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

ANNOUNCEMENT: Join us TODAY at 12 noon (ET) for an Agricultural & Food Law Consortium webinar: “Using LLCs in Agriculture: Beyond Liability Protection.” Details available here.

JUDICIAL: Includes FDA, aquaculture, food labeling, food safety, and animal welfare issues.

In Lee WALTERS, MD, an Oregon resident, Plaintiff-Appellant, v. VITAMIN SHOPPE INDUSTRIES, INC., a Delaware corporation, Defendant-Appellee, No. 15-35592, 2017 WL 3264035 (9^th Cir. August 01, 2017), plaintiff sued for breach of contract, alleging defendant’s labeling practices did not comply with the Food and Drug Administration’s (FDA) regulations. Plaintiff claimed his purchase from defendant’s store established a valid and enforceable contract. On appeal, court concluded that, “To accept [plaintitff’s] theory of contract formation, we would have to conclude that the display of a price term and quantity information on or immediately surrounding a product’s packaging constitutes an offer to sell.” District court’s dismissal of plaintiff’s breach of contract and breach of warranty claims affirmed.

In PENOBSCOT NATION; United States, on its own behalf, and for the benefit of the Penobscot Nation, Plaintiffs, Appellants, Cross–Appellees, v. Janet T. MILLS, Attorney General for the State of Maine; Chandler Woodcock, Commissioner for the Maine Department of Inland Fisheries and Wildlife; Joel T. Wilkinson, Colonel for the Maine Warden Service; State of Maine; Town of Howland; True Textiles, Inc.; Guilford–Sangerville Sanitary District; City of Brewer; Town of Millinocket; Kruger Energy (USA) Inc.; Veazie Sewer District; Town of Mattawamkeag; Covanta Maine LLC; Lincoln Sanitary District; Town of East Millinocket; Town of Lincoln; Verso Paper Corporation, Defendants, Appellees, Cross–Appellants, Expera Old Town; Town of Bucksport; Lincoln Paper and Tissue LLC; Great Northern Paper Company LLC, Defendants, Appellees, Town of Orono, Defendant, Nos. 16-1424, 16-1435, 861 F.3d 324 (1^st Cir. June 30, 2017), an American Indian tribe sued state of Maine concerning an opinion of the state attorney general regarding regulatory jurisdiction of the tribe and state related to hunting and fishing on a river. District Court ruled that tribe’s reservation included river’s islands, but not its waters. Court also determined that “sustenance fishing rights provided in reservation’s implementing statute allowed tribe to take fish for sustenance in entirety of the relevant stretch of river.” Parties cross-appealed and appellate court held that under the Maine Indian Claims Settlement Act (MICSA), the Reservation included “only islands in the main stem of the Penobscot River which were included in Maine Implementing Act (MIA), but did not include any of the waters of the River itself, any portion thereof, or the submerged lands underneath.” Affirmed in part.

Stephen HADLEY, Plaintiff, v. KELLOGG SALES COMPANY, Defendant, No. 16–CV–04955–LHK, 2017 WL 3453391 (N.D. Cal. August 10, 2017), plaintiff claimed defendant’s breakfast cereals contain misleading packaging and alleged the products state they are healthy “when excess added sugar allegedly causes those products to be unhealthy.” Court considered “whether the statements that a product contains essential nutrients, is ‘nutritious,’ or is ‘wholesome’ constitute puffery.” Plaintiff maintained defendant’s use of the terms “unbelievably” and “positively” made defendant’s statements containing “nutritious” puffery. The Court agreed with plaintiff that the “unbelievably nutritious” and “positively nutritious” statements are puffery and denied defendant’s motion to dismiss in part.

In James M. BARBER, et al., Plaintiffs, v. SAM’S CLUB EAST, INC., et al., Defendants, No. 6:17-cv-00035, 2017 WL 3446257 (W.D. Va. August 10, 2017), plaintiff sued after purchasing and eating a bag of salad containing a mouse and alleged willful and wanton negligence. Defendants moved to dismiss, arguing plaintiffs failed to adequately plead defendants had the knowledge necessary to prove “conscious disregard,” or “reckless indifference.” Court acknowledged defendant’s supplier, Taylor Farms, was “known for producing contaminated food.” Court reasoned that plaintiffs alleged defendants “had knowledge of the danger inherent in products from Taylor Farms, but chose to consciously disregard the rights of their customers and sell those products anyway.” Court found that “a reasonable fact finder could consider willful and wanton negligence,” and denied motion to dismiss.

In Peggy HILL; Amy Walker, Plaintiffs-Appellants, v. Barry COGGINS, d/b/a Cherokee Bear Zoo; Collette Coggins, d/b/a Cherokee Bear Zoo, Defendants-Appellees. The Humane Society of the United States; The Fund for Animals, Amici Supporting Appellant. Peggy Hill; Amy Walker, Plaintiffs-Appellees, v. Barry Coggins, d/b/a Cherokee Bear Zoo; Collette Coggins, d/b/a Cherokee Bear Zoo, Defendants-Appellants. The Humane Society of the United States; The Fund for Animals, Amici Supporting Appellee, No. 16-1457, No. 16-1477, 2017 WL 3471259 (4^th Cir. August 14, 2017), plaintiffs sued a zoo, claiming the zoo’s allegedly “poor maintenance of its bears constitutes an unlawful taking proscribed by the Endangered Species Act.” District court found manner in which zoo kept its bears did not amount to an unlawful taking. Appellate court disagreed with lower court’s legal analysis regarding “unlawful taking,” and took issue with that court’s interpretation of the Fish and Wildlife Service’s definition of “harass.” Case remanded to district court to determine “whether the Zoo’s animal husbandry practices are ‘generally accepted.’”

REGULATORY: Includes EPA and NOAA rules and notices.

ENVIRONMENTAL PROTECTION AGENCY:

Rule EPA is approving a portion of a revision to the North Carolina State Implementation plan submitted by the State of North Carolina on March 24, 2006, for the purpose of clarifying the State’s transportation conformity rules consistent with Federal requirements. Info here.

Rule EPA is taking direct final action to approve changes to the South Carolina State Implementation Plan to revise miscellaneous rules covering air pollution control standards. Info here.

Rule EPA is taking direct final action to approve changes to the South Carolina State Implementation Plan that revise several miscellaneous rules for control standards for process industries. Details here.

Rule EPA is approving elements of State Implementation Plan revisions from the State of South Dakota to demonstrate the State meets infrastructure requirements of the Clean Air Act (CAA) for the National Ambient Air Quality Standards promulgated for sulfur dioxide on June 2, 2010 and fine particulate matter on December 14, 2012. Info here.

Rule EPA is approving Vermont’s regional haze progress report, submitted on February 29, 2016 as a revision to its State Implementation Plan. Info here.

Rule establishes a tolerance for residues of prothioconazole in or on Sunflower subgroup 20B at 0.2 parts per million. Info here.

Rule establishes an exemption from the requirement of a tolerance for residues of fatty acids, rape-oil, triesters with polyethylene glycol ether with glycerol (3:1) (CAS Reg. No. 688045-21-8) when used as an inert ingredient in a pesticide chemical formulation. Info here.

Rule establishes an exemption from the requirement of a tolerance for residues of the biochemical pesticide 1-triacontanol (TA) in or on all food commodities when used in accordance with label directions and good agricultural practices. Info here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Rule NMFS is transferring 30 metric tons of Atlantic bluefin tuna quota from the Reserve category to the Harpoon category. Info here.

Notice NOAA will submit to OMB for clearance a proposal for collection of information. Title: Socioeconomics of Users and Non Users of Grays Reef National Marine Sanctuary. Details here.

Notice NOAA seeks comment on proposed and/or continuing information collections. Title: Fishermen’s Contingency Fund. Info here.

Notice NMFS announces approval of a Marine Conservation Plan (MCP) for Guam. Info here.

Notice NMFS has issued an IHA to Quintillion Subsea Operations, LLC, to take small numbers of 13 species of marine mammals incidental to conducting subsea cable-laying and maintenance activities in the Beaufort, Bering, and Chukchi seas. Details here.