Senator Argues USDA Funds Needed for Avian Flu Outbreak

  On June 22, 2015, Senator Charles Schumer (D-NY) urged Congress to not cut $500 million in funding from USDA programs.  Schumer argued the funding should be used to help manage the current avian flu outbreak and could be used for vaccination efforts, “biosecurity” measures, as well as research costs to discover more on how the virus is transmitted.

  According to the press release in the Senator’s website, the impact on consumers and retailers is already being felt and only expected to rise.  The press release stated egg prices have increased to record levels.  In New York, the average wholesale price for a dozen eggs ranges from $1.60-$1.66, beating the 2014 record of $1.42.  “Breaker” eggs used by restaurants and other food producers have increased in price by 273%, causing companies to seek alternative ingredients in response to the decreasing supply. 

   According to the USDA website, as of June 17, 2015, 48,091,293 birds have been affected by Avian Influenza.  Of the total birds affected, approximately 80% are egg laying hens, nationwide that accounts for 10% of the egg laying population.

    The Fiscal Year 2016 Agriculture Appropriations Bill was approved by the House Appropriations Subcommittee on June 17.  It was set to be considered by the full committee on June 25 but was postponed.

Written by Katharine Richter - Research Assistant

June 30, 2015

WOTUS Rule Effective Date Set for Aug. 28, 2015

On Monday June 29, 2015, the EPA published the final CleanWater Rule, also known as the Waters of the United States (WOTUS) rule, in the federal register setting the effective date for August 28, 2015.

According to the text of the rule, the rule is meant to “clarify the scope of the waters…protected by the Clean Water Act (CWA)…” The rule maintains current exemptions for activities, and in some instances expands the exceptions “to make it clear that this rule does not add any additional permitting requirements on agriculture.” According to an EPA fact sheet, the Clean Water Rule is meant to provide greater clarity for agriculture within the existing requirements.

The American Farm Bureau Federation has claimed that the final WOTUS rule is broader than the original proposed rule, and rather than clarifying the requirements, creates more uncertainty for farmers. The Farm Bureau claims the new exceptions are too narrow to be of use, or so unclear as to be open only to agency interpretation.

The 60-day period for judicial review of the rule is set to begin on July 13, 2015.

Written by Tyler R. Etter- Research Assistant
June 29, 2015

USDA Deputy Administrator Discusses Voluntary GMO Labeling Program

  On June 25, 2015, The House Agricultural Subcommittee on Biotechnology, Horticulture, and Research held a public hearing reviewing USDA’s Agricultural Marketing Service (AMS) programs. 

 

  At the hearing, Deputy Administrator of Livestock Poultry and Seed Program for USDA’s Agricultural Marketing Service, Dr. Craig Morris, testified regarding AMS recently approving a process verified program that allows companies to voluntarily seek third-party verification to market their products as non-GMO that are 99.1% or above non-genetically engineered material.  According to the AMS program, if a company’s product is verified, they are permitted to sell that product using the USDA Process Verified Shield.

  Chairman of the Subcommittee on Biotechnology, Horticulture, and Research Rodney Davis (R-IL), remarked in his closing statements that USDA has “the capability and resources to provide valuable oversight of these voluntary marketing claims” and that the U.S. currently has “a robust regulatory review process to ensure human, plant and animals health, as well as environmental health.”

Written by Katharine Richter - Research Assistant

June 26, 2015

Senate Passes "Fast-track" Legislation

On June 24, 2015, the U.S. Senate passed the Trade Priorities and Accountability Act (S. 995) by a vote of 60-38.  The Act, which was lobbied for by the Obama administration, now awaits the President’s signature.

Known as “fast-track,” the Act, intended to make it easier for goods to reach international markets, provides the President greater authority in negotiating trade deals. According to the Act, Congress will not have the ability to amend proposed trade agreements, but will only be permitted to vote yes or no.  Additionally, the Senate will not be permitted to filibuster proposed trade agreements.

Following the Senate passage of the Act, Agricultural Secretary Tom Vilsack issued a press release stating “[t]oday the Senate helped move America closer to securing responsible agreements that open markets for America’s farmers, ranchers and agribusiness and create jobs and improve wages across the country.”

On June 18, 2015, similar “fast-track” legislation (H.R. 1890) passed the House of Representatives by a vote of 218-208.   

To read the Congressional Research Service’s report regarding the proposed “fast-track” legislation, please click here.    

Written by M. Sean High - Staff Attorney

June 25, 2015

Supreme Court Sides with Raisin Growers

On May 22, 2015, the United States Supreme Court struck down that the federal raisin marketing order's reserve requirement clause as an unconstitutional taking of property. 

Prior to the Court’s ruling, in order to be permitted to sell raisin, all raisin growers were required to participate in the federal raisin marketing order program.  Importantly, as part of the federal raisin marketing order program, all raisin growers were required to surrender (or “reserve”) a portion of their crop to the federal government without any compensation.   

In an eight to one ruling, the Court determined that the federal raisin marketing order’s reserve requirement violated the Constitution’s Fifth Amendment forbidding the government from taking property without just compensation.  According to the Court, raisins are property and the federal government does not have the right to force a business owner to surrender a portion of that property simply for the privilege of participating in commerce. 

 

To read the full Court opinion, please click here.

 

Written by M. Sean High - Staff Attorney

June 24, 2015

WHO Evaluates Carcinogenicity of 2,4-D Herbicide

On June 22, 2015 the World Health Organization’s International Agency for Research on Cancer (IARC) released an evaluation on the carcinogenicity of the herbicide 2,4-dichlorophenoxyacetic acid (2,4-D).

2,4-D, introduced in 1945, has been widely used to control weeds in agricultural, forestry, urban, and residential settings. Occupational exposure occurs during the manufacturing and application of the herbicide and the general public can be exposed through food, water, dust, and residential application. According to the report, humans expel 2,4-D mostly unchanged through urine.

The IRAC has evaluated 2,4-D to be “possibly carcinogenic to humans”, with “inadequate evidence in humans” and “limited evidence in experimental animals.” IRAC states that there is strong evidence that 2,4-D induces oxidative stress, as well as moderate evidence that 2,4-D can cause immunosuppression. The study did not find strong or consistent increases in cancer risks as a result of exposure to 2,4-D.

The IRAC also evaluated the insecticides lindane and DDT, categorizing the two as “carcinogenic to humans” and “probably carcinogenic to humans” respectively.

The summary of the evaluations can be found here. The full evaluations will be published as Volume 113 of the IARC Monographs. 

Written by Tyler R. Etter- Research Assistant

June 23, 2015

PDA Enacts Quarantine Order to Reduce Spread of Avian Influenza

  On June 20, 2015, the Pennsylvania Department of Agriculture (PDA) published notice in the Pennsylvania Bulletin regarding the establishment of an interstate Quarantine Order for all live bird markets and breaker eggs shipped interstate to Pennsylvania.  The order became effective upon publication. 

  Enacted to reduce the potential exposure of Pennsylvania poultry to highly pathogenic avian influenza, the interstate Quarantine Order applies to “live bird markets,” defined as markets that sell live birds for consumers or sell live birds and slaughter them on-premises for customers, and “breaker eggs,” defined as eggs that are cracked and sold in liquid form to be used by wholesale bakers and restaurants.  According to the order, poultry and breaker eggs that originate from states where Highly Pathogenic Avian Influenza has been detected are not allowed into the Commonwealth unless the products are properly tested and documented.

  In a press release issued by PDA, Secretary of Agriculture Russell Redding stated, “As avian influenza continues to spread eastward, we have increased our monitoring and protocols to safeguard the state’s $13 billion poultry industry.” Additionally, Secretary Redding noted, “[w]ith this order, Pennsylvania’s biosecurity efforts are strengthened without impeding commerce.”

Currently, avian influenza has been confirmed in twenty states.  

Written by Katharine Richter - Research Assistant

June 22, 2015

Energy and Commerce Committee Holds Hearing on GMO Labeling Bill

On June 18, 2015, the United States House of Representatives Energy and Commerce Subcommittee on Health held a hearing on House Bill 1599, regarding the implementation of a national framework for the labeling of foods containing genetically-modified organisms (GMOs).

House Bill 1599 would create a voluntary labeling standard for foods containing GMOs. The bill would require USDA certification for a product to be labeled as non-GMO as well as requiring FDA safety approval for new genetically engineered traits in crops and products. The bill would also preempt any individual state laws regarding GMO labeling, such as Vermont’s mandatory labeling law.

Testimony was heard from both proponents and opponents of the bill. One proponent of House Bill 1599 stated that a national framework would protect farmers and agricultural cooperatives from a “hodgepodge of rules” that would be “unworkable.” Another testified that compliance with Vermont’s law is “really a nightmare” for manufacturers, requiring either product reformulation or creation of a separate line of product labeling for the state.  One proponent even testified that GMO labeling is meaningless, as all food products have been altered from their original state, stating that “it is a process, not a product.”

One opponent of the bill stated that the lack of a new safety approval process through the FDA leaves safety determinations in the hands of companies.  Another opponent testified that by preempting state laws, the bill interferes with the role of states “as laboratories of democracy to develop novel…experiments without risk to the rest of the country.”

To watch the full hearing, click here.

Written by Tyler R. Etter- Research Assistant

June 19, 2015

Informational Meeting Held for Pennsylvania House Bill 1265 on Milk Pricing Transparency

  On June 17, 2015, the Pennsylvania House of Representatives Agricultural and Rural Affairs Committee held an informational meeting on proposed House Bill 1265, regarding transparency of Pennsylvania state-mandated milk premiums paid to dairy farmers.

  House Bill 1265 addresses farmers concerns that they are not aware of whether they are being paid the Pennsylvania state-mandated premium (“over-order premium”) on milk sales.  The state over-order premium is currently $1.85 per hundredweight, or in terms of gallons, .16 cents.  The fee applies to every gallon of Class 1 fluid drinking milk that is produced, processed, and sold in Pennsylvania.  Farmers currently lack a verification method that the premium is being paid because payments made to the farmer do not contain a separate line item identifying the over-order premium amount paid.  The bill would make it mandatory for milk dealers, as well as dairy cooperatives, to include distinct notification on the payment form to inform the farmer how much they are being paid for the State-mandated premium. 

  Testimony was heard from both proponents and opponents of the bill.  Opponents of the bill discussed the administrative difficulties of implementing the changes required by H.B. 1265.  In addition to implementation difficulties, they argued ample transparency already exists so the bill would provide no extra benefit to the farmers.  Proponents of the bill argued it would strengthen trust between dairy farmers and cooperatives by fostering accountability and transparency in payments received.  It would also assist the farmers in adequately managing their operations by knowing how much revenue will be coming in.

  To watch the full legislative hearing, click here.

Written by Katharine Richter - Research Assistant

June 18, 2015

FDA Finalizes Ban on Artificial Trans Fats in Processed Foods

On June 16, 2015, the Food and Drug Administration (FDA) finalized the determination that partially hydrogenated oils (PHOs) are not “generally recognized as safe or GRAS for use in human food.” PHOs are the primary source of artificial trans fats in processed foods.

After considering public comments and scientific data, the agency finalized the tentative determination made in 2013. Manufacturers will have three years to comply with the new determination by either reformulating products to remove all PHOs or petitioning the FDA for a specific use of PHOs. After the three year period, PHOs can no longer be added to human food without prior FDA approval.

The ban is aimed at improving the overall heart health of Americans. The FDA expects the action to
“reduce coronary heart disease and prevent thousands of fatal heart attacks every year.” However, trans fats won’t be completely eliminated from all foods, as they are naturally occurring in meat and dairy products as well as other edible oils.

During the compliance period, the FDA recommends that consumers continue to check nutrition labels and select items that have the lowest amounts of trans fats, as well as checking the ingredients list to ensure the accuracy of a “0 grams trans fat” label.

The determination is open to public comment, and can be found here.

Written by Tyler R. Etter- Research Assistant

June 17, 2015

Law Passed in Minnesota Requiring Riparian Buffers on all Designated Public Waterways

  On June 13, 2015, Governor Mark Dayton of Minnesota signed all special session bills passed by the legislature, including the Agriculture, Environment, and Natural Resources Finance Bill (SF 5).  Section 79 (see pg. 138) of the bill mandates all designated public waterways to have riparian buffers to protect water resources.

  Under the new law, buffers for designated public waterways are required to be on average 50-foot width, with a 30-foot minimum.  The implementation of buffers on designated public waterways must be completed by November 2017 and public ditches, which must have 16½-foot buffers, completed by November 2018.  The obligation to determine which streams, headwaters, and ditches require buffers will fall on the state’s 90 county soil and water conservation districts.

   According to a document on the Minnesota Governor’s website, this legislation was one of Dayton’s top priorities and will help to protect Minnesota’s water resources.  The Bill has received criticism from environmental groups.  Environmentalists are stating the law has not gone far enough to protect public water ways.  Steve Morse, Executive Director of Minnesota Environmental Partnership, stated, “We in the environmental community are extremely disappointed in the revised bill released by Legislature today … With the exception of a modest improvement on water quality with more enforcement of vegetative buffers, this bill is absolutely a step backwards for Minnesota’s environment.”  

Written by Katharine Richter - Research Assistant

June 16, 2015

FDA Publishes Final Rule on Veterinary Feed Directive

On June 3, 2015, the Food and Drug Administration (FDA) published the final rule for the Veterinary Feed Directive (VFD). The VFD places the use of antimicrobial drugs in or on the feed of food-producing animals (VFD drugs) under veterinary oversight. The rule is part of a broader effort on the part of the FDA to eliminate antimicrobial drug use in a productive capacity, such as promoting animal growth.

The final rule outlines the authorization process of VFD drug use and provides veterinarians with a national framework regarding the authorization of drug use for specific animal health purposes.  VFD drugs can be issued only in the context of a veterinarian-client-patient-relationship (VCPR). The rule provides the key elements that constitute the relationship.

The final rule also requires that veterinarians follow the state-defined requirements for a VCPR. The FDA will defer to the state’s judgment regarding conduct standards for veterinarians so long as the state meets the federal VCPR. In the event that a state fails to meet the standard, the FDA will require veterinarians to adhere to the federal standard.

The FDA will begin enforcement of the VFD final rule in December of 2016 to allow adequate time for industry to adjust to the new regulations. The full text of the final rule can be found here. For the outline of the FDA’s “current thinking” on industry compliance for the final rule, see the draft guidance available here.

Written by Tyler R. Etter- Research Assistant
June 15, 2015

House Passes Bill Repealing Beef, Chicken, and Pork from COOL

  On June 10, 2015, the United States House of Representatives passed proposed House Bill 2393, which repeals Country of Origin Labeling (COOL) requirements as applied to muscle cut meat commodities: beef, pork, and chicken.  The amendment to COOL passed through a yea/nay vote of 300-131.  The Bill still needs to be presented and voted on in the Senate.     

  

  According to the House Committee on Agriculture website, supporters of the repeal believe it’s a necessary step in order to bring the United States into compliance with the World Trade Organization (WTO) ruling.  The Bill also ensures avoidance of retaliatory sanctions, such as tariffs, from two of the U.S.’s top trading partners, Canada and Mexico. 

  Although chicken was not included in the WTO ruling, which was aimed at beef and pork labeling, Chairman Michael Conaway (R-TX) stated, “We also eliminate the requirement for chicken, which faced high costs and little if any quantifiable benefits ... [n]o other products are affected.”  All other products, such as fruits, vegetables, and peanuts, would continue to adhere to COOL requirements.

Written by Katharine Richter- Research Assistant

June 12, 2015

Ag Secretary Updates PA Legislators on Avian Influenza

On May 10, 2015, Pennsylvania Agricultural Secretary Russell Redding addressed the Pennsylvania House Agriculture and Rural Affairs Committee and provided legislators with information regarding his department’s preparedness for addressing any possible outbreak of avian influenza in the State’s poultry industry.

Currently, twenty Western states have experienced outbreaks of avian influenza.  As a result of these outbreaks, 47 million birds have died or been destroyed.  Secretary Redding stated that while there have been no reported cases of avian influenza in Pennsylvania, a recent outbreak occurred in Macomb, Michigan-an area 150 miles from the Pennsylvania border. 

The Secretary communicated to the law makers that for the last four months, his department, along with members of the poultry industry and academia, have developed measures to both prevent and deal with an outbreak of avian influenza.  Secretary Redding called for more education of poultry producers regarding proper preventive measures.  He also stressed that that the public needed to be made aware that there is no evidence that avian influenza is harmful to humans.

Secretary Redding stated that currently, the poultry farmers and bird owners bear all the risks and costs associated with an outbreak of avian influenza.  Because such an outbreak could financially devastate poultry producers by causing long suspensions of operations, the Secretary called for the legislators to develop a recovery plan which could provide affected producers with some support until operations are resumed. 

Written by M. Sean High - Staff Attorney

May 11, 2015        

House Passes Three Agriculturally Related Bills

  On June 9, 2015, the United States House of Representatives passed by voice vote three agriculturally related bills: H.R. 2051 Mandatory Price Reporting Act, H.R. 2088 United States Grain Standards Reauthorization Act, and H.R. 2394 National Forest Foundation Reauthorization Act.  The bills were reauthorizations which the House Agriculture Committee Chairman, Michael Conaway (R-TX), wanted passed before the bills expired.  The bills still need to be presented and passed by the Senate.

  In a statement on Tuesday, Conaway commented, “As Chairman, my first goal was to have all reauthorizations taken care of before the deadlines passed, and that’s what we accomplished today. In fact, this completes our work in cleaning up the books of the House Agriculture Committee, addressing every item on the Congressional Budget Office’s (CBO) list of unauthorized appropriations under the Committee’s jurisdiction.”  He further stated the Acts are essential for farmers and ranchers to continue having necessary resources to carry out operations.

  House Bill, 2051 Mandatory Price Reporting Act, would reauthorize the Livestock Mandatory Price Reporting Act of 1999, which was set to expire on Sept. 30, 2015.  According to the House Committee on Agriculture website, the Act mandated “price reporting for live cattle, boxed beef, and live swine” as well as “allowed United States Department of Agriculture (USDA) to establish mandatory price reporting for lamb sales.”  The Act was originally created in response to changing markets and the lack of reporting sale prices as larger volumes of animals were being sold via marketing arrangements.  The price reporting mechanism that was previously voluntary became mandatory with the enactment of the 1999 legislation, the goal being to facilitate price transparency.  

  House Bill, 2088 United States Grain Standards Act, would reauthorize the United States Grain Standards Act of 1916.  According to the House Committee on Agriculture website, the Act gives “the federal government authorization to establish official marketing standards for grains and oilseeds and provided procedures for grain inspection and weighing.”

Written by Katharine Richter- Research Assistant

June 10, 2015

FDA Publishes Draft Guidance for Qualified Importer Program

On Thursday June 4, 2015, the Food and Drug Administration (FDA) released draft guidance outlining the implementation of the Voluntary Qualified Importer Program (VQIP). VQIP is a fee-based program, established by the Food Safety Modernization Act, that expedites the importation process for importers with a proven track record of food safety.

                                       

The aim of the program is to incentivize the adoption of practices that will improve importers’ supply chains and allow the FDA to focus resources to higher risk areas of food safety. The program rewards those importers that have maintained a strong record of food safety and benefits public health by allowing the FDA to shift focus to those importers with poorer track records.

The guidance contains the expected benefits of and the criteria for participation in the program. The document also details the instructions for applying to the program, as well as the scenarios that may result in an importer being removed from the program.

The draft guidance, once finalized, will represent the FDA’s current thoughts on the implementation of the program, and will not create any new binding regulations or duties on the part of the FDA or importers. There is no obligation on the part of an importer to take part in the program, as participation is purely voluntary.

The complete draft guidance is available here. Public comments on the draft are open until August 4, 2015, and can be submitted here.

Written by Tyler R. Etter- Research Assistant

June 9, 2015

Canada and Mexico Seek Sanctions against United States over COOL

  On June 5, 2015, Canada and Mexico requested the right to impose sanctions worth $3 billion on the United States through the World Trade Organization (WTO).  The request comes after U.S. failure to meet WTO recommendations on the Country of Origin Labeling (COOL) ruling.  WTO’s meeting to decide on whether to implement sanctions is scheduled for June 17, 2015.

    The dispute over COOL originated December 1, 2008 when Canada claimed COOL violated both WTO’s Technical Barriers to Trade (TBT) agreement and General Agreements on Tariffs and Trade (GATT).  The dispute specifically focused on imported muscle cut meat commodities: beef and pork.  Mexico requested to join Canada in the proceedings December 12, 2008. On November 18, 2011, WTO ruled that the U.S. had violated both TBT and GATT.  WTO found COOL created a detrimental effect on competitive opportunities for imported livestock by unfairly making domestic products more favorable. 

  Though the U.S. appealed the decision on March 23, 2012, the decision was reaffirmed by the WTO Appellate Body on June 29, 2012.  On May 24, 2013, the U.S. issued an amended final rule 78 Fed. Reg. 31367 to meet WTO recommendations.  Canada and Mexico stated the rule was protectionist and requested compliance proceedings.  On October 20, 2014, WTO found that the U.S. amended COOL measures contained the same violations as the prior regulation.

  Congress has not reached a unanimous decision on how to handle the recent challenges to COOL.  While advocates believe COOL provides a legitimate objective by providing country of origin information to beef and pork consumers, opponents cite a USDA economic study that found that unless there is an increased demand for beef and pork by consumers based on COOL information, implementing COOL results in losses along supply chains. 

  On May 18, 2015, House Agriculture Committee Chairman Michael Conaway (R-TX) introduced H.R. 2398, which would repeal beef, pork, and chicken from COOL.  On May 20, 2015, the House Agriculture Committee favorably reported H.R. 2393 to the House where it is expected to go to the House floor in early June.  

Written by Katharine Richter- Research Assistant

June 8, 2015

Revision of International Intellectual Property System Approved

On May 20, 2015, at a diplomatic conference held in Geneva, Switzerland, representative delegates from each of the World Intellectual Property Organization (WIPO) member states approved the Geneva Act of the Lisbon Agreement on Appellations of Origin and Geographical Indications (Geneva Act).  The approved revision now allows for the international registration of qualifying products under the term “geographical indication (GI).”

WIPO is a United Nations organization, established in 1967, that seeks to provide a system that “promote[s] the development of measures designed to facilitate the efficient protection of intellectual property throughout the world and to harmonize national legislation in this field.” Currently, WIPO has 188 member state; including the United States of America.

Prior to the recent approval of the Geneva Act, in order to receive intellectual property name protection regarding the identification of a product’s geographic origin, items had to qualify under the term “appellation of origin (AO).”  To qualify under AO, 1) all of a product’s raw materials must come from the place of origin being claimed; and 2) if the product is processed, that processing must occur in the place of origin being claimed.

While the revised Geneva Act continues to maintain AO protection, it now provides for an easier to attain protection regarding a product’s geographic origin.  Under the revised Geneva Act, items may now acquire geographic name protection if they qualify as a “geographical indication (GI);” a mere claim that a product originated in a specific geographical area (such as Mexican Tequila).  A GI does not require proof of, or allow the additional claims, that all the products raw materials are from that location or that the processing of the product occurred at that location. 

The revised Geneva Act is scheduled to go into effect “three months after five eligible parties have deposited their instruments of ratification or accession.”

Written by M. Sean High - Staff Attorney

June 5, 2015

Final HACCP Compliance Guidelines Released by FSIS

  On May 15^th, 2015, the United States Department of Agriculture (USDA) Food Safety and Inspection Service (FSIS) issued its final Hazard Analysis and Critical Control Points (HACCP) Compliance Guideline for systems validation.  The release of the Compliance Guideline comes after many revisions since the first proposal back in March 2010. 

   FSIS’s Compliance Guideline was issued with the goal of providing assistance to companies, especially small meat and poultry plants, to meet the validation standards required for HACCP systems under 9 Code of Federal Regulations (CFR) 417.4.  Validation of a HACCP system is the process of demonstrating through data that the system in place will be able to adequately control any identifiable hazards to produce a safe, unadulterated product.

  According to FSIS, compliance guidelines were necessary because many establishments were failing to adequately validate their HACCP systems.   Significantly,“[i]n 2012, FSIS concluded that E. coli (non-O157) positives likely occurred because of improperly designed interventions." Similarly, FSIS determined that "an outbreak involving chicken pot pies in 2007 and a 2011 outbreak from turkey burgers may have occurred because of improperly validated cooking instructions.”

  Companies now have the opportunity to immediately incorporate the issued compliance guidelines with their existing HACCP system.  FSIS stated that after January 4, 2016 it will begin checking large establishments to determine if they have met validation requirements under 9 CFR 417.4. Smaller establishments will have until April 4^th, 2016, before inspections begin.  According to FSIS, the time frame is provided to allow establishments the opportunity to collect all the data necessary to meet the validation standards.  

Written by Katharine Richter - Research Assistant

June 4th, 2015 

FDA Releases Draft Guidance for Mandatory Food Recalls

On May 7, 2015, the Food and Drug Administration (FDA) published a draft of planned guidance for the implementation of the mandatory recall authority established with the Food Safety Modernization Act of January 2011.

The guidance serves to highlight the FDA’s current thinking on the recall authority and how industries can comply with the existing regulations, creating no new duties or regulations on the part of the FDA or industry in general.

The draft provides the definition of “food”, “responsible parties”, and “person” within the Food, Drug, and Cosmetics Act. The draft also explains how the FDA determines when a food is considered adulterated or misbranded and what evidence might be considered.

The criteria for a recall are met when there is a reasonable probability of adulteration or misbranding as well as a reasonable probability of serious adverse health consequences or death to humans or animals. The draft then outlines the process for the recall, beginning with the opportunity for a voluntary recall and in the event of non-compliance the FDA may order a recall. To date, this power has only been exercised twice.

Public comment on the draft guidance is open until July 6, 2015, and may be submitted here.

Written by Tyler R. Etter - Research Assistant
June 3, 2015

City of Davis California Proposed Ordinance Would Make Milk or Water Default Option in Children's Meals

  On May 26^th, 2015, a proposed city ordinance, Article 17.02 Children’s Meals, was unanimously approved by the Davis City Council in Davis, California.  The ordinance would require restaurants and fast food chains to make the default beverage option for a children’s meal either milk or water.  In an effort to curb the growing epidemic of childhood obesity and related health problems, the proposed ordinance would impose legal sanctions on fast food chains and other restaurants that have their cashiers and waiters market soda with children’s meals.  If the purchaser opts for soda, there will be no extra cost.  The ordinance requires consumers to request the option to have soda with the kid’s meal, as the default will be milk or water.  If a restaurant or fast food chain is discovered to be offering soda as the default, the city will first contact the restaurant but if the behavior continues, the city will issue fines beginning at $100.    

  Restaurants and fast-food chains were informed of the proposed ordinance through mail and invited to the upcoming public meeting.  No restaurant or food chain responded by e-mail or phone to the letter nor attended the meeting.  Opponents to the legislation who did attend the public meeting argued the legislation was intrusive and unnecessary. 

  This novel city ordinance proposal is in alignment with a general trend towards increasing legislation aimed at restaurants and fast food chains to provide customers with information to make health conscious choices.  Recent changes to legislation include requiring chain restaurants and similar establishments with at least 20 locations operating under the same name to list the calories for every item on their menu and make available additional serving size suggestions. 

  The proposed legislation still requires a second council vote and if the ordinance is passed, it will become effective on September 1^st, 2015.  

Written by Katharine Richter- Research Assistant

June 2nd, 2015

EPA Proposes New Update to Renewable Fuel Standard

On May 29, 2015, the Environmental Protection Agency released proposed updates to the Renewable Fuel Standard (RFS), which seeks to regulate the amount of biofuels to be blended into conventional gasoline. The standards were created with the reduction of greenhouse gases and reliance on foreign oil in mind.

The proposed standards call for a total volume of 17.4 billion gallons of biofuels by the end of 2016, short of the original 22.25 billion gallon mandate set out by Congress. The proposal also calls for an increase in “advanced biofuels”, a miscellaneous category that includes fuels made from leftover agricultural products like corn stalks and husks to converted fuels from sugar cane and soybean oil, as well as waste oil and greases, to help reach the volume requirements.

The EPA states that the lower standards reflect the difficulties in the market to accommodate the rising levels of ethanol and the lack of availability of non-ethanol sources, citing the Clean Air Act as the source of authority to alter the volume requirements in the original RFS.

The announcement has been met with criticism from both sides, stating that the new proposal doesn’t serve to meet the asserted goals of the RFS, and that the EPA fails to work to circumvent the “blend wall” that stands in the way of further adopting ethanol fuels. Most U.S. gasoline is currently ten percent ethanol, and AAA estimates that only fifteen percent of U.S. vehicles could handle more, limiting the ability to increase ethanol volume beyond the existing percentage.

The proposal will be open for public comment until July 27, 2015, and finalization is planned for November 30, 2015.

Written by Tyler R. Etter - Research Assistant
June 1, 2015

G20 Agricultural Ministers Decry Food Waste

At the conclusion of the May 7-8 Group of 20 (G20) Agricultural Ministers meetings in Istanbul, Turkey, the attending Agricultural Ministers issued a statement regarding the “enormous economic, environmental and societal significance” of food waste. 

According to the group’s Final Communiqué, global waste can result in “negative consequences for food security, nutrition, use of natural resources and the environment.” The Agricultural Ministers acknowledged that while food waste issues will necessarily vary among diverse nations, all nations should strive to use “otherwise wasted food to feed people.”

To provide nations with guidance regarding the reduction of food waste, the Agricultural Ministers proposed that the G20 Agricultural Deputies and G20 Development Working Group create a G20 Action Plan on Food Security/Sustainable Food Systems in time to be considered at the November 2015 G20 Leaders’ Summit in Antalya, Turkey. 


United States Secretary of Agriculture Tom Vilsack issued a statement commending the efforts of the Agricultural Ministers in addressing the issue of food waste.  Significantly, Secretary Vilsack noted that the Agricultural Ministers “focused on suggesting how countries might approach the issue rather than regulating or compelling people to stop food waste.” 

Written by M. Sean High - Staff attorney

June 1, 2015