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


ANNOUNCEMENT: Join us Wednesday, August 16, at 12 noon (ET) for an Agricultural & Food Law Consortium webinar: “Using LLCs in Agriculture: Beyond Liability Protection.” Details available here.


JUDICIAL: Includes nutrition programs, climate change, admin law, securities, and secured transactions issues.

In ARGUS LEADER MEDIA, d/b/a Argus Leader, Plaintiff, v. UNITED STATES DEPARTMENT OF AGRICULTURE, Defendant, 4:11-CV-04121-KES, 2017 WL 3316050 (D.S.D. August 3, 2017), plaintiff sought to recover attorney’s fees after prevailing on a Freedom of Information Act (FOIA) claim against the USDA. Plaintiff sought information about Supplemental Nutrition Assistance Program (SNAP) redemptions at the “individual store level.” USDA argued there is limited public benefit in publishing additional SNAP data “because the government already publishes SNAP data on the national, regional, state, and community level.” The court, however, recognized the public benefit the sales data could provide “in improving public policy regarding city planning, distribution of government resources, and government transparency.” Court awarded attorney’s fees to plaintiff due to its successful FOIA claim.

In COALITION FOR COMPETITIVE ELECTRICITY, DYNEGY INC., Eastern Generation, LLC, Electric Power Supply Association, NRG Energy, Inc., Roseton Generating LLC, and Selkirk Cogen Partners, L.P., Plaintiffs, v. Audrey ZIBELMAN, in her official capacity as Chair of the New York Public Service Commission, Patricia L. Acampora, Gregg C. Sayre, and Diane X. Burman, in their official capacities as Commissioners of the New York Public Service Commission, Defendants, and Constellation Energy Nuclear Group, LLC, Exelon Corporation, R.E. Ginna Nuclear Power Plant LLC, and Nine Mile Point Nuclear Station LLC, Intervenors, 16-CV-8164 (VEC), 2017 WL 3172866 (S.D.N.Y. July 25, 2017), plaintiffs, comprising trade groups of electrical generators, challenged a Clean Energy Standard (CES) Order awarding credits to nuclear generators for their zero-emissions electricity production. Plaintiffs argued the program is preempted under the Federal Power Act (FPA) and that it violates the dormant Commerce Clause. Defendants argued “there is no private right of action for plaintiffs’ preemption claims and that, even if there were, plaintiffs’ claims would fail as a matter of law.” Court found that plaintiffs failed to offer “any cogent explanation why ZECs (zero-emission credits) are preempted but other state incentives to generate clean energy—such as tax exemptions, land grants, or direct financial subsidies—are not.” Defendants’ motion to dismiss granted.

In UNITED SOURCE ONE, INC., Petitioner v. UNITED STATES DEPARTMENT OF AGRICULTURE, FOOD SAFETY AND INSPECTION SERVICE, et al., Respondents, No. 16-1209, 2017 WL 3318752 (D.C. August 4, 2017), defendant FSIS found that the packaging used by petitioner, a meat exporter, was misbranded because its label included the FSIS inspection identification number of its supplier without supplier’s permission. On appeal, peititioner argued FSIS’s consent requirement “constitutes a new ‘legislative rule’ and is invalid because it was not promulgated in accordance with the APA.” The court found that FSIS’ final determination did not impose a new legal obligation on plaintiff, but instead, enforced a “preexisting prohibition of misleading labeling set forth in the . . . regulations.” Petition for review denied.

DANIEL TUROCY, ET AL. v. EL POLLO LOCO HOLDINGS, INC., ET AL., No. SACV 15-1343-DOC (KESx), 2017 WL 3328543 (C.D. Cal. August 4, 2017) involved a class action suit wherein plaintiffs alleged defendants failed to disclose facts and made false statements causing the market prices of El Pollo Loco securities to be “artificially inflated.” Specifically, plaintiffs alleged defendants “issued a series of materially false and misleading statements and omissions concerning the Company’s 2Q 2015 sales and customer traffic.” Defendant moved to dismiss, but court found that plaintiffs met their burden to “state with particularity facts giving rise to a strong inference that the defendant acted with the required state of mind.” Motion to dismiss denied.

In DIRECT ENTERPRISES, INC., Olympus Seed Treatment Formulator, Inc., Plaintiffs, v. SENSIENT COLORS LLC, Spectra Colorants, Inc., Defendants. Sensient Colors LLC, Third Party Plaintiff, v. Spectra Colorants, Inc., Third Party Defendant, No. 1:15-cv-01333-JMS-TAB, 2017 WL 3314793 (S.D. Ind. August 3, 2017), a dispute arose regarding a batch of allegedly defective colorants that plaintiffs purchased from defendants. Plaintiffs specialize in blending and selling treatment mixtures for seeds and defendant sells colorants used as additives in seed treatment blends. Defendant argued that Plaintiffs failed to adequately plead that their products caused “sudden, major damage to the finished seed treatments,” as required under the Indiana Product Liability Act (IPLA). Court found that plaintiffs’ complaint alleged that they and their customers “discovered the sludge when they began to treat seeds for planting,” and determined plaintiffs’ complaint sufficiently stated a claim under the IPLA. Motion to dismiss denied.


REGULATORY: Includes AMS, ARS, USDA, APHIS, EPA, NOAA and RBCS rules and notices. 

AGRICULTURAL MARKETING SERVICE:

Notice that a referendum to amend Marketing Order and Agreement No. 929 (order), which regulates the handling of cranberries grown in the states of Massachusetts, Rhode Island, Connecticut, New Jersey, Wisconsin, Michigan, Minnesota, Oregon, Washington, and Long Island in the State of New York, did not meet the minimum voting requirements for approval. Details here.

AGRICULTURAL RESEARCH SERVICE:

Notice ARS will grant to Zoetis, LLC, of Kalamazoo, Michigan, an exclusive license to U.S. Patent No. 8,765,141, “DEVELOPMENT OF A MARKER FOOT AND MOUTH DISEASE VIRUS VACCINE CANDIDATE THAT IS ATTENUATED IN THE NATURAL HOST”, issued on July 1, 2014, and U.S. Patent No. 9,180,179, “DEVELOPMENT OF A MARKER FOOT AND MOUTH DISEASE VIRUS VACCINE CANDIDATE THAT IS ATTENUATED IN THE NATURAL HOST”, issued on November 10, 2015. Info here.

AGRICULTURE DEPARTMENT:

Notice USDA has submitted information collection requirement(s) to OMB for review. Title: Telecommunications System Construction Policies and Procedures. Info here.

Notice USDA has submitted information collection requirement(s) to OMB for review. Title: National Animal Health Monitoring System; Beef 2017 Study. Details here.

ANIMAL AND PLANT HEALTH INSPECTION SERVICE:

Notice advising the public of a decision to concur with the World Organization for Animal Health’s bovine spongiform encephalopathy risk designations for seven regions. Details here.

Notice APHIS has prepared an environmental assessment concerning authorization to ship for the purposes of field testing, and then to field test, an unlicensed Bursal Disease-Marek’s Disease Vaccine, Serotype 3, Live Marek’s Disease Vector. Details here.

Notice proposing to recognize Mexico as free of classical swine fever, subject to conditions in the regulations governing the importation of live swine, pork, and pork products from certain regions into the United States. Info here.

Notice APHIS will add to the Plant Protection and Quarantine Treatment Manual two new chemical treatments for targeting regulated pests in the cargo holds of aircraft. Info here.

ENVIRONMENTAL PROTECTION AGENCY:

Rule EPA is approving one aspect of a State Implementation Plan (SIP) revision submitted on May 30, 2013 by the State of Connecticut. Details here.

Rule EPA is approving revisions to Idaho’s State Implementation Plan submitted in 2012 and 2014 to address Clean Air Act requirements for the Idaho portion of the Logan, Utah-Idaho fine particulate matter nonattainment area. Details here.

Rule EPA is taking final action to approve portions of the State Implementation Plan (SIP) submission, submitted on February 8, 2016, by the Commonwealth of Kentucky, to demonstrate that the State meets the infrastructure requirements of the Clean Air Act for the 2012 Annual Fine Particulate Matter (PM2.5) national ambient air quality standard. Info here.

Rule EPA is approving a portion of the State Implementation Plan (SIP) revision submitted by Mississippi, through the Mississippi Department of Environmental Quality (MDEQ), Office of Pollution Control, on June 7, 2016. Info here.

Rule EPA is approving a revision to the Nevada Regional Haze State Implementation Plan (SIP) submitted by the Nevada Division of Environmental Protection. Details here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Rule NMFS hereby issues regulations to implement Amendment 114 to the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area and Amendment 104 to the Fishery Management Plan for Groundfish of the Gulf of Alaska. Info here.

Notice NMFS announces a 12-month finding on a petition to list the Pacific bluefin tuna as a threatened or endangered species under the Endangered Species Act and to designate critical habitat concurrently with the listing. Info here.

RURAL BUSINESS COOPERATIVE SERVICE: Notice RBCS will request an extension for a currently approved information collection in support of the Repowering Assistance Program. Details here.