JUDICIAL:

Axon v. Citrus World, Inc., No. 18CV4162ARRRML, 2018 WL 6448648 (E.D.N.Y. Dec. 10, 2018): On July 20, 2018, Plaintiff filed a putative class action complaint against Florida’s Natural Growers, Inc. and its parent company, Citrus World, Inc. (collectively, “Florida’s Natural” or “defendant”). Florida’s Natural sells a variety of orange juice products (“products”) that contain trace amounts of glyphosate, an herbicide used to kill weeds. Plaintiff alleges that the use of the term “natural” in defendant’s brand name is deceptive because glyphosate is not a natural ingredient. Plaintiff brings putative class claims under New York’s consumer protection statute on behalf of herself and other New York purchasers. Plaintiff also brings putative common law class claims under the laws of all states on behalf of herself and a putative nationwide class of purchasers. Before the court is defendant’s motion to dismiss plaintiff’s complaint for lack of subject matter jurisdiction, pursuant to Federal Rule of Civil Procedure 12(b)(1), and for failure to state a claim, pursuant to Rule 12(b)(6). Court finds that plaintiff fails to assert a plausible claim, and that defendant’s motion to dismiss under Rule 12(b)(6) is granted.
TROY BACKUS, Plaintiff, v. GENERAL MILLS, INC., et al., Defendants. Additional Party Names: Gen. Mills Sales, Inc., No. 15-CV-01964-WHO, 2018 WL 6460441 (N.D. Cal. Dec. 10, 2018): Plaintiff brings this putative class action against defendants General Mills, Inc. and General Mills Sales, Inc. (collectively “General Mills”) for the use of trans fats in the form of partially hydrogenated oil (PHO) in their baking mix products]. General Mills moves to dismiss Plaintiff’s remaining claims under the unlawful and unfair prongs of the California Unfair Competition Law (UCL), arguing that they are preempted by the federal Food, Drug, and Cosmetic Act (FDCA) and Section 754 of the Consolidated Appropriations Act. Because conflict preemption bars both of Plaintiff’s claims, the court grants General Mills’ motion to dismiss. Backus’s remaining claims are dismissed with prejudice.
ERIN ALLEN, et al., Plaintiffs, v. CONAGRA FOODS, INC., Defendant. Additional Party Names: ConAgra Brands, Inc., No. 3:13-CV-01279-WHO, 2018 WL 6460451 (N.D. Cal. Dec. 10, 2018):  On March 21, 2013, Plaintiff filed a complaint proposing a nationwide putative class of people who purchased Parkay Spray believing it to be a fat- and calorie-free alternative to butter. The class argues that defendant ConAgra Brands, Inc. (“ConAgra”) deceptively labels and markets Parkay Spray by using artificially small serving sizes. Instead of being zero calorie and zero fat, each bottle contains 832 calories and 93 grams of fat. After a denied motion to dismiss, a denied motion for class certification, a stay, the addition of seven named plaintiffs, and multiple changes to the legal landscape, this case returns to the motion to dismiss stage. The court grants in part and denies in part ConAgra’s motion.
Mantikas v. Kellogg Co., No. 17-2011, 2018 WL 6494356 (2d Cir. Dec. 11, 2018)
Plaintiffs appeal from a judgment entered on August 21, 2017 in the United States District Court for the Eastern District of New York granting Defendant Kellogg Company’s motion to dismiss Plaintiffs’ complaint for failure to state a claim, as provided in Fed. R. Civ. P. 12(b)(6). Plaintiffs are residents of New York and California who purchased Defendant’s Cheez-It crackers that were labeled “whole grain” or “made with whole grain.” They filed a class action complaint (the “Complaint”) against Defendant alleging that the whole grain labels were false and misleading in violation of New York and California consumer protection laws. They alleged that such labeling would cause a reasonable consumer to believe that the grain in whole grain Cheez-Its was predominantly whole grain, when, in fact, it was not. The primary grain content was enriched white flour. The district court dismissed the Complaint pursuant to Rule 12(b)(6). It held that the whole grain labels would not mislead a reasonable consumer, and that Plaintiffs therefore failed to state a claim.
We conclude that the district court erred in dismissing Plaintiffs’ complaint. Reviewed under the proper standards for a Rule 12(b)(6)motion, the Complaint plausibly alleged that a reasonable consumer would be misled by Defendant’s whole grain labels to believe that the grain in whole grain Cheez-Its was predominantly whole grain. Accordingly, the Circuit Court vacates the judgment of the district court and remands for further proceedings.

Orange Cove Irrigation Dist. v. Los Molinos Mut. Water Co., No. C078323, 2018 WL 6521080 (Cal. Ct. App. Dec. 12, 2018) 

The owner of an appropriative right to water in a creek sought declaratory relief to determine whether, under the judicial decree that established the right, it may (1) use water appropriated to it on a year around basis and not only during the irrigation season; (2) use or transfer its water outside of the creek’s watershed; and (3) make these changes in the use and location of use without obtaining prior approval of the creek’s water master or the superior court.
The trial court declared the decree did not give the owner these rights. Court of Appeal remands.
DELAWARE DEPARTMENT OF NATURAL RESOURCES AND ENVIRONMENTAL CONTROL, Appellee Below, Appellant, v. FOOD & WATER WATCH, Appellant Below, Appellee., No. 459, 2018, 2018 WL 6505352 (Del. Dec. 11, 2018): Delaware Department of Natural Resources and Environmental Control (“DNREC”) filed this interlocutory appeal from the Superior Court’s August 24, 2018 memorandum opinion in an administrative appeal from an order of the Delaware Environmental Appeals Board (“the Board”). The Board’s order of March 1, 2017, had dismissed an appeal filed by an environmental interest group, Food & Water Watch, for the group’s lack of standing to challenge a joint order issued by DNREC and the Delaware Department of Agriculture, approving a general permit program establishing standards for certain poultry feeding operations. In the August 24 memorandum opinion, the Superior Court reversed the Board’s order dismissing Food & Water Watch’s appeal and remanded the matter to the Board

REGULATORY:

Notice of proposed stipulation; request for public comment: Environmental Protection Agency (EPA).; In accordance with the EPA Administrator’s October 16, 2017, Directive Promoting Transparency and Public Participation in Consent Decrees and Settlement Agreements, notice is hereby given of a proposed joint stipulation and proposed stipulated notice of dismissal in the United States District Court for the Northern District of California in the case of Ellis, et al., v. Keigwin, et al., No. 3:13-cv-01266. On May 8, 2017, the court issued an order on summary judgment dismissing claims against EPA under the Federal Insecticide, Fungicide and Rodenticide Act (“FIFRA”), but finding that EPA failed to perform duties mandated by the Endangered Species Act (“ESA”) to consult with the United States Fish and Wildlife Service (“FWS”) regarding 59 EPA-approved pesticide products containing either of the insecticidal active ingredients clothianidin or thiamethoxam. The parties are proposing to reach a settlement in the form of a joint stipulation on the appropriate remedy for the court’s finding of liability. Among other provisions, the joint stipulation would set a June 30, 2022, deadline for EPA to complete ESA effects determination for EPA’s registration reviews of clothianidin and thiamethoxam and, as appropriate, request initiation of any ESA consultations with FWS that EPA may determine to be necessary as a result of those effects determinations. EPA is also taking comment on a proposed stipulated notice of dismissal that would be entered with the court following execution of the joint stipulation. Info HERE

Reinstatement of approval of an information collection; comment request: Animal and Plant Health Inspection Service, USDA.; In accordance with the Paperwork Reduction Act of 1995, this notice announces the Animal and Plant Health Inspection Service’s intention to request a reinstatement of approval of an information collection associated with the Cooperative State-Federal Brucellosis Eradication Program. Info HERE

Final rule.: Food and Nutrition Service (FNS), USDA.; This final rule will codify, with some extensions, three menu planning flexibilities temporarily established by the interim final rule of the same title published November 30, 2017. First, it will broaden the milk options in the National School Lunch Program and School Breakfast Program by allowing local operators to permanently offer flavored, low-fat milk. For consistency across nutrition programs, it will also allow flavored, low-fat milk in the Special Milk Program for Children and in the Child and Adult Care Food Program for participants ages 6 and older. Second, this final rule will require that half of the weekly grains in the school lunch and breakfast menu be whole grain-rich, thus ending the need for the exemption process. Third, it will provide schools in the lunch and breakfast programs more time for gradual sodium reduction by retaining Sodium Target 1 through the end of school year (SY) 2023-2024, continuing to Target 2 in SY 2024-2025, and eliminating the Final Target that would have gone into effect in SY 2022-2023. By codifying these changes, USDA acknowledges the persistent menu planning challenges experienced by some schools, and affirms its commitment to give schools more control over food service decisions and greater ability to offer wholesome and appealing meals that reflect local preferences. Info HERE

Notice and request for comments.: Agricultural Marketing Service, USDA.; In accordance with the Paperwork Reduction Act of 1995 (PRA), this notice announces AMS’s intention to request that the Office of Management and Budget (OMB) approve a 3-year extension and revision to a currently approved information collection; a voluntary customer survey concerning the delivery of official inspection, grading, and weighing services authorized under the United States Grain Standards Act (USGSA) and the Agricultural Marketing Act of 1946 (AMA). OMB approved this information collection as OMB 0580-0018 under Grain Inspection, Packers and Stockyards (GIPSA). Due to the realignment of offices authorized by the Secretary’s memorandum dated November 14, 2017, which eliminated the GIPSA as a standalone agency, the grain inspection activities formerly part of GIPSA are now under the Agricultural Marketing Service (AMS) and assigned a new OMB control number of 0581-0310.
This voluntary survey gives customers who are primarily in the grain, oilseed, rice, lentil, dry pea, edible bean, and related agricultural commodity markets an opportunity to provide feedback on the quality of services they receive and provides AMS with information on new services that customers wish to receive. Customer feedback assists Federal Grain Inspection Service (FGIS) with enhancing the value of services and service delivery provided by the official inspection, grading, and weighing system. Info HERE

Notice of proposed new fee site: Helena-Lewis & Clark National Forest, USDA, Forest Service.; The Helena-Lewis & Clark National Forest is proposing to implement a new fee at the newly acquired AT&T cabin with a proposed fee of $45 per night.This fee is only proposed and will be determined upon further analysis and public comment. Info HERE

Legislation

H.Res. 1176: Providing for consideration of the conference report to accompany the bill (H.R. 2) to provide for the reform and continuation of agricultural and other programs of the Department of Agriculture through fiscal year 2023, and for other purposes Info HERE.

H.R. 7263: To require the Secretary of Agriculture to provide notice in the case of certain ski area closures, and for other purposes. Info HERE

H.R. 2: Agriculture Improvement Act of 2018 Info HERE

H.R. 7232: Wildlife Corridors Conservation Act of 2018 Info HERE

S. 3732: A bill to amend the Commodity Exchange Act to prohibit the Commodity Futures Trading Commission from compelling a person to produce or furnish algorithmic trading source code or similar intellectual property to that agency unless the agency first issues a subpoena. Info HERE