Thursday, March 23, 2017

Agricultural Law Weekly Review—March 23, 2017

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:

Water Litigation: Court Dismisses Des Moines Water Works Case
On March 17, 2017, the U.S. District Court, N.D. Iowa, Western Division dismissed a lawsuit brought by a municipal water utility against various water drainage districts organized under Iowa law (Board of Water Works Trustees of the City of Des Moines, Iowa v. SCA County Board of Supervisors, 2017 WL 1042072).  The municipal water utility alleged that due to the actions of the water drainage districts, additional costs were necessary to “cover the costs of complying with federal and state clean water regulations” The court disagreed and held that while a municipal water utility may have suffered an injury, under current Iowa law, “drainage districts lack the ability to redress that injury.”

Ag-Gag: “Unauthorized Access” Bill Heads to Arkansas Governor
On March 17, 2017, the Arkansas House passed HB1665 entitled: To Create Cause of Action for Unauthorized Access to Another Person's Property.  The legislation would create a civil cause of action for unauthorized access to agricultural property and covers an employee that “[r]ecords images or sound occurring within an employer's commercial property and uses the recording in a manner that damages the employer.”  Currently, HB 1665 awaits action by Arkansas Governor Asa Hutchinson. 

Avian Influenza: Recent Detection and State Action
Recently, Tennessee, Kentucky, and Alabama have released statements regarding the detection of avian influenza:
·         Tennessee: On March 17, 2017, the Tennessee Department of Agriculture (TDA) announced that depopulation was completed on the second confirmed HPAI location in Lincoln County, TN.  On March 20, 2017, TDA stated that “[a]ll samples from poultry within the surveillance zones continue to test negative for avian influenza.
·         Kentucky:  On March 20, 2017, the Kentucky Department of Agriculture announced that federal and state authorities have confirmed the presence of H7N9 low pathogenic avian influenza in samples taken from a commercial poultry flock in western Kentucky.
·         Alabama: On March 16, 2017, the Alabama Department of Agriculture and Industries (ADAI) announced confirmation that “the sample collected from a guinea fowl at the TaCo-Bet Trade Day flea market in Scottsboro, located in Jackson County, Alabama…[has] tested positive for low pathogenic H7N9 avian influenza (LPAI).” On March 21, 2017, (ADAI) announced confirmation "that a flock of chickens at a commercial poultry breeding operation...and a backyard flock...have both tested positive for low pathogenic avian influenza (LPAI)." 

Industrial Hemp: Pennsylvania Authorizes 16 Research Projects
On March 16, 2017, the Pennsylvania Department of Agriculture (PDA) announced the approval of “16 research proposals that seek to demonstrate the value and viability of industrial hemp cultivation in the state.” According to PDA, “[t]he projects were approved under the new Industrial Hemp Research Pilot Program, which the department launched in December after Governor Tom Wolf and the General Assembly enacted Act 92 of 2016.” Included among the approved projects was Penn State University’s proposal “to compare six varieties under different growing conditions (planting dates, seed densities, tillage regimens and nitrogen levels); track plant height, yield, disease and insect impact to develop draft production recommendations for PA.”

Pesticides: FIFRA Scientific Advisory Panel Issues Report Regarding Carcinogenic Potential of Glyphosate
On March 16, 2017, the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) Scientific Advisory Panel (SAP) issued a final report regarding FIFRA SAP’s open public meeting held from December 13, 2016, to December 16, 2016.  The “meeting [was] held to consider and review scientific issues associated with EPA's evaluation of the carcinogenic potential of glyphosate.” According to the report, Panel members disagreed over the conclusion that “glyphosate is ‘not likely to be carcinogenic to humans,’ especially at reasonably foreseeable dose-rates.” The report stated that “[s]ome Panel members agreed with this characterization, while other Panel members felt that the better descriptor for glyphosate is ‘suggestive evidence of carcinogenic potential.’”

PA Legislation: Bills Referred to House Agricultural and Rural Affairs Committee
During the current Pennsylvania Regular Session 2017-2018, four bills have been referred to the House Agricultural and Rural Affairs Committee:
·         HB 187: Amending the Agricultural Security Area law to allow for wind energy on certain preserved farms
·         HB 790: Repealing the Noxious Weed Control Law (Act 74 of 1982) and replacing it with the Controlled Plant and Noxious Weed Act.
·         HB 872: Requiring food service employees of retail food establishments to obtain first aid training in CPR and the Heimlich maneuver.
·         HB 885: Allowing farmers who have placed their land under an agricultural conservation easement with the state the ability to permit a trail easement through their property.

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Thursday, March 16, 2017

Agricultural Law Weekly Review—March 16, 2017

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:

HPAI: Second Flock Confirmed in Tennessee
On March 16, 2017, the Tennessee Department of Agriculture (TDA) issued a press release announcing “that a strain of highly pathogenic avian influenza (HPAI) has sickened a second commercial chicken breeder flock within the existing controlled quarantined zone in Lincoln County, Tenn.” According to TDA, federal officials confirmed the positive test on March 14, 2017, and that depopulation of the affected premises has begun.  This recent confirmation follows the previous March 5, 2017, confirmation of a separate flock in Lincoln County, Tenn.

Biosecurity: PDA Issues Statement Following Positive HPAI Test in Tennessee
On March 10, 2017, the Pennsylvania Department of Agriculture (PDA) issued a press release following the confirmation of highly pathogenic avian influenza in a Tennessee poultry flock on March 5, 2017.  In the press release, PDA urged both “poultry producers and backyard enthusiast to take important steps that can help to protect domestic flocks.” According to PDA biosecurity plans should be put into place that “focuses on cleanliness and isolating domestic birds from those in the wild.” PDA stated that “[e]ven though this case in Tennessee is hundreds of miles from Pennsylvania’s borders, we must be on guard…[because] [i]t’s migration season for wild birds, which can carry this disease.”   

Avian Influenza: Alabama Issues Stop Movement Order for Poultry
On March 14, 2017, the Alabama Department of Agriculture and Industry (ADAI) issued a press release announcing a stop movement order for certain poultry in Alabama.  According to ADAI, the stop movement order is the result of three suspected avian influenza cases within the state.  Currently, investigations are being conducted on a commercial breeder operation in Lauderdale County and a backyard flock in Madison County.  ADAI stated that “[s]amples from both premises have been sent to the USDA National Veterinary Services Laboratories (NVSL) in Ames, Iowa and are being tested to determine presence of the virus.” Additionally, on March 12, 2017, suspected samples have been collected from a Jackson County flea market and have been sent to NVSL for testing.

Enforcement: USDA Alleges Wrongdoing under Perishable Agricultural Commodities Act  
On March 15, 2017 the U.S. Department of Agriculture (USDA) announced the filing of “an administration action under the Perishable Agricultural Commodities Act (PACA) against J & R Fresh Produce LLC.” According to USDA, J & R Fresh Produce LLC “allegedly failed to make payment promptly to seven produce sellers in the amount of $281,225 from August 2015 through June 2016.” USDA stated that the PACA Division “is part of USDA’s Agricultural Marketing Service (AMS) and regulates fair trading practices of produce businesses that are operating subject to PACA including buyers, sellers, commission merchants, dealers and brokers within the fruit and vegetable industry.”

Food Safety: Court Enters Permanent Injunction Preventing Distribution of Adulterated Milk Powder Products
On March 15, 2017, the U.S. Department of Justice (DOJ) announced that the U.S. District Court for the Western District of Virginia has entered a consent decree of condemnation and permanent injunction regarding the contamination of certain milk powder products at Valley Milk Products’ Strasburg, Virginia facility.  According to the press release, DOJ “alleged that certain milk powder products of the defendants were manufactured under insanitary conditions whereby they may have become contaminated with filth, and/or whereby they may have been rendered injurious to health.” Additionally, “[t]he defendants have also agreed to be bound by a permanent injunction that prohibits them from resuming the manufacture of milk powder products at the Strasburg facility without implementing effective corrective action.”

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Thursday, March 9, 2017

Agricultural Law Weekly Review—March 9, 2017

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:

HPAI: USDA Confirms Avian Influenza in Tennessee Chicken Flock
On March 5, 2017, the United States Department of Agriculture’s (USDA) Animal and Plant Health Inspection Service (APHIS) announced that the agency had “confirmed the presence of highly pathogenic H7 avian influenza (HPAI) of North American wild bird lineage in a commercial chicken breeder flock in Lincoln County, Tennessee.” USDA stated that the infected flock, which consisted of 73,500 birds, “is the first confirmed case of HPAI in commercial poultry in the United States this year.” According to USDA, the virus “is NOT the same as the China H7N9 virus that has impacted poultry and infected humans in Asia.”

WOTUS: Agencies Announce Intention to Review Clean Water Rule
On March 6, 2017, the U.S. Environmental Protection Agency (EPA) and the Department of the Army (Army) published notice in the Federal Register “announc[ing] its intention to review and rescind or revise the Clean Water Rule” (82 FR 12532).  The notice was published in response to the February 28, 2017, Presidential Executive Order directing the agencies “to review and rescind or revise the 2015 Rule.” Accordingly, “EPA and the Army announce[d] their intention to review that rule, and provide advanced notice of a forthcoming proposed rulemaking consistent with the Executive Order…[and] [i]n doing so…will consider interpreting the term “navigable waters,” as defined in the CWA in a manner consistent with the opinion of Justice Scalia in Rapanos.

REAP: PDA Announces Availability of Tax Credits to PA Farmers for Conservation and Nutrient Plans to Improve Soil, Water Quality
On March 3, 2017, the Pennsylvania Department of Agriculture (PDA) announced the availability “of a tax credit program that can help [farmers] develop plans and install measures that reduce nutrient and sediment runoff.” According to PDA, “[f]armers can use Resource Enhancement and Protection (REAP) program tax credits to help offset the cost of writing conservation plans and nutrient management plans, purchasing conservation equipment, and implementing best management practices (BMPs) for their operations.” Information regarding REAP, which is administered by the Pennsylvania State Conservation Commission, is available on PDA’s website or through contacting Joel Semke at 717.705.4032 or jsemke@pa.gov.

COOL: Australia Passes Country of Origin Labeling Law
On March 7, 2017, the Crookwell Gazette stated that “the Australian Government has passed the final tranche of Country of Origin Labeling laws through parliament.”  Included in the laws is a requirement that labels “show a kangaroo in a triangle to state the food is manufactured, produced, packaged or grown in Australia; and a bar chart indicating the proportion of Australian ingredients.” Businesses will be given a two year period to implement the new laws.

Litigation: Court Dismisses Food Safety Lawsuit against Chipotle
On March 8, 2017, Reuters reported that Chipotle Mexican Grill Inc. “won the dismissal of a lawsuit claiming it defrauded shareholders about its ability to protect customers from at least seven norovirus, E.coli and salmonella outbreaks that erupted in 2015.” According to Reuters, the U.S. District Court in Manhattan held that “shareholders failed to show that Chipotle improperly concealed the seriousness of food-borne illness outbreaks, the status of a federal probe into an E.coli outbreak, and how its alleged inability to monitor food safety raised the risk of outbreaks.” Shareholders had filed the lawsuit following Chipotle's share price declining “47 percent in just over five months from its August 2015 peak above $758.”

Invasive Species: Pennsylvania Expands Spotted Lanternfly Quarantine
On March 6, 2017, the Pennsylvania Department of Agriculture (PDA) announced that Coopersburg Borough and Salisbury Township have been added to the state’s Spotted Lanternfly quarantine.  “The quarantine, which affects parts of six Pennsylvania counties, restricts movement of any material or object that can spread the pest.”  According to PDA, the Spotted Lanternfly is native to China, India, Japan, and Vietnam and “had not been found in the United States prior to its initial detection in Berks County [Pennsylvania] in the fall of 2014.”

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Tuesday, March 7, 2017

Agricultural Law in the Spotlight: Executive Order on the “Waters of the United States” Rule

Written by M. Sean High—Staff Attorney and Errin McCaulley – Research Assistant

On February 28, 2017, President Donald J. Trump signed an Executive Order directing the Administrator of the Environmental Protection Agency (Administrator) and the Assistant Secretary of the Army for Civil Works (Assistant Secretary) to review the current federal “Waters of the United States” rule (WOTUS).  The outcome of this review could have significant implications for both the agricultural and energy sectors. 

Under the Executive Order, the Administrator and Assistant Secretary are required to review WOTUS to determine if the current rule is consistent with the order’s stated policy:

[T]o ensure that the Nation’s navigable waters are kept free from pollution, while at the same time promoting economic growth, minimizing regulatory uncertainty, and showing due regard for the roles of the Congress and the States under the Constitution.

Upon completion of this review, the Administrator and Assistant Secretary are to propose a rule either rescinding or revising the current rule.  Regarding ongoing WOTUS litigation, the Attorney General is permitted to inform “any court of such review and take such measures as he deems appropriate concerning any such litigation pending the completion of further administrative proceedings related to the rule.” Significantly, for future WOTUS rulemaking, “the Administrator and Assistant Secretary shall consider interpreting the term ‘navigable waters,’ as defined in 33 U.S.C. 1362(7), in a manner consistent with the opinion of Justice Antonin Scalia in Rapanos v. United States, 547 U.S. 715 (2006).”

Background
Clean Water Act
Congress, in amending the Federal Water Pollution Control Act, passed the Clean Water Act (CWA) “to restore and maintain the chemical, physical, and biological integrity of the Nation's waters.” 33 U.S.C. § 1251(a).  Generally, CWA empowers the Environmental Protection Agency (EPA) and Army Corps of Engineers (ACE) to regulate pollutant discharges into “navigable waters.” 33 U.S.C. § 1311(a).  The phrase “navigable waters,” is further defined as “the waters of the United States, including the territorial seas.” 33 U.S.C. § 1362(7).  

Rapanos
Persistent disputes over the meaning of “waters of the United States” led to a series of cases and resulted in the U.S. Supreme Court’s attempt to define “waters of the United States” in the case Rapanos v. United States, 547 U.S. 715 (2006).  In Rapanos, the Supreme Court concluded that ACE’s interpretation of the phrase “waters of the United States” was an impermissible construction of the CWA.  Id. at 739.  Nevertheless, the Court also appeared to invite rulemaking to further clarify the meaning of “the waters of the United States.” Id. at 718. 

Justice Antonin Scalia, who authored the plurality opinion, stated that regarding the phrase “navigable waters”:
“[T]he waters of the United States” includes only those relatively permanent, standing or continuously flowing bodies of water “forming geographic features” that are described in ordinary parlance as “streams[,] ... oceans, rivers, [and] lakes.” . . . The phrase does not include channels through which water flows intermittently or ephemerally, or channels that periodically provide drainage for rainfall.
Rapanos, 547 U.S. at 739.

In a concurring opinion, however, Justice Anthony Kennedy developed a “significant nexus” test for determining federal jurisdiction over the Nation’s waters.  Justice Kennedy derived the “significant nexus” test from two earlier cases, Solid Waste Agency of Northern Cook Cty. v. Army Corps of Eng’rs, 531 U.S. 159 (2001) (SWANCC) and United States v. Riverside Bayview Homes, Inc., 474 U.S. 121 (1985) (Bayview Homes).  According to Justice Kennedy, prior to EPA or ACE asserting CWA jurisdiction over a wetland:
[T]he wetlands, either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as “navigable.” When, in contrast, wetlands’ effects on water quality are speculative or insubstantial, they fall outside the zone fairly encompassed by the statutory term “navigable waters.”
Rapanos, 547 U.S. at 780.  

In reference to Justice Kennedy’s opinion, Justice Scalia read the “significant nexus” test narrowly.  In addressing Justice Kennedy’s analysis, Justice Scalia noted that SWANCC and Bayview Homes rejected the notion that either EPA or ACE could rely upon ecological connectivity alone as a basis for CWA jurisdiction. Rapanos, 547 U.S. at 741.  Additionally, after a thorough analysis of the development of the “significant nexus” test in those cases, Justice Scalia reasoned that the “significant nexus” test is intended only to resolve a narrow ambiguity in the CWA, namely to determine where a navigable water ends and a wetland, marsh, or other feature begins. Justice Scalia wrote:
[O]nly those wetlands with a continuous surface connection to bodies that are “waters of the United States” in their own right, so that there is no clear demarcation between “waters” and wetlands, are “adjacent to” such waters and covered by the Act. Wetlands with only an intermittent, physically remote hydrologic connection to “waters of the United States” do not implicate the boundary-drawing problem of Riverside Bayview, and thus lack the necessary connection to covered waters that we described as a “significant nexus” in SWANCC.
Rapanos, 547 U.S. at 741. Ultimately, Justice Scalia concluded, in order for a feature to be within the scope of the CWA, the feature must either satisfy the definition of “waters of the United States,” provided above, or maintain a “continuous surface connection” with a water that meets the definition of “waters of the United States.” Id. 

WOTUS
In promulgating WOTUS, EPA and ACE explicitly based the final rule on Justice Kennedy’s “significant nexus” analysis. See 80 Fed. Reg. 37,056 (June 29, 2015).  Additionally, EPA and ACE relied upon Justice Kennedy’s reading of the purpose of the CWA.  The agencies concluded “the critical factor in determining the CWA’s coverage is whether a water has a ‘significant nexus’ to downstream traditional navigable waters such that the water is important to protecting the chemical, physical, or biological integrity of the navigable water.” 80 Fed. Reg. 37,056 (June 29, 2015).  As a result, the “significant nexus” analysis per WOTUS focuses generally on ecological connectivity, physical indicators such as a high-water mark, geographic proximity to navigable waters, and a contested feature’s location within a 100-year floodplain.

Currently, WOTUS is not in force due to a nationwide stay of the final rule issued by the Court of Appeals for the Sixth Circuit. See In re EPA, 803 F.3d 804 (6th Cir. 2015).   

Conclusion
If EPA and ACE substantially adopt Justice Scalia’s opinion in Rapanos, many provisions in WOTUS will require revision. Several of the eight categories of features EPA and ACE announced in WOTUS to be jurisdictional waters under CWA likely fail Justice Scalia’s analysis.  For example, WOTUS includes in its coverage prairie potholes and pocosins. 80 Fed. Reg. 37,105 (June 29, 2015).  These features, however, generally lack a continuous surface connection with “waters of the United States.”

Although a specific timeline for agency review of WOTUS was not provided in the Executive Order, EPA and ACE cannot simply repeal WOTUS; the agencies must issue a proposed rule to revise or replace the rule.  In response to the Executive Order, EPA and ACE stated: “[a] revised rulemaking based ‘on a reevaluation of which policy would be better in light of the facts’ is ‘well within an agency’s discretion.’” 82 Fed. Reg. 12,532 (Mar. 6, 2017).  This rulemaking process could last well over a year as the notice-and-comment period for the previous WOTUS rulemaking process resulted in over one million comments after the proposed rule’s publication in April 2014. 

Thursday, March 2, 2017

Agricultural Law Weekly Review—March 2, 2017

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:

WOTUS: President Signs Executive Order Reviewing “Waters of the United States” Rule
On February 28, 2017, President Donald J. Trump signed an Executive Order directing the Administrator of the Environmental Protection Agency (Administrator) and the Assistant Secretary of the Army for Civil Works (Assistant Secretary) to review the current federal waters of the United States rule (WOTUS).  Upon completion of this review, the Administrator and Assistant Secretary are to propose a rule either rescinding or revising the current rule.  For future WOTUS rulemaking, “the Administrator and Assistant Secretary shall consider interpreting the term ‘navigable waters,’ as defined in 33 U.S.C. 1362(7), in a manner consistent with the opinion of Justice Antonin Scalia in Rapanos v. United States, 547 U.S. 715 (2006).”

Labeling: Court Affirms Denial of Egg Carton Labeling
On February 27, 2017, the United States Court of Appeals for the Ninth Circuit affirmed a lower court ruling denying the mandatory labeling of egg-laying hen conditions on egg cartons (Compassion over Killing v. U.S. Food & Drug Administration, D.C. No. 3:13-cv-01385-VC).  The court held that the Food Safety and Inspection Service and the Agricultural Marketing Service lacked the authority to promulgate such mandatory labeling of shell eggs.  Additionally, the court held that the Federal Trade Commission reasonably denied the plaintiff’s request based on its discretion.  Finally, the court held that the Food & Drug Administration provided a reasonable explanation for denying the plaintiff’s request.

Animal Health: Pennsylvania Deer Tests Positive for Chronic Wasting Disease
On February 28, 2017, the Pennsylvania Department of Agriculture (PDA) announced that a captive Pennsylvania deer has tested positive for Chronic Wasting Disease (CWD).  According to PDA, the deer died on a Bedford County farm in January 2017 and was confirmed positive for CWD on February 10, 2017.  Pennsylvania Agriculture Secretary Russell C. Redding stated that “[w]hile CWD is no danger to public health and has never been associated as a human health concern, we will continue to work with deer farmers and sportsmen to protect the health of Pennsylvania’s deer.” The farm where the deer died is currently under quarantine.

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Tuesday, February 28, 2017

Agricultural Law in the Spotlight: Federal Court Rules against Application of Pennsylvania Equine Activity Immunity Act

Written by M. Sean High—Staff Attorney

On September 26, 2016, the United States District Court, M.D. Pennsylvania denied a motion for summary judgement seeking dismissal of an injury claim involving a Pennsylvania equine facility.  (Melendez v. Happy Trails and Riding Center, Inc., 2016 WL 5402745).  The claim alleged that the plaintiff, Wilberto Melendez, suffered an injury at Happy Trails and Riding Center due to defective equipment supplied by the equine facility.  The motion, filed by the defendant owner of the equine facility, sought dismissal of the case due to immunity protection resulting from: (1) a signed waiver and (2) the Pennsylvania Equine Activity Immunity Act (EAIA).

Background
On May 31, 2014, Melendez visited defendant’s equine facility for the purpose of engaging in horseback riding.  Prior to taking part in any equine activity, Melendez signed an agreement assuming the risk of all activities relating to horseback riding.  Additionally, signs were prominently posted at defendant’s facility stating: “You assume the risk of equine activities pursuant to Pennsylvania Law.”

While at the defendant's equine facility, Melendez engaged in horseback riding with a horse and saddle supplied by the defendant.  During this time, a stirrup on the saddle Melendez was using broke and Melendez fell to the ground.  According to Melendez, the fall resulted in his suffering fractured ribs and pneumothorax.  Subsequently, Melendez brought suit alleging that the defendant had negligently furnished defective equipment which directly resulted in his injury.

In response, the equine facility owner sought to dispose of the claim, through summary judgement, on two separate grounds.  First, the defendant argued that the waiver Melendez signed covered broken equipment and provided immunity under the facts presented.  Second, the defendant claimed that as a qualifying equine facility, it was entitled to liability protection under EAIA.

Ruling
Regarding the signed waiver, the court agreed that the document contained language protecting the defendant from negligence.  Melendez, however, contended that the defendant’s conduct “amount[ed] to recklessness and exculpatory agreements cannot immunize reckless conduct.”

The court agreed that the waiver only provided immunity for negligence and not for recklessness.  The court stated that the defendant’s “bare assertion that its actions do not rise to the level of recklessness does not satisfy its burden to show that there is no genuine dispute as to the material fact.” As a result, the court ruled that the signed waiver did not provide “a sufficient basis for summary judgement.”   

Next, the court addressed the application of EAIA. 

Under EAIA, a qualifying equine facility that demonstrates proper signage, and that a plaintiff knowingly assumed the risk of the equine activities, is granted immunity from liability. (4 P.S. §§ 601-606).  Melendez acknowledged that signage at defendant’s equine facility was proper.  Nevertheless, Melendez argued that EAIA did not apply because he was not aware that the stirrup could possibly be defective, and thus could not have knowingly assumed the risk. 

The court agreed, maintaining that under EAIA a "Defendant must show that [a] Plaintiff knew that the equipment he was provided with might break and voluntarily continued with the horseback ride in spite of that knowledge." The court stated that this was not “a case where the risk is so obvious that the knowledge could be inferred.” The court ruled that because the defendant did not show that Melendez decided to use the equipment with knowledge that the stirrup could possibly fail, the defendant was not entitled to EAIA protection.

Conclusion
The court’s ruling raises the issue of how Pennsylvania equine facilities are to establish the assumption of risk for possible equipment failure under EAIA.  Significantly, because the decision was issued by a federal court, Pennsylvania courts are not bound by the holding.  Nevertheless, equine facility owners should be aware that Pennsylvania courts may find the decision persuasive and choose to rule in similar fashion.  

Thursday, February 23, 2017

Agricultural Law Weekly Review—February 23, 2017

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:

Biosecurity: Illegal Horsemeat Seized by Border Officials
On February 16, 2017, the U.S. Department of Homeland Security U.S. Customs and Border Protection (CBP) announced that undocumented horsemeat has recently been seized by department agents.  According to CBP, on January 29, 2017, two travelers from Mongolia attempted to enter the U.S. with 42 lbs. of horsemeat concealed inside juice boxes.  CBP stated that due to concerns of foot and mouth disease, “[h]orsemeat is prohibited from entering the United States if it is not accompanied by an official government horsemeat certification from the country or government it originates.” The Mongolian travelers were not criminally charged and were released to continue their visit.  Subsequently, CBP incinerated the seized horsemeat.

Animal Welfare: APHIS Animal Welfare Act Compliance Resources
On February 17, 2017, the U.S. Department of Agriculture (USDA) Animal and Plant Health Inspection Service (APHIS) announced the posting of documents relating to the regulating of federal research facilities under the Animal Welfare Act.  According to APHIS, the documents are annual reports of research institutions and inspection reports and “are part of a comprehensive review of the documents the Agency removed from its website in early February.” The documents are available for review on the APHIS website.

Biotechnology: Chinese Scientist found Guilty of Stealing Engineered Rice
On February 16, 2017, the U.S. Justice Department (DOJ) announced that a Chinese scientist has been found guilty of “conspiring to steal samples of a variety of rice seeds from a Kansas biopharmaceutical research facility.” According to DOJ, Weiqiang Zhang, a Chinese national residing in Manhattan, Kansas, worked as a rice breeder for Ventria Bioscience (Ventria).  DOJ stated that “in the summer of 2013, personnel from a crop research institute in China visited Zhang” in Kansas and that “U.S. Customs and Border Protection officers found seeds belonging to Ventria in the luggage of Zhang’s visitors as they prepared to leave the United States for China.” As a result, Zhang “was convicted on one count of conspiracy to steal trade secrets, one count of conspiracy to commit interstate transportation of stolen property and one count of interstate transportation of stolen property.”

Labeling: Meeting Announced for Use of Term “Healthy”
On February 16, 2017, the U.S. Food and Drug Administration (FDA) published notice in the Federal Register announcing a “public meeting entitled “Use of the Term `Healthy' in the Labeling of Human Food Products” (82 FR 10868).  According to FDA, “[t]he purpose of the public meeting is to give interested persons an opportunity to discuss the use of the term ‘healthy’ in the labeling of human food.” The meeting is scheduled to be held on March 9, 2017, from 8:30 a.m. until 5:30 p.m. at the Hilton Washington DC/Rockville Hotel, in Rockville MD.

COOL: Extension of Comment Period for Venison Requirements
On February 17, 2017, U.S. Department of Agriculture (USDA) Agricultural Marketing Service (AMS) published notice in the Federal Register announcing a comment period extension regarding proposed amendments to the Country of Origin Labeling (COOL) regulations (82 FR 10966).  AMS stated that the new amendments seek to add the “regulation of muscle cuts of venison and ground venison to mandatory COOL requirements.” Accordingly, the comment period the proposed change has been extended from March 14, 2017, to April 13, 2017.

National Organic Program: Extension of Comment Period for Allowed and Prohibited Substances  
On February 17, 2017, U.S. Department of Agriculture (USDA) Agricultural Marketing Service (AMS) published notice in the Federal Register announcing a comment period extension for a proposed rule regarding the National Organic Program (82 FR 10967).  According to AMS, “[t]he proposed rule would remove eleven substances from the National List of Allowed and Prohibited Substances for use in organic production and handling.” The comment period for the proposed rule has been extended from March 20, 2017, to April 19, 2017.

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