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Saturday, July 30, 2011

Tobacco: Selected Legal Issues


Jane M. Smith
Legislative Attorney

Over the past couple of decades, the courts and the Congress have been grappling with tobaccorelated issues, among them, the Food and Drug Administration’s (FDA’s) authority to regulate certain tobacco products under the Federal Food, Drug, and Cosmetic Act (FDCA); the Master Settlement Agreement (MSA) that resulted from lawsuits brought by states’ attorneys general against tobacco companies; federal, private party, and foreign lawsuits against tobacco companies; limits on tobacco advertising; restrictions on selling and distributing tobacco to minors; and the Federal Trade Commission’s rescission of its 1966 guidance document relating to tar and nicotine yields in cigarettes. This report addresses the above issues, with the exception of the FDA’s authority to regulate tobacco products. For information on that topic see CRS Report R41304, FDA Final Rule Restricting the Sale and Distribution of Cigarettes and Smokeless Tobacco, by C. Stephen Redhead and Jane M. Smith.

In the 1990s, states’ attorneys general brought lawsuits for reimbursement of their states’ tobaccorelated medical expenses. They reached a settlement with tobacco companies in 1997, but the settlement did not garner the congressional approval needed for implementation. In 1998, 46 states, the District of Columbia, five U.S. territories, and the tobacco industry signed the MSA, worth $206 billion over 26 years.

In 1999, the Clinton Administration filed a lawsuit against major tobacco companies and industry trade groups to recoup federal tobacco-related medical costs. In 2006, a federal district court held that the tobacco companies violated two provisions under the Racketeer Influenced and Corrupt Organization Act (RICO) and, among other remedies, ordered them to remove descriptors such as light, low-tar, natural, mild, and ultra light from their packaging.

Since the U.S. Supreme Court’s 1992 decision in Cipollone v. Liggett Group Inc., individual and class action lawsuits have been brought against tobacco companies under theories such as fraudulent representation, conspiracy, breach of express warranty, and failure to warn. The private party suit section of this report discusses selected state class actions. Suits brought in federal courts by foreign governments for medical care costs resulting from tobacco-related illnesses have not been successful.

Tobacco advertising is restricted at the federal, state, and local levels. The Federal Cigarette Labeling and Advertising Act (FCLAA), the Family Smoking Prevention and Tobacco Control Act (FSPTCA), state laws, the MSA, and local ordinances limit tobacco advertising in ways such as prohibiting radio and television advertisements, compelling the use of health warning labels, limiting the use of terms that imply decreased health risks, banning the use of cartoons, and requiring individuals to have contact with a sales person before purchasing tobacco products. Additionally, federal law plays a role in enforcing laws that prohibit tobacco sales and marketing to minors.



Date of Report: July 19, 2011
Number of Pages: 18
Order Number: RL33719
Price: $29.95

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Wednesday, July 27, 2011

Meeting the Renewable Fuel Standard (RFS) Mandate for Cellulosic Biofuels: Questions and Answers


Kelsi Bracmort
Analyst in Agricultural Conservation and Natural Resources Policy

The Renewable Fuel Standard (RFS) was expanded under the Energy Independence and Security Act of 2007 (EISA; P.L. 110-140) in an effort to reduce dependence on foreign oil, promote biofuel use, and stabilize transportation fuel prices, among other goals. Over a 15-year period, the RFS seeks to establish a market for biofuels in the transportation sector by requiring that increasing amounts of biofuels—36 billion gallons by 2022—be blended into transportation fuel. The mandate is to be accomplished with an assortment of advanced biofuels, including cellulosic biofuels—fuels produced from cellulosic materials including grasses, trees, and agricultural and municipal wastes. However, analysis suggested the United States did not have sufficient cellulosic biofuel production capacity to meet the 2010 and 2011 RFS mandate instituted by Congress in EISA, and this is likely to continue for the 2012 mandate.

The U.S. Environmental Protection Agency (EPA) is required to lower the cellulosic biofuel standard if the projected volume of cellulosic biofuel production is less than the applicable volume specified in the statute. The cellulosic biofuel allotment in the mandate, as established by Congress in EISA, was 100 million gallons due in 2010, 250 million gallons in 2011, and 500 million gallons in 2012, increasing to 16 billion gallons by 2022. EPA lowered the RFS cellulosic biofuel mandate to 6.5 million gallons in 2010 and 6.6 million gallons in 2011. For the 2012 cellulosic biofuels mandate, EPA proposed a range of volumes from 3.55 to 15.7 million ethanolequivalent gallons from which to consider a value. EPA is accepting comments on what the final value should be. The cellulosic biofuel community may fare better at achieving the lower mandates set and proposed by EPA if certain obstacles are overcome. Roadblocks include unknown levels of feedstock supply, expensive conversion technology that has not yet been applied commercially, and insufficient financial support from private investors and the federal government.

EPA reports that there are very few, if any, facilities consistently producing cellulosic biofuel for commercial sale. Some financial support from the Departments of Energy and Agriculture is available to expedite cellulosic biofuel production. For example, the Biomass Crop Assistance Program (BCAP), created under the Food, Conservation, and Energy Act of 2008 (2008 farm bill; P.L. 110-246), is to support establishment and production of crops for conversion to bioenergy in selected areas, and to assist agricultural and forest land owners and operators with collection, harvest, storage, and transportation of eligible material for use in a biomass conversion facility. Also, the Department of Energy’s Loan Guarantee Program, created under the Energy Policy Act of 2005 (EPAct05, P.L. 109-58), distributes loan guarantees to eligible commercial-scale renewable energy systems, including cellulosic biofuel plants, although criticisms have been raised that the program has been slow to get started.

Many questions regarding cellulosic biofuels and the RFS may arise as the 112th Congress engages in energy legislation debates. EPA compliance data indicate that there was no commercial production of cellulosic biofuel (RINS or volume) under the RFS for 2010. Can and will the 2011, 2012, and future RFS mandates for cellulosic biofuels be met? What impact will the continued lowering of the cellulosic ethanol mandate have on investment in cellulosic ethanol production? What are the next steps the 112th Congress could take to influence cellulosic biofuel production? This report, in a question and answer format, discusses some of the concerns facing the cellulosic biofuel community, including feedstock supply estimates, and potential legislative options to address cellulosic biofuel production uncertainty for the RFS.



Date of Report: July 13, 2011
Number of Pages: 18
Order Number: R41106
Price: $29.95

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Potential Trade Implications of Restrictions on Antimicrobial Use in Animal Production

Renée Johnson
Specialist in Agricultural Policy

Exports of U.S. livestock and poultry products are important both to farmers and to the U.S. economy. In 2009, U.S. livestock and poultry exports were valued at more than $10 billion, accounting for about 12% of total global meat trade (estimated at nearly $87 billion in 2009).

Growing concerns about antimicrobial resistance have caused some U.S. trading partners and competitors to implement restrictions and prohibitions on the use of certain antimicrobials for subtherapeutic or nontherapeutic purposes in animal production. Although antibiotic use in animals has not been a significant factor affecting U.S. trade in meat products to date, evidence suggests that country restrictions on the use of these drugs could become an issue in the future and could affect U.S. export markets for livestock and poultry products.

At issue is whether increased restrictions and prohibitions on the use of certain drugs in animal feed in some countries, including the European Union (EU), New Zealand, and South Korea, could affect or may already be affecting international trade in livestock and poultry products from countries, such as the United States, that do not actively restrict the use of these drugs for growth promotion in animal production.

In the United States, legislation has been introduced that seeks to restrict the use of certain antimicrobial drugs for subtherapeutic or nontherapeutic purposes in food-producing animals. In the 112
th Congress, the leading bills are the Preservation of Antibiotics for Medical Treatment Act of 2011 (PAMTA, H.R. 965, S. 1211). Most U.S. livestock and poultry producers are opposed to such restrictions because of concerns about animal welfare and food safety, as well as concerns about possible increases in production costs, among other reasons.

Presently, it is not possible to precisely predict or to provide a quantitative assessment of the potential trade implications of future restrictions on antimicrobial use in food animal production. Given the number of market variables that would need to be evaluated, along with other trade issues facing U.S. meat exporters in global markets, it is difficult to precisely predict trade implications of possible future restrictions on antimicrobials in animal feed in selected countries. However, it is possible to examine the range of possible outcomes from two scenarios involving potential trade implications for U.S. livestock and poultry exports from tightened restrictions or prohibitions on the use of antimicrobial drugs in animal feed for growth promotion: 

  • Scenario 1: Tightened restrictions or prohibitions in key U.S. export markets, without corresponding changes in the United States on the use of antimicrobials in animal feed for growth promotion. 
  • Scenario 2: Tightened restrictions or prohibitions in key U.S. export markets, with corresponding prohibitions in the United States on the use of antimicrobials in animal feed for growth promotion. 
This report discusses the possible outcomes under these scenarios in terms of changes in U.S. livestock and poultry exports and changes in U.S. market share in global meat markets. .


Date of Report: July 11, 2011
Number of Pages: 21
Order Number: R41047
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Monday, July 18, 2011

Trade Adjustment Assistance for Farmers


Remy Jurenas
Specialist in Agricultural Policy

The Trade Adjustment Assistance for Farmers (TAAF) program provides technical assistance and cash benefits to producers of agricultural commodities and fishermen who experience adverse economic impacts caused by increased imports. Congress first authorized this program in 2002, and made significant changes to it in the 2009 economic stimulus package (P.L. 111-5). The 2009 revisions were intended to make it easier for commodity producers and fishermen to qualify for program benefits. It also provided over $200 million in funding through year-end 2010. The 2010 omnibus trade measure (P.L. 111-344) temporarily extended the program through February 12, 2011, and authorized an additional $10.4 million.

The U.S. Department of Agriculture (USDA) is required to follow a two-step process in administering TAAF program benefits. First, a group of producers must be certified eligible to apply. Second, a producer in a certified group must meet specified requirements to be approved to receive technical assistance and cash payments.

To be certified, a group must show that imports were a significant cause for at least a 15% decline in one of the following factors: the price of the commodity, the quantity of the commodity produced, or the production value of the commodity.

Once a producer group is certified, an individual producer within that group must meet three requirements to be approved for program benefits. These include technical assistance with a training component, and financial assistance. A producer must show that (1) the commodity was produced in the current and also in one recent previous year, (2) the quantity of the commodity produced decreased compared to that in a previous year, or the price received for the commodity decreased compared to a preceding three-year average price, and (3) no benefits were received under any other trade adjustment assistance program. The training component is intended to help the producer become more competitive in producing the same or another commodity. Financial assistance (capped at $12,000 over a three-year period) is to be used by the producer to develop and implement a business adjustment plan designed to address the impact of import competition.

Since 2009, USDA has certified 10 of the 30 petitions filed by commodity groups and fishermen (e.g., producers of shrimp, catfish, asparagus, lobster, and wild blueberries). In FY2010, USDA approved about 4,500 agricultural producers who applied for training and cash assistance under three certifications. Under the seven FY2011 certified petitions, USDA approved about 5,700 producers. Program benefits in both years are expected to mostly flow to shrimp producers.

Because funding for all TAA programs expired on February 12, 2011, the 112
th Congress is considering proposals for their future. S. 308 would extend TAAF and the other TAA programs (among other provisions) through mid-2012. A mid-February effort in the House to temporarily extend TAA authorities through mid-year 2011 become caught up in criticism of their rationale and calls by some Members to link a TAA extension to the Obama Administration committing to a timetable to submit pending free trade agreements (FTAs) to Congress for a vote.

Following several weeks of discussions between the White House and key members of the congressional trade committees, the White House and Senator Baucus announced on June 28, 2011, that the Administration’s draft bill to implement the FTA with South Korea would include provisions to reauthorize the TAA programs. Among its other provisions, TAA for Farmers would be extended through December 2013 and would be funded at an annual level of $90 million.



Date of Report: June 28, 2011
Number of Pages: 14
Order Number: R40206
Price: $29.95

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Friday, July 15, 2011

Is Biopower Carbon Neutral?


Kelsi Bracmort
Analyst in Agricultural Conservation and Natural Resources Policy

Congress has been increasingly interested in biopower—electricity generated from biomass. Biopower, a baseload power source, has the potential to strengthen rural economies, enhance energy security, and improve the environment, proponents say. Biopower could be produced from a large range of biomass feedstocks nationwide (e.g., urban, agricultural, and forestry wastes and residues). One challenge to biopower production is a readily available feedstock supply. At present, biopower requires tax incentives to be competitive with conventional fossil fuels.

Congressional support for biopower has aimed to promote energy security, and has generally assumed that biopower is carbon neutral. An energy production activity is typically classified as carbon neutral if it produces no net increase in greenhouse gas (GHG) emissions on a life-cycle basis. The premise that biopower is carbon neutral has come under scrutiny as its potential to help meet U.S. energy demands and reduce U.S. greenhouse gas emissions is more closely examined.

Whether biopower is carbon neutral depends on many factors, including the definition of carbon neutrality, the feedstock type, the technology used, and the time frame examined. Carbon flux (emission and sequestration) varies at each phase of the biopower pathway, given site- and operation-specific factors. A life-cycle assessment (LCA) is a common technique to calculate the environmental footprint, including the carbon flux, of a particular biopower pathway. However, past legislation has not required a standardized LCA.

Interest in the carbon classification of biopower is in part due to sustainability and air quality concerns. Where the feedstock supply for biopower originates, if it is managed in a sustainable manner, and whether the associated air quality impacts from biopower generation are tolerable are questions that are part of the biopower carbon-neutrality debate. Congress may decide whether the current carbon-neutral designation for biopower is accurate, or whether additional carbon accounting for biopower is warranted and what impact this accounting might have on renewable energy, agricultural, and environmental legislative goals.

Rulings by the U.S. Environmental Protection Agency have raised questions about the carbon neutrality of biopower. For instance, the Prevention of Significant Deterioration and Title V Greenhouse Gas Tailoring Rule did not exempt emissions from biomass combustion. Some view EPA’s decision as equating biomass emissions with fossil fuel emissions. State perspectives on the final rule are divided. Some states contend that treating biomass combustion the same as fossil fuel combustion will result in excessive permitting requirements and fees that jeopardize renewable energy development. Other states argue that not treating it the same will aggravate climate change over time. EPA will defer for three years GHG permitting requirements for carbon dioxide emissions from bioenergy and other biogenic sources.

In addition, the June 2010 release of the Manomet Center for Conservation Sciences Biomass Sustainability and Carbon Policy Study led to a noteworthy discussion in the media and the scientific community about biomass energy and its GHG impacts. The study centered on substituting forest biomass for fossil fuels in the Massachusetts energy sector. The study found that, using conventional combustion, more GHGs are emitted per unit of energy produced from forest biomass than from fossil fuels. The study’s assumptions and parameters, including the time frame necessary to pay off the carbon debt (i.e., the excess GHG emissions) and the single biomass feedstock, would need to be changed to have application to the national carbon-neutrality debate.



Date of Report: July 6, 2011
Number of Pages: 17
Order Number: R41603
Price: $29.95

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Wednesday, July 13, 2011

Agricultural Biotechnology: Background and Recent Issues


Tadlock Cowan
Analyst in Natural Resources and Rural Development

U.S. soybean, cotton, and corn farmers have rapidly adopted genetically engineered (GE) varieties of these crops since their commercialization in the mid-1990s. Over the last decade, GE varieties in the United States have increased from 3.6 million acres to 165 million acres in 2010. Worldwide, 29 countries planted GE crops on approximately 366 million acres in 2010. GE varieties now dominate soybean, cotton, and corn production in the United States, and they continue to expand rapidly in other countries.

Ongoing concerns include the impacts of GE crops on food safety and the environment (e.g., herbicide resistance), the question of whether GE foods should be labeled, and their potential contamination of conventionally raised and organic plants. Underlying these issues is the question of whether U.S. regulation and oversight of biotechnology are adequate, particularly as newer applications (e.g., biopharmaceuticals, stacked GE traits in single organisms) emerge that did not exist when the current regulatory regime was established. The U.S. Food and Drug Administration (FDA) is currently considering approval of the first GE animal for human consumption, a salmon genetically engineered to grow larger than conventional salmon.

Regulatory noncompliance incidents most pointedly raise concerns about the adequacy of existing U.S. regulatory structures. About 16 major events have occurred since 1995, according to USDA’s Animal and Plant Health Inspection Service (APHIS). A recurring concern has been the adequacy of APHIS’s environmental assessments (EAs) for deregulating GE plants. In 2006, a U.S. district court held that USDA’s EA for a variety of GE alfalfa was inadequate for issuing a finding of no significant impact (FONSI); the court vacated APHIS’s decision to deregulate GE alfalfa and ordered APHIS to complete an environmental impact statement (EIS). The court subsequently enjoined further planting until the EIS was completed. In July 2010, the Supreme Court overturned the federal court’s decision to enjoin planting. The final EIS was published in December 2010, and in February 2011 Secretary Vilsack fully deregulated GE alfalfa. A suit has been filed claiming that this deregulation decision violated the National Environmental Policy Act. A similar case involves APHIS’s decision in 2005 to deregulate GE sugar beets on the basis of its EA. That decision was also challenged, and the federal court vacated the deregulation of the GE sugar beets and ordered APHIS to complete an EIS. In July 2010, the federal court declined to enjoin GE sugar beet planting. In February 2011, APHIS announced that the agency would partially deregulate GE sugar beet root crop, but not sugar beet seed crop production.

In October 2008, APHIS announced the first revision of its biotechnology regulations since their promulgation in 1987. Proposed changes include a multi-tiered permitting system, new risk categorizations for assessing environmental releases of GE organisms, regulation of GE plants that produce pharmaceutical and industrial compounds, and new standards for low-level presence of regulated GE products. A final rule on the proposed changes has not yet been published. Other recent issuances include FDA’s January 2009 final guidance on regulation of GE animals and products. In a ruling in January 2008, FDA published its final guidance on the safety of meat and milk from cloned animals.

Legislative activity in the 111
th Congress included the reintroduction of two bills (H.R. 5578 and H.R. 5579). Two bills have been introduced in the 112th Congress: (H.R. 521/S. 230) to prevent FDA from approving GE salmon, and H.R. 307, the Seed Availability and Competition Act. A provision in the FY2012 House Agriculture appropriations bill (H.R. 2112) would prohibit the approval of GE salmon.


Date of Report: July 5, 2011
Number of Pages: 46
Order Number: RL32809
Price: $29.95

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