A comprehensive summary of today’s judicial, legislative, and regulatory developments in agriculture and food. Email important additions to: camarigg at uark.edu


JUDICIAL: Includes biosecurity, APHIS, SNAP, EPA, and PACA issues.

Dakota Style Foods, Inc., Plaintiff, v. Sunopta Grains and Foods, Inc., Defendant, 1:16–CV–01036–CBK, 2016 WL 7243534 (D.S.D. Dec. 14, 2016) involved a recall of sunflower products exposed to Listeria. Issue was whether plaintiff’s products liability and negligence claims are barred by defendant’s economic loss doctrine. Court reasoned that “economic losses are not recoverable under tort theories; rather, they are limited to the commercial theories found in the UCC.” The court more precisely recognized “economic loss” as “”loss resulting from the failure of the product to perform to the level expected by the buyer and the consequential losses resulting from the buyer’s inability to make use of the effective product, such as lost profits.” Plaintiff, in failing to state a claim, did not identify any damages to property or person. Defendant’s motion to dismiss plaintiff’s strict liability and negligence claims granted.

In Big Cats of Serenity Springs, Inc., doing business as Serenity Springs Wildlife Center; Nick Sculac; and Jules Investment, Inc., Plaintiffs–Appellees, and Julie Walker, Plaintiff, v. Cindy Rhodes; and Tracy Thompson, Defendants–Appellants, and Thomas J. Vilsack, in his official capacity as Secretary of Agriculture; and Other Unnamed United States Department of Agriculture Employees, Defendants, No. 15-1174, 2016 WL 7187301 (10th Cir. Dec. 12, 2016), plaintiffs sued USDA after an inspection of their wild cat refuge. They alleged violations of their Fourth Amendment right to be free of unreasonable searches and seizures and sought damages. USDA contended that “even if [their] inspectors’ conduct was unlawful . . . the inspectors are still entitled to qualified immunity because the violation was not clearly established under federal law.” Court focused on “whether government officials may forcibly enter commercial premises in pursuit of their regulatory duties,” and the court determined plaintiff “adequately alleged APHIS inspectors’ unauthorized entry violated their Fourth Amendment rights.” The court noted, however, that “conspiracy with state actors is a requirement to finding that federal actors jointly acted under color of state law.” Court found “no agreement to violate law” and that APHIS deputies thought their actions were supported by a court order.

In UNITED STATES OF AMERICA EX REL. AKIVA TESSLER, et al., Plaintiffs, v. THE CITY OF NEW YORK, Defendant, 14-CV-6455 (JMF), 2016 WL 7335654 (S.D.N.Y. Dec. 16, 2016), plaintiffs alleged City of New York submitted false claims to the government when implementing its Supplemental Nutrition Assistance Program (SNAP) and failed to “recoup overpayments to ‘hundreds of thousands’ of program recipients.” Plaintiff’s did not allege any specific examples of false claims “filed in connection with the City’s alleged failure to recoup improper “Aid to Continue” benefits.” Court recognized that “the City is not obligated to recoup SNAP and Public Assistance benefits unless they exceed certain thresholds.” Motion to dismiss granted.

In GULF RESTORATION NETWORK, ET AL. v. LISA P. JACKSON, ADMINISTRATOR OF THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, ET AL, CIVIL ACTION NO: 12-677, 2016 WL 7241473 (E.D. La. 12/15/2016) plaintiffs alleged violation of the Administrative Procedure Act (APA) by the EPA. Plaintiffs argued “most states do not control the levels of nitrogen and phosphorous that pollute their waters,” and petitioned EPA to impose “federal numeric water quality standards for the portion of the ocean protected by the CWA but outside the jurisdiction of any state.” EPA declined to make a “necessity determination” and appellate court considered whether EPA’s reasoning was legally sound. Court questioned whether EPA’s refusal was “sufficiently grounded in the statute to pass muster as a reasonable explanation.” Court ruled it was “convinced that the Denial, which again is grounded primarily on EPA’s assessment that working in partnership with the States to reduce nutrient pollution would be a more effective approach at present, is sufficiently ‘grounded in the statute.’”

In Jacobs Silver K Farms, Inc., et al., Plaintiffs, v. Taylor Produce, LLC, et al., Defendants, No. 4:13-CV-535-BLW, 2016 WL 7325468 (D. Idaho Dec. 15, 2016), plaintiff shipped $1.5 million worth of potatoes to defendant, but was paid only a fraction of that sum and sued for the remaining amount under the Perishable Agricultural Commodies Act (PACA). Defendant had a marketing agreement with Idaho Potato Packers Corporation (IPPC) whereby IPPC sold the potatoes and gave proceeds to defendant. Defendant argued proceeds withheld from plaintiff were deductible as a “contemplated expense.” Court noted “contemplated expense” refers to “an expense that is contemplated between the parties at the time the parties entered into a contract.” Here, court observed “there is no evidence that Jacobs and Taylor Produce contemplated that Taylor Produce would deduct anything for IPPC’s expenses before remitting the sales proceeds to Jacobs.” The court also noted the parties “contemplated that the only deduction would be for taxes.” Ruling for plaintiff.


REGULATORY: Includes AMS, USDA, EPA, FWS, FDA, FNS, FSIS, GIPSA, NASS, NOAA, and OSMRE rules and notices.

AGRICULTURAL MARKETING SERVICE:

Rule USDA adopts an interim rule implementing a recommendation from the California Date Administrative Committee to decrease assessment rate established for the committee for the 2016-17 and subsequent crop years from $0.10 to $0.05 per hundredweight of dates handled under the marketing order. Details here.

Rule implements recommendation from the Almond Board of California for an increase of the assessment rate established for the 2016-17 through the 2018-19 crop years from $0.03 to $0.04 per pound of almonds handled under the marketing order. Info here.

Rule implements a recommendation from the Washington Cherry Marketing Committee to increase the assessment rate established for the 2016-2017 and subsequent fiscal periods from $0.15 to $0.25 per ton of Washington cherries handled. Details here.

AGRICULTURE DEPARTMENT: Notice USDA has submitted information collection requirement(s) to OMB for review. Title: USDA Local and Regional Food Aid Procurement Program. Info here.

ENVIRONMENTAL PROTECTION AGENCYRule EPA is finalizing a Safe Drinking Water Act rule requirING public water systems to collect occurrence data for contaminants present in drinking water, but not subject to EPA’s drinking water standards. Details here.

FISH AND WILDLIFE SERVICE:

Notice FWS announces availability of a draft recovery plan for the jaguar, listed as endangered under the Endangered Species Act of 1973. Info here.

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

FOOD AND DRUG ADMINISTRATION: Notice announcing a guidance for industry #234 entitled “Question- Based Review for the Chemistry, Manufacturing, and Controls Technical Section of Animal Drug Applications.” Info here.

FOOD AND NUTRITION SERVICE: Rule implementing Section 4018 of the Agricultural Act of 2014. Details here.

FOOD SAFETY AND INSPECTION SERVICE:

Notice FSIS will collect information to inform the development of food safety communication products and to evaluate public health education and communication activities. Info here.

Notice that USDA, FDA, and the Center for Food Safety and Applied Nutrition are sponsoring a public meeting on January 24, 2017. Details here.

GRAIN INSPECTION, PACKERS AND STOCKYARDS ADMINISTRATION:

Rule that GIPSA amends regulations issued under the Packers and Stockyards Act, 1921. Rule clarifies that conduct may violate the P&S Act without adversely affecting competition. Details here.

Rule GIPSA seeks to amend regulations issued under the Packers and Stockyards Act, 1921. Amendments may consider when determining whether a live poultry dealer’s use of a poultry grower ranking system for ranking poultry growers for settlement purposes is unfair. Info here.

Rule GIPSA seeks to amend the regulations issued under the Packers and Stockyards Act, 1921. Amendments will clarify action by packers GIPSA considers unfair and a violation of the P&S Act. Info here.

NATIONAL AGRICULTURAL STATISTICS SERVICE: Notice NASS renews a revision to the confidentiality pledge it provides to its respondents under CIPSEA. Details here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Rule NMFS issues regulations implementing Amendment 47 to the Fishery Management Plan for Bering Sea/Aleutian Islands King and Tanner Crabs. Info here.

Rule NMFS published in the Federal Register on December 8, 2016, a document proposing to list the Gulf of Mexico Bryde’s whale as an endangered species under the Endangered Species Act of 1973. Details here.

Rule NMFS proposes regulations implementing Amendment 18 to the Northeast Multispecies Fishery Management Plan. Info here.

Notice NMFS has received a revised application for ITRs from the Bureau of Ocean Energy Management, on behalf of oil and gas industry operators. Details here.

SURFACE MINING RECLAMATION AND ENFORCEMENT OFFICE: Rule OSMRE is revising regulations to improve balance between environmental protection and the Nation’s need for coal. Details here.