Thursday, January 11, 2018

Agricultural Law Weekly Review—January 11, 2018

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: Ninth Circuit Finds Idaho Farm Protection Law Violates First Amendment
On January 4, 2017, the U.S. Court of Appeals for the Ninth Circuit issued a ruling regarding the Constitutionality of Idaho’s Interference with Agricultural Production law (IWAP).  Known also Idaho Code § 18-7042, IWAP was enacted in 2014 after an undercover video recording at an Idaho dairy facility was posted on the internet.  Under IWAP, Idaho sought to criminalize: (1) the use of a misrepresentation to gain access to an agricultural operation and (2) any video and/or audio recordings of an agricultural operation without the owner’s consent.  The court held that Idaho’s criminalizing misrepresentations to gain access was a violation of the First Amendment because IWAP “criminalized innocent behavior, was staggeringly overbroad, and that the purpose of the statute was, in large part, targeted at speech and investigative journalists.” The court also held that IWAP’s ban on video and/or audio recordings “regulated speech protected by the First Amendment and was a classic example of a content-based restriction that could not survive strict scrutiny.”

Antitrust:  R-CALF USA Alleges Potential Antitrust Violation
On January 3, 2018, the Ranchers-Cattlemen Action Legal Fund, United Stockgrowers of America (R-CALF USA) issued letters to leaders of the U.S. Senate Committee on the Judiciary, and its Subcommittee on Antitrust, Competition Policy, and Consumer Rights alleging potential antitrust violations by the food processors JBS and Cargill.  R-CALF USA stated that the JBS-owned beef packing plant in Souderton, Pennsylvania, and the Cargill-owned beef-packing plant in Wyalusing, Pennsylvania, “are the major beef packing plants in Pennsylvania, and likely throughout the entire Northeast.” According to R-CALF USA, following the October 25, 2017, temporary delisting of the JBS-owned plant in Souderton due to pest control, cow prices fell $5 to $10 per cwt.  R-CALF USA alleged that during this market downturn, Cargill purchased cattle at artificially low prices “because there was no meaningful market competition.”  Accordingly, R-CALF USA seeks Senate investigation into whether actions surrounding JBS’ withdrawing from the market and Cargill’s purchasing practices violated U.S. antitrust laws.

Pesticides: Attorneys General Join Challenge to California Glyphosate Labeling Law
On January 4, 2018, The Progressive Farmer reported that attorneys general from eleven states have joined a legal challenge in U.S. District Court for the Eastern District of California seeking to block California Prop 65.  Under Prop 65, products that contain glyphosate must carry a label stating that glyphosate may cause cancer.  The eleven states filing the petition are Idaho, Indiana, Iowa, Kansas, Louisiana, Michigan, Missouri, North Dakota, Oklahoma, South Dakota and Wisconsin.   

FSMA: FDA to Not Enforce Certain FSMA Regulations during Discretion Period
On January 4, 2018, the U.S. Food and Drug Administration (FDA) announced that during the enforcement discretion period of the FDA Food Safety Modernization Act (FSMA), the agency will not enforce certain regulations.  FDA stated that the enforcement delay will allow the agency additional time to address concerns regarding the regulations. According to FDA, areas covered under this enforcement discretion include:

  • “facilities that would be farms except for certain factors and activities,
  • written assurances provisions in all four rules related to the control of identified hazards or microorganisms that are a potential risk to public health
  • the animal food preventive controls requirements for certain manufacturing/processingactivities performed on human food by-products used as animal food, and
  • Foreign Supplier Verification Programs rule requirements for importers of food contact substances.” 

International Trade: U.S. Hopes U.K. Drops Certain EU Farming and Food Rules Following Brexit
On January 4, 2018, Bloomberg reported that United States (U.S.) officials are hopeful that the United Kingdom (U.K.) will eliminate some of its farming and food rules now that the nation has decided to leave the European Union (EU).  According to Ted McKinney, undersecretary for trade at the U.S. Department of Agriculture, following Brexit, the U.S. would like the U.K. to develop “its own food safety and environmental safety protocols” and remove certain EU farming and food processing regulations.  McKinney stated that the EU can be a “difficult place to do business” and that if certain EU regulations are dropped “there is a much greater opportunity for trade between the U.K. and U.S.” 

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