Agribusiness: Federal Court Allows Securities Fraud Claims to Proceed Against Bayer Re: Monsanto Purchase
On October 19, 2021, the U.S. District Court for the Northern District of California issued an order denying Bayer’s motion to dismiss a suit brought by Bayer investors alleging that the company’s actions in connection with its acquisition of Monsanto violated the Securities and Exchange Act of 1934. Sheet Metal Workers National Pension Fund v. Bayer Aktiengesellschaft, No. 3:20-cv-04737. The plaintiffs, multiple pension funds, claim that Bayer misstated the safety of glyphosate and Roundup, Bayer’s own due diligence efforts, and the legal risks of acquiring Monsanto. The court held that the plaintiffs adequately pled a cause of action under Sections 10(b) and 20(a) of the Securities and Exchange Act for “fraud or deceit” in connection with the purchase of Monsanto. The case was filed in July 2020 and now will proceed through discovery and other trial preparation. No trial date has been set.
Industrial Hemp: 2022 Pennsylvania Hemp Grower Permit Applications Open
On October 21, 2021, the Pennsylvania Department of Agriculture (PDA) announced that it is currently accepting hemp permit applications from growers and processors for the 2022 growing season. While PDA accepts processor permit applications year-round, commercial and research grower applications are due April 1, 2022. According to the announcement, PDA issued 426 growing permits and 64 processing permits for the 2021 season and encourages 2021 growers to report their production, harvest, yield, and sales figures in the USDA National Agricultural Statistics Service (NASS) Hemp Acreage and Production Survey which began October 18, 2021.
WOTUS: Industry Groups Appeal August 2021 WOTUS Vacatur
On October 25, 2021, multiple industry intervenors filed an appeal in the U.S. Court of Appeals for the Ninth Circuit seeking review of the U.S. District Court for the District of Arizona’s August 2021 decision vacating the 2020 Navigable Waters Protection Rule (NWPR). Pasqua Yaqui Tribe, et al v. Arizona Rock Products Assoc., et al, No. 21-16791, appealed from Pasqua Yaqui Tribe v. United States Environmental Protection Agency, No. 4:20-cv-00266 (D. Ariz. 2021). The industry intervenors—which includes the Arizona Farm Bureau, Arizona Cattle Feeders Association, and Home Builders Association of Central Arizona—also filed a motion to stay the district court’s vacatur pending the appeal, alleging that the NWPR vacatur and “return to the pre-2015 regime pending issuance of yet another new rule by the Agencies will be unduly disruptive to the regulated community. . . [which] far exceed[s] any speculative injury asserted by Plaintiffs.” The EPA has already announced that it has treated the Arizona District Court vacatur of the NWPR as having national applicability and is implementing the pre-2015 regime nationwide while it drafts a new definition to replace the NWPR. For background, see ALWR—September 3, 2021, “Arizona Federal Court Vacates 2020 Navigable Waters Protection Rule.”
Antitrust: Court Dismisses Direct Action Purchaser Claims Against Pilgrim’s Pride
On October 25, 2021, the U.S. District Court for the Northern District of Illinois issued an order entering a stipulated dismissal of claims by multiple national grocery chains, including Kroger Co, and Publix Super Markets, Inc. — termed direct action purchaser (DAP) plaintiffs — against Pilgrim’s Pride Corporation (Pilgrim’s) in the consolidated civil antitrust class action case In re Broiler Chicken Antitrust Litigation, No. 1:16-cv-08637. Court filings do not disclose if a settlement payment of any kind was agreed to or made. Pilgrim’s joins Tyson Foods, Inc. in gaining identical stipulated dismissals in the last week from the DAP plaintiffs in the case. Of the top four poultry processors in the U.S., only Perdue and Sanderson Farms (recently purchased by Cargill and Continental Grain) remain exposed to claims from the DAP plaintiffs. See ALWR—Oct. 22, 2021, “Court Dismisses Direct Action Purchaser Claims Against Tyson.”
Food Labeling: Ninth Circuit Upholds Dismissal of Nestlé Bottled Water Mislabeling Claim
On October 22, 2021, the U.S. Court of Appeals for the Ninth Circuit issued a memorandum opinion (not for publication) affirming the district court’s dismissal of a complaint alleging that Nestlé mislabeled its Arrowhead Brand Mountain Spring water and was unjustly enriched from the water’s sales. Connie Chong v. Nestle Waters North America, et al, No. 20-56373, appealed from Connie Chong v. Nestle Waters North America, Inc., No. 2:19-cv-10901 (C.D. Cal. 2020). The consumer plaintiff claimed that, because the label depicted a mountain behind a body of water, she “believed [the water] was from the springs in the Arrowhead mountain,” despite the six listed source locations on the back of the label, which, the district court noted, “[s]he did not read.” The Ninth Circuit found that the district court correctly determined that the labels did not contain “any indication that the image of the mountain and lake refer to any specific mountain or lake, but rather to the true statement that Arrowhead Water is comprised entirely of mountain spring water” and that “no reasonable consumer would be misled by any of the product labels at issue in [the] suit.”
Invasive Species: Pennsylvania Spotted Lanternfly Compliance Checks Announced
On October 20, 2021, the Pennsylvania Department of Agriculture (PDA) announced that, beginning October 25, 2021, the Spotted Lanternfly Compliance and Enforcement Team will begin auditing businesses in Cumberland and York counties for compliance with spotted lanternfly permits and inspection records. According to the announcement, businesses receiving notice of non-compliance will have 30 days to become compliant before being subject to any financial penalty.
Industrial Hemp: CBD Retailer Sues PayPal for Suspending Account
On October 25, 2021, cannabidiol (CBD) product retailer Friends NYC filed a complaint in the U.S. District Court for the Eastern District of New York against PayPal Holdings Inc. (PayPal) for PayPal’s suspension of its account, for which PayPal cited Friends NYC’s “sale of narcotics, steroids, drug paraphernalia, certain controlled substances, or other products that present a risk to consumer safety” in violation of PayPal’s “Acceptable Use Policy.” Friends NYC v. PayPal Holdings, Inc., No. 1:21-cv-05920. According to the complaint, PayPal suspended Friends NYC’s accounts in December 2020, froze $9,000 of Friends NYC’s assets and later withdrew $3, 958 for “damages caused by Acceptable Use Policy violation,” ultimately terminating the account. The complaint alleges breach of contract, interference with possession of funds, and deprivation of property without due process. See also ALWR—Dec. 5, 2019, “Federal Reserve Issues Statement on Hemp Banking” and ALWR—June 6, 2019, “USDA Provides Legal Opinion on Hemp.”
Agricultural Labor: OSHA Seeks Comment on Work-Related Hazardous Heat
On October 27, 2021, the Occupational Safety and Health Administration (OSHA) published an advance notice of proposed rulemaking (ANPRM) in the Federal Register titled, “Heat Injury and Illness Prevention in Outdoor and Indoor Work Settings” (86 FR 59309). Through the ANPRM, OSHA announced that it aims to develop a standard for hazardous heat in the workplace and seeks comment on the scope of hazardous heat in work settings and the efficacy of various controls and interventions to prevent heat-related illness and injury. The comment period for the ANPRM closes December 27, 2021.
International Trade: Customs and Border Protection Detain Tomatoes from Two Mexican Producers Due to Forced Labor
On October 21, 2021, the U.S. Customs and Border Protection (CBP) announced its issuance of a Withhold Release Order (WRO) against Mexican tomato farms Agropecuarios Tom S.A. de C.V., Horticola S.A de C.V., and their subsidiaries due to evidence of forced labor on the farms. According to the announcement, CBP will detain all fresh tomatoes from the farms arriving at all U.S. ports of entry. CBP states that, during its investigation, it found at least five of the International Labor Organization’s indicators of forced labor: abuse of vulnerability, deception, withholding of wages, debt bondage, and abusive working and living conditions. CBP specified that the WRO only applies to fresh tomatoes from the identified farms and their subsidiaries.
Agricultural Transportation: Farm Vehicle CDL Exemption Bill on Way to Governor
On September 28 and October 27, 2021, the Pennsylvania State Senate and House respectively passed SB 725, which allows a person 18 years of age or older holding a standard Class C driver’s license to operate a farm vehicle or combination with a combined weight over 26,000 pounds. The bill was introduced to clarify that no other additional license is required to operate such a vehicle after it was discovered the Pennsylvania State Police were operating under a different interpretation of existing law. The bill will now be transmitted to the Office of the Governor.
CENTER FOR AGRICULTURAL AND SHALE LAW (CASL) PROGRAMS & RESOURCES
Agricultural Law Podcast:
Special Episode #12. Cell Cultured Food Regulations (Nov. 1, 2021).
Weekly Episode #197. Biofuel Group Seeks Supreme Court Review of E15 Vacatur & R-CALF Has Standing to Continue Beef Checkoff Challenge (Oct. 15, 2021).
Weekly Episode #196. Supreme Court Petition Challenges California’s Proposition 12 & New Mexico District Court Vacates Navigable Waters Protection Rule (Oct. 5, 2021).
Special Episode #11. Bioengineered Food & Genetically Modified Salmon (Oct. 1, 2021).
Penn State Extension, Carbon Markets in Pennsylvania, presenter-CASL’s Brook Duer, November 10, 2021 at 11:30 am.
Berks Agricultural Resource Network (BARN), Agritourism Law Event, presenter—CASL’s Brook Duer, November 9, 2021 at 5:30 pm.
Penn State News, Research, & Resources:
Study Explores How Climate Change May Affect Rain in U.S. Corn Belt (Oct. 25, 2021).
Erie Researchers Identify New Threat to American Chestnut Trees (Oct. 25, 2021).
Agricultural Law/Policy Resources of Interest:
U.S. House Select Subcommittee on Coronavirus Crisis, Coronavirus Infections and Deaths Among Meatpacking Workers at Top Five Companies Were Nearly Three Times Higher than Previous Estimates (Oct. 27, 2021).
NALC/Micah Brown, An Intervention: Organization Seeks to Defend Minority Debt Relief Program (Oct. 26, 2021).
UMD/Nicole Cook, Negligent Entrustment Liability for Farm Employers (Oct. 26, 2021).
Washburn School of Law (KS)/Roger A. McEowen, Tax Reporting of Sale Transactions By Farmers (Oct. 27, 2021).
Civil Eats, Is the Pork Industry Using Food Justice to Stall California’s New Animal Welfare Law? (Sept. 27, 2021)
OSU/Peggy Kirk Hall, U.S. House Agriculture Committee Advances Cattle Contract Library and 4 Other Bills (Oct. 28, 2021).
NALC/Samantha Mikolajczyk, Procedures: Standing (Oct. 28, 2021).
Agriculture-Related Legislative Hearings:
U.S. House Select Subcommittee on Coronavirus Crisis, Hybrid Hearing on “How the Meatpacking Industry Failed The Workers Who Feed America” (recorded Oct. 27, 2021).
U.S. House Agriculture Committee, A Hearing to Review the State of the Livestock Industry: video and written testimony (recorded Oct. 7, 2021).
- DTN/Ag Policy Blog/Chris Clayton, Congress Looking Again at Cattle Markets, Comprehensively(Oct. 6, 2021).
- DTN/Progressive Farmer, Increase Processing to Offset Packers(Oct. 7, 2021).
Weekly Featured Graphics:
U.S. House Select Subcommittee on Coronavirus Crisis, Coronavirus Infections and Deaths Among Meatpacking Workers at Top Five Companies Were Nearly Three Times Higher than Previous Estimates (Oct. 27, 2021). Note: “FERN” stands for Food and Environment Reporting Network.
AGENCY PRESS RELEASES—STATE/FEDERAL
PENNSYLVANIA DEPARTMENT OF AGRICULTURE PRESS RELEASES:
U.S. DEPARTMENT OF AGRICULTURE (USDA) PRESS RELEASES:
USDA Opens Registration for the 2022 Agricultural Outlook Forum (Oct. 27, 2021).
USDA Appoints New Members to Science and Research Advisory Board (Oct. 28, 2021).
USDA AGENCY PRESS RELEASES:
Agricultural Research Service
Animal and Plant Health Inspection Service
APHIS Seeks Comments on a Pest Risk Assessment and Risk Management Document for Imports of Fresh Turmeric (Curcuma longa) Rhizome from Samoa into the United States (including U.S. Territories) (Oct. 26, 2021).
APHIS Updates Federal Domestic Soil Quarantines Map (Oct. 28, 2021).
Economic Research Service
Food and Nutrition Service
USDA Funding Enhances Nutrition Assistance Program in CNMI (Oct. 26, 2021).
USDA Announces Approval of D-SNAP for New Jersey Disaster Areas (Oct. 28, 2021).
Food Safety and Inspection Service
Foreign Agricultural Service
McGovern Dole Food for Education Program—FY 2020 Report to Congress (Oct. 25, 2021).
Private Exporters Report Sales Activity for China and Mexico (Oct. 26, 2021).
National Agricultural Statistics Service
National Institute of Food and Agriculture
NIFA Invests Nearly $25M in Farm and Ranch Stress Assistance Network (Oct. 27, 2021).
NIFA Invests Over $50M for Beginning Farmer and Rancher Development (Oct. 27, 2021).
Natural Resources Conservation Service
Occupational Safety and Health Administration
86 FR 59309 Proposed Rule—Comment Period: “Heat Injury and Illness Prevention in Outdoor and Indoor Work Settings” (Oct. 27, 2021).
PENNSYLVANIA EXECUTIVE AGENCIES (Pa. Bulletin Vol. 51, No. 44—Oct. 30, 2021):
Delaware River Basin Commission
51 Pa.B. 6778 Notice: “Virtual Public Hearing and Virtual Public Business Meeting [Wed., Nov. 10, 2021].”
Department of Agriculture
51 Pa.B. 6778 Notice: “Referendum on Continuation of the Pennsylvania Wine Marketing and Research Program.”
Department of Environmental Protection
51 Pa.B. 6780 Notice: “Applications For NPDES and WQM Permits Under The Clean Streams Law And Federal Clean Water Act.”
51 Pa.B. 6846 Notice: “Availability of Technical Guidance [Laboratory Reporting Instructions for Total Coliform and E. coli Bacteria in Public Water Systems].”
51 Pa.B. 6776 Proposed Rulemaking: “Calculation of Soil Lead Medium-Specific Concentrations; Advance Notice of Proposed Rulemaking.”
51 Pa.B. 6845 Notice: “Aggregate Advisory Board Meeting [Wed., Nov. 3, 2021].”
Department of Transportation
51 Pa.B. 6885 Notice: “Findings [Impacts of Proposed Projects].”
Environmental Quality Board
51 Pa.B. 6777 Proposed Rulemaking: “Acceptance of Rulemaking Petition for Study.”
Susquehanna River Basin Commission
51 Pa.B. 6889 Notice: “Grandfathering Registration Notice.”
51 Pa.B. 6889 Notice: “Projects Approved for Consumptive Uses of Water.”
51 Pa.B. 6891 Notice: “Telephonic Public Hearing; Correction.”
Legislation in Second Chamber
HB 598 “An Act amending the act . . . entitled “An act encouraging landowners to make land and water areas available to the public for recreational purposes by limiting liability in connection therewith. . . .” Referred to ENVIRONMENTAL RESOURCES AND ENERGY [Senate] (Oct. 26, 2021).
SB 251 “An Act amending Title 3 (Agriculture) of the Pennsylvania Consolidated Statutes, repealing provisions relating to fertilizer; providing for fertilizer; in soil and plant amendment, further providing for disposition of funds; in seed, further providing for disposition of funds; establishing the Agronomic Regulatory Account within the General Fund; imposing duties on the Department of Agriculture; and making conforming amendments.” Laid on the table [House] (Oct. 27, 2021).
SB 717 “An Act amending . . . the Environmental Hearing Board Act, further providing for definitions and for jurisdiction.” Laid on the table (Pursuant to Senate Rule 9) [Senate] (Oct. 25, 2021).
SB 718 “An Act amending . . . the Environmental Hearing Board Act, further providing for Environmental Hearing Board.” .” Laid on the table (Pursuant to Senate Rule 9) [Senate] (Oct. 25, 2021).
SB 919 “An Act authorizing electric distribution companies to establish local solar programs; and providing for solar renewable energy credits and for powers and duties of the Pennsylvania Public Utility Commission.” Referred to CONSUMER PROTECTION AND PROFESSIONAL LICENSURE [Senate] (Oct. 25, 2021).
SB 725 “An Act amending Title 75 (Vehicles) of the Pennsylvania Consolidated Statutes. . . . [Clarification of Legislative Intent – Exemption for Farmers from CDL Requirements]” Signed in Senate [Senate] (Oct. 27, 2021).
H Res 148 “A Resolution urging the [EPA] to exercise its authority under . . . the Clean Air Act to revise the nationwide Renewable Fuel Standard (“RFS”) updating volume mandates to provide relief to refiners in Pennsylvania, the East Coast and elsewhere . . . .” Reported as committed [House] (Oct. 25, 2021).
HB 2008 “An Act amending . . . the Dog Law, in short title and definitions, further providing for definitions; in dangerous dogs, further providing for court proceedings, certificate of registration and disposition and for requirements; and making an editorial change.” Referred to AGRICULTURE AND RURAL AFFAIRS [House] (Oct. 25, 2021).
HB 2035 “An Act amending . . . the Medical Marijuana Act, adding and amending provisions relating to farmer-growers by, in preliminary provisions, further providing for definitions. . . in medical marijuana controls, further providing for electronic tracking, providing for farmer-growers and further providing for storage and transportation. . . .” Referred to HEALTH [House] (Oct. 29, 2021).
FEDERAL EXECUTIVE AGENCIES (Federal Register Oct. 25–29, 2021 ):
86 FR 58859 Notice: “Submission for OMB Review; Comment Request [Farm Service Agency: American Rescue Plan Act of 2021 Section 1005 Loan Payment]” (Oct. 25, 2021).
86 FR 59360 Notice: “Solicitation of Nominations for Membership on the Equity Commission Advisory Committee and Equity Commission Subcommittee on Agriculture Extension of Application Period” (Oct. 27, 2021).
86 FR 59694 Notice: “Plant Variety Protection Board Meeting on December 14, 2021” (Oct. 28, 2021).
86 FR 59976 Notice: “Submission for OMB Review; Comment Request [National Agricultural Statistics Service (NASS): 2020 Local Foods Marketing Practices Survey—Substantive Change]” (Oct. 29, 2021).
86 FR 59976 Notice: “Submission for OMB Review; Comment Request [Forest Service: Special Use Administration]” (Oct. 29, 2021).
Animal and Plant Health Inspection Service
86 FR 59360 Notice—Comment Period: “Notice of Availability of a Pest Risk Analysis for the Importation of Fresh Turmeric (Curcuma longa) Rhizome From Samoa Into the United States (Including Territories)” (Oct. 27, 2021).
Delaware River Basin Commission
86 FR 59156 Notice: “Notice of Public Hearing and Business Meeting; November 10 and December 8, 2021” (Oct. 26, 2021).
86 FR 58829 Proposed Rule: “Notification of Regional Roundtable Discussions Regarding ‘Waters of the United States’” (Oct. 25, 2021).
Environmental Protection Agency
86 FR 58910 Notice—Comment Period: “Information Collection Request Submitted to OMB for Review and Approval; Comment Request; Pesticide Environmental Stewardship Program Annual Measures Reporting (Renewal)” (Oct. 25, 2021).
86 FR 58906 Notice—Comment Period: “Notice of Receipt of Requests To Voluntarily Cancel Certain Pesticide Registrations and Amend Registrations To Terminate Certain Uses” (Oct. 25, 2021).
86 FR 59162 Notice: “Pesticide Program Dialogue Committee; Notice of Charter Renewal” (Oct. 26, 2021).
86 FR 59380 Notice—Comment Period: “Pesticide Product Registration; Receipt of Applications for New Uses” (Oct. 27, 2021).
86 FR 60030 Notice: “Dicloran (DCNA); Amendments To Terminate Uses for Certain Pesticide Registrations” (Oct. 29, 2021).
86 FR 60029 Notice—Comment Period: “Pesticide Product Registration; Receipt of Applications for New Active Ingredients (October 2021)” (Oct. 29, 2021).
86 FR 60036 Notice—Comment Period: “Pesticide Registration Review; Draft Human Health and/or Ecological Risk Assessments for Several Pesticides; Notice of Availability” (Oct. 29, 2021).
86 FR 60028 Notice—Comment Period: “Pesticide Registration Review; Pesticide Dockets Opened for Review and Comment; Notice of Availability” (Oct. 29, 2021).
Federal Emergency Management Agency
86 FR 59745 Notice—Comment Period: “Request for Information on the National Flood Insurance Program Floodplain Management Standards for Land Management and Use, and an Assessment of the Program’s Impact on Threatened and Endangered Species and Their Habitats; Public Meetings” (Oct. 28, 2021).
Fish and Wildlife Service
86 FR 58831 Proposed Rule—Comment Period: “Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for the Coastal Distinct Population Segment of the Pacific Marten” (Oct. 25, 2021).
86 FR 58922 Notice—Comment Period: “Agency Information Collection Activities; Captive Wildlife Safety Act” (Oct. 25, 2021).
86 FR 59353 Proposed Rule—Comment Period: “Endangered and Threatened Wildlife and Plants; Regulations for Listing Endangered and Threatened Species and Designating Critical Habitat” (Oct. 27, 2021).
86 FR 59346 Proposed Rule—Comment Period: “Endangered and Threatened Wildlife and Plants; Regulations for Designating Critical Habitat” (Oct. 27, 2021).
86 FR 59414 Notice—Comment Period: “Agency Information Collection Activities; Submission to the Office of Management and Budget for Review and Approval; Urban Bird Treaty Program Requirements” (Oct. 27, 2021).
86 FR 59953 Proposed Rule—Comment Period: “Endangered and Threatened Wildlife and Plants; Revision to the Nonessential Experimental Population of the Mexican Wolf” (Oct. 29, 2021).
U.S. Customs and Border Protection
86 FR 59407 Notice—Comment Period: “Declaration of Free Entry for Returned American Products (CBP Form 3311)” (Oct. 27, 2021).
U.S. HOUSE AGRICULTURE COMMITTEE:
H.Res.745 “Expressing support for the designation of the week of October 24, 2021, to October 31, 2021, as ‘BatWeek.’” Referred to the House Committee on Agriculture (Oct. 25, 2021).
H.R.5688 “To establish the People-Centered Assistance Reform Effort Commission, to improve the social safety net and increase social mobility by increasing access to resources which address the underlying causes of poverty.” Referred to the Subcommittee on Railroads, Pipelines, and Hazardous Materials (Oct. 25, 2021).
H.R.2989 “Financial Transparency Act of 2021.” Received in the Senate and Read twice and referred to the Committee on Banking, Housing, and Urban Affairs (Oct. 26, 2021).
H.R.5724 “To authorize a White House Conference on Food, Nutrition, Hunger, and Health, and for other purposes.” Referred to the Committees on Agriculture and Rules (Oct. 26, 2021).
H.R.5749 “To impose natural gas trading limits during emergencies.” Referred to the House Committee on Agriculture (Oct. 27, 2021).
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 Nov. 5, 2021 (Oct. 28, 2021).
U.S. SENATE COMMITTEE AGRICULTURE, NUTRITION, AND FORESTRY:
S.3064 “A bill to authorize a White House Conference on Food, Nutrition, Hunger, and Health, and for other purposes.” Read twice and referred to the Committee on Agriculture, Nutrition, and Forestry (Oct. 26, 2021).
Top #AgLaw HotLinks Oct. 25–29, 2021
Federal Reserve: Observations on the Ag Economy—October 2021, Univ. of Ill. Farm Policy News
Ballooning Fertilizer Prices and Production Cost Considerations Gain Scrutiny, Univ. of Ill. Farm Policy News
Is There a Constitutional Right to Food? Mainers to Decide, Associated Press
RIPE100 Program Rollout Cost Would Be ‘Modest’, Delta Farm Press
Cattle Contract Bill Is First Market Reform to Win House Panel Backing, Successful Farming
Subscribe to the Pennsylvania Farm Employers’ Listserv (PFEL), an email networking and resource-sharing group about human resources topics exclusively for agricultural operations and producers, by sending an email with “subscribe” in the subject line to [email protected].
Audry Thompson—Research Assistant
Brook Duer—Staff Attorney