Containing COVID Catastrophes: “Addressing the Effects of COVID-19 on the Agricultural Industry” 2020 Law Review Symposium Recap

Law Review COVID SymposiumThe Texas A&M Law Review, through sponsorship by the G. Rollie White Trust, hosted its annual agricultural law symposium this past September. Although virtual, the event hosted a plethora of experts from the agricultural industry. The symposium theme focused on the effects of a global pandemic on the agriculture industry and the food supply chain.

Professor Jim Bradbury, an agricultural law expert and adjunct professor at Texas A&M School of Law, took on the role of host as he greeted viewers each day, introduced panels and moderators, and proctored questions. 

Cattle Industry Impacts
Chelsea GoodThe first presenter of the event was Chelsea Good, the Vice President of  Government & Industry Affairs and Legal with the Livestock Marketing Association. Good’s presentation focused on the effects of the pandemic on the cattle industry by breaking down the different areas of the supply chain and addressing how each link in the chain was affected. For example, packing plants and meat processing became a bottleneck due to factory closures and decreased employee density. Meanwhile, producers were forced to throw out products or move animals due to backups in shipping. 

Food Production and Distribution
Greg PompelliThe next presenter was Greg Pompelli, Director of Texas A&M AgriLife Research’s Center of Excellence for Cross-Border Threat Screening and Supply Chain Defense, DHS Science & Technology Center of Excellence. Pompelli focused his presentation on food production and distribution. He spoke about the supply chain dependency within the various agriculture sectors and how the current system has caused excessive harm to certain producers and consumers. For instance, the dairy industry depends heavily on schools for demand; the demand for breakfast and lunch programs disappeared with school closures. Meanwhile, packing facilities were unable to pivot packaging milk from school distribution to grocery store distribution in time to keep up with the dramatic shift as people began buying milk for home consumption. Mr. Pompelli said that, as a result, dairy farmers were forced to dump milk that would spoil waiting for the next shipment while grocery store dairy fridges sat empty. Global food security and anticipating consumer demands generally do not account for such abnormal circumstances, he explained. Still, looking forward, many producers, shippers, and processing facilities will likely operate with a contingency plan in place in the event of another global pandemic.

Government Aid
Greg IbachThe third speaker of the symposium was Greg Ibach, who serves as Under Secretary for Marketing and Regulatory Programs for the United States Department of Agriculture (USDA). Ibach explained the CARES Act and the work the USDA was undertaking in response to changing industry needs. When the shipping and packaging/processing sections of the industry came to a complete halt, Mr. Ibach noted that the USDA jumped in to allow exceptions within the laws, which  permitted certain food supply operators to continue working while helping bridge the gap between distribution and food safety regulation. The USDA allowed temporary changes to packaging labels, so the products could quickly transition from school-use to grocery store-use. Although it is a government agency, he explained that the USDA and its employees worked furiously behind the scenes to keep the food supply moving as quickly as possible.

Contracts Panel
2020 Ag Law Symposium Contracts panelThe second day opened with a moment of silence for the victims of 9/11. Professor Bradbury then introduced the moderator of the first panel, Jennifer Zwagerman. Zwagerman is an Assistant Professor of Law and the director of the Agricultural Law Center at the Drake School of Law. This panel focused on the supply chain’s contractual responses related to the unforeseeable consequences of the global pandemic. The panel included Bill Even, the CEO of the National Pork Board, Amber Miller, a litigation partner with Crenshaw Dupree & Milam Law Firm, L.L.P., and Kim Bousquet, a partner with Thompson Coburn. 

The panel’s discussion included the plummeting demand for products, bottlenecks in packaging, and shutdowns of storage and shipping facilities, resulting in many clients and vendors attempting to cancel contracts. Many companies scrutinized force majeure clauses and utilized arbitration when contracts were advantageous to only one party. Some parties to the disputes tried to find a balance between those who cannot perform their contracts and those who need more time to complete their contracts. The panel concluded with remarks on force majeure clauses and how to evaluate “once in a lifetime” events moving forward, particularly those becoming more common like natural disasters.

Labor and Employment Implications
Mike TraxingerThe next speaker, Mike Traxinger, presented on the labor and employment implications of the pandemic and resulting issues with reopening packing plants and other high-density operations. Traxinger is the President of the American Agricultural Law Association and General Counsel and Director of Governmental Affairs for Agtegra Cooperative. Mr. Traxinger provided a broad level description of the various laws and regulations that apply to the industry and how they have been interpreted to account for the repercussions of the pandemic. He explained how provisions had been adjusted for workers who contract COVID and the expectations of employers trying to operate within the CDC requirements while ensuring compliance with the ADA, FLSA, FMLA, OSHA, Title 7 of the Civil Rights Act, and other applicable federal and state laws. He also touched on the conflict between the essential nature of agriculture-related jobs and the shutdown of schools and daycares. 

Litigation and Executive Orders
Harrison PittmanNext, Harrison Pittman, Director of the National Agricultural Law Center with the University of Arkansas, presented on litigation issues within the agricultural industry since the start of COVID restrictions. Meat inspection at the state level was already an issue, but Mr. Pittman explained that COVID caused the scrutiny to spiral as factories closed then reopened while trying to protect workers and the products. He further described how the pandemic also exacerbated issues with labor, employment, and contract law as well as agricultural marketing, specialty crop marketing, ag finance, and ag credit, and then dug into the Defense Production Act of 1950 and how this act had become increasingly more relevant.

Limiting Liability/Liability Waivers
Paul GoeringerThe final speaker of the event was Paul Goeringer, who is a senior faculty specialist and extension legal specialist at the University of Maryland. Mr. Goerginer’s presentation covered limiting liability issues during a pandemic, and he spoke primarily on the legal fallout of spreading the disease, typically categorized under negligence law. He explained that this topic was especially problematic in the early stages of the pandemic, as the public was unsure of mechanisms of viral transmission and incubation period. From the standpoint of an essential industry that was unable to shut down, ag companies and operators had to adjust and apply new health and safety standards quickly and with little reliable information. He also described a number of best practices to put in place, such as communicating expectations clearly, obtaining written informed consent, following the same rules by which employees have to abide, hanging appropriate signage, talking to insurance carriers, instituting liability waivers, and most importantly, checking state requirements.

Overall, this year’s Texas A&M Law Review symposium provided a critical perspective on how an essential industry deals with the trials and tribulations of a pandemic.