Agricultural Law Weekly Review: January 22, 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:

Oil and Gas: Court Rules Compressor Station May be built Next to Farm
On January 7, 2016, the Commonwealth Court of Pennsylvania determined that the New Sewickley Township Board of Supervisors (Beaver County, PA) acted properly when the Township agreed to permit the construction of a gas compressor station on land adjacent to an organic farm (Kretschmann Farm, LLC v. Twp. Of New Sewickley, No. 360 C.D. 2015). According to the Court, the organic farmers' failed to present evidence that: 1) the proposed gas compressor station would cause harm to the “health, safety, and well-being of the Township’s residents;” or 2) the Township’s action was a violation of United States and Pennsylvania constitutional rights.  

HPAI: Government Confirms HPAI in Indiana Commercial Turkey Flock
On January 15, 2016, the United States Department of Agriculture (USDA) Animal and Plant Health Inspection Service (APHIS) issued a press release confirming the detection of Highly Pathogenic Avian Influenza (HPAI) in an Indiana commercial turkey flock.  According to USDA APHIS, the strain of HPAI detected in the flock is H7N8, “a different strain of HPAI than the strains that caused the 2015 outbreak.” As of January 22, 2016, the Indiana State Board of Animal Health reported the depopulation of 414,503 turkeys suspected of being infected with H7N8.   

WOTUS: President Vetoes Measure to Overturn WOTUS; Senate Blocks Veto Override
On January 20, 2016, President Obama vetoed a joint resolution of Congress (S.J.RES.22) that would have overturned “the rule submitted by the Corps of Engineers and the Environmental Protection Agency relating to the definition of ‘waters of the United States’ under the Federal Water Pollution Control Act.” On January 21, 2016, the U.S. Senate voted 52-40 to override the President’s veto.  The Senate’s action, however, fell eight votes short of the majority number required to override a presidential veto.

Immigration: Supreme Court to Hear Challenge to President’s Actions on Immigration
On January 19, 2016, the U.S. Supreme Court announced that it will hear a case brought by 26 states challenging President Obama’s executive action authority regarding the federal immigration programs Deferred Action for Parents of Americans and Deferred Action for Childhood Arrivals (United States, et al. v. Texas, et al., CaseNo. 15-674).   

Raw Milk: Illinois Legalizes Raw Milk Sales
On January 13, 2016, the Illinois Joint Commission on Administrative Rules approved regulations that now allow the on-farm sale of raw milk by producers that acquire a permit issued by the Illinois Department of Health.  The new regulations are scheduled to take effect on July 1, 2016.

Legislation: Agreement Reached on School Nutrition Standards
On January 15, 2016, the School Nutrition Association (SNA) issued a press release announcing that the organization had “worked collaboratively with the US Department of Agriculture (USDA), the White House and the Senate Agriculture Committee to reach an agreement to improve nutrition standards for school meals.” According to the press release, the agreement is scheduled for inclusion in the Senate Agriculture Committee’s Child Nutrition Reauthorization bill. 

Raw Milk Update: Texas Jury Rules Raw Milk Sale Illegal

Written by M. Sean High – Staff Attorney

On December 16, 2015, the Farm-to-Consumer Legal Defense Fund (FTCLDF) reported that its client, Texas dairy farmer Eldon Hooley, had lost his jury trial regarding the sale of raw milk. 

According to FTCLDF, raw milk produced on Hooley’s dairy farm (located within the city of Grandview, Texas), transported by a van owned by Hooley, was seized by law enforcement officials at an off-farm customer drop-site located within the Fort Worth, Texas city limits.  At the time of the seizure, Hooley’s state license to sell raw milk was under suspension after his raw milk had previously tested positive for the bacteria Yersinia.  

Though Hooley’s dairy farm was not located within the Fort Worth city limits, prosecutors argued that under the Fort Worth city code regulating food establishments: 1) Hooley’s van met the classification of food establishment; and 2) because Hooley’s raw milk license was under suspension, the raw milk sales were illegal.  According to FTCLDF, the jury agreed with the city prosecutors and determined that Hooley should pay $1,500 in fines plus $67 for court costs.  

Similarly, in Pennsylvania, state law makes it illegal to sell raw milk for human consumption without a permit issued by the Pennsylvania Department of Agriculture (PDA).  Accordingly, raw milk sales must remain “in compliance with the testing and documentation requirements of the Milk Sanitation Law, and any other applicable statute or regulation.” Furthermore, any raw milk used in the manufacturing of aged cheese can only be sold if PDA specifically issues a permit for the sale of aged cheese produced from raw milk.  Importantly, PDA is empowered to file summary criminal prosecutions for any raw milk permitting violation.

In Pennsylvania, if a dairy farmer continues to sell raw milk after their raw milk permit has been revoked or suspended, PDA may “[a]pprise the Department of Health and any local health department having jurisdiction of the situation, and recommend these entities take lawful action to ensure that sales of raw milk cease.”  Additionally, PDA may ask the Pennsylvania Office of Attorney General to: 1) seek an injunction to prevent raw milk sales; and 2) seek fines and/or imprisonment if an injunction is violated.  Relevant to Hooley’s transportation of raw milk via his van, Pennsylvania state law defines raw milk sales broadly to include “the selling, exchanging, delivering or having in possession, care, control or custody with intent to sell, exchange, or deliver or to offer or to expose for sale.” 

On a related side-note, under Pennsylvania’s raw milk law, “[w]henever, in the opinion of the [PDA] Secretary, a given supply of raw milk or raw milk products is considered unsafe or a menace to public health, the Secretary may seize, condemn, denature or destroy the milk or milk products, without compensation to the owner of the milk or milk products.”   

Raw Milk Update: FDA Releases Risk Assessment of Cheese Produced from Raw Milk

On July 31, 2015, the Food and Drug Administration, in conjunction with Health Canada, released a risk assessment for soft-ripened cheeses produced from raw milk. The assessment was focused on the risk of contracting listeriosis by consuming the products.

Listeriosis is caused by Listeria monocytogenes, a pathogen that is frequently found in agricultural and food processing environments. Listeriosis generally affects the digestive tract, but can also spread to other parts of the body, known as “invasive listeriosis”. Those most at-risk for the disease are the elderly, pregnant women, children, and individuals with compromised immune systems.

In the risk assessment, the risk of contracting listeriosis was conducted on a per-serving basis of a Camembert-like soft-ripened cheese, with a comparison between the use of pasteurized and non-pasteurized milks in the production of the cheese. The assessment also focused on different production methods, such as the aging period and intervention techniques to reduce the risk of contracting listeriosis. The current standard is a 60-day aging period, but the FDA is considering the benefits of a performance standard in its place.

The risk assessment had already received criticism during the draft phase in 2013. Both U.S. and French cheese associations have called the assessment flawed, and are concerned that the assessment will cast doubt on all cheeses produced from raw milk, including hard cheese.

The FDA is currently requesting additional comments and data as a response to the assessment. The full risk assessment can be read here.

Written by Tyler R. Etter- Research Assistant
August 3, 2015

Raw Milk Update: Maine Governor Vetoes Bill that Would Have Exempted Small Farmers’ Raw Milk From Licensing and Inspection

On July 8, 2013, Maine Governor Paul LePage vetoed LD  1282, entitled “An Act To Help Small Farmers in Selling Raw Milk Products.”  Upon return to the Maine Senate on July 9, the Senate voted not to overturn the Governor’s veto of the bill.

Currently, dairy producers in Maine must apply to the state for licensing and both their facilities and products must undergo inspections.  This regulation applies to both pasteurized and raw dairy products.  LD 1282 would have exempted small dairy producers, those who produce less than 20 gallons of raw milk daily, from the licensing and inspection regulations.  The Maine Legislature passed this bill in June, after the measure was amended to require raw milk producers to test their product regularly, under guidelines set by the Maine Department of Agriculture, Conservation and Forestry.

In his statement concerning the veto, Gov. LePage expressed his support for the majority of the content in the bill, but stated that his concern was the inclusion of provisions which would allow raw milk producers to sell their product at farmers’ markets.  LePage stated that he would support a modified version of the bill which permitted “on Farm only” sales of raw milk.

For more information, please see the Maine Legislature’s website on LD 1282 and the Current Issues section of the Agricultural Law Resource and Reference Center’s website.

Written By Gaby Gilbeau – Research Assistant

The Agricultural Law Resource and Reference Center

July 17, 2013

Raw Milk Update: Bill Revising Nevada Raw Milk Sales and Distribution Vetoed by Governor

On June 6, 2013, the Governor of Nevada vetoed a bill that would have allowed raw milk, certified by a county milk commission, to be sold at retail outlets or directly off the farm to anywhere in the state. The bill previously passed in the House and in the Senate with only four negative votes. According to several press releases, Governor Sandoval cited the Food and Drug Administration, the American Medical Association, and Nevada’s own state health officer’s concerns that raw (unpasteurized) milk is unsafe for consumption as his reason for vetoing the bill. As of today, Governor Sandoval’s veto message has not been posted.

Currently in Nevada, raw milk can be sold if the county milk commission certifies its sale; however, the raw milk may only be sold in that county. This bill would have allowed for inter-county sales of raw milk.

For the full text of the bill, please visit the Nevada State Legislature’s website.

Written By Sarah Doyle - Research Assistant

The Agricultural Law Resource and Reference Center

June 13, 2013