Thursday, May 17, 2018

Agricultural Law Weekly Review—May 17, 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:

Checkoff Programs: USDA Terminates Proposed Organic Checkoff Program
On May 14, 2018, the U.S. Department of Agriculture (USDA) published notice in the Federal Register that the department was terminating a proposed rule that would have established a certified organic products checkoff program (83 FR 22213).  Under the proposed rule, a federal program would have been developed for the national research and promotion of certified organic products.  Program funding was to have been made possible through an assessment, or “checkoff”, levied on certified organic products.  According to USDA, during the rule making process, stakeholder comments revealed a split within the organic industry regarding the proposed program.  USDA stated that because industry support for the program was uncertain, and because of issues regarding “the assessment of non-food products and products ‘made with (specified ingredients)’”, the agency elected to terminate the rule making proceedings.

FSMA: FDA Issues FSMA Small Entity Compliance Guide
On May 14, 2018, the U.S. Food and Drug Administration (FDA) published notice in the Federal Register of the availability of a guidance document entitled: The FDA Food Safety Modernization Act; Extension and Clarification of Compliance Dates for Certain Provisions of Four Implementing Rules: What You Need to Know About the Food and Drug Administration Regulation—Small Entity Compliance Guide (83 FR 22193).  According to FDA, the document provides explanations and clarifications regarding how small entities must comply with the final rule entitled: The Food and Drug Administration Food Safety Modernization Act; Extension and Clarification for Certain Provisions of Four Implementing Rules.  FDA stated that the intent of the guidance document is to reduce the burden encountered by small entities when determining how to comply with the final rule.

International Trade: China Increases Inspections on U.S. Pork Imports
On May 8, 2018, Reuters reported that Chinese customs officials have significantly increased inspections of U.S. pork products entering the country.  According to the report, previously, Chinese customs officials only conducted random inspections of pork shipments arriving from the U.S.   Now, however, at Chinese ports, officials are opening and inspecting each shipments of U.S. pork.  As a result, U.S. pork has been delayed at Chinese ports for up to two weeks, as opposed to the standard few days.  The report stated that numerous trade experts believe the increased inspections and delays are retaliation for recent trade demands made by the U.S. government.  

National Agricultural Policy: USDA Announces 2018 Rates Charged for AMS Services
On May 14, 2018, the U.S. Department of Agriculture Agricultural Marketing Service (AMS) announced the rates that the agency will charge in 2018 for the voluntary grading, inspection, certification, auditing, and laboratory services for certain commodities (83 FR 22239).  Those commodities covered under the announced rates include: meat and poultry, fruits and vegetables, eggs, dairy products, and cotton and tobacco.  According to AMS, rates for 2018 have been increased for meat, poultry and egg grading and the hourly rate for AMS's Laboratory Approval Service.  All other rates, however, remain unchanged from 2017.

Farmland Preservation: American Farmland Trust Issues Report on Farmland Loss
On May 9, 2018, the American Farmland Trust issued a report entitled: Farms Under Threat: The State of America’s Farmland.  According to the report, from 1992 to 2012, almost 31 million acres of U.S. agricultural land was permanently lost to development.  The authors of the report recommend a national agricultural land protection strategy that includes increased funding of the U.S. Department of Agriculture’s Agricultural Conservation Easement Program.


From National Ag Law Experts:


Pennsylvania Case Law:


Pennsylvania Actions and Notices:
Department of Environmental Protection

Environmental Hearing Board


Penn State Research


AgLaw HotLinks:


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Thursday, May 10, 2018

Agricultural Law Weekly Review—May 10, 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:

Right to Farm Laws: Court Reduces Jury Award in Hog Nuisance Case
On May 7, 2018, a U.S. district court reduced a jury award against pork producer Murphy-Brown from $50,750,000 to $3,250,000 (McKiver v Murphy-Brown LLC, No. 7:14-CV-180-BR).  The case involved nuisance complaints from ten neighbors that lived near a swine farm in eastern North Carolina regarding odors that emanated from the operation.  On April 26, 2018, the jury awarded each of the ten neighbors $75,000 in compensatory damages and $5,000,000 in punitive damages.  Subsequently, the court applied North Carolina law which states: “[p]unitive damages awarded against a defendant shall not exceed three times the amount of compensatory damages or two hundred fifty thousand dollars ($250,000), whichever is greater” (N.C. Gen. Stat. § 1D-25(b)).  As a result, the court reduced the jury’s punitive damage award for each of the ten neighbors from $5,000,000 to $250,000.

Food Policy: FDA Extends Nutrition Labeling Compliance Date
On May 4, 2018, the U.S. Food and Drug Administration (FDA) published notice in the Federal Register that the compliance date for updating nutritional information on food labels has been extended by approximately 1.5 years (83 FR 19619) According to the agency, the extension is being issued to allow affect manufactures the ability to: 1) receive FDA guidance and 2) to have sufficient time to comply with the new rules.  As a result of FDA’s action, the compliance date for updating nutritional information on food labels has been extended from July 26, 2019, to January 1, 2021.

Industrial Hemp/Cannabis: Court Upholds CBD Status as a Controlled Substance
On May 3, 2018 the Associated Press reported that the U.S. Ninth Circuit Court of Appeals upheld the Drug Enforcement Administration’s (DEA) determination that cannabidiol (CBD) is a Schedule 1 controlled substance.  As a result, CBD, a substance derived from the cannabis plant, is considered an illegal substance.  Currently, CBD products, including those derived from low tetrahydrocannabinol (THC) hemp, may only be sold when specifically permitted under state law.  With the court’s ruling, however, states that do allow CBD sales are considered to be in violation of federal law.

Menu Labeling: FDA Releases Menu Labeling Guidance
On May 8, 2018, the U.S. Food and Drug Administration (FDA) published notice in the Federal Register of the availability of guidance material entitled “Menu Labeling: Supplemental Guidance for Industry”  (83 FR 20731).  The resource is an attempt by FDA to assist food establishments affected by regulations requiring nutritional labeling on menus.  Accordingly, the guidance material: 1) provides labeling examples, 2) addresses caloric disclosure signage, and 3) provides methods for providing calorie disclosure information.

Food Labeling: USDA Seeks Comment on National Bioengineered Food Disclosure Standard
On May 4, 2018, the U.S. Department of Agriculture Agricultural Marketing Service (AMS) published notice in the Federal Register of a proposed rule to establish the National Bioengineered Food Disclosure Standard  (83 FR 19860).  The proposed rule would require entities that label foods for retail to disclose information regarding bioengineered foods and bioengineered food ingredients.  Comments on the proposed rule must be received by July 3, 2018.


From National Ag Law Experts:


Pennsylvania Case Law:


Pennsylvania Actions and Notices:
Department of Agriculture

Milk Marketing Board


AgLaw HotLinks:

Stay Informed:



Thursday, May 3, 2018

Agricultural Law Weekly Review—May 3, 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:

Right to Farm Laws: Jury Awards Over $50 Million in Hog Nuisance Case
On April 26, 2018, a jury in the U.S. District Court for the Eastern District of North Carolina issued $50,750,000 in damages as a result of manure management practices at a North Carolina hog operation (McKiver v Murphy-Brown LLC, No. 7:14-CV-180-BR).  The case involved neighbor complaints regarding odors that emanated from an agricultural operation that had contracted with pork producer Murphy Brown LLC to raise roughly 15,000 hogs.  The jury determined that each of the ten neighbor plaintiffs in the case was entitled to $75,000 in damages as well as $5,000,000 in punitive damages.  The ruling is the first of twenty-six nuisance cases which have recently been brought against Murphy-Brown LLC, a subsidiary of Smithfield Foods.

Biotechnology: FDA Approves Indiana AquaBounty Salmon Facility
On April 26, 2018, The U.S. Food and Drug Administration (FDA) announced approval of an application by AquaBounty Technologies, Inc. to raise genetically engineered (GE) salmon at a land-based facility near Albany, Indiana.  The company, however, is unable to begin operations at the Indiana facility due to current law prohibiting the importation of the eggs necessary to produce GE salmon.  Accordingly, under Import Alert 99-40, until labeling guidelines have been established, FDA may not permit into interstate commerce food that contains GE salmon.  FDA stated that it considers salmon eggs to meet the definition of food.

Industrial Hemp/Cannabis: Hemp Related Businesses Must Demonstrate they are Legal before Being Eligible for SBA Loans
On April 3, 2018, U.S. Small Business Administration (SBA) issued a policy notice clarifying that a hemp-related business may be eligible to receive SBA financial assistance.  The notice stated that “businesses engaged in any activity that is illegal under federal, state or local law are ineligible for SBA financial assistance.” As a result, the notice asserted that both direct and indirect marijuana businesses are considered ineligible for SBA financial assistance. A hemp-related business, however, may be eligible if the business can demonstrated that its practices and products are legal under federal and state law.  According to the notice, “[e]xamples of legal hemp products include paper, clothing and rope.”

Biofuels: Japan Allows Importation of U.S. Corn-Based Ethanol
On April 17, 2018, the U.S. Grains Council (USGC) announced that Japan’s biofuel policy will now permit the importation of ETBE produced from U.S. corn-based ethanol.  According to USGC, prior to the recent change, Japan allowed only sugarcane-based ethanol for the production of the gasoline additive ETBE.  As a result of Japan’s change in policy, U.S. corn-based ethanol is now authorized to supply up to 44% of the country’s anticipated 217 million gallon demand of ethanol used to produce ETBE.

Food Policy: USDA Issues Revisions and Clarifications for the Processing of Donated Foods
On May 1, 2018, U.S. Department of Agriculture’s Food and Nutrition Service published notice in the Federal Register of a final rule changing the requirements for the processing of donated foods (83 FR 18913).  Under the new rule: (1) multi-State processors must now enter into National Processing Agreements in order to process donated foods into end products and (2) processors may now substitute certain commercially purchased beef and pork for donated beef and pork.  The new rule, which also attempts to streamline and modernize oversight of inventories of donated foods, goes into effect July 2, 2018.

National Ag Law Experts:

Pennsylvania Legislation:
Agriculture and Rural Affairs (H)
  • HB 2169 Legislation amending the Dog Law regarding attacks (referred to committee April 24, 2018)
  • SB 792 Legislation regarding labeling requirements for lawn fertilizer (public hearing scheduled June 5, 2018)

Pennsylvania Actions and Notices:
Milk Marketing Board

State Conservation Commission

AgLaw HotLinks:

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Thursday, April 26, 2018

Agricultural Law Weekly Review—April 26, 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 Ag Committee Advances Farm Bill
On April 18, 2018, the House Agriculture Committee announced that the 2018 Farm Bill has been passed out of committee.  Known formally as the Agriculture and Nutrition Act of 2018 (H.R.2), the proposed legislation was passed on a party-line vote.   According to Agri-Pulse, Committee Chairman Mike Conaway, R-Texas, stated that “he hopes to debate the bill on the House floor sometime in May after ensuring he has enough votes to pass it.”

Food Safety: FDA Releases Inspection Report from Farm Responsible for Recent Egg Recall
On April 18, 2018, the U.S. Food & Drug Administration (FDA) released information regarding the North Carolina farm responsible for the recent recall of nearly 207 million eggs.  According to FDA, on March 5, 2018, the agency became aware of a multi-state outbreak of Salmonella.  Subsequently, From March 26 to April 11, 2018, FDA investigated Rose Acre Farms’ Hyde County farm and collected samples.  During FDA’s investigation of the farm, inspectors observed rodent infestation, insanitary conditions, and poor employee practices.  On April 11, 2018, FDA laboratory analysis confirmed that a sample collected from the Hyde County Egg Farm facility contained Salmonella.  As a result, on April 13, 2018, Rose Acre Farms issued a recall of eggs produced at the Hyde County facility.

Food Safety: GAO Calls on USDA to Reduce Pathogens in Meat and Poultry Products
On April 18, 2018, the U.S. Government Accountability Office (GAO) issued a report providing recommendations to the U.S. Department of Agriculture (USDA) for reducing pathogens in meat and poultry products.  According to GAO, “some of USDA's food safety standards are outdated, with no time frames for revision.” As a result, GOA recommended that USDA: (1) document the process used to determine new pathogen standards; (2) establish time frames for addressing pathogens in beef carcasses, ground beef, pork cuts, and ground pork; and (3) provide information for reducing pathogen levels through on-farm practices.

Food Safety: Arizona Law Extends Egg Expiration Date
On April 11, 2018, Arizona enacted legislation that changed the state’s egg labeling law to allow for a 45 day expiration date on Grade A eggs (HB 2464).  Previously, expiration dates for Grade A eggs sold in Arizona could not exceed 24 days.  According to Feedstuffs, with the passage of HB 2464, Arizona’s Grade A egg expiration date law is now consistent with 48 other states.  Feedstuffs reported that the bill’s sponsor, Rep. Jill Norgaard, asserted that prior to passage of the law, Arizona residents needless discarding more than 2 million eggs a year.   

Disaster Assistance Programs: FSA Announces Change to Livestock Indemnity Program
On April 24, 2018, U.S. Department of Agriculture Farm Service Agency (FSA) announced an administrative clarification to the Livestock Indemnity Program that will allow an additional way to determine disaster assistance eligibility.  In the event an agricultural producer loses livestock from a disease that is the result of a weather disaster, FSA county committees are now permitted “to accept veterinarian certifications that livestock deaths were directly related to adverse weather and unpreventable through good animal husbandry and management.” Accordingly, FSA county committees, on a case-by-case basis, may then use the veterinarian certifications to determine disaster assistance eligibility.

Pesticides: Court Rules California Can Label Products Containing Glyophosphate as Carcinogenic
On April 23, 2018, Efficient Gov reported that a California Appellate Court has determined that the state may require the labeling of products containing glyphosate as probably carcinogenic under the state’s drinking water law.  Under California’s Safe Drinking Water and Toxic Enforcement Act (Proposition 65), California maintains and updates a list of chemicals known to the state to cause cancer or reproductive toxicity.  Additionally, Proposition 65 requires that businesses provide information to consumers about possible exposure to the listed chemicals.

National Ag Law Experts:


Pennsylvania Legislation:
Agriculture and Rural Affairs (H)
  • HB 2293 Legislation to establish the Rural Broadband Deployment Fund (referred to committee April 23, 2018)


Environmental Resources and Energy (H)
  • HB 2281 Legislation to provide for municipal regulation of the deposit, disposal or land application of biosolid material (referred to committee April 23, 2018)


Pennsylvania Actions and Notices:
Department of Agriculture


Department of Health


AgLaw HotLinks:


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Thursday, April 19, 2018

Agricultural Law Weekly Review—April 19, 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:

Checkoff Programs: Court Rules Beef Checkoff May Conflict with First Amendment
On April 9, 2018, the U.S. Court of Appeals for the Ninth Circuit held that a lower court “did not abuse its discretion” when it determined that the U.S. Department of Agriculture's beef checkoff program likely violated the First Amendment rights of the Ranchers-Cattlemen Action Legal Fund, United Stockgrowers of America (R-CALF USA) (R-CALF USA  v Perdue, No. 17-35669, D.C. No. 4:16-cv-00041-BMM).  As a result, the court upheld a preliminary injunction preventing the Montana Beef Council from using beef checkoff funds collected from Montana ranchers without the ranchers’ consent.  

Biosecurity: USDA Proposes Changes to National Poultry Improvement Plan and Auxiliary Provisions
On April 9, 2018, the U.S. Department of Agriculture’s Animal and Plant Health Inspection Service (APHIS) published notice of a proposed rule amending regulations regarding the National Poultry Improvement Plan (NPIP) (83 FR 15082). According to APHIS, the purpose of NPIP is to prevent and control poultry diseases through a variety of voluntary programs.  To further this purpose, the proposed rule would provide updates and clarification to several program provisions including “those concerning NPIP participation, voting requirements, testing procedures, and standards.” Comments on the proposed rule must be submitted by May 9, 2018.

Organic Agriculture: USDA Reopens Comment Period for Proposed Changes to the National List of Allowed and Prohibited Substances
On April 13, 2018, the U.S. Department of Agriculture Agriculture Marketing Service published notice that the agency is reopening the comment period for proposed changes to the National List of Allowed and Prohibited Substances (83 FR 16010).  Under the proposed rule, the agency would: (1) alter use restrictions for seventeen substances currently allowed for organic production or handling on the National List; (2) add sixteen new substances on the National List to be allowed in organic production or handling; and (3) remove ivermectin as an allowed parasiticide for use in organic livestock production.  Initially, the comment period on the proposed changes closed on March 19, 2018.  The new comment period, which is intended to provide more time to develop comments on the proposed rule, is scheduled to close May 14, 2018.

Food Safety: E. coli Outbreak Linked to Chopped Romaine Lettuce
On April 13, 2018, the U.S. Food and Drug Administration (FDA)  and the Centers for Disease Control and Prevention (CDC) announced that chopped romaine lettuce sourced in Yuma, Arizona may be the cause of a multistate outbreak of E. coli O157:H7.  According to CDC, while 35 people in 11 states have become ill from chopped romaine, no illnesses have been reported from consumption of whole heads or hearts of romaine.  Traceback investigations are currently being conducted to determine the source of the contamination.

International Trade: U.S. Pork Permitted into Argentina
On April 13, 2018, the U.S. Department of Agriculture (USDA) and the Office of the U.S. Trade Representative (USTR) announced that requirements have been finalized to allow U.S. pork to enter Argentina for the first time since 1992.  The announcement follows terms originally negotiated between the White House and Argentina in August 2017.  As a result of the finalization of the technical requirements, U.S. exports of pork to Argentina may once again resume.  USDA and USTR anticipate that the reopening of Argentina will result in an additional $10-million annual market for U.S. pork producers.

Farmland Preservation: Pennsylvania Adds 27 Farms to Farmland Preservation Program
On April 16, 2018, the Pennsylvania Department of Agriculture (PDA) announced that an additional 27 farms, totaling 2,793 acres, have been preserved under the Commonwealth’s Farmland Preservation Program.  The farms are located in the following counties: Berks, Bucks, Centre, Chester, Erie, Juniata, Lancaster, Lawrence, Lebanon, Lehigh, Luzerne, Mercer, Northampton, Susquehanna, and York.  According to PDA, with the addition of the 27 recently preserved farms, Pennsylvania’s Farmland Preservation Program has purchased permanent easements on 5,297 farms totaling 549,728 acres.

National Ag Law Experts:


Pennsylvania Case Law:


Pennsylvania Legislation:
Agricultural and Rural Affairs (S)
  • HB 2034 Legislation to include the chemical element molybdenum in the labeling requirements for agricultural liming materials (referred to committee April 11, 2018) 


Pennsylvania Actions and Notices:
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Thursday, April 12, 2018

Agricultural Law Weekly Review—April 12, 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:

Antitrust: U.S. Approves Bayer Monsanto Merger
On April 11, 2018, Fortune reported that the U.S. Justice Department has approved Bayer AG’s $62.5 billion acquisition of Monsanto Co.  The anticipated merger will result in a company that controls over one quarter of the world’s seed and pesticide market.  To gain U.S. approval, Fortune stated that Bayer will sell certain assets to its German competitor BASF.  These assets “include the company’s soybean and cottonseed businesses as well as its glufosinate weedkiller, which is a direct competitor to Roundup, a central element of Monsanto’s business.”

Right to Farm Laws: Alaska Supreme Court Rules Storage Lagoons not protected Under Right to Farm Law
On April 6, 2018, the Supreme Court of Alaska held that a farmer’s septage storage lagoons were not protected by the state’s Right to Farm Act (RTFA) (Riddle v. Lanser, Supreme Court No. 7235 – April 6, 2018).  Under Alaska’s RTFA, “an agricultural facility or an agricultural operation at an agricultural facility used for commercial purposes cannot become a nuisance based on changes in surroundings if it was not a nuisance when it started” (AS 09.45.235(a)).  The court held that the RTFA did not apply because the farmer’s septage lagoons were not used as part of the farmer’s agricultural operation.  Instead, the lagoons were used to store septage from the farmer’s separate septic pumping and storing business.  The court held that even if the storage lagoons eventually became part of the agricultural operation, the lagoons were not used, or intended to be used, “in any farming capacity until after the lagoons had already become a nuisance.”

Agricultural Labor: ICE Raids Tennessee Meat-Processing Facility
On April 6, 2018, the Washington Post reported that Immigration and Customs Enforcement (ICE) officials arrested 97 immigrants at a meat-processing facility in Tennessee.  According to an ICE spokesperson, all 97 immigrants were arrested under suspicion of being in the country illegally.  The report stated that federal agents began investigating the meat-processing facility after bank employees noticed the company making large weekly withdraws of cash.  Accordingly, since 2008, the meat-processing facility’s total weekly cash withdraws have exceeded $25 million.  

Dairy Policy: Agriculture Department Asks Pennsylvania Milk Marketing Board to Consider Reforms
On April 5, 2018, the Pennsylvania Department of Agriculture (PDA) announced it has requested that the Pennsylvania Milk Marketing Board consider solutions to challenges currently faced by the Commonwealth’s dairy industry.  According to PDA, over the last two years, Pennsylvania dairy producers have experienced declining milk prices due to “sustained pressures on domestic and international markets, declining fluid milk consumption, and growing production levels.” In an effort to help these struggling producers, PDA stated that a formal petition has been submitted to the Milk Marketing Board requesting a hearing to consider potential reforms.

Farmland Preservation: Rhode Island Announces Farmland Purchase Program
On April 4, 2018, the Associated Press reported that Rhode Island will begin a program designed to help new farmers purchase farmland.  According to the report, the state will use farmland preservation funds to purchase farms at full appraised value; taking into consideration the land’s value if developed.  Following purchase, Rhode Island will then sell the land to new farmers at a price based on the land’s appraised agricultural value.  Land purchased through the program must remain in farming.    

National Ag Law Experts:

 Pennsylvania Case Law:

Pennsylvania Legislation:
Agriculture and Rural Affairs (S)
  • SB 1076  Legislation to expand and increase the Farmers’ Market Development Program (referred to committee April 6, 2018)

 Pennsylvania Actions and Notices:
Independent Regulatory Review Commission

 AgLaw HotLinks:

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