Penn State Agricultural Law Blog: Agricultural Law Weekly Review

Written by:

M. Sean High—Staff Attorney

Audry Thompson—Research Assistant

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

Food Labeling: Plant-Based Food Company Brings Suit Challenging Arkansas Meat Labeling Law

On July 22, 2019, Tofurky Co., a producer of plant-based food products, brought suit in the Eastern District of Arkansas alleging that the Arkansas law prohibiting the labeling of plant or cell-based products as “meat” violates the Free Speech Clause of the First Amendment to the U.S. Constitution. (Tofurky v. Soman, No. 4:19-cv-514-KGB). Under Arkansas Act 501, the term ‘meat’ is defined as "a portion of a livestock, poultry, or cervid carcass that is edible by humans.” The law further states that the term “‘meat’ does not include a: (i) Synthetic product derived from a plant, insect, or other source; or (ii) Product grown in a laboratory from animal cells.” Accordingly, food producers are prohibited from using the term “meat” on products that do not conform to the law’s definition of meat. In similar fashion, Act 501 also prevents plant-based or cell-based producers from using “meat” related terms such as “bacon,” “beef,” “poultry,” “pork,” “ham,” or “sausage.” In its complaint, Tofurky Co. asserted that Act 501 violates the Free Speech Clause of the First Amendment by placing “a restriction on commercial speech that prevents companies from sharing truthful and non-misleading information about their products.”

Agricultural Finance: U.S. House of Representatives Passes Legislation to Permit More Chapter 12 Bankruptcies

On July 25, 2019, the U.S. House of Representatives passed legislation to increase the Chapter 12 Bankruptcy operation debt cap limit from $3,237,000 to $10,000,000 (H.R. 2336 (116)). Under Chapter 12, qualifying “family farmers” experiencing financial difficulties are provided with the ability to establish plans to repay parts or all of their debts. Through increasing the debt cap limit, the proposed legislation, known as the Family Farmer Relief Act of 2019, would allow more farmers to qualify for Chapter 12 Bankruptcy.

Agricultural Labor: Department of Labor Proposes Changes to H-2A Program

On July 26, 2019, U.S. Department of Labor (DOL) published in the Federal Register a notice of a proposed rule to change the H-2A temporary agricultural labor certification program (84 FR 36168). According to DOL, the proposed changes include the “streamlining” of the H-2A application process and a reduction in the regulatory burdens associated with participation in the program. Interested individuals have until September 24, 2019, to submit comments on the proposed rule. For more information regarding the proposed changes to the H-2A program, see the Penn State Agricultural Law Weekly Review dated July 18, 2019.

Biotechnology: APHIS Notes Closing of the Comment Period for GE Movement Regulations

On July 25, 2019, U.S. Department of Agriculture’s Animal and Plant Health Inspection Service (APHIS) issued an announcement reminding interested parties that the comment period for a “proposed rule titled ‘Movement of Certain Genetically Engineered Organisms’ will be closing August 6, 2019.” Previously published in the Federal Register on June 6, 2019, the proposed rule revises regulations regarding the importation, interstate movement, and environmental release of certain genetically engineered organisms (84 FR 26514). APHIS stated that the proposed revisions are in response to scientific advancements in genetic engineering and knowledge regarding plant pest risk. Accordingly, the new revisions are designed to reduce regulatory burdens regarding organisms that are unlikely to pose plant pest risks. According to APHIS, the proposed rule is "the first comprehensive revision of the regulations since they were established in 1987."

Biotechnology: Pioneer Seeks Deregulation of GE Corn Variety

On July 25, 2019, the U.S. Department of Agriculture’s Animal and Plant Health Inspection Service (APHIS) published a notice in the Federal Register regarding a petition from Pioneer Hi-Bred International, Inc. (Pioneer), to deregulate a genetically engineered (GE) corn variety (84 FR 35850). According to APHIS, the GE corn variety, designated as DP202216, “has been genetically engineered for enhanced yield potential and resistance to glufosinate-ammonium herbicide.” Interested individuals have until September 23, 2019, to submit comments regarding the potential deregulation of DP202216.

National Agricultural Policy: USDA Announces Details of Support Package for Farmers

On July 29, 2019, U.S. Department of Agriculture’s Farm Service Agency (FSA) and Commodity Credit Corporation (CCC) published notice in the Federal Register of fund availability for payments to producers under the Market Facilitation Program (MFP) (84 FR 36565). MFP will provide payments for non-specialty crops planted by August 1, 2019. The payments range from $15 to $150 per acre and are determined by a unified county rate based on the impact of foreign trade retaliation in that county. Dairy producers in business as of June 1, 2019 will receive $0.20 per hundredweight of milk, and hog producers will receive $11 per head of live hogs. Producers can sign up for MFP from July 29, 2019, through December 6, 2019, at their local FSA office.

International Trade: USDA Awards Agricultural Trade Promotion Funding

On July 19, 2019, U.S. Department of Agriculture (USDA) Secretary Sonny Perdue announced the allocation of $100 million from USDA to 48 organizations through the Agricultural Trade Promotion Program (ATP). ATP is a cost-share program available to all sectors of U.S. agriculture with demonstrable damages due to tariffs imposed on U.S. agricultural products in 2018-2019. The program reimburses U.S. agricultural-related entities for approved foreign market promotion activities such as consumer advertising, public relations, participation in trade fairs and exhibits, market research, and technical assistance. The 48 recipients are among the organizations that applied in 2018 for the $200 million of ATP funds awarded earlier this year.

Urban Agriculture: Pennsylvania Governor Announces Grants Available for Urban Agriculture from PA Farm Bill

On July 26, 2019, Pennsylvania Governor Tom Wolf announced the launch of the Urban Agriculture Infrastructure Grant Program, an initiative to provide $500,000 in grant funding to increase market opportunities for the commonwealth’s urban agriculturalists. The program was created under Act 40 (SB 661) which was signed into law on July 1, 2019, as part of a package of bills designed to aid Pennsylvania agriculture. The program offers both “microgrants” of up to $2,500 that can be used for single applicants or one-time projects and “collaboration” grants of up to $50,000 to support community development and cooperative efforts to share resources. Individuals and organizations can apply for the grants from August 1, 2019, through September 6, 2019.

From National Ag Law Experts:

“Budget Deal”, John R. Block, Ag/FDA Blog – Olsson Frank Weeda Terman Matz PC (July 24, 2019)

“Will Carbon Farming Finally Show Us the Value of Ag Data?”, Todd Janzen, Janzen Ag Law Blog – Janzen Ag Law (July 19, 2019)

Federal Actions and Notices:

Food and Drug Administration

“Food Safety Modernization Act Domestic and Foreign Facility Reinspection, Recall, and Importer Reinspection Fee Rates for Fiscal Year 2020”

Pennsylvania Actions and Notices:

Department of Agriculture

“Milk sanitation”

Milk Marketing Board

“Hearing and presubmission schedule; milk marketing area No. 1

“Hearing and presubmission schedule; milk marketing area No. 2”