Agricultural Law Weekly Review - July 12, 2018

Written by:

Jackie Schweichler - Education Programs Coordinator

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

Antitrust: Supermarket Chains File Antitrust Complaint Against Chicken Producers

On June 29, 2018, The Kroger Co., and other supermarket chains filed a complaint in the U.S. District Court for the Northern District of Illinois alleging illegal trade restraint practices in the chicken industry (The Kroger Co., et al. v. Tyson Foods Inc. et al., 1:18-cv-04534). The complaint was brought against Tyson Foods, Inc. and several other U.S. chicken producers. The plaintiffs allege that U.S. chicken producers violated federal antitrust laws by restraining trade to increase the price of chickens sold in the U.S. from 2008 to 2016. According to the plaintiffs, the chicken producers reduced the supply of broiler chickens and then manipulated wholesale chicken price indices.

Antitrust: Class Action Lawsuit Filed Against U.S. Pork Producers

On June 28, 2018, consumers filed a class action complaint against U.S. pork producers and Agri Stats, Inc. (Duryea, et al., v. Agri Stats., et al., 0:18-cv-01776) Agri Stats is a company that provides accounting and data information to customers in the poultry, egg, and swine industries. The complaint alleges that the pork producers and Agri Stats conspired to fix U.S. pork prices. According to the plaintiffs, the pork producers coordinated pork output and limited production to increase pork prices. The plaintiffs argue that through Agri Stats, the pork producers exchanged competitively sensitive non-public information regarding prices, capacity, sales volume, and demand. One of the pork producers, Hormel Foods, has released a statement arguing that the allegations are “completely without merit.”

Biosecurity: Kansas Adopts Cattle Disease Traceability Program

On June 30, 2018, Kansas announced the Cattle Trace pilot project. Cattle Trace is a public-private partnership which was created to manage cattle disease and provide critical tools in the event of an outbreak. Cattle Trace will be able to show where diseased or at-risk animals have been and when, in order for a fast and efficient response. The program will allow Kansas to test the limits of the traceability system and determine if it is capable of informing and guiding development on a national level. The Cattle Trace system was created following a vote of the Kansas Livestock Association.

Food Labeling: Comment Period Closes for Proposed Bioengineered Food Labeling Rule

On July 3, 2018, the comment period closed for the Agricultural Marketing Service’s (AMS) proposed rule, National Bioengineered Food Disclosure Standard. The proposed rule would require food manufacturers to disclose information about bioengineered food and ingredient content on any foods sold in retail. According to AMS, food manufacturers are not required to disclose information about the health, safety, or environmental attributes of bioengineered food versus non-bioengineered food. The proposed rule suggests several options for disclosure including written statements, three alternative symbols, and electronic/digital link. The Secretary of Agriculture was directed by Congress to create a national bioengineered disclosure standard by July 29, 2018, through the enactment of Public Law 114-216 (7 U.S.C. 1621).

Animal Welfare: National Chicken Council Certifies Animal Welfare Guidelines for Broiler Chickens

On July 10, 2018, the National Chicken Council announced that their animal welfare guidelines have been certified by the Professional Animal Auditor Certification Organization. The guidelines specifically apply to broiler and broiler breeder chickens and focus on bird behavior, recordkeeping, corrective action requirements, increased oversight, time requirements for euthanasia, and catching requirements. The guidelines require that the “birds must have enough space to express normal behaviors such as dust bathing, preening, eating, drinking, etc.” The guidelines also limit the number of birds permitted in a chicken house based on the size of the barn, equipment, and target weight of the birds.

International Trade: FAO Reports Decline in Overall Food Price Index for June

On July 5, 2018, the Food and Agriculture Organization of the United Nations (FAO) released their monthly FAO Food Price Index (FFPI). The FFPI is a measure of the change in international prices, weighted with the average export shares. The FFPI includes five commodity groups, including cereal, vegetable, dairy, meat, and sugar. For June 2018, the overall FFPI decreased by 1.3 percent. According to FAO, price index decreases can be attributed to “rising tensions in international trade relations.” Cereal, vegetable, and dairy price indexes decreased by 3.7%, 3%, and 0.9%, respectively. The FAO meat price index increased by 0.3% and the sugar price index increased by 1.2%. The sugar price index increase is likely due to the high use of sugarcane for ethanol production in Brazil, according to FAO.

From National Ag Law Experts:

Institute for Agriculture & Trade Policy, QR Codes and GMOs: The Proposed Food Labeling Rule (July 10, 2018)

Tiffany Dowell Lashmet, NM Land Commissioner Sues NM State Engineer Over Water Permits, Texas Agriculture Law (July 9, 2018)

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

"Pennsylvania takes lead on hemp development" - The Independent

"The land of milk and money: Dairy farmers cope with chronically low milk prices, uncertain futures" - Ag Week Magazine

"Nestle, Hershey at odds with farmers over U.S. GMO labeling" - Reuters

"Driven by Almonds, Pollination Services Now Exceed Honey as a Source of Beekeeper Revenue" - USDA

"Trump's tariffs could reshape global ag trading for years" - Delta Farm Press

"Monsanto responds to increased dicamba drift reports" - Farm Press

"'We are the casualty:' US pig farmers brace for second round of pork tariffs from China, Mexico"  - CNBC

"Rhode Island Bets The Farm That Cheap Land Will Help Local Agriculture Thrive" - NPR

"Study finds economic impact of using antimicrobials in feedlots" - Beef Producer

Stay Informed:

Listen to our weekly Agricultural Law Podcast

Read our monthly Agricultural Law Brief newsletter     

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

Connect with us on Facebook to view our weekly CASL Ledger detailing Center publications and activities

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—April 14, 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:

Animal Welfare: USDA Proposes Rule Amending Organic Livestock and Poultry Production Requirements

On April 13, 2016, the United States Department of Agriculture’s Agricultural Marketing Service published a proposed rule in the Federal Register that would amend the organic livestock and poultry production requirements (81 FR 21955).  According to the proposed rule, the proposal would “add new provisions for livestock handling and transport for slaughter and avian living conditions; and expand and clarify existing requirements covering livestock health care practices and mammalian living conditions.” The comment period for the proposed rule closes June 13, 2016.

Pipelines: Proposed Rule on Safety of Transmission and Gathering Lines Published

On April 8, 2016, the United States Department of Transportation Pipeline and Hazardous Materials Safety Administration published notice of a proposed rule in the Federal Register “to revise the Pipeline Safety Regulations applicable to the safety of onshore gas transmission and gathering pipelines” (81 FR 20721).  According to the proposed rule, the proposal is intended to provide “additional safety measures to increase the level of safety for those pipelines that are not in HCAs [High Consequence Areas] as well as clarifications and selected enhancements to integrity management requirements to improve safety in HCAs.” The comment period for the proposed rule closes June 7, 2016.

Animal Classification: USDA Amends Definition of “Roaster” Chickens

On April 13, 2016, the United States Department of Agriculture Food Safety and Inspection Service published notice in the Federal Register of a final rule “amending the definition and standard of identity for the ‘roaster’ or ‘roasting chicken’ poultry class to better reflect the characteristics of ‘roaster’ chickens in the market today” (81 FR 21706). According to the final rule, because “[g]enetic changes and management techniques have continued to reduce the grow-out period and increased the RTC [ready-to-cook] weight for this poultry class,” the new definition of roaster “remove[s] the 8-week minimum age criterion and increase[s] the RTC carcass weight from 5 pounds to 5.5 pounds.” The effective date for the final rule is January 1, 2018. 

Industrial Hemp: Legislation Moves to Senate Committee

On April 12, 2016, Pennsylvania House Bill 967 (HB 967), legislation that would legalize the growth and cultivation of industrial hemp for research purposes, was referred to the Pennsylvania Senate’s Agricultural and Rural Affairs Committee. The action comes as a result of the recent unanimous vote by the Pennsylvania House of Representatives to pass HB 967 (see previous Penn State Agricultural Law Blog article).

Food Safety: USDA Proposes Permitting Honduran Poultry into the U.S.

On April 13, 2016, the United States Department of Agriculture Food Safety and Inspection Service (FSIS) published notice in the Federal Register of a proposed rule for the inclusion of Honduras on the list of countries eligible to export poultry products into the United States (81 FR21758).  According to the proposed rule, “FSIS review of Honduras' laws, regulations, and inspection system demonstrated that its poultry slaughter inspection system is equivalent to the system FSIS has established under the Poultry Products Inspection Act (PPIA) and its implementing regulations.” The comment period for the proposed rule closes June 13, 2016.

Animal Slaughter: Vermont Senate Committee Discusses On-Farm Slaughter Bill

On April 12, 2016, the Vermont Senate Committee on Agriculture held discussion regarding Vermont House Bill 860 (H.860); legislation that would extend an exemption authorizing on-farm animal slaughter activities through July 1, 2019.  The action came as a result of a March 17, 2016 vote by the Vermont House of Representatives to pass H.860.  Currently, Vermont’s law providing exemption for on-farm animal slaughter is scheduled to expire on July 1, 2016.

SNAP: Information Collection Request Approved

On April 8, 2016, the United States Department of Agriculture Food and Nutrition Service published notice in the Federal Register of approval of a Supplemental Nutrition Assistance Program (SNAP) Final Rule Information Collection Request (ICR) (81 FR 20524). The ICR approval was published in connection to a final rule, published on January 19, 2016, amending SNAP operations, reporting, reviews, definitions, and coupons (81 FR2725).    

Regulatory Update: FDA Approves Genetically Engineered Chicken

Written by M. Sean High – Staff Attorney

On December 8, 2015, the U.S. Food and Drug Administration (FDA) approved a genetically engineered (GE) chicken designed to produce eggs to be used in the manufacturing of a drug intended to treat the human enzyme disease lysosomal acid lipase deficiency (LAL-D).

LAL-D is a rare (and potentially fatal) disease that causes the build-up of fats within the tissue cells of multiple organs including the heart, liver, and spleen.  According to the pharmaceutical manufacturer Alexion Pharmaceuticals Inc. (Alexion), when LAL-D is present in infant patients (known as Wolman disease) there is currently a nearly 90% mortality rate; when LAL-D is present in pediatric and adult patients (known as cholesteryl ester storage disease) “with a clinical biopsy assessment, nearly 50% progress to fibrosis, cirrhosis, or liver transplant within 3 years of symptom onset.” Consequently, Alexion sought FDA approval for Kanuma, the company’s enzyme replacement therapy drug designed to combat LAL-D. 

Under Alexion’s manufacturing of Kanuma, GE chickens are raised so as to “produce a recombinant form of human lysosomal acid lipase (rhLAL) protein in their egg whites.” In turn, the rhLAL egg whites are to be purified and refined into the LAL-D fighting drug Kanuma.

FDA stated that the GE chickens and their eggs do not pose a human health risk because neither will be permitted to enter the food supply.  Importantly, FDA noted that their approval will “not cause a significant impact on the environment, because the chickens are raised in highly secure facilities. 

McDonald’s Plans To Go Cage-Free

Written by Katharine Richter

On September 9, 2015, according to a McDonald’s press release, the company stated in ten years all eggs used by the company in the United States and Canada will be laid by cage-free chickens.  This goal will affect 16,000 restaurants in U.S. and Canada.  According to the press release, “McDonald’s USA purchases approximately two billion eggs and McDonald’s Canada purchases 120 million eggs…”  McDonald’s U.S. President, Mike Andres, stated that the decision comes from customers who are “increasingly interested in knowing more about their food” and also enforcing emphasis on food quality.

The Humane Society of the United States, in a press release, announced it applauded McDonald’s decision and were “optimistic that the switch can occur even quicker” than the proposed ten years.  After McDonald’s announcement, the Massachusetts Society for the Prevention of Cruelty to Animals, in coalition with numerous other groups, proposed a ballot initiative that would “curb extreme confinement and lifelong immobilization of animals at industrial-style factory farms.”  The goal is for the proposal to be included on the 2016 statewide ballot but it will need 90,000 signatures to qualify.

Not all groups are applauding the announcement by McDonald's.  Ken Klippen, president of the National Association of Egg Farmers, wrote an open letter to McDonald's.  In the letter he comments on how McDonald’s has ignored science and cage-free chickens will not bring better quality eggs, nor a safer, less stressful environment for chickens.  Other major agricultural groups have commented with concerns on McDonald’s decision and the proposed ballot initiative, such as rising costs for consumers and farmers and diminution of choice in animal living configurations.

Glowing, Resistant, and Safe?

Written by Stephen Kenney
Scientists at Cambridge and Edinburgh Universities have successfully developed genetically modified (also known as transgenic) chickens that can stem the transmission of avian influenza virus.  The GMO chickens are not immune to the virus, but they do not transmit the infection to other members of the flock.   This would prevent whole poultry houses from being lost to the virus. 

Researchers at the Roslin Institute at Edinburgh and the University of Cambridge Department of Veterinary Medicine injected a gene into the chickens that is specifically designed to produce molecules that stop the flu virus from reproducing.  The molecule is an RNA molecule that mimics the region of the flu virus genome that controls virus replication. 

The “decoy” gene is injected into a collection of cells on the yolk of a freshly laid egg.  The researchers refer to it as a “decoy” because these molecules bind and divert the flu virus enzyme from its crucial functions that are required for virus replication.  The research has thus far shown that the birds are not adversely affected in any way from the modification.  The experimental chickens were also injected with a fluorescent protein that makes the birds glow under ultraviolet light.  The protein is injected to help the researchers distinguish the GMO chickens from the traditional chickens.  Pictures of the chickens can be seen here.

The researchers believe that these GMO chickens would be safe to eat.  They believe that the nature of the genetic modification is such that it is very unlikely that consuming the GMO chickens, or eggs they would produce, could have any negative effect on people.  Any use of the chickens or eggs for food would have to be approved by the appropriate agencies such as the Food and Drug Administration in the US, and the European Food Safety Authority in Europe.

APHIS Updates HPAI Response Materials

Written by M. Sean High

On August 31, 2015, the United States Department of Agriculture Animal and Plant Health Inspection Service (APHIS) posted an update to the agency’s Highly Pathogenic Avian Influenza (HPAI) response documents.  Titled ContactPremises, this latest document reflects a concerted effort by APHIS to proactively deal with HPAI issues.

According to APHIS, a location is deemed a Contact Premise when that location is determined to “have susceptible poultry that may have been exposed to the highly pathogenic avian influenza (HPAI) virus, either directly or indirectly, including but not limited to exposure to susceptible poultry, poultry products, fomites, or people from Infected Premises.”

According to the Contract Premises document, a Contact Premises is identified through the tracing-back or tracing-forward of all movements (human, vehicle, animal, etc.) from HPAI Infected Premises.  If a Contract Premise is identified, depopulation may be authorized where HPAI is suspected.  A positive HPAI test not required.

Furthermore, APHIS will provide indemnity for the depopulation of Contact Premises poultry flocks that have been properly authorized for depopulated by APHIS and state officials.  The information necessary for indemnity will be collected from barn records after a Contact Premise is identified through movement tracing, and prior to an epidemiological investigation and any subsequent flock depopulation.

CDC Publishes Report on Infection Risk of H5 Avian Influenza

On July 24, 2015, the Center for Disease Control (CDC) published a report on the risk of human infection posed by exposure to birds with Highly Pathogenic Avian Influenza (HPAI) H5 viruses.

Human infection with avian influenza, although rare, has occurred. The most prominent strains that have occurred in humans are the HPAI strain H5N1 and the low pathogenic avian influenza strain H7N9. H5N1 has been detected in humans in several countries, while H7N9 has occurred mostly within China. When infection occurs, the disease is considered to be severe for these strains. The strains the CDC studied in the report are new strains of the virus found in the United States.

The study focused on exposure during the time-frame of December 2014 to March 2015, where a total of 60 outbreaks of HPAI H5 viruses occurred across 13 states. During this time, a total of 164 people were exposed to infected birds. Of these 164 people 5 developed acute respiratory infections within 10 days of exposure, but HPAI H5 viruses were not detected in any individual. The CDC believes this suggests “the risk of virus transmission to humans appears to be low…” but individuals should remain vigilant when responding to an outbreak.

The severity of infection of these US strains of HPAI is currently unknown, but the CDC states that the strains should be considered to cause potentially severe or fatal illnesses until proven otherwise. The CDC urges individuals to avoid unprotected contact with infected birds, and those exposed to infected birds should be tested for infection in the event that respiratory symptoms develop.

Written by Tyler R. Etter- Research Assistant
August 5, 2015

Vilsack Testifies Regarding Bird Flu Vaccine

On July 22, 2015, U.S. Agriculture Secretary Tom Vilsack testified before the U.S. House Committee on Agriculture and addressed the United States Department of Agriculture’s (USDA) latest efforts regarding Highly Pathogenic Avian Influenza (HPAI). 

At the hearing, Vilsack stated that USDA was working to produce a vaccine to combat the spread of HPAI.  According to the Secretary, a seed strain vaccination has been developed, and the vaccine has proven to be 100% effective when tested on chickens.  Though Vilsack did not provide a timeline for the availability, he did state that the vaccine was currently being tested on turkeys and if proven effective, would hopefully be ready for production in the near future. 

Relatedly, the Secretary stated that USDA was working on efforts to ensure that U.S. trading partners would not penalize future exports if a vaccine is employed.  Vilsack suggested that any foreign ban on U.S. poultry products could be limited regionally (where the vaccine is used) and not nationally.

To view Secretary Vilsack’s testimony, please click here.

 

Written by M. Sean High - Staff Attorney

July 22, 2015