Thursday, December 15, 2016

Agricultural Law Weekly Review—December 15, 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:

GIPSA: USDA Announces Updated Farmer Fair Practices Rules
On December 14, 2016, the United States Department of Agriculture’s (USDA) Grain Inspection, Packers and Stockyards Administration (GIPSA) announced updated changes to the Farmer Fair Practices Rules.  According to USDA, the new regulations—contained in an interim final rule and two proposed rules—are intended to “level the playing field for farmers by proposing protections against the most egregious retaliatory practices harming chicken growers.” Relatedly, House Committee on Agricultural Chairman K. Michael Conaway (R-TX) issued a statement the he “will make it a priority to roll back these, and other midnight regulations from the Obama Administration, as soon as Congress returns in January.”  

FSMA: FDA Publishes Guidance for Voluntary Third-Party Certification
On December 6, 2016, the United States Food and Drug Administration (FDA) published notice in the Federal Register “announcing the availability of a guidance for industry and FDA staff entitled ‘Third-Party Certification Body Accreditation for Food Safety Audits: Model Accreditation Standards’” (81 FR 88099).  The guidance contains non-binding “FDA recommendations on third-party certification body qualifications for accreditation to conduct food safety audits and to issue food and/or facility certifications under an FDA program required by the FDA Food Safety Modernization Act (FSMA).”

Litigation: Court Rules FDA did not Negligently Issue Salmonella Warning
On December 2, 2016, the United States Court of Appeals for the Fourth Circuit upheld a district court ruling that the United States Food and Drug Administration’s (FDA) did not negligently issue a 2008 warning that certain types of raw red tomatoes were likely contamination with Salmonella Saintpaul (Seaside Farm, Inc., v. United States of America, 2016 WL 7030629).  According to the court, shortly after the warning was issued, it was determined that the outbreak did not result from tomatoes, but from jalapeño and serrano peppers imported from Mexico.  The plaintiff, Seaside Farms, alleged that FDA’s warning was negligent and devalued its tomato crop by $15,036,293.95.  The court determined that the warning properly fell within the discretionary function exception of the Federal Tort Claims Act and that the district court “ruling was essential to protect FDA’s vital role in safeguarding the public food supply.”

SNAP: USDA Announces Final Rule for Retail Establishments
On December 8, 2016, the United States Department of Agriculture (USDA) Food and Nutrition Service (FNS) issued a news release announcing a final rule entitled Enhancing Retailer Standards in the Supplemental Nutrition Assistance Program (SNAP).  According to FNS, the final rule amends the SNAP retailer eligibility criteria to require that authorized SNAP retail food establishments must “offer a larger inventory and variety of healthy food options.” Additionally, FNS stated that the final rule provides changes to the definition of the term “accessory food” so as to “ensure that stores are not able to participate in SNAP by selling primarily snack foods.”

Class Action: Post Holdings Announces Settlement of Egg Price-Fixing Claims
On December 8, 2016, Post Holdings announced that the company has agreed to pay $75 million to settle claims, asserted by direct purchasers of shell eggs against Michael Foods, Inc., for allegedly conspiring to inflate egg prices (In re Processed Egg Products Antitrust Litigation, Case Number  2:08-md-02002).  Filed in the Eastern District of Pennsylvania in 2008, the litigation predates Post Holdings acquisition of Michael Foods in 2014.  According to Post Holdings, “the terms of the settlement must be formally documented and are subject to approval by the court following notice to all class members.”

Industrial Hemp: 2017 Pilot Program Parameters Announced
On December 10, 2016, the Pennsylvania Department of Agriculture (PDA) published notice in the Pennsylvania Bulletin announcing the Industrial Hemp Research Pilot Program parameters for 2017 (46 Pa.B. 7668).  The parameters outline the requirements necessary for 2017 Industrial Hemp Research Pilot Program permit applications.  According to PDA, all applications must be submitted to the department by January 6, 2017.

Fruit Production: Pennsylvania Terminates Apple Marketing Program
On December 10, 2016, the Pennsylvania Department of Agriculture (PDA) published notice in the Pennsylvania Bulletin that the Pennsylvania Apple Marketing Program will be terminated on May 26, 2017 (46 Pa.B. 7677).  From October 17—31, 2016, a referendum was held among eligible producers to determine if a majority wished the Program to continue for an additional 5 years.  According to the notice, the eligible producers voted 56% to 44% against continuation of the program. 

Follow us on Twitter at PSU Ag & Shale Law (@AgShaleLaw) to receive AgLaw HotLinks
Recent AgLaw HotLinks include:

Connect with us on Facebook! Every week we will post the Friday Recap which details all our publications and activities from the week.

Stay informed with our monthly Agricultural Law Brief located here

1 comment: