Pesticides/Herbicides: ‘Pure’ Honey Label May Be Deceptive Due to Pesticide Residue
On January 13, 2022, the U.S. District Court for the Eastern District of New York issued an order denying in part honey maker Sioux Honey Association Cooperative’s motion to dismiss a claim against it alleging deceptive business practices, false advertising, and unjust enrichment because the company’s SueBee brand honey was labeled with the words “Pure” or “100% Pure” when the honey contained trace amounts of glyphosate. Scholder v. Sioux Honey Association, No. 2:16-cv-05369. Sioux Honey argued that its “Pure” labeling was not misleading because any glyphosate present in the honey resulted from the “natural process of bees interacting with agriculture,” not the company’s production processes. However, the court found that “it is not so clear that a reasonable customer would understand the terms “Pure” or “100% Pure” to mean that trace amounts of glyphosate could end up in honey from the bees’ foraging process.” The court distinguished another case involving “Florida Natural” brand orange juice, in that it did not indicate the absolute absence of contaminants, while the honey was described as “100% Pure Unfiltered Honey” on a stand-alone basis. The case will now proceed through litigation and, if not settled at some point, to a trial on the merits of the deceptive labeling claims.
Pesticides/Herbicides: EPA Issues New 2,4-D Seven-Year Registrations with Restrictions
On January 11, 2022, the U.S. Environmental Protection Agency (EPA) approved new seven-year registrations of Corteva Agriscience’s Enlist One (2,4-D-choline) and Enlist Duo (2,4-D-choline and glyphosate) for preplant and over-the-top application on tolerant corn, cotton, and soybeans (EPA-HQ-OPP-2021-0957). However, according to EPA’s supporting memorandum, although the agency found that both pesticides pose low risk to human health when used as directed, it found that runoff from the pesticides presented direct threats to listed federally threatened and endangered species, non-listed species, and some designated critical habitats. EPA’s ecological assessment also found direct effects to bees and listed species (birds, amphibians, and reptiles) that use corn, cotton and soybean fields for diet and/or habitat. Accordingly, EPA implemented a lengthy list of requirements to mitigate drift and runoff from Enlist One and Enlist Duo. Additionally, EPA has prohibited use of Enlist One in 169 counties in 14 states and Enlist Duo in 217 counties in 21 states. In terms of Pennsylvania, Enlist One is not prohibited in any counites, but Enlist Duo is prohibited in Adams, Berks, Chester, Cumberland, Lancaster, Lebanon and York Counties. For additional usage information on the Enlist products, see Penn State Extension, Enlist Herbicide Re-registration: Quick Facts.
Pesticides/Herbicides: EPA Announces New Policy on Endangered Species Act Analyses of New Pesticide Active Ingredients
On January 11, 2022, EPA also announced that it intends to consider the effects of pesticide active ingredients on listed federally threatened and endangered species and their designated critical habitats in early in the process of evaluating, and before registering, new pesticide active ingredients, rectifying the agency’s previous inconsistent performance of the evaluation of such effects. In addition to its official announcement, EPA published two relevant resources on its website: (1) the statement of its policy, titled Progress Toward Protections for Federally Listed Species; and (2) Endangered Species Act Policy for New Active Ingredients: Q&A. The latter document also states the following regarding registration renewals: “EPA has increasingly faced litigation on registrations of new active ingredients issued without adequate compliance with the ESA. In general, ESA section 7 obligations apply to most EPA pesticide actions, including registering new active ingredients. EPA believes that improving ESA compliance in this area will help redirect EPA’s resources away from defending new registration decisions . . . In addition to this policy for new active ingredients, EPA is also developing several efforts to protect listed species from the potential effects of already-registered pesticides through the registration review process. In the coming months, EPA will release its ESA-FIFRA workplan, which will provide additional information on these efforts.”
Regulatory Policy: FDA Announces Egg Regulatory Program Standards
On January 14, 2022, the U.S. Food and Drug Administration (FDA), in conjunction with the National Egg Regulatory Officials (NERO), announced the Egg Regulatory Program Standards (ERPS), which provide a blueprint for state egg and egg product regulators (not manufacturers or egg producers) from which to structure regulatory programs. The standards encompass ten individual standards: regulatory foundation, training program, inspection program, inspection audit program, egg-related illness, outbreak and emergency response, compliance and enforcement program, outreach activities, program resources, program assessment and laboratory support. Currently, Iowa and California are enrolled in the ERPS. Additional funding is available for program implementation to state egg regulatory programs with FDA egg inspection contracts.
COVID-19: Application Deadline Extended for Administration of Farm and Food Worker Relief Grant Program
On January 13, the U.S. Department of Agriculture’s (USDA) Agricultural Marketing Service (AMS) announced an extension of the application deadline for the $665 million Farm and Food Worker Relief Grant Program from February 8, 2022 until March 10, 2022. This application process is to award grants of $5,000,000 to $50,000,000 of Consolidated Appropriations Act of 2021 funds to government entities, non-profits or others who demonstrate the capacity to reimburse individual farmworkers and meatpacking workers for up to $600 for expenses incurred due to the COVID-19 pandemic. At least $20 million will be set aside for a separate process to make up to $600 payments to grocery store workers also. See ALWR—Nov. 12, 2021, “Applications Open for Entities to Administer Farm/Food Workers Relief Grant Program.”
International Trade: USDA Publishes Report Detailing 2018 Retaliatory Tariffs’ Effects
On January 11, 2022, the U.S. Department of Agriculture (USDA) Economic Research Service (ERS) published a report titled “The Economic Impacts of Retaliatory Tariffs on U.S. Agriculture.” ERS was directed to prepare the report by the Consolidated Appropriations Act of 2021, signed into law on December 27, 2020. The report details the effects of retaliatory tariffs on U.S. exports imposed in 2018 by Canada, China, the European Union, India, Mexico, and Turkey in response to the U.S.’s 2019 Section 232 tariffs on steel and aluminum imports and Section 301 punitive tariffs on Chinese imports. The tariffs increased the price of U.S. agricultural products in those markets, anywhere from 2% to 140% and created overall U.S. agricultural product export losses valued at $27 billion between 2018 and the end of 2019. Lost Chinese agricultural trade accounts for 95% of the total, with soybeans making up 71%, pork 6%, specialty crops 6%, and sorghum 5%. U.S. market share of Chinese agricultural imports decreased from 20% in 2017 to 12% in 2018 and further decreased to 10% in 2019. Canadian and Mexican tariffs were removed in May 2019 and some tariff exemptions were granted by China after the U.S.-China Phase One Trade Agreement signed on January 15, 2020. However, some retaliatory tariffs and resulting losses and loss of market share remain to date. The report concludes, “U.S. agricultural exports to China rebounded and hit record levels in 2020; however, some of this increase was likely driven by factors unrelated to trade policy, including China’s pig-herd recovery in the wake of African Swine Fever and resulting increased feed demand. However, U.S. market share has not fully recovered to pre-retaliatory levels 1 year out from the Phase One Agreement signing.”
National Agricultural Policy: Farm, Ranch, and Rural Communities Federal Advisory Committee Publishes EPA Recommendations
On January 12, 2022 the Farm, Ranch, and Rural Communities Federal Advisory Committee (FRRCC) published its December 2021 Recommendations to the U.S. Environmental Protection Agency (EPA), which outlines recommendations on a published set of “Charge Topics” issued by the EPA Administrator. According to the document, the committee advises that EPA develop an easily interpretable definition for “waters of the United States” (WOTUS) based on Supreme Court precedent, including the court’s 2006 opinion in Rapanos v. United States, and provide exemptions for prior converted cropland, groundwater, wastewater and reclaimed water, storm water collection, and property-confined watercourses like ditches, ponds, and prairie potholes. The FRRCC also advises EPA to partner with the U.S. Department of Agriculture (USDA) and the U.S. Food and Drug Administration (FDA) to develop an ecosystems management system that would incentivize primarily farmers and ranchers to improve natural resources. Additionally, the committee recommends that EPA devise a media campaign to inform the American public about EPA’s science-based pesticide regulation processes and develop definitions of “agricultural food loss” and “agricultural food waste” to instruct further policymaking. The FRRCC is a Federal Advisory Committee originally chartered for two years by the EPA in 2008 and rechartered several times in the last 12 years. The current iteration of the Committee is chartered from February 2020-2022. In response, the National Cattlemen’s Beef Association (NCBA) released a statement supporting the committee’s WOTUS recommendations.
Weekly Episode #203. Supreme Court Stays OSHA Vaccination Rule & Environmental Groups Revive Dicamba Challenge Citing EPA Report (Jan. 20, 2022).
Weekly Episode #202. EPA Publishes 2021 Dicamba Report & States Act on Animal Welfare Laws (Jan. 15, 2022).
Weekly Episode #201. White House Links Meat Processor Profits to Rising Food Prices & EPA Announces Renewable Fuel Volume Requirements (Jan. 7, 2022).
*2nd Annual Pennsylvania Farm Show Agricultural Law Symposium, video recordings and materials available. (recorded Jan. 11 and 13, 2022).
Feb. 1-3, 2022: 2022 Mid-Atlantic Fruit and Vegetable Convention, Hershey, PA. Center Staff Attorney Jackie Schweichler will present on Legal Liability Risks from Business Invitees on the Farm (Feb. 2 at 11:00 a.m.) and Legal Considerations for Agritourism (2:30 p.m.).
Feb. 1–3, 2022: Pennsylvania Dairy Summit, Lancaster, PA. Center Staff Attorney Brook Duer will present on Feb. 2 on Protecting Yourself from Animal Activism (10:40 a.m.).
Feb. 10, 2022: Penn State Extension Webinar, Liability Issues for the Value-Added Dairy Foods Processor, noon–1:00 p.m. EST. Center Staff Attorney Brook Duer will be the presenter.
Feb. 10–12, 2022: PASA Sustainable Agriculture’s 2022 Sustainable Agriculture Conference, Lancaster, PA. Virtual Pre-Conference from Jan. 4 to 28. Center Staff Attorney Brook Duer will present on Feb. 12 on Direct Sale of Raw and Processed Specialty Crop Products: Legal Liabilities, Contracting and Insurance (9:00 a.m.).
Top #AgLaw HotLinks Jan. 17–21, 2022
African Swine Fever Detected in Thailand, Brownfield
USDA Invests $9M To Bolster Climate Research, 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 [email protected].
Agricultural Law & Policy Resources of Interest:
Academic & Government Resources
- Nat’l Agric. Law Ctr., Restricting Foreign Farmland Investments: Alabama’s Proposed Constraints on Foreign Ownership, Micah Brown (Jan. 18, 2022).
- Nat’l Agric. Law Ctr, EPA Adopts New Policy For ESA Consultations & New Pesticide Active Ingredients, Brigit Rollins (Jan. 20, 2022).
- Texas A&M Agric. Law Blog, EPA Bans Use of Enlist Duo & Enlist One in Certain Counties Across US, Tiffany Dowell Lashmet (Jan. 17, 2022).
- Law and Tax’n. Blog, Other Important Developments in Agricultural Law and Taxation, Roger A. McEowen (Jan. 18, 2022).
- Law and Tax’n. Blog, Other Important Developments in Agricultural Law and Taxation (Part 2), Roger A. McEowen (Jan. 20, 2022).
- Law and Tax’n. Blog, The “Almost Top Ten” (Part 3)—New Regulatory Definition of “Habitat” Under the ESA, Roger A. McEowen (Jan. 22, 2022).
- Ohio State U. Ext., Planning for the Future of Your Farm, 4-part webinar series Jan. 31, Feb. 7, 21 & 28, 2022, 6:30-8:30 p.m. via ZOOM.
Media & Industry Resources
- Financial Post, New Zealand cheers Canada’s loss in dairy dispute and calls for ‘significant reform’ (Jan. 17, 2022)
- Agri-Pulse Open Mic Interview, S. Dairy Export Council President and CEO Krysta Harden (recorded Jan. 16, 2022)
- We Conserve PA, Tree Law in Pennsylvania, Gilbert High, Jr., Esq. (Jan. 2022)
- Lexology, Chobani, a Classic Immigrant Success Story, Files for IPO (Jan. 17, 2022)
- Bloomberg Green, How Big Beef Is Fueling the Amazon’s Destruction (Jan. 21, 2022)
- Agricultural Economic Insights, ag Presents: Corn Saves America, 10-episode podcast series (Nov. 2021 – Jan. 13, 2022).
Penn State News, Research & Resources
- Farmers in 14 Counties Will Be Surveyed on Their Use of Conservation Practices (Jan. 17, 2022).
- 2022 Farm Conservation Practices Survey, Penn State Ext. (Jan. 19, 2022).
- Integrated Modeling of Climate Impacts on Electricity Demand and Cost (Jan. 17, 2022).
- Entomologists to Study How Climate Change May Influence Pollinator Stressors (Jan. 17, 2022).
- Post-Fire Forest Recovery Tools Developed (Jan. 18, 2022).
- USDA Grant to Support Study at Penn State on Antimicrobial Tolerance in Plants (Jan. 19, 2022).
- Penn State Gets Grant to Teach Private Forest Owners to Adapt to Climate Change (Jan. 21, 2022).
- Mining for Knowledge: Scientists Identify Bee That Can Aid Black Cherry Recovery (Jan. 21, 2022).
- Penn State Offering Chocolate Short Course This Summer (Jan. 21, 2022).
- 2022 Pennsylvania Commercial Hybrid Corn Trials Application, Penn State Ext. (Jan. 18, 2022).
- USDA Reports Record Corn and Soybean Yields for PA, Penn State Ext. (Jan. 19, 2022).
- 2021 Forage Variety Trials, Penn State Ext. (Jan. 19, 2022).
- Enlist Herbicide Re-registration: Quick Facts, Penn State Ext. (Jan. 19, 2022).
- PA Forage and Grassland Council to Hold Annual Conference, Penn State Ext. (Jan. 19, 2022).
- Annual Grass Control in 2022, Penn State Ext. (Jan. 19, 2022).
Agriculture-Related Legislative Hearings & Reports:
PA House Appropriations Committee Budget Hearing for Department of Agriculture, March 2, 2022, 10:00 a.m. EST, hearing will be conducted from the House Floor and livestream.
PA Senate Appropriations Committee Budget Hearing for Department of Agriculture, March 3, 2022, 10:00 a.m. EST, Hearing Room 1, North Office Bldg. and livestream.
U.S. House Judiciary Committee Hearing, Subcommittee on Antitrust, Commercial, and Administrative Law, Reviving Competition, Part 5: Addressing the Effects of Economic Concentration on America’s Food Supply, video and written testimony (recorded Jan. 19, 2022).
U.S. House Agriculture Committee Hearing, Implications of Electric Vehicle Investments for Agriculture and Rural America, video and written testimony (recorded Jan. 12, 2022).
U.S. House Agriculture Committee Hearing, To Review the State of the Rural Economy with Agriculture Secretary Tom Vilsack, video and written testimony (recorded Jan. 20, 2022).
Complete list of 2021 U.S. House Agriculture Committee hearing recordings available for on-demand viewing:
Climate Change and the U.S. Agriculture and Forestry Sectors (Feb. 25, 2021).
A Look at Food Insecurity in America (Mar. 11, 2021).
A Hearing to Review the State of Black Farmers in the U.S. (Mar. 25, 2021).
The Future of SNAP: Moving Past the Pandemic (May 26, 2021).
Examining Opportunities for Growth and Investment in Rural America (June 15, 2021).
Markup of Commodity Futures Trading Commission Whistleblower Program (June 16, 2021).
A Hearing to Review the Efficacy of the Farm Safety Net (June 23, 2021).
Examining the SNAP Benefit Cliff (July 12, 2021).
State of the Beef Supply Chain: Shocks, Recovery, and Rebuilding (July 28, 2021).
Voluntary Carbon Markets in Agriculture and Forestry (Sept. 23, 2021).
A Hearing to Review the State of the Livestock Industry (Oct. 7, 2021).
The Immediate Challenges to our Nation’s Food Supply Chain (Nov. 3, 2021).
A Look at the Renewable Economy in Rural America (Nov. 16, 2021).
Trade Policy and Priorities (Nov. 17, 2021).
Review of USDA Nutrition Distribution Programs (Dec. 8, 2021).
FEDERAL ACTIONS—EXECUTIVE & LEGISLATIVE
U.S. DEPARTMENT OF AGRICULTURE (USDA) PRESS RELEASES:
U.S. Department of Agriculture Announces Key Staff Appointments (Jan. 19, 2022).
USDA AGENCY PRESS RELEASES:
Agricultural Marketing Service (AMS)
USDA Releases 2020 Pesticide Data Program Annual Summary (Jan. 19, 2022).
Animal and Plant Health Inspection Service (APHIS)
APHIS Celebrates 2021 Accomplishments (Jan. 21, 2022).
Economic Research Service (ERS)
ERS Coronavirus (COVID-19) Media Resources (last updated Jan. 21, 2022).
Food and Nutrition Service (FNS)
USDA Advances Market Opportunities through Farm to School Program (Jan. 19, 2022).
USDA Supports Equity, Inclusion in Nutrition Assistance Programs (Jan. 20, 2022).
USDA Tackles Food Insecurity, Expands Program Access (Jan. 20, 2021).
Food Safety and Inspection Service (FSIS)
FSIS Highlights 2021 Accomplishments in Protecting Public Health (Jan. 21, 2022).
Constituent Update – January 21, 2022 (Jan. 21, 2022).
Foreign Agriculture Service (FAS)
Export Sales to China [Soybeans] and Unknown Destinations [Corn] (Jan 21, 2022).
National Agricultural Statistics Service
USDA Highlights Biden-Harris Administration’s First-Year Accomplishments to Improve Equitable Access to Jobs, Business Opportunities, Education, Health Care and Housing for Rural People (Jan. 20, 2022).
FEDERAL EXECUTIVE AGENCIES (Federal Register Jan. 18–21, 2022):
87 FR 3116 Notice: “Notice of Consultations on Federal Subsistence Policy in Alaska” (Jan. 20, 2022).
87 FR 3070 Notice: “Report of Federal Financial Assistance Programs for Infrastructure Administered by USDA as Required by the Infrastructure Investment and Jobs Act” (Jan. 20, 2022).
Animal and Plant Health Inspection Service
87 FR 3070 Notice: “Determination of the Newcastle Disease Status of the Cantons of Neuchâtel and Ticino of Switzerland” (Jan. 20, 2022).
Environmental Protection Agency
87 FR 2725 Rule: “Ethaboxam; Pesticide Tolerances” (Jan. 19, 2022).
Farm Credit System Insurance Corporation
87 FR 2784 Notice: “Notice of Board Meeting [on Jan. 27, 2022]” (Jan. 19, 2022).
Fish and Wildlife Service
87 FR 2631 Notice—Comment Period: “Endangered and Threatened Species; Receipt of Recovery Permit Applications” (Jan. 18, 2022).
87 FR 2635 Notice—Comment Period: “Enhancement of Survival Permit; Agricultural Candidate Conservation Agreement with Assurances (CCAA) for Lesser Prairie Chicken in Oklahoma” (Jan. 18, 2022).
Food and Drug Administration
87 FR 2542 Rule: “New Method for the Analysis of Sulfites in Foods” (Jan. 18, 2022).
87 FR 2797 Notice—Comment Period: “Agency Information Collection Activities; Proposed Collection; Comment Request; Prevention of Salmonella Enteritidis in Shell Eggs During Production; Recordkeeping and Registration Provisions” (Jan. 19, 2022).
87 FR 3303 Notice: “Guidance Documents Related to Coronavirus Disease 2019 [Covid-19]; Availability” (Jan. 21, 2022).
87 FR 3115 Notice: “Agency Information Collection Activities; North American Breeding Bird Survey” (Jan. 20, 2022).
Health and Human Services Department
87 FR 3314 Notice: “Meeting of the Tick-Borne Disease Working Group [Feb. 28-March 1, 2022]” (Jan. 21, 2022).
87 FR 2636 Notice: “Report on the Department of the Interior Federal Financial Assistance Infrastructure Programs Subject to the Build America, Buy America Act Provisions of the Infrastructure Investment and Jobs Act” (Jan. 18, 2022).
International Trade Commission
87 FR 2899 Notice: “Distributional Effects of Trade and Trade Policy on U.S. Workers [Roundtables and Hearing]” (Jan. 19, 2022).
National Resource Conservation Service
87 FR 2746 Notice—Comment Period: “Proposed Revisions to the National Handbook of Conservation Practices for the Natural Resources Conservation Service” (Jan. 19, 2022).
Rural Business-Cooperative Service
87 FR 2747 Notice—Comment Period: “Notice of Funding Opportunity for the Rural Energy Pilot Grants Program (REPP) for Fiscal Year 2022” (Jan. 19, 2022).
Rural Housing Service
87 FR 3071 Notice: “Off-Farm Labor Housing Technical Assistance (Off-FLH TA) Grants” (Jan. 20, 2022).
U.S. HOUSE AGRICULTURE COMMITTEE:
H.R.4521 “Bioeconomy Research and Development Act of 2021.” Ordered to be Reported (Amended) by Voice Vote [House] (Jan. 19, 2022).
H.R.6432 “SNAP Second Chance Act of 2022.” Referred to the House Committee on Agriculture (Jan. 19, 2022).
H.R.6435 “To provide for the application of certain provisions of the Secure Rural Schools and Community Self-Determination Act of 2000 for fiscal year 2021.” Referred to the Committee on Agriculture, and in addition to the Committee on Armed Services [House]. . . (Jan. 20, 2022).
H.R.4374 “Broadband Internet Connections for Rural America Act” House Committee on Energy and Commerce Granted an extension for further consideration ending not later than March 18, 2022 (Jan. 21, 2022).
U.S. SENATE COMMITTEE AGRICULTURE, NUTRITION, AND FORESTRY:
No relevant actions.
STATE ACTIONS—EXECUTIVE & LEGISLATIVE
PENNSYLVANIA DEPARTMENT OF AGRICULTURE PRESS RELEASES:
PENNSYLVANIA EXECUTIVE AGENCIES (Pa. Bulletin Vol. 52, No. 4—Jan. 22, 2022):
Delaware River Basin Commission
52 Pa.B. 450 Notice: “Virtual Public Hearing and Virtual Public Business Meeting [on Feb. 9, 2022].”
Department of Conservation and Natural Resources
52 Pa.B. 451 Notice: “Community Conservation Partnerships Program Grants Available.”
52 Pa.B. 452 Notice: “Conservation and Natural Resources Advisory Council Public WebEx Meeting [on Jan. 26, 2022].”
Department of Environmental Protection
52 Pa.B. 452 Notice: “Applications for NPDES and WQM Permits Under the Clean Streams Law and Federal Clean Water Act.”
State Conservation Commission
52 Pa.B. 548 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. 574 Notice: “Actions Taken at December Meeting.”
52 Pa.B. 575 Notice: “Grandfathering Registration Notice [November].”
52 Pa.B. 576 Notice: “Grandfathering Registration Notice [December].”
52 Pa.B. 576 Notice: “Projects Approved for Consumptive Uses of Water [November].”
52 Pa.B. 577 Notice: “Projects Approved for Consumptive Uses of Water [December].”
52 Pa.B. 578 Notice: “Public Hearing [on Feb. 3, 2022].”
SB 450 “An Act amending . . . the Rural Pennsylvania Revitalization Act, in center for rural Pennsylvania, further providing for board of directors.” Referred to Agriculture and Rural Affairs [House] (Jan. 21, 2022).
HB 2256 “An Act amending . . . The Administrative Code of 1929, in powers and duties of the Department of Environmental Resources, its officers and departmental and advisory boards and commissions, providing for Office of Environmental Justice.” Referred to Environmental Resources and Energy [House] (Jan. 20. 2022).
Audry Thompson—Research Assistant
Noah Gochnauer—Research Assistant
Brook Duer—Staff Attorney