Penn State Agricultural Law Blog: Agricultural Law Weekly Review

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

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