A comprehensive summary of today’s judicial, legislative, and regulatory developments in agriculture and food. Email important additions HERE.


ANNOUNCEMENT: Join us Wednesday, April 18th at 12 noon (ET) for a FREE webinar: Examining the Landscape of Agricultural Certainty Programs in the United States. Details available here.


JUDICIAL: Includes NEPA, crop insurance, and food labeling issues.

SIERRA CLUB; ELYRIA AND SWANSEA NEIGHBORHOOD ASSOCIATION; CHAFFEE PARK NEIGHBORHOOD ASSOCIATION; and COLORADO LATINO FORUM, Plaintiffs, v. FEDERAL HIGHWAY ADMINISTRATION, ELAINE CHAO, in her official capacity as Secretary of Transportation; and JOHN M. CARTER, in his official capacity as Division Administrator, Defendants, and COLORADO DEPARTMENT OF TRANSPORTATION, and MICHAEL P. LEWIS, in his official capacity as Executive Director of the Colorado Department of Transportation,1 Defendant-Intervenors, No. 17-cv-1661-WJM-MEH Consolidated with 17-cv-1679-WJM-MEH, 2018 WL 1610304 (D. Colo. April 3, 2018) concerned a 1.2-mile viaduct running through a Denver neighborhood. Colorado Department of Transportation (CDOT) decided to “tear it down and rebuild the roadway below grade at a depth of up to 40 feet.” National Environmental Policy Act (NEPA) required Colorado Highway Administration to prepare an environmental impact statement (EIS). Plaintiffs argued defendants did not fulfill their NEPA duties when choosing to approve the project and sought motion to stay. Plaintiffs asked court to make defendants “redo the NEPA process before considering again whether to pursue the plan to lower I-70 below grade.” Issue for court was “whether NEPA required Defendants to investigate human health effects of air pollution levels below what NAAQS would permit.” Citing case case law, court observed that “[t]he Highway Administration does not act arbitrarily and capriciously by relying on the prevailing NAAQS standard EPA has set.” Motion to stay denied.

In FARM CREDIT MIDSOUTH, PCA APPELLANT/CROSS-APPELLEE v. FRED BOLLINGER, JR.; BOLLINGER LONE OAK, INC.; AND BOLLINGER PARTNERS, INC. APPELLEES/CROSS-APPELLANTS, No. CV-16-739, 2018 Ark. App. 224 (Ark. Ct. App. April 4, 2018), a dispute arose between Farm Credit and defendants after Farm Credit made equipment loans to defendants’ farming operations, “secured by various security agreements and mortgages granting Farm Credit liens in the [defendants’] crops, government payments, crop insurance, equipment, and real estate.” Among a host of claims, defendant argued Farm Credit “mishandled their claim so that they did not recover all of the proceeds they were due.” Per this issue, Farm Credit argued “a policyholder has a duty to educate himself concerning matters of insurance . . . and that an insurance agent generally has no duty to advise or inform policyholders as to different coverages.” Trial court jury found Farm Credit was not negligent in its handling of defendant’s crop insurance claims. Appellate court noted that evidence regarding Farm Credit’s negligence “presented a jury question,” and affirmed jury’s verdict on defendants’ crop-insurance claims.

In Suzanna BOWLING, Plaintiff, v. JOHNSON & JOHNSON and McNeil Nutritionals, LLC, Defendants, 17-cv-3982 (AJN), 2018 WL 1587598 (S.D.N.Y. March 28, 2018), plaintiff brought class action alleging that defendants’ Benecol Spreads were “falsely and misleadingly labeled as containing no trans fat and no trans fatty acid.” Defendants filed motion to dismiss and argued plaintiff’s claims “are expressly preempted because the National Labeling and Education Act (NLEA) expressly preempts state laws that impose labeling requirements different from those imposed by federal law.” Court observed federal regulations “do not authorize ‘no trans fat’ nutrient content claims.” The court also recognized the FDA explicitly authorizes “no fat” and “no saturated fat” nutrient content claims, “but not ‘no trans fat’ nutrient content claims.” Defendants’ motion to dismiss denied.

In Josh DAVIS, individually and on behalf of all others similarly situated, Plaintiff, v. The HAIN CELESTIAL GROUP, INC; and Hain Blueprint, Inc., Defendants, 17–cv–5191–ARR–RML, 2018 WL 1611375 (E.D.N.Y. April 3, 2018), plaintiff sued juice maker alleging deceptive product labeling, claiming defendant’s labels “misleadingly create the impression that the juice was not processed after being cold pressed.” Issue was distinction between the terms “cold pressed” and “cold pressed juice.” Court observed “cold pressed juice that is not subject to subsequent processing is generally sold in stand-alone stores, for approximately ten to twelve dollars, and has a shelf life of only three to five days.” Noting that plaintiff purchased from a “non-specialty” store, court concluded that “a reasonable consumer in his situation would not have expected to receive an unprocessed cold-pressed juice.” Defendant’s motion to dismiss granted per plaintiff’s fraudulent misrepresentation claim.


LEGISLATIVE: 

S. 2030: Ceiling Fan Energy Conservation Harmonization Act. Signed by President.

MEETING: House Committee on Natural Resources: Subcommittee on Federal Lands Meeting. April 11, 2018 2 p.m. Location: LHOB 1324.


REGULATORY: Includes AMS, USDA, APHIS, EPA, FWS, NAL, and NOAA rules and notices.

AGRICULTURAL MARKETING SERVICE:

Rule makes nomenclature changes to subpart headings in AMS regulations to bring the language into conformance with the Office of the Federal Register requirements. Info here.

Rule invites comments on amending AMS regulations regarding a fresh mango national research and promotion program to include frozen mangos as a covered commodity. Info here.

Rule would implement a recommendation from the Far West Spearmint Oil Administrative Committee to establish salable quantities and producer allotments of Class 1 and Class 3 spearmint oil produced in Washington, Idaho, Oregon, and designated parts of Nevada and Utah for the 2018-2019 marketing year. Details here.

AGRICULTURE DEPARTMENT: Notice USDA will submit the following information collection requirement(s) to OMB for review. Title: Regulations Governing the Inspection and Grading of Manufactured or Processed Dairy Products—Recordkeeping (Subpart B). Info here.

ANIMAL AND PLANT HEALTH INSPECTION SERVICE: Rule amending the fruits and vegetables regulations to list lemon from Chile as eligible for importation into the continental United States subject to a systems approach. Info here.

ENVIRONMENTAL PROTECTION AGENCY:

Rule EPA is taking final action to approve a revision to the Yolo-Solano Air Quality Management District portion of the California State Implementation Plan (SIP). Info here.

Rule EPA is taking final action to approve a State Implementation Plan (SIP) revision submitted by Colorado on May 16, 2017. Info here.

Rule EPA is taking final action to find that three states have failed to submit timely revisions to their state implementation plans (SIPs) as required to satisfy certain requirements under the Clean Air Act (CAA) for implementation of the annual 2012 Fine Particulate Matter National Ambient Air Quality Standards. Details here.

Rule EPA is taking final action to approve revisions to the State Implementation Plan (SIP), Operating Permits Program, and 112(l) Program submitted on July 14, 2014, by the State of Nebraska. Info here.

Rule EPA is proposing amendments to the National Emission Standards for Hazardous Air Pollutants for Wet-Formed Fiberglass Mat Production to address the results of the residual risk and technology review (RTR) that the EPA is required to conduct in accordance with section 112 of the Clean Air Act. Details here.

FISH AND WILDLIFE SERVICE:

Rule FWS determine threatened species status under the Endangered Species Act for Louisiana pinesnake, a reptile species from Louisiana and Texas. Info here.

Rule FWS proposes a rule under section 4(d) of the Endangered Species Act for the Louisiana pinesnake, a reptile from Louisiana and Texas. Details here.

Notice FWS will renew an information collection. Title: Alaska Guide Service Evaluation. Details here.

Notice FWS will renew an information collection. Title: Control and Management of Resident Canada Geese. Details here.

Notice FWS issued permits to conduct activities with endangered and threatened species under the authority of the Endangered Species Act. Details here.

NATIONAL AGRICULTURAL LIBRARY: Notice NAL will request an extension of currently approved information collection form related to the Animal Welfare Information Center’s workshop, Meeting the Information Requirements of the Animal Welfare Act. Details here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Notice NMFS has made a preliminary determination that an Exempted Fishing Permit Application from the Commercial Fisheries Research Foundation contains all the required information and warrants further consideration. Info here.

Notice the New England Fishery Management Council (Council) is scheduling a public meeting of its Habitat Committee to consider actions affecting New England fisheries in the exclusive economic zone. Details here.

Notice the South Atlantic Fishery Management Council (Council) will hold a joint meeting of its Golden Crab Advisory Panel and Deepwater Shrimp Advisory Panel in Daytona Beach, FL. Info here.