Agricultural Law Weekly Review—August 17, 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:

FSMA: FDA Releases Guidance on Sanitary Transportation of Human and Animal Food Rule

On August 14, 2017, the U.S. Food and Drug Administration (FDA) announced the availability of guidance material entitled: Clarification on Food Establishment Waiver from Requirements of the Sanitary Transportation of Human and Animal Food Rule: Guidance for Industry.  According to FDA, “this guidance provides clarification on the scope of the waiver for food establishments that provide food directly to consumers from the requirements of the Sanitary Transportation of Human and Animal Food Rule (the food establishment waiver).”  FDA stated that the guidance is “in response to questions the Agency has received since publication of the final rule.”

Farmland Preservation: Pennsylvania Announces 33 Newly Preserved Farms

On August 11, 2017, the Pennsylvania Department of Agriculture (PDA) announced that the “Pennsylvania’s Agricultural Land Preservation Board [has] added 2,999 acres on 33 farms in 12 counties to the more than half a million acres and 5,100 Pennsylvania farms permanently preserved for agricultural production.”  According to PDA, the 33 newly persevered farms are located in Berks, Blair, Bucks, Centre, Chester, Lancaster, Lehigh, Northampton, Perry, Snyder, Union and York counties.  PDA stated that since the Pennsylvania Agricultural Conservation Easement Purchase Program “began in 1988, federal, state, county and local governments have invested nearly $1.4 billion to preserve 539,180 acres on 5,169 farms in 59 counties for future agricultural production.”

Livestock Mandatory Reporting/COOL: USDA Strengthens Enforcement Rules for Livestock Mandatory Reporting and COOL Programs

On August 8, 2017, the U.S. Department of Agriculture (USDA) Agricultural Marketing Service (AMS) announced that the agency has “issued a final rule allowing USDA to take action as needed, including levying civil penalties, against violators of the Livestock Mandatory Reporting (LMR) and the Country of Origin Labeling (COOL) regulations.” USDA-AMS stated that “[t]he action extends the current rules of practice under the Agricultural Marketing Act of 1946, as amended, to include LMR and COOL violations.” Accordingly, the new rules “allow up to $10,000 in fines per violation for violating the LMR regulations…[and] fines for a retailer or person engaged in the business of supplying a covered commodity that willfully violates COOL regulations.”

Antimicrobial: FDA Proposes New Method to Determine Antimicrobials in Food Animals

On August 15, 2017, the U.S. Food and Drug Administration (FDA) published notice in the Federal Register of the “availability for public comment of a proposed method for applying a food animal biomass denominator to annual data on antimicrobials sold and distributed for use in food animals in the United States” (82 FR 38695).  According to FDA, “[a]nimal drug sponsors are required to report annually to FDA the amount of antimicrobials sold or distributed for use in food-producing animals and provide species-specific estimates of the percentage of their drug product sales for use in any of the four major food-producing species (cattle, swine, chickens, and turkeys) identified on the approved product label.” FDA is proposing a “method for using a biomass denominator to adjust these sales data.” FDA stated that “[t]he proposed method will provide estimates of annual antimicrobial drug sales adjusted for the size of the animal population (the animal biomass of each such species) potentially being treated with those drugs.”

Dairy: FDA Announces Guidance for Ultrafiltered Milk  

On August 14, 2017, the U.S. Food and Drug Administration (FDA) published notice in the Federal Register of the availability of a guidance for industry entitled: Ultrafiltered Milk in the Production of Standardized Cheeses and Related Cheese Products: Guidance for Industry (82 FR 37815).  According to FDA, “[t]he guidance advises manufacturers who wish to use ultrafiltered milk (UF milk) or ultrafiltered nonfat milk (UF nonfat milk) in the production of standardized cheeses and related cheese products that, pending completion of a rulemaking regarding the use of UF milk in the production of these products, [FDA] intend[s] to exercise enforcement discretion regarding the use of fluid UF milk and fluid UF nonfat milk in the production of standardized cheeses and related cheese products." Additionally, FDA stated that the agency “also intend[s] to exercise enforcement discretion regarding the declaration of ingredients in the labeling of standardized cheeses and related cheese products when fluid UF milk and fluid UF nonfat milk are used as ingredients.”

Animal Welfare: Pennsylvania Captive Deer Herd Tests Positive for Chronic Wasting Disease

On August 11, 2017, the Pennsylvania Department of Agriculture (PDA) “announced that 27 deer from a Bedford County deer farm have tested positive for Chronic Wasting Disease.”  According to PDA, “[t]o prevent further spread of the disease, officials from the U.S. Department of Agriculture Veterinary Services, USDA Wildlife Services and the Pennsylvania Department of Agriculture depopulated, or euthanized, the herd [of 215 deer] on June 20, 2017.” Subsequently, “[t]he National Veterinary Services Laboratory in Ames, Iowa conducted the testing and reported results to the department and USDA on August 7, 2017.”  PDA stated that “[a]ccording to the Centers for Disease Control and Prevention, there is no strong evidence that humans or livestock can contract Chronic Wasting Disease.”

Pennsylvania Legislation

Agriculture and Rural Affairs Committee (Senate)

• Public hearing on Chesapeake Bay Phase III WIP  (August 16, 2017)

Agriculture and Rural Affairs Committee (House)

• Informational meeting on Chesapeake Bay Phase III Watershed Implementation Plan (WIP) and any other business that may come before the committee ( August 16, 2017)

Pennsylvania Actions and Notices

Department of Agriculture

• Addendum to the order of quarantine; spotted lanternfly

AgLaw HotLinks:

• USDA Has Opportunity to Help Craft Farmworker Bill – Brownfield
• Disney Records-show $177 Million Settlement to BPI – Brownfield
• USDA Report Shows Trust in “Local” Grows: So How Does “Big Ag” Connect? – Agri-Pulse
• Schumer Urges Canadian Ambassador to Fix Dairy Trade Dispute – Milk Business
• Clearer food labelling on the cards with new whole grain food definition - Food Navigator  
• Dutch arrests made as fipronil egg scare spreads to 17 markets - Food Navigator
• Rural groups call for representation on Trump’s infrastructure council – Feedstuffs
• What to Expect With the Next Compliance Dates for the FSMA Preventive Controls for Animal Foods Rule – U.S. Food and Drug Administration
• NFU Urges USDA Commitment to Climate Change – Brownfield
• MO Dicamba Complaints Continue After Label Change – AgWeb  
• Foreign Farmworkers in Canada Fear Deportation if They Complain – The New York Times
• Court filings indicate resurgence' in ‘all-natural’ litigation in 2017, but will appropriations bill spur the FDA into action? – Food Navigator  
• Philadelphia’s Soda Tax Bust – The Wall Street Journal 

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