Agricultural Law Weekly Review—October 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:

Labor: House Chairman Announces Bill to Create New Agricultural Guestworker Program

On October 2, 2017, House Judiciary Committee Chairman Bob Goodlatte (R-Va.) announced legislation designed to create a new agricultural guestworker program for American farmers and ranchers.  Referred to as the Ag Act, Chairman Goodlatte’s bill would replace the current H-2A guestworker program with a new H-2C guestworker program.  According to the Chairman’s summary of the bill, the H-2C guestworker program would better meet producer needs by making available 500,000 visas each year for both seasonal and year-round agricultural work.   

Nutrition Labeling: FDA Seeks to Extend Compliance Dates for Nutrition Facts Labeling

On October 2, 2017, the U.S. Food and Drug Administration (FDA) published notice in the Federal Register proposing extensions to the compliance dates for the Nutrition Facts and Supplement Facts label final rule and the Serving Size final rule (82 FR 45753).  For manufactures with $10 million or more in annual food sales, the proposed delay would extend the compliance date from July 26, 2018, to January 1, 2020.  For manufactures with fewer than $10 million in annual food sales, the proposed delay would extend the compliance date from July 26, 2018 to January 1, 2021.

Clean Water Act: Tyson Pleads Guilty to Violating Clean Water Act

On September 27, 2017, the U.S. Department of Justice (DOJ) announced that Tyson Poultry Inc. (Tyson) has pleaded guilty to criminal charges for violating the Clean Water Act.  The DOJ stated that the charges stemmed from the release of the liquid food supplement “Alimet” at the company’s slaughter and processing facility in Monett, Missouri.  The DOJ asserted that the Alimet discharge caused the death of approximately 108,000 fish.  According to the DOJ, the plea agreement requires Tyson to pay a criminal fine of $2 million and serve two years of probation.

Horse Racing: PDA Addresses Recently Enacted Horse Racing Regulations

On September 26, 2017, the Pennsylvania Department of Agriculture (PDA) issued a press release regarding three recently enacted horse racing regulations addressing illegal performance enhancing drugs.  According to PDA, the regulations provide for increased penalties for repeat offenders, establish an out-of-competition testing program, and provide for horse ineligibility after a positive test.  PDA stated that with the enactment of the three regulations, significant consequences now exist for trainers, veterinarians and owners who choose to violate Pennsylvania’s horse racing laws.

Labor: Ben & Jerry’s Agrees to Improve Dairy Worker Conditions

On October 3, 2017, the New York Times reported that ice cream manufacturer Ben & Jerry’s has agreed to a program establishing labor standards for the Vermont dairy farms that supply the company with milk.  Entitled Milk With Dignity, the program mandates that dairy workers receive one day off a week and are paid at least the Vermont state minimum wage of $10.  According to the report, compliance with the program will be enforced through independent audits.

GMOs: Study Finds GM Soybean Oil Induces Less Obesity and Insulin Resistance

On October 2, 2017, Science Daily reported that a University of California, Riverside study found that the genetically modified (GM) soybean Plenish® induces less obesity and insulin resistance than conventional soybean oil.  Engineered to contain low levels of linoleic acid, Plenish® has a similar composition to olive oil.  While the study found less obesity and insulin resistance with Plenish®, the study did find that the GM soybean oil had the same effects on diabetes and fatty liver as those of conventional soybean oil.

Beef: BPI Establishes Fund for Workers Affected by “Pink Slime” Reporting

On September 28, 2017, Meat + Poultry reported that Beef Products Inc. (BPI) has established a $10 million fund to compensate workers that lost their jobs due to plant closures resulting from the negative reporting of BPI’s product Lean Finely Textured Beef.  According to the article, in 2012, ABC News published a series of reports that referred to BPI’s Lean Finely Textured Beef product as “pink slime”.  Subsequently, in 2012, BPI closed three production facilities and filed a defamation lawsuit against ABC News.  In June of 2017, the parties settled for an undisclosed amount.  The article stated that the fund will benefit 750 former workers.

                 

Pennsylvania Legislation

Environmental Resources and Energy (House)

• HB 1486 legislation exempting “high tunnels” that meet certain parameters from any requirements under the Storm Water Act (reported out of committee, October 3, 2017)

Environmental Resources and Energy (Senate)

• SB 917 legislation amending the Municipal Waste Planning, Recycling and Waste Reduction Act to expand the definition of “compost materials" to include “mushroom compost” (referred to committee, October 3, 2017)

Pennsylvania Actions and Notices

Department of Environmental Protection

• Nutrient Credit Trading Program
• Nutrient Credit Trading Program
• Pennsylvania Lake Erie Phosphorus Reduction Domestic Action Plan

Public Utility Commission

• Review of vegetation management practices 

AgLaw HotLinks:

• Dicamba dilemma pits industry against researchers – Feedstuffs
• Puerto Rico’s Agriculture and Farmers Decimated by Maria – The New York Times
• USDA fails to monitor foreign owners of farmland – Investigate Midwest
• FDA Agrees to Enforce Menu Labeling Rule in May 2018 – Food Safety Magazine
• BPI Establishes $10 Million Fund for Former Employees Following 'Pink Slime' Settlement – Cattle Network
•  Agriculture Department, Penn State Researchers Seek Public Input on State Pollinator Protection Plan – PA Department of Agriculture
• Global methane emissions from agriculture larger than reported, according to new estimates – Physics Org
• Campbell Soup Co. commits to higher broiler welfare standards – Meat + Poultry
• Food industry welcomes new deadline to revise nutrition labels – Food Safety
• Congressional Democrats seek 40 Billion for Rural Broadband – Brownfield
• More Details on Syngenta MIR162 Settlement – Ag Professional  

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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—August 24, 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:

Soda Tax: Sweetened Beverage Sales Decrease in Philadelphia City while Increasing in its Suburbs

On August 22, 2017, the Food Navigator reported that “[w]hile sales of sweetened beverages dropped by more than half within Philadelphia’s city limits following the imposition of a soda tax, they also substantially increased just outside city limits.” The tax, which imposes on Philadelphia beverage dealers a 1.5% per fluid ounce tax on any sugar-sweetened beverage supplied, acquired, delivered, or transported into the City for retail sale, became effective on January 1, 2017.  The report stated that sales of carbonated soft drinks within the City limits fell by 55% while simultaneously, similar sales just outside the City border increased by 38%.  According to the report, Philadelphia officials had originally projected that the tax would raise $46.2 million during fiscal year 2017 (which ended June 2017).  Instead, the report asserted that the actual amount generated from the tax was $25.6 million.

WOTUS: EPA Extends Comment Period for Definition of “Waters of the United States”

On August 22, 2017, the U.S. Environmental Protection Agency (EPA) and the U.S. Department of the Army published notice in the Federal Register of an extension of “the comment period for the proposed rule ‘Definition of Waters of the United States—Recodification of Pre-existing Rules” (82 FR 39712). According to the notice, “[t]he agencies are extending the comment period for 30 days in response to stakeholder requests for an extension, from August 28, 2017 to September 27, 2017.”

Animal Welfare: USDA Unveils Public Search Tool for Animal Welfare Compliance Records

On August 18, 2017, the U.S. Department of Agriculture’s (USDA) Animal and Plant Health Inspection Service (APHIS) announced the availability “of the refined public search tool that provides access to Animal Welfare Act compliance records.” According to APHIS, the new search tool is intended to provide the public with “information on APHIS’ performance of its statutory duties under the Animal Welfare Act, in accordance with privacy laws.” The announced availability marks the return of the public search tool component of the Animal Care Information System which had been “taken off-line for review on February 3, 2017.”

International Trade: South Korea Lifts Ban on U.S. Poultry

On August 17, 2017, the U.S. Department of Agriculture (USDA) announced “that the government of South Korea has lifted its ban on imports of U.S. poultry and poultry products, including fresh eggs.” According to USDA, earlier this year South Korea had temporarily reopened its market “for U.S. eggs and egg products, but imports were again restricted after the [highly pathogenic avian influenza] HPAI detection in Tennessee.” USDA stated that “[i]n 2014, the last full year without any HPAI-related trade restrictions in place, South Korea purchased $122 million in U.S. poultry products, including eggs, [which had previously made] it the United States’ tenth-largest market.”

International Trade: Japan Raises Tariffs on Frozen U.S. Beef

On August 14, 2017, the USDA Foreign Agricultural Service Global Agricultural Information Network (GAIN) reported that “the Japanese Ministry of Finance (MOF) raised the duty for U.S. frozen beef from 38.5 percent to 50 percent under Japan’s special safeguard (SSG) for frozen beef.” The increase, which was triggered under Japan’s Temporary Customs Tariff Measures Act, applies to all countries that do not have an Economic Partnership Agreement (EPA) with Japan.  Accordingly, the increased duty on will remain in effect until the end of Japan’s fiscal year on March 31, 2018.

International Trade: Access for U.S. Rice Exports to Columbia Expanded

On August 17, 2017, the “U.S. Department of Agriculture Secretary Sonny Perdue and the U.S. Trade Representative Robert Lighthizer… announced [that] an agreement [has been] reached with the government of Colombia to allow for expanded market access for U.S. exports of paddy rice.” The announcement stated that “[a] previous agreement in 2012 between both countries enabled exports of U.S. paddy rice to Colombia, but under strict and costly requirements related to phytosanitary concerns.” Under the new agreement, these requirements have been lifted.  The new agreement also “expands access beyond the single port of Barranquilla, which was the only port previously open to U.S. exporters.”

Pennsylvania Legislation

Agriculture and Rural Affairs Committee (House)

• HB 1714: Disclosure of Certain Information Regarding Dogs Offered for Sale at Pet Shops (Referred to committee August 16, 2017)
• HB 1463: Public hearing on legislation which will increase dog license fees and authorize a State-wide online license registry (Room 205 Ryan Office, September 27, 2017)
• HB 1727: Legislation Providing for County Humane Officers (Referred to committee August 18, 2017)
• HB 1732: An Act amending the act of December 7, 1982 (P.L.784, No.225), known as the Dog Law, in dangerous dogs, further providing for court proceedings, certificate of registration and disposition (Referred to committee August 18, 2017)

Pennsylvania Actions and Notices

Department of Environmental Protection: Agricultural Advisory Board meeting cancellation

AgLaw HotLinks:

• Opening round of NAFTA recognizes ag’s wins – Feed Stuffs
• Budget Limitations Biggest Obstacle for Timely Farm Bill – Brownfield
• Canada to Protect Dairy During NAFTA Negotiations – Milk Business
• Cattlemen Head to RC Over Country of Origin Labeling, Animal ID, and Check-Off – Food Safety News
• Monsanto strikes back on glyphosate – Politico
• Pruitt Urges Ranchers to Submit WOTUS Comments – Ag Web
• GAO report reveals wild horse population still problematic – Feed Stuffs
• US announces deal to export pork to Argentina – CNBC
• On August Recess, Lawmakers Listen and Comment on Farm Bill – Farm Policy News
• E.P.A. Promised ‘a New Day’ for the Agriculture Industry, Documents Reveal – The New York Times
• Heavily used pesticide linked to breathing problems in farmworkers' children – EurekAlert
• Twenty-nine states make it illegal for counties and cities to pass seed laws – Fern’s Ag Insider
• U.S. farmers confused by Monsanto weed killer's complex instructions – Reuters      

Listen to our new Agricultural Law Podcast by clicking here!

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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.

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—September 1, 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:

Big Data: DOJ Sues to Prevent Deere’s Acquisition of Precision Planting  

On August 31, 2016, the United States Department of Justice (DOJ) brought an anti-trust action in the United States District Court for the Northern District of Illinois Eastern Division to prevent Deere & Company’s (Deere) from acquiring Precision Planting LLC (Precision Planting), a subsidiary of Monsanto Company (U.S.Department of Justice v. Deere & Co., Case No. 1:16-cv-08515).  According to the filed complaint, Deere and Precision Planting currently account for 86% of all high-speed precision planting system sales in the United States and as a result, DOJ asserted “the proposed acquisition likely would lessen competition substantially, and tend to create a monopoly…in violation of Section 7 of the Clayton Act, 15 U.S.C. § 18.”

Labor: California Governor Presented with Bill Removing Agricultural Worker Overtime Exemption

On August 30, 2016, California Governor Edmund G. (“Jerry”) Brown was presented with legislation which would require California agricultural producers to pay overtime to agricultural employees (AB 1066).  If signed by the Governor, AB 1066 “would remove the exemption for agricultural employees regarding hours, meal breaks, and other working conditions, including specified wage requirements, and would create a schedule that would phase in overtime requirements for agricultural workers…over the course of 4 years.” The proposed legislation would also allow agricultural producers with 25 or fewer employees an additional 3 years to phase in the overtime requirements.  

HPAI: Avian Influenza Found in Wild Duck in Alaska

On August 26, 2016, the United States Department of Agriculture (USDA) Animal Plant Health Inspection Service (APHIS) “confirmed the presence of highly pathogenic H5N2 avian influenza (HPAI) in a wild mallard duck from a state wildlife refuge near Fairbanks, Alaska.”  According to APHIS, this recent discover is the first reported case of H5N5 HPAI—in either wild or commercial birds—in the United States since June 2015. 

Water: DEP Extends NPDES General Permit for Point Source Discharges to Waters of the Commonwealth of Pennsylvania from the Application of Pesticides

On August 27, 2016, the Pennsylvania Department of Environmental Protection (DEP) published notice in the Pennsylvania Bulletin that the department was “extending for 12 months, the availability of the current [National Pollutant Discharge Elimination System—NPDES] General Permit for Point Source Discharges to Waters of the Commonwealth of Pennsylvania from the Application of Pesticides (PAG-15)” (46 Pa.B. 5640).  According to DEP,  “[t]he existing PAG-15 in effect at this time will expire on October 28, 2016…[and] [p]ersons that are operating under the PAG-15 General Permit may continue to operate until October 28, 2017, or the expiration date of coverage identified on the permit coverage approval page, whichever is later.

Inspection: FSIS Announces Request to Renew Voluntary Interstate Shipment of Meat and Poultry Products Program

On August 26, 2016, the United States Department of Agriculture (USDA) Food Safety and Inspection Service (FSIS) published notice in the Federal Register “announcing its intention to renew the approved information collection regarding the voluntary cooperative interstate shipment program” (81 FR 58903).  According to FSIS, the program in question is a voluntary cooperative inspection program, administered by FSIS, “under which State-inspected establishments with 25 or fewer employees are eligible to ship meat and poultry products in interstate commerce.” The comment period for the published notice ends October 25, 2016. 

Raw Milk: Utah Dept. of Health Links Salmonellosis Outbreak to Raw Milk

On August 30, 2016, the Utah Department of Health issued a news release announcing that State health officials were investigating nine illnesses associated with the consumption of raw milk purchased at Heber Valley Milk in Wasatch County, Utah.  According to the news release, on August 23, 2016, “a raw milk sample collected at the dairy by a Utah Department of Agriculture and Food inspector was positive for Salmonella Saintpaul.” The news release also stated that recent testing of raw milk samples collected from Heber Valley Milk  have not tested positive for salmonella, and as a result, the dairy has been allowed to resume sales.

Beef: AMS Proposes Amendment to the Beef Promotion and Research Rules and Regulations

On August 23, 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 the Beef Promotion and Research Order (Order) established under the Beef Promotion and Research Act of 1985 (Act) to add six Harmonized Tariff System (HTS) codes for imported veal and veal products and update assessment levels for imported veal and veal products based on revised determinations of live animal equivalencies” (81 FR57495).  The comment period for the proposed rule closes October 24, 2016.

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—May 5, 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:

HPAI: Indiana Lifts Final Avian Influenza Quarantine

On May 2, 2016, the Indiana State Board of Animal Health issued a press release announcing that “[t]he last remaining quarantine associated with the highly pathogenic avian influenza (HPAI) cases identified in Dubois County, Ind. has officially been lifted.” According to the press release, “[t]his quarantine release coincides with the state achieving avian influenza-free status, after logging 90 consecutive days with no new cases of the poultry disease.”

FSMA: FDA Issues Corrections to Final Rule Regarding Standards for the Growing, Harvesting, Packing, and Holding of Produce for Human Consumption

On May 3, 2016, the Food and Drug Administration (FDA) published notice in the Federal Register that the agency was amending a final rule published in Federal Register on November 27, 2015 (81 FR 26466).  According to FDA “[t]hat final rule established science-based minimum standards for the safe growing, harvesting, packing, and holding of produce, meaning fruits and vegetables grown for human consumption.”  FDA stated that “[t]he final rule published with some editorial and inadvertent errors…[and that] [t]his document corrects those errors.”

Beef Checkoff: Suit Filed Against USDA for Use of Checkoff Tax

On May 2, 2016, the Ranchers-Cattlemen Action Legal Fund, United Stockgrowers of America (R-CALF USA) brought suit against the United States Department of Agriculture (USDA) alleging that USDA “turns over proceeds from a federal tax on each sale of cattle to the private Montana Beef Council, to fund the council’s private speech, harming R-CALF USA’s members.” According to the complaint, R-CALF USA stated that the production methods of its members “stand in contrast to those used by large, multinational producers who source much of their cattle and beef internationally.” As a result, R-CALF USA asserted “its members object to and disagree with communications espousing that all beef is equal and/or that fail to distinguish between domestic and foreign beef.”

Crop Insurance: USDA Announces Funds Available for Risk Management Education

On May 5, 2016, the United States Department of Agriculture's Risk Management

Agency issued a press release announcing the availability of $4.4 million in funding for the Crop Insurance in Targeted States Program.  According to the press release, “[t]he program backs development of crop insurance education programs where there is a low level of federal crop insurance participation and availability.” The press release stated that the “targeted states are Alaska, Connecticut, Delaware, Hawaii, Maine, Maryland, Massachusetts, Nevada, New Hampshire, New Jersey, New York, Pennsylvania, Rhode Island, Utah, Vermont, West Virginia and Wyoming.”

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.  

Trade Update: Peru Reduces Restrictions on U.S. Beef

Written by M. Sean High – Staff Attorney

On March 14, 2016, the United States Department of Agriculture (USDA) issued a press release announcing that the government of Peru has agreed to remove trade barriers regarding the importation of U.S. beef and beef products.

According to USDA, prior to the March 14, 2016 agreement, since 2003, Peru has only accepted the importation U.S. beef and beef products from those U.S. “establishments that participated in the USDA Agricultural Marketing Service (AMS) Export Verification (EV) programs.” Now, according to the press release, as a result of the March 14, 2016 agreement, Peru will accept for importation “beef and beef products from all federally inspected U.S. establishments.”

USDA stated that the March 14, 2016 agreement reflects the World Organization for Animal Health’s (OIE) 2013 decision to upgrade the U.S.’ risk classification for bovine spongiform encephalopathy (BSE) from the status of “controlled BSE risk” to the status of “negligible BSE risk.” In a May 29, 2013 press release announcing OIE’s decision to upgrade the U.S.’ risk classification for BSE, Agriculture Secretary Tom Vilsack stated: “[t]his decision demonstrates OIE's belief that both our surveillance for, and safeguards against, BSE are strong…[and that] U.S. beef and beef products are of the highest quality, wholesome and produced to the highest safety standards in the world.”

According to USDA, Peru is “one of the fastest growing markets in Latin America to all American beef and beef products…[and] [i]n 2015, the United States exported $25.4 million in beef and beef products to Peru.

Food Policy Update: Federal 2015-2020 Dietary Guidelines Endorse Lean Meats, Lean Poultry, and Eggs

Written by M. Sean High - Staff Attorney

On January 7, 2016, the Federal Government released the 2015-2020 Dietary Guidelines for Americans, 8th Edition.  Published every five years for public health officials, the Federal Dietary Guidelines are produced in a joint effort between the U.S. Department of Health and Human Services (HHS) and the U.S. Department of Agriculture (USDA).  

According to the 2015-202 Dietary Guidelines for Americans:

The main purpose of the Dietary Guidelines is to inform the development of Federal food, nutrition, and health policies and programs. The primary audiences are policymakers, as well as nutrition and health professionals, not the general public. The Dietary Guidelines is a critical tool for professionals to help Americans make healthy choices in their daily lives to help prevent chronic disease and enjoy a healthy diet. It serves as the evidence-based foundation for nutrition education materials that are developed by the Federal Government for the public.

While the Dietary Guidelines are not legally binding regulations, they are extremely influential in determining what food is made available through Federal food programs such as the school lunch program.  Just as important, the Dietary Guidelines can have a significant effect on consumer perceptions and often sway food purchasing decisions.  

Of significance to the agricultural industry, the 2015-2020 Dietary Guidelines for Americans stated that “[f]or those who eat animal products, the recommendation for the protein foods subgroup of meats, poultry, and eggs can be met by consuming a variety of lean meats, lean poultry, and eggs.”

On January 7, 2016, the National Cattleman’s Beef Association issued a press release praising “HHS Secretary Sylvia Burwell and USDA Secretary Tom Vilsack for ensuring the final recommendations were based on the latest nutrition evidence available.”  The press release quoted Texas cattle producer and physician Dr. Richard Thorpe who expressed his appreciation that the guidelines were based on the latest nutrition science.  Dr. Thorpe stated that “[n]umerous studies have shown positive benefits of lean beef in the diet, and I commonly encourage my patients to include beef in their diet to help them maintain a healthy weight and get the nutrients they need to be physically active.”

Labeling of Mechanically Tenderized Beef

On May 13, 2015, the U.S. Department of Agriculture (USDA) announced a new labeling requirement for beef products that have been mechanically tenderized. 

Often called “blading” or “needling,” the practice of mechanical tenderization involves the insertion of a series of razor sharp knives or needles into a piece of beef in an effort to cut through tough connective tissue.   While this process creates a tender piece of meat, it also increases the possibility that food-borne pathogens like E. coli could be pressed deep into the center of the meat.   

Fortunately, food-borne pathogens such as E. coli can be killed through cooking beef above certain temperatures.  Unfortunately, because the process of mechanical tenderization could push these pathogens into the center of a piece of meat, for safe consumption, it may be necessary to employ different cooking methods.  As a result, effective May 2016, USDA will require that all mechanically tenderized beef products carry labels that 1) state that the product is mechanically tenderized and 2) provide the proper instructions on how to safely  cook the product.

Written by M. Sean High - Staff Attorney
May 19, 2015

BPI Lawsuit Against ABC News Over “Pink Slime” to Proceed in December

The Beef Products Inc. (BPI) suit against ABC News will proceed with oral arguments on December 17, 2013 in South Dakota state court. The suit resulted from network’s use of the term “pink slime” to describe Lean Finely Textured Beef (LFTB), a beef product made by BPI. BPI brings the claim under South Dakota’s defamation and food disparagement laws, arguing that ABC misled consumers to believe that LFTB is unhealthy and unsafe, resulting in the closure of three of four BPI plants and layoffs of over 700 employees. BPI is seeking 1.2 billion dollars in damages. ABC is arguing that it did not knowingly disparage BPI or LFTB.

In June of 2013, the case was remanded from federal court to state court, where the suit was originally filed in October of 2012.

For more information about the ongoing lawsuit, please see Justia.com.

Written by Sarah L. Doyle - Research Assistant

The Agricultural Law Resource and Reference Center

@PSUAgLawCenter

October 24, 2013