At issue is the fact that the EPA sets annual volume requirements for certain renewable fuels – here, domestic ethanol production.  Presently, the RFS requires that 13.2 billion gallons of the corn starch-derived biofuel be produced in the United States in 2012.

While the stated goals of such an initiative are admirable – among other things, proponents tout energy independence and reduced greenhouse gas emission as natural consequences of these production requirements – the ethanol target has caused a rift between the energy and agriculture industries, who have become competitors for the nation’s dwindling corn crop.  Perhaps surprisingly, the biofuel industry and livestock farmers use roughly the same amount of the nation’s corn, with energy accounting for 40% of the crop and agriculture accounting for 36% for feed.

The RFS is a comparatively new regulatory mechanism, coming into being in 2005 and dramatically expanding in scope in 2007.  Since its inception, corn prices have risen 193%, according to Governor Beebe, among other sources.  In a growing season plagued with national droughts and record temperatures, the ensuing scarcity of domestic corn has caused prices to skyrocket further.  Accordingly – at least as far as the livestock industry argues – we’re faced with a dilemma.  Which do we want to cost more: food or fuel?

The concerns of Governors Beebe and Purdue (admittedly, as advocates for the agriculture industry) highlight an interesting tension between two seemingly dissimilar but equally essential segments of our economy.  In the campaign season, a great deal of coverage has been given to the talking points of energy independence and renewable resources, but very little time has been devoted to food security.  Regardless of one’s feelings towards livestock farming or, for that matter, ethanol as a renewable energy source, the Governors’ letters, coupled with the mounting cry of both the agriculture industry and sympathetic lawmakers, remind us that our policies must square at the end of the day.

It is a certainty that some pundits will tell us our choices at the fuel pump need not overlap with our choices at the table, but it is important to know that in the current regulatory landscape, these two areas appear to intertwine considerably.

The post Food v. Fuel: A Growing Conflict appeared first on The Arkansas Journal of Social Change and Public Service.

By David Slade

As I wrote in a much longer article earlier this year, numerous 2012 legislative sessions across the country saw the introduction, and in two cases the passing, of bills that would criminalize acts of investigative journalism in the agriculture industry.  These controversial “ag gag” laws target a practice common within news reporting and animal rights activism circles: embedding oneself as a factory worker, getting footage of inhumane or unsanitary conditions, and then releasing the video or photographs to the public.  Iowa, for instance, passed House File 589 (“HF 589”), which created the offense of “agricultural production facility fraud.”  Broadly, the law criminalizes a party making misrepresentations in order to gain access to a farm or agricultural production facility (read: lying on a job application).  Utah passed a similar law, House Bill 187 (“HB 187”), which goes one step further and also prohibits making a recording of any type without the consent of the facility’s owner.  Both laws also provide penalties for parties who abet the proscribed acts, presumably all the way up to the news agency that runs the story or shows the video.  Bills worded similarly to HF 589 and HB 187 were introduced, but not passed, in Florida, Illinois, Indiana, Minnesota, Missouri, Nebraska, New York, and Tennessee.

Not only are these laws unsavory on both a gut and policy level, they also appear to run into serious constitutional problems, as the First Amendment’s guarantees of freedom of the press would seem to guard against this exact type of legislation.  The interesting wrinkle here is that laws like HF 589 and HB 187 don’t attack the finished work – the video played on network news or posted to a website, or the photographs compiled in an exposĂ© article – but instead target the underlying acts of gathering the material for the news story, and this is a far murkier area in First Amendment law.

In terms of the former category – the finished product – First Amendment jurisprudence is fairly clear.  Supreme Court cases like New York Times Co. v. Sullivan, for instance, have held that media outlets can’t be sued, even where they print something that is untrue, except where they acted with “actual malice” (meaning that even if they get something wrong, they aren’t liable, unless they ran the incorrect information on purpose, with the intent to harm the injured party).  In that same opinion, the Court wrote that the First Amendment “was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people.”  Accordingly, any law or agent of the state attempting to rein in the ability of the press to print what it wants is going to have to leave “breathing room” for “speech that matters,” as the Court noted in Gertz v. Robert Welch, Inc.

The problem is that, again, the above cases contemplated finished, published products and involved claims that attacked that same product.  In the wake of opinions like Gertz and Sullivan (and scores of others that support the same propositions), lawyers have gotten creative and instead of attacking the media’s ability to publish the news, they’ve attacked the steps that the media take to gather the news in the first place.  Here, they’ve been surprisingly successful.

As discussed in more detail in the paper, in cases like Branzburg v. Hayes, Zurcher v. Stanford Daily, and Cohen v. Cowles Media Co., the Supreme Court began limiting the First Amendment protections for acts of news “gathering,” as opposed to publishing.  In Branzburg, for instance, the Court held that a reporter would have to submit to a grand jury subpoena, even where the information sought was the name of a confidential source.  Zurcher held that police officers, in possession of a valid warrant, may search a newspaper’s office, even where confidential information and work product is uncovered.  And Cowles held that a journalist could be sued by a former source for having broken a promise of confidentiality.  Contrasting the holdings in Cohen, Branzburg, and Zurcher with the holdings in cases like New York Times v. Sullivan, one discovers a tension between competing interests – the rights of the press to publish and the privacy rights of the subjects of investigative reporting – that borders on paradox: the press is afforded expansive protections for the article that has been published, but each of the steps taken along the way to publishing get almost no cover from the Bill of Rights.

The problem, however, is that attacking the methods amounts to attacking the end product.  Nowhere is this more evident than in a federal appellate court’s decision in Food Lion, Inc. v. Capital Cities/ABC, Inc.  In this 1999 case, the Fourth Circuit held that two reporters for ABC News, who had gone undercover in a grocery chain’s meat department to uncover unsanitary business practices, were not afforded the protection of the First Amendment in an ensuing lawsuit brought by the store.  Relying primarily on Cowles, the Court found that while expression of the press is typically beyond the power of state sanction, its behavior is in play for purposes of litigation.  Specifically, it looked to Cowles for the proposition that generally applicable laws (laws that affect everyone and not just the press) will not trigger enhanced scrutiny “simply because their enforcement against the press has incidental effects on its ability to gather and report the news.”  And it appears to be in that spirit that laws such as HF 589 and HB 187 were drafted.

The immediate problem with the Fourth Circuit’s analysis in Food Lion, and with laws like HF 589 and HB 187, is that clearly their effects are more than “incidental” in the scheme of gathering and reporting the news.[1]  Arguably, these boutique laws came into existence for the very purpose of stopping reporting on factory farms dead in its tracks.  As one Utah legislator inelegantly put it, “we certainly don’t want some jack wagon coming in and taking pictures.”[2]

Effectively, then, these laws amount to state-sanctioned censorship of an entire area of speech, also known as a “prior restraint.”  In the seminal case of New York Times Co. v. United States (also known as the Pentagon Papers decision), the Supreme Court stated that “[a]ny system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity.”  The Court went on to say that the government “carries a heavy burden of showing justification for the imposition of such a restraint.”  Such a burden cannot be met by the current crop of ag gag laws, as their lone purpose is to prevent the embarrassment of private industry through the documentation of abuses.

Ultimately, the public interest is best served by favoring transparency and protecting journalism that exposes issues directly related to public health and food supply safety.  Within the context of food safety and public health, it is almost impossible to overstate the importance of exposĂ©s conducted by investigative journalists.  In 1904, Upton Sinclair performed undercover work in Chicago’s meatpacking plants at the behest of the newspaper The Appeal to Reason.  His investigation yielded the novel The Jungle, a social realist depiction of abuses of animals, workers, hygiene, and consumer confidence that sent a shockwave through the American public.  The book prompted a federal investigation, which in turn led to the Meat Inspection Act and the Pure Food and Drugs Act of 1906, which in turn created the agency that would ultimately become the Food and Drug Administration.

This work, created over a century ago, serves as a reminder of the need for a vigilant press to uncover practices of the agricultural industry that put our food supply at risk.  Unfortunately, recent reports have revealed that bad actors in the meat and dairy industry do not appear to have meaningfully changed since Sinclair’s days.  An investigation conducted by the Humane Society of the United States uncovered horrendous conditions at a Pennsylvania-based Kreider Farms egg facility, including rodents on egg conveyor belts, rotting corpses in cages with live laying hens, eggs testing positive for salmonella, and ammonia levels so high that workers were forced to wear masks.  A similar Humane Society exposĂ© of four Iowa egg farms identified similar conditions.  Several months later, Iowa farms were at the center of a salmonella outbreak that led to the largest egg recall in U.S. history.

It bears mentioning that Iowa has the largest concentration of factory farms in the country.  If HF 589 remains law, it will make an increasingly suspicious public even more leery of the quality of the meat and dairy products stocking grocery shelves.  As one Iowa state senator, Herman Quirmbach, stated prior to the bill becoming law, “[p]assing this bill will put a big red question mark stamped on every pork chop, every chicken wing, every steak, and every egg produced in this state because it will raise the question of what do you got to hide.”

Supreme Court Justice Potter Stewart once suggested that the Press Clause of the First Amendment deputizes the news media to serve as a “fourth institution outside the Government [acting] as an additional check on the other three branches,” a sentiment that certainly extends to the instant circumstances.  Justice Byron White, in his opinion in Branzburg, conceded that “without some protection for seeking the news, freedom of the press would be eviscerated.”  Unless courts reject holdings like the Fourth Circuit’s opinion in Food Lion, and instead begin striking down ag gag laws such as HF 589 and HB 187, this is precisely the threat we face.

The post “Ag Gag” Laws: Industry Trumps the First Amendment appeared first on The Arkansas Journal of Social Change and Public Service.

by Jody Hardin

certifiedarkansas@gmail.com

The lowest hanging fruit seems the most likely to be harvested, right?

Many new opportunities are awaiting harvest as the niche market for local, sustainably-produced foods continues to expand as one of the fastest growing sectors of our national economy.  When you combine this growing opportunity with the growing demand for on-farm attractions and agri-tourism, the opportunities surrounding this growing niche market seem more and more exciting as a farmer, economist, and entrepreneur who lives and breathes this every day.

On the other hand, central Arkansas, like other parts of the country, has seen unprecedented growth in new Outdoor and Internet-based Farmers’ Markets, new Community Supported Agriculture programs, Local Food Festivals, Buying Clubs, U-pick Farms, Value-added products, etc. With this growth, there have been severe burdens placed on the small farmer in terms of new demands, governmental policies, and global environmental changes, that if not remedied, will soon crush the whole local food movement.  Simply put, there is demand for local foods, but we, as farmers, do not have the necessary tools and leadership to make the potentially huge health and economic impact on our state that we think we can achieve.

In my mind’s eye, the impact of this move to be more sustainable by Americans is a paradigm shift that ultimately explains some of the currently unexplained dynamics of our ongoing economic recession.  Perhaps it’s just a small group of people that are becoming to some small degree LESS consumption-based as families; however, I believe this is having some impact on the overall economy.  But, are we seeing some of this food dollar going back into rural Arkansas?  If so, it’s only a small trickle compared to the relative decline that our communities have experienced within their city limits and surrounding food sheds.  People once grew much of their own food or relied upon local farmers, but now they rely on McDonald’s and Wal-Mart for their main sustenance.  For those who think people aren’t smart enough to eventually figure this out on their own and continue to reconnect with our old ways of food production, they may be sadly mistaken.  The numbers speak for themselves, but it seems only a few farmers and businesses have this understanding, and can see this grassroots movement in food dollars being redirected back into small communities and the small farms that serve them.

It would be fair to say that a growing percentage of consumers are buying with higher standards, and are shifting some of their purchases and menu selections to local food.  It would also be fair to say that, as families reconnect with how and who grew their food, they become more mindful of eating a healthy diet and spending their food dollar in the local economy.  Additionally, as children are exposed to more varieties of fruits and vegetables, their interest and corresponding education create more intelligent consumers that can discern good food choices from bad.  Perhaps it would be fair to say that a healthy child will grow into a healthier adult, and in a larger sense, place less of a burden on the existing healthcare infrastructure.

Economically speaking, a fairly recent study commissioned by Heifer International concluded that Arkansan’s exported $8 billion in food dollars out of state each year.  According to our best guess, less than five percent of what is purchased by residents in the state of Arkansas is grown in Arkansas.  Some have guessed that fresh fruits and vegetables account for less than one percent of the Arkansans’ annual food budget. The opportunities for growth are mind boggling, but I’m beginning to uncover the many evil bottlenecks our farmers and consumers face trying to affect change in our local food system.

Through my relatively extensive network in the local food and agriculture world in Arkansas and, more recently, the nation, I have seen the multitude of problems that our state faces first hand.  And, after taking several years to painfully boil them down, I am now supremely confident we can do something that will impact everyone in our state, and significantly alter the economic outcome of small communities and the many small acreage farmers in Arkansas.

This will be no small task.  We must understand the problems and opportunities, as well as the risks.  We will need to look outside our borders for working models, and we must quickly convince our state’s leadership that local food policy means big bucks for our state; all we need are a few infrastructure projects to come together with the markets and capital needed to reach new and existing customers.

Initially, our state needs to organize these markets, and it needs to give them credibility by creating a “Certified Arkansas” program, so that each farmer is source-verified by a rigorous inspection system that would allow him or her to sell at any Certified Arkansas Farmers Market that will be developed strategically around the state. Furthermore, as we crank up this economic engine and significant amounts of money and opportunity begin to flow from local food, impostors will attempt to enter with illegitimate products.  Impostors with illegitimate products and those producing food unfairly within a farmers’ market serve as one of the most dangerous catalyst to the quick demise of a local farmers’ market.  This must be considered before we make the first step.

The types of markets I’m proposing are not community-based farmers’ markets.  These have been traditionally called “Terminal Markets” or “Regional Farmers’ Markets.”  Some states refer to them as “State Farmers Markets,” as they are often run by the state’s Department of Agriculture and a member board.

Connecting these farmers’ markets to aggregators, processors, distributors, and retailers, is the key factor in this approach to building our infrastructure for Arkansas’ Local Food System.  Wholesale local markets, connected with aggregators, processors, distrubutors and marketers, are commonly referred to as Food Hubs.  In essence, we want to stay focused on this gluewith an overall mission statement that will drive us collectively, as developers of a statewide local food system that not only organizes food but also food policy and marketing.  However, none of this will work in the typical time frame that most new enterprises experience, since new governmental food policies recently imposed on food producers severely limit their ability to access these new markets.  Specifically, the Good Agriculture Practices program has put a glass ceiling on the size of the local market due to the additional capital and time investment necessary for farmers trying to comply.  It’s foreign to most farmers, and it does not suit their lifestyle without adding some infrastructure and incentives for them to produce in a different way.

Farmers are an interesting group to work with, and must be brought to the table creatively, patiently, and cautiously, even though they are a large part of the reason we are making this proposal.  Many don’t want or don’t know how to come into compliance with the many new changes in the Food Safety and Modernization Act and the Tester-Hagan Amendment, which gives small farmers a critical exemption in some areas.

An Arkansas Food Hub is the ultimate infrastructure goal we must aim to achieve, backed by a set of robust and high volume “Certified Arkansas” markets.  It would allow a market-based focus on building a new economic engine for our state, and it will act like a floodgate to channel money back into rural economic development through wholesome occupations like family farming.

The lowest hanging fruit, based on the consensus of a few knowledgeable leaders in our community, is the opportunity of Farm-to-Work.  Farmers are beginning to realize that in today’s busy world, the best way to reach the consumer during the week is through their work place.  Employers are beginning to embrace workplace healthy living products, such as workplace delivery of fresh food and on-campus farmers’ markets.

In Arkansas, we have identified a growing number of large corporate campuses that would be suited for a demonstration Farm-to-Work program.  This program is simple and straightforward –if farmers were able to produce the variety and volume needed to make the new program successful.  I don’t believe we have this type of ability under the current environment without initially starting out with some planning funds to begin coordinating farmers and their crops to new markets and their unique demands.  Nevertheless, we believe that, with a coordinated effort, the lowest hanging fruit that could be harvested first would be to develop a Farm-to-Work program in Little Rock and elsewhere around the state.  It can be started with little expense, run independently, and have its own specific mission, while allowing other infrastructure components time to develop on their own, i.e. regional and state sponsored farmers’ markets, mobile farmers’ markets, auction markets, producer cooperatives, csa’s, food clubs, farm-to-school processing, etc.  We could plan for the Food Hub to spring from the first Farm-to-Work program facility.

For phase two, I propose that we develop a small fleet of mobile farmers’ markets from the city’s retired CATA buses, brightly wrapped in colorful signage, to go out into underserved communities of Arkansas with the best of what is in season each day.  These buses will be managed, serviced, and inventoried by the future Farm-to-Work aggregation and distribution facility based in Little Rock.

The post Low Hanging Fruit-The Food Hub Foundation appeared first on The Arkansas Journal of Social Change and Public Service.