Agricultural Law Weekly Review—February 14, 2019

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 Labeling: Groups Sue Pilgrim's Pride Over Marketing and Advertising Claims  

On February 7, 2019, Food & Water Watch and the Organic Consumers Association announced that the organizations have filed a lawsuit in the D.C. Superior Court against Pilgrim’s Pride Corporation for alleged deceptive marketing and advertising practices.  According to the two organizations, Pilgrim’s Pride markets and advertises that its birds are fed “only natural ingredients,” are “treated humanely,” and that the company’s poultry products are “produced in an environmentally responsible way.” Food & Water Watch and the Organic Consumers Association assert, however, that these claims violate the Consumer Protection Procedures Act because Pilgrim’s Pride routinely uses antibiotics, synthetic chemical disinfectants, genetically modified crops, and growth promoting drugs. 

Food Labeling: Lawsuit Settled Regarding Missouri Meat Labeling Law

On February 12, 2019, the St. Louis Post Dispatch reported a settlement regarding a challenge to Missouri’s law restricting the labeling of “meat” products.  According to the report, under Missouri law, only products “derived from an actual cow, chicken, turkey or some other animal with two or four feet” may be marketed as meat.  As a result, the ACLU and the makers of plant-based meat products sued alleging that the law violated free speech rights under the First Amendment.  The report stated that the details of the settlement are still being processed and should be announced sometime in March.

WOTUS: EPA Announces Public Hearing for Proposed Revised Definition of WOTUS

The Environmental Protection Agency and the U.S. Department of the Army announced that on February 27 and February 28, 2019, the agencies will hold a public hearing regarding a proposed rule revising the definition of “waters of the United States.” The public meeting will be held in Kansas City, Kansas, and will provide the public the opportunity to present data, information, or views regarding the proposed rule.  The pre-publication version of the proposed rule can be found at https://www.epa.gov/wotus-rule/step-two-revise.  The comment period on the proposed rule will end 60 days after notice of the proposed rule is published in the Federal Register

Seed Law: Monsanto Wins Royalty Ruling Over Indian Seed Company

On February 11, 2019, Reuters reported that Bayer AG Monsanto has won an arbitration ruling involving a royalty dispute with Indian seed maker Nuziveedu Seeds Ltd (NSL).  According to Reuters, NSL had previously sold genetically modified cotton seeds under a license agreement with Mahyco Monsanto Biotech (MMB), a joint venture between Monsanto and India’s Maharashtra Hybrid Seeds Co.  In 2015, however, NSL and its affiliates decided to stop paying royalties to MMB asserting that Monsanto’s genetically modified cotton seeds were not entitled to patent protection under India law.  Reuters stated that while the results of the arbitral award is confidential, Monsanto had previously calculated that NSL and its two affiliates owed about $22.82 million to MMB.

Raw Milk: CDC Links Brucellosis Exposure to Raw Milk from PA Farm

On February 8, 2019, the Centers for Disease Control and Prevention (CDC) announced possible Brucella strain RB51 (RB51) exposure due to the consumption of raw milk from a Pennsylvania dairy farm.  In November 2018, a New York resident, who drank raw milk purchased from Miller’s Biodiversity Farm in Quarryville, Pennsylvania, was diagnosed with brucellosis.  Subsequently, milk samples from Miller’s Biodiversity Farm tested positive for RB51.  According to CDC, as of January 22, 2019, investigators have determined that people in Alabama, California, Connecticut, Florida, Georgia, Iowa, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, New Jersey, New York, North Carolina, Ohio, Pennsylvania, Rhode Island, South Carolina, and Virginia have bought or consumed raw milk from Miller’s Biodiversity Farm.  CDC stated that anyone who has consumed raw milk or raw milk products from Miller’s Biodiversity Farm since January 2016 may have been exposed to RB51 and should consult their doctor.  Additionally, CDC advised that any raw milk or raw milk products acquired from Miller’s Biodiversity Farm should be discarded.

From National Ag Law Experts:

“New Lake Erie lawsuit filed against U.S. EPA”, Evin Bachelor, Ohio Agricultural Law Blog, Ohio State University Extension (February 13, 2019)

“Swimming in Deep water with Government Sharks”, Patrick B. Dillon, Dillon Law P.C. Blog (January 22, 2019)

“Do Farmers Still Care About Ag Data Privacy?”, Todd Janzen, Janzen Ag Law Blog – Janzen Ag Law (January 21, 2019)  

Pennsylvania Department of Agriculture:

“Top-Performing Bulls to Sell in 46th Edition of Pennsylvania Livestock Evaluation Center Auction”

“Pennsylvania Sire Stakes Payments Due March 15”  

Pennsylvania Legislation:

SB 256: Legislation expanding the use of mushroom compost (Referred to Senate Environmental Resources and Energy Committee, February 7, 2019)

HB 441: Legislation to allow wind energy on farmland preservation (Referred to House Agriculture and Rural Affairs Committee, February 11, 2019)

HB 453: Legislation regulating the sale of certain expired foods, over the counter drugs, and cosmetics (Referred to House Agriculture and Rural Affairs Committee, February 11, 2019)

HB 404: Legislation designating “Tree of Heaven” a noxious weed (Referred to House Agriculture and Rural Affairs Committee, February 6, 2019)

Pennsylvania Actions and Notices:

Environmental Quality Board

Meeting cancellation

Penn State Research:

“Manure injection offers hope, challenge for restoring Chesapeake water quality” – Penn State News

“Bee dispersal ability may influence conservation measures” – Penn State News

AgLaw HotLinks:

“What’s in a Drink? Corn Farmers Sour on Bud Light After Super Bowl Ad” – Successful Farming

“The state of the USDA: A quiet dismantling” – Institute for Agriculture and Trade Policy

“Interstate hemp commerce under fire despite Farm Bill assurances” – Hemp Industry Daily

“Collective of 400 EU stakeholders call for a ‘common food policy’s” – Euractiv

“FDA readies for Produce Safety Rule for US farms, offers compliance resources” – Food Navigator

“A ‘Common Food Policy’ Offers a Guide to a More Sustainable Food System in Europe. Could It Be a Model for the U.S.?” – Civil Eats       

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

Agricultural Law Weekly Review—April 6, 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:

Antitrust: Danone Must Divest Stoneyfield in Order to Proceed with WhiteWave Acquisition

On April 3, 2017, the U.S. Department of Justice (DOJ) announced “that it will require Danone S.A. to divest Danone’s Stonyfield Farms business in order for Danone to proceed with its $12.5 billion acquisition of The WhiteWave Foods Company Inc.” According to DOJ, “without the divestiture, the proposed acquisition likely would reduce competition between the two leading participants and top brands in the markets for raw and fluid organic milk, potentially harming dairy farmers in the northeast and U.S. consumers of fluid organic milk.”

Food Safety: Waivers Announced for Sanitary Transportation Rule

On April 5, 2017, the U.S. Food and Drug Administration (FDA) announced the publication of three businesses waivers to the Sanitary Transportation rule required under the FDA Food Safety Modernization Act (FSMA).  According to FDA, “[t]he Sanitary Food Transportation Act (SFTA) allows the agency to waive the requirements of this FSMA rule if it determines that the waiver will not result in the transportation of food under conditions that would be unsafe for human or animal health, or contrary to the public interest.” FDA stated that the “waivers are being published after being described in the proposed and final rule” and after FDA’s consideration of comments regarding the waivers.

Avian Influenza: USDA Releases Policy Memo on Confinement of Organic Poultry

On April 3, 2017, the U.S. Department of Agriculture (USDA) Agricultural Marketing Service

National Organic Program issued a policy memorandum regarding the confinement of organic poultry flocks due to low or highly pathogenic avian influenza.  According to USDA, “[c]ertified organic poultry operations must establish and maintain preventative livestock health care practices, which may include temporary confinement.” USDA stated that “[i]f it is determined that temporary confinement of birds is needed to protect the health, safety, and welfare of organic flocks, then producers and certifiers may work together to determine an appropriate method and duration of confinement of organic poultry flocks without a loss of organic certification.”

Seed Law: PA Secretary of Ag Warns Farmers to Only Purchase Seeds from Licensed Dealers

On March 31, 2017, Pennsylvania Secretary of Agriculture Russell Redding issued a press release advising agricultural producers to only purchase properly labeled seeds from a licensed seed dealer.  According to Secretary Redding, “[s]eed that is not tested and labeled, sometimes packaged in an unlabeled ‘brown bag,’ is being sold illegally and its quality should be considered suspect.” Secretary Redding stated that “[a]nyone offering seed for sale, whether for cover-crop or crop production, is required by law to be licensed in Pennsylvania.” As a result, the Secretary advised farmers to only purchase seed from a licensed seed dealer.

Local Food: Market Changes to Community Supported Agriculture

On April 3, 2017, the U.S. Department of Agriculture (USDA) announced the release of a report entitled: Community Supported Agriculture: New Models for Changing Markets.  According to USDA, the report found the following changes to Community Supported Agriculture (CSA) business models:

• “CSA operations represent only one portion of a farmer’s diversified marketing strategy”
• “Market diversification is expected to increase”
• “Product variety and season extending techniques are on the increase”
• “Partnerships tied to wellness programs could help create an important new source of demand for CSA subscriptions” 

Pennsylvania Legislation:

House Agricultural & Rural Affairs

HB 1026: Dog Wardens Right to Carry

HB 1044: Legislation Regarding Lost Dogs (former HB 1819)

HB 1053: Re-introduction of Clean and Green legislation

House Environmental Resources and Energy:

HB 1060: PA Clean Streams Law

Pennsylvania Administrative Actions and Notices:

Department of Agriculture:

Interstate/International and General Quarantine Order; Virus Control for Highly Pathogenic Avian Influenza Poultry at Competitions, Shows, Fairs and Exhibitions

Department of Agriculture:

 Referendum Order on Establishment of Pennsylvania Apple Program

AgLaw HotLinks:

• Sonny Perdue gets Senate Agriculture Committee vote -AJC.com
• Legal status of industrial hemp in Maryland - Goeringer
• "EPA rejects petition to revoke chlorpyrifos tolerances" - AgriPulse
• "U.S. Hogs and Pigs Inventory Up 4 Percent" - USDA
• "Industrial hemp bill passes Kansas House" -HPPR
• New FDA food labeling requirements go into effect on May 5th - FoodSafetyNews
• "Pruitt promises to build partnerships with landowners" - FeedStuffs
• Colorado proposes country of origin labeling legislation- Brownfield
• "Supreme Court won't pause Obama water rule case" -TheHill

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Check out this week’s new Agricultural Law in the Spotlight! Federal Court Dismisses Des Moines Water Works Case

Stay informed with our monthly Agricultural Law Brief located here. 

Agricultural Law in the Spotlight: Understanding Legal Protections and Potential Liabilities Associated with Seed Use in Pennsylvania

Written by Ross Pifer and M. Sean High

With the calendar marking the start of spring, much of Pennsylvania’s agricultural industry has turned its attention to the upcoming planting season.  As they do each year, farmers are making decisions about the varieties of seed that they will be purchasing as well as where they will be purchasing this seed.  In making these important decisions, farmers should be aware that there are several laws – at both the state and federal level – addressing their purchase and use of seed.

This article will discuss the Pennsylvania Seed Act, federal patent law, and the federal Plant Variety Protection Act.  These laws provide some protections for farmers, but they also subject farmers to potential liability where seed is misused in violation of applicable intellectual property rights.  Farmers need to be aware that they may be opening a door to legal liability unknowingly through their seed purchasing decisions.  How can farmers protect themselves from potential liability?  Farmers simply should look for, and read, the label or tag on the seed package or container.  By doing so, farmers can ensure themselves that they are purchasing quality seed and that the intended use of the seed will not violate intellectual property rights conferred by federal law.    

In Pennsylvania, all seed sales are regulated by Act 164 of 2005, also known as the Pennsylvania Seed Act.  Under the Seed Act, all seed distributors must obtain an annual license from the Pennsylvania Department of Agriculture and perform certain testing to ensure the quality of the seed that is being sold.  In the retail market, the Seed Act requires that all packages or containers of seed have a label that includes the name and address of the distributor, the lot number, information about the purity and germination testing of the seed, and other data depending on the specific type of seed.  In addition to potentially decreasing yields by planting seeds with an inferior germination ratio, farmers who buy unlabeled seed risk introducing unwanted weeds into their fields.  If any seed is sold in Pennsylvania without a valid label, that seed has been sold illegally.      

While proper labeling of seed is required under Pennsylvania law, seed labels often also fulfill another practical purpose by indicating to farmers whether the seed is subject to any intellectual property protections – through either patent law or the Plant Variety Protection Act.  According to the Plant Variety Protection Office within the United States Department of Agriculture (USDA), the development of new and improved plant varieties is necessary to “promote agriculture production and food security for an increasing world population.”  To encourage this development, federal law provides seed companies with significant legal protections for the intellectual property contained within the plant varieties they create.  Farmers must be aware of these protections as they face potentially severe legal consequences if they infringe upon these intellectual property rights.    

Seed companies often seek patent protection from the U.S. Patent and Trademark Office when a new seed variety is developed.  A patent provides a seed company with the exclusive right to the use of a plant variety for twenty years.  Thus, patented seed can be used only in the manner authorized by the patent holder.  Any unauthorized sale or use of the patented seed is prohibited for the duration of the patent.  A farmer or merchant who violates a patent through some unlawful action, such as the planting or selling of harvested seeds, may face a patent infringement lawsuit filed by the seed company.  As a result of this litigation, a farmer may bear significant legal costs to defend against the lawsuit in addition to the financial liability imposed if the seed company successfully establishes a violation of its patent rights.

The second type of intellectual property rights of which farmers should be familiar is provided through the Plant Variety Protection Act (PVPA).  PVPA is a federal law administered by USDA that operates similarly to a patent and provides seed companies with a twenty-year certificate to control the purchase or sale of a plant variety.  Farmers violate PVPA when they sell, purchase, offer for sale, deliver, or exchange PVPA certified seeds.  PVPA does provide a narrow exception for farmers who lawfully purchase certified seeds.  In such cases, seeds may be saved and replanted on the farmer’s property, but only in an area no larger than that which was previously planted.  Just as with the violation of patent rights, a violation of PVPA may result in a farmer suffering substantial financial penalties and costly litigation.  Significantly, courts have determined that selling seed in an unmarked bag, a practice commonly known as a “brown bag sale,” can constitute a violation of PVPA.     

When farmers make their purchasing decisions, they need to be aware of the relevant legal protections and responsibilities, including those associated with patented and protected seed, to ensure that they are receiving a quality product and that they are not subjecting themselves to potential financial liability.  As a best practice, farmers should purchase seed only from a licensed seed distributor that properly labels its products.  Farmers then must use patented and protected seed only in the manner authorized by law or the holder of the intellectual property rights.