Penn State Agricultural Law Blog: Agricultural Law Weekly Review

Written by: M. Sean High (Staff Attorney) and Deanna Smith (Research Assistant)

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

Agricultural Labor: DOL Proposes Online Advertising Requirement for Temporary Labor Certification Jobs

On November 8, 2018, the U.S. Department of Labor (DOL) announced a proposal requiring that employers seeking temporary labor certification must fulfill advertising requirements through online methods. Currently, employers seeking temporary labor certification through either the H-2A visa program or the H-2B visa program must publish two print newspaper advertisements “in the area of intended employment.” Under the new proposal, however, such newspaper advertisements will no longer be required. Instead, advertisements regarding job opportunities for both programs will be required to be posted online for a minimum of 14 days. According to DOL, the intention of the change is to modernize the recruitment process “and make job opportunities more readily available to Americans.” For information regarding changes to the H-2A program see 83 FR 55985. For information regarding changes to the H-2B program see 83 FR 55977.

Animal Welfare: California Votes to Require More Space for Confined Farm Animals

On November 6, 2018, California voters passed Proposition 12 which establishes minimum space requirements farmers must provide for confined egg-laying hens, breeding pigs, and calves raised for veal. Additionally, under Proposition 12, no California business is permitted sell eggs, pork, or veal that comes from animals confined in ways not meeting the new requirements. Previously, in 2008, California passed Proposition 2 which mandated that confined egg-laying hens, breeding pigs, and calves raised for veal must be able to “turn around freely, lie down, stand up, and fully extend their limbs.” Proposition 12, however, now places confinement restrictions based on a minimum number of square feet and on sales.

Checkoff Programs: R-CALF USA Lawsuit Expanded to 13 More States

On November 5, 2018, a Montana Federal District Court Judge granted the Ranchers-Cattlemen Action Legal Fund United Stockgrowers of America’s (R-CALF USA) motion to extend its beef checkoff program lawsuit beyond Montana to 13 other states. Earlier this year, on April 9th, 2018, the United States Court of Appeals for the 9th Circuit upheld a preliminary injunction against the United States Department of Agriculture (USDA), preventing the continuation of the national checkoff program in Montana. (R-CALF USA v. Sonny Perdue, No. 17-35669). In the lawsuit, R-CALF USA is claiming that the national check-off program is “violating the U.S. Constitution by compelling Montana cattle producers to pay for the private speech of the private Montana Beef Council without first obtaining consent” from its producers. This new development does not extend the existing preliminary injunction in Montana to the other states, which are Hawaii, Indiana, Kansas, Montana, Nebraska, Nevada, New York, North Carolina, Pennsylvania, South Carolina, South Dakota, Texas, Vermont, and Wisconsin. However, it allows R-CALF USA to continue with its original lawsuit that seeks a permanent injunction of the national checkoff program and allows individual cattle producers to decide whether half the mandatory assessments collected from them should be spent by the private state’s Beef Council, or all of it sent to Cattlemen’s Beef Board. For more information on the April 9^th, 2018 ruling, see our Ag Law Weekly Review for April 19, 2018.

Air Quality: FDA Approves Drug that Reduces Gas Emissions from Animal Waste

On November 6, 2018, the United States Food and Drug Administration (FDA) published a press release announcing the approval of Experior, an animal drug that reduces the amount ammonia gas released in beef cattle waste. The first of its kind approved, Experior, when fed to beef cattle under “semi-controlled conditions in enclosed housing” reduces ammonia gas emissions in manure. Ammonia gas emissions in the air have been connected to noxious odors and atmospheric haze, which can lead to irritation of the eyes, nose, and throat in both humans and animals. FDA stated that through multiple studies conducted on more than 4,000 cattle, the agency determined that “Experior is safe to feed to beef cattle and that meat from cattle treated with Experior is safe for people to eat.”

Soda Tax: Washington Voters Pass Ban on Local Soda Taxes

On November 6, 2018, voters in Washington state passed Initiative 1634 which prohibits local governments from enacting taxes on groceries. Under Initiative 1634, groceries are defined as "any raw or processed food or beverage, or any ingredient thereof, intended for human consumption." While Initiative 1634 does not extend the prohibition on local taxation to alcoholic beverages it does encompass sugary beverages such as soda.

Intellectual Property: EU Court Finds “Taste” Not Entitled to Copyright Protection

On November 13, 2018, the Court of Justice of the European Union announced that “the taste of a food product is not eligible for copyright protection.” In 2007, a Dutch company created a cream cheese and fresh herbs dip called Heksenkaas. In 2014, a competitor created a similar tasting product called Witte Wievenkaas. Subsequently, the owner of Heksenkaas asserted that the taste of its food product should be entitled to copyright protection. According to the Court of Justice, for a food product to receive copyright protection under the European Union’s Copyright Directive it must be capable of being classified as a “work.” To be a “work” the food product must be “identifiable with sufficient precision and objectivity.” According to the Court of Justice, “the taste of a food product cannot be identified with precision and objectivity.”

From National Ag Law Experts:

“Ohio Agricultural Law Blog--Meat Law Continues to Sizzle in the News”, Evin Bachelor, Ohio State University Extension (November 9, 2018)

“Mid-Term and More”, John R. Block, Olsson Frank Weeda Terman Matz PC (November 8, 2018)

“Cell Cultured Meat – Now What?”, Sarah Everhart, Maryland Risk Management Education Blog (November 13, 2018)

Pennsylvania Actions and Notices:

The Governor

Proclamation; House Bill No. 2157, Printer's No. 3278

Vetoes

Notice of Veto; House Bill 2157, Printer's No. 3278

Pennsylvania Department of Agriculture:

“Thirty-Eight Deer Test Positive for Chronic Wasting Disease on Fulton and Bedford County Deer Farms”

“Agriculture Officials Urge Vigilant Poultry Biosecurity During Fall Migration”