Agricultural Law

Food Sovereignty Movement Spawns Struggle for Local Control

2012-02-06T08:40:00.021-06:00

Recent events in El Dorado County, California highlight emerging tensions between state and local laws related to agriculture. These tensions arise in the context of a burgeoning food sovereignty movement, as consumers seek more choices about what they eat and its provenance. The Sacramento Bee reported a few weeks ago that the El Dorado County Board of Supervisors voted to support "the grass-roots (and grass-fed) agriculture revolution," and--in particular--local farmers who are bucking state regulations by selling directly to consumers. At their January 24, 2012, meeting, the Board of Supervisors lent verbal support to a "Local Food and Community Self-Governance" ordinance.

The ordinance is being pushed by Patty Chelseth, a smalltime dairy woman (we're talking two cows) who wants to provide raw milk to customers. Chelseth started selling shares in her cows because California law permits a cow's owner to drink the cow's milk filtered, but unpasteurized. It's her attempt to workaround the prohibition on selling raw milk.

This July, 2011, Sac Bee story provides some background for the Supervisors' decision. It tells of Chelseth's initial dust up with the state over a cease-and-desist letter the California Department of Agriculture sent her regarding her sales of shares of her cows. That July story included the language of Chelseth's proposed ordinance. As journalist Carlos Alcala observes, it reads something like a Declaration of Independence:

We the People of the County of El Dorado, California, have the right to produce, process, sell, purchase and consume local foods, thus promoting self-reliance, the preservation of family farms and local food traditions.

Indeed, "freedom v. oppression" was a theme among the 20 or so pro-ordinance speakers at the meeting. According to the Bee, another hundred or so supporters overflowed from the meeting room.

While El Dorado County Supervisors did not adopt that ordinance at their January meeting, they did appoint two members to draft a resolution in support of local food governance. This watered-down action came in spite of highly supportive comments one supervisor made about local agriculture and his own family's involvement in it. Supervisor Ray Nutting is quoted:

I am personally appalled that they will come onto my ranch and tell me I can't share my cow or I can't share my chickens.

After some references to his own "homesteading, cow-milking ... and chicken-decapitating grandmother," Nutting concluded: "Whatever we need to do, I'm in full support." El Dorado County Sheriff John D'Agostini commented that his office is "not going to be the milk police" and voiced support for the ordinance.

Despite widespread sentiment in favor of small farmers and direct sales, the Board of Supervisors was surely influenced to take only tepid action by the county's lawyer, who advised that Chelseth's proposed ordinance runs afoul of the California Constitution, which reserves for the state the prerogative to regulate food for public safety.

Indeed, state regulators say they "won't kowtow to the movement when it comes to changing policy." A California Dept. of Agriculture spokesperson said the Department would be guided by the state legislature. He added that the only proposed changes in the pipeline are aimed at achieving greater clarity regarding the regulation of very small dairy herds. The spokesperson did not indicate whether such changes would affect producers like Chelseth, who seek to sell raw mailk directly to consumers.

Lest this state-local power struggle appear to be an isolated event, I note that both Bee stories indicate that similar tensions are playing out elsewhere, both within California and across the nation. An official from the Sonoma Valley (California) Grange who attended the El Dorado County meeting commented that the California State Grange supports such ordinances and is "searching for an alpha dog to lead the way, and we're encouraging your county to be the leader."

The earlier Bee story compares what is happening in El Dorado County to a similar movement in Maine. There, the state agriculture agency has told municipalities that their food-related ordinances do not supplant state laws.

Shermain Hardesty of the UC Davis Small Farms program thinks some middle ground may be possible. She is researching different standards that would ensure the safety of food that is not widely distributed and sees small meat-processing plants as one solution. But even Hardesty says "raw milk is a different question," presumably because of serious concerns about its safety. Get more information here, from Real Raw Milk Facts.

El Dorado County lies due east of Sacramento County, and it stretches many miles from exurban El Dorado Hills, a posh planned community abutting Sacramento County, though the Mother Lode and historic gold rush towns and thousands of acres of El Dorado National Forest, to Lake Tahoe. It is part of the Sacramento-Roseville Metropolitan Area, but it is relatively sparsely populated as metro counties go, at just 106 persons per square mile.

I travel to El Dorado County frequently, in part because I particularly enjoy its viticultural offerings. More on that, perhaps, in another post. Photos are of some farm scenes in El Dorado County, including my favorite farm stand, run by a Hmong family, on Pleasant Valley Road. Of course, regulations around selling vegetables are far less strict than those regarding meat and milk products. The sign proclaiming availability of eggs was taken yesterday, also on Pleasant Valley Road, which is south of Placerville (a/k/a Hangtown), the county seat. The top photo, from a farm on Bucks Bar Road, illustrates a work-around for selling directly to the consumer--selling the entire live cow! (This practice, too, may run afoul of the law, as Bee journalist Carlos Alcala reported here). El Dorado County Farm Trails signs are numerous, with many of them designating the county's dozens of wineries and hundreds (maybe thousands?) of acres of wine grapes. Read more here.

Cross-posted to Legal Ruralism.

Marijuana Cultivation Is Agriculture, too. No?

2012-01-31T08:22:00.014-06:00

In the four years since I founded Legal Ruralism and started requiring students in my Law and Rural Livelihoods course to blog with me, they have written a lot about marijuana, its production, and its legal regulation in the context of Northern California. Read some of their posts here, here, here, here and here. I more often write about pot in relation to my home county in Arkansas, in my "Law and Order in the Ozarks" series, when the local newspaper reports the drug/plant's seizure in the Sheriff's Report. Some examples are here and here. (Such stories were previously much more common, before meth came to town).

I have typically thought of these marijuana stories in relation to crime and law enforcement, including this story in yesterday's San Francisco Chronicle. The gist of it is that the Mendocino County, California Board of Supervisors voted last week to stop issuing permits for collectives that grow medical marijuana. Doing so will cut revenue at least $500,000, and that money is going to come out of the Mendocino County Sheriff's budget.

That sure sounds like a criminal law/drug policy story, but when you think about it, it's also a an ag law story. After all, the Agricultural Law Blog is chock full of stories about the legal regulation of agriculture--especially federal regulation--and that's exactly what's happening in California as the U.S. Attorneys here declare that regulations like those promulgated by Mendocino County regulations are at odds with federal law.

Further, if my students and their sources are to be believed, pot growing is big business in northern California's more rural counties, including Lake, Mendocino, Humboldt, and Trinity counties in particular. Marijuana--like corn, beans, oats, cotton--is cultivated and sold for cash (albeit often illegally). Indeed, pot is presumably the most significant cash crop in these California counties (and perhaps some others around the nation). In short, it is a serious economic engine of an agricultural variety. This 2009 CNBC story asserts that marijuana accounts for two-thirds of the Mendocino County economy; CNBC's source is a Mendocino County study. Here's a quote from a Mendocino County resident included in that story--a quote that makes the ag law link:

This is as natural as growing corn to me. This is the lifeblood of the county. And it has been for more than 30 years.

In light of the economic impact of pot cultivation, what should we expect from the federal crackdown on medical marijuana and California county governments' responses to it? Probably not a lot. I suppose the federal crackdown is unlikely to have much impact because most marijuana growers will continue to produce--whether or not there is the possibility of distributing their product legally. It may be that the only resulting change is the reduction of funds in county coffers associated with licensing its production.

Adverse Animal Health Impacts Associated with Fracking

2012-01-30T17:11:00.002-06:00

A new peer-reviewed scientific article on the negative animal health impacts of gas drilling was recently published in New Solutions, Vol. 22(1) 51-77, 2012.

Impacts of Gas Drilling on Human and Animal Health by Michelle Bamberger and Robert E. Oswalde is a study of the health problems reported by those who live and farm near gas drilling operations. Most striking are the animal deaths and illnesses. As the study noted, "[b]ecause animals often are exposed continually to air, soil, and groundwater and have more frequent reproductive cycles, animals can be used as sentinels to monitor impacts to human health."

The study relied on interviews with residents and animal owners in areas affected by gas drilling in Colorado, Louisiana, New York, Ohio, Pennsylvania, and Texas; state environmental regulatory agency documentation; interviews with veterinarians; water, soil, and air testing results; lab tests on affected animals and their owners; and interviews with drilling company representatives.

Health impacts that are reported include sudden death, neurological impairment, severe reproductive problems, including abnormal births and still birth, as well as urological, gastrointestinal, and dermatological maladies.

Some problems are linked to accidental exposure to toxic chemicals as a result of a spill or negligence. Other problems are linked to more insidious exposure through normal operations. Contaminated fresh water supplies and access to toxic wastewater were commonly associated with the most serious health problems and many deaths. Cattle with access to creeks near wells have died suddenly. Cats and dogs who licked their paws after walking through and drinking from wastewater puddles, "became severely ill and died over a period of one to three days." The reports are straightforward and objectively reported, and very powerful.

The authors concede that "[c]omplete evidence regarding health impacts of gas drilling cannot be obtained due to incomplete testing and disclosure of chemicals, and nondisclosure agreements." Indeed, the authors make a strong case for "common sense policy reforms" that would allow for the collection of the data necessary to support more detailed scientific analysis of short and long term health impacts.

Nevertheless, the study confirms that "clear health risks are present in gas drilling operations," and it documents a wide variety of serious health problems observed in farm animals, domestic pets, wildlife, and humans who live in proximity to such operations. The authors conclude, "[w]ithout rigorous scientific studies, the gas drilling boom sweeping the world will remain an uncontrolled health
experiment on an enormous scale."

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

2012-01-24T07:51:00.013-06:00

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Cross posted on Legal Ruralism.

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

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

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

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

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

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

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

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

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

Go here to submit your abstract.

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

Cross-posted to Legal Ruralism.

Law & the Future of the Food Movement

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

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

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

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

Here is her excellent presentation -

"Safe and Suitable" Meat Processing Ingredients

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

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

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

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

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

FDA regulations define a "processing aids" as

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

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

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

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

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

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

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

AALS Agricultural Law Presentation: Obama Administration Initiatives

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

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

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

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

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

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

Law Professors Going Back to School

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

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

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

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

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

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

Izeman: Wanted: Food Lawyers!

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

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

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

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

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

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

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

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

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

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

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

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

Hormone Levels in Beef and Lamb: Is Anyone Concerned?

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

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

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

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

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

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

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

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

Food insecurity has reached higher levels in America than in China

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

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

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

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

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

Rotting Crops, Prisoners and Inmates

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

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

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

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

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

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

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

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

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

"We eat animals because they taste good"

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Trespass Claim for Pesticide Drift

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

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

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

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

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

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

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

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

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

Myriad Genes To Patent

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

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

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

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

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

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

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

More agricultural law at LEXVIVO.

When Patents Attack

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

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

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

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

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

More agricultural law at LEXVIVO.

Prometheus Rebound To The Supreme Court

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

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

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

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

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

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

See more agricultural law at LEXVIVO.

Farming and Pride

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

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

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

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

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

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

Which brings me back to the quote.

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

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

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

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

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

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

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

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

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

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

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

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

National Geographic Discusses Decreasing Genetic Diversity in Our Food System

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

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

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

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

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

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

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

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

A lot to consider.

These geese will be cooked

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

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