Agricultural Law Weekly Review—January 5, 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:

International Trade: Public Hearing Scheduled on EU Beef Import Ban

On December 28, 2016, the Office of the United States Trade Representative (USTR) published notice in the Federal Register of a public hearing to discuss the possible reinstatement of trade actions against the European Union (EU) for bans on beef importation (81 FR 95724).  According to the notice, currently “[t]he EU bans the import of beef and beef products produced from animals to which any of six hormones have been administered for growth-promotion purposes.” The announced meeting is scheduled to take place before the Section 301 Committee, in Washington D.C., on February 15, 2017.

Raw Milk: PDA Issues Warning about Contaminated Cheese

On December 29, 2016, the Pennsylvania Department of Agriculture (PDA) issued a consumer warning regarding certain batches of raw milk cheese produced by Stone Meadow Farm in Centre County.  According to PDA, samples taken from the dairy by department inspectors tested positive for the bacteria Staphylococcus Aureus.  PDA stated that “[n]o illnesses have been reported that could be associated with the cheeses, which were sold between October 2016 and mid-December 2016.”

Labeling: FDA Extends Comment Period for Labeling of the Term “Healthy”

On December 30, 2016, the United States Food and Drug Administration (FDA) published notice in the Federal Register that the agency is extending the comment period regarding the use of the term “healthy” in the labeling of human food products (81 FR 96404).  Previously, the comment period was scheduled to close on January 26, 2017.  As a result of the FDA action, the comment period has been extended an additional 90 days until April 26, 2017.

Labeling: FDA Clarifies Compliance Date for Nutritional Labeling of Menu Items

On December 30, 2016, the United States Food and Drug Administration (FDA) published notice in Federal Register of a final rule clarifying the compliance date for the labeling of certain nutritional information for menu items in certain restaurants and retail food establishments (81 FR 96364).  According to FDA, previous notice stated that enforcement of the labeling regulation would begin on May 5, 2017, but no formal change had been made to the compliance date through rulemaking.  With the most recent notice, FDA formally confirmed that the compliance date for the menu regulation is also May 5, 2017.

Farm Succession: USDA to Offer Early Termination Opportunity for Certain CRP lands

On December 29, 2016, the United States Department of Agriculture (USDA) announced that beginning January 9, 2017 the department “will offer an early termination opportunity for certain Conservation Reserve Program (CRP) contracts, making it easier to transfer property to the next generation of farmers and ranchers, including family members.”  According to USDA, “[t] he land that is eligible for the early termination is among the least environmentally sensitive land enrolled in CRP.” USDA stated, that “[n]ormally if a landowner terminates a CRP contract early, they are required to repay all previous payments plus interest.” Under the new policy, however, repayment is waived “if the land is transferred to a beginning farmer or rancher through a sale or lease with an option to buy.”

International Trade: U.S. Wins Dispute Regarding Indonesia Trade Barriers to Agricultural Products

On December 22, 2016, the Office of the United States Trade Representative (USTR) announced that “a World Trade Organization (WTO) dispute settlement panel has found in favor of the United States’ challenge to Indonesia’s wide-ranging restrictions and prohibitions on horticultural products, animals, and animal products.” According to USTR, “[t]he United States, working closely with New Zealand as co-complainant, filed this dispute to address trade barriers in Indonesia that restrict the importation of American fruits and vegetables (such as apples, grapes, and potatoes), animal products (such as beef and poultry), and other agricultural products.” USTR stated that “[t]he WTO Panel agreed with the United States on 18 out of 18 claims that Indonesia is applying import restrictions and prohibitions that are inconsistent with WTO rules.”

Animal Drugs: FDA Amends Regulation for Animal Drugs Used in Animal Feed

On December 27, 2016, the United States Food and Drug Administration (FDA) published notice in the Federal Register that the agency “is amending the animal drug regulations to reflect approval of 71 supplemental new animal drug applications (NADAs) and 35 supplemental abbreviated new animal drug applications (ANADAs) for revised labeling reflecting a change in marketing status from over-the-counter (OTC) use to use by veterinary feed directive (VFD) for antimicrobial drugs of importance to human medicine administered to food-producing animals in medicated feed” (81 FR94991).  FDA stated, that where applicable, the agency “is also withdrawing approval of those parts of the NADAs that pertain to use of these antimicrobial drugs for growth promotion indications.”

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Recent AgLaw HotLinks include:

• World Organization for Animal Health creates online portal to coordinate bird flu information - Feedstuffs
• “Farmers cultivating success as direct marketers” - MeatPoultry
• Results are back from OIG audit at Nebraska-based US Meat Animal Research Center - Brownfield
• Cost-sharing program for hemp research in Pennsylvania - PA.gov
• New report suggests U.S. sugar producers will be disadvantaged by GMO labeling rules - Brownfield
• Bird flu woes continue as outbreak continues to spread across Europe and Asia - Meatingplace
• Major agricultural accomplishments for Pennsylvania in 2016 - PA.gov 

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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.

Raw Milk Update: FDA Releases Risk Assessment of Cheese Produced from Raw Milk

On July 31, 2015, the Food and Drug Administration, in conjunction with Health Canada, released a risk assessment for soft-ripened cheeses produced from raw milk. The assessment was focused on the risk of contracting listeriosis by consuming the products.

Listeriosis is caused by Listeria monocytogenes, a pathogen that is frequently found in agricultural and food processing environments. Listeriosis generally affects the digestive tract, but can also spread to other parts of the body, known as “invasive listeriosis”. Those most at-risk for the disease are the elderly, pregnant women, children, and individuals with compromised immune systems.

In the risk assessment, the risk of contracting listeriosis was conducted on a per-serving basis of a Camembert-like soft-ripened cheese, with a comparison between the use of pasteurized and non-pasteurized milks in the production of the cheese. The assessment also focused on different production methods, such as the aging period and intervention techniques to reduce the risk of contracting listeriosis. The current standard is a 60-day aging period, but the FDA is considering the benefits of a performance standard in its place.

The risk assessment had already received criticism during the draft phase in 2013. Both U.S. and French cheese associations have called the assessment flawed, and are concerned that the assessment will cast doubt on all cheeses produced from raw milk, including hard cheese.

The FDA is currently requesting additional comments and data as a response to the assessment. The full risk assessment can be read here.

Written by Tyler R. Etter- Research Assistant
August 3, 2015