[Congressional Bills 117th Congress]
[From the U.S. Government Publishing Office]
[S. 2861 Introduced in Senate (IS)]

<DOC>






117th CONGRESS
  1st Session
                                S. 2861

 To prohibit certain practices relating to certain commodity promotion 
 programs, to require greater transparency by those programs, and for 
                            other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                           September 27, 2021

   Mr. Lee (for himself, Mr. Paul, Mr. Booker, Ms. Warren, and Mrs. 
  Gillibrand) introduced the following bill; which was read twice and 
   referred to the Committee on Agriculture, Nutrition, and Forestry

_______________________________________________________________________

                                 A BILL


 
 To prohibit certain practices relating to certain commodity promotion 
 programs, to require greater transparency by those programs, and for 
                            other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Opportunities for Fairness in 
Farming Act of 2021''.

SEC. 2. FINDINGS.

    Congress finds that--
            (1) the generic programs to promote and provide research 
        and information for an agricultural commodity (commonly known 
        as ``checkoff programs'') are intended to increase demand for 
        all of that agricultural commodity and benefit all assessed 
        producers of that agricultural commodity;
            (2) although the laws establishing checkoff programs 
        broadly prohibit the use of funds in any manner for the purpose 
        of influencing legislation or government action, checkoff 
        programs have repeatedly been shown to use funds to influence 
        policy directly or by partnering with organizations that lobby;
            (3) the unlawful use of checkoff programs funds benefits 
        some agricultural producers while harming many others;
            (4) to more effectively prevent Boards from using funds for 
        unlawful purposes, strict separation of engagement between the 
        Boards and policy entities is necessary;
            (5) conflicts of interest in the checkoff programs allow 
        special interests to use checkoff program funds for the benefit 
        of some assessed agricultural producers at the expense of many 
        others;
            (6) prohibiting conflicts of interest in checkoff programs 
        is necessary to ensure the proper and lawful operation of the 
        checkoff programs;
            (7) checkoff programs are designed to promote agricultural 
        commodities, not to damage other types of agricultural 
        commodities through anticompetitive conduct or otherwise;
            (8) prohibiting anticompetitive and similar conduct is 
        necessary to ensure proper and lawful operation of checkoff 
        programs;
            (9) lack of transparency in checkoff programs enables 
        abuses to occur and conceals abuses from being discovered; and
            (10) requiring transparency in the expenditure of checkoff 
        program funds is necessary to prevent and uncover abuses in 
        checkoff programs.

SEC. 3. DEFINITIONS.

    In this Act:
            (1) Board.--The term ``Board'' means a board, committee, or 
        similar entity established to carry out a checkoff program or 
        an order issued by the Secretary under a checkoff program.
            (2) Checkoff program.--The term ``checkoff program'' means 
        a program to promote and provide research and information for a 
        particular agricultural commodity without reference to specific 
        producers or brands, including a program carried out under any 
        of the following:
                    (A) The Cotton Research and Promotion Act (7 U.S.C. 
                2101 et seq.).
                    (B) The Potato Research and Promotion Act (7 U.S.C. 
                2611 et seq.).
                    (C) The Egg Research and Consumer Information Act 
                (7 U.S.C. 2701 et seq.).
                    (D) The Beef Research and Information Act (7 U.S.C. 
                2901 et seq.).
                    (E) The Wheat and Wheat Foods Research and 
                Nutrition Education Act (7 U.S.C. 3401 et seq.).
                    (F) The Floral Research and Consumer Information 
                Act (7 U.S.C. 4301 et seq.).
                    (G) Subtitle B of the Dairy Production 
                Stabilization Act of 1983 (7 U.S.C. 4501 et seq.).
                    (H) The Honey Research, Promotion, and Consumer 
                Information Act (7 U.S.C. 4601 et seq.).
                    (I) The Pork Promotion, Research, and Consumer 
                Information Act of 1985 (7 U.S.C. 4801 et seq.).
                    (J) The Watermelon Research and Promotion Act (7 
                U.S.C. 4901 et seq.).
                    (K) The Pecan Promotion and Research Act of 1990 (7 
                U.S.C. 6001 et seq.).
                    (L) The Mushroom Promotion, Research, and Consumer 
                Information Act of 1990 (7 U.S.C. 6101 et seq.).
                    (M) The Lime Research, Promotion, and Consumer 
                Information Act of 1990 (7 U.S.C. 6201 et seq.).
                    (N) The Soybean Promotion, Research, and Consumer 
                Information Act (7 U.S.C. 6301 et seq.).
                    (O) The Fluid Milk Promotion Act of 1990 (7 U.S.C. 
                6401 et seq.).
                    (P) The Fresh Cut Flowers and Fresh Cut Greens 
                Promotion and Information Act of 1993 (7 U.S.C. 6801 et 
                seq.).
                    (Q) The Sheep Promotion, Research, and Information 
                Act of 1994 (7 U.S.C. 7101 et seq.).
                    (R) Section 501 of the Federal Agriculture 
                Improvement and Reform Act of 1996 (7 U.S.C. 7401).
                    (S) The Commodity Promotion, Research, and 
                Information Act of 1996 (7 U.S.C. 7411 et seq.).
                    (T) The Canola and Rapeseed Research, Promotion, 
                and Consumer Information Act (7 U.S.C. 7441 et seq.).
                    (U) The National Kiwifruit Research, Promotion, and 
                Consumer Information Act (7 U.S.C. 7461 et seq.).
                    (V) The Popcorn Promotion, Research, and Consumer 
                Information Act (7 U.S.C. 7481 et seq.).
                    (W) The Hass Avocado Promotion, Research, and 
                Information Act of 2000 (7 U.S.C. 7801 et seq.).
            (3) Conflict of interest.--The term ``conflict of 
        interest'' means a direct or indirect financial interest in a 
        person or entity that performs a service for, or enters into a 
        contract or agreement with, a Board for anything of economic 
        value.
            (4) Secretary.--The term ``Secretary'' means the Secretary 
        of Agriculture.

SEC. 4. REQUIREMENTS OF CHECKOFF PROGRAMS.

    (a) Prohibitions.--
            (1) In general.--Except as provided in paragraph (4), a 
        Board shall not enter into any contract or agreement to carry 
        out checkoff program activities with a party that engages in 
        activities for the purpose of influencing any government policy 
        or action that relates to agriculture.
            (2) Conflict of interest.--A Board shall not engage in, and 
        shall prohibit the employees and agents of the Board, acting in 
        their official capacity, from engaging in, any act that may 
        involve a conflict of interest.
            (3) Other prohibitions.--A Board shall not engage in, and 
        shall prohibit the employees and agents of the Board, acting in 
        their official capacity, from engaging in--
                    (A) any anticompetitive activity;
                    (B) any unfair or deceptive act or practice; or
                    (C) any act that may be disparaging to, or in any 
                way negatively portray, another agricultural commodity 
                or product.
            (4) Exception for certain contracts with institutions of 
        higher education.--Paragraph (1) shall not apply to a contract 
        or agreement entered into between a Board and an institution of 
        higher education for the purpose of research, extension, and 
        education.
    (b) Authority To Enter Into Contracts.--Notwithstanding any other 
provision of law, on approval of the Secretary, a Board may enter 
directly into contracts and agreements to carry out generic promotion, 
research, or other activities authorized by law.
    (c) Production of Records.--
            (1) In general.--Each contract or agreement of a checkoff 
        program shall provide that the entity that enters into the 
        contract or agreement shall produce to the Board accurate 
        records that account for all funds received under the contract 
        or agreement, including any goods or services provided or costs 
        incurred in connection with the contract or agreement.
            (2) Maintenance of records.--A Board shall maintain any 
        records received under paragraph (1).
    (d) Publication of Budgets and Disbursements.--
            (1) In general.--The Board shall publish and make available 
        for public inspection all budgets and disbursements of funds 
        entrusted to the Board that are approved by the Secretary, 
        immediately on approval by the Secretary.
            (2) Required disclosures.--In carrying out paragraph (1), 
        the Board shall disclose--
                    (A) the amount of the disbursement;
                    (B) the purpose of the disbursement, including the 
                activities to be funded by the disbursement;
                    (C) the identity of the recipient of the 
                disbursement; and
                    (D) the identity of any other parties that may 
                receive the disbursed funds, including any contracts or 
                subcontractors of the recipient of the disbursement.
    (e) Audits.--
            (1) Periodic audits by inspector general of usda.--
                    (A) In general.--Not later than 2 years after the 
                date of enactment of this Act, and not less frequently 
                than every 5 years thereafter, the Inspector General of 
                the Department of Agriculture shall conduct an audit to 
                determine the compliance of each checkoff program with 
                this section during the period of time covered by the 
                audit.
                    (B) Review of records.--An audit conducted under 
                subparagraph (A) shall include a review of any records 
                produced to the Board under subsection (c)(1).
                    (C) Submission of reports.--On completion of each 
                audit under subparagraph (A), the Inspector General of 
                the Department of Agriculture shall--
                            (i) prepare a report describing the audit; 
                        and
                            (ii) submit the report described in clause 
                        (i) to--
                                    (I) the appropriate committees of 
                                Congress, including the Subcommittee on 
                                Antitrust, Competition Policy and 
                                Consumer Rights of the Committee on the 
                                Judiciary of the Senate; and
                                    (II) the Comptroller General of the 
                                United States.
            (2) Audit by comptroller general.--
                    (A) In general.--Not earlier than 3 years, and not 
                later than 5 years, after the date of enactment of this 
                Act, the Comptroller General of the United States 
                shall--
                            (i) conduct an audit to assess--
                                    (I) the status of actions taken for 
                                each checkoff program to ensure 
                                compliance with this section; and
                                    (II) the extent to which actions 
                                described in subclause (I) have 
                                improved the integrity of a checkoff 
                                program; and
                            (ii) prepare a report describing the audit 
                        conducted under clause (i), including any 
                        recommendations for--
                                    (I) strengthening the effect of 
                                actions described in clause (i)(I); and
                                    (II) improving Federal legislation 
                                relating to checkoff programs.
                    (B) Consideration of inspector general reports.--
                The Comptroller General of the United States shall 
                consider reports described in paragraph (1)(C) in 
                preparing any recommendations in the report under 
                subparagraph (A)(ii).

SEC. 5. SEVERABILITY.

    If any provision of this Act or the application of such provision 
to any person or circumstance is held to be unconstitutional, the 
remainder of this Act, and the application of the provision to any 
other person or circumstance, shall not be affected.
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