Category: Ag Law

Lawsuits involving plaintiffs who have alleged that exposure to glyphosate caused their non-Hodgkin’s lymphoma continue to make their way through the court system. Over the past year, the issue of preemption has become a focus of these lawsuits. Preemption occurs when a “higher” level of government reduces the authority of a “lower” level of government and may occur when a federal law and a state law conflict. In glyphosate lawsuits, the defendant Bayer has argued that the Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”), the federal law governing pesticide regulation, preempts the state law failure-to-warn claims raised by most glyphosate plaintiffs.

FIFRA regulates the labeling of pesticides. A pesticide may not be distributed or sold in the United States until it has a label approved under FIFRA. Additionally, states may not impose any labeling or packaging requirements that are “in addition to or different from” those required by FIFRA. Plaintiffs bringing state law failure-to-warn claims are arguing that had the label included adequate warnings about the risks of glyphosate, then their injuries would not have occurred. So far, juries have found in favor of plaintiffs on these claims.

Bayer has appealed these jury findings, arguing that FIFRA’s prohibition on states imposing additional or different pesticide labeling requirements preempts failure-to-warn claims. If the state law claims are preempted by FIFRA, then Bayer argues that those claims should never have been raised in court.

Courts have split on the issue. A state court in California dismissed a plaintiff’s failure-to-warm claims, finding that the claims were preempted because the approved label for glyphosate does not require a carcinogen warning. However, both a California state appellate court and the Ninth Circuit have ruled the opposite. Those courts found that the failure-to-warn claims were not preempted because FIFRA prohibits pesticides from being “misbranded.” A pesticide is misbranded if its label does not contain a warning which may be necessary to protect human health. The Ninth Circuit concluded that FIFRA’s prohibition on misbranding was broader than the state law failure-to-warn and that such claims were therefore not preempted.

Bayer has appealed the Ninth Circuit’s decision to the Supreme Court. If the Court takes up the case, a ruling could impact not just glyphosate lawsuits, but any pesticide lawsuit where a plaintiff raises a state law failure-to-warn claim.

---

Rollins, Brigit. “What is Preemption and How Might it Affect Glyphosate Litigation.” Southern Ag Today 1(51.5). December 17, 2021. Permalink

The Food and Drug Administration (“FDA”) is responsible for the labeling of dairy products, among other things.  In part, it regulates labels through the creation of “standards of identity,” which outline how specific words may be used.  FDA is given authority in the Federal Food Drug and Cosmetic Act (“FFDCA”) to enforce those standards.  Under the FFDCA, a food is misbranded if it is labeled using a word for which a standard of identity has been established, but the food does not match the requirements.  In these situations, FDA has a range of options from warning letters or a seizure of the mislabeled product up to fines or even criminal prosecution.

In 2018, FDA asked for comments about the labeling of plant-based products with names of dairy foods.  They wanted to learn more about how consumers use them and how they understand terms such as “milk” or “yogurt” when included in the product names.    

Since that time, FDA changed the standard of identity for “yogurt.”  As of this July, “yogurt” is limited to the food produced by culturing at least one “basic dairy ingredient” and any “optional dairy ingredients” along with a “characterizing bacterial culture.”  21 CFR § 131.200.  Based on that definition,  non-dairy alternatives will be excluded from using the word “yogurt.”  

The recent change to the standard for yogurt is in contrast to the standard of identity for milk, which has been in place for decades.  “Milk” is “the lacteal secretion, practically free from colostrum, obtained by the complete milking of one or more healthy cows.” 21 CFR § 131.110.  Based on that definition standard, non-dairy substitutes should not be able to use the term. However, FDA has discretion to decide what standards to focus its enforcement resources on, and so far, the agency has not chosen to strictly enforce the standard of identity for milk. As a result, non-dairy substitutes made of almonds, soy, oats, or rice claim the “milk” label alongside the dairy variety. 

FDA intends to submit a draft guidance for industry regarding the labeling of plant-based milk alternatives by the end of June 2022.  The guidance, along with any changes to the regulatory standard of identity, will be important in determining whether plant-based products may continue use the term “milk.”  Just as important for dairy producers, though, will be whether the FDA intends to enforce the standards as written, or allow continued expansion of the terms.   

Rumley, Beth. “What’s in A Name? Standards of Identity for “Milk” & “Yogurt.” Southern Ag Today 1(46.5). November 12, 2021. Permalink

For decades, there has been contentious debate surrounding the meaning of a seemingly simple phrase in the Clean Water Act (CWA), “waters of the United States.”  This phrase describes the scope of federal jurisdiction under the CWA but is not statutorily defined.  In 2015, the Obama administration promulgated the WOTUS Rule.  The Trump administration then replaced the WOTUS Rule with the Navigable Waters Protection Rule in 2020.  Both the Obama and Trump Rule faced a flurry of lawsuits filed across the nation. 

A recent decision from the United States      District Court for the District of Arizona has vacated the Trump administration’s Navigable Waters Protection Rule, meaning it is no longer in place.  This triggered the Environmental Protection Agency to announce that it has “halted implementation of the Navigable Waters Protection Rule.”  The EPA and US Army Corps of Engineers are currently interpreting “waters of the United States” consistent with the pre-2015 regulatory approach.  

The EPA Administrator, Michael Regan, has announced that the agency  promulgate its      definition, which will differ from both the Obama WOTUS Rule and Trump Navigable Protection Rule.  The EPA plans to release their proposed rule for comment in November.  To read more, click here. 

---

Dowell Lashmet, Tiffany. “Update on Waters of the United States.” Southern Ag Today 1(44.5). October 29, 2021. Permalink

Private companies are approaching farmers and forest landowners about entering into carbon contracts, generating a lot of interest.  Carbon contracts are voluntary agreements that landowners can enter into promising to use certain practices such as limited/no-till farming, planting cover crops, or forego the harvesting of mature timber and then paying the farmer for sequestered carbon.  Contracts are difficult to come by and typically contain confidentiality clauses; however, there are some common elements that landowners should be aware of before signing.

• The length of the contracts can vary substantially.  I have read contracts that range from one year to ten years in length, and some may be longer.  One contract required the storage of carbon in the field for the next one hundred years.  Ensure that you can comply with the contract for the entire life of the agreement.
• To measure the carbon sequestered, the landowner often has to grant the other party access to the property to take those measurements. 
• Payments, and payment mechanisms, can vary substantially. For example, some contracts pay for certain practices, such $3 per acre for no-till farming, while other contracts pay based on the tons of carbon sequestered, typically around $15-$20 per ton, but this can vary as well.
• Read the definitions section carefully, as words may not mean what you think they mean.
• Many contracts pay only for the carbon sequestered and allow the other party to sell off other environmental benefits, such as water quality credits. Unfortunately, some of the contracts do not have a mechanism to enable the landowner to realize any gain from the sale of other environmental benefits, so make sure that your contract allows you to profit from all potential environmental benefits.

If approached with a carbon contract, read it carefully, make sure that it makes financial sense to adopt the practices you will be required to follow, and consult with a knowledgeable attorney before signing.

Source – Considering Carbon Series from the National Agricultural Law Center

---

Rumley, Rusty. “Carbon Contracts for Farmers.” Southern Ag Today 1(43.5). October 22, 2021. Permalink

Forecasting legal developments is never an easy task, but we can often look at what is currently happening to get a sense of what to keep an eye on in 2022.  Below are just a few issues discussed at the recent Southern Outlook Conference in Atlanta. 

As we move into 2022, producers will need to pay attention to the ongoing Roundup/Glyphosate class action settlement process.  A federal judge has now rejected Bayer’s settlement with class members for a second time.  This rejection is based on how the settlement handles future class members who may not be aware of all potential medical costs until years from now. Nevertheless, Bayer continues to settle individual claims and has put an additional $4.5 billion into settling these claims.

CAFO (Concentrated Animal Feeding Operations) legal issues always seem to be on the list each year, and 2022 will likely be no exception. One such issue to watch involved an appeal out of Maryland from an interesting lower court decision.  A group challenged the state’s Animal Feeding Operation Discharge permit (a water discharge permit), claiming the State should have considered air emission of ammonia that could eventually reach waters in the state.  The lower court agreed with this approach, and the State has appealed this decision with a decision expected later in 2022.

Additionally, Texas has seen a challenge to a poultry farm after complaints by neighbors who lived in the area where the farm was recently constructed. The Court of Appeals upheld a permanent injunction against the poultry integrator and poultry growers from continuing poultry farms in the area, click here to read an overview.  This decision has been appealed to the Texas Supreme Court, and we should see a decision in 2022.

2022 will continue to see developments that could have significant legal implications for producers in the South and across the country.  

Goeringer, Paul. “Legal Outlook for 2022 Shows Several Ongoing Issues Will Be Top of Mind for Agricultural Producers.” Southern Ag Today 1(42.5). October 15, 2021. Permalink