Agricultural Law Weekly Review—August 15, 2019

Pesticides: EPA Will Not Approve Labels Asserting that Glyphosate Causes Cancer
On August 8, 2019, the U.S. Environmental Protection Agency (EPA) issued a press release stating that the agency “will no longer approve product labels claiming glyphosate is known to cause cancer.”  According to EPA, such claims are false and as such do “not meet the labeling requirements of the Federal Insecticide, Fungicide, and Rodenticide Act.”  EPA’s statement is a direct reaction to California’s Proposition 65 which requires an established list of chemicals determined by the state to “cause cancer, birth defects or other reproductive harm.”  If a chemical is on the list, warning labels must be placed on any item that would pose consumers “significant exposure” to the chemical.  Currently, California lists glyphosate on the Proposition 65 list.  According to EPA Administrator Andrew Wheeler, “It is irresponsible to require labels on products that are inaccurate when EPA knows the product does not pose a cancer risk. We will not allow California’s flawed program to dictate federal policy.”

Agricultural Finance: Legislation to Permit More Chapter 12 Bankruptcies Moves to President
On August 13, 2019, legislation was presented to President Donald Trump to increase the Chapter 12 Bankruptcy operation debt cap limit from $3,237,000 to $10,000,000 (H.R. 2336 (116)).  Under Chapter 12, qualifying “family farmers” experiencing financial difficulties are provided with the ability to establish plans to repay parts or all of their debts.  Through increasing the debt cap limit, the proposed legislation, known as the Family Farmer Relief Act of 2019, would allow more farmers to qualify for Chapter 12 Bankruptcy.  Previously, the legislation was passed in the U.S. Senate by voice vote on August 1, 2019.  Prior to that, the U.S. House of Representatives passed the legislation by voice vote on July 25, 2019.

Animal Welfare: Oregon Governor Signs Cage-Free Egg Law
On August 9, 2019, Oregon Governor Kate Brown signed legislation requiring that by 2024, commercial operations with egg-laying hen flocks greater than 3,000 must house the flocks in “cage-free housing systems” (SB1019).  Under the legislation, the egg-laying hens must have the ability to roam and have access to “scratch areas, perches, nest boxes and dust bathing areas.”  Additionally, the legislation states that individuals are not permitted to buy, sell, transport in intrastate commerce, or receive eggs that are not produced in compliance with the Oregon’s egg-laying hen housing requirements.

Food Safety: FDA Seeks Comment on New Animal Drugs
On August 9, 2019, the U.S. Food and Drug Administration (FDA) published notice in the Federal Register seeking “comments on transit times to slaughter, milking frequency, and how end users interpret zero-day withdrawal period or zero-day milk discard time statements found on new animal drug labeling” (84 FR 39340).  According to FDA, new animal drugs used in food-producing animals are assigned periods of time between when the drug is last administered and when a slaughtered animal—or its milk—can safely be consumed by humans.  To better understand current industry practices regarding the assignment of these periods, FDA is seeking public comment regarding:

• Current transit times to slaughter facilities;
• Current holding times at slaughter facilities prior to slaughter;
• Milking frequency at commercial dairy operations; and
• How “zero-day withdrawal period” or “zero-day milk discard time” animal drug labels are interpreted by end-users.

 Comments must be received by October 8, 2019.

Pesticides: Groups File Petition Regarding Chlorpyrifos
On August 7, 2019, the public interest environmental law organization Earth Justice filed a petition for review with the U.S. Court of Appeals for the 9^th Circuit regarding the U.S. Environmental Protection Agency’s (EPA) decision to not ban the pesticide chlorpyrifos.  Previously, on May 29, 2017, EPA issued a Petition Denial Order entitled “Chlorpyrifos; Order Denying PANNA and NRDC’s Petition to Revoke Tolerances” (82 FR 64).  Subsequently, on July 18, 2019, EPA issued an Objections Denial Order entitled “Chlorpyrifos; Final Order Denying Objections to March 2017 Petition Denial Order” 84 FR 35555).  Earth Justice, on behalf of 11 petitioners, seeks a review of both the Petition Denial Order and the Objections Denial Order by the court.

From National Ag Law Experts:
“EPA decides not to ban chlorpyrifos-now what”, Sarah Everhart, Maryland Risk Management Education Blog (August 13, 2019)
“Who Should Control the Carbon Farming Marketplace?”, Todd Janzen, Janzen Ag Law Blog – Janzen Ag Law (August 7, 2019)

Federal Actions and Notices:
Agricultural Marketing Service
“2019 Rates Charged for AMS Services”

Animal and Plant Health Inspection Service
“Addition of Scotland to the List of Regions Classified as Having Controlled Risk for Bovine Spongiform Encephalopathy”

Environmental Protection Agency
“FIFRA Scientific Advisory Panel; Notice of Public Meetings and Request for Nomination of Ad Hoc Expert Review”

Food and Nutrition Service
“Agency Information Collection Activities: Proposed Collection; Comment Request-Reasons for Underredemption of the WIC Cash-Value Benefit”

Foreign Agricultural Service
“Adjustment of Appendices Under the Dairy Tariff-Rate Quota Import Licensing Regulation for the 2019 Tariff-Rate Quota Year”
“Assessment of Fees for Dairy Import Licenses for the 2020 Tariff-Rate Import Quota Year”

Pennsylvania Legislation:
SR 190: Resolution directing the Joint State Government Commission to study food waste in Pennsylvania and report findings to the Senate (Referred to Senate Agriculture and Rural Affairs Committee, August 7, 2019)

Pennsylvania Actions and Notices:
Department of Environmental Protection
“Availability of technical guidance”

Environmental Hearing Board
“Friends of York County Family Farms v. Department of Environmental Protection and Hillandale Gettysburg, LP, permittee; EHB doc. No. 2019-093-R”
“Marjorie Hudson, Lorne Swope, Delores Steiner, Linda Harr and Sara Hutzell v. Department of Environmental Protection and Country View Family Farms, LLC, permittee; EHB doc. No. 2019-095-L”
“Montgomery Township Friends of Family Farms v. Department of Environmental Protection and Herbruck’s Poultry Ranch, Inc., permittee; EHB doc. No. 2019-094-R”

Pennsylvania Department of Agriculture:
“PA Department of Agriculture Encourages Growers to Sign Up for New Crop Registry”

Penn State Research:
“Asian longhorned beetle larvae eat plant tissues that their parents cannot” – Penn State News

AgLaw HotLinks:
“Farm Bill funds to support animal disease prevention” – Morning AgClips
“Ag says common sense returns to Endangered Species Act” – Feedstuffs
“Report: Farmers Prevented from Planting Crops on More than 19 Million Acres” – USDA Farm Service Agency
“Bayer says next glyphosate lawsuit likely to be postponed” – Reuters
“Questions about retirement trouble many farmers” – Agweek
“Germany: ‘Meat tax’ on the table to protect the climate” – DW

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Written by:
M. Sean High—Staff Attorney