Thursday, November 15, 2018

Agricultural Law Weekly Review—November 15, 2018


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

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

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

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

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

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

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

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

Pennsylvania Actions and Notices:
The Governor

Vetoes

Pennsylvania Department of Agriculture:

Penn State Research:
       
AgLaw HotLinks:

Stay Informed:
Listen to our weekly Agricultural Law Podcast
Read our monthly Agricultural Law Brief newsletter     
Follow us on Twitter at PSU Ag & Shale Law (@AgShaleLaw) to receive daily AgLaw HotLinks
Connect with us on Facebook to view our weekly CASL Ledger detailing Center publications and activities
Visit The Ag & Food Law Blog for a comprehensive summary of daily judicial, legislative, and regulatory developments in agriculture and food

Thursday, November 8, 2018

Agricultural Law Weekly Review—November 8, 2018

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

Air Quality: EPA Proposes Reporting Exemption for Air Emissions from Animal Waste
On October 30, 2018, the U.S. Environmental Protection Agency (EPA) released a proposed rule to amend the notification requirements for agricultural facilities under the Emergency Planning and Community Right-to-Know Act (EPCRA).  EPCRA imposes reporting obligations upon the owners and operators of certain facilities relating to the storage, use, and release of hazardous substances (42 U.S.C. §11004).  The proposed rule amends the emergency release notification regulation to exempt reporting for air emissions from animal waste at farms.  This change has been implemented by adding definitions for "farm" and "animal waste" to the regulation.  The creation of the agricultural exemption in the proposed rule is intended to maintain consistency with the regulations of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).  On March 23, 2018, legislation was enacted to provide an agricultural exemption for reporting air emissions from animal waste under CERCLA (Fair Agricultural Reporting Method Act, Pub. L. No. 115-141).  According to EPA, CERCLA and EPCRA are interrelated environmental laws with some portions of EPCRA depending upon corresponding CERCLA requirements.  In establishing identical agricultural exemptions to the reporting requirements under each statute, EPA believes that it has acted "in furtherance of the underlying purpose of this statutory framework." Public comments on the proposed rule are due on or before 30 days after publication of the proposed rule in the Federal Register.

Pesticides: EPA Extends Dicamba Registration for “Over-the-Top” Use
On October 31, 2018, the U.S. Environmental Protection Agency (EPA) announced that the registration of dicamba for “over-the-top” use on genetically engineered cotton and soybeans has been extended for two years.  The term “over-the-top” use refers to when application of a pesticide is made to a growing plant.  As part of the two-year extension, EPA has also imposed new labeling requirements and restrictions on applicable dicamba products.  According to EPA Acting Administrator Andrew Wheeler, the agency recognizes “that dicamba is a valuable pest control tool for America’s farmers.” Mr. Wheeler further stated that “[b]y extending the registration for another two years with important new label updates that place additional restrictions on the product, we are providing certainty to all stakeholders for the upcoming growing season.” Following the EPA action, U.S. farmers may continue to use the dicamba products until December 20, 2020. 

FSMA: FDA Issues Guidance Regarding Mandatory Food Recalls
On November 6, 2018, the U.S. Food and Drug Administration (FDA) published notice in the Federal Register that the agency has issued a final guidance document entitled: Guidance for Industry and FDA Staff: Questions and Answers Regarding Mandatory Food Recalls (83 FR 55551).  According to FDA, the guidance is intended to provide industry with information regarding the implementation of the FDA Food Safety Modernization Act’s (FSMA) mandatory food recall provisions.  FDA stated that the guidance provides answers to potential questions which may arise from the implementation of the mandatory food recall provisions and expresses FDA’s current thoughts on the topic.

Right to Farm Laws: Appeals Court Rules against Gag Order for North Carolina Swine Farm Nuisance Lawsuit 
On October 31, 2018, Feedstuffs reported that the 4th Circuit Court of Appeals struck down a gag order imposed by a trial judge in a nuisance lawsuit against a North Carolina swine operation.  Under a gag order, a judge forbids the parties, attorneys, and witnesses from publicly discussing the facts of a case.  According to the article, the defendant in the nuisance suit—Murphy-Brown LLC—asserted that the gag order was an unconstitutional violation of the First Amendment to the U.S. Constitution.  The appeals court unanimously agreed and held that the gag order had prevented the parties from exercising their First Amendment right.  The appeals court further asserted that the “gag order has already inflicted serious harm on parties, advocates and potential witnesses alike…and has muted political engagement on a contested issue of great public and private consequence.” 

International Trade: Canada Announces Working Groups for Poultry, Egg, and Dairy Sectors
On October 29, 2018, the Government of Canada published a news release announcing the formation of new working groups in the poultry and egg sectors, as well as among dairy farmers and processors.  These working groups are meant to help develop adjustment strategies for Canadian farmers and processors in response to the new United States-Mexico-Canada Agreement (USMCA).  Canada’s Minister of Agriculture and Agri-Food, Lawrence MacAulay, said that these groups will “ensure the voices of the hardworking men and women who are building and growing our farm businesses are heard and reflected.”  

From National Ag Law Experts:
“Ohio Agricultural Law Blog--The Ag Law Harvest,”  Evin Bachelor and Ellen Essman, Ohio State University Extension (November 2, 2018)
“State’s Public Utility Law Preempted Local Zoning and Planning Requirements for Siting a Solar Energy Farm”, Paul Goeringer, Maryland Risk Management Education Blog (November 7, 2018)
“American Agricultural Law Association Conference Review”, Tiffany Dowell Lashmet, Texas Agricultural Law Blog, Texas A&M AgriLife Extension (November 5, 2018)   

Pennsylvania Actions and Notices:
Game Commission: Notices

Pennsylvania Department of Agriculture

Penn State Research:
        
AgLaw HotLinks:

Stay Informed:
Listen to our weekly Agricultural Law Podcast
Read our monthly Agricultural Law Brief newsletter     
Follow us on Twitter at PSU Ag & Shale Law (@AgShaleLaw) to receive daily AgLaw HotLinks
Connect with us on Facebook to view our weekly CASL Ledger detailing Center publications and activities

Thursday, November 1, 2018

Agricultural Law Weekly Review—November 1, 2018


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

Technology: 75.3 Lbs. Drone Approved for Precision Agriculture
On October 25, 2018, sUAS News reported that the Federal Aviation Administration (FAA) has approved a petition by Homeland Surveillance & Electronics, LLC (HSE) to operate a 75.3 lbs. unmanned aircraft system (UAS) for use in precision agriculture.  Under FAA regulations, UASs must weigh less than 55 lbs. at takeoff (14 CFR 107.3).  HSE, however, successfully received permission from FAA to commercially operate the 75.3 lbs. UAS model AG-V6A+ for use in precision commercial agriculture services including: crop and moisture analysis; spraying herbicides, pesticides and insecticides; aerial imagery; and 3D modeling.

Land Use: PA Governor Signs Bill Expanding Liability Protection for Recreational Land Use
On October 24, 2018, Pennsylvania Governor Tom Wolf signed into law legislation amending the state’s recreational use of land liability law (Act 98).  Under the commonwealth’s Recreational Use of Land and Water Act (RULWA), landowners who at no charge open their land for public recreational use are granted limits to their legal liability (68 P.S. §477-1 et seq.).  Under the new legislation, RULWA’s definition of “land” is expanded to provide coverage to areas including boating access and launch ramps, bridges, fishing piers, boat docks, ramps, paths, paved or unpaved trails, and hunting blinds.  Additionally, the definition of “land” is expanded to include parking and access to land areas provided coverage.  The new law also expands RULWA’s definition of “recreational purpose” to allow for coverage of activities such as snowmobiling, all-terrain vehicle riding, and motorcycle riding.  Finally, the new legislation further defines what types of contributions to the landowner are not considered to constitute a “charge.”      

Education: PA Governor Vetoes Ag Education Bill
On October 24, 2018, Pennsylvania Governor Tom Wolf vetoed proposed legislation addressing agricultural education in the commonwealth (HB 2157).  Governor Wolf stated that the proposed legislation would have rendered “certain agricultural education programs ineligible for state and federal funding…[because] the Pennsylvania Department of Education is the single state agency that is federally authorized to approve these programs.” According to the Governor, in 2017 his administration “distributed approximately $57,000,000 in state Career and Technical Education funding to schools across the commonwealth.” He stated that if enacted, HB 2157 would have removed program approval authority from the department; thereby impairing the ability of those schools to receive such funds in the future.  Governor Wolf further asserted that the legislation would have eliminated “funding for agricultural education programs approved under this bill’s provisions.” Finally, the Governor stated that under the legislation, schools that currently receive Federal Perkins funding for Agriculture Education programs would have been required “to forego such funds, costing those schools $6,345,299.” Prior to the Governor’s veto, HB 2157 passed in the House by a vote of 192-0 and in the Senate by a vote of 46-3.

Food Safety: FDA and USDA Hold Public Meeting on Cell Culture Technology Regulation
On October 23 and 24, 2018, the U.S. Department of Agriculture’s Food Safety Inspection Service (FSIS) and the U.S. Food and Drug Administration (FDA) held a two-day joint public meeting titled, “The Use of Cell Culture Technology to Develop Products Derived from Livestock and Poultry.” On September 10, 2018, U.S. Secretary of Agriculture Sonny Perdue and U.S. Food and Drug Administration Commissioner Scott Gottlieb, announced the joint public meeting regarding the two agencies teaming up to regulate cell cultured meat.  Gottlieb stated that “advances in animal cell cultured food products present many important and timely technical and regulatory considerations for [both] the FDA” and the USDA.   Accordingly, the joint-meeting’s agenda included discussions on the current regulatory frameworks of the USDA and FDA involving foods and products of cell culture technology.  The meeting also addressed the potential hazards of cell cultured meats and appropriate regulatory oversights.  Recordings of the two-day meeting are available online through the FSIS website.  Comments on this issue are due by November 26, 2018.

Antibiotic Use: EU Restricts Antibiotic Use in Farm Animals
On October 26, 2018, the Guardian reported that the European Union (EU) parliament has approved restrictions regarding the use of antibiotics on healthy farm animals.  According to the report, the restrictions are an attempt to prevent antibiotic resistant bacteria commonly referred to as “superbugs.” The Guardian stated that EU farmers have routinely used antibiotics on healthy farm animals as a way to prevent the potential spread of disease.  Scientist, however, assert that this common practice has increased antimicrobial-resistance and could result in antibiotics no longer being an effective source of medical treatment.  The new restrictions are scheduled to go into effect by 2022.

From National Ag Law Experts:
“Death of Ranch Hand Raises Important Legal Issues”, Tiffany Dowell Lashmet, Texas Agricultural Law Blog, Texas A&M AgriLife Extension (October 28, 2018)
“Long-Term Leases Provide a Valuable Succession Planning Tool as Recent Court Case Highlights”, Paul Goeringer, Maryland Risk Management Education Blog (October 30, 2018)

Pennsylvania Legislation:
Act 162 (SB 1171): Nutrient management and odor management legislation addressing the Nutrient Management Advisory Board and the Agricultural Advisory Board (Signed by the Governor, October 24, 2018)

Pennsylvania Actions and Notices:
Department of Agriculture: Rules and Regulations

State Conservation Commission: Notices

Pennsylvania Department of Agriculture

Penn State Research:

AgLaw HotLinks:

Stay Informed:
Listen to our weekly Agricultural Law Podcast
Read our monthly Agricultural Law Brief newsletter     
Follow us on Twitter at PSU Ag & Shale Law (@AgShaleLaw) to receive daily AgLaw HotLinks
Connect with us on Facebook to view our weekly CASL Ledger detailing Center publications and activities
Visit The Ag & Food Law Blog for a comprehensive summary of daily judicial, legislative, and regulatory developments in agriculture and food

Thursday, October 25, 2018

Agricultural Law Weekly Review—October 25, 2018


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

Pesticides: California Judge Upholds Verdict against Monsanto for Glyphosate Exposure
On October 22, 2018, a judge for San Francisco’s Superior Court of California denied Monsanto’s motion for judgement notwithstanding the verdict as well their request for a new trial in the Dewayne Johnson case. Bayer Ag unit Monsanto filed the aforementioned motions after an August 10, 2018 jury verdict awarded the plaintiff, Dewayne Johnson, $289M for successfully arguing that years of exposure to Monsanto’s Roundup caused him to be diagnosed with non-Hodgkin lymphoma. (Dewayne Johnson v. Monstanto Co., case no. CGC-16-550128).  While the judge upheld the verdict, she slashed the punitive damages to equal that of the compensatory damages, reducing the total jury award to $78M instead of $289M. Plaintiff has until December 7, 2018 to accept the modified award or a new trial will be granted to determine punitive damages. For more background information on this case, please see the Ag Law Weekly Review for August 16, 2018, and September 27, 2018.

FSMA: FDA Issues New FSMA Draft Guidance
On October 19, 2018, the U.S. Food and Drug Administration (FDA) issued two new draft guidance documents intended to help produce growers and fresh-cut produce processors comply with the FDA Food Safety Modernization Act (FSMA).  The first draft guidance, entitled: Standards for the Growing, Harvesting, Packing, and Holding of Produce for Human Consumption: Guidance for Industry, is designed to assist growers meet FSMA Produce Safety Rule the requirements.  The second draft guidance, entitled: Draft Guidance for Industry: Guide to Minimize Food Safety Hazards of Fresh-cut Produce, explains the FDA’s current thinking on how fresh-cut produce processors (such as those processing bagged salad mixes) may comply with FSMA Preventive Controls for Human Food Rule requirements.

Water Law: President Signs Memorandum Addressing Western Water Regulations
On October 19, 2018, President Trump signed a presidential memorandum entitled: Presidential Memorandum on Promoting the Reliable Supply and Delivery of Water in the West.  According to the memorandum, throughout the 20th Century, the Federal Government developed a water infrastructure in the western U.S. that was designed to reduce floods, provide reliable water supplies, and generate dependable hydropower.  The memorandum asserted, however, that because this water infrastructure has been uncoordinated, both water and power have not been delivered in “an efficient, costeffective way.” As a result, the memorandum calls on the U.S. Secretary of the Interior and the U.S. Secretary of Commerce to work collaboratively to reduce unnecessary regulations and provided more efficient decision-making to better meet water needs.

Food Safety: A Case of BSE Has Been Confirmed in Scotland
On October 18, 2018, the Scottish Government confirmed a case of Bovine Spongiform Encephalopathy (BSE) on a farm in Aberdeenshire, Scotland. BSE, commonly referred to as “mad cow disease,” is defined by the Animal and Plant Health Inspection Service as “a progressive and fatal neurologic disease of cattle,” that causes brain degeneration. The human consumption of beef contaminated with BSE has been linked to Creutzfeldt-Jakob disease, a degenerative brain disorder in humans with dementia-like symptoms, as well as other syndromes. Scotland’s Animal Health Agency is currently investigating the source of the outbreak, but Food Standards Scotland has confirmed that this outbreak poses no risk to human health as it did not enter the food chain.

Food Policy: USDA, EPA, and FDA Announce Initiative to Reduce Food Waste
On October 18, 2018, the U.S. Department of Agriculture, the U.S. Environmental Protection Agency, and the U.S. Food and Drug Administration announced the signing of a joint agency formal agreement intended to reduce food waste in the U.S.  Signed as part of the Winning on Reducing Food Waste initiative, the agreement seeks to allow for agency collaboration and coordination of existing federal programs so as to better educate Americans on reducing food loss and waste.  According to the announcement, the U.S. annually throws away more than 75 billion pounds of food with one third of available food not eaten.

From National Ag Law Experts:
Opinion: The EU Gene-Editing Decision: Parliament Should Not Let it Stand, Marshall L. Matz, Olsson Frank Weeda Terman Matz PC (October 18, 2018)
Should We Just Ban “Best By” Labels on Food?, Dan Nosowitz, Modern Farmer (October 12, 2018)
Consumer Demands are Changing Livestock Farms, Brianna J. Schroeder, Schroeder Ag Law Blog – Janzen Ag Law (October 19, 2018)

Pennsylvania Legislation:
SB 1171: Nutrient management and odor management legislation addressing the Nutrient Management Advisory Board and the Agricultural Advisory Board (Presented to the Governor, October 18, 2018)
HB 2723: Legislation prohibiting the practice of pet leasing (Referred to House Agriculture and Rural Affairs Committee, October 17, 2018)   

Pennsylvania Actions and Notices:
Department of Agriculture

Pennsylvania Department of Agriculture

Penn State Research:

AgLaw HotLinks:

Stay Informed:
Listen to our weekly Agricultural Law Podcast
Read our monthly Agricultural Law Brief newsletter     
Follow us on Twitter at PSU Ag & Shale Law (@AgShaleLaw) to receive daily AgLaw HotLinks
Connect with us on Facebook to view our weekly CASL Ledger detailing Center publications and activities
Visit The Ag & Food Law Blog for a comprehensive summary of daily judicial, legislative, and regulatory developments in agriculture and food