December 15, 2023

Agricultural Law Weekly Review—December 15, 2023

Antitrust: Federal Jury Finds Egg Producers Liable for Price-Fixing and Conspiracy, Damages Awarded 🌾
On November 21, 2023, the U.S. District Court for the Northern District of Illinois entered a minute entry of a jury verdict finding the defendant egg producers liable in an antitrust case alleging that numerous egg producers—including United Egg Producers, Inc., United States Egg Marketers, Inc., and Cal-Maine Foods—“unlawfully agreed to and did implement their conspiracy to control supply and artificially maintain and increase the price of eggs through a series of collective actions.” Kraft Foods Global v. United Egg Producers, No. 1:11-cv-08808. The case was initially filed in 2011 by Kraft Foods Global, Inc., General Mills, Inc., Nestlé USA, Inc., and the Kellogg Company and then transferred to the U.S. District Court for the Eastern District of Pennsylvania from 2012–2019. Kraft Foods Global v. United Egg Producers, No. 2:12-cv-00088. In a November 22, 2023, press release, Cal-Maine stated that it is “disappointed with the overall decision” and noted that the “damages would be limited to the period 2004–2008.” On December 1, 2023, the court entered a minute entry stating that the jury had reached a verdict regarding damages and a jury verdict determining damages (Entry No. 634, restricted). According to media reports, the jury awarded $17.7 million in damages, which, under the Clayton Act (15 U.S. Code §15(a)), are automatically tripled and, if upheld, would result in $53.1 million in total damages. For more on antitrust issues, see the Center’s Agricultural Antitrust Litigation Issue Tracker. 

Agricultural Labor: USDA Publishes Farm Labor Report, Data for 2024 H-2A Adverse Effect Wage Rates
On November 22, 2023, the U.S. Department of Agriculture’s (USDA) National Agricultural Statistics Service (NASS) published the latest, semi-annual November 2023 Farm Labor Report, published in May and November each year. According to NASS, the “data is published in wage rates by type of worker and number of workers and hours worked by region and U.S., as well as wage rates and hired workers by economic class of farm or type of farm.” The data contained in the Farm Labor Report will be used to determine the 2024 Adverse Effect Wage Rate (AEWR) for the H-2A temporary agricultural worker program. Additionally, American Farm Bureau Federation (AFBF) published an analysis of the report, calculating the 2024 AEWRs, which AFBF states, “don’t become official until they are released by the Department of Labor in the Federal Register, usually around mid-December,” although AFBF notes that, “the rates published in the Federal Register are typically unchanged from what is published in the Farm Labor Report.” According to AFBF, in 2024, “every state will have an AEWR in excess of $14 per hour.” See also the Center’s H-2A Program Issue Tracker.

Pesticides/Herbicides: EPA Publishes FWS Final Biological Opinion for Enlist Herbicides
On November 30, 2023, the U.S. Environmental Protection Agency (EPA) published the final biological opinion (BiOp) from the U.S. Fish and Wildlife Service (FWS) for Enlist One and Enlist Duo, the final step in EPA’s formal collaboration with FWS under the Endangered Species Act regarding the Enlist products (Docket No. EPA-HQ-OPP-2021-0957). Also announced by the agency, EPA states that the FWS BiOp found that “the use of Enlist products, as specified in the approved product labels, are not likely to jeopardize any listed species or adversely modify their critical habitats.” EPA states that it “will work with the registrant to implement the BiOp” and “intends to have label revisions approved in advance of the next growing season.” See also ALWR—June 5, 2023, “EPA Publishes FWS Draft Biological Opinion for Enlist Herbicides” and the Center’s Glyphosate Issue Tracker. 

Food Safety: FDA Publishes Food Traceability Rule Compliance Resources, Inspections to Begin in 2027
On November 30, 2023, the U.S. Food and Drug Administration (FDA) published a constituent update summarizing several Food Traceability Rule website resources, including videos, sample traceability plans, Frequently Asked Question documents, and waiver and exemption application information. FDA notes that, while the rule’s compliance date for regulated parties is January 20, 2026, the agency will not begin inspections under the rule until 2027. See also the Center’s Food Safety Modernization Act Virtual Resource Room.

Food Policy: EPA, USDA, FDA Publish ‘Draft National Strategy for Reducing Food Loss and Waste and Recycling Organics’ On December 5, 2023, the U.S. Environmental Protection Agency (EPA) published in the Federal Register a notice (88 FR 84322) making available the Draft National Strategy for Reducing Food Loss and Waste and Recycling Organics, developed by EPA, the U.S. Department of Agriculture (USDA), and the Food and Drug Administration (FDA). Also announced by EPA, USDA, and FDA, the strategy identifies four main objectives: (1) “Prevent the loss of food where possible,” (2) “Prevent the waste of food where possible,” (3) “Increase the recycling rate for all organic waste,” and (4) “Support policies that incentivize and encourage food loss and waste prevention and organics recycling.” The draft is available for comment until January 4, 2023 (EPA-HQ-OLEM-2022-0415). See also materials and recording from An Overview of U.S. Charitable Food Surplus Programs.

International Trade: Congressmembers Send Letter, Introduce Legislation Opposing Paraguay Beef Imports
On December 1, 2023, twenty-one Congress members sent a letter to U.S. Department of Agriculture (USDA) Secretary Tom Vilsack opposing the Animal and Plant Health Inspection Service’s (APHIS) November 14, 2023, final rule allowing beef imports from Paraguay. Also announced by representative Tracey Mann, the letter cites concern over foot-and-mouth disease (FMD) and cites USDA’s Food Safety and Inspection Service (FSIS) Paraguay website, which states that, as of March 24, 2023, “Paraguay is affected with foot-and-mouth disease (FMD) and the importation of fresh beef from Paraguay is prohibited.” The congressmembers claim that, in promulgating the final rule, “USDA relied on outdated site visits, irrelevant inspections, and inadequate data to overcome these prohibitions.” Additionally, on December 4, 2023, Senator Mike Rounds introduced S.3386, “A bill to temporarily suspend the importation of beef and beef products from Paraguay and to require the establishment of a working group to evaluate the threat to food safety and animal health posed by beef imported from Paraguay.” See also ALWR—Dec. 4, 2023, “USDA Publishes Final Rule Allowing Beef Imports from Paraguay.”

National Agricultural Policy: 158 Leaders, United States Sign COP28 Declaration on Sustainable Agriculture
From November 30–December 12, 2023, thousands of delegates from all 199 Parties to the United Nations (UN) Framework Convention on Climate Change, including the United States, participated in the 28th meeting of the Conference of the Parties (COP28) UN Climate Change Conference in Dubai, United Arab Emirates. During the meeting, 158 countries, including the United States, signed on to the COP28 Declaration on Sustainable Agriculture, Resilient Food Systems, and Climate Action. The declaration states that the countries “affirm that agriculture and food systems must urgently adapt and transform in order to respond to the imperatives of climate change” and “commit to expedite the integration of agriculture and food systems into our climate action and, simultaneously, to mainstream climate action across our policy agendas and actions related to agriculture and food systems.”

Crop Insurance: GAO Report Finds Rate of Return for Government-Funded Retained Premiums Exceeds Market-Based Returns by 6%
On December 4, 2023, the U.S. Government Accountability Office (GAO) published a report for congressional requestors titled “Crop Insurance: Update on Opportunities to Reduce Program Costs,” along with an abbreviated highlights document. According to the report, “from 2011 through 2022, [insurance] companies received an annual rate of return on retained premiums of 16.8 percent on average (about $1.4 billion in underwriting gains per year), which exceeded a market-based rate of return (10.2 percent).” GAO states that “adjusting the program’s rate of return to more closely reflect market conditions could save the federal government hundreds of millions of dollars per year.” According to GAO, the agency “has previously recommended and still believes that Congress should consider repealing the 2014 farm bill provision that any revision to the agreement with insurance companies not reduce their expected underwriting gains and consider reducing premium subsidies for the highest-income participants.” GAO states that “USDA did not have any comments on the report.” See also materials and recording from Understanding the Basics of Crop Insurance.

Disaster Assistance Programs: Lawmakers, Industry Call for Re-Calculation of 2022 Emergency Relief Payments
On December 6, 2023, the Minority Blog for the U.S. Senate Committee on Agriculture, Nutrition & Forestry published a post compiling data on the 2022 Emergency Relief Program (ERP) payment methods, including several links to correspondence to the U.S. Department of Agriculture (USDA) regarding the 2022 ERP from Congress members, industry stakeholders, and state and producer organizations. The post states that the 2022 ERP payment methodology “reduces the ERP initial payment progressively as economic losses increase,” which the post states, “acts as a de facto payment limitation.” The minority blog calls for the current administration to “pause implementation and delivery of the 2022 Emergency Relief Program (ERP) and determine an equitable and uniform approach to administer assistance to farmers and ranchers impacted by 2022 natural disasters.”

Conservation Programs: Fish and Wildlife Service Publishes Final Rule Listing North American Wolverine Under Endangered Species Act
On November 30, 2023, the U.S. Department of Interior (DOI) Fish and Wildlife Service (FWS) published in the Federal Register a final rule (88 FR 83726) listing the Distinct Population Segment (DPS) of the North American wolverine (Gulo gulo luscus) in the contiguous United States as a threatened species under the Endangered Species Act (ESA). The species was added to the List of Endangered and Threatened Wildlife in September 2023 after FWS completed a species status assessment. Also announced by FWS, the final rule also includes an interim 4(d) rule prohibiting take, possession and transport of the American wolverine. The final rule becomes effective January 2, 2024, and the interim 4(d) rule is open for public comment until January 29, 2024 (FWS-R6-ES-2023-0216-0001).

National Agricultural Policy: USDA Publishes ‘National Forest System Monitoring’ Manual Chapter
On November 28, 2023, the U.S. Department of Agriculture (USDA) Forest Service published in the Federal Register a notice (88 FR 83073) making available a new chapter in the Forest Service manual: Chapter 2040 National Forest System Monitoring. Also announced by the agency, the Forest Service states that the directive will prioritize “the most relevant management information needs” and utilize “existing data when possible” to “minimize[] inconsistencies and improve[] government-to-government relationships with tribes.” The chapter is available for public comment until January 11, 2024.

Animal Welfare: Campbell’s Shareholders Reject Proposal to Provide Cage-Free Egg Report
On November 29, 2023, Campbell Soup Company’s shareholders voted down—by a margin of 14 to 1—a “non-binding shareholder proposal requesting that the Company provide [within three months of the meeting] a report detailing its conversion plans for achieving compliance with its cage-free egg commitment by 2025” (Votes for—16,455,000; Votes against—233,898,313; Abstain—2,068,490; Broker Non-Votes—20,962,197). In Campbell’s 2023 Proxy Statement from its SEC Filings, the Board of Directors recommended that the shareholders vote against the proposal, stating, “Progress towards sourcing of cage-free eggs is not necessarily linear and may be subject to factors beyond our control, such as Avian Flu outbreaks and supply chain disruption. Requiring the Company to disclose periodic, interim, prospective targets against previously announced multi-year goals—in addition to annual progress updates against those same goals—would be burdensome, unnecessary and duplicative, and the various numbers could generate confusion among our stakeholders.” Campbell’s states that it will “provide a specific update on progress against [their] cage-free egg commitment” in their March 2024 Corporate Responsibility Report. See also the Center’s Animal Confinement Issue Tracker.

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CENTER PROGRAMS & RESOURCES

Events:

Understanding Agricultural Law Series. A free monthly Zoom webinar series for agricultural and rural business advisors. One hour of substantive CLE credit available for Pennsylvania-licensed attorneys at no charge. All events on Fridays, noon–1 pm (ET). Upcoming:

Dairy Quarterly Legal Webinar Series. A free quarterly Zoom webinar series covering dairy industry legal and regulatory developments with an in-depth focus topic. One hour of substantive CLE credit available for Pennsylvania-licensed attorneys at no charge. All events on Tuesdays, noon–1 pm (ET). Upcoming:

Protecting Your Farm’s Food Business with Product Liability Insurance

  • Feb. 9, 2024, 4:00pm (ET). Staff Attorney Brook Duer presents at PASA 2024 Sustainable Agriculture Conference

ACRE Law 101: Agriculture, Local Regulations, and Nutrient Management

  • Mar. 6, 2024, 9:00 am–1:00 pm. In-person at US Hotel Tavern, Hollidaysburg, PA. Free PDH Engineering, Nutrient Management, and CLE credits available, lunch provided.

Podcasts:

Agricultural Law Podcast
253. California’s Mandated Carcinogen Warning on Roundup Is Unconstitutional (Dec. 5, 2023)
252. U.S. Treasury’s New “Beneficial Ownership Information” Filing for Business Entity Structures Formed Under State Law (Nov. 28, 2023)
251. DOJ Sues Agri-Stats Directly for Collusion in Protein Sector (Nov. 20, 2023)

Farmland Legal Energy Podcast

160. Methane Production From Manure (Oct. 31, 2023)
159. An Introduction to Hydrogen and Agriculture (Oct. 10, 2023)
158. An Introduction to Anaerobic Digestion (Sept. 26, 2023)

Publications:

Anaerobic Digestion: An Alternative Energy Source for Farmers (Dec. 2023). More Center Publications.

Resources of Interest:

Agric. Law & Tax’n Blog, Funding a Buy-Sell Agreement with Corporate Owned Life Insurance – Will Corporate Value Be Enhanced?, Roger McEowen (Dec. 1, 2023)

Ohio St. Univ. Ext. Farm Off. Blog, Farmer/Farmland Owner Income Tax Webinar on December’s Farm Office Live!, Jeffrey Lewis (Dec. 1, 2023)

Southern Ag Today, Tariff and Non-Tariff Barriers Affect U.S. Agricultural Exports to the ASEAN Market, Deluair Hossen (Dec. 1, 2023)

Agric. Law & Tax’n Blog, LLCs/LPs and S.E. Tax – Will Steve Cohen Now Settle?, Roger McEowen (Nov. 30, 2023)

Iowa St. Univ. Ctr. Agric. Law & Tax’n, Small Entities Must File New Beneficial Ownership Information Reports in 2024, Kristine Tidgren (Nov. 30, 2023)

Nat’l Agric. Law Ctr., Flood Insurance for Agricultural Producers, Samantha Capaldo (Nov. 30, 2023)

Ohio St. Univ. Ext. Farm Off. Blog, Open burning restrictions lift December 1, but don’t get burned by the laws, Peggy Hall (Nov. 30, 2023)

Southern Ag Today, Evaluation of the Recent Government Accountability Office Sugar Program Report , Karen DeLong (Nov. 30, 2023)

Ohio St. Univ. Ext. Farm Off. Blog, Education and medical expenses are exempt from gifting rules, Robert Moore (Nov. 28, 2023)

Nat’l Agric. Law Ctr., Spotlighting State Restrictions on Foreign Land Investments: Louisiana – Part One, Micah Brown (Nov. 28, 2023)

Agric. Law & Tax’n Blog, Current Issues in Ag Law and Taxation, Roger McEowen (Nov. 27, 2023)

Tex. A&M Agric. Law Blog, US Court of Appeals Upholds Texas Drone Privacy Law, Tiffany Dowell Lashmet (Nov. 27, 2023)

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FEDERAL ACTIONS—EXECUTIVE & LEGISLATIVE

U.S DEPARTMENT OF AGRICULTURE (USDA) PRESS RELEASES

USDA Provides $208 Million to Help Prevent Guaranteed Borrower Foreclosures and to Assist Emergency Loan Borrowers (Nov. 30, 2023)

USDA Announces Opening of Application Period for Regional Agricultural Promotion Program (Nov. 29, 2023)

Biden-Harris Administration Partners with Ag Producers to Strengthen Agricultural Supply Chains and Lower Food Costs (Nov. 27, 2023)

ENVIRONMENTAL PROTECTION AGENCY (EPA) PRESS RELEASES

EPA Proposes Revising Certain Water Quality Standards for Florida’s Waters (Dec. 1, 2023)

EPA Fines Iowa Ethanol Producer for Alleged Clean Air Act Violations (Nov. 30, 2023)

EPA Region 3 Awards Nearly $387M for Clean Water and Drinking Water Infrastructure Upgrades in Pennsylvania (Nov. 29, 2023)

EPA Begins to Demolish Manufacturing Facility at the Allen Street Development Site in Jamestown, New York (Nov. 27, 2023)

USDA AGENCY PRESS RELEASES:

Agricultural Marketing Service (AMS)

USDA Partners with Nebraska to Award over $2.5 Million to Strengthen Food Supply Chain Infrastructure (Dec. 1, 2023)

USDA Settles a Packers and Stockyards Case with J. Thomas Morrissey (Nov. 27, 2023)

Animal and Plant Health Inspection Service (APHIS)

USDA Deregulates Corn Developed Using Genetic Engineering (Nov. 30, 2023)

Economic Research Service (ERS)

Outlook for U.S. Agricultural Trade: November 2023 (Nov. 30, 2023)

Producer Supply Response for Area Planted of Seven Major U.S. Crops (Nov. 28, 2023)

Farm Service Agency (FSA)

USDA Announces December 2023 Lending Rates for Agricultural Producers (Dec. 1, 2023)

USDA Provides $208 Million to Help Prevent Guaranteed Borrower Foreclosures and to Assist Emergency Loan Borrowers (Nov. 30, 2023)

USDA Makes Producer-Friendly Change to 2023 Notice of Loss Requirements for Two Livestock Disaster Assistance Programs (Nov. 29, 2023)

Food and Nutrition Service

Grant Applications to Improve School Meals through Local, Regional Partnerships Now Open (Nov. 28, 2023)

Unlocking New Opportunities for Grocers with SNAP Online Purchasing Support (Nov. 27, 2023)

Food and Safety Inspection Service (FSIS)

Special Alert: Constituent Update – November 28, 2023 (Nov. 28, 2023)

Foreign Agricultural Service (FAS)

USDA Announces Opening of Application Period for Regional Agricultural Promotion Program (Nov. 29, 2023)

Natural Resources Conservation Service (NRCS)

Next Round of Funding for Conservation Programs (Dec. 1, 2023)

Wisconsin NRCS Helps Celebrate 10 Years of Locally Led Watershed Conservation (Nov. 30, 2023)

NFWF Announces $4.1 Million in Conservation Grants Awarded throughout Central Appalachia (Nov. 27, 2023)

FEDERAL EXECUTIVE AGENCIES (Federal Register Nov. 27–Dec. 1, 2023):   

Agricultural Marketing Service

88 FR 83305 Rule: “National Bioengineered Food Disclosure Standard; List of Bioengineered Foods” (Nov. 29, 2023)

Agriculture Department

88 FR 84038 Proposed Rule—Comment Period: “Milk in the Appalachian, Florida, and Southeast Marketing Areas; Final Decision on Proposed Amendments to Marketing Agreements and to Orders” (Dec. 1, 2023)

88 FR 83870 Proposed Rule—Comment Period: “Pears Grown in Oregon and Washington; Increased Assessment Rate for Processed Pears” (Dec. 1, 2023)

88 FR 83897 Notice: “Proposed New Recreation Fee Sites” (Dec. 1, 2023)

88 FR 83379 Notice: “Addition of Bolivia to the List of Regions Affected With Highly Pathogenic Avian Influenza” (Nov. 29, 2023)

88 FR 83378 Notice: “Addition of Singapore to the List of Regions Affected by African Swine Fever” (Nov. 29, 2023)

Environmental Protection Agency

88 FR 83942 Notice: “Chlorpyrifos; Amendment to Existing Stocks Provisions of Chlorpyrifos Cancellation Order for Certain Chlorpyrifos Products” (Dec. 1, 2023)

88 FR 83538 Notice: “Pesticide Product Registration; Receipt of Applications for New Active Ingredients (August 2023)” (Nov. 30, 2023)

88 FR 83118 Notice: “Pesticide Product Registration; Receipt of Applications for New Uses (October 2023)” (Nov. 28, 2023)

88 FR 82782 Rule: “Tolpyralate; Pesticide Tolerances” (Nov. 27, 2023)

88 FR 82782 Rule: “Tolpyralate; Pesticide Tolerances” (Nov. 27, 2023)

U.S. HOUSE AGRICULTURE COMMITTEE:

H.R.6564 “To allow the Farm Credit Administration the option to examine low-risk Farm Credit System institutions under a 24-month cycle.” Referred to the House Committee on Agriculture. (Dec. 1, 2023)

H.R.6525 “To provide mandatory funding for hazardous fuels reduction projects on certain Federal land, and for other purposes.” Referred to the Committee on Natural Resources, and in addition to the Committee on Agriculture. (Nov. 30, 2023)

H.R.6527 “To enhance civil rights accountability and enforcement in the Department of Agriculture, and for other purposes.” Referred to the House Committee on Agriculture. (Nov. 30, 2023)

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

S.3382 “Protecting Interstate Commerce for Livestock Producers Act” Read twice and referred to the Committee on Agriculture, Nutrition, and Forestry. (Nov. 30, 2023)

S.3378 “Rural Energy Equity Act of 2023” Read twice and referred to the Committee on Agriculture, Nutrition, and Forestry. (Nov. 30, 2023)

STATE ACTIONS—EXECUTIVE & LEGISLATIVE 

PENNSYLVANIA DEPARTMENT OF AGRICULTURE PRESS RELEASES:

Shapiro Administration Kicks Off Trees For Troops Weekend, Encouraging Pennsylvanians To Brighten Holidays For Servicemembers By Donating A Tree (Dec. 1, 2023)

PENNSYLVANIA EXECUTIVE AGENCIES (Pa. Bulletin Vol. 53, No. 49—Dec. 2, 2023): 

Department of Agriculture

53 Pa.B. 7373 Notice: “Temporary Order Designating Dangerous Transmissible Diseases”

Department of Environmental Protection

53 Pa.B. 7376 Notice: “Applications for National Pollutant Discharge Elimination System (NPDES) Permits and Water Quality Management (WQM) Permits Under the Clean Streams Law and Federal Clean Water Act”

Independent Regulatory Review Commission

53 Pa.B. 7475 Notice: “Actions Taken by the Commission”

53 Pa.B. 7476 Notice: “Notice of Comments Issued”

PENNSYLVANIA LEGISLATURE

SB 992 “An Act amending Title 3 (Agriculture) of the Pennsylvania Consolidated Statutes, in food protection, providing for food allergy awareness program.” Referred to AGRICULTURE AND RURAL AFFAIRS. (Nov. 28, 2023)

SB 993 “An Act amending Title 3 (Agriculture) of the Pennsylvania Consolidated Statutes, in food protection, providing for food allergy awareness program.” Referred to AGRICULTURE AND RURAL AFFAIRS. (Nov. 28, 2023)

 

Contributors:
Victoria Dutterer—Research Assistant
Lonzie Helms—Research Assistant
Audry Thompson—Staff Attorney