Agricultural Law Weekly Review—August 4, 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:

GMO Labeling: President Obama Signs Federal GMO Labeling Legislation

On July 29, 2016, President Obama signed into law S.764 which creates the National Bioengineered Food Disclosure Law.  The new law authorizes a national labeling standard for foods containing genetically modified organisms (GMO) and preempts state GMO labeling laws.  As a result of the enacted legislation, the United States Department of Agriculture Agricultural Marketing Service announced that the department “has established a working group to develop a timeline for rulemaking and to ensure an open and transparent process for effectively establishing this new program.”

Water Quality: DEP Announces Availability of Draft 2016 Integrated Water Quality Monitoring and Assessment Report

On July 30, 2016, the Pennsylvania Department of Environmental Protection (DEP) published notice in the Pennsylvania Bulletin that the department is making available for public comment DEP’s draft 2016 Integrated Water Quality Monitoring and Assessment Report.  According to DEP, the draft report “includes both a narrative description of the Commonwealth's water quality management programs (formerly the Federal Clean Water Act section 305(b) Report) and waterbody-specific lists depicting the status of Commonwealth surface waters as required by section 303(d) of the Federal Clean Water Act (33 U.S.C.A. § 1313(d)).” Public comment on the draft report will be accepted by DEP through September 12, 2016.

GE Cultivation: Unapproved GE Wheat Discovered in Washington State

On July 29, 2016, the United States Department of Agriculture (USDA) Animal and Plant Health Inspection Service (APHIS) announced that the department “has confirmed the discovery by a farmer of 22 genetically engineered (GE) wheat plants growing in an unplanted agricultural field in Washington State.” APHIS stated that the GE wheat in question “was developed by the Monsanto Company and is referred to as MON 71700.”  According to APHIS, no evidence exists that the GE wheat has entered into commerce.

Pesticide Ruling: EPA Appeals Board Upholds Cancellation of Flubendiamide

On July 29, 2016, the Environmental Protection Agency Environmental Appeals Board upheld a cancelation notice regarding the pesticide flubendiamide.  According to the ruling, Bayer CropScience LP and Nichino America, Inc., the registrants of flubeniamide, had improperly refused to voluntarily cancel flubendiamide after the Pesticide Program concluded that the pesticide had caused “unreasonable adverse effects on the environment.” The Appeals Board did hold, however, that the “Pesticide Program’s determination to prohibit the continued sale and distribution of existing stocks of flubendiamide end-use products by distributors and retailers other than Bayer and Nichino is not supported by the record.”

Food Safety: USDA Announces Final Rule for Peanut Handling

On August 1, 2016, the United States Department of Agriculture (USDA) Agricultural Marketing Service (AMS) published notice in the Federal Register of a final rule “implement[ing] a recommendation from the Peanut Standards Board (Board) to revise the minimum quality and handling standards for domestic and imported peanuts marketed in the United States” (81 FR 50283).  According to AMS, the final rule “revises the minimum quality, positive lot identification, and reporting and recordkeeping requirements under the Standards…[and] also makes numerous other changes to better reflect current industry practices and revises outdated language.” The effective date of the final rule is August 31, 2016.

International Trade: Brazil Reopens Market to U.S. Beef

On August 1, 2016, the United States Department of Agriculture (USDA) issued a press release announcing that an agreement has been reached with “Brazil's Ministry of Agriculture, Livestock and Food Supply to allow access for U.S. beef and beef products to the Brazilian market for the first time since 2003.”  According to USDA, “Brazil's action reflects the United States' negligible risk classification for bovine spongiform encephalopathy (BSE) by the World Organization for Animal Health (OIE) and aligns Brazil's regulations to the OIE's scientific international animal health guidelines.” 

Agricultural Law Weekly Review: February 19, 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:

GE Crops: APHIS Publishes Notice of Intent to Deregulate Monsanto GE Maize 

On February 17, 2016, the United States Department of Agriculture (USDA) Animal and Plant Health Inspection Service (APHIS) published notice in the Federal Register regarding Monsanto Co.’s request to deregulate genetically engineered (GE) maize designated as event MON 87419.  According to the published notice, “APHIS has determined that maize designated as event MON 87419 is unlikely to pose a plant pest risk” and as a result, APHIS has made “a preliminary determination of nonregulated status of maize designated as event MON 87419.” Comments on the published notice will be received for 30 days from the date of publishing in the Federal Register. 

Raw Milk:  FDA Announces Reevaluation of Testing of Raw Milk Cheese 

On February 8, 2016, the United States Food and Drug Administration (FDA) issued a press release announcing that FDA will reevaluate the testing of raw milk cheese for non-toxigenic E. coli.  The press release stated that FDA was responding to concerns raised by cheese makers “suggesting that the FDA is applying safety criteria that may, in effect, limit the production of raw milk cheese without demonstrably benefiting public health.” According to the press release, FDA “will continue to inspect cheese-making facilities and test for pathogens in domestic and imported cheese but, in the meantime, FDA is in the process of pausing its testing program for non-toxigenic E. coli in cheese.”

Labeling: Court Affirms Federal Authority over Meat and Poultry Labeling 

On February 12, 2016, the United States Court of Appeals for the Ninth Circuit affirmed a lower court ruling that California was barred from “enforcement of California’s statutory prohibition against nonfunctional slack fill (i.e., empty space between a product and its packaging that serves none of a list of specified purposes)…as applied to meat and poultry products” (Case No. 13-16893).  The Court held that “California’s nonfunctional slack fill provisions…are expressly preempted by the Federal Meat Inspection Act (“FMIA”) and the Poultry Products Inspection Act (“PPIA”)” and that “Congress intended to allow meat and poultry packaging to be subject to less specific regulation than other types of product packaging.”

Labor: Class Action Brought Against Meat Processor over Employment of Illegal Workers 

On February 16, 2016, a class action lawsuit was filed in the United States District Court for the Northern District of India on behalf of hourly-paid production workers at the Indiana Packers Company’s (IPC) meat processing facility (Case No. 4:16-cv-00015-JD-JEM).  The class action lawsuit was brought pursuant to the Racketeer Influenced and Corrupt Organizations Act (RICO) and alleged that IPC engaged in “a scheme to employ vast numbers of illegal immigrants at the plant [in an effort] to depress wages.” According to the filed complaint, IPC carried out its “scheme” by knowingly hiring illegal workers and making false attestations on I-9 Forms that the illegal workers were authorized for employment in the United States.

SNAP: USDA Proposes Rule to Require Healthier Choices 

On February 17, 2016, the United States Department of Agriculture (USDA) published a proposed rule in the Federal Register “to make changes to the Supplemental Nutrition Assistance Program (SNAP) regulations pertaining to the eligibility of SNAP retail food stores.”  According to the proposed rule, SNAP-authorized retailer food stores will be required to stock a wide variety of healthy foods so that SNAP program recipients will be provided with increased access to healthy food options.  Comments on the proposed rule will be received for 60 days from the date of publishing in the Federal Register.

Agricultural Law Weekly Review: February 12, 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:

Avian Influenza: New HPAI Indemnity Rules become Effective

On February 9, 2016, the United States Department of Agriculture (USDA) Animal and Plant Health Inspection Service (APHIS) published in the Federal Register an interim rule amending the regulations governing the payment of indemnity claims for highly pathogenic avian influenza (HPAI) (81 FR 6745).  The new regulations became effective upon the interim rule’s February 9, 2016 publication in the Federal Register and amend the previous HPAI indemnity regulations to: 1) allow indemnity payments to be split between poultry/egg owners and contractors; 2) clarify that eggs are eligible for indemnity payments; and 3) require that owners and contractors of large facilities provide statements that prior to the detection of HPAI in their facility, they had in place, and were following, a biosecurity plan.  For more information see previous Penn State Agricultural Law Blog post.

Labeling: House Votes to Make Menu Labeling Less Stringent

On February 12, 2016, the United States House of Representatives voted 266 – 144 to pass the Common Sense Nutrition Disclosure Act of 2015 (H.R. 2017), which would make less stringent the Food and Drug Administration’s (FDA) menu labeling requirements for nutrition information displayed  by certain food establishments (such as restaurants, pizza shops, supermarkets, and convenience stores).  Significantly, on February 10, 2016, the Obama administration issued a press release opposing H.R. 2017, stating that if enacted, the legislation “would reduce consumers' access to nutrition information…likely create consumer confusion…[and] create unnecessary delays in the implementation of menu labeling.”

Avian Influenza: Indiana Animal Health Officials Set Date to Remove HPAI Restrictions

On February 4, 2016, the Indiana State Board of Animal Health issued a press release announcing the lifting of certain restrictions that had been in place since a January outbreak of highly pathogenic avian influenza (HPAI) within the state.  According to the press release, provided that no new HPAI tests are reported, the state “expects to release the 10-km control area and the additional 10-km surveillance zone on Monday, Feb. 22.” The quarantines on infected sites, however, will continue “until final site-cleanup requirements are met.”

Animal Welfare: Judge Blocks Horse Slaughter and Sale of Horsemeat in New Mexico

On February 4, 2016, New Mexico District Judge Francis J. Mathew issued a Stipulated Final Order permanently enjoining Defendants Valley Meat Company, LLC, Dairyland Packing, Inc., Mountain View Packing, LLC, and Richard De Los Santos, non-parties Jose Hernandez, Ryoichi Okubo, and D’Allende Meats, LLC, “from slaughter horses for human consumption, and from manufacturing, selling or distributing horsemeat products for human consumption in New Mexico.”  The case was brought against the Defendants by New Mexico Attorney General Hector H. Balderas. 

Crop Insurance: Kentucky Farmer Sentenced for Crop Insurance Fraud

On February 2, 2016, the United States Attorney’s Office for the Western District of Kentucky issued a press release announcing that Kentucky farmer Tracy E. Dillard “was sentenced by United States District Judge Greg N. Stivers, to serve eight months in prison followed by a three year term of supervised release and ordered to pay restitution in the amount of $711,958.00 for committing crop insurance fraud.”  According to the press release, Dillard had previously admitted in court to “knowingly making false statements and reports on insurance claims submitted to Producers Agriculture Insurance Company, a company insured by the Federal Crop Insurance Corporation (FCIC).”

GMOs: Kenya Approves Limited Release of GM Maize Seeds

On February 9, 2016, Kenya’s National Biosafety Authority “granted a conditional approval only for environmental release for the purpose of conducting National Performance Trials (NPTs) and collecting compositional analysis data but not for cultivation, importation or placing on the market of the Bt Maize.” Bt Maize (MON810) is a Monsanto produced, genetically modified, insect-protected corn hybrid.

Food Safety: Slaughterhouse Owner Sentenced for Selling Condemned and Uninspected Cattle

On February 11, 2016, the United States Attorney’s Office for the Northern District of California issued a press release announcing that “Jesse ‘Babe’ Amaral, Jr., owner of the now-defunct Petaluma slaughterhouse Rancho Feeding Corporation, was sentenced today to 12 months and one day of imprisonment for leading a conspiracy to distribute adulterated, misbranded, and uninspected meat.” In addition to the aforementioned prison time, United States District Judge Charles R Breyer also sentenced Amaral “to two years’ supervised release, one of which will be served in a residential re-entry facility.”

John Deere Expands In-Cab Data Options For Farmers

Written by Katharine Richter

On November 3, 2015, Deere & Company (NYSE:DE) and the Climate Corporation, a subsidiary of Monsanto (NYSE:MON), announced definitive agreements were signed for “Deere to acquire the Precision Planting LLC equipment business and to enable the exclusive real-time data connectivity between certain John Deere farm equipment and the Climate FieldView platform.” 

The terms in the agreements include that Deere will “purchase Precision Planting while Climate will retain the digital agriculture portfolio” which can be integrated into the Climate FieldView platform.  John Deere already had its own management solution known as John Deere Operations Center.  Customers can share the data on this system with the Climate FieldView platform to have the most up to date and informative data.  Now John Deere equipment will have very near real-time connectivity to the Climate FieldView Platform.  According to AGProfessional website, the Climate FieldView Platform “combines farmers’ field data with real-time and historic soil, crop and weather data,” in order to help farmers made more informed decisions in managing crop operations and create customized approaches supported by data. 

According to the John Deere news release, “the agreements represent the industry’s first and only near real-time-in-cab wireless connection to John Deere equipment by a third party.”

The agreements still need to be approved by the relevant antitrust authorities until they can be implemented but the companies are hoping this will be completed by early 2016.

APHIS Deregulates Genetically Engineered Monsanto Corn

Written by Katharine Richter

On October 27, 2015, the United States Department of Agriculture (USDA) Animal and Plant Health Inspection Service (APHIS) issued a notice in the federal register of its decision to deregulate a genetically engineered corn created by Monsanto Company.  The corn is engineered to protect against rootworm and for resistance to the herbicide glyphosate. 

Under 7 CFR part 340, APHIS is authorized to regulate genetically modified products that are plant pests or there is reason to believe they may be plant pests and are considered “regulated articles.”  Significantly, 7 CFR § 340.6(a), allows for the submission of a petition to APHIS which can have the product removed from regulated status. 

Accordingly, Monsanto sent in a petition for the deregulation of corn variety they designated as MON 87411.  Based on Monsanto field studies and laboratory analyses, Monsanto concluded MON 87411 should not be considered a plant pest under § 340.  APHIS conducted a plant pest risk assessment (PPRA) and environmental assessment (EA), and based upon its findings concluded the new corn strain was unlikely “to pose a plant pest risk to agriculture and other plants in the United States,” and “deregulation is not likely to have a significant impact on the human environment."

Monsanto Facing Lawsuits for Glyphosate Exposure

Written by Tyler R. Etter

Two lawsuits have been brought against Monsanto, alleging that the company’s herbicide Roundup (glyphosate) caused their cancers. The suits have been filed in federal court in New York and California.

The complaints state that Monsanto has misled consumers regarding the safety of their herbicide, and are seeking punitive damages for harm caused by exposure to the products. Both complaints cite the recent report by the United Nation’s World Health Organization’s International Agency for Research on Cancer (IRAC) report about the safety of glyphosate. The IRACreport listed glyphosate as potentially carcinogenic to humans. The complaints allege that this report is proof that Monsanto has been misrepresenting the safety of glyphosate to consumers.

Monsanto has called the suits baseless, and claims that the IRAC report is unwarranted and misleading. The company cites more than 30 years of research and safety reviews from around the world that found glyphosate safe, when used as instructed.

The claims alleged are broad, based in strict liability, negligence, and failure to warn. The plaintiffs claim that Monsanto has known for decades that the products were unsafe, and concealed this information from the public. They want the case to be decided by a jury, as they feel punitive damages are appropriate for Monsanto’s actions.

Two More EU Member States Opt Out of GMO Cultivation

Written by Tyler R. Etter

On August 28, 2015, both Latvia and Greece made clear their intentions to utilize the European Union (EU) member state option to opt-out of the approval of the cultivation GMO crops. The two member states are the first to officially petition for the exercise of the option, but both Germany and Scotland have signaled their intentions to exercise the option.

Currently, there is only one GMO product approved for cultivation in the EU, the Monsanto corn product M810. The EU member state opt-out allows for individual member states to decide if the state will continue to allow the cultivation of an approved GMO product, or any future products that are pending approval.

In a statement about the opt-outs of these nations, Monsanto said that the opt-outs will not harm business, as genetic modification in Europe is only a small part of the operation. Further commenting, the company stated “Nevertheless, we regret that some countries are deviating from a science-based approach...” commenting on the continued concerns about the safety of M810, in what Monsanto claims “contradicts and undermines the scientific consensus...”

Following the announcement, environmental campaigners have taken to calling on additional nations to follow in the way of Latvia and Greece. Despite the wide use of GM products in the Americas and Asia, the European market shows continued fierce opposition to the use of these products.

USDA’s APHIS Releases Assessment of Monsanto GMO Corn Product

On July 16, 2015, the USDA’s Animal and Plant Health Inspection Service (APHIS) released a preliminary assessment of a GMO corn product created by Monsanto, finding the product to be unlikely to pose a “plant pest risk” moving the product into consideration for deregulation.

MON 87403, the product, has been engineered to increase the biomass of the corn during the early stages of reproduction as compared to non-modified varieties. According to the environmental assessment, the field tests of the product showed increased yields compared to other varieties in a majority of the test locations.

The current regulations on the product control the introduction into the environment and interstate movement, as well as importation. The current regulations will only continue until APHIS makes a declaration that the product is not a plant pest risk, thereby removing the regulations on the product. Comments on the assessment and the possibility of deregulation are open until August 20, 2015, and can be made here.

Written by Tyler R. Etter

July 21, 2015 

USDA Says Genetically Engineered Wheat Found in Oregon Was an Isolated Incident

In a statement issued on June 14, 2013, the USDA indicated the genetically engineered wheat found in Oregon last month has not spread. Following the discovery the USDA launched an investigation into the source of the wheat.  The USDA interviewed several individuals including the farmer who harvested the wheat and the producer of the wheat seed. In addition, the USDA obtained samples of the seed and other wheat grown by the farmer.  Using a test developed by Monsanto, the USDA confirmed the seed and the wheat did not contain GE material. The USDA indicated the investigation is continuing and 200 area growers are expected to be interviewed in the near future.

For a copy of the statement, please see visit the USDA’s website.

Written By Clara E. Conklin – Research Assistant

The Agricultural Law Resource and Reference Center

June 19, 2013

Monsanto Prevails in Federal Court Case

On June 10, 2013, the Federal Circuit Court affirmed the Southern District of New York’s decision that Plaintiffs did not bring forth a justiciable case or controversy in Organic Seed Growers and Trade v. Monsanto Co. Plaintiffs (a coalition of farmers, seed sellers, and agricultural organizations) brought suit in March, 2011, wanting declaratory judgments that specific Monsanto patents on transgenic seeds are invalid, unenforceable, and infringed. Plaintiffs alleged that they were not able to organically grow corn, cotton, canola, sugar beets, soybeans and alfalfa because they were threatened by transgenic cross-pollination and that preventing cross-pollination with transgenic crops was costly to their businesses. Plaintiffs wanted Monsanto to waive any future claim for patent infringement and memorialize the waiver by signing a covenant not to sue.  In response, Monsanto referred Plaintiffs to its website where it expresses that Monsanto’s policy has never been to exercise its patent rights where trace amounts of patented traits are present as a result of inadvertent means. Monsanto claimed that since Plaintiffs do not intend to ever possess, use, or sell any transgenic seed, fear of suit is unreasonable. On appeal, the court found that Monsanto’s representations on its website and throughout the litigation are binding as a matter of judiciary estoppel and have the same effect as signing a covenant not to sue, so long as cross-pollination does not occur at levels higher than one percent and is inadvertent.

Plaintiffs also claimed that Monsanto’s refusal to sign a covenant not to sue has a chilling effect on farming or seed distribution activities they would like to pursue, and further, they cite a number of alleged potential harms due to health and safety, environmental, and economic issues. The court determined, however, that none of the alleged potential harms caused by cross-pollination can be remedied by declaratory judgment and cannot serve as a basis for jurisdiction. The court concluded that Plaintiffs failed to show any risk of suit and, therefore, lack standing.

The docket number for this case is 2012-1298.

Written By Sarah Doyle – Research Assistant

The Agricultural Law Resource and Reference Center

June 14, 2013

Washington State Farmers and The Center for Food Safety File Suit Against Monsanto

On June 6, 2013, two Washington state wheat farmers and The Center for Food Safety filed a purported class-action suit in the U.S. District Court for the Eastern District of Washington against Monsanto. The complaint alleges six causes of action including negligence, public nuisance, strict liability and conversion. The farmers claim they have been injured by the decline in wheat prices following the discovery of unapproved genetically modified wheat in Oregon. The Center for Food Safety claims the discovery has made it more difficult for its members, who desire non-genetically modified products, to produce, sell and eat uncontaminated wheat. The plaintiffs seek compensatory damages and injunctive relief requiring Monsanto to clean up the contamination and take measures to ensure further contamination will not occur. The case is docketed at CV-13-213-JLQ. A Kansas wheat farmer filed a similar lawsuit in the U.S. District Court for the District of Kansas on June 3, 2013.

Written By Clara Conklin - Research Assistant
Penn State Law- Agricultural Law Center

June 10, 2013