November 28, 2022

Agricultural Law Weekly Review—Week Ending November 25, 2022

Biotechnology: USDA Secretary Releases Statement on U.S.-Mexico Corn Trade After Meeting with Mexican President 🌾
On November 28, 2022, the U.S. Department of Agriculture (USDA) Foreign Agriculture Service (FAS) published a statement from Secretary Tom Vilsack regarding a meeting with Mexican President Andrés Manuel López Obrador addressing his December 2020 decree, which called for the phased-out Mexican use of both glyphosate and genetically modified (GE) corn for human consumption by January 31, 2024.  Mexican corn production is approximately 60% of its domestic consumption; corn is Mexico’s top imported U.S. agricultural commodity, and Mexico is the second largest U.S. corn export market, measured in U.S. dollars.  Secretary Vilsack stated he “emphasized in no uncertain terms that—absent acceptable resolution of the issue—the U.S. Government would be forced to consider all options, including taking formal steps to enforce our legal rights under the [United States-Mexico-Canada Agreement (USMCA)].”  Under USMCA dispute resolution processes, if consultations or mediation between the two parties fail to resolve a conflict, either party may request an arbitration panel to adjudicate a claimed trade agreement violation.  Secretary Vilsack reported that the parties “discussed a potential process in which we can exchange information and engage in dialogue assuring the safety of biotechnology products” and that he “expect[s] to have a proposal from [President López Obrador’s] team soon,” which USDA “will evaluate closely.”

Dairy Policy: Pennsylvania Enacts $120 Million in Tax Credits for New Dairy Processing Facilities
On November 3, 2022, Pennsylvania Governor Tom Wolf signed into law H.B. 1059, amending the Pennsylvania Tax Code to, among other actions, provide $15 million per year for eight years—up to $120 million—in first-come, first-served tax credits for the operation of a new milk processing facility built with at least a $500 million capital investment and subject to several other conditions including creating “1,200 new jobs and permanent jobs.”  The credits may not be applied to receive a refund, or carried back or forward, but may be assigned or sold.  After the facility begins operations, the company may claim the tax credit at the rate of five cents per gallon of milk “purchased and produced from sources exclusively within” Pennsylvania.

Biotechnology: USDA Publishes for Comment Draft Plant Pest Risk Assessment & Environmental Impact Statement for Blight-Tolerant Darling 58 American Chestnut
On November 10, 2022, the U.S. Department of Agriculture’s (USDA) Animal and Plant Health Inspection Service (APHIS) published a notice in the Federal Register (87 FR 67861) announcing that the agency has completed a draft plant pest risk assessment (PPRA) and draft environmental impact statement (EIS) in consideration of approval of a petition to deregulate the blight-tolerant Darling 58 American Chestnut (Darling 58). The Darling 58 was developed by the State University of New York (SUNY)’s College of Environmental Science and Forestry (APHIS-2020-0030) and has been genetically engineered to expel a substance derived from wheat to defend against fungal pathogens that cause chestnut blight. Historically, chestnut blight has destroyed virtually all American chestnut trees in the U.S. APHIS sought public comment in August 2021 on deregulation of the Darling 58 before preparing the draft PPRA and EIS. According to the draft PPRA and EIS, the Darling 58 is unlikely to pose a plant pest risk or harm current commercially propagated chestnut varieties. The Federal Register notice has a comment period that closes December 27, 2022.

Disaster Assistance Programs: USDA Announces Emergency Relief Program Phase Two & Pandemic Assistance Revenue Program
On November 15, 2022, the U.S. Department of Agriculture (USDA) Farm Service Agency (FSA) announced preparations for Phase Two of the Emergency Relief Program (ERP), authorized under the Extending Government Funding and Delivering Emergency Assistance Act (P.L. 117-43), and the new Pandemic Assistance Revenue Program (PARP), authorized under the Consolidated Appropriations Act of 2021 (P.L. 116-260).  ERP Phase Two will provide funding to producers who, due to natural disasters, experienced crop losses—demonstrated by revenue decreases—but who may not have received payments under ERP Phase One, while PARP will provide funding to producers who, due to pandemic-related market factors, suffered revenue decreases in the 2020 calendar year compared with 2018 or 2019.  The deadline for producers to contact their FSA office regarding ERP Phase Two is December 16, 2022, while more information regarding PARP application is forthcoming from USDA.

Food Safety: FDA Publishes Food Traceability Records Final Rule
On November 21, 2022, the U.S. Food and Drug Administration (FDA) published in the Federal Register a final rule titled “Requirements for Additional Traceability Records for Certain Foods” (87 FR 70910). Issued under the FDA’s Food Safety Modernization Act (FSMA), the final rule mandates traceability recordkeeping requirements for those who “manufacture, process, pack, or hold foods” on the Food Traceability List (FTL).  Additionally, persons who manufacture, process, pack, or hold foods on the FTL must implement a traceability plan that outlines procedures for maintaining records, identifying, and assigning lot codes for FTL foods.  Also announced by FDA, the agency expects the requirements to expedite the process of identifying and removing potentially contaminated food from the market.

Animal Welfare: Fish and Wildlife Service Publishes Final Rule Listing Lesser Prairie Chickens Under Endangered Species Act
On November 25, 2022, the U.S. Department of Interior (DOI) Fish and Wildlife Service (FWS) published in the Federal Register a final rule (87 FR 72674) listing two Distinct Population Segments (DPS) of the lessor prairie chickens under the Endangered Species Act (ESA).  The rule grants a threatened status for the Northern DPS and endangered status for the Southern DPS.  Further, the Rule adds both the Northern DPS and Southern DPS to the List of Endangered and Threatened Wildlife and outlines measures for the conservation of the Northern DPS under the authority of section 4(d) of the ESA. More information can be found on the FWS website.

Food Safety: FDA Issues Warning Letters to Five Companies for Selling CBD Products
On November 21, 2022, U.S. Food and Drug Administration (FDA) announced that the agency had issued warning letters to five companies for selling cannabidiol (CBD)-containing products—which some of the companies claimed can “cure, mitigate, treat or prevent various diseases”—in violation of the Federal Food Drug, and Cosmetic Act (FD&C Act).  Because CBD is not generally recognized as safe (GRAS) for human or animal food use under the FD&C Act, CBD may not be added to human or animal food products or sold as a dietary supplement.  Companies receiving letters from the FDA were

  • 11-11-11 Brands for its Mood33 Hemp Infused Herbal Tea products;
  • Naturally Infused LLC for its CBD Lollipops, CBD Infused Sugar, CBD Gummies, CBD Infused coffees, D8 THC Infused coffees, and Delta-8 THC Gummies products;
  • Newhere Inc dba CBDFX for its flavored Chill Shots, CBDFx Mixed Berry Gummies (1500mg), and Chocolate Chip, Oatmeal Raisin, and Peanut Butter CBD Cookies with Protein (20mg);
  • Infusionz LLC for its CBD gummies, CBD fruit snacks, CBD gum, CBD candy, and CBD lollipops; and
  • CBD American Shaman LLC for its CBD Suckers, CBD Hard Candies, Cookies with 10mg CBD per Serving, CBD Sparkling Tea, CBD Sparkling Water, CBD Coffee, CBD Honey Sticks, CBD Honey, Doggy Chews, Soft & Tender Doggy Chews, Horsey Chews, Doggy Nugs, and Kitty Nugs.

Under the FD&C Act, all of the listed products are adulterated “because they bear or contain an unsafe food additive.”  The companies have 15 working days to respond to the warning letters with their plans to “address the issues described” or an explanation of why the identified products do not violate the FD&C Act.  According to FDA, “[f]ailure to adequately address the violations promptly may result in legal action, including product seizure and/or injunction.”

Antitrust: Chick-Fil-A Antitrust Suit Against Tyson Settled
On November 18, 2022, the U.S. District Court for the Northern District of Illinois, Eastern Division, issued an order dismissing with prejudice Chick-Fil-A’s claims against Defendants Tyson and Keystone Foods (Tyson) in the ongoing consolidated multi-district civil class action case In re Broiler Chicken Antitrust Litigation, No. 1:16-cv-08637.  Because all corresponding documents and the settlement agreement were filed under seal, no information is publicly available regarding a settlement payment amount.  The order states that Tyson agrees to continue cooperating in ongoing criminal antitrust investigations regarding criminal claims “including, but not limited to, claims arising from conduct related to Tyson’s sales of Broiler Chicken Products to [Chick-Fil-A] from 2012–2019.”   For background, see the Center’s Agricultural Antitrust Litigation Issue Tracker for In re Broiler Chicken Antitrust Litigation.

 

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CENTER PROGRAMS & RESOURCES

Agricultural Law Podcasts:

Events:

Understanding Agricultural Law. A free monthly Zoom webinar series for all agricultural and rural business advisors. One hour of substantive CLE credit available for Pennsylvania-licensed attorneys at no charge.  Recordings and materials from prior webinars, more information, and registration available here. Next in the series:

Legal Planning for Specialty Crop Producers. A free periodic Zoom webinar series.  Register at any time to watch past recordings and attend all future webinars and access all materials.  Next in series:

Dairy Quarterly Legal Webinar. A free quarterly Zoom webinar series covering U.S. dairy industry legal and regulatory developments with an in-depth focus topic presentation. One hour of substantive CLE credit available for Pennsylvania-licensed attorneys at no charge.  Recordings and materials available here. More events coming soon.

Resources Of Interest:

Academic & Government Resources

Media & Industry Resources

AGRICULTURE-RELATED LEGISLATIVE HEARINGS AND REPORTS

U.S. Senate Judiciary Committee, Examining the Competitive Impact of the Proposed Kroger-Albertsons Transaction, Tuesday, Nov. 29, 2022, 3:00 pm ET.

Penn State News, Research & Resources:

What Shapes the Composition of Microbes in a Warbler’s Gut? (Nov. 21, 2022).

Top #AgLaw HotLinks Nov. 21–25, 2022:

Ag Push for Farm Labor Bill Begins; Farmers, Others Call on Senate to Pass Ag Immigration Reforms in Lame-Duck Session, Progressive Farmer.

USDA Program Keeps Extra COVID-Era Money for Fruits, Veggies, Morning Ag Clips.

Quite Frankly, I’m Concerned for Our Entire Industry…’ FDA Cracks Down on Firms Selling CBD-Infused Foods & Beverages in ‘Aggressive’ New Stance, Food Navigator.

Lesser Prairie Chickens Gain Protection Under U.S. Endangered Species Act, New York Times.

Farm Bill Proposal: Strengthen Subsidy Limits, Boost Land Stewardship, Successful Farming

Pennsylvania Farm/Food Employers’ Listserv (PFEL) is a human resources networking group exclusively for farm and food employers. Subscribe by email with “subscribe” in the subject line to pfel-subscribe-request@lists.psu.edu. 

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FEDERAL ACTIONS—EXECUTIVE & LEGISLATIVE

U.S DEPARTMENT OF AGRICULTURE (USDA) PRESS RELEASES

USDA Invests More Than $59M to Improve Dietary Health and Nutrition Security (Nov. 22, 2022).

USDA Advances Food Sovereignty Efforts in LFPA agreement with the Chickahominy Indian Tribe Eastern Division (Nov. 22, 2022).

ENVIRONMENTAL PROTECTION AGENCY (EPA) PRESS RELEASES

EPA and State Partners Announce Major Improvement in Clean Water Act Permit Compliance (Nov. 22, 2022).

California Trucking Company to Pay $71K Penalty for Three Spills into Lake County Waterways (Nov. 21, 2022).

EPA Orders Two Illinois Drinking Water Suppliers to Comply with Requirements of America’s Water Infrastructure Act (Nov. 21, 2022).

EPA Releases Evaluation of Pennsylvania’s Chesapeake Bay Restoration Plan (Nov. 21, 2022).

USDA AGENCY PRESS RELEASES:

Agricultural Marketing Service (AMS)

USDA Expands Local Foods in School Meals through Cooperative Agreement with Washington (Nov. 23, 2022).

USDA Advances Food Sovereignty Efforts in LFPA agreement with the Chickahominy Indian Tribe Eastern Division (Nov. 22, 2022).

USDA Expands Local Foods in School Meals through Cooperative Agreement with Michigan (Nov. 21, 2022).

Food and Nutrition Service (FNS)

USDA Invests More Than $59M to Improve Dietary Health and Nutrition Security (Nov. 22, 2022).

Food Safety and Inspection Service (FSIS)

Food Safety: The Best Ingredient for Thanksgiving Leftovers (Nov. 22, 2022).

Foreign Agricultural Service (FAS)

Export Sales to China (Nov. 23, 2022).

USDA Trade Mission to Spain will Boost Export Opportunities for U.S. Agribusinesses (Nov. 22, 2022).

National Agriculture Statistics Service (NASS)

USDA seeks nominations for the Advisory Committee on Agriculture Statistics (Nov. 23, 2022).

USDA invites ag producers to respond online to the 2022 Census of Agriculture (Nov. 22, 2022).

National Institute of Food and Agriculture (NIFA)

Land-grant Universities Help Educate Public about Antimicrobial Resistance (Nov. 25, 2022). Land-grant University Researchers Helping in Fight Against Antimicrobial Resistance (Nov. 25, 2022).

USDA Invests More Than $59M to Improve Dietary Health and Nutrition Security (Nov. 22, 2022).

Land-grant Universities Make Thanksgiving Dinner More Delicious (Nov. 21, 2022).

Helping Keep Fisheries Healthy and Productive (Nov. 21, 2022).

FEDERAL EXECUTIVE AGENCIES (Federal Register Nov. 21 – 25, 2022):            

Agricultural Marketing Service

87 FR 72442 Notice—Public Comment: “Transportation and Marketing Program; Request for Extension of a Currently Approved Information Collection” (Nov. 25, 2022).

Agriculture Department

87 FR 72443 Notice: “Submission for OMB Review; Comment Request” (Nov. 25, 2022).

87 FR 72443 Notice: “Submission for OMB Review; Comment Request” (Nov. 25, 2022).

87 FR 71569 Notice: “Submission for OMB Review; Comment Request” (Nov. 23, 2022).

87 FR 71290 Notice: “Submission for OMB Review; Comment Request” (Nov. 22, 2022).

87 FR 70770 Notice: “Submission for OMB Review; Comment Request” (Nov. 21, 2022).

Environmental Protection Agency

87 FR 71627 Notice: “Great Lakes Advisory Board Notice for Virtual Meeting” (Nov. 23, 2022).

87 FR 71325 Notice: “Cancellation Order for Certain Pesticide Registrations and Amendments to Terminate Uses’ (Nov. 22, 2022).

87 FR 71328 Notice—Public Comment: “Request for Nominations for the Science Advisory Board Inorganic Arsenic Review Panel” (Nov. 22, 2022).

87 FR 71321 Notice—Public Comment: “Notice of Receipt of Requests to Voluntarily Cancel Certain Pesticide Registrations and Amend Registrations to Terminate Certain Uses” (Nov. 22, 2022).

Federal Crop Insurance Corporation

87 FR 72359 Final Rule with Request for Comments: “Small Grains and Processing Sweet Corn Crop Insurance Improvements” (Nov. 25, 2022).

Food and Drug Administration

87 FR 70910 Final Rule: “Requirements for Additional Traceability Records for Certain Foods” (Nov. 21, 2022).

87 FR 70752 Proposed Rule—Public Comment: “Cargill, Inc.; Filing of Food Additive Petition” (Nov. 21, 2022).

Food and Nutrition Service

87 FR 71294 Notice—Public Comment: “Agency Information Collection Activities: Supplemental Nutrition Assistance Program Emergency Allotments (COVID-19)” (Nov. 22, 2022).

87 FR 71090 Proposed Rule—Public Comment: “Special Supplemental Nutrition Program for Women, Infants, and Children (WIC): Revisions in the WIC Food Packages” (Nov. 21, 2022).

Food Safety and Inspection Service

87 FR 71291 Notice—Public Comment: “Use of a Non-Destructive Surface Sampling Device To Sample Domestic Beef Manufacturing Trimmings and Bench Trim” (Nov. 22, 2022).

International Trade Commission

87 FR 70864 Notice: “Certain Chocolate Milk Powder and Packaging Thereof; Notice of a Commission Determination to Issue a General Exclusion Order; Termination of Investigation” (Nov. 21, 2022).

AGRICULTURE-RELATED LEGISLATIVE HEARINGS AND REPORTS

U.S. Senate Ag. Comm., Why Congress Needs to Act: Lessons Learned from the FTX Collapse, December 1, 2022.

U.S. HOUSE AGRICULTURE COMMITTEE:

No new actions this week.

U.S. SENATE COMMITTEE ON AGRICULTURE, NUTRITION, AND FORESTRY:

No new actions this week.

STATE ACTIONS—EXECUTIVE & LEGISLATIVE 

PENNSYLVANIA DEPARTMENT OF AGRICULTURE PRESS RELEASES:           

No new press releases this week.

PENNSYLVANIA EXECUTIVE AGENCIES (Pa. Bulletin Vol. 53, No. 48—Nov. 26, 2022): 

Department of Conservation and Natural Resources

52 Pa.B. 7272 Notice: “Approval of Big Sewickley Creek Watershed Conservation & Stewardship Plan and Placement of Big Sewickley Creek Watershed (Allegheny County) on the Pennsylvania Rivers Conservation Registry.”

Department of Environmental Protection 

52 Pa.B. 7272 Notice: “Applications, Actions and Special Notices.”

52 Pa.B. 7330 Notice: “Availability of Grants through the Driving PA Forward Initiative; Medium and Heavy-Duty Zero-Emission Vehicle Fleet Pilot Grant Program.”

52 Pa.B. 7331 Notice: “Availability of Technical Guidance.”

52 Pa.B. 7331 Notice: “Cleanup Standards Scientific Advisory Board Meeting Cancellation.”

State Conservation Commission

52 Pa.B. 7348 Notice: “Action on Odor Management Plans for Concentrated Animal Operations and Concentrated Animal Feeding Operations and Volunteers Complying with the Commonwealth’s Facility Odor Management Program.”

PENNSYLVANIA LEGISLATURE

H.B. 2926 “An Act establishing the Pennsylvania Agroforestry Program and the Pennsylvania Agroforestry Fund; providing grants to resident farmers and resident small businesses; and imposing duties on Department of Agriculture.” Referred to Agriculture and Rural Affairs [House] (Nov. 21, 2022).

 

Written by:
Dillon Lightfoot—Research Assistant
Megan Guess—Research Assistant
Audry Thompson—Staff Attorney 
Brook Duer—Staff Attorney