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:
Ag-Gag:
Tenth Circuit Rules Wyoming Resource Data Collection Law Violates First
Amendment
On September 7, 2017, the U.S. Court of Appeals for
the 10th Circuit ruled
that Wyoming’s “statutes imposing civil and criminal liability on any person
who ‘[c]rosses private land to access adjacent or proximate land where he
collects resource data’” violate the First Amendment. The court stated that under the Wyoming
statutes, the phrase “collects resource data” is broadly defined so as to
include numerous activities on public lands that “fit comfortably in the speech
creation category recognized” by case law.
Accordingly, the court asserted that while “trespassing does not enjoy First
Amendment protection, the statutes at issue target the ‘creation’ of speech by
imposing heightened penalties on those that collect resource data.” As a result, the court held “that the
statutes regulate protected speech under the First Amendment and…are not
shielded from constitutional scrutiny merely because they touch upon access to
private property.”
FSMA:
FDA announces that the FSMA produce Safety Rule is Now Final
On September 17, 2017, the U.S. Food and Drug Administration
(FDA) announced that the FDA Food Safety and
Modernization Act (FSMA) Produce Safety rule is now final. Initially proposed in 2013, FDA stated that “[t]he
final rule is a combination of the original proposal and revisions outlined in
the supplemental proposal (proposed in 2014), with additional changes as
appropriate.” According to FDA, key requirement of the final rule include: (1) agricultural
water; (2) biological soil amendments; (3) sprouts; (4) domesticated and wild animals;
(5) worker training and health and hygiene; and (6) equipment, tools and buildings.
FSMA:
FDA Commissioner Announces Steps to Help States Implement Produce Safety Rule
On September 12, 2017, the U.S. Food and Drug (FDA)
Commissioner Scott Gottlieb announced
“a number of immediate next steps in a comprehensive approach to ensuring
successful implementation of the Produce Safety Rule established by the FDA
Food Safety Modernization Act.”
According to Commissioner Gottlieb, “the agency has recognized a need
for additional efforts to educate the produce industry and state regulatory
partners on the new produce safety requirements, and will continue its focus on
training, guidance development, and outreach over the next year.” As a result, Commissioner Gottlieb asserted the
FDA’s intention to: (1) extend agricultural water compliance dates; (2) engage stakeholders
regarding agricultural water standards; (3) recognize other methods that are
appropriate for use in agricultural water testing; (4) delay inspections to
assess compliance with the non-water requirements of the Produce Safety Rule
for produce other than sprouts; and (5) work in partnership with farmers and the
states to provide training opportunities for producers and regulators.
Food
Safety: FDA Commissioner Issues Statement Regarding Crops Affected by Recent
Hurricanes
On September 14, 2017, the U.S. Food and Drug (FDA)
Commissioner Scott Gottlieb issued
a statement regarding crops, particularly rice,
affected by Hurricanes Harvey and Irma.
Commissioner Gottlieb stated that “I want to make it clear that the FDA
has not issued a ban on rice or any other food crops.” According to the Commissioner, “[r]ice grown
in normal conditions and rice that has not been exposed to contaminated
floodwaters from the recent hurricanes may enter commerce.” Additionally,
Commissioner Gottlieb stated that “rice and other crops that were harvested and
stored safely before storms hit should not be considered impacted by these
events.”
SNAP:
Alaska Agrees to Pay Nearly $2.5 Million over Allegedly False SNAP Claims
On September 18, 2017, the U.S. Department of
Justice (DOJ) announced
that “[t]he Alaska
Department of Health and Social Services (ADHSS) has agreed to pay the United
States $2,489,999 to resolve allegations that it violated the False Claims Act
in its administration of the Supplemental Nutrition Assistance Program.”
According to the DOJ, beginning in 2009, ADHSS contracted with an outside
consultant who “injected bias into ADHSS’s quality
control process and resulted in ADHSS submitting inaccurate quality control
data and information to USDA.” The DOJ alleged that due to the inaccurate
submissions, ADHSS received “performance bonuses for fiscal years 2010, 2011,
2012, and 2013, that it should not have received.”
GMOs:
European Court Finds Italy’s GMO ban unlawful
On September 13, 2017, Reuters
reported that the European Court of Justice has determined that Italy wrongfully
banned the cultivation of the genetically modified (GMO) maize MON 810. Though previously approved by the European Union
in 1998, Italy nonetheless decided to ban MON 810 after two Italian studies
questioned the products safety. According
to the European Court of Justice, however, “unless there is significant
evidence that GMOs are a serious risk to human or animal health or the
environment, then member states cannot adopt emergency measures to prohibit
their use.”
Food
Safety: USDA Requires HACCP Reviews in Hurricane Affected Areas
On September 19, 2017, the USDA Food Safety and
Inspection Service (FSIS) issued
notice that establishments affected by recent hurricanes must reassess their
Hazard Analysis Critical Control Point plans and take appropriate actions. The notice stated that “[r]eview of FSIS data
and published research indicates the potential for an increase in Salmonella
incidence in regulated food products following flood events.” According to the
notice, inspection program personnel must also “verify whether the
establishment’s Sanitation SOPs and any cleaning and related monitoring are
adequate to address any additional sanitation problems related to the
hurricanes.”
FSMA:
FDA Offers Training for Carriers covered by the Sanitary Transportation of
Human and Animal Food Rule
On September 20, 2017, the U.S. Food and Drug
Administration (FDA) announced
that the “FDA is offering a one-hour training module, free of charge, to help
carriers meet the requirements of FDA’s Sanitary Transportation of Human and
Animal Food Rule.” According to the FDA, under the Sanitary Transportation Rule,
covered rail and motor vehicle carriers must “provide food safety training to
their personnel engaged in transportation operations.” The FDA stated that
while the offered “course is designed to provide basic food safety training to
transportation operations personnel…[it] does not describe specific operating
procedures and practices.” Instead the
training is only “intended to complement industry best practices.”
Pennsylvania
Actions and Notices
Milk Marketing Board
AgLaw HotLinks:
- USDA: Higher Ag Exports, Higher Trade Surplus In 2018 – Ag Web
- Cook County to consider repealing controversial sweetened beverage tax – IEG Policy
- Dicamba Lawsuits Mounting – Ag Web
- FDA delays some safety requirements for produce under FSMA to make them less complicated, costly – Food Navigator
- Organic Industry Sues USDA To Push For Animal Welfare Rules – NPR
- Penn State looks at safe, comfortable cage-free chicken housing – Feedstuffs
- Livestock groups seek waiver from trucking rules – Feedstuffs
- Digital GMO disclosure faces significant but manageable challenges, USDA study – Food Navigator
- Animal activists still targeting livestock, dairy producers – Farm and Dairy
- USDA can’t be sure organic imports are truly organic, reports OIG – Fern’s AG Insider
- Senate Passes Family Farmer Bankruptcy Clarification Act – Brownfield
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