Agricultural Law Weekly Review—November 3, 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 Law: PA Supreme Court Decides Not to Use Power to Hear Phila. Soft Drink Tax Challenge

On November 2, 2016, the Pennsylvania Supreme Court denied a motion requesting an exercise of King’s Bench Powers to hear a challenge to Philadelphia City’s recently passed tax on sweetened beverages (Williams, et al., Pets. v. City of Phila., et al. - No. 148 EM 2016).  Scheduled to go into effect on January 1, 2017, the tax is being contested by beverage retailers and distributors on grounds that it unlawfully generates revenue for Philadelphia at the expense the state.   Because the court chose not to take-up the case under its plenary jurisdiction, the case continues in the Philadelphia Court of Common Pleas.

Food Safety: FDA Issues FSMA Draft Guidance Document for Describing a Hazard

On October 28, 2016, the United States Food & Drug Administration (FDA) issued a document entitled:  Draft Guidance for Industry: Describing a Hazard That Needs Control in Documents Accompanying the Food, as Required by Four Rules Implementing FSMA. According to FDA, “[t]his guidance is intended for any entity that is subject to certain provisions (in part 117, part 507, the produce safety regulation, or the FSVP regulation) that require a disclosure statement, in documents accompanying food, that certain hazards have not been controlled by that entity.”  FDA stated that the document contains non-binding recommendations and is being distributed for comment purposes only.

Food Safety: FDA Issues FSMA Guidance Documents

On October 31, 2016, the United States Food & Drug Administration (FDA) issued a document entitled: Guidance for Industry: What You Need to Know About the FDA Regulation: Current Good Manufacturing Practice, Hazard Analysis, and Risk-Based Preventive Controls for Human Food; Small Entity Compliance Guide.  According to FDA, “[t]his guide was developed to inform domestic and foreign food facilities about the [Preventive Controls for Human Food] regulation and how to comply with it.” Additionally, on October 31, 2016, FDA issued a document entitled: Guidance for Industry: Small Entity Compliance Guide - Current Good Manufacturing Practice, Hazard Analysis, and Risk-Based Preventive Controls for Food for Animals.  According to FDA, “[t]he intent of this guide is to inform domestic and foreign animal food facilities about the [Preventive Controls for Food for Animals] regulations and enable them to better understand the requirements of the rule.”

Equine: PA Governor Signs Law Reinstating Breeding Fund Payments

On October 28, 2016, Pennsylvania Governor Tom Wolfe signed legislation reforming the Pennsylvania Breeding Fund (HB 2303).  According to a press release issued by the Pennsylvania Department of Agriculture, the new law “fixes an unintended consequence of the equine racing industry reforms enacted in February 2016 that changed the criteria for payments under the state Breeding Fund award program…[which historically had] awarded breeders of registered Pennsylvania-bred thoroughbred horses that placed first, second or third in races at the state’s licensed racing tracks.”  The press release stated that the February 2016 reforms “inadvertently changed the eligibility criteria for those awards, removing the Pennsylvania-bred requirement and instead only required winning horses to have been sired in the state.” As a result, the “unintended change essentially rendered the program unable to be administered, thus preventing the payment of awards earned since Feb. 23, 2016.” HB 2303 restored the program’s qualifications to their original form for both the remainder of 2016 and retroactive to February 2016.

GMOs: APHIS Approves Two Biotech Potatoes

On October 28, 2016, the United States Department of Agriculture (USDA) Animal and Plant Health Inspection Service (APHIS) announced that the agency had approved two genetically engineered J.R. Simplot Company potatoes.  Known as Ranger Russet variety (X17) and Atlantic variety (Y9), the two potatoes have been genetically engineered for: (1) late blight resistance; (2) low acrylamide potential; (3) reduced black spot bruising; and (4) lowered reducing sugars.  According to APHIS, the two varieties do not pose a risk to the environment and/or plant pests.

International Trade: Canada and EU Sign CETA Trade Deal   

On October 30, 2016, the European Commission (EC) announced that the European Union and Canada had signed a trade agreement, known as the Comprehensive Economic and Trade Agreement (CETA).  According to EC, CETA will eliminate 99% of tariffs and create new opportunities for EU farmers and food producers by increasing exports of “cheese, wine and spirits, fruit and vegetables, processed products and geographical indications” while at the same time fully protecting the sensitivities of the EU by requiring that Canada satisfy EU rules and regulations.