Thursday, May 26, 2016

Agricultural Law Weekly Review—May 26, 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 agriculture:

Labeling: FDA Revises Nutritional Labels
On May 20, 2016, the Food and Drug Administration (FDA) issued an unpublished notice in the Federal Register regarding revisions to the regulations governing nutritional and supplemental facts labels (2016-11867).  According to the pre-publication final rule, the amendment “updates the list of nutrients that are required or permitted to be declared; provides updated Daily Reference Values and Reference Daily Intake values that are based on current dietary recommendations from consensus reports; amends requirements for foods represented or purported to be specifically for children under the age of 4 years and pregnant and lactating women and establishes nutrient reference values specifically for these population subgroups; and revises the format and appearance of the Nutrition Facts label.” The final rule is scheduled for publication on May 27, 2016, and becomes effective on July 26, 2016.

Labor: DOL Finalizes “White Collar” Overtime Regulations
On May 23, 2016, the Department of Labor (DOL) Hour and Wage Division published notice in the Federal Register of a final rule revising “regulations under the FLSA [Federal Labor Standards Act] implementing the exemption from minimum wage and overtime pay for executive, administrative, professional, outside sales, and computer employees” (81 FR 32391).  Commonly known as the “EAP” or “white collar” exemptions, DOL’s final rule increases the current annual salary threshold for the exemption from $23,660 ($455/week) to $47,476 ($913/week).  The new regulations become effective December 1, 2016.

GE Food: Canada Approves AquaBounty Salmon for Livestock Feed
On May 19, 2016, the Canadian Food Inspection Agency (CFIA) issued Decision Document DD2016-117 regarding the approval of the genetically engineered AquaBounty Salmon for use as livestock feed.  According to CIFA, the “feed ingredients derived from this animal with a novel trait does not present livestock feed safety or nutrition concerns when compared to feeds derived from salmon currently permitted to be used as livestock feed in Canada.” As a result, as of May 19, 20016, feed ingredients derived from AquaBounty Salmon are authorized for use in livestock feeds in Canada.

Transportation: Proposed PA Legislation Assigns Gross Weight for Milk Hauling
On May 23, 2016, Pennsylvania governor Tom Wolf was presented with legislation that would amend Title 75 (Vehicles) of the Pennsylvania Consolidated Statutes (SB 1108).  Under the proposed legislation, vehicles “hauling milk to or from a manufacturer…may be permitted by the department and local authorities to move upon highways within their respective jurisdictions 24 hours a day, seven days a week, except during inclement weather as defined in department regulations, if the gross weight does not exceed 95,000 pounds and the weight of any nonsteering axle does not exceed 21,000 pounds.”

Equine: Clarifying Legislation Introduced for PA Breeding Fund
On May 23, 2016, Pennsylvania House Representative John A. Lawrence introduced House Bill 923 which is “legislation to clarify language in the recently passed Administrative Code regarding the eligibility of thoroughbreds receiving payments from the Pennsylvania Breeding Fund, a restricted account within the State Racing Fund that provides incentive awards for winning Pennsylvania born/bred thoroughbred race horses.” Accordingly, the proposed legislation was referred to the House Agricultural and Rural Affairs Committee.

Thursday, May 19, 2016

Agricultural Law Weekly Review—May 19, 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 agriculture:

Pipelines: FERC Issues Draft Environmental Impact Statement on Project Affecting Nearly 2,000 Acres of PA Farmland  
On May 5, 2016, staff of the Federal Energy Regulatory Commission (FERC) issued a draft environmental impact statement (EIS) regarding the Atlantic Sunrise pipeline project proposed by Transcontinental Gas Pipe Line Company, LLC (Transco) (CP15-138-000).  According to FERC, “Transco requests authorization to expand its existing pipeline system from the Marcellus Shale production area in northern Pennsylvania to…its existing southeastern market areas.” FERC stated that “[c]onstruction of the Project would affect a total of about 1,907.4 acres of agricultural land in Pennsylvania.” FERC has scheduled the following public meetings to address the proposed pipeline project: June 13, 2016, Lancaster, PA; June 14, 2016, Annville, PA; June 15, 2016, Bloomsburg, PA; and June 16, 2016, Dallas, PA.  All comments regarding the draft EIS must be received by FERC on or before June 27, 2016.

Renewable Fuel: EPA Announces Proposed Requirements for Renewable Fuel Standard Program
On May 18, 2016, the U.S. Environmental Protection Agency (EPA) announced that the agency has “proposed the volume requirements and associated percentage standards that apply under the RFS [Renewable Fuel Standards] program in calendar years 2017 for cellulosic biofuel, biomass-based diesel, advanced biofuel, and total renewable fuel.” Additionally, EPA announced that the agency was “proposing the volume requirement for biomass-based diesel for 2018.”

Labor: New Electronic Process Introduced for H-2A Program
On May 9, 2016, the U.S. Citizenship and Immigration Services (USCIS) and the U.S. Department of State (DOS) “announced the launch of USCIS/DOS e-Approval for Form I-129, Petition for a Nonimmigrant Worker, for the H-2A (temporary agricultural worker) classification.” Accordingly, with the new electronic process USCIS will have the ability “to send approval information for H-2A petitions to DOS by the end of the next business day.” Additionally, “DOS will accept this electronic information in place of a Form I-797 approval notice and allow its consular posts to proceed with processing an H-2A nonimmigrant visa application, including conducting any required interview.” 

Labeling: Case to Compel GMO Crop Documents Transferred to Vermont
On May 13, 2016, the U.S. District Court for the District of Delaware granted a motion by Vermont officials to transfer the case In re: Grocery Manufacturers et al. to the U.S. District Court of the District of Vermont (1:16-mc-00113). The case in question was an action brought by Vermont officials to compel Syngenta Corporation (Syngenta) to produce the results of any Syngenta performed studies or research that relate to the potential health or environmental effects of Syngenta’s genetically engineered crops and the effects of the herbicides and pesticides used to on those crops.  According the Motion to Compel, the documents in question “are relevant to the claims and defenses raised by the parties in Grocery Manufacturers Ass’n v. Sorrell, No. 5:14-cv-117 (D. Vt.).      

GMOs: Report Finds no Evidence that GE Crops Harmful to Human Health
On May 17, 2016, the National Academies of Sciences, Engineering, and Medicine issued a press release announcing the release of a study regarding the effects of genetically engineered (GE) crops.  According to the press release “the study committee found no substantiated evidence of a difference in risks to human health between current commercially available genetically engineered (GE) crops and conventionally bred crops, nor did it find conclusive cause-and-effect evidence of environmental problems from the GE crops.” The press release did state, however, that “evolved resistance to current GE characteristics in crops is a major agricultural problem.”

Pesticides: UN Panel of Experts Determines Humans Unlikely to be harmed by Glyphosate
On May 16, 2016, a summary report was issued after a joint meeting of the Food and Agriculture Organization of the United Nations (FAO) Panel of Experts on Pesticide Residues in Food and the Environment and the World Health Organization (WHO) Core Assessment Group on Pesticide Residues.  According to the report, the joint meeting resulted in the panel of experts determining that the pesticide “glyphosate is unlikely to pose a carcinogenic risk to humans from exposure through the diet.” Additionally, the panel of experts determined that the pesticides diazinon and malathion were also unlikely to be carcinogenic and were “unlikely to pose a carcinogenic risk to humans from exposure through the diet.”

Thursday, May 12, 2016

Agricultural Law Weekly Review—May 12, 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 agriculture:

FSMA: FDA Announces Public Meetings Regarding Import Safety Program
On May 9, 2016, the United States Food and Drug Administration (FDA) published notice in the
Federal Register of “three one-day public meetings in different regions throughout the United States to provide importers and other interested persons an opportunity to have an in-depth discussion on the implementation of the FDA Food Safety Modernization Act (FSMA) import safety programs (i.e., foreign supplier verification programs (FSVPs) for importers of food for humans and animals, accreditation of third-party certification bodies, and FDA's Voluntary Qualified Importer Program (VQIP))” (81 FR 28035).  The three regional outreach meetings are scheduled as follows: 1) the California region on June 7, 2016; 2) the New Jersey region on June 15, 2016; and 3) the Michigan region on June 21, 2016.

Herbicides: EPA Removes Report Stating Glyphosate Not Likely Carcinogenic
On May 2, 2016, Reuters reported that the United States Environmental Protection Agency (EPA) “pulled a report offline that concluded glyphosate is not likely to be carcinogenic to humans, saying the document was inadvertently published and the agency had not finished its review of the chemical, which is the key ingredient in Monsanto's herbicides.” According to the article, when contacted by Reuters, “EPA declined to comment on whether the report, or the 13 other documents that were also published and subsequently taken down…indicate whether the agency ultimately will conclude that glyphosate is not carcinogenic.”

Retail Food Facilities: PDA Publishes Licensure Exemptions
On May 7, 2016, the Pennsylvania Department of Agriculture (PDA) published notice in the Pennsylvania Bulletin regarding the licensure, inspection and safe operation of retail food facilities within the Commonwealth of Pennsylvania.  The published notice, which specifies certain types of retail food facilities exempt from PDA licensing requirements, became effective on May 7, 2016.

Labeling: FDA Announces Menu Labeling Guidance
On May 5, 2016, the United States Food and Drug Administration (FDA) published notice in the Federal Register that the agency announcing the availability “of a guidance for industry entitled ‘A Labeling Guide for Restaurants and Retail Establishments Selling Away-From-Home Foods—Part II (Menu Labeling Requirements in Accordance With FDA's Food Labeling Regulations)’” (81 FR 27067).  According to FDA, “[t]he guidance will help certain restaurants and similar retail food establishments comply with the menu labeling requirements, including the requirements to provide calorie and other nutrition information for standard menu items, including food on display and self-service food.” Significantly, the notice stated “enforcement of the Nutrition Labeling of Standard Menu Items in Restaurants and Similar Retail Food Establishments final rule will commence 1 year after the [May 5, 2016] date on which this document publishes in the Federal Register.” 

Legislation: Resolution on Modern Agricultural Technologies Moves to Agricultural and Rural Affairs Committee
On May 10, 2016, Pennsylvania House Resolution 872 “urging Federal and State regulatory agencies to utilize science-based, peer-reviewed data in evaluating crop protection chemistry and nutrients” was referred to House Agricultural and Rural Affairs committee.  According to the Resolution’s co-sponsorship memoranda, “a sustainable agricultural system in our nation is critical to the continued production of food, feed and fiber…[and] [t]he availability of modern agricultural technologies such as precision farming equipment, crop protection chemistries, genetically engineered or enhanced traits, and agricultural nutrients are critically important tools that allow farmers to expand yields, reduce environmental impacts, improve profitability, and provide a safe, healthy, abundant and affordable food supply.”

Legislation: Senate Votes to Amend Pennsylvania Breeding Funds
On May 11, 2016, the Pennsylvania Senate voted 49-0 to pass Senate Bill 1229 which is “[a]n Act amending the act of April 9, 1929 (P.L.177, No.175), known as The Administrative Code of 1929, in horse race industry reform, further providing for Pennsylvania Breeding Fund.” According to the co-sponsorship memoranda, the legislation is intended to “fix technical issues related to the distribution of Pennsylvania Breeding Funds.”

Legislation: Food Protection Bill Referred to House Agriculture and Rural Affairs Committee
On May 11, 2016, Pennsylvania House Bill 2067 was referred to the Pennsylvania House Agriculture and Rural Affairs committee.  The proposed legislation is “[a]n Act amending Title 3 (Agriculture) of the Pennsylvania Consolidated Statutes, in food protection, further providing for definitions and for license required.”

Thursday, May 5, 2016

Agricultural Law Weekly Review—May 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 agriculture:

HPAI: Indiana Lifts Final Avian Influenza Quarantine
On May 2, 2016, the Indiana State Board of Animal Health issued a press release announcing that “[t]he last remaining quarantine associated with the highly pathogenic avian influenza (HPAI) cases identified in Dubois County, Ind. has officially been lifted.” According to the press release, “[t]his quarantine release coincides with the state achieving avian influenza-free status, after logging 90 consecutive days with no new cases of the poultry disease.”

FSMA: FDA Issues Corrections to Final Rule Regarding Standards for the Growing, Harvesting, Packing, and Holding of Produce for Human Consumption
On May 3, 2016, the Food and Drug Administration (FDA) published notice in the Federal Register that the agency was amending a final rule published in Federal Register on November 27, 2015 (81 FR 26466).  According to FDA “[t]hat final rule established science-based minimum standards for the safe growing, harvesting, packing, and holding of produce, meaning fruits and vegetables grown for human consumption.”  FDA stated that “[t]he final rule published with some editorial and inadvertent errors…[and that] [t]his document corrects those errors.”

Beef Checkoff: Suit Filed Against USDA for Use of Checkoff Tax
On May 2, 2016, the Ranchers-Cattlemen Action Legal Fund, United Stockgrowers of America (R-CALF USA) brought suit against the United States Department of Agriculture (USDA) alleging that USDA “turns over proceeds from a federal tax on each sale of cattle to the private Montana Beef Council, to fund the council’s private speech, harming R-CALF USA’s members.” According to the complaint, R-CALF USA stated that the production methods of its members “stand in contrast to those used by large, multinational producers who source much of their cattle and beef internationally.” As a result, R-CALF USA asserted “its members object to and disagree with communications espousing that all beef is equal and/or that fail to distinguish between domestic and foreign beef.”

Crop Insurance: USDA Announces Funds Available for Risk Management Education
On May 5, 2016, the United States Department of Agriculture's Risk Management
Agency issued a press release announcing the availability of $4.4 million in funding for the Crop Insurance in Targeted States Program.  According to the press release, “[t]he program backs development of crop insurance education programs where there is a low level of federal crop insurance participation and availability.” The press release stated that the “targeted states are Alaska, Connecticut, Delaware, Hawaii, Maine, Maryland, Massachusetts, Nevada, New Hampshire, New Jersey, New York, Pennsylvania, Rhode Island, Utah, Vermont, West Virginia and Wyoming.”

Thursday, April 28, 2016

Agricultural Law Weekly Review—April 28, 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 agriculture:

Litigation: Court Rejects Contract Grower Claims against Pilgrim’s Pride
On April 22, 2016, the United States District Court, E.D. Texas, Marshall Division granted summary judgement and dismissed claims brought by more than 200 poultry growers alleging that Pilgrim’s Pride Corporation (PPC) violated the Packers and Stockyards Act (PSA) by closing two processing facilities (Sheila Adams, et al, v. Pilgrim’s Pride Corp., 2016 WL 1615700).  The court disagreed with the poultry growers’ assertion that PPC’s facility closures had violated PSA through an attempt to increase prices by keeping as much chicken off the market as possible.

GMO Ingredients: Court Permits Chipotle Advertisement Lawsuit to Move Forward
On April 20, 2016, the United States District Court Southern District of Florida ruled that a class action lawsuit, alleging that Chipotle Mexican Grill, Inc. (Chipotle) “misrepresented to customers that its food products contain only non-GMO products,” may proceed (Reilly v. Chipotle Mexican Grill, Inc., Case No. 15-Civ-23425-COOKE-TORRES).  Specifically, the court stated that the plaintiffs are permitted to proceed with their “allegation that Chipotle’s ‘Non-GMO’ claims ‘mislead consumers into paying a premium price…for inferior products or undesirable ingredients or for products that contain ingredients that are not disclosed.”

Equine Disease: PDA Quarantines Barn after Horse Tests Positive for Equine Infections Anemia
On April 20, 2016, the Pennsylvania Department of Agriculture (PDA) issued a press release announcing the quarantine “of an equine barn in Halifax, Dauphin County, after a horse at the barn tested positive for Equine Infectious Anemia (EIA) on Monday, April 18.”  According to PDA, both the barn and the horses will be quarantined for at least 60 days.  PDA further stated that EIA poses no health threat to humans and that “[t]he quarantine can be lifted after the remaining horses are determined not to be infected.”

Contract Review: USDA to Continue Payments for Pork Trademarks
On April 20, 2016, the U.S. Department of Agriculture’s (USDA) Agricultural Marketing Service (AMS) announced that the agency “has completed its review of the 2006 asset purchase agreement between the National Pork Board and the National Pork Producers Council (NPPC) for the purchase of four trademarks…[which] include the word ‘pork’ in distinctive lettering set against a pork loin silhouette and ‘The Other White Meat’ in various forms.”  According to USDA, “[a]s a result [of the review], AMS is approving continuing annual payments of $3 million under the terms of the agreement.”

Department Structure: PDA Announces Reorganization
On April 23, 2016, the Pennsylvania Department of Agriculture (PDA) published notice in the Pennsylvania Bulletin that “[t]he Executive Board approved a reorganization of the Department of Agriculture effective April 4, 2016” (46 Pa.B. 20165).  Of note, “at the request of the Joint Committee on Documents under 1 Pa. Code § 3.1(a)(9) (relating to contents of Code)” PDA’s reorganization is published through the use of an organizational chart.   

Regulation: USDA Proposes Amendment to Voluntary Grading of Shell Eggs
On April 20, 2016, the United States Department of Agriculture Agricultural Marketing Service published notice in the Federal Register that the agency was “propos[ing] to amend the Regulations Governing the Voluntary Grading of Shell Eggs to clarify the definition of ‘condition’ and revise the prerequisite requirement for shell eggs eligible for voluntary USDA grading and certification” (81 FR 23188).  The comment period for the proposed rule closes June 20, 2016.

Monday, April 25, 2016

Crop Insurance Update: Farmer Complaint Dismissed for Failure to State Claim

Written by M. Sean High—Staff Attorney

On February 11, 2016, the United States Court of Appeals for the Fifth Circuit issued an unpublished opinion affirming dismissal of a complaint for damages resulting from an alleged misrepresentation regarding an insurance agent’s license to sell crop insurance (Shannon v. Ham, 2016 U.S. App. LEXIS 2404).

According to the court, farmers Billy and Fannie Shannon (Shannons) filed a complaint alleging that insurance agent Bobby Ham (Ham) committed fraud by selling the couple crop insurance without a license; the result of which was a subsequent mishandling of their crop insurance policy and claims that resulted in over $200,000 in damages.

According to the court, the Shannons did not show “a causal connection between Ham’s lack of an insurance license and his mishandling of their policies.” The court asserted that Ham provided the Shannons with seven years of satisfactory insurance service without issue, and thus, “it is far more likely that Ham’s lack of licensure played no part in the Shannons’ injuries and that the claim mishandling that occurred in 2011 and 2012 is attributed to other causes.”

The court stated: “there is no direct relationship between the lie and the injury because the Shannons have not plausibly alleged that the lie had anything to do with the eventual claims mishandling.” Ultimately, the court affirmed the dismissal of the Shannons’ complaint because Ham’s faulty insurance credentials were not the proximate cause of his mishandling of the crop insurance policy and claims; the result of which meant the Shannons’ complaint failed to state a plausible claim for relief as required under 12(b)(6) of the Federal Rules of Civil Procedure. 

Thursday, April 21, 2016

Agricultural Law Weekly Review—April 21, 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 agriculture:

Medical Marijuana: Pennsylvania Establishes Medical Marijuana Program
On April 17, 2016, Pennsylvania Governor Tom Wolf signed into law the establishment of the Commonwealth’s medical marijuana program (Act 16).  Under the enacted legislation, only persons holding a permit from the Department of Health of the Commonwealth (the Department) may grow or process medical marijuana.  Accordingly, the Department is only authorized to issue 25 permits throughout the entire state and must charge each permit holder a $10,000 permit application fee, a $200,000 permit fee, and a $10,000 yearly permit renewal fee.

Legislation: Committee Approves Agricultural Appropriations Bill
On April 19, 2016, United States House of Representatives Committee on Appropriations approved the Fiscal Year 2017 Agriculture Appropriations Bill (the Bill).  Of note, approval of the Bill included amendments that: 1) prevent the slaughter of horses for human consumption; 2) delay a new rule by USDA to change the requirements for approved SNAP retailers; and 3) prevent a Grain Inspection, Packers and Stockyards Administration regulation that would place restrictions on poultry, beef and pork marketing arrangements.

Dairy Production: USDA Updates Margin Protection Program for Dairy
On April 13, 2016, the United States Department of Agriculture Commodity Credit Corporation published notice in the Federal Register “amend[ing] the regulations for the Margin Protection Program for Dairy (MPP-Dairy) to allow dairy operations to update their production history when a son, daughter, grandchild, or spouse of a child or grandchild of a current producer participating in the MPP-Dairy program joins the operation” (81 FR 21699).  Additionally, the final “rule provides for a later due date for the payment of the entire premium and clarifies that dairy operations that purchase buy-up coverage on less than 90 percent of their production history will also receive catastrophic coverage on the balance, up to 90 percent of the production history.” The final rule became effective April 13, 2016.

Fruit Importation: APHIS Reopens Comment Period Regarding European Apples and Pears
On April 15, 2016, the United States Department of Agriculture animal and Plant Health Inspection Service published notice in the Federal Register that the agency was “reopening the comment period for our proposed rule that would amend the regulations to allow the importation of fresh apple and pear fruit from certain countries in the European Union into the continental United States, provided that the fruit is produced in accordance with a systems approach, as an alternative to importation under the current preclearance program” (81 FR 22203).  The proposed rule in question was originally published in the Federal Register January 20, 2016 (81 FR 3033).  The reopened comment period for the proposed rule closes May 5, 2016.

Marketing Order: USDA Adopts Final Rule on Tart Cherries
On April 18, 2016, the United States Department of Agriculture Agricultural Marketing Service published notice in the Federal Register that the agency was “adopting, as a final rule, without change an interim rule implementing a recommendation from the Cherry Industry Administrative Board (Board) that revised the exemption provisions under the marketing order for tart cherries grown in the States of Michigan, New York, Pennsylvania, Oregon, Utah, Washington, and Wisconsin” (81 FR 22511).  Accordingly, “[t]he interim rule changed the number of years that new market development and market expansion projects are eligible for handler diversion credit from one year to three years…[and] revised the composition of the subcommittee which reviews exemption requests.” The effective date for the affirmation of the interim rule as final rule was April 19, 2016.

Animal Drugs: FDA Publishes Final Rule for New Animal Drugs
On April, 18, 2016, the Department of Health and Human Services Food and Drug and Administration (FDA) published notice in the Federal Register of a final rule “amending the animal drug regulations to reflect application-related actions for new animal drug applications (NADAs) and abbreviated new animal drug applications (ANADAs) during January and February 2016” (81 FR 22520).  According to the final rule, “FDA is also informing the public of the availability of summaries of the basis of approval and of environmental review documents, where applicable.” The final rule became effective April 18, 2016.

FSMA: OSHA Publishes Final Rule for Employee Protection
On April 18, 2016, the United States Department of Labor Occupational Safety and Health Administration published notice in the Federal Register “provid[ing] the final text of regulations governing the employee protection (retaliation or whistleblower) provision found at section 402 of the FDA Food Safety Modernization Act (FSMA)” (81 FR 22530). The final rule became effective April 18, 2016.

Farmland Preservation: 32 New PA Farms Added to Protected List
On April 15, 2016, the Pennsylvania Department of Agriculture (PDA) issued a press release announcing that “an additional 1,792 acres on 32 farms in 14 counties were safeguarded through the state’s nation-leading farmland preservation program.”  According to PDA: “[s]ince the program began in 1988, federal, state, county and local governments have invested more than $1.3 billion to preserve 520,619 acres on 4,951 farms in 57 counties for future agricultural production.”