Agricultural Law Weekly Review—May 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:

FSMA: FDA Announces Public Meetings Regarding Import Safety Program

On May 9, 2016, the United States Food and Drug Administration (FDA) published notice in the
Federal Register of “three one-day public meetings in different regions throughout the United States to provide importers and other interested persons an opportunity to have an in-depth discussion on the implementation of the FDA Food Safety Modernization Act (FSMA) import safety programs (i.e., foreign supplier verification programs (FSVPs) for importers of food for humans and animals, accreditation of third-party certification bodies, and FDA's Voluntary Qualified Importer Program (VQIP))” (81 FR 28035).  The three regional outreach meetings are scheduled as follows: 1) the California region on June 7, 2016; 2) the New Jersey region on June 15, 2016; and 3) the Michigan region on June 21, 2016.

Herbicides: EPA Removes Report Stating Glyphosate Not Likely Carcinogenic

On May 2, 2016, Reuters reported that the United States Environmental Protection Agency (EPA) “pulled a report offline that concluded glyphosate is not likely to be carcinogenic to humans, saying the document was inadvertently published and the agency had not finished its review of the chemical, which is the key ingredient in Monsanto's herbicides.” According to the article, when contacted by Reuters, “EPA declined to comment on whether the report, or the 13 other documents that were also published and subsequently taken down…indicate whether the agency ultimately will conclude that glyphosate is not carcinogenic.”

Retail Food Facilities: PDA Publishes Licensure Exemptions

On May 7, 2016, the Pennsylvania Department of Agriculture (PDA) published notice in the Pennsylvania Bulletin regarding the licensure, inspection and safe operation of retail food facilities within the Commonwealth of Pennsylvania.  The published notice, which specifies certain types of retail food facilities exempt from PDA licensing requirements, became effective on May 7, 2016.

Labeling: FDA Announces Menu Labeling Guidance

On May 5, 2016, the United States Food and Drug Administration (FDA) published notice in the Federal Register that the agency announcing the availability “of a guidance for industry entitled ‘A Labeling Guide for Restaurants and Retail Establishments Selling Away-From-Home Foods—Part II (Menu Labeling Requirements in Accordance With FDA's Food Labeling Regulations)’” (81 FR 27067).  According to FDA, “[t]he guidance will help certain restaurants and similar retail food establishments comply with the menu labeling requirements, including the requirements to provide calorie and other nutrition information for standard menu items, including food on display and self-service food.” Significantly, the notice stated “enforcement of the Nutrition Labeling of Standard Menu Items in Restaurants and Similar Retail Food Establishments final rule will commence 1 year after the [May 5, 2016] date on which this document publishes in the Federal Register.” 

Legislation: Resolution on Modern Agricultural Technologies Moves to Agricultural and Rural Affairs Committee

On May 10, 2016, Pennsylvania House Resolution 872 “urging Federal and State regulatory agencies to utilize science-based, peer-reviewed data in evaluating crop protection chemistry and nutrients” was referred to House Agricultural and Rural Affairs committee.  According to the Resolution’s co-sponsorship memoranda, “a sustainable agricultural system in our nation is critical to the continued production of food, feed and fiber…[and] [t]he availability of modern agricultural technologies such as precision farming equipment, crop protection chemistries, genetically engineered or enhanced traits, and agricultural nutrients are critically important tools that allow farmers to expand yields, reduce environmental impacts, improve profitability, and provide a safe, healthy, abundant and affordable food supply.”

Legislation: Senate Votes to Amend Pennsylvania Breeding Funds

On May 11, 2016, the Pennsylvania Senate voted 49-0 to pass Senate Bill 1229 which is “[a]n Act amending the act of April 9, 1929 (P.L.177, No.175), known as The Administrative Code of 1929, in horse race industry reform, further providing for Pennsylvania Breeding Fund.” According to the co-sponsorship memoranda, the legislation is intended to “fix technical issues related to the distribution of Pennsylvania Breeding Funds.”

Legislation: Food Protection Bill Referred to House Agriculture and Rural Affairs Committee

On May 11, 2016, Pennsylvania House Bill 2067 was referred to the Pennsylvania House Agriculture and Rural Affairs committee.  The proposed legislation is “[a]n Act amending Title 3 (Agriculture) of the Pennsylvania Consolidated Statutes, in food protection, further providing for definitions and for license required.”

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.”