Agricultural Law Weekly Review—April 14, 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:

Animal Welfare: USDA Proposes Rule Amending Organic Livestock and Poultry Production Requirements

On April 13, 2016, the United States Department of Agriculture’s Agricultural Marketing Service published a proposed rule in the Federal Register that would amend the organic livestock and poultry production requirements (81 FR 21955).  According to the proposed rule, the proposal would “add new provisions for livestock handling and transport for slaughter and avian living conditions; and expand and clarify existing requirements covering livestock health care practices and mammalian living conditions.” The comment period for the proposed rule closes June 13, 2016.

Pipelines: Proposed Rule on Safety of Transmission and Gathering Lines Published

On April 8, 2016, the United States Department of Transportation Pipeline and Hazardous Materials Safety Administration published notice of a proposed rule in the Federal Register “to revise the Pipeline Safety Regulations applicable to the safety of onshore gas transmission and gathering pipelines” (81 FR 20721).  According to the proposed rule, the proposal is intended to provide “additional safety measures to increase the level of safety for those pipelines that are not in HCAs [High Consequence Areas] as well as clarifications and selected enhancements to integrity management requirements to improve safety in HCAs.” The comment period for the proposed rule closes June 7, 2016.

Animal Classification: USDA Amends Definition of “Roaster” Chickens

On April 13, 2016, the United States Department of Agriculture Food Safety and Inspection Service published notice in the Federal Register of a final rule “amending the definition and standard of identity for the ‘roaster’ or ‘roasting chicken’ poultry class to better reflect the characteristics of ‘roaster’ chickens in the market today” (81 FR 21706). According to the final rule, because “[g]enetic changes and management techniques have continued to reduce the grow-out period and increased the RTC [ready-to-cook] weight for this poultry class,” the new definition of roaster “remove[s] the 8-week minimum age criterion and increase[s] the RTC carcass weight from 5 pounds to 5.5 pounds.” The effective date for the final rule is January 1, 2018. 

Industrial Hemp: Legislation Moves to Senate Committee

On April 12, 2016, Pennsylvania House Bill 967 (HB 967), legislation that would legalize the growth and cultivation of industrial hemp for research purposes, was referred to the Pennsylvania Senate’s Agricultural and Rural Affairs Committee. The action comes as a result of the recent unanimous vote by the Pennsylvania House of Representatives to pass HB 967 (see previous Penn State Agricultural Law Blog article).

Food Safety: USDA Proposes Permitting Honduran Poultry into the U.S.

On April 13, 2016, the United States Department of Agriculture Food Safety and Inspection Service (FSIS) published notice in the Federal Register of a proposed rule for the inclusion of Honduras on the list of countries eligible to export poultry products into the United States (81 FR21758).  According to the proposed rule, “FSIS review of Honduras' laws, regulations, and inspection system demonstrated that its poultry slaughter inspection system is equivalent to the system FSIS has established under the Poultry Products Inspection Act (PPIA) and its implementing regulations.” The comment period for the proposed rule closes June 13, 2016.

Animal Slaughter: Vermont Senate Committee Discusses On-Farm Slaughter Bill

On April 12, 2016, the Vermont Senate Committee on Agriculture held discussion regarding Vermont House Bill 860 (H.860); legislation that would extend an exemption authorizing on-farm animal slaughter activities through July 1, 2019.  The action came as a result of a March 17, 2016 vote by the Vermont House of Representatives to pass H.860.  Currently, Vermont’s law providing exemption for on-farm animal slaughter is scheduled to expire on July 1, 2016.

SNAP: Information Collection Request Approved

On April 8, 2016, the United States Department of Agriculture Food and Nutrition Service published notice in the Federal Register of approval of a Supplemental Nutrition Assistance Program (SNAP) Final Rule Information Collection Request (ICR) (81 FR 20524). The ICR approval was published in connection to a final rule, published on January 19, 2016, amending SNAP operations, reporting, reviews, definitions, and coupons (81 FR2725).    

Vermont Farm Agrees to Settlement with DOJ Regarding Tainted Animals Sold for Human Consumption

M. Sean High – Staff Attorney

One day after the Department of Justice (DOJ) filed a complaint for permanent injunction to prevent a Vermont dairy farm’s use of unauthorized animal drugs in animals sold for human consumption, the parties filed an agreed upon settlement.

On December 7, 2015, on behalf of the United States of America, DOJ filed a complaint in the United States District Court for the District of Vermont requesting a permanent injunction against Correia Farm Limited Partnership for allegedly violating the Federal Food, Drug, and Cosmetic Act (FDCA) by administering unapproved new animal drugs which resulted in unsafe drug residue levels in animals slaughtered for human consumption.   

On December 8, 2015, the parties filed a settlement consent decree for permanent injunction.  As part of the settlement, Correia Farm Limited Partnership agreed to a heightened level of Federal Drug Administration (FDA) oversight and scrutiny of their operation and to cease operations until the implementation of FDA approved “record-keeping and operational protocols designed to ensure consumer safety.” Significantly, Correia Farm Limited Partnership agreed not to resume food production (excluding milk) until an FDA determination that the operation’s manufacturing practices have come into compliance with the law.  

The agreed upon consent decree for permanent injunction now awaits judicial approval from the U.S. District Court for the District of Vermont.

Eight States Now Backing Vermont’s GMO Labeling Bill

Written by Tyler R. Etter

On August 31, 2015, the Attorney Generals of eight states filed an amicus brief in support of the hotly-contested Vermont GMO labeling bill. The states consist of Connecticut, Maine, Maryland, Massachusetts, Hawaii, Illinois, New Hampshire, and Washington. Of these states, Connecticut and Maine have enacted similar statutes to Vermont.

The labeling bill will require manufacturers to provide labeling on products to verify that a product is GMO-free. If the product is not GMO free, then a label must be provided that discloses in some manner that the product is produced with genetic engineering.

The bill has been challenged in court under the lead of the Grocery Manufacturers Association. The plaintiffs sought a preliminary injunction against the bill, which was denied in April of 2015. The plaintiffs appealed, stated that the bill will harm both companies and consumers.  The plaintiffs have since gained the support of the U.S. Chamber of Commerce, the American Beverage Association, Biotechnology Industry Organization, American Chemistry Council, National Cotton Council of America, and the National Corn Growers Association.

The amicus brief contends that Vermont’s law simply requires a “neutral, accurate factual statement.” The brief claims that the law does not mandate any statement that is not truthful or factual.

Oral arguments for the appeal are expected this fall. The outcome of the case will carry significant ramifications for the future of similar bills.

Ben and Jerry’s Comes to Defense of Vermont GMO Labeling Law

Written by Stephen Kenney

On August 31, 2015, ice cream manufacturer Ben & Jerry’s filed an amicus brief with the U.S. Court of Appeals of the Second Circuit asking the court to reject the Grocery Manufacturer’s Association's (GMA) effort to temporarily block Vermont’s GMO labeling law, which is scheduled to go into effect in July, 2016.  GMA, which represents food and beverage companies including Kellogg, Pepsico, Coca-Cola, and Hillshire Brands, is seeking an injunction to stop the law from going into effect.

The Consumers Union has also joined Ben and Jerry’s in filing the amicus brief, which argues that the Vermont law serves the state’s interests by “advancing public health and food safety, informing consumers about potential environmental effects, avoiding consumer confusion and deception, and protecting religious practices.”  The amicus brief argues that GMO labeling is consistent with international norms and practices and imposes no significant harm on the affected companies.  The amicus brief further argues that GMA failed to meet the standard for irreparable harm.  Additionally, Ben and Jerry’s and the Consumers Union rebut the argument that the law would raise food prices, asserting that the costs would be negligible to change the wording on the package.  A report was done by the Consumers Union that found that the labeling would cost consumers less than a penny a day.

GMA is also supporting a bill in Congress that would prohibit any other state law of the U.S. Food and Drug Administration from mandating GMO labeling.  The bill is called the Safe and Accurate Food Labeling Act.  The bill passed the House of Representatives in July, but has yet to pass through the Senate.