Ag Law Weekly Review - October 31, 2019

Written by: 

Brook Duer —Staff Attorney

Audry Thompson—Research Assistant

           

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

Industrial Hemp/Cannabis: USDA Releases Interim Final Rule for Domestic Hemp Production

On October 29, 2019, USDA publicly announced and released the text of its interim regulations governing domestic hemp production.  The interim final rule implements Section 10113 of the 2018 Farm Bill and various new sections of the Agricultural Marketing Act of 1946, which it amended. Once published in the Federal Register, the rule will be immediately effective and expire after two years.  In the meantime, there will be a 60-day comment period and thereafter USDA anticipates issuing its final rule.  The rule adds new part 990 (“Domestic Hemp Production”) to 7 CFR. As stated in the 2018 Farm Bill, states wishing to have primary authority over hemp production must have a USDA-approved hemp production plan. Subpart B of new part 990 outlines the mandatory components and the approval and amendment processes for a state plan, as well as containing material provisions of interest regarding acreage reporting to states and FSA, grower data sharing with USDA, hemp sampling and THC testing, disposal of “hot” plants, and annual inspections.  In the absence of a USDA-approved plan, Subpart C governs hemp production through the application and issuance a USDA-issued hemp producer license and its compliance requirements.  Subpart E contains a provision stating that no state may prohibit the transportation of hemp or hemp products through their state if legally produced under federal law.  The interim final rule does not address import/export of seed or plant material or extracts, nor does it address seed certification. Those issues remain unchanged as presently regulated.

WOTUS:  Lawsuits Challenge Repeal of 2015 WOTUS Rule 

After the October 22, 2019, EPA repeal of the 2015 WOTUS Rule and simultaneous reinstitution of the pre-existing WOTUS regulatory framework dating to the 1980s, immediate legal action was taken by at least two interest groups to challenge that action. 

• On October 22, 2019, the New Mexico Cattle Growers’ Association filed a lawsuit in New Mexico federal court claiming the reinstitution of the old regulatory framework was unconstitutional.  New Mexico Cattle Growers' Association v. U.S. Environmental Protection Agency et al., 1:19-cv-00988. The suit alleges, among other things, that: (a) the result of EPA’s action is an unconstitutional delegation of legislative authority to an agency; (b) the term “navigable waters” should be declared void for vagueness; (c) the former interpretation and application of navigable waters was already rejected by the U.S. Supreme Court in the 2006 Rapanos v. U.S. case. 
• On October 23, 2019, a collection of environmental groups filed a lawsuit in South Carolina federal court alleging that the repeal and reinstitution of the old rule violated the Administrative Procedure Act, and interpretative caselaw, in multiple ways and should be invalidated. South Carolina Coastal Conservation League, et al. v. U.S. Environmental Protection Agency, et al., 2:19-cv-03006. 

EPA’s repeal becomes effective December 23, 2019, and thus far no federal court has entertained or granted an injunction preventing the repeal from taking effect. 

Pesticides: EPA Proposes New Rule on Pesticide Application Exclusion Zone Requirements

On October 24, 2019, the U.S. Environmental Protection Agency (EPA) announced a proposed rule to be published in the Federal Register revising the Application Exclusion Zone (AEZ) requirements of the Worker Protection Standard (WPS).  The AEZ refers to the area around an on-going pesticide application that acts as a buffer zone to prevent unnecessary human contact with the pesticide.  According to EPA, the proposed changes would limit an AEZ to the boundaries of a farmer’s own property, provide exemptions for immediate family members, simplify criteria for determining whether a 100-foot or a 25-foot AEZ should apply, and clarifies when to resume an application that has been suspended due to human entry into the AEZ.  In the announcement and proposed rule, EPA points out that persons outside a farm’s boundaries are still protected by the existing rule’s “do not contact” provisions prohibiting pesticide contact with all known persons, within or outside property lines.  Once published, a 90-day comment period will commence.    

Food Labeling: FDA States Enforcement Stance on New Nutrition Facts Labeling

On October 23, 2019, food manufacturers received information from the U.S. Food and Drug Administration (FDA) regarding enforcement of the long-pending required amendment of  Nutrition and Supplement Facts Labeling (81 FR 33741) set to take effect for large manufacturers (total sales in excess of $10 million) on January 1, 2020.  In response to a September 30, 2019 letter from the Food & Beverage Issue Alliance (“Alliance”) requesting, among other things, a “six-month period of enforcement discretion,” FDA revised the compliance language on its webpage devoted to the new labeling to read: “During the first 6 months following the January 1, 2020, compliance date, FDA plans to work cooperatively with manufacturers to meet the new Nutrition Facts label requirements and will not focus on enforcement actions regarding these requirements during that time.”

Pesticides: EU Approves Ban of Another Neonicotinoid Harmful to Pollinators  

On October 22, 2019, the majority of European Union (EU) countries approved the proposal of the European Commission not to extend approval of the use of the pesticide thiacloprid after its current approval expires on April 30, 2020.  Thiacloprid is a neonicotinoid sold by Bayer CropScience under the brand name Biscaya, and has been linked to harm to pollinators.  A July 2019 EU notification to the World Trade Organization of the impending action also states that harmful effects on human health and groundwater cannot be ruled out.  According to Bloomberg News, Bayer CropScience submitted a letter to EPA in 2013 voluntarily canceling all its thiacloprid product registrations in the United States.  This is the fourth neonicotinoid to be banned for outdoor use in the EU. Thiacloprid use increased as a replacement for three previously banned neonicotinoids. Use of one remaining neonicotinoid, acetamiprid, is authorized in the EU but is characterized as relatively low toxicity.  

Farm Bill:  USDA, DOE Collaborate on Rural Energy Technology Development 

On October 25, 2019, U.S. Department of Agriculture (USDA) and U.S. Department of Energy (DOE) announced the execution of a memorandum of understanding (MOU) pursuant to Section 6501 of the 2018 Farm Bill to collaboratively promote investment in rural energy infrastructure and the development of energy-related technologies and manufacturing in rural and agricultural communities. An interagency working group is to be established to implement the MOU’s terms and prepare a yearly report of actions and projects.  This MOU results from the 2017 establishment of, and resulting report from, the Task Force on Agriculture and Rural Prosperity, which recommended the development of all sources of energy including renewable sources to bolster rural prosperity. 

From National Ag Law Experts:

Tiffany Dowell Lashmet, Livestock and Community Property (October 28, 2019) 

Brigit Rollins, Protecting the Nest: Court Upholds Protections for Sage Grouse (October 24, 2019)

Penn State Research:

Katie Bohn, One Avocado A Day Helps Lower 'Bad' Cholesterol For Heart Healthy Benefits (October 28, 2019)

Behrend Students Discover Invasive Shrimp Species in Lake Erie (October 22, 2019)

Pennsylvania Department of Agriculture:

“Wolf Administration Announces $500,000 Available to Improve Elementary School Access to Healthy, Local Foods” (October 24, 2019)

Pennsylvania Executive Agencies—Actions and Notices:

Department of Agriculture

“Program Requirements for the Agriculture and Youth Organization Grant Program” (October 26, 2019)

Department of Environmental Protection

“2020 Environmental Education Grants; Notice of Availability” (October 26, 2019)

“The Clean Streams Law and the Federal Clean Water Act: Applications for National Pollutant Discharge Elimination System (NPDES) Permits and Water Quality Management (WQM) Permits” (October 26, 2019)

“National Oceanic and Atmospheric Administration Performance Evaluation of the Pennsylvania Coastal Resources Management Program; Public Meeting and Availability of Public Comment Period” (October 26, 2019)

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” (October 26, 2019)

Susquehanna River Basin Commission

“Grandfathering Registration Notice” (October 26, 2019)

“Projects Approved for Consumptive Uses of Water” (October 26, 2019)

Pennsylvania Legislature

H.B.1085 “An Act repealing the act of June 22, 1935 (P.L.414, No.182), known as the State Personal Property Tax Act” Presented to Governor (October 29, 2019)

S.B.147 “An Act amending Title 34 (Game) of the Pennsylvania Consolidated Statutes, in Pennsylvania Game Commission, further providing for accountability; and, in hunting and furtaking, further providing for hunting on Sunday prohibited and for trespass on private property while hunting and providing for hunting on Sunday without written permission,” Re-reported as Committed (October 29, 2019)

House Agriculture and Rural Affairs Committee

H.B.918 “An Act repealing the act of May 20, 1857 (P.L.617, No.658), entitled ‘An act making an Appropriation from the State Treasury, in aid of the Farmers' High School,’” Committee Vote—Report Bill as Amended (October 23, 2019)

H.B.1223 “An Act providing for the creation of keystone opportunity dairy zones to facilitate the economic development of Pennsylvania's dairy industry; authorizing expenditures; providing tax exemptions, tax deductions, tax abatements and tax credits; creating additional obligations of the Commonwealth and local governmental units; and prescribing powers and duties of certain State and local departments, agencies and officials,” Committee Vote—Report Bill as Amended (October 23, 2019)

H.B.1224 “An Act amending the act of April 28, 1937 (P.L.417, No.105), known as the Milk Marketing Law, in purpose, short title and definitions, further providing for definitions and construction; in general powers of the board, providing for coordination with Department of Revenue; and, in prices of milk, further providing for cooperatives,” Committee Vote—Report Bill as Committed (October 23, 2019)

H.B.1775 “An Act amending the act of May 15, 1945 (P.L.547, No.217), known as the Conservation District Law, providing for legislative report,” Committee Vote—Report Bill as Amended (October 23, 2019)

Federal Executive Agencies—Actions and Notices:

Agricultural Marketing Service

“National Organic Program; Amendments to the National List of Allowed and Prohibited Substances per April 2018 NOSB Recommendations (Crops and Handling),” Final Rule (October 23, 2019)

“Reorganization and Transfer of Regulations; Correction,” Final Rule (October 23, 2019)

Animal and Plant Health Inspection Service

“Concurrence with OIE Risk Designations for Bovine Spongiform Encephalopathy,” Notice (October 25, 2019) 

“Request for Revision to and Extension of Approval of an Information Collection; Introduction of Organisms and Products Altered or Produced Through Genetic Engineering,” Notice (October 25, 2019)

Delaware River Basin Commission

“Notice of Public Hearing and Business Meeting; November 13 and December 11, 2019,”  Notice (October 29, 2019)

Environmental Protection Agency

“Thirty-Sixth Update of the Federal Agency Hazardous Waste Compliance Docket,” Notice (October 28, 2019)

“Renewable Fuel Standard Program: Standards for 2020 and Biomass-Based Diesel Volume for 2021, and Response to the Remand of the 2016 Standards; Supplemental Notice of Proposed Rulemaking,” Proposed Rule (October 28, 2019)

“Receipt of a Pesticide Petition Filed for Residues of Pesticide Chemicals in or on Various Commodities (September 2019),” Proposed Rule (October 28, 2019)

“Mandipropamid; Pesticide Tolerances,” Final Rule (October 28, 2019)

“Pesticide Product Registration; Receipt of Applications for New Uses (September 2019),” Notice (October 25, 2019)

“Notice of Receipt of Requests to Voluntarily Cancel Certain Pesticide Registrations and Amend Registrations To Terminate Certain Uses,” Notice (October 25, 2019)

“Sulfoxaflor; Pesticide Tolerances,” Final Rule (October 25, 2019)

“Pesticide Product Registration; Receipt of Applications for New Active Ingredients (September 2019),” Notice (October 25, 2019)

“Pesticide Program Dialogue Committee (PPDC); Notice of Charter Renewal,” Notice (October 25, 2019)

“Fenbuconazole; Pesticide Tolerances,” Final Rule (October 25, 2019)

“Proposed Reissuance of NPDES General Permit for Concentrated Animal Feeding Operations Located in Idaho,” Notice (October 23, 2019)

Fish and Wildlife Service

“Federal Fish and Wildlife Permit Applications and Reports-Migratory Birds,” Notice (October 28, 2019)

“Migratory Bird Harvest Information Program and Migratory Bird Surveys,” Notice (October 24, 2019)

“Endangered and Threatened Wildlife and Plants; Removal of the Interior Least Tern From the Federal List of Endangered and Threatened Wildlife,” Proposed Rule (October 24, 2019)

“Endangered Species; Receipt of Recovery and Interstate Commerce Permit Applications,” Notice (October 23, 2019)

Food and Drug Administration

“Food Labeling: Calorie Labeling of Articles of Food Sold From Certain Vending Machines; Front of Package Type Size,” Final Rule (October 28, 2019)

Food and Nutrition Service

“Supplemental Nutrition Assistance Program: State Agency Options for Standard Utility Allowances and Self-Employment Income,” Notice (October 25, 2019)

Food Safety and Inspection Service

“Changes to the Salmonella Verification Testing Program: Proposed Performance Standards for Salmonella in Raw Ground Beef and Beef Manufacturing Trimmings and Related Agency Verification Procedures,” Notice (October 28, 2019)

Partnerships and Public Engagement Office

“Advisory Committee on Beginning Farmers and Ranchers,” Notice (October 25, 2019)

U.S. House Agriculture Committee Actions: 

H.R.4885 “To amend Public Law 87-788 (commonly known as the McIntire-Stennis Cooperative Forestry Act; 16 U.S.C. 582a-7) to provide for equal treatment of the District of Columbia with respect to funds made available under that Act,” Introduced; Referred to House Committee on Agriculture (October 28, 2019)             

H.R.4881 “To amend the Federal Food, Drug, and Cosmetic Act to ensure that consumers can make informed decisions in choosing between meat products such as beef and imitation meat products, and for other purposes,” Introduced; Referred to Committee on Energy and Commerce and Committee on Agriculture (October 28, 2019)

H.R.4874 “To amend the Department of Agriculture Reorganization Act of 1994 to establish the Rural Innovation and Partnership Administration and to amend the Consolidated Farm and Rural Development Act to establish the Rural Future Partnership Fund to invest in the rural areas of the United States to achieve their preferred future while maximizing their contribution to the well-being of the United States, and for other purposes,” Introduced; Referred to Committee on Agriculture, Committee on Financial Services, and Energy and Commerce (October 28, 2019)

S.2107 “Protecting America's Food and Agriculture Act of 2019,” Referred to Committee on Homeland Security and Committee on Agriculture (October 28, 2019)

H.R.4820 “To amend the Department of Agriculture Reorganization Act of 1994 to provide assistance to manage farmer and rancher stress and for the mental health of individuals in rural areas, and for other purposes,” Introduced; Referred to House Committee on Agriculture (October 23, 2019)

H.R.4816 “To amend the Commodity Exchange Act to modify provisions relating to whistleblower incentives and protection, and for other purposes,” Introduced; Referred to Committee on Agriculture and Committee on Oversight and Reform (October 23, 2019)

H.R.4813 “To prohibit large platform utilities from being a financial institution or being affiliated with a person that is a financial institution, and for other purposes,” Introduced; Referred to Committee on Financial Services and Committee on Agriculture (October 23, 2019)

H.R.4642 “Community Broadband Mapping Act,” Referred to Subcommittee on Commodity Exchanges, Energy, and Credit (October 22, 2019)

U.S. Senate Agriculture, Nutrition, And Forestry Committee Actions: 

S.2692 “A bill to amend the Richard B. Russell National School Lunch Act to improve direct certification, and for other purposes,” Introduced (October 24, 2019)

S.2695 “A bill to authorize the Secretary of Agriculture to provide for the defense of United States agriculture and food through the National Bio and Agro-Defense Facility, and for other purposes,” Introduced (October 24, 2019)

S.2704 “A bill to amend the Department of Agriculture Reorganization Act of 1994 to establish the Rural Innovation and Partnership Administration and to amend the Consolidated Farm and Rural Development Act to establish the Rural Future Partnership Fund to invest in the rural areas of the United States to achieve their preferred future while maximizing their contribution to the well-being of the United States, and for other purposes,” Introduced (October 24, 2019)

Follow us on Twitter at PSU Ag & Shale Law (@AgShaleLaw) to receive AgLaw HotLinks:

“Map Shows How Food Gets from Farms to Your Home” (October 27, 2019)

“Sunday Hunting Bill Moves on in Pennsylvania Legislature” (October 25, 2019)

“Study Shows Risk of ASF Entered U.S. Has Doubled” (October 25, 2019) 

“Harnessing the Power of Data to Improve Agricultural Policy and Conservation Outcomes” (2019)

“Northeast Dairy Co-op to Dock Farmers for Overproduction” (October 24, 2019) 

“PepsiCo Leaning In on Sustainability Goals: ‘Companies Like Us No Longer Have a Choice’” (October 23, 2019) 

“NIFA Grants Help Fund Farmer Stress Network” (October 22, 2019)

“FDA Proposes Animal Antibiotics Go Behind the Counter” (October 22, 2019) 

“USDA Launches Economic Development Hubs” (October 22, 2019) 

“Rural & Ag Groups Reaffirm Opposition to STELAR” (October 22, 2019) 

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Agricultural Law Weekly Review—November 29, 2017

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:

Air Quality: Court Extends Date for Certain Farm Emission Reporting

On November 22, 2017, the U.S. Environmental Protection Agency (EPA) announced  that the DC Circuit Court of Appeals has extended the initial reporting date for certain farms previously exempted from emission reporting requirements until January 22, 2018.  Accordingly, on April 11, 2017, the Court struck down an EPA final rule that had provided a complete agricultural exemption for reporting air emissions under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) as well as a partial agricultural exemption for reporting air emissions under the Emergency Planning and Community Right-to-Know Act (EPCRA).  EPA stated that the agency sought “additional time from the Court to delay the effective date so that EPA could develop guidance materials to help farmers understand their reporting obligations.” As a result, the Court allowed that farms affected by the April 11, 2017, decision will not be required to submit their initial reports until the Court orders its mandate enforcing the decision.  

Pesticides: EU Renews Glyphosate Approval

On November 27, 2017, the European Commission (EC) announced that the European Union (EU) Member States have agreed to renew the approval of the herbicide glyphosate for another 5 years.  According to the EC, the agreement was reached by a qualified majority of the Appeal Committee.  To achieve a qualified majority, a vote must be supported by 55% of the countries, representing at least 65% of the total EU population.  Accordingly, the EC reported that 18 Member States (representing 65.71% of the EU population) voted in favor of renewal, 9 Member States (representing 32.26 % of the EU population) voted against, and 1 Member State (representing 2.02 % of the EU population) abstained.

Pesticides: Pennsylvania Designates 19 Counties for Pesticide Disposal

On November 20, 2017, the Pennsylvania Department of Agriculture (PDA) announced the 2018 list of counties designated for disposal of unwanted or unusable pesticides through the Commonwealth’s CHEMSWEEP program.  Under CHEMSWEEP, licensed pesticide applicators, pesticide dealers and commercial pesticide application businesses in designated counties have the ability to register for the collection and destruction of unwanted or unusable pesticides.  Each year, different counties receive designation for participation in the program.  For 2018, the designated counties are: Adams, Allegheny, Beaver, Cameron, Carbon, Centre, Chester, Clearfield, Clinton, Elk, Franklin, Jefferson, Lancaster, Lehigh, Monroe, Northampton, Pike, Potter, and Washington.  According to PDA, since the CHEMSWEEP program was established in 1993, over “2.5 million pounds of unwanted or unusable pesticides have been properly destroyed.”

Organics: USDA Issues Assessment on New EU Organic Regulations

On November 17, 2017, the USDA Foreign Agricultural Service issued a report discussing how new European Union (EU) organic regulations may affect the U.S. organic sector.  According to the report, though initial projects promised extensive reforms, the USDA Foreign Agricultural Service foresees only minor changes.  The report stated that “[t]he biggest likely impact for the United States organic sector is that the EU will require trade agreements in place of the current framework, equivalence arrangements.”  

Pennsylvania Actions and Notices

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:

• Perdue eliminates GIPSA as standalone agency – Meat + Poultry
• Per capita consumption of dairy milk beverages plunges 22% between 2000 and 2016; plant-based alternatives pick up the slack – Food Navigator
• Study reveals ag sector feeds U.S. economy – Feedstuffs
• Price changes for seven foods could save thousands of lives per year, study says – EurekAlert!  
• Producers encouraged to comment on trucking rule – Feedstuffs
• The big Washington food fight – Politico
• World Without NAFTA Looks Like 1980s For Agriculture – Ag Web
• Urban Rural Poverty Gap Closing – Brownfield Ag News           

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Stay informed with our monthly Agricultural Law Brief located here.

For a comprehensive summary of daily judicial, legislative, and regulatory developments in agriculture and food, visit The Ag & Food Law Blog.

Agricultural Law Weekly Review—January 5, 2017

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:

International Trade: Public Hearing Scheduled on EU Beef Import Ban

On December 28, 2016, the Office of the United States Trade Representative (USTR) published notice in the Federal Register of a public hearing to discuss the possible reinstatement of trade actions against the European Union (EU) for bans on beef importation (81 FR 95724).  According to the notice, currently “[t]he EU bans the import of beef and beef products produced from animals to which any of six hormones have been administered for growth-promotion purposes.” The announced meeting is scheduled to take place before the Section 301 Committee, in Washington D.C., on February 15, 2017.

Raw Milk: PDA Issues Warning about Contaminated Cheese

On December 29, 2016, the Pennsylvania Department of Agriculture (PDA) issued a consumer warning regarding certain batches of raw milk cheese produced by Stone Meadow Farm in Centre County.  According to PDA, samples taken from the dairy by department inspectors tested positive for the bacteria Staphylococcus Aureus.  PDA stated that “[n]o illnesses have been reported that could be associated with the cheeses, which were sold between October 2016 and mid-December 2016.”

Labeling: FDA Extends Comment Period for Labeling of the Term “Healthy”

On December 30, 2016, the United States Food and Drug Administration (FDA) published notice in the Federal Register that the agency is extending the comment period regarding the use of the term “healthy” in the labeling of human food products (81 FR 96404).  Previously, the comment period was scheduled to close on January 26, 2017.  As a result of the FDA action, the comment period has been extended an additional 90 days until April 26, 2017.

Labeling: FDA Clarifies Compliance Date for Nutritional Labeling of Menu Items

On December 30, 2016, the United States Food and Drug Administration (FDA) published notice in Federal Register of a final rule clarifying the compliance date for the labeling of certain nutritional information for menu items in certain restaurants and retail food establishments (81 FR 96364).  According to FDA, previous notice stated that enforcement of the labeling regulation would begin on May 5, 2017, but no formal change had been made to the compliance date through rulemaking.  With the most recent notice, FDA formally confirmed that the compliance date for the menu regulation is also May 5, 2017.

Farm Succession: USDA to Offer Early Termination Opportunity for Certain CRP lands

On December 29, 2016, the United States Department of Agriculture (USDA) announced that beginning January 9, 2017 the department “will offer an early termination opportunity for certain Conservation Reserve Program (CRP) contracts, making it easier to transfer property to the next generation of farmers and ranchers, including family members.”  According to USDA, “[t] he land that is eligible for the early termination is among the least environmentally sensitive land enrolled in CRP.” USDA stated, that “[n]ormally if a landowner terminates a CRP contract early, they are required to repay all previous payments plus interest.” Under the new policy, however, repayment is waived “if the land is transferred to a beginning farmer or rancher through a sale or lease with an option to buy.”

International Trade: U.S. Wins Dispute Regarding Indonesia Trade Barriers to Agricultural Products

On December 22, 2016, the Office of the United States Trade Representative (USTR) announced that “a World Trade Organization (WTO) dispute settlement panel has found in favor of the United States’ challenge to Indonesia’s wide-ranging restrictions and prohibitions on horticultural products, animals, and animal products.” According to USTR, “[t]he United States, working closely with New Zealand as co-complainant, filed this dispute to address trade barriers in Indonesia that restrict the importation of American fruits and vegetables (such as apples, grapes, and potatoes), animal products (such as beef and poultry), and other agricultural products.” USTR stated that “[t]he WTO Panel agreed with the United States on 18 out of 18 claims that Indonesia is applying import restrictions and prohibitions that are inconsistent with WTO rules.”

Animal Drugs: FDA Amends Regulation for Animal Drugs Used in Animal Feed

On December 27, 2016, the United States Food and Drug Administration (FDA) published notice in the Federal Register that the agency “is amending the animal drug regulations to reflect approval of 71 supplemental new animal drug applications (NADAs) and 35 supplemental abbreviated new animal drug applications (ANADAs) for revised labeling reflecting a change in marketing status from over-the-counter (OTC) use to use by veterinary feed directive (VFD) for antimicrobial drugs of importance to human medicine administered to food-producing animals in medicated feed” (81 FR94991).  FDA stated, that where applicable, the agency “is also withdrawing approval of those parts of the NADAs that pertain to use of these antimicrobial drugs for growth promotion indications.”

Follow us on Twitter at PSU Ag & Shale Law (@AgShaleLaw) to receive AgLaw HotLinks

Recent AgLaw HotLinks include:

• World Organization for Animal Health creates online portal to coordinate bird flu information - Feedstuffs
• “Farmers cultivating success as direct marketers” - MeatPoultry
• Results are back from OIG audit at Nebraska-based US Meat Animal Research Center - Brownfield
• Cost-sharing program for hemp research in Pennsylvania - PA.gov
• New report suggests U.S. sugar producers will be disadvantaged by GMO labeling rules - Brownfield
• Bird flu woes continue as outbreak continues to spread across Europe and Asia - Meatingplace
• Major agricultural accomplishments for Pennsylvania in 2016 - PA.gov 

Connect with us on Facebook! Every week we will post the CASL Ledger which details all our publications and activities from the week.

Stay informed with our monthly Agricultural Law Brief located here.

Agricultural Law Weekly Review—July 28, 2016

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:

Food Security: President Signs Global Food Security Act

On July 20, 2016, President Obama signed into law S.1252, the Global Food Security Act of 2016, which “requires the President to develop and implement a Global Food Security Strategy to promote global food security, resilience, and nutrition.” According to the enacted legislation, the President is required to submit the strategy to Congress by October 1, 2016.

Checkoff Programs: USDA Issues Proposed Changes to Soybean and Beef Programs

On July 15, 2016, the United States Department of Agriculture (USDA) Agricultural Marketing Service (AMS) published notice in the Federal Register of a proposed rule that would amend both the soybean and beef checkoff programs so as to allow producers “to request, under certain circumstances, that their assessments paid to a State board or council authorized under their respective statutes, be redirected to the national program” (81 FR 45984).  The comment period for the proposed rule ends September 13, 2016.

GMOs: EU Commission Announces Approval of Three Biotech Soybeans

On July 22, 2016, the European Commission issued a press release announcing the approval of three varieties of genetically modified soybeans (soybean MON 87708 x MON 89788, soybean MON 87705 x MON 89788 and soybean FG 72) for both food and feed uses in the European Union.  The European Commission did state, however, that the decision to approve the genetically soybeans does not extend to cultivation.

Food Safety: UK Reports Measures Improve Egg Safety

On July 25, 2016, the Food Standards Agency (FSA) of the United Kingdom Advisory Committee on the Microbiological Safety of Food (ACMSF) issued a report regarding the “microbiological risk from shell eggs and their products’.” According to the report, since 2001, microbiological risk from Salmonella in UK hen shell eggs has been significantly reduced due to the “Lion Code quality assurance scheme, which comprises a suite of measures including: vaccination for Salmonella Enteritidis and Typhimurium, a cool chain from farm to retail outlets, enhanced testing for Salmonella, improved farm hygiene, effective rodent control, independent auditing, date stamping on each individual egg and traceability.” As a result, the report stated that UK shell eggs produced under the Lion Code may safely be consumed raw by “vulnerable groups” such as pregnant women, the young, and the elderly.

Agricultural Law Weekly Review—March 17, 2016

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:

International Trade: Peru Agrees to Reduced Restrictions on U.S. Beef

On March 14, 2016, the United States Department of Agriculture (USDA) issued a press release announcing that Peru has agreed to reduce restrictions on the importation of U.S. beef and beef products.  According USDA, previously, Peru had only accepted the importation of U.S. beef and beef products from U.S. “establishments that participated in the USDA Agricultural Marketing Service (AMS) Export Verification (EV) programs.” Now, however, Peru will accept for importation “beef and beef products from all federally inspected U.S. establishments.” According to USDA, the announced agreement reflects a 2013 decision by the World Organization for Animal Health’s (OIE) to upgrade the U.S.’ bovine spongiform encephalopathy (BSE) risk classification from “controlled BSE risk” to “negligible BSE risk.” For more information, see previous blog post.

GMO Labeling: Senate Votes against Ending Debate on GMO Labeling Bill

On March 16, 2016, the U.S. Senate voted 48-49 against a motion to invoke cloture on Senate Agriculture Committee Chairman Pat Roberts’ proposed amendment that would create a “national voluntary bioengineered food labeling standard” (S.2609).  An attempt to end debate and advance the legislation to a vote, the motion fell short of the 60 votes required under Senate Rule 22 (“the cloture rule’).  Senate Majority Leader Mitch McConnell (R-KY), a supporter of the proposed amendment, voted against the motion, and as a result, retains the ability to bring the bill back for a vote in the event a later agreement is reached.

GMO Labeling: Washington Judge Rules GMA Knew of Plan to Conceal Funds to Influence Ballot Initiative

On March 9, 2016, the Superior Court of the State of Washington for Thurston County held that the Grocery Manufacturers Association (GMA) members knew of a plan by GMA to conceal funding efforts made to defeat the passage of Washington’s 2013 ballot Initiative 522; a proposal designed to “require the labeling on all packaged food products that contained Growth Modified Organisms (GMOs)” State of Washington v. Grocery Manufacturers Association (Case No. 13-2-02156-8).  The court held that as a matter of law, GMA’s actions violated the public finance provisions of Washington’s public disclosure law RCW 42.17A, but, in regards to assessing penalties, a question of fact still remained as to whether GMA’s violations were intentional.

Clean and Green: Agricultural and Rural Affairs Committee Votes to Amend Application of Use Values

On March 15, 2016, the Pennsylvania State Senate Agricultural and Rural Affairs committee voted unanimously to report House Bill 806 (H.B. 806) out of committee. The legislation, intended to amend the Pennsylvania Farmland and Forest Land Assessment Act of 1974 (commonly known as Clean and Green) so as “to prohibit the application of use values that result in assessments higher than fair market value,” now moves to the full senate for first consideration. 

SCOTUS: Court Rejects Request by Deere to Stay New Hampshire Equipment Dealer Law

On March 4, 2016, the United States Supreme Court denied a request by Deere & Company, et al. (Deere) to recall and stay a lower court ruling pending the filing of a writ for certiorari (Docket No. 15A910).  As a result, Deere must abide by the Supreme Court of New Hampshire’s ruling upholding the New Hampshire Vehicle Franchise Act (known as the “dealer bill of rights”) regulating equipment dealer contracts regarding such matters as termination of dealer agreements, warranty obligations, and business transfer rights (Deere & Company v. State, 2015 WL 9467010). 

Menu Labeling: FDA Delays Menu Labeling Enforcement

On March 9, 2016, the U.S. Food and Drug Administration (FDA) issued a statement announcing that FDA would be delaying enforcement of the Menu Labeling Final Rule until “one year after it issues final, Level 1 guidance on menu labeling.” FDA is currently considering comments, and has not set a time for when it will issue final, Level 1 guidance on menu labeling.  Previously, FDA menu labeling enforcement was scheduled to begin December 1, 2016. 

EU: European Commission Announces Support for Struggling Farmers

On March 14, 2016, the European Commission issued a press release announcing a “package of exceptional measures” designed to support struggling European Union farmers in the “dairy, pigmeat, and fruit and vegetable sectors.” According to the Commission, the measures are an acknowledgement “of the current agricultural crisis” and will be in addition to the €500 million agricultural support package announced by the Commission in September 2015.  

EU Extends Measures to Combat Highly Pathogenic Avian Influenza

Written by M. Sean High – Staff Attorney

Effective November 30, 2015, the European Union (EU) passed Implementing Decision 2015/2225.  The legislation, which extends current measures intended to protect against outbreaks of highly pathogenic avian influenza, coincides with recent avian influenza detections in France. 

Extended under 2015/2225 was Decision 2005/734/EC; a biosecurity measure designed to 1) reduce the spread of highly pathogenic avian influenza from wild birds to domestic poultry; and 2) provide a system for early detection of the disease.  Also extended under 2015/2225 was Decision 2006/415/EC; a measure designed to protect EU member states in the event of an outbreak of highly pathogenic avian influenza.

According to the text of 2015/2225, because of recent outbreaks and the serious risks associated with avian influenza, “[i]t is therefore appropriate to continue mitigating the risks posed by highly pathogenic avian influenza by maintaining biosecurity measures, early detection systems and certain protection measures in relation to future outbreaks of that disease in poultry flocks in the Union.”

All measures extended by 2015/2225 were scheduled to expire December 31, 2015 and have been extended until December 31, 2017.