January 13, 2023

Agricultural Law Weekly Review—January 16, 2023

Organic Agriculture: DOJ Indicts Multiple Companies and Individuals for Organic Fraud 🌾
On January 6, 2023, the U.S. Department of Justice announced the indictment of two Dubai-based agricultural companies and three Turkish residents for conspiring to export non-organic grain labeled as “organic” into the United States. The defendants are charged with conspiracy, smuggling, and wire fraud. According to the announcement, in 2016, the defendants “shipped 16,250 [metric tons] of non-organic soybeans falsely labeled as ‘organic’ from Turkey to the United States where they were sold for over $10 million.” The case is pending in the U.S. District Court for the District of Maryland. United States v. Hakan Agro DMCC, No.1:22-cr-00274.

Antitrust: Additional Lawsuits Consolidated into In Re Pork Antitrust Litigation
On January 4, 2023, the U.S. District Court for the District of Minnesota issued an opinion and order consolidating the case Maximum Quality Foods, Inc. v. Agri Stats, Inc., No. 0:23-cv-00014 into the class action multi-district litigation In Re: Pork Antitrust Litigation, No. 0:21-md-02998. Previously, on December 27, 2022, the U.S. Judicial Panel on Multidistrict Litigation issued a conditional transfer order transferring Maximum Quality Foods to the Minnesota District Court. For more on this case, see the Ag Law Center’s issue tracker, In re Pork Antitrust Litigation.

Industrial Hemp: USDA Extends Deadline for DEA-Approved Hemp Testing Until December 31, 2023
On December 6, 2022, the U.S. Department of Agriculture (USDA) Agriculture Marketing Service (AMS) announced that enforcement of the requirement that all hemp be tested by a Drug Enforcement Administration (DEA)-registered laboratory be delayed. This requirement, originally set to take place on January 1, 2023, will not be enforced until December 31, 2023. Until December 31, 2023, producers may test their hemp using non-DEA registered labs. More information and a list of DEA-registered labs can be found here.

Food Safety: FDA Publishes 2022 Food Code
On December 28, 2022, the U.S. Food and Drug Administration (FDA) published the 2022 edition of the FDA Food Code. The Food Code is a set of national standards and guidelines for food products offered to mitigate foodborne illnesses through retail and food service programs. According to the FDA, the updated 2022 Food Code includes initiatives in accordance with the Biden Administration’s National Strategy on Hunger, Nutrition, and Health which aims to end hunger and diet-related illnesses. More information on the 2022 Food Code can be found here, and a summary of the changes here.

Food Safety: FDA Updates Preharvest Water Treatment Development & Registration
On January 6, 2022, the U.S. Food and Drug Administration (FDA) announced updates to the protocol for the development and registration of treatments for preharvest water. This update removes Listeria monocytogenes from the organism test panel. An updated version of the protocol can be found here.

Food Labeling: FDA Adds Sesame to List of Major Food Allergens
On January 1, 2023, sesame became the ninth allergen on the list of major food allergens under the Food Allergy Safety, Treatment, Education, and Research Act (FASTER) of 2021 (S.578). Also on the list are milk, eggs, fish, Crustacean shellfish, tree nuts, peanuts, wheat, and soybeans. On December 15, the U.S. Food and Drug Administration (FDA) issued a constituent update reminding food manufacturers of the January 1, 2023, implementation date.

Animal Welfare: USDA Publishes Report on Animal Welfare & Confinement Laws
On December 15, 2022, the U.S. Department of Agriculture (USDA) Economic Research Service (ERS) published a report titled “State Policies for Farm Animal Welfare in Production Practices of U.S. Livestock and Poultry Industries: An Overview.” The report analyzes the current attributes, implementation, and legal challenges of animal welfare and confinement policies in the 14 states that have such laws.

Animal Welfare: Colorado ‘Cage-Free’ Egg Law Becomes Effective Jan. 1, 2023
On January 1, 2023, the Colorado statute formerly known as HB20-1343, titled ”Concerning Confinement Standards for Egg-laying Hens Whose Eggs are Sold,” became effective. The act, originally passed in 2020, outlines confinement standards for farm owners of chickens, turkeys, ducks, geese, or guinea fowl hens, collectively (hens). These standards require that by January 1, 2025, farmers will confine hens in cage-free housing systems with at least one square foot of usable floor space per hen or 1.5 square feet of usable floor space per hen if the hens do not have free access to vertical space. Several purposes, such as medical research and veterinary procedures, are exempt from these standards. More information can be found here.

Local Agricultural Policy: Pennsylvania Issues Revised Order Re: Hayride Registration Variance
On January 7, 2023, the Pennsylvania Department of Agriculture (PDA) Bureau of Ride and Measurement Standards published in the Pennsylvania Bulletin (53 Pa.B. 22) a revised order (“variance”) exempting hayride attraction owners and operators from the Amusement Ride Inspection Act requirement in the annual registration process to submit a professional engineer’s verification of compliance with the Act and its regulations. A prior order was published in March 2022 (52 Pa.B. 1362). The revised order excludes from hayride attractions “[a] tow vehicle pulling a wagon or trailer for the purpose of transporting passengers to and from locations for convenience, ease of access or for safety, such as transporting passengers from parking areas and transporting passengers over long or difficult terrain.” For more information, see Pennsylvania Farm Bureau’s PDA Hayride Attraction Regulation Documents & FAQs.

Avian Influenza: Pennsylvania Recommends All Poultry Housed Indoors
On January 9, 2022, the Pennsylvania Department of Agriculture (PDA) Bureau of Animal Health and Diagnostic Services issued a recommendation that all poultry be maintained indoors and that producers implement strict biosecurity practices. Historically, the outbreak of Highly Pathogenic Avian Influenza (HPAI) in the summer of 2015 preceded a spike in HPAI cases during the following winter.

Technology: American Farm Bureau & John Deere Sign Right to Repair MOU
On January 8, 2023, the American Farm Bureau Federation (AFDF) and John Deere signed a memorandum of understanding (MOU) aimed at allowing farmers and private mechanics to repair John Deere products. This MOU eliminates the requirement that only John Deere authorized repair technicians diagnose and repair John Deere products. Additionally, farmers and private mechanics will be provided access to the necessary tools, parts, and software needed to make repairs. This MOU comes amidst a complaint filed by the National Farmers Union, and several state affiliates, with the Federal Trade Commission (FTC) on March 3, 2022, which asked the FTC to investigate potential antitrust violations inherent in John Deere’s restrictive repair policies.

 

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CENTER PROGRAMS & RESOURCES

Events:

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. Next in the series:

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:

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

Resources of Interest:

Academic Resources

Government Resources

Events of Interest

Penn State News, Research & Resources:

Agriculture-Related Legislative Hearings and Reports 

No new hearings or reports this week.

Top #AgLaw HotLinks Dec. 31– Jan. 6, 2022:

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

Biden-Harris Administration Invests in Projects to Promote Competition and Strengthen the Nation’s Meat Supply Chain (Jan. 5, 2023).

Statement by Agriculture Secretary Tom Vilsack Following the Swearing in of Jose Emilio Esteban, Ph.D. to Serve as Under Secretary for Food Safety (Jan. 4, 2023).

ENVIRONMENTAL PROTECTION AGENCY (EPA) PRESS RELEASES

EPA provides research funds to Colorado Small Businesses to develop technologies for wastewater reuse and microplastic identification (Jan. 5, 2023).

USDA AGENCY PRESS RELEASES:

Agricultural Marketing Service (AMS)

Hood River Juice Company Inc. in Oregon Satisfies Terms of Consent Decision and Order Involving Alleged PACA Violations (Jan. 5, 2023).

USDA Files Action Against Valvilla Produce LLC in Texas for Alleged PACA Violations (Jan. 5, 2023).

USDA Takes Steps to Support Food Sovereignty with the Bad River Band of the Lake Superior Tribe of Chippewa Indians (Jan. 5, 2023).

USDA Expands Local Foods in School Meals through Cooperative Agreement with New Hampshire (Jan 4, 2023).

USDA Determines Individual Responsibly Connected to Texas Violator (Jan. 4, 2023).

USDA Expands Local Foods in School Meals through Cooperative Agreement with Maryland (Jan. 3, 2023).

Animal and Plant Health Inspection Agency (APHIS)

USDA Seeks Comment on Plan to Strengthen Regulations for Handling Wild and Exotic Animals for Exhibition; Environmental Enrichment Requirements (Jan. 5, 2023).

Availability of Final Environmental Assessment for a Biological Control Agent of Spotted-Wing Drosophila (Jan. 3, 2023).

Farm Service Agency (FAS)

USDA Announces January 2023 Lending Rates for Agricultural Producers (Jan. 3, 2023).

Foreign Agricultural Service (FAS)

Export Sales to Mexico and Unknown Destinations (Jan. 6, 2023).

Food for Progress Program – FY 2021 Report to Congress (Jan. 4, 2023).

Export Sales to Unknown Destinations (Jan. 4, 2023).

National Institute of Food and Agriculture (NIFA)

NIFA Invests Over $520K in Response to Extreme Weather Events Across the U.S. (Jan. 5, 2023).

Battling Exotic Ant Pests in American Samoa (Jan. 5, 2023).

Reflecting on the Successes of 2022 (Jan. 3, 2023).

FEDERAL EXECUTIVE AGENCIES (Federal Register Jan. 3–6, 2022):            

Agricultural Marketing Service

88 FR 16 Proposed Rule—Public Comment: “Kiwifruit Grown in California; Increased Assessment Rate” (Jan. 3, 2023).

88 FR 18 Proposed Rule—Public Comment: “Marketing Order Regulating the Handling of Spearmint Oil Produced in the Far West; Salable Quantities and Allotment Percentages for the 2023-2024 Marketing Year” (Jan. 3, 2023).

Animal and Plant Health Inspection Service

88 FR 44 Notice: “Notice of Availability of an Environmental Assessment and Finding of No Significant Impact for Release of Ganaspis brasiliensis” (Jan. 3, 2023).

Environmental Protection Agency

88 FR 990 Final Rule: “Extract of Caesalpinia Spinosa; Exemption From the Requirement of a Tolerance” (Jan. 5, 2023).

88 FR 353 Notice—Public Comment: “Pesticide Product Registration; Receipt of Applications for New Active Ingredients November 2022” (Jan 4, 2023).

88 FR 352 Notice—Public Comment: “Proposed Information Collection Request; Comment Request; National Estuary Program (Renewal)” (Jan. 4, 2023).

88 FR 38 Proposed Rule—Public Comment: “Receipt of a Pesticide Petition Filed for Residues of Pesticide Chemicals in or on Various Commodities November 2022” (Jan. 3, 2023).

88 FR 71 Notice—Public Comment: “Pesticide Product Registration; Receipt of Applications for New Uses, November 2022” (Jan. 3, 2023).

Farm Credit Administration

88 FR 861 Notice: “Sunshine Act Meetings” (Jan. 5, 2023).

Food and Nutrition Service

88 FR 1039 Notice: “Summer Food Service Program; 2023 Reimbursement Rates” (Jan. 5, 2023).

International Trade Administration

88 FR 858 Notice: “Fresh Garlic From the People’s Republic of China: Initiation of Antidumping Duty New Shipper Review” (Jan. 5, 2023).

88 FR 339 Notice: “Agreement Suspending the Antidumping Duty Investigation on Sugar From Mexico: Preliminary Results of the 2020-2021 Administrative Review and Postponement of Final Results” (Jan. 4, 2023).

88 FR 341 Notice: “Agreement Suspending the Countervailing Duty Investigation on Sugar From Mexico; Preliminary Results of the 2021 Administrative Review” (Jan. 4, 2023).

88 FR 58 Notice: “Certain Frozen Warmwater Shrimp From the Socialist Republic of Vietnam: Preliminary Results, Partial Rescission, and Preliminary Determination of No Shipments of Antidumping Duty Administrative Review; 2021-2022″ (Jan. 3, 2023).

National Agricultural Statistics Service

88 FR 338 Notice—Public Comment: “Notice of Intent To Request Revision and Extension of a Currently Approved Information Collection” (Jan. 4, 2023).

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:           

Secretary Of Agriculture Showcases Must-See Exhibits At 2023 PA Farm Show (Jan. 3, 2023).

PENNSYLVANIA EXECUTIVE AGENCIES (Pa. Bulletin Vol. 53, No. 1—Jan. 7, 2023): 

Department of Agriculture

53 Pa.B. 22 Notice: “Bureau of Ride and Measurement Standards.”

53 Pa.B. 23 Notice: “Controlled Plant and Noxious Weed Committee Public Meeting.”

53 Pa.B. 24 Notice: “Pennsylvania Malt and Brewed Beverage Industry Promotion Board; Grant Solicitation and Application Procedures for Act 39 of 2016 Funding.”

53 Pa.B. 36 Notice: “Pennsylvania Wine Marketing and Research Board; Grant Solicitation and Application Procedures for Act 39 of 2016 Funding.”

Department of Environmental Protection 

53 Pa.B. 106 Notice: “Aggregate Advisory Board Meeting Rescheduled.”

53 Pa.B. 47 Notice: “Applications, Actions and Special Notices.”

53 Pa.B. 107 Notice: “Rescission of Technical Guidance.”

53 Pa.B. 107 Notice: “State Board for Certification of Sewage Enforcement Officers; Examination Schedule for 2023.”

Susquehanna River Basin Commission

53 Pa.B. 119 Notice: “Actions Taken at December Meeting.”

53 Pa.B. 120 Notice: “Projects Approved for Consumptive Uses of Water.”

PENNSYLVANIA LEGISLATURE

No new actions this week.

 

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