Penn State Agricultural Law Blog: Air Quality

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Thursday, June 20, 2019

Agricultural Law Weekly Review—June 20, 2019

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:

Air Quality: EPA Issues Final Rule Exempting Animal Waste Air Emissions from EPCRA Reporting

On June 13, 2019, the U.S. Environmental Protection Agency (EPA) published notice in the Federal Register of a final rule amending the reporting regulations under the Emergency Planning and Community Right-to-Know Act (EPCRA) (84 FR 27533). Under the final rule, air emissions from animal waste at farms is specifically exempted from EPCRA reporting requirements. Additionally, EPA stated that the final rule adds definitions to the terms “animal waste” and “farm” to the EPCRA regulations so as “to delineate the scope of this reporting exemption.” The final rule will become effective July 15, 2019.

International Trade: EU to Increase Importation of U.S. Hormone-Free Beef

On June 14, 2019, the European Commission announced an agreement had been reached to increase the importation of U.S. hormone-free beef into the European Union (EU). Enacted in 2009, and revised in 2014, the EU had placed a 45,000 tonne (metric ton) quota on the importation of non-hormone treated beef into the EU for all qualified suppliers. Subsequently, the U.S. filed a dispute with the World Trade Organization (WTO). Under the terms of the announced agreement, which settles the filed WTO dispute, the U.S. will be allocated 35,000 tonnes of the 45,000 tonne quota. The new allotment will be phased in over a seven-year period.

Industrial Hemp/Cannabis: Tennessee Department of Agriculture Announces Hemp Rule Changes

On June 3, 2019, the Tennessee Department of Agriculture (TDA) announced new rule changes for Tennessee’s hemp program, enacted in 2014 through Public Chapter No. 916. According to Agriculture Commissioner Charlie Hatcher, D.V.M., the revisions were devised in response to changes in “the hemp industry and federal laws,” referring to the removal of hemp from the list of federally controlled substances. In accordance with Tennessee’s new rules,

Hemp processors are no longer required to register through TDA.
The hemp program will no longer issue licenses for certified seed breeders. Anyone manufacturing, distributing, or labeling seed should, however, be licensed through TDA’s Ag Inputs section.
Growers will still need movement permits when transporting rooted plants and are now required to be permitted when moving harvested hemp from their growing site.

Dairy Policy: U.S. Department of Agriculture Announces Dairy Margin Coverage Enrollment

On June 14, 2019, U.S. Secretary of Agriculture Sonny Perdue announced enrollment for the new Dairy Margin Coverage (DMC) program beginning June 17. According to the announcement, the “new program offers protection to dairy producers when the difference between the all-milk price and the average feed cost (the margin) falls below a certain dollar amount selected by the producer.” The DMC program was authorized in the 2018 Farm Bill to replace the Margin Protection Program for Dairy (MPP). The new program expands the offerings of coverage levels along with the covered percentage of production history. Dairy producers who previously purchased coverage through the former MPP program may choose to receive a cash refund for 50 percent of their repayment amount or can elect to receive DMC credit for 75 percent of premiums previously paid to the MPP program. The enrollment period ends September 20. (For further reading: see “The Key Differences between the Margin Protection Program and Dairy Margin Coverage”, by Emily Wilmes, University of Minnesota Extension).

Organic Agriculture: USDA Clarifies Certification of Organic Container Systems

On June 3, 2019, U.S. Department of Agriculture (USDA) issued a memo clarifying eligibility and compliance requirements regarding the organic certification of container systems. According to USDA, container systems can include hydroponic and pot-based systems regardless of whether soil is the growing media. Such container systems may be certified under the National Organic Program if they comply with the Organic Foods Production Act and the USDA organic regulations. Under current regulations, “any field or farm parcel from which harvested crops are intended to be sold, labeled, or represented as ‘organic,’ must…. have had no prohibited substances…applied to it for a period of 3 years immediately preceding harvest of the crop” (7 CFR 205.202). According to USDA, the “memo clarifies that the legal requirements related to the three-year transition period apply to all container systems built and maintained on land.” Accordingly, no prohibited substance may be applied in the system or on the ground underneath the system.

Food Policy: USDA Reopens Comment Period on Proposed SNAP Rule

On June 14, 2019, the U.S. Department of Agriculture’s Food and Nutrition Service (FNS) published notice in the Federal Register that the agency is reopening the comment period regarding proposed changes to the Supplemental Nutrition Assistance Program (SNAP) regulations (84 FR 27743). Previously, on April 5, 2019, FNS proposed changes regarding the eligibility of certain SNAP retail food stores with a comment period that closed on June 14, 2019 (84 FR 13555). According to the agency, two supporting documents to the proposed rule—the Regulatory Impact Analysis and the Regulatory Flexibility Analysis—were inadvertently excluded from publication. As a result, the two publications have been added to the docket for the proposed rule and the comment period has been reopened until June 20, 2019.

From National Ag Law Experts:

“Indiana Court of Appeals Upholds Constitutionality of Right to Farm Act”, Tiffany Dowell Lashmet, Texas Agriculture Law Blog – Texas A&M AgriLife Extension (June 10, 2019)

“2019 Brings Potential Changes to Hemp Production in Maryland”, Paul Goeringer, Maryland Risk Management Education Blog (June 11, 2019)

Federal Actions and Notices:

Animal and Plant Health Inspection Service

“Scrapie in Sheep and Goats; Correction”

“Concurrence With OIE Risk Designation for Bovine Spongiform Encephalopathy”

Farm Service Agency

“Dairy Margin Coverage Program and Dairy Indemnity Payment Program”

Food and Nutrition Service

“Announcement of Second and Subsequent Meetings of the 2020 Dietary Guidelines Advisory Committee and Request for Oral Comments”

Forest Service

“National Environmental Policy Act (NEPA) Compliance”

Pennsylvania Legislation:

HR 222: Resolution urging U.S. Congress and U.S. FDA to enforce standard regarding term “milk” (Reported to House, June 18, 2019)

HR 402: Resolution to recognize vale of whole milk and support the serving of whole milk at schools (Reported to House, June 18, 2019)

HB 374: Legislation to create the Keystone Tree Fund (Referred to House Environmental Resources and Energy Committee, June 14, 2019)

Pennsylvania Actions and Notices:

Department of Agriculture

“General quarantine order; certified poultry technicians”

“General quarantine order; poultry exhibition requirements”

“Pennsylvania Malt and Brewed Beverage Industry Promotion Board; grant solicitation and application procedures”

Pennsylvania Department of Agriculture:

“Pennsylvania Safeguarded 47 Farms in 21 Counties for Permanent Ag Production”

“PA Department of Agriculture and Rodale Institute Partner to Improve Access to Organic Services”

Penn State Research:

“Researchers find genes that could help create more resilient chickens”

AgLaw HotLinks:

“USMCA Passage Encouraged by 960+ Ag, Food Associations and Companies” – AgWeb

“Tyson introduces new plant-based, blended products” – MEAT + POULTRY

“Amendment offers dairy producers year-round H-2A access” – Feedstuffs

“Who are you calling chicken? Tyson Foods is getting into the business of plant-based meat” – The Washington Post

“Spoilage Sensors Could Replace Use-By Dates on Meat and Fish Products” – Food Navigator

“Agriculture strongly supports passage of USMCA” – National Hog Farmer

Stay Informed:

Listen to our weekly Agricultural Law Podcast

Read our monthly Agricultural Law Brief newsletter

Connect with us on Facebook to view our weekly CASL Ledger detailing Center publications and activities

Visit The Ag & Food Law Blog for a comprehensive summary of daily judicial, legislative, and regulatory developments in agriculture and food

Thursday, June 6, 2019

Agricultural Law Weekly Review—June 6, 2019

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:

Air Quality: EPA Issues Final Rule Exempting Animal Waste Air Emissions from EPCRA Reporting

On June 4, 2019, the U.S. Environmental Protection Agency (EPA) announced that the reporting of air emissions from animal waste at farms is not required under the Emergency Planning and Community Right-to-Know Act (EPCRA). According to the agency, EPA Administrator Andrew Wheeler has signed a final rule amending the emergency release notification regulations under EPCRA. EPA stated that this amendment specifically provides a reporting exemption for air emissions from animal waste at farms. The final rule will be promulgated when it is published in the Federal Register. For a pre-publication notice of the final rule click here.

WOTUS: Texas Court Returns 2015 WOTUS Rule to EPA

On May 28, 2019, the U.S. District Court for the Southern District of Texas remanded the 2015 “Waters of the United States” (WOTUS) rule back to the Environmental Protection Agency (EPA) for further proceedings (Texas v. United States Envtl. Prot. Agency, Case No. 3:15-CV-00162). In remanding the case, the court noted that the final rule promulgated by EPA “defined ‘adjacent waters’ . . . using distance-based criteria, rather than the ecologic and hydrologic criteria used in the proposed rule” in violation of the notice-and-comment requirements of the Administrative Procedure Act. Additionally, the court sustained a preliminary injunction previously issued on September 12, 2018 which enjoined the 2015 WOTUS rule in Texas, Louisiana, and Mississippi. For more information on the 2015 WOTUS rule and EPA’s proposed rule to revise the rule’s definition of WOTUS, see the January 9, 2019 Agricultural Law in the Spotlight article entitled: U.S. EPA and Army Corps of Engineers Issue Proposed Revised Definition of “Waters of the United States”.

Industrial Hemp / Cannabis: USDA Provides Legal Opinion on Hemp

On May 28, 2019, the U.S. Department of Agriculture’s (USDA) Office of the General Counsel (OGC) issued a memorandum providing a legal opinion regarding the status of hemp following passage of the Agriculture Improvement Act of 2018 (2018 Farm Bill). Accordingly, the 2018 Farm Bill, authorized the production of hemp and removed hemp and hemp seeds from the Drug Enforcement Administration’s (DEA) schedule of Controlled Substances. To help clarify any legal confusion regarding hemp and the 2018 Farm Bill, OGC issued the following legal opinion:

"As of the enactment of the 2018 Farm Bill on December 20, 2018, hemp has been removed from schedule I of the Controlled Substances Act and is no longer a controlled substance.
After USDA publishes regulations implementing the new hemp production provisions of the 2018 Farm Bill, States and Indian tribes may not prohibit the interstate transportation or shipment of hemp lawfully produced under a State or Tribal plan or under a license issued under the USDA plan.
States and Indian tribes also may not prohibit the interstate transportation or shipment of hemp lawfully produced under the 2014 Farm Bill.
A person with a State or Federal felony conviction relating to a controlled substance is subject to a 10-year ineligibility restriction on producing hemp under the Agricultural Marketing Act of 1946. An exception applies to a person who was lawfully growing hemp under the 2014 Farm Bill before December 20, 2018, and whose conviction also occurred before that date."

Municipal Regulation: Missouri Governor Signs CAFO Bill

On May 31, 2019, Missouri Governor Mike Parson signed legislation addressing concentrated animal feeding operations (CAFOs). First, the legislation prohibits county commissions and county health center boards from promulgating restrictions on CAFOs that are stricter than state regulations. Next, the legislation expanded the buffer distance whereby a property owner must receive notice of a farm’s intent to file an application for a CAFO operating permit. Finally, the legislation established setbacks for all liquified manure from a CAFO that is purchased or received by a third party and is surface-applied.

Antitrust: Walmart Sues Chicken Producers Over Alleged Price Fixing

On May 24, 2019, Walmart Inc. filed a complaint in the U.S. Dist. Court Western Dist. of Arkansas alleging manipulation of chicken prices by multiple chicken producers, including Pilgrim’s Pride, Perdue Foods, and Sanderson Farms, among several others (Wal-Mart Stores East, Lp Et Al V. Koch Foods, Inc. Et Al, Case No. 5:19cv5100). Walmart asserted that the companies conspired to increased prices by diminishing breeder flocks and decreasing the amount of broiler chickens in the market. According to the complaint, one of the named defendants, Fieldale Farms, has already agreed to pay $2.25 million to settle Walmart’s claims.

Biofuels: EPA To Allow Year-Round Sale of E15 Gasoline

On May 31, 2019, the Environmental Protection Agency (EPA) announced that gasoline blended with up to 15 percent ethanol (E15) will be permitted during the summer months. Accordingly, EPA will now apply the 1-psi Reid Vapor Pressure waiver—currently applied to 10 percent ethanol—to E15 during the summer months. As a result, E15 will be allowed to be sold year-round instead of only eight months of the year.

From National Ag Law Experts:

“Here comes the sun: understanding important solar lease terms”, Evin Bachelor, Ohio Agricultural Law Blog, Ohio State University Extension (May 29, 2019)

“What Counts as ‘Hours Worked’ Under the Fair Labor Standards Act?”, Cari Rincker, Rincker Law Blog – Rincker Law PLLC (May 31, 2019)

Federal Actions and Notices:

Animal and Plant Health Inspection Service

“Approval of Laboratories To Conduct Official Testing; Consolidation of Regulations”

Food and Drug Administration

“Agency Information Collection Activities; Submission for Office of Management and Budget Review; Comment Request; Sanitary Transportation of Human and Animal Food”

“Evaluating Alternate Curricula for the Standards for the Growing, Harvesting, Packing, and Holding of Produce for Human Consumption; Draft Guidance for Industry; Availability”

Labor Department

“Agency Information Collection Activities; Submission for OMB Review; Comment Request; Application for Prevailing Wage Determination”

“Agency Information Collection Activities; Submission for OMB Review; Comment Request; H-2A Temporary Agricultural Labor Certification Program”

Pennsylvania Legislation:

HB 370: Legislation further providing for purchase of agricultural conservation easements (Referred to Senate for consideration, June 4, 2019)

HB 404: Legislation designating “Tree of Heaven” a noxious weed (Referred to Senate for consideration, June 4, 2019)

SB 634: Legislation establishing the Conservation Excellence Grant Program (Referred to Senate for consideration, June 4, 2019)

SB 696: Legislation to modify Pennsylvania’s existing fireworks law (Referred to Senate Agriculture and Rural Affairs Committee, May 31, 2019)

HB 1514: Legislation to revise and re-establish the existing Healthy Farms Healthy Schools program into the PA Farm-to-School Program (Referred to House Agriculture and Rural Affairs Committee, May 29, 2019)

HB 1516: Legislation to create the Pennsylvania Rapid Response Disaster Readiness Account (Referred to House Agriculture and Rural Affairs Committee, May 29, 2019)

HB 1517: Legislation to create the Conservation Excellence Program (Referred to House Agriculture and Rural Affairs Committee, May 29, 2019)

HB 1518: Legislation to revise and re-establish the former (expired) Agriculture and Rural Youth Development Program (Referred to House Agriculture and Rural Affairs Committee, May 29, 2019)

HB 1519: Legislation to establish a state-level Specialty Crop Block Grant Program (Referred to House Agriculture and Rural Affairs Committee, May 29, 2019)

HB 1520: Legislation to create a grant program to incentivize access to meat processing inspections (Referred to House Agriculture and Rural Affairs Committee, May 29, 2019)

HB 1521: Legislation to amend PA Preferred Program to encourage military veteran participation in the Homegrown by Heroes Program (Referred to House Agriculture and Rural Affairs Committee, May 29, 2019)

HB 1523: Legislation to establish the Pennsylvania Agricultural Business Development Center (Referred to House Agriculture and Rural Affairs Committee, May 29, 2019)

HB 1526: Legislation to revise and re-establish the Agriculture-Linked Investment Program (Referred to House Agriculture and Rural Affairs Committee, May 29, 2019)

Pennsylvania Actions and Notices:

Department of Agriculture

“Action of Controlled Plant and Noxious Weed Committee; addition of noxious weeds to controlled plants and noxious weed list”

Executive Board

“Reorganization of the Department of Agriculture”

Pennsylvania Department of Agriculture:

“PA Farm Bill Will Support Agribusiness Planning and Transition Assistance”

“Expanded 2019 Ice Cream Trail Unveiled at Chester Springs Creamery”

Penn State Research:

“NSF grant unites cross-campus researchers to study and optimize flying robots” – Penn State News

AgLaw HotLinks:

“Bill to revive local meat processing” – Feedstuffs

“'American Soil' Is Increasingly Foreign Owned” – NPR

“Tax on Sugary Drinks in Philadelphia Halves Purchases in the City in the First Year, JAMA Study Finds” – Food Navigator

“Native plants amazingly resilient when invasives removed, says Penn State study” – Penn Live

“Recent court cases could affect on-farm decisions” – Farm Progress

Stay Informed:

Listen to our weekly Agricultural Law Podcast

Read our monthly Agricultural Law Brief newsletter

Connect with us on Facebook to view our weekly CASL Ledger detailing Center publications and activities

Visit The Ag & Food Law Blog for a comprehensive summary of daily judicial, legislative, and regulatory developments in agriculture and food

Thursday, February 7, 2019

Agricultural Law Weekly Review—February 7, 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:

Labeling Laws: Court Rejects San Francisco Law Requiring Health Warnings on Sugary Drinks

On January 31, 2019, the 9^th Circuit Court of Appeals determined that a San Francisco ordinance requiring health warnings on certain sugar-sweetened beverages violated the First Amendment right to freedom of speech (American Beverage Association v. City and County of San Francisco, Case: 16-16072). In June 2015, San Francisco enacted an ordinance requiring that certain sugar-sweetened beverage advertisements be labeled with the following statement: “WARNING: Drinking beverages with added sugar(s) contributes to obesity, diabetes, and tooth decay. This is a message from the City and County of San Francisco.” Under the ordinance, the warning was to occupy at least 20% of the advertisement. The 9^th Circuit stated that court findings suggested that the goals of the ordinance could be accomplished with a warning smaller than 20%. As a result, the court ruled that “the 20% requirement is not justified and is unduly burdensome when balanced against its likely burden on protected speech.”

Cannabis / Industrial Hemp: Vote Hemp Releases 2018 Hemp Crop Report

On January 28, 2019, the hemp advocacy organization Vote Hemp announced the release of its 2018 U.S. Hemp Crop Report. The report provides the number of acres of hemp grown in 2018 and identifies states that have enacted hemp legislation. According to the report, the total number of acres of hemp grown in the U.S. increased from 25,713 in 2017 to 78,176 in 2018. Additionally, the report stated that 41 states have currently enacted legislation regarding hemp production.

International Trade: USDA Awards $200M to Help Farmers Expand Markets

On January 31, 2019, the U.S. Department of Agriculture (USDA) announced that the agency has awarded $200 million to 57 organizations through the Agricultural Trade Promotion Program (ATP). According to USDA, the purpose of the ATP is to help U.S. agricultural producers identify and gain access new export markets. U.S. Secretary of Agriculture Sonny Perdue stated that the funds are “seed money, leveraged by hundreds of millions of dollars from the private sector, that will help to increase our agricultural exports.”

Dairy Policy: California Milk Processor Board Announces Consumer Loyalty Program

On January 28, 2019, Cison PR Newswire reported that the California Milk Processor Board (CMPB) has launched a consumer loyalty program that will pay consumers for the purchase of real dairy milk. The new program will be known as “Moo Money.” Under the program, which starts January 28, 2019 and ends April 28, 2019, eligible California consumers can earn points for every $1 spent towards a qualifying purchase of real dairy milk. If these consumers accumulate enough points, they will have the ability to convert the points into Virtual Reward Cards which can then be used where ever MasterCard is accepted. Previously, CMPB created the well-known “Got Milk?” dairy campaign.

Air Quality: Maryland to Monitor Air Near Poultry Houses

On January 29, 2019, the Maryland Department of the Environment (MDE) announced that it will collect air samples on Maryland’s Lower Eastern Shore in order to determine the effects of large poultry houses on air quality. At various monitoring stations, measurements will be made regarding ammonia and particulate matter. Information will also be collected regarding weather conditions. The monitoring is scheduled for one year. At the end of the that time, MDE will examine the collected information and determine any future necessary actions.

From National Ag Law Experts:

“Agricultural Tenants and Eminent Domain Proceeds”, Tiffany Dowell Lashmet, Texas Agriculture Law Blog – Texas A&M AgriLife Extension (February 4, 2019)

“Maryland’s Laws for Raising Honey Bee”, Nicole Cook, Maryland Risk Management Education Blog (January 29, 2019)

“Ag-gag gets the bag”, Ellen Essman, Ag Law Blog – Agricultural Law & Taxation – Ohio State University Extension (January 29, 2019)

Pennsylvania Department of Agriculture:

“Huntingdon County Resident Named 2019 Pennsylvania Fair Queen”

Pennsylvania Legislation:

SB 85: Legislation regarding licensing fee exemptions for certain service dogs (Referred to Senate for consideration, February 4, 2019)

SB 145: Legislation amending the Agricultural Area Security Law to provide for restrictions and limitations on preserved farmland (Referred to Senate for consideration, February 4, 2019)

HB 368: Legislation regarding boarding kennel licensing (Referred to House Agriculture and Rural Affairs Committee February 4, 2019)

Pennsylvania Actions and Notices:

Department of Environmental Protection

“Agricultural Advisory Board 2019 meeting schedule”

Milk Marketing Board

“Hearing and presubmission schedule; all milk marketing areas; minimum retail prices”

“Hearing and presubmission schedule; milk marketing area No. 6”

AgLaw HotLinks:

“US consumers continue to eat more cheese” – Food Navigator

“Interest in Traceability Programs on the Rise” – Brownfield Ag News

“UK worries over ag exports without EU deal” – Morning AgClips

“Uber-Like Solution for Farm Shipments Connects Grains to Empty Trucks” – Bloomberg

“US academics feel the invisible hand of politicians and big agriculture” – The Guardian

“Truck Drivers on the Lookout for Spotted Lanternfly” – Transport Topics

“Bud Light Picks Fight With Corn Syrup in Super Bowl Ad” – The New York Times

Stay Informed:

Listen to our weekly Agricultural Law Podcast

Read our monthly Agricultural Law Brief newsletter

Connect with us on Facebook to view our weekly CASL Ledger detailing Center publications and activities

Visit The Ag & Food Law Blog for a comprehensive summary of daily judicial, legislative, and regulatory developments in agriculture and food

Thursday, November 15, 2018

Agricultural Law Weekly Review—November 15, 2018

Written by: M. Sean High (Staff Attorney) and Deanna Smith (Research Assistant)

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

Agricultural Labor: DOL Proposes Online Advertising Requirement for Temporary Labor Certification Jobs

On November 8, 2018, the U.S. Department of Labor (DOL) announced a proposal requiring that employers seeking temporary labor certification must fulfill advertising requirements through online methods. Currently, employers seeking temporary labor certification through either the H-2A visa program or the H-2B visa program must publish two print newspaper advertisements “in the area of intended employment.” Under the new proposal, however, such newspaper advertisements will no longer be required. Instead, advertisements regarding job opportunities for both programs will be required to be posted online for a minimum of 14 days. According to DOL, the intention of the change is to modernize the recruitment process “and make job opportunities more readily available to Americans.” For information regarding changes to the H-2A program see 83 FR 55985. For information regarding changes to the H-2B program see 83 FR 55977.

Animal Welfare: California Votes to Require More Space for Confined Farm Animals

On November 6, 2018, California voters passed Proposition 12 which establishes minimum space requirements farmers must provide for confined egg-laying hens, breeding pigs, and calves raised for veal. Additionally, under Proposition 12, no California business is permitted sell eggs, pork, or veal that comes from animals confined in ways not meeting the new requirements. Previously, in 2008, California passed Proposition 2 which mandated that confined egg-laying hens, breeding pigs, and calves raised for veal must be able to “turn around freely, lie down, stand up, and fully extend their limbs.” Proposition 12, however, now places confinement restrictions based on a minimum number of square feet and on sales.

Checkoff Programs: R-CALF USA Lawsuit Expanded to 13 More States

On November 5, 2018, a Montana Federal District Court Judge granted the Ranchers-Cattlemen Action Legal Fund United Stockgrowers of America’s (R-CALF USA) motion to extend its beef checkoff program lawsuit beyond Montana to 13 other states. Earlier this year, on April 9th, 2018, the United States Court of Appeals for the 9th Circuit upheld a preliminary injunction against the United States Department of Agriculture (USDA), preventing the continuation of the national checkoff program in Montana. (R-CALF USA v. Sonny Perdue, No. 17-35669). In the lawsuit, R-CALF USA is claiming that the national check-off program is “violating the U.S. Constitution by compelling Montana cattle producers to pay for the private speech of the private Montana Beef Council without first obtaining consent” from its producers. This new development does not extend the existing preliminary injunction in Montana to the other states, which are Hawaii, Indiana, Kansas, Montana, Nebraska, Nevada, New York, North Carolina, Pennsylvania, South Carolina, South Dakota, Texas, Vermont, and Wisconsin. However, it allows R-CALF USA to continue with its original lawsuit that seeks a permanent injunction of the national checkoff program and allows individual cattle producers to decide whether half the mandatory assessments collected from them should be spent by the private state’s Beef Council, or all of it sent to Cattlemen’s Beef Board. For more information on the April 9^th, 2018 ruling, see our Ag Law Weekly Review for April 19, 2018.

Air Quality: FDA Approves Drug that Reduces Gas Emissions from Animal Waste

On November 6, 2018, the United States Food and Drug Administration (FDA) published a press release announcing the approval of Experior, an animal drug that reduces the amount ammonia gas released in beef cattle waste. The first of its kind approved, Experior, when fed to beef cattle under “semi-controlled conditions in enclosed housing” reduces ammonia gas emissions in manure. Ammonia gas emissions in the air have been connected to noxious odors and atmospheric haze, which can lead to irritation of the eyes, nose, and throat in both humans and animals. FDA stated that through multiple studies conducted on more than 4,000 cattle, the agency determined that “Experior is safe to feed to beef cattle and that meat from cattle treated with Experior is safe for people to eat.”

Soda Tax: Washington Voters Pass Ban on Local Soda Taxes

On November 6, 2018, voters in Washington state passed Initiative 1634 which prohibits local governments from enacting taxes on groceries. Under Initiative 1634, groceries are defined as "any raw or processed food or beverage, or any ingredient thereof, intended for human consumption." While Initiative 1634 does not extend the prohibition on local taxation to alcoholic beverages it does encompass sugary beverages such as soda.

Intellectual Property: EU Court Finds “Taste” Not Entitled to Copyright Protection

On November 13, 2018, the Court of Justice of the European Union announced that “the taste of a food product is not eligible for copyright protection.” In 2007, a Dutch company created a cream cheese and fresh herbs dip called Heksenkaas. In 2014, a competitor created a similar tasting product called Witte Wievenkaas. Subsequently, the owner of Heksenkaas asserted that the taste of its food product should be entitled to copyright protection. According to the Court of Justice, for a food product to receive copyright protection under the European Union’s Copyright Directive it must be capable of being classified as a “work.” To be a “work” the food product must be “identifiable with sufficient precision and objectivity.” According to the Court of Justice, “the taste of a food product cannot be identified with precision and objectivity.”

From National Ag Law Experts:

“Ohio Agricultural Law Blog--Meat Law Continues to Sizzle in the News”, Evin Bachelor, Ohio State University Extension (November 9, 2018)

“Mid-Term and More”, John R. Block, Olsson Frank Weeda Terman Matz PC (November 8, 2018)

“Cell Cultured Meat – Now What?”, Sarah Everhart, Maryland Risk Management Education Blog (November 13, 2018)

Pennsylvania Actions and Notices:

The Governor

Proclamation; House Bill No. 2157, Printer's No. 3278

Vetoes

Notice of Veto; House Bill 2157, Printer's No. 3278

Pennsylvania Department of Agriculture:

“Thirty-Eight Deer Test Positive for Chronic Wasting Disease on Fulton and Bedford County Deer Farms”

“Agriculture Officials Urge Vigilant Poultry Biosecurity During Fall Migration”