• Farm Bill,  General

    What’s OFF with Checkoff Programs?

    The history of checkoffs is full of controversy, greed, and legal challenges. The initial idea was for farmers to pool their resources to boost product sales and increase farm profitability. But, over time, checkoff programs have become a way for corporations to consolidate wealth and power into ever-fewer hands.

  • Climate Change,  Farm Bill,  Organic,  State Policy

    OEFFA Members Making Change

    There are few windows of opportunity to make changes to something as big as our food and farming system. When those opportunities present themselves, we have to be prepared to act. Fortunately, OEFFA staff and members have been working for months to advance positive change.

    Last year, OEFFA members attended community and virtual listening sessions or participated in an online survey leading to the development of OEFFA’s 2023 Farm Bill priorities. During the fall, member leaders and staff formed groups to support beginning and BIPOC farmers, increase investments in organic and sustainable research and regional food systems, address consolidation, and promote soil health and climate resilience.

  • Organic

    The End of Organic Farming…As We Know It

    Guest blog post by Jim Riddle, Organic Independents LLP, Blue Fruit Farm

    The fundamental concepts of organic farming have always been, “Feed the Soil, not the Plant,” and “Healthy Soil leads to Healthy Crops, Healthy Animals, Healthy People, and a Healthy Planet.” Now, those concepts have been turned on their head, with a recent Appeals Court ruling that you don’t even need soil for growing terrestrial crops, in order to be certified organic in the United States.

    If the ruling is allowed to stand, it will mean that crops grown using hydroponic methods can officially be certified as “organic,” as has been done by a handful of renegade certification agencies for a number of years. Consumers will continue to be deceived when they buy organic products, thinking that such products were grown in healthy soil, using methods that “foster cycling of resources, promote ecological balance, and conserve biodiversity,” as required by the legal definition of “organic production.”

    It will also mean that authentic organic farmers, who produce crops in healthy soil, who protect and enhance the biological diversity of their operations, and who use green manures, cover crops, crop rotations, and compost to recycle nutrients, will continue to compete with hydroponic operations that use inputs “approved for organic use,” but do not comply with the soil building, crop rotation, and ecological requirements of the Organic Foods Production Act (OFPA) and the National Organic Regulations (7 CFR 205).

    Decision Violates Organic Foods Production Act

    The Court’s ruling directly contradicts a stated purpose of the OFPA, which is “to assure consumers that organically produced products meet a consistent standard.” Consumers who purchase “organic” blueberries, blackberries, raspberries, tomatoes, peppers, cucumbers, and leafy greens will have no way of knowing if those products were produced by operations that comply with all requirements of OFPA and 7 CFR 205, or if those products were produced by hydroponic operations that only use “approved inputs” in their nutrient solutions.

    In its ruling, the Court stated, “the statute imposes three requirements for organic crops—a restriction on synthetic chemicals,” 7 U.S.C. § 6504(1); a prohibition on growing organic crops “on land to which any prohibited substances . . . have been applied,” id. § 6504(2); and a requirement that organic products “be produced and handled in compliance with an organic plan,” id. § 6504(3).”

    The OFPA requirements for an organic crop production plan, at 6513(b)(1), state, “An organic plan shall contain provisions designed to foster soil fertility, primarily through the management of the organic content of the soil through proper tillage, crop rotation, and manuring.” (emphasis added.)

    The Court stated, “USDA’s decision [to allow “organic” hydroponic] interpreted that provision to mean that if crops are grown in soil, their producers must take measures to preserve that soil’s ‘fertility’ and ‘organic content.’” (emphasis not added.)

    That interpretation is not supported by the OFPA, which contains no language that allows for organic crop production plans which do not address soil fertility. The word “if” is not used in the plain language of section 6513(b), which establishes the requirements for organic crop production plans.

    In addition, the Court failed to address the fact that USDA has issued no rules or regulations to guide the organic certification of hydroponic operations. In fact, there is no language in the OFPA or 7 CFR 205 that supports organic certification of hydroponic systems.

    The Court went further, stating that the USDA’s “interpretation is consistent with the OFPA, which provides that ‘…[i]f a production or handling practice is not prohibited or otherwise restricted under this chapter, such practice shall be permitted unless it is determined that such practice would be inconsistent with the applicable organic certification program.’ 7 U.S.C. § 6512.” (emphasis added).

    That interpretation is extremely dangerous, and could open the door to all sorts of technologies, systems, and practices, such as genetic engineering and food irradiation, which are not explicitly prohibited by the OFPA, from being approved for organic use, if the regulatory prohibition on such practices is challenged in court.

    Decision Violates National Organic Regulations

    There is a silver lining on this issue, however – the National Organic Standards Board (NOSB), which is charged by the OFPA with providing advice to USDA regarding implementation of the organic law and with making “consistency” determinations, clearly stated, in April 2010, by a decisive 12-1 vote, that, “Hydroponics, the production of plants in nutrient rich solutions or moist inert material, or aeroponics, a variation in which plant roots are suspended in air and continually misted with nutrient solution, have their place in production agriculture, but certainly cannot be classified as certified organic growing methods due to their exclusion of the soil-plant ecology intrinsic to organic farming systems and USDA/NOP regulations governing them.”    

    This is a clear indication that USDA’s statutory advisory board has ruled that hydroponic production is not consistent with organic certification. This important fact was ignored by the Court.

    Likewise, the Court failed to mention that the NOSB, in establishing the “Principles of Organic Production and Handling” by a 15-0 vote in October 2001, stated, “Organic agriculture is an ecological production management system that promotes and enhances biodiversity, biological cycles, and soil biological activity.” The Principles go on to state, at point 1.2, “An organic production system is designed to optimize soil biological activity.”

    The Court ignored the General requirement section of 7 CFR 205.200, which states, “The producer or handler of a production or handling operation intending to sell, label, or represent agricultural products as ‘100 percent organic,’ ‘organic,’ or ‘made with organic (specified ingredients or food group(s))’ must comply with the applicable provisions of this subpart. Production practices implemented in accordance with this subpart must maintain or improve the natural resources of the operation, including soil and water quality.”

    7 CFR 205.2 defines the “natural resources of the operationas “the physical, hydrological, and biological features of a production operation, including soil, water, wetlands, woodlands, and wildlife.” Hydroponic operations do not comply with this provision, since the crops are produced in isolation from soil and natural resources.

    The Court even ignored the definition of “organic production at 7 CFR 205.2, which requires that organic production systems integrate “cultural, biological, and mechanical practices that foster cycling of resources, promote ecological balance, and conserve biodiversity.”

    There is no way that hydroponic operations comply with the soil fertility requirements of the OFPA 6513(b)(1); the natural resource requirements of 7 CFR 205.200; the definition of “organic production” in 7 CFR Part 205.2; or are consistent with organic certification, as ruled by the NOSB.

    What Can We Do?

    To protect organic farming, as we know it, what can be done? There are a number of viable options:

    1. Partial Appeal – Parties who filed the original suit can challenge the substantive portions of the Court’s ruling, due to the omissions, misinterpretations, and misrepresentations it contains.
    2. New Suit – A new lawsuit, based on the USDA’s failure to enforce the law and rule as written, could be filed by certified organic growers who follow all requirements, yet are forced to complete with hydroponic operations that only have to comply with “approved input” rules.
    3. New Suit – A new lawsuit could be filed by consumers, based on the USDA’s failure to enforce the law and rule as written, and for its failure to follow the second purpose of the OFPA “to assure consumers that organically produced products meet a consistent standard.”
    4. Economic Pressure – Expose the corporations, including Driscoll’s, Wholesum Harvest, Eden Green, Superior Fresh and others, which sell hydroponic products as “organic.”
    5. International Pressure – No other countries, including our major trading partners, allow hydroponic products to be labeled “organic” and most explicitly prohibit it. Pressure can be brought to bear to exclude hydroponic products, ingredients, and formulated products, certified as “organic” under the USDA, from accessing foreign markets, and reciprocity agreements can be amended.
    6. Support Local and Regional Organic Producers – Buy from local and regional organic growers who follow all OFPA and regulatory requirements. Plant organic gardens and orchards.
    7. Support the Real Organic Project and Rodale’s Regenerative Organic Certification, both of which highlight operations that fully comply with all requirements of OFPA and 7 CFR 205, including those which require soil building, crop rotation, protection of biodiversity, and natural resource management.
    8. Amend the Law – As a Big Plan B, amend the OFPA to make it clear that hydroponics, genetic engineering and food irradiation are not allowed in organic. Period.

    While the USDA would like us to believe that this is a “settled issue,” it will not be settled until the USDA enforces the soil fertility provisions of 6513(b)(1) and uses its accreditation program to stop certification of hydroponic operations as “organic.”

    Jim Riddle grew up on a small, diversified farm in Iowa, and has been involved in farming since graduating from Grinnell College in 1978. In addition to operating Blue Fruit Farm, Jim has been involved in the organic sector for more than 30 years as an organic inspector, consultant, educator, speaker, and activist. Jim was founding chair of the Winona Farmers Market and the International Organic Inspectors Association. He served on the National Organic Standards Board and on the boards of the International Organic Accreditation Service and the Organic Farmers Association.

  • Farm Bill

    Representatives Kaptur, Bustos Bring Farm Bill Listening Session to Ohio

    The week of August 22, U.S. Representatives Cheri Bustos (D-IL) and Marcy Kaptur (D-OH) joined the House Agriculture Committee and held a listening session in Fremont, Ohio. More than 200 members of the public participated in the session in person or online.

    Crop Insurance Reform

    Ohio Representative Marcy Kaptur (right) and Illinois Representative Cheri Bustos (left)

    One of the prominent topics was crop insurance. While some major commodity groups repeat a refrain often heard during the 2018 Farm Bill discussions, “Don’t touch crop insurance,” sentiments may have shifted a bit since then. President of the Ohio Farmers Union and organic farmer Joe Logan reiterated the importance of the crop insurance program and talked about the need to “…reconfigure it in a way that rewards farmers for building soil health.”

    OEFFA organic farmer Eli Dean also spoke to the committee on the subject, noting that policies are put in place for all other USDA subsidy programs that do “means testing,” or making sure that benefits are not just going to the wealthy few, but that is not the case for crop insurance. For farmers who receive crop insurance coverage, taxpayers cover an average of 62 percent of the cost of each policy, and that holds regardless of how much money a farmer makes.

    Eli said that crop insurance is his favorite program, it works really well and there are adjustments that need to be made. Eli suggested there should be limits put in place so the largest farmers don’t continue expanding and the small- to mid-scale farms are not able to compete. According to Eli, “…as a taxpayer, it makes sense that our tax dollars don’t go to the richest one percent of farms”

    The National Sustainable Agriculture Coalition (NSAC) recently published an Economic Analysis of Payment Caps on Crop Insurance Subsidies. This report’s introduction noted a recent study found the largest 10 percent of farms received over 60 percent of all subsidy benefit. NSAC analyzed five different options for placing “caps,” or limits on the amount of subsidies farmers can receive, and one of those options presented (limiting all discounts of crop insurance cost to $50,000) would affect about 3 percent of farms and result in a 26 percent ($16.6 billion) savings. This is a clear illustration we can make this important risk management tool more equitable and cost effective while protecting about 97 percent of farmers using the program.

    Climate Change Solutions

    Tony Logan, former USDA Ohio State Director for Rural Development, spoke to the need for clear standards when it comes to measuring the amount of carbon farmers are able to store in the soil. As the USDA looks to incentivize practices that encourage minimization of greenhouse gases and/or sequestration of carbon, there needs to be a clear and accurate initial baseline and an effective, science-based measurement for progress over time.

    Concentrated Animal Feeding Operations

    Vicki Askins, a member of the Ohio Farmers Union and Lake Erie Advocates, asked that a temporary moratorium on Concentrated Animal Feeding Operations (CAFOs) be instituted to protect water quality in Lake Erie. While manure digesters are sometimes sought as a solution to CAFO waste generation, Vicki stated that they are expensive, and the government should not be subsidizing the cost for large operations.

    Local and Regional Food Systems

    Kristy Buskirk of Clay Hill Organic Farm shares her testimony.

    Kristy Buskirk, a farmer from Clay Hill Organic Farm, talked about selling into local and regional markets. In their ninth season as first generation farmers, they have experienced extreme weather events. With OEFFA’s 2023 Farm Bill platform in hand, Kristy talked about the need for increased investment in local and regional food systems, specifically in flash freezing infrastructure. The Ohio produce calendar and the school calendar don’t line up. Because most school kitchens are heat and serve, regional facilities that do minimal processing and freeze produce for later use would help farmers get into institutional markets such as farm to school.

    Angela Huffman with Farm Action received a standing ovation as she spoke about the presence of endless rows of corn and soybeans, but not food for people to eat. She also conveyed the issues of food security as national security, synthetics and contamination of our soil and our bodies, and the crisis of corporate consolidation in food and agricultural markets. Angela closed by saying we need to focus more on food and less on feed, and to expand crop insurance for diversification and organics.

    Fixing a Broken Food System

    Commenters had two to three minutes to share their thoughts, which is a challenge, but others hit home in that very tight time frame.

    Bob Jones of Chef’s Garden said, “…we have the largest spending of any nation on health care, the smallest spending on food, and there is a direct connection.” According to him, food and agriculture are broken; people are begging for more money for insurance and subsidies while people are obese, sick, and dying. He talked about those who grow fruits and vegetables, known as specialty crops in USDA parlance, as the tick on the end of the tail on the end of the dog when it comes to spending.

    It is clear from this snapshot of two hours of farm bill testimony that some people want things to stay the same. There is, however, a growing chorus of people advocating for change. Between a climate threatening the viability of farming in many areas of the country, the increasing consolidation of farming and food processing benefiting very few at the expense of thousands of small farmers and rural communities, increasing public health concerns directly relating to the food system or environmental crises, we can’t wait another five to ten years to get started.

    Now is the time. Join us today as we build the campaign for change.

  • State Policy

    Moving the Needle on Land Access

    When the National Young Farmers Coalition formed, they started their work by assessing the challenges faced by beginning farmers. It came as no surprise to many that access to farmland was, and remains, a huge hurdle for farmers just getting started. The cost of land to purchase or lease continue to climb and, combined with the significant investments in starting a new operation, often put a farming career out of reach for many.

    We know secure land tenure ensures that farmers are able to invest in place and provide culturally relevant food, medicine, and connection to their communities. That tenure also allows them to invest in practices and management systems that are sustainable, provide resilience, and strengthen the viability of our food system.

    Unfortunately, little attention has been paid to this important issue. That is, until 2018, when OEFFA started researching legislative options to support land access for beginning farmers.

    OEFFA Members Help Pass Family Farm ReGeneration Act

    We met with former Ohio House Representative John Patterson and Ohio Senator Bob Peterson, had conversations with folks in Minnesota who had recently passed a bill to provide tax incentives for beginning farmers, consulted with staff at the OEFFA Begin Farming program, reached out to the Ohio Farmers Union and the Ohio Farm Bureau, and, most importantly, heard from our members.

    OEFFA supported legislation to offer tax credits for owners of agricultural assets, including farmland, livestock, buildings, or equipment, who transfer them to a beginning farmer. House Bill 95, or the Family Farm ReGeneration Act, included credits on the following schedule:

    • 5 percent of the sale price of assets sold to a beginning farmer, up to $32,000
    • 10 percent of the gross rental income in the first three years of a cash rental agreement with a beginning farmer, up to $7,000 per year.
    • 15 percent of the cash equivalent in the first three years of a share rent agreement with a beginning farmer, up to $10,000 per year.

    This is the same structure utilized with the original Minnesota law. During our outreach and engagement on the bill, we organized a petition so that our members could demonstrate their support, garnering more than 600 signatures. Some OEFFA staff and members also provided testimony on the bill, including Rachel Tayse, Kate Hodges, Dean McIlvaine, Matt Aultman, and Jason Ward.

    Thanks to the advocacy of our members and partners, the bill received near unanimous support in the House Agriculture and Conservation Committee and the Senate Ways and Means Committee. During the last days prior to passage of the bill, changes were made to restrict the tax credit for owners of agricultural assets to 3.99 percent for all classes of transfer-sale, lease, or cost share rental agreement.

    Farming on land you don’t own can limit investment in long-term practices that may take years to see positive results, which also benefits communities through cleaner water and better ecosystem functions. It makes sense that we would want to increase the incentive for land leasing so these long-term practices have a better chance of being adopted, but also for the relationship building that may be necessary to secure a more permanent transfer into the future.

    Tax Credit for Beginning Farmers

    While the focus on the tax credits in this bill is the landowner, that is not solely the case. The bill also provides a modest tax credit for beginning farmers that participate in a business management program certified by the Department of Agriculture and/or Ohio land grant colleges, such as the Ohio State University and Central State University.

    OEFFA is currently working to ensure that our Begin Farming program is on that list. Its Heartland Farm Beginnings, a year-long farmer-led training and support program, is designed to help early career farmers achieve their goal of creating a sustainable farm business. Through intensive workshops, beginning farmers develop a whole farm business plan through goal setting, financial management, and assessment of resources, skills, and markets. Participants are also paired with a farmer-mentor for one-on-one support. 

    The USDA has historically disenfranchised black and indigenous farmers, and many of these “underserved” producers still cannot adequately access USDA programs, including credit options for purchasing land. That is one of the reasons OEFFA supported an increased tax incentive for agricultural asset owners that work to transition land and other resources to farmers of color.

    So, with the passage of the Family Farm ReGeneration Act, we do two things:

    1. We celebrate our power to win when we work together; and
    2. We work to improve the law in the future.

    Join us today and continue to build our power to make positive change for a more sustainable food and farm system. If you are already part of the OEFFA family, reach out to our policy staff to share your story and ideas.

  • General

    Making a Difference Together: Six Conference Conversations You’ll Want to Be a Part of

    For many, getting the OEFFA conference schedule of workshops, keynotes, and networking events can make you feel like a kid in a candy store.

    There’s so much good material to choose from and opportunities to connect with old friends and make new ones, all while working collectively toward a healthier future. The 2022 conference will be no exception.

    If you want to see real change in our food and farming system—changes that support organic and regenerative farmers and invest in healthful local and regional food choices—you’re going to want to be a part of these key conversations at the 2022 OEFFA conference, Rooted and Rising, February 12 online and February 17-19 at the Dayton Convention Center:

    • An Organic Approach to Farm Policy: Scott Marlow served as the executive director for the Rural Advancement Foundation International-USA, working to reorient the farm system away from concentration and corporate control to truly supporting family farmers. Join his virtual workshop on February 12 focusing on how we structure farm credit and risk management, and how the availability or lack of capital and access to crop insurance has a profound impact on the farming we see on the ground. 
    • Farm Bill Forecast: On February 12, a panel of food system leaders will explore how 2022 will be a formative year for the creation of the 2023 Farm Bill, and the unique opportunities it presents for reorienting the food system toward sustainability. Hear an in-depth conversation from Eric Deeble, policy director for the National Sustainable Agriculture Coalition, Abby Youngblood, executive director for the National Organic Coalition, and Jonathan McCracken, Senior Policy Advisor for Senator Sherrod Brown.
    • How Should Organic Grow?: Patty Lovera, policy director for the Organic Farmers Association, will have a conversation with organic growers and supporters about how organic should grow in the years ahead during this workshop on February 12.
    • Organic is Risky? Progress and Challenges of Crop Insurance for Organic Farmers: Jeff Schahczenski of the National Center for Appropriate Technology will focus on organic farmers and the crop insurance tools that do and don’t work during this February 12 workshop.
    • Winning a Better Food and Farm System: OEFFA’s new policy team will lead a discussion on February 18 about how to win a better food and farm system, and provide real next steps you can take away from conference.
    • The Critical To-Do List for Organic Agriculture: We are excited to welcome back Kathleen Merrigan, former deputy secretary of the U.S. Department of Agriculture. While there, she helped establish national standards for organic food and oversee the National Organic Program. During this February 18 workshop, she’ll share insights from her work with the Organic Trade Association, where she is identifying the priorities for organic as we head into the 2023 Farm Bill.

    This is just a sample of the critical policy conversations that we hope you will be a part of during the 2022 conference. Please join us as we work toward positive change! Learn more and register at conference.oeffa.org.

  • State Policy

    Beginning Farmer Bill on the Move

    The end of first year of Ohio’s 134th General Assembly brought the passage of Ohio House Bill 95 (HB 95).

    The Family Farm ReGeneration Act passed with almost unanimous support (Republican House Member Thomas Brinkman, Jr. was the only dissenting vote).

    OEFFA has been championing legislation to alleviate the overwhelming challenges beginning farmers face in finding affordable farmland for several years.

    Ohio can be proud to rank 6th in the nation in the number of beginning farmers.

    If we are to enjoy the food security and economic development benefits of agriculture, we must ensure next generation farmers have a secure land base.

    This bill establishes a tax credit for farmland owners and which grants an income and franchise tax credit to any person who sells or rents agricultural assets to a beginning farmer.

    How the Legislation Promotes Land and Resource Connections

    The credit equals:

    • 5 percent of the sale price of the assets sold to a beginning farmer, up to $32,000
    • 10 percent of the gross rental income in the first three years of a cash rental agreement with a beginning farmer, up to $7,000 per year
    • 15 percent of the cash equivalent in the first three years of a share rent agreement with a beginning farmer, up to $10,000 per year

    The same type of provisions were included in legislation that piloted this program in Minnesota. During the first year of implementing the law, they received more than 800 applications from landowners and beginning farmers. This holds promise for assisting both landowners and land seekers in the state. Ohio Representatives Susan Manchester (R-84) and Mary Lightbody (D-19) introduced HB 95 to the House Ways and Means Committee on September 28th.

    How You Can Help

    The Senate Ways and Means Committee will be hearing proponent testimony starting this week. If you would like to add your voice there are opportunities to call or present written or in-person testimony, call Amalie Lipstreu at (614) 947-1607 or email here. We need this legislation to pass the Senate and be signed into law by Governor DeWine before the end of this legislative session in the late spring of 2022. Help us to ensure a strong future for Ohio farmers today!

  • Marketplace Equity

    Biden Expands Anti-Trust Protections in Agriculture, Part 2

    Last month, President Joe Biden signed an Executive Order (EO) on Promoting Competition in the American Economy. This EO is exciting in many ways, from the sheer scope of its ambition to its acknowledgment of some of the many ills that have plagued American farmers, from unfair contract farming to retaliation. More on that EO can be found here.

    One of the most exciting facets of the Order, however, only received a few sentences’ worth of attention.

    The Order charged the Secretary of Agriculture, in conjunction with the Under Secretary of Commerce for Intellectual Property and Director of the U.S. Patent and Trademark Office, with submitting a report to the White House outlining the problems posed by patent-protected seeds.

    These seeds challenge regulators to protect them as intellectual property, while still ensuring fair competition in the agricultural industry. Patent-protected seeds cause tension between carrying out the Packers and Stockyards Act, which seeks to reduce monopolies and increase competition, and the Patent Act, which seeks to reward innovation by financially protecting intellectual property. 

    While instructing bureaucrats to submit a report may not sound like exciting government action, that the Biden administration has acknowledged patent-protected seeds as a potential detriment to competition is a sign of progress. 

    Anti-Trust and Seed Competition

    Competition in the seed industry is in real danger. Larger seed companies have been buying up smaller firms since the introduction of genetically engineered seeds, consolidating property rights in the seeds. Now, just four companies control 60% of global proprietary seed sales (see Howard’s seed chart here). 

    Consolidations in the seed industry mean higher prices and fewer choices for farmers. Farmers who use proprietary seeds also have to comply with restrictions on their use, including restrictions on seed saving. Decreased competition in the seed market also means less biodiversity in our soils and potentially, fewer tools as farmers look to adapt to an ever changing climate. 

    This industry consolidation is the kind of practice the U.S.’s antitrust laws are meant to prevent. Nevertheless, we also have robust intellectual property protections, under which these genetically engineered seeds are patented. These protections are rooted in protections going back to 1930, when the Plant Patent Act allowed the patenting of asexually reproduced plants (excluding tuber-propagated plants).

    The patenting of plants continued to expand over the next fifty years, when in 1980 the first utility patent– these are the quintessential patents, granted for new inventions– was granted for a genetically engineered bacterium. Patent protections continued to expand as GE crops were rapidly developed throughout the 90s. Patents prevent others from making, using, or selling a protected product for a set period of time. Patents thereby grant the owner a limited period of exclusivity– the enemy of competition.

    Biden’s Executive Order has charged the Secretary of Agriculture with a difficult task: assessing how to ensure compliance with our robust patent laws, while also breaking up the consolidation of the seed industry and increasing competition. Notably, there is no deadline in the Order for when this report must be submitted, nor any measures of success. However, the Biden administration has acknowledged seed competition as a concern, and the report will be a tentative first step toward what needs to be a vigorous solution.

    This blog is the second in a series of two guest posts by OEFFA policy intern, Eliza VanNess.

  • Marketplace Equity

    Biden Expands Anti-Trust Protections in Agriculture, Part 1

    On July 9th, President Biden signed an Executive Order (EO) on Promoting Competition in the American Economy, which covers a variety of industries including the agricultural sector.

    The Order identifies consolidation as a threat to the survival of small family farms and proposes a number of antitrust measures to bolster support for these farmers. 

    This EO is the latest in a long tradition of antitrust regulations spurred on by the agricultural industry.

    The most sweeping regulation was the Packers and Stockyards Act (PSA), enacted in 1921. At the time, the industry was controlled by only five large meatpacking companies, who together were engaging in anti-competitive practices such as restricting the flow of food and controlling prices to manipulate the market. The PSA was passed to clamp down on these activities, to ensure fair business practices and competitive markets. The PSA, enforced by the U.S. Department of Agriculture (USDA), still provides these protections today,

    While the Packers and Stockyards Act was an important measure in providing antitrust protections in agriculture, it proved insufficient in addressing such a broad problem. Biden’s July EO seeks to beef up the PSA, to protect small farmers trying to compete with ever-growing agribusinesses. 

    The July EO seeks to address the following crucial issues: 

    1. Reducing the burden on litigants suing under the Packers and Stockyards Act

    In order to sue under the Packers and Stockyards Act, courts in the past have required that litigants prove not just that a practice has harmed them personally, but that the practice has resulted in industry-wide harm. This is a difficult standard to prove, and the requirement has made it difficult for individual farmers to take advantage of the Act’s antitrust power. The new EO clarifies that proving industry-wide harm is not necessary to establish a violation of the Act, increasing the usefulness of the law to farmers. 

    2. Bolstering antitrust protections for poultry farmers

    Chicken farmers are often subject to the costs of contract farming, in which contractors or dealers have inordinate control over the factors that determine how much the farmers are paid, while leaving the farmers to assume the risks of factors over which they have little control and require the highest cost investments. The EO seeks to clamp down on this system, “prohibiting unfair business practices related to grower ranking systems.”

     3. Providing anti-retaliation protections 

    Farmers who’ve spoken up about exploitation at the hands of their contractors have too often experienced retaliation, placing farmers in the unfortunate position of choosing to stay silent about unfair business practices and facing potentially ruinous financial punishment. The EO instructs the Secretary of Agriculture to adopt anti-retaliation protections “so that farmers may assert their rights without fear of retribution.”

    4. Clarifying food labels and ensuring access to markets

    The EO bolsters food labeling, mandating labels that allow consumers to choose products made in the U.S. The Order instructs agencies to consider implementing a “Product of USA” voluntary label for meat products. The Order also instructs the Secretary of Agriculture to submit a plan to the White House Competition Council, outlining measures to promote competition in agriculture, as well as to support value-added agriculture and alternative food distribution systems. The Order suggests increasing price transparency in agriculture markets, increasing transparency to allow consumers to choose products that support fair treatment of farmers, and creating model contracts to help farmers negotiate fairer deals as measures the Secretary can include in the plan.

    5. Protecting competition in seed markets

    Finally, the EO identifies patent-protected seeds as a potential danger for competition in agriculture. These seeds cause tension between the Packers and Stockyards Act, aimed at increasing competition in agriculture, and the Patent Act, aimed at protecting intellectual property. Patent-protected seeds challenge regulators to protect them as intellectual property, while still ensuring fair competition in the agricultural industry.

    To figure out how to rise to this challenge, the Order instructs agencies to submit a report to the White House Competition Council, laying out the potential problems. Biden’s Executive Order is sweeping in scope, aimed at addressing a host of long-standing problems in the agricultural industry. However, the Order only provides instructions for agencies, who are ultimately charged with implementing the policies and rule makings proposed by the administration. Only time will tell how well these agencies implement the ambitious policies outlined in the Order.

    This blog is the first in a series of two guest posts by OEFFA policy intern, Eliza VanNess, a second year law student at the Ohio State University.

  • Organic

    Organic Animal Welfare Rule to Move Forward

    Animal welfare rules for organic livestock farmers have been in limbo for more than a decade.

    In 2017, the Obama administration published the Organic Livestock and Poultry Practices (OLPP) rule, which the Trump administration subsequently withdrew.

    When the Biden administration took office, many organizations, including OEFFA, asked that three pending organic rules be first on the list of U.S. Department of Agriculture (USDA) actions. OLPP was key among them. In mid-June, USDA Secretary Vilsack announced that the agency plans to reinstate animal welfare standards.

    It is important to note that organic farmers want regulation. The OLPP policy received more than 120,000 supportive comments, representing more than 99 percent of commenters. Without thorough standards for the National Organic Program, organic products lose their integrity, customers lose their confidence in the label, and organic farmers are deprived of market share. Organic certification is the only voluntary farming program regulated by the USDA.

    OLPP Would Disallow Poultry Porches

    During the June 17 announcement, Vilsack said that the forthcoming rule will “disallow the use of porches as outdoor space in organic production over time.” Large-scale poultry producers have used these “porches” as a substitute for outdoor access. For years, organic consumers and farmers alike have wanted this loophole to be closed and OEFFA applauds the Biden administration for making this a priority.

    The organic animal welfare rules ensure adequate space and outdoor access for organic poultry by establishing clear and enforceable minimum spacing requirements and specifying the quality of outdoor space that must be provided. OLPP will also codify standards for outdoor access for other organic animals, like cows, and prohibit physical alterations like de-beaking and tail docking.

    Comments Needed!

    When the rule is released again, it will mark the fourth comment period for organic animal welfare standards. The agency anticipates the rule going to the Office of Management and Budget within 6-9 months of the remand.

    Stay tuned to OEFFA or contact OEFFA today to learn more. When the rule is released (again!) we will provide information on how to comment, so we can continue to demonstrate the widespread support for this rule. In the meantime, celebrate this win for organic!