Big Policy Decisions Ahead

January 28, 2017 02:55 AM

The goings-on surrounding the new Trump administration have dominated most of the recent discussions about agricultural policy. However, if we take a step back from presidential politics, there are a number of important policy and legal issues that will impact agriculture and farmers in the coming year.   

Des Moines Water Works. One of the major environmental proxy battles between environmental activists and farming interests is being waged by a municipal wastewater treatment facility and several Iowa drainage districts. The Des Moines Water Works case has been going on for a couple years now, but it will finally see a trial this summer. At issue is whether drainage districts can be held responsible for nutrient runoff from farms, which is generally considered nonpoint source pollution under the Clean Water Act.

Litigation of “ag gag” laws. In 2017, courts in several states will decide the constitutionality of a number of laws intended to guard privacy on agricultural operations. Often derided as “ag gag” laws, these statutes impose criminal penalties for trespassers that gain employment on operations under false pretenses in order to gather video footage of conditions on farms and slaughter facilities. 

There is no doubt this footage can be powerful for the cause of animal rights activists. But this footage, which is often edited, is taken by individuals who obtained employment under false pretenses and do not necessarily have an interest in promoting animal welfare and food safety on a particular operation. The courts will have to balance rights under the First Amendment with a business’ right to privacy on private property.

Antitrust. There are many lawsuits relating to alleged collusion and price fixing in the poultry industry. Much of this relates to how the broiler industry has adapted to increased feed costs in the wake of the ethanol mandate. 

The plaintiffs allege poultry integrators worked together to reduce broiler populations to prop up prices in the face of high feed costs. The allegations are based on participation in data-sharing programs that allow companies to compare their own costs relative to the competition. It will be difficult for the plaintiffs to prove their case, but if these types of cases gain traction, they could scare off efforts to improve efficiencies in the meat and poultry industry.

GMO labeling. In 2016, Congress passed a law establishing a national labeling regime for “bioengineered” foods. Although many in the agriculture and food industry (myself included) believe GMO labeling is unnecessary, a federal standard was a better alternative than the 50-state patchwork that could have emerged with various state-level labeling laws. 

Congress’ law gives USDA until July 2018 to develop a regulation to implement the law. USDA will have substantial leeway in how it decides to approach the labeling requirement. 

For instance, USDA will be able to determine minimum thresholds for biotech content that would trigger labeling requirements. Also, USDA can decide whether to require labeling for advanced biotech breeding techniques that don’t involve interspecies gene transfers (e.g., CRISPR).

We can expect to see USDA’s proposal some time in 2017. The main thing to watch for is how much flexibility the new regulations will provide the food industry moving forward. The food industry is easy to rattle because they must follow the consumer’s ever-shifting whims. If USDA’s labeling regime is perceived as a warning label or stigmatizes biotechnology, food companies will demand non-GMO products, and producers will have less of an incentive to use new technologies.

This column is not a substitute for legal advice. 

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