Food & Drug Law Prof Blog

Cow Pies to Power America

The US Department of Agriculture and US dairy producers announced last December that they have reached an agreement to accelerate implementation of innovative manure to energy projects on American dairy farms.  Secretary of Agriculture, Tom Vilsack, hails the agreement as a multifaceted victory, stating, “This historic agreement, the first of its kind, will help us achieve the ambitious goal of drastically reducing greenhouse gas emissions while benefitting dairy farmers.”

Under the agreement, the USDA and dairy producers will work together to achieve a 25% reduction in greenhouse gasses by 2020.  Anaerobic digestor technology is a proven method of converting waste products, such as manure, into electricity.  It provides a new source of income for farmers, provides a source of renewable electricity, and reduces the amount of harmful methane gas released into the atmosphere.  According to Thomas P. Galleagher, CEO of the Innovation Center for U.S. Dairy and Dairy Management Inc., “Sustainability goes hand in hand with our heritage of taking care of the land and natural resources while producing nutritious products that consumers want.”

Cow pies contain high levels of methane gas, a very strong greenhouse gas with 23 times the global warming potential of carbon dioxide. Therefore, quantifying and reducing methane emissions from livestock farms is important for developing sustainable food production systems.

Link to manure facts. 

This post was prepared by William Mitchell College of Law student, Scott Johnson.  Mr. Johnson is a student of Professor Donna M. Byrne.

Drake Forum on America's New Farmers

The Drake Forum on America's New Farmers: Policy Innovations and Opportunities will be held March 4 and 5, 2010, at the L'Enfant Plaza Hotel in Washington DC.

This two day national policy conference will identify innovative policies and projects at the federal, state, and local levels to support new and beginning farmers. The conference will feature national keynote speakers and regional voices on panel discussions. To learn more about the Forum and to register please visit the Agricultural Law Center site at http://www.law.drake.edu/centers/agLaw/ or write to americasnewfarmer@drake.edu

If you would like to request a scholarship to attend please let us know by Feb. 10th. To take advantage of the group rate for rooms we have reserved at the L'Enfant Plaza Hotel contact them no later than February 10th.

Post by Donna M. Byrne, Professor of Law, William Mitchell College of Law

Iowa County providing incentives for organic production -- goal is all organic

Using tax breaks and other incentives, Woodbury County, Iowa is encouraging organic farming.  From the New York Times (the original source is Greenwire):

SIOUX CITY, Iowa -- In the midst of sprawling corn and soybean fields, industrial animal-processing plants and ethanol refineries, Woodbury County is . . . trying to go whole-hog into organic agriculture.

"This is a totally new direction for us," said Debi Durham, president and CEO of the Siouxland Chamber of Commerce. . . . "Within the next 10 years, we will be known as the organic capital -- of the world."

Such a prediction is almost mind-boggling, considering that the county had not one registered acre of organic farmland in the 2007 U.S. Department of Agriculture census -- and this in a county with a total 450,000 acres of farmland.

more

Fraud Plagues Sugar Subsidy System in Europe

From the New York Times:

Call it the mystery of the European sugar triangle.

It began when Belgian customs officials examined shipping records for dozens of giant tanker trucks that outlined an odd, triangular journey across Europe. The trucks, each carrying 22 tons of liquid sugar, swung through eight nations and covered a driving distance of roughly 2,500 miles from a Belgian sugar refinery to Croatia and back — instead of taking the most direct, 900-mile route.

. . . Because Russia, and not Croatia, was listed as the intended destination, the shipments qualified for valuable special payments known as export rebates from the European Union’s farm subsidy program.

more

NYT: Agricultural Runoff and Drinking Water

From the New York Times online, Sept. 18, 2009:

Health Ills Abound as Farm Runoff Fouls Wells
By CHARLES DUHIGG

. . .There are 41,000 dairy cows in Brown County [WI], which includes Morrison, and they produce more than 260 million gallons of manure each year, much of which is spread on nearby grain fields. Other farmers receive fees to cover their land with slaughterhouse waste and treated sewage.

In measured amounts, that waste acts as fertilizer. But if the amounts are excessive, bacteria and chemicals can flow into the ground and contaminate residents’ tap water.

. . .Yet runoff from all but the largest farms is essentially unregulated . . .

read more

Senate Judiciary Committee Hearing on Milk Competition Saturday, Sept. 19

From the Wall Street Journal: Farmers Want Industry Probe 

Dairy farmers, stung by a price-depressing glut of milk, are pressing federal antitrust regulators to investigate competition in the industry.

A group of dairy farmers is slated to meet with antitrust enforcers Thursday in Washington, and Christine Varney, chief of the Justice Department's antitrust division, is scheduled to appear Saturday at a Vermont hearing of the Senate Judiciary Committee, which is populated with several Democrats from big dairy states such as Wisconsin, Minnesota and New York. . . .

Here's the announcement for the hearing, with the list of speakers:

Crisis on the Farm: The State of Competition and Prospects for Sustainability in the Northeast Dairy Industry

NOTICE OF COMMITTEE FIELD HEARING

The Senate Committee on the Judiciary has scheduled a field hearing on "Crisis on the Farm: The State of Competition and Prospects for Sustainability in the Northeast Dairy Industry" for Saturday, September 19, 2009 at 10:00 a.m. at St. Albans City Hall, 100 Main Street, St. Albans, Vermont.

Advisory Panel to Consider Nano-materials in Pesticide Products

Thank you to Cindy Finley, who contributed this as a comment to our earlier post on nano particles in pesticides (blogged here).

There will be a 4-day consultation meeting of the Federal Insecticide, Fungicide, and Rodenticide Act Scientific Advisory Panel (FIFRA SAP) to consider and review a set of scientific issues related to the assessment of hazard and exposure associated with nanosilver and other nanometal pesticide products.

DATES: November 3 - 6, 2009, from approximately 8:30 a.m. to 5:00 p.m. at the Environmental Protection Agency, Conference Center, Lobby Level, One Potomac Yard (South Bldg.), 2777 S. Crystal Dr., Arlington, VA 22202.

Comments: The Agency encourages that written comments be submitted by October 20, 2009 and requests for oral comments be submitted by October 27, 2009. Submit your comments, identified by docket identification (ID) number EPA-HQ-OPP-2009-0683, by one of the following methods:

• Federal eRulemaking Portal: http://www.regulations.gov. Follow the on-line instructions for submitting comments.
• Mail: Office of Pesticide Programs (OPP) Regulatory Public Docket (7502P), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001.

FOR FURTHER INFORMATION CONTACT: Joseph E. Bailey, DFO, Office of Science Coordination and Policy (7201M), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone number: (202) 564-2045; fax number: (202) 564-8382; e-mail address: bailey.joseph@epa.gov. EPA source: http://www.FederalRegister.com

WSJ: Recession hits down on the farm

From the Wall Street Journal:

Recession Hits Down on the Farm
By SCOTT KILMAN and LAUREN ETTER

The American farm, which has weathered the global recession better than most U.S. industries, is starting to succumb to the downturn.

The Agriculture Department forecast Thursday that U.S. farm profits will fall 38% this year, indicating that the slump is taking hold in rural America. Much of the sector had escaped the harsher aspects of the crisis, such as the big drop in property values plaguing city dwellers and suburbanites.

more

Atrazine Herbicide Used on Corn May be Problem in Drinking Water

A report by the Natural Resources Defense Council (NRDC) claims that EPA's current monitoring of drinking water misses spikes in herbicide levels.   

NRDC’s New Analysis Reveals Widespread Atrazine Contamination and Inadequate Regulation and Monitoring NRDC analyzed—in combination for the first time—the results of surface water and drinking water monitoring required by the EPA across the Midwestern and Southern United States. NRDC obtained these data from the EPA’s Ecological Watershed Monitoring Program (surface water) and the EPA’s Atrazine Monitoring Program (drinking water) as part of the settlement of litigation brought against the EPA and in response to two Freedom of Information Act (FOIA) requests submitted to the agency. Our analysis resulted in seven major findings:

more (links to the report)

Read about the report at the Washington Post

Hat tip: Steven H. Sholk 

NAIS and Amish: District Court Dismisses Suit Against USDA, Grants Michigan Dept of Ag's Motion for Summary Judgment

Farm-to-Consumer Legal Defense Fund sued USDA and the Michigan Department of Agriculture (MDA) to enjoin implementation of the National Animal Identification System as it applies to Amish farmers. District Court judge, Rosemary Collyer has dismissed the case against USDA and granted summary judgment to MDA.

The federal law does not require any particular form of state implementation, so the plaintiffs lack standing for the claim against USDA. In addition, the court found that the injury to plaintiffs stemmed from individual orders of the MDA and not from overall implementation of the program.

The opinion is available here. Among other things, it describes the Amish farmers' religious objections ot the NAIS program.

European beauty standards for veggies? The knobbly carrot and others

There's a great post on Food Liability Law Blog (by Stoel Rives law firm) about a British grocery store chain that launched a campaign to save ugly fruits and vegetables. The EU has marketing standards from some kinds of produce . . .

UK Hails the Return of the Nobbly Carrot and the Bendy Cucumber

. . .While selling such vegetables for Halloween decoration might have been a good idea, Sainburys had a different agenda, a "Save Our Ugly Fruit and Veg" campaign to highlight some of the European Commission's most mocked regulations, those requiring that all fruits and vegetables in 36 categories meet marketing standards in order to be sold anywhere in the European Union. . .

read the post

Food Safety Bill Backlash

From the WallStreet Journal:

Legislation to overhaul the nation's food-safety system has spurred a backlash from livestock and grain farmers who don't want the Food and Drug Administration inspecting farms.

The legislation, approved by the House Energy and Commerce Committee last month, aims to give the FDA more money and authority to police food safety, and technically doesn't apply to foods the agency doesn't regulate: meat, poultry and some egg products, which are regulated by the Department of Agriculture.

more

And also from CQ (Congressional Quarterly) Politics:

The House Agriculture Committee chairman threatened Thursday to slow the progress of a food safety bill until the concerns of farm groups are addressed.

Minnesota Democrat Collin C. Peterson said he is worried that the bill would allow the Food and Drug Administration to regulate farm activities.

read more

Concerns about antibiotics in animals

From the New York Times:

Administration Seeks to Restrict Antibiotics in Livestock
by Gardiner Harris

The Obama administration announced Monday that it would seek to ban many routine uses of antibiotics in farm animals in hopes of reducing the spread of dangerous bacteria in humans.

In written testimony to the House Rules Committee, Dr. Joshua Sharfstein, principal deputy commissioner of food and drugs, said feeding antibiotics to healthy chickens, pigs and cattle — done to encourage rapid growth — should cease. And Dr. Sharfstein said farmers should no longer be able to use antibiotics in animals without the supervision of a veterinarian.

more

The testimony referred to above was submitted to the House Rules Committee, which held a hearing Monday on the Preservation of Antibiotics for Medical Treatment Act of 2009 (PAMTA), sponsored by Congresswoman and biochemist Louise M. Slaughter (Dem. NY).

A video of the hearing is available on Congresswoman Slaughter's website, (or here -- video) .

$$ SEED MONEY $$

On January 12, 2009 the USDA fined the Olean Seed Co. $1,050.
On January 13, 2009 the USDA fined the Lesco Seed Co. $1,050.
Both companies neither admitted nor denied the charges.

William Mitchell College of Law student Michael Fahy emailed Sam Jones (Samuel.Jones@usda.gov) of the USDA.
He answers some questions:

Q. If you could, could you tell me how you found out?
A. We are informed by complaints submitted from State seed officials.
Q. Are there systematic inspections of shipments, or is it random?
A. Inspections are preformed at the State level, not Federal.
Q. How big was the shipment?
A. This would vary greatly, and I am not sure of the specifics of the shipments in question.
Q. What procedures do you normally employ?
A. Outlined above.
Q. How many seed inspectors does the government have? I am not sure of this number.
A. Each State has their own seed inspectors.
Q. Are there more to these cases?
A. No, they simply violated the FSA and were fined.
Q. Does this happen often with seed companies?
A. This does not occur often; there have only been 5 cases since October of 2008.
Q. Why $1,050?
A. Fines vary depending on violations and companies history.

Link: USDA Fair Trading Regulations

Organic Fertilizer Producer Might Be Full of It, Say Feds

According to an article by Jim Downing of the Sacramento Bee (republished on the Organic Consumers Association website), federal agents recently searched Port Organic Products Ltd. of Bakersfield, “a major producer of fertilizer for California's organic farmers.” The investigation raises concerns about the possible use of synthetic nitrogen-based fertilizers, which are banned by the organic industry primarily because they are not sustainable.

This investigation is significant because Port Organic Products produces over half of the liquid fertilizer used on California’s organic farms. And more importantly, California produces nearly “60 percent of the U.S. harvest of organic fruits, nuts and vegetables.”

The raid illustrates that “work remains to improve a patchwork regulatory system that presumes manufacturers tell the truth about their products.” After the raid, California Certified Organic Farmers (CCOF) ordered its clients to stop using Port’s products. “We are shocked at the lack of integrity of this manufacturer and we are doing our best to restore trust in the organic system,” said Claudia Reid, the group's policy director.

More:

Federal raid heightens concerns about fake organic fertilizer by Jim Downing (on the Sacramento Bee website).

A December 28 story on the same issue, also by Jim Downing of the Sacramento Bee: Organic farms unknowingly used a synthetic fertilizer

CCOF’s 2009 policy banning synthetic liquid fertilizers.

Thank you to William Mitchell College of Law student Mark Johson for preparing this post.

Vilsack confirmed as the new Secretary of Agriculture

The U.S. Senate confirmed former Iowa governor Tom Vilsack as Secretary of A griculture on Tuesday.  Vilsack plans to promote biofuels and to make the school lunches in America’s schools healthier.  He also hopes, along with Obama, to put a hard cap on subsidies for farms making more than $250,000 in a year.  Read the article here:

http://uk.reuters.com/article/usPoliticsNews/idUKTRE50J7ND20090120

Read why some people do not think that Vilsack will bring positive change to the USDA:
http://www.organicconsumers.org/articles/article_15573.cfm

Watch a video of Neil Hamilton, a professor of law and director of the Agricultural Law Center at Drake University, explaining why he supports the Vilsack appointment.  Hamilton focuses on Vilsack’s role in creating Iowa’s Food Policy Council.

http://www.supportvilsack.com/2009/01/07/a-message-of-support-by-professor-neil-hamilton/

Thank you to William Mitchell College of Law student Peter Hemberger for preparing this post.

Raw Milk and Gray Dye

In North Carolina, raw milk can only legally be sold for animal consumption.  So a black market has developed to meet some of the demand for raw milk for humans. Here's the fun:  last September, the N.C. Board of Agriculture adopted a rule that requires raw milk to be dyed gray in order to discourage humans from drinking it.  Ugh.

Now, according to a report on Indy Week.com, the Department of Agriculture is supporting a bill that will reverse this rule.

". . . the only two dairies licensed in the state to sell raw milk for animal consumption are both certified organic, and there is no black dye approved under the National Organic Standards, meaning the rule could have effectively put both dairies out of business.

Both raw milk dairies serve the significant market for raw milk for animal consumption, including zoos, wildlife rescue organizations and especially farmers caring for orphaned animals.

I don't think I could drink gray milk, raw or pasteurized.

Antibiotics for Chickens

When is an antibiotic not an antibiotic?  When it is administered "in ovo" according to Tyson Foods.

Earlier this month, Tyson Foods filed suit against USDA over the agency's ruling about Tyson's "Raised Without Antibiotics That Impact Human Antibiotic Resistance" label.  USDA's Food Safety and Inspection Service has found the label misleading because Tyson administered antibiotics to chicks while still in the egg.

FSIS originally gave Tyson until June 18 to stop using the label.  (FSIS statement, June 3, 2008.)  According to the Wall Street Journal, however, the deadline has been extended to July 9.

Since Tyson seems to be challenging the government's interpretation of the word "raised" I was curious about where the word is used -- statute? regulation?  So I poked around a bit.  Here's what I learned.

"Raised without antibiotics" is one of the commonly aproved animal production claims, provided the producer can demonstrate its validity.  Here's an excerpt from the FSIS guidance on animal production claims:

Commonly Approved Claims:

RAISED WITHOUT ADDED HORMONES, RAISED WITHOUT ANTIBIOTICS, NOT FED ANIMAL BY-PRODUCTS, FREE RANGE, FREE ROAMING, GRASS FED, CORN FED, GRAIN FED, CERTIFIED ORGANIC (BY CERTIFYING ENTITY).

Claims about the non-use of animal by-products have become popular lately due to fears about BSE.

UNAPPROVABLE CLAIMS:
ANTIBIOTIC FREE, HORMONE FREE, RESIDUE FREE, RESIDUE TESTED, NATURALLY RAISED, NATURALLY GROWN, DRUG FREE, CHEMICAL FREE, ORGANIC, ORGANICALLY RAISED.

Hormones are only approved for use in beef cattle and lamb production. They are not approved for use in poultry, hogs, veal calves or exotic, non-amenable species. Therefore, the phrase "no hormones administered" on a chicken label cannot be approved unless it is followed (directly) with the statement "Federal regulations prohibit the use of hormones in poultry."

USDA can withhold approval of a label if it finds it misleading. Section 457(d) of the Poultry Products Inspection Act (U.S. Code,Title 21, Ch. 10, Sec. 457(d) ) provides in part:

If the Secretary has reason to believe that any marking or labeling or the size or form of any container in use or proposed for use with respect to any article subject to this chapter is false or misleading in any particular, he may direct that such use be withheld unless the marking, labeling, or container is modified in such manner as he may prescribe so that it will not be false or misleading.

Open CRS Report: Food Safety Provisions in the 2008 Farm Bill

Food Safety Provisions of the 2008 Farm Bill,  May 27, 2008

Summary:

Food safety has re-emerged as an issue in the 110th Congress following a series of widely publicized incidents -- including adulterated Chinese seafood and pet food ingredient imports, findings of bacteria-tainted spinach, meat, and poultry produced domestically, and several large food recalls. In May 2008, Congress approved a new omnibus farm law (P.L. 110-234; H.R. 2419) that includes, among other provisions, several changes affecting U.S. food safety programs. Changes in the livestock title (Title XI) include subjecting catfish to U.S. Department of Agriculture (USDA) mandatory inspections similar to those for red meat and poultry; creating an option for state-inspected meat and poultry plants to ship their products across state lines; and requiring meat and poultry establishments to notify USDA about potentially adulterated or misbranded products.

Broiler chicken breeding practices do not stand up to scrutiny

According to a new study conducted by British researchers, broiler chickens bred for “fast growth” have been shown to exhibit difficulty walking, despite culling practices that were designed to remove severely lame birds from flocks.  The researchers concluded that a debate on the sustainability of these breeding practices is urgently required.  As a Science Daily article reported:

Dr. Toby Knowles of Bristol University's Division of Food Animal Science and colleagues assessed the walking ability of 51,000 chickens within 176 flocks. They also obtained information on approximately 150 different management factors associated with each flock.

The study found that at an average age of 40 days, over 27.6 per cent of birds showed poor locomotion and 3.3 per cent were almost unable to walk.
….

Dr Knowles said: "Broiler chickens have been subjected to intense genetic selection. In the past 50 years, broiler growth rates have increased by over 300 per cent from 25 g per day to 100 g per day.

Link to the study at PLoS ONE, an online research publication.

Thank you to William Mitchell College of Law student Ben Loetscher for preparing this post.