Faegre & Benson was pleased to co-sponsor the 4th Annual Sustainable Agriculture Conference in San Francisco on August 10-12, 2010. Co-Sponsors included companies such as Cargill, Syngenta and Bayer CropScience.
Mark Carpenter, Denise Kettelberger and Kim Walker attended the conference as firm representatives and speakers. Mark Carpenter presented on the “Recent Litigation Involving GMO Products and What It Means for the Future,” and Denise Kettelberger chaired a panel titled: “An Opportunity for the Audience to Question Our Crop Science Industry Specialists on Sustainability.” The panel included Dr. Jennifer Shaw, Head of Sustainability, North America, Syngenta, Brian Hrudka, Food Chain Manager, Bayer Crop Science and Ashish Malik, Senior Vice President Global Marketing, AGRAQUEST.
This global series of Sustainable Agriculture Summits hosted by American Business Conferences, and sister company London Business Conferences, is an established forum where incisive and detailed strategies on how to measure and reduce water and carbon impacts throughout the agricultural supply chain are formulated. The conference was attended by nearly 150 high level business representatives from companies such as Nestles, Dean Foods, Starbucks, Dole and New Sky Energy.
For more information, check out the official webpage for the conference: http://www.sustainable-agricultural-partnerships-2010.com/
Court Vacates Deregulation of Genetically Modified Sugar Beet Seeds But Declines to Issue Injunction
Last Friday, a federal court in the northern district of California vacated the Animal and Plant Health Inspection Service’s (APHIS) decision to deregulate sugar beet seeds genetically modified by Monsanto to be resistant to Roundup. The vacatur order once again makes the seeds a “regulated” article under the Plant Protection Act and consequently precludes their planting until APHIS complies with the National Environmental Policy Act (NEPA) and conducts an Environmental Impact Statement (EIS), or otherwise orders the partial deregulation of the seeds. The court’s order, however, specifically allows the seeds already planted to be harvested and processed.
In considering the remedies available to the plaintiffs, the court relied heavily on the Supreme Court’s recent decision in Monsanto Co. v. Geertson Seed Farms, 130 S.Ct. 2743 (2010). It found that in light of Geertson, an injunction preventing the planting of the genetically modified seeds was unnecessary and inappropriate. Specifically, the court held that Geertson prevented the issuance of an injunction when a “less drastic remedy” was sufficiently able to redress the plaintiffs’ injury. In so ruling, the court rejected the plaintiffs’ argument that APHIS would be unable to sufficiently prevent growers from violating the vacatur as too speculative to warrant an injunction. The court’s ruling therefore, makes no attempt to limit APHIS’s authority to “partially deregulate” the seeds and allow their planting under certain restrictions while the EIS is being completed.
The court also held that under Ninth Circuit law it was constrained to follow, it had the discretion to leave the invalid deregulation order in effect while APHIS conducted an EIS, if equity so required. Although the court objected to the discretion in the face of what it found to be a clear statutory mandate to invalidate the deregulation order, it nonetheless applied the Ninth Circuit law to determine if justice required leaving the order in effect. Ultimately, the court declined to exercise its discretion because it found that a vacatur would not cause “serious irreparable environmental injury.” In so ruling, the court declined to recognize Monsanto’s claim that the vacatur would cause it significant economic harm as a factor.
The court’s ruling comes almost a year after its determination that APHIS violated NEPA by deregulating the seeds without first performing an EIS, and five months after its denial of the plaintiffs’ request for a preliminary injunction.
In March 2010, the court ruled that because the plaintiffs had delayed five years in seeking and injunction, and during that time the industry had overwhelmingly converted to GM seeds, a preliminary injunction was not warranted. In closing, however, the court admonished that its decision should not be viewed as indicative of its views on a permanent injunction, and that going forward the defendants should take all efforts to use conventional seeds.
Before the court could rule on the plaintiffs’ permanent injunction, however, the Supreme Court announced its opinion in Geertson Seed Farms. In Geertson, the Supreme Court was faced with a similar case in which a district court had found an APHIS order deregulating Roundup Ready alfalfa to be invalid for want of an EIS and injoined the planting of the seeds until the EIS was complete. The Supreme Court, however, overturned the injunction because it was unnecessary in light of the decision to vacate the deregulation order, and it inappropriately preempted APHIS’s authority to first consider how it would proceed while the EIS was pending.
Finding the Court’s ruling in Geertson Seed Farms precluded a permanent injunction, the district court in this case simply vacated APHIS’s deregulation order and remanded the case back to APHIS for further consideration. Thus, as it stands now, APHIS is free to issue interim measures during the pendency of the EIS, such as partially deregulating the genetically modified seeds and allow their planting under certain restrictions, and the plaintiffs, of course, are free to again challenge any such decision.
Today’s post authors are John Mandler, Jess Phelps, and Rhyddid Watkins
Earlier this week, plaintiffs in the eucalyptus tree case filed an amended complaint adding two new claims asserting that APHIS violated the Endangered Species Act (ESA) by granting ArborGen permits to plant its genetically modified eucalyptus trees. Significantly, this is the first time that ESA claims have been asserted within the GMO context.
The first claim alleges that APHIS failed to consult with the Fish and Wildlife Service (FWS) to ensure that planting the eucalyptus trees in accordance with the permits would not jeopardize the continued existence of any threatened or endangered species, or result in the destruction of any critical habitat. The second claim alleges that APHIS violated the ESA by considering ArborGen’s permits in isolation and failing to account for the cumulative effects of ArborGen’s “overall strategy” of introducing its eucalyptus trees throughout the southeast.
In essence, the ESA is a comprehensive act designed to ensure that federal agencies work with the FWS to assess what, if any, effects their actions will have on endangered or threatened species and habitats. If an agency determines that its actions will have such an effect, the act requires it consult with the FWS, who in turn must conduct either a biological opinion or assessment of the action.
Again, this amended complaint introduces claims under the ESA for the first time in a genetically modified crop case, and perhaps illustrate the plaintiffs’ concerns relating to the potential invasiveness of the eucalyptus trees. Follow Faegre’s FAB blog for further coverage of this ongoing litigation.
Today’s post authors are Jess R. Phelps and Rhyddid Watkins.
Last month, several environmental organizations, including the Center for Food Safety and the Center for Biological Diversity, filed suit against the Animal and Plant Health Inspection Service (APHIS) in federal court in Florida. The plaintiffs are asserting four claims alleging, in essence, that APHIS violated the National Environmental Protection Act (NEPA) and the Food, Conservation, and Energy Act of 2008 by granting permits to ArborGen to field test genetically modified eucalyptus trees without first preparing an environmental impact statement (EIS).
On May 12, 2010, APHIS granted ArborGen and affiliated paper companies permission to perform field trials of genetically modified eucalyptus trees on 28 sites across seven states. Approximately 200,000 trees are, or are scheduled to be, planted on 300 acres in Texas, Louisiana, Mississippi, Alabama, Georgia, Florida, and South Carolina.
Although eucalyptus trees are not native to the United States and generally thrive only in very warm climates, they have been commercially grown in Hawaii and Florida for some time. ArborGen’s genetic modifications, however, are intended to allow the trees to be commercially grown further north by making them tolerant of temperatures as low as freezing. The trees are also modified to sterilize the male plants to prevent unintended invasion and to lower the lignin content, making them more suitable as raw materials for paper products. Eucalyptus trees provide valuable raw materials for pulp, paper, and bio-fuels and can be harvested faster than traditional hardwoods.
These field trials mark the first time that APHIS has approved genetically modified forest trees for open testing. Critics of the field tests, including the Georgia Department of Natural Resources and Florida Exotic Pest Plant Council, have expressed concerns that the eucalyptus trees can be particularly invasive because they are known for their longevity and pollen spread, and that they can be harmful to the natural environment because of their heavy water use, flammability, and susceptibility to harmful fungi.
Despite receiving over 12,000 objections to the trials, APHIS determined ArborGen could go forward after conducting only an environmental assessment, rather than the more involved EIS. Consequently, on July 1, 2010, the plaintiffs filed suit in federal court seeking to set aside the permits and obtain an injunction preventing APHIS from allowing any of the trees to flower pending the completion of an EIS. Plaintiffs are also seeking a declaration that APHIS violated NEPA and the Food, Conservation, and Energy Act. APHIS has not yet filed an answer.
This dispute could have potentially important impacts on the regulatory approval process for genetically modified crops, particularly after the recent U.S. Supreme Court decision in Monsanto v. Geertson Seed Farms.
Today’s post authors are John P. Mandler , Jess R. Phelps, and Rhyddid Watkins.
On August 5, 2010, the Senate unanimously passed the Healthy, Hunger-Free Kids Act (S. 3307). The bill’s passage, coming just before the August recess and the current extension of the child nutrition programs set to expire in September, has been praised by First Lady Michelle Obama, the U.S. Department of Agriculture and child and health advocate groups.
The bill is intended to help combat child hunger and childhood obesity by authorizing the USDA to implement nutritional standards for all foods sold in schools (including in vending machines), allocating $4.5 billion over 10 years to reauthorize child nutrition programs, and increasing the reimbursement rate for school lunches for the first time in over 30 years. The bill also calls for the Department of Health and Human Services to provide training and technical assistance to states to teach children about nutrition and wellness habits generally.
A companion bill in the House (H.R. 5504) was approved by the House Education Committee earlier this month, but has not yet been sent for a full vote. In contrast to the Senate bill, for which available funding has been identified, the House bill allocates $8 billion over 10 years with only $1 billion identified so far. Although both bills seek to increase the accessibility of subsidized school lunches and provide children up to three daily meals, the House bill is more expansive as it regulates any food sold in schools at any time, not just during school hours as in the Senate bill.
The bills could have a significant impact on the types and amount of foods available to children at schools. Because the bills are so different, it is difficult to know how an eventual law will affect the food industry.
Faegre will continue to track the bills’ progress through Congress and provide timely updates.
Today’s post is authored by Peter Goss. Pete is a partner with Faegre & Benson and tries mass-tort, toxic exposure and complex commercial disputes, and focuses his practice on defending product liability claims against medical manufacturers. Peter has served on trial teams for Solvay Pharmaceuticals, Pfizer and Sorin CarboMedics and has won dismissals for clients such as DuPont, Roche, Wyeth and Johnson & Johnson. The Legal 500 describes him as a “seasoned litigator providing solid trial experience and guidance.”
On August 4, 2010, the Senate Agriculture, Nutrition and Forestry Committee approved the Livestock Mandatory Price Reporting Act (S.3656) by voice vote. The Senate Ag Committee’s approval came just a week after the House Ag Committee approved its version of the bill (H.R. 5852) and only one day after it was introduced.
The bipartisan bills are set to reauthorize the Agricultural Marketing Act of 1946, which expires in September, for another five years. Additionally, the bills will expand the mandatory reporting of information on pricing, contracting and supply and demand of livestock and meat producers to wholesale pork cuts and dairy products. The bills also instruct the Secretary of Agriculture to establish an electronic price reporting system within one year, but leaves the all-milk price reporting system unchanged.
Now that the bills have been approved by the House and Senate Agriculture Committees, they will be sent to their respective Congressional chamber for consideration.
Our team will be following the case and will offer legal analysis at a later date.
Today’s post author is Rhyddid Watkins. Rhyddid Watkins is a member of the Faegre & Benson litigation practice. Prior to joining the firm, Rhyddid served as a judicial intern for the United States Bankruptcy Court for the Southern District of Texas and the U.S. District Court for the Southern District of Texas. He also was a volunteer law clerk for the American Civil Liberties Union.
Not since the 1930’s have the food and agriculture industries faced such rapid changes and increased regulatory activity. To address these critical developments, Faegre & Benson LLP held its first Food, Agriculture & Biofuels National Conference on July 28, 2010, at the Hilton Minneapolis.
The 2010 conference focus was Agricultural Production to Food Consumption: Meeting the Challenges for Sustainable Success. Designed for senior industry leaders, including executives, senior representatives, and lawyers, our conference provided the attendees with a unique opportunity to engage with panelists from international agribusiness and food companies, academic institutions, government officials, and trade associations.
Participants had the ability to construct their own program, choosing from 22 strategic panel sessions structured around short-term and long-term business planning topics. More than 70 panelists discussed topics within these categories:
Food Production and Safety. Sessions focus on challenges in food labeling, food safety, and solutions to the rise of obesity issues.
Production Agriculture and the Environment. Presentations cover a variety of production and environmental topics, including animal waste litigation and pesticide liability, animal welfare, greenhouse gas regulations, and balancing the food vs. fuel debate.
Brand Sustainability and Your Intellectual Property. Sessions address business strategies in a green economy, university technology transfer, supply chain management, brand recognition, and trade secret protection.
Doing Business in the World Market. Speakers examine counterparty risk management, agricultural finance, international immigration compliance, product globalization, and the strategies in acquiring and integrating new business lines.
A morning plenary session addressed the rising tide of market regulation and Ann Tutwiler, coordinator for Global Food Security in the Office of the Secretary at the USDA, delivered the luncheon keynote presentation on the “Feed the Future Initiative.”
Hope to see you at a session in Minneapolis!
Did you know special green considerations went into planning the 2010 event?
Our conference is working to reduce its impact on the environment by taking the following steps, ensuring an environmentally-friendly event.
Printed Materials
- All printed products were produced at Shapco, a Minnesota Green Printer and certified member of the Great Printer Environmental Initiative.
- Printed materials make use of soy and linseed-based inks.
- All paper products use post-consumer recycled materials.
Hilton Minneapolis
- Food that is exposed to the public (scraps) is picked up by Second Harvest and processed into hog feed for local farmers.
- Separate recycling containers will be provided for paper, cans, and bottles.
- Body heat sensitive thermostats will adjust temperature as necessary, reducing energy use by 30% (annually).
- Guestrooms have water-conserving fixtures, including shower heads and toilets.
- Housekeeping does not use softeners in the wash, limiting the chemical additives in the water.
- Used shampoos, conditioners, and lotions are donated to the local homeless shelters.
- We will use glasses or biodegradable cornstarch cups for beverages, no bottles.
Faegre & Benson believes in being a good steward of the environment. And like our clients, we are reducing consumption of natural resources in a variety of ways.
We have adopted a firmwide sustainability policy covering all areas of our operations. To ensure continual improvement, a dedicated committee measures progress in key areas identified in the policy—charting successes and identifying next steps.
Our current policies and initiatives include:
- Faegre & Benson is a partner in the ABA-EPA Law Office Climate Challenge.
- All of our domestic offices participate in the EPA Energy Star program, and three of our four domestic offices have adopted Best Practices for Paper.
- Three of our domestic offices—in Minneapolis, Denver and Des Moines—are located in Energy Star buildings.
- We offer a mass-transit subsidy program in our Minneapolis, Denver and Boulder offices.
- We encourage bicycle commuting by providing access to bike racks and shower facilities in our Minneapolis and Boulder offices.
- We share our sustainability policy with all vendors.
- We request and maintain information from vendors regarding environmental impact of their business activities. Vendors are informed that sustainability practices are a factor in our selection criteria.
- Our printer and copier paper contains at least 30 percent post-consumer recycled content.
- We have comprehensive recycling programs in our Minneapolis, Denver and Boulder offices.
- Old appliances, obsolete furniture and office supplies are donated whenever possible.
- Unused food from events in our Minneapolis office is delivered to local shelters.
- We do not use bottled water at firm functions.
In addition to these actions, we encourage lawyers and administrative staff throughout our firm to participate in green initiatives—and to propose ideas for reducing our impact on the environment.
Register today for topic #13! Advances in biotechnology tools and biomarkers, together with years of research in understanding specific pathways of crop metabolism, provide today’s seed companies with a wish list of traits to improve crop yields and sustainability. Panelists in this session will address the great promise of a new era in biotechnology crops, patenting and licensing challenges for the new technology, and alternative business paradigms for getting innovative seed to market.
Panelists:
Daniel Cosgrove, Vice President of Business Development, DuPont Ag Biotech
Pioneer Hi-Bred International
Daniel J. Cosgrove serves as Vice President of Business Development for the DuPont Ag Biotech business unit. A native of Sioux City, Iowa, Dan received his Bachelor of Science degree in engineering from Iowa State in 1989 and his law degree from Drake University in 1992. Prior to taking a business development role, Dan was the leader of the intellectual property group and corporate counsel at Pioneer. He practiced law at of Zarley, McKee, Thomte, Voorhees & Sease in Des Moines where he was a partner practicing in the area of litigation and licensing.
Edward James Woodhouse, Jr
Assistant General Counsel
BASF Corporation
Edward James Woodhouse, Jr (Jamie) currently assists the general counsel for BASF, supporting agricultural products and plant biotechnology at Research Triangle Park, North Carolina. Prior to his career at BASF, he had a private practice of law in Southwest Virginia (from 1978 – 1989) and an in-house counsel role in Hercules (1989 – 1994). A graduate of Harvard College, he holds a J.D. from the University of Virginia.
Denise Kettelberger, Intellectual Property/Patent
Faegre & Benson LLP
Denise Kettelberger concentrates her practice in intellectual property law with a particular emphasis on biotechnology patents. She focuses on strategic IP counseling and portfolio management for clients in the biotechnology, pharmaceutical, seed, and medical device industries. Her work in this area includes patentability assessment, strategic and coordinated prosecution of worldwide patent applications, including prior art management, analysis of individual inventive contributions, proactive and coordinated PTO examiner interviews, appeals, and strategic reexamination and opposition. Denise’s work also includes analysis of third party patents for infringement, validity, and freedom to operate, participation in analysis of litigation strategies, including potential claim constructions, and has served as an expert witness.