Penn State Law

The Agricultural Law Brief | March 2019

The Agricultural Law Brief
The Agricultural Law Brief  APRIL 2019
A research and education program of the Center for Agricultural and Shale Law

Recent Legal Developments
Food Labeling: North Dakota and Arkansas Pass Laws to Address the Labeling of Cell-Cultured Food Products

In March 2019, two states passed legislation that will prohibit the labeling of cell-cultured protein as “meat.” Cultured food products can be made from cells collected from animals and are intended to resemble conventional meat products, including poultry and seafood. On March 12, 2019, North Dakota Governor Doug Burgum signed legislation which defines “meat” as the “edible flesh of an animal born and harvested for the purpose of human consumption.” (p.2) The North Dakota law specifies that cell-cultured products should not be advertised or packaged similarly to meat food products and must be labeled as a “cell cultured protein food product.” (p.2). Similarly, on March 18, 2019, Arkansas Governor Asa Hutchinson signed into law “Truth in Labeling” legislation, the stated purpose of which is to prevent public deception regarding a food product’s origin (HB 1407) (p.1).  Food products defined by the Arkansas legislation include beef, livestock, pork, poultry, and rice. The definition of meat specifically excludes synthetic products derived from plants, insects, or from products grown in a lab (p.2). The new law also focuses on rice and prohibits the labeling of a product as rice unless the product is derived from the plant species Oryza sativa L., Oryza glaberrima, or various wild rice species (p.3). Failure to follow Arkansas’ new food labeling law could result in a civil penalty of up to $1,000 for each violation.

Ag-Gag: Iowa Governor Signs New Legislation to Criminalize Agricultural Production Facility Trespass

On March 14, 2019, Iowa Governor Kim Reynolds signed legislation creating the criminal offense of agricultural production facility trespass. The new law, Agricultural Production Facility Trespass (SF 519), allows for the prosecution of individuals who use deceptive means to gain access to an agricultural production facility with the intent of causing physical or economic harm. Persons who violate this law will be charged with a serious misdemeanor for a first offense and with an aggravated misdemeanor for additional incidents. This bill was passed in response to an order issued by the U.S. District Court for the Southern District of Iowa on January 9, 2019, striking down a somewhat similar Iowa law (Animal Legal Defense Fund v. Reynolds, 4:17-cv-00362–JEG-HCA). In that opinion, the court determined that Iowa’s Agricultural Production Facility Fraud law (Iowa Code § 717A.3A) violated the First Amendment of the U.S. Constitution. While SF 519 focuses on deception and the intent to cause harm, Iowa Code § 717A.3A prohibited a person from obtaining access to an agricultural production facility by false pretenses. According to the court, Iowa failed to show evidence that Iowa Code § 717A.3A was “necessary to protect perceived harms to property and biosecurity.” On February 21, 2019, Iowa requested a stay of the court’s order pending their appeal. The court, however, ruled that a stay would not serve the public interest and denied the request.

Right to Farm Laws: West Virginia Governor Approves Right to Farm Amendment

On March 27, 2019, West Virginia Governor Jim Justice approved legislation amending the state’s right to farm law (S.B. 393). West Virginia’s previous version of the law stated that agricultural conduct would not be “deemed adverse” to other uses of neighboring lands, but it did not provide nuisance protections for the agricultural operations. S.B. 393, or Preservation of Agricultural Production, provides a definition for “agricultural operation” and includes amended definitions for “agriculture” and “agricultural land.” The amendments limit who is permitted to file a nuisance action against an agricultural operation and provides protections to agricultural operations in specific instances.  Furthermore, the new legislation will prohibit state and local agencies from taking certain legal actions against farm operations and will exempt operations from some municipal requirements. The amended law also will make persons who bring a nuisance action against a protected agricultural operation liable for the operation’s legal costs in defending the action. According to West Virginia Commissioner of Agriculture Kent Leonhardt, the purpose of the law is to protect agricultural operations from nuisance litigation. In addition, the commissioner stated that this law was passed as a response to nuisance lawsuits filed against swine facilities in North Carolina. For more information on one of these nuisance actions filed against a swine operation in North Carolina, see the Agricultural Law Brief for May 2018.

Biotechnology: FDA Authorizes the Importation of Genetically-Modified Salmon Eggs into the United States for Food Production

On March 8, 2019, the U.S. Food & Drug Administration (FDA) lifted Import Alert 99-40 which banned all imports of genetically engineered salmon created using the AquAdvantage® technology. AquaBounty Technologies developed AquAdvantage salmon by integrating the Chinook salmon growth hormone gene into the genome of the Atlantic salmon. This modification decreases salmon growth rate from 28-36 months to 16-18 months. FDA granted approval to AquaBounty Technologies to produce the AquAdvantage salmon for human consumption in November 2015. In December 2015, President Obama signed the 2016 Consolidated Appropriations Act (the Act) which expressly prohibited the import of AquAdvantage salmon. Under the conditions of the Act, AquAdvantage salmon could not be imported until FDA mandated final labeling guidelines for consumers. To comply with the Act, FDA issued Import Alert 99-40, preventing genetically-engineered salmon from coming into the United States. In now lifting this Import Alert, FDA Commissioner Gottlieb stated that FDA no longer has the authority over labeling with the enactment of the National Bioengineered Food Disclosure Standard (BE Disclosure Law). Pursuant to the BE Disclosure Law, USDA has developed a mandatory national labeling standard for BE foods or foods with BE ingredients. As a result, FDA lifted the ban and AquAdvantage Salmon eggs can now be imported into the United States. AquAdvantage salmon will be raised at a land-based contained facility located near Albany, Indiana, which has been operated by AquaBounty Technologies since April 2018.

Food Policy: New York City Mayor Announces “Meatless Mondays” for Public School Meals

On March 11, 2019, New York City Mayor Bill de Blasio announced that beginning in the 2019-2020 school year, all of the city’s public schools will participate in the “Meatless Mondays” program.  Accordingly, on Mondays, New York City public schools will serve only vegetarian options to students for breakfast and lunch. This move is an expansion of the 2018 pilot program initiated for 15 schools located in Brooklyn. According to the City’s press release, this plan will help reduce greenhouse gas emissions from animal agriculture and meat production. In addition, “Meatless Mondays” is intended to encourage healthy eating habits to combat rising child obesity rates. Prior to finalizing the new menu, the Office of Food and Nutrition Services will consult with students. Beginning with the 2017-2018 school year, all New York City schools have provided breakfast and lunch to their more than one million students for free. Meatless Mondays are promoted by The Mondays Campaign in conjunction with the Center for a Livable Future at the Johns Hopkins Bloomberg School of Public Health. According to The Mondays Campaign, Meatless Mondays originally began in the United States during World War I as a means of promoting the conservation of key products. The effort to promote Meatless Mondays was reinitiated with a public health purpose by the Center for a Livable Future in 2003.

Contributors Include:

Professor Ross Pifer, CASL Director
Jacqueline Schweichler, Staff Attorney
Sean High, Staff Attorney
Chloe Marie, Research Specialist                                                                                              


Resources

The Center for Agricultural and Shale Law provides interested individuals with relevant and timely agricultural and shale law updates through various media sources. These sources include:

Agricultural Law Weekly Review
Published every Thursday, the Penn State Agricultural Law Blog presents the Agricultural Law Weekly Review, which provides an update of recent, local, state, national, and international legal developments relevant to Pennsylvania agriculture.

Shale Law Weekly Review
Published every Monday, the Penn State Shale Law Blog presents the Shale Law Weekly Review which provides an update of recent, local, state, national, and international legal developments relevant to shale gas.

HotLinks
Published daily on our Twitter account, our AgLaw and ShaleLaw HotLinks provide daily updates on relevant agricultural and shale legal developments. To keep current with these updates, follow us @AgShaleLaw.

CASL Ledger
Published every Friday on our Facebook page, the Friday Recap presents all our research, publications, and presentations from the week.

Agricultural Law and Shale Law Library Guides
Our Library Guides provide in depth information on a large variety of topics in the agricultural and shale law fields. To learn more about these topics or to research one these subjects, check out our website.

Agricultural Law Brief
Published monthly, the Agricultural Law Brief addresses the major legal developments from the past month. Archived versions of the Agricultural Law Brief are available on our website. To subscribe, visit here.


About the Center

The Center for Agricultural and Shale Law conducts research and disseminates information on agricultural and shale law topics. Through its programs, the Center serves a wide variety of stakeholders including agricultural producers, landowners and royalty owners, business professionals, judges, attorneys, legislators, government officials, community groups, and the general public. Center programs are funded in part by the Pennsylvania Department of Agriculture and supported by a multi-year grant from the United States Department of Agriculture National Agricultural Library (an entity within the Agricultural Research Service).


National Agricultural and Food Law Consortium

The Center for Agricultural and Shale Law is one of four members of the National Agricultural and Food Law Consortium which includes The National Agricultural Law Center at the University of Arkansas, The National Sea Grant Law Center at the University of Mississippi School of Law, and The Agricultural and Resource Program at the Ohio State University. Consortium members collaborate to provide objective agricultural law and food law information on national issues such as land-based food, fiber, and energy production systems as well as seafood and marine-based production via aquaculture.

This material is based upon work supported by the National Agricultural Library, Agricultural Research Service, U.S. Department of Agriculture.
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