Agricultural Law Weekly Review—May 3, 2018

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:

Right to Farm Laws: Jury Awards Over $50 Million in Hog Nuisance Case

On April 26, 2018, a jury in the U.S. District Court for the Eastern District of North Carolina issued $50,750,000 in damages as a result of manure management practices at a North Carolina hog operation (McKiver v Murphy-Brown LLC, No. 7:14-CV-180-BR).  The case involved neighbor complaints regarding odors that emanated from an agricultural operation that had contracted with pork producer Murphy Brown LLC to raise roughly 15,000 hogs.  The jury determined that each of the ten neighbor plaintiffs in the case was entitled to $75,000 in damages as well as $5,000,000 in punitive damages.  The ruling is the first of twenty-six nuisance cases which have recently been brought against Murphy-Brown LLC, a subsidiary of Smithfield Foods.

Biotechnology: FDA Approves Indiana AquaBounty Salmon Facility

On April 26, 2018, The U.S. Food and Drug Administration (FDA) announced approval of an application by AquaBounty Technologies, Inc. to raise genetically engineered (GE) salmon at a land-based facility near Albany, Indiana.  The company, however, is unable to begin operations at the Indiana facility due to current law prohibiting the importation of the eggs necessary to produce GE salmon.  Accordingly, under Import Alert 99-40, until labeling guidelines have been established, FDA may not permit into interstate commerce food that contains GE salmon.  FDA stated that it considers salmon eggs to meet the definition of food.

Industrial Hemp/Cannabis: Hemp Related Businesses Must Demonstrate they are Legal before Being Eligible for SBA Loans

On April 3, 2018, U.S. Small Business Administration (SBA) issued a policy notice clarifying that a hemp-related business may be eligible to receive SBA financial assistance.  The notice stated that “businesses engaged in any activity that is illegal under federal, state or local law are ineligible for SBA financial assistance.” As a result, the notice asserted that both direct and indirect marijuana businesses are considered ineligible for SBA financial assistance. A hemp-related business, however, may be eligible if the business can demonstrated that its practices and products are legal under federal and state law.  According to the notice, “[e]xamples of legal hemp products include paper, clothing and rope.”

Biofuels: Japan Allows Importation of U.S. Corn-Based Ethanol

On April 17, 2018, the U.S. Grains Council (USGC) announced that Japan’s biofuel policy will now permit the importation of ETBE produced from U.S. corn-based ethanol.  According to USGC, prior to the recent change, Japan allowed only sugarcane-based ethanol for the production of the gasoline additive ETBE.  As a result of Japan’s change in policy, U.S. corn-based ethanol is now authorized to supply up to 44% of the country’s anticipated 217 million gallon demand of ethanol used to produce ETBE.

Food Policy: USDA Issues Revisions and Clarifications for the Processing of Donated Foods

On May 1, 2018, U.S. Department of Agriculture’s Food and Nutrition Service published notice in the Federal Register of a final rule changing the requirements for the processing of donated foods (83 FR 18913).  Under the new rule: (1) multi-State processors must now enter into National Processing Agreements in order to process donated foods into end products and (2) processors may now substitute certain commercially purchased beef and pork for donated beef and pork.  The new rule, which also attempts to streamline and modernize oversight of inventories of donated foods, goes into effect July 2, 2018.

National Ag Law Experts:

• Everhart, Sarah “Agritourism- I Know It When I See It”, Maryland Risk Management Education Blog, April 24, 2018.
• Langemeier, M., and M. Boehlje. "What are the Start-Up Challenges Associated with Farm Growth?" farmdoc daily (8):76, Department of Agricultural and Consumer Economics, University of Illinois at Urbana-Champaign, April 27, 2018.

Pennsylvania Legislation:

Agriculture and Rural Affairs (H)

• HB 2169 Legislation amending the Dog Law regarding attacks (referred to committee April 24, 2018)
• SB 792 Legislation regarding labeling requirements for lawn fertilizer (public hearing scheduled June 5, 2018)

Pennsylvania Actions and Notices:

Milk Marketing Board

• Dairy market issues; hearing

State Conservation Commission

• Action on odor management plans for concentrated animal operations and concentrated animal feeding operations and volunteers complying with the Commonwealth's Facility Odor Management Program

AgLaw HotLinks:

• Homes Or Gardens? Developers And Urban Farmers Grapple Over Vacant Land – NPR
• Arkansas Farmers Again Lose Access to Dicamba – Ag Web
• Best practices for rural economic development – Morning Ag Clips
• EU Member States back neonicotinoid ban – Food Navigator
• Overuse of farm fertilizer drives state's first effort to regulate it – Star Tribune
• Label changes for dicamba in 2018 – Farm and Dairy
• Pennsylvania Congressman Proposes Putting Whole Milk Back on the School Menu – Brownfield Ag News
• New York takes action against ICE raids to protect farm workers – Feedstuffs

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