Ohio Agricultural Law Blog--The Ag Law Harvest

Friday, November 02nd, 2018
Evin Bachelor, Law Fellow, Agricultural and Resource Law Program

Written by: Evin Bachelor, Law Fellow, and Ellen Essman, Sr. Research Associate

We’re back from the American Agricultural Law Association’s 2018 symposium, which was held in Portland, Oregon this year.  We had the chance to hear from lawyers and experts from across the nation on various legal issues facing agriculture.  Stay tuned to the Ag Law Blog for an update on what we learned at the symposium, but first, here’s the latest in agricultural law news:

Vote to designate watersheds in distress tabled by Ohio Soil and Water Conservation Commission.  As recently reported in the Ag Law Blog, the Ohio Soil and Water Conservation Commission held a meeting this week to discuss whether to designate certain sub-watersheds in the Western Lake Erie Basin as “in distress.”  Such designation would trigger additional management and reporting requirements on farmers in affected watersheds.  The Commission voted 4-3 to table the discussion and wait for the Joint Committee on Agency Rule Review (JCARR) to examine the Ohio Department of Agriculture’s proposed rule changes next month.  This week’s vote maintains the status quo without extending the “in distress” designation to other watersheds.

FDA releases two FSMA draft guidance documents.  The Food and Drug Administration recently released draft guidance documents explaining how to follow rules under the Food Safety Modernization Act (FSMA).  One document, titled “Guide to Minimize Food Safety Hazards of Fresh-cut Produce,” provides guidance on how to follow the Preventive Controls Rule under FSMA.  “Fresh-cut produce,” is defined as “any fresh fruit or vegetable or combination thereof that has been physically altered from its whole state after being harvested from the field without additional processing.”  The guidance would affect manufacturers, processors, packers, and holders of fresh-cut produce.  The document covers current good manufacturing practices, as well as “new requirements for hazard analysis and risk-based preventive controls.”  The draft guidance document, in addition to information on how to submit a comment on the guidance, is available here

The second draft guidance document is titled “Standards for the Growing, Harvesting, Packing, and Holding of Produce for Human Consumption: Guidance for Industry.”  This document provides guidance on how to follow FSMA’s Produce Safety Rule.  The guidance would affect produce farms.  The guidance covers personnel qualifications and training, health and hygiene practices, biological soil amendments, contamination from domesticated and wild animals, suggestions for practices during the growing, harvesting, packing, and holding of produce, sanitation of equipment, recordkeeping on produce farms, and other topics.  According to a press release about the two guidance documents, FDA will be holding a series of four public meetings at various places around the U.S. to discuss the second draft guidance document with those affected.  FDA will be announcing the details about the meetings in the Federal Register soon.

It is important to remember that these are draft guidance documents.  Furthermore, guidance documents are just that—guidance.  In other words, the documents are there as suggestions on how to follow rules, and “do not establish legally enforceable responsibilities.”

EPA renews dicamba registration for cotton and soybeans, and updates labels.  On October 31, 2018, the United States Environmental Protection Agency (EPA) shared its decision on changes to applying dicamba, the much discussed herbicide.  EPA renewed the herbicide’s registration until December 20, 2020 for application to growing (what EPA terms “over-the-top”) dicamba-resistant cotton and soybean plants. 

Below is EPA’s list of label alterations to dicamba products for the 2019-2020 growing season:

  • Two-year registration (until December 20, 2020)
  • Only certified applicators may apply dicamba over the top (those working under the supervision of a certified applicator may no longer make applications) 
  • Prohibit over-the-top application of dicamba on soybeans 45 days after planting and cotton 60 days after planting
  • For cotton, limit the number of over-the-top applications from 4 to 2 (soybeans remain at 2 OTT applications)
  • Applications will be allowed only from 1 hour after sunrise to 2 hours before sunset
  • In counties where endangered species may exist, the downwind buffer will remain at 110 feet and there will be a new 57-foot buffer around the other sides of the field (the 110-foot downwind buffer applies to all applications, not just in counties where endangered species may exist)
  • Clarify training period for 2019 and beyond, ensuring consistency across all three products (Xtendimax with Vapor Grip Technology, Engenia Herbicide, DuPont FeXapan Herbicide)
  • Enhanced tank clean out instructions for the entire system
  • Enhanced label to improve applicator awareness on the impact of low pH’s on the potential volatility of dicamba
  • Label clean up and consistency to improve compliance and enforceability

EPA’s press release is available here.  More information on dicamba registration for resistant cotton and soybeans is available here

Judge reduces jury verdict against Bayer’s Monsanto.  As we predicted in a previous edition of The Harvest, Bayer’s Monsanto quickly challenged a quarter billion dollar verdict granted by a San Francisco jury to a plaintiff who alleged that Monsanto’s Roundup weed killer caused his cancer.  Monsanto asked the judge to reconsider the jury’s verdict, and on Monday, October 22nd, the judge reduced the punitive damages portion of the jury verdict from $250 million to $39.25 million.  The judge accepted the jury’s finding that Monsanto acted with malice, but said that the evidence did not justify a quarter billion dollar award.  The judge did uphold the $39.25 million compensatory damages verdict.  In total, the plaintiff would receive a $78.5 million award.  Just this week, the plaintiff accepted the reduction in the award, saying that he will not ask the judge to reconsider the decision on damages.  However, the litigation seems likely to continue, so stay tuned to the Ag Law Blog for more updates about the glyphosate and Roundup lawsuits.

Blockchain: the future of information sharing?  We keep hearing about Blockchain technology, but what is it?  Blockchain is a digital system that allows users to securely transfer information and money without an intermediary to facilitate the transfer.  The transfers are recorded and timestamped, and the information contained in the “blocks” cannot be modified without the agreement of a majority of network users.  The system is decentralized in nature, meaning that the information is not stored in one location but is rather is stored on servers across the globe.  This makes the system more secure and less prone to modification because no single user can control the blockchain.  Its early uses were for digital cryptocurrencies like Bitcoin, but its uses have expanded into information.  The system has a potential in almost every sector of the economy, agriculture included.  For example, Walmart announced plans to utilize blockchain to quickly track products like produce all the way from the ground to the consumer.  By tracking information on foods like produce, companies like Walmart hope to be able to quickly determine sources of contamination in its food supply.  This would not only be a way to save lives, but to also not have to waste produce that was not contaminated.  For more information on Blockchain, here is a webinar from the National Agricultural Law Center that goes more in depth on what blockchain is, how it works, and how it can be utilized to help agriculture.

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