Penn State Agricultural Law Blog: Agricultural Law Weekly Review

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:

Animal Welfare: SCOTUS Denies Challenge to Massachusetts Animal Law

On January 7, 2019, the U.S. Supreme Court denied a petition brought by 13 state attorneys general challenging Massachusetts’s Prevention of Farm Animal Cruelty Act (PFACA) (Docket No. 22O149). PFACA prohibits the confinement of certain poultry, caves, and hogs “in a cruel manner” within Massachusetts. The law also prohibits the selling within Massachusetts of shell eggs, whole veal meat, or whole pork meat that has been produced from animals “confined in a cruel manner.” The attorneys general had alleged that by attempting to regulate farming in other states, PFACA violates the Commerce Clause. PFACA is scheduled to go into effect on January 1, 2022.

Animal Welfare: SCOTUS Denies Challenge to California Egg Law

On January 7, 2019, the U.S. Supreme Court denied a petition brought by 13 state attorneys general seeking to block California’s egg law (Docket No. 22O148). Enacted by voters in 2008, and later modified, the California law requires that eggs sold in the state may only come from laying-hens that are permitted the ability to lie down, stand up, fully extending their limbs, and turn around freely. The attorneys general had alleged that the California law violated the commerce clause and had cost consumers up to $350 million annually since taking effect in 2015.

Animal Welfare: Michigan Gov. Vetoes Restrictions on Sales of Shell Eggs

On December 21, 2018, Michigan Governor Rick Snyder vetoed legislation that would have attached animal confinement restrictions to the sale of shell eggs (SB 660). Under the proposed law, a business would have been prohibited from knowingly selling shell eggs produced from hens not housed in compliance with Michigan’s Animal Industry Act (AIA). Accordingly, AIA prohibits the confinement of veal calves, gestating sows, and egg-laying hens “in a way that prevents them from lying down, standing up, fully extending their limbs, or turning around freely.”

Transportation: DOT Exempts Livestock Haulers from ELD Requirement

On December 21, 2018, the National Pork Producers Council (NPPC) reported that the U.S. Department of Transportation has exempted livestock haulers from regulations requiring the use of electronic logging devices (ELDs) in their trucks. According to NPPC, such ELDs, “record driving time, engine hours, vehicle movement and speed, miles driven and location information.” Because of the exemption, livestock haulers may continue use paper logs to record required information. According to the Federal Motor Carrier Safety Administration, the exemption will remain in effect “until further notice.”

Packers and Stockyards Act: Court Finds Withdraw of Farmer Fair Practices Rules Proper

On December 21, 2018, the U.S. 8^th Circuit Court of Appeals denied a challenge to the U.S. Department of Agriculture’s (USDA) withdrawing of the Farmer Fair Practices Rules (Organization for Competitive Markets v. USDA, No. 17-3723). In 2016, USDA published a interim rule under the Packers and Stockyards Act (PSA) known as the Farmer Fair Practices Rules (FFPR). Under the FFPR, USDA was to no longer require a showing that an unfair practice had harmed the entire market in order to prove a violation of PSA. Subsequently, in 2017, USDA withdrew the interim rule. According to the court, USDA acted properly in its action to withdraw the interim rule.

Food Labeling: BPI Permitted to Refer to Lean Finely Textured Beef as “Ground Beef”

On December 28, 2018, Feedstuffs reported that the U.S. Department of Agriculture’s Food Safety & Inspection Service (FSIS) has granted Beef Products Inc. (BPI) permission to refer to its lean finely textured beef product as “ground beef.” According to an FSIS spokesperson, the agency “has determined that Beef Products Inc. product meets the regulatory definition of ground beef under the law in 9 CFR 319.15(a) and may be labeled accordingly.” Relatedly, in 2012, ABC News published a series of reports that referred to BPI’s lean finely textured beef product as “pink slime.” Subsequently, in 2012, BPI closed three production facilities and filed a defamation lawsuit against ABC News. In June of 2017, the parties settled for an undisclosed amount.

Food Labeling: Court Rejects Claim that “Almond Milk” is Mislabeled

On December 20, 2018, the U.S. 9^th Circuit Court of Appeals affirmed a lower court’s dismissal of a claim that an almond beverage had been mislabeled as “almond milk” (Painter v. Blue Diamond Growers 2:17-cv-02235). The plaintiff alleged that the almond beverage should have been labeled as “imitation milk” because the product is nutritionally inferior to dairy milk. According to the 9^th circuit, no jury would conclude that the product is inferior under the Food and Drug Administration’s definition of nutritional inferiority (21 C.F.R. § 101.3(e)(4)). Additionally, the 9^th circuit affirmed the lower court’s determination that no “reasonable consumer would ‘assume that two distinct products would have the same nutritional content.’”

From National Ag Law Experts:

“Shutdown Significantly Impacting IRS and USDA”, Kristine A. Tidgren, The Ag Docket – Iowa State University Center for Agricultural Law and Taxation (January 4, 2019)

“Government shutdowns - Who dreamed up this crazy idea?”, Kenneth D. Ackerman, Ag/FDA Blog – Olsson Frank Weeda Terman Matz PC (January 4, 2019)

Pennsylvania Case Law:

Corsnitz v. Department of Environmental Protection, No. 450 CD18_1-4-19, (Commonwealth Court quashed appeal as untimely because it was filed 33 days after the Environmental Hearing Board issued an order upholding a determination that a farm’s wetlands had been disturbed without a permit) (Filed January 4, 2018)

Pennsylvania Actions and Notices:

State Conservation Commission

Access to odor management plans for concentrated animal operations and concentrated animal feeding operations and volunteers complying with the Commonwealth's Facility Odor Management Program

Pennsylvania Department of Agriculture:

“Agriculture Department to Showcase Pennsylvania Technology Innovation Start-ups During 2019 Farm Show”

“PA Department of Agriculture Announces Winners of the Spotted Lanternfly Calendar Contest”

Penn State Research:

“A 'bran' new way to preserve healthy food with natural ingredients” – Penn State News

AgLaw HotLinks:

“China allows first-ever U.S. rice imports ahead of trade talks” – Reuters

“Farm workers in California now eligible for overtime after 9.5 hours” – KSBY

“So the FDA and USDA will share oversight for cell-based meat… but what will this mean in practice?” – Food Navigator USA