Agricultural Law Weekly Review—April 7, 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:

Right to Farm:  Commonwealth Court Upholds Trial Court Ruling against Mulching Operation

On April 7, 2016, the Commonwealth Court of Pennsylvania issued an unreported decision upholding a trial court decision finding that a Tinicum, Pennsylvania mulching operation was not protected by the Pennsylvania Municipalities Planning Code (MPC) or the Pennsylvania Right to Farm Act (RTF) (Tinicum Twp. v. Nowicki, 2016 WL 1276158).  As a result, the Commonwealth Court upheld the trial court ruling that the mulching operation was in violation of a preliminary injunction and in contempt for violating the injunction.  Significantly, the Commonwealth Court held that the trial court did not abuse its discretion in determining that the mulching operation was not an agricultural operation protected by MPC or RTF because: 1) the vast majority of the raw materials used for the mulching operation were brought in from off-site sources; and 2) the resulting mulch was not used onsite, but instead was delivered for use off-site.   

Industrial Hemp: Bill Passes House Unanimously

On April 6, 2016, the Pennsylvania House of Representatives voted 187-0 to pass legislation that would legalize the growth and cultivation of industrial hemp for research purposes.  Co-sponsored by Representatives Russ Diamond (R-Lebanon) and Marty Flynn (D-Lackawanna), House Bill 967 (HB 967) is similar in language to Senate Bill 50 (SB 50), which on March 16, 2016, unanimously passed the Pennsylvania Senate (see previous Penn State Agricultural Law Blog article).  HB 967 now moves to the Senate for concurrence with SB 50. 

Food Safety:  FDA Finalizes Rule for Food Transportation

On April 6, 2016, as part of the Food Safety and Modernization Act (FSMA), the Federal Drug Administration (FDA) published the final rule for Sanitary Transportation of Human and Animal Food (81 FR 20091).  According to FDA, the final rule “establish[es] requirements for shippers, loaders, carriers by motor vehicle and rail vehicle, and receivers engaged in the transportation of food, including food for animals, to use sanitary transportation practices to ensure the safety of the food they transport.” The new requirements established under the final rule are scheduled to become effective June 6, 2016. 

Avian Influenza: USGS Study Finds Alaska Likely Entry Point for Virus

On April 5, 2016, the United States Geological Survey (USGS) announced the results of a study indicating “that western Alaska remains a hot spot for avian influenza to enter North America.” According to USGS, the report finds “that while no highly pathogenic avian influenza viruses have been found in Alaska, the state remains an important area to monitor due to migratory bird flyways from North America and Eurasia that overlap the region.”

Animal Welfare: Walmart and Sam’s Club to Transition to Cage-Free Eggs

On April 5, 2016, Walmart U.S. and Sam’s Club U.S.announced plans “to transition to a 100 percent cage-free egg supply chain by 2025.”  According to the press release, all shell egg suppliers will be required “to be certified and fully compliant with United Egg Producers (UEP) Animal Husbandry Guidelines or equivalent standard.” Additionally, the press release stated that suppliers will be challenged “to use selective breeding practices, innovation and best management practices to improve the health and welfare of laying hens.” 

SNAP: Comment Period Extended for Proposed Rule on Retail Standards

On April 5, 2016, the Department of Agriculture Food and Nutrition Service published notice in the Federal Register that the agency was extending “the comment period and respond[ing] to questions posed by commenters about certain aspects of a proposed rule pertaining to the eligibility of Supplemental Nutrition Assistance Program (SNAP) retail food stores that was published in the Federal Register on February 17, 2016” (81 FR19500).  According to the notice, the extended comment period will close May 18, 2016. 

Dairy: USDA AMS Proposes Rule to Modify National Dairy Promotion and Research Board

On April 1, 2016, the United States Department of Agriculture Agricultural Marketing Service published a proposed rule in the Federal Register amending the Dairy Promotion and Research Order (81 FR 18802).  According to the proposed rule, “the proposal would modify the number of National Dairy Promotion and Research Board importer members. The total number of domestic Dairy Board members would remain the same at 36 and the total number of importer members would be reduced from 2 to 1.” The time for comment on the proposed rule ends May 2, 2016.