Penn State Agricultural Law Blog: Agricultural Law Weekly Review

Written by:

M. Sean High—Staff Attorney

Audry Thompson—Research Assistant

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

Pesticides: California Couple Agrees to Reduced Roundup Damage Award

On July 26, 2019, Plaintiffs Alva and Alberta Pilliod agreed to reduce a jury award from over $2 billion to over $86 million for alleged harm caused by Monsanto Company’s glyphosate-based weed killer Roundup (Pilliod, et al. v. Monsanto Company, et al. Case No RG17862702). The Pilliods alleged that exposure to Roundup caused them both to develop non-Hodgkin’s lymphoma. On May 13, 2019, a California jury found that Monsanto Company’s actions regarding its product Roundup entitled Mr. Pilliod to over $37 million for economic and noneconomic loss and $1 billion in punitive damages. The same jury also determined that Mrs. Pilliod was entitled to over $18 million for economic and noneconomic loss and $1 billion in punitive damages. On July 19, 2019, the judge in the case—Winifred Y. Smith—issued an order granting Monsanto Company a new trial unless the Pilliods accepted the reduced damage award. In reducing the award, Judge Smith stated that “[t]he ratio between the compensatory award and the punitive awards were excessive” and that “[t]he United States Supreme Court has held that ‘an award of more than four times the amount of compensatory damages might be close to the line of constitutional impropriety.’"

Agricultural Labor: DOL and Guatemala Sign Agreement to Provide Safeguards for H-2A Workers

On July 30, 2019, the U.S. Department of Labor (DOL) signed an agreement with the nation of Guatemala seeking to enhance the H-2A nonimmigrant visa program by requiring certification that “labor recruiters are vetted and registered with their government.” DOL stated that the agreement does not replace existing U.S. laws, but is intended to serve as a “complement” to those laws. Accordingly, the agreement seeks to protect H-2A temporary workers from “criminal actors” and from being “charged excessive fees” in order to participate in the H-2A program. Additionally, the agreement is intended to help U.S. employers know whether a foreign labor recruiter is operating in “compliance with U.S. and Guatemalan law.” According to U.S. Secretary of Agriculture Sonny Perdue, the agreement “will allow for greater cooperation and will safeguard against disturbances in the H-2A visa program by protecting workers from illegal recruitment activity, providing our farmers with a stable, legal workforce.”

Industrial Hemp/Cannabis: Cornell University to House Industrial Hemp Seed Bank

On August 2, 2019, U.S. Senator Chuck Schumer announced that the nation’s only industrial hemp seed bank has been designated for location at Cornell University. Known as the Industrial Hemp Germplasm Repository program, the seed bank is being “rebuilt” using $500,000 in federal funds allocated under 2019 Omnibus Spending Package for the purpose of “characterizing, maintaining and distributing seeds.” According to Senator Schumer, a national industrial hemp seed bank has previously existed, but it was discontinued following the crop’s designation as a Schedule 1 controlled substance under the Controlled Substance Act of 1970 (the Act). With the passage of the 2018 Farm Bill, however, industrial hemp’s designation as a Schedule 1 controlled substance under the Act was removed. As a result, the return of a national industrial hemp seed bank was permitted.

Industrial Hemp / Cannabis: Ohio Governor Signs Bill Legalizing Hemp

On July 30, 2019, Ohio Governor Mike DeWine signed into law legislation legalizing hemp in the state (Senate Bill 57). According to the legislation, the director of agriculture is authorized to establish a program to license and regulate hemp cultivation and processing. Among the several provisions, the legislation:

Defines “hemp” and “hemp product” and specifies that neither the terms “drug” nor “marihuana” include “hemp” or “hemp product;”
Excludes tetrahydrocannabinols found in “hemp” and “hemp products” from the list of Schedule I controlled substances;
Specifies that the state board of pharmacy may not adopt rules including “hemp” or a “hemp product” in a schedule as a controlled substance;
Specifies that “the addition of ‘hemp’ or a ‘hemp product’ to any other product does not adulterate that other product;”
Creates a hemp program fund to enforce the provisions of the bill; and
Establishes a hemp marketing program.

The legislation is “declared to be an emergency measure necessary for the immediate preservation of the public peace, health, and safety” due to the “[need] to advance and promote hemp and hemp products” to “achieve consistency and conformity with federal law regarding hemp.” The legislation goes into effect immediately and requires the director of agriculture to submit a plan for the regulation of hemp cultivation to USDA within 180 days.

Food Safety: FDA Approves Soy Leghemoglobin as a Color Additive

On August 1, 2019, the U.S. Food and Drug Administration (FDA) published notice in the Federal Register of a final rule amending the “Listing of Color Additives Exempt from Certification” (21 CFR part 73), “to provide for the safe use of soy leghemoglobin as a color additive in [uncooked] ground beef analogue products,” such as ‘veggie’ burgers (84 FR 37573). According to FDA, the rule is in response to a color additive petition submitted in 2018 by Impossible Foods, Inc., which intends to expand its product line into direct-to-consumer uncooked “ground beef analogue products” that contain red-colored soy leghemoglobin. The color additive petition process allows for a 30-day period upon publication of the final rule within which any person adversely affected may file objections.

International Trade: U.S. Announces EU Beef Deal

On August 2, 2019, the Office of the U.S. Trade Representative (USTR) announced that an agreement has been reached with the European Union (EU) to expand imports of U.S. beef into the European market over the next seven years. Currently, the U.S. exports approximately 13,000 metric tons of duty-free beef into the EU each year at a value of $150 million. Under the new agreement, U.S. duty-free beef exports into the EU will initially increase to 18,500 metric tons annually at an approximate value of $220 million. By year seven, exports of U.S. duty-free beef into the EU are scheduled to increase to 35,000 metric tons annually at an approximate value of $420 million. Following the announcement, U.S. Secretary of Agriculture Sonny Perdue stated “E.U. consumers desire high quality products, and I have no doubt that when given the opportunity to purchase U.S. products we will see more Europeans choose to buy American.”

From National Ag Law Experts:

“Where are my Syngenta settlement payments: Why have checks not been issued yet?”, Paul Goeringer, Maryland Risk Management Education Blog (July 30, 2019)

“Case watch: LEBOR and Lake Erie battles linger”, Ellen Essman, Ag Law Blog – Agricultural Law & Taxation – Ohio State University Extension (August 1, 2019)

Federal Actions and Notices:

Agricultural Marketing Service

“Grain Inspection Advisory Committee Meeting”

“United States Warehouse Act Administrative Fees”

Animal and Plant Health Inspection Service

“BASF Plant Science, LP; Determination of Nonregulated Status of Canola Genetically Engineered for Altered Oil Profile and Resistance to an Imidazolinone Herbicide”

“Verdeca LLC; Determination of Nonregulated Status of Soybean Genetically Engineered for Yield Increase and Resistance to Glufosinate”

“National Wildlife Services Advisory Committee; Meeting”

Commodity Credit Corporation

“Trade Mitigation Program”

Environmental Protection Agency

“Renewable Fuel Standard Program: Standards for 2020 and Biomass-Based Diesel Volume for 2021, Response to the Remand of the 2016 Standards, and Other Changes”