Antitrust: Federal Court Finds Pennsylvania Mushroom Cooperative Not Entitled to Antitrust Protection
On January 26, 2022, the U.S. District Court for the Eastern District of Pennsylvania issued an order and opinion holding that the American Mushroom Cooperative (AMC), formerly named “Eastern Mushroom Marketing Cooperative” (EMMC), was not entitled to protection under the Capper-Volstead Act, which exempts agricultural grower cooperatives from some antitrust laws. Winn-Dixie Stores, Inc. v. Eastern Mushroom Marketing Cooperative, Inc., No. 5:15-cv-06480-BMS. Winn-Dixie Stores, Inc. brought suit against EMCC/AMC in 2015, claiming that the entity’s members had conspired among themselves and third parties to fix mushroom prices. In a related 2009 ruling, the court held that EMCC/AMC could not claim antitrust immunity under Capper-Volstead because it found that the EMCC/AMC did not consist solely of producer members. In the 2015 case, EMCC/AMC claimed that it could still receive Capper-Volstead immunity despite its failure to previously gain the statute’s protections because the non-producer member issues in the 2009 ruling had since been resolved. However, the court found that EMMC/AMC member Bella Mushroom Farms (Bella)— a general partnership between Robert, Rosemarie, Peter and Robert Jr. Feranto—and its distributor, Buona Foods (Buona)—a corporation held by Robert and Rosemarie—could not be determined to be a “single entity incapable of conspiring with one another” and thus EMCC/AMC was not entitled to Capper-Volstead immunity because the entity contained a non-producer member. Although the court noted that “family relationships are not determinative,” the court stated that Buona buys 100% of Bella’s products. The court also noted that, while Peter negotiated for Bella, “Robert (who had no ownership interest in Buona) negotiated for Buona when it dealt with Bella,” which the court stated, “further muddies the waters with respect to whether the parties’ . . . impermissibly ‘joined together separate decisionmakers.’” Most importantly, the court found that Bella’s and Buona’s interests were not aligned and that the price fixing did not protect the grower’s economic interests because “EMMC/AMC prices were set at the distributor level and Buona’s sales were governed by the EMMC’s minimum pricing policies.” The court then granted summary judgment in favor of Winn-Dixie.
Antitrust: JBS Class Action Settlement Agreement Will Pay Direct Purchaser Plaintiffs $52.5 Million
On February 1, 2022, the Direct Purchaser Plaintiffs (DPPs) in consolidated civil antitrust class action litigation against multiple large meatpacking companies filed a memorandum supporting a settlement between the DPPs and defendants JBS S.A., JBS USA Food Company, Swift Beef Company, and JBS Packerland, Inc. (JBS). In re Cattle and Beef Antitrust Litigation, No. 0:20-cv-01319. The DPPs claimed that the defendant meatpacking companies colluded to fix beef prices and suppress beef production. According to the agreement outlined in the memorandum, JBS will pay $52.5 million into a settlement fund to compensate the DPPs, finance administration of the settlement, and cover litigation expenses. The settlement agreement, which names notice and claims administrator A.B. Data as the notice provider, calls for the court to require the non-settling defendants to turn over their customer contact information to assist in notification of the class within 30 days of court approval of the settlement. On February 4, 2022, the DPPs filed a proposed order for the court’s approval of the settlement. For background, see ALWR—Sept. 17, 2021, “Minnesota Federal Court Denies All Motions to Dismiss Filed by Beef Packers in Consolidated Civil Antitrust Class Action Litigation.”
Antitrust: USDA and DOJ Announce Online Portal for Anticompetitive Practice Complaint Submissions
On February 3, 2022, the U.S. Department of Agriculture (USDA) and the U.S. Department of Justice (DOJ) announced their new online tool, farmerfairness.gov, where livestock and poultry producers can anonymously submit complaints and tips concerning unfair and anticompetitive industry practices. Submissions will be reviewed by USDA Packers and Stockyards Act (PSA) staff and DOJ Antitrust staff for potential PSA and antitrust law violations. Complaints that raise sufficient concern under the PSA or antitrust laws will be further investigated by USDA and DOJ. Submissions need not contain the name or information of the submitting party, but should include the names of the parties involved in the alleged unfair conduct, a description of the conduct, how that conduct created harm, and who was harmed by the conduct. According to the agencies’ announcement, USDA and DOJ will sign a memorandum of understanding (MOU) to formalize their partnership and facilitate communication between the agencies. For background, see ALWR—Jan. 7, 2022, “White House Announces Plan to Increase Competition in Meat and Poultry Industries; USDA and DOJ Announce Joint Antitrust Initiative.”
Biofuels: EPA Extends Refinery Compliance Deadlines for Renewable Fuel Standard Program
On February 2, 2022, the U.S. Environmental Protection Agency (EPA) published a final rule in the Federal Register extending the compliance deadlines for the Renewable Fuel Standard (RFS) (87 FR 5696).
According to the rule, the compliance deadlines for 2019, 2020, 2021, and 2022 are amended as follows:
- The 2019 deadline for small refineries is the next quarterly reporting deadline 2021 RFS effective date.
- The 2020 deadline for all parties is the next quarterly reporting deadline after the amended 2019 small refinery deadline.
- The 2021 deadline for all parties is the next quarterly reporting deadline after the amended 2020 deadline.
- The 2022 deadline is the latter of the next quarterly reporting deadline after either the amended 2021 deadline or the 2023 RFS effective date.
Additionally, the rule amends how EPA will determine future compliance and attest engagement reporting deadlines in 2023 and beyond.
Weekly Episode #204. USDA Publishes Report on Retaliatory Tariff Economic Effects & Enlist/Enlist Duo Registrations Approved with Use Restrictions, Prohibitions (Jan. 28, 2022).
Weekly Episode #203. Supreme Court Stays OSHA Vaccination Rule & Environmental Groups Revive Dicamba Challenge Citing EPA Report (Jan. 20, 2022).
Weekly Episode #202. EPA Publishes 2021 Dicamba Report & States Act on Animal Welfare Laws (Jan. 15, 2022).
Weekly Episode #201. White House Links Meat Processor Profits to Rising Food Prices & EPA Announces Renewable Fuel Volume Requirements (Jan. 7, 2022).
Feb. 10, 2022: Penn State Extension Webinar, Liability Issues for the Value-Added Dairy Foods Processor, noon–1:00 p.m. EST. Center Staff Attorney Brook Duer will be the presenter.
Feb. 10–12, 2022: PASA Sustainable Agriculture’s 2022 Sustainable Agriculture Conference, Lancaster, PA. Virtual Pre-Conference from Jan. 4 to 28. Center Staff Attorney Brook Duer will present on Feb. 12 on Direct Sale of Raw and Processed Specialty Crop Products: Legal Liabilities, Contracting and Insurance (9:00 a.m.).
2nd Annual Pennsylvania Farm Show Agricultural Law Symposium, video and materials. (recorded Jan. 11 and 13, 2022).
Top #AgLaw HotLinks Jan. 31–Feb. 4, 2022
Global Food Prices Climb Towards Record, Farm Policy News
Expensive Catfish Regulation Fails to Reel in Results, Modern Farmer
Pennsylvania Farm/Food Employers’ Listserv (PFEL) is a human resources networking group exclusively for farm and food employers. Subscribe by email with “subscribe” in the subject line to [email protected].
Agricultural Law & Policy Resources of Interest:
Academic & Government Resources
- USDA, USDA’s 98th Annual Agricultural Outlook Forum (AOF), 24-25, 2002, 8:00am – 5:00pm daily. Registration is free but required. Schedule of 30 sessions.
- USDA AMS, Small Business/New Vendor Quarterly Webinar, Feb. 15, 2022, at 2:00 pm. The AMS Commodity Procurement Program (CPP) conducts quarterly informational webinars for contractors and interested suppliers to discuss the commodity purchase programs. The first webinar will be focused on lessons learned in becoming an approved USDA food vendor.
- Nat’l Agric. Law Ctr., Lending for Livestock, Credit for Crops: Manner and Methods of a Collateral Sale, Micah Brown (Feb. 1, 2022).
- Nat’l Agric. Law Ctr., Treading Water: WOTUS Once Again Before Supreme Court, Brigit Rollins (Feb. 3, 2022).
- Law and Tax’n. Blog, The “Almost Top 10” of 2021 (Part 6), Roger A. McEowen (Feb. 1, 2022).
- Law and Tax’n. Blog, The “Almost Top 10” of 2021 (Part 7) [Medicaid Recovery and Tax Deadlines], Roger A. McEowen (Feb. 3, 2022).
- U Mass. Ext. Risk Mgt. Ed. Program, Business Planning Virtual Workshop Series, subtitled, “Financial, Marketing & Risk Management Planning and Geared to New, Beginning & Expanding Vegetable & Small Fruit Producers (Jan. 27, Feb. 3, 17, 24, March 10, 17, each session 7:00pm-9:00pm. Registration is free.
- Harvard Law School, Food Law and Policy Clinic Webinar, Justice for Black Farmers: The Law, Policy and Politics of Debt Cancellation (recorded Nov. 30, 2021).
- Civil Eats, Black Farmers Still Await Debt Relief as Lawmakers Resolve Racist Lawsuits (Dec. 1, 2021).
- Harvard Law School, Food Law and Policy Clinic, Global Food Donation Policy Atlas:
- Promoting Food Donation: Liability Protection Law and Policy (Dec. 2021).
- Promoting Food Donation: Date Labeling Law and Policy (Nov. 2021).
- Promoting Food Donation: Tax Law and Policy (Oct. 2021).
Penn State News, Research & Resources
- PSU Ext., Dairy Revenue Protection – February 2022 (Feb. 1, 20220).
- PSU Ext., 2021 Five Acre Corn Club Results (Feb. 1, 2022).
- PSU Ext., Recertification Opportunities and Ways for Private Applicators and Fumigators to Get Credits (Feb. 2, 2022).
- Increased storminess may give rise to North Atlantic’s ‘cold blob’ (Jan. 31, 2022).
- Consumer support of food-waste solutions focus of agricultural economist’s study (Feb. 2, 2022).
Weekly Featured Graphics:
Inside Climate News, Overwhelmed by Solar Projects, the Nation’s Largest Grid Operator Seeks a Two-Year Pause on Approvals (Feb. 2, 2022)
“Our system wasn’t designed to handle that kind of growth,” said Kenneth S. Seiler, vice president of planning at PJM. About 2,500 projects are awaiting action by the grid operator, which is based in Valley Forge, Pennsylvania, outside Philadelphia. PJM officials are proposing a two-phased solution. They want to move to a new approval process that puts projects that are the most ready for construction at the front of the line and discourages those that might be more speculative or that have not secured all their financing. PJM officials said they have reached a reasonable consensus among their members for that plan. However, they are also proposing an interim period with a two-year delay on about 1,250 projects in their queue, and a deferral on the review of new projects until the fourth quarter of 2025, with final decisions on those coming as late as the end of 2027. . . The length of the PJM backlog varies by state. For example, in Pennsylvania, where Gov. Tom Wolf in 2019 set his state’s first statewide greenhouse gas reduction goals, 520 energy projects are currently in the queue, 437 of which are solar. Virginia, which adopted powerful renewable energy portfolio standards for electric utilities in 2020, has 417 solar projects in the queue. Kentucky and West Virginia have been slow to adopt solar but those states have 110 and 57 solar projects, respectively, awaiting approval by PJM.”
Agriculture-Related Legislative Hearings & Reports:
PA House Appropriations Committee Budget Hearing for Department of Agriculture, March 2, 2022, 10:00 a.m. EST, hearing will be conducted from the House Floor and livestream.
PA Senate Appropriations Committee Budget Hearing for Department of Agriculture, March 3, 2022, 10:00 a.m. EST, Hearing Room 1, North Office Bldg. and livestream.
U.S. House Judiciary Committee Hearing, Subcommittee on Antitrust, Commercial, and Administrative Law, Reviving Competition, Part 5: Addressing the Effects of Economic Concentration on America’s Food Supply, video and written testimony (recorded Jan. 19, 2022).
U.S. House Agriculture Committee Hearing, Implications of Electric Vehicle Investments for Agriculture and Rural America, video and written testimony (recorded Jan. 12, 2022).
U.S. House Agriculture Committee Hearing, To Review the State of the Rural Economy with Agriculture Secretary Tom Vilsack, video and written testimony (recorded Jan. 20, 2022).
FEDERAL ACTIONS—EXECUTIVE & LEGISLATIVE
U.S. DEPARTMENT OF AGRICULTURE (USDA) PRESS RELEASES:
Don’t Fumble Food Safety on Super Bowl Sunday (Feb. 3, 2022).
USDA AGENCY PRESS RELEASES:
Agricultural Marketing Service (AMS)
Agricultural Research Service (ARS)
New ARS Food and Nutrition Research Briefs Issued (Feb. 2, 2022).
Animal and Plant Health Inspection Service (APHIS)
Farm Service Agency (FSA)
Food Safety and Inspection Service (FSIS)
Constituent Update – February 4, 2022 (Feb. 4, 2022).
Foreign Agriculture Service (FAS)
Export Sales to China [Soybeans] (Jan. 31, 2022).
Export Sales to China [Soybeans] and Mexico [Corn] (Feb. 1, 2022).
Export Sales to Unknown Destinations [Soybeans] (Feb. 2, 2022).
Private Exporters Report Sales Activity for China [Corn] (Feb. 3, 2022).
Export Sales to Unknown Destinations [Soybeans] (Feb. 4, 2022).
National Institute of Food and Agriculture (NIFA)
FEDERAL EXECUTIVE AGENCIES (Federal Register Jan. 31–Feb. 4, 2022):
87 FR 5190 Proposed Rule: “Semiannual Regulatory Agenda, Fall 2021” (Jan. 31, 2022).
87 FR 5779 Notice: “Submission for OMB Review; Comment Request [2021 Emergency Rural Health Care Grant Program]” (Feb. 2, 2022).
87 FR 6131 Notice: “Submission for OMB Review; Comment Request [Bison Health Monitoring]” (Feb. 3, 2022).
87 FR 6131 Notice: “Meeting Notice of the National Agricultural Research, Extension, Education, and Economics Advisory Board” (Feb. 3, 2022).
Agricultural Marketing Service
87 FR 5424 Proposed Rule—Comment Period: “National Organic Program; Proposed Amendments to the National List of Allowed and Prohibited Substances per October 2020 and April 2021 NOSB Recommendations (Handling, Crop)” (Feb. 1, 2022).
Animal and Plant Health Inspection Service
87 FR 4832 Notice—Comment Period: “Importation of Acer spp. (Acer buergerianum, A. palmatum, and A. pseudosieboldianum) Dwarf Plants from the Republic of Korea into the Continental United States” (Jan. 31, 2022).
Environmental Protection Agency
87 FR 5703 Final Rule: “Alcohols, C10-16, Ethoxylated, Sulfates, Mono(hydroxyethyl)ammonium Salts (CAS No. 157627-92-4); Tolerance Exemption” (Feb. 2, 2022).
87 FR 5696 Final Rule: “Renewable Fuel Standard (RFS) Program: Extension of Compliance and Attest Engagement Reporting Deadlines” (Feb. 2, 2022).
87 FR 6171 Notice—Comment Period: “Pesticide Registration Review; Draft Human Health and/or Ecological Risk Assessments for Several Pesticides; Notice of Availability” (Feb. 3, 2022).
87 FR 6168 Notice: “Pesticide Registration Review; Interim Decision; Notice of Availability; Correction” (Feb. 3, 2022).
87 FR 6169 Notice—Comment Period: “Pesticide Registration Review; Proposed Interim Decisions for Several Pesticides; Notice of Availability” (Feb. 3, 2022).
87 FR 6535 Notice—Comment Period: “Pesticide Registration Review; Interim Decisions and Final Decision for Several Pesticides; Notice of Availability” (Feb. 4, 2022).
Fish and Wildlife Service
87 FR 5737 Rule: “Endangered and Threatened Wildlife and Plants; Revision of the Critical Habitat Designation for the Jaguar in Compliance with a Court Order; Correction” (Feb. 2, 2022).
87 FR 5946 Proposed Rule—Comment Period: “Migratory Bird Hunting; 2022-23 Frameworks for Migratory Bird Hunting Regulations” (Feb. 2, 2022).
Food and Nutrition Service
87 FR 5457 Notice: “Agency Information Collection Activities: Proposed Collection; Comment Request-Supplemental Nutrition Assistance Program-Disaster Supplemental Nutrition Assistance Program (D-SNAP)” (Feb. 1, 2022).
Food Safety and Inspection Service
87 FR 5455 Notice—Comment Period: “Notice of Request for a New Information Collection: Analyzing Consumers’ Value of “Product of USA” Labeling Claims” (Feb. 1, 2022).
87 FR 5779 Notice: “National Advisory Committee on Microbiological Criteria for Foods: Committee and Charter Reestablishment” (Feb. 2, 2022).
Foreign Agricultural Service
87 FR 6132 Notice—Comment Period: “Notice of Request for Extension of Currently Approved Information Collection [Agriculture Wool Apparel Manufacturers Trust Fund]” (Feb. 3, 2022).
87 FR 6135 Notice: “Collaborative Forest Landscape Restoration Advisory Panel [Request for Nominations]” (Feb. 3, 2022).
Indian Affairs Bureau
87 FR 4905 Notice: “HEARTH Act Approval of Eastern Shawnee Tribe of Oklahoma Agricultural Leasing Act” (Jan. 31, 2022).
87 FR 5246 Proposed Rule: “Semiannual Regulatory Agenda” (Jan. 31, 2022).
International Trade Administration
87 FR 4843 Notice—Comment Period: “National Travel and Tourism Strategy” (Jan. 31, 2022).
Land Management Bureau
87 FR 6624 Notice: “Notice of Public Meetings for the Southeast Oregon Resource Advisory Council [June 22, 2022, and June 23, 2022]” (Feb. 4, 2022).
87 FR 6623 Notice: “Filing of Plats of Survey; Montana” (Feb. 4, 2022).
National Telecommunications and Information Administration
87 FR 6513 “NTIA [National Telecommunications and Information Administration] IIJA [Infrastructure Investment and Jobs Act] Broadband Grant Program Webinars [March-May 2022]” (Feb. 4, 2022).
U.S. HOUSE AGRICULTURE COMMITTEE:
H.R.4521 “Bioeconomy Research and Development Act of 2021” The Clerk was authorized to correct section numbers, punctuation, and cross references, and to make other necessary technical and conforming corrections in the engrossment of H.R. 4521 (Feb. 4, 2022).
H.R.6435 “To provide for the application of certain provisions of the Secure Rural Schools and Community Self-Determination Act of 2000 for fiscal year 2021.” Subcommittee Hearings Held (Feb. 3, 2022).
U.S. SENATE COMMITTEE AGRICULTURE, NUTRITION, AND FORESTRY:
No relevant actions.
STATE ACTIONS—EXECUTIVE & LEGISLATIVE
PENNSYLVANIA DEPARTMENT OF AGRICULTURE PRESS RELEASES:
PENNSYLVANIA EXECUTIVE AGENCIES (Pa. Bulletin Vol. 52, No. 6—Feb. 5, 2022):
Department of Agriculture
52 Pa.B. 838 Notice: “Action of Controlled Plant and Noxious Weed Committee; Addition of Noxious Weeds to Controlled Plants and Noxious Weed List.”
52 Pa.B. 838 Notice: “General Quarantine Order; Rabbit Hemorrhagic Disease Vaccine.”
Department of Conservation and Natural Resources
52 Pa.B. 841 Notice: “Grant Funding for ATV or Snowmobile Projects and Programs.”
Department of Environmental Protection
52 Pa.B. 841 Notice: “Applications for NPDES and WQM Permits Under the Clean Streams Law and Federal Clean Water Act.”
Milk Marketing Board
52 Pa.B. 926 Notice: “Hearing and Presubmission Schedule for All Milk Marketing Areas; Over-Order Premium.”
HB 2315 “An Act amending. . . The Fiscal Code, in additional special funds and restricted accounts, further providing for distributions from Pennsylvania Race Horse Development Fund.” Referred to Agriculture and Rural Affairs [House] (Jan. 31, 2022).
HB 2317 “An Act amending the act of March 10, 1949 (P.L.30, No.14), known as the Public School Code of 1949, providing for child and adult care food supplement; and making an appropriation.” Referred to Education [House] (Jan. 31, 2022).
Audry Thompson—Research Assistant
Noah Gochnauer—Research Assistant
Brook Duer—Staff Attorney