Federal Policy to Focus on Fostering Competition – including Ag

Last week President Biden issued a sweeping Executive Order aimed at promoting competition in the U.S. economy and tackling the effects of consolidation in many U.S. markets. The Order includes 72 initiatives for more than a dozen federal agencies, directing them to take action to address barriers to market entry, increase transparency, alleviate the effects of corporate consolidation, combat unfair trade practices, and a host of other problems impairing competitive markets. Agriculture issues that are targeted in the Order include:

• New rules under the Packers & Stockyards Act that empower livestock producers to bring and win claims for abusive packer practices
• Revising the rules for when meats can bear a “Product of U.S.A.” label
• Ensuring farmers the “right to repair” their tractors and preventing equipment manufacturers’ from requiring dealer-only repairs
• Increasing farmer access to alternative markets and food distribution systems

The Order indicates that over 75% of U.S. industries are significantly consolidated and directs the Department of Justice and the Federal Trade Commission to take a harder look at proposed mergers and review previously closed deals to examine if they should be unwound. Although no specific directive was made for the seed industry, seed company consolidation was cited as an example in the White House Fact Sheet about the Order, noting that “just four companies control most of the world’s seeds, and corn seed prices have gone up as much as 30% annually.”

Clarity urged for plant-based food labels

In its recent approval of a funding bill for the USDA, FDA, and related agencies, the House Appropriations Committee urged the FDA to provide clarity around the labeling of plant-based foods. Citing the “ongoing debate around plant-based product labels and the use of traditional meat, dairy and egg terminology,” the Committee directed FDA to clarify plant-based food labeling to prevent consumers from being misled or confused.

House orders review of 0.3% THC limit for Hemp

The House Appropriations Committee also questioned the 0.3% THC limit for hemp set in the 2018 Farm Bill. The Committee was concerned that the limit was not based in science and was set arbitrarily, resulting in undue burdens on hemp production. The Committee directed the USDA to work with the DEA and the Department of Health and Human Services to study and report to Congress whether the 0.3% limit has a scientific basis and whether alternative limits should be established.

Cape Law Firm’s Frequently (or Randomly) Asked Questions

Can my brand mimic (or include) a famous brand, but use it in a different way (e.g., for different goods or services)?

Most often, the answer is “No.” A variation of this issue comes up fairly often when someone is trying to launch a new brand (or register a new trademark) which bears some element of a famous brand. The problem is the potential (or actual) dilution to the famous mark. Many recent examples of trademark dilution claims have emerged from the cannabis industry where brands have bore similarities to famous marks for totally unrelated goods and services. A recent dispute that illustrates the dilution issue – United Parcel Service (UPS) sued United Pot Smokers in federal court, alleging trademark dilution for the cannabis company’s use of a mark that looked much like their own:

The analysis for trademark dilution focuses on the level of fame and distinctiveness of the famous mark and the similarity to the allegedly diluting mark. The owner of the famous mark has several remedies, from opposing registration of the new mark, to injunctions, and possibly monetary damages.