October 26, 2022
Agricultural Law Weekly Review—Week Ending October 21, 2022
Animal Welfare: Utah State Jury Finds Animal Activist Not Guilty of Burglary and Theft for Taking Two Piglets from Smithfield-Owned Swine Operation 🌾
On October 8, 2022, a Utah state court jury found Wayne Hsiung not guilty of theft and burglary for removing two piglets from a swine production facility owned and operated by Smithfield Foods’ Circle Four Farms while conducting an undercover investigation of the facility in March 2017. Utah v. Hsiung, No. 181500061 (5th Dist. Utah). Hsiung, a member of the animal rights group Direct Action Everywhere, was indicted and arrested in May 2018, although his trial did not begin until September 2022. In its summary, the prosecution listed several videos and media publications documenting Hsiung’s actions. In his defense, Hsiung argued that he lacked the intent to steal the animals upon entering the barn and that, because he found the piglets in “inhumane conditions,” they lacked the “positive value” required for property theft under Utah law.
Antitrust: Court Grants DOJ’s Motion to Dismiss Charges Against Two Pilgrim’s Pride Executives
On October 17, 2022, the U.S. District Court for the District of Colorado entered a text only order granting the United States’ October 16, 2022, motion to dismiss criminal charges against two former Pilgrim’s Pride executives, Jason McGuire and Timothy Stiller, for conspiring to fix prices and rig bids for broiler chickens. United States v. McGuire, No. 1:21-cr-00246. The U.S. Department of Justice (DOJ) filed its motion to dismiss following an October 14, 2022, order issued by the court, which questioned the sufficiency of the DOJ’s evidence, calling it “far from convincing,” and pointed to DOJ’s “failure to secure a conviction in three trials in one related case . . . dismiss[al] [of] charges against every alleged co-conspirator in this case and . . . failure to show a conspiracy for evidentiary purposes in this case.” In its motion, DOJ moved to dismiss the charges “in light of the court’s ruling,” but stated that the court’s October 14 order “departs from [the court’s] prior rulings . . . concerning the same conspiracy” and “effectively exclude[ed] most of the government’s evidence.” Since the dismissal, DOJ has not issued a statement regarding the case. For extensive compiled research on civil and criminal antitrust litigation in the poultry, beef, and pork industries see the Center’s Agricultural Antitrust Litigation Issue Tracker.
Food Labeling: Complaint Filed Against Danone Alleges ‘Carbon Neutral’ Labels False and Misleading
On October 13, 2022, a California resident filed a complaint in the U.S. District Court for the Southern District of New York against Danone Waters of America alleging that Danone’s “Evian Natural Spring Water” labels, which designate the product as “carbon neutral,” are false and misleading. Dorris v. Danone Waters of America, No. 7:22-cv-08717. The complaint seeks class certification and claims that the term “carbon neutral” is false because, although Danone purchases “carbon credits” to offset its emissions, the company still uses shipping methods that are not carbon neutral. The complaint also alleges that the term “carbon neutral” is misleading because it “implies that the CO2 produced by the Product’s manufacture has already been offset or will be offset in the near future” when Danone’s carbon credit provider, Livelihoods Carbon Funds, states that “implementation of the fund [through investment in agroforestry projects] takes 10 to 20 years.” Additionally, the complaint claims that the term “carbon neutral” causes customer confusion because “nearly sixty percent of American consumers do not understand what the term ‘carbon neutral’ means,” which the complaint alleges is furthered by Danone’s failure to provide an explanation of the term—as defined through its carbon credit purchase system—on its water labels.
Food Safety: USDA Announces Proposed Regulatory Framework to Reduce Salmonella in Poultry
On October 17, 2022, the U.S. Department of Agriculture’s (USDA) Food Safety and Inspection Service (FSIS) published a notice (87 FR 62784) in the Federal Register announcing the agency’s Proposed Regulatory Framework to Reduce Salmonella Illnesses Attributable to Poultry. The agency also seeks public written comments by November 16, 2022 and will hold a November 3, 2022 virtual public meeting on its three-part proposed framework:
- Requiring Salmonella testing for all flocks prior to entering an establishment, which would require processors to identify Salmonella as a “hazard reasonably likely to occur” and develop procedures to monitor incoming Salmonella levels as part of their Hazard Analysis and Critical Control Point (HACCP) plans;
- Enhancing FSIS verification regulations and process control monitoring in establishments, which would establish re-hang as the required pre-chill sampling location and require establishments to standardize their statistical process-control methods; and
- Implementing an enforceable final product standard, which would include classifying Salmonella as an adulterant.
Animal Health: FDA Publishes Guidance for Animal Cell-Based Products and Donors
On October 19, 2022, the U.S. Food and Drug Administration (FDA) announced two final guidance documents for producers of animal cells, tissues, and cell- and tissue-based products (ACTPs): Guidance #253: Current Good Manufacturing Practice for Animal Cells, Tissues, and Cell- and Tissue-Based Products and Guidance #254: Donor Eligibility for Animal Cells, Tissues, and Cell- and Tissue-Based Products. ACTPs are “products that contain, consist of, or are derived from cells or tissues that are intended for implantation, transplantation, infusion or transfer into an animal recipient” and are most commonly used in dogs, cats, and horses, but may be further cultivated for other species. Guidance #253 provides ACTP producers with instructions regarding facilities, processing, distribution, and contamination prevention to meet current good manufacturing practices under the Federal Food, Drug, and Cosmetic Act (FDCA). Guidance #254 recommends that ACTP donors should only be eligible if the donor tests negative and presents no signs of any relevant diseases. Both documents were published for comment in September 2022 and incorporated public feedback received by FDA.
Agricultural Finance: USDA Announces 1.3 Billion in Farm Loan Assistance for Distressed Borrowers
On October 18, 2022, the U.S. Department of Agriculture (USDA) announced that the agency had distributed $800 million to distressed USDA farm loan borrowers. This aid package is a part of the $3.1 billion provided by Section 22006 of the Inflation Reduction Act (IRA) to assist distressed farm loan borrowers. According to the announcement, payments have been made on behalf of delinquent direct and guaranteed borrowers to keep their accounts current, as well as to foreclosed borrowers with remaining debt. Also, USDA will distribute $500 million using COVID-19 relief funding and will launch two “case-by-case” review processes to identify and assist additional distressed borrowers.
Dairy Policy: Enrollment Begins for 2023 Dairy Margin Coverage
On October 17, 2022, the U.S. Department of Agriculture (USDA) Farm Service Agency (FSA) announced the opening of enrollment in the 2023 Dairy Margin Coverage (DMC) Program. FSA administers DMC as “a voluntary risk management program that offers protection to dairy producers when the difference between the all-milk price and the average feed price (the margin) falls below a certain dollar amount selected by the producer.” A variety of coverage levels are offered by the DMC, including that “catastrophic coverage” option free to producers and “buy-up” supplemental coverages. USDA’s Risk Management Agency (RMA) also offers traditional dairy insurance products, such as the Dairy Revenue Protection (DRP) and the Livestock Gross Margin (LGM), available through private crop insurance agents.
Crop Insurance: Enrollment Begins for 2023 Agriculture Risk Coverage and Price Loss Coverage
On October 19, 2022, the U.S. Department of Agriculture (USDA) Farm Service Agency (FSA) announced that farmers can now change their elected coverage or enroll in the 2023 Agriculture Risk Coverage (ARC) and Price Loss Coverage (PLC) programs. Farmers can choose between the County ARC-CO or PLC programs, which offer crop-by-crop coverage, or the Individual ARC-IC program, which covers entire farms. Elected coverage changes or enrollment must be submitted by March 15, 2023, or coverage options will remain the same as 2022’s choices. To determine the type and amount of coverage needed, USDA has partnered with the University of Illinois and Texas A&M University to offer the Gardner-farmdoc Payment Calculator and the ARC and PLC Decision Tool. Eligible farmers can apply for these programs at their local USDA Service Center.
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CENTER PROGRAMS & RESOURCES
- 227. Tyson Workers COVID Lawsuit; Plainville Farms Animal Abuse Charges; and USDAs Worker Relief Payments (Oct. 21, 2022).
- 226. PA Milk Marketing Board Signals Potential OOP Change and EPA Withdraws Roundup Decision (Oct. 14, 2022).
- 225. Joint Case Management Statement Filed in Roundup Cases; Biotech Executive Order Issued; and Avian Influenza Resurges (Oct. 11, 2022).
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:
- Nov. 18, 2022, noon ET: Understanding the Basics of Federal & State Conservation Programs
- Dec. 16, 2022, noon ET: Understanding the Basics of Licensing & Regulation of Direct Agricultural Product Sales
- Jan. 27, 2022, noon ET: Understanding the Basics of Agricultural Finance
Legal Planning for Specialty Crop Producers. A free Zoom webinar series. Register at any time to watch past recordings and attend all future webinars and access all materials. The Fall 2022 series sessions are:
- Nov. 16, 2022, noon ET: Licensing and Regulatory Obligations in Selling Raw and Processed Specialty Crop Products.
- Nov. 30, 2022, noon ET: Municipal Law & Zoning for Agritourism/Agritainment, Specialty Crop Processing & Sales.
- Dec. 14, 2022, noon ET: Statutory Protections/Restrictions: Understanding PA’s Ag Area Security, Right-To-Farm, ACRE, and Clean & Green Laws.
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.
Resources Of Interest:
Webinars & Events
- Keystone Development Center (KDC)’s 2022 Co-op Academy, various dates Oct. 2022–Feb. 2023. Registration.
- Farmer and Farmland Owner Income Tax Webinar, Ohio State University Extension, Nov. 17, 2022, 6:30–8:30pm ET, $40. Registration. More info.
Academic & Government Resources of Interest
- Nat’l Agric. Law Ctr., Resources for Underserved Communities: Highlight of New Publications, Brigit Rollins (Oct. 20, 2022).
- Ohio St. Univ. Ext. Farm Off. Blog, Assessing Long-Term Care Risks, Robert Moore (Oct. 20, 2022).
- Iowa St. Univ. Ctr. Agric. Law & Tax’n, Federal Court Finds USDA’s Bioengineered Food Text Message Disclosure Method Insufficient, Kitt Tovar Jensen (Oct. 19, 2022).
- Nat’l Agric. Law Ctr., Checking In on Crop Insurance: Enforcement of the FAD Requirement, Micah Brown (Oct. 18, 2022).
- Ohio St. Univ. Ext. Farm Off. Blog, Appeals Court upholds injunction against wedding barn, Peggy Kirk Hall (Oct. 18, 2022).
- Univ. Md. Risk Mgmt. Educ. Blog, USDA’s Listening Sessions and Updates on Historic Debt Relief, Nicole Cook (Oct. 18, 2022).
- Tex. A&M Agric. Law Blog, Webinar – Fence Laws: Corralling Legal Issues & Livestock, Tiffany Lashmet Dowell (Oct. 17, 2022).
Media & Industry Resources of Interest
- Nat’l Cooperative Bus. Assoc., STATE COOPERATIVE STATUTE LIBRARY.
- Nat’l Cattlemen’s Beef Assoc., Beltway Beef Podcast, The Election’s Impact on the Cattle Industry (Oct. 21, 2022).
Penn State News, Research & Resources:
- Prescribed Fire Could Reduce Tick Populations and Pathogen Transmission (Oct. 21, 2022).
- Penn State to Host Symposium on Effects of Embodied Carbon on the Environment (Oct. 20, 2022).
- Grapevines May Only Need Help to Survive Heavy Spotted Lanternfly Infestations (Oct. 20, 2022).
- PSU Ext., PA Advances Rule Limiting Drinking Water Contaminant PFAS (Oct. 20, 2022).
- EarthTalks: Lexie Hain to Discuss Agricultural Integration and Solar Facilities (Oct. 19, 2022).
- PSU Ext., So You Want to Fly a Drone (Oct. 19, 2022).
- PSU Ext., Herbicide Supplies and Storage during the Winter (Oct. 19, 2022).
Top #AgLaw HotLinks Oct. 15–21, 2022:
- Legislation Would Expedite Federal Cost-Share Relief Programs After Natural Disaster, Brownfield
- Fighting Food Poisoning: Sweeping Poultry Changes Proposed, Morning Ag Clips
- Protects 24 Farms in 10 Counties from Development, Morning Ag Clips
- Vilsack Says Climate-Smart Ag Can Help Tackle the Global Food Crisis, Brownfield
- New Biden Admin Plan Aims to Fight Hunger, Brownfield
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 and USAID announce the Global Food Security Research Strategy to Fight Hunger and Build Sustainable Systems (Oct. 19, 2022).
USDA Makes Major Investments in WIC to Improve Maternal and Child Health (Oct. 19, 2022).
USDA Provides Payments of nearly $800 Million in Assistance to Help Keep Farmers Farming (Oct. 18, 2022).
USDA Formalizes Big Game Conservation Partnership with State of Wyoming (Oct. 17, 2022).
ENVIRONMENTAL PROTECTION AGENCY (EPA) PRESS RELEASES
EPA Awards Over $14 Million to Improve and Protect Water Quality in Arizona, California, Nevada & Hawaii (Oct. 19, 2022).
EPA celebrates 50th Anniversary of the Clean Water Act on the banks of the Cuyahoga River (Oct. 18, 2022).
EPA awards grant to support Wasted Food Solutions for Denver project (Oct. 18, 2022).
USDA AGENCY PRESS RELEASES:
Agricultural Marketing Service (AMS)
USDA Signs Cooperative Agreements with New York to Promote Economic Opportunities for Farmers and Producers, Expand Local Foods in School Meals (Oct. 20, 2022).
USDA Announces $64 Million in Grant Awards to Strengthen Local and Regional Food Systems (Oct. 19, 2022).
USDA Expands Local Foods in School Meals through Cooperative Agreement with South Carolina (Oct. 19, 2022).
USDA Announces Its Local Food Purchase Assistance Cooperative Agreement with Oregon (Oct. 18, 2022).
Agricultural Research Service
USDA Scientists Collaborate with Partners to Address Soil Moisture Challenges on Farms (Oct. 17, 2022).
Animal and Plant Health Inspection Service (APHIS)
USDA Confirms Highly Pathogenic Avian Influenza in Backyard Non-Poultry Flock in Rhode Island (Oct. 21, 2022).
APHIS Issues Regulatory Status Review Responses: Infinite Enzymes, Inc., Corn and J.R. Simplot Potato (Oct. 21, 2022).
Farm Service Agency (FSA)
Farmers Can Now Make 2023 Crop Year Elections, Enroll in Agriculture Risk Coverage and Price Loss Coverage Programs (Oct. 19, 2022).
USDA Provides Payments of nearly $800 Million in Assistance to Help Keep Farmers Farming (Oct. 18, 2022).
USDA Formalizes Big Game Conservation Partnership with State of Wyoming (Oct. 17, 2022).
Dairy Producers Can Now Enroll for 2023 Signup for Dairy Margin Coverage (Oct. 17, 2022).
Food Safety and Inspection Service (FSIS)
Salmonella Verification Testing: September 26, 2021 through September 24, 2022 (Oct. 20, 2022).
Foreign Agricultural Service (FAS)
Export Sales to China and Unknown Destinations (Oct. 20, 2022).
FEDERAL EXECUTIVE AGENCIES (Federal Register Oct. 17–21, 2022):
Agricultural Marketing Service
87 FR 63431 Proposed Rule: “Florida Citrus Marketing Order; Exemption for Pummelos” (Oct. 19, 2022).
87 FR 63433 Proposed Rule: “Washington Apricots; Termination of Marketing Order” (Oct. 19, 2022).
Agriculture Department
87 FR 63474 Notice: “Submission for OMB Review; Notice of Request for Emergency Approval” (Oct. 19, 2022).
87 FR 63023 Notice: “Submission for OMB Review; Comment Request” (Oct. 18, 2022).
Animal and Plant Health Inspection Service
87 FR 62783 Notice: “Notice of Proposed Revision to Requirements for the Importation of Grapes From Chile Into the United States” (Oct. 17, 2022).
Delaware River Basin Commission
87 FR 63485 Notice: “Notice of Public Hearing and Business Meeting; November 9 and December 7, 2022” (Oct. 19, 2022).
Environmental Protection Agency
87 FR 63950 Final Rule: “Parent Company Definition for Toxics Release Inventory (TRI) Reporting” (Oct. 21, 2022).
87 FR 64031 Notice—Public Comment: “Pesticide Product Registration; Receipt of Applications for New Uses September 2022” (Oct. 21, 2022).
87 FR 63061 Notice: “Pesticide Registration Maintenance Fee: Product Cancellation Order for Certain Pesticide Registrations” (Oct. 18, 2022).
Food and Drug Administration
87 FR 63782 Notice—Public Comment: “Animal Generic Drug User Fee Act; Public Meeting; Request for Comments; Extension of Comment Period” (Oct. 20, 2022).
87 FR 63501 Notice: “Use of Tracers in Animal Food, Type A Medicated Articles, and Medicated Feeds; Guidance for Industry; Availability” (Oct. 19, 2022).
87 FR 62977 Rule: “Submission of Food and Drug Administration Import Data in the Automated Commercial Environment for Veterinary Devices” (Oct. 18, 2022).
Food and Nutrition Service
87 FR 63023 Notice: “Food Distribution Program on Indian Reservations Self-Determination Demonstration Project: Solicitation of Proposals for Additional Tribal Organizations To Participate” (Oct. 18, 2022).
87 FR 62786 Notice: “Agency Information Collection Activities: Proposed Collection; Comment Request: Additional Information To Be Collected for Reach and Resiliency-Round 2 Grants Under Uniform Grant Application Package for Discretionary Grant Programs” (Oct. 17, 2022).
Food Safety and Inspection Service
87 FR 64001 Notice—Public Comment: “Public Meeting; National Advisory Committee on Microbiological Criteria for Foods” (Oct. 21, 2022).
87 FR 63420 Final Rule: “Establishing a Uniform Time Period Requirement and Clarifying Related Procedures for the Filing of Appeals of Agency Inspection Decisions or Actions” (Oct. 19, 2022).
87 FR 62784 Notice: “Proposed Framework for Controlling Salmonella in Poultry” (Oct. 17, 2022).
International Trade Commission
87 FR 64112 Notice: “Institution of Investigation; Certain Hazelnuts and Products Containing the Same” (Oct. 21, 2022).
87 FR 63527 Notice: “Certain Raised Garden Beds and Components Thereof; Institution of Investigation” (Oct. 19, 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:
Agriculture Secretary Invites Pennsylvanians To Celebrate Agriculture At PA Preferred® Reception Kicking Off 107th Farm Show (Oct. 21, 2022).
PA Horse Racing Commission Releases Equine Safety And Welfare Action Plan Quarterly Report (Oct. 19, 2022).
Agriculture Department Launches New PA Preferred Website Connecting Pennsylvanians With PA Products, Farm Destinations (Oct. 18, 2022).
Agriculture Secretary Seeks Proposals For $200,000 In Matching Grants To Boost Hemp Sales, Exports (Oct. 17, 2022).
Agriculture Secretary Encourages Dairy Farmers To Manage Risk With Federal Dairy Margin Coverage (Oct. 17, 2022).
PENNSYLVANIA EXECUTIVE AGENCIES (Pa. Bulletin Vol. 52, No. 43—Oct. 22, 2022):
Department of Environmental Protection
52 Pa.B. 6571 Notice: “Applications, Actions and Special Notices.”
52 Pa.B. 6623 Notice: “Availability of Grants through the Abandoned Mine Land and Acid Mine Drainage Grant Program.”
Environmental Hearing Board
52 Pa.B. 6534 Rules and Regulations: “Practice and Procedure.”
State Conservation Commission
52 Pa.B. 6674 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.”
Susquehanna River Basin Commission
52 Pa.B. 6674 Notice: “Projects Approved for Consumptive Uses of Water.”
52 Pa.B. 6676 Notice: “Projects Approved for Minor Modifications.”
52 Pa.B. 6676 Notice: “Public Hearing.”
PENNSYLVANIA LEGISLATURE
HB 2881 “An Act establishing the Pollinator Task Force and providing for its powers and duties; and imposing duties on the Department of Agriculture.” Referred to Agriculture and Rural Affairs [House] (Oct. 17, 2022).
Written by:
Dillon Lightfoot—Research Assistant
Megan Guess—Research Assistant
Audry Thompson—Staff Attorney
Brook Duer—Staff Attorney
