April 23, 2023

Agricultural Law Weekly Review—April 24, 2023

Water Quality: EPA Settlement Agreement of Chesapeake Bay TMDL Compliance Litigation Discloses New Pennsylvania Enforcement Policies 🌾
On April 20, 2023, the Chesapeake Bay Foundation announced that a settlement agreement had been reached, subject to court approval, in federal litigation filed by the states of Maryland, Virginia, Delaware, the District of Columbia, and multiple environmental groups against the U.S. Environmental Protection Agency seeking to compel enforcement of Pennsylvania’s Chesapeake Bay nutrient and sediment reduction obligations under the Clean Water Act. Chesapeake Bay Foundation, Inc. v. Environmental Protection Agency, No. 1:20-cv-02529.  For a full outline of the EPA’s new approach to Pennsylvania’s compliance, see Agricultural Law in the Spotlight: EPA Settlement Agreement of Chesapeake Bay TMDL Compliance Litigation Discloses New Pennsylvania Enforcement Policies.

Food Labeling: Fifth Circuit Rules Louisiana Food Labeling Law Constitutional
On April 12, 2023, the U.S. Court of Appeals for the Fifth Circuit issued an opinion reversing a grant of summary judgment, dissolving a district court’s permanent injunction against enforcement, and ruling that the state of Louisiana’s 2019 Truth in Labeling of Food Products Act (Act) does not violate any U.S. Constitution First Amendment protections of commercial speech. Turtle Island Foods v. Strain, No. 22-30236. The Act aims to prevent false or misleading food products labeling. In reversing the lower court’s decision in Turtle Island Foods v. Strain, No. 3:20-cv-00674 (D. La.), the Fifth Circuit narrowly interpreted the Act and found no constitutional violation because the Act applies only to producers who intentionally mislabel food products and mislead consumers.

Pesticides/Herbicides: Rehearing Requested to Determine Timeline for EPA Sulfoxaflor Endangered Species Consultation
On April 10, 2023, several environmental and food safety groups filed a petition for rehearing in the U.S. Court of Appeals for the Ninth Circuit to interpret the court’s December 2022 opinion, which requires the Environmental Protection Agency (EPA) to conduct an interagency consultation into the potential impacts of sulfoxaflor on endangered species. Center for Food Safety, et al v. Michael Regan, et al, No. 19-72109. The petitioners argue that the Ninth Circuit required EPA to conduct a full interagency consultation within six months of the ruling, as required by the Endangered Species Act (ESA). Alternatively, EPA argues that the Ninth Circuit only required the agency to begin the consultation process, which it did by issuing a biological evaluation on March 30, 2023. For background, see ALWR—April 23, 2021, “EPA Cites Legal Error in Sulfoxaflor Registration, Requests Remand Without Vacatur,” and ALWR—July 19, 2019, “EPA Approves Pesticide with Restrictions to Address Concerns About Pollinator Impacts.”

Pesticide/Herbicides: Motion for Summary Judgment Cites EPA’s 2021 Dicamba Report, Seeks Dicamba Registration Vacatur
On April 12, 2023, the Center for Biological Diversity (Center) filed a motion for summary judgment, supported by a statement of material fact, in the U.S. District Court for the District of Arizona in a case seeking vacatur of the U.S. Environmental Protection Agency’s (EPA) October 2020 registration decision approving the use of three dicamba products. Center for Biological Diversity v. EPA, No. 4:20-cv-00555. The motion cites EPA’s 2021 Report on Dicamba Incidents, which the Center states “basically admit[s] [EPA’s] mitigation in the 2020 Decision had failed, showing drift harm continuing or worsening and admitting harm to endangered species, and . . . admitting that even EPA . . . was not sure the registration complied with [the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA)] and the [Endangered Species Act (ESA)].” Bayer CropScience LP, BASF Corporation, and Syngenta Crop Protection LLC, which all hold registrations for dicamba products, are intervenors in the case.

Food Safety: FDA Amends 2021 Yogurt Standard of Identity
On April 14, 2023, the Food and Drug Administration (FDA) published a final order in the Federal Register revising the agency’s June 2021 final rule amending the standard of identity for yogurt. Also announced by FDA, the final order denies the International Dairy Foods Association’s (IDFA) request for a public hearing on the June 2021 rule and modifies the rule to require that yogurt products have a pH of 4.6 or lower. The final rule became effective on April 14, 2023, and producers must begin complying with the rule January 1, 2024.

Food Safety: FDA Issues Produce Safety Rule Guidance for Full Implementation from COVID Temporary Policies
On April 14, 2023, the Food and Drug Administration (FDA) published guidance titled, “Transition from Temporary Policy During the COVID-19 Public Health Emergency Regarding the Qualified Exemption from the Standards for the Growing, Harvesting, Packing, and Holding of Produce for Human Consumption.” Also announced by FDA, the guidance explains the transition from the agency’s May 2020 exemptions for the Food Safety Modernization Act Produce Safety Rule, consistent with FDA’s March 2023 notice that the exemptions would expire after November 7, 2023.

Conservation Programs: NRCS Announces $75 Million for Organic Transition Initiative
On April 10, 2023, the U.S. Department of Agriculture (USDA) Natural Resource Conservation Service (NRCS) announced a $75 million investment to assist producers’ transitions to organic production. This move is a part of the USDA’s multi-agency Organic Transition Initiative and includes funds from the 2020 Coronavirus Aid, Relief, and Economic Security Act (CARES Act). Interested producers can apply at their local USDA service center.

Industrial Hemp: USDA Study on Effects of Hempseed Cake Complete
On April 12, 2023, the U.S. Department of Agriculture (USDA) Agricultural Research Service (ARS) and North Dakota State University (NDSU) announced a completed study into the effects of cattle feed hempseed cake, an industrial hemp byproduct yet to be authorized for use by the U.S. Food and Drug Administration (FDA). The study found that heifers fed a diet containing 20% hempseed cake for 111 days contained low levels of Cannabidiol (CBD) and Tetrahydrocannabinol (THC) in muscle, liver, kidney, and fat tissues.

Agricultural Labor: Secretary of Agriculture Urges Meat Packers to End Child Labor Practices
On April 12, 2023, the U.S. Department of Agriculture (USDA) Secretary Tom Vilsack issued a letter to 18 of the country’s largest meat packers, urging them to eradicate child labor from their practices and supply chains. On February 27, 2023, the Department of Labor (DOL) announced an Interagency Taskforce to Combat Child Labor Exploitation following a $1.5 million fine levied against Packers Sanitation Services Inc. for using child labor in violation of the Fair Labor Standards Act. For background see, ALWR—Feb. 27, 2023, “Meatpacking Plant Sanitation Contractor Pays $1.5M Fine for Child Labor Violations.”

Technology: Colorado Senate Passes Right-to-Repair Legislation
On April 20, 2023, the Colorado General Assembly passed, and sent for Governor signature, HB23-1011, the Consumer Right to Repair Agriculture Equipment Act (Act) allowing farmers to repair their own equipment or use independent repair providers. If not vetoed by the Governor, the Act becomes effective on January 1, 2024, making Colorado the first state to enact right-to-repair legislation. Earlier this year, CNH Industrial Brands and John Deere reached right-to-repair Memorandums of Understanding (MOUs) with the American Farm Bureau Federation (AFBF). See also, ALWR—Mar. 20, 2023,“American Farm Bureau and CNH Industrial Brands Sign a Right-to-Repair MOU” and ALWR—Jan. 16, 2023, “American Farm Bureau & John Deere Sign Right to Repair MOU.”

Nutrition Programs: IDFA Announces Healthy School Milk Commitment
On April 7, 2023, the International Dairy Foods Association (IDFA) announced the Healthy School Milk Commitment, a pledge signed by approximately 40 milk processors promising to limit added calories and sugars to flavored milks offered in school cafeterias to ensure compliance with the new Child Nutrition Program Proposed Rule. Among other things, companies commit to provide school milk, unflavored and flavored, with no more than 10 grams of added sugar per 8 fluid-ounce serving by 2025-2026. See also ALWR—Feb. 13, 2023, “New Proposed Rule for Child Nutrition Programs Contains Added Sugars Standards, Includes Flavored Milks.”

 

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CENTER PROGRAMS & RESOURCES

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 the series, more information, and registration available here. Next in the series:

  • April 28, 2023, noon–1 pm (ET): Understanding the Basics of Agricultural Conservation Easement Programs
  • May 19, 2023, noon–1 pm (ET): Understanding the Basics of Landowner Immunity Statutes

Multi-District Antitrust Litigation in the Protein Sectors (Poultry, Pork and Beef). Free webinar presented in partnership with the National Agricultural Law Center.

  • May 17, 2023, noon–1 pm (ET). Register.

An Overview of U.S. Charitable Food Surplus Programs. Free webinar presented in partnership with the National Agricultural Law Center.

  • June 21, 2023, noon–1 pm (ET). Register.

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 from the series, more information, and registration available here.

Legal Planning for Specialty Crop Producers. A free six-webinar series is available for on-demand viewing by registering.

Podcasts:

Resources of Interest:

Legislative Hearings/Meetings/Reports:

U.S. Sen. Ag. Committee Hearings:

U.S. House Ag. Committee Hearings:

Pennsylvania General Assembly Committee Hearings:

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

Fact Sheet: USDA Continues Partner Engagement to Mitigate Highly Pathogenic Avian Influenza for 2023 Season (Apr. 14, 2023).

USDA Announces Approval of D-SNAP for Mississippi Disaster Areas (Apr. 13, 2023).

USDA Announces Approval of D-SNAP for California Disaster Areas (Apr. 13, 2023).

USDA Announces Ranking as “Most Improved” Agency in the 2022 Best Place to Work Rankings (Apr. 12, 2023).

Biden-Harris Administration Announces Historic Funding to Expand Access to Trees and Green Spaces in Disadvantaged Urban Communities (Apr. 12, 2023).

U.S. Department of Agriculture Announces Key Staff Appointments (Apr. 12, 2023).

Food Help on the Way for Arkansas Households Hit by Tornadoes and Severe Storms (Apr. 11, 2023).

ENVIRONMENTAL PROTECTION AGENCY (EPA) PRESS RELEASES

EPA awards $1.8 million to help restore Maryland Coastal Bays under the Bipartisan Infrastructure Law (Apr. 13, 2023).

EPA Awards Nearly $1.5M in Research Grants to Reduce U.S. Household Food Waste (Apr. 13, 2023).

EPA awards $1.8 million to help restore Delaware Inland Bays under the Bipartisan Infrastructure Law (Apr. 13, 2023).

Los Angeles Businessman, Utah Fuel Plant Operators and Employees Sentenced to Prison for Billion-dollar Biofuel Tax Fraud Scheme (Apr. 10, 2023).

USDA AGENCY PRESS RELEASES:

Agricultural Marketing Service (AMS)

USDA Takes Steps to Support Food Sovereignty with the Narragansett Indian Tribe (Apr. 11, 2023).

Agricultural Research Service (ARS)

Scientists Evaluate Potential Human Cannabinol Exposure from Consuming Meat if Cattle is Fed Hempseed Cake (Apr. 12, 2023).

USDA Researchers Develop Natural, Washable Antimicrobial Cleaning Wipes (Apr. 11, 2023).

USDA-ARS Now Stewarding the Rangeland Analysis Platform (Apr. 10, 2023).

Animal and Plant Health Inspection Service (APHIS)

APHIS Announces Availability of More Than $12 Million in Funding to Control and Prevent Chronic Wasting Disease (Apr. 11, 2023).

USDA Announces 2023 Plans for Eradicating Asian Longhorned Beetle in Massachusetts, New York, Ohio, and South Carolina (Apr. 11, 2023).

USDA Seeks Public Input on Draft Environmental Documents for Deregulation of Corn Developed Using Genetic Engineering [open for comment through May 11, 2023] (Apr. 10, 2023).

Economic Research Service (ERS)

Trends in U.S. Whole-Grain Intakes 1994–2018: The Roles of Age, Food Source, and School Food (Apr. 12, 2023).

U.S. Trade Performance and Position in Global Meat, Poultry, and Dairy Exports (Apr. 11, 2023).

Food and Nutrition Service (FNS)

Register for the 2025 Dietary Guidelines Advisory Committee’s Second Meeting on May 10 (Apr. 13, 2023).

USDA Announces Approval of D-SNAP for Mississippi Disaster Areas (Apr. 13, 2023).

USDA Announces Approval of D-SNAP for California Disaster Areas (Apr. 13, 2023).

Food Help on the Way for Arkansas Households Hit by Tornadoes and Severe Storms (Apr. 11, 2023).

Three Days in Michigan (Apr. 11, 2023).

Foreign Agricultural Service (FAS)

Additional FY 2023 Funds Available for Export Credit Guarantee Program (GSM-102) (Apr. 14, 2023).

Export Sales to China (Apr. 14, 2023).

Export Sales to China (Apr. 13, 2023).

National Institute of Food and Agriculture (NIFA)

NHAES Research for Using Flowering Plants to Attract Hover Flies as Biological Pest Controls (Apr. 14, 2023).

New York GusNIP Project Leading Way (Apr. 10, 2023).

NIFA Leadership Visits Louisiana Land-grant Universities (Apr. 10, 2023).

Coastal Georgia Grower Organizes to Resolve Food Deserts (Apr. 10, 2023).

FEDERAL EXECUTIVE AGENCIES (Federal Register Apr. 10–14, 2023):           

Agricultural Marketing Service

88 FR 22893 Rule: “National Organic Program: 2023 and 2024 Sunset Review and Substance Renewals” (Apr. 14, 2023).

88 FR 21931 Proposed Rule: “United States Standards for Soybeans; Correction” (Apr. 12, 2023).

88 FR 21059 Final Rule: “Kiwifruit Grown in California; Increased Assessment Rate” (Apr. 10, 2023).

Agriculture

88 FR 21172 Notice: “Submission for OMB Review; Comment Request [National Agricultural Statistics Service (NASS): Cooperator Funded Chemical Use Surveys—Substantive Change]” (Apr. 10, 2023).

Animal and Plant Health Inspection Service

88 FR 21603 Notice—Public Comment: “Notice of Request for Extension of Approval of an Information Collection; Imported Seeds and Screening” (Apr. 11, 2023).

88 FR 21602 Notice—Public Comment: “Pioneer Hi-Bred International, Inc.; Availability of a Draft Plant Pest Risk Assessment and Draft Environmental Assessment for Determination of Nonregulated Status for Insect Resistant and Herbicide-Tolerant Maize.” (Apr. 11, 2023).

88 FR 21172 Notice—Public Comment: “Notice of Request for Extension of Approval of an Information Collection; Johne’s Disease in Domestic Animals” (Apr. 10, 2023).

Commodity Credit Corporation

88 FR 21604 Notice: “Domestic Sugar Program-2023 Cane Sugar Marketing Allotments and Cane and Beet Processor Allocations” (Apr. 11, 2023).

Environmental Protection Agency

88 FR 21103 Final Rule: “Acetophenone; Exemption from the Requirement of a Tolerance” (Apr. 10, 2023).

88 FR 21107 Final Rule: “Ethalfluralin; Pesticide Tolerances” (Apr. 10, 2023).

88 FR 21189 Notice—Public Comment: “Availability of the Draft IRIS Toxicological Review of Perfluorodecanoic Acid [PFDA, CASRN 335-76-2] and Related Salts” (Apr. 10, 2023).

Farm Credit Insurance Corporation

88 FR 21674 Notice: “Board of Directors Meeting” (Apr. 11, 2023).

Food and Drug Administration

88 FR 22907 Final Rule: “International Dairy Foods Association: Response to the Objections and Requests for a Public Hearing on the Final Rule to Revoke the Standards for Lowfat Yogurt and Nonfat Yogurt and Amend the Standard for Yogurt” (Apr. 14, 2023).

88 FR 22454 Notice: “Exemption of Certain Categories of Biological Products from Certain Reporting Requirements Under the Federal Food, Drug, and Cosmetic Act” (Apr. 13, 2023).

88 FR 22045 Notice—Public Comment: “Agency Information Collection Activities; Proposed Collection; Comment Request; Food Labeling Requirements” (Apr. 12, 2023).

88 FR 21148 Proposed Rule—Public Comment: “Use of Salt Substitutes to Reduce the Sodium Content in Standardized Foods” (Apr. 10, 2023).

88 FR 21193 Notice—Public Comment: “Agency Information Collection Activities; Proposed Collection; Comment Request; Generic Clearance for Qualitative Data to Support Social and Behavioral Research for Food, Dietary Supplements, Cosmetics, and Animal Food and Feed” (Apr. 10, 2023).

Food and Nutrition Service

88 FR 21962 Notice—Public Comment: “Agency Information Collection Activities: Special Supplemental Nutrition Program for Women, Infants, and Children (WIC) Program Regulations-Reporting and Record-Keeping Burden” (Apr. 12, 2023).

Food Safety and Inspection Service

88 FR 22996 Notice—Public Comment: “Notice of Request for Revision of an Approved Information Collection (Public Health Information System)” (Apr. 14, 2023).

88 FR 22997 Notice—Public Comment: “Notice of Request to Revise an Approved Information Collection: State Meat and Poultry Inspection Programs” (Apr. 14, 2023).

88 FR 22404 Notice—Public Comment: “Notice of Request to Renew an Approved Information Collection: Laboratory Assessment Requests” (Apr. 13, 2023).

International Trade Administration

88 FR 21973 Notice: “Ripe Olives from Spain: Final Results of Countervailing Duty Administrative Review; 2020; Correction” (Apr. 12, 2023).

88 FR 21175 Notice: “Monosodium Glutamate from the Republic of Indonesia: Final Results of Antidumping Duty Administrative Review; 2020-2021″ (Apr. 10, 2023).

Susquehanna River Basin Commission

88 FR 22083 Notice: “Grandfathering (GF) Registration Notice” (Apr. 12, 2023).

88 FR 22083 Notice—Public Comment: “Public Hearing” (Apr. 12, 2023).

88 FR 22082 Notice: “Projects Approved for Consumptive Uses of Water” (Apr. 12, 2023).

88 FR 22081 Notice: “Projects Approved for Minor Modifications” (Apr. 12, 2023).

The U.S. Codex Service

88 FR 21961 Notice: “Codex Alimentarius Commission: Meeting of the Codex Committee on Methods of Analysis and Sampling” (Apr. 12, 2023).

U.S. HOUSE AGRICULTURE COMMITTEE:

H.R.1569 “CLAMP Act of 2023.” Referred to the Subcommittee on Energy and Mineral Resources. (Apr. 14, 2023).

H.R.1461 “Coastal Seaweed Farm Act of 2023.” Referred to the Subcommittee on Water, Wildlife, and Fisheries. (Apr. 14, 2023).

H.R.1450 “Treating Tribes and Counties as Good Neighbors Act.” Referred to the Subcommittee on Federal Lands. (Apr. 14, 2023).

H.R.2598 “PREPARE Act of 2023.” Referred to the Committee on Energy and Commerce, and in addition to the Committees on the Judiciary, Ways and Means, Agriculture, and Financial Services. (Apr. 13, 2023).

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

No new actions this week.

STATE ACTIONS—EXECUTIVE & LEGISLATIVE  

PENNSYLVANIA DEPARTMENT OF AGRICULTURE PRESS RELEASES:          

Shapiro Administration Invests $5 Million To Protect 22 Farms, 2,038 Acres In 13 Counties From Future Development (Apr. 14, 2023).

Shapiro Administration Invites Foodbanks, Pantries To Apply For $1.6 Million In Funding To Expand Emergency Food Access (Apr. 10, 2023).

PENNSYLVANIA EXECUTIVE AGENCIES (Pa. Bulletin Vol. 53, No. 15—Apr. 15, 2023):

Department of Agriculture

53 Pa.B. 2050 Notice: “Agricultural Research Grant Applications.”

53 Pa.B. 2052 Notice: “Bureau of Ride and Measurement Standards.”

Department of Environmental Protection

53 Pa.B. 2055 Notice: “Applications, Actions and Special Notices.”

53 Pa.B. 2121 Notice: “Availability of Technical Guidance.”

53 Pa.B. 2122 Notice: “Federal Consistency under the Coastal Zone Management Act; City of Erie and Erie Sewer Authority, Mill Creek Channel Wall Rehabilitation.”

53 Pa.B. 2123 Notice: “Planning Grant Award under Section 901 of the Municipal Waste Planning, Recycling and Waste Reduction Act, Act 101 of 1988.”

53 Pa.B. 2123 Notice: “Proposed State Implementation Plan Revision; Attainment Demonstration for the Indiana, PA Nonattainment Area for the 2010 Sulfur Dioxide National Ambient Air Quality Standard; Public Hearing.”

53 Pa.B. 2124 Notice: “Radiation Protection Advisory Committee Meeting.”

PENNSYLVANIA LEGISLATURE

No new bills this week.

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