Ag Law Weekly Review - October 31, 2019

Written by: 

Brook Duer —Staff Attorney

Audry Thompson—Research Assistant

           

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

Industrial Hemp/Cannabis: USDA Releases Interim Final Rule for Domestic Hemp Production

On October 29, 2019, USDA publicly announced and released the text of its interim regulations governing domestic hemp production.  The interim final rule implements Section 10113 of the 2018 Farm Bill and various new sections of the Agricultural Marketing Act of 1946, which it amended. Once published in the Federal Register, the rule will be immediately effective and expire after two years.  In the meantime, there will be a 60-day comment period and thereafter USDA anticipates issuing its final rule.  The rule adds new part 990 (“Domestic Hemp Production”) to 7 CFR. As stated in the 2018 Farm Bill, states wishing to have primary authority over hemp production must have a USDA-approved hemp production plan. Subpart B of new part 990 outlines the mandatory components and the approval and amendment processes for a state plan, as well as containing material provisions of interest regarding acreage reporting to states and FSA, grower data sharing with USDA, hemp sampling and THC testing, disposal of “hot” plants, and annual inspections.  In the absence of a USDA-approved plan, Subpart C governs hemp production through the application and issuance a USDA-issued hemp producer license and its compliance requirements.  Subpart E contains a provision stating that no state may prohibit the transportation of hemp or hemp products through their state if legally produced under federal law.  The interim final rule does not address import/export of seed or plant material or extracts, nor does it address seed certification. Those issues remain unchanged as presently regulated.

WOTUS:  Lawsuits Challenge Repeal of 2015 WOTUS Rule 

After the October 22, 2019, EPA repeal of the 2015 WOTUS Rule and simultaneous reinstitution of the pre-existing WOTUS regulatory framework dating to the 1980s, immediate legal action was taken by at least two interest groups to challenge that action. 

• On October 22, 2019, the New Mexico Cattle Growers’ Association filed a lawsuit in New Mexico federal court claiming the reinstitution of the old regulatory framework was unconstitutional.  New Mexico Cattle Growers' Association v. U.S. Environmental Protection Agency et al., 1:19-cv-00988. The suit alleges, among other things, that: (a) the result of EPA’s action is an unconstitutional delegation of legislative authority to an agency; (b) the term “navigable waters” should be declared void for vagueness; (c) the former interpretation and application of navigable waters was already rejected by the U.S. Supreme Court in the 2006 Rapanos v. U.S. case. 
• On October 23, 2019, a collection of environmental groups filed a lawsuit in South Carolina federal court alleging that the repeal and reinstitution of the old rule violated the Administrative Procedure Act, and interpretative caselaw, in multiple ways and should be invalidated. South Carolina Coastal Conservation League, et al. v. U.S. Environmental Protection Agency, et al., 2:19-cv-03006. 

EPA’s repeal becomes effective December 23, 2019, and thus far no federal court has entertained or granted an injunction preventing the repeal from taking effect. 

Pesticides: EPA Proposes New Rule on Pesticide Application Exclusion Zone Requirements

On October 24, 2019, the U.S. Environmental Protection Agency (EPA) announced a proposed rule to be published in the Federal Register revising the Application Exclusion Zone (AEZ) requirements of the Worker Protection Standard (WPS).  The AEZ refers to the area around an on-going pesticide application that acts as a buffer zone to prevent unnecessary human contact with the pesticide.  According to EPA, the proposed changes would limit an AEZ to the boundaries of a farmer’s own property, provide exemptions for immediate family members, simplify criteria for determining whether a 100-foot or a 25-foot AEZ should apply, and clarifies when to resume an application that has been suspended due to human entry into the AEZ.  In the announcement and proposed rule, EPA points out that persons outside a farm’s boundaries are still protected by the existing rule’s “do not contact” provisions prohibiting pesticide contact with all known persons, within or outside property lines.  Once published, a 90-day comment period will commence.    

Food Labeling: FDA States Enforcement Stance on New Nutrition Facts Labeling

On October 23, 2019, food manufacturers received information from the U.S. Food and Drug Administration (FDA) regarding enforcement of the long-pending required amendment of  Nutrition and Supplement Facts Labeling (81 FR 33741) set to take effect for large manufacturers (total sales in excess of $10 million) on January 1, 2020.  In response to a September 30, 2019 letter from the Food & Beverage Issue Alliance (“Alliance”) requesting, among other things, a “six-month period of enforcement discretion,” FDA revised the compliance language on its webpage devoted to the new labeling to read: “During the first 6 months following the January 1, 2020, compliance date, FDA plans to work cooperatively with manufacturers to meet the new Nutrition Facts label requirements and will not focus on enforcement actions regarding these requirements during that time.”

Pesticides: EU Approves Ban of Another Neonicotinoid Harmful to Pollinators  

On October 22, 2019, the majority of European Union (EU) countries approved the proposal of the European Commission not to extend approval of the use of the pesticide thiacloprid after its current approval expires on April 30, 2020.  Thiacloprid is a neonicotinoid sold by Bayer CropScience under the brand name Biscaya, and has been linked to harm to pollinators.  A July 2019 EU notification to the World Trade Organization of the impending action also states that harmful effects on human health and groundwater cannot be ruled out.  According to Bloomberg News, Bayer CropScience submitted a letter to EPA in 2013 voluntarily canceling all its thiacloprid product registrations in the United States.  This is the fourth neonicotinoid to be banned for outdoor use in the EU. Thiacloprid use increased as a replacement for three previously banned neonicotinoids. Use of one remaining neonicotinoid, acetamiprid, is authorized in the EU but is characterized as relatively low toxicity.  

Farm Bill:  USDA, DOE Collaborate on Rural Energy Technology Development 

On October 25, 2019, U.S. Department of Agriculture (USDA) and U.S. Department of Energy (DOE) announced the execution of a memorandum of understanding (MOU) pursuant to Section 6501 of the 2018 Farm Bill to collaboratively promote investment in rural energy infrastructure and the development of energy-related technologies and manufacturing in rural and agricultural communities. An interagency working group is to be established to implement the MOU’s terms and prepare a yearly report of actions and projects.  This MOU results from the 2017 establishment of, and resulting report from, the Task Force on Agriculture and Rural Prosperity, which recommended the development of all sources of energy including renewable sources to bolster rural prosperity. 

From National Ag Law Experts:

Tiffany Dowell Lashmet, Livestock and Community Property (October 28, 2019) 

Brigit Rollins, Protecting the Nest: Court Upholds Protections for Sage Grouse (October 24, 2019)

Penn State Research:

Katie Bohn, One Avocado A Day Helps Lower 'Bad' Cholesterol For Heart Healthy Benefits (October 28, 2019)

Behrend Students Discover Invasive Shrimp Species in Lake Erie (October 22, 2019)

Pennsylvania Department of Agriculture:

“Wolf Administration Announces $500,000 Available to Improve Elementary School Access to Healthy, Local Foods” (October 24, 2019)

Pennsylvania Executive Agencies—Actions and Notices:

Department of Agriculture

“Program Requirements for the Agriculture and Youth Organization Grant Program” (October 26, 2019)

Department of Environmental Protection

“2020 Environmental Education Grants; Notice of Availability” (October 26, 2019)

“The Clean Streams Law and the Federal Clean Water Act: Applications for National Pollutant Discharge Elimination System (NPDES) Permits and Water Quality Management (WQM) Permits” (October 26, 2019)

“National Oceanic and Atmospheric Administration Performance Evaluation of the Pennsylvania Coastal Resources Management Program; Public Meeting and Availability of Public Comment Period” (October 26, 2019)

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” (October 26, 2019)

Susquehanna River Basin Commission

“Grandfathering Registration Notice” (October 26, 2019)

“Projects Approved for Consumptive Uses of Water” (October 26, 2019)

Pennsylvania Legislature

H.B.1085 “An Act repealing the act of June 22, 1935 (P.L.414, No.182), known as the State Personal Property Tax Act” Presented to Governor (October 29, 2019)

S.B.147 “An Act amending Title 34 (Game) of the Pennsylvania Consolidated Statutes, in Pennsylvania Game Commission, further providing for accountability; and, in hunting and furtaking, further providing for hunting on Sunday prohibited and for trespass on private property while hunting and providing for hunting on Sunday without written permission,” Re-reported as Committed (October 29, 2019)

House Agriculture and Rural Affairs Committee

H.B.918 “An Act repealing the act of May 20, 1857 (P.L.617, No.658), entitled ‘An act making an Appropriation from the State Treasury, in aid of the Farmers' High School,’” Committee Vote—Report Bill as Amended (October 23, 2019)

H.B.1223 “An Act providing for the creation of keystone opportunity dairy zones to facilitate the economic development of Pennsylvania's dairy industry; authorizing expenditures; providing tax exemptions, tax deductions, tax abatements and tax credits; creating additional obligations of the Commonwealth and local governmental units; and prescribing powers and duties of certain State and local departments, agencies and officials,” Committee Vote—Report Bill as Amended (October 23, 2019)

H.B.1224 “An Act amending the act of April 28, 1937 (P.L.417, No.105), known as the Milk Marketing Law, in purpose, short title and definitions, further providing for definitions and construction; in general powers of the board, providing for coordination with Department of Revenue; and, in prices of milk, further providing for cooperatives,” Committee Vote—Report Bill as Committed (October 23, 2019)

H.B.1775 “An Act amending the act of May 15, 1945 (P.L.547, No.217), known as the Conservation District Law, providing for legislative report,” Committee Vote—Report Bill as Amended (October 23, 2019)

Federal Executive Agencies—Actions and Notices:

Agricultural Marketing Service

“National Organic Program; Amendments to the National List of Allowed and Prohibited Substances per April 2018 NOSB Recommendations (Crops and Handling),” Final Rule (October 23, 2019)

“Reorganization and Transfer of Regulations; Correction,” Final Rule (October 23, 2019)

Animal and Plant Health Inspection Service

“Concurrence with OIE Risk Designations for Bovine Spongiform Encephalopathy,” Notice (October 25, 2019) 

“Request for Revision to and Extension of Approval of an Information Collection; Introduction of Organisms and Products Altered or Produced Through Genetic Engineering,” Notice (October 25, 2019)

Delaware River Basin Commission

“Notice of Public Hearing and Business Meeting; November 13 and December 11, 2019,”  Notice (October 29, 2019)

Environmental Protection Agency

“Thirty-Sixth Update of the Federal Agency Hazardous Waste Compliance Docket,” Notice (October 28, 2019)

“Renewable Fuel Standard Program: Standards for 2020 and Biomass-Based Diesel Volume for 2021, and Response to the Remand of the 2016 Standards; Supplemental Notice of Proposed Rulemaking,” Proposed Rule (October 28, 2019)

“Receipt of a Pesticide Petition Filed for Residues of Pesticide Chemicals in or on Various Commodities (September 2019),” Proposed Rule (October 28, 2019)

“Mandipropamid; Pesticide Tolerances,” Final Rule (October 28, 2019)

“Pesticide Product Registration; Receipt of Applications for New Uses (September 2019),” Notice (October 25, 2019)

“Notice of Receipt of Requests to Voluntarily Cancel Certain Pesticide Registrations and Amend Registrations To Terminate Certain Uses,” Notice (October 25, 2019)

“Sulfoxaflor; Pesticide Tolerances,” Final Rule (October 25, 2019)

“Pesticide Product Registration; Receipt of Applications for New Active Ingredients (September 2019),” Notice (October 25, 2019)

“Pesticide Program Dialogue Committee (PPDC); Notice of Charter Renewal,” Notice (October 25, 2019)

“Fenbuconazole; Pesticide Tolerances,” Final Rule (October 25, 2019)

“Proposed Reissuance of NPDES General Permit for Concentrated Animal Feeding Operations Located in Idaho,” Notice (October 23, 2019)

Fish and Wildlife Service

“Federal Fish and Wildlife Permit Applications and Reports-Migratory Birds,” Notice (October 28, 2019)

“Migratory Bird Harvest Information Program and Migratory Bird Surveys,” Notice (October 24, 2019)

“Endangered and Threatened Wildlife and Plants; Removal of the Interior Least Tern From the Federal List of Endangered and Threatened Wildlife,” Proposed Rule (October 24, 2019)

“Endangered Species; Receipt of Recovery and Interstate Commerce Permit Applications,” Notice (October 23, 2019)

Food and Drug Administration

“Food Labeling: Calorie Labeling of Articles of Food Sold From Certain Vending Machines; Front of Package Type Size,” Final Rule (October 28, 2019)

Food and Nutrition Service

“Supplemental Nutrition Assistance Program: State Agency Options for Standard Utility Allowances and Self-Employment Income,” Notice (October 25, 2019)

Food Safety and Inspection Service

“Changes to the Salmonella Verification Testing Program: Proposed Performance Standards for Salmonella in Raw Ground Beef and Beef Manufacturing Trimmings and Related Agency Verification Procedures,” Notice (October 28, 2019)

Partnerships and Public Engagement Office

“Advisory Committee on Beginning Farmers and Ranchers,” Notice (October 25, 2019)

U.S. House Agriculture Committee Actions: 

H.R.4885 “To amend Public Law 87-788 (commonly known as the McIntire-Stennis Cooperative Forestry Act; 16 U.S.C. 582a-7) to provide for equal treatment of the District of Columbia with respect to funds made available under that Act,” Introduced; Referred to House Committee on Agriculture (October 28, 2019)             

H.R.4881 “To amend the Federal Food, Drug, and Cosmetic Act to ensure that consumers can make informed decisions in choosing between meat products such as beef and imitation meat products, and for other purposes,” Introduced; Referred to Committee on Energy and Commerce and Committee on Agriculture (October 28, 2019)

H.R.4874 “To amend the Department of Agriculture Reorganization Act of 1994 to establish the Rural Innovation and Partnership Administration and to amend the Consolidated Farm and Rural Development Act to establish the Rural Future Partnership Fund to invest in the rural areas of the United States to achieve their preferred future while maximizing their contribution to the well-being of the United States, and for other purposes,” Introduced; Referred to Committee on Agriculture, Committee on Financial Services, and Energy and Commerce (October 28, 2019)

S.2107 “Protecting America's Food and Agriculture Act of 2019,” Referred to Committee on Homeland Security and Committee on Agriculture (October 28, 2019)

H.R.4820 “To amend the Department of Agriculture Reorganization Act of 1994 to provide assistance to manage farmer and rancher stress and for the mental health of individuals in rural areas, and for other purposes,” Introduced; Referred to House Committee on Agriculture (October 23, 2019)

H.R.4816 “To amend the Commodity Exchange Act to modify provisions relating to whistleblower incentives and protection, and for other purposes,” Introduced; Referred to Committee on Agriculture and Committee on Oversight and Reform (October 23, 2019)

H.R.4813 “To prohibit large platform utilities from being a financial institution or being affiliated with a person that is a financial institution, and for other purposes,” Introduced; Referred to Committee on Financial Services and Committee on Agriculture (October 23, 2019)

H.R.4642 “Community Broadband Mapping Act,” Referred to Subcommittee on Commodity Exchanges, Energy, and Credit (October 22, 2019)

U.S. Senate Agriculture, Nutrition, And Forestry Committee Actions: 

S.2692 “A bill to amend the Richard B. Russell National School Lunch Act to improve direct certification, and for other purposes,” Introduced (October 24, 2019)

S.2695 “A bill to authorize the Secretary of Agriculture to provide for the defense of United States agriculture and food through the National Bio and Agro-Defense Facility, and for other purposes,” Introduced (October 24, 2019)

S.2704 “A bill to amend the Department of Agriculture Reorganization Act of 1994 to establish the Rural Innovation and Partnership Administration and to amend the Consolidated Farm and Rural Development Act to establish the Rural Future Partnership Fund to invest in the rural areas of the United States to achieve their preferred future while maximizing their contribution to the well-being of the United States, and for other purposes,” Introduced (October 24, 2019)

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

“Map Shows How Food Gets from Farms to Your Home” (October 27, 2019)

“Sunday Hunting Bill Moves on in Pennsylvania Legislature” (October 25, 2019)

“Study Shows Risk of ASF Entered U.S. Has Doubled” (October 25, 2019) 

“Harnessing the Power of Data to Improve Agricultural Policy and Conservation Outcomes” (2019)

“Northeast Dairy Co-op to Dock Farmers for Overproduction” (October 24, 2019) 

“PepsiCo Leaning In on Sustainability Goals: ‘Companies Like Us No Longer Have a Choice’” (October 23, 2019) 

“NIFA Grants Help Fund Farmer Stress Network” (October 22, 2019)

“FDA Proposes Animal Antibiotics Go Behind the Counter” (October 22, 2019) 

“USDA Launches Economic Development Hubs” (October 22, 2019) 

“Rural & Ag Groups Reaffirm Opposition to STELAR” (October 22, 2019) 

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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:

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

Agricultural Law Weekly Review—November 17, 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:

WOTUS: Members of Congress File Amicus Brief Opposing EPA and Army Corps of Engineers Final Rule

On November 8, 2016, twenty-one members of the U.S. Senate and sixty-seven members of the U.S. House of Representatives filed an amicus brief with the Sixth Circuit Court of Appeals calling for the court to vacate the Environmental Protection Agency and the Army Corps of Engineers final Waters of the United States (WOTUS) rule to redefine the Federal Water Pollution Control Act’s term “navigable waters” (Murray Energy Corp., et al. v. U.S. Environmental Agency, et al., Case:15-3751 Document: 138).  According to the brief, “the Agencies are encroaching on traditional state authorities over land use and water quantity (as opposed to water quality), contrary to the clear text and intent of the [Federal Water Pollution Control Act] 1972 Amendments, its legislative history, and the Supreme Court’s decision in SWANCC, which warned that such an attempt to expand agency jurisdiction should receive no judicial deference.”

Right to Farm: Oklahoma Voters Reject Constitutional Amendment

On November 8, 2016, Oklahoma voters defeated a proposal to amend the state constitution to include the right to farm and ranch (State Question 777). The defeated proposed amendment would have provided Oklahoma’s farmers and ranchers with a guarantee right to make use of: (1) agricultural technology; (2) livestock procedures; and (3) ranching practices.  According to the opponents of State Question 777, the amendment “would [have been] used to prevent the state and local governments from passing laws to protect small farmers and provide reasonable regulations regarding food and water quality, environmental protections, and animal cruelty…[and] would [have] give[n] large, corporate farms an advantage over small, local farms.” 

Labeling: USDA Announces Nutrition Facts Label Compliance

On November 16, 2016, the United States Department of Agriculture (USDA) Food Safety and Inspection Service (FSIS) published a notice in the Federal Register entitled: Nutrition Facts Label Compliance (81 FR 80631).  According to FSIS, the agency is currently in the process of rulemaking to update the Nutrition Facts label format for meat and poultry products.  Until the final rule is published, FSIS stated that “establishments may voluntarily choose to use the Nutrition Facts label format that the Food and Drug Administration (FDA) recently finalized (“Food Labeling: Revision of the Nutrition and Supplement facts labels”, May 27, 2016; 81 FR 33742; and “Food Labeling: Serving Sizes of Foods That Can Reasonably be Consumed at One-Eating Occasion; Dual-Column Labeling; Updating, Modifying, and Establishing Certain Reference Amounts Customarily Consumed; Serving Size for Breath Mints; and Technical Amendments”; May 27, 2016; 81 FR 34000).” According to FSIS, “[a]s long as the information on the labels is still truthful and not misleading, FSIS will not find noncompliance if companies use the FDA format.”

Water: NRCS Announces Availability of Soil Erodibility System Calculations

On November 17, 2016, the United States Department of Agriculture (USDA) Natural Resources Conservation Service (NRCS) published notice in the Federal Register entitled: Notice of Implementation of the Water Erosion Prediction Project (WEPP) Technology for Soil Erodibility System Calculations for the Natural Resources Conservation Service (81 FR 81053).  According to NRCS, the notice announces “the intention of NRCS to implement the WEPP technology to replace the use of the Revised Universal Soil Loss Equation, Version 2 (RUSLE2), where applicable.” The comment period regarding the proposed change closes December 19, 2016.

Pesticides: EPA Revises Chlorpyrifos Health Risks

On November 10, 2016, the United States Environmental Protection Agency (EPA) announced that the agency has revised its analysis of the human health risks from chlorpyrifos.  According to EPA, “[t]he revised analysis indicates that expected residues of chlorpyrifos on most individual food crops exceed the “reasonable certainty of no harm” safety standard under the Federal Food, Drug, and Cosmetic Act (FFDCA).  As a result, “EPA is announcing and inviting comment on additional information obtained and developed by EPA in conjunction with the proposed tolerance revocation for chlorpyrifos.” 

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

Recent AgLaw HotLinks include:

“USDA marking Veterans Day with push for vets to seek ag careers” -AgriPulse

MA animal rights ballot passed; bans confinement of farm animals within the state -Brownfield

USDA releases annual report, Ag Secretary Tom Vilsack talks about rural job growth -USDA

Farm Bureau talks about importance of Trans-Pacific Partnership trade agreement -Brownfield

Voters in Sonoma County, CA ban growing GMO crops in their county -Brownfield

Rabobank predicts changes in ag “trade agreements, labour policies, and business regulations…” -Rabobank

Uncertainties grow for the 2018 Farm Bill with new administration -Brownfield

Stay informed with our monthly Agricultural Law Brief located here.

Agricultural Law Weekly Review: February 19, 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:

GE Crops: APHIS Publishes Notice of Intent to Deregulate Monsanto GE Maize 

On February 17, 2016, the United States Department of Agriculture (USDA) Animal and Plant Health Inspection Service (APHIS) published notice in the Federal Register regarding Monsanto Co.’s request to deregulate genetically engineered (GE) maize designated as event MON 87419.  According to the published notice, “APHIS has determined that maize designated as event MON 87419 is unlikely to pose a plant pest risk” and as a result, APHIS has made “a preliminary determination of nonregulated status of maize designated as event MON 87419.” Comments on the published notice will be received for 30 days from the date of publishing in the Federal Register. 

Raw Milk:  FDA Announces Reevaluation of Testing of Raw Milk Cheese 

On February 8, 2016, the United States Food and Drug Administration (FDA) issued a press release announcing that FDA will reevaluate the testing of raw milk cheese for non-toxigenic E. coli.  The press release stated that FDA was responding to concerns raised by cheese makers “suggesting that the FDA is applying safety criteria that may, in effect, limit the production of raw milk cheese without demonstrably benefiting public health.” According to the press release, FDA “will continue to inspect cheese-making facilities and test for pathogens in domestic and imported cheese but, in the meantime, FDA is in the process of pausing its testing program for non-toxigenic E. coli in cheese.”

Labeling: Court Affirms Federal Authority over Meat and Poultry Labeling 

On February 12, 2016, the United States Court of Appeals for the Ninth Circuit affirmed a lower court ruling that California was barred from “enforcement of California’s statutory prohibition against nonfunctional slack fill (i.e., empty space between a product and its packaging that serves none of a list of specified purposes)…as applied to meat and poultry products” (Case No. 13-16893).  The Court held that “California’s nonfunctional slack fill provisions…are expressly preempted by the Federal Meat Inspection Act (“FMIA”) and the Poultry Products Inspection Act (“PPIA”)” and that “Congress intended to allow meat and poultry packaging to be subject to less specific regulation than other types of product packaging.”

Labor: Class Action Brought Against Meat Processor over Employment of Illegal Workers 

On February 16, 2016, a class action lawsuit was filed in the United States District Court for the Northern District of India on behalf of hourly-paid production workers at the Indiana Packers Company’s (IPC) meat processing facility (Case No. 4:16-cv-00015-JD-JEM).  The class action lawsuit was brought pursuant to the Racketeer Influenced and Corrupt Organizations Act (RICO) and alleged that IPC engaged in “a scheme to employ vast numbers of illegal immigrants at the plant [in an effort] to depress wages.” According to the filed complaint, IPC carried out its “scheme” by knowingly hiring illegal workers and making false attestations on I-9 Forms that the illegal workers were authorized for employment in the United States.

SNAP: USDA Proposes Rule to Require Healthier Choices 

On February 17, 2016, the United States Department of Agriculture (USDA) published a proposed rule in the Federal Register “to make changes to the Supplemental Nutrition Assistance Program (SNAP) regulations pertaining to the eligibility of SNAP retail food stores.”  According to the proposed rule, SNAP-authorized retailer food stores will be required to stock a wide variety of healthy foods so that SNAP program recipients will be provided with increased access to healthy food options.  Comments on the proposed rule will be received for 60 days from the date of publishing in the Federal Register.

Warning! High Salt Content

Written by Stephen Kenney

On Wednesday, September 9, 2015, the New York City Board of Health voted unanimously to require that chain eateries put a warning label on menu items that have more than the recommended daily limit of 2,300 milligrams of sodium.  That is the equivalent of about a teaspoon.   The high salt content items will have to be marked with a saltshaker encased in a black triangle.  

The regulation was published in the City Record on June 23, 2015.  The vendor is also required to post a warning that says: “Warning (picture of salt symbol) indicates that the sodium (salt) content of this item is higher than the total daily recommended limit (2300 mg).  High sodium intake can increase blood pressure and risk of heart disease and stroke.”   The warning must be posted at a point of purchase in the restaurant or in other words “any place where a customer may order food within an establishment.

The requirement is set to take effect on December 1.  Violators would be punished by a $200 fine which would be enforced by city health inspectors.  Restaurants along with some movie theaters and ballparks would be required to comply with the warning if the establishment is “part of a chain with 15 or more locations doing business under the same name and offering for sale substantially the same menu items.”

The Board of Health reasoned that this label was necessary because it believes that sodium is a major contributor to cardiovascular disease.  The notice of adoption of the regulations also cites studies that purport that 95% of Americans consume more than the recommended daily limit of sodium and that restaurant food is a primary source of sodium.  The New York Board of Health also referenced studies that argued that consumers typically underestimate the sodium content of restaurant food and foods that are often considered healthy, such as salads, often have high salt content. 

Seafood Processor Sentenced for Fraud

Written by Tyler R. Etter

On August 11, 2015, Alphin Brothers Inc., a North Carolina seafood processor, was sentenced in federal court for falsely labeling imported shrimp. The sentencing follows a plea agreement made on February 10, 2015, where Alphin Brothers plead guilty to one count of making or submitting false records, a violation of the Lacey Act.

According to court documents, the company directed employees and another processing facility to label approximately 25,000 pounds of farm-raised, imported shrimp as a wild-caught “product of the United States.” The mislabeling is against the Country of Origin Labeling (COOL) regulations of the United States. The Lacey Act makes it illegal to “make or submit any false record, account, or label for...any fish or wildlife...intended to be imported, transported, purchased or received from any foreign country, or transported in interstate or foreign commerce.”

The company will have to pay a criminal fine of $100,000, as well as forfeit 21,450 pounds of shrimp. Further, the company will serve three years of probation, and be required to implement a training program to educate employees on federal labeling requirements.

Lisa Weddig, Secretary of the Better Seafood Bureau (BSB), commented on the case, stating “This case is an example of coordinated law enforcement, both state and federal, working together with the tools they already have to crack down on fish fraud.” Weddig emphasized the use of the pre-existing Lacey Act and coordination to show that enforcement and punishing these crimes do not require new laws or regulations.

COOL Dispute Arbitration Date Set

By Tyler R. Etter

A date has been set by the World Trade Organization’s Dispute Settlement Body for the arbitration hearing on Canada and Mexico’s retaliatory tariffs against the United States in response to Country of Origin Labeling (COOL). At the request of the parties, the hearing will be open to the public, occurring on September 15 and 16, 2015.

A decision in May found the mandatory COOL labeling to be in violation of the United States’ international obligations to Canada and Mexico. The two nations are seeking over $3 billion in retaliatory tariff measures against U.S. goods. The U.S. has requested a decision rejecting the proposed damages, instead setting totals at $43.22 million and $47.55 million.

The U.S. House of Representatives has since passed a bill to repeal COOL, but the Senate has passed competing measures. One proposal is for the creation of a voluntary “Product of the U.S.” label, and another would repeal COOL for beef, pork, and chicken from the surface transportation bill.

Canada and Mexico have already voiced opposition to the voluntary label, and will proceed if COOL is not fully repealed.