Penn State Agricultural Law Blog: January 2019

Thursday, January 31, 2019

Agricultural Law Weekly Review—January 31, 2019

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:

Dairy Policy: Study Provides Strategy for Dairy Industry Growth

On January 23, 2019, the International Dairy Foods Association announced the release of a new research study regarding future growth for the dairy industry. Conducted by McKinsey & Company, the study called for domestic innovation, supply chain revisions, exports to foreign markets with dairy deficits, and direct investments in foreign markets with dairy deficits. According to McKinsey & Company, while dairy companies are currently better positioned to address domestic issues, future growth depends on global expansion; particularly expansion into African and Asian markets.

Agricultural Labor: OSHA Lessens Injury and Illness Reporting Requirements

On January 25, 2019, the Occupational Safety and Health Administration (OSHA) published notice in the Federal Register of a final rule reducing workplace injury and illness tracking requirements for large businesses (84 FR 380). Accordingly, establishments with 250 or more employees are no longer required to electronically submit information from OSHA Form 300 (Log of Work-Related Injuries and Illnesses) and OSHA Form 301 (Injury and Illness Incident Report) to OSHA. Such establishments, however, are still required to electronically submit information from OSHA Form 300A (Summary of Work-Related Injuries and Illnesses). The change is intended to protect sensitive worker information from the risk of potential public disclosure under the Freedom of Information Act.

Pesticides: Judge Allows Evidence Alleging Monsanto Sought to Influence Glyphosate Studies

On January 28, 2019, Reuters reported that a U.S. district judge has permitted “controversial evidence” in three separate lawsuits alleging that the glyphosate-based Roundup weed killer causes cancer. According to the report, U.S. District Judge Vince Chhabria has ruled that the plaintiffs can introduce evidence alleging that Monsanto had attempted to “ghostwrite studies and influence the findings of scientists and regulators during the first phase of upcoming trials.” According to Reuters, of the currently 9,300 Roundup case nationwide, 620 are before judge Chhabria.

Invasive Species: Researchers Discover Breakthrough Regarding Mite Harming Honey Bee Population

On January 29, 2019, the U.S. Department of Agriculture’s Agricultural Research Service (ARS) announced that researchers have discovered that previously held beliefs regarding a pest affecting the honey bee population were incorrect. According to ARS, scientists have determined that the Varroa mite (Varroa destructor) feeds on the honey bee’s fat body tissue rather than on its “blood” (hemolymph) as previously believed. ARS stated that this discovery provides “the first direct evidence that Varroa mites feed on adult bees, not just the larvae and pupae.” ARS believes that this finding will help in the development of more effective pesticides and other treatments used to combat the Varroa mite.

Biosecurity: USDA Confirms Virulent Newcastle Disease in Utah Poultry Flock

On January 18, 2019, the U.S. Department of Agriculture’s Animal and Plant Health Inspection Service (APHIS) confirmed the presence of virulent Newcastle disease in a small flock of backyard exhibition chickens in Utah. According to APHIS, the outbreak is believed to be connected to a recent outbreak in Los Angeles County, California because three of the birds in the flock had recently been moved to Utah from Los Angeles County. APHIS stated that virulent Newcastle disease is not a food safety concern and that no human cases of Newcastle disease have ever occurred from eating poultry products.

From National Ag Law Experts:

“‘Ag Gag’ Litigation”, Tiffany Dowell Lashmet, Texas Agriculture Law Blog – Texas A&M AgriLife Extension (January 21, 2019)

“You Can't Make Everybody Happy All the Time: the Costco Chicken Story”, Brianna J. Schroeder, Schroeder Ag Law Blog – Janzen Ag Law (January 21, 2019)

“Stay in Control: Good LLC Governance”, Cari Rincker, Rincker Law Blog – Rincker Law PLLC (January 25, 2019)

Pennsylvania Department of Agriculture

“PA Department of Agriculture Reminds Livestock, Pet Owners to Keep Animals Safe in Severe Cold”

Pennsylvania Legislation:

SB 85: Legislation regarding licensing fee exemptions for certain service dogs (Referred to Senate Agriculture and Rural Affairs Committee January 24, 2019)

HB 210: Legislation regarding pesticide labeling (Referred to House Agriculture and Rural Affairs Committee January 28, 2019)

HB 238: Legislation regarding the adoption of research animals (Referred to House Agriculture and Rural Affairs Committee January 28, 2019)

Pennsylvania Actions and Notices:

Department of Agriculture

Order; training and certification for certified parking meter inspectors

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

Penn State Research:

“Without habitat management, small land parcels do not protect birds” – Penn State News

“Entomology students' global research to be supported by inaugural Guyton Award” – Penn State News

AgLaw HotLinks:

“Undocumented dairy worker agrees to $1m settlement” – Feedstuffs

“Farm Bureau Adopts Policies on Government Shutdown, Trade, Opioids, Cell-Based Food and Broadband” – American Farm Bureau Federation

“Vaping Puts a Choke Hold on the Last of America's Tobacco Farms”

“People Strongly Against GMOs Had Shakier Understanding Of Food Science, Study Finds” – NPR

“Green New Deal Needs To Include Agriculture Technology” – Forbes

“Vertical farming: A sustainable solution to food insecurity?” – Food Navigator

Stay Informed:

Listen to our weekly Agricultural Law Podcast

Read our monthly Agricultural Law Brief newsletter

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

Thursday, January 24, 2019

Agricultural Law Weekly Review—January 24, 2019

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:

Industrial Hemp/Cannabis: Pennsylvania’s Re-Opens Industrial Hemp Program to Allow Commercial Growing Operations

On January 22, 2019, the Pennsylvania Department of Agriculture (PDA) announced that the department is re-opening the commonwealth’s 2019 industrial hemp program so as to include applications for commercial growing operations. The re-opening of the program follows the recent passage of the federal 2018 Farm Bill which, according to Pennsylvania Agricultural Secretary Russell Redding, includes “language removing industrial hemp from regulation under the Controlled Substances Act, and provid[es] for commercial production of industrial hemp.” Previously, industrial hemp growing permits were only available to institutions of higher education or to persons contracted with the department to grow industrial hemp for research purposes. PDA also announced, that under the re-opened program, there will no longer be a cap on the number of applications accepted by the department for 2019.

Industrial Hemp/Cannabis: Senators Request Update from FDA over Hemp-Derived Products

On January 16, 2019, Oregon Senators Ron Wyden and Jeff Merkley sent a letter to the U.S. Food and Drug Administration (FDA) seeking that the agency update federal regulations governing the use of certain hemp-derived products. According to the senators, the Hemp Farming Act, which passed as part of the 2018 Farm Bill, legalized the production and sale of industrial hemp and hemp derivatives such as hemp-derived cannabidiol. The senators assert, however, that action is needed by FDA because current regulations still prohibit the sale of hemp-based products across state lines.

Agricultural Finance: USDA to Re-open FSA Offices During Government Shutdown

On January 22, 2019, the U.S. Department of Agriculture (USDA) announced that despite the federal government shutdown, all Farm Service Agency (FSA) offices nationwide will re-open on January 24, 2019. The services provided by FSA, however, will be limited to those determined “critical” by USDA. According to U.S. Secretary of Agriculture Sonny Perdue, “FSA provides vital support for farmers and ranchers and they count on those services being available. We want to offer as much assistance as possible until the partial government shutdown is resolved.” Additionally, Secretary Perdue announced that the application deadline for farmers seeking payments under the Market Facilitation Program, as provided by the trade mitigation program, has been extended to February 14, 2019. Previously, farmers had until January 15, 2019 to apply to USDA for payments to offset retaliatory tariffs imposed by foreign nations.

Organic Agriculture: Action Filed to Prohibit Labeling of Hydroponics as Organic

On January 16, 2019, the Center for Food Safety (CFS) announced that it had filed an action demanding that the U.S. Department of Agriculture prohibit the labeling of hydroponic products as organic. According to CFS, because hydroponic agriculture is a food production method that does not use soil, it cannot comply with organic requirements regarding soil standards. CFS stated that “Hydroponic production systems are fundamentally different from organic production systems as defined by federal law—they do not promote soil health or conserve biodiversity.” CFS asserted that this failure to comply with soil requirements is a violation of the mandatory National Organic Program standards.

Food Policy: Canada Issues New Food Guidelines

On January 22, 2019, CBC reported that for the first time since 2007, the Canadian government has issued new food guidelines. According to the report, Canada’s food guidelines, which are primarily taught in schools and promoted by health professionals, no longer focus on food groups and recommended servings. Instead, an emphasis is placed on eating fruits, vegetables, whole grains, and plant-based proteins. Additionally, individuals are warned to limit processed foods and avoid sugars beverages. Finally, the guidelines encourage healthy eating habits such as cooking more often and eating meals together.

From National Ag Law Experts:

“Ohio Department of Agriculture: New Director Changes Course of Watersheds in Distress Rulemaking”, Evin Bachelor, Ohio Agricultural Law Blog, Ohio State University Extension (January 16, 2019)

“Trade”, John R. Block, Ag/FDA Blog – Olsson Frank Weeda Terman Matz PC (January 16, 2019)

“New Shutdown Contingency Plan Means Some IRS Services Resume”, Kristine A. Tidgren, The Ag Docket – Iowa State University Center for Agricultural Law and Taxation (January 15, 2019)

Pennsylvania Actions and Notices:

Milk Marketing Board

Hearing and presubmission schedule; all milk marketing areas; over-order premium

Penn State Research:

“Unraveling of 58-year-old corn gene mystery may have plant-breeding implications” – Penn State News

AgLaw HotLinks:

“Trump promises support for farm workers” – Feedstuffs

“‘Deeply frustrated and disappointed’: What does Brexit uncertainty mean for food and farming?” – Food Navigator

“Industrial hemp could become common sight in Pa. once again” – WITF

“New Diet Guidelines to Benefit People and the Planet: More Greens for All, Less Meat for Some” – The New York Times

“Trade with Europe, women in ag discussed at AFBF annual convention” – American Agriculturalist

“Agricultural Worker Program Act introduced” – Morning AgClips

Stay Informed:

Listen to our weekly Agricultural Law Podcast

Read our monthly Agricultural Law Brief newsletter

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

Thursday, January 17, 2019

Agricultural Law Weekly Review—January 17, 2019

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 Statutes: Court Strikes Down Iowa Law Criminalizing Undercover Investigations on Farms

On January 9, 2019, the U.S. District Court for the Southern District of Iowa struck down an Iowa law that blocked undercover investigations at farming operations (Animal Legal Defense Fund v. Reynolds, 4:17-cv-00362–JEG-HCA). Under Iowa’s Agricultural production facility fraud law (Iowa Code § 717A.3A), any person that gains access to an agricultural production facility by false pretense could be convicted of a serious misdemeanor for a first offense or an aggravated misdemeanor for a second or subsequent offense. The court determined that the Iowa law regulated speech protected under the First Amendment of the U.S. Constitution. According to the court, “[t]he right to make the kinds of false statements implicated by § 717A.3A—whether they be investigative deceptions or innocuous lies—is protected by our country’s guarantee of free speech and expression.”

Agricultural Labor: DOL Announces 2019 Adverse Effect Wage Rates for H-2A Workers

On December 26, 2018, the U.S. Department of Labor (DOL) published notice in the Federal Register of the 2019 Adverse Effect Wage Rates (AEWR) for H-2A temporary nonimmigrant agricultural laborers (83 FR 66306). The announced 2019 AWERs do not apply to agricultural labor or services involving the herding or production of livestock on the range. AEWRs are published annually and are the minimum wage rates DOL has determined that must be offered and paid to both H-2A workers and workers in corresponding employment. According to DOL, the purpose of AEWRs is to prevent the wages of similarly employed U.S. workers from being adversely affected. Of note, the AEWR for Pennsylvania was increased from $12.05 in 2018 to $13.15 in 2019.

Food Policy: SCOTUS to Decide if SNAP Redemption Data Should be Public

On January 11, 2019 the U.S. Supreme Court granted certiorari to determine if redemption data from the national Supplemental Nutrition Assistance Program (SNAP) should be made available to the public (Food Marketing Institute v. Argus Leader Media, No. 18-481). The case involves a Freedom of Information Act (FOIA) request, filed by South Dakota newspaper Argus Leader, demanding that the U.S. Department of Agriculture (USDA) disclose redemption data from every store participating in SNAP between 2005 and 2010. USDA has refused the request; stating that the data is “confidential” commercial information and exempt under FOIA. According to USDA, if forced to disclose the information, thousands of food and grocery retailers will suffer irreparable harm.

Biotechnology: China Approves Five GM Crops

On January 7, 2019, Reuters reported that China has approved the importation of five genetically modified (GM) crops. The approved products included DP4114 Qrome corn, DAS-44406-6 soybean (known as Enlist E3), RF3 canola, and MON 88302 canola. Reuters stated, that previously, China had not approved the importation of any GM crops since July 2017 and had delayed the approval of MON 88302 canola for six years. According to Reuters, a China representative of a U.S. agricultural industry association asserted that the approvals represented “a goodwill gesture” by the Chinese government aimed at resolving the trade issue.

International Trade: USDA Extends Deadline for Payments to Offset Losses Due to Tariffs

On January 8, 2019, the U.S. Department of Agriculture (USDA) announced that the agency was extending the application deadline for farmers seeking payments under the Market Facilitation Program, as provided by the trade mitigation program. Previously, farmers had until January 15, 2019 to apply to USDA for payments to offset retaliatory tariffs imposed by foreign nations. Due to the lapse in funding caused by the partial government shutdown, however, USDA Farm Service Agency (FSA) offices were closed at the end of business on December 28, 2018. As a result, farmers have been unable to apply for program payments. According to USDA Secretary Sonny Perdue, the application deadline will be extended “for a period of time equal to the number of business days FSA offices were closed, once the government shutdown ends.”

Pesticides: Arkansas State Plant Board Opens Public Comments on Dicamba Regulations

On January 7, 2019, the Arkansas State Plant Board (ASPB) announced a 30-day public comment period regarding the state’s proposed dicamba regulations. Previously, on December 6, 2018, ASPB passed draft regulations to change Arkansas’ rules regarding the “over-the-top” application of dicamba for cotton and soybeans for the 2019 growing season. The new rules would:

restrict applications of dicamba from May 21 to October 31;
require a one-mile buffer zone around research stations, organic crops, specialty crops, non-tolerant dicamba crops and other sensitive crops for applications taking place from April 16 to May 20; and
restrict the mixing of glyphosate with dicamba applications from April 16 to May 20

Following the a 30-day public comment period, ASPB will vote to approve this revised regulations. Public comments can be submitted online or mailed to the following address:

Arkansas State Plant Board

Attn: Pesticide Division

P.O. Box 1069

Little Rock, AR 72203

From National Ag Law Experts:

“Cabinet Luncheon”, John R. Block, Ag/FDA Blog – Olsson Frank Weeda Terman Matz PC (January 10, 2019)

Pennsylvania Department of Agriculture:

“Wolf Administration Announces Public-Private Initiative to Promote Innovative Farming Practices for Health, Environmental, and Economic Benefits in Chesapeake Bay Watersheds”

Pennsylvania Legislation:

SB 29: Legislation to establish the Pennsylvania Lost and Found Dog Registry (Referred to Senate Agriculture and Rural Affairs Committee, January 11, 2019)

Penn State Research:

“Understanding physics could lead to big gains in shale oil recovery” – Penn State News

AgLaw HotLinks:

“'Bay suffered a massive assault'; health declines for the first time in 10 years” – delmarva now.

“You Can Now Be Fined and Jailed for Calling This ‘Meat’” – Mother Jones

“ADC urges Trump administration to liquidate surplus cheese” – Dairy Reporter

“New research reveals how Americans are eating” – Feedstuffs

“‘Everybody’s wanting seed’: Hempseed market heats up after Farm Bill passage” – Hemp Industry Daily

“FDA looks to restart safety inspections for risky foods amid shutdown” – POLITICO

“Robotic Milkers and an Automated Greenhouse: Inside a High-Tech Small Farm” – The New York Times

Stay Informed:

Listen to our weekly Agricultural Law Podcast

Read our monthly Agricultural Law Brief newsletter

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

Thursday, January 10, 2019

Agricultural Law Weekly Review—January 10, 2019

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:

Animal Welfare: SCOTUS Denies Challenge to Massachusetts Animal Law

On January 7, 2019, the U.S. Supreme Court denied a petition brought by 13 state attorneys general challenging Massachusetts’s Prevention of Farm Animal Cruelty Act (PFACA) (Docket No. 22O149). PFACA prohibits the confinement of certain poultry, caves, and hogs “in a cruel manner” within Massachusetts. The law also prohibits the selling within Massachusetts of shell eggs, whole veal meat, or whole pork meat that has been produced from animals “confined in a cruel manner.” The attorneys general had alleged that by attempting to regulate farming in other states, PFACA violates the Commerce Clause. PFACA is scheduled to go into effect on January 1, 2022.

Animal Welfare: SCOTUS Denies Challenge to California Egg Law

On January 7, 2019, the U.S. Supreme Court denied a petition brought by 13 state attorneys general seeking to block California’s egg law (Docket No. 22O148). Enacted by voters in 2008, and later modified, the California law requires that eggs sold in the state may only come from laying-hens that are permitted the ability to lie down, stand up, fully extending their limbs, and turn around freely. The attorneys general had alleged that the California law violated the commerce clause and had cost consumers up to $350 million annually since taking effect in 2015.

Animal Welfare: Michigan Gov. Vetoes Restrictions on Sales of Shell Eggs

On December 21, 2018, Michigan Governor Rick Snyder vetoed legislation that would have attached animal confinement restrictions to the sale of shell eggs (SB 660). Under the proposed law, a business would have been prohibited from knowingly selling shell eggs produced from hens not housed in compliance with Michigan’s Animal Industry Act (AIA). Accordingly, AIA prohibits the confinement of veal calves, gestating sows, and egg-laying hens “in a way that prevents them from lying down, standing up, fully extending their limbs, or turning around freely.”

Transportation: DOT Exempts Livestock Haulers from ELD Requirement

On December 21, 2018, the National Pork Producers Council (NPPC) reported that the U.S. Department of Transportation has exempted livestock haulers from regulations requiring the use of electronic logging devices (ELDs) in their trucks. According to NPPC, such ELDs, “record driving time, engine hours, vehicle movement and speed, miles driven and location information.” Because of the exemption, livestock haulers may continue use paper logs to record required information. According to the Federal Motor Carrier Safety Administration, the exemption will remain in effect “until further notice.”

Packers and Stockyards Act: Court Finds Withdraw of Farmer Fair Practices Rules Proper

On December 21, 2018, the U.S. 8^th Circuit Court of Appeals denied a challenge to the U.S. Department of Agriculture’s (USDA) withdrawing of the Farmer Fair Practices Rules (Organization for Competitive Markets v. USDA, No. 17-3723). In 2016, USDA published a interim rule under the Packers and Stockyards Act (PSA) known as the Farmer Fair Practices Rules (FFPR). Under the FFPR, USDA was to no longer require a showing that an unfair practice had harmed the entire market in order to prove a violation of PSA. Subsequently, in 2017, USDA withdrew the interim rule. According to the court, USDA acted properly in its action to withdraw the interim rule.

Food Labeling: BPI Permitted to Refer to Lean Finely Textured Beef as “Ground Beef”

On December 28, 2018, Feedstuffs reported that the U.S. Department of Agriculture’s Food Safety & Inspection Service (FSIS) has granted Beef Products Inc. (BPI) permission to refer to its lean finely textured beef product as “ground beef.” According to an FSIS spokesperson, the agency “has determined that Beef Products Inc. product meets the regulatory definition of ground beef under the law in 9 CFR 319.15(a) and may be labeled accordingly.” Relatedly, in 2012, ABC News published a series of reports that referred to BPI’s lean finely textured beef product as “pink slime.” Subsequently, in 2012, BPI closed three production facilities and filed a defamation lawsuit against ABC News. In June of 2017, the parties settled for an undisclosed amount.

Food Labeling: Court Rejects Claim that “Almond Milk” is Mislabeled

On December 20, 2018, the U.S. 9^th Circuit Court of Appeals affirmed a lower court’s dismissal of a claim that an almond beverage had been mislabeled as “almond milk” (Painter v. Blue Diamond Growers 2:17-cv-02235). The plaintiff alleged that the almond beverage should have been labeled as “imitation milk” because the product is nutritionally inferior to dairy milk. According to the 9^th circuit, no jury would conclude that the product is inferior under the Food and Drug Administration’s definition of nutritional inferiority (21 C.F.R. § 101.3(e)(4)). Additionally, the 9^th circuit affirmed the lower court’s determination that no “reasonable consumer would ‘assume that two distinct products would have the same nutritional content.’”

From National Ag Law Experts:

“Shutdown Significantly Impacting IRS and USDA”, Kristine A. Tidgren, The Ag Docket – Iowa State University Center for Agricultural Law and Taxation (January 4, 2019)

“Government shutdowns - Who dreamed up this crazy idea?”, Kenneth D. Ackerman, Ag/FDA Blog – Olsson Frank Weeda Terman Matz PC (January 4, 2019)

Pennsylvania Case Law:

Corsnitz v. Department of Environmental Protection, No. 450 CD18_1-4-19, (Commonwealth Court quashed appeal as untimely because it was filed 33 days after the Environmental Hearing Board issued an order upholding a determination that a farm’s wetlands had been disturbed without a permit) (Filed January 4, 2018)

Pennsylvania Actions and Notices:

State Conservation Commission

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

Pennsylvania Department of Agriculture:

“Agriculture Department to Showcase Pennsylvania Technology Innovation Start-ups During 2019 Farm Show”

“PA Department of Agriculture Announces Winners of the Spotted Lanternfly Calendar Contest”

Penn State Research:

“A 'bran' new way to preserve healthy food with natural ingredients” – Penn State News

AgLaw HotLinks:

“China allows first-ever U.S. rice imports ahead of trade talks” – Reuters

“Farm workers in California now eligible for overtime after 9.5 hours” – KSBY

“So the FDA and USDA will share oversight for cell-based meat… but what will this mean in practice?” – Food Navigator USA

“Democrats mull strategy to shape WOTUS rewrite” – E&E Daily

“DOL asked to keep H-2A newspaper ad requirement” – Feedstuffs

“Peterson Elected House Ag Chairman” – The Progressive Farmer

Stay Informed:

Listen to our weekly Agricultural Law Podcast

Read our monthly Agricultural Law Brief newsletter

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

Thursday, January 3, 2019

Agricultural Law Weekly Review—January 3, 2019

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:

Farm Bill: President signs 2018 Farm Bill

On December 20, 2018, President Donald Trump signed into law the 2018 Farm Bill (H.R.2 - Agriculture Improvement Act of 2018). According to a White House press release, the new legislation addresses crop insurance, maintains disaster programs for farmers affected by weather market disruptions, promotes agricultural exports, expands rural broadband efforts, promotes voluntary conservation, facilitates water infrastructure, and encourages forest management. The White House stated that the 2018 Farm Bill, which passed the U.S. Senate by a vote of 87-13 and the U.S. House by a vote of 369-47, was the first farm bill since 1990 that was enacted in the same year it was introduced.

Food Labeling: USDA Issues GMO Labeling Final Rule

On December 21, 2018, the U.S. Department of Agriculture (USDA) published notice in the Federal Register of a final rule establishing the new national mandatory bioengineered (BE) food disclosure standard (83 FR 65814). BE foods are also commonly known as genetically modified foods. Under the new rule, food manufacturers, importers, and other entities that label foods for retail sale will be required to disclose information about BE food and BE food ingredients. Disclosure options include text, symbol, electronic or digital link, and/or text message. Additional options, however, are available for small food manufacturers. Implementation of the new rule begins on January 1, 2020, though implementation for small food manufacturers begins on January 1, 2021. For more information and to view the new BE labels, visit USDA here.

Conservation Easement: DOJ Brings Suit against Alleged Conservation Easement Tax Scheme

On December 19, 2018, the U.S. Department of Justice (DOJ) announced a complaint filed in the U.S. District Court for the Northern District of Georgia regarding an alleged illegal conservation easement syndication tax scheme. According to DOJ, the alleged scheme involves donations of conservation easements and false or fraudulent tax benefits from those donations. DOJ stated that the named defendants “sold at least 96 conservation easement syndicates resulting in the syndicates reporting over $2.0 billion of tax deductions…resulting in hundreds of millions of dollars of tax harm.”

FSMA: FDA Publishes Electronic User Guide for Accredited Third-Party Certification Program

On December 20, 2018, the U.S. Food and Drug Administration (FDA) announced the publication of an electronic user guide for the agency’s Accredited Third-Party Certification Program Portal. Established under the FDA Food Safety Modernization Act, the Accredited Third-Party Certification Program allows FDA to recognize “accreditation bodies” that may accredit third-party “certification bodies.” Upon receiving accreditation, third-party certification bodies will be permitted to conduct food safety audits and issue certifications for food facilities. According to FDA, the purpose of the guide is to help entities apply for recognition as accreditation bodies and to help recognized accreditation bodies manage their accounts.

Organic Agriculture: Farmer Charged for Falsely Marketing $140M Worth of Organic Grain

On December 19, 2018, the Associated Press (AP) reported that a Missouri farmer was being charged for falsely marketing more than $140 million worth of corn, soybeans and wheat as certified organic grains. According to the AP, Randy Constant marketed his grain products as certified organic even though at least 90% of the grain sold was non-organic. The AP stated that Constant’s scheme dated back to at least 2004 and that the alleged victims included food companies and their customers who paid higher prices for organic products.

From National Ag Law Experts:

“Texas Court Stays Judgment Rendering ACA Invalid”, Kristine A. Tidgren, The Ag Docket- Iowa State University Center for Agricultural Law and Taxation (December 30, 2018)

“AgTech Year in Reverse: 2018”, Todd Janzen, Janzen Ag Law (December 27, 2018)

Pennsylvania Actions and Notices:

Department of Environmental Protection

Public notice of the deadline extension to submit annual reports for concentrated animal feeding operations under the PAG-12 National Pollutant Discharge Elimination System general permit

Milk Marketing Board

Hearing and presubmission schedule; milk marketing area No. 5

Pennsylvania Department of Agriculture:

“Department of Agriculture Advises Consumers to Discard Unpasteurized Dairy from Lancaster County Farm, Quarantines Raw Cow’s Milk Products”

Penn State Research:

“Annual, biological rhythms govern milk production in dairy cows” – Penn State News

AgLaw HotLinks:

“Top players agree to develop plan for judicious use of antibiotics in animals” – Food Safety News