Our summer policy update covers developments on animal ID, lawsuits against Monsanto, GMO labeling and highlights from state legislatures around the country.
ANIMAL ID FIGHT TAKES A NEW TWIST
Back in 2006, the USDA proposed the National Animal Identification System (NAIS), a plan developed by large agribusinesses to grease the wheels of international trade—and to make lots of money for tech-related businesses. NAIS would have required every person who owned any livestock or poultry animal, down to a pet pig or a backyard chicken, to register with the government, tag each animal (in most cases, with electronic ID) and report their movements to a database controlled by large agribusiness interests. This obscenely overreaching plan was withdrawn in 2010 in the face of widespread organized grassroots opposition.
USDA replaced it with the “Animal Disease Traceability Program,” which only applied to cattle and poultry, and only when they cross state lines. The grassroots coalition that had killed NAIS ensured that the ADT provided for multiple options for official identification; while electronic IDs were recognized, so were non-electronic forms of ID.
The ADT program was put in place through a formal rulemaking process, in which USDA proposed the rule, accepted comments from the public and included a response to all of the comments when it published the final rule. Changes to such a rule are supposed to be made through that same process.
The first signs of trouble came in 2017, when USDA held public meetings that made it clear that the agency and its agribusiness allies still wanted to move ahead with an all-electronic approach to animal ID. Small producers who attended those meetings again raised the problems with electronic ID: the cost of the tags and, even more, the cost of all of the infrastructure necessary to support such an electronic tracking system. Just as with NAIS, when we asked the agency for data and hard facts as to why electronic ID would be needed, we were met with unsupported vague claims—and, ultimately, a focus on the export market for big agribusinesses.
Now, instead of going through the proper public process, USDA has announced that it will simply stop approving non-electronic forms of ID for cattle at the end of this year. As of January 2023, all adult cattle moving interstate will need to have an approved form of electronic ID. . .a significant change to the ADT rule, done without any of the normal rulemaking procedures. Watch for future articles on how we will respond to this improper action by the agency.
LAWSUITS TAKING A BITE OUT OF MONSANTO-BAYER
In 2018, the Department of Justice approved the merger of agribusiness giants Bayer and Monsanto over the objections of numerous farming and consumer interest groups. But Bayer may be starting to regret the merger.
In May, a California jury awarded a couple two billion dollars in punitive damages, after concluding that sustained exposure to Monsanto’s Roundup weed killer led to their cancer. The couple had used Roundup for thirty years for landscaping their home and other properties. Both have non-Hodgkin’s lymphoma, which has been linked to glyphosate, the active ingredient in Roundup.
The internal documents disclosed during the trial revealed that Monsanto’s focus has been on attacking anyone who raises questions about glyphosate’s safety, rather than in determining the level of risk of its product. (This is not a surprise to anyone who has looked at the scientific studies and the PR surrounding them.)
This is the third jury in a row to award punitive damages against Monsanto/Bayer, and each case brings new developments. In August 2018, the first jury to hear such claims in another case awarded almost three hundred million dollars, which was reduced to seventy-eight million dollars on appeal. The jury was allowed to hear information on Monsanto’s alleged cover-up at the same time that it was considering whether or not Roundup had caused the plaintiff’s cancer. That jury found Monsanto failed to warn the plaintiff of Roundup’s health hazards and “acted with malice or oppression.”
The second case then broke new ground, because the judge refused to allow the plaintiff’s attorneys even to discuss Monsanto’s alleged influence on research and regulations during the hearings—removing that potential source of bias. Yet the second jury still found that glyphosate had more likely than not caused the plaintiff’s cancer. And once the second trial reached the stage of deciding on damages, the judge, who had previously favored Monsanto in his pre-trial orders, made this observation: “Although the evidence that Roundup causes cancer is quite equivocal, there is strong evidence from which a jury could conclude that Monsanto does not particularly care whether its product is in fact giving people cancer, focusing instead on manipulating public opinion and undermining anyone who raises genuine and legitimate concerns about the issue.” The jury ultimately ordered Bayer to pay eighty-one million dollars in damages in that case.
Bayer’s shareholders are facing an ugly future, with over eleven thousand more cases waiting to go to trial with claims related to Roundup.
CONSUMERS LOSE ON GMO LABELING
But while the GMO industry is suffering some serious blows in the courtroom, it still clearly has far too much influence over federal agencies such as USDA, as seen by the extremely pro-industry GMO labeling rule released in January.
The rule does not require the use of the term “genetically engineered” or “GMO.” Instead, the label uses the term “bioengineered,” even though consumers are very unlikely to realize that this new term actually means GMO.
And what is going to be labeled? The rule allows companies to choose whether or not to label highly refined products such as corn syrup and vegetable oil. While it’s better if people simply don’t eat such foods, it still matters—for health, environmental and ethical reasons—whether or not they are genetically engineered.
The rule also exempts the new techniques for genetically engineering plants and animals. Gene-editing using CRISPR is one example, where scientists manipulate an organism’s own DNA to silence certain genes or express otherwise silent genes. USDA agrees with the companies that such modifications “could” have been obtained through conventional breeding, and thus they won’t be considered bioengineered. Similarly, products made through a technology called RNA interference (RNAi), a gene editing technique for blocking the expression of certain genes, are unlikely to be covered. This means that the GMO Arctic Apple, a non-browning apple, will not require a label. More and more genetically engineered crops will be created using these techniques without requiring a label.
The USDA’s approach completely misses the point. Even if a particular change could have been brought about through traditional breeding, it wasn’t. And we don’t know whether the genetic engineering had additional, unintended effects. The fact that it was brought about through genetic engineering in a laboratory means that consumers have a right to know.
Finally, while the USDA backed away from the absurd smiley face labels it had proposed, the final image is still misleading. It depicts a green field and a sun—natural images to communicate the presence of decidedly unnatural ingredients. And, as the final insult, even this misleading, weak label isn’t actually required, since companies can simply put a QR code on the package, requiring consumers to scan the code with a smartphone and then navigate a website to find the information.
The labels, weak as they are, must be in place by January 2022. In practical terms, consumers should continue with the advice we have been giving all along—buy from local producers you know. And when in grocery stores, look for certified organic and certified non-GMO labels.
STATE HIGHLIGHTS ON AG-GAG AND RIGHT TO FARM
While the local food community continues to fight for food freedom and farmers’ ability to make a fair living, the large agribusinesses use similar rhetoric about the “freedom to farm” and protecting farmers to push for laws that hide them from public scrutiny and accountability.
In Texas, the poultry industry pushed SB 1884, which would have made it a felony to have “unauthorized access” to an agricultural business’s documents or to come onto an agricultural facility’s property under false pretenses. This bill was aimed at the whistleblowers who have gotten access to factory farms, filmed animal abuses or obtained documents showing violations of environmental regulations, and then released that information to the public. The ag-gag provisions were not mentioned by the proponents of the bill—instead, they tried to focus attention on the far more justifiable provisions addressing penalties for people who gained access to a property and then hurt or released animals. Opposition from the Farm and Ranch Freedom Alliance led to amendments to the bill and ultimately its demise.
Iowa, however, continues to push forward with “ag-gag” laws. A 2012 statute made it a crime for journalists and advocacy groups to go undercover into meatpacking plants, livestock confinement operations and other agricultural businesses in order to investigate animal or worker conditions, environmental hazards and food safety issues. Earlier this year, a federal court ruled that the law violated people’s right to free speech. Within weeks, the Iowa legislature passed another bill with much the same effect. The new law deems a person a trespasser if they use deception to gain access to a farm to cause physical or economic harm—such as causing loss of sales due to exposing illegal activity.
It’s important to recognize that there are already laws that make trespass illegal, as well as criminalizing activity that leads to physical harm to animals, crop destruction or other legitimate property interests. Ag-gag laws are about increasing the penalties and scope of these laws to give special, unique protection to agribusinesses and help them to hide when they are acting unethically, illegally or even dangerously.
We see a similar misuse of power in the realm of “right to farm” laws. While it is an appealing sounding concept—particularly for our community, which has struggled with regulations that threaten to push people out of farming—the laws in place in most states primarily protect the large-scale industrial operations that truly are bad neighbors.
A recent case in Indiana illustrates the problem. In Himsel v. Himsel, the defendant farm had been farming on the land for several decades, primarily raising crops. In 2012, the farmer decided to convert to a hog operation housing eight thousand hogs in two large buildings, establishing a confined animal feeding operation (CAFO). The plaintiffs who lived nearby had no objection to the previous farming operations, but they filed suit against the confinement hog operation. In particular, the plaintiffs complained that the odor of the CAFO diminished their quality of life and property value, and altered their daily activities.
The trial court granted judgment in favor of the CAFO, and the appeals court upheld that verdict in May of this year. The court’s decision was based on the fact that the Indiana Right to Farm Act protects gricultural operations that have been operating for at least one year unless there has been a “significant change” in the operation. By itself, that may be reasonable, but the statute expressly provides that the following situations are not “significant changes”: converting from one type of ag operation to another, changing the size of the operation or adopting “new technology.” Thus, changing from a crop farm or even a pasture-based farm to a CAFO is not a “significant change” under the Indiana law. No other private business is given this sort of protection when it harms its neighbors.
And good news for local meat producers and consumers: the PRIME Act is back.
To end on a positive note, just as this article was going to press, U.S. Representatives Thomas Massie (R-KY) and Chellie Pingree (D-ME), together with Senator Angus King (I-ME), re-introduced the PRIME Act to make it easier for small farms and ranches to serve consumers. The Processing Revival and Intrastate Meat Exemption (PRIME) Act, HR. 2859/ S.1620, would allow states to permit the intrastate distribution of custom-slaughtered meat to consumers and wholesalers. Current law exempts custom slaughter of animals from federal inspection regulations only if the meat is for personal use; to sell cuts of meat to consumers, even at local farmers markets, farmers and ranchers must send their animals to one of the often far-away slaughterhouses that meets USDA regulations.
H.R. 2859 and S. 1620 already have nineteen co-sponsors from fourteen states and both parties, so it’s off to a good start. Stay tuned for action items on the PRIME Act in your email and future Wise Traditions articles.
STATE HIGHLIGHTS ON FOOD FREEDOM
North Dakota’s Food Freedom Act, passed just two years ago, narrowly survived a legislative challenge this year. The 2017 Food Freedom Act allows the unregulated sale of all foods directly from producer to consumer except meat and raw dairy. The state health department pushed a bill, SB 2269, that would have banned low-acid canned foods and mandated that “potentially hazardous foods” be sold frozen. The sponsor of the bill attempted to portray it as simply providing consistency and conformity across the state, without acknowledging that it reversed significant portions of the 2017 law. Fortunately, SB 2269 ultimately died when the House voted against accepting the conference committee version (65 nays, 25 yeas).
At the same time, Utah’s legislature expanded food freedom a bit this year with two bills. HB 256 exempts farmers with fewer than 3,000 laying hens from regulation when selling directly to consumers. These small producers can also sell eggs to restaurants without having to grade them, although the agriculture department can issue rules governing the temperature, cleaning and sanitization of such eggs. In addition, HB 412 allows the sale of meat from “nonamenable” species that are processed at a custom slaughterhouse, without an inspector present. “Nonamenable” species are those that are not included in the definition of amenable (i.e. cattle, sheep, goats, swine, or domesticated poultry), when domestically raised; it includes domesticated elk, bison, game birds and rabbits.
The Texas Legislature was very active on the issue of local food regulations this year, passing five bills that support local food producers. The most high-profile was an expansion of the existing cottage food law; the new law, SB 572, allows the sale of any nonpotentially hazardous food at any location in the state (so long as direct to consumer), and added pickled fruits and vegetables, acidified canned foods, frozen fruits and vegetables, and fermented vegetables to the allowed list. Another bill, HB 410, removed the current onerous requirements for an expensive facility for those farmers processing 1,000 poultry or 500 rabbits or fewer per year on their own farms. A third bill, SB 932, capped the fees that can be charged by local health departments for farmers and farmers market vendors; some local jurisdictions, particularly the larger cities, had been charging fees as high as $300, $600 or even $2,000 per year per market for some farmers market vendors, but will now be limited to no more than $100 per year per jurisdiction. Fourth, HB 1694 completely abolished the permit requirement for providing samples of food at farmers markets. Finally, HB 2107 requires local health departments to respond to questions by food producers as to what they have to do legally—and if the producer complies, an inspector cannot later come up with a different interpretation and fine the producer, as happens all too often.
And still ongoing, the Maine Legislature is considering a constitutional resolution on the right to food. LD 795 states that “All individuals have a natural, inherent and unalienable right to food, including the right to acquire, produce, process, prepare, preserve and consume the food of their own choosing by hunting, gathering, foraging, farming, fishing, gardening and saving and exchanging seeds or by barter, trade or purchase from sources of their own choosing, for their nourishment, sustenance, bodily health and well-being…; furthermore, all individuals have a fundamental right to be free from hunger, malnutrition, starvation and the endangerment of life from the scarcity of or lack of access to nourishing food.” If approved by the Legislature, LD 795 will be voted on by the citizens of the state.
This article appeared in Wise Traditions in Food, Farming and the Healing Arts, the quarterly journal of the Weston A. Price Foundation, Summer 2019