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.

Agricultural Law Weekly Review: February 12, 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:

Avian Influenza: New HPAI Indemnity Rules become Effective

On February 9, 2016, the United States Department of Agriculture (USDA) Animal and Plant Health Inspection Service (APHIS) published in the Federal Register an interim rule amending the regulations governing the payment of indemnity claims for highly pathogenic avian influenza (HPAI) (81 FR 6745).  The new regulations became effective upon the interim rule’s February 9, 2016 publication in the Federal Register and amend the previous HPAI indemnity regulations to: 1) allow indemnity payments to be split between poultry/egg owners and contractors; 2) clarify that eggs are eligible for indemnity payments; and 3) require that owners and contractors of large facilities provide statements that prior to the detection of HPAI in their facility, they had in place, and were following, a biosecurity plan.  For more information see previous Penn State Agricultural Law Blog post.

Labeling: House Votes to Make Menu Labeling Less Stringent

On February 12, 2016, the United States House of Representatives voted 266 – 144 to pass the Common Sense Nutrition Disclosure Act of 2015 (H.R. 2017), which would make less stringent the Food and Drug Administration’s (FDA) menu labeling requirements for nutrition information displayed  by certain food establishments (such as restaurants, pizza shops, supermarkets, and convenience stores).  Significantly, on February 10, 2016, the Obama administration issued a press release opposing H.R. 2017, stating that if enacted, the legislation “would reduce consumers' access to nutrition information…likely create consumer confusion…[and] create unnecessary delays in the implementation of menu labeling.”

Avian Influenza: Indiana Animal Health Officials Set Date to Remove HPAI Restrictions

On February 4, 2016, the Indiana State Board of Animal Health issued a press release announcing the lifting of certain restrictions that had been in place since a January outbreak of highly pathogenic avian influenza (HPAI) within the state.  According to the press release, provided that no new HPAI tests are reported, the state “expects to release the 10-km control area and the additional 10-km surveillance zone on Monday, Feb. 22.” The quarantines on infected sites, however, will continue “until final site-cleanup requirements are met.”

Animal Welfare: Judge Blocks Horse Slaughter and Sale of Horsemeat in New Mexico

On February 4, 2016, New Mexico District Judge Francis J. Mathew issued a Stipulated Final Order permanently enjoining Defendants Valley Meat Company, LLC, Dairyland Packing, Inc., Mountain View Packing, LLC, and Richard De Los Santos, non-parties Jose Hernandez, Ryoichi Okubo, and D’Allende Meats, LLC, “from slaughter horses for human consumption, and from manufacturing, selling or distributing horsemeat products for human consumption in New Mexico.”  The case was brought against the Defendants by New Mexico Attorney General Hector H. Balderas. 

Crop Insurance: Kentucky Farmer Sentenced for Crop Insurance Fraud

On February 2, 2016, the United States Attorney’s Office for the Western District of Kentucky issued a press release announcing that Kentucky farmer Tracy E. Dillard “was sentenced by United States District Judge Greg N. Stivers, to serve eight months in prison followed by a three year term of supervised release and ordered to pay restitution in the amount of $711,958.00 for committing crop insurance fraud.”  According to the press release, Dillard had previously admitted in court to “knowingly making false statements and reports on insurance claims submitted to Producers Agriculture Insurance Company, a company insured by the Federal Crop Insurance Corporation (FCIC).”

GMOs: Kenya Approves Limited Release of GM Maize Seeds

On February 9, 2016, Kenya’s National Biosafety Authority “granted a conditional approval only for environmental release for the purpose of conducting National Performance Trials (NPTs) and collecting compositional analysis data but not for cultivation, importation or placing on the market of the Bt Maize.” Bt Maize (MON810) is a Monsanto produced, genetically modified, insect-protected corn hybrid.

Food Safety: Slaughterhouse Owner Sentenced for Selling Condemned and Uninspected Cattle

On February 11, 2016, the United States Attorney’s Office for the Northern District of California issued a press release announcing that “Jesse ‘Babe’ Amaral, Jr., owner of the now-defunct Petaluma slaughterhouse Rancho Feeding Corporation, was sentenced today to 12 months and one day of imprisonment for leading a conspiracy to distribute adulterated, misbranded, and uninspected meat.” In addition to the aforementioned prison time, United States District Judge Charles R Breyer also sentenced Amaral “to two years’ supervised release, one of which will be served in a residential re-entry facility.”

Sugar Companies and Corn Refiners Settle Lawsuit

Written by M. Sean High - Staff Attorney

On November 20, 2015, less than one month into a trial that pitted sugar companies against corn refiners, parties announced a settlement had been reached.  The lawsuit in question involved the advertisement of various health claims relating to high fructose corn syrup.  According to the parties, the terms of the settlement agreement are confidential.

In 2011, sugar companies brought suit against the Corn Refiners Association for using advertisements that referred to high fructose corn syrup as “corn sugar” and “natural.” Furthermore, the sugar companies disputed those advertisements that claimed high fructose corn syrup was “nutritionally the same as table sugar.”

According to the sugar companies, sugar and high fructose corn syrup are distinct products and any advertisement to the contrary is false and misleading.  The sugar companies claimed that this false advertisement resulted in damages in excess of $1.1 billion.  Relatedly,  in 2012, the Food and Drug Administration issued a ruling denying the Corn Refiners Association petition to use “corn sugar” as an alternate name for high fructose corn syrup.

In a joint statement announcing the settlement agreement, the parties expressed that they will “continue their commitments to practices that encourage safe and healthful use of their products, including moderation in the consumption of table sugar, high fructose corn syrup and other sweeteners.”