REGULATORY REGISTER Volume 23, Issue 2 Spring 2021
Activists File Petition with EPA to Regulate Dairy and Hog Farms Under the Clean Air Act Twenty-five environmental activist organizations from around the country filed a petition with the Environmental Protection Agency (EPA) requesting that EPA initiate rulemaking to regulate air emissions under the Clean Air Act (CAA). The petitioners specifically call for the regulation of dairy operations with 500 or more cows and hog operations with 1,000 hogs or more.
In this issue Comments to Lab-Grown Seafood Docket Submitted, Page 2 NMPF Supports Labeling Integrity through Dairy Pride Act, Page 3 NMPF Pushes Back on FDA Over Proposed Traceability Rule, Page 4 FARM to Resume On-Farm Evaluations, Adds Animal Care Task Force Members, Page 5
NCIMS Conference Postponed The 2021 National Conference on Interstate Milk Shipments is being postponed until April 7-12, 2022 after 94 percent of its delegates voted to postpone. The conference will take place at the J.W. Marriot in Indianapolis pending the approval of a contract. The planned 2023 edition of the biennial conference will be shifting to 2024. NMPF will convene its NCIMS Committee in approximately a month to discuss the arrangements and issues that may warrant proposals.
The activists argue that air emissions from dairy and hog operations cause and contribute significantly to air and climate pollution that endangers public health and welfare. They further assert that dairy confinement facilities and purchased feed are responsible for a 10.7 percent increase in dairy enteric emissions over the last 30 years. With respect to manure management, they assert methane emissions from manure have increased by 98.8 percent in recent decades. While the activists call for regulating large dairy and hog farming operations under the CAA, the effort seems more geared toward ending large-scale farming. According to the activist groups, larger operations regulated under the CAA would need to use “the best system of emission reduction” to mitigate the emissions, which, the petition states, would be well-managed pasture- based farming. Converting all dairy farms with 500 or more cows to pasture-based systems, however, would be extremely unrealistic given the amount of land necessary. The petition also labels dairy digesters as “the factory farm gas scheme.” It also asserts that biogas is “dirty energy” that allows corporate conglomerates with an ownership interest in the oil and gas industry to safeguard the role of fossil gas instead of transitioning to solar and wind. The activist position, in essence, is that that the biogas that could be generated by digesters is insufficient to meet our nation’s clean energy needs and diverts money and interest away from wind and solar. The petition does not mention any of the past, current and future accomplishments that have been made in environmental sustainability and technologies. The petition also does not appear to be in any way consistent with the Biden administration’s climate change initiatives. NMPF is discussing our response with our dairy industry associates as well as the pork, beef, and poultry associations. The petition is available here.
2019 NCIMS Conference
NMPF Submits Joint Letter Opposing Raw Milk Bills in New Hampshire and Montana NMPF submitted joint letters with the International Dairy Foods Association (IDFA) to Montana and New Hampshire’s state legislatures opposing the passage of raw milk bills that would expand the sale of raw milk and raw milk products within their states. The letters, submitted April 8, emphasized the public health risks associated with expanding the sale and consumption of raw milk and raw milk products. The letters state, “while choice is an important value, it should not pre-empt consumers’ wellbeing. To expand the sale of raw milk and raw milk products is an unnecessary risk to consumer safety and public health.” Montana SB 199, titled Provide for the Montana Local Food Choice Act, looks to allow for the sale of unpasteurized milk and cream from small dairies. New Hampshire HB 95 expands the sale of unpasteurized milk products from farmer direct to consumer to include ice cream and yogurt sold in no larger than 6 fluid ounce containers.
NMPF Comments on NRCS Conservation Practice Standards NMPF submitted two sets of comments to USDA in April on its Natural Resource Conservation Service (NRCS) Conservation Practice Standards. USDA-NRCS requested comments to revise the conservation practice standards in the National Handbook of Conservation Practices (NHCP). The first comments, submitted April 8 jointly with Newtrient LLC, were grounded in updating the conservation practice standards to make them more useful for dairy farmers as they work towards the 2050 US Dairy sustainability goals of being carbon neutral or better and improving water quality. The comments focused on fourteen different conservation practice standards ranging from air filtration & scrubbing (Code 371) to wastewater treatment – milk house (Code 627) with suggested improvements making them more useful for dairy farmers. NMPF joined a coalition of seventeen organizations in a second set of comments April 15. This large coalition submitted comments to specifically address the USDA NRCS on Conservation Practice Standard on Cover Crops (Code 340). While the coalition generally supported the revised Cover Crops standard, the coalition expressed serious concerns with the proposed change to disallow mechanical harvesting of cover crops for forage. At the core of the coalition concerns was the belief that this language will be a very serious disincentive to grower adoption of cover crops and as such will unnecessarily result in a net loss of working lands’ conservation benefits.
Comments to Lab-Grown Seafood Docket Submitted NMPF submitted comments March 8 to the request for information opened by FDA regarding the use of the word “cultured” on labels for lab-grown seafood products, using it as an opportunity to push FDA to enforce its current dairy standards of identity. The comments touched on three main points including: 1. FDA should enforce existing standards before creating new ones; 2. FDA should work to coordinate its policies with USDA; and 3. “Cultured” should not be used to describe lab-grown foods. NMPF pointed out that the use of the word “cultured” to describe lab-grown seafood could cause consumer confusion as cultured is a commonly used term to describe dairy products such as yogurt, kefir, cultured butter, and buttermilk. Instead of cultured, NMPF suggested terms that were more suited to describe lab-grown products such as “synthetic,” “lab-grown,” or “cell-based.” “To be clear, the issue is not that consumers will confuse dairy and seafood,” NMPF states. “They will not. Rather, the problem is that if the word ‘cultured’ becomes understood to refer to foods derived from synthetic processes not found in nature, consumers will think the same word on dairy labels means they have been manufactured similarly or that synthetic seafood products bearing such labeling contain natural cultures that have been in use for centuries – which is clearly not the case.” Lastly, NMPF reminded FDA that it is bound to follow the Administrative Procedures Act and cannot rewrite a rule through a stated guidance.
NMPF Supports Labeling Integrity Through Dairy Pride Act NMPF commended Representatives Peter Welch (D-VT) and Mike Simpson (R-ID) and Senators Tammy Baldwin (D-WI) and James Risch (R-ID) for reintroducing the DAIRY PRIDE Act on April 22, a bill that would bring clear, accurate labeling information for consumers and end harmful mislabeling of dairy foods by peddlers of plant-based products. The legislation requires the U.S. Food and Drug Administration (FDA) to enforce its own existing standards of identity on imitation dairy products after decades of inaction. The DAIRY PRIDE Act directs FDA to follow its own rules and establish an agency approach for enforcement of existing dairy standards of identity. “NMPF thanks Representatives Welch and Simpson and Senators Baldwin and Risch for reintroducing the bipartisan DAIRY PRIDE Act in both the House and Senate, yet one more example of their ongoing leadership working to ensure FDA does its job,” said Jim Mulhern, NMPF president and CEO. “FDA is responsible for the integrity and safety of our nation’s food, medicine, and medical devices, and it’s crucial that it enforce its own standards and requirements. Without enforcement, we are left open to the potential for questionable products, deceptive practices, and, in cases such as mislabeled plant-based products that masquerade as having nutritional benefits similar to dairy’s, negative effects to our health.” Standards of identity legally define what constitutes a specific food or food product, requiring the food product to carry certain qualities. When enforced, these legal standards protect consumers
by helping to ensure the integrity of their food. Standards also create a common understanding of what a food product is, helping consumers make informed choices. FDA’s lack of enforcement of dairy standards of identity has led to consumer misunderstanding of the nutrients – or lack thereof – in imitation dairy products. An IPSOS survey conducted in 2018, for example, found that 73% of consumers surveyed believe that almond-based beverages have as much or more protein per serving than milk. In reality, milk has up to eight times as much protein. A follow-up survey found that roughly 50 percent of consumers mistakenly believe that the main ingredient in a plantbased beverage is the plant itself. Such drinks are actually mostly flavored water. Medical groups including the American Academy of Pediatrics are voicing concerns over the harm this confusion is having on public health as misinformed consumers unintentionally choose less nutritious products for themselves and their families. Congress has also shown a growing concern for FDA’s failure to enforce. In early 2020, the House held a hearing on the agency’s lack of enforcement. Then late last year Congress included in the report accompanying the FDA funding bill for FY 2021 a statement of concern and directive to FDA regarding enforcing dairy standards of identity. “The reintroduction of the DAIRY PRIDE Act helps NMPF and consumers continue to move forward toward solving this critical public health and fairness issue,” Mulhern said.
NMPF Pushes Back on FDA Over Proposed Traceability Rule NMPF filed comments Feb. 22 urging FDA to withdraw a proposed traceability rule that identifies what foods are high-risk and would warrant additional recordkeeping requirements to improve their traceability. FDA proposed that all cheeses other than hard cheese should be considered high-risk foods. FDA’s risk-ranking model, under the proposal, would place “pasteurized cheese, other than hard” as the riskiest of all foods in the marketplace — even above cheese made from raw milk, a finding NMPF thought was absurd. This questionable ranking was partly caused by FDA adding a new criterion to its risk ranking model beyond what Congress had instructed it to do in the Food Safety Modernization Act, landmark food-safety legislation that became law in 2011. FDA added consumption data to the model, which had the effect of increasing a food’s risk rating due to its popularity. NMPF stated in
its comments that popularity and risk do not go hand-in-hand — nor can FDA override what Congress has directed. The comments also took issue with the agency’s interpretation that cheese made with pasteurized milk is not a food that has been subjected to a kill step, and therefore that full recordkeeping provisions should apply. Food subjected to a kill step has significantly fewer recordkeeping requirements, according to the proposed rule. This rule, if put into effect, would increase consumer confusion, as FDA has long told consumers to choose pasteurized cheeses over raw-milk cheeses based on food safety concerns. NMPF reviewed comments filed by the International Dairy Foods Association and supported their filing in its comments.
Lawmakers Support Whole Milk in Schools, Child Nutrition Ahead NMPF thanked Congressmen Glenn “GT” Thompson (R-PA) and Antonio Delgado (D-NY) for introducing the bipartisan Whole Milk for Healthy Kids Act of 2021, which would allow for both unflavored and flavored whole milk to be offered in school cafeterias. Reps. Thompson and Delgado introduced the measure on March 11. Children’s nutrition is a key public-health concern, with dairy underconsumption a pressing issue. The Dietary Guidelines Advisory Committee that crafted the current Dietary Guidelines for Americans in July found that 79 percent of 9-13-year-olds don’t meet the recommended intake for dairy. The Whole Milk for Healthy Kids Act would improve child nutrition by encouraging greater consumption of milk, which delivers three of the four nutrients considered to be a public health concern (calcium, Vitamin D, and potassium).
NMPF President and CEO Jim Mulhern thanked Thompson and Delgado for introducing the measure, noting “Whole milk provides a valuable way for children to obtain dairy’s nutritional benefits as part of a healthy eating pattern.” NMPF is preparing for the reauthorization of child nutrition programs, which the Senate Agriculture, Nutrition and Forestry Committee has announced as a policy priority this year. Among other child nutrition programs are the school breakfast and lunch programs, the summer food program, and the Special Supplemental Nutrition Program for Women, Infants, and Children (WIC). NMPF will continue partnering with other dairy and nutrition stakeholders in its ongoing work with Congress and USDA to ensure everyone in the U.S. has access to healthy, affordable food.
FARM to Resume On-Farm Evaluations, Adds Task Force Members The National Dairy Farmers Assuring Responsible Management (FARM) Program plans to resume program on-farm evaluation activity on Sept 1, while reinstating deadlines nationwide. FARM also approved nominations for new Animal Care Task Force members. Effective that date, evaluation and corrective action plan deadlines will be reinstated and all recommendations to forego on-farm activities related to the FARM Program will be rescinded. Also, program cycles are now extended to June 30, 2024, for all program areas (Animal Care 4.0, Environmental Stewardship 2.0 and Workforce Development 1.0). Resources for evaluators can be found on the new Evaluators and Trainer page on the FARM website in addition to events, training information, and FAQs. Meanwhile, the NMPF Animal Health and Well-Being (AHWB) Committee approved nominations for the FARM Animal Care Task Force members who will serve as FARM Animal Care Version 5.0
FARM Welcomes Sustainability Initiatives Coordinator Sage Saffran joined the FARM team on Feb. 1 as its Sustainability Initiatives Coordinator, supporting FARM’s Environmental Stewardship and Workforce Development program areas. Immediately prior to joining the FARM team she was the Public Policy Intern at the National Association of State Departments of Agriculture (NASDA) where she worked with leaders of agriculture across all 50 states and four U.S. territories on policy solutions. Saffran grew up in a small Connecticut town, with a dairy farm neighboring her back yard. She is a recent graduate of the University of Connecticut with a B.S. in Animal Science and Applied Resource Economics. Sage is an avid polo player and proud alumni of the UConn Polo Team. She enjoys rock climbing, hiking, and spending time outdoors.
discussions commence. Stakeholders across the U.S. dairy industry nominated the new members to fill existing vacancies on the task force, formerly called the Technical Writing Group. The task force now consists of five farmers of varying operation size and geography, five representatives from co-ops and processors, four veterinarians, four academics, and one representative from the National Cattlemen’s Beef Association. More information on the task force, its responsibilities, and a full list of members, is here. FARM conducted its first evaluator training as part of the Workforce Development (WFD) program area March 10-11. The training equips FARM evaluators to conduct WFD Version 1.0 evaluations. A total of 10 evaluators participated in the twoday program administered by ACER Consulting, FARM’s training provider.
NMPF Regulatory Staff Clay Detlefsen, Esq. Senior Vice President, Regulatory & Environmental Affairs cdetlefsen@nmpf.org Clay deals with initiatives related to food safety and defense, product labeling, and environmental issues. Jamie Jonker, Ph.D. Vice President, Sustainability & Scientific Affairs jjonker@nmpf.org Jamie’s work in sustainability and scientific affairs includes animal health, biotechnology, biosecurity, air and water quality issues, sustainability, and technical service issues. Miquela Hanselman Manager, Regulatory Affairs mhanselman@nmpf.org Miquela’s regulatory efforts focus on issues related to interstate shipments of milk, food safety, labeling, nutrition and the environment.