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agriculture and farming

At Reason, Baylen Linnekin asks me and several other people what key story we’re watching in the world of food policy. My answer:

The big, ominous, and still underpublicized story this year has been the Food and Drug Administration’s development of regulations to implement Congress’ panic-driven, ill-thought-out Food Safety Modernization Act of 2010. “Local growers are discovering that proposed FDA regulations would curtail many common techniques, such as using house-made fertilizers and irrigating from creeks,” reported the L.A. Times in February. Another batch of new rules will curtail the age-old practice of feeding livestock on spent beer grains, to the dismay of many small brewers and farmers. … Too bad for small, local, distinctive, traditional variety in food and farming….

Read the whole thing — including my semi-defense of the FDA on the legalities of the matter — here.

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So long, small-and-sustainable: critics say new Food and Drug Administration regulations implementing the Food Safety Modernization Act could render uneconomic the immemorial practice of using spent beer grains to feed livestock. Both farmers and brewers are upset. [Bangor Daily News/Lewiston, Me., Sun-Journal; proposed rule] More: Glenn Lammi, WLF.

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Food roundup

by Walter Olson on March 17, 2014

  • Warnings dismissed at time: FDA rules implementing FSMA (Food Safety Modernization Act) of 2011 imperil practices common to organic, small growers, “such as using house-made fertilizers and irrigating from creeks” [Los Angeles Times] Oh, how D.C.’s “public-interest” establishment and its co-thinkers in the press jeered when we and others tried to raise such concerns before the bill passed!
  • Related: pursuit of locally grown/artisanal meat options collides with USDA regs that put squeeze on small slaughterhouses, overbroad recalls also a problem [Baylen Linnekin, earlier here, here, and here]
  • “America’s Obesity Problem: Legal Mechanisms for Prevention,” Duke Law School conference I spoke at (but did not write a paper for) last year, now online [Duke Forum for Law and Social Change].
  • Related: “Wellness programs addressing obesity could lead to litigation, lawyers say” [ABA Journal]
  • Looser regulation of microbrewing has already proved boon to Maryland, lawmakers now consider extending it further [Beth Rodgers, Frederick News-Post]
  • “Bill introduced to undo California’s ‘glove law’ for food preparers” [KPCC; earlier]
  • Sorry, I’ll stay home and thumb through old cookbooks instead: recent American Studies Association Food Studies Caucus program included “Food, Debt, and the Anti-Capitalist Imagination,” “Archives of Domesticity and Dissent: Cookbooks, Cooking Culture, and the Limits of Culinary Exchange,” and “Pedagogies of Food and Eating: Teaching Debt, Dissent, and Identity through Food” [Mary Grabar, Pope Center on "food studies" fad]

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Farm and food roundup

by Walter Olson on February 18, 2014

Farms are not supposed to face OSHA regulation unless they have 10 employees, but the agency has tried to get around that rule by declaring that grain storage and handling facilities on farms aren’t really part of the farm. Now 43 Senators have signed a letter warning the agency to back off. [Future of Capitalism; another family farm labor controversy from last year]

When Congress passed the Food Safety Modernization Act in 2011, some (I included) warned that it would lay serious regulatory burdens on small producers and distributors of food, threatening to drive many of them out of markets even when their products posed no actual material risk. Lawmakers gestured toward relief for small producers in an amendment, but apparently “gestured” is the operative word. “Now that those who will be regulated under the Act have had time to review and consider the FDA’s proposed FSMA rules, small farmers …are panicking. And with good reason.” [Baylen Linnekin, Reason, earlier; Daren Bakst, Heritage; "New federal regulations could threaten local farms," Michael Tabor and Nick Maravell, The Gazette (suburban Maryland)]

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In one of the most powerfully felt scenes of his novel The Grapes of Wrath, John Steinbeck indicts the private business system for engaging in a practice as foolish and wicked as the willful destruction of food crops while children went hungry. Did any of the novelist’s New Dealer friends inform him that it was in fact a deliberately planned element of FDR’s agriculture policy? [David Henderson; more from Henderson on John Kenneth Galbraith and the dire effects of FDR's policy on tenant sharecroppers]

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In April, an extensive New York Times investigation by Sharon Lafreniere confirmed and extended what writers associated with the late Andrew Breitbart had been charging for more than two years: the so-called Pigford settlement, in which the U.S. Department of Agriculture agreed to make payments to persons charging racial bias in agriculture programs, is riddled with fraud. If you thought this might stand in the way of a payday for plaintiff’s lawyers in the case, you’re wrong: U.S. District Judge Paul Friedman has just approved a payout of $90.8 million to the lawyers, over objections. That represents the maximum (7.4 percent) of what was being asked for: “The deal set out a fee range between 4.1 percent and 7.4 percent.” [BLT]

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In Argentina, famed for agricultural bounty, government folly leads to shortages of wheat [Bloomberg; original Milton Friedman quote]

“Even though I was always on public property when I filmed the horrors I saw outside that slaughterhouse in February, I became the first person charged under one of these ‘ag-gag’ laws.” [Amy Meyer, Washington Post, Utah]

Environment roundup

by Walter Olson on June 13, 2013

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In its unanimous decision yesterday in Horne v. U.S. Department of Agriculture, the Supreme Court did not reach the merits of whether the Agricultural Marketing Agreement Act of 1937 worked an unconstitutional taking without compensation from the Horne family, who process as well as grow raisins in central California, by compelling them to participate in its scheme. But it did rule that the Ninth Circuit was wrong in disclaiming jurisdiction over the Hornes’ suit on the grounds that they should have paid an enormous fine first and then sued to get it back. In doing so, it rejected the position taken by the Obama administration in favor of that taken by (among others) a Cato Institute amicus brief. (More: Ilya Shapiro, Cato; Ilya Somin; Damon Root, Reason; more background, Lyle Denniston/SCOTUSBlog, Michael Doyle/McClatchy, The Economist, James Bovard, Ilya Shapiro)

After the Ninth Circuit takes a further look, it would surprise no one if the merits of the case wound up back at the Supreme Court. I touched on the merits in this earlier post:

Max Boot, who has written a new book on the history of guerrilla movements, tells how Shamil, firebrand leader of a celebrated 19th-century Muslim insurgency in Chechnya and Dagestan, began to lose the allegiance of “many ordinary villagers who balked at his demands for annual tax payments amounting to 12 percent of their harvest.” Instead, they switched their allegiance to the rival Russian czar, whose demands were more modest.

The USDA’s marketing order committee demanded that the Hornes hand over 47 percent of their raisins without compensation.

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Food roundup

by Walter Olson on May 29, 2013

  • NYT op-ed: let’s pay folks to cook at home, they’ll never figure it out otherwise [Amy Alkon on Kristin Wartman attempt to revive old Wages for Housework campaign with foodie spin] “You don’t have a moral obligation to cook” [Maggie Koerth-Baker]
  • “The Making of the Obesity Epidemic: How Food Activism Led Public Health Astray” [Helen Lee, Breakthrough Institute via Julian Morris] Research suggesting benign effects of slight overweight slammed by public health profs who fear it might complicate desired policy narrative [Nature; more from Trevor Butterworth on Walter Willett vs. Katherine Flegal] Lessons of Denmark’s fat tax [Christopher Snowdon, IEA]
  • Will ‘elf-and-safety spell an end to Gloucestershire’s annual Cooper’s Hill cheese-rolling event? [Telegraph]
  • Bloomberg’s NYC health dept. can’t find restaurateur to operate a cafe in its headquarters, too many rules [NY Post]
  • Curbs on Italian imports relaxed: “The war on salami finally ends” [David Frum]
  • Most senseless cheese ban ever? In the case of Mimolette, it mite be [Hans Bader, earlier]
  • Diversity in apple varieties has plunged in the past century, right? Maybe not [Alex Tabarrok]

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“Dairy farmer Vernon Hershberger was acquitted on three of four criminal charges early Saturday morning in a trial that drew national attention from supporters of the raw, unpasteurized milk movement.” Hershberger sold his products through what he characterized as a consumer buying club, but prosecutors charged that the set-up was too much like a retail store, with price stickers and a cash register; Wisconsin law bans the sale of raw milk products through a retail store. “‘This is as close to Prohibition as anything I have ever seen, but this time it’s milk and an Amish farmer, rather than liquor and gangsters,’ [defense attorney Glenn] Reynolds said.” [Milwaukee Journal-Sentinel; Ryan Ekvall, Reason]

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Even Brussels can get the message sometimes. The EU agriculture commissioner blamed public “misunderstanding.” [Telegraph via Alexander Cohen, Atlas Society; earlier] More: Kenneth Anderson.

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Free speech roundup

by Walter Olson on May 21, 2013

Megan McArdle says the judge seems to have dreaded only Type A and not Type B error when it comes to compensating discriminated-against farmers, and quotes more from the great Times piece:

“It was the craziest thing I have ever seen,” one former high-ranking department official said. “We had applications for kids who were 4 or 5 years old. We had cases where every single member of the family applied.” The official added, “You couldn’t have designed it worse if you had tried.” …

Accusations of unfair treatment could be checked against department files if claimants had previously received loans. But four-fifths of successful claimants had never done so. For them, “there was no way to refute what they said,” said Sandy Grammer, a former program analyst from Indiana who reviewed claims for three years. “Basically, it was a rip-off of the American taxpayers.” …

In 16 ZIP codes in Alabama, Arkansas, Mississippi and North Carolina, the number of successful claimants exceeded the total number of farms operated by people of any race in 1997, the year the lawsuit was filed. Those applicants received nearly $100 million.

At Prawfsblawg, Paul Horwitz notes that legal scholars active in areas like reparations and discrimination law have up to now said little or nothing about the high quantum of fraud in the much-publicized Pigford settlements and asks (perhaps a bit rhetorically?) whether they will soon be taking note of the “public interest graft” revealed in the Times piece. And Hans Bader wonders whether the Obama administration might have avoided going down the embarrassing settlement route had it taken more seriously the Supreme Court’s 2001 decision in Alexander v. Sandoval. More: Ted Frank, Point of Law; Daniel Foster, NRO. Joel Pollak: “Even the Kinko’s guy knows about Pigford.” Earlier here, etc.

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This seemed like a big story to me at the time, and it’s gratifying that it also seems like a big story to the editors of the New York Times. Sharon LaFreniere’s above-the-fold story today breaks vital new details about how career government lawyers opposed Obama appointees’ insistence on reaching a gigantic settlement for claims of bias against female and Hispanic farmers in the operation of federal agriculture programs.

On the heels of the Supreme Court’s ruling [adverse to claimants and favorable toward USDA], interviews and records show, the Obama administration’s political appointees at the Justice and Agriculture Departments engineered a stunning turnabout: they committed $1.33 billion to compensate not just the 91 plaintiffs but thousands of Hispanic and female farmers who had never claimed bias in court.

The deal, several current and former government officials said, was fashioned in White House meetings despite the vehement objections — until now undisclosed — of career lawyers and agency officials who had argued that there was no credible evidence of widespread discrimination. What is more, some protested, the template for the deal — the $50,000 payouts to black farmers — had proved a magnet for fraud.

According to the Times report, the settlement drive became “a runaway train, driven by racial politics, pressure from influential members of Congress and law firms that stand to gain more than $130 million in fees.” On the earlier, “magnet for fraud” Pigford settlement, see our coverage here, here, here, here, here, here, etc.

P.S. Plenty of coverage of this story at other blogs, including tributes to Lee Stranahan and the late Andrew Breitbart, whose investigations helped crack the story open. Useful background from Daniel Foster:

As in the original Pigford settlements, the government has literally given plaintiffs and their lawyers more money than they know what to do with. In the case of a $760 million settlement with Native Americans, which career DOJ lawyers argued was more than the government would have to pay even if they lost in court, only $300 million worth of (ridiculously easy to fake) claims were actually filed, leaving the rest of the money to be distributed to “nonprofit organizations serving Native American farmers.” As the story points out, it is not even clear how many such organizations exist — though you can bet any enterprising NGOers reading this are at this very moment pulling a clean copy of the 501(c)(3) application from their files.

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