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:
Ag-Gag:
Ninth Circuit Finds Idaho Farm Protection Law Violates First Amendment
On January 4, 2017, the U.S. Court of Appeals for
the Ninth Circuit issued a ruling
regarding the Constitutionality of Idaho’s Interference with Agricultural
Production law (IWAP). Known also Idaho
Code § 18-7042, IWAP was enacted in 2014 after an undercover
video recording at an Idaho dairy facility was posted on the internet. Under IWAP, Idaho sought to criminalize: (1)
the use of a misrepresentation to gain access to an agricultural operation and
(2) any video and/or audio recordings of an agricultural operation without the
owner’s consent. The court held that
Idaho’s criminalizing misrepresentations to gain access was a violation of the
First Amendment because IWAP “criminalized innocent behavior, was staggeringly
overbroad, and that the purpose of the statute was, in large part, targeted at
speech and investigative journalists.” The court also held that IWAP’s ban on
video and/or audio recordings “regulated speech protected by the First
Amendment and was a classic example of a content-based restriction that could
not survive strict scrutiny.”
Antitrust:
R-CALF USA Alleges Potential Antitrust
Violation
On January 3, 2018, the Ranchers-Cattlemen Action
Legal Fund, United Stockgrowers of America (R-CALF USA) issued
letters to leaders of the U.S. Senate Committee on the Judiciary, and its Subcommittee
on Antitrust, Competition Policy, and Consumer Rights alleging potential
antitrust violations by the food processors JBS and Cargill. R-CALF USA stated that the JBS-owned beef
packing plant in Souderton, Pennsylvania, and the Cargill-owned beef-packing
plant in Wyalusing, Pennsylvania, “are the major beef packing plants in
Pennsylvania, and likely throughout the entire Northeast.” According to R-CALF
USA, following the October 25, 2017, temporary delisting of the JBS-owned plant
in Souderton due to pest control, cow prices fell $5 to $10 per cwt. R-CALF USA alleged that during this market
downturn, Cargill purchased cattle at artificially low prices “because there
was no meaningful market competition.” Accordingly,
R-CALF USA seeks Senate investigation into whether actions surrounding JBS’
withdrawing from the market and Cargill’s purchasing practices violated U.S.
antitrust laws.
Pesticides:
Attorneys General Join Challenge to California Glyphosate Labeling Law
On January 4, 2018, The Progressive Farmer reported
that attorneys general from eleven states have joined a legal challenge in U.S.
District Court for the Eastern District of California seeking to block
California Prop 65. Under Prop 65, products
that contain glyphosate must carry a label stating that glyphosate may cause
cancer. The eleven states filing the
petition are Idaho, Indiana, Iowa, Kansas, Louisiana, Michigan, Missouri, North
Dakota, Oklahoma, South Dakota and Wisconsin.
FSMA:
FDA to Not Enforce Certain FSMA Regulations during Discretion Period
On January 4, 2018, the U.S. Food and Drug Administration
(FDA) announced
that during the enforcement discretion period of the FDA Food Safety
Modernization Act (FSMA), the agency will not enforce certain regulations. FDA stated that the enforcement delay will
allow the agency additional time to address concerns regarding the regulations.
According to FDA, areas covered under this enforcement discretion include:
- “facilities
that would be farms except for certain factors and activities,
- written
assurances provisions in all four rules related to the control of
identified hazards or microorganisms that are a potential risk to public
health
- the animal
food preventive controls requirements for certain manufacturing/processingactivities
performed on human food by-products used as animal food, and
- Foreign Supplier Verification Programs rule requirements for importers of food contact substances.”
International
Trade: U.S. Hopes U.K. Drops Certain EU Farming and Food Rules Following Brexit
On January 4, 2018, Bloomberg reported
that United States (U.S.) officials are hopeful that the United Kingdom (U.K.) will
eliminate some of its farming and food rules now that the nation has decided to
leave the European Union (EU). According
to Ted McKinney, undersecretary for trade at the U.S. Department of
Agriculture, following Brexit, the U.S. would like the U.K. to develop “its own
food safety and environmental safety protocols” and remove certain EU farming
and food processing regulations. McKinney
stated that the EU can be a “difficult place to do business” and that if certain
EU regulations are dropped “there is a much greater opportunity for trade
between the U.K. and U.S.”
AgLaw HotLinks:
- New Study Highlights PA’s Potential for New Dairy Processing Plants – PA Dept. of Agriculture
- Statement from FDA Commissioner Scott Gottlieb, M.D. on FDA Food Safety Modernization Act enforcement discretion guidance – FDA
- Immigration Plan Depends on Trump Willingness to Compromise – Ag Web
- What the new tax law means for agriculture – Delta Farm Press
- As Trump Appeals to Farmers, Some of His Policies Don’t – The New York Times
- Agricultural fungicide attracts honey bees, study finds – EurekAlert
- Soaring Popularity Of Grass-Fed Beef May Hit Roadblock: Less Nutritious Grass – NPR
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