Antitrust: Court Approves $42 Million Smithfield Settlement in Pork Antitrust Litigation
On October 19, 2022, the U.S. District Court for the District of Minnesota issued an order approving a $42 million settlement between Smithfield Foods Inc. and the commercial and institutional indirect purchasers in the civil class action pork price-fixing case, In Re Pork Antitrust Litigation, D. Minn., No. 18-cv-1776. This multi-district litigation is comprised of three separate class actions and classes of plaintiffs: (1) direct purchaser wholesalers; (2) commercial and institutional indirect purchasers; and (3) consumer indirect purchasers. Smithfield is currently in the process of gaining court approval of settlements with all three classes of plaintiffs. In January 2022, Smithfield gained approval of its $83 million settlement with direct purchaser wholesalers, but approval remains pending for Smithfield’s $75 million proposed settlement with consumer indirect purchasers. JBS USA Food Company, the only other settling defendant in the litigation, has successfully received court approval for settlements of $24.5 million with direct purchaser wholesalers, $12.7 million with commercial and institutional indirect purchasers, and $20 million with consumer indirect purchasers. The remaining defendants alleged to have engaged in price-fixing activity who have not settled, either partially or fully, include pork processors Tyson, Hormel, Clemens, Seaboard, Triumph, and business services vendor Agri-Stats. For background, see the Center’s Agricultural Antitrust Litigation Issue Tracker.
Antitrust: Kroger-Albertsons Merger ‘Special Dividend’ Payment Opposed by State Attorneys General and U.S. Senators
On October 26, 2022, several state Attorneys General (AGs) sent a letter to the chief executive officers (CEOs) of Albertsons Companies, Inc. and The Kroger Co. requesting that Albertsons delay paying the $6.85 per share “special dividend” announced by the company as part of the merger agreement between Albertsons and Kroger until the merger has been fully reviewed by the states. Also announced by the District of Columbia AG, the letter notes that the dividend payment—which would total $4 billion—exceeds Albertsons’ $3.39 billion total cash on hand and amounts to “approximately one-third” of the company’s $11.19 billion market capitalization. The AGs argue that the payment “deprives Albertsons of the cash it needs to operate competitively” and, as such, “is economically no different than other pre-merger agreements or actions that have limited the output or . . . business operations of a merging party” and have “le[d] the federal agencies to act.” The AGs’ letter asks the CEOs to respond by 5:00 p.m. on October 28, 2022. Additionally, on October 25, 2022, three U.S. Senators sent a letter to the Federal Trade Commission (FTC) chair asking the FTC to block the merger. The Congress members’ letter cited the “unusual circumstances” of the dividend payment and argued that the merger “could exacerbate existing antitrust, labor, and price-gouging issues in the grocery sector.” On November 1, 2022, the State of Washington’s Attorney General filed a complaint in Washington state court seeking an immediate injunction of the dividend payment and requesting an immediate hearing on the matter. On November 2, 2022, the Attorneys General of the District of Columbia, California, and Illinois filed a complaint in the U.S. District Court for the District of Columbia also seeking a temporary restraining order to stop the dividend payment. District of Columbia v. Kroger Co., No. 1:22-cv-03357.
Dairy Policy: Pennsylvania State Senators Oppose Expanding Milk Marketing Board Authority, Demand Continued Over-Order Premium
On October 26, 2022, Pennsylvania State Senators Elder Vogel, Jr. and Judith Schwank sent a letter to the Pennsylvania Milk Marketing Board (PMMB) “implor[ing]” the PMMB to extend beyond December 31, 2022, the expiration date of its state-mandated “over order” producer price premium (OOP), currently $1.00 per hundredweight over the federal order price for fluid milk volumes “produced, processed and sold at wholesale” in Pennsylvania. On September 21, 2022, the PMMB ordered the December 31, 2022, expiration date in OGO No. A-1014 as part of the adjudication of a petition to reexamine OOP administration. The PMMB historically sets the OOP in six-month increments, but this order only carries a 90-day term. For more details, see Pennsylvania’s Over-Order Premium Continues But ‘Should be Modified,’ Agricultural Law Weekly Review-Week Ending September 23, 2022. The expiration date is part of the PMMB’s overall approach to changing the OOP’s administration, which includes gaining additional statutory authority through Senate passage of HB 224 by the simultaneous expiration date of the Pennsylvania General Assembly’s 2021–2022 Legislative Session. Senators Vogel and Schwank are the majority and minority chairs of the Pennsylvania Senate Agriculture and Rural Affairs Committee where HB 224 has been pending since April 2022 (following passage by a 198-0 vote in the Pennsylvania House). The letter articulates various reasons for Senators Vogel and Schwank’s opposition to HB 224 and states “it is imperative that this premium be maintained until further examination and consideration may be made” during the 2023–2024 Legislative Session commencing after January 1, 2023. On November 2, 2022, in response to a petition filed by Pennsylvania Grange, the PMMB entered an order scheduling a hearing “concerning the level and duration” of the OOP for December 7, 2022.
Food Safety: USDA Releases Toxic Food Elements Report
On October 28, 2022, the U.S. Department of Agriculture’s (USDA) National Institute of Food and Agriculture (NIFA) released a report generated from the “Workshop on Toxic Elements in Food: Identification of Critical Knowledge Gaps to Ensure a Safe Food Supply.” The workshop was funded by NIFA and attended by various experts as well as government personnel. The workshop was also an extension of the U.S. Food and Drug Administration’s (FDA) Closer to Zero initiative. The workshop focused on three subjects: (1) Soil biogeo-chemistry, soil amendments, and microbiome interactions with toxic elements; (2) Plant uptake and accumulation of toxic elements; and (3) Multidisciplinary concerns, including food processing, detection and sensors, and “nutritional status-metal interference/traditional knowledge.” The workshop recommended the creation of a “Center-like” funding mechanism within the USDA NIFA, additional funding allocated to continued research and public awareness, and stronger regulatory systems based on scientific standards.
Food Policy: USDA and USAID Release Global Food Security Research Strategy
On October 18, 2022, the U.S. Department of Agriculture (USDA) and the U.S. Agency for International Development (USAID) jointly announced the U.S. Government Global Food Security Research Strategy, FY2022–2026. The Global Food Security Research Strategy lays out the U.S. Government’s collaborative and scientific approach to the challenges posed to food security. The strategy focuses on three themes: 1) “climate-smart agricultural innovation,” 2) “nutrition and food systems,” and 3) “genetic improvement of crops and livestock.” The Global Food Security Research Strategy provides a research approach to the previously released U.S. Government Global Food Security Strategy, FY2022–2026, which outlines the government’s broader approach to global food security.
Antitrust: Pilgrim’s Pride Reveals DOJ Investigation Into Grower Contracts and Payment Practices
In Pilgrim’s Pride Corporation’s quarterly report, published by the U.S. Securities and Exchange Commission (SEC) on October 27, 2022, Pilgrim’s stated that, on October 6, 2022, the company learned that the U.S. Department of Justice (DOJ) had “opened a civil investigation into grower contracts and payment practices.” DOJ has not issued a statement regarding the investigation. According to Pilgrim’s SEC report, Pilgrim’s “has begun, and will continue, to cooperate with the DOJ in its investigations.”
Conservation Programs: Bayer-Nori Partnership Will Provide Bayer Carbon Program Offsets to Nori Purchasers
On October 24, 2022, carbon offset company Nori announced that it would partner with Bayer to expand its carbon removal offset supply with Bayer-purchased offsets from Bayer’s Carbon Program. The partnership will allow Nori to access Bayer’s ForGround platform to retrieve data from Bayer’s farmer participants who use regenerative practices and receive payments from Bayer. According to Nori’s announcement, participant data entered in Bayer’s FieldView will be uploaded to the Nori application. Nori will verify the regenerative practices through third-party sources, which may include satellite images and seed and equipment receipts, and quantify the carbon removed from the atmosphere. Nori will then use the data to generate Nori Carbon Removal Tonnes (NRTs), which Nori will make available for purchase in its marketplace. Additionally, Nori plans to launch the $NORI as part of its carbon marketplace, a token the company calls “a cryptocurrency designed to be the world’s universal market-driven reference price for carbon dioxide removal.” To date, Bayer has not announced the partnership.
CENTER PROGRAMS & RESOURCES
- 228. Farmer Debt Relief and Chesapeake Executive Council Meeting (Oct. 26, 2022).
- 227. Tyson Workers COVID Lawsuit; Plainville Farms Animal Abuse Charges; and USDAs Worker Relief Payments (Oct. 21, 2022).
- 226. PA Milk Marketing Board Signals Potential OOP Change and EPA Withdraws Roundup Decision (Oct. 14, 2022).
Understanding Agricultural Law. A free monthly Zoom webinar series for all agricultural and rural business advisors. One hour of substantive CLE credit available for Pennsylvania-licensed attorneys at no charge. Recordings and materials from prior webinars, more information, and registration available here. Next in the series:
- Nov. 18, 2022, noon ET: Understanding the Basics of Federal & State Conservation Programs
- Dec. 16, 2022, noon ET: Understanding the Basics of Licensing & Regulation of Direct Agricultural Product Sales
- Jan. 27, 2022, noon ET: Understanding the Basics of Agricultural Finance
- Recent webinar recordings available:
- Understanding the Basics of Livestock Market Regulation (Sept. 23, 2022)
- Understanding the Basics of Agricultural Cooperatives (Aug. 26. 2022)
- Understanding the Basics of Crop Insurance (Oct. 21, 2022).
Legal Planning for Specialty Crop Producers. A free periodic Zoom webinar series. Register at any time to watch past recordings and attend all future webinars and access all materials. Next in series:
- Nov. 16, 2022, noonET: Licensing and Regulatory Obligations in Selling Raw and Processed Specialty Crop Products.
- Nov. 30, 2022, noon ET: Municipal Law & Zoning for Agritourism/Agritainment, Specialty Crop Processing & Sales.
- Dec. 14, 2022, noon ET: Statutory Protections/Restrictions: Understanding PA’s Ag Area Security, Right-To-Farm, ACRE, and Clean & Green Laws.
Dairy Quarterly Legal Webinar. A free quarterly Zoom webinar series covering U.S. dairy industry legal and regulatory developments with an in-depth focus topic presentation. One hour of substantive CLE credit available for Pennsylvania-licensed attorneys at no charge. Recordings and materials available here. The next webinar in the series will be in January 2023.
Resources Of Interest:
Webinars & Events
- Keystone Development Center (KDC)’s 2022 Co-op Academy, various dates Oct. 2022–Feb. 2023. Registration.
- Farmer and Farmland Owner Income Tax Webinar, Ohio State University Extension, Nov. 17, 2022, 6:30–8:30pm ET, $40. Registration. More info.
Academic & Government Resources
- Ohio St. Univ. Ext. Farm Off. Blog, First large-scale solar energy project denied in Ohio, Peggy Kirk Hall (Oct. 28, 2022).
- Nat’l Agric. Law Ctr., Enviro Groups Ask EPA to Revisit CWA CAFO Rules, Brigit Rollins (Oct. 27, 2022).
- Nat’l Agric. Law Ctr., Truth in Labeling Laws(uits) – Update on Arkansas, Jana Caracciolo (Oct. 25, 2022).
- Md. Risk Mgmt. Educ. Blog, Court Vacates Jury Award in Dicamba Drift Damage Case, Paul Goeringer (Oct. 25, 2022).
- Ohio St. Univ. Ext. Farm Off. Blog, New Gift Tax Exclusions Announced, Robert Moore (Oct. 25, 2022).
- Iowa St. Univ. Ctr. Agric. Law & Tax’n, USDA Making Payments for Thousands of Borrowers with Delinquent FSA Direct or Guaranteed Loans, Kitt Tovar Jensen (Oct. 24, 2022).
- A&M Agric. Law Blog, What Happens When You Are Late Probating a Will?, Tiffany Lashmet Dowell (Oct. 24, 2022).
Media & Industry Resources
- American Business Immigration Coalition, Measuring the Impact of the Migrant and Seasonal Agricultural Worker Protection Act (MSPA) on Farmers (Aug 11, 2022).
Penn State News, Research & Resources:
- International consortium to better assess Africa drought risks, boost resilience (Oct. 27, 2022).
- ‘Forever Chemicals’ persist through wastewater treatment, may enter crops (Oct. 26, 2022).
- Coffee Hour to discuss diversifying ag systems, increasing agrobiodiversity (Oct. 26, 2022).
- PSU Ext., Time to Gather Soils for Testing to Prepare for 2023 Cropping Year (Oct. 26, 2022).
- Lower than normal rainfall linked with a higher chance of food insecurity (Oct. 24, 2022).
- PSU Ext., Is It Time to Try a Different Type of Gas? (Oct. 24, 2022).
- PSU Ext., Heating Fuel Prices Getting Hotter This Winter (Oct. 24, 2022).
- PSU Ext., New Rebates Available for Farm Energy Efficiency (Oct. 24, 2022).
Top #AgLaw HotLinks Oct. 22–28, 2022:
- Enviros to EPA: Require Clean Water Act Permits on Large Confined Animal Feeding Operations Using Wet Manure Systems, Progressive Farmer.
- USTR rejects Florida Lawmakers’ Request to Investigate Mexican Produce Imports, Progressive Farmer.
- Court Vacates Jury Award in Dicamba Drift Damage Case, University of Maryland College of Agriculture and Natural Resources.
- USDA announces first food supply chain guaranteed loan recipient, Brownfield.
- Investigation into stolen semis of frozen beef uncovers Miami-based crime ring, Brownfield.
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@example.com.
FEDERAL ACTIONS—EXECUTIVE & LEGISLATIVE
U.S DEPARTMENT OF AGRICULTURE (USDA) PRESS RELEASES
USDA Opens Registration for the 2023 Agricultural Outlook Forum (Oct. 27, 2022).
ENVIRONMENTAL PROTECTION AGENCY (EPA) PRESS RELEASES
USDA AGENCY PRESS RELEASES:
Agricultural Marketing Service (AMS)
Agricultural Research Service
Farm Service Agency (FSA)
Foreign Agricultural Service (FAS)
Export Sales to China and Spain (Oct. 28, 2022).
FEDERAL EXECUTIVE AGENCIES (Federal Register Oct. 24–28, 2022):
Agricultural Marketing Service
87 FR 65185 Notice—Public Comment: “Barriers Facing Small Firms and Businesses Providing Halal, Kosher and Organic Products in Commodity Contracting with the Agricultural Marketing Service” (Oct. 28, 2022).
87 FR 64385 Proposed Rule: “Marketing Order for Walnuts Grown in California; Recommended Decision and Opportunity to File Written Exceptions” (Oct. 25, 2022).
87 FR 64199 Notice—Public Comment: “Notice of Request for Approval of a New Information Collection” (Oct. 24, 2022).
87 FR 64200 Notice: “Submission for OMB Review; Comment Request” (Oct. 24, 2022).
Animal and Plant Health Inspection Service
87 FR 65186 Notice—Public Comment: “Notice of Request for Extension of Approval of an Information Collection; Case-Control Study on Highly Pathogenic Avian Influenza in Poultry” (Oct. 28, 2022).
87 FR 65023 Notice: “Notice of Withdrawal of Select Agent Regulatory Exclusions for Two Strains of African Swine Fever Virus” (Oct. 27, 2022).
Environmental Protection Agency
87 FR 64196 Proposed Rule: “Receipt of a Pesticide Petition Filed for Residues of Pesticide Chemicals in or on Various Commodities September 2022” (Oct. 24, 2022).
Foreign Agricultural Service
87 FR 65187 Notice—Public Comment: “Notice of Request for a Revision of a Currently Approved Information Collection” (Oct. 28, 2022).
Federal Trade Commission
87 FR 64791 Notice: “Tractor Supply Company and Orscheln Farm and Home LLC; Analysis of Agreement Containing Consent Orders to Aid Public Comment” (Oct. 26, 2022).
International Trade Administration
87 FR 64438 Notice: “Certain Frozen Warmwater Shrimp from the People’s Republic of China: Preliminary Results of Antidumping Duty Administrative Review and Preliminary Determination of No Shipments; 2021-2022” (Oct. 25, 2022).
87 FR 65279 Notice: “Determination Under Section 614(a)(1) of the Foreign Assistance Act of 1961 for Assistance to Advance Food Security and Energy Resilience and To Counter the People’s Republic of China’s Efforts” (Oct. 28, 2022).
Trade Representative, Office of the United States
87 FR 65280 Notice: “Section 301 Petition on Mexico’s Acts, Policies, and Practices Concerning Seasonal and Perishable Agricultural Products” (Oct. 28, 2022).
U.S. HOUSE AGRICULTURE COMMITTEE:
H.R.9244 “Supporting Market Access to Reinvigorate Trade Act of 2022.” Referred to the House Committee on Agriculture. (Oct. 28, 2022).
H.R.9184 “Root and Stem Project Authorization Act of 2022.” Referred to the Subcommittee on Conservation and Forestry. (Oct. 28, 2022).
H.R.9183 “Range Access Act.” Referred to the Subcommittee on Conservation and Forestry. Referred to the Subcommittee on Conservation and Forestry. (Oct. 28, 2022).
H.R.9144 “SNAP Access for Medically Vulnerable Children Act of 2022.” Referred to the Subcommittee on Nutrition, Oversight, and Department Operations. (Oct. 28, 2022).
H.R.9119 “Targeting and Offsetting Existing Illegal Contaminants Act.” Referred to the Subcommittee on Conservation and Forestry. (Oct. 28, 2022).
H.R.9088 “Protecting Access for Hunters and Anglers Act of 2022.” Referred to the Subcommittee on Conservation and Forestry. (Oct. 28, 2022).
H.R.9087 “TAP American Energy Act.” Referred to the Subcommittee on Conservation and Forestry. (Oct. 28, 2022).
H.R.9069 “Military Family Nutrition Act of 2022.” Referred to the Subcommittee on Nutrition, Oversight, and Department Operations. (Oct. 28, 2022).
H.R.9047 “Precision Agriculture Loan Program Act of 2022.” Referred to the Subcommittee on Commodity Exchanges, Energy, and Credit. (Oct. 28, 2022).
H.R.9035 “Farmers Deserve Notification Act.” Referred to the Subcommittee on Biotechnology, Horticulture, and Research. (Oct. 28, 2022).
H.R.9025 “Determination of NEPA Adequacy Streamlining Act.” Referred to the Subcommittee on Conservation and Forestry. (Oct. 28, 2022).
H.R.9024 “DRILL Act.” Referred to the Subcommittee on Conservation and Forestry. (Oct. 28, 2022).
H.R.9006 “To establish deadlines for the Secretary of the Interior and the Secretary of Agriculture to complete certain environmental reviews, to establish notification rules for receipt of onshore right-of-way applications, and for other purposes.” Referred to the Subcommittee on Conservation and Forestry. (Oct. 28, 2022).
H.R.8981 “Securing America’s Mineral Supply Chains Act of 2022.” Referred to the Subcommittee on Conservation and Forestry. (Oct. 28, 2022).
H.R.8966 “START Act.” Referred to the Subcommittee on Conservation and Forestry. (Oct. 28, 2022).
H.R.8950 “Digital Commodities Consumer Protection Act of 2022.” Referred to the Subcommittee on Commodity Exchanges, Energy, and Credit. (Oct. 28, 2022).
H.R.8928 “Permitting for Mining Needs Act of 2022.” Referred to the Subcommittee on Conservation and Forestry. (Oct. 28, 2022).
H.R.8862 “PRO–LIFE Act of 2022.” Referred to the Subcommittee on Nutrition, Oversight, and Department Operations. (Oct. 28, 2022).
H.Con.Res.112 “Urging the administration to initiate the International Agreement to Prohibit the Eating of Dogs and Cats.” Referred to the Subcommittee on Livestock and Foreign Agriculture. (Oct. 28, 2022).
H.Con.Res.106 “Supporting the designation of the week of September 19 through September 23, 2022, as ‘Malnutrition Awareness Week.’” Referred to the Subcommittee on Nutrition, Oversight, and Department Operations. (Oct. 28, 2022).
H.Res.1446 “Expressing support for the designation of the week of October 24, 2022, to October 31, 2022, as ‘Bat Week.’” Referred to the Subcommittee on Livestock and Foreign Agriculture. (Oct. 28, 2022).
H.R.9233 “Trust in Government Act of 2022.” Referred to the Committee on Oversight and Reform, and in addition to the Committees on Foreign Affairs, Ways and Means, Natural Resources, Agriculture, Energy and Commerce, Education and Labor, Veterans’ Affairs, Homeland Security, Small Business, and Armed Services. (Oct. 25, 2022).
H.Res.1448 “Celebrating the 100th anniversary of the Mississippi Farm Bureau Federation.” Referred to the House Committee on Agriculture. (Oct. 25, 2022).
U.S. SENATE COMMITTEE ON AGRICULTURE, NUTRITION, AND FORESTRY:
No new actions this week.
STATE ACTIONS—EXECUTIVE & LEGISLATIVE
PENNSYLVANIA DEPARTMENT OF AGRICULTURE PRESS RELEASES:
2023 PA Farm Show Asks Pennsylvanians, ‘Oh, Say, Can You Sing?’ (Oct. 25, 2022).
PENNSYLVANIA EXECUTIVE AGENCIES (Pa. Bulletin Vol. 52, No. 44—Oct. 29, 2022):
Delaware River Basin Commission
52 Pa.B. 6717 Notice: “Public Hearing and Business Meeting.”
Department of Agriculture
52 Pa.B. 6717 Notice: “Commonwealth Specialty Crop Block Grant Program; 2022 Program Guidelines.”
52 Pa.B. 6720 Notice: “Federal Specialty Crop Block Grant Program; 2023 Program Guidelines.”
52 Pa.B. 6721 Notice: “Pennsylvania Peach and Nectarine Research Board; Grant Solicitation and Application Procedures.”
52 Pa.B. 6723 Notice: “Pennsylvania Potato Research Board; Grant Solicitation and Application Procedures.”
Department of Environmental Protection
52 Pa.B. 6727 Notice: “Applications, Actions and Special Notices.”
52 Pa.B. 6784 Notice: “Availability of Technical Guidance.”
52 Pa.B. 6785 Notice: “State Water Plan Statewide Water Resources Committee Meeting.”
52 Pa.B. 6785 Notice: “Stream Redesignation Evaluation of Unnamed Tributary (UNT) to North Fork Dunkard Fork, UNT to Big Cove Creek, UNT to West Branch Conococheague Creek and Lick Run; Water Quality Standards Review.”
Environmental Hearing Board
52 Pa.B. 6697 Rules and Regulations: “Municipal Waste Rural Transfer Facility Permit-By-Rule.”
No new actions this week.
Dillon Lightfoot—Research Assistant
Megan Guess—Research Assistant
Audry Thompson—Staff Attorney
Brook Duer—Staff Attorney