The Biden administration has been moving — quickly in some cases, more slowly in others — to implement its regulatory agenda over the past three years, but the president's ultimate success will depend in large part on what happens in 2024.
As the new year begins, the ag industry will be on the lookout for new regulations addressing everything from the way the poultry industry operates to how pesticides can be applied in the habitat of endangered species. At FDA, a major reorganization of the human foods program will be the subject of scrutiny.
In a statement, Agriculture Secretary Tom Vilsack said USDA plans to build on work done in 2023 to put “extra momentum behind the work we’ll carry out in 2024” in advancing several policies and programs that are “better designed for the real needs of rural communities” and create new markets for farmers.
Here’s an overview of some key changes or proposals:
DEPARTMENT OF AGRICULTURE
Packers and Stockyards Act updates: Early in 2024, poultry dealers will need to start reporting new details on their poultry contracts, one installment of the long-awaited Packers and Stockyards Act updates.
In the Biden administration's Fall 2023 unified regulatory agenda, USDA said it also plans to issue a proposed rule “providing clarity regarding conduct that may violate the [P&S] Act, including addressing harm to competition.”
“There’s policy and political resistance from certain interests and from Congress as to going forward with those rules,” said Bob Hibbert, senior counsel at the Wiley law firm who specializes in USDA issues. He predicted litigation is likely.
Product of USA labeling: In 2024, USDA plans to finalize its proposal to clarify the “Product of USA” label, which would require meat bearing the label claim to come from an animal born, raised, slaughtered and processed in the U.S. The proposal came after calls to reform the label and concerns it was being applied to foreign-born product processed in American facilities.
Some industry stakeholders fear the proposal would reignite trade concerns with Mexico and Canada reminiscent of the mandatory country-of-origin labeling challenges.
Hibbert said he believes the proposed rule allows for a workable solution for the meat sector that is “relatively uncontroversial” and believes USDA “will be able to thread that needle, and get that rule finalized.”
Salmonella in poultry: USDA’s Food Safety and Inspection Service released last April a proposed determination to declare salmonella an adulterant in breaded stuffed raw chicken products when contamination exceeds a very low level of salmonella. Typically, partially cooked chicken products require additional cooking by consumers that would kill any potential contamination. This rule puts the onus back on the food producers.
“The agency has to get creative with the law by saying there are different rules for when you have an added substance versus something naturally occurring,” Hibbert said.
He expects USDA to try to finalize the salmonella rule before the end of the year.
Nutrition updates coming: USDA this year will expand its “efforts to reduce hunger and promote healthy eating” through the finalization of two rules, including updates to school meal nutrition standards to align them with the latest Dietary Guidelines for Americans, and changes to the Women, Infants and Children food package to “provide a greater variety of foods that align with the latest nutritional science.”
ENVIRONMENTAL PROTECTION AGENCY
Pesticides and the Endangered Species Act: Ag organizations and USDA will be watching closely to see how the Environmental Protection Agency modifies a pair of strategies for reducing pesticide use to protect endangered species. One targets herbicides, while the other is a “pilot” program on the use of pesticides generally in the habitat of 27 endangered species.
The agency released the herbicide strategy in July and must complete it by May 30, 2024, according to a settlement agreed to by EPA and industry groups in what’s been called the “megasuit” brought by environmental groups seeking action on the impacts of pesticides on endangered species and people.
In comments on a recent Agri-Pulse Open Mic, American Soybean Association CEO Steve Censky said “what is really of concern about the EPA’s new herbicides strategy is that it could potentially make the use of those crop protection products difficult or impossible over large swathes of the American heartland. We're very much concerned about that.”
EPA also expects to make a final decision in the fall on whether it should expand the approach in the pilot project to include other species.
EPA is also working to finalize a biological evaluation that will function as EPA’s strategy for regulating the use of 11 rodenticides.
Pesticide-treated seeds: On a matter that does not come with a formal deadline, EPA will be looking at whether to regulate pesticide-treated seeds differently than the way it does now. Treated seeds are currently exempt from registration requirements under the Federal Insecticide, Fungicide, and Rodenticide Act if they meet the criteria for what is known as the treated article exemption.
In September 2022, the agency denied a petition from environmental groups that sought tighter regulation of treated seeds. The groups then sued EPA in June 2023.
Pesticides and farmworkers: The agency also is considering comments on whether to reinstate requirements designed to protect farmworkers and nearby residents from pesticide applications . As originally published in 2015, EPA has proposed both 25-foot and 100-foot “application exclusion zones.” The agency expects to publish its final rule by April.
Packing plants and water quality: Another major effort underway this year at EPA will focus on setting effluent guidelines for meat and poultry processing plants . Public hearings on a proposed rule published in December are scheduled for Jan. 24 and Jan. 31. The proposal itself has yet to be published in the Federal Register, which would trigger the 60-day public comment period.
EPA’s “preferred option” in the proposal would affect 844 facilities, or about 21% of the approximately 5,055 meat and poultry processing operations around the country, the agency said, concluding that the impact on small businesses would not be significant.
The proposal would set phosphorus limits for large direct dischargers as well as more stringent nitrogen limits for large direct dischargers based on full denitrification.
There also would be new pretreatment standards for large indirect dischargers “based on very basic wastewater treatment such as screening and [dissolved air flotation] technologies,” EPA said.
One group, the American Association of Meat Processors, said it would have liked to have seen more legwork done upfront.
AAMP Executive Director Chris Young said the group was glad to see the effort EPA made to minimize the impact on small businesses. Nevertheless, AAMP “is still concerned about the overall impact of the rule on the industry as a whole, and we would have liked to have seen EPA spend more time gathering data from a larger sampling of plants to get a better picture of the industry as a whole, rather than testing wastewater from a handful of plants,” Young said.
Future of E15: An EPA action allowing eight Midwestern states to sell E15 year-round was sent to the Office of Management and Budget for review on Dec. 18.
In a year-end review of Renewable Fuels Association activities, CEO Geoff Cooper said the group is “hoping to see that final rule published and implemented here in the next several weeks — certainly well ahead of the 2024 driving season.”
States and water quality trading: EPA plans to issue a proposed rule on how state agencies can employ water quality trading and “other market-based approaches” in National Pollutant Discharge Elimination System permits. The proposal is tentatively scheduled to appear in April, with a final rule later in the year.
Though the practice is in no way widespread, EPA notes that “water quality trading can allow facilities subject to strict requirements to purchase nutrient reductions from other treatment plants, farms, or other nutrient sources to achieve the same or better water quality outcome at a lower cost.”
FOOD AND DRUG ADMINISTRATION
FDA reorganization: FDA has proposed a major overhaul of its food regulatory responsibilities with the creation of the Human Foods Program and reconfiguration of subagency responsibilities. Currently, the Department of Health and Human Services is reviewing FDA’s proposed reorganization plan before it is sent to the Office of Management and Budget and House and Senate appropriations committees for a 30-day review. FDA then will engage with its unions to finalize the reorganization, which is expected by this summer.
FDA is proposing to rename the Office of Regulatory Affairs as the Office of Inspections and Investigations to solidify its role as the front line of the FDA’s field-based inspection, investigation and import operations.
Ann Begley, who chairs the food and drug practice at Wiley, said the reorganization will create a major change in how food is regulated. “The industry is watching very closely to see how it impacts how they operate,” Begley said, specifically mentioning the inspection changes.
Food additives: Michael Dykes, CEO of the International Dairy Foods Association, said he expects FDA Deputy Commissioner of Human Foods Jim Jones to focus on chemicals and foods, and probably start a discussion on ultraprocessed foods. Jones already took quick action in November to ban brominated vegetable oil, and more could be on FDA’s radar in 2024.
Yuka, an app used by 45 million users around the world to decipher food labels to learn more about their ingredients, predicts that potassium bromate, Red Dye No. 3 and propylparaben may all be banned nationwide in 2024, as they were recently by California legislation that goes into effect in 2027.
Potassium bromate is used to improve leavening during baking and propylparabens are used for antimicrobial food preservation.
Front-of-label packaging: FDA is expected to act this year on finalizing front-of-package labeling to promote healthy food options and encourage consumers to make healthier food choices. Nutrition-related claims on food packages are common but can mischaracterize what is healthy. For example, 97% of fruit drinks carry some type of claim like “100% Vitamin C” or “Natural.”
While speaking at a Senate Health, Education, Labor and Pensions Committee hearing in December, Lindsey Smith Tallie, co-director of the Global Food Research Program at the University of North Carolina at Chapel Hill, said many of the designs FDA is currently evaluating may do more harm than good.
“Several of the proposed FDA labels include numbers or color schemes that research shows consumers do not understand,” Smith Tallie said. “In contrast, simple nutrient warnings like those in Mexico and most of South America are well understood even by children.”
IDFA's Dykes said the labeling also needs to account for the product as a whole and whether it is a nutrient-rich food, not just specific ingredients. “Ten grams of sugar in a glass of milk is far better than 10 grams of sugar in a soda when there’s nothing else.”
Feed additive regulatory approvals: All eyes are on whether FDA will approve Elanco’s methane-reducing feed additive, Bovaer, in early 2024. Gregg Doud, the new CEO of the National Milk Producers Federation, said the slow approval process domestically is hurting U.S. competitiveness internationally.
“We have got to get our government to a point where they don’t hamstring us to a point where this technology and this specimen leaves this country and goes somewhere else because our government can’t get it done,” Doud said.
SECURITIES AND EXCHANGE COMMISSION
A major non-EPA rulemaking that has the ag industry concerned is the 2022 proposal by the Securities and Exchange Commission to require some companies to report greenhouse gas emissions data. Numerous trade associations have said small to mid-size farms could be subject to onerous reporting requirements.
Recent reporting indicates that the SEC may be pulling back on its proposal out of concern for potential litigation. The SEC has not said when it plans to release its final rule.
Farmworker issues: The Labor Department is crafting a final rule from its September proposal to expand protections for farmworkers, and the Department of Homeland Security is working on its own rule dealing with temporary workers.
Ag trade associations have criticized both proposals.
The Labor Department estimates it will issue a final rule by April; DHS’s latest regulatory update did not include a date by which it expects to complete its work.
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