The Ag Law Harvest
Happy Friday! It's time for another Ag Law Harvest and in this week's edition we explore landmark court rulings, pending lawsuits, and newly enacted laws that affect agriculture and the environment from around the country.
USDA announces $92.2 million in grants under the Local Agriculture Market Program. The USDA announced last week that it will be funding Local Agriculture Market Program (LAMP) grants through the Farmers Market program as part of the USDA’s Pandemic Assistance for Producers Initiative. Through these grants, the USDA hopes to support the development and growth of direct producer-to-consumer marketing and boost local and regional food markets. $76.9 million will be focused on projects that support direct-to-consumer markets like farmers markets and community supported agriculture. $15.3 million will fund public-private partnerships that will build and strengthen local and regional food markets. All applications must be submitted electronically through www.grants.gov. More information can be found on the following webpages: Farmers Market Promotion Program, Local Food Promotion Program, or Regional Food System Partnerships.
Mexico Supreme Court Rules in favor of U.S. Potato Growers. On April 28, 2021, Mexico’s highest court overturned a lower court’s decision preventing the Mexican government from implementing regulations to allow for the importation of U.S. potatoes. The ruling comes after nearly a decade of legal battles between Mexican potato growers and their government. Beginning in 2003, Mexico restricted U.S. potato imports but then lifted the restrictions in 2014, allowing U.S. potatoes full access to the Mexican market. Shortly after lifting the restrictions, the National Confederation of Potato Growers of Mexico (CONPAPA) sued its government claiming that Mexican regulators have no authority to determine if agricultural imports can enter the country. Since the filing of the lawsuit, the U.S. has been bound by the 2003 restrictions on U.S. potatoes entering the Mexican market. Mexico’s Supreme Court ultimately rejected CONPAPA’s argument and ruled that the Mexican government does have the authority to issue regulations about the importation of agricultural and food products, including U.S. potatoes. Mexico represents the third largest export market for U.S. potatoes, making this a landmark decision for U.S. potato farmers.
Indiana enacts new wetlands law. Indiana governor, Eric Holcomb, has approved a new controversial wetlands law. The new law amends the requirements for permits and restoration costs for “wetland activity” in a state regulated wetland (federally protected wetlands are excluded). Under Senate Bill 389, permits are no longer required to conduct activity in Class I wetlands, some Class II wetlands, and certain farmland. In Indiana, Class I wetlands are either: (a) at least 50% disturbed or affected by human activity; or (b) support only minimal wildlife or hydrological function. Class III wetlands are minimally disturbed by human activity and can support more than minimal wildlife or hydrologic function. Class II wetlands fall somewhere in the middle. Supporters of the law argue that the changes will reduce the cost to landowners and farmers for conducting activity in wetlands that only provide nominal environmental benefits. Opponents of the law argue otherwise. Some environmental groups believe that wetlands, whether they can support more than minimal wildlife or not, provide profound economic benefit by reducing the cost to citizens for water storage and water purification. Additionally, environmental groups argue that the subsequent loss of wetlands from this law will greatly increase flooding and erosion and reduce Indiana’s diverse wildlife. Some even suggest that this law is nothing more than a subsidy for the building and housing development industry. Senate Bill 389 became law on April 29, 2021, and has a retroactive effective date of January 1, 2021.
USDA being sued for promotion of meat and dairy industry. Three physicians have filed a lawsuit against the USDA in a federal court in California. The doctors, part of the Physicians Committee for Responsible Medicine (PCRM), argue that some of the USDA’s new 2020-2025 Dietary Guidelines for Americans, issued last December, contradict current scientific and medical knowledge. PCRM believes that the USDA is acting out of its interests in the dairy and meat industry rather than the health interests of U.S. residents. For example, PCRM argues that the USDA’s statement suggesting that more individuals would benefit by increasing their intake of dairy contradicts scientific evidence that increased dairy intake can increase the chances of prostate cancer and that 1 in 4 Americans is lactose intolerant. PCRM seeks a court order requiring the USDA to delete dairy promotions, avoid equating protein with meat, and eliminate deceptive language hiding the ill effects of consuming meat and dairy products. In an email to the Washington Post, a spokesperson for the USDA, claims that the dietary guidelines are just that – guidelines. The USDA argues that the dietary guidelines are meant to help provide guidance based on the best available science and research and provide many alternatives for people based on an individual’s preferences and needs.
Sesame added to the list of major allergens. On April 23, 2021, President Biden signed into law the Food Allergy Safety, Treatment, Education and Research (FASTER) Act. The law requires that sesame be added to the list of major allergens and be disclosed on food labels. Up until this law was enacted, sesame was allowed to be labeled as a “natural flavor” or a “natural spice.” With the new law, sesame, in any form, must be labeled as an allergen on packaged foods. Food manufacturers have until 2023 to add sesame allergen statements to their labels. This is the first time since 2006 that a new allergen has been added to the Food Allergen and Consumer Protection Act (FALCPA). Sesame joins peanuts, tree nuts, fish, shellfish, soy, dairy, eggs, and wheat as the FDA’s list of allergens that require specific labeling.
Florida passes updated Right to Farm Law. Florida Governor, Ron DeSantis, signed into law Florida’s new and improved Right to Farm Act. The new law adds agritourism to the definition of “farm operations” so that agritourism is also protected under Florida’s Right to Farm Law. Additionally, Florida lawmakers have expanded the protection given to farmers under the new law by defining the term nuisance. Under Florida’s Right to Farm Law, nuisance is defined as “any interference with the reasonable use and enjoyment of land, including, but not limited to, noise, smoke, odors, dust, fumes, particle emissions, or vibrations.” Florida’s definition of nuisance also includes all claims brought in negligence, trespass, personal injury, strict liability, or other tort, so long as the claim could meet the definition of nuisance. This protects farmers from individuals disguising their nuisance claim as a trespass claim. The importance of defining nuisance to include claims such as trespass can best be demonstrated by an ongoing federal lawsuit in North Carolina. In that case, Murphy-Brown, LLC and Smithfield Foods, Inc. are being sued for having ownership in a hog farm that caused odors, dust, feces, urine, and flies to “trespass” onto neighboring properties. North Carolina’s Right to Farm Law only protects farmers from nuisance claims, not trespass claims. Although Murphy-Brown and Smithfield argue that the neighbors are disguising their nuisance claim as a trespass claim, the federal judge is allowing the case to move forward. The judge found that farmers are protected from nuisance claims, not trespass claims and even if the trespass could also be considered a nuisance, the neighbors to the hog farm are entitled to seek compensation for the alleged trespass.