Agricultural Law Weekly Review—May 4, 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: FDA Extends Compliance Date to 2018

On May 1, 2017, the U.S. Food & Drug Administration (FDA) announced that the agency “is extending the compliance date for menu labeling requirements from May 5, 2017 to May 7, 2018.” According to FDA, the reason for the extension is to permit “further consideration of what opportunities there may be to reduce costs and enhance the flexibility of these requirements beyond those reflected in the interim final rule.” Additionally, FDA stated that beginning on May 4, 2017, it is inviting comments for sixty (60) days regarding the menu labeling requirements.

School Lunch Program: USDA to Allow More Nutritional Requirement “Flexibility”

On May 1, 2017, the U.S. Department of Agriculture (USDA) announced that the agency “will provide greater flexibility in nutrition requirements for school meal programs in order to make food choices both healthful and appealing to students.” To accomplish this goal, U.S. Secretary of Agriculture Sonny Perdue “signed a proclamation which begins the process of restoring local control of guidelines on whole grains, sodium, and milk.” Secretary Perdue stated that the “announcement is the result of years of feedback from students, schools, and food service experts about the challenges they are facing in meeting the final regulations for school meals.” Secretary Perdue further asserted, “[i]f kids aren't eating the food, and it’s ending up in the trash, they aren't getting any nutrition – thus undermining the intent of the program.”

National Organic Program: Compliant Filed Against Organic Dairy for Alleged Violations

On May 2, 2017, the Cornucopia Institute announced that the organization has filed a formal legal complaint with USDA against Aurora Dairy and the Colorado Department of Agriculture (CDA) for alleged violations of federal organic regulations.  Cornucopia stated that “Aurora Dairy is the largest supplier of ‘private label,’ or store-brand, organic milk in the U.S., supplying such retail giants as Walmart, Costco, [and] Target…” and that CDA is Aurora Dairy’s organic certifier.  Cornucopia asserted that a recent Washington Post investigative story has revealed photographic evidence that Aurora Dairy’s dairy herd is not being pastured as required by organic law.  As a result, Cornucopia requested that USDA investigate Aurora Dairy for possible illegalities.  

International Trade: U.S. Announces Preliminary Countervailing Duty on Canadian Lumber

On April 24, 2017, the U.S. Department of Commerce (Commerce) announced that the department has reached a “preliminary determination in the countervailing duty (CVD) investigation of softwood lumber from Canada.” Commerce stated that “CVD law provides U.S. businesses and workers with an internationally accepted mechanism to seek relief from the injurious effects of unfairly subsidized imports into the United States.” According to Commerce’s preliminary determination, “exporters of softwood lumber from Canada received countervailable subsidies of 3.02 percent to 24.12 percent.” According to Commerce, “[i]n 2016, [U.S.] imports of softwood lumber from Canada were valued at an estimated $5.66 billion.” The press release stated that “[a]s a result of today’s determination, Commerce will instruct U.S. Customs and Border Protection to collect cash deposits based on these preliminary rates.”

International Trade: President Agrees to Remain in NAFTA

On April 26, 2017, the White House Office of the Press Secretary announced that after meeting with President Peña Nieto of Mexico and Prime Minister Trudeau of Canada, “President Trump agreed not to terminate NAFTA at this time.” The press release stated that the three “leaders agreed to proceed swiftly, according to their required internal procedures, to enable the renegotiation of the NAFTA deal to the benefit of all three countries.” President Trump stated that “[i]t is an honor to deal with both President Peña Nieto and Prime Minister Trudeau, and I believe that the end result will make all three countries stronger and better.”

West Virginia Governor Signs Medical Cannabis and Industrial Hemp Legislation

Recently, West Virginia Governor Jim Justice signed into law separate legislation regarding Medical Cannabis and Industrial Hemp.  On April 19, 2017, Governor Justice signed the Medical Cannabis Act which provides seriously ill patients access to medical cannabis (Senate Bill 386).  According to a press release from Governor Justice, as a result of the legislation, “West Virginia is now the 29th state to allow the medical use of cannabis.” On April 25, 2017, Governor Justice signed House Bill 2453 which amended West Virginia’s Industrial Hemp Development Act.  Accordingly, the new legislation expands “the list of persons the Commissioner of Agriculture may license to grow or cultivate industrial hemp.”

GMOs: Syngenta Trials to Begin in Minnesota 

On April 24, 2017, Bloomberg reported that multiple trials were set to begin in Minnesota state court regarding lawsuits brought by farmers and grain handlers against Syngenta AG.  According to Bloomberg, the farmers and grain handlers allege that “Syngenta rushed its Viptera genetically engineered corn, and then a second insect-resistant GMO seed, to market before obtaining import approval from China.” As a result, the farmers and grain handlers assert that “[t]he subsequent rejection of U.S. corn shipments ended up depressing corn prices for five years as China continued to buy from other countries…”

Pennsylvania Legislation:

• HB 187: Allow Wind Energy on Farmland Preservation (Agriculture & Rural Affairs [House], Reported out of committee, April 26, 2017)
• HB 790: Controlled Plant and Noxious Weed Act (Agriculture & Rural Affairs [House], Reported out of committee, April 26, 2017)
• HB 1328: Amending the Recreational Use of Land Liability Law (Referred to Tourism & Recreational Development [House], May 2, 2017) 

Pennsylvania Actions and Notices:

Department of Agriculture

• Application for grants for succession/transition planning under the Agricultural Land Conservation Assistance Grant Program
• Referendum order on proposed amendments to the Pennsylvania Potato Research Program

State Horse Racing Commission

• Out of Competition Testing Program
• Pylon rule

 AgLaw HotLinks:

• "USDA Seeks Nominees for Christmas Tree Promotion Board"- USDA_AMS
• "Trump tells farmer roundtable labor issues need to be addressed" - Brownfield
• Colorado country of origin beef bill defeated in committee -FencePostNews
• "America's $1.2 Billion Mexico Milk Trade is Now at Risk" - AgWebEditor
• "FDA asks Ninth Circuit to sink GE salmon order" - FoodChemicalNews
• "Liability Limits on Hog Farm Nuisance Awards Passes Senate" - AgWebEditor
• "68 Congressmen Urge President to Take 'Swift Action' on Canadian Dairy Issue" -MilkBusiness
• "Italy wants to introduce origin labeling on rice" -  FoodChemicalNews
• White House to look at immigration reform to help farmers - AgWeb
• Nat'l Organic Standards Board votes in favor of Organic Livestock & Poultry Practices rule – BNPcamp
• "USDA to begin feedlot antimicrobial-use survey" - Drovers 

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Agricultural Law Weekly Review: January 22, 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:

Oil and Gas: Court Rules Compressor Station May be built Next to Farm
On January 7, 2016, the Commonwealth Court of Pennsylvania determined that the New Sewickley Township Board of Supervisors (Beaver County, PA) acted properly when the Township agreed to permit the construction of a gas compressor station on land adjacent to an organic farm (Kretschmann Farm, LLC v. Twp. Of New Sewickley, No. 360 C.D. 2015). According to the Court, the organic farmers' failed to present evidence that: 1) the proposed gas compressor station would cause harm to the “health, safety, and well-being of the Township’s residents;” or 2) the Township’s action was a violation of United States and Pennsylvania constitutional rights.  

HPAI: Government Confirms HPAI in Indiana Commercial Turkey Flock
On January 15, 2016, the United States Department of Agriculture (USDA) Animal and Plant Health Inspection Service (APHIS) issued a press release confirming the detection of Highly Pathogenic Avian Influenza (HPAI) in an Indiana commercial turkey flock.  According to USDA APHIS, the strain of HPAI detected in the flock is H7N8, “a different strain of HPAI than the strains that caused the 2015 outbreak.” As of January 22, 2016, the Indiana State Board of Animal Health reported the depopulation of 414,503 turkeys suspected of being infected with H7N8.   

WOTUS: President Vetoes Measure to Overturn WOTUS; Senate Blocks Veto Override
On January 20, 2016, President Obama vetoed a joint resolution of Congress (S.J.RES.22) that would have overturned “the rule submitted by the Corps of Engineers and the Environmental Protection Agency relating to the definition of ‘waters of the United States’ under the Federal Water Pollution Control Act.” On January 21, 2016, the U.S. Senate voted 52-40 to override the President’s veto.  The Senate’s action, however, fell eight votes short of the majority number required to override a presidential veto.

Immigration: Supreme Court to Hear Challenge to President’s Actions on Immigration
On January 19, 2016, the U.S. Supreme Court announced that it will hear a case brought by 26 states challenging President Obama’s executive action authority regarding the federal immigration programs Deferred Action for Parents of Americans and Deferred Action for Childhood Arrivals (United States, et al. v. Texas, et al., CaseNo. 15-674).   

Raw Milk: Illinois Legalizes Raw Milk Sales
On January 13, 2016, the Illinois Joint Commission on Administrative Rules approved regulations that now allow the on-farm sale of raw milk by producers that acquire a permit issued by the Illinois Department of Health.  The new regulations are scheduled to take effect on July 1, 2016.

Legislation: Agreement Reached on School Nutrition Standards
On January 15, 2016, the School Nutrition Association (SNA) issued a press release announcing that the organization had “worked collaboratively with the US Department of Agriculture (USDA), the White House and the Senate Agriculture Committee to reach an agreement to improve nutrition standards for school meals.” According to the press release, the agreement is scheduled for inclusion in the Senate Agriculture Committee’s Child Nutrition Reauthorization bill. 

Food Policy Update: Federal 2015-2020 Dietary Guidelines Endorse Lean Meats, Lean Poultry, and Eggs

Written by M. Sean High - Staff Attorney

On January 7, 2016, the Federal Government released the 2015-2020 Dietary Guidelines for Americans, 8th Edition.  Published every five years for public health officials, the Federal Dietary Guidelines are produced in a joint effort between the U.S. Department of Health and Human Services (HHS) and the U.S. Department of Agriculture (USDA).  

According to the 2015-202 Dietary Guidelines for Americans:

The main purpose of the Dietary Guidelines is to inform the development of Federal food, nutrition, and health policies and programs. The primary audiences are policymakers, as well as nutrition and health professionals, not the general public. The Dietary Guidelines is a critical tool for professionals to help Americans make healthy choices in their daily lives to help prevent chronic disease and enjoy a healthy diet. It serves as the evidence-based foundation for nutrition education materials that are developed by the Federal Government for the public.

While the Dietary Guidelines are not legally binding regulations, they are extremely influential in determining what food is made available through Federal food programs such as the school lunch program.  Just as important, the Dietary Guidelines can have a significant effect on consumer perceptions and often sway food purchasing decisions.  

Of significance to the agricultural industry, the 2015-2020 Dietary Guidelines for Americans stated that “[f]or those who eat animal products, the recommendation for the protein foods subgroup of meats, poultry, and eggs can be met by consuming a variety of lean meats, lean poultry, and eggs.”

On January 7, 2016, the National Cattleman’s Beef Association issued a press release praising “HHS Secretary Sylvia Burwell and USDA Secretary Tom Vilsack for ensuring the final recommendations were based on the latest nutrition evidence available.”  The press release quoted Texas cattle producer and physician Dr. Richard Thorpe who expressed his appreciation that the guidelines were based on the latest nutrition science.  Dr. Thorpe stated that “[n]umerous studies have shown positive benefits of lean beef in the diet, and I commonly encourage my patients to include beef in their diet to help them maintain a healthy weight and get the nutrients they need to be physically active.”