Agricultural Law Update
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The Official Newsletter of the Agricultural Law Update A nonprofit, professional organization focusing on the legal issues affecting agriculture throughout the United States for over 29 years. VOLUME 26, NUMBER 8, WHOLE NUMBER 309 August 2009 Agricultural Law Update REGULATORY UPDATE – FTC SEEKS INPUT ON GREEN The official newsletter of the American MARKETING GUIDES Agricultural Law Association by Tom Redick* Editor Linda Grim McCormick Growing public and regulatory attention to global warming, energy conservation and other sustainability issues is leading consumers and investors to demand more information about the environmental impacts of products and services. Consumers Agricultural Law Update is published by the American Agricultural Law Association, purchasing products, however, encounter myriad marketing claims promoting Publication office: 37500 Mountain Home Dr., environmental aspects -- “carbon-neutral,” “sustainable,” “environmentally preferred,” Brownsville, OR 97327. Copyright 2009 by “green,” or a range of specialized statements specific to certain sectors (“energy star” American Agricultural Law Association. All for electronics, “natural” or “organic” in food). In the US and the United Kingdom rights reserved. No part of this newsletter may be reproduced or transmitted in any form or by (UK) the “green marketing” regulators may invalidate advertising that goes too far any means, electronic or mechanical, including – particularly claims that reach into the stratospheric ideal of “sustainability”. As photocopying, recording, or by any information claims are increasingly made for “indirect” as well as more consumer-friendly storage or retrieval system, without permission “direct” environmental effects, attorneys are predicting increased attention to both in writing from the publisher. compliance from businesses and enforcement by agencies.1 This article will survey the This publication is designed to provide legal boundaries for such marketing representations, including eco-labeling standards, in accurate and authoritative information in the US and the UK. regard to the subject matter covered. It is sold (cont. on page 2) with the understanding that the publisher is not engaged in rendering legal, accounting, or ____________________________________________________________________ other professional service. If legal advice or * Global Environmental Ethics Counsel, Clayton, MO other expert assistance is required, the services of a competent professional should be sought. 30th ANNUAL AGRICULTURAL LAW SYMPOSIUM IN Views expressed herein are those of the individual authors and should not be WILLIAMSBURG, VA interpreted as statements of policy by the by Robert P. Achenbach, AALA Executive Director American Agricultural Law Association, its officers or its members. With a total attendance of 209 plus guests, the 30th Annual Agricultural Law Symposium Letters and editorial contributions are was a fine success from all views. The program was packed with a variety of topics and welcome and should be directed to: speakers, from the traditional updates of major agricultural law areas to cutting issues such Linda Grim McCormick, Editor, as animal rights and wind power. 2816 C.R. 163 Alvin, TX 77511 Jesse Richardson of the Awards Committee announced presentation of the Distinguished ph. 281-388-0155 Service Award to Tom Lawler of Parkersburg, IA, a former president and long-time supporter e-mail: [email protected]. of the AALA. The Professional Scholarship Award was announced for Richard L. Cupp, Jr. For AALA membership information, contact: Robert Achenbach, Executive Director for “Moving Beyond Animal Rights: A Legal/Contractualist Critique,” 46 San Diego Law P.O. Box 835 Review 27 (2009). The Student Scholarship Award was announced for William Hett for “U.S. Brownsville, OR 97327 Corn and Soybean Subsidies: WTO Litigation and Sustainable Protections,” 17 Transnational Ph. 541-466-5444; Fax 541-466-3311 Law and Contemporary Problems 775 (2008). E-mail: [email protected]. U.S.D.A. Secretary Tom Vilsack gave an extended talk and answered many questions on current policy and initiatives in the U.S.D.A. during the keynote luncheon on Friday. Our appreciation for their service goes to Roger A. McEowen, past-present, and outgoing board members William Baarda and William Penn. Ted Feitshans assumed the presidency (cont. on page 8) Redick—REGULATORY UPDATE – FTC SEEKS INPUT ON GREEN MARKETING GUIDES (cont. from p. 1) A. Who’s Grinning (and Bragging) level of false or misleading information.7 withdraw their press campaign making about their Greening? The New York Times reported on $54 environmental claims about palm oil from Products declaring that they are sustainably million in 2007 spending for carbon credits Malaysia. Among other claims, MPOC produced are increasingly entering the to support tree planting, wind farms, solar asserted its palm oil was “sustainable” marketplace, some with consensus-based power generation and other projects that – which was deemed “misleading” by the industry standards backing up their assertion offset the greenhouse gas (GHG) emissions UK-ASA. The environmental group Friends that they are “sustainable”2 As of August, of transportation choices. As Kyoto Protocol of the Earth International and two members 2009, the “Food Alliance” certifier of nations start engaging in mandatory global of the public challenged the Malaysian sustainable food, based in Oregon, claimed to trading of carbon credits, key US industries Palm Oil Council (MPOC) claims calling have “320 Food Alliance certified farms and — from high-flying airlines to low-lying its product the “green answer” as the “only ranches in 23 U.S. states”.3 U.S. producers agriculture — may find themselves faced product able to sustainably and efficiently are being pressured by processors and with billion-dollar impacts to manage, with meet a larger portion of the world’s increasing consumer demands that farmers demonstrate product labeling for voluntary greening and demand for oil crop-based consumer goods, the sustainability of their production systems. the liability risks that come with it. Major foodstuffs and biofuels”. US soybean For example, Wal-Mart recently announced agricultural industries overseas, from palm producers (the other ASA, the American its Sustainability Index and the need for oil to pork chops, may find their claims of Soybean Association) would vigorously an industry standard. Wal-Mart senior sustainability rejected by regulators. dispute this assertion – and UK-ASA found vice president for sustainability told food With the Obama administration and a it lacking in the substantiation required. In industry leaders, at a Grocery Manufacturers’ Democratic majority in Congress taking particular, UK-ASA ruled that the palm oil Association (GMA) Executive Conference over enforcement of green marketing company “sustainability” certification by in early September, 2009, that there is no laws, advertising experts predict that the third-party Roundtable on Sustainable “silver bullet for sustainability; you need Congress will “broadly expand the Federal Palm Oil (RSPO), and the certification of to do it collaboratively.”4 Wal-Mart and Trade Commission (FTC) and Federal biofuels in general, was “still the subject of Whole Foods Market are hailed in the book Communications Commission and their debate” around the world. “Green to Gold” by Esty and Winston, citing enforcement of food and drug marketing, so In defense of the RSPO, the Worldwide Wal-Mart CEO Lee Scott’s promise that if we can’t convince regulators that we are Fund for Nature (WWF - www.panda.org) sustainability efforts would help protect the regulating well, they will do it for us.”8 can point to measurable environmental company’s “license to grow.”5 Across the water, the Prime Minister of the and social progress as palm producers Another book author on green marketing, UK, Gordon Brown, has publicly promoted take the “Ten steps towards increased Stan Cox, suggests that “the corporate sustainability in various sectors of Britain. sustainability of palm oil production” takeover of organic food retailing has been Mr. Brown might have some tales to tell including environmental and social impact the industrialization of organic agriculture”6 President Obama, since Mr. Brown has been assessments, zero discharge for some and cites critics who see corporations accused of “greenwashing” in his efforts to operations, and other environmental “exploiting organic agriculture’s feel-good promote “eco-towns” and electric cars.9 Mr. measures including Regional-scale HCVF image even when selling conventional Brown is in good company – as this article (high conservation value forest) surveys products.” Cox cites one writer who was going to press, the UK Advertising to be completed for the whole of Borneo suggested that the Whole Foods store in Standards Authority (UK-ASA) was going and making 75% of new plantings on land Manhattan was using folksy profiles of after palm oil from Malaysia and other already deforested. Such efforts would neighborly food-growers (like “a sandy- “sustainability” claims made in products sold surely improve the ecological “footprint” haired organic leek farmer named Dave”) there. of palm oil, reducing environmental 10 to sell non-organic onions from Oregon B. British Advertising Authority Rejects degradation. and Mexico, and Cox suggests that “Wal- “Sustainability” Claims With the UK-ASA striking down the Mart has been caught in similar deception” In