use of three regulatory tools: information, incentives, and penalties. This article concludes that there are inherent limitations and weaknesses of the food regulatory system. Download this article.
Posted: August 2, 2007
Approaching Liability with Animal Identification
Eric Pendergrass
Attorney at Law
This article addresses prominent legal liability issues associated with the development and implementation of the National Animal Identification System (NAIS). In particular, the article addresses legal issues associated with warranties theory and several states' approaches to limiting producers' potential liability under the warranties theory. The article also focuses on strict liability and negligence theories in the NAIS context. Download this article.
Posted: July 12, 2007
Governments and Unconstitutional Takings: When Do Right-To-Farm Laws Go Too Far?
Terence J. Centner
Professor, College of Agricultural and Environmental Sciences
University of Georgia
State anti-nuisance laws, known as right-to-farm laws, burden neighboring property owners with nuisances. The purpose of the laws is to protect existing investments by offering an affirmative defense. Activities that are not a nuisance when commenced cannot become a nuisance due to changes in land uses by neighbors. While most state laws involve a lawful exercise of the state's police powers, a right-to-farm law may set forth protection against nuisances that is so great that it operates to effect a regulatory taking. Judicial rulings that two Iowa right-to-farm laws went too far in reducing neighbors' constitutionally protected rights augur an opportunity to rethink right-to-farm laws. Rather than relying upon a marketplace economy to protect businesses, a law based upon an economy of nature may be drafted to protect farmland and other natural resources. Download this article.
Posted: May 23, 2007
Federal Legislative History: A Guide to Resources
Sally J. Kelley
Librarian and Research Professor
National Agricultural Law Center
This guide covers the major types of publications in a federal legislative history. Under each type (committee reports, hearings, Congressional Record, documents, prints, Presidential signing statements), the first section lists full-text resources and their dates of coverage with links to electronic sources. The second section lists aids for identifying bibliographic information to assist in locating items in the full-text sources or for use in obtaining them through interlibrary loan or other means. Download this guide.
Update posted: October 14, 2008
A Comparison of International Animal Identification Programs
Eric Pendergrass
Graduate Assistant
National Agricultural Law Center
As with many international issues that are addressed by the countries individually instead of on a global basis, the animal identification programs and their application varies widely between nations. This article discusses the programs that have been implemented by certain countries. Within this discussion, issues are addressed when information was available, including a brief history of the program, its stated purpose, how the program addresses producer liability and confidentiality, and who bears the cost burden of the program's implementation. Download this article.
Posted: April 23, 2007
Clarifying NPDES Requirements for Concentrated Animal Feeding Operations
Terence J. Centner
Professor of Agriculture and Applied Economics
University of Georgia
The Clean Water Act of 1972 sought to restore and maintain the chemical, physical, and biological integrity of our nation's waters. Central to achieving the Act's goals was a permitting system prohibiting discharges of pollutants from point sources into navigable waters except as authorized by a National Pollution Discharge Elimination System (NPDES) permit. Point sources are defined to include discernable, confined, and discrete conveyances including concentrated animal feeding operations (CAFOs). In the wake of an April 14, 2003 CAFO Rule issued by the Environmental Protection Agency and litigation over that rule in Waterkeeper Alliance, Inc. v. Environmental Protection Agency, there exists some uncertainty regarding the NPDES requirements for CAFOs. This article discusses these requirements and clarifies what the NPDES permit requirements are for CAFOs. Download this article.
Posted: March 22, 2007
Varying State Approaches to Confidentiality with Premises and Animal Identification Systems
Eric Pendergrass
Graduate Assistant
National Agricultural Law Center
A major issue surrounding the National Animal Identification System is whether the information gathered under the system will be confidential. This article explores how different states have addressed this issue in state law as categorized in three different approaches: (1) Non-acting; (2) Reliance on current law; and (3) Passage of specific exemptions. Download this article.
Posted: January 4, 2007
State Identification Statutes: Confidentiality Provisions Relating to Animal and Premises Identification
Eric Pendergrass
Graduate Assistant
National Agricultural Law Center
This publication provides a table of state statutory citations for state laws that involve the National Animal Identification System. In Particular, the table includes cites regarding premises identification, animal identification, and confidentiality. Download this article.
Posted: January 4, 2007
Developments in Administrative Law and Regulatory Practice,
2005-2006 -- Agriculture
Harrison M. Pittman
Research Assistant Professor of Law and Co-Director
National Agricultural Law Center
This article examines several important agriculture-related judicial, administrative, and legislative developments that occurred during 2005 and 2006. In particular, the article discusses three important decisions issued by the Ninth Circuit, including Ranchers Cattlemen Action Legal Fund United Stockgrowers of America v. United States, which was initially triggered by the May 20, 2003 discovery of a cow in Alberta, Canada infected with Bovine Spongiform Encephalopathy (BSE). The article also examines two Federal Circuit decisions that involved challenges associated with statutory amendments to the peanut quota program under the Farm Security and Rural Investment Act of 2002, commonly referred to as the 2002 Farm Bill. The article also highlights several important administrative developments, including regulatory amendments to the National Organic Program that occurred in response to the First Circuit's decision in Harvey v. Veneman and the issuance by the Environmental Protection Agency of a proposed rule that involves concentrated animal feeding operations. Download this article
Posted: November 15, 2006
Animal Identification and the Next Farm Bill
Doug O'Brien
Research Assistant Professor and Interim Co-Director
National Agricultural Law Center, University of Arkansas School of Law
Staff Attorney, Drake University Agricultural Law Center
A somewhat nontraditional area that Congress may address in the next Farm Bill is animal identification. The effort to create a national animal identification program received a considerable push in late 2003 after a cow in Washington State was diagnosed with bovine spongiform encephalitis. Since that time, USDA, state animal health officials, and private industry have begun to implement the National Animal Identification System (NAIS). This article looks first at how the NAIS is designed and then at some federal and state laws that affect the NAIS. It then examines federal legislation that has been proposed to amend the NAIS and concludes by highlighting some of the issues that might arise during the farm bill debate. Download this article
Posted: October 26, 2006
Bankruptcy Reform and Family Farmers: Correcting the Disposable Income Problem
Susan A. Schneider
Assistant Professor of Law and Director
Graduate Program in Agricultural Law
University of Arkansas School of Law
This article focuses on the last amendment to the Bankruptcy Abuse Prevention and Consumer Protection Act—the assessment of disposable income. It is an amendment that has not been widely reported, nor does it appear to have been the subject of significant congressional debate. It is set forth in one very short section of the bill, but it reverses over a decade of misinterpretation of the plain language of the original Chapter 12 disposable income requirement. It is a significant change that promises to enhance the likelihood of successful family farm reorganizations throughout the country. Download this article
Posted: September 19, 2006
Summary of the WTO Interim Report in EC-Biotech
Alison Peck
Graduate Assistant
National Agricultural Law Center
This article summarizes the Interim Report of the Dispute Settlement Panel of the World Trade Organization ("WTO") in the matter of Europe Communities – Measures Affecting the Approval and Marketing of Biotech Products ("EC – Biotech"). The Report was released confidentially to the parties on February 7, 2006, but Friends of the Earth-Europe published a leaked copy on its website. According to news reports, the Appellate Body adopted the Report as its final ruling on May 10, 2006. Download this article
Posted: September 19, 2006
Biofuels: Policy and Business Organization Issues
Doug O'Brien
Research Assistant Professor of Law, Senior Staff Attorney
University of Arkansas National Agricultural Law Center
Staff Attorney, Drake University Agricultural Law Center
The burgeoning renewable fuels industry has the potential to radically reshape production agriculture, and farmers have an important role to play in this movement. Whether as producers of renewable feedstock, investors in renewable fuel plants or consumers of the renewable fuels, farmers have a direct interest in how the sector develops. The renewable fuel boom has implications across the agricultural sector – from the land use choices such as the possibility that Conservation Reserve Program acres will be drawn into use for renewable energy to the livestock sector that will need to compete for feedstuffs. The focus of this article is on some of the direct policy and legal issues advisors should think about in considering how to advise those who want to participate in the renewable energy industry. A snapshot of the sector will be given, followed by a description of some of the most significant federal renewable energy policies. The article will then focus on direct legal issues, in particular some business organization issues. Download this article
Posted: September 6, 2006
Planting the Seeds for a New Industry in Arkansas: Agritourism
Harrison M. Pittman
Research Assistant Professor of Law and Staff Attorney
National Agricultural Law Center
University of Arkansas School of Law
Agritourism operations exist in every state, and in many states, organizations, state officials, citizens, and others have undertaken some type of effort to enhance agritourism. Several states have undertaken some type of agritourism promotion effort, including Alabama, Mississippi, Missouri, Utah, North Carolina, Kansas, Oklahoma, and New Mexico. The types of efforts and the degree to which they are undertaken in these and other states vary substantially. A small but growing number of states– including Tennessee, Kentucky, Indiana, Kansas, and Vermont– have undertaken comprehensive efforts to not only promote agritourism but to recognize agritourism as an industry that can provide significant economic benefits to producers, communities, and states. Arkansas and many other states have not yet undertaken a similar effort, though these states possess the human, land, government, organizational, and academic resources to do so. This article provides a context from which producers, state officials, private organizations, citizens, and other relevant stakeholders in Arkansas and other states can initiate a discussion regarding the potential development of a program to promote an agritourism industry. Download this article
Posted: August 10, 2006
2005 Environmental Law Update
Theodore A. Fetishans
Extension Specialist and Lecturer
North Carolina State University
This article examines several significant developments from 2005 regarding the application of environmental laws to agricultural production and processing. The article discusses, among other items, air quality concerns related to animal feeding operations, water use issues, and recent developments under the Clean Water Act related to National Pollution Discharge Elimination System permits. In addition, the article examines developments regarding wetlands protection, eminent domain and takings, concentrated animal feeding operations, and the application of pesticides to surface waters Download this article
Posted: July 17, 2006
2005 Commercial Law Update
Keith G. Meyer
The Hampton Professor of Law
University of Kansas
As of July 1, 2001, all fifty states adopted Revised Article 9 of the Uniform Commercial Code, the first major revision of Article 9 since 1972. In most states, Revised Article 9 became effective on July 1, 2001, ushering in a host of changes to the areas of commercial and secured transactions law. For agriculture, these changes are especially important and present a wealth of pitfalls for even the experienced practitioner. This update provides a discussion of the changes brought by Revised Article 9 and the new law's application to commercial and secured transactions in the agricultural context. Download this article
Posted: June 26, 2006
From the Farm to the Factory: An Overview of the American and
European Approaches to Regulation of the Beef Industry
Crisaria S. Houston
Visiting Instructor, Thurgood Marshall School of Law
Texas Southern University
The United States and Europe have the Herculean task of regulating cattle and beef production in each of their many states and countries, respectively, and many factors must be covered in their regulatory schemes. This article briefly describes the existing regulatory requirements under the U.S. and European systems and compares the two approaches. In comparing the two systems, attention is concentrated on the quality of legislative drafting, the likelihood of implementation, the adequacy of consumer protection, the voluntary or compulsory nature of the measures, and the requirement of records retention. Download this article
Posted: June 23, 2006
Is a Picture Worth More Than 1,000 Words? The Fourth Amendment
and the FDA's Authority to Take Photographs Under the Federal
Food, Drug, and Cosmetic Act
Neal D. Fortin
Attorney at Law
Okemos, Michigan
The Food and Drug Administration (FDA) touches the lives of nearly every American every day. Yearly, the FDA regulates over $1 trillion worth of products, which accounts for nearly twenty-five cents of every dollar spent by American consumers. Consequently, the FDA's regulatory authority provides a rich arena for legal commentary, one of which is the FDA's authority to take photographs under the Federal Food, Drug, and Cosmetic Act, long an area of controversy in the food and drug field. Two currents roil beneath the surface of this issue: the Fourth Amendment right against unreasonable searches and the scope of the FDA authority to inspect under FDCA. Yet, a recent literature search revealed a solitary law review article addressing the issue. To fill the gap, this article analyzes the FDA's authority to take photographs during regulatory inspections. It reviews the FDA's regulatory authority to conduct establishment inspections and discusses the FDA's administrative policy and the case law on the scope of the FDA's authority to take photographs during administrative inspections. In addition, this article argues that the lack of express authority to take photographs does not equate with the lack of legal clarity. Download this article
Posted: June 23, 2006
European Union Food Law Update - II
Nicole Coutrelis
Attorney at Law, Coutrelis & Associates
Brussels, Belgium and Paris, France
The purpose of this update is to present the main events that have taken place in the food law sector in the European Union (E.U.). This update concentrates on fundamental topics and focuses on food and thus excludes from its scope questions regarding the management of agricultural products (Common Agricultural Policy, or CAP). The update is divided into four main sections: published regulations, pending draft regulations, cases, and other relevant news. Download this article
Posted: June 23, 2006
United States Food Law Update - II
Michael T. Roberts
Research Professor of Law and
Director, National Agricultural Law Center
University of Arkansas School of Law
This update summarizes significant changes and developments in food law over the first half of 2000 and provides a starting point for scholars, practitioners, food scientists, and policymakers to better understand the shaping of food law in modern society. Tracing the development of food law through these updates also builds an important historical context for the overall development of food law. New developments in state law, while certainly important and deserving of attention, are beyond the scope of this update. Download this article
Posted: June 23, 2006
Who Gets the Check: Determining When Federal Farm Program
Payments Are
Property of the Estate
Susan A. Schneider
Associate Professor of Law
Director, Graduate Program in Agricultural Law
University of Arkansas
This article addresses the sometimes arcane intersection of farm programs and bankruptcy by confronting the fundamental question: When is the federal farm program payment property of the bankruptcy estate? The article begins by identifying some of the most important characteristics of the wide array of federal farm programs necessary to form the framework for the legal analysis. It then addresses the property of the estate inquiry, meshing existing precedent with commentary and specifically examining the recent circuit court options on this issue in the context of disaster relief. Based on this analysis, the article concludes with comments regarding future decision making and new farm programs Download this article
Posted: June 5, 2006
State Regulation of Production Contracts
Alison Peck
National Agricultural Law Center Graduate Assistant
Increasingly, agricultural production in the U.S. occurs through production contracts – agreements through which producers (or “growers”) and contractors (typically agricultural commodity processors) detail an arrangement for raising agricultural commodities. These agreements, like most commercial contracts, are subject to state regulation. As agricultural production contracts have become more common, several states have enacted legislation directly regulating production contracts and the process of creating them. This article collects and briefly analyzes existing state laws– from Arkansas, Georgia, Illinois, Iowa, Kansas, Minnesota, and Wisconsin – that directly regulate production contracts. Download this article
Posted: May 25, 2006
Are You a Debt Relief Agency? You Might Be Surprised and
You Should Be Concerned
Susan A. Schneider
Associate Professor and Director, Graduate Program in Agricultural Law
University of Arkansas School of Law
The Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 was signed into law on April 20, 2005 as Public Law No.109-8. Most provisions of the bill were not immediately effective but rather took effect with respect to cases filed on or after October 17, 2005. This massive new act makes profound changes in bankruptcy law, some of which are controversial. The requirements regarding “debt relief agencies” provide an example of a particularly controversial change that has generated concern among the bar. The definition of this term by the new act is expansive, and if a person or entity falls within the term, violating the act’s requirements can result in serious consequences. This article provides an overview of the definition of a debt relief agency and the requirements now in place for such entities. It also discusses challenges to the requirements that have been brought in the courts. Download this article
Posted: May 25, 2006
World Trade Organization and the Commodity Title of the Next
Farm Bill: A Practitioner's View
Doug O'Brien
Senior Staff Attorney
National Agricultural Law Center and
Drake Agricultural Law Center
Traditionally, the major factors affecting the changes in a farm bill are the state of the farm economy, the condition of the federal budget, and who is in power in Congress at the time of the bill’s consideration. To be sure, all of these factors will again play a major role in the next farm bill. But an influence that has many times provided background context to farm bill deliberations is now up front and squarely facing policy makers: current and future trade policy. The impact of the Brazil Cotton Case has shifted current trade policy in a way that may force domestic policy to change. Further, the debate surrounding the next farm bill could very well coincide with the negotiations for the next major multi-lateral agricultural trade agreement, known as the World Trade Organization Doha Round. The timing both highlights and heightens the new significance that United States’ trade obligations have on domestic policy. This article examines how this new factor might influence Congress’ farm bill debate. Download this article
Posted: April 26, 2006
Federal Regulation of Organic Food: A Research Guide for Legal
Practitioners and
Food Industry Professionals
Stephanie Jillian
Covington and Burling
Washington, DC
This guide explores methods and resources for researching the federal regulation of organic food following the passage of the Organic Foods Production Act of 1990. This guide focuses on the current state of federal law and not on the pre-1990 history of organic food regulation, or on state regulation. There are countless resources available, including government documents, online electronic files, books, trade journals, government and non-government sponsored websites, agricultural search engines, and commercial databases. This guide examines these and other resources, providing the reader with a clear roadmap for approaching research on this topic.
Posted January 25, 2006
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The Farmer's Legal Guide to Producer Marketing Associations
Doug O'Brien, Staff Attorney
National Agricultural Law Center and
Drake University Agricultural Law Center
Neil D. Hamilton, Director
Drake University Agricultural Law Center
Robert Luedeman, Attorney
Des Moines, Iowa
In an effort to pool resources and access markets, many producers are reexamining a tried and true business strategy -- joining together to market their products. Producers from all realms of agriculture can utilize this strategy, whether it is a small group of market vegetable growers determining how to supply a farmers' market or a larger group of producers considering building a processing facility for their hogs. This publication looks at some of the issues raised when farmers decide to work together. The book is focused on legal issues, yet it also looks at some of the business fundamentals and marketing issues farmers need to think about as they approach a producer marketing association. The following list of chapters indicates topics covered in the book.
Posted January 24, 2005
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Managing Carbon in a World Economy: The Role of American Agriculture
Kelly Connelly Garry
University of South Dakota School of Law
Climatic change is one of the most challenging environmental concerns faced by the world. Carbon sequestration offers an optimistic approach to curb the effects of climatic change until a more permanent solution is discovered and implemented. Presently, carbon sequestration is the most practical response to global warming. It has been known for decades that carbon sequestration can assist in decreasing the amount of carbon dioxide in the atmosphere, but the difficulty lies with the incorporation of carbon sequestration into programs that will encourage sufficient participation to make it worthwhile. This article outlines the role American agriculture can play in managing carbon in a world economy. Download this article
Posted: November 12, 2005
Do European Union Non-Tariff Barriers Create Economic
Nuisances in the United States?
Thomas P. Redick
Principal, Global Environmental Ethics Council
and
Michael J. Adrian
Associate, Gallop, Johnson & Neuman, Clayton, MO
On April 18, 2004, the European Union’s Directives on Traceability and Labeling went into effect, imposing in effect a "zero tolerance" standard for biotech crops that have not received regulatory approval from the E.U. The Directives will also lead to genetic testing of shipments of United States commodities exports. This article overviews the European Union's complex regulatory policy regarding biotech crops, the United States' reaction to the new laws, and reviews case law on "nationwide nuisance" class action lawsuits. This article also reviews the tools proposed for preventing liability and examines E.U. policies on biotech crops and human health in the United States, the E.U., and their trading partners. Download this article
Posted: August 26, 2005
An Introduction to Chapter 12 Bankruptcy:
Restructuring the Family Farm
Susan A. Schneider
Associate Professor and Director, Graduate Program in Agricultural Law
University of Arkansas School of Law
Chapter 12 bankruptcy is a special section of the Bankruptcy Code that provides for the restructuring of the debts of a family farm or family fisherman’s business. It provides powerful tools to debtors, sometimes enabling them to reduce their debts or restructure their payments so that they can continue farming or fishing as their livelihood. Chapter 12 was first created in October 1986 and was recently made permanent by The Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (the 2005 Bankruptcy Act). Chapter 12 has been an important tool for farmers in financial distress, both as a bankruptcy option and as a base line for negotiations outside of bankruptcy. This article provides an overview of Chapter 12 as amended by the 2005 Bankruptcy Act. Download this article
Posted: October 25, 2005
Bankruptcy Reform: Changes to Chapter 12 - Adjustment of Debts for a Family Farmer
Susan A. Schneider
Associate Professor of Law
Director, Graduate Program in Agricultural Law
University of Arkansas School of Law
The Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 became law on April 20, 2005. While much of the new law is directed toward consumer bankruptcy reform, it also includes a number of important changes to Chapter 12 of the Bankruptcy Code. This article discusses these changes. Download this article
Posted: September 14, 2005
Revising Seed Purity Laws to Account for the Adventitious Presence of Genetically Modified Varieties: A First Step Towards Coexistence
A. Bryan Endres
Assistant Professor of Agricultural Law
University of Illinois
Adoption of genetically modified seed varieties in the United States, Canada, and South America continues to expand, with GM crops comprising almost 70 million hectares and over 93 percent of the total biotech cropland worldwide. As an increasing number of farmers plant GM varieties, the potential for adventitious mixture of genetically modified DNA with products produced via organic and conventional (non-GM) methods also increases. This article examines the critical role played by federal and state seed purity laws in the achievement of coexistence in the United States and the preservation of commodity agricultural exports to the European Union. It concludes that existing domestic seed laws should be revised to account for the widespread adoption of GM varieties. Download this article
Posted: Sept. 14, 2005
Liability of Federal Agencies for Failure to Abide by the Rural Development Act
Steve Sheppard
Associate Professor of Law
and
Allen Mazzanti
Juris Doctor, 2005
University of Arkansas School of Law
The poorest areas of the United States are almost entirely among its rural counties. Despite some recovery of its economy in some sectors, many aspects of rural life in the United States continue to decline. The number of farmers has fallen. Even though some population has returned to rural areas after fifty years of decline, the number of children in rural areas continues to fall, leaving rural areas with a disproportionally high population of the aged. Moreover, the dominant form of federal assistance to rural areas, $15 billion in annual farm supports and agricultural subsidies, is under pressure from the federal budget as well as under attack in the World Trade Organization. It is apparent that a need for federal support of rural areas persists, and yet the expensive habit of direct payments to farmers is both increasingly difficult and, as it has perhaps always been, less efficient as a means of rural development than other approaches. There is an obvious need for a means for the federal government to encourage rural development, if possible, in a manner that both provides long-term stability for rural communities while at the same time requiring less from the federal budget. A tool to do exactly this has languished in the United States Code for thirty-five years: the Rural Development Act (RDA). This article first considers the structure of the RDA and the scope of its application to "rural areas." It then considers agency attempts and failures to conform to it, as reported by the General Services Administration. Lastly, the article considers means for states and others whose interests are harmed by agencies that fail to conform to the RDA to enforce the Act under the Administrative Procedures Act. Download this article
Posted: Sept. 14, 2005
Bankruptcy Reform and Family Farmers
Susan A. Schneider
Associate Professor, University of Arkansas School of Law
Director, Graduate Program in Agricultural Law
The Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 passed the Senate on March 10; it passed the House of Representatives on April 11; and it was signed by the President on April 20, 2005, marking the conclusion of almost a decade of contentious debate. Most provisions of the bill will not be effective for six months from enactment. Much of the new law is directed toward consumer bankruptcy reform, and some of the most controversial aspects of it, e.g., means testing for Chapter 7 relief, have been reported widely in the media. The important aspects of the law that will directly affect farmers, however, have received little attention. The main provisions affecting farmers are summarized in this article. Download this article
Posted: August 30, 2005
European Union Food Law Update
Nicole Coutrelis
Attorney at Law
Coutrelis & Associes, Brussels, Belgium and Paris, France
The purpose of this update is to present the main events that have taken place each six months in the food law sector in the European Union. This presentation will cover June through December 2004, but is not exhaustive. This update will not include detailed discussions of regulations, such as authorizations of new additives for animal feed or registrations of new geographic names. Instead, it will concentrate on fundamental topics and focus on food, which excludes from our scope questions regarding the management of agricultural products. The update will be divided into four main sections: published regulations, pending draft regulations, cases, and other relevant news. Download this article
Posted: August 26, 2005
United States Food Law Update
Michael T. Roberts
Research Associate Professor of Law and Director, National Agricultural Law Center
and
Margie Alsbrook
Founding Editor-in-Chief, Journal of Food Law & Policy
The one constancy about food law in the United States is change, especially in a rapidly-changing food industry. Innovations in food technology, shifts in popular culture and tastes, concerns of safety and nutrition, pressures from international markets, all contribute to the changing landscape of food law. These changes are reflected in new federal statutes, regulations, administrative decisions, and judicial decisions. This update summarizes significant changes and developments in food law over the last half of 2004 in order to provide a starting point for scholars, practitioners, scientists, and policy-makers determined to understand the shaping of food law in modern society. Download this article
Posted: August 26, 2005
Market Concentration, Horizontal Consolidation, and Vertical Integration in the Hog and Cattle Industries: Taking Stock of the Road Ahead
Harrison M. Pittman
Research Assistant Professor of Law
National Agricultural Law Center
The level of market concentration in virtually every segment of the agricultural sector in the United States has increased significantly over the past several decades. The number of firms and actors within the sector, including producers, input suppliers, output processors, and food retailers, has decreased as their size has increased. The hog and cattle industries are two portions of the agricultural sector that have been the focus of recent litigation due to market concentration concerns brought about by horizontal consolidation and vertical integration. The Packers and Stockyards Act of 1921 (PSA) and anti-corporate farming laws, both of which have been the basis of recent judicial activity, are two legal mechanisms implicated in the debate over market concentration in the hog and cattle industries. This article reviews the status of the PSA and corporate farming laws in light of the decisions in London v. Fieldale Farms, Corp., Pickett v. Tyson Fresh Meats, Inc., South Dakota Farm Bureau, Inc. v. Hazeltine, and Smithfield Foods, Inc. v. Miller. The article also examines the historical development and current structure of the hog and cattle industries and presents a brief overview of the PSA and corporate farming laws. Download this article
Posted: August 14, 2005
Hedge to Arrive Contracts: Futures or Forwards
Jayashree B. Gokhalé
Senior Attorney, Office of Disciplinary Affairs
National Association of Securities Dealers, Inc.
Although the Commodity Futures Modernization Act of 2000 (CFMA) reformulated the Commodity Exchange Act (CEA), Congress chose to preserve the distinctions between agricultural commodities and all others, leaving the pre-CFMA provisions largely intact. This means that the pre-CFMA statutes and case law interpreting them continue to apply with full force to transactions involving agricultural commodities, and the agricultural markets seem therefore to have escaped the statutory modernization brought by the CFMA to the financial derivatives markets. Since the middle 1990s, transactions involving Hedge to Arrive Contracts (HTAs) between producers and grain merchants have sparked controversy as well as litigation. The central question arising with respect to HTA transactions is whether they are futures contracts to which the CEA applies, or whether they are excluded from the CEA as forward contracts. This article addresses this question by examining the case law surrounding HTA contracts and the CFTC's treatment of HTAs, focusing on the analysis used to categorize HTAs as futures or forward contracts.
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Posted: April 21, 2005
Supreme Court Considers Preemption of State Law Claims Under the Federal Insecticide, Fungicide, and Rodenticide Act
Harrison M. Pittman
Staff Attorney
National Agricultural Law Center
The Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) regulates the use and distribution of pesticides through comprehensive labeling and registration requirements. FIFRA provides the federal government wide latitude to regulate pesticides but authorizes states to play a role as well. In particular, FIFRA provides that "[a] State may regulate the sale or use of any federally registered pesticide or device in the State, but only if and to the extent the regulation does not permit any sale or use prohibited by this subchapter." It also provides that "[s]uch State shall not impose or continue in effect any requirements for labeling or packaging in addition to or different from those required under this subchapter. The issue arises as to whether state common law tort claims are preempted by FIFRA because the claims impose requirements "in addition to or different" from those imposed by the Environmental Protection Agency, the federal agency responsible for implementing FIFRA. This article discusses FIFRA, the evolution of courts' views regarding FIFRA preemption of state law tort claims, and two recent federal circuit court decisions, one of which the United States Supreme Court has agreed to review. Download this article
Posted: April 19, 2005
Legal and Policy Considerations of Investor-Friendly Cooperatives
Doug O'Brien
Staff Attorney
National Agricultural Law Center and
Drake Agricultural Law Center
Farmers and rural communities have looked to the cooperative model for over 150 years as an organizing principle for decision making, profit sharing, and education. As the economic environment has changed, coops have evolved in attempts to meet competition and fulfill their members' needs. In recent years a new model has emerged that has become known as the Minnesota model. Minnesota authorized this new type of coop in 2003, with Wyoming and Tennessee adopting similar measures and about 12 other states considering legislation. This article examines some of the traditional cooperative principles and how state policy makers have manifested those principles by enacting laws allowing for the incorporation of cooperatives. It then discusses some of the evolving demands on cooperatives and how policy makers have responded, specifically with the enactment of the Minnesota statute that creates investment coops and the consideration of a uniform law that will create investment coops. Finally, the article examines how these new coops will be treated under certain federal statutes, such as the Capper-Volsted Act, the Securities Exchange Act, the Internal Revenue Code and the Farm Credit Act. Download this article
Posted: Jan. 27, 2005
Developments in Horizontal Consolidation and Vertical Integration
Doug O'Brien
Staff Attorney
National Agricultural Law Center and
Drake Agricultural Law Center
The likely continued increase in agricultural consolidation and vertical integration, as well as a number of important decisions that will soon be handed down, ensure that the areas of antitrust and trade practice regulation will continue to be an important facet of agricultural policy. As it has in the past, the enforcement and interpretation of these laws will continue to play a crucial role in how the different agricultural sectors evolve. This article explores some of the recent developments, both in the industry and in the courts, that affect horizontal consolidation and vertical integration in agriculture. Download this article
Posted: Jan. 19, 2005
Fact Sheet on Animal Identification: Liability Exposure
and Risk Management
Michael T. Roberts
Director
Doug O'Brien
Senior Staff Attorney
National Agricultural Law Center
As the livestock industry considers implementation of the National Animal Identification System (NAIS), one of the chief concerns focuses on the possibility of increased liability for livestock producers. This concern arises from the recognition that a key component of a lawsuit is knowing who caused the harm. The fear is that the NAIS will allow people to find out who owned an animal at the time that the animal acquired the condition that caused the harm. Download this article
Posted: Jan. 03, 2005
Fact Sheet on Animal Identification: Confidentiality of Information
Michael T. Roberts
Director
Doug O'Brien
Senior Staff Attorney
National Agricultural Law Center
Some livestock producers and livestock industry participants have raised concerns about who will be able to access the information provided to the National Animal Identification System (NAIS). Their concerns include: 1) that establishing a centralized database might allow others in the industry to know information about their operations; 2) government agencies may access the data; and 3) people who have designs in harming animal agriculture might acccess the information. Download this article
Posted: August 26, 2005
Farmers' Guide to GMOs
David R. Moeller
Farmers' Legal Action Group, Inc.
Michael Sligh
Rural Advancement Foundation International - USA
For nearly a decade, US farmers have commercially grown genetically modified organisms, or GMOs. Whether farmers grow GMOs or conventional seeds or are certified organic, the use of GMOs in commercial agriculture will affect their operations. This guide sets out recent statistics on the commercial production of genetically modified crops, discusses the regulation of GMOs by three federal agencies, looks at the obligations and legal limitations farmers assume when they sign GMO contracts, analyzes farmers' right to save seed in light of recent U.S. and Canadian cases, provides information on steps farmers should consider taking if they are accused of violating a seed patent, addresses issues of potential liability for farmers from GMO contamination, discusses some of the current international issues related to GMOs, and summarizes recent research on the cost and benefits of GMOs. Also included are a list of resources and a reproduction of the legal sections from Monsanto's 2005 Technology Agreement. Download this article
Posted: Jan. 4, 2005
Anatomy of the Government's Role in the Recall of
Unsafe Food Products
Michael T. Roberts
Director
The National AgLaw Center
The government does not have the authority to mandate a recall of unsafe food. Recalls of unsafe food products are voluntarily conducted by food companies and are monitored by either the Food and Drug Administration (FDA) or the United States Department of Agriculture (USDA) through its branch agency, the Food Safety and Inspection Service (FSIS). In a typical food recall, the recalling company and the government agency work together to evaluate the product and risk and to recover that product. This article describes the government's role in this voluntary food recall system. This article first explains the need for an effective recall system to protect consumers from foodborne illnesses. Next, this article describes the unique dual-government agency responsibility for food recall, the basis for the "voluntary" food recall, and the government's specific responsibilities and roles in the voluntary food recall system. Download this article.
Posted: Nov. 22, 2004
Rabobank Offer to Purchase FCS of America
Doug O'Brien
Senior Staff Attorney
The National AgLaw Center
This article considers the legal facets of the Farm Credit Services of America resolution to terminate its status as a Farm Credit System Institution so that it could become a wholly owned subsidiary of Rabobank. Specifically, the article examines the possibility of approval of such a termination application by the Farm Credit Administration and the stockholders of Farm Credit Services of America. Download this article.
Posted: Oct. 18, 2004
Determining the Proper "Cramdown" Rate of Interest in Agricultural
Bankruptcies Post-Till v. SCS Credit Corp.
Harrison M. Pittman
Staff Attorney
The National AgLaw Center
On October 2, 1998, Lee and Amy Till purchased a used vehicle from Instant Auto Finance in Kokomo, Indiana. Little did they know that the events of that day would evolve into legal battles before a bankruptcy court, a federal district court, a circuit court of appeal, and the United States Supreme Court. Nor could they have known that those events would culminate in a legal precedent that helped resolve one of the most significant issues in Chapter 11, 12, and 13 bankruptcies: how to calculate the appropriate "cramdown" interest rate. In Till v. SCS Credit Corp., the United States Supreme Court held in a plurality decision that the so-called "formula approach" is the appropriate method for determining the adequate rate of interest in a Chapter 13 cramdown. The "formula approach" requires that the prime national interest rate serve as a baseline for determining the appropriate cramdown interest rate and that the rate be adjusted, if necessary, based on the risk of nonpayment. Download this article.
Posted: Oct. 18, 2004
Concentration Concerns in the American Livestock Sector:
Another Look at the Packers and Stockyards Act
Jon Lauck
Attorney and Professor of History
South Dakota State University
In the early years of the twentieth century, the American meatpacking industry was often criticized for engaging in anticompetitive behavior. As one early report of the United States Senate concluded, "[i]t has been demonstrated beyond question that the history of the development of this industry has been the history of one effort after another to set up monopoly." Such concerns prompted Congress to adopt the Packers and Stockyards Act in 1921. A civil action in which a federal jury found the meatpacking company Tyson-IBP guilty of depressing the price of cattle and highlights the importance of these concerns and the need for a more comprehensive understanding of the P&SA. This article outlines the general changes in the hog and cattle markets that have prompted concerns about competition, discusses concerns regarding the effectiveness of the Packers and Stockyards Administration as an enforcement agency, addresses concerns about the more general antitrust statutes, and sets forth the general history surrounding passage of the P&SA. Download this article.
Posted: Oct. 18, 2004
The Constitutionality of Partition Fence
Statutes in the Midwest
James L. Molloy
Associate Professor of Business Law
University of Wisconsin-Whitewater
Linda A. Reid
Assistant Professor of Business Law
University of Wisconsin-Whitewater
Partition fence statutes are applicable only in rural areas where, historically, land was used primarily for the purpose of raising livestock or crops. This article surveys the partition fence statutes currently in place in the Midwest where, over time, the use of rural property has evolved from exclusively agricultural to more often residential. This article further explores the current constitutionality of those statutory schemes in light of the changed nature of rural land use since their enactment. Download this article.
Posted: Aug. 12, 2004
The War on GMO's: A Report from the Front
John S. Harbison
Staff Attorney
The National AgLaw Center
In April 2004, the Vermont legislature became the first in the nation to require manufacturers of genetically modified seeds to label and register their products. The proponents of this statute narrowly missed passing a companion bill that would have imposed liability for economic losses caused by genetic contamination on seed manufacturers, rather than neighboring farmers who grow genetically modified plants in their fields. In March 2004, the residents of Mendocino County, California, went even further by enacting an outright ban on genetically modified plants. Following Mendocino County's lead, voters in a dozen other California counties are considering initiatives that would ban genetically modified crops. This article does not explore the pros and cons of GMOs. That debate is already lengthy--and barbed--and it is likely to continue for a while. Rather, this article analyzes the Mendocino County ban and the Vermont labeling and registration statute with respect to their constitutionality. Sponsors of both measures anticipate legal challenges. In fact, the biotechnology industry has hinted strongly that these challenges will arrive soon. And, quite clearly, both measures raise interesting issues under two related constitutional law doctrines: the dormant commerce clause and the concept of federal preemption. Because Mendocino County Measure H and Vermont H. 352 are so different in effect, analysis of their respective constitutionality, or lack of it, especially under the dormant commerce clause, is going to be very different too. Accordingly, Part A of this article provides an introduction to these related constitutional doctrines. Part B briefly sets forth the principal concerns of GMO opponents. Part C explores the application of the dormant commerce clause to the Mendocino County ban and the Vermont labeling and registration statute. Part D explores the application of the doctrine of federal preemption to these same measures. Download this article.
Posted: Aug. 6, 2004
Commercial Laws in the United States of America
Relating to Bailments
Drew L. Kershen
Earl Sneed Centennial Professor of Law
Univeristy of Oklahoma College of Law
This article provides an introduction to the law of bailment with an emphasis on commercial bailments. While this article has tried to provide the reader with a solid understanding of bailment law, it has not attempted to provide a detailed exposition of every legal issue that has arisen. More significantly, this article has not attempted to provide a discussion of the many cases that have addressed specific bailment law issues. At times the footnotes cite case decisions, but the article focuses on the statutory provisions of state and federal laws relating to bailment. Download this article.
Posted: Aug. 4, 2004
Statutory Exhaustion of Administrative Remedies in
Actions Against the USDA
Christopher R. Kelley
National AgLaw Center Faculty Advisor
Associate Professor, University of Arkansas School of Law
The exhaustion of administrative remedies doctrine requires those who claim that an agency's action is unlawful to exhaust any administrative remedies as a precondition to judicial relief. The doctrine is a venerable one, having originated in the federal common law as a prudential rule of judicial administration. It seeks to ensure that agencies retain the primary responsibility for administering the programs that Congress has placed within their purview and to promote judicial efficiency. In other words, "[t]he exhaustion doctrine . . . ackno