Projeto DIREITO AGRÁRIO LEVADO À SÉRIO

Uma nova forma de pensar e estudar direito agrário... chegou.

Conheçam o Projeto “Direito Agrário Levado a Sério”, uma criação dos Portais DireitoAgrário.com e AgroLei.com, com apoio da UBAU, que busca conectar os profissionais do direito agrário em todo o Brasil, proporcionando discussões científicas sobre os mais importantes tópicos deste ramo do direito.

No nosso primeiro episódio, discutimos a alteração nos contratos agrários proposta por uma inserção dentro da MP 881, assista!

USA - Meatless Meat Update

By Mark Arnold 

On September 28, 2018, we blogged about the new Missouri statute that purports to place substantial restriction on the ability of producers of lab-grown or plant-based products to market their products as “meat.” We also blogged about the lawsuit that challenges the constitutionality of the statute.

Plaintiffs have now filed a motion for preliminary injunction. They argue that the labels on their products constitute commercial speech, which has had First Amendment protections since 1976.  Until recently, courts applied an intermediate scrutiny standard of review to commercial speech.  As plaintiffs’ motion for preliminary injunction argues, Sorrell v. IMS Health Inc., 564 U.S. 552 (2011), suggests that strict scrutiny applies to commercial as well as most other forms of speech.  The motion wisely argues that the Court need not decide the validity of that suggestion because the statute cannot satisfy Central Hudson.

The first issue under Central Hudson is whether the advertising is inherently misleading.  If so, it is entitled to no First Amendment protection and the inquiry is over.  The motion argues that Tofurky’s advertising is not inherently misleading because it plainly discloses that the product is plant-based or lab-grown.

If the advertising is merely potentially misleading, the Court must proceed to the next three levels of Central Hudson scrutiny:  whether the government has a substantial interest in regulating or suppressing speech; whether the regulation directly advances that interest; and whether the regulation is no more extensive than necessary.

Based on some statements by legislators that the purpose of the statute is to protect the agricultural industry from competition, the motion argues that suppression of disfavored speech is not a legitimate state interest. Courts generally try to resolve constitutional challenges on bases other than stray comments by legislators.  In our view, this argument largely begs the question.  If the advertising really does mislead consumers, it is a perfectly legitimate state interest to protect both consumers and competitors from unfair competition.

The motion also argues, however, that the ban on references to meat provides only the most incremental addition to the State’s legitimate interest in consumer protection. The reason is that Tofurky and other producers of meatless meat already provide plenty of disclosures that their product is either plant-based or lab-grown.  For the same reason, the motion argues that the statute is substantially broader than necessary to protect consumers.  A mandatory disclosure requirement would accomplish the same ends.

Plaintiffs have also filed a motion to certify a defendant class represented by named defendant Mark Richardson, the Cole County prosecuting attorney. Given that Mr. Richardson’s response to the complaint was massive indifference, it is not clear that he would be an adequate class representative.  Moreover, since the State of Missouri has intervened in the case to defend the statute, it is unclear why class action status is necessary.  A judgment against the State striking down the statute would almost certainly bind any prosecuting attorney in the State.

https://www.foodandaglawinsights.com/2018/12/meatless-meat-update/

“carne” vegetal

ALIMENTOS UTRAPROCESSADOS - Artigo de Luís Otávio Daloma trata da “carne” vegetal, alimento com apelo “mais saudável”, que na verdade é um tipo de alimento ultraprocessado.
Saiba mais em: https://direitoagrario.com/carne-de-mentira/

Transporte marítimo

AGRONEGÓCIO E A REDUÇÃO DE GASES DE EFEITO ESTUFA NO TRANSPORTE MARÍTIMO - Artigo da Profa. Maria Cristina Gontijo P. V. Silva analisa de que forma os acordos internacionais e os recém-editados Decreto nº 9.878/2019 (que Institui a Comissão Coordenadora para os Assuntos da Organização Marítima Internacional) e Decreto nº 9.888/2019 (que trata da definição das metas compulsórias anuais de redução dos gases de efeito estufa para a comercialização de combustíveis) podem influenciar o transporte marítimo e as exportações do agronegócio brasileiro.

Leia em: https://direitoagrario.com/como-os-acordos-internacionais-…/

Servidão de passagem

DIREITOS REAIS AGRÁRIOS – Julgado do STJ negou pedido de reintegração de posse de servidão de passagem no qual os autores alegaram que o comprador de terreno vizinho fechou a passagem indevidamente. 

A relatora, Min. Nancy Andrighi, redigiu uma aula sobre a distinção entre passagem forçada e servidão de passagem. 

Leia em: https://direitoagrario.com/abertura-de-via-alternativa-jus…/

To BE or not to BE a GMO (UPDATED)

On June 11, 2019, President Trump signed an executive order directing the Food and Drug Administration (FDA), Environmental Protection Agency (EPA), and United States Department of Agriculture (USDA) to ease rules for approving new genetically modified crops and other agriculture products. Couple this with, as we noted in a previous update, the USDA’s current approach which allows developers who use certain gene editing techniques to get their products to market without the lengthy process required for crops that rely on foreign DNA, and one can predict that there is going to be a significant uptick in new agriculture products with innovative traits hitting the market in the next few years. Unfortunately, the definition of what constitutes a Genetically Modified Organism (GMO) is no longer consistent among the regulators, industry and private certificate labels.

It all starts with the USDA’s new consumer labeling regulations. Starting on January 1, 2020, the USDA will require certain products that contain GMOs to have a Bioengineered (BE) label. (For additional information on BE labeling requirements, please see the Polsinelli update linked here.) While the USDA’s BE labeling requirements are rational and preferable to a patchwork of state labeling requirements, the definition of “bioengineered” under the USDA’s new BE labeling requirements are not consistent with a lay persons understanding of GMOs, the USDA’s organic standard as it relates to GMOs, the European Union’s and China’s import standards for GMOs, or private non-GMO labeling.

On December 21, 2018, the Agricultural Marketing Service (AMS) of the USDA promulgated regulations that require all organisms that contain foreign DNA to carry the BE label. Some commenters have tried to draw a distinction between “Gene-Edited” and “Genetically Modified” with the distinction that “Genetically Modified” organisms have foreign DNA and “Gene Edited” organisms use newer techniques, like CRISPR and TALENs, to edit the genetic material directly without adding foreign DNA. However, the question is, do the new gene editing techniques need to carry the BE label if they do not contain foreign DNA? Although untested, the answer appears to be no.

Calyxt’s high oleic soybean is a good case study. Calyxt used the TALEN gene editing technique to suppress the genes responsible for producing saturated fat in soybeans. Thus, soybean oil from Calyxt’s soybeans has 20% less saturated fat than normal soybean oil. The USDA and FDA have allowed Caltex to bring this innovation to market quickly. There is little doubt that these products can have a significant health benefit for the consumer and therefore the possibility to fetch a premium price.

However, at least one seed co-op marketed Calyxt’s soybean as “non-GMO.” Non-GMO is an important and profitable selling point. Non-GMO can be used as feed for organic poultry and livestock. Furthermore, non-GMO crops do not have to get the same, burdensome import approval as GMO varieties.

Is it BE or not BE, and why does that matter? First and foremost, under the current USDA BE regulations, Calyxt’s soybeans probably will not be required to carry the BE label. However, Calyxt’s soybeans and byproducts cannot be labeled as organic or used as organic feed under the USDA’s Organic label – even if it is grown using organic farming techniques – because it is genetically modified according to the USDA’s organic standard. Furthermore, the EU does not distinguish between gene-editing and genetic modification. Thus, according to European Union regulations, Calyxt is a GMO soybean and, as of now, has not approved Calyxt for import.

Furthermore, many companies who purchase non-GMO products want to market them as non-GMO and affix a private certification label from organizations like the Non-GMO Project. However, the Non-GMO Project has taken the position that the Calyxt soybean, called the “TALEN soybean, is genetically modified and cannot qualify for the non-GMO label.

What could possibly go wrong? Considering genetically modified traits–developed by relatively new companies–are now on the market, there is an elevated business risk from these new traits. All parties, from innovators to food companies, should take a proactive approach in dealing with this issue. Companies can use audits, contracting, insurance, monitoring and stewardship programs to help avoid potentially catastrophic liability.

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