Penn State Agricultural Law Blog: Agricultural Law Weekly Review

Written by:

Jackie Schweichler - Education Programs Coordinator

The following information is an update of recent local, state, national, and international legal developments relevant to agriculture.

Air Quality: EPA Publishes Final Rule Regarding Reporting Exemptions for CERCLA and EPCRA

On August 1, 2018, the Environmental Protection Agency (EPA) released a final rule addressing emission reporting requirements for agricultural operations under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and the Emergency Planning and Community Right-to-Know Act (EPCRA). On May 2, 2018, the D.C. Circuit Court of Appeals issued a mandate enforcing an earlier order vacating EPA’s final rule, CERCLA/EPCRA Administrative Reporting Exemptions for Air Releases of Hazardous Substances from Animal Waste at Farms (73 FR 7648). This most recent final rule removes the emission reporting exemptions and definitions from CERCLA and EPCRA regulations to comply with the court mandate and the earlier order, dated April 11, 2017. On March 23, 2018, Congress passed the FARM Act in the Consolidated Appropriations Act, 2018. The FARM Act amends CERCLA to exempt farms from reporting air emissions from animal waste. This final rule revises CERCLA regulations to comply with the FARM Act amendments. According to EPA, because these air emissions are now exempt from CERCLA reporting, they also are exempt from EPCRA reporting requirements.

Food Labeling: FDA Announces Intent to Review Milk Labels on Plant-Based Products

On July 26, 2018, the U.S. Food & Drug Administration (FDA) released a statement from the Commissioner regarding identity standards for dairy products. The Commissioner stated that FDA will be reviewing food labels for plant-based foods that are being advertised as substitutes for standard dairy products. Plant-based products can be made from soy, almond, or rice and are being labeled by manufacturers as “milk.” FDA will examine the differences between plant-based products and dairy in relation to potential health consequences. Traditional dairy products and plant-based products contain nutritional differences relating to protein and vitamin content. FDA will review whether consumers understand the dietary differences and whether they are being misled when the term milk is applied to plant-based products.

Biotechnology: Bayer Cotton Variety Gains Deregulated Status under APHIS Biotechnology Regulations

On July 24, 2018, the U.S. Department of Agriculture (USDA) Animal Plant Health Inspection Service (APHIS) announced that Bayer’s genetically engineered CropScience cotton variety will no longer be regulated under the APHIS biotechnology regulations (7 CFR part 340). Bayer’s cotton variety is engineered to resist the herbicides glyphosate and p-hydroxyphenylpyruvate dioxygenase-inhibitors. In their draft environmental assessment, APHIS issued a preliminary finding of no significant impact and concluded that the cotton variety is unlikely to pose a plant pest risk to agricultural crops or other plants. Bayer’s cotton variety still will be subject to APHIS foreign quarantine notices (7 CFR part 319) and the Federal Seed Act (7 CFR 201, 361).

Biotechnology: European Union Rules that Mutagenesis Qualifies as a GMO

On July 25, 2018, the Court of Justice of the European Union ruled that organisms created by mutagenesis techniques fall within the meaning of the GMO directive. Mutagenesis involves techniques that are used to develop seed varieties resistant to specific herbicides. With this process, the genome of the plant species can be altered without inserting foreign DNA. The court found that this technique alters the genetic material of an organism in an unnatural way and therefore falls within the meaning of the GMO directive. The GMO directive requires that member states must subject genetically modified organisms (GMOs) to a risk assessment and also requires traceability, labeling, and monitoring.

Pesticides: Bayer Announces Intent to Appeal Neonicotinoid Ban

On July 27, 2018, Bayer’s North American Crop Science Division announced it would be appealing a ruling issued by the Court of the European Union that bans neonicotinoids, according to Brownfield. Neonicotinoids (Neonics) are systemic pesticides that are toxic to insects but less toxic to mammals and birds. In 2013, the EU severely restricted the use of three Neonics, including clothianidin, imidacloprid, and thiamethoxam, in order to protect honeybees. The 2013 restriction applied only to the use of Neonics in bee-attractive crops, such as maize, oilseed rape, and sunflower. On May 30, 2018, the EU completely banned the outdoor use of these Neonics.

Food Safety: Feedback Period Opens for EU Draft Regulation on Salmonella Testing

On July 19, 2018, the feedback period opened for a draft regulation issued by The European Commision regarding Salmonella testing. The purpose of the regulation is to detect and control Salmonella and other zoonotic agents during poultry production, processing, and distribution to reduce risk to the public. The draft regulation includes requirements on sampling and testing, but allows for a transitional period to give food operators time to adapt to the new standards. Comments on the draft regulation, Certain Methods for Salmonella Testing and Sampling in Poultry, will be accepted until August 16, 2018.

From National Ag Law Experts:

Tiffany Dowell Lashmet, Weekly Round Up, Texas A&M AgriLife Extension (July 27, 2018).

Sharon Anglin Treat, Five Red Flags for Food, Farming and Fair Trade Under the UK’s New Brexit Plan, Institute for Agriculture and Trade Policy (August 1, 2018).

Kristine A. Tidgren, Iowa Court Upholds Intentional Interference with a Bequest Judgment, The Ag Docket (July 27, 2018).

Pennsylvania Notices

Informational meeting on SB 799, environmental stewardship & watershed protection (August 16, 2018)

Public Notice of draft NPDES General Permit for Discharges from Petroleum Product Contaminated Groundwater Remediation Systems (July 28, 2018).

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

“Industry shocked by EU Court decision to put gene editing technique under GM law” - Euractiv

"At Pennsylvania hearing, dairy farmers testify about their struggling industry" - FERN Ag Insider

"4 Pa. farms receive Clean Water Farm Award" - Morning Ag Clips

"Americans more familiar with ‘GMO’ label" - Feedstuffs