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January 2014 Archive for Ag in the Courtroom

RSS By: John Dillard,

John Dillard grew up on a beef cattle farm and now works as an agricultural and environmental litigation attorney with OFW Law. His blog analyzes legal issues and court decisions that affect America’s farmers and ranchers.




NH GMO Labeling Measure Fails – Common Sense Prevails in the Granite State

Jan 24, 2014

The New Hampshire House of Representatives delivered a victory for agriculture and consumers on Wednesday. The House defeated a bill that would have required food sold in grocery stores and certain retail establishments to display a label on foods containing genetically engineered ingredients. This measure, if it passed, would have added costs at the checkout counter for New Hampshire residents without providing them any added value. This vote also represents a setback for the pro-labeling forces that enjoyed some success in the New England states.

The NH House Environment and Agriculture Committee had previously voted 12-8 to kill the labeling measure based on concerns that there is no proof that GMO foods are dangerous and the measure would be unconstitutional and unenforceable. However, in New Hampshire, all proposed bills get a floor vote, which came Wednesday. The entire House voted 185-162 to kill the measure.

It should be noted that an identical measure will be considered in the New Hampshire Senate. Sources close to the matter indicate that there is a better chance that this bill will receive approval in the Senate. If this is still the case, the House will have to take another vote on this matter.

While the labeling issue is not completely settled in New Hampshire, the vote to defeat the measure was a smart move for the House of Representatives. In addition to the practical flaws in the labeling bill, it was very problematic under the U.S. Constitution.

First, there is the issue of what is known as the "dormant commerce clause." The Constitution’s commerce clause provides the federal government with the authority to regulate interstate commerce. With this grant of power, it is also assumed that states cannot pass laws that interfere with interstate commerce. Although the GMO labeling measure isn’t intended to provide New Hampshire food companies a leg up over their out-of-state competitors, its effect would still burden out-of-state businesses that are trying to sell products in New Hampshire. There are exceptions to the dormant commerce clause, such as health and safety regulation, but it does not appear that the drafters of the legislation attempted to couch this as a safety measure.

New Hampshire imports between 85-95% of its food from other states. If New Hampshire had passed the measure, this would mean that food manufacturers would have to develop special labels just for products that are sold in New Hampshire. In some instances, it is likely that some food distributors would forego selling into the New Hampshire market because of the extra costs that would come with labeling. This would have certainly placed an undue burden on out-of-state companies trying to do business in New Hampshire.

Second, the First Amendment provides some protections for what can and cannot be mandated in terms of labeling. If a state government wants to compel a label, it must have a "substantial interest" in requiring a label. An acceptable substantial interest would be one geared towards consumer health and safety. For instance, nutrition labels or warning labels on pharmaceuticals are acceptable because they provide consumers with information pertaining to their health and safety. However, the proponents of this legislation argued that the basis for the labeling was that New Hampshire residents have a "right to know" what is in their food. While the "right to know" argument is appealing to some, it is not enough to stand up in court.

Federal courts have made it clear that there are limits to what a government can require when it comes to labels and satisfying the curiosity of some consumers is not enough. Without any proof that genetically engineered food ingredients are unhealthy, a state labeling measure will not muster.

While common sense prevailed in New Hampshire House, this legislative fight will continue in other states. It will not likely be settled until FDA takes action on a federal level to preempt the patchwork of state labeling regimes that could emerge.

John Dillard is an attorney with Olsson Frank Weeda Terman Matz P.C. (OFW Law), a Washington, DC-based firm that serves agricultural clients and clients with issues before federal and state courts, EPA, FDA, USDA, and OSHA.  John focuses his practice on agricultural and environmental law.  He occasionally tweets at @DCAgLawyer.  This column is not a substitute for legal advice.

OSHA Games the System to Target Small Farmers

Jan 02, 2014

There is frequent tension between the spirit of the law versus the letter of the law. Obeying the "spirit of the law" means following the intent of those who drafted it. Following the "letter of the law" means following the law as written - verbatim. Oftentimes, there is daylight between the two. Using vagaries to beat the system is one of the primary reasons why attorneys bear the brunt of a disproportionate share of profession-related jokes.

When it comes to enforcement against small farming operations, OSHA, can be rightly criticized for violating the spirit of the law and indulging in extreme artistic license when it comes to interpreting the letter of the law. Here is how: every year, Congress includes what is known as an "appropriations rider" into the legislation that funds OSHA. The rider explicitly instructs OSHA to not engage in enforcement activities against small farms. The legislation reads:

... none of the [OSHA] funds appropriated under this paragraph shall be obligated or expended to prescribe, issue, administer, or enforce any standard, rule, regulation, or order under the Act which is applicable to any person who is engaged in a farming operation which does not maintain a temporary labor camp and employs 10 or fewer employees...

Pretty straight forward, right? The average person on the street would read that and assume Congress has clearly made farms off-limits for OSHA enforcement. But the average person on the street is not an OSHA attorney. Instead of reading the legislation to mean that OSHA cannot enforce against small farms, OSHA instead sought out means to get around this provision and they found one. Instead of labeling small grain farms for what they are, OSHA has begun to view these operations as "grain handling facilities."

You have read that correctly. If you own land, plant seeds, harvest a crop, and place all or some of that crop into grain bins for storage and drying, you are not only a farmer, you are also a grain handling facility operator and are subject to OSHA regulations pertaining to such facilities. OSHA has said as much in their enforcement guidance on how to circumvent Congress’ prohibition on enforcing against small farms. Specifically, OSHA notes that any post-harvest activities that take place on a small farm are not covered by the Congressional exemption.

Adopting this approach, OSHA has started to flex its muscles beyond the farm gate. One example is Niobrara Farms in Atkinson, Nebraska. This operation, which has only one employee who is not a family member, was recently visited by an OSHA inspector and fined $13,000 for various violations, including failure to have a written plan to control fugitive grain dust. The operation did not have such plans in place in accordance with OSHA regulations because the farm viewed itself as, well, a farm – one that was exempt from OSHA enforcement. Fortunately, the Niobrara Farms took a stand and is currently challenging the enforcement action before an administrative law judge. The outcome of this challenge will likely determine whether OSHA will continue to exploit this loophole that it has fabricated.

Farming is a dangerous occupation. We all likely know someone that has died or become disfigured in a farming accident. My mangled right ring finger serves as a personal daily reminder for me to be on the lookout for potential hazards. However, although the business of growing and harvesting food and fiber is inherently dangerous, it is no excuse for a federal agency to seek a loophole around a Congressional decree in order to pester small farmers and hand out "paper" violations. OSHA should stick to dealing with the worker safety issues under its jurisdiction instead of focusing on creative ways to manipulate the law.

John Dillard is an attorney with Olsson Frank Weeda Terman Matz P.C. (OFW Law), a Washington, DC-based firm that serves agricultural clients and clients with issues before federal and state courts, EPA, FDA, USDA, and OSHA.  John focuses his practice on agricultural and environmental law.  He occasionally tweets at @DCAgLawyer.  This column is not a substitute for legal advice.

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