Thursday, August 9, 2018

Agricultural Law Weekly Review - August 9, 2018

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.

Right to Farm Laws: Third Jury Verdict Issued Against Smithfield Farms Subsidiary
On August 3, 2018, a jury in the U.S. District Court for the Eastern District of North Carolina issued a verdict of  $473.5 million against Murphy-Brown, LLC. The lawsuit was brought by neighbors of a swine operation located in Pender County. According to the News&Observer, the plaintiffs filed this nuisance lawsuit because of the noise, odor, flies, and other disruptions relating to the nearby swine operation. The damages awarded to each of the six plaintiffs ranged from 3 to 5 million dollars in addition to 75 million dollars in punitive damages for each individual. Recent legislation amending North Carolina’s right to farm law imposed limitations upon damages that may be awarded in nuisance lawsuits against agricultural operations. As a result, the amount of damages in this jury verdict may be reduced. This is the third verdict this year issued against Murphy-Brown, a subsidiary of Smithfield Foods. To read more about these recent verdicts, please see our Agricultural Law Brief for May 2018 and the Agricultural Law Weekly Review - July 5, 2018.

Food Labeling: Center for Food Safety Files Suit Against USDA for Failure to Establish GMO Labeling Regulations
On August 1, 2018, the Center for Food Safety and the Center for Environmental Health filed a complaint in the U.S. District Court for the Northern District of California against the U.S. Department of Agriculture (USDA). The complaint alleges that USDA has failed to meet required deadlines under the 2016 Federal Bioengineered Food Disclosure Standards Act (the Act). According to the complaint, the Act established basic bioengineered food disclosure standards and required USDA to issue regulations to fully implement the Act. The mandatory deadline for the promulgation of these regulations was July 29, 2018. The plaintiffs state that the failure to implement the new regulations constitutes unlawful withholding of information, and they request that the court order USDA to finalize the regulations.  (Center for Food Safety v. Perdue, Case No. 18-4633)

Food Labeling: Lawsuit Filed Against Nestle for “No GMO” Label
On July 27, 2018, a proposed class action lawsuit was filed in the U.S. District Court for the Central District of California against Nestle USA, Inc. The complaint alleges that Nestle has misled consumers about its products that have a “No GMO Ingredients” label. According to the plaintiffs, Nestle did not receive independent third party approval for their products and instead created their own label. The plaintiffs claim that the label was created to mimic the label used by the Non-GMO Project. The Non-GMO Project is an independent third party verification company which tests and verifies products that do not contain genetically modified organisms (GMOs). The plaintiffs argue that Nestle’s label is deceptive and that many of Nestle’s products contain ingredients derived from GMOs. (Latiff v. Nestle, Case No. 2:18-cv-6503).

Pesticides: Fish and Wildlife Service Lifts Ban on GMOs and Pesticides within Wildlife Refuges
On August 2, 2018, the U.S. Department of the Interior’s Fish and Wildlife Service (FWS) issued a memorandum withdrawing a previously issued memorandum that restricted the use of genetically modified organisms (GMOs) and certain pesticides within wildlife refuges. The earlier memorandum Use of Agricultural Practices in Wildlife Management in the National Wildlife Refuge System, announced that FWS would be phasing out the use of GMO crops and neonicotinoid pesticides. The first memorandum expressed concern that neonicotinoid use could affect non-target species. The recent FWS memorandum reverses the ban and states that use of GMO seeds and neonicotinoid pesticides could be essential in certain wildlife areas and should only be used on a case-by-case basis. Neonicotinoids were first restricted by the European Commission in 2013 in order to protect honeybees.     

Conservation Programs: Chesapeake Bay Watershed Three Year Action Plan is Released
On August 6, 2018, the U.S. Department of Agriculture Natural Resources Conservation Service (NRCS) released the Chesapeake Bay Watershed Action Plan as part of a three-year plan to improve water quality within the Chesapeake Bay. The plan prioritizes professional training, public engagement, technology and data guides, and farm planning. Conservation practices will be applied to improve water quality on 920,000 acres. In addition, NRCS aims to improve soil health for 700,000 acres and improve wildlife habitat on 120,000 acres.

Biotechnology: European Commission Approves Five GMOs for Food and Feed Use
On August 3, 2018, the European Commission announced that they have authorized five genetically modified organisms (GMOs) for food and feed use. The authorization applies to two new GMO maize varieties, two previously authorized maize varieties, and a previously authorized sugar beet variety. The authorization does not permit these GMOs to be used for cultivation. To receive authorization by the Commission, each GMO must receive a favorable scientific assessment by the European Food Safety Authority. Authorizations by the European Commission for GMOs are valid for ten years.

Pesticides: Brazilian Judge Issues Temporary Ban of Glyphosate
A Brazilian judge has issued a ruling banning the use of products containing the herbicide glyphosate, the insecticide abamectin, and the fungicide thiram, according to an August 6, 2018, article from Reuters. The decision prohibits any new products containing these chemicals from being registered within the country. In addition, current registrations have been suspended for the next 30 days while the government completes an evaluation. Monsanto has announced that they will file an appeal to this ruling. Monsanto markets glyphosate-resistant soybeans, a Roundup Ready product, within Brazil.  

From National Ag Law Experts:
Tiffany Dowell Lashmet, How Can Landowners Protect Themselves from Liability, Texas A&M AgriLife Extension (July 30, 2018).

Josh Wise, Uprooted Episode 40: Giving to farmers with one hand, taking a whole lot more with the other, Institute for Agriculture & Trade Policy (August 7, 2018)

Kristine A. Tidgren, Guidance is Trickling in, but Nothing Big Yet, The Ag Docket (July 31, 2018).
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