Friday, December 14, 2018

Agricultural Law Weekly Review—December 13, 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:

Farm Bill: House Passes 2018 Farm Bill Conference Report
On December 12, 2018, the U.S. House of Representatives passed the 2018 Farm Bill conference report by a vote of 369-47 (H.R.2 - Agriculture Improvement Act of 2018).  Following passage, House Agriculture Committee Chairman K. Michael Conaway (TX) stated that the proposed legislation “strengthens the farm safety net and our rural communities, improves conservation initiatives, expands exports and enhances the integrity of our nutrition programs.” The bill now moves to the president for his signature.

WOTUS: Revised "Waters of the United States" Definition Proposed
On December 11, 2018, the U.S. Environmental Protection Agency (EPA) and the Department of the Army (Army) announced a proposed definition of “waters of the United States” (WOTUS) intended to clarify federal authority under the Clean Water Act.  EPA Acting Administrator Andrew Wheeler stated that “[o]ur proposal would replace the Obama EPA’s 2015 definition with one that respects the limits of the Clean Water Act and provides states and landowners the certainty they need to manage their natural resources and grow local economies.” According to the EPA and the Army, comments on the proposal will be accepted for 60 days following publication in the Federal Register.  The Revised Definition of "Waters of the United States" Proposed Rule - Pre-publication Version may be viewed here.

Animal Welfare: DOJ Supports California Over Animal Confinement Standards
On November 30, 2018, the U.S. Department of Justice (DOJ) filed an amicus brief
recommending that the U.S. Supreme Court deny a challenge brought by 13 states against California’s Prevention of Farm Animal Cruelty Act.  Enacted by voters in 2008, and later modified, the California law requires that eggs sold in the state may only come from laying-hens that are permitted the ability to lie down, stand up, fully extending their limbs, and turn around freely.  According to the attorneys general, the California law violates the commerce clause and has resulted in higher egg prices nationwide since it took effect in 2015.  Additionally, the attorneys general argued that the California law was preempted by the federal Egg Products Inspection Act (EPIA).  DOJ asserted, however, that the attorneys general should be denied because the case does not fall under the Court’s original jurisdiction, the plaintiffs lack standing, the California law does do not violate the Commerce Clause, and the California law is not preempted by the EPIA.

Food Policy: USDA Publishes School Meals Final Rule
On December 12, 2018, the U.S. Department of Agriculture (USDA) published notice in the Federal Register of a final rule regarding school meal flexibilities (83 FR 63775).  Entitled: Child Nutrition Programs: Flexibilities for Milk, Whole Grains, and Sodium Requirements, the new rule provides schools new options under the National School Lunch Program, School Breakfast Program, and other federal child nutrition programs.  Accordingly, the new rule allows schools the ability to offer flavored, low-fat milk; requires that half of the weekly grains in the school lunch and breakfast menu be whole grain-rich; and grants schools more time to reduce sodium levels in school meals. 

From National Ag Law Experts:
“Congressional Agenda”, John R. Block, Ag/FDA Blog – Olsson Frank Weeda Terman Matz PC (December 11, 2018)
“Clean Water Act Application to Groundwater: Keeping Score”, Tiffany Dowell Lashmet, Texas Agricultural Law Blog (December 10, 2018)
“Tracing E-Coli Outbreaks”, Brianna Schroeder, Schroeder Ag Law Blog – Janzen Ag Law (November 27, 2018)

Pennsylvania Actions and Notices:
Department of Agriculture

Pennsylvania Department of Agriculture:

Penn State Research:

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, December 6, 2018

Agricultural Law Weekly Review—December 6, 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:

International Trade: U.S., Mexico, and Canada Sign New Trade Agreement
On November 30, 2018, U.S. President Donald Trump, Mexican President Enrique Peña Nieto, and Canadian Prime Minister Justin Trudeau formally signed a new bilateral trade agreement entitled the United States Mexico Canada Agreement—or USMCA.  The new trade agreement replaces the North American Free Trade Agreement which had been in effect since January 1, 1994.  According to a Trump administration press release, USMCA will help U.S. farmers by increasing access to the Canadian market for dairy products, egg, and poultry.  Additionally, the press release stated that U.S. dairy farmers will benefit through the elimination of Canada’s “Class 6” and “Class 7” programs which previously permitted “low-priced dairy products to undersell American dairy producers.” Before taking effect, USMCA must still be ratified by the legislatures of each of the three countries.

WOTUS: Washington Judge Vacates WOTUS Applicability Date
On November 28, 2018, a federal judge in the U.S. District Court, W.D. Washington vacated the U.S. Environmental Agency and U.S. Department of the Army (the agencies) addition of an applicability date to the 2015 Rule defining “waters of the United States” (Puget Soundkeeper Alliance v. WheelerCase 2:15-cv-01342-JCC).  On January 31, 2018, the agencies issued a final rule that added an applicability date to the 2015 Rule.  As a result, the 2015 Rule was not scheduled to become applicable until February 6, 2020.  According to U.S. District Judge John C Coughenour, however, the agencies violated the Administrative Procedure Act by excluding “relevant and important comments” before promulgating the 2015 Rule applicability date.  Therefore, the court ruled that the applicability date was unlawful and should be vacated nationwide.

Packers and Stockyards Act: USDA Issues Final Rule Eliminating GIPSA as Standalone Agency
On November 29, 2018, the U.S. Department of Agriculture (USDA) published notice in the Federal Register of a final rule eliminating the Grain Inspection, Packers, and Stockyards Administration (GIPSA) as a stand-alone agency (83 FR 61309).  According to USDA, GIPSA is the “agency that facilitates the marketing of livestock, poultry, meat, cereals, oilseeds, and related agricultural products, and promotes fair and competitive trading practices for the overall benefit of consumers and American agriculture.” Under the final rule, GIPSA will no longer operate as a stand-alone agency, but instead become part of USDA's Marketing and Regulatory Programs.

Industrial Hemp: Pennsylvania Opens Application Process for 2019 Industrial Hemp Research Projects
On November 27, 2018, the Pennsylvania Department of Agriculture (PDA) issued a press release announcing the availability of applications and guidelines regarding industrial hemp research permits for 2019.  Under Pennsylvania’s Industrial Hemp Research Pilot Program, research permits are only available to “institutions of higher education or to persons contracted with the department to grow industrial hemp for research purposes.” According to the press release, PDA is seeking to issue 60 industrial hemp research permits for 2019.  The deadline to submit permit applications is December 17, 2018.  PDA stated that successful applicants should expect to receive notification by January 4, 2019.

From National Ag Law Experts:
“Ohio Agricultural Law Blog--The Ag Law Harvests”, Ellen Essman and Evin Bachelor, Ohio State University Extension (December 4, 2018)
“Unanimous Supreme Court: ‘Critical Habitat’ Under Endangered Species Act Must Be Habitat”, Tiffany Dowell Lashmet, Texas Agricultural Law Blog (December 3, 2018)
“Blockchain: Understand Before Signing Up”, Todd Janzen, Janzen Ag Law Blog (December 3, 2018)   

Pennsylvania Legislation:
HB 2752: Legislation to revise state fireworks law (Referred to House Agriculture and Rural Affairs Committee, November 27, 2018)

Pennsylvania Actions and Notices:
Department of Environmental Protection

Pennsylvania Department of Agriculture:

Penn State Research:

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, November 29, 2018

Agricultural Law Weekly Review—November 29, 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 Issues Statement on Romaine Lettuce Outbreak Investigation
On November 26, 2018, U.S. Food and Drug Administration (FDA) Commissioner Scott Gottlieb issued a statement regarding the recent outbreak of E. coli O157:H7 infections related to the consumption of romaine lettuce.  According to the statement, since October 31, 2018, 43 cases of such illness have been reported in 12 states.  While FDA has not located the source of the outbreak, the agency asserted that hydroponically or greenhouse grown romaine lettuce does not appear to be affected.  According to Commissioner Gottlieb, the major producers and distributors of romaine lettuce have voluntarily agreed to label the product with a harvest location and a harvest date.  Additionally, the labels will indicate whether the product has been hydroponically, or greenhouse grown.  Commissioner Gottlieb stated that consumers should not eat or use any romaine lettuce that does not provide this information.

Labor: DOL Resolves Hiring Discrimination Cases Against Meat Processing Company
On November 15, 2018, the U.S. Department of Labor (DOL) announced a consent decree with meat processor JBS USA regarding alleged hiring discrimination practices at the company's beef processing facilities in Hyrum, Utah, and Cactus, Texas.  According to DOL, JBS USA discriminated against 12,625 individuals who had applied for general production laborer positions at the two facilities.  While the company has denied the allegations, under the consent decree, JBS USA has agreed to pay $4,000,000 to the 12,625 individuals.  Additionally, JBS USA has agreed to hire 1,664 of the applicants at the Hyrum and Cactus locations.

Water Quality: Penn State Researchers Explore Animal Agriculture in Western PA
On November 5, 2018, researchers at Penn State University reported that the establishment of animal agriculture in western Pennsylvania may someday help the state meet nutrient-reduction goals in the Chesapeake Bay watershed.  Located in the Susquehanna River basin, western Pennsylvania drains into the Ohio River system and does not face the water-quality limits established in the Chesapeake Bay watershed.  As a result, the researchers studied the regions potential for developing new animal agriculture facilities and related manure-management activities.  According to lead researcher Cibin Raj, the study is intended to be “a first step in exploring opportunities and challenges to developing animal agriculture in western Pennsylvania in a way that is both economically and environmentally sustainable.”

Animal Welfare: Group Sues USDA over Animal Food Product Labeling Requirements
On November 14, 2018, the Animal Welfare Institute (AWI) announced a lawsuit against the U.S. Department of Agriculture (USDA) due to the agency’s delay in responding to AWI’s 2014 petition regarding animal food product labeling requirements.  In the 2014 petition, AWI called on USDA “to amend labeling regulations under the Federal Meat Inspection Act and the Poultry Products Inspection Act to require independent third-party certification for the approval of animal welfare and environmental stewardship claims on meat and poultry products.” According to AWI, since its filing in 2014, USDA has failed to respond or take regulatory action to address the concerns raised in the petition.

Organic Agriculture: USDA Schedules National Organic Standards Board Meeting
On November 26, 2018, the U.S. Department of Agriculture (USDA) published notice in the Federal Register that the National Organic Standards Board (NOSB) will hold a public meeting on April 24-26, 2019, in Seattle, Washington (83 FR 60373).  According to USDA, NOSB “assists the USDA in the development of standards for substances to be used in organic production and advises the Secretary of Agriculture on any other aspects of the implementation of the Organic Foods Production Act.” NOSB will hear oral public comments during webinars scheduled for April 16 and April 18, 2019, and at the NOSB public meeting on April 24 and April 25, 2019.  The deadline for submission of written comments and webinar sign-up is April 4, 2019.   

From National Ag Law Experts:
“Ohio Agricultural Law Blog--The Ag Law Harvests”, Evin Bachelor, Ohio State University Extension (November 20, 2018)
“Elite Food Standards and More”, John R. Block, Ag/FDA Blog – Olsson Frank Weeda Terman Matz PC (November 21, 2018)
“Medicare Planning and Farm Assets”, Patrick B. Dillon, Dillon Law P.C. Blog (November 26, 2018)

Pennsylvania Actions and Notices:
Department of Agriculture

State Board of Veterinary Medicine

State Conservation Commission

Pennsylvania Department of Agriculture:

Penn State Research:

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

Wednesday, November 21, 2018

Agricultural Law Weekly Review—November 21, 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 Labeling: FDA Extends Comment Period for Labeling Plant-Based Products with Dairy Names
On November 20, 2018, the U.S. Food and Drug Administration (FDA) announced that the comment period regarding the labeling of plant-based products with dairy names has been extended by 60 days.  FDA stated that it is seeking information to assist the agency examine “its approach to the use of dairy food names like ‘milk,’ ‘cheese,’ or ‘yogurt’ in the labeling of plant-based foods and beverages.” Originally scheduled to close on November 27, 2018, comments may now be submitted to FDA up until January 28, 2019.  FDA stated that the purpose of the extension is to allow for additional submissions from interested individuals.

Pesticides: California Agency Recommends Restrictions on Chlorpyrifos
On November 15, 2018, the California Department of Pesticide Regulation (DPR) issued a statement recommending that local state governments enact interim measures restricting the use of the pesticide chlorpyrifos.  According to DPR, the interim measures will provide increased protection from chlorpyrifos exposure until formal regulations can be enacted.  Under DPR’s proposed interim measures, California’s county agricultural commissioners (CAC’s) should restrict chlorpyrifos in the following ways:
  • Ban aerial application
  • Limit use on crops to those “critical uses” where a crop has few or no alternative pesticides
  • Require a quarter-mile buffer zone for application
  • Require 150-foot setbacks form houses, businesses, schools, and other sensitive areas

DPR recommends that California’s CAC’s begin implementing the interim measures on January 1, 2019.

Biotechnology: USDA and FDA Address Regulation of Cell-Cultured Food Products
On November 16, 2018, the U.S. Department of Agriculture (USDA) and the U.S. Food and Drug Administration (FDA) issued a press release regarding oversight of livestock and poultry cell lines used to develop cell-cultured food products.  According to the statement, moving forward, the two agencies will jointly oversee the production of cell-cultured food products derived from livestock and poultry.  Accordingly, FDA will oversee cell collection, cell banks, and cell growth and differentiation.  USDA will begin its oversight at the time of cell harvest and will oversee the production and labeling of subsequent food products.

International Trade: Japanese Food Safety Panel Recommends lifting age restrictions on US beef
On November 15, 2018, The Mainichi reported that a research panel of Japan's food safety commission has recommended the lifting of age restrictions placed on U.S. beef due to concerns of mad cow disease.  In place since 2013, Japan’s current regulations only permit imports of U.S. beef from cattle that is aged 30 months or younger.  The research panel concluded, however, that U.S. beef would still be safe even if the age restrictions are removed. 

Dairy Policy: Center for Dairy Excellence Offers Team Grants to Dairy Producers
On November 5, 2018, the Center for Dairy Excellence (CDE) announced the availability of team grants designed to help dairy farmers assemble a group of advisors to assist with business making decisions.  The team grants are available in three different categories: dairy profit teams, dairy transition teams, and dairy transformation teams.  For dairy profit teams, farmers may receive up to $2,000 in reimbursements for advisors that help address bottlenecks and identify opportunities for profitability.  For dairy transitions teams, farmers may receive up to $3,000 for advisors that help with succession planning.  For dairy transformation teams, farmers may receive up to $5,000 for teams that provide guidance related to a major business transformation.  To participate, farmers must complete an application and submit the required $100 application fee to CDE.

From National Ag Law Experts:
“Did you know that states’ ‘right-to-farm’ protections can apply to aquaculture, too?”, Ellen Essman, Ohio State University Extension (November 16, 2018)
“Final Regulations Issued for Head of Household Due Diligence Requirements”, Kristine A. Tidgren, Iowa State University Center for Agricultural Law and Taxation (November 7, 2018)

Pennsylvania Actions and Notices:
The General Assembly

State Horse Racing Commission

Pennsylvania Department of Agriculture:

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, November 15, 2018

Agricultural Law Weekly Review—November 15, 2018


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

Agricultural Labor: DOL Proposes Online Advertising Requirement for Temporary Labor Certification Jobs
On November 8, 2018, the U.S. Department of Labor (DOL) announced a proposal requiring that employers seeking temporary labor certification must fulfill advertising requirements through online methods.  Currently, employers seeking temporary labor certification through either the H-2A visa program or the H-2B visa program must publish two print newspaper advertisements “in the area of intended employment.” Under the new proposal, however, such newspaper advertisements will no longer be required.  Instead, advertisements regarding job opportunities for both programs will be required to be posted online for a minimum of 14 days.  According to DOL, the intention of the change is to modernize the recruitment process “and make job opportunities more readily available to Americans.” For information regarding changes to the H-2A program see 83 FR 55985.  For information regarding changes to the H-2B program see 83 FR 55977.

Animal Welfare: California Votes to Require More Space for Confined Farm Animals
On November 6, 2018, California voters passed Proposition 12 which establishes minimum space requirements farmers must provide for confined egg-laying hens, breeding pigs, and calves raised for veal.  Additionally, under Proposition 12, no California business is permitted sell eggs, pork, or veal that comes from animals confined in ways not meeting the new requirements.  Previously, in 2008, California passed Proposition 2 which mandated that confined egg-laying hens, breeding pigs, and calves raised for veal must be able to “turn around freely, lie down, stand up, and fully extend their limbs.” Proposition 12, however, now places confinement restrictions based on a minimum number of square feet and on sales.

Checkoff Programs: R-CALF USA Lawsuit Expanded to 13 More States
On November 5, 2018, a Montana Federal District Court Judge granted the Ranchers-Cattlemen Action Legal Fund United Stockgrowers of America’s (R-CALF USA) motion to extend its beef checkoff program lawsuit beyond Montana to 13 other states.  Earlier this year, on April 9th, 2018, the United States Court of Appeals for the 9th Circuit upheld a preliminary injunction against the United States Department of Agriculture (USDA), preventing the continuation of the national checkoff program in Montana. (R-CALF USA v. Sonny Perdue, No. 17-35669).  In the lawsuit, R-CALF USA is claiming that the national check-off program is “violating the U.S. Constitution by compelling Montana cattle producers to pay for the private speech of the private Montana Beef Council without first obtaining consent” from its producers.  This new development does not extend the existing preliminary injunction in Montana to the other states, which are Hawaii, Indiana, Kansas, Montana, Nebraska, Nevada, New York, North Carolina, Pennsylvania, South Carolina, South Dakota, Texas, Vermont, and Wisconsin.  However, it allows R-CALF USA to continue with its original lawsuit that seeks a permanent injunction of the national checkoff program and allows individual cattle producers to decide whether half the mandatory assessments collected from them should be spent by the private state’s Beef Council, or all of it sent to Cattlemen’s Beef Board. For more information on the April 9th, 2018 ruling, see our Ag Law Weekly Review for April 19, 2018.

Air Quality: FDA Approves Drug that Reduces Gas Emissions from Animal Waste
On November 6, 2018, the United States Food and Drug Administration (FDA) published a press release announcing the approval of Experior, an animal drug that reduces the amount ammonia gas released in beef cattle waste.  The first of its kind approved, Experior, when fed to beef cattle under “semi-controlled conditions in enclosed housing” reduces ammonia gas emissions in manure.  Ammonia gas emissions in the air have been connected to noxious odors and atmospheric haze, which can lead to irritation of the eyes, nose, and throat in both humans and animals.  FDA stated that through multiple studies conducted on more than 4,000 cattle, the agency determined that “Experior is safe to feed to beef cattle and that meat from cattle treated with Experior is safe for people to eat.”

Soda Tax: Washington Voters Pass Ban on Local Soda Taxes
On November 6, 2018, voters in Washington state passed Initiative 1634 which prohibits local governments from enacting taxes on groceries.  Under Initiative 1634, groceries are defined as "any raw or processed food or beverage, or any ingredient thereof, intended for human consumption." While Initiative 1634 does not extend the prohibition on local taxation to alcoholic beverages it does encompass sugary beverages such as soda.

Intellectual Property: EU Court Finds “Taste” Not Entitled to Copyright Protection
On November 13, 2018, the Court of Justice of the European Union announced that “the taste of a food product is not eligible for copyright protection.” In 2007, a Dutch company created a cream cheese and fresh herbs dip called Heksenkaas.  In 2014, a competitor created a similar tasting product called Witte Wievenkaas.  Subsequently, the owner of Heksenkaas asserted that the taste of its food product should be entitled to copyright protection.  According to the Court of Justice, for a food product to receive copyright protection under the European Union’s Copyright Directive it must be capable of being classified as a “work.” To be a “work” the food product must be “identifiable with sufficient precision and objectivity.” According to the Court of Justice, “the taste of a food product cannot be identified with precision and objectivity.”

From National Ag Law Experts:
“Ohio Agricultural Law Blog--Meat Law Continues to Sizzle in the News”, Evin Bachelor, Ohio State University Extension (November 9, 2018)
“Mid-Term and More”, John R. Block, Olsson Frank Weeda Terman Matz PC (November 8, 2018)
“Cell Cultured Meat – Now What?”, Sarah Everhart, Maryland Risk Management Education Blog (November 13, 2018)

Pennsylvania Actions and Notices:
The Governor

Vetoes

Pennsylvania Department of Agriculture:

Penn State Research:
       
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