Effects of ‘forever chemicals’ on agriculture topic of Oct. 18 NALC webinar

By Tru Joi Curtis
National Agricultural Law Center
U of A System Division of Agriculture

FAYETTEVILLE, Ark. — Per- and polyfluoroalkyl substances, or PFAS, are chemicals once widely used in food packaging, stain repellants for clothing, as well as automotive and aerospace applications. In recent years, PFAS have become better known for presenting an array of regulatory and environmental challenges for agriculture.

OFW Law Associate Kyla Kaplan, Roux Principal Ryan Stifter and Roux Principal Engineer Chase Gerbig will present the National Agricultural Law Center webinar on Oct. 18, highlighting challenges faced by agriculture due to PFAS contamination. NALC Staff Attorney Brigit Rollins will moderate.

Because their extremely strong molecular bonds keep them from breaking down easily, PFAS are often called “forever chemicals.” A 2015 report from the Centers for Disease Control and Prevention said PFAS could be found in the blood of 97 percent of Americans. According to the Environmental Protection Agency, their effects on health and the environment aren’t fully known.

PFAS contamination has hurt or closed scores of farms in Colorado, Maine, Michigan, and New Mexico.

In use since the 1950s, the Food and Drug Administration phased out use of PFAS for food packaging in 2016.

Since then, “various state and federal agencies have taken action to address PFAS,” OFW Law Associate Kyla Kaplan said. “It is important to understand the potential impacts of PFAS regulations on food manufacturers and farmers.”

Kaplan, Roux Principal Ryan Stifter and Roux Principal Engineer Chase Gerbig will discuss PFAS during NALC’s webinar, “Not Your Grandfather’s Corn Maze – Regulatory and Legal Responses to Challenges Faced by Agriculture Due to PFAS Contamination.” The webinar will be at 11 a.m. Central/noon Eastern on Wednesday, Oct. 18.

The speakers will cover:

• The basic chemistry of PFAS and how it intersects with agriculture

• Regulatory compliance challenges

• Types of PFAS litigation involving agriculture

• Potential consequences of contamination for property owners

“PFAS are often found in the environment,” Kaplan said. “While the data regarding the health impacts of PFAS is inconsistent, it is crucial that agricultural producers are aware of these chemicals. I am looking forward to sharing this important information alongside a talented panel.”

NALC Staff Attorney Brigit Rollins, an expert in environmental law as it pertains to agriculture, will moderate the webinar.

“PFAS are a complex and always-changing topic,” Rollins said. “With the potential health risks and the possible impacts they have on agriculture, producers will benefit greatly from the information provided in this webinar.”

The webinar is free of charge and registration is online.

“We are thrilled to have Kyla, Ryan and Chase discuss PFAS during this webinar,” NALC Director Harrison Pittman said. “The topic of PFAS has had many recent developments, including new guidelines, legislation and studies, so the information provided will be extremely helpful to provide clarity on this issue.”

For information about the National Agricultural Law Center, visit nationalaglawcenter.org or follow @Nataglaw on Twitter. The National Agricultural Law Center is also on Facebook and LinkedIn.

For updates on agricultural law and policy developments, subscribe free of charge to The Feed, the NALC’s newsletter highlighting recent legal developments facing agriculture, which issues twice a month.

Truth in advertising: NALC webinar to discuss alternative enforcement methods

By Tru Joi Curtis
National Agricultural Law Center
U of A System Division of Agriculture

FAYETTEVILLE, Ark. — Claims about misleading food advertising are typically made to federal agencies, the courts, or the manufacturer, but there is another avenue – the National Advertising Division of the Better Business Bureau, a nonprofit organization that provides information and ratings on businesses and charities.

Kim Bousquet and Alli Condra of Davis Wright Tremaine LLP will present the National Ag Law Center webinar on August 16, 2023, highlighting corporate use of the National Advertising Division as an alternative enforcement method.

In the United States, the Food and Drug Administration and the United States Department of Agriculture have primary responsibility for regulating packaging and point-of-purchase advertising for food sold in retail establishments. Food labeling laws and regulations also cover the claims made through product marketing. If false or misleading claims are made, complaints may be made to entities within the government or to organizations that provide self-policing for food and agriculture companies.

“Companies can use the National Advertising Division process by filing challenges to advertisements on NAD’s online portal and paying the fee,” Counsel Kim Bousquet of Davis Wright Tremaine LLP. “NAD offers a fast-track option for single, well-defined issues, a standard track option for typical challenges, and a complex track for challenges that require complex claim substantiation.”

The Better Business Bureau says NAD is an industry-led system designed to build consumer trust in advertising and support fair competition in the marketplace.

According to Bousquet, NAD provides companies with an alternative means of challenging false and misleading advertising statements made by competitors. Food and agriculture companies regularly use NAD’s process for challenges.

“NAD is an important industry-led complaint process for truth-in advertising claims,” Bousquet said. “Understanding the NAD process is beneficial to food and ag companies when determining whether — and how — they want to address false or misleading advertising claims.”

Generally, the process involves NAD’s consideration of the challenger’s materials and those provided by the advertiser, meetings with the parties, and issuing a decision. No matter which track a company chooses, NAD decisions are often much faster than challenging a decision in court or raising an issue with an agency, said Bousquet.

“While it’s true that NAD’s decisions are not binding, NAD challenges often lead to the advertiser making modifications or discontinuing advertisements,” Bousquet said. “And, if the advertiser refuses to participate or modify an advertisement, NAD is likely to refer the case for further investigation by the relevant government agency, often the Federal Trade Commission or FDA. In addition, NAD case decision summaries are made public, which can also incentivize companies to modify advertisements.”

Alli Condra and Kim Bousquet of Davis Wright Tremaine LLP will present the National Ag Law Center webinar on August 16, 2023, highlighting corporate use of the National Advertising Division as an alternative enforcement method.

Bousquet and Alli Condra, an associate at Davis Wright Tremaine LLP, will be discussing several high-profile examples of how food and agriculture companies use NAD, as well as various components of the organization. They’ll place this in context through an overview of federal food requirements during the NALC’s upcoming webinar, “How Food and Ag Companies Can (and Do) Use the National Advertising Division to Combat Unfair Competition and Test the Waters of Emerging Issues.” The webinar will be held on Wednesday, Aug. 16, at 11 a.m. Central/noon Eastern.

“Understanding NAD and the role the organization plays in ensuring truth in advertising helps to provide consumer confidence in products and create a fair marketplace,” Bousquet said. “Alli and I look forward to sharing our knowledge and this important information in the webinar.”

The webinar is free of charge and registration is online.

“We’re looking forward to this webinar and all of the beneficial information that Kim and Alli will provide,” NALC Director Harrison Pittman said. “Federal food labeling laws are incredibly complex, and learning more about potential mechanisms that ensure truth in labeling will be beneficial to consumers and companies alike.”

For information about the National Agricultural Law Center, visit nationalaglawcenter.org or follow @Nataglaw on Twitter. The National Agricultural Law Center is also on Facebook and LinkedIn.

For updates on agricultural law and policy developments, subscribe free of charge to The Feed, the NALC’s twice-monthly newsletter highlighting recent legal developments facing agriculture.

NALC’s Rollins to discuss WOTUS definition after SCOTUS ruling in July 19 webinar

By Tru Joi Curtis
National Agricultural Law Center
U of A System Division of Agriculture

FAYETTEVILLE, Ark. — How the Environmental Protection Agency will define the key Clean Water Act term “waters of the United States,” or WOTUS, is unclear following a ruling by the U.S. Supreme Court on a case involving wetlands, said National Agricultural Law Center Staff Attorney Brigit Rollins.

Brigit Rollins, staff attorney for the National Agricultural Law Center, will present a July 19 webinar on the current state of WOTUS and the recent Sackett ruling from the U.S. Supreme Court.

The U.S. Supreme Court’s ruling in Sackett vs. Environmental Protection Agency determined that only those wetlands that share a continuous surface connection with a water body recognized under the WOTUS definition can be regulated under the Clean Water act, or CWA. This has created some inconsistencies with the EPA’s 2023 definition of WOTUS which includes some wetlands that do not share a surface connection with another body of water.

The definition of WOTUS determines what water bodies can be protected by the CWA, which is the primary federal law regulating water pollution in the United States. The CWA requires anyone who might introduce pollutants into a body of water protected under the CWA to acquire a permit from EPA. Introducing pollutants into a WOTUS without a permit can result in fines and criminal prosecution under the CWA. Therefore, it is incredibly important to understand the scope of WOTUS.

“The EPA will most likely have to revisit its 2023 definition of WOTUS because that rule is out of step with the court’s ruling,” Rollins said. “In particular, the Sackett opinion limits what wetlands can be covered by the Clean Water Act beyond what the EPA included in its 2023 rule.”

Confusion over the WOTUS definition and the protection wetlands should receive is nothing new. Since the CWA was passed in 1972, the degree of protection for wetlands has been a point of contention for policymakers.

Rollins will be discussing the current state of WOTUS and the recent ruling from the U.S. Supreme Court during NALC’s upcoming webinar, “What’s Up with WOTUS: A Look at the Current WOTUS Definition and Recent Supreme Court Decision.” This webinar will be held Wednesday, July 19, at 11 a.m. Central/noon Eastern.

“I look forward to shedding some light on the court’s recent ruling, and what that may mean for the definition of WOTUS going forward,” Rollins said.

The webinar is free of charge and registration is online.

“We are thrilled to have Brigit discuss the court’s ruling and the WOTUS definition in this webinar,” NALC Director Harrison Pittman said. “Because the definition affects so many industries and how they conduct their work, it’s critical to understand the status of WOTUS.”

The July webinar is the second in a series regarding WOTUS. The information and recording for the first part, “What’s Up with WOTUS: An Overview of ‘Waters of the United States’ and Why it Matters to Agriculture,” can also be found online.

Rollins will present a third installment on Nov. 15, titled, “What’s Up with WOTUS: Post-Sackett and Beyond.” The November webinar will look at subsequent events and consider the long-term effects of the Sackett ruling. Registration and information for the third part of the series is available online.

For information about the National Agricultural Law Center, visit nationalaglawcenter.org or follow @Nataglaw on Twitter. The National Agricultural Law Center is also on Facebook and LinkedIn.

For updates on agricultural law and policy developments, subscribe free of charge to The Feed, the NALC’s newsletter highlighting recent legal developments facing agriculture, which issues twice a month.

NALC webinar to provide overview of U.S. charitable food system

By Tru Joi Curtis
National Agricultural Law Center
U of A System Division of Agriculture

FAYETTEVILLE, Ark. — Food insecurity affects more than 34 million Americans in the United States and more than a quarter of them are children, according to Feeding America, a nationwide network of food banks.

Audry Thompson, staff attorney at Penn State Law, will discuss the U.S. charitable food system in the National Ag Law Center webinar on June 21.

To help those facing hunger, farmers and food processors all play a role by assisting the U.S. charitable food system and federal and state food surplus programs. The U.S. charitable food system includes a network of over 200 food banks: regional organizations that source, warehouse and distribute food.

“Food insecurity is an issue that has so many facets,” National Agricultural Law Center Director Harrison Pittman said. “It’s important to understand the important role that charitable food programs play for millions of people every day and what it means for those who donate food.”

The U.S. charitable food system’s success depends on connecting food producers with consumers. This allows donations by producers to be distributed to consumers and families in need.

“Ensuring food security for families and children within the United States is essential,” Audry Thompson, staff attorney at the Penn State Center for Agricultural and Shale Law, said. “Food processors, as well as agricultural producers, play an important role in providing necessary assistance through the charitable food system.”

With recent higher grocery costs, the need for surplus donations is more urgent. Producers who donate benefit from various forms of protection, including liability.

Thompson will discuss the federal and state food surplus programs, as well as how they connect agricultural producers with consumers, in the NALC’s next webinar, “An Overview of U.S. Charitable Food Surplus Programs.” The webinar will be held on Wednesday, June 21, at 11 a.m. Central/noon Eastern.

“This webinar will highlight these programs, discuss how federal and state programs connect producers with consumers, and outline liability and other protections put into place for those donating their surplus,” Thompson said.

The webinar is free of charge and registration is online.

“We’re looking forward to hearing Audry discuss these programs that work to benefit millions of Americans who are in need,” Pittman said. “With the current need for surplus donations from producers, it is extremely important that people know more about charitable food programs in the U.S.”

For information about the National Agricultural Law Center, visit nationalaglawcenter.org or follow @Nataglaw on Twitter. The National Agricultural Law Center is also on Facebook and LinkedIn.

For updates on agricultural law and policy developments, subscribe free of charge to The Feed, the NALC’s newsletter highlighting recent legal developments facing agriculture, which issues twice a month.