Thursday, June 15, 2017

Agricultural Law Weekly Review – June 15, 2017

Written by Joseph Mooradian—Research Assistant

Soda Tax: Philadelphia Soda Tax Upheld in Pennsylvania Commonwealth Court
On June 14, 2017, the Pennsylvania Commonwealth Court upheld the Philadelphia soda tax. Following the ruling, Philadelphia Mayor Jim Kenney issued a statement, saying, “Two courts have now considered the arguments of the beverage industry and both are certain that the Philadelphia Beverage Tax stands on solid legal grounds.” The lawsuit was filed by the American Beverage Association (ABA), who claimed that the “1.5-cents-per-ounce tax on sweetened beverages” amounted to double taxation.

FSMA: FDA Considering Simplifying Agricultural Water Standards
The U.S. Food and Drug Administration (FDA) is reviewing its agricultural water standards rule, as enabled by the Produce Safety Rule, according to an announcement on its website on March 20, 2017. “Agricultural water can be a major conduit of pathogens that can contaminate produce,” the FDA said, stating that to manage this risk it is looking into, “how it might simplify the water standards.” “In addition to water quality, the produce industry has registered concerns about packing house regulations being too vague,” Food Safety News (FSN) reported. While there has not been any compliance delay announced yet, FSN called the move, “a quiet review that could extend the compliance date for the Produce Safety Rule beyond January 2018.”

Menu Labeling: Food Watchdog Groups Sue FDA Over Menu Labeling Delay
The U.S. Food and Drug Administration (FDA) was sued on June 20, 2017 by two groups, the Center for Science in the Public Interest (CSPI), and the National Consumers League (NCL), over the FDA’s recent delay in enforcement of its Menu Labeling Rule. “Without menu labeling, it’s hard for consumers to estimate the calorie content of popular restaurant items,” CSPI noted in a statement, advocating for enforcement of the rule. According to Law360, “The suit seeks an order vacating the delay and declaring that compliance with the nutrition labeling rule is required within 15 days of such an order.” Law360 also reported that, “[a]n FDA spokeswoman on Wednesday declined to comment.”

National Ag Policy: Seven States Appeal EPA Refusal to Ban Chlorpyrifos
As of June 6, the Attorneys General from California, New York, and five other states are appealing a decision by the U.S. Environmental Protection Agency (EPA) to pass on a ban of chlorpyrifos. The challengers claim that, “[c]hlorpyrifos . . . is shown to negatively impact proper development and functioning of the central nervous system and brain.” The statement calls the substance, “a widely-used pesticide on food crops – including those consumed by infants, young children, and pregnant women.”

GMO Labeling: USDA Reports Progress on GMO Disclosure Rules at Food Policy Conference
The United States Department of Agriculture (USDA) is making progress on its Genetically Modified Organism (GMO) labeling rule, according to Food Chemical News (FCN), in an article from June 7, 2017. This news came from Andrea Huberty at the Annual Food Label Conference, stating, “We are a little behind in getting this completed by 2018, although we are still on track, just a little behind.” Huberty, from the USDA’s Agricultural Marketing Service, said that the, “process got caught up in the transition” to the new administration. FCN reported that “[i]f the study proves that digital options do not offer a sufficient option for GMO disclosure, the agency would be required to provide food manufacturers with alternative ways to label GMO foods.”

Agricultural Labor: U.S. Labor Department Rescinds Joint Employer Guidance
The U.S. Department of Labor (DOL) rescinded its joint employer guidance, as derived from the Fair Labor Standards Act (FLSA), on Wednesday, June 7, 2017. While the guidance has been rescinded, “[t]he department will continue to fully and fairly enforce all laws within its jurisdiction, including the Fair Labor Standards Act and the Migrant and Seasonal Agricultural Worker Protection Act.” “This was guidance that made it easier for employers, workers, unions and others to know about their rights and obligations under the law," Reuters reported Lynn Rhinehart, general counsel for the American Federation of Labor and Congress of Industrial Organization, saying.

National Ag Policy: Field Chief Outlines Changes to Mandatory Price Reporting
The U.S. Department of Agriculture (USDA) will be implementing changes to its mandatory price reporting, according to a statement by Taylor Cox of the USDA’s Agricultural Marketing Services, as reported by Brownfield Ag News on June 11, 2017. According to Brownfield, Cox said that, “pork producers have expressed concern about the current percentage of negotiated hogs and would like to see that number increase.” Cox stated that “if producers have suggestions or comments on how to improve the AMS’s Livestock Mandatory Price Reporting – to submit comments online.”

Food Labeling: Court Stays Almond Milk Lawsuit, with Deference to FDA
District Judge Lawrence O’Neill in the eastern district of California stayed a suit against Whitewave (known for its Silk brand) on June 6, which alleged that, “Defendant has deceptively informed and led its customers to believe that they were purchasing, for a premium price, a dairy milk alternative that is nutritionally equivalent, and even superior, to dairy milk.” O’Neill held that the claim was, “an issue of first impression,” saying that, “the issue . . . fits squarely within the FDA’s authority.” While the FDA has not touched on the issue of plant milk in some time, O’Neill stated that, “[t]he FDA should at the very least have the opportunity to decide whether it will address the issue.”

Food Safety: Cargill-Pew Report Urges New Approach to Federal Meat Inspection
Cargill Inc. and Pew Charitable Trusts have produced a report entitled, “Recommendations to Modernize the Meat and Poultry Oversight System in the United States,” working through the Meridian Institute, and publishing the document in June 2017. The report recommends updates and modernizations to a wide variety of aspects of the industry, including oversight, data collection, a comprehensive farm-to-fork approach, processing, enforcement, and more. These recommendations were developed as part of a dialogue hosted by the organizations over several years and involved various stakeholder inputs, as documented here.

Food Labeling: FDA Extends Compliance Deadline for Nutrition Facts Panel Changes
The Food and Drug Administration (FDA), on June 13, 2017, has opted to extend their Nutrition Labeling rule compliance date beyond its previous compliance date of July 26, 2018, and has not yet announced a new compliance date. According to Food Navigator, “speakers at the American Conference Institute (ACI) food and law regulation forum in Chicago last month predicted that the deadline would likely be extended to 2021.” The FDA chose to move the date, stating their hope that, “additional time would provide manufacturers covered by the rule with necessary guidance,” and that manufacturers would, “be able to complete and print updated nutrition facts panels for their products before they are expected to be in compliance.”

Food Safety: Watchdog Group Sues USDA for Names of Poultry Companies
Food & Water Watch is seeking the names of poultry companies applying for non-government inspections under the U.S. Department of Agriculture’s (USDA) New Poultry Inspection System (NPIS). Food Safety News reported on June 13, 2017, that, “Food & Water Watch contends the system results in government inspectors ‘evaluating up to three birds per second in broiler chicken plants, and one turkey per second in turkey slaughter facilities.’” Food & Water Watch, in a statement issued at the outset a previous lawsuit against the USDA’s NPIS, said, “These rules essentially privatize poultry inspection, and pave the way for others in the meat industry to police themselves.” The group’s previous suit was dismissed, Judge Ketanji Brown Jackson described the opposition to the rule as, “sheer speculation that bad things might happen.”

Beef Industry: Final Guidelines Set for U.S. Beef Exports to China
on June 12, 2017, the USDA’s Agricultural Marketing Service (AMS) published the guidelines for the final agreement between the U.S. and China concerning the exportation of U.S. Beef to China, which can be found here. These exportation guidelines, published, cover the origins of beef and beef products, cattle traceability, cattle age, what products were eligible for shipment, and the traceability of processed beef and beef products. Products which proscribe to all the specified requirements will receive an FSIS Export Certificate.

Pennsylvania Legislation:
Agriculture and Rural Affairs:
  • HB 1518: An Act amending the act of April 9, 1929 (P.L.177, No.175), known as The Administrative Code of 1929, in organization of independent administrative boards and commissions, further providing for Agricultural Lands Condemnation Approval Board. (Referred to committee— June 9, 2017)
  • HB 1494: An Act amending the act of June 28, 1995 (P.L.89, No.18), known as the Conservation and Natural Resources Act, in Department of Conservation and Natural Resources, further providing for contracts and agreements. (Reported out of committee—June 12, 2017)
  • HB 944: An Act amending the act of March 10, 1949 (P.L.30, No.14), known as the Public School Code of 1949, in terms and courses of study, further providing for agricultural education and providing for Commission for Agricultural Education Excellence. (Reported out of committee—June 12, 2017)

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