Agricultural Law Weekly Review—February 22, 2018

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:

Pesticides: EPA Penalizes Amazon over $1.2M for Online Sale of Illegal Pesticides

On February 15, 2018, the U.S. Environmental Protection Agency (EPA) announced a settlement with Amazon Services LLC regarding the online sales of unregistered and misbranded pesticide products.  According to EPA, from 2013-2016, Amazon sold and distributed imported pesticide products that were not licensed for sale in the U.S.  EPA alleged that these illegal actions resulted in nearly four thousand violations of the Federal Insecticide, Fungicide and Rodenticide Act.  Under the terms of the settlement, Amazon will be required to: (1) pay EPA a penalty of $1,215,700 and (2) develop an online pesticide training course for Amazon retailers.  According to EPA, completion of the online training course will be required by all entities prior to selling pesticide products on Amazon.com.

Pesticides: Judge Rejects Monsanto Action to Stop Arkansas Dicamba Ban

On February 16, 2018, Reuters reported that an Arkansas judge rejected a Monsanto Co. lawsuit seeking to overturn the state’s dicamba spraying restrictions.  On January 19, 2018, the Arkansas Agricultural Department announced regulations prohibiting the use of the herbicide dicamba from April 16 through October 31.  As a result of this action, Monsanto brought suit alleging that “[t]he Arkansas ban hurts Monsanto’s ability to sell dicamba-tolerant seed in the state and has caused ‘irreparable harm’ to the company.” According to the report, in dismissing Monsanto’s legal challenge, “Pulaski County Circuit Court Judge Chris Piazza cited a recent Arkansas Supreme Court decision that the state cannot be made a defendant in court.”

Food and Nutrition: USDA Extends Comment Period on Food Crediting in Child Nutrition Programs

On February 20, 2018, the U.S. Department of Agriculture (USDA) Food and Nutrition Service (FNS) published notice in the Federal Register extending the comment period regarding USDA-FNS’ crediting system and the Child Nutrition Programs (83 FR 7139).  According to USDA-FNS, the Child Nutrition Programs (which include: National School Lunch Program, School Breakfast Program, Child and Adult Care Food Program, and Summer Food Service Program) are critical in providing many children with nutritious food.  Additionally, FNS stated that crediting is the process used by the agency “to determine how individual foods contribute to the Child Nutrition Programs' meal patterns.” USDA-FNS asserted that the extended comment period is intended to help the agency structure a crediting system that better: (1) addresses the current food and nutrition environment, (2) gives children access to the nutrition they need, and (3) provides customer service. Accordingly, USDA-FNS has scheduled the comment period to close on April 23, 2018.

Agricultural Data: Syngenta Acquires Satellite Imagery Company

On February 14, 2018, Syngenta announced the acquisition of the satellite imagery company FarmShots, Inc.  According to Syngenta, FarmShots has been a leader in developing high-resolution technology that can allow for the detection of plant health through “analyzing absorbed light from field images.” Syngenta asserted that this technology permits “growers and their trusted advisers to reduce field scouting by as much as 90 percent and helps them focus on areas of need.” Additionally, Syngenta stated that the FarmShots system, will allow growers to access their secure, optimized data through mobile devices such as tablets, laptops and smart phones.

Biosecurity: Deer from Pennsylvania Farm Tests Positive for Chronic Wasting Disease in Wisconsin

On February 15, 2018, the Pennsylvania Department of Agriculture (PDA) announced that a deer originating from a Pennsylvania breeding farm has tested positive for Chronic Wasting Disease in Wisconsin.  The deer in question was harvested on a Wisconsin hunting preserve in the fall of 2017.  Subsequently, DNA testing was used to confirm that the deer was born on a breeding farm in Lancaster County, Pennsylvania.  The breeding farm is currently under quarantine as PDA and the U.S. Department of Agriculture work to establish a Herd Management Plan designed to limit the spread of the disease.   

Industrial Hemp / Cannabis: Pennsylvania Approves 39 Industrial Hemp Research Applications

On February 15, 2018, the Pennsylvania Department of Agriculture (PDA) announced the approval of 39 industrial hemp research applications.  According to PDA, if all 39 applicants complete the permitting process, nearly 1,000 acres statewide will be utilized for hemp production in 2018.  In contrast, in 2017, hemp production in the Commonwealth was limited to 14 growers on 36 acres statewide.  The 39 approved industrial hemp applicants come from the following Pennsylvania counties: Adams, Bedford, Berks, Bucks, Carbon, Chester, Clearfield, Columbia, Cumberland, Dauphin, Franklin, Lackawanna, Lancaster, Lehigh, Luzerne, Lycoming, Mifflin, Monroe, Montgomery, Montour, Perry, Somerset, Washington, Westmoreland, and Wyoming.

Farmland Preservation: Pennsylvania Farmland Preservation Program Passes $1 Billion Mark

On February 15, 2018, the Pennsylvania Department of Agriculture announced that the Agricultural Land Preservation Board has approved $37 million in farmland preservation funding for 2018.  With the announced funding, Pennsylvania’s financial commitment to farmland preservation exceeds $1 billion since the Pennsylvania Agricultural Conservation Easement Purchase Program was developed in 1988.  Accordingly, since 1988, these farmland preservation funds have been used to purchase permanent easements on 5,270 Pennsylvania farms totaling 546,963 acres.

Pennsylvania Actions and Notices:

Department of Agriculture

• 2018 referendum on continuation of the Pennsylvania Vegetable Marketing and Research Program 

Department of Transportation

• State Transportation Commission meeting 

Pennsylvania Public Utility Commission

• Nutrient credits 

Susquehanna River Basin Commission

• Commission meeting 

AgLaw HotLinks:

• Class I Sales Hit Record Low – MILK
• Chairman Conaway says pathway to farm bill now easier – Delta Farm Press
• Is It ‘Natural’? Consumers, and Lawyers, Want to Know – The New York Times
• Group asks court to defend consumers’ right to buy eggs, meat – Feedstuffs
• Senators want to bolster research of organic ag – Morning Ag Clips
• USDA and Innovation Center for US Dairy recommit to-meet industry environmental goals – Dairy Reporter
• Brexit must not lead to fall in farming standards, warns NFU – The Guardian
• This Musk — Elon's brother — looks to revolutionize urban farming – USA Today
• Foreign Farm Workers Caught in Brexit Flap – Ag Web
• Ag Groups in Court over California Prop 65 Listing of Glyphosate – Brownfield Ag News      

     

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Agriculture Law Weekly Review - July 6, 2017

Written by Joseph Mooradian - Research Assistant

GMO Labeling: USDA Solicits Public Input On GMO Labeling

On July 29, 2016, legislation to establish the National Bioengineered Food Disclosure Standard was enacted by Congress. This standard will be established by the U.S. Department of Agriculture’s Agricultural Marketing Service (AMS), who have recently called for responses to thirty questions on the subject, seeking comments no later than July 17, 2017. These questions upon which AMS seeks comment range from questions such as, “Should AMS consider more than one disclosure category?” to “How should AMS make public the summary of any examination, audit, or similar activity?” According to the 2016 legislation, the AMS standard must be established within two years of its enactment.

Antitrust: European Commission and Canadian Competition Bureau Clear Dow/DuPont Merger

On June 28, 2017, Dow and DuPont issued a joint update on their planned merger, which is due to close in August. The companies have met the conditions stipulated in the March 27, 2017, approval by the European Commission, bringing them within full approval from the E.U. This follows the June 22, 2017, approval by the U.S. Department of Justice, as well as being joined by approval from Canada’s Competition Bureau. All three of these key regulatory approvals required some divestment. Dow and DuPont’s statement reiterates its plans for a new three-company structure in the wake of the reorganization.

Food Disparagement: BPI Settles with ABC Over Food Disparagement Claim

On June 28, 2017, Beef Products Inc. (BPI) settled its lawsuit with ABC Television over ABC referring to BPI’s beef product as “pink slime” over three hundred times in 2012. The final amount of the settlement has not been disclosed, although according to Journal Star, BPI claimed losses of roughly $400 million in the five year period since 2012. South Dakota, where the suit took place, has food libel laws, making it one of 13 states where suits of libel or defamation over food are easier to pursue.

Biosecurity: Bill Addressing Agro-Terrorism Threat Signed Into Law

On June 30, 2017, President Trump signed H.R. 1238, the Securing our Agriculture and Food Act into law. The law empowers the Department of Homeland Security to defend agriculture systems from terrorism and “other high-consequence events,” through amendment of the Homeland Security Act of 2002.  According to Senator Claire McCaskill, who was a co-sponsor of the legislation, “We don’t always think of a terrorist attack as a deliberate, mass food contamination, or the danger a major disease outbreak could pose… This bill is an example of setting aside difference to work across the aisle to keep American families safe, and that’s the greatest responsibility I have.”

Soda Tax: Court Stays Implementation of Cook County Soda Tax

On June 30, 2017, Judge Daniel Kubasiak of the Cook County Circuit Court issued a temporary restraining order staying the county’s beverage tax, which was set to go into effect the next day. The bill as introduced featured a wide range of regulations, including a $0.01 per ounce tax on all “bottled sugar-sweetened beverages, syrups, or powders,” as well as requiring all distributors of such items to acquire a permit. According to Food Chemical News, the lawsuit seeking to stay the law, brought by the Illinois Retail Merchants Association, states that the law, “violates the uniformity clause of the Illinois Constitution and is impermissibly vague.” A further hearing is scheduled on July 12, to determine the future of the measure’s legality.

AgLaw HotLinks:

• “President Trump likely to sign popular agro-terrorism bill” – Food Safety News
• “TRANSGENIC FISH ARE READY FOR US. ARE WE READY FOR THEM?” - Ensia
•  “Rural America’s image problem” – Hagstrom Report
•  “Rhode Island lawmakers delay decision on raw milk until 2018” – Food Safety News
• “Expert panel at IFT responds to question, 'GMOs…So what?'” – Meat + Poultry
•  “USDA wants consumer feedback on GMO disclosure rules” – The Fern
• “Exclusive: White House weighs tightening U.S. food aid shipping rules – sources” – Reuters
• “Tougher advertising rules for marketing unhealthy foods at children come in to effect
• tomorrow” – Food Navigator
• “Pilgrim's Pride takes action against Plainview Chicken Farm” – Meat + Poultry
• “U.S. Milk Production Highly Concentrated in Just 59 Counties” – Milk Business
• “USDA, NAMI issue statements on BPI/ABC settlement” – Meatingplace
• “Food waste ‘overstated’: U of Minn study” – Meatingplace
• “Trump's Rural Broadband Goal Could Be Costly” – AgWeb
•  “Fans of White House Garden Hope New Tenants Keep It Green” – New York Times
•  “Soy ‘milk’? Even federal agencies can’t agree on terminology” – Washington Post
• “School districts rethink meal debt policies that shame kids” – Washington Post

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Stay informed with our monthly Agricultural Law Brief located here.

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

Agricultural Law Weekly Review – June 8, 2017

Written by Deanna Smith – Research Assistant

Food Disparagement: Jury Selected in BPI Litigation against ABC

On June 5, 2017, Food Safety News reported the jury has been selected for the defamation trial between Beef Products, Inc. (BPI) and television conglomerate American Broadcasting Company (ABC). The trial will cover the issue of whether BPI was defamed by an ABC reporter referring to their “lean finely textured beef . . . as ‘pink slime’ in numerous reports” since March 7, 2012. BPI is claiming $1.9 billion in damages, but any damages awarded could be tripled under South Dakota’s Agriculture Food Product Disparagement Act.

Industrial Hemp/Cannabis: Nevada Expands Industrial Hemp Program

Nevada Governor Brian Sandova signed Senate Bill 396 on Friday June 2, 2017. The bill allows for the expansion of Nevada’s industrial hemp research and development program. The new law allows “the growth and cultivation of industrial hemp allowing the crop to [be] grown for commercial, and not just research, purposes.” According to media reports, the new bill was among 50 signed into law by Governor Sandova last week.

International Trade: USDA Releases Latest Agricultural Trade Data

The newest report on agricultural trade data has been posted on USDA’s website. The report tracks the changes in agricultural imports and exports of the United States since 2013. The next update is scheduled to be released on July 6, 2017.

Beef Industry: Nebraska Beef Producers Committee Sues Over Constitutionality of the Nebraska Livestock Brand Act

Nebraska Beef Producers Committee (Beef Producers), “a nonprofit group representing cattle producers with feedlots across the state,” is challenging the Nebraska Livestock Brand Act in federal court. The suit was filed against the Nebraska Brand Committee on May 30, 2017. Beef Producers are arguing the act is unconstitutional under the Commerce Clause as well as the Equal Protection Clause of the U.S. Constitution. Plaintiffs’ counsel, Katherine Spohn, says “[t]he evolution of the cattle industry has rendered the regulatory scheme codified in the Brand Act ineffectual and obsolete.”

National Ag Policy: Perdue Comments on Withdrawal from Paris Accord

On June 2, 2017, U.S. Secretary of Agriculture, Sonny Perdue, made a statement on climate change in response to President Trump’s decision to pull out of the Paris Agreement. Perdue stated that “President Trump promised that he would put America first and he has rightly determined that the Paris accord was not in the best interests of the United States.” For more on Secretary Perdue’s statement, see the full press release here.

Soda Tax: Seattle City Council Approves Soda Tax

The Seattle City Council approved a new tax on sweetened beverages on Monday, June 5, 2017. The Sweetened Beverage Tax calls for beverage distributors of sweetened drinks to pay a tax of $0.0175 per ounce of sweetened drinks distributed. This tax excludes diet drinks. The Washington Post reported that many community groups backed the ordinance thinking it “would direct money to programs aimed at helping working families that can’t afford healthy foods,” as well as, “cut down on the consumption of sugary drinks that have little nutritional value and are linked to obesity, diabetes and other health problems.”

National Ag Policy: Perdue Releases Statement on Final Sugar Agreement with Mexico U.S. Secretary of Agriculture, Sonny Perdue, released a statement June 6, 2017, in response to the final agreement on sugar trade between the U.S. and Mexico. Perdue said “[t]he agreement protects American workers and consumers and marks a dramatic improvement for the U.S. sugar industry.” For more information on Secretary Perdue’s statement, see the full press release here.

Pennsylvania Legislation:

Environmental Resources and Energy Committee (House)

• HB1486: An Act amending the act of October 4, 1978 (P.L.864, No.167), known as the Storm Water Management Act, further providing for definitions and for effect of watershed storm water plans (Referred to committee – June 2, 2017)

Agriculture and Rural Affairs (House)

• HB1494: An Act amending the act of June 28, 1995 (P.L.89, No.18), known as the Conservation and Natural Resources Act, in Department of Conservation and Natural Resources, further providing for contracts and agreements. (Referred to Committee – June 5, 2017)

AgLaw HotLinks:

• “FIRST SUIT BEFORE COURT AGAINST SYNGENTA ABOUT MIR162” – Brownfield Ag News
• “An Urban Farm Grows in Brooklyn” – NY Times
• “Data Integration Leads to Decision Ag” - AgWeb
• “President Trump traveling to Cincinnati Wednesday to talk about inland waterways” – WCPO Cincinnati 
• “Coke, Cargill enter fray as sugar dispute threatens Mexico trade” – Reuters
• “Feeding Young Minds: The Importance of School Lunches” – NY Times
• USDA Releases latest US AG Trade Data – USDA
• “BELTWAY NOTEBOOK: FDA finds compliance with gluten-free labeling rule” – Food  Chemical News
• “Food Allergies Found in Less Than 4 Percent of Americans” – The NY Times
• “PULLOUT FROM PARIS ACCORD WILL HAVE NO IMPACT ON BIOFUELS” – Brownfield Ag News
• “National Farmers Union Open Letter to Trump on Paris Climate Agreement” – National Farmers Union
• “Court closes another door on California egg law challenge” – Feedstuffs
• “California Today: To Fight Climate Change, Heal the Ground” – NY Times
• “White House continues meetings on proposed WOTUS rollback” – Greenwire
• “JURY SELECTION SET TO BEGIN TO BPI’S LAWSUIT AGAINST ABC” – Meatingplace

Follow us on Twitter at Ag & Shale Law (@AgShaleLaw) to receive AgLaw HotLinks

Connect with us on Facebook! Every week we will post the CASL Ledger which details all our publications and activities from the week.

Stay informed with our monthly Agricultural Law Brief located here.

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