understanding of the warranties, guarantees and obligations as the product moves from one stop on the supply chain to the next. He said these obligations should be addressed by contract. He said that companies should have long-standing contracts examined to make sure they cover all the bases. In doing this kind of work, what he often finds is inconsistencies in the contract or among several contracts along a supply chain that cover the same transaction. He added that sometimes there are conflicts within a single contract. He acknowledged that most lawyers are going to find something they believe they can improve in any contract, but he indicated the review is still a worthwhile endeavor. In the past, there have been issues surrounding the voluntary nature of recalls and the ability to collect on an insurance policy for example, when no smoking gun is ever found. From Boone’s experience, that is no longer an issue. He said while most produce recalls are technically voluntary, in reality the company has no choice but to participate once pathogens are found, governmental agencies get involved and a company’s product is suspect. He did say there can be litigation issues concerning the scope of a recall and the damages incurred because of it. He indicated that an insurance company, for example, could argue against widespread damages if they believe a recall was much broader than it should have been. Whether a company should have recall insurance, he said is more of an economic decision than a legal one. A company has to determine for itself how much financial risk it wants to take. Frank Plescia, who is senior director of state government affairs for Bryan Cave, discussed the concept of gene editing
and new regulatory issues that could be arising in this arena. He said this is a new field and his law firm is currently working with Western Growers and other stakeholders discussing problem areas and what may emerge as this technology is adopted in agriculture. At this point, the USDA has ruled that gene editing does not produce a genetically modified organism (GMO) when it involves the manipulation of genes within a species. The GMO issue arises when genes from another species are inserted as part of a gene manipulation process. Plescia said Secretary of Agriculture Sonny Perdue has made it clear that when plant breeders use new techniques to develop new varieties there will not be additional regulations as long as traditional plant breeding techniques could have achieved the same results over time. He said the biggest issue surrounding gene editing at this time appears to be the need for an educational effort. The perception about GMO products is well known and food researchers everywhere are understandably apprehensive about using a breeding technique if it becomes associated with that concept. Plescia said public perception is key in the adoption of this gene editing process. He expects ongoing rule-making processes by U.S. federal agencies to affirm the previous policy statements by Secretary Perdue that the agencies will treat gene-edited products the same way they treat food products resulting from traditional plant breeding methods.
SEPTEMBER | OCTOBER 2019
Western Grower & Shipper | www.wga.com
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