Opportunities for Fairness in Farming Act of 2020

I 116TH CONGRESS 2D SESSION H. R. 5563 To prohibit certain practices relating to certain commodity promotion pro- grams, to require greater transparency by those programs, and for other purposes. IN THE HOUSE OF REPRESENTATIVES JANUARY 9, 2020 Ms. TITUS introduced the following bill; which was referred to the Committee on Agriculture 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 2020’’. 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 VerDate Sep 11 2014 20:17 Jan 13, 2020 Jkt 099200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\H5563.IH H5563 jbell on DSKJLSW7X2PROD with BILLS 2 •HR 5563 IH 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 VerDate Sep 11 2014 01:24 Jan 11, 2020 Jkt 099200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H5563.IH H5563 jbell on DSKJLSW7X2PROD with BILLS 3 •HR 5563 IH (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 VerDate Sep 11 2014 01:24 Jan 11, 2020 Jkt 099200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H5563.IH H5563 jbell on DSKJLSW7X2PROD with BILLS 4 •HR 5563 IH (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 VerDate Sep 11 2014 01:24 Jan 11, 2020 Jkt 099200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H5563.IH H5563 jbell on DSKJLSW7X2PROD with BILLS 5 •HR 5563 IH (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 et seq.). 22 (S) The Commodity Promotion, Research, 23 and Information Act of 1996 (7 U.S.C. 7411 et 24 seq.). 25 VerDate Sep 11 2014 20:17 Jan 13, 2020 Jkt 099200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H5563.IH H5563 jbell on DSKJLSW7X2PROD with BILLS 6 •HR 5563 IH (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 VerDate Sep 11 2014 01:24 Jan 11, 2020 Jkt 099200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H5563.IH H5563 jbell on DSKJLSW7X2PROD with BILLS 7 •HR 5563 IH 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 INSITUTIONS 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. 22 (b) AUTHORITY TO ENTER INTO CONTRACTS.—Not- 23 withstanding any other provision of law, on approval of 24 the Secretary, a Board may enter directly into contracts 25 VerDate Sep 11 2014 01:24 Jan 11, 2020 Jkt 099200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H5563.IH H5563 jbell on DSKJLSW7X2PROD with BILLS 8 •HR 5563 IH and agreements to carry out generic promotion, research, 1 or other activities authorized by law. 2 (c) PRODUCTION OF RECORDS.— 3 (1) IN GENERAL.—Each contract or agreement 4 of a checkoff program shall provide that the entity 5 that enters into the contract or agreement shall 6 produce to the Board accurate records that account 7 for all funds received under the contract or agree- 8 ment, including any goods or services provided or 9 costs incurred in connection with the contract or 10 agreement. 11 (2) MAINTENANCE OF RECORDS.—A Board 12 shall maintain any records received under paragraph 13 (1). 14 (d) PUBLICATION OF BUDGETS AND DISBURSE- 15 MENTS.— 16 (1) IN GENERAL.—The Board shall publish and 17 make available for public inspection all budgets and 18 disbursements of funds entrusted to the Board that 19 are approved by the Secretary, immediately on ap- 20 proval by the Secretary. 21 (2) REQUIRED DISCLOSURES.—In carrying out 22 paragraph (1), the Board shall disclose— 23 (A) the amount of the disbursement; 24 VerDate Sep 11 2014 01:24 Jan 11, 2020 Jkt 099200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\H5563.IH H5563 jbell on DSKJLSW7X2PROD with BILLS 9 •HR 5563 IH (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 VerDate Sep 11 2014 01:24 Jan 11, 2020 Jkt 099200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\H5563.IH H5563 jbell on DSKJLSW7X2PROD with BILLS 10 •HR 5563 IH (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 VerDate Sep 11 2014 01:24 Jan 11, 2020 Jkt 099200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\H5563.IH H5563 jbell on DSKJLSW7X2PROD with BILLS 11 •HR 5563 IH (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 VerDate Sep 11 2014 01:24 Jan 11, 2020 Jkt 099200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6301 E:\BILLS\H5563.IH H5563 jbell on DSKJLSW7X2PROD with BILLS