National Feed and Grain Association has learned that FDA is planning to issue four separate sets of proposed regulations on the one-year anniversary of President Obama’s signing into law the Food Safety Modernization Act (FSMA). Those four regulations are:
(1) Preventive controls for human food
(2) Preventive controls for feed, feed ingredients, and pet food
(3) Foreign Supplier Verification Program (FSVP)
(4) Regulations requiring produce growers to implement preventive controls and product tracing systems for certain types of produce
FDA is also expected to release a “fact sheet” for each of the proposed regulations summarizing the major requirements, as well as schedule public meetings to provide opportunity for comment. Full article from NGFA.
Faegre Baker Daniels and FaegreBD Consulting will provide more analysis and guidance on the proposed rules later this week.
When last seen at the end of 2010, the controversial rules the Grain Inspection Packers and Stockyards Administration (“GIPSA”) proposed to implement significant changes in livestock markets had disappeared into the U.S. Department of Agriculture. Since that time, the proposed rules have become embroiled in – and stalled by – the debt-limit and budget-balancing wars in Congress. On December 8, 2011, GIPSA issued a final rule that rescued its rulemaking effort from this morass— but only at the cost of giving up entirely on the attempt to use this rulemaking to radically restructure livestock and poultry markets and the law governing them.
John Shively, Kim Walker and Jacob Bylund, partners in Faegre’s food and agriculture industry group, outline the journey of GIPSA to the final rule. Read more.
Faegre and Benson’s Food Agriculture & Biofuels (“FAB”) group is sending several representatives to the Feed and Pet Food Joint Industries Conference to be held in Chicago from September 22 through September 24, and is excited to be a Gold level sponsor of this groundbreaking event.
This conference is a unique colloboration between the National Grain and Feed Association and the Pet Food Institute on issues common to both organizations.
Please watch this blog for a post-conference recap highlighting the important topics discussed at this event.
The Obama administration has been putting pressure on the FDA to enforce existing laws on food labeling. Faegre & Benson lawyers talk with Food and Drink Magazine about what this means for food producers and consumers.
Read a PDF of the article here…
What are your thoughts?
Faegre & Benson is pleased to announce that the American Bar Association’s (ABA) Antitrust Section has named Faegre & Benson Partner John Shively co-chair of the newly-established Agriculture & Food Committee. This committee will focus on reporting, educating, and participating in accelerating antitrust developments within the agriculture and food sector.
Ian Conner of Hunton & Williams in Washington, D.C. has also been selected as co-chair and Les Locke of McGuireWoods in Chicago as Vice Chair.
This committee was formed to report, educate, and participate in the increase of antitrust developments addressed in the ongoing DOJ/USDA workshops launched by U.S. Attorney General Eric Holder and U.S. Secretary of Agriculture Tom Vilsack in March 2010. The Committee will provide a venue for advancing the dialogue started by the workshops, including the antitrust issues surrounding:
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Seeds
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Farm Crops
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Livestock
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Meat Packing & Processing
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Dairy
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Food Processing & Distribution
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Retail Groceries
Shively has practiced at Faegre & Benson in Denver and Minneapolis for more than 30 years. He moved to Colorado from Minnesota in 1984 to establish Faegre & Benson’s Denver office. Shively’s practice focuses on antitrust litigation and counseling, and the litigation of other large, complex commercial actions including contract, distribution and franchise litigation, fraud, and product liability actions. His service on this committee is consistent with the firm’s broad-based food, agriculture and biofuels practice, which includes over 100 lawyers.
Faegre & Benson’s antitrust and trade regulation practice uses an interdisciplinary approach in handling antitrust and trade regulation matters. The firm’s corporate and antitrust litigation attorneys work closely with agribusiness attorneys to deliver integrated client support in antitrust counseling, antitrust litigation, and government regulatory compliance, investigation and defense. The firm’s antitrust clients include many of the world’s largest agribusiness companies.
Faegre & Benson’s client, Crop Production Services, Inc. (a U.S.-based retail subsidiary of Agrium, Inc.), presented us with an opportunity regarding the completion of a task designed to update county-level real property records in a large number of jurisdictions, reflecting the effect of various mergers and name changes that have taken place over a number of years. The work was completed within five short months.
We believe effective legal representation begins with understanding our clients’ businesses and the environment in which they operate. We call this collaborative approach More Together®. Our legal capabilities, combined with our commitment to teamwork, enabled Faegre & Benson to provide quality, cost-effective and successful legal counsel to Crop Production Services.
The Faegre & Benson client team identified several components of the process and relationship that made this a significantly beneficial experience for both parties involved:
- With the aid of the firm’s workflow mapping specialist, we developed an efficient, step-by-step process for project management from start to finish
- The firm’s “bench depth” in our real estate group allowed us to staff the project with well qualified professionals in order to ensure on-time completion of project without compromising quality
- Communication with Crop Production Services at every step of the way kept them informed, addressed questions efficiently as they arose, and ensured client satisfaction as the project progressed
- Numerous cutting-edge project management tools were utilized, including a Project Reference Notebook system (PRN) and an extranet Web page
- An effective use of an alternative fee structure satisfied the client’s need/desire for predictability in its legal fee budgeting
“In the end, by choosing Faegre & Benson for this project, we were able to delegate the project to their team and know that we would receive a consistently high-quality product, on budget, and on time,” said Billy Pirkle, Senior Director in the EHS/Legal Department at Crop Production Services. “Ultimately, this collaborative effort was a real success.”
Faegre & Benson attorneys Michael Stewart, Jacob Bylund, Todd Langel and Robert Parish are featured authors in the 2010 edition of The Art of Grain Merchandising, a text book and leading industry resource regarding the marketing of commodities.
The attorneys’ chapter is entitled “Documenting the Trade & Managing Counterparty Default” and is split into two sections: “Documenting the Trade: Proper Contracting Procedure” (Bylund and Langel) and “Managing Counterparty Default” (Stewart and Parish).
The primary authors of The Art of Grain Merchandising, Don White and Sherry Lorton, have published multiple editions of the book to share the expertise of people who are making a difference in grain businesses and the communities that support them. White and Lorton write, “People often ask why they should read this book and the answer is quite simple, because merchandising skills change people’s lives.”
Stewart, Bylund, Langel and Parish are members of Faegre & Benson’s food, agriculture and biofuels industry team. The team represents many of the world’s leading food, agriculture and biofuels companies and has more than 100 attorneys dedicated to serving its clients. In addition to contributing to the book, the attorneys will be active participants in the firm’s 2010 Food, Agriculture & Biofuels National Conference.
In the long-running dispute between the United States and Brazil relating to U.S. cotton subsidies, it appears that the sides may be on the verge of striking a deal.
In early 2010, Brazil announced its intent to implement nearly $1 billion in permissible retaliatory sanctions against the United States. As announced, Brazil’s retaliatory measures were widespread and consisted of two forms:
1) Direct Retaliation
This form focused on retaliation against U.S. goods (i.e. the sector in which the “injury” occurred). Brazil intended to implement approximately $561 million in retaliatory measures against over 100 different classifications of U.S. products. Overall, the list of targeted products were highly diverse, but were most directly targeted at imports of U.S. wheat and other agricultural products (the Brazilian tariff upon which would have increased from 10% to 30% under the announced plan).
2) Cross Retaliation
This form focused on retaliation against U.S. intellectual and patent rights. Brazil indicated that it intended to implement approximately $268.3 million in sanctions against U.S. pharmaceuticals, biotechnology, and other intellectual and patent rights. If Brazil would have implemented these cross-retaliatory measures, this would have been among the first use of cross-retaliation at the World Trade Organization (“WTO”) – i.e. retaliation in a sector other than the one in which the violation or injury occurred, which could have set an important international trade precedent.
Just prior to Brazil’s threatened implementation of its retaliatory measures, however, the United States made a counter-proposal to Brazil, and Brazil has now agreed to delay its implementation through April 22, 2010 to allow for sufficient consideration of the U.S. proposal.
The terms of this offer are not fully known, but Brazil has confirmed that the U.S. has proposed creating an approximately $147 million annual fund to provide technical assistance/capacity building for the Brazilian cotton industry. This annual fund, if implemented would continue until the passage of the next farm bill, or until this dispute is otherwise mutually resolved. If implemented, the United States will be in the somewhat unique position of supporting both U.S. and Brazilian cotton producers, which could have interesting downstream ramifications.
This development is but the latest, and certainly not the last, in the ongoing battle over agricultural subsidies occurring at the WTO.
Post author Jess R. Phelps is a member of the Faegre & Benson litigation practice with focused experience in international trade issues. Prior to joining the firm, Jess held a clerkship position in the U.S. Court of International Trade. Jess has performed extensive research and writing on various agricultural law and international trade law subjects, including forestry initiatives, soil conservation, wind energy and land use. You can view Phelps’ full article on the U.S./Brazil cotton deal here.
The Ninth Circuit recently waded into the dispute over the state of California’s ban on the slaughter of non-ambulatory (or downer) livestock for human consumption.
California passed the law after an undercover video was released from a slaughterhouse in the state. The ban was supported by both food safety advocates and animal welfare groups, but opponents contended that the state law went too far and was preempted by existing federal regulations governing the slaughter of animals.
While the law was passed by the California legislature and went into effect, enforcement was stayed by a California district court. The March 31 ruling by the appellate court overturned that stay, finding that the state’s law did not regulate slaughterhouse operations, but instead was a limit on the types of animals that can be sold for food. This distinction, according to the Ninth Circuit, was enough to avoid the preclusion argument.
Despite being grounded in issues surrounding food safety (based on the premise that meat from the restricted animals was more likely to be diseased), animal welfare groups are also touting this ruling as a win. The fight may not yet be over on this issue though, as the National Meat Association, who brought the original lawsuit, could still ask the entire court to hear its appeal, and there may be further arguments regarding the portion of the law related to movement of non-ambulatory livestock. For the time being though, it appears as though the California law is beginning to be enforced.
With animal welfare concerns being raised and addressed across the country, from California to Ohio, and food safety on the forefront of business and government concerns, the legal and business issues being raised will continue to be a concern for the food and agricultural industries. Plan to join us in July for the inaugural FAB conference and our panels of nationally-renowned experts who will address these and other key concerns within the food, agricultural, and biofuels industries.
Today’s post author is Faegre & Benson attorney Jacob Bylund. Agribusiness is the focus of Jacob’s practice. A speaker at the 2010 conference, Jacob has litigated and counseled regarding a variety of issues affecting the firm’s agribusiness clients including: agricultural products liability, agricultural contracts and contracts litigation, agricultural debtor-creditor litigation and counseling, agricultural intellectual property litigation, environmental and nuisance law litigation and counseling, and antitrust and trade regulation.
Faegre & Benson’s Food, Agriculture & Biofuels group publishes alerts and articles pertinent to the industry — hot topics, case reports, dates and details on public forums — information you need to know, when you need to know it. It’s a fantastic and readily-available resource for those operating within the industry.
Here is a sampling of recent alerts:
- USDA and DOJ Workshop Focuses on Agricultural Competition, Concentration and Integration
- Recent Food Recall Is Reminder to Comply With Reportable Food Registry Requirements
- RCRA Claims Dismissed Against Firm Client Cargill
- CAFOs Likely to Be Retained as One of EPA’s FY2011-13 Enforcement Priorities
- Third Circuit Reverses Price Discrimination Judgment in Feesers v. Michael Foods and Sodexho
- EPA Greenhouse Gas Reporting Rule: Implications for Agriculture
Click here to view a full menu of recent topics. Sign up to receive the updates here.
[Post author Steven Toeniskoetter is a co-author of the recently published article, "Recent Food Recall Is Reminder to Comply With Reportable Food Registry Requirements." Follow this link to a related webcast on the topic, originally offered to members of the International Foodservice Manufacturers Association in response to the new FDA Reportable Food Registry and related requirements. As of September 8, 2009, certain factories, warehouses and other covered facilities are required to submit a report to the FDA within 24 hours if they find a reasonable probability that an article of food will cause severe health problems or death to a person or animal. If you'd like more information on the webcast or the article, you are welcome to contact Steven by clicking here.]