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


JUDICIAL: Includes food labeling, landowner liability, renewable energy, and antitrust issues.

In Stephen Wilson, et al. v. Odwalla, Inc., et al, No. CV 17-2763 DSF (FFMx), 2017 WL 3084278 (C.D. Cal. June 28, 2017), plaintiff purchased defendant’s “100%” juice products that include the claim “No Added Sugar” on their label and filed class action alleging defendant violated California’s Unfair Competition Law (UCL), False Advertising Law (FAL), and Consumer Legal Remedies Act (CLRA). Per statute, a “no added sugar” claim is precluded unless “[t]he food that [the product] resembles and for which it substitutes normally contains added sugars.” Defendant moved to dismiss, claiming defendant “cannot be misled in the future because he now understands the ‘No Sugar Added’ label.” Defendants’ motion to dismiss for failure to state a claim denied after court concluded, “If plaintiffs in false advertising actions are precluded from seeking injunctive relief because by bringing suit they admit knowledge of the alleged falsity, unlawful practices . . . could never be enjoined.”

MONDELEZ GLOBAL LLC (SUCCESSOR TO CADBURY ADAMS USA, LLC), Plaintiff, v. UNITED STATES, Defendant, No. 12–00076, Slip Op. 17–92, 2017 WL 3149335 (Ct. Intl. Trade July 25, 2017) involved a dispute regarding the classification of gum base used in chewing gum. Defendant argued that United States Customs properly classified the disputed merchandise as a “food preparation” under the Harmonized Tariff Schedule of the United States. Plaintiff (Mondelez) countered that the gum base is properly classified as a “chemical product and preparation of the chemical or allied industries.” Court reasoned that the government “must establish that gum base is valued for its nutritive properties,” and denied both parties’ motions for summary judgment.

In Nicholas ABRAHAMS, an infant by his mother and natural guardian, Ann Marie REID, et al., appellants, v. CITY OF MOUNT VERNON, respondent, et al., defendant, 2017 WL 3045891 (N.Y. App. Div. July 19, 2017), plaintiffs sued to hold municipality liable for damages allegedly caused by a dog in its care at a shelter. Court observed that, “The City’s act of providing an animal shelter constitutes a governmental function and, therefore, it cannot be held liable absent the existence of a special relationship between it and the plaintiffs giving rise to a special duty of care.” Defendant provided evidence demonstrating that there was “no special relationship between it and the plaintiffs, as it was performing a governmental function for the benefit of the general public,” and court granted motion to dismiss.

AMERICANS FOR CLEAN ENERGY, ET AL., PETITIONERS v. ENVIRONMENTAL PROTECTION AGENCY AND E. SCOTT PRUITT, ADMINISTRATOR, RESPONDENTS, E.I. DU PONT DE NEMOURS AND COMPANY, ET AL., INTERVENORS, No. 16-1005, 2017 WL 3202630 (D.C. July 28, 2017) concerned a 2015 Final Rule issued by the EPA setting renewable fuel requirements for the years 2014 through 2017. Plaintiffs, including various companies and interest groups, challenged the Final Rule arguing the EPA set the renewable fuel requirements too high, while other plaintiffs argued EPA set the renewable fuel requirements too low. Court rejected all challenges except for petitioners Americans for Clean Energy, who argued that “EPA erred in how it interpreted the ‘inadequate domestic supply’ waiver provision.” Court found that the “inadequate domestic supply” provision authorizes EPA to consider “supply-side factors affecting the volume of renewable fuel that is available to refiners, blenders, and importers to meet the statutory volume requirements.” Court granted Americans for Clean Energy’s petition for review of the 2015 Final Rule.

IN RE TYSON FOODS, INC. SECURITIES LITIGATION, No. 5:16-cv-05340, 2017 WL 3185856 (W.D. Ark. July 26, 2017) involved antitrust conspiracy allegations against Tyson Foods. Plaintiff maintained that Tyson “engaged in an industry-wide antitrust conspiracy aimed at depressing the domestic supply of broiler chickens, thus keeping prices and margins high.” In attempting to find intent on the part of Tyson, the court considered a number of factors, including stock transactions and corporate officer resignations and concluded it could not “find from the facts, nor from reasonable inferences drawn therefrom, that the nature of the Georgia Dock scheme or Defendants’ executive positions support an inference of scienter.” Defendants’ motion to dismiss granted.


REGULATORY: Includes USDA, APHIS, EPA, FWS, FNS, FS, GIPSA, and NOAA rules and notices.

AGRICULTURE DEPARTMENT:

Notice USDA has submitted information collection requirement(s) to OMB for review. Title: Evaluation of the Direct Certification with Medicaid for Free and Reduced-Priced (DCM-F/RP) Meals Demonstration. Info here.

Notice USDA has submitted information collection requirement(s) to OMB for review. Title: Modernization of Poultry Slaughter Inspection. Details here.

ANIMAL AND PLANT HEALTH INSPECTION SERVICENotice extending the nonregulated status of InVigor® MS8 canola to Bayer CropSciences LP’s canola event MS11 which has been genetically engineered for male sterility and resistance to the herbicide glufosinate-ammonium using the same mechanism of action as Bayer’s MS8 canola. Info here.

ENVIRONMENTAL PROTECTION AGENCY:

Rule establishes tolerances for residues of fenamidone in or on multiple commodities which are identified and discussed later in this document. Interregional Research Project Number 4 (IR-4) requested these tolerances under the Federal Food, Drug, and Cosmetic Act. Info here.

Rule establishes a tolerance for residues of topramezone in or on sugarcane, cane. BASF Corporation requested this tolerance under the Federal Food, Drug, and Cosmetic Act. Details here.

Rule establishes an exemption from the requirement of a tolerance for residues of Pseudomonas chlororaphis strain AFS009 in or on all food commodities when used in accordance with label directions and good agricultural practices. Info here.

Rule EPA proposes to approve New Jersey’s regional haze progress report, submitted on June 28, 2016, as a revision to its State Implementation Plan. Info here.

Rule EPA proposes to approve New York State’s regional haze progress report, submitted on June 16, 2015, as a revision to its State Implementation Plan. Details here.

FISH AND WILDLIFE SERVICE:

Rule FWS amends the permanent migratory bird subsistence-harvest regulations in Alaska. Details here.

Notice FWS will prepare a draft environmental impact statement (EIS) in accordance with the requirements of the National Environmental Policy Act (NEPA) to evaluate the potential impacts on the human environment caused by alternatives to the Deschutes River Basin Habitat Conservation Plan. Info here.

Notice FWS seeks comment on applications to conduct certain activities with endangered species, marine mammals, or both. Info here.

FOOD AND NUTRITION SERVICE:

Notice FNS seeks comment on a proposed information collection. Title: SNAP Ed Toolkit Intervention Scoring Tool and Submission Form. Details here.

Notice announces the annual adjustments to the national average payment rates for meals and snacks served in child care centers, outside-school-hours care centers, at-risk afterschool care centers, and adult day care centers. Details here.

Notice announces the national average value of donated foods or cash in lieu of donated foods, to be provided in school year 2018 for each lunch served by schools participating in the National School Lunch Program. Details here.

Notice announces the annual adjustments to the “national average payments,” the amount of money the Federal Government provides States for lunches, afterschool snacks, and breakfasts served to children participating in the National School Lunch and School Breakfast Programs. Details here.

FOREST SERVICENotice of intent to prepare an Environmental Impact Statement. Details here.

GRAIN INSPECTION, PACKERS AND STOCKYARDS ADMINISTRATIONNotice GIPSA requests comments on the applicants for designation to provide official weighing and official inspection services under the United States Grain Standards Act in the Georgia Area that was open for designation. Details here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Rule NMFS is prohibiting directed fishing for Alaska plaice in the Bering Sea and Aleutian Islands management area. Details here.

Rule NMFS is prohibiting directed fishing for “other flatfish” in the Bering Sea and Aleutian Islands management area. Details here.

Rule to implement management measures described in Framework Amendment 5 to the Fishery Management Plan for the Coastal Migratory Pelagic Resources of the Gulf of Mexico and Atlantic Region. Details here.

Rule closes the Georges Bank Cod Trimester Total Allowable Catch Area to Northeast multispecies common pool vessels fishing with trawl gear, sink gillnet gear, and longline/hook gear for the remainder of Trimester 1, through August 31, 2017. Info here.

Rule the Coastal Pelagic Species Fishery Management Plan states that each year the Secretary will publish in the Federal Register the final specifications for all stocks in the actively managed stock category. Details here.

Rule partially approves and implements Framework Adjustment 56 to the Northeast Multispecies Fishery Management Plan. Info here.

Notice the Assistant Regional Administrator for Sustainable Fisheries, Greater Atlantic Region, NMFS, has made a preliminary determination that an Exempted Fishing Permit application contains all required information and warrants further consideration. Info here.

Notice the Gulf of Mexico Fishery Management Council will hold a four-day meeting to consider actions affecting the Gulf of Mexico fisheries in the exclusive economic zone. Details here.

Notice NMFS has received a request from the University of Hawaii for authorization to take marine mammals incidental to a marine geophysical survey in the Central Pacific Ocean. Details here.