Agricultural Law Weekly Review—March 24, 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:

Labor: SCOTUS Upholds Donning and Doffing Class Action against Tyson

On March 22, 2016, the Supreme Court of the United States ruled against Tyson Foods’ (Tyson) objection to the certification of a class action involving overtime pay and employee time spent donning and doffing protective gear worn at a pork processing plant in Iowa (Tyson Foods,Inc. v. Bouaphakeo, 2016 WL 1092414).  According to the Court opinion, Tyson claimed that because the type of protective gear worn varied among the employees at the plant, “the employees’ claims were not sufficiently similar to be resolved on a classwide basis.” The Court held that sample evidence produced by an expert witness, who observed videotape of the employees donning and doffing activities and compiled a study that provided an average of these times, satisfied the Federal Rule of Civil Procedure 23 class action requirement for a “question of law or fact common to class members.”

GMO Labeling: Kellogg, General Mills, and Mars Announce Nationwide Labeling Plans

On March 23, 2016, Kellogg issued a press release stating that in order to comply with the state of Vermont’s GMO labeling law, scheduled to go into effect on July 1, 2016, the company “will start labeling some of [its] products nationwide for the presence of GMOs beginning in mid-to-late April.” The decision by Kellogg echoes similar statements issued by General Mills and Mars on March 18, 2016.  According to General Mills, because the company cannot label “products for only one state without significantly driving up costs…consumers all over the U.S. will soon begin seeing words legislated by the state of Vermont on the labels of many of their favorite General Mills products.” According to Mars, although the company “firmly believe[s] GM ingredients are safe…in order [t]o comply with [the Vermont labeling law], Mars is introducing clear, on-pack labeling on our products that contain GM ingredients nationwide.”

BSE: FDA Issues Final Rule on “Mad Cow Disease” in Human Food

On March 17, 2016, the U.S. Food and Drug Administration issued a press release announcing a final rule “designed to further reduce the potential risk of bovine spongiform encephalopathy (BSE), sometimes referred to as ‘mad cow disease,’ in human food.” According to the final rule, published in in the Federal register March 18, 2016, FDA has “designated the following items as prohibited cattle materials: Specified risk materials (SRMs), the small intestine from all cattle (unless the distal ileum has been removed), material from nonambulatory disabled cattle, material from cattle not inspected and passed, or mechanically separated (MS) (Beef).” Intended “to minimize human exposure to certain cattle material that could potentially contain the BSE agent,” the finalized rule becomes effective April 18, 2016.

Food Safety:  Canada Approves Genetically Engineered Potato

On March 22, 2016, J.R. Simplot issued a press release stating that Health Canada and the Canadian Food Inspection Agency have approved for sale in Canada J.R. Simplot’s Innnate® Gen. 1 potato, a product genetically engineered to reduce browning or bruising when cut.  According to the Canadian Press, “the potatoes will not have a label indicating they are genetically engineered, as that's not a Health Canada requirement provided they've been deemed safe for consumption.” Relatedly, on March 20, 2015, the U.S. Food and Drug Administration concluded that J.R. Simplot’s Innate potatoes were “as safe and nutritious as their conventional counterparts,” and as a result, safe for human consumption.  According to J.R. Simplot, Innate® Gen. 1 potatoes are currently being “grown and sold in the U.S. fresh market under the White Russet™ brand.”

International Relations: USDA Announces Agricultural Measures with Cuba

On March 21, 2016, the U.S. Department of Agriculture (USDA) issued a press release announcing “several measures that will foster further collaboration between the U.S. and Cuban agricultural sectors.” According to Agricultural Secretary Tom Vilsack, USDA will now permit “the 22 industry-funded Research and Promotion Programs and 18 Market Order organizations to conduct authorized research and information exchange activities with Cuba.” Secretary Vilsack expressed a belief that the measures will assist in expanding trade between the two nations.  The press release stated, however, that while “the Trade Sanctions Reform Act (TSRA) of 2000 permits the export of U.S. agricultural commodities…U.S. agricultural exports to Cuba are limited by U.S. restrictions on government export assistance, cash payments, and extending credit.”

Legislation: Pennsylvania Senate Votes Unanimously for Industrial Hemp

On March 16, 2016, the Pennsylvania Senate voted 49-0 to pass Senate Bill 50 (SB50).  According to the proposed legislation’s Senate Co-Sponsorship Memoranda, SB50 “will provide for an industrial hemp industry in the Commonwealth through the establishment of an Industrial Hemp Licensing Board within the Department of Agriculture to license and regulate the cultivation, growth and sale of industrial hemp.”  Following the Senate vote, on March 17, 2016, SB50 was referred to the House Agriculture and Rural Affairs committee.