Thursday, March 9, 2017

Agricultural Law Weekly Review—March 9, 2017

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:

HPAI: USDA Confirms Avian Influenza in Tennessee Chicken Flock
On March 5, 2017, the United States Department of Agriculture’s (USDA) Animal and Plant Health Inspection Service (APHIS) announced that the agency had “confirmed the presence of highly pathogenic H7 avian influenza (HPAI) of North American wild bird lineage in a commercial chicken breeder flock in Lincoln County, Tennessee.” USDA stated that the infected flock, which consisted of 73,500 birds, “is the first confirmed case of HPAI in commercial poultry in the United States this year.” According to USDA, the virus “is NOT the same as the China H7N9 virus that has impacted poultry and infected humans in Asia.”

WOTUS: Agencies Announce Intention to Review Clean Water Rule
On March 6, 2017, the U.S. Environmental Protection Agency (EPA) and the Department of the Army (Army) published notice in the Federal Register “announc[ing] its intention to review and rescind or revise the Clean Water Rule” (82 FR 12532).  The notice was published in response to the February 28, 2017, Presidential Executive Order directing the agencies “to review and rescind or revise the 2015 Rule.” Accordingly, “EPA and the Army announce[d] their intention to review that rule, and provide advanced notice of a forthcoming proposed rulemaking consistent with the Executive Order…[and] [i]n doing so…will consider interpreting the term “navigable waters,” as defined in the CWA in a manner consistent with the opinion of Justice Scalia in Rapanos.

REAP: PDA Announces Availability of Tax Credits to PA Farmers for Conservation and Nutrient Plans to Improve Soil, Water Quality
On March 3, 2017, the Pennsylvania Department of Agriculture (PDA) announced the availability “of a tax credit program that can help [farmers] develop plans and install measures that reduce nutrient and sediment runoff.” According to PDA, “[f]armers can use Resource Enhancement and Protection (REAP) program tax credits to help offset the cost of writing conservation plans and nutrient management plans, purchasing conservation equipment, and implementing best management practices (BMPs) for their operations.” Information regarding REAP, which is administered by the Pennsylvania State Conservation Commission, is available on PDA’s website or through contacting Joel Semke at 717.705.4032 or

COOL: Australia Passes Country of Origin Labeling Law
On March 7, 2017, the Crookwell Gazette stated that “the Australian Government has passed the final tranche of Country of Origin Labeling laws through parliament.”  Included in the laws is a requirement that labels “show a kangaroo in a triangle to state the food is manufactured, produced, packaged or grown in Australia; and a bar chart indicating the proportion of Australian ingredients.” Businesses will be given a two year period to implement the new laws.

Litigation: Court Dismisses Food Safety Lawsuit against Chipotle
On March 8, 2017, Reuters reported that Chipotle Mexican Grill Inc. “won the dismissal of a lawsuit claiming it defrauded shareholders about its ability to protect customers from at least seven norovirus, E.coli and salmonella outbreaks that erupted in 2015.” According to Reuters, the U.S. District Court in Manhattan held that “shareholders failed to show that Chipotle improperly concealed the seriousness of food-borne illness outbreaks, the status of a federal probe into an E.coli outbreak, and how its alleged inability to monitor food safety raised the risk of outbreaks.” Shareholders had filed the lawsuit following Chipotle's share price declining “47 percent in just over five months from its August 2015 peak above $758.”

Invasive Species: Pennsylvania Expands Spotted Lanternfly Quarantine
On March 6, 2017, the Pennsylvania Department of Agriculture (PDA) announced that Coopersburg Borough and Salisbury Township have been added to the state’s Spotted Lanternfly quarantine.  “The quarantine, which affects parts of six Pennsylvania counties, restricts movement of any material or object that can spread the pest.”  According to PDA, the Spotted Lanternfly is native to China, India, Japan, and Vietnam and “had not been found in the United States prior to its initial detection in Berks County [Pennsylvania] in the fall of 2014.”

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