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.

Biosecurity: USDA Issues Final Rule on HPAI Indemnity

On August 15, 2018, the U.S. Department of Agriculture (USDA) Animal and Plant Health Inspection Service (APHIS) published a final rule on the conditions for indemnity payments under highly pathogenic avian influenza (HPAI) claims. The final rule provides a formula allowing split payments between egg and poultry owners based on the proportion of the production cycle completed. The rule also requires large egg and poultry operations to have a biosecurity plan in order to receive the indemnity payment.

Dairy Policy: USDA Announces Plan to Purchase Milk for Food Assistance Program

On August 14, 2018, the U.S. Department of Agriculture (USDA) announced its plan to purchase fluid milk for distribution to The Emergency Food Assistance Program. USDA will be purchasing whole, 2 percent, 1 percent, and skim milk in half gallons. The purpose of the program is to encourage the continued domestic consumption of milk. Potential contractors for this program must meet USDA Agricultural Marketing Service standards

Raw Milk: Massachusetts Governor Vetoes Raw Milk Provision in Environmental Bill

On August 13, 2018, Massachusetts Governor Charlie Baker vetoed a raw milk provision in an environmental bond bill (Bill H.4835). The provision would have allowed dairy farmers to sell unpasteurized, or “raw” milk at farm stands. In addition, the provision would have permitted distribution of raw milk through community supported agriculture systems. Governor Baker expressed concern over potential foodborne illness caused by the consumption of raw milk. The governor recommended rules and regulations that could include sanitary and operational standards for production, handling, labelling, and sale of raw milk.

Water Quality: Federal District Court Overturns Delay of WOTUS

On August 16, 2018, the U.S. District Court for the District of South Carolina, Charleston Division issued a ruling overturning the delay of the Waters of the United States (WOTUS) rule (South Carolina Coastal Conservation League, et al. v. U.S. Environmental Protection Agency, et al., 2018 WL 2933811). In light of several U.S. Supreme Court decisions, the Environmental Protection Agency (EPA) issued a final rule redefining WOTUS in 2015. The 2015 final rule prompted a series of lawsuits which led to a 2017 Presidential Executive Order directing EPA to review and then rescind or revise WOTUS. On February 8, 2018, EPA published a new final rule delaying enforcement of the 2015 final rule. The current court order suspends this rule, stating that by not allowing meaningful opportunity for public comment, EPA’s 2015 final rule was arbitrary and capricious.

Food Labeling: USDA Announces Extension of Comment Period for Meat Products Labeling Petition

On August 17, 2018, the U.S. Department of Agriculture (USDA) Food Safety and Inspection Service (FSIS) announced it has extended the comment period for a petition to clarify meat products labeling. The petition requests that FSIS clarify the “Product of the U.S.A.” label used for meat products. In its petition, the Organization for Competitive Markets (OCM), states that current policy allows imported foreign meat to use the “Product of the U.S.A.” label if it passes through a USDA inspection plant. OCM argues that this process allows an unfair market advantage that is deceptive to consumers and harms U.S. producers. FSIS has extended the comment period to September 17, 2018.

Food Policy: California Senate Approves Bill to Limit Sale of Sugary Beverages to Children

On August 21, 2018, the California Senate passed SB 1192, a bill that would limit the sale of sugar sweetened beverages to children. If signed by the governor, the bill would restrict what restaurants could include as the default beverage in a children’s meal. Restaurants would be able to sell children’s meals with only water, sparkling water, unflavored milk, or a nondairy milk alternative. Customers still would be able to request and purchase any sugar sweetened beverage with their meal. According to the bill text, the obesity rate in California has increased by 250 percent and obese children are twice as likely to become obese adults. The legislature also stated that the adverse health consequences of obesity has an economic cost of approximately $147 billion annually in medical spending in the United States. Violations of the law would be punishable by a fine of not less than $25 or more than $1,000, or imprisonment not exceeding 6 months.

Agricultural Labor: District Court Rules in Favor of Livestock Herders

On August 17, 2018, the U.S. Court of Appeals for the District of Columbia Circuit held that the Hispanic Affairs Project (Project) had filed a timely claim in its case regarding H-2A visas (Hispanic Affairs Project v. Secretary of Labor, et al., No 17-5202). The Project an organization that advocates for livestock herders. The Project alleges that the 364-day certification period for H-2A visas is unrealistic. H-2A visas allow nonimmigrants to enter the United States to perform seasonal or temporary work. According to Project, these visas are routinely extended for livestock herders, when that work does not qualify as temporary. The court agreed that the Project had “plausibly shown that the agency’s de facto policy of authorizing long-term visas is arbitrary capricious, and contrary to law, in violation of the APA and the Immigration and Nationality Act.”

From National Ag Law Experts:

Tiffany Dowell Lashmet, What Documentation Should I have for Hunters on My Property?, Texas A&M AgriLife Extension (August 20, 2018).

Josh Wise, podcast: Gaming the Grass Fed Beef Market, Institute for Agriculture & Trade Policy (August 20, 2018)

Pennsylvania Regulations

Department of Health: Temporary Regulations for Medical Marijuana; Clinical Registrants and Academic Clinical Research Centers (August 18, 2018).

Pennsylvania Notices

State Conservation Commission: Action on Odor Management Plans for Concentrated Animal Operations (August 18, 2018)

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"Nestlé USA lawsuit highlights confusion over Non-GMO claims, say attorneys" - Food Navigator

"Glyphosate is here to stay in EU — at least for now" - Politico

"Farm groups call for swift farm bill passage" - Morning Ag Clips

"Labelling change would put animal welfare at the heart of purchase, campaigners urge" - Food Navigator