Agricultural Law Weekly Review—August 18, 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:

Food Safety: USDA Announces Preliminary Deregulation of GE Apple

On August 12, 2016, the United States Department of Agriculture (USDA) Animal and Plant Health Inspection Service (APHIS) published notice in the Federal Register that the agency has reached a preliminary decision to extend deregulation to a genetically engineered line of apples known as Arctic® Fuji (81 FR 53396).  Developed by the company Okanagan Specialty Fruits Inc., Arctic® Fuji has been engineered to resist enzymatic browning.  The comment period for extending deregulation closes September 12, 2016.

Industrial Hemp: Notice Published for Federal Statement of Principles

On August 12, 2016, the United States Department of Agriculture (USDA), the United States Drug Enforcement Administration (DEA), and the United States Food and Drug Administration (FDA) published notice in the Federal Register that the three agencies have “developed a Statement of Principles on Industrial Hemp to inform the public how Federal law applies to activities associated with industrial hemp that is grown and cultivated in accordance with Section 7606 of the Agricultural Act of 2014” (81FR 53395).  According to the Federal Register notice, because the “Statement of Principles does not establish any binding legal requirements…[i]t is, therefore, exempt from notice and comment rulemaking requirements under the Administrative Procedure Act pursuant to 5 U.S.C. 553(b).”

Food Safety: FDA Issues Final Rule for Substances Generally Recognized as Safe

On August 17, 2016, the United States Food and Drug Administration (FDA) published notice in the Federal Register of a final rule amending the regulations regarding “when the use of a substance in food for humans or animals is not subject to the premarket approval requirements of the Federal Food, Drug, and Cosmetic Act (the FD&C Act)” due to the substance “being generally recognized as safe (GRAS) under the conditions of its intended use” (81 FR 54959).  Additionally, FDA stated that the agency was amending the “regulations to replace the voluntary GRAS affirmation petition process with a voluntary notification procedure.  The final rule comment period closes on October 17, 2016.  The final rule becomes effective on October 17, 2016. 

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Pesticide Regulation: Court Orders EPA to take Final Action

On August 12, 2016, the United States Court of Appeals for the Ninth Circuit denied a United States Environmental Protection Agency (EPA) request for an “additional six month extension to take final action on its proposed revocation rule and its final response to Pesticide Action Network North America and Natural Resources Defense Council’s (collectively, “PANNA”) 2007 administrative petition.” According to the Court, EPA has delayed taking action for nine years and has received previous court extensions.  As a result, the Court stated that it will not grant any further extensions and instead ordered EPA to take final action by March 31, 2017. 

Dairy Order: USDA Reduces Number of Dairy Board Importer Members

On August 12, 2016, the United States Department of Agriculture (USDA) Agricultural marketing Service (AMS) published notice in the Federal Register of a final rule amending the Dairy Promotion and Research Order so as to reduce the number of National Dairy Promotion and Research Board (Dairy Board) importer members from 2 members to 1 member (81 FR 53245).  According to the final rule, the number of domestic Dairy Board members will remain at thirty-six.  The final rule became effective on August 12, 2016.

Avian Influenza: USDA Amends NPIP and Low Pathogenic Indemnity Regulations

On August 12, 2016, the United States Department of Agriculture (USDA) Animal and Plant Health Inspection Service (APHIS) published notice in the Federal Register of a final rule “[a]mending the National Poultry Improvement Plan (NPIP), its auxiliary provisions, and the indemnity regulations for the control of H5 and H7 low pathogenic avian influenza (81 FR 53247).  According to USDA the final rule “clarifyi[es] who may participate in the NPIP, amend[s] participation requirements, amend[s] definitions for poultry and breeding stock, amend[s] the approval process for new diagnostic tests, and amend[s] slaughter plant inspection and laboratory inspection and testing requirements.” The final rule becomes effective September 12, 2016.

Mergers and Acquisitions: Sen. Grassley Sends Letter to DOJ and FTC Regarding Proposed Biotech and Seed Transactions

On August 17, 2016, Senate Judiciary Committee Chairman Charles Grassley (R-IA) issued a letter to Renata Hesse, Principal Deputy Assistant Attorney General, Antitrust Division, United States Department of Justice (DOJ) (which is reviewing the proposed merger between Dow Chemical Corp. and DuPont Co.) and Edith Ramirez, Chairwoman, Federal Trade Commission (FTC) (which is reviewing the proposed acquisition of Syngenta AG by China National Chemical Corp.).  According to Sen. Grassley, “[b]ecause of the complex nature of [the agricultural] industry it is important that these transactions not be viewed in isolation.” As a result, Sen. Grassley stated that DOJ and FTC should “collaborate” in their reviews, and where “appropriate solicit ‘input from the Department of Agriculture.”