March 3, 2024

Agricultural Law Weekly Review—March 4, 2024

Explore the Center’s New Geographical Indications Virtual Resource Room.

Right to Farm: West Virginia Passes Law Prohibiting Interference with ‘Permissible’ Pesticide Use, Expands Agriculture Protections 🌾
On February 23, 2024, West Virginia Governor Jim Justice approved legislation SB 171, which amends W. Va. Code §7-1-3 to prohibit county commissions from enacting any law “that contravenes or is stricter than any state law . . . relating to agricultural operations” and simultaneously revokes any such law “previously adopted.” The legislation also prohibits a county commission from enacting any rule that interferes with “the permissible use or application, of any federally or state-registered pesticide, herbicide, or insecticide product.” Additionally, SB 171 amends W. Va. Code §7-1-3ff to exempt “dwellings on agricultural lands or operations” from county commissions’ authority to regulate repair—previously exempted as “buildings used for farm purposes on land actually being used for farming”—and require that at least one member of a county commission’s enforcement agency be someone who “has a background in, or knowledge of, agricultural operations as defined in §19-19-2.” The law becomes effective May 13, 2024. See also Pennsylvania Right to Farm Act Virtual Resource Room.

Agricultural Labor: Wisconsin Worker Heat Protection, Sanitation Standards Effective February 1, 2024
On February 1, 2024, Wisconsin Clearinghouse Rule (CR) 23-030 became effective, which updates the state’s migrant labor law, including new provisions for housing, field sanitation, and heat illness prevention. Among several standards, the rule requires employers to develop a heat illness prevention plan and, when temperatures rise above 80 degrees Fahrenheit, requires employers to provide adequate breaks and a shaded area that is “located as close as practicable to the areas where workers are working” and large “enough to accommodate the number of workers resting or taking outdoor meals so that they can sit fully in the shade in a normal posture without being in physical contact with each other.” Also announced by the state’s Department of Workforce Development, the rule also contains “updated requirements for urinals and showerheads, improved access to washers and dryers, and other safety updates.” See also ALWR—Feb. 20, 2024, “Eleven Attorneys General Petition Department of Labor, Congress, and White House for Occupational Heat Standard.”

Agricultural Labor: Federal Court Grants Preliminary Injunction Against Fayette Janitorial for Child Labor Violations
On February 27, 2024, the U.S. District Court for the Northern District of Iowa issued an order granting a preliminary injunction against Fayette Janitorial Service, enjoining the company from “violating . . . the Fair Labor Standards Act by employing oppressive child labor.” DOL v. Fayette Janitorial Service, No. 5:24-cv-4012. On February 21, 2024, the U.S. Department of Labor (DOL) filed a complaint alleging that Fayette employed minor children under age 16 at a Seaboard Triumph meatpacking facility in Sioux City, Iowa, and employed minor children under age 14 at a Perdue facility in Accomac, Virginia in violation of the child labor provisions of the Fair Labor Standards Act (FLSA). Also announced by the agency, DOL states that “Fayette employed 15 children, hired as young as 13 years old, in Virginia and at least nine children in Iowa on its overnight sanitation shifts” and “used [minors] to clean dangerous kill floor equipment such as head splitters, jaw pullers, meat bandsaws, and neck clippers,” work deemed hazardous for children under the FLSA. For more on FLSA, see recording & materials from Understanding the Basics of the Fair Labor Standards Act.

Agricultural Labor: Pennsylvania Attorney General and U.S. Department of Labor Sign Memorandum of Understanding
On February 21, 2024, the Pennsylvania Office of the Attorney General (OAG) and the U.S. Department of Labor’s (USDOL) Wage and Hour Division (WHD) signed a memorandum of understanding (MOU), authorized under 29 U.S.C. § 211(b), “to maximize and improve the enforcement of the laws administered by USDOL/WHD and by OAG,” including the Fair Labor Standards Act and the Migrant and the Seasonal Agricultural Worker Protection Act. Also announced by USDOL, the agency states that “[t]he agencies formed th[e] partnership to more effectively and efficiently communicate and cooperate on areas of common interest, including sharing training materials, conducting joint investigations and sharing other information as appropriate.” The MOU is effective for five years, beginning January 31, 2024.

Food Labeling: France Issues Decree Prohibiting ‘Animal’ Food Names for Plant-Based Foods
On February 26, 2024, the Prime Minister of France issued Decree No. 2024-144, which prohibits “traditionally” animal-based food names from being used “for the description, marketing, or promotion of” plant-based foods and sets limits on the amount of vegetable content that animal-based foods may contain, like “andouille” (1%), “chorizo” (1%), and “sausage” (3%). The decree only applies to products made in France and is punishable by a maximum fine of €1,500 for a natural person and €7,500 for a legal entity. The decree becomes effective three months after publication. For more on U.S. labeling standards, see recording & materials from Understanding the Basics of Food Labeling.

Biotechnology: European Commission Approves GE Corn and Rapeseed for 10 Years
On January 26, 2024, the European Commission issued Implementing Decision (EU) 2024/391 of 26 January 2024 and Implementing Decision (EU) 2024/389 of 26 January 2024, approving a genetically engineered (GE) corn (maize) crop and renewing authorization for a GE rapeseed crop. Also reported by the U.S. Department of Agriculture’s (USDA) Foreign Agricultural Service (FAS), the implementing decisions authorize the crops for both human and animal food uses. According to FAS, the implementing decisions are valid for ten years. For more on U.S. GE actions, see the Center’s Bioengineered Food Disclosure Issue Tracker.

Biotechnology: FDA Publishes Final Guidance for Genome-Edited Plants
On February 22, 2024, the U.S. Food and Drug Administration (FDA) announced the publication of a final guidance document titled “Foods Derived from Plants Produced Using Genome Editing: Guidance for Industry.” According to FDA, the guidance specifies that the agency’s “Statement of Policy: Foods Derived from New Plant Varieties” also “applies to foods derived from new plant varieties produced using genome editing” and “reminds developers of new plant varieties of their obligations under . . . the Federal Food, Drug, and Cosmetic Act.” Additionally, the guidance document “describes two processes through which developers may voluntarily inform FDA of the steps they have taken to ensure the safety of foods from their new genome-edited plant varieties: voluntary premarket consultations and voluntary premarket meetings.” See also the Center’s Bioengineered Disclosure Virtual Resource Room.

Ag Transportation: Federal Maritime Commissions Publishes Demurrage and Detention Billing Final Rule
On February 26, 2024, the Federal Maritime Commission (FMC) published in the Federal Register a final rule (89 FR 14330) establishing how common carriers and marine terminal operators (MTOs) may bill for demurrage and detention charges, which are assessed if cargo is not timely received from port or shipping containers are not timely returned to port. Also announced by the FMC, the rule specifies that carriers must invoice demurrage and detention charges “within 30 calendar days from when charges were last incurred” or “from the issuance date of the invoice they received” and may assess such charges to either the billing/exporting party or the receiving party—specifically prohibiting demurrage and detention charges from being “issued to multiple parties simultaneously.” The final rule is effective May 28, 2024, except for instructions 2 and 3, for which FMC will announce a later effective date.

Animal Welfare: Federal Court Dismisses Poultry Line Speed Challenge with Leave to Amend Complaint
On February 22, 2024, the U.S. District Court for the Northern District of California issued an order dismissing a 2020 challenge to the U.S. Department of Agriculture’s September 2018 Federal Register notice (83 FR 49048), which allowed poultry processors to increase line speeds from 140 to 175 birds per minute through waivers. The Humane Society of the United States (HSUS) v. Perdue, No. 3:20-cv-01395. HSUS and other animal welfare organizations challenged the waivers—which the agency later withdrew and modified through a July 2022 Constituent Update—as a violation of the Administrative Procedure Act. The court found that the organizations lacked standing, stating that HSUS’s “allegation—that it has had to ‘divert resources . . . to the issue’ of increased line speeds—is not enough for organizational standing.” The court dismissed the organizations’ complaint without prejudice, allowing them leave to amend their complaint. See also ALWR—Jan. 29, 2021, “FSIS Withdraws Poultry Line Speed Proposed Rule.”

Dairy Policy: USDA Announces 2024 Dairy Margin Coverage Program Enrollment
On February 23, 2024, the U.S. Department of Agriculture’s (USDA) Farm Service Agency (FSA) announced the opening of the enrollment period for the 2024 Dairy Margin Coverage Program (DMC), beginning February 28, 2024, through April 29, 2024. According to the announcement, “FSA has revised DMC regulations to extend coverage for calendar year 2024, which is retroactive to Jan[uary] 1, 2024, and to provide an adjustment to the production history for dairy operations with less than 5 million pounds of production.” FSA states that “payments may begin as soon as March 4, 2024, for any payments that triggered in January 2024.”

National Agricultural Policy: USDA Equity Commission Publishes 2024 Report, USDA Updates Equity Action Plan
On February 22, 2024, the U.S. Department of Agriculture’s (USDA) Equity Commission published its 2024 Final Report, which describes 66 “actionable recommendations that USDA can take to modify programs, policies, practices, culture, systems, and structures to reduce disparities and advance racial justice and equity for underserved communities.” Also announced by USDA, the 2024 report recommends, among many practices, revising and recalculating base acres for Agriculture Risk Coverage and Price Loss Coverage (ARC/PLC) payments, funding rural housing and development, and USDA support for citizenship pathways for undocumented agricultural workers. Additionally, on February 14, 2024, USDA announced updates to the agency’s Equity Action Plan, which incorporates recommendations from the Equity Commission’s 2024 Final Report and was promulgated in response to President Biden’s Executive Orders 13985 (E.O. 13985 of Jan 20, 2021) and 14091 (E.O. 14091 of Feb 16, 2023).

_________________________________________________

aglaw.psu.edu | Facebook | Twitter@AgShaleLaw | YouTube | LinkedIn

CENTER PROGRAMS & RESOURCES

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:

Mar. 22, 2024, Understanding the Basics of Organic Production
Apr. 26, 2024, Understanding the Basics of Producer Protections for Buyer Default

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:

Apr. 16, 2024, Overview of U.S. State Milk Pricing Systems

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.

Legal Considerations for Agritourism Operations

Mar. 6, 2024, 8:30am–1:00pm. Staff Attorney Jackie Schweichler presents at “Agritourism and On-Farm Markets & Events: Planning for Your Success in 2024.”

Legal and Tax Structures for Business and Land Ownership