Agricultural Law Weekly Review—May 25, 2017

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:

Menu Labeling: New York City Announces Upcoming Enforcement of New Menu Labeling Rules

On May 18, 2017, New York City Mayor Bill de Blasio “announced that all New York City chain food retailers offering prepared foods, or ‘restaurant-type foods,’ will be required to post calorie counts on menu boards.” Additionally, the announcement stated that “chain restaurants and retailers will be required to have full nutritional information – not just calories – for standard menu items available on site, and they will have to post a statement about the daily recommended caloric intake of 2,000 calories.” Accordingly, on August 21, 2017, the New York City Departments of Health and Consumer Affairs “will begin issuing notices of violation subject to fines for not following the updated rule.”

Drones: Court Rules against Registration of “Model” Aircrafts

On May 18, 2017, Air & Space reported that the Court of Appeals for the District of Columbia has determined “that the FAA’s registration system for small unmanned aircraft was illegal as applied to ‘model’ aircraft.” According to the report, the court determined that the registration program violated the FAA Modernization and Reform Act of 2012 which states in Section 336 that FAA “may not promulgate any rule or regulation regarding a model aircraft.” The report stated, however, that “[t]he ruling did not affect any aircraft operated for commercial operations under Section 333 or Part 107, so drones of any size operating for business…still have to register.”

International Trade: President Sends Congress Notice of NAFTA Renegotiation

On May 18, 2017, The New York Times reported that “[t]he Trump administration gave Congress official notice…that it plans to renegotiate Nafta.” According to the report, “[i]n a brief letter to lawmakers, Robert Lighthizer, the newly confirmed United States trade representative, said the administration aimed to support economic growth and better-paying jobs through unspecified improvements to Nafta that would modernize the 23-year-old agreement.” According to the report, President Trump “had threatened to withdraw completely from the agreement, only to relent in late April when the leaders of Canada and Mexico, the other parties to the deal, called and asked him to renegotiate instead.”

Immigration Enforcement: ICE Arrests in 2017 Increase by Nearly 40 Percent

On May 17, 2017, Reuters reported that “U.S. arrests of suspected illegal immigrants rose by nearly 40 percent in the first 100 days of Donald Trump's presidency, following executive orders that broadened the scope of who could be targeted for immigration violations.” The report stated that according to the acting director of Immigration and Customs Enforcement (ICE) Thomas Homan, “arrests by his agency jumped to 41,318 between January 22 of this year and the end of April, up from 30,028 arrests in roughly the same period last year.” According to the report, “[o]f those arrested almost two-thirds had criminal convictions.” The report stated, however, that there “was also a significant jump - of more than 150 percent - in the number of immigrants not convicted of further crimes arrested by ICE: 10,800 since the beginning of the year compared to 4,200 non-criminal arrests in the same period in 2016.”

Food Safety: SCOTUS Rejects Appeal of DeCoster Sentencing

On May 23, 2017, The Des Moines Register reported that the U.S. Supreme Court declined to hear the appeals of Austin "Jack" DeCoster and his son, Peter DeCoster whose Iowa-based egg production company caused a significant salmonella outbreak in 2010.  According to the report, in 2015, the father and son were each sentenced to three months in prison because “they knew or should have known about the risks posed by the presence of salmonella in and around millions of egg-laying hens.” The sentencing judge, however, “allowed the DeCosters to stay free while they appealed the sentences, which they argued were unconstitutional and unreasonably harsh.” The report stated that according to the U.S. Supreme Court, the DeCosters cannot further appeal their sentences.

Industrial Hemp/Cannabis: Washington State Governor Signs Organic Marijuana and Industrial Hemp Legislation

On May 17, 2017, Reuters reported that Washington Governor Jay Inslee has “signed a bill that paves the way for the state to create what is believed to be the first system in the United States to certify marijuana as organic.” According to the report, the new legislation "creates a voluntary program for the certification and regulation of organic marijuana products" which is “to be administered by the Washington agriculture department.” Additionally, the report stated that “[w]hile it is legal for adults to smoke marijuana in Washington, it is not legal to grow industrial hemp.”  As a result, the new legislation will now provide “for the study of a method to allow hemp to be grown and used for industrial purposes.”

Industrial Hemp/Cannabis: South Carolina Legalizes Industrial Hemp

On May 20, 2017, The State reported that South Carolina has passed legislation legalizing the growing of industrial hemp.  According to the report, “Soon, perhaps this summer, the S.C. Department of Agriculture and the State Law Enforcement Division will issue 20 licenses to grow crops on up to 20 acres as a pilot program.” The report stated that to receive a license, a grower must: (1) pass a State Law Enforcement Division background check; (2) work with an in-state research university to develop and market the products; and (3) have a contracted buyer for the hemp.

Industrial Hemp/Cannabis: First Medical Marijuana Cultivation License Awarded in Maryland

On May 18, 2017, Marijuana Business Daily reported that “[t]he Maryland Medical Cannabis Commission gave final approval to the first company to win a cultivation license under the state’s MMJ program.” According to the report, “[t]he announcement…comes nine months after the state revealed 15 preliminary license winners, underscoring the slow rollout of Maryland’s medical cannabis program.” The report stated that the other 14 preliminary license “winners are still undergoing background checks, completing facility buildouts, and obtaining local zoning approval, according to a news release from the commission.” 

Industrial Hemp/Cannabis: Colorado Law Protects Hemp Farmers Who Use Federal Water

On May 22, 2017, The Journal reported that Colorado Governor John Hickenlooper has “sign[ed] a bill protecting hemp farmers who use water stored in federal reservoirs.” According to the report, “Colorado legalized growing hemp in 2014, but it is still banned at the federal level, creating complications when water from a federal project is used to water it.” As a result, Colorado law makers passed SB 117, entitled Recognize Industrial Hemp Agricultural Product for Agricultural Water Right, which permits Colorado water right holders the right to use the water “on hemp if the person is registered by the state to grow hemp for commercial, or research purposes.”

Food Safety: FDA Announces Updated Produce Safety Network page

On May 23, 2017, the U.S. Food & Drug Administration (FDA) issued an update to the agency’s Produce Safety Network page.  Accordingly, the updated page, entitled Building the Produce Safety Network, now includes a directory of regional network representatives.

Pennsylvania Legislation

House of Representatives

·         HB 790: An Act regulating controlled plants and noxious weeds (Passed by House – May 22, 2017)

Agricultural and Rural Affairs Committee (House)

·         HB 944: Amending the Public School Code to further provide agricultural education and providing for Commission for Agricultural Education Excellence (Referred to committee – May 19, 2017)

AgLaw HotLinks:

·         Got Milk? Too much of it, say U.S. dairy farmer - MarketWatch

·         Sec. Perdue says NAFTA will be ‘a better deal’ for farmers, ranchers - Meatingplace

·         Chicken chain commits to GAP welfare standards - Meatingplace

·         US appeals court sidesteps key ruling with MMJ business owner - Marijuana Business Daily

·         Plant-based milk debate heats up as state regulators weigh in at NCIMS meeting - Food Navigator USA

·         H-2A Guest Worker Visa Set Another Record - Brownfield Ag News

·         FDA asked to allow interstate sales of raw milk with warnings - Food Safety News

·         CDC: Raw Milk, Cheese Cause Almost All Dairy Foodborne Illness - Food Safety Magazine

·         USDA Secretary Sonny Perdue Defends Elimination of Rural Development Mission Area - National Sustainable Agriculture Coalition blog

·         Canadian lawmakers derail GMO labeling bill - Food Chemical News

·         Town opposes bill that would expand farm use to weddings, concerts - The Jamestown Press

·         American Heart Association: A clean label doesn't necessarily make for a 'healthy' product - Food Navigator USA

·         The USDA Expands Pilot Margin Protection Crop Insurance Program - Brownfield

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Agricultural Law Weekly Review—June 23, 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:

Referendum: North Dakota Votes against Corporate Farms

On June 14, 2016, North Dakota voters voted against Referred Measure 1 which appeared on the ballot as a veto referendum.  As a result of the vote, Senate Bill 2351, state legislation “designed to allow domestic corporations and limited liability companies to own and operate dairy farms and swine production facilities on no more than 640 acres of land,” was repealed.

Drones: FAA Announces New Rule

On June 21, 2016, the Federal Aviation Administration (FAA) issued a document announcing a Final Rule “amending its regulations to allow the operation of small unmanned aircraft systems in the National Airspace System.” According to FAA, “[t]hese changes address the operation of unmanned aircraft systems and certification of their remote pilots…[and] will also prohibit model aircraft from endangering the safety of the National Airspace System.” The document is currently being reviewed by the Office of the Federal Register; the Final Rule will become effective 60 days after the document is published in the Federal Register.

Animal Welfare: APHIS Updates Horse Disqualification and Civil Penalty List

On June 16, 2016, the United States Department of Agriculture (USDA) Animal and Plant Health Inspection Service (APHIS) published the latest updates to USDA’s Horse Protection Act Disqualification and Civil Penalty List which “identifies individuals and/or companies that have been assessed a Federal Disqualification under the Horse Protection Act.” According to APHIS, “[w]hile under Federal Disqualification, a person is prohibited from showing, exhibiting or entering any horse, directly or indirectly through any agent, employee, or other device, and from judging, managing or otherwise participating in any horse show, horse exhibition or horse sale or auction.”

Legislation: PA Senate Agricultural and Rural Affairs Committee Reports Two Bills

On June 23, 2016, the Pennsylvania Senate Agricultural and Rural Affairs committee voted to report Senate Bill 1110 (SB1110) and House Bill 967 (HB 967) to the Pennsylvania Senate for first consideration.  Accordingly, SB 1110 “would repeal the Noxious Weed Control Law (Act 74 of 1982) and replace it with the Controlled Plant and Noxious Weed Act to better control existing and potentially noxious weeds, maximizing the control resources of invasive species and protecting state lands,” while HB 967 would legalize, for research purposes, the growth and cultivation of industrial hemp.

Agriculture Big Data Legal Issues and Protections: Part 2 - What is Agricultural Big Data?

Written by M. Sean High - Staff Attorney

The term agricultural Big Data generally refers to the collection, aggregation, and analysis of incredibly large amounts of agricultural information.  This available agricultural information is so vast that it is difficult to work with and therefore cannot be processed according to traditional methods.  As a result, agricultural Big Data requires advanced computer software and innovative analysis techniques.  The ultimate goal of this collection and analysis is to provide farmers with a tool to increase production through a precise and efficient use of resources.

The first step in the agricultural Big Data process is the collection of agricultural information from individual farms. 

Recent developments in farming practices have served to provide an incredible wealth of agricultural information.  Today, it is common practice for farmers to employ Global Positioning System (GPS) satellites to guide their tractors and combines.  Farmers that utilize this technology simply sit in the equipment cabs and monitor the progress of the machinery from computer tablets.  As a result, many farmers have been freed form the tedious task of steering and are now able to plant significantly straighter rows.  

Significantly, the same machinery currently used to guide farm equipment also has the potential to collect soil and crop information.  These highly developed tractors and combines are able to display in real time, on the same computer tablets utilized for steering, detailed planting and harvesting information regarding  where every seed is placed and what the current yields are.  Importantly, this information can also be recorded and collected for later analysis and use.   

In addition to information collected from tractors and combines, information may also be gathered through the use of sensors placed in fields that measure the temperature and humidity of the soil and surrounding air.  Furthermore, crop maturity may be monitored from images acquired through the use of satellite imagery.

An area that offers significant potential for crop monitoring and information collection is through the use of drones.  Drones are flying devices that do not have an “onboard pilot, use global positioning satellites (GPS) for guidance, and establish a microwave (“wifi”) data link to a control station on the ground.” These unmanned aircrafts are able to effectively cover large areas and collect vast amounts of agricultural information through the use of mounted cameras (one of which usually has infrared detection).” Relatedly, as a result of the ever increasing use of drones, in December 2015, the Federal Aviation Administration established new regulations regarding drone registration. 

Regulatory Update: FAA Sets New Rules Governing Drone Registration

Written by M. Sean High – Staff Attorney

On December 14, 2015, the U.S. Federal Aviation Administration (FAA) announced an interim final rule (IFR) regulating the registration of drones with the stated purpose of providing “an alternative process that small unmanned aircraft [drone] owners may use to comply with the statutory requirements for aircraft operations [49 U.S.C 44102].” As a result, under IFR, beginning December 21, 2015, in addition to the current paper-based drone registration system (14 CFR part 47), FAA is required to provide an online web-based drone registration system (14 CFR part 48).

IFR applies to drones “weighing less than 55 pounds and more than 0.55 pounds (250 grams) on takeoff, including everything that is on board or otherwise attached to the aircraft and operated outdoors in the national airspace system.”  According to IFR, a drone owned prior to December 21, 2015 must be registered by February 19, 2015.  Comparably, a drone acquired after December 21, 2015 must be registered prior to that drone’s first outdoor flight.  All drone owners age 13 and older must register and if the owner is less than 13 years of age, then the drone must be registered by a person who is at least 13 years of age. 

Under IFR, FAA is to charge drone owners a $5 per drone registration fee.  Drone registration must be renewed every three years with a $5 renewal fee per drone.  Significantly, under IFR, failure to register a drone could result in civil penalties up to $27,500 and/or criminal penalties of up to $250,000 in fines (18 U.S.C. 3571) and/or imprisonment up to 3 years (49 U.S.C. 46306).