Penn State Agricultural Law Blog: Agricultural Law Weekly Review

Written by:

Sara Jenkins—Research Assistant

M. Sean High—Staff Attorney

The following information is an update of recent local, state, national, and international legal developments relevant to agriculture:

WOTUS: EPA and Army Seek Additional Comment Regarding Repeal of WOTUS Rule

On July 12, 2018, the U.S. Environmental Agency (EPA) and the Department of the Army (Army) published notice in the Federal Register seeking additional comment on the agencies proposal to repeal the 2015 rule defining Waters of the United States (WOTUS) (83 FR 32227). On July 27, 2017, EPA and the Army announced a proposal to permanently repeal the 2015 WOTUS rule (82 FR 34899). Subsequently, the agencies accepted comments on the proposed repeal from July 27, 2017, through September 27, 2017. During that time, the agencies received more than 685,000 comments from interested parties. Because of this large response, EPA and the Army determined that it would be in the public interest to provide an additional opportunity for comment. Accordingly, the agencies will accept comments until August 13, 2018. Nevertheless, EPA and the Army stated, that “regardless of the timing or ultimate outcome of [the] additional rulemaking, the agencies are proposing a permanent repeal of the 2015 Rule at this stage.”

Food Labeling: FDA Intends to Limit the Labeling of “Milk” to Dairy Products

On July 17, 2018, Politico reported that U.S. Food and Drug Administration’s (FDA) Commissioner Scott Gottlieb’s intends to enforce regulations recognizing the term “milk” as a dairy product, instead of a plant-based product. The National Milk Producers Federation (NMPF) previously sent comments to the FDA calling for enforcement action to be taken. The NMPF was encouraged by Gottlieb’s comments, stating that several non-dairy products were misleading to consumers because they did not contain the same nutritional value as dairy products. The NMPF is hopeful that the FDA will begin enforcing federal labeling standards soon, holding food marketers accountable for the terms used on non-dairy products.

Agricultural Labor: USDA Releases Guidance on Changes to Housing for Seasonal Farm Workers

On July 10, 2018, the U.S. Department of Agriculture (USDA) released guidance on changes to the Housing Act of 1949 which now permits H-2A employers to gain access to Section 514 Farm Labor Housing loans (Consolidated Appropriations Act of 2018). Secretary Perdue expressed his support for the change, stating that Congress’ decision created a much-needed housing solution for temporary farm workers. The pre-application for Section 514 FLH loans is available now, and must be submitted by August 27, 2018.

Water Quality: Ohio Gov. Signs Executive Order to Reduce Agricultural Runoff into Lake Erie

On July 11, 2018, Cleveland.com reported that Ohio Governor, John Kasich, signed an executive order allowing the Department of Agriculture to more closely regulate farming activities affecting Lake Erie water quality. The order allows the Department of Agriculture to set certain requirements and nutrient management plans for farmers. For a more detailed analysis of Governor Kasich’s action see Peggy Kirk Hall’s article “Agricultural nutrients targeted in Clean Lake 2020 bill and Kasich Executive Orders” appearing in the Ohio Agricultural Law Blog on July 12, 2018.

Animal Welfare: California Voters Advance Animal Welfare Initiative for November Ballot

According to Feedstuffs, the Prevent Cruelty California (Prop 12) campaign received more than 660,000 signatures, moving it to California’s November ballot. Prop 12 would require that pork, eggs, and veal sold in the state meet certain standards including cage-free requirements and ensuring the animals were not confined in a cruel manner. The ballot measure would require a minimum of 144 sq. in. of floor space for each egg-laying hen, 24 sq. ft. for each breeding pig, and 43 sq. ft. for each veal calf. If passed, farms would have until the end of 2019 to comply with the calf requirements, and until the end of 2021 to comply with pig and hen requirements.

FSMA: FDA Expands Funding to $32.5 Million for States Implementing Produce Safety Rule

On July 12, 2018, the U.S. Food and Drug Administration (FDA) announced $32.5 million in funding supporting state efforts to implement the Food Safety Modernization Act Produce Safety Rule. The rule sets standards for safe growing, harvesting, and transporting of fruits and vegetables. Currently, 46 states have signed cooperative agreements with the FDA, establishing outreach, education, and inspection programs to help implement the rule. Participating states may use the funds for determining resource and infrastructure needs, conducting trainings, and recruiting personnel among other things.

Food Policy: Major Food Companies Create New Alliance to Improve Public Policy in the Food Industry

On July 12, 2018, four major food companies (Danone North America; Mars, Incorporated; Nestlé USA; and Unilever United States) announced the creation of the Sustainable Food Policy Alliance. The Alliance encourages member companies to do more in advancing solutions to issues in the food industry. For example, the Alliance advocates for public policy in five particular areas: consumer transparency, environment, food safety, nutrition, and communities. The four member companies are currently focusing on nutrition labeling, supporting a clearer definition of general terms like “healthy.” The Alliance encourages open dialogue on problems facing the U.S. food system, and seeks to impact positive change.

Agribusiness: Man Steals More Than $3 Million in Grain from Ohio Farmers

On July 9, 2018, Farm and Dairy reported that Richard J. Schwan, operator of Schwan Grain Inc., plead guilty to several theft charges totaling over $3 million in grain from thirty-five farmers. Schwan was hired by the victims to transport and sell their grain. Schwan filed several reports with the Ohio department of Agriculture falsifying information regarding sales of grain and deliberately withheld profits from the farmers who hired him. Schwan was ordered to pay $3,222,209.70 in restitution and will be sentenced on August 23rd.

From National Ag Law Experts:

What do Produce Suppliers Give Up When They Waive Their PACA Trust Rights?, Nicole Cook, Maryland Risk Management Education Blog, July 17, 2018

Provisions to Watch During Farm Bill Debate, Kristine Tidgren, Iowa State University, The Ag Docket, July 10, 2018

Pennsylvania Legislation:

Agriculture and Rural Affairs (S)

HB 1518 legislation to require the appointment of two alternate farmer members to the Agricultural Lands Condemnation Approval Board (referred to committee July 6, 2018)

SB 823 legislation amending Clean and Green eligibility regarding leases and agriculture related enterprises (referred to committee June 29, 2018)

Agriculture and Rural Affairs (H)

HB 2518 legislation amending the Agriculture Code regarding mobile food vendors (referred to committee June 19, 2018)

Pennsylvania Actions and Notices:

Department of Conservation and Natural ResourcesConservation and Natural Resources Advisory Council meeting

Penn State Research:

$500,000 grant to focus on how rural innovation happens, how to inspire more – Penn State News

AgLaw HotLinks:

Senate looks to tackle endangered species reform – Feedstuffs

Recent FAO and USDA Updates Provide Additional Perspective on U.S. Agricultural Trades – Farm Policy News

AFBF President Asking for Trade Resolutions – Brownfield Ag News

Why consumers fear GMO foods – Delta Farm Press