Thursday, April 4, 2019

Agricultural Law Weekly Review—April 4, 2019

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:

Pesticides: Jury Awards $80m in Phase 2 of Glyphosate Lawsuit
On March 27, 2019, a jury in a U.S. District Court for the Northern District of California awarded plaintiff Edwin Hardeman over $80 million in damages due to his use of Monsanto’s glyphosate-based herbicide Roundup (Hardeman v Monsanto Company, 3:16-cv-00525).  Previously, in phase one of the trial, the jury ruled that Mr. Hardeman's non-Hodgkin's lymphoma was caused by Roundup.  In phase two of the trial, the jury found that Monsanto had negligently failed to warm Mr. Hardeman of the risks associated with Roundup.  Accordingly, the jury awarded Mr. Hardeman $5,267,634.10 in compensatory damages and $75,000,000 in punitive damages.  

Pesticides: Arkansas Plant Board Approves Proposed Emergency Dicamba Rule
On March 22, 2019, The Arkansas Agriculture Department’s State Plant Board (Board) announced that it had approved a proposed emergency rule clarifying that only three dicamba products are permitted for burndown applications from April 16 through May 25.  The three dicamba products allowed under the proposed emergency rule are Engenia, Fexapan, and Xtendimax.  The Board stated that the three products are subject to buffer zone rules established under the state’s dicamba rule which became effective on March 11, 2019.  According to the Board, the purpose of the clarification is to prevent the aerial application of dicamba products without the use of buffer zones.  The proposed emergency rule now goes to Arkansas Governor Asa Hutchinson for review.

FSMA: FDA Announces Intent to Exercise Enforcement Discretion for Certain Produce Commodities
On March 28, 2019, the U.S. Food and Drug Administration (FDA) published notice in the Federal Register that it intends to exercise enforcement discretion for Produce Safety Rule requirements as they apply to entities growing, harvesting, packing, and holding wine grapes, hops, pulse crops, and almonds (84 FR 11644).  As a result, FDA will not expect entities growing, harvesting, packing, or holding wine grapes, hops, pulse crops, and almonds to meet any of the Produce Safety Regulation requirements with respect to these commodities.  FDA stated that it is exercising its enforcement discretion to allow the agency the opportunity to consider potential regulations that “address the unique circumstances” these commodities present.

Right to Farm Laws: West Virginia Right to Farm Amendment Approved by Governor
On March 27, 2019, West Virginia Governor Jim Justice approved legislation amending the state’s right to farm law (S.B. 393).  Under West Virginia’s right to farm law, farmers are to be protected from “nuisance lawsuits” from neighboring landowners.  The new amendment provides an update to how the right to farm law defines agriculture and agricultural land.

Industrial Hemp / Cannabis: FDA Announces Steps for Consideration of Lawful Marketing of Cannabis-Containing and Cannabis-Derived Products
On April 2, 2019, the U.S. Food and Drug Administration (FDA) announced a series of steps to advance consideration of regulations for the marketing of cannabis and cannabis-derived products.  FDA stated that while the 2018 Farm Bill removed hemp from the Controlled Substances Act—meaning that hemp is no longer a controlled substance under federal law—the legislation “explicitly preserved the FDA’s current authority to regulate products containing cannabis or cannabis-derived compounds.” As a result, FDA announced the following steps designed to move forward a legal framework for the lawful marketing of cannabis and cannabis-derived products:

  • A public hearing on May 31, 2019 to solicit stakeholder input
  • Formation of an FDA high-level internal working group designed to explore the potential marketing of dietary supplements and/or conventional foods containing cannabidiol (CBD)
  • Updates to FDA’s webpage with answers to frequently asked questions on the topic
  • Warning letters issued to companies that market CBD products with egregious and unfounded claims

Dairy Policy: Lawmakers Urge USDA to Implement Farm Bill Dairy Program
On March 29, 2019, the U.S. House Committee on Agriculture announced that a letter had been sent to Agriculture Secretary Sonny Perdue requesting that the U.S. Department of Agriculture prioritize the implementation of the dairy provisions included in the 2018 Farm Bill.  In the letter, House Agriculture Committee Chairman Collin C. Peterson (D-Minn.) and Subcommittee on General Farm Commodities and Risk Management Ranking Member Glenn ‘GT’ Thompson (R-Pa.)—along with 78 Democratic and Republican House colleagues—stated the necessity of quick action to help struggling dairy farmers.  Specifically, the lawmakers pointed to the need to implement the new Dairy Margin Coverage program which was supposed to have begun on January 1, 2019.

From National Ag Law Experts:
“EPA Flyovers, Open Fields and the Right to Privacy”, Todd Janzen, Janzen Ag Law Blog – Janzen Ag Law (March 28, 2019)
“Federal Regulatory Framework for Cell-Cultured Meat and State Legislative Action”, Sarah Everhart, Maryland Risk Management Education Blog (March 26, 2019)
“Common Agricultural Lease Payment Structures”,  Tiffany Dowell Lashmet, Texas Agriculture Law Blog – Texas A&M AgriLife Extension (March 25, 2019)       

Federal Actions and Notices:
Agricultural Marketing Service

Food and Drug Administration

Pennsylvania Department of Agriculture:

Pennsylvania Legislation:
HB 370: Legislation further providing for purchase of agricultural conservation easements (Referred to Senate Agriculture and Rural Affairs Committee, March 28, 2019)
HB 404: Legislation designating “Tree of Heaven” a noxious weed (Referred to Senate Agriculture and Rural Affairs Committee, March 28, 2019)
HB 441: Legislation to allow wind energy on farmland preservation (Referred to Senate Agriculture and Rural Affairs Committee, March 28, 2019)
HB 996: Legislation to ban traveling animal acts in Pennsylvania (Referred to House Agriculture and Rural Affairs Committee, April 2, 2019)
HB 1037: Legislation regarding the use of historic barns for weddings and other special events (Referred to House Agriculture and Rural Affairs Committee, April 2, 2019)

Pennsylvania Actions and Notices:
Department of Environmental Protection

Environmental Quality Control

Penn State Research:

AgLaw HotLinks:

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