“The Big Lie” – Weapon of Choice for GIPSA Rule Opponents


Thomas F. “Fred” Stokes
Executive Director

The comment period for the proposed GIPSA Rules has ended and the 80,000 or so comments are in; — but the bare knuckled, back-alley fight continues.

Pursuant to Title XI of the Food Conservation and Energy Act of 2008 (Farm Bill), the U. S. Department of Agriculture published certain rules on the federal register, June 22nd. The rules have to do with interpreting and enforcing the Packers and Stockyards Act of 1921 (PSA), sometimes known as the producer’s protection act. The rules precipitated a spontaneous outcry and a flurry of all sorts of frantic opposition by meat packers, integrators and their minions.

Almost immediately, there was a House Agriculture Subcommittee hearing in which the GIPSA Administrator and other USDA representatives were harshly accosted. The subcommittee members were unduly confrontational and made abundantly clear their disdain for the proposed rule. One wonders if the $48 million in campaign contributions to subcommittee members by Agribusiness interests was a factor.

So, there is an ongoing, highly charged dispute between those who hold that the present market is working just fine; don’t mess with it and those who say we’re getting screwed and need help. The singular point of agreement by the two sides in this conflagration is that the proposed rules will have a powerful effect on the future of the livestock and poultry industry and rural America.

Rule supporters have doubled-down and opponents have pulled out all stops to confuse, delay and ultimately kill them; — by fudging the facts!

The lack of enforcement of PSA over the years; coupled with flawed appellate court rulings, have given meat packers and integrators a license to steal. The present GIPSA Administrator is obviously intent on enforcing PSA, but there is an all-out effort to remove him from office.

It is our view that the appellate courts have been wrong in their reversing the several jury verdicts in cases tried under PSA. One wonders if the courts have even read the plain language of the law. Their ruling that before harm to an individual could be proven, there had to first be demonstrated harm to competition within the industry. This is a difficult, if not impossible obstacle for plaintiffs to overcome. It has also shielded packers and integrators from accountability for their misdeeds for the past seven years. The rules disagree with the courts on this and that is their most disconcerting aspect to opponents.

Some of the points of contention are:

Opponents say; the rules are a radical departure from existing law, will cause major market disruption and kill value based marketing.

Supporters say; the rules are totally consistent with any reasonable interpretation of PSA (they reinvigorate, not reinvent) and provide for any differentiated pricing that has a business justification.

Opponents say; the rules go beyond the mandate of the Farm Bill, are contrary to the expressed will of Congress and are beyond the authority of the Secretary of USDA to issue.

Supporters say; the Secretary of USDA is within his authority (pursuant to section 407 of PSA) to issue the rules and does not need authorization from the Farm Bill or approval from congress.

Opponents say; the rules are a circumvention of well-established case law requiring an adverse impact on competition for a violation of PSA and will cause a flood of law suits.

Supporters say: the Secretary of USDA in his capacity as administrator of PSA is the act’s official Interpreter and is due deference from the courts in his interpretation (Chevron U.S.A. Inc. v. Natural Res. Def. Council). The rules take exception to the recent appellate court rulings and both USDA and DOJ have long held that no showing of harm to competition is required. The courts have erred! All that is required to avoid the prophesied flood of law suits is for packers and integrators to obey the law.

Opponents say; J. Dudley Butler, in his speech at the OCM St. Louis Convention in August of 2009 said that the rules were a trial lawyer’s dream.

Supporters say; this is a calculated, malicious and demonstrable lie! A very BIG lie.

The meat packers and integrators and their apologists and front organizations have repeatedly been invited to debate their opposition to the GIPSA Rules. They have consistently refused! What does this refusal suggest?

OCM again invites any representative of the opponents of these rules to join us in an open debate at the National Press Club in Washington. We will work out the details to insure that the event is fair and balanced.

Obviously, someone is being less than truthful here. Folks need to be able to see though the fog of spin and deception by profession perception manipulators and know the facts. The final disposition of the GIPSA Rules will profoundly affect the future of America’s agriculture; we need to get it right! Let’s have a debate!FS