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Written by:\u00a0 <\/span> Brook Duer\u2014Staff Attorney<\/span> Want to listen to this Weekly Review? Check out the<\/span> <\/span>Penn State Agricultural Law Podcast<\/span><\/a>.\u00a0<\/span><\/p>\n Pesticides\/Herbicides: 5-Year Dicamba Registration Approval Challenged in Parallel Litigation\u00a0<\/span><\/p>\n On December 21, 2020, the identical five entities (referred to collectively herein as the \u201cCenter for Food Safety\u201d) who were successful in June 2020 in having the EPA registrations of three dicamba-containing herbicides <\/span>vacated<\/span><\/a> by the U.S. Court of Appeals for the Ninth Circuit (9th Circuit), filed a <\/span>Petition for Review<\/span><\/a> with the 9th Circuit seeking to have the EPA\u2019s <\/span>October 27, 2020, 5-year registration approvals<\/span><\/a> of three dicamba-containing herbicides again invalidated.\u00a0 The petition alleges that the new registrations have been issued in violation of the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA), as well as other legal grounds.\u00a0 The petition also seeks to prohibit EPA from reversing its long-standing practice, done via a footnote in the October 27 approval decision, of allowing states to impose local restrictions on pesticide registrations and use under Section 24(c) of FIFRA.\u00a0 In addition, on December 23, 2020, the Center for Food Safety also filed a <\/span>Complaint<\/span><\/a> against EPA in the U.S. District Court for the District of Arizona also seeking to have the same October 27, 2020 registration approvals overturned on virtually identical grounds and also seeking equitable relief in the form of compelling EPA to institute a rulemaking process to successfully reverse its long-standing policy to allow states to impose Section 24(c) local restrictions. This is the second legal challenge filed to EPA\u2019s October 27, 2020, 5-year registration approvals of dicamba-containing products. The first was filed in November 2020 by the<\/span> American Soybean Association and Plains Cotton Growers, Inc. and challenges conditions within the approvals but does not seek to invalidate the approvals themselves.\u00a0 <\/span>For more background, see<\/span> <\/span>\u00a0<\/span><\/a>\u00a0<\/span>ALWR\u2014week ending October 30, 2020<\/span><\/a>, \u201cEPA Approves Three Dicamba Products\u2019 Registrations Until December 20, 2025\u201d and <\/span>A<\/span>LWR\u2014week ending November 13, 2020<\/span><\/a>, \u201cFirst Challenge Filed to EPA\u2019s 2021-2025 Dicamba Product Registrations.\u201d\u00a0<\/span><\/p>\n Pesticides\/Herbicides: Monsanto\/Bayer, Plaintiffs Execute $300 Million Settlement Agreement of Non-Target Dicamba Soybean Property Damage Claims<\/span><\/p>\n On December 16, 2020, in pending multi-district litigation in the U.S. District Court for the Eastern District of Missouri captioned <\/span>In Re: Dicamba Herbicides Litigation<\/span>, No. <\/span>1:18-md-02820<\/span><\/a>, Defendant Monsanto Company\/Bayer and the Plaintiffs\u2019 Executive Committee (PEC) entered into the <\/span>Dicamba Herbicides Litigation Soybean Producers Master Settlement Agreement<\/span><\/a>.\u00a0 Pursuant to the agreement, $300 Million is set aside to\u00a0resolve and settle claims arising from commercial soybean crop damage allegedly caused by dicamba application by third parties to dicamba-tolerant soybeans or cotton between 2015-2020.\u00a0 In order to participate, claims filing began on December 29, 2020 and all claims must be filed by May 28, 2021.\u00a0 Public information, filing instructions, relevant documents and the settlement agreement are exclusively available at <\/span>dicambasoybeansettlement.com<\/span><\/a> and nowhere else.\u00a0 As for non-target property damage claims to plants other than commercially produced soybeans, no status of settlement discussions has been released since the announcement by Monsanto\/Bayer of a settlement in June 2020.\u00a0 According to one media source, <\/span>DTN Progressive Farmer<\/span><\/a>, such claims are in the process of settling separately and privately with Monsanto\/Bayer.\u00a0 That information has not been confirmed yet by Monsanto\/Bayer.\u00a0 For more on the background of the settlement, see <\/span>ALWR\u2014week ending June 26, 2020<\/span><\/a>, \u201cBayer Announces Settlement of Glyphosate Exposure and Dicamba Drift Claims.\u201d<\/span><\/p>\n Agricultural Labor: Federal District Court Grants Injunction Against Revised H-2A Minimum Wage Calculation<\/span><\/p>\n On December 23, 2020, the U.S. District Court for the Eastern District of California granted a <\/span>preliminary injunction<\/span><\/a> against the Department of Labor\u2019s (DOL) November 5, 2020 final rule, which modified the minimum wage rate calculation H-2A agricultural guest workers, known as the Adverse Effect Wage Rate (AEWR). The final rule froze the AEWR for two years, abandoned the previous method of calculation tied to DOL\u2019s Farm Labor Survey (FLS) and thereafter implemented a new calculation method effective January 1, 2023, tied to a DOL index of the cost of labor known as the Employment Cost Index (ECI) which does not in fact survey farms and agricultural workers. <\/span>United Farm Workers v. United States Department of Labor<\/span>, No.<\/span> <\/span>1:20-cv-01690-DAD-JLT<\/span><\/a>.\u00a0 For more background, see <\/span>ALWR\u2014week ending November 6, 2020<\/span><\/a>, \u201cDepartment of Labor Modifies H-2A Minimum Wage Calculation\u201d and <\/span>ALWR\u2014week ending December 4, 2020<\/span><\/a>, \u201cUnited Farm Workers File Suit to Enjoin DOL H-2A Minimum Wage Rule.\u201d\u00a0 The court found that the plaintiffs were likely to succeed on the merits of their claim, stating that the final rule failed to justify freezing wages below market rate and failed to analyze its impact on those U.S. workers who the Immigration and Naturalization Act mandates the DOL to protect.\u00a0\u00a0<\/span><\/p>\n Animal Welfare: Ninth Circuit Denies Rehearing Request On Unsuccessful Challenge to California Prop 12\u00a0<\/span><\/p>\n On December 23, 2020, the U.S. Court of Appeals for the Ninth Circuit issued an <\/span>order<\/span><\/a> denying North American Meat Institute\u2019s <\/span>petition<\/span><\/a> for rehearing en banc in <\/span>North American Meat Institute v. Xavier Becerra<\/span>, No. 19-56408, in which the court denied an injunction against California\u2019s Proposition 12.\u00a0 For more information, see <\/span>ALWR\u2014week ending October 23, 2020<\/span><\/a>, \u201cNinth Circuit Upholds Denial of Injunction Against California\u2019s Proposition 12\u201d\u00a0<\/span><\/p>\n Food Safety: FDA Extends Food Traceability Rule Comment Period\u00a0<\/span><\/p>\n On December 18, 2020, the Food and Drug Administration (FDA) posted notice in the Federal Register (<\/span>85 FR 82393<\/span><\/a>) of the reopening and extension of the comment period for the proposed rule, \u201cRequirements for Additional Traceability Records for Certain Foods,\u201d (<\/span>85 FR 59984<\/span><\/a>) originally posted September 23, 2020.\u00a0 The new <\/span>comment period<\/span><\/a> is now open until February 22, 2020, extended from the original January 21, 2020.\u00a0 For more on the proposed rule, see <\/span>ALWR\u2014week ending September 25, 2020<\/span><\/a>, \u201cFDA Proposes Food Traceability Rule.\u201d\u00a0\u00a0<\/span><\/p>\n Food Labeling: FSIS Releases Letter Stating Intent to Address Use of Nitrates\/Nitrites; Will Redefine \u201cCured\u201d and \u201cUncured\u201d<\/span><\/p>\n On December 10, 2020, the U.S. Department of Agriculture (USDA) Food Safety and Inspection Service (FSIS) issued a <\/span>response letter<\/span><\/a> to a <\/span>petition<\/span><\/a> from the Center for Science in the Public Interest and Consumer Reports, on which the agency received seventeen <\/span>comments<\/span><\/a>.\u00a0 The petition requests that the agency prohibit the statements \u201cNo Nitrate or Nitrite Added\u201d and \u201cUncured\u201d on products processed using any source of nitrate or nitrite, including non-synthetic sources such as celery powder, rather than traditional synthetic sources, such as sodium nitrite.\u00a0 In its response letter, FSIS states that it intends to conduct rulemaking to propose prohibition of the identified statements on products processed using any source of nitrates or nitrites.\u00a0 Specifically, FSIS states that it intends to propose new definitions for \u201ccured\u201d and \u201cuncured.\u201d\u00a0\u00a0<\/span><\/p>\n Food Labeling: FDA Allows Use of \u201cPotassium Salt\u201d on Food Labels<\/span><\/p>\n On December 18, 2020, the Food and Drug Administration (FDA) published notice in the Federal Register (<\/span>85 FR 82332<\/span><\/a>) of the availability of industry guidance titled, \u201c<\/span>The Use of an Alternate Name for Potassium Chloride in Food Labeling: Guidance for Industry<\/span><\/a>.\u201d\u00a0 Under the guidance, FDA states that it will \u201cexercise enforcement discretion\u201d to allow use of the term \u201cpotassium salt\u201d in place of \u201cpotassium chloride,\u201d on food labels.\u00a0 According to the guidance, potassium chloride is recognized as a safe substitute for sodium chloride and FDA expects that use of the term \u201cpotassium salt\u201d is unlikely to confuse consumers.\u00a0 The guidance is in response to a 2016 <\/span>petition<\/span><\/a> from NuTek and after review of <\/span>comments<\/span><\/a> to the <\/span>proposed rule<\/span><\/a>, issued on May 20, 2019.\u00a0<\/span><\/p>\n Food Waste: USDA, FDA, EPA Renew Agreement to Reduce Food Waste<\/span><\/p>\n On December 17, 2020, the\u00a0 U.S. Environmental Protection Agency (EPA), the U.S. Food and Drug Administration (FDA), and the U.S. Department of Agriculture (USDA) renewed their <\/span>joint agency formal agreement<\/span><\/a> to cooperate and coordinate agency actions to reduce food waste by fifty percent by 2030.\u00a0 <\/span>Announced<\/span><\/a> the same day, the agreement renews the <\/span>Winning on Reducing Food Waste Initiative<\/span><\/a>, which lists six priority areas for action, including clarifying food date labels and educating consumers on food waste.\u00a0 The agreement is valid for three years.\u00a0<\/span><\/p>\n Agricultural Law\/Policy Resources of Interest:\u00a0<\/span><\/p>\n Pennsylvania Farm Bureau, <\/span>Farm Focus (Podcast): Rural Health<\/span><\/a> (Dec. 21, 2020).<\/span><\/p>\n Tiffany Lashmet, <\/span>US Supreme Court Dismisses Texas Petition for Review in Pecos River Dispute<\/span><\/a> (Dec. 21, 2020).<\/span><\/p>\n Kristine A. Tidgren, <\/span>What COVID Relief Provisions are in the Pending Spending Bill?<\/span><\/a> (Dec. 23, 2020).<\/span><\/p>\n Peggy Kirk Hall, <\/span>The New COVID Relief Bill: What\u2019s in it for USDA?<\/span><\/a> (Dec. 22, 2020).<\/span><\/p>\n Roger A. McEowen, <\/span>Can One State Dictate Agricultural Practices in Other States?<\/span><\/a> (Dec. 22, 2020).<\/span><\/p>\n Penn State Research & News:<\/span><\/p>\n Discovery of Chemical Clue May Lead to Solving Cacao’s Black Pod Rot Mystery<\/span><\/a> (Dec. 23, 2020).<\/span><\/p>\n Study: Bumble Bees Lacking High-Quality Habitat Have Higher Pathogen Loads<\/span><\/a> (Dec. 21, 2020).<\/span><\/p>\n AGENCY PRESS RELEASES\u2014STATE\/FEDERAL<\/span><\/p>\n \u00a0<\/span><\/p>\n Pennsylvania Department of Agriculture Press Releases:<\/span><\/p>\n Department Of Agriculture Releases COVID-19 Restaurant Enforcement Actions, December 14 \u2013 December 20<\/span><\/a> (Dec. 22, 2020).<\/span><\/p>\n Agriculture, Education Departments Announce Early Childhood To Adult Learning In Ag, STEM During 2021 Farm Show<\/span><\/a> (Dec. 23, 2020).<\/span><\/p>\n U.S. Department of Agriculture (USDA) Press Releases:<\/span><\/p>\n Secretary Perdue Announces Groundbreaking Proposal to Transfer Agricultural Animal Biotechnology Regulatory Framework to USDA<\/span><\/a> (Dec. 21, 2020).<\/span><\/p>\n USDA Announces Dr. Carrie Castille as New NIFA Director<\/span><\/a> (Dec. 22, 2020).<\/span><\/p>\n USDA Clears Santa\u2019s Reindeer for Entry into the United States<\/span><\/a> (Dec. 23, 2020).<\/span><\/p>\n USDA Announces No Actions Under Feedstock Flexibility Program<\/span><\/a>, FSA (Dec. 23, 2020).<\/span><\/p>\n STATE ACTIONS\u2014EXECUTIVE\/LEGISLATIVE<\/span><\/p>\n Pennsylvania Executive Agencies (<\/span>Pa. Bulletin Vol. 50, No. 52\u2014Dec. 26, 2020<\/span><\/a>):\u00a0<\/span><\/p>\n Department of Environmental Protection<\/span><\/p>\n
<\/span>Audry Thompson\u2014Research Assistant<\/span><\/p>\n
<\/span>The Agricultural Law Weekly Review provides an update of recent agricultural law developments from local, state, national, and international levels.\u00a0 Subscribe at <\/span>pennstateaglaw.com<\/span><\/a>.\u00a0<\/span><\/p>\n