Agricultural Law Weekly Review—April 27, 2017

Written by M. Sean High – Staff Attorney and Jacqueline Schweichler - Education Programs Coordinator

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

ACRE: PA Attorney General Launches New Online Resource

On April 21, 2017, a new Agriculture, Communities and Rural Environment (ACRE) Act 38 resource page debuted on the Pennsylvania Office of Attorney General’s (OAG) website.  Enacted in 2005, the main purpose of ACRE is to protect Pennsylvania’s “normal agricultural operators from unauthorized local regulation.” Accordingly, under ACRE, OAG is empowered to: (1) review local ordinances to determine conflicts with State law; and (2) to bring legal action against local government units for unauthorized local regulations that prohibit or limit normal agricultural operations.  OAG’s new resource page: (1) provides a link to a brochure describing ACRE; (2) lists resources pertaining to 2017 requests for OAG ordinance review; and (3) provides information detailing how agricultural operators can submit written requests for OAG ordinance reviews.  For more information on ACRE, please visit the Center’s ACRE/Pennsylvania Act 38 library guide.

PA Apple Growers Approve New Apple Program
On April 26, 2017, the Pennsylvania Department of Agriculture released a statement announcing the  approval of the new Pennsylvania Apple Program. The new program replaces the Pennsylvania Apple Marketing Program (PAMP) which will expire next month. Pennsylvania apple growers will be assessed "five cents ($.05) per harvested bushel of apples sold for fresh market use and one cent ($.01) per harvested bushel of apples sold or accepted for processing." The funds will be used for membership obligations, research, consumer education, and administrative activities. 

Senate Confirmation: Sonny Perdue Confirmed as New Secretary of Agriculture

On April 24, 2017, by a vote of 87-11, the U.S. Senate confirmed Sonny Perdue to be the new U.S. Secretary of Agriculture.  Following the confirmation, Senate Committee on Agriculture, Nutrition, and Forestry Chairman Pat Robert (R-Kan.) issued the following statement regarding the former Georgia Governor:

“I’m pleased that the U.S. Senate was able to work in a bipartisan fashion to confirm Governor Perdue,” Roberts said. “I have faith that Governor Perdue will put the needs of farmers and ranchers first, and I know that rural America is thankful to have such a qualified Agriculture Secretary on their side.”

White House Releases Executive Order on Agriculture 
On April 25, 2017, the White House released the Presidential Executive Order on Promoting Agriculture and Rural Prosperity in America. The executive order creates the Interagency Task Force on Agriculture and Rural Prosperity.  The purpose of the task force is to "identify legislative, regulatory, and policy changes to promote in rural America agriculture, economic development, job growth, infrastructure improvements, technological innovation, energy security, and quality of life..." The order requires the members of the Task Force to submit a report to the president within 180 days recommending legislative and policy changes.

Dairy: USDA Requests Comment on Proposed California Federal Milk Marketing Order

On April 21, 2017, the United States Department of Agriculture (USDA) Agricultural Marketing Service (AMS) published notice in the Federal Register of a request for public comment regarding the Proposed California Federal Milk Marketing Order; producer ballots (82 FR 18721).  According to USDA AMS, the “document invites comments on the proposed ballots to be used in conducting a referendum to determine whether the issuance of a Federal Milk Marketing Order (FMMO) regulating the handling of milk in California is favored by producers and cooperative associations.” Comments must be received by June 20, 2017.

COOL: Italy Requires Country of Origin Labeling on Dairy Products

On April 23, 2017, the European Supermarket Magazine (ESM) reported that Italy has made mandatory the labeling of products containing milk and milk derivatives.  According to ESM, “[i]f the milk has been produced, packaged and processed in Italy, the label will state: ‘Origin of Milk: Italy.’" ESM stated that “[i]f the packaging and processing phases taking place in several countries, other than Italy, the label will say: ‘Milk from EU Countries’, ‘Milk Conditioned or Processed in EU Countries’ or ‘Milk Conditioned or Processed in Non-EU Countries’”.

Census Data: USDA to Hold Meeting on Publication of Farm Operator Demographics

On April 20, 2017, The U.S. Department of Agriculture’s National Agricultural Statistics Service (NASS) announced the scheduling of an expert panel meeting “to consider questions surrounding publication of farm operator demographic data obtained through the 2017 Census of Agriculture.” Planned for May 16-17, 2017, the panel meeting will discuss “questions about NASS’s publication of 2017 Census of Agriculture farm operator demographic data including:

• What demographic data will NASS publish on persons involved in making decisions for the farm or ranch operation?
• What new tables and data presentations are needed to publish data from the 2017 Census of Agriculture decision-making questions?
• How does NASS address publications in light of the specific change from single principal operator in previous censuses of agriculture to multiple persons responsible for decisions in the 2017 Census of Agriculture?”

Pennsylvania Legislation:

• Senate Agriculture and Rural Affairs: SB 632 (Grain Dealer Bonding Act)
• Senate Environmental Resources and Energy: SB 645 (Increased Penalties - Solid Waste Violations)
• House Environmental Resources and Energy: HB 1256 (Moving DEP Farm Permitting to SCC)

Pennsylvania Actions and Notices:

• Department of Environmental Protection: Applications, actions and special notices
• State Conservation Commission: Action on odor management plans for concentrated animal operations and concentrated animal feeding operations and volunteers complying with the Commonwealth's Facility Odor Management Program

AgLaw HotLinks:

• "Pear Industry Votes to Continue Marketing Order" - USDA
• "Last Stand: Nebraska Farmers Could Derail Keystone XL Pipeline" - DairyHerd
• "Raw milk advocates push to expand legalized sales" -SFGate
• "Nebraska Lawmaker Gathers Input on Next Farm Bill" - Brownfield
• Shanghai, China plans to construct vertical farm designed to feed millions - AgFunder
• Genetically modified mushroom and other biotechnologies remain unregulated  - Slate
• "Alaska's Industrial Hemp Bill Passes Senate" - Stock News Union
• "As bird flu strengthens in China, Midwest farmers prepare for the next outbreak" - KCUR
• "USDA to work on GMO labeling bill schedule" - TheFencePost

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Agricultural Law Weekly Review—September 29, 2016

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:

Liability: Court Rules against Application of Equine Activity Immunity Act

On September 26, 2016, the United States District Court, M.D. Pennsylvania denied a motion claiming immunity protection under the Pennsylvania Equine Activity Immunity Act (EAIA) regarding an injury suffered at an equine facility due to a broken stirrup (Melendez v. Happy Trails and Riding Center, Inc., 2016 WL 5402745).  Under EAIA, to receive negligence protection, a qualifying defendant must demonstrate that their equine facility had proper signage and that the plaintiff assumed the risk of the equine activities (4 P.S. §§ 601-606).  According to the court, a “Defendant must show that [a] Plaintiff knew that the equipment he was provided with might break and voluntarily continued with the horseback ride in spite of that knowledge.” The court stated that because the equine facility failed to point to anything in the record to show that the injured party knew of the risk of equipment failure “and voluntarily disregarded it, EAIA provides no relief.”

Fertilizer Sales: Court Rules New OSHA Retail Facilities Safety Standard Must Go Through Rulemaking Process

On September 23, 2016, the United States Court of Appeals, District of Columbia Circuit ruled that the Occupational Safety & Health Administration (OSHA) violated the Occupational Safety and Health Act when the agency issued a new safety standard designed to narrow the exemption for retail facilities that deal in toxic chemicals (Agricultural Retailers Association and The Fertilizer Institute v.United States Department of Labor and Occupational Safety & Health Administration, 2016 WL 5315200).  According to the court, OSHA’s action was a modification of an existing safety standard, and as such, could only be validly accomplished by complying with the notice and comment procedures required by the Administrative Procedure Act.

GMO: APHIS Determines GE Apple Unlikely Environmentally Harmful

On September 23, 2016, the United States Department of Agriculture (USDA) Animal and Plant Health Inspection Service (APHIS) announced that regarding the deregulation of the genetically engineered apple line known as Arctic® Fuji, the agency was making available: (1) the final Determination and plant pest risk similarity assessment and (2) the Finding of No Significant Impact (FONSI).  According to APHIS, Arctic® Fuji apples, which are engineered to resist enzymatic browning, “are unlikely to pose plant pest risk and are no longer to be considered regulated articles under APHIS’ Biotechnology Regulations.” As a result, APHIS stated that a determination of nonregulated status of the apple line “will have no significant environmental impacts.”

GMO: AHIS Extends Preliminary Determination of Nonregulated Status on GE Potatoes

On September 24, 2016, the United States Department of Agriculture (USDA) Animal and Plant Health Inspection Service (APHIS) published notice in the Federal Register that the agency “has reached a preliminary decision to extend [a] determination of nonregulated status of J.R. Simplot Company's (Simplot) InnateTM Potato designated as Russet Burbank event W8 (the antecedent potato event) to Simplot's Ranger Russet variety (X17) and Atlantic variety (Y9) potatoes” (81 FR 65622).  According to APHIS, “Simplot’s X17 and Y9 potatoes have been genetically engineered for late blight resistance, low acrylamide potential, lowered reducing sugars, and reduced black spot using the same genetic constructs used to transform the antecedent potato event.” The comment period on the preliminary decision closes October 24, 2016.

Labeling: FDA Announces Industry Guidance and Comment Docket Regarding Use of Term “Healthy”

On September 28, 2016, the United States Food and Drug Administration (FDA) published notice in the Federal Register “announcing the availability of a guidance document for industry entitled “Use of the Term ‘Healthy’ in the Labeling of Human Food Products: Guidance for Industry” (81 FR66527).  According to FDA, “the guidance advises manufacturers who wish to use the implied nutrient content claim ‘healthy’ to label their food products as provided by [FDA] regulations.” Relatedly, on September 28, 2016, FDA published notice in the Federal Register that the agency has established “a docket to receive information and comments on the use of the term ‘healthy’ in the labeling of human food products” (81 FR 66562).  Comments must be received by FDA on January 26, 2017. 

Equine: APHIS Announces Proposed Rule to Amend Horse Protection Regulations

On September 22, 2016, the United States Department of Agriculture (USDA) Animal and Plant Health Inspection Service (APHIS) published notice in the Federal Register that the agency is extending the comment period regarding the “proposed rule to amend the horse protection regulations to provide that [APHIS] will train and license inspectors to inspect horses at horse shows, exhibitions, sales, and auctions for compliance with the Horse Protection Act” (81 FR 65307).  The revised comment period closes October 26, 2016.  Additionally, APHIS announced that the agency is “also making a clarification to the proposed regulations pertaining to specific prohibitions concerning exhibitors.”

Apples: Secretary Publishes Referendum Order on Continuation of the Pennsylvania Apple Marketing Program

On September 24, 2016, Pennsylvania Secretary of Agriculture Russell Redding published a notice in the Pennsylvania Bulletin entitled “Referendum Order on Continuation of the Pennsylvania Apple Marketing Program” (46 Pa.B. 6023).  According to the Referendum Order, “[t]he Pennsylvania Apple Marketing Program was established under the provisions of the Agricultural Commodities Marketing Act…[and] requires that the Secretary of Agriculture call a referendum of affected producers every five years to determine whether or not a majority of those voting still desire the program.” Eligible referendum voters include “[a]ll apple producers who produced, grew, or caused to be grown 500 or more apple trees for sale or marketing in the Commonwealth in calendar year 2016 and intend to produce, grow, or cause to be grown 500 or more apple trees for sale or marketing in the Commonwealth in calendar year 2017.” The referendum period runs from October 17, 2016 through October 31, 2016.

Agricultural Law Weekly Review—August 18, 2016

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:

Food Safety: USDA Announces Preliminary Deregulation of GE Apple

On August 12, 2016, the United States Department of Agriculture (USDA) Animal and Plant Health Inspection Service (APHIS) published notice in the Federal Register that the agency has reached a preliminary decision to extend deregulation to a genetically engineered line of apples known as Arctic® Fuji (81 FR 53396).  Developed by the company Okanagan Specialty Fruits Inc., Arctic® Fuji has been engineered to resist enzymatic browning.  The comment period for extending deregulation closes September 12, 2016.

Industrial Hemp: Notice Published for Federal Statement of Principles

On August 12, 2016, the United States Department of Agriculture (USDA), the United States Drug Enforcement Administration (DEA), and the United States Food and Drug Administration (FDA) published notice in the Federal Register that the three agencies have “developed a Statement of Principles on Industrial Hemp to inform the public how Federal law applies to activities associated with industrial hemp that is grown and cultivated in accordance with Section 7606 of the Agricultural Act of 2014” (81FR 53395).  According to the Federal Register notice, because the “Statement of Principles does not establish any binding legal requirements…[i]t is, therefore, exempt from notice and comment rulemaking requirements under the Administrative Procedure Act pursuant to 5 U.S.C. 553(b).”

Food Safety: FDA Issues Final Rule for Substances Generally Recognized as Safe

On August 17, 2016, the United States Food and Drug Administration (FDA) published notice in the Federal Register of a final rule amending the regulations regarding “when the use of a substance in food for humans or animals is not subject to the premarket approval requirements of the Federal Food, Drug, and Cosmetic Act (the FD&C Act)” due to the substance “being generally recognized as safe (GRAS) under the conditions of its intended use” (81 FR 54959).  Additionally, FDA stated that the agency was amending the “regulations to replace the voluntary GRAS affirmation petition process with a voluntary notification procedure.  The final rule comment period closes on October 17, 2016.  The final rule becomes effective on October 17, 2016. 

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Pesticide Regulation: Court Orders EPA to take Final Action

On August 12, 2016, the United States Court of Appeals for the Ninth Circuit denied a United States Environmental Protection Agency (EPA) request for an “additional six month extension to take final action on its proposed revocation rule and its final response to Pesticide Action Network North America and Natural Resources Defense Council’s (collectively, “PANNA”) 2007 administrative petition.” According to the Court, EPA has delayed taking action for nine years and has received previous court extensions.  As a result, the Court stated that it will not grant any further extensions and instead ordered EPA to take final action by March 31, 2017. 

Dairy Order: USDA Reduces Number of Dairy Board Importer Members

On August 12, 2016, the United States Department of Agriculture (USDA) Agricultural marketing Service (AMS) published notice in the Federal Register of a final rule amending the Dairy Promotion and Research Order so as to reduce the number of National Dairy Promotion and Research Board (Dairy Board) importer members from 2 members to 1 member (81 FR 53245).  According to the final rule, the number of domestic Dairy Board members will remain at thirty-six.  The final rule became effective on August 12, 2016.

Avian Influenza: USDA Amends NPIP and Low Pathogenic Indemnity Regulations

On August 12, 2016, the United States Department of Agriculture (USDA) Animal and Plant Health Inspection Service (APHIS) published notice in the Federal Register of a final rule “[a]mending the National Poultry Improvement Plan (NPIP), its auxiliary provisions, and the indemnity regulations for the control of H5 and H7 low pathogenic avian influenza (81 FR 53247).  According to USDA the final rule “clarifyi[es] who may participate in the NPIP, amend[s] participation requirements, amend[s] definitions for poultry and breeding stock, amend[s] the approval process for new diagnostic tests, and amend[s] slaughter plant inspection and laboratory inspection and testing requirements.” The final rule becomes effective September 12, 2016.

Mergers and Acquisitions: Sen. Grassley Sends Letter to DOJ and FTC Regarding Proposed Biotech and Seed Transactions

On August 17, 2016, Senate Judiciary Committee Chairman Charles Grassley (R-IA) issued a letter to Renata Hesse, Principal Deputy Assistant Attorney General, Antitrust Division, United States Department of Justice (DOJ) (which is reviewing the proposed merger between Dow Chemical Corp. and DuPont Co.) and Edith Ramirez, Chairwoman, Federal Trade Commission (FTC) (which is reviewing the proposed acquisition of Syngenta AG by China National Chemical Corp.).  According to Sen. Grassley, “[b]ecause of the complex nature of [the agricultural] industry it is important that these transactions not be viewed in isolation.” As a result, Sen. Grassley stated that DOJ and FTC should “collaborate” in their reviews, and where “appropriate solicit ‘input from the Department of Agriculture.”