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


ANNOUNCEMENT: Mark your calendar for the next Agricultural & Food Law Consortium webinar, Tuesday, January 16th, 2018: “The New Deal: Understanding and Negotiating Dairy Supply Contracts.” Details available here.


JUDICIAL: Includes conservation programs, animal welfare, divorce and food labeling issues.

In Russell B. WELTY, et al., Plaintiffs, v. The UNITED STATES, Defendant, No. 16–1017C, 2017 WL 6154494 (Fed. Cl. December 8, 2017), plaintiffs owned land near a river and argued that a third party’s drainage ditch and levee system caused river water “to occasionally flow more heavily over Plaintiffs’ property, altering the natural drainage patterns, … damaging Plaintiffs’ farming and rendering Plaintiffs’ property unfit for cultivation.” In naming the government as a defendant, plaintiffs argued the contractual relationship between the third party and the government established the grounds for a “taking” and maintained “[t]he nature of the Easement, and the control over the terms of the Plan exerted by USDA, CCC, and NRCS clearly demonstrates that the United States did, in fact, have responsibility for and involvement with the Levee.” Court considered the contractual relationship between the parties and determined that “[t]he voluntary nature of these agreements is fundamentally at odds with the coercion required to support a takings claim.” Defendant’s motion to dismiss granted.

UNITED STATES of America, plaintiff, v. Leo CHADWICK, defendant, NO. 7:16-CR-122-BO-6, 2017 WL 6055384 (E.D.N.C. December 7, 2017) involved violations of the animal welfare act wherein defendant trained and transported dogs for fighting ventures. Court departed from sentencing guideline in order to impose a stiffer sentence. Court acknowledged that per statute, “a sentencing court has a duty to ‘impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in the [sentencing statute].’” Here, court noted that defendant fought and trained dogs “for 35 years, and was a partner in the operation of a kennel.” Defendant also had numerous malnourished dogs on his property. Court concluded that “[b]ecause of this, the guidelines specifically account for the possibility of an upward departure for those offenses involving extraordinary cruelty or on an exceptional scale. This is a case that merits such a departure.”

In DORI ANN OSANTOWSKI, APPELLEE, v. BRIAN OSANTOWSKI, APPELLANT, No. S-16-807, 298 Neb. 339 (Neb. December 8, 2017), a couple divorced and husband appealed the division of assets after he was ordered to distribute the estate equally. Husband, who ran a farming operation with his brothers while his wife attended graduate school, argued his premarital crops “should have been treated similarly to a herd of cattle—as a single asset for tracing purposes.” Court rejected husband’s argument and declared that, “Agricultural crops are categorically different in nature from a herd of cattle and, therefore, are not entitled to the same treatment for tracing purposes.” Affirmed with modifications.

In Christina Grimm v. APN, Inc., et al, No. SACV 17-00356 JVS(JCGx), 2017 WL 6060624 (C.D. Cal. November 20, 2017), plaintiff sued alleging defendants deceptively labeled their dog food products as “natural,” and having “no artificial preservatives’ despite the presence of these chemicals and artificial and/or synthetic ingredients.” Plaintiff argued the addition of vitamins and minerals makes the product labels misleading. Defendant countered its statements that its products are “’natural food for dogs with added vitamins & minerals’ makes it clear to a reasonable consumer that such vitamins and minerals are excluded from the ‘natural dog food’ label.” Court denied defendant’s motion to dismiss after concluding that “whether added vitamins and minerals are ‘by definition’ synthetic is an inappropriate determination for this Court to make at this time because the Court possesses no definition of ‘added vitamins & minerals.’”


REGULATORY: Includes USDA, EPA, FWS, FDA, and NOAA rules and notices. 

AGRICULTURE DEPARTMENT:

Rule amends the United States Department of Agriculture regulations to conform to the changes regarding conservation compliance made by the Federal Crop Insurance Corporation (FCIC) to its regulations in Catastrophic Risk Protection Endorsement; Area Risk Protection Insurance Basic Provisions; and Common Crop Insurance Policy Basic Provisions. Info here.

Notice USDA has submitted information collection requirement(s) to OMB for review. Title: Salmonella Initiative Program. Details here.

ENVIRONMENTAL PROTECTION AGENCY:

Rule EPA is approving a revision to a State Implementation Plan (SIP) for the City of Albuquerque and Bernalillo County, New Mexico (the County) submitted by the Governor on June 24, 2016. Info here.

Rule EPA is conditionally approving a State Implementation Plan (SIP) submitted by the State of New York for purposes of implementing Reasonably Available Control Technology (RACT) for the 2008 8-hour ozone National Ambient Air Quality Standard (NAAQS) related to control of volatile organic compounds (VOCs) from industrial cleaning solvents. Details here.

Rule EPA is withdrawing the September 25, 2017 direct final rule that approved two state implementation plan (SIP) revisions submitted by the State of West Virginia removing the Clean Air Interstate Rule (CAIR) annual nitrogen oxide and annual sulfur dioxide trading programs from the West Virginia SIP. Details here.

Rule establishes the annual percentage standards for cellulosic biofuel, biomass-based diesel, advanced biofuel, and total renewable fuel that apply to gasoline and diesel transportation fuel produced or imported in the year 2018. Info here.

FISH AND WILDLIFE SERVICENotice FWS announces the availability of a draft Supplement to the Grizzly Bear Recovery Plan: Habitat-Based Recovery Criteria for the Northern Continental Divide Ecosystem. Details here.

FOOD AND DRUG ADMINISTRATION:

Notice that vending machine operators not subject to the requirements of section 403(q)(5)(H)(viii) (21 U.S.C. 343(q)(5)(H)(viii)) of the Federal Food, Drug, and Cosmetic Act (FD&C Act) may voluntarily register with FDA to be subject to those requirements. Info here.

Notice this information collection supports the reporting associated with the submission of petitions and notifications seeking exemptions from the labeling requirements for ingredients derived from major food allergens, and the Agency’s associated guidance document. Details here.

Notice FDA is announcing the availability of a guidance for industry entitled “Product Name Placement, Size, and Prominence in Promotional Labeling and Advertisements.” Details here.

Notice FDA is announcing the availability of a draft guidance for industry entitled “Refusal of Inspection by a Foreign Food Establishment or Foreign Government.” Details here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATIONRule NMFS announces its intent to prepare an Environmental Impact Statement (EIS) on a new halibut bycatch management program for groundfish fisheries in the Bering Sea and Aleutian Islands (BSAI), in accordance with the National Environmental Policy Act. Info here.