This Week's Top Story



This Week's Other Stories:

California Federal Order Proceeding Continues To Drag On

Health Canada Seeking Input On Proposed Front-Of-Package Nutrition Symbol For Food

FDA Releases 2017 Edition Of Food Code, For Food Offered At Retail And In Foodservice

On Empty Shelves and Other Follies, by Dan Strongin

Recognizing Barriers
to Growth, by John Umhoefer

Signs Are Good For Cheese, Butter Sales
by Bob Cropp

For Nielsens And Wapsie Valley, Independence Is More Than The City, It Keeps Them Growing


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Despite Delay, California Federal Order Could Be In Place In A Year

Even Without Delay, New California Order Couldn’t Be In Place Before October

In delaying the California federal milk marketing order rulemaking proceeding, the US Department of Agriculture (USDA) decided to advance the California order “in the fastest way possible while also making certain that it is not legally vulnerable to Constitutional challenge,” according to Stephen Vaden of USDA’s Office of the General Counsel.

Last week, USDA’s Agricultural Marketing Service (AMS) had announced a delay in the California federal order rulemaking proceeding and its intention to await a US Supreme Court decision on a related legal matter prior to proceeding further with the California rulemaking.

The legal matter centers around administrative law judges (ALJs). The federal government’s position is that ALJs are “inferior officers” of the US, subject to the Appointments Clause of Article II of the Constitution. At the time of the California federal order hearing in 2015, USDA believed ALJ Jill S. Clifton to be an employee of USDA and her appointment was completed in accordance with agency procedures.

However, if the Supreme Court determines that ALJs are inferior officers of the US rather than employees, then Clifton’s original appointment as an ALJ would be brought into question, AMS noted. The Supreme Court is expected to render its decision on or before the end of its term on June 30, 2018.

USDA had two options in this case, Vaden explained Tuesday during a conference call with stakeholders. It could have chosen to immediately implement the California order, assuming producer ratification, and have the order implemented by no later than October of this year, but if the US Supreme Court decides against the current appointment of administrative law judges, the California milk marketing order “would likely be vacated and we would have to start all over again.”

That would mean that a new California federal order, requiring a completely new hearing and a completely new process from step one, would not be implemented until late 2020 or early 2021, Vaden said.

The second option, the one chosen by USDA, was the ratification option. The agency, starting Tuesday, appointed a new officer to preside over the California federal order proceedings, who does not suffer from any constitutional infirmity, have that new officer review the record in full, reach an independent determination, and if he so determines, ratify the record.

The new officer may or may not seek additional feedback from affected parties, but in either case, that final decision, once ready, will be published; assuming a successful producer vote on ratification, it will be implemented no later than February of 2019, Vaden indicated.

US Secretary of Agriculture Sonny Perdue “has decided to take this option, with the one- to four-month delay that it entails, to prevent California milk producers from having to potentially wait

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