What This Bill Does
This bill places new restrictions on checkoff programs (generic programs that promote and research agricultural commodities like beef, dairy and cotton). The bill prohibits these programs from using funds to influence government policy and requires them to disclose how they spend money. It also sets rules to prevent conflicts of interest (situations where someone has a financial stake in decisions they make).
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Who It Affects
Boards that run checkoff programs. Organizations that contract with these Boards. Farmers and agricultural producers assessed fees by checkoff programs. Congress and federal agencies that oversee agricultural programs. The public, who can now inspect spending records.
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Key Provisions
• Boards cannot sign contracts with organizations that try to influence government farm policy, with an exception for colleges and universities doing research (Sec. 4(a)(1) and 4(a)(4))
• Boards must prohibit employees and agents from creating conflicts of interest or engaging in unfair, deceptive or anticompetitive activities (Sec. 4(a)(2) and 4(a)(3))
• Boards must publish all budgets and spending immediately after government approval, including who receives money and what it funds (Sec. 4(d))
• The U.S. Department of Agriculture Inspector General must audit each checkoff program at least once every 5 years to check for rule violations (Sec. 4(e)(1))
• The federal Comptroller General must conduct an audit between 3 and 5 years after the law passes to assess whether the checkoff programs are following the new rules (Sec. 4(e)(2))
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What Changes
If this becomes law, checkoff programs will face new restrictions on who they can hire and what activities they can fund. They must publicly disclose detailed spending information instead of keeping it private. Federal auditors will regularly inspect checkoff programs to verify they follow these rules. Boards can no longer contract with lobbying groups or organizations that try to influence farm policy.
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Important Definitions
**Board:** An entity created to run a checkoff program.
**Checkoff program:** A program that promotes and provides research about an agricultural commodity without favoring specific producers or brands. The bill lists 23 existing checkoff programs including cotton, beef, dairy, wheat, pork and soybeans.
**Conflict of interest:** A direct or indirect financial stake someone has in an organization that does business with a Board.
**Secretary:** The Secretary of Agriculture.
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Effective Date
Not specified in bill text
II
118TH CONGRESS
1ST SESSION
S. 557
To prohibit certain practices relating to certain commodity promotion pro-
grams, to require greater transparency by those programs, and for other
purposes.
IN THE SENATE OF THE UNITED STATES
FEBRUARY 28, 2023
Mr. LEE (for himself, Mr. BOOKER, Mr. PAUL, Ms. WARREN, and Mrs. GILLI-
BRAND) introduced the following bill; which was read twice and referred
to the Committee on Agriculture, Nutrition, and Forestry
A BILL
To prohibit certain practices relating to certain commodity
promotion programs, to require greater transparency by
those programs, and for other purposes.
Be it enacted by the Senate and House of Representa-
1
tives of the United States of America in Congress assembled,
2
SECTION 1. SHORT TITLE.
3
This Act may be cited as the ‘‘Opportunities for Fair-
4
ness in Farming Act of 2023’’.
5
SEC. 2. FINDINGS.
6
Congress finds that—
7
(1) the generic programs to promote and pro-
8
vide research and information for an agricultural
9
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•S 557 IS
commodity (commonly known as ‘‘checkoff pro-
1
grams’’) are intended to increase demand for all of
2
that agricultural commodity and benefit all assessed
3
producers of that agricultural commodity;
4
(2) although the laws establishing checkoff pro-
5
grams broadly prohibit the use of funds in any man-
6
ner for the purpose of influencing legislation or gov-
7
ernment action, checkoff programs have repeatedly
8
been shown to use funds to influence policy directly
9
or by partnering with organizations that lobby;
10
(3) the unlawful use of checkoff programs funds
11
benefits some agricultural producers while harming
12
many others;
13
(4) to more effectively prevent Boards from
14
using funds for unlawful purposes, strict separation
15
of engagement between the Boards and policy enti-
16
ties is necessary;
17
(5) conflicts of interest in the checkoff pro-
18
grams allow special interests to use checkoff pro-
19
gram funds for the benefit of some assessed agricul-
20
tural producers at the expense of many others;
21
(6) prohibiting conflicts of interest in checkoff
22
programs is necessary to ensure the proper and law-
23
ful operation of the checkoff programs;
24
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•S 557 IS
(7) checkoff programs are designed to promote
1
agricultural commodities, not to damage other types
2
of agricultural commodities through anticompetitive
3
conduct or otherwise;
4
(8) prohibiting anticompetitive and similar con-
5
duct is necessary to ensure proper and lawful oper-
6
ation of checkoff programs;
7
(9) lack of transparency in checkoff programs
8
enables abuses to occur and conceals abuses from
9
being discovered; and
10
(10) requiring transparency in the expenditure
11
of checkoff program funds is necessary to prevent
12
and uncover abuses in checkoff programs.
13
SEC. 3. DEFINITIONS.
14
In this Act:
15
(1) BOARD.—The term ‘‘Board’’ means a
16
board, committee, or similar entity established to
17
carry out a checkoff program or an order issued by
18
the Secretary under a checkoff program.
19
(2) CHECKOFF PROGRAM.—The term ‘‘checkoff
20
program’’ means a program to promote and provide
21
research and information for a particular agricul-
22
tural commodity without reference to specific pro-
23
ducers or brands, including a program carried out
24
under any of the following:
25
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•S 557 IS
(A) The Cotton Research and Promotion
1
Act (7 U.S.C. 2101 et seq.).
2
(B) The Potato Research and Promotion
3
Act (7 U.S.C. 2611 et seq.).
4
(C) The Egg Research and Consumer In-
5
formation Act (7 U.S.C. 2701 et seq.).
6
(D) The Beef Research and Information
7
Act (7 U.S.C. 2901 et seq.).
8
(E) The Wheat and Wheat Foods Re-
9
search and Nutrition Education Act (7 U.S.C.
10
3401 et seq.).
11
(F) The Floral Research and Consumer
12
Information Act (7 U.S.C. 4301 et seq.).
13
(G) Subtitle B of the Dairy Production
14
Stabilization Act of 1983 (7 U.S.C. 4501 et
15
seq.).
16
(H) The Honey Research, Promotion, and
17
Consumer Information Act (7 U.S.C. 4601 et
18
seq.).
19
(I) The Pork Promotion, Research, and
20
Consumer Information Act of 1985 (7 U.S.C.
21
4801 et seq.).
22
(J) The Watermelon Research and Pro-
23
motion Act (7 U.S.C. 4901 et seq.).
24
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(K) The Pecan Promotion and Research
1
Act of 1990 (7 U.S.C. 6001 et seq.).
2
(L) The Mushroom Promotion, Research,
3
and Consumer Information Act of 1990 (7
4
U.S.C. 6101 et seq.).
5
(M) The Lime Research, Promotion, and
6
Consumer Information Act of 1990 (7 U.S.C.
7
6201 et seq.).
8
(N) The Soybean Promotion, Research,
9
and Consumer Information Act (7 U.S.C. 6301
10
et seq.).
11
(O) The Fluid Milk Promotion Act of 1990
12
(7 U.S.C. 6401 et seq.).
13
(P) The Fresh Cut Flowers and Fresh Cut
14
Greens Promotion and Information Act of 1993
15
(7 U.S.C. 6801 et seq.).
16
(Q) The Sheep Promotion, Research, and
17
Information Act of 1994 (7 U.S.C. 7101 et
18
seq.).
19
(R) Section 501 of the Federal Agriculture
20
Improvement and Reform Act of 1996 (7
21
U.S.C. 7401).
22
(S) The Commodity Promotion, Research,
23
and Information Act of 1996 (7 U.S.C. 7411 et
24
seq.).
25
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(T) The Canola and Rapeseed Research,
1
Promotion, and Consumer Information Act (7
2
U.S.C. 7441 et seq.).
3
(U) The National Kiwifruit Research, Pro-
4
motion, and Consumer Information Act (7
5
U.S.C. 7461 et seq.).
6
(V) The Popcorn Promotion, Research,
7
and Consumer Information Act (7 U.S.C. 7481
8
et seq.).
9
(W) The Hass Avocado Promotion, Re-
10
search, and Information Act of 2000 (7 U.S.C.
11
7801 et seq.).
12
(3) CONFLICT OF INTEREST.—The term ‘‘con-
13
flict of interest’’ means a direct or indirect financial
14
interest in a person or entity that performs a service
15
for, or enters into a contract or agreement with, a
16
Board for anything of economic value.
17
(4) SECRETARY.—The term ‘‘Secretary’’ means
18
the Secretary of Agriculture.
19
SEC. 4. REQUIREMENTS OF CHECKOFF PROGRAMS.
20
(a) PROHIBITIONS.—
21
(1) IN GENERAL.—Except as provided in para-
22
graph (4), a Board shall not enter into any contract
23
or agreement to carry out checkoff program activi-
24
ties with a party that engages in activities for the
25
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•S 557 IS
purpose of influencing any government policy or ac-
1
tion that relates to agriculture.
2
(2) CONFLICT OF INTEREST.—A Board shall
3
not engage in, and shall prohibit the employees and
4
agents of the Board, acting in their official capacity,
5
from engaging in, any act that may involve a conflict
6
of interest.
7
(3) OTHER PROHIBITIONS.—A Board shall not
8
engage in, and shall prohibit the employees and
9
agents of the Board, acting in their official capacity,
10
from engaging in—
11
(A) any anticompetitive activity;
12
(B) any unfair or deceptive act or practice;
13
or
14
(C) any act that may be disparaging to, or
15
in any way negatively portray, another agricul-
16
tural commodity or product.
17
(4) EXCEPTION FOR CERTAIN CONTRACTS WITH
18
INSTITUTIONS OF HIGHER EDUCATION.—Paragraph
19
(1) shall not apply to a contract or agreement en-
20
tered into between a Board and an institution of
21
higher education for the purpose of research, exten-
22
sion, and education.
23
(b) AUTHORITY TO ENTER INTO CONTRACTS.—Not-
24
withstanding any other provision of law, on approval of
25
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the Secretary, a Board may enter directly into contracts
1
and agreements to carry out generic promotion, research,
2
or other activities authorized by law.
3
(c) PRODUCTION OF RECORDS.—
4
(1) IN GENERAL.—Each contract or agreement
5
of a checkoff program shall provide that the entity
6
that enters into the contract or agreement shall
7
produce to the Board accurate records that account
8
for all funds received under the contract or agree-
9
ment, including any goods or services provided or
10
costs incurred in connection with the contract or
11
agreement.
12
(2) MAINTENANCE
OF
RECORDS.—A Board
13
shall maintain any records received under paragraph
14
(1).
15
(d) PUBLICATION
OF BUDGETS
AND DISBURSE-
16
MENTS.—
17
(1) IN GENERAL.—The Board shall publish and
18
make available for public inspection all budgets and
19
disbursements of funds entrusted to the Board that
20
are approved by the Secretary, immediately on ap-
21
proval by the Secretary.
22
(2) REQUIRED DISCLOSURES.—In carrying out
23
paragraph (1), the Board shall disclose—
24
(A) the amount of the disbursement;
25
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•S 557 IS
(B) the purpose of the disbursement, in-
1
cluding the activities to be funded by the dis-
2
bursement;
3
(C) the identity of the recipient of the dis-
4
bursement; and
5
(D) the identity of any other parties that
6
may receive the disbursed funds, including any
7
contracts or subcontractors of the recipient of
8
the disbursement.
9
(e) AUDITS.—
10
(1) PERIODIC AUDITS BY INSPECTOR GENERAL
11
OF USDA.—
12
(A) IN GENERAL.—Not later than 2 years
13
after the date of enactment of this Act, and not
14
less frequently than every 5 years thereafter,
15
the Inspector General of the Department of Ag-
16
riculture shall conduct an audit to determine
17
the compliance of each checkoff program with
18
this section during the period of time covered
19
by the audit.
20
(B) REVIEW OF RECORDS.—An audit con-
21
ducted under subparagraph (A) shall include a
22
review of any records produced to the Board
23
under subsection (c)(1).
24
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•S 557 IS
(C) SUBMISSION OF REPORTS.—On com-
1
pletion of each audit under subparagraph (A),
2
the Inspector General of the Department of Ag-
3
riculture shall—
4
(i) prepare a report describing the
5
audit; and
6
(ii) submit the report described in
7
clause (i) to—
8
(I) the appropriate committees of
9
Congress, including the Subcommittee
10
on Antitrust, Competition Policy and
11
Consumer Rights of the Committee on
12
the Judiciary of the Senate; and
13
(II) the Comptroller General of
14
the United States.
15
(2) AUDIT BY COMPTROLLER GENERAL.—
16
(A) IN
GENERAL.—Not earlier than 3
17
years, and not later than 5 years, after the date
18
of enactment of this Act, the Comptroller Gen-
19
eral of the United States shall—
20
(i) conduct an audit to assess—
21
(I) the status of actions taken for
22
each checkoff program to ensure com-
23
pliance with this section; and
24
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•S 557 IS
(II) the extent to which actions
1
described in subclause (I) have im-
2
proved the integrity of a checkoff pro-
3
gram; and
4
(ii) prepare a report describing the
5
audit conducted under clause (i), including
6
any recommendations for—
7
(I) strengthening the effect of ac-
8
tions described in clause (i)(I); and
9
(II) improving Federal legislation
10
relating to checkoff programs.
11
(B) CONSIDERATION OF INSPECTOR GEN-
12
ERAL REPORTS.—The Comptroller General of
13
the United States shall consider reports de-
14
scribed in paragraph (1)(C) in preparing any
15
recommendations in the report under subpara-
16
graph (A)(ii).
17
SEC. 5. SEVERABILITY.
18
If any provision of this Act or the application of such
19
provision to any person or circumstance is held to be un-
20
constitutional, the remainder of this Act, and the applica-
21
tion of the provision to any other person or circumstance,
22
shall not be affected.
23
Æ
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