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:
“Wolf
OKs new funding to support Pa. farmers” – Morning AgClips
“3-year
old break for medium-sized CAFOs gets challenged in D.C. court” – Food Safety News
“Burger
King trials the Impossible burger: A 'major milestone for the plant-based meat
industry,' says GFI” – Food
Navigator
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