Nashville Bar Journal | July 2012

Nashville Bar Journal July 2012 - VOL 12, NO. 6

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FU TU FO R ODE

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A LABEL BY ANY OTHER NAME …. What do labels really tell us about the food we are eating?

Tracy Kane and Kori Lopreore

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An Overview of Farm Subsidies in the United States William T. Ramsey

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Patent Law and Edible Self-Replicating Technologies Ryan D. Levy

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direct from our

the Lexus IS250c Bid on this varietal from Lexus of Nashville at: l’Ete du`Vin Gone Country Uniting the Wine Community in the Fight Against Cancer July 21st, 2012 at the Loews Vanderbilt Hotel

Nashville Bar Journal A Monthly Publication of the Nashville Bar Association

www.nashvillebar.org

A LABEL BY ANY OTHER NAME …. What do labels really tell us about the food we are eating?

PAGE 6

Tracy Kane and Kori Lopreore

An Overview of Farm Subsidies in the United States PAGE 8

William T. Ramsey

FROM THE PRESIDENT It Ain't Broke

PAGE 2

John Kitch

__________________________________________________________________ 4 Communiqué • Carbolic Smoke Ball • Veterans Committee • Candidate Evaluation Poll • YLD to Staff H.E.L.P Clinic • Golden Oldies • Upcoming Events __________________________________________________________________ 10

July 11, 2012 Community Relations Committee Meeting July 12, 2012 CLE Committee Meeting July 14, 2012 o YLD Carbolic Smoke Ball @ The Ruby July 16, 2012 Probate Committee Meeting July 17, 2012 Ethic & Professionalism Committee Meeting July 23, 2012 Federal Court Committee Meeting July 24, 2012 Business Transactions/Corporate Committee Meeting August 1, 2012 Bankruptcy Committee Meeting

August 2, 2012 Minority Opportunities Committee Meeting September 27, 2012 o NBA Picnic @ Hall of Fame Park November 3, 2012 o NBF Fellows Dinner @ Hutton Hotel November 13, 2012 o NBA Swearing-In Ceremony @ Justice AA Birch Building November 15, 2012 o Memorial Service @ Downtown Presbyterian Church November 16, 2012 Healthy Bar Party @ Waller Lansden December 6, 2012 o Annual Banquet @ Wildhorse Saloon

Patent Law and Edible Self-Replicating Technologies Ryan D. Levy

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July 10, 2012 L.A.W. Board Meeting

Why All the Squawking?

Nashville’s Hen Ordinance & Ramifications of the Opt-Out Amendment

View Full Calendar online at www.nashvillebar.org

-Golden Oldies-

Eleanor Wetzel

__________________________________________________________________ CLE Information - Center Section

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Bill & Phil’s Gadget of the Month: Gadgets for Summer Food and Fun Bill Ramsey, Neal & Harwell, PLC Phillip Hampton, LogicForce Consulting

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Disclosure - Announcements • Kudos • People on the Move • Firm News • In Memory

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Classified Listings

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-------------------------------------------------------------------------------Identify the individuals in the photo. Be the first to email the correct answer to nikki.gray@nashvillebar.org and your name (along with your correct entry) will appear in next month’s issue.

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Nashville Bar Journal A Monthly Publication of the Nashville Bar Association

www.nashvillebar.org

John Kitch, Publisher William T. Ramsey, Editor-in-Chief ramseywt@nealharwell.com

FROM THE PRESIDENT

by John Kitch

It Ain't Broke

Eleanor Wetzel, Managing Editor eleanorwetzel@jis.nashville.org

Journal Staff: Nikki Gray, Director of Communications nikki.gray@nashvillebar.org

Tina Ashford, Communications Coordinator tina.ashford@nashvillebar.org

Editorial Committee: Kelly L. Frey Kathleen Pohlid Tim Ishii Tracy Kane Everette Parrish Bill Ramsey Rita Roberts-Turner Eleanor Wetzel David Winters Victoria Webb

Nashville Bar Association Staff Gigi Woodruff Executive Director ----------Tina R. Ashford Communications Coordinator Susan W. Blair Director, Continuing Legal Education Shirley Clay Finance Coordinator Wendy K. Cozby Lawyer Referral Service Coordinator Nikki R. Gray Director of Communications Traci L. Hollandsworth Programs & Events Coordinator Judy Phillips CLE Coordinator Vicki Shoulders Membership Coordinator/Office Manager The Nashville Bar Journal, ISSN 1548-7113, is published monthly by the Nashville Bar Association at 150 Fourth Avenue North, Suite 1050, Nashville, TN 37219, (615) 242-9272. Periodicals Postage Paid, Nashville, TN (USPS 021-962). Subscription price: $25 per year. Individual issues: $5 per copy.

POSTMASTER: Send address corrections to Nashville Bar Journal, 150 Fourth Avenue North, Suite 1050, Nashville, TN 37219 No part of this publication may be reprinted without written permission of the Nashville Bar Journal Editorial Committee. The Nashville Bar Journal is not responsible for the return or loss of unsolicited manuscripts or for any damage or other injury to unsolicited manuscripts or artwork.

All Articles and Letters contained in this publication represent the views of the authors and do not necessarily reflect the opinions of the Nashville Bar Association.

Nashville Bar Association 150 Fourth Avenue North Suite 1050 Nashville, TN 37219 615-242-9272 Fax 615-255-3026 www.nashvillebar.org

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Nashville Bar Journal - July 2012

"I beseech ye in the bowels of Christ, think that ye may be mistaken." I should like to have that written over the portals of every church, every school, and every court­house, and, may I say, of every legislative body in the United States.

Learned Hand, Morals in Public Life (1951) I want to preface this column by saying that I believe journalists and reporters, whether they are print, television or otherwise, have a hard job and generally do pretty well. I read the local and some out of town newspapers and I watch the 10 o’clock news when I can stay awake that long. I get up-to-date information on breaking national and international news from my computer’s home page. To paraphrase the colloquy between a judge and F.E. Smith, 1st Earl of Birkenhead,1 I may be none the wiser but I certainly am reasonably well informed.

It is the intermittent lack of quality and shallowness of that information, and even misinformation, that leads me to write this article. We simply do not have adequate media coverage to explain the workings of the courts to the public and what we have can be biased or just plain wrong. We get constant coverage of Jerry Sandusky, John Edwards, and George Zimmerman to name a few. As lawyers and judges we are able to evaluate this information, but the general public relies on the media for understanding. What I often see now, however, is reporting that ignores the facts for the story.

Now to my point – “Judge, I’ll connect it up in a minute” – I believe in the Tennessee Plan for the selection of appellate judges. It allows for selection from a wide candidate pool with applicants vetted by a screening process involving personal interviews and public hearings. Three lawyers are recommended to the Governor who then appoints one of them. As Bill Robinson, the current president of the American Bar Association, stated in a recent opinion piece in the Tennessean, “Tennesseans already have a judicial selection system that works and is a model for other states.” He commented further that we have “an open process that is as free from political influence as possible” and that “it is critical for courts to be insulated from undue political influence. The American Bar Association believes that merit-based selection is the best way to choose judges.”2 For the record, the Board of Directors of the Nashville Bar Association believes this as well, having approved a policy statement last year in favor of retaining the Tennessee Plan. The Tennessee Bar Association agrees.

Our state legislature currently is working to alter how appellate judges are selected for the bench. As I understand it the current proposal, now approved by both chambers of our legislature, is to scrap the Tennessee Plan in favor of a method similar to the process on the federal level, whereby the Governor would appoint judges, subject to confirmation by the legislature. This would be done through amending our Constitution, with the voters of our state passing on the amendment in 2014. Other proposals have included electing appellate judges by direct popular election. The experiences in states like Alabama and Texas demonstrate the flaws in popular election, and the political infighting on the federal level has left many qualified candidates seeking to fill vacancies unconfirmed, thus causing the wheels of justice to grind even more slowly.

2012 NBA BOARD OF DIRECTORS

This scares the hell out of me. The fact that the media is not always helpful in educating folks about the courts concerns me when I think about popular voting on something as critical as amending our Constitution on this issue or, worse yet, the popular election of appellate judges. We simply cannot rely on the media alone to explain to the people of Tennessee why the current system is the best we could have.

So here’s my charge to all of you who agree that the Tennessee Plan works. Educate everyone you know about this critical issue. Tell everyone you meet – clients, friends, colleagues, passersby – your views on why it’s important, why you think the current system should be retained, and where to go to find information about the subject. Express your opinion. Speak to civic groups. Write articles. Publish a blog. Shout it from the rooftops. Do something.

Unless you’re a legislator. Then don’t do anything. It ain’t broke. Don’t fix it. n (Endnotes) 1 Judge: I've listened to you for an hour and I'm none the wiser.

Smith: None the wiser, perhaps, my lord, but certainly better informed.

Quoted in Francis Cowper, London Letter, N.Y. Law J. (Aug. 28, 1961).

2 William T. “Bill” Robinson, III, Tennessee judicial selection plan is model for others, Tennesseean, June 29, 2012, available at http://www.tennessean.com/article/20120629/COLUMNIST0150/306290039/Tennessee-judicialselection-plan-model-others.

John D. Kitch, President Tom Sherrard, President-Elect Hon. Randy Kennedy, First Vice President Hon. Marietta Shipley, Second Vice President Rebekah Shulman Secretary M. Bernadette Welch, Treasurer Trace Blankenship, Assistant Treasurer Gareth Aden, General Counsel Rebecca C. Blair Robert E. Boston C. Dewey Branstetter, Jr. C. Dawn Deaner Charles K. Grant Barbara D. Holmes Michele M. Johnson Edward D. Lanquist, Jr. John C. McLemore Jeffrey Mobley Patricia Head Moskal Maria M. Salas John R. Tarpley Overton Thompson, III Mandy Haynes Young

Got an Idea for an NBJ Article?

We want to hear about the topics and issues readers think should be covered in the magazine.

Send it to nikki.gray@nashvillebar.org

Nashville Bar Journal - July 2012

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communiqué

NBA NEWS n COMMITTEE INFORMATION

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SPECIAL EVENTS

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NBA NEWS n COMMITTEE IN

Carbolic Smoke Ball

Veterans Committee

YLD and the YLD’s Board of Directors is hosting its 15th Annual Carbolic Smoke Ball on Saturday July 14, 2012, at the Ruby (located at 2411 Blakemore Avenue) from 7:00 p.m. to 11:00 p.m. Proceeds from this year’s Carbolic Smoke Ball will be divided evenly among two local nonprofit organizations: Legal Aid Society of Middle Tennessee & Court Appointed Special Advocates (CASA) Nashville.

Robert Echols has been appointed chair of the newly formed NBA Veterans Committee. The committee offers a great opportunity to meet new veteran friends in the bar, share experiences, and to serve other less fortunate veterans in our community.

Judge Echols stated, “All of us are bound by common denominators – love of country; pride of our service in the military; sense of service to others who have served or are serving; and joy in sharing experiences with others who are both veterans and lawyers.

As we enjoy our fellowship together we will move toward service to other less fortunate veterans. There are many opportunities.”

The committee is off to a strong start, having held a reception at Bass Berry & Sims that was attended by approximately 50 fellow attorney-veterans in Nashville.

In addition to benefitting the Legal Aid Society of Middle Tennessee & CASA Nashville as well as the Nashville community-at-large, the Carbolic Smoke Ball is an annual cocktail party that provides a structured social gathering for all members of the Nashville legal community and their guests. The 15th Annual Carbolic Smoke Ball will feature live entertainment, casino gaming, heavy hors d’oeuvres, and an open bar with wine, beer and cocktails. Ticket prices this year will be $65 per person (in advance) and $75 per person (at the door).

Hors d’oeuvres - Open Bar - Live Music - Casino Games Contacts: Will Hicky – 615-320-3225; whicky@tpmmlaw.com Colleen Bracken – 615-344-5860; Colleen.Bracken@hospitallaborlaw.com

If you would like to join the committee please call the NBA Offices at 242-9272 or send an email to Vicki Shoulders at vicki. shoulders@nashvillebar.org.

NBA /YLD SOUNDS GAME

On the Miller Lite® Porch Thursday, August 30 at 6:00 p.m.

Food + Beer Included Stay tuned for more details!

UPCOMING EVENTS: YLD Carbolic Smoke Ball Ruby Saturday, July 14, 2012 -------------------------------------NBA Picnic Hall of Fame Park Thursday, September 27, 2012 -------------------------------------NBF Fellows Dinner Hutton Hotel Saturday, November 3, 2012 4

Nashville Bar Journal - July 2012

-------------------------------------NBA Swearing-In Ceremony Justice AA Birch Building Tuesday, November 13, 2012 -------------------------------------Memorial Service Downtown Presbyterian Church Thursday, November 15, 2012 -------------------------------------Annual Banquet Wildhorse Saloon Thursday, December 6, 2012

-------------------------------------Healthy Bar Party Waller November 16, 2012 10:30 a.m. - 3:30 p.m.

Featured Topics: topics such as time-saving and stress-reducing technology for modern attorneys, the science of Mindfulness and achieving true work/life balance Hospitality Room will feature: chair massages stretching, posture, & alignment tutorials nutritionist consultations

NFORMATION

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SPECIAL EVENTS

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NBA NEWS n COMMITTEE INFORMATION

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SPECIAL EVENTS

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NBA NEWS n COMMITTEE INFORMATION

YLD TO STAFF H.E.L.P. CLINIC AT ROOM IN THE INN

-Golden Oldies

For the fourth year in a row, the YLD has volunteered to staff the Homeless Experience Legal Protection (H.E.L.P.) Clinic at Room in the Inn for the month of July. The H.E.L.P. program was founded in New Orleans in early 2004 by Judge Jay Zainey, a federal judge for the Eastern District of Louisiana. While serving a meal at a local shelter, Judge Zainey began to think how much more an attorney could do for the shelter clients, and how offering free legal service could change people’s lives. H.E.L.P. was born from that experience.

It has since expanded from New Orleans to 21 locations across the country.

The Nashville clinic is held at the Campus on Drexel Street off of Eighth Avenue on the third Wednesday of each month from 9:00 - 11:00 a.m. The clinic is growing rapidly. When it first began, the clinic could only serve 8-10 members of the homeless population each month.

Now, the clinic sees upwards of 30-40 clients a month. The clients bring a wide variety of issues to the clinic, including the need for wills and living wills, employment questions, help with applying for benefits or appealing the denial of benefits, or clearing up minor criminal matters that are preventing the individual from obtaining public housing or applying for a job. Each month, the Metro Public Defender’s Office sends attorneys and staff to handle the criminal matters of the clinic’s clients, so other volunteers can focus on civil issues.

n

Christopher Harris of Thrailkill, Harris, Wood & Boswell, PLC correctly identified the individuals in the June 2012 Golden Oldies photo.

Pictured are: Bill O’Bryan, Lauren W. Anderson, Gary Rubenstein, Tyree Harris, Raymond Prince

At the clinic, volunteers listen and discuss with clients whether they have a legal issue with a legal solution and help identify other social service needs that the Campus and H.E.L.P. coordinators can address. For many H.E.L.P. clients, this is the first time that they have had the opportunity to discuss their concerns with an attorney. Simply by engaging in conversation, volunteers can help clients better understand their legal rights and provide access to resources that may assist them with general social service needs.

H.E.L.P. volunteers are provided by law firms that agree to coordinate a specific month and by others who enjoy volunteering in their individual capacity. Law firms and other groups participating in 2011- 2012 include Miller & Martin, Adams & Reese, Dickinson Wright, NapierLooby Bar Association, NBA’s Solo/Small Firm Committee, Bass, Berry & Sims, Burr & Forman, Stites & Harbison, and Gullett Sanford.

Please consider volunteering on July 18. To volunteer, contact Tera Rica Murdock at Terarica.

Murdock@wallerlaw.com. If your firm is interested in staffing a month, please contact Jill Suwanski at jsuwanski@ bakerdonelson.com.

The May photo has been identified!

Judge Frank Clement correctly identified the individuals in the May 2012 Golden Oldies photo.

Pictured are: Fred Humbracht and John Lewis

Candidate Evaluation Poll The NBA recently conducted a poll regarding the General Election on August 2, 2012. The results are below.

Davidson County Circuit Court, Division III Judge

John W. Heacock Phillip Robinson W. Scott Rosenberg

Highly Recommend 2.8% (25) 50.9% (449) 7.0% (62)

Recommend 5.2% (46) 21.7% (191) 14.4% (127)

Do Not Recommend 13.5% (119) 2.6% (23) 9.9% (87)

No Opinion 78.5% (692) 24.8% (219) 68.7% (606)

Rating 2.49 1.36 2.09

Response 882 882 882

Rating Average 2.08 2.55

Response Count 882 882

Davidson County General Session Judge

Highly Recommend Recommend Do Not Recommend No Opinion

Rachel L. Bell 15.4% (136) 22.4% (198) 20.0% (176) 42.2% (372) Michael H. Rowan 4.2% (37) 6.2% (55) 22.2% (196) 67.3% (594)

Nashville Bar Journal - July 2012

5

FEATURE

A LABEL BY ANY OTHER NAME …. What do labels really tell us about the food we are eating? by:

Tracy Kane and Kori Lopreore

If you have walked the aisles of your local grocery or market lately you may have noticed a slew of labels or claims that products are “whole grain,” “natural,” “organic,” “healthy,’ “Non-GMO,” “cage free,” “pasture-raised,” “local,” “biodynamic,” “sustainable” and the list goes on. The use of these types of labels or claims has proliferated in the last few years as the demand for such products has increased. U.S. sales of organic food and beverages, for example, have grown from $1 billion in 1990 to $26.7 billion in 2010.1 In 2010 alone, organic sales grew an enviable 7.7%, despite high unemployment and a deep recession, while sales of non-organic food essentially were stagnant, growing less than 1%.2 You might be surprised to learn, however, that many of these labels or claims are neither defined nor regulated by any government agency, independent group or even industry association. So which labels mean something and which are just marketing hype? We have attempted to decipher a few of the most common labels or assertions.

al

r Natu

Perhaps the most difficult labeling standard to disambiguate is the word “natural” on food labels. Consumers are generally willing to trust the “natural” label as an indication of a food product’s overall healthfulness, cleanliness, and pristine nature. According to a survey of over 1000 consumers conducted by The Shelton Group, 31% of respondents indentified “100% natural” as the most desirable product label

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Nashville Bar Journal - July 2012

claim in consideration of ecological concerns, compared to 14% who chose “100% organic.”3 A 2010 poll by the Hartman Group found that 62% of respondents believe “natural” implies “absence of pesticides”; 59% believe it implies “absence of herbicides; and 61% believe “natural” indicates an “absence of genetically modified foods.”4 Despite consumer perception and marketing suggestion, however, the word “natural” on labels does not indicate any of those absences, or answer any questions concerning the way that such products were grown or fed. The Food and Drug Administration (FDA) has provided the following description of the meaning of “natural” on food labels: From a food science perspective, it is difficult to define a food product that is ‘natural’ because the food has probably been processed and is no longer the product of the earth.

That said, FDA has not developed a definition for use of the term natural or its derivatives.

However, the agency has not objected to the use of the term if the food does not contain added color, artificial flavors, or synthetic substances.”5 In essence, there are no FDA standards for the appropriate use of the term “natural,” and such use has instead been left to the discretion of manufacturers and their marketing companies.

Despite strong consumer faith in the term “natural,” in many instances the label may amount to no more than pure marketing hype.

The United States Department of Agriculture (USDA) has provided some guidance for use of the label “natural” relative to the production and processing of meat and poultry, although the standards are still loose. The USDA defines “natural” as it appears on labels on meat and poultry products as “a product containing no artificial ingredient or added color and is only minimally processed.

Minimal processing means that the product was processed in a manner that does not fundamentally alter the product.”6 These standards for the “natural” label do not address and, therefore, hold no bearing on the conditions in which the animal was raised or the food and additives it was fed.7 Foods labeled “natural” may conform to consumer expectations, but they are not required to. As a result, many consumers such as those represented in the aforementioned polls associate the label with a standard for food quality that companies are not required to meet.

MO

G NON-

GMO stands for Genetically Modified Organism and the term has been adopted by activists and consumer groups in favor of labeling requirements for food or ingredients that are developed or processed using recombinant deoxyribonucleic acid (rDNA) technology. The industry producing these products prefers to use terms like biotechnology, genetically engineered or transgenic to describe food or ingredients produced using rDNA technology.

In crops, genetic engineering is used to boost production or lower costs, although opponents claim these benefits have not been realized by farmers. The plants are generally modified to resist weed killers or to generate their own insect repellent. In animals, biotechnology may be used to introduce new, desirable traits into the animal’s DNA or the animals may be fed genetically-engineered plants. According to the USDA,

about 90% of all soybeans, corn, canola, and sugar beets raised in the United States today were grown from genetically engineered or what scientists now call transgenic foods. New bioengineered crops are being created each year and approved for use by the USDA, most without any restriction or regulation on how and where the plants can be grown or used.8 The majority of processed foods rely on one or more of these crops for their production.

Over the last decade, more than 50 countries have adopted regulations ranging from labeling requirements to restrictions or outright bans on the production and sale of GMOs.9 The USDA and FDA share regulatory authority over the use and production of biotechnology in plants and animals, but both agencies have resisted consumer group requests for restrictions on the use of GMOs and any labeling requirements.10 Citing pervasive use of biotechnology in the food industry today and the lack of definitive scientific evidence that bioengineered food, whether in plants or animals, is harmful to humans or animals, the FDA has maintained that “the fact that a food or its ingredients was produced using bioengineering is [not] a material fact that must be disclosed under section 403(a) and 201(n) of the Federal Food, Drug, and Cosmetic Act” and discourages labeling foods as “GMO free” as such is not only difficult to substantiate and technically inaccurate, but also may be misleading.11 Consumer resistance to bioengineered foods remains high with 93% of those responding to a nationwide telephone poll conducted in October 2010, by Thomson Reuters and National Public Radio believed that food that has been genetically engineered or has genetically engineered ingredients should say so on its label. While consumer groups have had little success getting legislatures or government regulators to require such labeling, a consumer group in California was recently successful in qualifying a

GMO labeling proposition, “The Right to Know Genetically Engineered Food Act,” for the November 6 ballot in that state.12 In 2005, a group of consumers and several grocery stores teamed up to create a standardized meaning of non-GMO for the North American food industry. They created a voluntary enrollment and verification system and a label for food producers and manufacturers to use on their products (“NonGMO Project Verified”). The labeling system is not perfect, however, and a recent study testing some of the products displaying the “Non-GMO Project Verified” label contained high levels of genetically-engineered ingredients.13

HY

T HEAL

Consumers may also see labels bearing the word “healthy.” Like “natural,” the “healthy” label conveys little to no information to consumers about the raising or processing of the food product. Unlike “natural,” however, the “healthy” label does carry some regulated standards that must be met.

The Food Safety and Inspection Service (FSIS) and the FDA have adopted a set of standards for foods to be labeled “healthy,” encompassing a set of criteria that limits the amount of fat, saturated fat, cholesterol, and sodium, and requires minimum amounts of vitamins, mineral, and nutrients.14 Labels touting that their products are “healthy” imply that the products conform to the collective standards for labeling for each of the following: “low fat;” “low saturated fat;” “low cholesterol;” and “low sodium.”15 Consumers can be sure that foods labeled “healthy” comply with the individual standards for all of the above. For food that is labeled “low fat,” the product must contain 3 g or less total fat per reference amount or per 100 g for meal-type products.16 “Low saturated fat” claims require 1 g or less saturated fat per reference amount or per 100 g for meal-type products.17 FDA Continued on Page 16  Nashville Bar Journal - July 2012

7

FEATURE

An Overview of Farm Subsidies in the United States by:

William T. Ramsey

The United States Senate recently passed what it called a “Major Overhaul of Farm Policy” by a vote of sixty-four to thirty-five.1 The House of Representatives has yet to act on the bill. The 2012 Farm Bill passed by the United States Senate is supposed to save nearly $24 billion in expenditures over the next ten years. Thus, if the House of Representatives concurs, there will be a 10-25% reduction in the $10-30 billion2 paid in farm subsidies by the United States Government each year. The purpose of this article is to provide a history of these subsidies, an overview of the various types of farm subsidies, and a discussion of the “pros and cons” of these subsidies.

I. History of Farm Subsidies.

Arguably, the first farm subsidy program was the Morrill Act of 1862, which was also known as the Land Grant College Act. It was signed into law by Abraham Lincoln on July 2, 1862. There were other small subsidy programs such as the Hatch Act of 1887, funding agricultural research, and the Smith-Lever Act of 1914, which funded agricultural education. However, up until the Great Depression, farm subsidies remained very small.

In 1933, after years of falling crop prices, President Roosevelt sponsored farm subsidies to keep prices high. The Agricultural Adjustment Act of 1933 paid farmers price supports and guaranteed them certain price levels for their crops, and the government purchased excess production. Some farmers were paid to stop farming in order to limit over-production.

These farm subsidies remained largely unchanged (with a few ups and downs) until the 1980’s when the Reagan administration attempted to make drastic cuts in farm subsidies.

However, the 80’s were not really good years for farmers, and during those years many farms failed. Consequently, rather than cutting farm subsidies during these years, Congress actually increased the subsidies.

In 1996, a Republican Congress passed the Federal Agricultural Improvement and Reform Act of 1996, commonly known as the Freedom to Farm Act. This bill eliminated many of the acreage restrictions imposed upon farmers, allowing them to plant whatever they wanted to plant. Obviously, farmers tended to plant crops that they thought would bring 8

Nashville Bar Journal - July 2012

them the highest revenue. This shift in farm subsidy policy dramatically increased the acreages of corn and soybeans planted by farmers. Acreages of other crops such as wheat, barley, grain, sorghum, silos corn, cotton, peanuts, edible beans, and potatoes dramatically decreased. Soybeans had the most dramatic increase in acreage by far.

By 1997, the demographics of the farmers receiving subsidies had dramatically changed. In the 1930’s, 25% of the country resided on six million small farms in the United States.3 The subsidies were spread approximately equally across those farms.

By 1997, 157 large farms accounted for 72% of all farm sales in the United States and the top 1% of the beneficiaries (in terms of revenue) received 17% of the subsidy payments.4 After 1997, the subsidy payments continued to rise. By the year 2000, farm subsidies had reached record levels of approximately $25.7 billion per year.5 In 2002, the Bush administration supported the passage of farm legislation that would reverse several of the 1996 changes in the Freedom to Farm Law. The 2002 Farm Bill was projected to dramatically increase subsidy payments – approximately 74% over ten years. However, the farm subsidies for commodities actually declined by 31% from 2005 through 2006 because, frankly, farmers were making more money through higher crop prices. For example, the demand for ethanol had increased the price of corn so much that during this time corn subsidies had actually decreased by 48%.6 The 2008 Farm Bill7 largely continued the subsidies that were already in place. However, individual farmers with income over $750,000 became ineligible for direct payments, and individuals with non-farm income that exceeded $500,000 could not receive any subsidies at all.

The current Farm Bill that is in place (the 2008 Farm Bill)8 will expire on September 30, 2012. As stated above, the Senate has passed a bi-partisan version of the 2012 Farm Bill (S.3240). The formal name of the Bill is the Agriculture Reform Food and Jobs Act of 2012. The Bill passed by the Senate includes the following: price supports and crop insurance for commodity crops; conservation programs for land, water, and soil; direct and guaranteed loans to farmers and ranchers; programs for promoting renewable fuels such as ethanol; and disaster assistance.

In addition, this Bill and most of the prior Farm Bills also included allocations for the food stamp program (now known as the Supplemental Nutrition Assistance Program or SNAP), and financial assistance for cultural exports and food aid, especially humanitarian aid to other nations). The key changes in this bill are the repeal of certain direct payments and so-called “countercyclical” payments, as well as average crop revenue election payments and supplemental revenue assistance payments. All growers who have an adjusted gross income of more than $750,000 will be totally ineligible for any farm subsidy payments.

However, the Bill also increases crop insurance indemnities, which will already exceed $11 billion this year. The Bill has drawn much praise in the agricultural community, except from Southern farmers. Southern farmers claim that the crop insurance program that has primarily replaced direct subsidy payments, only favors Midwestern corn and soybean farmers. Southern farmers’ average yields are much lower than the benchmarks set for being eligible to make a crop insurance claim. Southern farmers also feel that the Bill also discriminates against other typically southern crops such as soybeans and cotton.

Others are not concerned about the provisions in the 2012 Farm Bill, because many are skeptical that the bill will pass the House of Representatives.

II. Costs of the Various Types of Subsidies Contained in Farm Bill Programs.

The 2008 Farm Bill cost taxpayers approximately $300 billion over the course of five years or approximately $60 billion per year.9 However, actual crop subsidies make up about 14% of those costs. Conservation programs make up about 9% and crop insurance programs make up about 8%. For the purposes of this article, I have considered direct crop subsidies, conservation programs and crop insurance as “farm subsidies” collectively. There are also smaller expenditures for such items as export

subsidies designed to aid farmers and food companies in selling their products abroad. These programs cost taxpayers approximately $175 million annually.

They support such things as The Pet Food Institute, The Wine Institute, The Popcorn Board, The Distilled Spirits Counsel, the American Peanut Counsel, and even The Mohair Counsel of America. There is also $3 billion annually spent by the United States Department of Agriculture on agricultural research, and economic studies. These studies are conducted in every state in the United States.

There are really six basic types of farm subsidies available: direct payments to farmers, loan programs, “countercyclical payments,” conservation subsidy programs, crop insurance, and disaster aid.

III. Direct Payments.

Direct payments to farmers were established in 1996, and were designed to transition away from the former price guaranteed programs. The vast majority of these subsidies are paid for feed grains, primarily corn, which makes up 35% of the yearly total, or about $3 billion annually. (This amount does not include the subsidies for U.S. corn ethanol.) Other crops that are covered by the direct payment subsidy program are cotton, wheat, rice, soybeans, barley, peanuts, oilseeds, oats, and sorghum.

These direct payments are based on historical acreage and production and are not related to the current production or prices for the various crops. For this reason, these direct payment programs have been roundly criticized, and the 2012 Farm Bill, if passed, is set to end those payments.

IV. “Countercyclical” Payments.

These payments cover the same farm products as direct payments, and they amount to approximately four billion dollars annually. The purpose of the “countercyclical” payment program is to provide higher subsidies when market prices are lower. These payments are

also tied to the measure of historical acreage and production, and since farm prices have been increasing, these countercyclical payments have diminished in recent years.

V. Marketing Loans.

Marketing loans are really price guaranteed payments. Marketing loans pay guaranteed minimum prices for crops.

The loan program covers the same crops as the Direct Subsidy Program and the Countercyclical Program. In 2002, wool, mohair, honey, dry peas, lentils, and chick peas were added to the eligible crops.

In essence, marketing loans are non-recourse loans from the USDA to farmers who use their crops as collateral. In recent years this program has changed to a payment to farmers when seasonal prices are below a certain level. These loan programs have been criticized because they allow farmers to receive guaranteed loan payments, even when yields are good and prices are high.

VI. Crop Insurance.

Federal crop insurance policies are sold by private insurance companies who receive federal subsidies for their costs and risks. Oversight for this program is performed by the Risk Management Agency for the USDA. Farmers can receive yield insurance protecting against adverse weather conditions, pests, etc. that might reduce their yield and revenue insurance to protect them against lower market prices.

VII. Disaster Aid. Disaster Aid coverage is available for products that are not covered by the crop insurance program. This program is called the Non-Insured Crop Disaster Assistance Program and the amounts paid pursuant to this program vary year by year.

Continued on Page 20 

Nashville Bar Journal - July 2012

9

FEATURE

Patent Law and Edible Self-Replicating Technologies by:

Ryan D. Levy

W

hile I am admittedly biased, few areas of law demonstrate the extent of human ingenuity and entrepreneurial spirit equal to patent law. No other area of law can claim the problem-solving exhibited in, for example, U.S. Patent Application Number 12/495,086 – “Device and Method for Nesting Food Products,” which describes a mechanical plunger device designed to insert a “shrimp-like product” into a buffalo chicken wing.1 One can imagine a hungry guy or gal, clearly dissatisfied with having to alternate between eating his shrimp and eating his buffalo chicken wings, envisioning a better future where gourmets could enjoy both in one harmonious bite. And in his efforts to preclude gastronomical monotony, the inventor took his food nesting device from a satiating thought to a pending patent application.

Chicken wings aside, patents pertaining to food are more common than one might think. The USPTO has an entire category of patents devoted to “Food or Edible Material.”2 In fact, the first recognized North American patent related to food; in 1641, Samuel Winslow was granted a patent by the Massachusetts General Court for a new method of making salt.3 For an invention to qualify for patent protection under current patent law, it must embody four specific traits: (1) the invention must be of patentable subject matter, (2) the invention must be novel, (3) the invention must be non-obvious, and (4) the invention must be useful.4 These requirements are not always so straightforward regarding food-related inventions. Many recipes do not meet the “novel” and “non-obvious” requirements, since variations upon recipes may be predictable to the ordinary cook.

Recipes that do receive patent protection may include components that are not commonly considered, for example, salsa with no-heat jalapenos.5 As patents are a matter of public record, some recipes are better protected as trade secrets.

Inevitably, some food patents lead to litigation. The J.M. Smucker Company (Smucker’s) had a sticky situation regarding a patent for its Uncrustables® sandwich, a small, crustless peanut butter and jelly sandwich with a crimped edge. An enforcement letter for the “Sealed Crustless Sandwich” patent resulted in litigation, patent reexamination, and an eventual appeal to the Federal Circuit after the patent was rejected by the BPAI.6 The Federal Circuit was no kinder and only two days after oral arguments, the Court rejected the appeal with a Rule 36 decision.7 Apparently this issue was so simple, the Federal Circuit had nothing to add.

Conversely, genetically modified crops and the seeds that they produce create an interesting dilemma in reconciling existing patent law and self-replicating technology. In 1994, agribusiness giant Monsanto received its first patent for soybeans that were genetically modified to be resistant to glyphosate, an herbicide and the active ingredient in Monsanto’s weed killer “Roundup®.”8 The glyphosate resistance trait is hereditary, so future Continued on Page 18 

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Nashville Bar Journal - July 2012

Nashville Bar Journal - July 2012

11

Interest

Why All the Squawking?

Nashville’s Hen Ordinance & Ramifications of the Opt-Out Amendment by:

Eleanor Wetzel

Although described as a “hot-button issue”1 involving an “ongoing council battle”2, the enactment of the hen ordinance simply marks Nashville embracing its history. A 1920 Tennessean clipping recommended that readers raise their own chickens to provide a personal supply of eggs.3 In fact, some native Nashvillians note that it was not uncommon to see backyard chickens in Green Hills in the mid1960s4 or event as late as 1975.5 During the past winter many a feather was ruffled in Metro Council. Having failed when proposed in 20096, the contentious bill to allow backyard chickens (hens, specifically) was hatched again and passed 21-15 on its third reading.7 The ordinance8 became effective in January.

The strong community support for the hen ordinance signifies Nashville has joined the urban farm movement,9 but there is more to crow about than just the fact Metro has authorized urban chicken husbandry.

While many are surprised as to why a “chicken bill” generated so much media attention10—especially since the ordinance merely set forth regulations for an already occurring practice—what is significant is the unprecedented procedural move11 by Metro Council. That is, the ordinance legalizes chicken ownership, but the “chicken movement will not be a countywide”12 in light of a last minute opt-out amendment tacked on to the bill. It is this first utilization of an opt-out amendment that has raised concerns.

Passage of Bill & Opt Out Provision Sponsored by Karen Bennett, the chicken bill was introduced and passed on first reading on November 1, 2011. The bill was referred to committee for review, and the second reading occurred on January, 3, 2012, where only a “handful” of opponents were present.13 After approximately 45 minutes of debate at the final reading on January 17, 2012, the ordinance with an amendment allowing districts to opt-out was approved.

Mayor Dean signed the ordinance into law with an effective date of January 23, 2012; however, permits were not available until February 21, 2012.14 12

Nashville Bar Journal - July 2012

Impact of Opt Out According to Metro Councilman Steve Glover, who voted for the amendment, “the chicken vote took place before weighing all the options.”15 For example, there was the option of an overlay, which had been proposed on third reading by Councilwoman Sheri Weiner. An overlay would have required restructuring the bill to allow neighborhoods to adopt allowing hens in their districts, a similar practice to how districts self-select to adopt historic preservation guidelines. But, the idea of an overlay was abandoned after determining an overlay amendment would require a new round of public hearings.16 Thus, the vote took place on the bill as proposed and then eight Council members co-sponsored an amendment to exempt the districts they represent, which passed 18-17.17 Many Council members, including Glover, describe the opt-out amendment as "bad public policy, because it potentially sets a bad precedent regarding zoning issues." 18 The support of the opt-out amendment has been described as a reverse use of “councilmanic courtesy.”19 Regardless of one’s political position, most people could agree that laws should be applied consistently. However, the opt-out amendment enabled one quarter of the 35 council districts to be exempt from the ordinance.20 This procedural mechanism has been described akin to a baron system where districts are subject to the whim of their Council representative.21 According to reports there was: no planning and zoning input into the exempted eight districts as to whether or not they should be exempted, nor was there any real discussion on the council floor about whether or not the eight districts who requested exemption had good reason for the exemption. Your ability to raise chickens is entirely dictated by the whims of a council-member you may or may not have voted for, not, rather, the collective input and wisdom of the 35 district and 5 at-large council members. 22

The “unorthodox opt-out” 23 is constitutional but could have “far-reaching impact,” according to Metro Council attorney Jon Cooper.24 This opt-out idea had been proposed several times during the previous Council term, but was consistently defeated as bad policy.25 Council composition had changed by one-third in September 2011;26 thus, when the out idea was raised this term, there was not the same opposition.27 Had the overlay been considered instead, the ultimate result would have been the same–ownership of hens would only be lawful in certain districts, but the process would have been cleaner than an opt-out amendment.

Cooper noted the opt-out could complicate enforcement, particularly when council districts are redrawn after the 2020 Census.28 Since the hen ordinance contains a two-year sunset provision (expires on March 14, 2014, unless extended), the likelihood it will be ensnared in district redrawing is low, but this is a factor to consider should the Council be inclined to utilize the optout provision for other policies.29 There has been much to do about whether the opt-out provision could be used in legislation with broader societal implications, such as a non-discrimination policies,30 but as Cooper noted such action would be unlikely as “a judge would need to see a ‘rational basis’ for distinction between districts” 31 It’s interesting, however, that in the year Nashville celebrates 50 years of consolidated government, there is much discussion that the opt-out amendment has resulted in a divided government.

Whether these are claims amount to anything or is simply a case of Chicken Little is something only time will tell.

In this author’s opinion, the complications speculated upon by the media will unlikely to come to fruition since the hen ordinance includes the sunset provision. When the ordinance comes up for renewal, it is to be hoped that the Council will reconsider either enacting a city-wide ordinance as the community realizes the benefit of urban farming,

or at least strike down the currently phrased ordnance and enact a similar law with an overlay provision.

arise with dogs and cats (17,591 total complaints in 2011 compared to less than 100 related to chickens).”37

Urban Chicken Movement Nonetheless, with the recent legalization of backyard chickens, Nashville joins the ranks of dozens of other urban cities. The backyard chicken movement first gained momentum in 2003, and by 2008, at least 25 cities32 had residents boasting flocks of hens in their back yards. It is difficult to ascertain how many cities or counties permit backyard chickens as here is no database for city ordinances across the nation,33 but the estimate is well over 150 cities–including Chicago, NYC, Miami, Denver, and Baltimore—allow back yard chickens with varying degrees of limitation and regulation.34 Interestingly, of the cities cited by Forbes as “top 10 housing markets” the only city that had not yet allowed urban chickens was Nashville, suggesting that backyard chickens do not negatively impact property values.35

In fact, there was a greater volume of chicken nuisance complaints prior to the enactment of the hen ordinance. It is widely known that “contraband hens” were being kept in certain areas of Nashville. Per Joey Hargis of Metro Codes, “the illegal keeping of chickens is not a problem the codes department often confronts.” Rather the reverse was true as over the past few years the department “increasingly fielded inquiries from citizens who want to keep chickens.”38

Legal Impact of Ordinance A quick Google search using the string “legal issues urban chickens” generated more than 353,000 results. Despite the vast amounts speculation, actual concerns about backyard hens can be boiled down to three primary issues: concern about property values as noted above, nuisance claims (odor, attracting predatory animals like foxes and coyotes, etc.), and the possibility of “creating a slippery slope.”

In regard to the slippery slope argument, some residents are concerned as to what other animals—with reference generally to goats—may be permitted in neighborhoods as part of the urban farming movement.36 The bigger issue is whether viable nuisance complaints will increase. The Department of Health is charged to respond to animal related nuisance complaints. “According to spokesperson Brent Hager, the city has very few problems with hens; most of the issues

But, as John Harkey recently inquired on his blog, “[w]hat happens if a neighbor’s chicken crosses the road to your property or is a general nuisance?” So far, it appears not much. During the initial three months of the new law the spokesperson at the Department of Health noted chicken complaints have been few, mostly in regard to roosters (which are still illegal under the ordinance) rather than hens.39 In fact, the data shows that complaints have decreased since the legalization backyard chicken husbandry.40 Substance of Ordinance Convinced to join the band wagon and enjoy fresh eggs from your yard? The full text of the ordinance is available on the Nashville government website,41 and in a nutshell, the ordinance provides the following: • A permit that may be obtained for $25 a year with the first permit year extending from issuance date through December 2012, and thereafter the permit year shall run January 1 – December 31.

• All hen feed must be kept either indoors or in a weather-resistant container with a metal lid designed to prevent access by rodents and other animals.

• All hens shall be kept outside of a habitable structure in a predatorContinued on Page 15  Nashville Bar Journal - July 2012

13

BILL AND PHIL’S GADGET OF THE MONTH CLUB By: Bill Ramsey of Neal & Harwell, PLC and Phillip Hampton of LogicForce Consulting

Gadgets for Summer Food and Fun We have parked the Bill & Phil Show tour bus for a few weeks and plan on taking a bit of down time to enjoy the long days and short nights of summer. Though we get plenty of exposure to light from all of our big screen HD monitors, tablet retina displays, and Super AMOLED smartphone screens; there is just no substitute for the summer sun. So, just like you, we’re going to pack a picnic basket and cooler and head for the beach, the mountains or somewhere where we can just be at one with nature (oh yes, and with our gadgets too). That’s right, tasked with coming up with options for the firm annual summer picnic, we turned to our gadgets for help. Searching high and low for the best gadgets to use in the kitchen, break room, or picnic table; we came up with our top 10 food-related gadgets. Bon appetite!

1. Kitchen Art Ham Dogger: While decidedly low-tech (there is no battery, A/C hookup, or USB port) the Ham Dogger is a favorite gadget for the summer cook-out. This simple device (available for less than $10 on Amazon.com) is a hamburger patty mold that makes hamburgers shaped like hot dogs. The extra benefit for this device at your firm picnic is that you only have to buy one type of bun for all the hotdog and hamburger connoisseurs.

2. Oregon Scientific AW131 Grill Right Wireless Talking BBQ and Oven Thermometer: With this wireless thermometer (available at www. oregonscientificstore.com) there is no need for you to sweat over the grill while your summer picnic party guests are lounging comfortably on the deck.

The AW131 consists of a probe for your grilled meats which transmits a wireless signal to a remote digital LCD screen up to 330 feet away. The meat probe will send a signal to the main unit when your entrée has reached a preprogrammed temperature (there are settings from rare to well done). The main unit can alert the remote chef with a verbal cue or audio tone. You will be the toast of the neighborhood when your meats are grilled to perfection every time.

3. iRepel Home Chef Gear: Nothing says “loser” more than having spills from the kitchen stained across your chef apron. With the iRepel gear (available at www.irepelgear.com), however, you can prepare your meal for your guests in 14

Nashville Bar Journal - July 2012

style with no worry about showing those embarrassing slipups while slicing the tomatoes or mixing the basting sauce. According to the manufacturer, this unique fabric uses nanotechnology to achieve a very high level of resistance to water, dirt, liquids, oil and stains. If you don’t believe us, go to their website and watch the video.

4. Temperature Controlled Butter Dish: One of our pet peeves is going to a dinner party and having to spread overly chilled butter on our bread. Don’t let hard butter from the refrigerator ruin your dinner, visit www.butterwizard. com to get a temperature controlled butter dish. You select the desired temperature, put in a stick a butter, close the lid and you will soon be hearing rave reviews on the suppleness of your butter.

5. Ben & Jerry’s Euphori-Lock: Of course, any summer picnic is not complete without a bowl of cold ice cream. The problem is, however, if you purchase the ice cream in advance and place it in your freezer, the kids (or maybe dad) will significantly reduce the inventory before the weekend picnic. Ben & Jerry’s has a great solution to save your ice cream until it is finally time to partake – the Euphori-Lock.

No joke…this device can secure a pint of ice cream with a three digit combination lock and is available for purchase from the online shop at www.benjerry.com. Secure your frozen summer treats from intruding sweet tooth hackers.

6. BioLite CampStove: Have you ever been out camping and cooking your delicious concoctions of foraged food and suddenly realized that your iPad needs a charge? BioLite has answered your prayers.

BioLite manufactures high efficiency, and environmentally friendly stoves, and this gadget is actually quite amazing. In the words of Biolite: “The BioLite CampStove, designed for outdoor adventure and emergency preparedness, makes cooking on wood as clean, safe and easy as petroleum fuels while powering electronics off-grid… Forget the fuel. Charge your gadgets. Support a better world.” Available at www.biolitestove.com.

7. Ion Water Rocker: When you are lounging in the pool, enjoying a frosty beverage, and seeking relief from the summer sun, you need some awesome jams.

That’s when you need the Ion Water Rocker. This fully waterproof, ball-shaped speaker floats in the water and plays your favorite tunes. Your iPhone, iPod or other audio device are safe on dry land. Those devices connect to a wireless transmitter, which can be as much as 100 feet away and a safe on dry land. Available at www. ionaudio.com.

8. Wake n' Bacon: After a hard day on the beach, you may need some help to wake up for another day in the fun and sun. If so, Wake n’ Bacon is your answer.

With Wake n' Bacon, you wake up “to the sounds and smells of sizzling bacon instead of a buzzing alarm.” When you go to bed,

Gadgets For Summer Food And Fun

you just put a piece of frozen bacon the Wake n’ Bacon, and it will begin cooking 10 minutes before wake up time. There is no snooze alarm, and the gadget can’t be bought yet. It is still in concept mode.

9. The BeerPager: Sometimes the heat of the sun will cause you to forget where you left your favorite bottle or can of drink . BeerPager to the rescue! You place your drink inside your BeerPager to keep it cool… but there is more to the BeerPager than just keeping drinks cold . “At the press of a button on their pocketsized remote control, each batterypowered BeerPager plays fun sounds from its built-in speaker and flashes bright lights around its base from up to 60 feet away. There are several models to choose from such as: The Larry the Cable Guy BeerPager; The BeerPager Belcher; The BeerPager Golfer; The BeerPager Casino; The BeerPager Biker. Available at http:// beerpager.weebly.com.

10. Motorized Ice Cream Cone Holder: Those long, hot summer vacation days can make you very tired.

So tired, that you may not be able to eat your ice cream cone efficiently.

You don’t have to turn your cone to lick the next melting corner. “The Motorized Ice Cream Cone Holder does it for you.” At the push of a button your ice cream is always on the tip of your tongue. Available at http://www.stupid.com/MotorizedIce-Cream-Cone-Holder_p_386. html (presently out of stock).

We hope that these gadget tips will help make your summer more enjoyable.

See you next month,

Bill & Phil

Why All the Squawking? Nashville’s Hen Ordinance & Ramifications of the Opt-Out Amendment Continued from page 13

• • • • • • • •

proof enclosure, a portion of which must be a covered henhouse, and a portion of which must be a fenced area complying with Codes.

Hens shall be kept in the side and/or rear yards of a residential property subject to the setback standards; none may be kept in the front yard.

Waste Management: All manure for composting or fertilizing shall be contained in a well-aerated garden compost pile. All other manure not used for composting or fertilizing shall be removed.

No perceptible odor shall be present at any property line.

No slaughtering of hens may occur on the property.

No breeding of chickens shall occur on the property.

No roosters permitted.

Number of hens permitted range from 2-6, depending on acreage, with up to 2 chickens for acreage 0.0 to .11, up to 4 chickens for acreage .12 to .23, and up to 6 chickens for acreage of .24 to under 5 acres.

The ordinance does not trump Home Owner Association rules prohibiting chickens.

The application process is fairly easy, with the necessary form available online.42 The Health Department has been “permitting about one application per day (five per week).”43 Since permitting began, just over 100 applicants applied between late February to late May.44 Those interested in entering the world of chicken husbandry can find a plethora of helpful information online45 as well as through the local community group (Urban Chicken Advocates of Nashville), which was the organization advocating the passage of the new ordinance.46 n Eleanor (Ellie) Wetzel is licensed to practice in Tennessee and Indiana. Her career has been devoted to research, having served ten years as a judicial clerk for state and federal courts. Full disclosure: As a pro-chicken, self-proclaimed egg connoisseur, she would readily have a lock of backyard chickens if it were not prohibited by her Sumner County HOA. To fill the void she maintains a Pinterest board of unique urban coop designs.

(Endnotes) 1 Joey Garrison, Backyard urban chicken bill resurfaces in Metro Council, Nash. City Paper, Oct. 26, 2011, available at http://nashvillecitypaper.com/content/city-news/backyard-urban-chicken-bill-resurfaces-metrocouncil. See also Janice Cole, The Case for Backyard Chickens, Zester Daily (May 30, 2011), http://zesterdaily. com/agriculture/raise-chickens-in-backyard-coops/.

2 Joey Garrison, Push for backyard chicken bill could face similar resistance, Nash. City Paper, Nov. 6, 2011, available at http://nashvillecitypaper.com/content/city-news/push-backyard-chicken-bill-could-face-familiarresistance.

3 Nikki Wood, Backyard chickens an old tradition made new in Nashville, Nash. Scene, Apr. 4, 2012, available at http://www.nashvillescene.com/bites/archives/2012/04/04/backyard-chickens-an-old-tradition-made-new-innashville. Scanned clipping from 1920 Tennessean available on website.

4 Id. 5 William Williams, Group advocates backyard hens as part of local food movement, Nash. City Paper, June 5, 2011, available at.

6 As reported in the Nashville City Paper: The issue came to a head in 2009, as confusion about city law stirred: One part of the Metro code appeared to prohibit chickens in the county’s Urban Services District, while another section seemingly said it only became a violation if the chickens were a nuisance. Metro code does not allow chickens within the Urban Services District, except in the cases of properties that are zoned for agriculture.

Metro Councilmen Carl Burch and Jason Holleman attempted to clarify the code with competing legislation. Burch wanted to ban hen ownership altogether, noting during a council meeting at the time, “I firmly believe chickens have no place in the Urban Services District.”

Holleman’s bill would’ve allowed backyard chickens in the USD. Neither bill made it to third reading, leaving the code intact — and, some argue, vague and contradictory. Joey Hargis of Metro Codes said the USD has a handful of properties zoned for agricultural operations. In addition, chickens can be kept on properties that are five acres or larger and are within the county’s outlying General Services District.

Williams, supra note 5.

Continued on Page 23  Nashville Bar Journal - July 2012

15

A label by any other name…. What do labels really tell us about the food we are eating? Continued from page 7

disclosure levels for cholesterol are 60 mg per reference amount for individual foods.18 Sodium disclosure levels are 48 mg per reference amount for individual foods.19 Foods that are labeled “healthy” must meet all of the above criteria.20 The “healthy” label provides significantly more information on a regular and trustworthy basis than does the “natural” label, and is particularly informative for consumers interested in the facial nutritional value of the product they’re buying. Like the “natural” label, however, “healthy” offers little to no information concerning the way in which the food was produced.

NIC Organic foods A G R are natural by O definition, but foods labeled “natural” are by no means necessarily organic.21 Products labeled “organic” must contain at least 95% organic ingredients.22 The standards for organic foods address both the final food product and the way in which the product is grown and produced.23 Organic foods cannot be grown using synthetic fertilizers, chemicals, or sewage sludge, and cannot be genetically modified or irradiated.24 Organic agricultural products certified to the USDA organic standards are regulated by the National Organic Program and organic farmers, ranchers, distributors, processors, and traders are subject to USDA oversight, inspection, and auditing.25 In order to qualify as producers of organic products, producers must follow all of the extensive specifications set out by the USDA organic regulations.

USDA guidelines forbid the use of chemicals or animal or plant material that would contaminate or compromise the integrity, purity, or cleanliness of the soil and dirt in fields used to grow organic crops, and requires the use of traditional rotation systems.26 Everything from soil temperature and pH content to seed origins and traditional, non-chemical means of pest control are regulated.27 Organic animals must be managed using organic management techniques from a very young age (the last third of a gestation period, the second day of life, or the first year of life, depending on the type of animal and intended use) until the end of their lives, and must be fed organic feed.28 Products labeled “organic” are required to meet the strictest standards of the labels discussed by this article, and when consumers are faced with products labeled “organic” they can know the entire specific history of that product.

This sets the “organic” label apart from the materially empty “natural” label, the misleading “Non-GMO” label and the “healthy” label, which addresses only the current qualities of the product. n Tracy Kane is an attorney with Dodson, Parker, Behm & Capparella, PC, specializing in estate planning and business law. She is a graduate of Vanderbilt University Law School and former law clerk to the Honorable Richard Dinkins on the Tennessee Court of Appeals.

Kori Lopreore is a rising second year student at Vanderbilt University Law School and is currently a summer associate at Dodson, Parker, Behm & Capparella, P.C.

Label Facts If you still are confused by all these different labels or want to learn more about all the different labels being used and their respective efficacy, there are lots of resources on the web these days, but below are a few sites that we recommend: www.ams.usda.gov – USDA Agricultural Marketing Service www.fda.gov/food/biotechnology/default. htm – U.S. Food and Drug Administration www.sustainableable.org – Sustainable Table, a program of Grace Communications Foundation www.ota.org – Organic Trade Association (Endnotes) 1 Organic Trade Association, Industry Statistics and Projected Growth, http://www.ota.com/organic/mt/ business.htm (2011).

Sales of organic fruits and vegetables grew the most, up 11.8% to account for nearly 12% of all U.S. fruit and vegetable sales. Organic dairy, the secondlargest category, grew 9% and comprised nearly 6% of the U.S. dairy market. Id.

2

Press Release, The Shelton Group, National Survey: Green Is Officially Mainstream – But Consumers Are Confused, Skeptical About Products Press release ( June 29, 2009), available at http://www.sheltongroupinc. com/press/ecopulse/press_releases/EcoPulseNewsReleaseNaturalvOrganic.pdf.

3

The Hartman Group, Poll, Beyond Natural and Organic, as quoted in Cornucopia Institute, Cereal Crimes: how “Natural” Claims Deceive Consumers and Undermine the Organic Label – A Look Down the Cereal and Granola Aisle, (Oct. 2011).

4

U.S. Food & Drug Administration, What is the meaning of 'natural' on the label of food? (Apr. 4, 2012)

5

http://www.fda.gov/AboutFDA/Transparency/Basics/ ucm214868.htm (emphasis added).

U.S. Department of Agriculture, Food Labeling Fact Sheet (Apr. 12, 2011), http://www.fsis.usda.gov/ Factsheets/Meat_&_Poultry_Labeling_Terms/index. asp#14 (emphasis added).

6

Sustainable Table, Glossary of Meat Production Methods, http://www.sustainabletable.org/spread/ handouts/Glossary_of_Meat_Production.pdf.

7

8 Lyndsey Layton, Genetically modified crops get boost over organics with recent USDA rulings, Wash. Post, Mar. 23, 2012.

9 Guillaume P. Gruere & S.R. Rao, A Review of International Labeling Policies of Genetically Modified Food to Evaluate India’s Proposed Rule, Ag. Bio. Forum, 10(1): 51-64 (2007).

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10 The USDA Animal and Plant Health Inspection Service (APHIS) Biotechnology Regulatory Services regulates the introduction (importation, interstate movement, and release into the environment) of genetically engineered organisms that may pose a risk to plant health. The U.S. Food and Drug Administration Center for Veterinary Medicine regulates the manufacture and distribution of food additives and drugs that will be given to animals, including the use of biotechnology to alter the DNA of animals.

U.S. Food and Drug Administration, Guidance for Industry: voluntary labeling indicating whether foods have or have not been developed using bioengineering (Jan. 2001). The FDA draft guidance states “[t]erms like ‘not genetically modified’ and ‘GMO free’ that include the word ‘modified’ are not technically accurate . . . [because] [m]ost, if not all, cultivated food crops have been genetically modified.” The draft guidance further explains that the term “GMO free” may be misleading on most foods because most foods do not contain organisms and “free” without a definition of some minimum level of bioengineered constituents is likely to be misunderstood by consumers to mean “zero.” Finally, the FDA cautions that “[a] statement that a food was not bioengineered or does not con11

tain bioengineered ingredients may be misleading if it implies that the labeled food is superior to food that are not so labeled.”

Elizabeth Weise, Fight over genetically engineered crops on Calif. Ballot, USA Today, June 12, 2012.

12

The Cornucopia Institute tested non-organic “natural” cereal products making “non-GMO” claims and found that Barbara’s Bakery® Puffins® and Whole Foods’ 365® Corn Flakes both had more than 50% genetically-engineered corn, despite being enrolled in the Non-GMO Project Verified program.

Cornucopia Institute , Cereal Crimes: How “Natural” Claims Deceive Consumers and Undermine the Organic Label – A Look Down the Cereal and Granola Aisle, at 29 (Oct. 2011).

13

14 Food & Drug Administration, Food Label Helps Consumers Make Healthier Choices (Mar. 2008).

Nutrition Labeling; Use of “Healthy”’ and Similar Terms on Meat and Poultry Product Labeling, 59 FR 24220, 24222-23 (1994).

15

16

9 C.F.R. § 317.362.

17

9 C.F.R. § 381.462.

18

21 C.F.R. § 101.13(h).

19

Nutrition Labeling, supra note 15, at 24223.

20

Id.

It is worth noting that organic foods are not necessarily “healthy” in accordance with the USDA and FDA’s standards for labeling.

21

Food Marketing Institute, Natural and Organic Foods, FMI Backgrounder.

22

23 U.S. Food and Drug Administration, Food Label Helps Consumers Make Healthier Choices (Mar. 2008).

24

Sustainable Table, supra note 7.

The National Organic Program at the USDA regulates the organic industry and enforces organic labeling laws as required by the Organic Foods Production Act of 1990, codified at 7 U.S.C.A. §§ 1501 et seq.

25

26

7 C.F.R. § 205.203.

27

7 C.F.R. §§ 205.203-205.206.

28

7 C.F.R. §§ 205.236-205.237.

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17

Patent Law and Edible Self-Replicating Technologies Continued from page 10

generations of crops are also glyphosateresistant.9 Farmers would only need to save a portion of the seeds from their crop for planting in future seasons, and they would not have to repurchase seeds from Monsanto every year. To protect future earnings and prevent one-time sales, Monsanto required farmers to sign a licensing agreement that prohibited the farmers from saving and replanting the Roundup Ready® seeds.10 What the license did not prohibit, however, was the selling of excess soybeans on the commodity market.11 Most seeds of this sort are sold to grain elevators, where farmers can purchase the soybeans for feeding livestock or for human consumption.12 With genetically modified crops accounting for 94% of U.S. soybeans (as well as 95% of sugar beets, 90% of cotton, and 88% of U.S. feed corn), most farmers realized that it was statistically likely that any seeds purchased on the commodity market would be from Roundup Ready® crops and thus have the glyphosate resistance gene.13 Vernon Bowman of Indiana was one such farmer. Because commodity soybeans are significantly cheaper than Monsanto soybeans, it was cheaper to purchase open-market soybeans and to use them for future plantings. Bowman agreed to purchase and grow properly bought Roundup Ready® soybean seeds for his first yearly planting, but purchased commodity seeds to use in a second late-season planting.14 He noticed the commodity seeds exhibited the same herbicidal resistance, despite being sold with no licensing restrictions, and assumed he was free to harvest and replant future generations of glyphosate-resistant seeds.

Bowman sprayed all crops with Roundup, killing off any non-Roundup Ready® soybeans, and subsequently harvested the remaining Roundup Ready® crop for replanting. He was open about his practices with Monsanto and upon investigation, Monsanto learned that the seeds

18

Nashville Bar Journal - July 2012

for the second plantings contained the patented technology. Monsanto sued for patent infringement, prevailed on summary judgment at the district court, and Bowman appealed to the Federal Circuit.15 On appeal, Bowman argued that his use of the seeds was protected under what is known as the “exhaustion doctrine.”

The exhaustion doctrine as described by the Supreme Court “provides that a patented item’s initial authorized sale terminates all patent rights to that item.16 Bowman argued the patent interest would expire when the soybeans were sold to the grain elevators for purchase on the open market.17 Not bound by a licensing agreement, Bowman argued he was free to replant the Roundup Ready seeds without fear of infringement or breach of contract.

Monsanto countered, arguing that every future generation of seed was a new product distinguished from the originally patented seed, and that subsequent seeds therefore required new patent licensing.18 Because the patents over the new generations of seeds were not exhausted by sale to an end user, the unlicensed growth and harvesting of new and patented soybeans infringed their patents.

Essentially, Monsanto claimed that the replanting of seeds was the equivalent of unlicensed and illegal manufacturing of patented goods.19 The Federal Circuit sided with Monsanto and explained that "the right to use does not include the right to construct an essentially new article on the template of the original, for the right to make the article remains with the patentee."20 Essentially, the Court determined that the authorized sale of seeds by the grain elevators did not exhaust Monsanto’s patent rights in subsequent generations of soybeans: “[t]he fact that a patented technology can replicate itself does not give a purchaser the right to use replicated copies of the technology.”21

Many consider the Federal Circuit’s ruling sensible, as it could have destroyed Monsanto’s patent rights. If patent exhaustion applied and subsequent generations of seeds were not patentprotected, Monsanto, and any patent holder of any self-replicating biotechnology, would likely never make another sale. Farmers would only have to make a one-time purchase of seeds on the open market and harvest their own seeds for a potentially unlimited number of future generations and sales. The potential consequences could be dire for the biotechnology industry, since so much as a single sale of a self-replicating product could snowball into an unregulated, uncompensated secondary market.

Yet by not applying the exhaustion doctrine, any time farmers planted a Roundup Ready seed without a license, they would be committing patent infringement. While Monsanto has only taken to court farmers who were intentionally replanting Roundup Ready® crops to avoid licensing, the hereditary nature of the glyphosate-resistance gene and their ubiquitous presence in farming areas means that Roundup Ready® crops can easily cross-pollinate with unmodified crops. Farmers wanting to avoid patent infringement liability cannot plant seeds bought on the commodity market as almost all these seeds are from Roundup Ready® crops. It would be impractical to test and separate such seeds.

Organic farmers and supporters of the organic initiative are also gravely concerned that seed drift and cross-pollination will result in their organic crops being contaminated with the Roundup Ready gene, potentially opening such farmers up to litigation for patent infringement or loss of their organic certification.

Monsanto has stated that it does not intend to sue farmers who accidentally infringe by unknowingly growing Roundup Ready crops.22 But a group

of organic farmers, seed businesses, and organic agricultural organizations were concerned enough to collectively sue Monsanto and seek a declaratory judgment to prevent the Monsanto from suing farmers whose seeds were accidentally cross-contaminated with the glyphosate resistance gene.23 Unfortunately for these plaintiffs, the case didn’t survive past Monsanto’s motion to dismiss based on lack of standing. The Court chastised the Organic Seed Growers and Trade Association (OSGATA) for their “transparent effort to create a controversy where none exists,” ruling “[T]here is no evidence that plaintiffs are infringing defendants’ patents, nor have plaintiffs suggested when, if ever, such infringement will occur.”24 That issue is currently being appealed to the Federal Circuit.

Meanwhile, Bowman has petitioned the Supreme Court for a writ of certiorari.

Before issuing a decision upon granting certiorari, the Supreme Court has called for the view of the Solicitor General of the United States on whether the exhaustion doctrine should apply to patented seeds sold contract-free on the commodity market and/or subsequent generations of those seeds.25 Typically, for the Supreme Court to request a brief from the Solicitor General, four Justices must vote in favor of the request.26 While these votes are usually easier to obtain than votes to grant certiorari, petitions on the paid docket are 47 times more likely to be granted where the Court requests the view of the Solicitor General.27

exhaustion doctrine to self-replicating technologies, may be compelling enough to convince the Supreme Court to hear the case on its merits.

(Endnotes) U.S. Patent Application No. 12/495,086 (filed June 30, 2009).

1

USPTO Patent Classification 426: Food or Edible Material: Processes, Compositions and Products.

2

International Salt Co. v. Commissioner of Patents, 436 F.2d 126, 127 (C.A.D.C. 1970).

3

Although the Solicitor General did not submit his brief in time for the Supreme Court to grant or deny certiorari prior to the summer recess, a decision will likely occur shortly after the Court resumes session. The Supreme Court’s decision could have a resounding impact on the nature and extent of biotechnology patents, bioengineering interests, and detractors. If granted, the Court will have to consider not only how its decision would affect genetically engineered crops, but also other self-replicating technologies on the horizon. And while advances in technology have resulted in yet another legal conundrum, technology may soon combine our chicken wings and shrimp, providing even more time for debate. n Ryan D. Levy is a shareholder with Waddey & Patterson, P.C. and concentrates his practice on patent litigation. Additionally, he regularly counsels clients on patent prosecution strategies and other intellectual property matters. Mr. Levy can be reached at rdl@iplawgroup.com or 615-2422400.

The author would like to sincerely thank Wade K. Sims for his great work in developing this article.

Mr. Sims will be starting his second year at Belmont University’s College of Law this fall and is a 2010 graduate of Belmont University.

4

35 U.S.C. §§ 101-103.

5

U.S. Patent No. 6,143,349 (issued Nov. 7, 2000).

Albie’s Foods, Inc. v. Menusaver, Inc., 170 F.Supp.2d 736 (E.D. Mich. 2001); See also Ex Parte Len C. Kretchman and David Geske, 2003 WL 23507730 (B.P.A.I. 2003) (affirming rejection of sealed crustless sandwich method patent).

6

In re Kretchman, 125 Fed. Appx. 1012 (Fed. Cir. 2005).

7

8

U.S. Patent No. 5,352,605 (issued Oct. 4, 1994).

Monsanto Co. v. Bowman, 657 F.3d 1341, 1346 (Fed. Cir. 2011).

9

10 Monsanto Co. v. Bowman, 686 F.Supp.2d 834, 836 (S.D. Ind. 2009).

11

Bowman, 657 F.3d at 1345.

12

Bowman, 686 F.Supp.2d at 836.

Elizabeth Weise, Genetically modified crops had a bumper year in 2011, USA Today, Feb. 08, 2012, available at http://www.usatoday.com/money/industries/ food/story/2012-02-06/biotech-crops/53005000/1.

13

14

Bowman, 657 F.3d. at 1346.

15

Id. at 343.

Quanta Computer, Inc. v. LG Elec., Inc., 553 U.S. 617, 618 (2008).

16

17

Bowman, 657 F.3d. at 1346.

18

Id. at 1347.

19

Id.

20

Id. at 1348.

21

Id.

Monsato, Monsato’s Commitment: Farmers and Patents, http://www.monsanto.com/newsviews/Pages/ commitment-farmers-patents.aspx. (2012).

22

23 Organic Seed Growers and Trade Ass’n v. Monsanto Co., No. 11 Civ. 2163(NRB). --- F.Supp.2d ----, 2012 WL 607560 (S.D.N.Y. Feb. 24, 2012).

24

Id. at *8.

Bowman v. Monsanto Co., 132 S.Ct. 1878 (mem) (Apr. 2, 2012) (No. 11-796).

25

Thompson & Wachtell, An Empirical Analysis of Supreme Court Certiorari Petition Procedures: The Call for Response and the Call for the Views of the Solicitor General, 16 George Mason L. Rev. 237, 273 (2009).

26

The Solicitor General’s opinion is only persuasive, not binding. The Supreme Court would be free to grant or deny certiorari regardless of the Solicitor General’s suggestion, and denying granting certiorari would let stand the Federal Circuit’s decision to extend patent protection to unlicensed subsequentgeneration seeds. However, the call for the view of the Solicitor General, coupled with the novelty of applying the

27

Id. at 245.

Nashville Bar Journal - July 2012

19

An Overview of Farm Subsidies in the United States Continued from page 9

VIII. Conservation Subsidies.

This program is one of the most highly criticized programs because it distributes about three to four billion dollars a year to farmers for not growing crops. However, this program is probably one of the most useful programs because it encourages farmers to cultivate ground cover such as grass or trees on acres that are no longer used for farming. Approximately thirty to forty percent of the land that is covered by the CRP Program is actually owned by retired farmers, who had acreage in production but no longer wish to grow crops. This program assists with some of the problems created by farm subsidies that can cause over-production, because it idles production on less productive farmland.

IX. Pros and Cons of Farm Subsidies.

Obviously farmers in general favor farm subsidies. Many believe that American farmers would all but disappear if farm subsidies were abolished. First, they claim American farmers could not compete with foreign imports, many of which are heavily subsidized by their respective countries. As a result, proponents argue that the United States would become dependent on other countries for its food supply and would make us vulnerable.

Proponents insist that the farm industry needs to be subsidized in order to insure that the United States has a very predictable and stable farm system, insulating farmers and the ultimate consumer from price spikes due to bad weather conditions, poor harvest, etc. Some also contend that the subsidies allow farmers to continue to implement more efficient methods for growing crops.

Others focus upon the plight of the small farmer. Americans have an idyllic view of the small family farmer, and many believe small farmers simply could not compete with business-type farms without the assistance of the various subsidies available. Of course, the problem is that the vast majority of farm 20

Nashville Bar Journal - July 2012

subsidies go to the large factory farms.

In fact, it is estimated that 70-75% of farm subsidies go to the top 10% of the producers.10 Many factory farms receive over a million dollars apiece; smaller farmers receive an average of about $846 per year.11 Those that argue against farm subsidies are zealous in their criticism of these programs. Many of these critics are not simply those who believe that all industries ought to be in a “free market.” In recent years, a great number of the opponents focus on the fact that these subsidies cost taxpayers billions of dollars per year. Many believe that these programs are uniquely susceptible to Congressional pork barrel politics and recipient fraud.

Much of the criticism focuses upon the last point discussed above. The vast majority of federal farm services subsidies go to millionaire farmers. Large land owners, not small farmers, tenant farmers, or farm workers benefit from the subsidies.

Critics claim only the rich benefit from these subsidies.

Finally, others claim that these large farm subsidies actually damage the environment because they encourage agricultural production on marginal land that is less naturally productive. Thus, these lands that should have been used for parks or forests are used for farming because farm subsidy payments can result in much higher prices for land. In addition, many claim that subsidies encourage farmers to use excessive amounts of fertilizer and pesticides that severely damage the environment, especially lakes, rivers, and water systems.

X. Conclusion.

In spite of these criticisms, farm subsidies will probably be around for a long time. The farming lobby in Washington is very strong. Many members of Congressional Agricultural Committees

are actually farmers themselves, or have ties to farm land owners. Moreover, and perhaps more importantly, the American public continues to have an idyllic view of the American farmer even though fewer than 2% of Americans farm for a living today,12 and only 19% of Americans live in what is considered to be rural areas.13 As long as these sentiments prevail, farm subsidies are here to stay. n

William T. Ramsey is a member of the Neal & Harwell law firm. He joined the firm in 1981. The primary focus of Mr. Ramsey’s professional practice is complex civil and criminal litigation.

He is past President of the Nashville Bar Association. He served on the NBA Board from 2002-2005.

(Endnotes) 1 The Agriculture Reform, Food and Jobs Act of 2012 S.3240 2 Summary of U.S. Senate Committee on Agriculture, Nutrition and Forestry on S.3240.

3 USDA, The 20th Century Transformation of U.S. Agriculture and Farm Policy, USDA Economic Bul letin No. 3.

USDA, American Farms USDA Factbook, ch.3.

4

Id.

5

Environmental Working Group, 2012 Farm Sub sidies Database, www.farm.ewg.org (search “Corn Subsidies Database”).

6

7 The Food, Conservation, and Energy Act of 2008 (Pub.L. 110-234, H.R. 2419, 122 Stat. 923, enacted May 22, 2008, also known as the “2008 U.S. Farm Bill”)

See Summary, supra note 2.

8

USDA, Fact Sheet: Market Access Program (Dec. 2009), www.fas.usda.gov/info/factsheets/mapfact. asp.

9

10

Farm Subsidies Database, supra note 6.

11

Id.

EPA, Ag 101 Demographics (June, 27, 2012), http:// www.epa.gov/agriculture/ag101/demographics. html.

12

United States Census Bureau, 2012 Census Urban Area FAQs (updated June 21, 2012), http://www. census.gov/geo/www/ua/uafaq.html.

13

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21

Disclosure Linda Rose received the 2012 Service Excellence Award from the American Immigration Lawyers Association (AILA) during their annual convention. This award is given periodically to the AILA member who demonstrates outstanding service, over a period of years, in advancing the mission, development, and value of AILA for its members and the public it serves. Rose has served on the AILA Board of Governors for 14 years and has been a speaker, author, and mentor for AILA members during her 25 years of membership in the Association. Rose is the managing member of Rose Immigration Law Firm, PLC, an adjunct professor of immigration law at Vanderbilt University Law School, and the leader of the jazz ensemble Rose On Vibes Quintet.

Daniel Clayton, of Kinnard, Clayton & Beveridge in Nashville, received the Tennessee Association for Justice (TAJ) Paladin Award at its annual convention in Memphis. The award recognizes TAJ Members who have achieved outstanding results for a client and who have worked tirelessly to protect the civil justice system. Clayton was the Middle Tennessee recipient. Clayton was recognized for his trial successes, being an advocate for justice and the preservation of right to trial by jury by his involvement in the legislative session and, on a community level, his work with foster children. Clayton and his wife have served as foster parents for over 25 children.

Travis McDonough has been appointed as Chair of Miller & Martin PLLC’s Litigation Department. McDonough concentrates his practice in the areas of corporate disputes, white collar criminal defense, class actions, intellectual property rights, and other complex litigation.

He previously served as Vice Chairman of the firm's litigation department beginning in 2007.

22

Nashville Bar Journal - July 2012

\Dis*clo”sure\ (n) The act of revealing, releasing or bringing to light relevant information concerning NBA Members & Staff. n Announcements n Kudos n People on the Move n Firm News n Barbara Moss has been named to the board of directors of FiftyForward in Nashville, an organization dedicated to helping people 50 years and older live fuller, more productive lives with a sense of dignity and self worth. Moss is of counsel with the firm of Norris & Norris, PLC, where she practices probate work and probate litigation, disability law, mediation, arbitration and employment law counseling and litigation. Moss has been practicing law for more than 30 years and has won many awards in Nashville, including the Athena Award in 2007, induction into the YWCA Academy of the Women of Achievement in 2008, and the Molly Todd Cup in 2009 presented by Nashville networking organization CABLE. Hugh C. Howser, Jr. has joined Dickinson Wright PLLC. brings over 30 years of civil litigation experience to the firm. He focuses his practice in the areas of labor & employment, litigation, construction, product liability litigation, and white collar & corporate investigations. He has successfully tried many cases, including defending a national drug distribution company in the first reported prosecution by the FDA of alleged violations of the Prescription Drug Marketing Act. Howser received his B.A. from Vanderbilt University and his J.D. from Vanderbilt University School of Law. Waller expanded to Texas with a new office in Austin that will be led by Elizabeth N. Rogers, partner and prominent healthcare attorney from the Austin office of Vinson & Elkins. Waller's new office will also include Anthony E. (Tony) Pletcher, chief strategy officer; Andrew (Drew) C. Rogers, associate; and Amy L. Herzog, healthcare policy analyst. With the addition of the new Austin office, Waller has approximately 200 attorneys operating out of its headquarters in Nashville and an office in Birmingham, Alabama. The firm's 11 practice groups cover a wide range of transactional, regulatory and litigation issues for a variety of industries.

WELCOME NEW NBA MEMBERS Christa R. Boyd Chelsea L. Cerio David M. Dolan The Law Office of Ray Akers, PLLC Joshua Ehrenfeld Frost Brown Todd LLC* Chase D. Fisher Natalie J. Horel Jennifer L. Johnson Fielder & Johnson, PLLC Zachery D. Jones Chuck Kincade Delta Resolution Group, LLC Joshua Craig Lee Metropolitan Department of Law Elizabeth Meadows Joshua D. Miller Shannon D. Peters Pamela McIntyre Smith The Mediation Center Matthew D. Ticaric Kristin E. Ware Tennessee Justice Center* * Belongs to a 100% Club firm

DIAL - A - LAWYER Dial-A-Lawyer is held the first Tuesday of each month.

June Volunteers: Helen Cornell Gina Crawley Victoria Ferraro Cheyanne Kinghorn Tom Lawless Jamie Machamer Joe Rusnak Jessica Van Dyke To volunteer your time, please contact Wendy Cozby, LRIS Coordinator at wendy. cozby@nashvillebar.org or 242-9272. Pro Bono credit does apply and dinner will be provided.

Nashville Bar Association members may send Disclosure announcements via email to nikki.gray@nashvillebar.org Submissions are subject to editing.

Why All the Squawking? Nashville’s Hen Ordinance & Ramifications of the Opt-Out Amendment Continued from page 15 The breakdown of aye/nay votes and abstentions is available online at http://www.nashville.gov/mc/ pdfs/roll_call_votes/bl2011_47_sub.pdf.

7

Substitute Ordinance No. BL2011-47, Section 8.12.020 Keeping of chickens (eff. Jan. 23, 2012), available at http://www.nashville.gov/mc/ordinances/term_2011_2015/bl2011_47.htm.

8

See, e.g., Josie Garthwaite, Urban Garden? Check.

Now, Chickens, N.Y. Times, Feb. 7, 2012, available at http://green.blogs.nytimes.com/2012/02/07/ urban-garden-check-now-chickens/ (references Nashville); see also Julia Moskin, Straight from the Home Coop, N.Y. Times, Apr.3, 2012, available at http://www.nytimes.com/2012/04/04/dining/ hatching-your-own-batch-of-eggs.html?_r=1&page wanted=all%3Fsrc%3Dtp&smid=fb-share.

9

Jerry Kirk, Nashville doesn’t chicken out on hens, Tennessee Farmers Cooperative (Jan. 26, 2012), http://www.ourcoop.com/ourcoop08/headlines/ viewNews.aspx?artID=2593.

10

11 Michael Cass, Backyard chickens ordinance for only part is Nashville first, Tennessean, Jan. 19, 2012, available at www.tennessean.com (fee-based archives)(noting the “unprecedented decision, made by the narrowest of majorities”); J.R. Lind, Weekly Obsession: The 35 baronies of Davidson County, Nash. City Paper, Jan. 25, 2012, available at http:// nashvillecitypaper.com/content/city-news/weeklyobsession-35-baronies-davidson-county.

12

Lind, supra note 11.

“[O]nly Antioch-area councilmen Robert Duvall and Duane Dominy expressed hesitation about the proposal.” Joey Garrison, Urban chicken ordinance advances Metro Council, Nash. City Paper, Jan. 3, 2012, available at http://nashvillecitypaper.com/ content/city-news/urban-chicken-ordinanceadvances-metro-council.

13

14 Permitting process is described at the UCAN website, http://www.ucannashville.org/node/2.

15 Carrington Fox, Critics say Metro’s opt-out chicken policy is for the birds, Nash. Scene, Jan. 26, 2012, available at http://www.nashvillescene.com/ nashville/critics-say-metros-opt-out-chicken-policy-isfor-the-birds/Content?oid=2743109.

16

Id.

The breakdown of votes on the amendment is summarized at http://www.nashville.gov/mc/pdfs/ roll_call_votes/bl2011_47_amendment.pdf.

17

18

Fox, supra note 15.

Jamie Hollin, Consistency used to matter in shaping public policy, A View from the Dugout blog (Jan. 30, 2012), http://jamiehollin.com/2012/01/.

This article describes the unusual application of Councilmanic courtesy to the hen ordinance optout, noting that this courtesy is usually limited to zoning matters.

19

20 Eight council districts opted out: Districts 12, 20, and 28-33. The council members for these districts indicated their constituents were “overwhelmingly opposed.” Cass, supra note 11. Six of the shielded districts are in southeastern Davidson County; one is in Donelson; and the other is in Bellevue. A map showing the districts is available at the UCAN website, http://ucannashville.org/node/8. Interestingly, “[m]any members of the loyal opposition to the chicken bill were also some of the strongest advocates to save the fairgrounds.” Hollin, supra note 19.

21

Lind, supra note 11.

Sean Braisted, Urban chickens passes Council… sort of, Nashville 21 Blog (Jan. 17, 2012), http://seanbraisted.blogspot.com/2012/01/urban-chickenspasses-councilsort-of.html.

22

23

Fox, supra note 15.

24

Id.

25

Id.; see also Hollin, supra note 19.

26

Fox, supra note 15.

Id. It should be noted that while districts have never opted out of a Metro Ordinance before, the opt-out practice is frequently used when counties opt out of State law. See Lind, supra note 11.

27

28

Cass, supra note 11.

29

Id.

For example, one blogger raised the question of how the opt-out amendment could be applied to GLBT rights. Chris Sanders, Still more protected than chickens. Whew!, Sanders for Nashville blog (Jan. 19, 2012), http://sanders4nash.blogspot.com/2012/01/ still-more-protected-than-chickens-whew.html.

30

31

Cass, supra note 11.

See, e.g., Jessie Fetterling, How to Raise Chickens in Your Backyard, Mother Earth News, Nov. 6, 2008, available at http://www.motherearthnews.com/Sustainable-Farming/Raising-Backyard-Chickens.aspx; K.T. LaBadie, Residential Urban Chicken Keeping: An Examination of 25 Cities, Research Paper (May 7, 2008), available at http://66.147.242.185/~urbanch5/ wp-content/uploads/2012/02/Ordinance-researchpaper.pdf (Appendix A contains a chart analyzing ordinances; Nashville’s regulations fall in the middle of the road).

32

Backyard Chickens.com is a forum that includes one page where one can check the ordinances for 20 states at http://www.backyardchickens.com/ atype/3/Laws. Tennessee is not included.

41 Ordinance, supra note 8; see also Metro Public Health Dep’t, Domesticated Hen Permit Rules and Regulations, available at http://www.health.nashville.gov/WebDocs/ ChickenPermits/ChickenRULESFINAL.pdf.

42 Permit application available online at http://www. health.nashville.gov/WebDocs/ChickenPermits/ChickenAPPLICATION_AFFIDAVIT.pdf.

43

Harkey, supra note 37.

44

Id.

Numerous websites provide useful information, including Raising chickens at http://www.raising-chickens. org/ and Community Chickens at http://communitychickens.blogspot.com/. Andy Schneider, a well-known radio personality and author who calls himself “The Chicken Whisperer” has a radio show out of Atlanta.

Mr. Schneider came to at least one of the Metro hearings.

45

46 The local UCAN group holds monthly meetings; information is available on their website, http://ucannashville.org.

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33

34 Michael Schlueb, “Urban chickens” finding warm welcome in Orlando backyards, Orlando Sent., June 17, 2012, available at http://articles.orlandosentinel. com/2012-06-17/news/os-urban-chickens-orlando-20120617_1_chicken-enthusiasts-chickenswithin-city-limits-city-hall.

35 Anna Altic, Will Nashville’s proposed chicken ordinance affect property values?, Greener Living Nashville blog (Oct. 28, 2011), http://www.greenerlivingnashville.com/blog/smart-growth/get-involved/ will-nashvilles-proposed-chicken-ordinance-affectproperty-values.html. Denver is on this list, which is significant, as Denver is one of the cities Nashville officials study when determining how to shape Nashville for a vibrant future, particularly in regard to public transit.

36 Garrison (Nov. 6, 2011), supra note 2; see also Cole, supra note 1.

37 John Harkey, Urban Hens Cross the Road (to Legality), Harkey Research Blog (May 31, 2012), http:// harkeyresearch.blog.com/2012/05/31/urban-henscross-the-road-to-legality/.

38

Williams, supra note 5.

39

Harkey, supra note 37.

40

From the Harkey Research Blog: Below are the complaints filed during the eight months prior to the implementation of the law compared to the three months since the law began to be implemented, differentiated by whether the council district was allowed to opt out of the law or not.

Chicken complaints before (8 months) and after (3 months) law change 19 Council districts allowing hens Before:12 After: 6 6 Council districts not allowing hens Before: 6 After: 1 Three of the six complaints in districts allowing hens were combined chicken/ rooster complaints, and only one of the complaints involved “permitted” hens.

However, no permits were revoked and no fines levied. By comparison, during the follow-up time period there were a total of 26 complaints about roosters (including the three combined hen/rooster complaints contained in the table), and nine of those rooster complaints were in one council district that had opted out of the new law.

Harkey, supra note 37.

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23

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DOWNTOWN Prime, A++ office space with two conference rooms for lease in the 5th 3rd Bank Tower, Downtown Nashville. State of the art copier, scanner, fax, high speed internet access, digital phone system and receptionist all provided. Receptionist provided to answer your phone line and greet your clients. $1,750.00 per month. Contact: John Agee @ (615)256-5661 or (615)218-7131.

DOWNTOWN OFFICE SPACE AVAILABLE NEAR COURTHOUSE Downtown office space available on the first floor in the historic Barristers Building at 329 Union Street in Nashville. Four offices, library, conference room, kitchen, secretary space and reception area available. One block from courthouse, banks and restaurants. Call Jonathan Williams, 615-256-8880.

Midtown Midtown : 682 square feet with beautiful view of Centennial Park; $19.15 per square foot with annual increases; available as is or with build-out cost to be prorated over term of sublease; space is newly carpeted and newly painted, with small kitchen area; covered parking; available immediately. Please call 615-321-5659.

Midtown-1900 Church Executive office suites for lease in Midtown Nashville located at 1900 Church, Suite 300.

Free covered parking, conference rooms, break room, color copier, and receptionist to greet your clients. Administrative support and flexible terms available. For more information, please call Cheryl Gunn at (615) 983-6935. green hills Established Green Hills law association has office and adjoining secretarial space available for immediate occupancy. Free parking, excellent on-line and hard-cover Tennessee library, conference rooms, receptionist, and voice mail available. Call 383-3332.

Advertising: Contact Tina Ashford at tina.ashford@nashvillebar.org or (615) 242-9272

24

Nashville Bar Journal - July 2012

Half-Time Teaching Positions (Instructors in Law) Legal Writing Program Start Date: August 2012 | Applications accepted until position is filled Vanderbilt Law School seeks law school graduates with superb academic and employment records to teach a section of our Legal Writing course to LL.M. students starting in August 2012. For a full description of the position and program, go to: http://law.vanderbilt.edu/ recruitment/legalwriting/index.aspx A successful applicant will be appointed as an Instructor in Law on a renewable five-month contract from August through December. Compensation does not include benefits.

Applications accepted until July 16 or until positions are filled.

Send a resume, law school transcript, and short writing sample to: Tami K. Lefko, Associate Professor and Director of Legal Writing Vanderbilt University Law School 131 21st Avenue South Nashville, TN 37203-1181

By Email: tami.lefko@vanderbilt.edu Requirements include: • A J.D., a strong academic record, and useful employment experience; • Superb writing and editing skills; • Outstanding teaching potential; and • Eagerness and availability to work very closely with law students.

Desirable additional qualities include: • Eagerness to work with students who hold law degrees from other countries and are pursuing an LL.M. degree at Vanderbilt.

• International experience personally, academically, or professionally, such as international travel or foreign-language study.

Vanderbilt University is an equal opportunity, affirmative action employer

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