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:
Ag-Gag: Tenth Circuit Rules Wyoming Resource Data Collection Law Violates First Amendment
On September 7, 2017, the U.S. Court of Appeals for the 10th Circuit ruled that Wyoming’s “statutes imposing civil and criminal liability on any person who ‘[c]rosses private land to access adjacent or proximate land where he collects resource data’” violate the First Amendment. The court stated that under the Wyoming statutes, the phrase “collects resource data” is broadly defined so as to include numerous activities on public lands that “fit comfortably in the speech creation category recognized” by case law. Accordingly, the court asserted that while “trespassing does not enjoy First Amendment protection, the statutes at issue target the ‘creation’ of speech by imposing heightened penalties on those that collect resource data.” As a result, the court held “that the statutes regulate protected speech under the First Amendment and…are not shielded from constitutional scrutiny merely because they touch upon access to private property.”
FSMA: FDA announces that the FSMA produce Safety Rule is Now Final
On September 17, 2017, the U.S. Food and Drug Administration (FDA) announced that the FDA Food Safety and Modernization Act (FSMA) Produce Safety rule is now final. Initially proposed in 2013, FDA stated that “[t]he final rule is a combination of the original proposal and revisions outlined in the supplemental proposal (proposed in 2014), with additional changes as appropriate.” According to FDA, key requirement of the final rule include: (1) agricultural water; (2) biological soil amendments; (3) sprouts; (4) domesticated and wild animals; (5) worker training and health and hygiene; and (6) equipment, tools and buildings.
FSMA: FDA Commissioner Announces Steps to Help States Implement Produce Safety Rule
On September 12, 2017, the U.S. Food and Drug (FDA) Commissioner Scott Gottlieb announced “a number of immediate next steps in a comprehensive approach to ensuring successful implementation of the Produce Safety Rule established by the FDA Food Safety Modernization Act.” According to Commissioner Gottlieb, “the agency has recognized a need for additional efforts to educate the produce industry and state regulatory partners on the new produce safety requirements, and will continue its focus on training, guidance development, and outreach over the next year.” As a result, Commissioner Gottlieb asserted the FDA’s intention to: (1) extend agricultural water compliance dates; (2) engage stakeholders regarding agricultural water standards; (3) recognize other methods that are appropriate for use in agricultural water testing; (4) delay inspections to assess compliance with the non-water requirements of the Produce Safety Rule for produce other than sprouts; and (5) work in partnership with farmers and the states to provide training opportunities for producers and regulators.
Food Safety: FDA Commissioner Issues Statement Regarding Crops Affected by Recent Hurricanes
On September 14, 2017, the U.S. Food and Drug (FDA) Commissioner Scott Gottlieb issued a statement regarding crops, particularly rice, affected by Hurricanes Harvey and Irma. Commissioner Gottlieb stated that “I want to make it clear that the FDA has not issued a ban on rice or any other food crops.” According to the Commissioner, “[r]ice grown in normal conditions and rice that has not been exposed to contaminated floodwaters from the recent hurricanes may enter commerce.” Additionally, Commissioner Gottlieb stated that “rice and other crops that were harvested and stored safely before storms hit should not be considered impacted by these events.”
SNAP: Alaska Agrees to Pay Nearly $2.5 Million over Allegedly False SNAP Claims
On September 18, 2017, the U.S. Department of Justice (DOJ) announced that “[t]he Alaska Department of Health and Social Services (ADHSS) has agreed to pay the United States $2,489,999 to resolve allegations that it violated the False Claims Act in its administration of the Supplemental Nutrition Assistance Program.” According to the DOJ, beginning in 2009, ADHSS contracted with an outside consultant who “injected bias into ADHSS’s quality control process and resulted in ADHSS submitting inaccurate quality control data and information to USDA.” The DOJ alleged that due to the inaccurate submissions, ADHSS received “performance bonuses for fiscal years 2010, 2011, 2012, and 2013, that it should not have received.”
GMOs: European Court Finds Italy’s GMO ban unlawful
On September 13, 2017, Reuters reported that the European Court of Justice has determined that Italy wrongfully banned the cultivation of the genetically modified (GMO) maize MON 810. Though previously approved by the European Union in 1998, Italy nonetheless decided to ban MON 810 after two Italian studies questioned the products safety. According to the European Court of Justice, however, “unless there is significant evidence that GMOs are a serious risk to human or animal health or the environment, then member states cannot adopt emergency measures to prohibit their use.”
Food Safety: USDA Requires HACCP Reviews in Hurricane Affected Areas
On September 19, 2017, the USDA Food Safety and Inspection Service (FSIS) issued notice that establishments affected by recent hurricanes must reassess their Hazard Analysis Critical Control Point plans and take appropriate actions. The notice stated that “[r]eview of FSIS data and published research indicates the potential for an increase in Salmonella incidence in regulated food products following flood events.” According to the notice, inspection program personnel must also “verify whether the establishment’s Sanitation SOPs and any cleaning and related monitoring are adequate to address any additional sanitation problems related to the hurricanes.”
FSMA: FDA Offers Training for Carriers covered by the Sanitary Transportation of Human and Animal Food Rule
On September 20, 2017, the U.S. Food and Drug Administration (FDA) announced that the “FDA is offering a one-hour training module, free of charge, to help carriers meet the requirements of FDA’s Sanitary Transportation of Human and Animal Food Rule.” According to the FDA, under the Sanitary Transportation Rule, covered rail and motor vehicle carriers must “provide food safety training to their personnel engaged in transportation operations.” The FDA stated that while the offered “course is designed to provide basic food safety training to transportation operations personnel…[it] does not describe specific operating procedures and practices.” Instead the training is only “intended to complement industry best practices.”
Pennsylvania Actions and Notices
Milk Marketing Board
- USDA: Higher Ag Exports, Higher Trade Surplus In 2018 – Ag Web
- Cook County to consider repealing controversial sweetened beverage tax – IEG Policy
- Dicamba Lawsuits Mounting – Ag Web
- FDA delays some safety requirements for produce under FSMA to make them less complicated, costly – Food Navigator
- Organic Industry Sues USDA To Push For Animal Welfare Rules – NPR
- Penn State looks at safe, comfortable cage-free chicken housing – Feedstuffs
- Livestock groups seek waiver from trucking rules – Feedstuffs
- Digital GMO disclosure faces significant but manageable challenges, USDA study – Food Navigator
- Animal activists still targeting livestock, dairy producers – Farm and Dairy
- USDA can’t be sure organic imports are truly organic, reports OIG – Fern’s AG Insider
- Senate Passes Family Farmer Bankruptcy Clarification Act – Brownfield
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