Thursday, October 11, 2018

Agricultural Law Weekly Review—October 11, 2018


Written by: M. Sean High—Staff Attorney
                 
The following information is an update of recent local, state, national, and international legal developments relevant to agriculture:

Food Safety: FDA Commissioner Addresses On-Farm Readiness Review Program
On October 4, 2018, U.S. Food and Drug Administration (FDA) Commissioner Scott Gottlieb and Deputy Commissioner for Foods and Veterinary Medicine Stephen Ostroff published an opinion in Food Safety News addressing FDA’s new On-Farm Readiness Review (OFRR) program.  According to the commissioners, the primary purpose of the Food Safety Modernization Act’s (FSMA) Produce Safety Rule is to implement measures that prevent produce contamination.  As a result, Gottlieb and Ostroff announced the availability of OFRR which is designed to encourage communication between farmers and regulators regarding Produce Safety Rule requirements.  Created in collaboration with the National Association of State Departments of Agriculture, OFRR allows for on farm reviews to help in preparation of future FSMA mandated inspections.

Organic Agriculture: Court to Hear Challenge to Withdraw of Organic Livestock Rule
On October 5, 2018, Feedstuffs reported that the U.S. District Court for the District of Columbia will hear a challenge brought against the U.S. Department of Agriculture (USDA) regarding the agency’s failure to implement new organic livestock standards.  On March 13, 2018, USDA withdrew the Organic Livestock & Poultry Practices (OLPP) final rule which was scheduled to go into effect on May 14, 2018.  The new requirements would have covered livestock handling and transport for slaughter, avian living conditions, livestock care and production practices, and mammalian living conditions.  Brought by the Organic Trade Association, the suit alleges that USDA improperly delayed implementation of OLPP and violated the Organic Foods Production Act by not consulting with the National Organic Standards Board.    

Food Safety: FDA Prohibits Use of Six Synthetic Food Additives
On October 5, 2018, the U.S. Food and Drug Administration (FDA) announced that the agency will no longer allow the use of six synthetic food additives after lab tests showed the additives caused cancer in lab animals.  According to FDA, the six food additives are synthetically-derived benzophenone, ethyl acrylate, eugenyl methyl ether (methyl eugenol), myrcene, pulegone, and pyridine.  FDA stated that the food additives do not currently pose a risk to the public health because food manufacturers only use the additives in small doses.  Nevertheless, because the lab tests revealed cancer at high doses, use of the additives will no longer be permitted.

Food Labeling: Class Action against Chipotle’s “Non-GMO” Claims May Continue
On September 29, 2018, the U.S. District Court for the Northern District of California certified a class action suit brought against Chipotle Mexican Grill, Inc. (Martin Schneider, et al., v. Chipotle Mexican Grill, Inc,  Case No. 16-cv-02200-HSG).  The plaintiffs bringing the action alleged that Chipotle violated California, Maryland, and New York consumer protection laws by claiming that the restaurant's products were "non-GMO" and "GMO-free." The plaintiffs stated that Chipotle’s advertising and labeling claims were misleading because the beef, chicken, pork, poultry, and dairy products served in the restaurant were from animals that had been fed genetically modified feed.  As a result of the court’s decision, the class action may move forward with those individuals in California, Maryland, and New York who purchased Chipotle's food products containing meat and/or dairy ingredients during the designated Class Period.  

From National Ag Law Experts:
Syngenta corn seed settlement claims due October 12, Peggy Kirk Hall, Ohio Agricultural Law Blog – Agricultural Law & Taxation – Ohio State University Extension (October 5, 2018)

Disqualified from SNAP? SAM I Am!, Stewart D. Fried, Olsson Frank Weeda Terman Matz PC (October 10, 2018)

Taxpayers Forced to Repay Advance Premium Tax Credit, Despite Sympathetic Circumstances, Kristine A. Tidgren, The Ag Docket – Iowa State University Center for Agricultural Law and Taxation (October 5, 2018)

Pennsylvania Legislation:
Act 77 (HB 1917): Legislation regarding the training and oversight of humane society police officers (Signed into law by the Governor, October 2, 2018)

HB 2648: Legislation regulating consumer fireworks (Referred to House Agriculture and Rural Affairs Committee, October 1, 2018)

Pennsylvania Actions and Notices:
Pennsylvania Department of Agriculture

AgLaw HotLinks:

Stay Informed:
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Thursday, October 4, 2018

Agricultural Law Weekly Review - October 4, 2018


Written by:
Deanna Smith - Research Assistant
Jackie Schweichler - Education Programs Coordinator

The following information is an update of recent local, state, national, and international legal developments relevant to agriculture.

International Trade: United States-Mexico-Canada Agreement replaces NAFTA
On September 30, 2018, the United States and Canada came to an agreement to replace the North American Free Trade Agreement (NAFTA) with the United States-Mexico-Canada Agreement.  The new agreement, which Mexico agreed to in August of this year, includes greater access to Canada’s milk market, provisions on rules of origin of automotive goods, and provisions on digital trade and intellectual property.  USMCA will utilize the same dispute resolution system as was used under NAFTA.  In a Joint Statement from United States Trade Representative Robert Lighthizer and Canadian Foreign Affairs Minister Chrystia Freeland, both the U.S. and Canada claim the agreement “will strengthen the middle class, and create good, well-paying jobs and new opportunities for the nearly half billion people who call North America home.”  The agreement will come into effect after it is approved by the U.S. Congress as well as legislatures in Canada and Mexico.  For more information, the Office of the U.S. Trade Representative has published several fact sheets on the USMCA agreement.

Right to Farm: Pennsylvania Supreme Court Denies Appeal of Neighbors in Hog Farm Nuisance Lawsuit
On September 18, 2018, the Supreme Court of Pennsylvania denied a Petition for Allowance of Appeal filed by landowners involved in a lawsuit against owners of a concentrated animal feeding operation (Burlingame v. Dagostin, No. 296 MAL 2018).  Will-O-Bett Farm originally operated as a dairy farm, then as a beef farm, and eventually was converted to a swine operation in 2011.  A few years later, the farm began spreading liquid swine manure on its fields, and several neighboring landowners filed suit against the farm alleging that the resulting odor constituted a nuisance.  Will-O-Bett Farm filed for summary judgment, arguing that it was protected from suit under Pennsylvania’s Right to Farm Act (RTFA) (3 P.S. §§ 951-957).  The trial court agreed, finding that the farm’s application of liquid swine manure had been addressed in an approved nutrient management plan.  The Pennsylvania Superior Court affirmed the trial court’s order, and now the Pennsylvania Supreme Court has declined further appeal.

Invasive Species:  APHIS Proposes Removal of Emerald Ash Borer Quarantine Regulations
On September 19, 2018, the Animal and Plant Health Inspection Service (APHIS)  published a proposed rule to remove the domestic quarantine regulations on the Emerald Ash Borer.  The proposed rule is entitled Removal of Emerald Ash Borer Domestic Quarantine Regulations and will effectively end all regulatory activities, including but not limited to, issuing permits, conducting site reviews, and coordinating investigations.  The remaining resources will be directed towards the management and ultimate containment of the pest.  The Emerald Ash Borer is a green wood-boring beetle native to northeast-Asia that causes destruction to ash trees. They were discovered in the U.S. in 2002 and the quarantine regulations were first imposed in 2003.

Pesticides: FDA Releases Report on Pesticide Residue for FY 2016
On October 1, 2018, the Food and Drug Administration (FDA) released the Pesticide Residue Monitoring Program Fiscal Year 2016 Pesticide Report.  FDA is responsible for establishing “tolerances” on the amount of chemical pesticide residue that is safe for human consumption.  In FY 2016, FDA found that over 99% of domestic and 90% of imported human foods were compliant.  In addition, in 52.9% of domestic and 50.7% of imported foods, FDA found no chemical residue.  FDA also inspected corn, soybean, milk, and egg samples for glyphosate, glufosinate, and other herbicides.  FDA found no samples with violative levels, but found trace amounts of glyphosate in 63.1% of corn samples and 67% of soybean samples.

From National Ag Law Experts:
Ag & Food Law Update, The National Agricultural Law Center (October 2, 2018)

Tiffany Dowell Lashmet, Texas Appellate Court Analyzes Fence Law Cases (Part I), Texas A&M AgriLife Extension (September 28, 2018).

Ben Lilliston, Washington State's Proposed Carbon Fee: What It Could Mean for Agriculture, Institute for Agriculture & Trade Policy (October 3, 2018).

Paul Goeringer, Maryland Court Upholds the 2014 CAFO Permit for Complying with EPA’s Requirements, Maryland Risk Management Education Blog (October 2, 2018).

Pennsylvania Legislation
Senate Resolution 421: Reported as committed (October 2, 2018) resolution urges U.S. Congress to remove industrial hemp from Schedule 1 Controlled Substance List

Senate Resolution 418: Reported as committed (October 2, 2018) urges Congress to include milk in its Senior Farmers’ Market Nutrition Program

SB 1171: laid on the table (October 1, 2018) will create Farm Animal Advisory Board to give animal farmers greater input into environmental regulations

Follow us on Twitter at PSU Ag & Shale Law (@AgShaleLaw) to receive AgLaw HotLinks

Stay Informed:
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Read our monthly Agricultural Law Brief newsletter     
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Visit The Ag & Food Law Blog for a comprehensive summary of daily judicial, legislative, and regulatory developments in agriculture and food

Thursday, September 27, 2018

Agricultural Law Weekly Review - September 27, 2018


Written by:
Jackie Schweichler - Education Programs Coordinator
Deanna Smith - Research Assistant

The following information is an update of recent local, state, national, and international legal developments relevant to agriculture.

Dairy Policy: Pennsylvania Provides $5 Million in Funding for Dairy Investment Program
On September 18, 2018, Pennsylvania Governor Tom Wolf announced $5 million in grant funding under the Pennsylvania Dairy Investment Program.  The grant money will be provided to applicants for technology, products, and best practices research.  Funding will also be provided for research on domestic and international marketing and diversifying operation and revenue streams.  Lastly, the funds will go to research on transitioning to organic production and value-added dairy production.  The purpose of the new funding is to support the dairy industry in modernizing or expanding business to overcome existing challenges and strengthen dairy operations.

Dairy Policy: Pennsylvania Approves $0.75 Over-Order Premium for Milk
On September 18, 2018, the Pennsylvania Milk Marketing Board (Board) approved an order establishing an over-order premium of $0.75 per hundredweight for milk.  The order applies to the Class 1 price for milk sold, produced, and processed in Pennsylvania.  Milk dealers will be required to show the amount of the over-order premium being paid on their monthly statements to producers and cooperatives.  The Board heard testimony from the Pennsylvania Association of Dairy Cooperatives, the Pennsylvania Farm Bureau, the Pennsylvania Grange, and the Progressive Agriculture Organization.  The order will be effective October 1, 2018, through March 31, 2019.

National Agriculture Policy: USDA Announces $102.7M Investment in Grant Programs for Local Agriculture Market Expansion
On Tuesday, September 18, 2018, Under Secretary of Agriculture for Marketing and Regulatory Programs, Greg Ibach announced that the U.S. Department of Agriculture (USDA) will be investing $102.7 million in funding for projects “intended to expand markets for local food production and specialty crops.”  The funds will be administered by USDA’s Agricultural Marketing Service (AMS) and are allocated as follows: $72.15M to state departments of agriculture in all 50 states as well as D.C. and five U.S. territories through the Specialty Crop Block Grant Program for specialty crops, $13.35M to 49 producer-to-consumer marketed projects through the Farmer’s Market Promotion Program, $13.45M to 44 projects supporting local and regional food businesses through the Local Food Promotion Program, $2.67M to six projects for the domestic maple syrup industry through the Acer Access and Development Program, and $1.1M to nine projects that explore new market opportunities for U.S. food and agriculture products through the Federal State Marketing Improvement Program.  For more information on grant recipients, visit the Agricultural Marketing Service’s website.

Pesticides: Bayer’s Monsanto Fights $289M California Jury Award for Glyphosate Exposure
On Tuesday, September 18, 2018, Bayer AG unit Monsanto motioned for a judgment notwithstanding the verdict to strike a $289M jury award from San Francisco’s Superior Court of California, as well as moved for a new trial.  The jury verdict in question came on August 10, 2018, after plaintiff, Dewayne Johnson, argued that years of exposure to Monsanto’s Roundup caused him to be diagnosed with non-Hodgkin lymphoma. (Dewayne Johnson v. Monstanto Co., case no. CGC-16-550128).  For more information on this case, see the Ag Law Weekly Review from August 16, 2018.  In its motion to the court, Monsanto alleges that the scientific evidence in the case “falls far short” of the “sufficient and substantial” evidence requirements in California. Shortly after the trial, Monsanto’s Vice President, Scott Partridge, released a statement questioning opposing counsel’s conduct, which he says “distorted the facts and used baseless and egregious emotional appeals to inflame the jury.”  A hearing on the motions has been set for October 10, 2018.

Local Food: California Signs Law Permitting Microenterprise Home Kitchen Operations
On September 18, 2018, California Governor Jerry Brown signed into law legislation which will permit home kitchen businesses to sell their food products.  AB 626 redefines “food facility” to include microenterprise home kitchen operations with no more than $50,000 in gross annual sales.  Microenterprise home kitchen operations must not include catering, and the operator must sell directly to consumers and not through any retailer or wholesaler.   The law also limits the home business to no more than 30 individual meals per day and no more than 60 meals per week.

Biofuels: EPA Announces Update to Renewable Fuel Standard Program Website
On September 20, 2018, the U.S. Environmental Protection Agency announced the completion of an update to its Renewable Fuel Standard (RFS) program website.  The purpose of the update is to improve implementation of the RFS program and to provide greater certainty and clarity to stakeholders.  The new information will include data regarding the number of small refinery exemption petitions, the weekly average price of Renewable Identification Numbers (RINs) traded, and the weekly volume of RINs traded.  The website updates also include system updates and new interactive features.

Pesticides: Department of Justice Will Appeal Chlorpyrifos Ban
On September 24, 2018, the U.S. Department of Agriculture (USDA) issued a press release regarding the Department of Justice’s decision to request a rehearing regarding the chlorpyrifos ban.  Chlorpyrifos is a pesticide used to control pests on a wide variety of crops grown in the United States.  Earlier this month, the U.S. Court of Appeals for the Ninth Circuit vacated the Environmental Protection Agency’s (EPA) order maintaining a tolerance for chlorpyrifos.  The judge found that there was significant uncertainty regarding possible health effects for chlorpyrifos and ordered EPA to revoke all tolerances and cancel registrations.  According to USDA, the court’s decision was based on an “incorrect assessment of the scientific evidence.”

Biosecurity: White House Announces New Federal Biodefense Strategy
On September 18, 2018, the White House released the Presidential Memorandum on the Support for National Biodefense.  The Memorandum establishes the Cabinet-level Biodefense Steering Committee which will be led by the Secretary of Health and Human Services.  The committee will monitor and coordinate the implementation of the National Biodefense Strategy.  The purpose of the new strategy is to improve understanding and response to biological threats, which can include disease and biological attacks.  According to a statement by the White House, the strategy will address biological threats that are naturally occurring, deliberate, and accidental.

Food Labeling: Children’s Food and Beverage Advertising Initiative Announces New Plan to Improve Children’s Health
On September 20, 2018, the Children’s Food and Beverage Advertising Initiative (CFBAI) announced a voluntary plan to improve child-directed food advertising.  CFBAI’s plan is intended to combat childhood obesity and will update food categories for added sugars, sodium, and whole grains.  CFBAI intends for food categories to be more transparent and descriptive.  Some of the organizations in CFBAI include Burger King Corporation, Campbell Soup Company, The Coca-Cola Company, The Hershey Company, McDonald’s USA, and Kellogg Company.  CFBAI intends to implement this plan by January 1, 2020, to coincide with new food labeling regulations from the Food and Drug Administration (FDA).

From National Ag Law Experts:
Tiffany Dowell Lashmet, Texas Beef Checkoff Facing Legal Challenge, Texas A&M AgriLife Extension (September 24, 2018).

Dr. Steve Suppan, USDA Reorganization 2.0: Cut Researchers, Cut Research, Institute for Agriculture & Trade Policy (September 17, 2018).

Pennsylvania Legislation
Senate Resolution 418: Referred to Agriculture and Rural Affairs (September 21, 2018) Adding Milk as an Eligible Product in the Senior Farmers Market Nutrition Program

Senate Resolution 421: Referred to Agriculture and Rural Affairs (September 25, 2018) resolution urges U.S. Congress to remove industrial hemp from Schedule 1 Controlled Substance List

Pennsylvania Notices
Public hearing: Senate Agriculture and Rural Affairs meeting on invasive and native species (October 2, 2018)

Follow us on Twitter at PSU Ag & Shale Law (@AgShaleLaw) to receive AgLaw HotLinks

Stay Informed:
Listen to our weekly Agricultural Law Podcast
Read our monthly Agricultural Law Brief newsletter     
Follow us on Twitter at PSU Ag & Shale Law (@AgShaleLaw) to receive daily AgLaw HotLinks
Connect with us on Facebook to view our weekly CASL Ledger detailing Center publications and activities
Visit The Ag & Food Law Blog for a comprehensive summary of daily judicial, legislative, and regulatory developments in agriculture and food

Thursday, September 20, 2018

Agricultural Law Weekly Review - September 20, 2018


Written by:
Jackie Schweichler - Education Programs Coordinator

The following information is an update of recent local, state, national, and international legal developments relevant to agriculture.

International Trade: USDA Releases Report Addressing International Trade Program Payments
On August 31, 2018, the U.S. Department of Agriculture (USDA) released a report explaining the methodology used to calculate payment rates to agricultural producers.  In July 2018, USDA announced compensation programs for producers and farmers who have experienced losses as a result of trade complications with China.  These programs include the Market Facilitation Program (MFP) and Food Purchase and Distribution Program (FPDP).  Under MFP, the Farm Service Agency will provide payments to corn, cotton, dairy, sorghum, soybean, hog, and wheat producers.  Under FPDP, the Agricultural Marketing Service will purchase up to $1.2 billion in commodities for distribution to nutrition assistance programs.  To see how USDA calculated costs and payments, see the report Trade Damage Estimation for the Market Facilitation Program and Food Purchase and Distribution Program.

Antimicrobial Use: FDA Reveals Five Year Plan for Antimicrobial Stewardship
On September 14, 2018, the U.S. Food & Drug Administration (FDA) Center for Veterinary Medicine (CVM) released its five year plan, Supporting Antimicrobial Stewardship in Veterinary Settings.  In the initial announcement of this plan on July 31, 2018, FDA explained that overuse of antimicrobial drugs can promote development of antimicrobial-resistant bacteria.  The plan involves pre-approval review where the drug sponsor must show that the drug is safe and effective for treating animals. In addition, for drugs used in food-producing animals, CVM will evaluate the safety of any drug residue that may remain in the food. The plan also includes post-approval surveillance and monitoring, where CVM will review event reports, monitor resistance trends, and update animal drug product labeling.

WOTUS: Court Enjoins WOTUS Rule in Iowa
On September 18, 2018, the U.S. District Court for North Dakota issued a court order enjoining the Waters of the United States rule (WOTUS) in Iowa (State of North Dakota, et al, v. EPA, et al, Case No. 3:15-cv-59). The WOTUS rule has now been suspended in more than half of the fifty states.  On August 16, 2018, a federal district court in South Carolina enjoined the WOTUS rule in twenty-four states. A month later, on September 12, 2018, the U.S. District Court for the Southern District of Texas enjoined WOTUS in Texas, Louisiana, and Mississippi (State of Texas, et al. v. EPA, et al, 3:15-CV-00162).  

Food Safety: Court Allows Lawsuit to Move Forward Regarding Generally Recognized as Safe Rule
On September 12, 2108, the U.S. District Court for the Southern District of New York issued an opinion allowing a lawsuit to go forward with respect to the final rule Substances Generally Recognized as Safe (GRAS rule)  (21 CFR Parts 20, 25, 170, 184, 186, and 570).  Several food safety organizations filed suit against the U.S. Food and Drug Administration (FDA) alleging that the GRAS rule is an abuse of discretion, violates fundamental principles of separation of powers, and exceeds FDA’s authority. Under the GRAS rule, manufacturers independently determine whether a chemical additive is generally recognized as safe.  As such, FDA approval is optional and GRAS substances may be added to food without FDA review or approval.  In the most recent order, the court declared that the plaintiffs plausibly allege harm and, therefore, have standing to bring the case. (Center for Food Safety, et al, v. Department of Health and Human Services, et al., 2018 WL 4356730)  

Water Quality: USDA Announces Funding for Rural Water Infrastructure Projects
On September 17, 2018, the U.S. Department of Agriculture (USDA) announced $392 million in funding for rural water and wastewater infrastructure.  The money will be used to support 120 infrastructure projects through the Water and Waste Disposal Loan and Grant program.  State and local governmental entities and private nonprofits can apply for long-term loans or grants.  Funding may be used for infrastructure costs relating to drinking water, sewer, solid waste, stormwater, and drainage.  

Water Quality: Penn State Publishes Research on Conservation Dairy Farming
On September 13, 2018, Penn State University researchers published a study the impacts of conservation dairy farming.  The study examined a conservation dairy farming system that “produces the majority of the dairy feed and forage crops, with no-till, continuous diversified plant cover, and manure injection.”  The researchers showed that conservation dairy farming has the potential for soil fertility balance as well as decreased emissions of nitrous oxide.  The researchers also found conservation dairy farming could improve overall water quality and reduce sediment concentrations in streams.  The study, Conservation Dairy Farming Impact on Water Quality in a Karst Watershed in Northeastern US, was published in ScienceDirect.

From National Ag Law Experts:
Ag & Food Law Update, The National Agricultural Law Center (September 18, 2018)

Sharon Anglin Treat, More Than 300 State Legislators Urge Removing Corporate-Friendly ISDS Provisions from NAFTA, Institute for Agriculture & Trade Policy (September 14, 2018).

Pennsylvania Regulations 
HB 2647 referred to Environmental Resources and Energy (September 17, 2018) bill would allow construction sites on small acreage to apply for a waiver of the National Pollutant Elimination System Permit.

HB 2648 referred to Game and Fisheries (September 17, 2018) bill would remove restrictions on thermal and night vision equipment for hunting

Pennsylvania Notices
Public hearing: Milk Marketing Board to conduct hearing on September 26, 2018 (to solicit comments for changes to Milk Marketing Law)
Public hearing: Senate Agriculture and Rural Affairs meeting on invasive and native species (October 2, 2018)

Follow us on Twitter at PSU Ag & Shale Law (@AgShaleLaw) to receive AgLaw HotLinks

Stay Informed:
Listen to our weekly Agricultural Law Podcast
Read our monthly Agricultural Law Brief newsletter     
Follow us on Twitter at PSU Ag & Shale Law (@AgShaleLaw) to receive daily AgLaw HotLinks
Connect with us on Facebook to view our weekly CASL Ledger detailing Center publications and activities
Visit The Ag & Food Law Blog for a comprehensive summary of daily judicial, legislative, and regulatory developments in agriculture and food

Thursday, September 13, 2018

Agricultural Law Weekly Review - September 13, 2018


Written by:
Jackie Schweichler - Education Programs Coordinator

The following information is an update of recent local, state, national, and international legal developments relevant to agriculture.

Biotechnology: Proposed Rule on Bioengineered Foods Continues to Move Forward
On August 31, 2018, the U.S. Department of Agriculture (USDA) sent a proposed rule on bioengineered foods to the U.S. Office of Information and Regulatory Affairs (OIRA).  The proposed rule, National Bioengineered Food Disclosure Standard, was published May 4, 2018.  The proposed rule will provide a mandatory uniform national standard of disclosure for bioengineered food products.  The proposed rule suggests three ways in which manufacturers could disclose that their products contain bioengineered ingredients.  On product packaging, manufacturers could use text disclosures, symbols, or an electric/digital link disclosure that could be scanned with a smartphone.  OIRA will have 90 days to review the rule, and if approved, the rule will be published in the Federal Register.

Food Labeling: FDA Announces Preparation of Final Guidance to Nutrition Facts Label
On September 6, 2018, the U.S. Food & Drug Administration (FDA) announced that it is preparing the final guidance for the Nutrition Facts label on packaged foods.  In the initial draft guidance, manufacturers would have been required to categorize maple syrup and honey as “added sugars” on the nutrition label.  Under the draft guidance, manufacturers could use a “†” to lead the reader to a statement with additional information.  FDA received over 3,000 comments in response to the draft guidance. In light of these comments, FDA will not use the “added sugars” declaration for pure, single-ingredient “packaged as such” products.  FDA states, however, that it will still use the required percent daily value for honey and maple syrup.  FDA expects the final guidance to be issued by early 2019.

Food Labeling: USDA and FDA Will Hold Public Meeting on Animal Cell Cultured Food Products
On September 10, 2018, the U.S. Department of Agriculture and the U.S. Food and Drug Administration announced a joint public meeting on the use of cell culture technology to create animal food products.  The meeting will focus on the labeling, oversight, and potential problems with animal cell cultured food products. These products, often referred to as “clean meats,” are created by adding nutrients in vitro to animal cells which grow into animal muscle tissue.  The U.S. Cattlemen’s Association has petitioned USDA to prohibit these products from being labeled or marketed as “beef” or “meat.”  USDA received over 6,000 comments on this petition.  The two-day meeting will be held on October 23-24, 2018.

 Pesticides: Brazilian Judge Overturns Glyphosate Ban
On September 3, 2018, an injunction banning glyphosate from Brazil was overturned, according to a Reuters article.  Last month, on August 6th, a Brazilian judge issued a ruling prohibiting the registration of any new products containing glyphosate, abamectin, and thriam.  That judge also suspended current registrations for those chemicals in order for the government to complete an evaluation.  Monsanto extensively markets Roundup Ready glyphosate-resistant soybeans within Brazil.  According to Reuters, in the most recent court order, the judge stated that the prohibition of these chemicals was unjustified.

National Agricultural Policy: USDA NAD Determines Farm is Entitled to Compensation for Damages from Bald Eagles
On August 21, 2018, the National Appeals Division (NAD) of the Farm Service Administration (FSA) determined that White Oak Pastures is entitled to compensation for damages from bald eagle attacks. White Oak Pastures claimed that 80 bald eagles roosted on their property and destroyed approximately 30 percent of their organic chickens.  The farm sought compensation from FSA under the Livestock Indemnity Program but was denied.  The program provides compensation to producers who experience above average livestock deaths as a result of animals introduced into the wild by the federal government.  White Oak Pastures appealed the decision to NAD which stated in its ruling that FSA acted improperly in denying the farm’s request for compensation.

From National Ag Law Experts:
Kristine Tidgren, What's Up with WOTUS?, Iowa State University (September 12, 2018).

Amie Alexander, Court Rules on Grocery Manufacturer’s Association Actions Regarding GMO Initiative, The National Agricultural Law Center (September 10, 2018).

Josh Wise, Uprooted Episode 44: The Affordable Clean Energy Rule, Institute for Agriculture & Trade Policy (September 12, 2018).

Pennsylvania Regulations
HB 1483 referred to State Government (September 7, 2018) (the bill would establish Forest & Wildlife Advisory Council to implement proven, scientific, wildlife management techniques to increase deer, grouse, & other populations for hunting tourism & recreation)

Pennsylvania Notices
Meeting set: Conservation and Natural Resources Advisory Council on September 18, 2018.
Meeting cancelled: Environmental Quality Board will not meet on September 18, 2018. Next meeting is scheduled for October 16, 2018
Public hearing: Milk Marketing Board to conduct hearing on September 26, 2018 (to solicit comments for changes to Milk Marketing Law)
Public hearing: Senate Agriculture and Rural Affairs meeting on invasive and native species (October 2, 2018)

Follow us on Twitter at PSU Ag & Shale Law (@AgShaleLaw) to receive AgLaw HotLinks

Stay Informed:
Listen to our weekly Agricultural Law Podcast
Read our monthly Agricultural Law Brief newsletter     
Follow us on Twitter at PSU Ag & Shale Law (@AgShaleLaw) to receive daily AgLaw HotLinks
Connect with us on Facebook to view our weekly CASL Ledger detailing Center publications and activities
Visit The Ag & Food Law Blog for a comprehensive summary of daily judicial, legislative, and regulatory developments in agriculture and food

Thursday, September 6, 2018

Agricultural Law Weekly Review - September 6, 2018


Written by:
Jackie Schweichler - Education Programs Coordinator

The following information is an update of recent local, state, national, and international legal developments relevant to agriculture.

Food Labeling: Missouri Releases Guidance on Changes to Meat Advertising Law for Plant-Based Products
On August 30, 2018, the Missouri Department of Agriculture released guidance on the new changes to the Missouri Meat Advertising Law. The new legislation was part of an omnibus agriculture bill that was signed in June 2018. According to the law, advertising “or misrepresenting a product as meat that is not derived from harvested production livestock or poultry,” constitutes a misleading or deceptive practice. The guidance states that products must include the qualifier such as “plant-based,” “veggie,” “lab-grown,” “lab-created” before or after the product name.  In addition, plant-based meat products must include a statement on the package that says the product is “made from plants” or “grown in a lab.” These new rules will not be enforced until January 1, 2019.

Right to Farm Laws: Court Lifts Gag Order and Delays Trial in Hog Farm Lawsuit
On August 31, 2018, the U.S. District Court for the Southern Division in North Carolina lifted a gag order in the ongoing nuisance lawsuits brought against Murphy-Brown, LLC (McKiver, et al., v. Murphy-Brown, et al., 2018 WL 4183201).  Murphy-Brown is a subsidiary of Smithfield Foods, the world’s largest pork processor and hog producer. The plaintiffs include 26 neighboring landowners who complain of odors and other problems associated with living next to a hog farm.  The gag order was issued upon concerns that trial publicity was affecting the integrity of the judicial process.  The court is lifting the gag order in light of the delay of the next trial, which was originally scheduled for September 4, 2018, but has now been moved to November 13, 2018.

National Agricultural Policy: USDA Announces Website for Rural Broadband Pilot Program
On August 29, 2018, the U.S. Department of Agriculture (USDA) announced a new website which provides information on the pilot program to bring high-speed internet access to rural America.  USDA currently offers $700 million in programs to provide broadband to rural communities.  Under the Consolidated Appropriations Act of 2018, USDA received an additional $600 million to expand broadband infrastructure.  These programs are intended to help industries including, manufacturing, agricultural production, mining, and forestry.  According to the USDA website, eighty percent of 24 million rural American households do not have access to affordable, reliable high-speed internet.

Animal Welfare: Animal Welfare Groups Sue USDA for Failure to Disclose Records
On August 23, 2018, several animal welfare groups filed suit in the U.S. District Court for the Western District of New York to compel the U.S. Department of Agriculture (USDA) to release records regarding the humane treatment of animals for slaughter (Animal Welfare Institute, et al., v. U.S. Department of Agriculture, 1:18-cv-00937).  According to the plaintiffs, under the Freedom of Information Act (FOIA) they have routinely requested Noncompliance Records and Memoranda of Interviews in order to monitor USDA and keep the public informed.  The documents are prepared under the Humane Methods of Slaughter Act and the Poultry Products Inspection Act.  The plaintiffs have submitted over 135 requests for these documents since 2009 and the agency routinely fails to respond within the 20-day time limit established by FOIA. The plaintiffs state that they often wait months before receiving these records and they are substantially hindered in their education and advocacy efforts when relying on untimely information.

Antitrust: Proposed Bill Would Impose Moratorium on Agricultural Business Mergers
On August 28, 2018, U.S. Senator Cory Booker introduced SB 3404 which will impose a moratorium on large agricultural business mergers.  The bill will affect mergers and acquisitions for food and beverage manufacturers, grocery retail, and large agribusiness.  According to a statement by Senator Booker, three companies now control the top two-thirds of the seed market and almost 70 percent of the agricultural chemical markets.  Senator Booker also expressed concerns about the mergers resulting in “monopolistic corporate practices” that create lower wages for workers.   The bill is intended to slow acquisitions and mergers in order so that Congress has time to pass antitrust laws in order to “protect farmers, workers, consumers, and rural communities.”

From National Ag Law Experts:
Kristine Tidgren, USDA Issues Details of New Payment Program, Iowa State University (August 31, 2018).

Tiffany Dowell Lashmet, USDA - 2018 Land Values Summary, Texas A&M AgriLife Extension (September 4, 2018).

Karen Hansen-Kuhn and Oliver Moore, #AgTech Takeback - Debate by ARC2020 and IATP, Institute for Agriculture & Trade Policy (September 5, 2018).

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Visit The Ag & Food Law Blog for a comprehensive summary of daily judicial, legislative, and regulatory developments in agriculture and food

Thursday, August 30, 2018

Agricultural Law Weekly Review - August 30, 2018


Written by:
Jackie Schweichler - Education Programs Coordinator

The following information is an update of recent local, state, national, and international legal developments relevant to agriculture.

Agricultural Policy: Pennsylvania Governor Announces Plan for Agriculture Industry
On August 15, 2018, at the Penn State College of Agricultural Sciences’ annual Ag Progress Days, Pennsylvania Governor Tom Wolf announced a six-point plan to strengthen the Commonwealth’s agriculture industry.  The agricultural improvement plan includes rebuilding and expanding infrastructure, strengthening the state’s workforce, and removing regulatory burdens. The plan also includes creating business ownership succession plans and making Pennsylvania the nation’s leading organic state.  Part of this plan includes raising public awareness among agricultural producers in order to meet the increasing demand for organic foods.

International Trade: USDA Announces Details on Programs to Help Farmers Affected By Trade Tariffs
On August 27, 2018, the U.S. Department of Agriculture (USDA) provided details on programs that will help farmers negatively affected by the current international trade environment.  According to USDA, the market disruption was caused by China’s retaliatory tariffs imposed on agricultural products.  USDA responded by authorizing $12 billion in programs to compensate farmers for their losses.  The Market Facilitation Program will provide payments to corn, cotton, dairy, hog, sorghum, and wheat producers. The Food Purchase and Distribution Program will use $1.2 billion to purchase commodities for distribution through nutrition assistance programs. In addition, the Agricultural Trade Promotion Program will provide $200 million to help develop foreign markets for agricultural products.

WOTUS: Several States File Suit Requesting Stay of WOTUS Rule
On August 22, 2018, several states filed suit in the U.S. District Court for the Southern District of Texas against the U.S. Environmental Protection Agency (EPA) to request a nationwide stay of the Waters of the United States or WOTUS rule (State of Texas, et al., v. U.S. Environmental Protection Agency, et al., No. 3:15-cv-0162).  In a recent court order from August 16, 2018, a federal district court in South Carolina suspended the WOTUS rule for twenty-four states.  The plaintiff states – Louisiana, Mississippi, and Texas – argue that this inconsistency across state lines will cause irreparable harm.

Organic Agriculture: California Court Allows Lawsuit to Go Forward Against USDA for Withdrawal of Organic Regulations
On August 21, 2018, the U.S. District Court for the Northern District of California allowed the legal challenge brought by the Center for Environmental Health (Center) to go forward against the U.S. Department of Agriculture (USDA) for the withdrawal of organic regulations (Center for Environmental Health, et al., v. Sonny Perdue, et al., 18-cv-01763-RS).  USDA published the  Organic Livestock and Poultry Practices rule in January 2017 to address livestock handling, transport for slaughter, avian living conditions, and other organic production practices.  In March 2018, however, USDA withdrew the rule after determining that the rule would exceed USDA authority. In light of these actions, Center filed this complaint alleging that withdrawal of the rule violates the Organic Foods Production Act

Food Labeling: Plant-Based Meat Companies Sue Missouri for Labeling Law
On August 27, 2018, the several organizations filed a complaint against the state of Missouri in the U.S. District Court for the Western District of Missouri challenging a law which prohibits companies from using the word “meat” on labels for plant-based products (Turtle Island Foods, et al., v. Missouri, No. 18-cv-4173).  The new Missouri law, originally Senate Bill 627, was part of the omnibus agriculture bill signed in June 2018.  It went into effect on August 28, 2018.  According to the law, advertising “or misrepresenting a product as meat that is not derived from harvested production livestock or poultry,” constitutes a misleading or deceptive practice.  The plaintiffs, who include a plant-based meat corporation, argue that using meat terminology with qualifying and descriptive language accurately conveys to consumers the ingredients in their products. According to the plaintiffs, the law does nothing to protect consumers from potentially misleading information, and there is no evidence that consumers are confused about ingredients in plant-based meats.  The plaintiffs allege that this law will only impede market competition.

Food Policy: Court Rules in Favor of Public Food Sharing as Expressive Conduct
On August 22, 2018, the U.S. Court of Appeals for the Eleventh Circuit held that an organization’s food sharing events qualify as a form of protected expression (Fort Lauderdale Food Not Bombs, et al., v. City of Fort Lauderdale, No. 16-16808).  The organization, Fort Lauderdale Food Not Bombs (FLFNB), is a non-profit entity that hosts weekly meals to share food at a public park in the city.  The City of Fort Lauderdale enacted an ordinance in 2014 that restricted public food sharing, which led to FLFNB filing this suit.  In the most recent order, the court held that FLFNB’s food sharing conveys a message and, therefore, is a form of speech protected by the First Amendment.

Food Policy: FDA Extends Comment Period on 2018 Strategic Policy Plan
On August 22, 2018, the Food and Drug Administration (FDA) announced it will be extending the comment period for a public meeting regarding FDA’s 2018 strategic policy plan.  FDA presented the plan in January 2018 and held a public meeting in June 2018.  The plan prioritizes reducing the burden of addiction, improving access to healthcare, providing better information to consumers regarding health issues, and increasing efficient risk management.  After receiving several requests, FDA decided to extend the comment period to give interested persons more time to participate. FDA will now be accepting comment until October 11, 2018. 

From National Ag Law Experts:
Tiffany Dowell Lashmet, Court Upholds Finding of Easement by Estoppel, Texas A&M AgriLife Extension (August 27, 2018).

Ben Lilliston, Will the Farm Bill Deliver for the Climate?, Institute for Agriculture & Trade Policy (August 29, 2018).

Pennsylvania Notices
Department of Agriculture: Agricultural Research Project Contractors, soliciting grant applications for various projects (August 25, 2018)

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Stay Informed:
Listen to our weekly Agricultural Law Podcast
Read our monthly Agricultural Law Brief newsletter     
Follow us on Twitter at PSU Ag & Shale Law (@AgShaleLaw) to receive daily AgLaw HotLinks
Connect with us on Facebook to view our weekly CASL Ledger detailing Center publications and activities
Visit The Ag & Food Law Blog for a comprehensive summary of daily judicial, legislative, and regulatory developments in agriculture and food