The Ag Law Harvest
Did you know there is a bird with talons larger than grizzly bear claws? The Harpy Eagle’s back talons can reach lengths of 5 inches, which is larger than a grizzly bear’s claws which reach lengths of around 4 inches. Thankfully, the Harpy Eagle is not usually found in the United States, they are traditionally found in the rainforests of Central and South America.
The variety and extent of the animal kingdom can be a good analogy when we talk about the scope and variability of agricultural and resource law. “Ag law” isn’t in and of itself a core area of law, at least not an area of law taught in most law schools across the country. Those core areas of law are traditionally contracts, constitutional, tort, property, and a few others. But ag law includes most, if not all, of the core legal subjects. This includes property law, tax law, tort law, international law, intellectual property law, environmental law, contracts, business, labor and employment, and others. This week’s edition of the Ag Law Harvest shows you how diverse ag law really is. We review some legislation moving in parts of the country that deal with tax law, property law, and administrative law. We also review Federal regulations and court cases that address food law, trademark law, and antitrust law.
Florida introduces legislation to protect farmers’ preferential tax benefits amid agritourism boom. Florida’s legislature is hard at work to ensure the success of Florida’s agriculture and agritourism industries. Recently, Florida’s legislature introduced Senate Bill 1186 and House Bill 717. The purpose of both bills is to promote Florida’s agritourism industry and protect farmers when it comes to land classification, taxation, and regulation. Both pieces of legislation look to:
- Eliminate duplicate regulatory authority over agritourism by preventing local government from enacting regulations that prohibit, restrict, or otherwise limit an agritourism activity from taking place on land classified as agricultural land.
- Prevent land from being classified “non-agricultural” simply because an agritourism activity takes places on the land, so long as the agritourism activity is taking place on a bona fide farm.
- Implement a hybrid property taxation scheme which allows the buildings and other structures used for agritourism activities to be assessed at just value and added to the agriculturally assessed value of the land.
Both bills are currently making their way through their respective chamber’s committees and should be voted on soon.
Michigan looking to pass legislation to reduce fines for family farmers that do not report accidental workplace deaths to the state. The Michigan Senate recently passed a substitute for House Bill 4031, which is focused on reducing the fine incurred by family farms for not reporting the death of a family member within eight hours. Under current Michigan law, a family farm must report any fatality to the Michigan Occupational Safety and Health Administration within eight hours or face a fine of at least $5,000, which is exactly what happened to the Eisenmann family in 2019. The Eisenmann family ran a family farm and was fined $12,000 after Keith Eisenmann fell to his death while repairing a barn roof. The bill seeks to reduce the fine for families that are grieving the unexpected loss of a loved one. Although a family farm will still be required to report the accidental work-related death of a loved one within eight hours, if a family fails to do so, the substitute bill drastically reduces the penalty. The original bill passed Michigan’s House of Representatives late last year, but the substitute bill passed by the Michigan Senate clarifies the definition of family farm. The substitute bill now goes back to the House of Representatives for approval.
Bioengineered food standard now in effect. January 1st marked the first day of compliance for the Bioengineered Food Disclosure Standard (the “Standard”). The Standard requires food manufacturers, importers, and certain retailers to disclose to consumers that foods are or may be bioengineered. The Standard defines bioengineered foods as “those that contain detectable genetic material that has been modified through certain lab techniques and cannot be created through conventional breeding or found in nature.” The Agricultural Marketing Service has created a list of bioengineered foods to identify the crops or foods that are available in a bioengineered form. For more information on the Bioengineered Food Disclosure Statement visit https://www.ams.usda.gov/rules-regulations/be.
A bite into the cheesier side of trademark law. Last month, a federal court in Virginia decided on a dispute between European and American cheesemakers. The dispute arose over whether the term “Gruyere” should only be used to identify cheeses produced in the Gruyère region of France and Switzerland or whether the term can be used generically to describe a type of cheese, regardless of where the cheese is produced. The Plaintiffs, two European business groups, filed an application with the United States Patent Trademark Office (“USPTO”) to register “Gruyere” as a certification mark under 15 U.S.C. § 1127 which would only allow cheesemakers to use the term “Gruyere” if the cheese came from the Gruyère region. The U.S. Dairy Export Council and others (“Defendants”) filed an opposition to Plaintiffs’ application with the Trademark Trials and Appeals Board (“TTAB”). The TTAB found the term “Gruyere” to be generic term used to describe a type of cheese, not a cheese’s origin. Plaintiffs’ then filed suit in a federal court in Virginia. The federal court held that the “Gruyere” term had become a generic term to describe a type of cheese and failed to find the term worthy of trademark protection. The court reasoned that although the term “Gruyere” may have once been understood to indicate where a cheese came from, over time “Gruyere” became a generic term to describe a type of cheese. The court noted the term “Gruyere” has become generic overtime because: (1) U.S. regulations allow the use of the term “Gruyere” regardless of where the cheese is produced, (2) there is widespread sale and import of Gruyere cheese that is produced outside the Gruyère region, and (3) “Gruyere” is commonly used in dictionaries, media communications, and cheese industry events to describe a type of cheese without regards to where the cheese is produced. Plaintiffs have since appealed to the Fourth Circuit Court of Appeals, which means we still have a gooey situation on our hands.
USDA and Department of Justice announce commitment to protect farmers against unfair anticompetitive practices. The U.S. Department of Agriculture (“USDA”) and the U.S. Department of Justice (“DOJ”) each announced their shared commitment to enforcing federal competition laws that are aimed at protecting farmers, ranchers, and other agricultural producers from unfair, anticompetitive practices. In continuing their commitment to enforcing such laws, the agencies released a statement of principles and commitments which include:
- Farmers, ranchers, and other producers and growers deserve the benefits of free and fair competition. The DOJ and USDA are therefore prioritizing matters impacting competition in agriculture.
- The agencies will develop an accessible, confidential process for agricultural producers to submit complaints about potential violations of the antitrust laws and the Packers and Stockyards Act.
- Increased cooperation between the agencies to enforce the laws that protect agricultural producers and to identify areas where Congress can help modernize rules and regulations.
As we have seen over the past few months, the federal government is keen on preventing the consolidation of the agricultural industry in order promote fair and equal competition. The announced commitments and principles demonstrate the government’s continued dedication to cracking down on unfair practices.