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  In the initial draft guidance, manufacturers would have been required to categorize maple syrup and honey as “added sugars” on the nutrition label.  Under the draft guidance, manufacturers could use a “†” to lead the reader to a statement with additional information.  FDA received over 3,000 comments in response to the draft guidance.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).

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, 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)

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, August 23, 2018

Agricultural Law Weekly Review - August 23, 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.

Biosecurity: USDA Issues Final Rule on HPAI Indemnity
On August 15, 2018, the U.S. Department of Agriculture (USDA) Animal and Plant Health Inspection Service (APHIS) published a final rule on the conditions for indemnity payments under highly pathogenic avian influenza (HPAI) claims.  The final rule provides a formula allowing split payments between egg and poultry owners based on the proportion of the production cycle completed.  The rule also requires large egg and poultry operations to have a biosecurity plan in order to receive the indemnity payment.

Dairy Policy: USDA Announces Plan to Purchase Milk for Food Assistance Program
On August 14, 2018, the U.S. Department of Agriculture (USDA) announced its plan to purchase fluid milk for distribution to The Emergency Food Assistance Program.  USDA will be purchasing whole, 2 percent, 1 percent, and skim milk in half gallons.  The purpose of the program is to encourage the continued domestic consumption of milk.  Potential contractors for this program must meet USDA Agricultural Marketing Service standards

Raw Milk: Massachusetts Governor Vetoes Raw Milk Provision in Environmental Bill
On August 13, 2018, Massachusetts Governor Charlie Baker vetoed a raw milk provision in an environmental bond bill (Bill H.4835).  The provision would have allowed dairy farmers to sell unpasteurized, or “raw” milk at farm stands. In addition, the provision would have permitted distribution of raw milk through community supported agriculture systems.  Governor Baker expressed concern over potential foodborne illness caused by the consumption of raw milk.  The governor recommended rules and regulations that could include sanitary and operational standards for production, handling, labelling, and sale of raw milk.

Water Quality: Federal District Court Overturns Delay of WOTUS
On August 16, 2018, the U.S. District Court for the District of South Carolina, Charleston Division issued a ruling overturning the delay of the Waters of the United States (WOTUS) rule (South Carolina Coastal Conservation League, et al. v. U.S. Environmental Protection Agency, et al., 2018 WL 2933811).  In light of several U.S. Supreme Court decisions, the Environmental Protection Agency (EPA) issued a final rule redefining WOTUS in 2015.  The 2015 final rule prompted a series of lawsuits which led to a 2017 Presidential Executive Order directing EPA to review and then rescind or revise WOTUS.  On February 8, 2018, EPA published a new final rule delaying enforcement of the 2015 final rule.  The current court order suspends this rule, stating that by not allowing meaningful opportunity for public comment, EPA’s 2015 final rule was arbitrary and capricious.

Food Labeling: USDA Announces Extension of Comment Period for Meat Products Labeling Petition
On August 17, 2018, the U.S. Department of Agriculture (USDA) Food Safety and Inspection Service (FSIS) announced it has extended the comment period for a petition to clarify meat products labeling. The petition requests that FSIS clarify the “Product of the U.S.A.” label used for meat products. In its petition, the Organization for Competitive Markets (OCM), states that current policy allows imported foreign meat to use the “Product of the U.S.A.” label if it passes through a USDA inspection plant.  OCM argues that this process allows an unfair market advantage that is deceptive to consumers and harms U.S. producers.  FSIS has extended the comment period to September 17, 2018.

Food Policy: California Senate Approves Bill to Limit Sale of Sugary Beverages to Children
On August 21, 2018, the California Senate passed SB 1192, a bill that would limit the sale of sugar sweetened beverages to children. If signed by the governor, the bill would restrict what restaurants could include as the default beverage in a children’s meal. Restaurants would be able to sell children’s meals with only water, sparkling water, unflavored milk, or a nondairy milk alternative.   Customers still would be able to request and purchase any sugar sweetened beverage with their meal. According to the bill text, the obesity rate in California has increased by 250 percent and obese children are twice as likely to become obese adults. The legislature also stated that the adverse health consequences of obesity has an economic cost of approximately $147 billion annually in medical spending in the United States.  Violations of the law would be punishable by a fine of not less than $25 or more than $1,000, or imprisonment not exceeding 6 months.

Agricultural Labor: District Court Rules in Favor of Livestock Herders
On August 17, 2018, the U.S. Court of Appeals for the District of Columbia Circuit held that the Hispanic Affairs Project (Project) had filed a timely claim in its case regarding H-2A visas (Hispanic Affairs Project v. Secretary of Labor, et al., No 17-5202).  The Project an organization that advocates for livestock herders. The Project alleges that the 364-day certification period for H-2A visas is unrealistic. H-2A visas allow nonimmigrants to enter the United States to perform seasonal or temporary work. According to Project, these visas are routinely extended for livestock herders, when that work does not qualify as temporary.   The court agreed that the Project had “plausibly shown that the agency’s de facto policy of authorizing long-term visas is arbitrary capricious, and contrary to law, in violation of the APA and the Immigration and Nationality Act.”

From National Ag Law Experts:
Tiffany Dowell Lashmet, What Documentation Should I have for Hunters on My Property?, Texas A&M AgriLife Extension (August 20, 2018).

Josh Wise, podcast: Gaming the Grass Fed Beef Market, Institute for Agriculture & Trade Policy (August 20, 2018)

Pennsylvania Regulations

Pennsylvania Notices
State Conservation Commission: Action on Odor Management Plans for Concentrated Animal Operations (August 18, 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, August 16, 2018

Agricultural Law Weekly Review - August 16, 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.

Pesticides: Court of Appeals Orders EPA to Revoke Tolerance for Chlorpyrifos
On August 9, 2018, the United States Court of Appeals for the Ninth Circuit vacated the Environmental Protection Agency’s (EPA) order maintaining a tolerance for the pesticide chlorpyrifos.  EPA’s 2017 order found that there was “significant uncertainty” regarding the health effects of chlorpyrifos.  According to the court, this conflicts with requirements under the Federal Food, Drug, and Cosmetic Act (FDCA).  With regard to a pesticide tolerance, FDCA uses the term ‘safe’ when the EPA Administrator “has determined that there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue” (21 U.S.C. § 346a(b)(2)(A)(ii)). The Appeals Court remanded the case to EPA and directed them to revoke all tolerances and cancel registrations for chlorpyrifos.

Dairy Policy: Department of Agriculture Announces New Dairy Insurance Plan
On August 8, 2018, the U.S. Department of Agriculture Risk Management Agency announced a new revenue protection insurance plan for dairy producers. The insurance plan will insure dairy producers against unexpected declines in quarterly milk sales. The plan will cover 70 to 95 percent of revenue and will insure the difference between the final revenue guarantee and actual milk revenue. Producers will be able to sign up for new program on October 9, 2018, and coverage will begin in the first quarter of 2019.

Pesticide: California Jury Awards $289 Million to Plaintiff for Injuries Resulting from Glyphosate Exposure
On August 10, 2018, a jury in the Superior Court of the State of California for San Francisco produced a verdict awarding $289 million to a plaintiff in a lawsuit against Monsanto.  The plaintiff, Dewayne Johnson, claimed that the herbicide glyphosate in Monsanto’s Roundup caused him to have cancer. The plaintiff worked as a groundskeeper for a school district and applied Roundup to the school grounds. The plaintiff had direct contact with the herbicide and was diagnosed with non-Hodgkin lymphoma at age 42.

Raw Milk: Comments Requested for Proposed Regulation of Raw Milk Cheese in Pennsylvania
On August 10, 2018, the Pennsylvania Secretary of Agriculture Russell Redding, published a press release requesting comment on a proposed regulation for raw milk cheese.  The purpose of the regulation is to align Pennsylvania’s standards for raw milk with federal standards. Current Pennsylvania regulations only allow 9 standardized cheeses to be produced from raw milk, whereas 57 types of cheese may be produced under the Food and Drug Administration regulations. In Pennsylvania, there are 90 manufacturers who produce cheese from raw milk and the Department of Agriculture expects this number to grow if the regulation is approved.  The proposed regulation was published on August 4th and the comment period will close September 4, 2018.

From National Ag Law Experts:
Tiffany Dowell Lashmet, 2018 NASS US and State Cash Rent Survey Results Published, Texas A&M AgriLife Extension (August 15, 2018).

Dr. Steve Suppan, Regulate New GE Techniques?, Institute for Agriculture & Trade Policy (August 8, 2018)

Kristine A. Tidgren, Highlights from 199A Proposed Regulations, The Ag Docket (August 13, 2018).

Pennsylvania Notices
Senate Bill 1227, provides for resident fishing licenses, referred to Game and Fisheries (August 9, 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, August 9, 2018

Agricultural Law Weekly Review - August 9, 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.

Right to Farm Laws: Third Jury Verdict Issued Against Smithfield Farms Subsidiary
On August 3, 2018, a jury in the U.S. District Court for the Eastern District of North Carolina issued a verdict of  $473.5 million against Murphy-Brown, LLC. The lawsuit was brought by neighbors of a swine operation located in Pender County. According to the News&Observer, the plaintiffs filed this nuisance lawsuit because of the noise, odor, flies, and other disruptions relating to the nearby swine operation. The damages awarded to each of the six plaintiffs ranged from 3 to 5 million dollars in addition to 75 million dollars in punitive damages for each individual. Recent legislation amending North Carolina’s right to farm law imposed limitations upon damages that may be awarded in nuisance lawsuits against agricultural operations. As a result, the amount of damages in this jury verdict may be reduced. This is the third verdict this year issued against Murphy-Brown, a subsidiary of Smithfield Foods. To read more about these recent verdicts, please see our Agricultural Law Brief for May 2018 and the Agricultural Law Weekly Review - July 5, 2018.

Food Labeling: Center for Food Safety Files Suit Against USDA for Failure to Establish GMO Labeling Regulations
On August 1, 2018, the Center for Food Safety and the Center for Environmental Health filed a complaint in the U.S. District Court for the Northern District of California against the U.S. Department of Agriculture (USDA). The complaint alleges that USDA has failed to meet required deadlines under the 2016 Federal Bioengineered Food Disclosure Standards Act (the Act). According to the complaint, the Act established basic bioengineered food disclosure standards and required USDA to issue regulations to fully implement the Act. The mandatory deadline for the promulgation of these regulations was July 29, 2018. The plaintiffs state that the failure to implement the new regulations constitutes unlawful withholding of information, and they request that the court order USDA to finalize the regulations.  (Center for Food Safety v. Perdue, Case No. 18-4633)

Food Labeling: Lawsuit Filed Against Nestle for “No GMO” Label
On July 27, 2018, a proposed class action lawsuit was filed in the U.S. District Court for the Central District of California against Nestle USA, Inc. The complaint alleges that Nestle has misled consumers about its products that have a “No GMO Ingredients” label. According to the plaintiffs, Nestle did not receive independent third party approval for their products and instead created their own label. The plaintiffs claim that the label was created to mimic the label used by the Non-GMO Project. The Non-GMO Project is an independent third party verification company which tests and verifies products that do not contain genetically modified organisms (GMOs). The plaintiffs argue that Nestle’s label is deceptive and that many of Nestle’s products contain ingredients derived from GMOs. (Latiff v. Nestle, Case No. 2:18-cv-6503).

Pesticides: Fish and Wildlife Service Lifts Ban on GMOs and Pesticides within Wildlife Refuges
On August 2, 2018, the U.S. Department of the Interior’s Fish and Wildlife Service (FWS) issued a memorandum withdrawing a previously issued memorandum that restricted the use of genetically modified organisms (GMOs) and certain pesticides within wildlife refuges. The earlier memorandum Use of Agricultural Practices in Wildlife Management in the National Wildlife Refuge System, announced that FWS would be phasing out the use of GMO crops and neonicotinoid pesticides. The first memorandum expressed concern that neonicotinoid use could affect non-target species. The recent FWS memorandum reverses the ban and states that use of GMO seeds and neonicotinoid pesticides could be essential in certain wildlife areas and should only be used on a case-by-case basis. Neonicotinoids were first restricted by the European Commission in 2013 in order to protect honeybees.     

Conservation Programs: Chesapeake Bay Watershed Three Year Action Plan is Released
On August 6, 2018, the U.S. Department of Agriculture Natural Resources Conservation Service (NRCS) released the Chesapeake Bay Watershed Action Plan as part of a three-year plan to improve water quality within the Chesapeake Bay. The plan prioritizes professional training, public engagement, technology and data guides, and farm planning. Conservation practices will be applied to improve water quality on 920,000 acres. In addition, NRCS aims to improve soil health for 700,000 acres and improve wildlife habitat on 120,000 acres.

Biotechnology: European Commission Approves Five GMOs for Food and Feed Use
On August 3, 2018, the European Commission announced that they have authorized five genetically modified organisms (GMOs) for food and feed use. The authorization applies to two new GMO maize varieties, two previously authorized maize varieties, and a previously authorized sugar beet variety. The authorization does not permit these GMOs to be used for cultivation. To receive authorization by the Commission, each GMO must receive a favorable scientific assessment by the European Food Safety Authority. Authorizations by the European Commission for GMOs are valid for ten years.

Pesticides: Brazilian Judge Issues Temporary Ban of Glyphosate
A Brazilian judge has issued a ruling banning the use of products containing the herbicide glyphosate, the insecticide abamectin, and the fungicide thiram, according to an August 6, 2018, article from Reuters. The decision prohibits any new products containing these chemicals from being registered within the country. In addition, current registrations have been suspended for the next 30 days while the government completes an evaluation. Monsanto has announced that they will file an appeal to this ruling. Monsanto markets glyphosate-resistant soybeans, a Roundup Ready product, within Brazil.  

From National Ag Law Experts:
Tiffany Dowell Lashmet, How Can Landowners Protect Themselves from Liability, Texas A&M AgriLife Extension (July 30, 2018).

Josh Wise, Uprooted Episode 40: Giving to farmers with one hand, taking a whole lot more with the other, Institute for Agriculture & Trade Policy (August 7, 2018)

Kristine A. Tidgren, Guidance is Trickling in, but Nothing Big Yet, The Ag Docket (July 31, 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, August 2, 2018

Agricultural Law Weekly Review - August 2, 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.

Air Quality: EPA Publishes Final Rule Regarding Reporting Exemptions for CERCLA and EPCRA
On August 1, 2018, the Environmental Protection Agency (EPA) releasedfinal rule addressing emission reporting requirements for agricultural operations under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and the Emergency Planning and Community Right-to-Know Act (EPCRA). On May 2, 2018, the D.C. Circuit Court of Appeals issued a mandate enforcing an earlier order vacating EPA’s final rule, CERCLA/EPCRA Administrative Reporting Exemptions for Air Releases of Hazardous Substances from Animal Waste at Farms (73 FR 7648). This most recent final rule removes the emission reporting exemptions and definitions from CERCLA and EPCRA regulations to comply with the court mandate and the earlier order, dated April 11, 2017. On March 23, 2018, Congress passed the FARM Act in the Consolidated Appropriations Act, 2018. The FARM Act amends CERCLA to exempt farms from reporting air emissions from animal waste. This final rule revises CERCLA regulations to comply with the FARM Act amendments. According to EPA, because these air emissions are now exempt from CERCLA reporting, they also are exempt from EPCRA reporting requirements.

Food Labeling: FDA Announces Intent to Review Milk Labels on Plant-Based Products
On July 26, 2018, the U.S. Food & Drug Administration (FDA) released a statement from the Commissioner regarding identity standards for dairy products. The Commissioner stated that FDA will be reviewing food labels for plant-based foods that are being advertised as substitutes for standard dairy products.  Plant-based products can be made from soy, almond, or rice and are being labeled by manufacturers as “milk.” FDA will examine the differences between plant-based products and dairy in relation to potential health consequences. Traditional dairy products and plant-based products contain nutritional differences relating to protein and vitamin content. FDA will review whether consumers understand the dietary differences and whether they are being misled when the term milk is applied to plant-based products.

Biotechnology: Bayer Cotton Variety Gains Deregulated Status under APHIS Biotechnology Regulations
On July 24, 2018, the U.S. Department of Agriculture (USDA) Animal Plant Health Inspection Service (APHIS) announced that Bayer’s genetically engineered CropScience cotton variety will no longer be regulated under the APHIS biotechnology regulations (7 CFR part 340). Bayer’s cotton variety is engineered to resist the herbicides glyphosate and p-hydroxyphenylpyruvate dioxygenase-inhibitors. In their draft environmental assessment, APHIS issued a preliminary finding of no significant impact and concluded that the cotton variety is unlikely to pose a plant pest risk to agricultural crops or other plants. Bayer’s cotton variety still will be subject to APHIS foreign quarantine notices (7 CFR part 319) and the Federal Seed Act (7 CFR 201, 361).

Biotechnology: European Union Rules that Mutagenesis Qualifies as a GMO
On July 25, 2018, the Court of Justice of the European Union ruled that organisms created by mutagenesis techniques fall within the meaning of the GMO directive. Mutagenesis involves techniques that are used to develop seed varieties resistant to specific herbicides. With this process, the genome of the plant species can be altered without inserting foreign DNA. The court found that this technique alters the genetic material of an organism in an unnatural way and therefore falls within the meaning of the GMO directive. The GMO directive requires that member states must subject genetically modified organisms (GMOs) to a risk assessment and also requires traceability, labeling, and monitoring.

Pesticides: Bayer Announces Intent to Appeal Neonicotinoid Ban
On July 27, 2018, Bayer’s North American Crop Science Division announced it would be appealing a ruling issued by the Court of the European Union that bans neonicotinoids, according to Brownfield. Neonicotinoids (Neonics) are systemic pesticides that are toxic to insects but less toxic to mammals and birds. In 2013, the EU severely restricted the use of three Neonics, including clothianidin, imidacloprid, and thiamethoxam, in order to protect honeybees. The 2013 restriction applied only to the use of Neonics in bee-attractive crops, such as maize, oilseed rape, and sunflower. On May 30, 2018, the EU completely banned the outdoor use of these Neonics.

Food Safety: Feedback Period Opens for EU Draft Regulation on Salmonella Testing
On July 19, 2018, the feedback period opened for a draft regulation issued by The European Commision regarding Salmonella testing. The purpose of the regulation is to detect and control Salmonella and other zoonotic agents during poultry production, processing, and distribution to reduce risk to the public. The draft regulation includes requirements on sampling and testing, but allows for a transitional period to give food operators time to adapt to the new standards. Comments on the draft regulation, Certain Methods for Salmonella Testing and Sampling in Poultry, will be accepted until August 16, 2018.

From National Ag Law Experts:
Tiffany Dowell Lashmet, Weekly Round Up, Texas A&M AgriLife Extension (July 27, 2018).

Sharon Anglin Treat, Five Red Flags for Food, Farming and Fair Trade Under the UK’s New Brexit Plan, Institute for Agriculture and Trade Policy (August 1, 2018).

Kristine A. Tidgren, Iowa Court Upholds Intentional Interference with a Bequest Judgment, The Ag Docket (July 27, 2018).

Pennsylvania Notices
Informational meeting on SB 799, environmental stewardship & watershed protection (August 16, 2018)

Public Notice of draft NPDES General Permit for Discharges from Petroleum Product Contaminated Groundwater Remediation Systems (July 28, 2018).

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