Legal Challenges Facing the Mushroom Industry

Transcription

1 Ross H. Pifer, J.D., LL.M., Director Legal Challenges Facing the Mushroom Industry 52 nd Annual Mushroom Industry Conference Penn State University

2 The Agricultural Law Resource and Reference Center is a collaboration between: Penn State Law Pennsylvania Department of Agriculture Penn State College of Agricultural Sciences 2

3 Agricultural Law Center Activities Outreach Presentations Educational Programs Publications Web site The Agricultural Law Brief Research Current substantive focus areas 3

4 Overview of Presentation Trends in Food Law Municipal regulation of composting 4

5 Trends in Food Law Increasing traceability throughout the food system Increasing consumer connection to food Increasing calls for food safety improvement Increasing focus on food safety litigation 5

6 Trends in Food Law Increasing traceability throughout the food system Increasing consumer connection to food Increasing calls for food safety improvement Increasing focus on food safety litigation 6

7 Increasing Traceability What is Traceability? Degree of traceability Complete traceability Partial traceability (COOL, organic, etc.) Impacts all levels of food system 7

8 Benefits of Traceability Minimize impact of food contamination incident Enables assessment of responsibility Provides consumers with attribute information 8

9 Costs of Traceability Increased record keeping Increased product segregation Limitation on number of suppliers Implementation of special handling / distribution procedures 9

10 Trends in Food Law Increasing traceability throughout the food system Increasing consumer connection to food Increasing calls for food safety improvement Increasing focus on food safety litigation 10

11 Areas of Consumer Concern Pesticides Treatment of animals Specific nutrient content Specific ingredients Use of certain agricultural practices Use of certain processing methods Use of biotechnology Treatment of agricultural workers Low carbon footprint Locally produced 11

12 Legal Impacts of Increased Consumer Connection Food labeling requirements Country of Origin Labeling Nutrition labeling Regulation of Production claims Promotion of local food systems Increased development of National Organic Program 12

13 Trends in Food Law Increasing traceability throughout the food system Increasing consumer connection to food Increasing calls for food safety improvement Increasing focus on food safety litigation 13

14 Increasing Calls for Food Safety Improvement I, for the life of me, cannot understand why the terrorists have not, you know, attacked our food system because it is so easy to do. Tommy G. Thompson, U.S. Secretary of Health and Human Services, Dec. 3,

15 Food Safety Developments Executive Branch Food Safety Working Group Governor s Food Safety Council FDA Reportable Food Registry (Sept. 9, 2009) 15

16 Food Safety Developments Federal Legislative Branch Food Safety Enhancement Act HR 2749 Passed by House on July 30, 2009 Food Safety Modernization Act S 510 Approved by Senate Committee on Nov. 18,

17 Federal Food Safety Legislation General areas of coverage: Increased FDA authority Mandatory recall authority Registration fees for food facilities Increased FDA access to records Increased inspections Foreign inspections Increased quarantine authority Not addressed: Single food safety agency Separation of FDA s food and drug responsibilities 17

18 Food Safety Developments Legislative Branch Pennsylvania Sales by Non-Profit Entities (S 828) Broad food safety legislation? 18

19 Trends in Food Law Increasing traceability throughout the food system Increasing consumer connection to food Increasing calls for food safety improvement Increasing focus on food safety litigation 19

20 Theories of Tort Liability Intentional conduct Negligent conduct Strict liability for a defective product 20

21 Products Liability Negligent conduct Strict liability for a defective product Breach of warranty 21

22 Protective Measures to Reduce Risk of Liability Utilize practices to minimize risk of contamination Educate consumers as to proper use and handling of products Educate consumers as to potential risks Warnings? Waivers of liability? Provide good customer service Maintain adequate insurance 22

23 Examples of Foodborne Illness Attorney Web sites

24 Agriculture, Communities, and Rural Environment Act (ACRE) Pennsylvania Act 38 of Pa. Cons. Stat

25 Lower Oxford Township (Chester Co.) Composting Ordinance Required water feasibility study to evaluate impact on groundwater Setbacks from residential development for processing or storage of compost Plan re: access to site and odor control Composting required to be conducted in enclosed buildings Setbacks from water courses / supplies No nuisance or hardship on adjoining property owners Composting must be fenced 25

26 Basic Premise of ACRE ACRE addresses municipal regulation of normal agricultural operations. A local government unit shall not adopt nor enforce an unauthorized local ordinance. 3 Pa. C.S.A. 313(a) 26

27 Key Definitions Local government unit Unauthorized local ordinance Normal agricultural operation 27

28 Local Government Unit Any political subdivision of the Commonwealth Primary application of ACRE is to townships 28

29 Unauthorized Local Ordinance Any ordinance enacted by a local government unit that prohibits or limits a normal agricultural operation unless: Local government unit has authority under state law to adopt the ordinance; and Local government unit is not prohibited nor preempted by state law from adopting the ordinance. 29

30 Normal Agricultural Operation The activities, practices, equipment, and procedures utilized in production, harvesting, and preparation for market Of agricultural, agronomic, horticultural, silvicultural, and aquacultural crops and commodities For operations that are at least ten acres in size or produce annual gross income of at least $10,000 30

31 Procedure Under ACRE Producer submits written request to Attorney General s Office for review of ordinance. Attorney General has 120 days to determine whether to accept case. 31

32 Procedure Under ACRE If Attorney General accepts case, municipality is given opportunity to discuss ordinance before suit is filed. Attorney General will file suit in Commonwealth Court if unable to resolve issue with municipality. 32

33 Procedure Under ACRE Costs of action are borne by Attorney General s Office not landowner. Litigation in Commonwealth Court establishes statewide precedent. 33

34 Lower Oxford Township March 24, 2004 Ordinance enacted July 6, 2005 ACRE enacted November 2005 Request for review submitted to Attorney General (AG) June 29, 2006 AG filed suit in Commonwealth Court Ordinance preempted by Nutrient Management Act, Ag Area Security Law, Right to Farm Act 34

35 Attorney General Reports 7/6/05 to 7/6/06 16 requests for review 7/6/06 to 7/6/07 19 requests for review 7/6/07 to 7/6/08 8 requests for review 7/6/08 to 7/6/09 15 requests for review 35

36 Governments Roles in Natural Gas Development Ross Pifer, J.D., LL.M., Director Phone: (814) Web: 36