Agricultural Law Weekly Review—September 29, 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:

Liability: Court Rules against Application of Equine Activity Immunity Act

On September 26, 2016, the United States District Court, M.D. Pennsylvania denied a motion claiming immunity protection under the Pennsylvania Equine Activity Immunity Act (EAIA) regarding an injury suffered at an equine facility due to a broken stirrup (Melendez v. Happy Trails and Riding Center, Inc., 2016 WL 5402745).  Under EAIA, to receive negligence protection, a qualifying defendant must demonstrate that their equine facility had proper signage and that the plaintiff assumed the risk of the equine activities (4 P.S. §§ 601-606).  According to the court, a “Defendant must show that [a] Plaintiff knew that the equipment he was provided with might break and voluntarily continued with the horseback ride in spite of that knowledge.” The court stated that because the equine facility failed to point to anything in the record to show that the injured party knew of the risk of equipment failure “and voluntarily disregarded it, EAIA provides no relief.”

Fertilizer Sales: Court Rules New OSHA Retail Facilities Safety Standard Must Go Through Rulemaking Process

On September 23, 2016, the United States Court of Appeals, District of Columbia Circuit ruled that the Occupational Safety & Health Administration (OSHA) violated the Occupational Safety and Health Act when the agency issued a new safety standard designed to narrow the exemption for retail facilities that deal in toxic chemicals (Agricultural Retailers Association and The Fertilizer Institute v.United States Department of Labor and Occupational Safety & Health Administration, 2016 WL 5315200).  According to the court, OSHA’s action was a modification of an existing safety standard, and as such, could only be validly accomplished by complying with the notice and comment procedures required by the Administrative Procedure Act.

GMO: APHIS Determines GE Apple Unlikely Environmentally Harmful

On September 23, 2016, the United States Department of Agriculture (USDA) Animal and Plant Health Inspection Service (APHIS) announced that regarding the deregulation of the genetically engineered apple line known as Arctic® Fuji, the agency was making available: (1) the final Determination and plant pest risk similarity assessment and (2) the Finding of No Significant Impact (FONSI).  According to APHIS, Arctic® Fuji apples, which are engineered to resist enzymatic browning, “are unlikely to pose plant pest risk and are no longer to be considered regulated articles under APHIS’ Biotechnology Regulations.” As a result, APHIS stated that a determination of nonregulated status of the apple line “will have no significant environmental impacts.”

GMO: AHIS Extends Preliminary Determination of Nonregulated Status on GE Potatoes

On September 24, 2016, the United States Department of Agriculture (USDA) Animal and Plant Health Inspection Service (APHIS) published notice in the Federal Register that the agency “has reached a preliminary decision to extend [a] determination of nonregulated status of J.R. Simplot Company's (Simplot) InnateTM Potato designated as Russet Burbank event W8 (the antecedent potato event) to Simplot's Ranger Russet variety (X17) and Atlantic variety (Y9) potatoes” (81 FR 65622).  According to APHIS, “Simplot’s X17 and Y9 potatoes have been genetically engineered for late blight resistance, low acrylamide potential, lowered reducing sugars, and reduced black spot using the same genetic constructs used to transform the antecedent potato event.” The comment period on the preliminary decision closes October 24, 2016.

Labeling: FDA Announces Industry Guidance and Comment Docket Regarding Use of Term “Healthy”

On September 28, 2016, the United States Food and Drug Administration (FDA) published notice in the Federal Register “announcing the availability of a guidance document for industry entitled “Use of the Term ‘Healthy’ in the Labeling of Human Food Products: Guidance for Industry” (81 FR66527).  According to FDA, “the guidance advises manufacturers who wish to use the implied nutrient content claim ‘healthy’ to label their food products as provided by [FDA] regulations.” Relatedly, on September 28, 2016, FDA published notice in the Federal Register that the agency has established “a docket to receive information and comments on the use of the term ‘healthy’ in the labeling of human food products” (81 FR 66562).  Comments must be received by FDA on January 26, 2017. 

Equine: APHIS Announces Proposed Rule to Amend Horse Protection Regulations

On September 22, 2016, the United States Department of Agriculture (USDA) Animal and Plant Health Inspection Service (APHIS) published notice in the Federal Register that the agency is extending the comment period regarding the “proposed rule to amend the horse protection regulations to provide that [APHIS] will train and license inspectors to inspect horses at horse shows, exhibitions, sales, and auctions for compliance with the Horse Protection Act” (81 FR 65307).  The revised comment period closes October 26, 2016.  Additionally, APHIS announced that the agency is “also making a clarification to the proposed regulations pertaining to specific prohibitions concerning exhibitors.”

Apples: Secretary Publishes Referendum Order on Continuation of the Pennsylvania Apple Marketing Program

On September 24, 2016, Pennsylvania Secretary of Agriculture Russell Redding published a notice in the Pennsylvania Bulletin entitled “Referendum Order on Continuation of the Pennsylvania Apple Marketing Program” (46 Pa.B. 6023).  According to the Referendum Order, “[t]he Pennsylvania Apple Marketing Program was established under the provisions of the Agricultural Commodities Marketing Act…[and] requires that the Secretary of Agriculture call a referendum of affected producers every five years to determine whether or not a majority of those voting still desire the program.” Eligible referendum voters include “[a]ll apple producers who produced, grew, or caused to be grown 500 or more apple trees for sale or marketing in the Commonwealth in calendar year 2016 and intend to produce, grow, or cause to be grown 500 or more apple trees for sale or marketing in the Commonwealth in calendar year 2017.” The referendum period runs from October 17, 2016 through October 31, 2016.