Category: Ag Law

On April 22, 2025, Department of Health and Human Services (HHS) Secretary Robert Kennedy, Jr. announced the agency’s plan to “phase out” petroleum-based synthetic color additives. Though the announcement did not include any formal rulemaking or industry guidance documents, the agency described it as “a significant milestone in the administration’s broader initiative to Make America Healthy Again.” This article will assess where the phase out plan sits roughly two months after its announcement. 

Background on synthetic dyes

Color additives are defined by the Food and Drug Administration (FDA) as “a dye, pigment or other substance, which is capable of imparting color when added or applied to a food, drug, cosmetic or to the human body.” Color additives are distinguished from food additives by the Federal Food, Drug and Cosmetic Act (FDCA) and require pre-approval from the FDA before they can be used in food. Specifically, there are two types of color additives – naturally occurring and synthetic. Synthetic dyes are manmade, and the FDA requires that each batch of synthetic dye must be certified as safe for its approved purpose. Thus, all food in the US food supply that contains synthetic dyes has been certified by the FDA that the synthetic dye is safe at its approved level for its approved purpose. Synthetic dyes, which are the color additives targeted by this initiative, are typically petroleum-based. There are currently nine synthetic dyes that might be found in food today, and this initiative aims to phase all nine out of the food supply by the end of 2026.

FDA’s stated actions

Specifically, the phase out plan outlined six measures that the FDA will take:

• Establishing a national standard and timeline for the food industry to transition from petrochemical-based dyes to natural alternatives.
• Initiating the process to revoke authorization for two synthetic food colorings – Citrus Red No. 2 and Orange B – within the coming months.
• Working with industry to eliminate six remaining synthetic dyes – FD&C Green No. 3, FD&C Red No. 40, FD&C Yellow No. 5, FD&C Yellow No. 6, FD&C Blue No. 1, and FD&C Blue No. 2 – from the food supply by the end of next year.
• Authorizing four new natural color additives in the coming weeks, while also accelerating the review and approval of others.
• Partnering with the National Institutes of Health (NIH) to conduct comprehensive research on how food additives impact children’s health and development.
• Requesting food companies to remove FD&C Red No. 3 sooner than the 2027-2028 deadline previously required.

Industry “phase out” 

The third prong of FDA’s six-pronged phase out plan was to work with industry to eliminate six synthetic dyes – FD&C Green No. 3, FD&C Red No. 40, FD&C Yellow No. 5, FD&C Yellow No. 6, FD&C Blue No. 1, and FD&C Blue No. 2 – from the food supply by the end of 2026. While many were skeptical of the voluntary nature of this plan, in the two months since the announcement, several food companies have announced their intentions to remove synthetic dyes from their food portfolios. For example, Kraft Heinz, General Mills, Conagra Brands, Nestle USA, PepsiCo, and Tyson Foods have all announced their commitment to removing synthetic dyes from their products. 

Part of the reason for the skepticism was that though HHS Secretary Kennedy stated that there was an “understanding” between FDA and food manufacturers at the phase out plan’s press conference, no formal agreement was published, nor was any food industry representative present at the event. Part of the willingness of food industry might have something to do with the movement of this issue on a state level. California and West Virginia have banned foods containing certain food additives from being sold in their state. Additionally, California, Delaware, Louisiana, Tennessee, West Virginia, Virginia, and Utah have passed legislation banning school meals from containing certain food additives. Texas and Louisiana have passed legislation requiring disclosure labels on foods containing certain listed food additives – important to note that at the time of writing this article the Louisiana bill has not yet been signed by its governor. This state level inconsistency might have led to a desire by industry for federal movement on the color additive conversation. Specifically, FDA Commissioner Marty Makary, MD, MPH, stated in the press conference that food companies “want to do this,” and that they particularly “don’t want to deal with patchwork of 30 different state plans.”

New Color Additives 

The fourth prong of the phase out plan has also seen movement in the past two months. In May, the FDA announced its approval of three new natural color additives. These color additives occur naturally and are not man made, but even natural color additives must be approved as safe for their intended use by the FDA before they can be used in foods. 21 § USC 379e. Here, the FDA has approved Galdieria extract blue, butterfly pea flower extract, and calcium phosphate. Galdieria extract blue produces a blue color and is derived from the unicellular red algae Galdieria sulphuraria. Butterfly pea flower extract is also a blue color and it can be used to produce shades of blue like bright blues, intense purple, and natural greens. Calcium phosphate is a white color approved for use in ready-to-eat chicken products, white candy melts, doughnut sugar, and sugar for coated candies. 

Additionally, as part of the six-pronged plan, FDA stated that it would fast track the authorization of four new natural dyes – the three approved here, and gardenia blue. The FDA also said it would accelerate the review and approval of other natural dyes and would issue guidance to industry. So far, the FDA has not published a guidance, nor made any announcements about the approval of gardenia blue or other natural dyes. 

Partnership with NIH 

The fifth prong in FDA’s phase out plan was to partner with the National Institutes of Health (NIH) to conduct comprehensive research on the effect food additives might have on the health and development of children. NIH is a federal agency housed in the Department of Health and Human Services and is primarily responsible for conducting and supporting federal medical research. On May 9, 2025, the FDA announced the creation of a joint research initiative with the NIH, titled the Nutrition Regulatory Science Program. This program will implement a nutrition research agenda that provides “critical information to inform effective food and nutrition policy actions to help make Americans’ food and diets healthier.” Specifically, the initiative highlighted the following questions it will aim to answer:

• How and why can ultra-processed foods harm people’s health?
• How might certain food additives affect metabolic health and possibly contribute to chronic disease?
• What is the role of maternal and infant dietary exposures on health outcomes across the lifespan, including autoimmune diseases?

This joint initiative will mirror the FDA and NIH’s Tobacco Regulatory Science Program in structure and collaboration with FDA providing expertise in regulatory science and NIH providing the infrastructure for research. FDA states that the initiative will bring together experts in chronic disease, nutrition, toxicology, risk analysis, behavioral science, and chemistry, but is committed to conducting research that is “fair, independent and free of conflicts of interest.”

Remaining prongs

In the past two months, there has been no movement yet on the remaining three prongs of the FDA’s phase out plant. First, the FDA has not published an industry guidance document, promulgated formal rulemaking, nor posted any further documents regarding a national standard and timeline. Second, the FDA has not publicly announced that it has initiated the process for revoking Citrus Red No. 2 or Orange B. Last, though no company who has publicly committed to removing synthetic color additives from its food portfolio specifically mentioned Red Dye 3, it can likely be assumed that it is included under the board definition most are using to describe FD&C dyes. 

Conclusion 

In only two months, the FDA has moved extraordinarily fast on accomplishing portions of its six-pronged phase-out plan. With an administration that has stated its commitment to “restor[ing] the focus on the ‘F’ in FDA,” it can be assumed that food-related policies will continue to be a priority. For up-to-date information on FDA announcements, click here to subscribe to NALC’s bi-weekly newsletter “The Feed.”  To learn more about the phase out plan, click here to read NALC article “FDA Announces Plan to ‘Phase Out’ Synthetic Dyes.” To learn more about other FDA updates, click here to read “FDA Updates: June 2025.” 

---

Stone, Emily. “Two Months In: Assessing the Movement on FDA’s Plan to “Phase Out” Synthetic Dyes.” Southern Ag Today 5(27.5). July 4, 2025. Permalink

As of mid-June 2025, agricultural stakeholders are increasingly aware of claims by clean water advocates and regulatory concerns that land-applying municipal sewage waste (biosolids) may contaminate soil and groundwater with per- and polyfluoroalkyl substances (PFAS). In 2023, approximately 60% of U.S. biosolids were land-applied, according to the U.S. Environmental Protection Agency (EPA).  Also,  according to the EPA, PFAS exposure may pose health risks, though ongoing research continues to assess the impacts of low-level, long-term exposure, especially in children.

Federal and state regulators are working to eliminate PFAS compounds considered the most dangerous to our environment and our health, perfluorooctanoic acid (PFOA) or perfluorooctane sulfonic acid (PFOS), from consumer products.  However, reducing environmental PFAS loads will also require alterations to current practices which may simply be recycling existing environmental loads, including agricultural uses of biosolids. Legal changes are expected.  Farmers, who own or rent most of the land involved in applications of biosolids, will be a central focus.  

What we have seen over the last few years has been a smattering of individual state government actions restricting and limiting the practice of land application of biosolids in various ways.  In some extreme instances, these have included quarantine orders of entire tracts of farmland preventing or limiting further agricultural production.  

A compilation of those individual state actions has been assembled by a national environmental consulting firm, ALL4 , and it is publicly available at this link: State-by-State Regulatory Update (March 2025 Revision)(see Table 2 – State Water Regulation Highlights).  This documents the patchwork in regulatory landscape faced across the country.  

Complicating enforcement, biosolids are increasingly transported across state lines, undermining the consistency of state-level regulation and calling for a more unified approach. This regulatory inconsistency challenges both land-applicators and regulators tracking PFAS from production to final disposal.

While the Clean Water Act (CWA), via the National Pollutant Discharge Elimination System (NPDES), governs the permitting of biosolid land applications, PFAS-specific regulation under this system remains limited. EPA has issued only non-binding guidance to states for performing their CWA duties. 

Adding a new pollutant to those already identified and regulated in biosolids is ultimately controlled by the text of 33 U.S.C. §1345(d) of the CWA (“Disposal or Use of Sewage Sludge”), and regulations at 40 CFR Part 503. These require EPA to establish numeric limits and mandatory management practices to protect public health and the environment from the reasonably anticipated adverse effects of designated pollutants during the use or disposal of biosolids. EPA is also required to review these regulations at least every two years and develop standards where evidence warrants.  To date, EPA has not established numeric PFAS limits for biosolids, but a draft risk assessment released on January 15, 2025, marks a first step in that direction. 

Historically, EPA’s “PFAS Strategic Roadmap” progress reports have stated it would complete by winter 2024 a risk assessment for PFAS in biosolids for use in determining whether to regulate these particular substances in biosolids.  

On January 15, 2025, EPA commenced that process by publishing in the Federal Register the following document, “Draft Sewage Sludge Risk Assessment for Perfluorooctanoic Acid (PFOA) and Perfluorooctane Sulfonic Acid (PFOS).  After multiple extensions, the public comment period is now scheduled to close on August 14, 2025.  The public comments so far are available at the following regulatory docket: EPA-HQ-OW-2024-0504.  

The upshot of EPA’s draft risk assessment states the following: 

The draft risk assessment indicates that there are potential risks to human health to those living on or near impacted properties or primarily relying on their products from land application. . .  

*                                                   *                                                  *

After the public comment period has closed, the EPA will. . . prepare a final risk assessment. . . If the final risk assessment indicates that there are risks above acceptable thresholds when using or disposing of sewage sludge, the EPA expects to propose a regulation under CWA section 405 to manage PFOA and/or PFOS in sewage sludge to protect public health and the environment. 

Last year, on June 6, 2024, a federal lawsuit was commenced seeking to compel EPA to establish regulatory standards for PFAS in land-applied biosolids. Farmer, et al. v. EPA, No. 24-cv-1654.  The plaintiffs in that case allege the EPA’s inaction has allowed PFAS-laden biosolids to contaminate millions of acres, harming farmers and the public.  This lawsuit is currently moving slowly with preliminary matters and no resolution is expected for at least another year.

One thing is certain in the coming months and years.  Those farmers and agricultural stakeholders across the country involved in the common practice of land-applying biosolids will see significant change mandated in their practices and operations by the emergence of PFAS regulation in biosolids. 

---

Duer, Brook, and Paul Goeringer. “Why aren’t PFAS compounds in land applied biosolids prohibited by EPA?” Southern Ag Today 5(26.5). June 27, 2025. Permalink

Artificial intelligence (AI) offers a powerful and accessible tool to solve a multitude of problems. Increasingly, people turn to AI to solve matters previously entrusted to professionals, including legal matters. This article briefly summarizes the advantages and disadvantages of using AI to address legal issues and suggests a role for AI in the legal needs of individuals and businesses. The authors acknowledge that AI was used to research this article.

In many ways, using artificial intelligence to provide professional services is not new. Commercial companies offer legal document drafting (particularly simple wills and trusts) and tax preparation services and have done so for years. Early will forms used very primitive artificial intelligence to draft simple wills.

The most compelling reason to use AI for legal needs is affordability. Lawyers are expensive and that cost can prevent people from seeking any legal help. AI is also fast, convenient, and easily accessible. An hour or so on the computer can provide a lot of information. No need to make appointments weeks in advance and brave traffic to drive to the appointment. Costs are generally minimal, especially compared to attorneys’ fees.

On the other hand, AI cannot make legal judgments. Law often involves gray areas and uncertain outcomes. Attorneys, unlike AI, have experience and education that aid in interpreting laws and advising clients based on particular circumstances. Legal systems are complex, nuanced, and evolving. Humans, although far from perfect, are better able to deal with legal systems. With respect to litigation, only licensed, human attorneys may represent a client in court. Although individuals may represent themselves and use AI as a support tool, that strategy may backfire. Finally, AI does not offer attorney-client privilege. Information shared with AI systems may not be kept private and confidential.

When the authors searched AI, the results suggested that AI could handle “routine or low-stakes legal matters.” Tasks that AI described as ideal for AI included “filing a business formation, applying for a trademark, or writing a simple contract.” In addition, AI can “quickly help someone generate a will, draft a lease agreement, or respond to a landlord dispute.” 

As an experiment, one of the authors had AI draft a will for them. The author responded to the prompts and then asked for a will compliant in the author’s state of residence. The will produced complied with state law and was a legally valid will. However, the will did not name an alternate executor (AI did not ask!), but had the court appoint an alternate executor, if necessary, a costly and time-consuming process. The named executor is about the same age as the author, meaning that they may well predecease the author, necessitating the naming of an alternate. In addition, the named executor lived out-of-state, likely meaning that the executor would have to post bond, adding more expense. 

The will also did not name alternate beneficiaries (AI did not ask!). Since the author named their 86-year-old mother as the sole beneficiary, odds are that she would predecease him, meaning that intestacy law would apply, thereby essentially negating the purpose of having the will drafted in the first place.

AI also failed to ask about special requests as to burial or cremation or other wishes at death. Most egregiously, the AI generated will failed to include a self-proving affidavit, meaning that the witnesses to the author signing the will would have to be tracked down after the death of the author to swear that the author was competent at the time the will was made. Any licensed attorney would likely include a self-proving affidavit, eliminating the need to have witnesses file affidavits at a later time, saving time and money. In summary, the will would be valid but lacking in many respects. A will drafted by an attorney would include the vital provisions that were missed and, in the long run, save money.

In conclusion, AI promises to revolutionize law practice. More importantly, individuals and businesses can use AI in meaningful ways to assist in legal matters. AI can analyze data quickly and efficiently, can do research, and compose draft documents. Individuals and businesses can use AI to learn about the law in a particular area and become aware of different options. If the alternative is no legal representation at all, AI may be the better option. However, AI is not a substitute for legal advice. In the words of ChatGPT, after being queried by the authors, “[u]se AI to learn, explore, and prepare – but when it comes time to make real legal decisions, always consult an attorney.”

---

Richardson, Jessie, and Tiffany Lashmet. “Who Needs Attorneys When You Have AI?” Southern Ag Today 5(25.5). June 20, 2025. Permalink

On April 29, 2025, the Environmental Protection Agency (“EPA”) released its Insecticide Strategy, the most recent component of EPA’s effort to revise how the agency meets its Endangered Species Act (“ESA”) responsibilities while taking actions under the Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”). Like the final Herbicide Strategy that EPA released last September, the final Insecticide Strategy works to reduce pesticide exposure to protected wildlife by implementing mitigation measures to curb pesticide spray drift and runoff. 

EPA first announced its new policy to address pesticide exposure to species protected under the ESA in April 2022. That month, EPA announced a plan to create different strategy documents to address herbicides, insecticides, fungicides, and rodenticides. According to EPA, the new approach was necessary to address what the agency has described as a “decades-old challenge” to satisfy the agency’s obligations under both the ESA and FIFRA.

The ESA is the primary federal wildlife protection law in the United States, while FIFRA serves as the nation’s primary federal statute regulating pesticide use. Under the ESA, all federal agencies, including EPA, are required to consult with the United States Fish and Wildlife Service (“FWS”) to ensure that the actions that federal agencies fund, authorize, or carry out will not “jeopardize” the continued existence of species protected under the ESA. Since the ESA was enacted, EPA has struggled to fully satisfy its consultation responsibilities when carrying out FIFRA actions. As a result, the agency has faced numerous lawsuits filed primarily by environmental groups seeking to compel EPA to complete ESA consultation on FIFRA actions. EPA’s new policy is aimed at resolving this on-going challenge.

Under its new approach, EPA has sorted all registered pesticides into broad groups and developed mitigation measures for each group designed to reduce pesticide exposure to protected species that occurs via pesticide spray drift and runoff or erosion. In 2024, EPA issued its draft Insecticide Strategy, outlining the various mitigation measures the agency was considering for insecticides. Following a 60-day public comment period that ran from July to September, EPA has officially released the final Insecticide Strategy. 

The final Insecticide Strategy outlines various mitigation measures designed to reduce pesticide exposure to protected invertebrate species by limiting pesticide spray drift and runoff/erosion. As in the draft Insecticide Strategy, the final Insecticide Strategy lays out a three-step framework that EPA will use to determine what additional mitigation measures to include on an insecticide label. Under step 1, EPA will establish the likelihood that a particular insecticide will have population-level impacts to protected wildlife species as either “not likely,” “low,” “medium,” or “high.” In general, mitigation will be lower when the potential for population-level impacts is lower and higher when the potential is higher. 

During step 2 of the process, EPA will determine which mitigation measures to apply. To reduce spray drift, the Insecticide Strategy relies on buffer zones and application equipment with the size of the buffer zone depending on the insecticide’s expected population-level impacts and the method of application. The largest buffer zone identified in the Strategy is a 300 foot buffer for aerial applications. All other buffer zones are identified as 100 feet or less. 

To reduce insecticide runoff and erosion, the Insecticide Strategy employs a so-called “menu” of mitigation measures. Each mitigation measure is assigned a point value from 1 to 3 with high efficacy mitigations receiving 3 points, medium efficacy mitigations receiving 2 points and low efficacy mitigations receiving 1 point. Based on the degree of population-level impacts EPA identified during step 1 of the Insecticide Strategy framework, the agency will identify the number of runoff/erosion mitigation points needed to apply a particular insecticide. Insecticides identified as having a low population-level impact will need 3 points, insecticides with a medium impact will need 6 points and insecticides with a high impact will need 9 points. 

Additionally, EPA has assigned counties different mitigation points based on how prone the fields in each county are to runoff. Counties with medium runoff potential will receive 2 mitigation points, counties with low runoff potential will receive 3 mitigation points and counties with very low runoff potential will receive 6 mitigation points. An applicator in a county with very low runoff potential applying an insecticide that requires 9 mitigation points will only need to achieve 3 extra mitigation points, while an applicator in a county with a low runoff potential applying the same insecticide would need to achieve 7 extra points.

In response to comments it received on the draft Insecticide Strategy, EPA has said that it is working towards certifying voluntary conservation programs the participation in which would automatically count as 9 mitigation points. Additionally, EPA will grant mitigation points to farmers and applicators who do not participate in a conservation program but use a qualified technical expert to plan insecticide applications.

Finally, during step 3 of the Insecticide Framework, EPA will determine where in the contiguous United States the spray drift and runoff/erosion mitigations will be required. Mitigation measures that are considered necessary across the entire contiguous United States will be included on an insecticide’s general label. Those mitigation measures that are only required in certain geographic areas known as Pesticide Use Limitation Areas (“PULAs”) will be posted as bulletins on EPA’s website Bulletins Live! Two. The insecticide’s label will instruct users to check Bulletins Live! Two prior to making an application to determine if there are any relevant PULAs with which the applicator needs to comply.

Most of the mitigation measures identified in the Insecticide Strategy are intended to reduce exposure to protected species that are not located on agricultural fields. However, EPA has identified 4 protected species that can be found on agricultural fields and would require additional in-field mitigation measures. EPA notes that mitigation measures for those species would be both geographically limited and limited to certain times of the year. Any on-field mitigations would be required through PULAs on Bulletins Live! Two.

EPA will begin implementing the Insecticide Strategy as it registers new insecticide products for use and conducts registration review of existing insecticides. 

Despite being dubbed the “final” Insecticide Strategy, EPA notes that it will continue to seek engagement on and develop certain aspects of the Strategy such as identifying additional conservation programs that would count as 9 mitigation points and further refining species maps to create more accurate PULAs. Overall, EPA believes that implementing the Insecticide Strategy will result in both more efficient ESA consultations with FWS and insecticide labels better equipped to withstand judicial review.

---

Rollins, Brigit. “EPA Publishes Final Insecticide Strategy.” Southern Ag Today 5(21.5). May 23, 2025. Permalink

If you have been following the national agricultural news lately, beyond discussions on policy, there has been a focus on states’ legislatures considering “Crop Protection” legislation. This liability protection would extend to companies producing federally approved pesticides. 

We have all seen the news of large settlements from users of federally approved pesticides claiming linkages between their use and cancer. The biggest of these lawsuits is the Roundup litigation. To date, Bayer has paid roughly $10 billion to settle claims that Roundup has caused cancer.  At the same time, class actions have been filed against Syngenta, the manufacturer of Paraquat, for claims that the product causes Parkinson’s Disease.  Finally, AMVAC Chemical Corporation has been sued due to claims that Dacthal (DCPA) has caused birth defects.  

The debate on Crop Protection legislation concerns this type of litigation. Under the legislation being proposed in several states, as long as the federally approved pesticide includes a label with the most recent human health assessment required under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) or a label containing consistent with the Environmental Protection Agency’s (EPA) carcinogenicity classification for the pesticide required under FIFRA this would be a sufficient warning label.  Under the legislation, this label would be enough to meet the duty to warn under state law.  This would severely limit the ability for users to sue later for alleged health issues (such as cancer or Parkinson’s Disease).  

This legislation has been signed into law in North Dakota, and as of the writing of this article, it has passed the Georgia legislature and has not been signed by the Governor.  Similar legislation is currently before the legislatures in Florida, Iowa, Missouri, Oklahoma, and Tennessee. 

---

Georinger, Paul. “What is Crop Protection Legislation.” Southern Ag Today 5(20.5). May 16, 2025. Permalink