II 

115TH CONGRESS 

1ST SESSION S. 741 

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 

MARCH 28, 2017 

Mr. LEE (for himself and Mr. BOOKER) 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. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Opportunities for Fair5 ness in Farming Act of 2017’’. 

6 SEC. 2. FINDINGS. 

7 Congress finds that— 

8 (1) the generic programs to promote and pro9 vide research and information for an agricultural 


SSpencer on DSK4SPTVN1PROD with BILLS
2 

•S 741 IS

1 commodity (commonly known as ‘‘checkoff pro2 grams’’) are intended to increase demand for all of 

3 that agricultural commodity and benefit all assessed 

4 producers of that agricultural commodity; 

5 (2) although the laws establishing checkoff pro6 grams broadly prohibit the use of funds in any man7 ner for the purpose of influencing legislation or gov8 ernment action, checkoff programs have repeatedly 

9 been shown to use funds to influence policy directly 

10 or by partnering with organizations that lobby; 

11 (3) the unlawful use of checkoff programs funds 

12 benefits some agricultural producers while harming 

13 many others; 

14 (4) to more effectively prevent Boards from 

15 using funds for unlawful purposes, strict separation 

16 of engagement between the Boards and policy enti17 ties is necessary; 

18 (5) conflicts of interest in the checkoff pro19 grams allow special interests to use checkoff pro20 gram funds for the benefit of some assessed agricul21 tural producers at the expense of many others; 

22 (6) prohibiting conflicts of interest in checkoff 

23 programs is necessary to ensure the proper and law24 ful operation of the checkoff programs; 


SSpencer on DSK4SPTVN1PROD with BILLS
3 

•S 741 IS

1 (7) checkoff programs are designed to promote 

2 agricultural commodities, not to damage other types 

3 of agricultural commodities through anticompetitive 

4 conduct or otherwise; 

5 (8) prohibiting anticompetitive and similar con6 duct is necessary to ensure proper and lawful oper7 ation of checkoff programs; 

8 (9) lack of transparency in checkoff programs 

9 enables abuses to occur and conceals abuses from 

10 being discovered; and 

11 (10) requiring transparency in the expenditure 

12 of checkoff program funds is necessary to prevent 

13 and uncover abuses in checkoff programs. 

14 SEC. 3. DEFINITIONS. 

15 In this Act: 

16 (1) BOARD.—The term ‘‘Board’’ means a 

17 board, committee, or similar entity established to 

18 carry out a checkoff program or an order issued by 

19 the Secretary under a checkoff program. 

20 (2) CHECKOFF PROGRAM.—The term ‘‘checkoff 

21 program’’ means a program to promote and provide 

22 research and information for a particular agricul23 tural commodity without reference to specific pro24 ducers or brands, including a program carried out 

25 under any of the following: 


SSpencer on DSK4SPTVN1PROD with BILLS
4 

•S 741 IS

1 (A) The Cotton Research and Promotion 

2 Act (7 U.S.C. 2101 et seq.). 

3 (B) The Potato Research and Promotion 

4 Act (7 U.S.C. 2611 et seq.). 

5 (C) The Egg Research and Consumer In6 formation Act (7 U.S.C. 2701 et seq.). 

7 (D) The Beef Research and Information 

8 Act (7 U.S.C. 2901 et seq.). 

9 (E) The Wheat and Wheat Foods Re10 search and Nutrition Education Act (7 U.S.C. 

11 3401 et seq.). 

12 (F) The Floral Research and Consumer 

13 Information Act (7 U.S.C. 4301 et seq.). 

14 (G) Subtitle B of the Dairy Production 

15 Stabilization Act of 1983 (7 U.S.C. 4501 et 

16 seq.). 

17 (H) The Honey Research, Promotion, and 

18 Consumer Information Act (7 U.S.C. 4601 et 

19 seq.). 

20 (I) The Pork Promotion, Research, and 

21 Consumer Information Act of 1985 (7 U.S.C. 

22 4801 et seq.). 

23 (J) The Watermelon Research and Pro24 motion Act (7 U.S.C. 4901 et seq.). 


SSpencer on DSK4SPTVN1PROD with BILLS
5 

•S 741 IS

1 (K) The Pecan Promotion and Research 

2 Act of 1990 (7 U.S.C. 6001 et seq.). 

3 (L) The Mushroom Promotion, Research, 

4 and Consumer Information Act of 1990 (7 

5 U.S.C. 6101 et seq.). 

6 (M) The Lime Research, Promotion, and 

7 Consumer Information Act of 1990 (7 U.S.C. 

8 6201 et seq.). 

9 (N) The Soybean Promotion, Research, 

10 and Consumer Information Act (7 U.S.C. 6301 

11 et seq.). 

12 (O) The Fluid Milk Promotion Act of 1990 

13 (7 U.S.C. 6401 et seq.). 

14 (P) The Fresh Cut Flowers and Fresh Cut 

15 Greens Promotion and Information Act of 1993 

16 (7 U.S.C. 6801 et seq.). 

17 (Q) The Sheep Promotion, Research, and 

18 Information Act of 1994 (7 U.S.C. 7101 et 

19 seq.). 

20 (R) Section 501 of the Federal Agriculture 

21 Improvement and Reform Act of 1996 (7 

22 U.S.C. 7401). 

23 (S) The Commodity Promotion, Research, 

24 and Information Act of 1996 (7 U.S.C. 7411 et 

25 seq.). 


SSpencer on DSK4SPTVN1PROD with BILLS
6 

•S 741 IS

1 (T) The Canola and Rapeseed Research, 

2 Promotion, and Consumer Information Act (7 

3 U.S.C. 7441 et seq.). 

4 (U) The National Kiwifruit Research, Pro5 motion, and Consumer Information Act (7 

6 U.S.C. 7461 et seq.). 

7 (V) The Popcorn Promotion, Research, 

8 and Consumer Information Act (7 U.S.C. 7481 

9 et seq.). 

10 (W) The Hass Avocado Promotion, Re11 search, and Information Act of 2000 (7 U.S.C. 

12 7801 et seq.). 

13 (3) CONFLICT OF INTEREST.—The term ‘‘con14 flict of interest’’ means a direct or indirect financial 

15 interest in a person or entity that performs a service 

16 for, or enters into a contract or agreement with, a 

17 Board for anything of economic value. 

18 (4) SECRETARY.—The term ‘‘Secretary’’ means 

19 the Secretary of Agriculture. 

20 SEC. 4. REQUIREMENTS OF CHECKOFF PROGRAMS. 

21 (a) PROHIBITIONS.— 

22 (1) IN GENERAL.—A Board shall not enter into 

23 any contract or agreement to carry out checkoff pro24 gram activities with a party that engages in activiVerDate Sep 11 2014 01:13 Mar 30, 2017 Jkt 069200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S741.IS S741

SSpencer on DSK4SPTVN1PROD with BILLS
7 

•S 741 IS

1 ties for the purpose of influencing any government 

2 policy or action that relates to agriculture. 

3 (2) CONFLICT OF INTEREST.—A Board shall 

4 not engage in, and shall prohibit the employees and 

5 agents of the Board, acting in their official capacity, 

6 from engaging in, any act that may involve a conflict 

7 of interest. 

8 (3) OTHER PROHIBITIONS.—A Board shall not 

9 engage in, and shall prohibit the employees and 

10 agents of the Board, acting in their official capacity, 

11 from engaging in— 

12 (A) any anticompetitive activity; 

13 (B) any unfair or deceptive act or practice; 

14 or 

15 (C) any act that may be disparaging to, or 

16 in any way negatively portray, another agricul17 tural commodity or product. 

18 (b) AUTHORITY TO ENTER INTO CONTRACTS.—Not19 withstanding any other provision of law, on approval of 

20 the Secretary, a Board may enter directly into contracts 

21 and agreements to carry out generic promotion, research, 

22 or other activities authorized by law. 

23 (c) PRODUCTION OF RECORDS.— 

24 (1) IN GENERAL.—Each contract or agreement 

25 of a checkoff program shall provide that the entity 


SSpencer on DSK4SPTVN1PROD with BILLS
8 

•S 741 IS

1 that enters into the contract or agreement shall 

2 produce to the Board accurate records that account 

3 for all funds received under the contract or agree4 ment, including any goods or services provided or 

5 costs incurred in connection with the contract or 

6 agreement. 

7 (2) MAINTENANCE OF RECORDS.—A Board 

8 shall maintain any records received under paragraph 

9 (1). 

10 (d) PUBLICATION OF BUDGETS AND DISBURSE11 MENTS.— 

12 (1) IN GENERAL.—The Board shall publish and 

13 make available for public inspection all budgets and 

14 disbursements of funds entrusted to the Board that 

15 are approved by the Secretary, immediately on ap16 proval by the Secretary. 

17 (2) REQUIRED DISCLOSURES.—In carrying out 

18 paragraph (1), the Board shall disclose— 

19 (A) the amount of the disbursement; 

20 (B) the purpose of the disbursement, in21 cluding the activities to be funded by the dis22 bursement; 

23 (C) the identity of the recipient of the dis24 bursement; and 


SSpencer on DSK4SPTVN1PROD with BILLS
9 

•S 741 IS

1 (D) the identity of any other parties that 

2 may receive the disbursed funds, including any 

3 contracts or subcontractors of the recipient of 

4 the disbursement. 

5 (e) AUDITS.— 

6 (1) PERIODIC AUDITS BY INSPECTOR GENERAL

7 OF USDA.— 

8 (A) IN GENERAL.—Not later than 2 years 

9 after the date of enactment of this Act, and not 

10 less frequently than every 5 years thereafter, 

11 the Inspector General of the Department of Ag12 riculture shall conduct an audit to determine 

13 the compliance of each checkoff program with 

14 this section during the period of time covered 

15 by the audit. 

16 (B) REVIEW OF RECORDS.—An audit con17 ducted under subparagraph (A) shall include a 

18 review of any records produced to the Board 

19 under subsection (c)(1). 

20 (C) SUBMISSION OF REPORTS.—On com21 pletion of each audit under subparagraph (A), 

22 the Inspector General of the Department of Ag23 riculture shall— 

24 (i) prepare a report describing the 

25 audit; and 


SSpencer on DSK4SPTVN1PROD with BILLS
10 

•S 741 IS

1 (ii) submit the report described in 

2 clause (i) to— 

3 (I) the appropriate committees of 

4 Congress, including the Subcommittee 

5 on Antitrust, Competition Policy and 

6 Consumer Rights of the Committee on 

7 the Judiciary of the Senate; and 

8 (II) the Comptroller General of 

9 the United States. 

10 (2) AUDIT BY COMPTROLLER GENERAL.— 

11 (A) IN GENERAL.—Not earlier than 3 

12 years, and not later than 5 years, after the date 

13 of enactment of this Act, the Comptroller Gen14 eral of the United States shall— 

15 (i) conduct an audit to assess— 

16 (I) the status of actions taken for 

17 each checkoff program to ensure com18 pliance with this section; and 

19 (II) the extent to which actions 

20 described in subclause (I) have im21 proved the integrity of a checkoff pro22 gram; and 

23 (ii) prepare a report describing the 

24 audit conducted under clause (i), including 

25 any recommendations for— 


SSpencer on DSK4SPTVN1PROD with BILLS
11 

•S 741 IS

1 (I) strengthening the effect of ac2 tions described in clause (i)(I); and 

3 (II) improving Federal legislation 

4 relating to checkoff programs. 

5 (B) CONSIDERATION OF INSPECTOR GEN6 ERAL REPORTS.—The Comptroller General of 

7 the United States shall consider reports de8 scribed in paragraph (1)(C) in preparing any 

9 recommendations in the report under subpara10 graph (A)(ii). 

11 SEC. 5. SEVERABILITY. 

12 If any provision of this Act or the application of such 

13 provision to any person or circumstance is held to be un14 constitutional, the remainder of this Act, and the applica15 tion of the provision to any other person or circumstance, 

16 shall not be affected. 

Æ 


SSpencer on DSK4SPTVN1PROD with BILLS