II 

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. 

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 2021’’. 

6 SEC. 2. FINDINGS. 

7 Congress finds that— 

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


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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; 


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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: 


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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.). 


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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.). 


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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.—Except as provided in para23 graph (4), a Board shall not enter into any contract 

24 or agreement to carry out checkoff program activi25 ties with a party that engages in activities for the 


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1 purpose of influencing any government policy or ac2 tion 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 (4) EXCEPTION FOR CERTAIN CONTRACTS WITH

19 INSTITUTIONS OF HIGHER EDUCATION.—Paragraph 

20 (1) shall not apply to a contract or agreement en21 tered into between a Board and an institution of 

22 higher education for the purpose of research, exten23 sion, and education. 

24 (b) AUTHORITY TO ENTER INTO CONTRACTS.—Not25 withstanding any other provision of law, on approval of 


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1 the Secretary, a Board may enter directly into contracts 

2 and agreements to carry out generic promotion, research, 

3 or other activities authorized by law. 

4 (c) PRODUCTION OF RECORDS.— 

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

6 of a checkoff program shall provide that the entity 

7 that enters into the contract or agreement shall 

8 produce to the Board accurate records that account 

9 for all funds received under the contract or agree10 ment, including any goods or services provided or 

11 costs incurred in connection with the contract or 

12 agreement. 

13 (2) MAINTENANCE OF RECORDS.—A Board 

14 shall maintain any records received under paragraph 

15 (1). 

16 (d) PUBLICATION OF BUDGETS AND DISBURSE17 MENTS.— 

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

19 make available for public inspection all budgets and 

20 disbursements of funds entrusted to the Board that 

21 are approved by the Secretary, immediately on ap22 proval by the Secretary. 

23 (2) REQUIRED DISCLOSURES.—In carrying out 

24 paragraph (1), the Board shall disclose— 

25 (A) the amount of the disbursement; 


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1 (B) the purpose of the disbursement, in2 cluding the activities to be funded by the dis3 bursement; 

4 (C) the identity of the recipient of the dis5 bursement; and 

6 (D) the identity of any other parties that 

7 may receive the disbursed funds, including any 

8 contracts or subcontractors of the recipient of 

9 the disbursement. 

10 (e) AUDITS.— 

11 (1) PERIODIC AUDITS BY INSPECTOR GENERAL

12 OF USDA.— 

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

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

15 less frequently than every 5 years thereafter, 

16 the Inspector General of the Department of Ag17 riculture shall conduct an audit to determine 

18 the compliance of each checkoff program with 

19 this section during the period of time covered 

20 by the audit. 

21 (B) REVIEW OF RECORDS.—An audit con22 ducted under subparagraph (A) shall include a 

23 review of any records produced to the Board 

24 under subsection (c)(1). 


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1 (C) SUBMISSION OF REPORTS.—On com2 pletion of each audit under subparagraph (A), 

3 the Inspector General of the Department of Ag4 riculture shall— 

5 (i) prepare a report describing the 

6 audit; and 

7 (ii) submit the report described in 

8 clause (i) to— 

9 (I) the appropriate committees of 

10 Congress, including the Subcommittee 

11 on Antitrust, Competition Policy and 

12 Consumer Rights of the Committee on 

13 the Judiciary of the Senate; and 

14 (II) the Comptroller General of 

15 the United States. 

16 (2) AUDIT BY COMPTROLLER GENERAL.— 

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

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

19 of enactment of this Act, the Comptroller Gen20 eral of the United States shall— 

21 (i) conduct an audit to assess— 

22 (I) the status of actions taken for 

23 each checkoff program to ensure com24 pliance with this section; and 


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1 (II) the extent to which actions 

2 described in subclause (I) have im3 proved the integrity of a checkoff pro4 gram; and 

5 (ii) prepare a report describing the 

6 audit conducted under clause (i), including 

7 any recommendations for— 

8 (I) strengthening the effect of ac9 tions described in clause (i)(I); and 

10 (II) improving Federal legislation 

11 relating to checkoff programs. 

12 (B) CONSIDERATION OF INSPECTOR GEN13 ERAL REPORTS.—The Comptroller General of 

14 the United States shall consider reports de15 scribed in paragraph (1)(C) in preparing any 

16 recommendations in the report under subpara17 graph (A)(ii). 

18 SEC. 5. SEVERABILITY. 

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

20 provision to any person or circumstance is held to be un21 constitutional, the remainder of this Act, and the applica22 tion of the provision to any other person or circumstance, 

23 shall not be affected. 

Æ 


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