Thursday, May 16, 2019

Agricultural Law Weekly Review—May 16, 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: California Jury Awards Couple Over $2 Billion Due to Roundup Use
On May 13, 2019, a California jury awarded a husband and wife over $2 billion in damages against Monsanto due to alleged harm caused by the company’s glyphosate-based weed killer Roundup (Pilliod, et al. v. Monsanto Company, et al. Case No RG17862702).  The plaintiffs, Alva and Alberta Pilliod, alleged that exposure to Roundup caused them both to develop non-Hodgkin lymphoma.  Accordingly, a jury in the California Superior Court for the County of Alameda determined that Mr. Pilliod was entitled to over $37 million for economic and noneconomic loss and $1 billion in punitive damages.  The same jury also determined that Mrs. Pilliod was entitled to over $18 million for economic and noneconomic loss and $1 billion in punitive damages.  Monsanto’s parent company Bayer stated that it will appeal the jury’s decision.  According to Bayer, the award directly conflicts with the U.S. Environmental Protection Agency’s recent decision that glyphosate-based products are not carcinogenic and can be used without harm to humans. (For more information see Penn State Agricultural Law Weekly Review May 2 2019).

Animal Welfare: Washington State Governor Signs Cage Free Egg Law
On May 7, 2019, Washington Governor Jay Inslee signed legislation mandating that by the end of 2023, eggs produced and/or sold in the state must come from cage-free hens (HB 2049).  According to the legislation, by January 1, 2024, egg-laying hens may only be housed in “cage-free housing systems.”  Such systems must permit an egg-laying hen the ability to roam unrestricted (except for external walls) and be provided “enrichments” such as scratching areas, perches, nesting boxes, and dust bathing areas.  Additionally, eggs will not be permitted to be bought, sold, or transported in Washington unless the eggs are produced in compliance with the state’s cage-free standards.

Dairy Policy: Court Approves $40 Million Settlement Between Dairy Farmers and DairyAmerica

On May 8, 2019, the U.S. District Court for the Eastern District of California approved a $40 million class action settlement between approximately 84,000 dairy farmers and the milk marketing cooperatives DairyAmerica and California Dairies (Carlin v. DairyAmerica, Case 1:09-cv-00430-AWI-EPG).  Plaintiffs in this class include dairy farmers from throughout the United States who received payments for their raw milk based upon Federal Milk Marking Order (FMMO) calculations.  The U.S. Department of Agriculture establishes FMMO prices by gathering data from milk sellers such as DairyAmerica.  The dairy farmers alleged that between 2002 and 2007, DairyAmerica and California Dairies modified data reported to USDA for nonfat dry milk sales in order to depress raw milk prices for the benefit of themselves and their members’ profits.  Under the settlement agreement, approximately 84,000 dairy farmers will receive a share of a $40 million settlement fund in proportion to the amount of milk they sold during the time period beginning in 2002 and ending in 2007.  This settlement was reached following nine years of litigation.  In approving this settlement, the court noted that certain elements of the farmers’ claims have strong support in the evidence, while also noting that the plaintiffs face substantial risks should the litigation continue.  As such, the court characterized the settlement as a “boon” to all claimant dairy farmers.  

Agricultural Labor: Comment Period Extended for Interpretation of Joint Employer Status Under the Fair Labor Standards Act
On May 14, 2017, the U.S. Department of Labor (DOL) published notice in the Federal Register that the department is extending the comment period for its proposed rulemaking entitled: “Joint Employer Status Under the Fair Labor Standards Act” (84 FR 21301).  Following DOL’s latest action, the comment period is extended from June 10, 2019 to June 25, 2019.  Previously, on April 9, 2019, DOL announced its intention to update and clarify the department’s interpretation of joint employer status under the Fair Labor Standards Act ( 84 FR 14043).  According to DOL, this update is necessary because there has not been a significant revision to the department’s interpretation since it was originally promulgated in 1958.

Food Safety: Canada Announces New Penalties for Companies that Break Food Safety Rules
On May 1, 2019, the Canadian Food Inspection Agency (CFIA) announced that the use of Administrative Monetary Penalties (AMPs) by the agency has been expanded to include food businesses guilty of food safety violations.  AMPs for such violations can be issued for up to $15,000.  According to CFIA, by expanding the use of AMPs across all food sectors, the agency can more consistently enforce safety requirements for all food in Canada.

From National Ag Law Experts:
“Stealing Money, Honey: Case Provides Insight on How to Protect Roadside Stands from Theft”, Ellen Essman, Ag Law Blog – Agricultural Law & Taxation – Ohio State University Extension (April 25, 2019)   
“Recent 737 Max Crashes are a Preview of Driverless Liability Issues to Come”, Todd Janzen, Janzen Ag Law Blog – Janzen Ag Law (April 17, 2019)  
Federal Actions and Notices:
Agricultural Marketing Service

International Trade Administration

Pennsylvania Legislation:
SB 622: Legislation expanding the Resource Enhancement and Protection program (REAP) (Referred to Senate Agriculture and Rural Affairs Committee, May 13, 2019)
SB 623: Legislation establishing the Pennsylvania Preferred Organic Program (Referred to Senate Agriculture and Rural Affairs Committee, May 13, 2019)
SB 627: Legislation establishing the Urban Agriculture Infrastructure Grant Program (Referred to Senate Agriculture and Rural Affairs Committee, May 13, 2019)
SB 634: Legislation establishing the Conservation Excellence Grant Program (Referred to Senate Agriculture and Rural Affairs Committee, May 13, 2019)
SB 145: Legislation amending the Agricultural Area Security Law to provide for restrictions and limitations on preserved farmland (Referred to House Agriculture and Rural Affairs Committee, May 13, 2019)
SB 583: Legislation providing that agritourism activities are to be treated as part of agriculture authorized on farms preserved under the state’s farmland preservation program (Referred to House Agriculture and Rural Affairs Committee, May 8, 2019)
SB 585: Legislation establishing the Pennsylvania Dairy Future Commission (Referred to House Agriculture and Rural Affairs Committee, May 8, 2019)
SB 588: Legislation amending the Vehicle Code to allow milk haulers to travel on highways during a declaration of disaster emergency (Referred to House Agriculture and Rural Affairs Committee, May 8, 2019)

Pennsylvania Department of Agriculture:

Penn State Research:

AgLaw HotLinks:

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