Friday, February 5, 2016

Agricultural Law Weekly Review: February 5, 2016


Written by M. Sean High – Staff Attorney

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

Litigation: PA Federal Judges Certifies Class Action against Egg Producers
On February 2, 2016, United States District Judge Gene E.K. Pratter of the United States District Court for the Eastern District of Pennsylvania granted a motion to certify a class action in a case involving an alleged conspiracy by the nation’s leading egg producers to inflate prices by limiting the supply of eggs (Case No. 08-md-2002).  Appointed as class representatives are T.K. Ribbing’s Family Restaurant, LLC; John A. Lisciandro d/b/a Lisciandro’s Restaurant; Eby-Brown Company; and Karetas Foods, Inc.

Labeling: FDA Bans Importation of GE Salmon
On January 29, 2016, the United States Food and Drug Administration (FDA) announced that the department will “not allow the introduction or delivery for introduction into interstate commerce of any food that contains genetically engineered salmon, until FDA publishes final labeling guidelines for informing consumers of such content (Import Alert 99-40).” The alert did not provide a timetable for the completion of the final labeling guidelines.

Biotechnology: New Monsanto Biotech Soybean Now Available
On February 3, 2016, Monsanto announced that the company had received import approval from China for Roundup Ready 2 Xtend soybeans. The Roundup Ready 2 Xtend soybeans are genetically modified to be tolerant to both glyphosate and dicamba herbicides, and as a result China’s import approval, will now be made “available in the United States and Canada in time for the 2016 season.”

International: China Seeks to Modernize Farm Policy
On February 4, 2016, the International Center for Trade and Sustainable Development reported that China appears to be shifting its agricultural industry towards a modern, market-base system.  Specifically, according to the report, there appears to be a movement towards “the reform of the maize purchasing and storage system, [to] reflect market supply and demand in corn prices.” Additionally, the report stated that “[w]hile the timing and specifics of the new approach remain unclear…Beijing was believed to favour making compensation payments to farmers when prices fell short of a target price, instead of purchasing stocks to support prices when these fell below a pre-established floor.”

Research: USDA Awards over $30 Million for Research Projects
On February 3, 2016, the United States Department of Agriculture (USDA) announced that the department had awarded “$30.1 million in competitive grants to fund 80 research projects to improve food safety, reduce antibiotic resistance in food, and increase the resilience of plants in the face of climate change.”  According to USDA Secretary Tom Vilsack, the research funding was necessary because “[i]n the face of diminishing land and water resources and increasingly variable climatic conditions, food production must increase to meet the demands of [a] world population projected to pass 9 billion by 2050.”

Friday, January 29, 2016

Agricultural Law Weekly Review: January 29, 2016

Written by M. Sean High – Staff Attorney

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

Conservation: USDA to Create New Wetland Protection Program
On January 28, 2016, the United States Department of Agriculture issued a press release announcing “the establishment of the Natural Resources Conservation Service (NRCS) Wetland Mitigation Banking Program.”  Created as a result of the 2014 Farm Bill, the new program is designed to provide $9 million in resources to help “states, local governments or other qualified partners develop wetland mitigation banks that restore, create, or enhance wetland ecosystems, broadening the conservation options available to farmers and ranchers so they can maintain eligibility for other USDA programs.”

Avian Influenza: NAFTA Partners Sign Letter of Understanding on Avian Influenza
On January 19, 2016, the USA Poultry & Egg Export Council issued a press release announcing that government animal health officials from the United States, Canada, and Mexico had joined poultry and egg industry leaders in formally signing a Letter of Understanding on Avian Influenza.  According to the press release, the Letter of Understanding is “an arrangement to enhance collaboration on avian influenza and to work toward harmonizing procedures for responding to possible future detections of the virus.”

Labeling: New Labeling Requirements on Alaskan Pollock
On January 21, 2016, The U.S. Food and Drug Administration (FDA) announced an update to its “Seafood List” so as “to reflect a change for fish labeled as ‘Alaska Pollock.’”  As a result of FDA’s change, “only Gadus chalcogrammus caught in Alaskan waters or the exclusive economic zone (as defined in section 3 of the Magnuson-Stevens Fishery Conservation and Management Act) adjacent to Alaska can be called Alaskan ‘Pollock’ or Alaska ‘Pollock.’” 

Litigation: Court Approves Certification of Class Action Involving Pomegranate Seeds
On January 25, 2016, United States District Court Central District of California Southern Division Judge David O. Carter granted a class action certification in a case involving alleged injuries resulting from the risk of exposure to the hepatitis A virus after the consumption of pomegranate seeds imported from Turkey [CaseNo.: SA CV 13-1292-DOC (JCGx)].  The certified class action consolidated litigation from nine different single-state subclasses.

Food Safety: FSMA Requires Farmers to Retain Records to Prove "Qualified Exemption"
See previous Penn State Agricultural Law Blog article. 

Chesapeake Bay: Pennsylvania Announces New Plan to meet Chesapeake Bay Requirements
See previous Penn State Agricultural Law Blog article

Thursday, January 28, 2016

FSMA Update: Farmers Now Required to Retain Records to Prove “Qualified Exemption” Status

Written by M. Sean High – Staff Attorney

On January 26, 2016, the federal Food Safety Modernization Act (FSMA) Standards for the Growing, Harvesting, Packing, and Holding of Produce for Human Consumption became effective [21 CFR 112].  As a result, beginning on January 26, 2016, all farmers that seek to claim qualified exemption status under FSMA must maintain records that support the claim.

Under FSMA, the federal government has established rules to regulate produce safety.  Nevertheless, FSMA has provided an exemption for small produce growers that can meet (and verify) certain requirements. 

According to FSMA, a produce grower is entitled to receive a qualified exemption if: (1) during the previous three years, the average annual sales of all foods (not just produce) was less than $500,000, and (2) the majority of the food sold was sold directly to qualified end-users [21 CFR 112.5(a)].

To define the term food, FSMA uses the definition found in Section 201(f) of the federal Food, Drug, and Cosmetic Act which states: “(1) articles used for food or drink for man or other animals, (2) chewing gum, and (3) articles used for components of any such article [21 U.S.C. 321(f)].” Additionally, FSMA defines the term food to also include “seeds and beans used to grow sprouts” [21 CFR 112.3(c)].

FSMA defines qualified end-users as consumers, restaurants, or retail food establishments (such as grocery stores) that are: (1) located in the same state (or Indian reservation), and (2) not more than 275 miles from the farm claiming the end-user for purposes of qualified exemption statues [21 CFR 112.3(c)].

Importantly, farmers are now required to establish and keep records (such as sales receipts) that demonstrate that a farm has met all of the qualified exemption requirements [21 CFR 112.7].  The compliance date for maintaining records to support eligibility for the qualified exemption began January 26, 2016 (the effective date of the rule).

Finally, FSMA requires that a farm seeking a qualified exemption must “including a written record reflecting that you have performed an annual review and verification of your farm's continued eligibility for the qualified exemption" [21 CFR 112.7].  According to the final rule for Standards for the Growing, Harvesting, Packing, and Holding of Produce for Human Consumption, however, farmers do not need to complete this written requirement until the farm’s general compliance date [80 FR 74353].

Monday, January 25, 2016

Chesapeake Bay Update: Pennsylvania Announces New Plan to meet Chesapeake Bay Requirements

Written by M. Sean High – Staff Attorney

On January 21, 2016, the Pennsylvania Department of Agriculture (PDA) issued a press release announcing a new strategy, “developed jointly by the Pennsylvania Departments of Agriculture, Conservation and Natural Resources (DCNR), and Environmental Protection (DEP),” to enable Pennsylvania to achieve federal Chesapeake Bay requirements.

According to the press release, the newly developed strategy stems from the commonwealth receiving “immense pressure from the federal Environmental Protection Agency (EPA) to improve water quality,” resulting from Pennsylvania’s inability to meet EPA “requirements to reduce water pollution under the requirements of federal court orders and regulations.”

According to the new strategy, titled A DEP Strategy to Enhance Pennsylvania’s Chesapeake Bay Restoration Effort, Pennsylvania’s inability to meet established EPA reduction goals has caused EPA to: 1) “withhold $2,896,723 in federal funding for Chesapeake Bay-related activities and grants”; and 2) identify potential targets, under federal authority, “to address the Pennsylvania Bay restoration shortfalls.”

According to the new strategy, Pennsylvania has not been compliant with EPA regulations regarding pollution reduction due to: 1) lack of farm inspection, documentation, and verification of pollution reduction activities; and 2) improper funding.  To correct these short comings, the new strategy proposes the following six recommendations:

1.      Establish a Chesapeake Bay Office within DEP to coordinate and implement Chesapeake Bay efforts and requirements.
2.      DEP and Conservation District staff should annually inspect 10% of all Pennsylvania farms in the Chesapeake Bay watershed (an increase from the current 1.8% annual inspection rate).
3.      Improve reporting, record keeping, and data systems (with the possibility of mandatory reporting requirements).
4.      Shift $1,250,000 of state water quality funding to Best Management Practices (BMP) programs and document the use of all BMPs (especially those previously unreported).
5.      Obtain additional sources of funding to assist in improving water quality and meeting federal Chesapeake Bay requirements.
6.      Identify any program, regulatory, or legislative changes that will allow Pennsylvania to achieve federal reduction goals by 2025. 

Friday, January 22, 2016

Agricultural Law Weekly Review: January 22, 2016

Written by M. Sean High - Staff Attorney

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

Oil and Gas: Court Rules Compressor Station May be built Next to Farm
On January 7, 2016, the Commonwealth Court of Pennsylvania determined that the New Sewickley Township Board of Supervisors (Beaver County, PA) acted properly when the Township agreed to permit the construction of a gas compressor station on land adjacent to an organic farm (Kretschmann Farm, LLC v. Twp. Of New Sewickley, No. 360 C.D. 2015). According to the Court, the organic farmers' failed to present evidence that: 1) the proposed gas compressor station would cause harm to the “health, safety, and well-being of the Township’s residents;” or 2) the Township’s action was a violation of United States and Pennsylvania constitutional rights.  

HPAI: Government Confirms HPAI in Indiana Commercial Turkey Flock
On January 15, 2016, the United States Department of Agriculture (USDA) Animal and Plant Health Inspection Service (APHIS) issued a press release confirming the detection of Highly Pathogenic Avian Influenza (HPAI) in an Indiana commercial turkey flock.  According to USDA APHIS, the strain of HPAI detected in the flock is H7N8, “a different strain of HPAI than the strains that caused the 2015 outbreak.” As of January 22, 2016, the Indiana State Board of Animal Health reported the depopulation of 414,503 turkeys suspected of being infected with H7N8.   

WOTUS: President Vetoes Measure to Overturn WOTUS; Senate Blocks Veto Override
On January 20, 2016, President Obama vetoed a joint resolution of Congress (S.J.RES.22) that would have overturned “the rule submitted by the Corps of Engineers and the Environmental Protection Agency relating to the definition of ‘waters of the United States’ under the Federal Water Pollution Control Act.” On January 21, 2016, the U.S. Senate voted 52-40 to override the President’s veto.  The Senate’s action, however, fell eight votes short of the majority number required to override a presidential veto.

Immigration: Supreme Court to Hear Challenge to President’s Actions on Immigration
On January 19, 2016, the U.S. Supreme Court announced that it will hear a case brought by 26 states challenging President Obama’s executive action authority regarding the federal immigration programs Deferred Action for Parents of Americans and Deferred Action for Childhood Arrivals (United States, et al. v. Texas, et al., CaseNo. 15-674).   

Raw Milk: Illinois Legalizes Raw Milk Sales
On January 13, 2016, the Illinois Joint Commission on Administrative Rules approved regulations that now allow the on-farm sale of raw milk by producers that acquire a permit issued by the Illinois Department of Health.  The new regulations are scheduled to take effect on July 1, 2016.

Legislation: Agreement Reached on School Nutrition Standards
On January 15, 2016, the School Nutrition Association (SNA) issued a press release announcing that the organization had “worked collaboratively with the US Department of Agriculture (USDA), the White House and the Senate Agriculture Committee to reach an agreement to improve nutrition standards for school meals.” According to the press release, the agreement is scheduled for inclusion in the Senate Agriculture Committee’s Child Nutrition Reauthorization bill. 

Friday, January 15, 2016

Agricultural Law Weekly Review: January 15, 2016

Written by M. Sean High – Staff Attorney

A weekly update of recent local, state, national, and international legal developments relevant to Pennsylvania agriculture.

·         Food Policy: 2015-2020 Dietary Guidelines for Americans Released
o   On January 7, 2015, the federal government released the 2015-2020 Dietary Guidelines for Americans, 8th Edition.  Published every five years, the Federal Dietary Guidelines are intended to “inform the development of Federal food, nutrition, and health policies and programs” and are the result of a joint effort between the U.S. Department of Agriculture (USDA) and the U.S. Department of Health and Human Services (HHS).

·         Food Policy: Advocacy group sues Federal government over 2015-2020 Dietary Guidelines                                Recommendation
o   On January 6, 2016, the Physicians Committee for Responsible Medicine brought suit in the U.S. District Court for the Northern District of California (Case No. 3:16-cv-00069) against USDA Secretary Tom Vilsack and HHS Secretary Sylvia Mathews Burwell (available to subscribers at www.pacer.gov).  The complaint alleged that the Dietary Guidelines Advisory Committee’s (DGAC) decision to recommend that the 2015-2020 Dietary Guidelines for Americans, 8th Edition should not include previous advice to limit the consumption of dietary cholesterol to 300 milligrams per day was a result of improper influence from: 1) research funded by USDA’s egg promotion program; and 2) DGAC members’ institutions receiving funding from the egg industry.

·         GMO Labeling: Campbell Soup Company Releases Statement Backing Mandatory GMO                                        Labeling
o   On January 7, 2016, Campbell Soup Company (Campbell) issued a press release announcing the company’s “support for the enactment of federal legislation to establish a single mandatory labeling standard for foods derived from genetically modified organisms (GMOs).” According to the press release, Campbell will no longer participate in efforts to oppose mandatory national GMO labeling, but will continue “to oppose…state-by-state labeling laws, which it believes are incomplete, impractical and create unnecessary confusion for consumers.”  

·         Food Safety: Stockholder Files Federal Class Action Against Chipotle over Food Safety
o   On January 8, 2016, Chipotle stockholder Susie Ong brought a class action suit against the company in the United States District Court Southern District of New York (Case No. 1:16-cv-00141).  According to the complaint, Chipotle “made false and/or misleading statements and/or failed to disclose that: (i) Chipotle’s quality controls were not in compliance with applicable consumer and workplace safety regulations; (ii) Chipotle’s quality controls were inadequate to safeguard consumer and employee health; and (iii) as a result of the foregoing, Chipotle’s public statements were materially false and misleading at all relevant times.” The complaint alleged that as a result of these actions, and a subsequent market decline in the value of Chipotle securities, Susie Ong and her fellow class members suffered “significant losses and damages.”

·         Voluntary Standards: USDA AMS Withdraws Standards for Grass-Fed and Naturally-Raised                                          Meat
o   On January 12, 2016, the Agricultural Marketing Service (AMS) of the U.S. Department of Agriculture (USDA) issued notice in the Federal Register that the agency was withdrawing the U.S. Standards for Livestock and Meat Marketing Claims (81 FR 1386).  Specifically, AMS is withdrawing the standards for grass-fed and naturally raised meat products because of conflicts between USDA’s-verified production/marketing and the food labeling pre-approvals currently required from either the USDA Food Safety Inspection Service or the Food and Drug Administration.    

·         Water Regulation: Congress Votes to Overturn WOTUS Rule
o   On January 13, 2016, the U.S. House of Representatives passed a joint resolution (by a vote of 253-166) which if enacted, would overturn the Environmental Protection Agency’s controversial Waters of the U.S./Clean Water Rule (S.J.RES.22).  The resolution currently awaits presidential action.

·         Biofuel Standards: Groups File Challenge to EPA’s Authority Regarding Biofuel Mandates
o   On January 8, 2016, in the U.S. Court of Appeals for the District of Columbia Circuit, seven advocacy groups (Americans for Clean Energy, the American Coalition for Ethanol, the Biotechnology Innovation Organization, Growth Energy, the National Corn Growers Association, the National Sorghum Producers and the Renewable Fuels Association) filed a challenge to the Environmental Protection Agency’s decision to waive the biofuel volume mandates established by Congress (Case No. 16-1005).  Filed in the U.S. Court of Appeals for the District of Columbia Circuit, the case is available to subscribers at www.pacer.gov.

·         Ag-Gag: North Carolina Ag-Gag Law Challenged in Federal Court
o   On January 13, 2016, six advocacy groups (People for the Ethical Treatment of Animals, the Center for Food Safety, Animal Legal Defense Fund, Farm Sanctuary, Food & Water Watch, and the Government Accountability Project) filed suit challenging the constitutionality of North Carolina’s recently enacted “ag-gag” law (Case No. 16-cv-25).  Filed in the U.S. District Court for the Middle District of North Carolina Greensboro Division, the case is available to subscribers at www.pacer.gov.

·         International Food Regulation: European Panel Determines UV-Treated Milk Safe               
o   On January 11, 2016, following a request by the European Commission, the European Food Safety Authority (EFSA) issued an opinion that, in certain applications, ultraviolet radiation can safely extend the shelf life of milk.

Wednesday, January 13, 2016

Food Policy Update: Federal 2015-2020 Dietary Guidelines Endorse Lean Meats, Lean Poultry, and Eggs

Written by M. Sean High - Staff Attorney

On January 7, 2016, the Federal Government released the 2015-2020 Dietary Guidelines for Americans, 8th Edition.  Published every five years for public health officials, the Federal Dietary Guidelines are produced in a joint effort between the U.S. Department of Health and Human Services (HHS) and the U.S. Department of Agriculture (USDA).  

According to the 2015-202 Dietary Guidelines for Americans:

The main purpose of the Dietary Guidelines is to inform the development of Federal food, nutrition, and health policies and programs. The primary audiences are policymakers, as well as nutrition and health professionals, not the general public. The Dietary Guidelines is a critical tool for professionals to help Americans make healthy choices in their daily lives to help prevent chronic disease and enjoy a healthy diet. It serves as the evidence-based foundation for nutrition education materials that are developed by the Federal Government for the public.

While the Dietary Guidelines are not legally binding regulations, they are extremely influential in determining what food is made available through Federal food programs such as the school lunch program.  Just as important, the Dietary Guidelines can have a significant effect on consumer perceptions and often sway food purchasing decisions.  

Of significance to the agricultural industry, the 2015-2020 Dietary Guidelines for Americans stated that “[f]or those who eat animal products, the recommendation for the protein foods subgroup of meats, poultry, and eggs can be met by consuming a variety of lean meats, lean poultry, and eggs.”

On January 7, 2016, the National Cattleman’s Beef Association issued a press release praising “HHS Secretary Sylvia Burwell and USDA Secretary Tom Vilsack for ensuring the final recommendations were based on the latest nutrition evidence available.”  The press release quoted Texas cattle producer and physician Dr. Richard Thorpe who expressed his appreciation that the guidelines were based on the latest nutrition science.  Dr. Thorpe stated that “[n]umerous studies have shown positive benefits of lean beef in the diet, and I commonly encourage my patients to include beef in their diet to help them maintain a healthy weight and get the nutrients they need to be physically active.”