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


JUDICIAL: Includes biosecurity and PACA issues.

In MAUREEN HORAN; DENNIS VACHON, Her Husband, Appellants v. DILBET, INC., DBA Windrift Hotel Resort; DOCK ST. SEAFOOD, INC.; SEA-LECT WHOLESALE SEAFOOD, INC.; JOHN DOES 1-10, fictitious names representing individuals, whose present identities are unknown, who negligently and improperly harvested, processed, cleaned, prepared, stored, distributed, handled, displayed, served and/or sold shellfish that was consumed by Plaintiff; ABC-XYZ CORPS., fictitious names representing entities that negligently and improperly harvested, processed, cleaned, prepared, stored, distributed, handled, displayed, served and/or sold shellfish that was consumed by plaintiff Maureen Horan; BIG CATCH INC., FKA Sea-Lect Wholesale Seafood Inc.; CHESTER RIVER CLAM COMPANY, INC.; BALLARD FISH & OYSTER CO., INC., DBA Cherrystone Aqua-Farms; PEERMONT HOTEL CORP, DBA Princeton Bar and Grill, No. 17-2243, 2018 WL 1003370 (3rd Cir. February 21, 2018), plaintiff sued after contracting food sickness at defendant’s hotel. Plaintiff claimed defendant’s food handling procedures “increased the risk of the presence of an infectious dose of [Vibrio] bacteria in the shellfish consumed by [plaintiff].” Lower court ruled for defendant and on appeal, plaintiff argued the court “erroneously excluded her expert witness testimony in the course of analyzing her defective product claim under the New Jersey Products Liability Act (NJPLA).” Court recognized that to establish liability under the NJPLA, “a plaintiff must prove that the product was defective, that the defect existed when the product left the manufacturer’s control, and that the defect proximately caused injuries to the plaintiff, a reasonably foreseeable or intended user.” Defendant argued plaintiff’s argument “rests entirely on the premise that clams containing Vibrio, like food containing salmonella or E. coli, is adulterated and therefore per se defective under the NJPLA.” Expert witness admitted it was “impossible to assess whether the clams contained non-infective dosage levels of Vibrio at the time they were delivered to [defendant].” Affirmed.

S & H PACKING & SALES CO., INC., DBA Season Produce Co., a California corporation, Plaintiff, and G. W. Palmer & Co., Inc.; Andrew & Williamson Sales Co., Inc., DBA Andrew & Williamson Fresh Produce; East Coast Brokers and Packers, Inc.; Gargiulo, Inc., Plaintiffs–Appellants, v. TANIMURA DISTRIBUTING, INC., a California corporation, Defendant, and AgriCap Financial Corporation, a Delaware corporation, Defendant–Appellee. S & H Packing & Sales Co., Inc., DBA Season Produce Co., a California corporation, Plaintiff, and Apache Produce Co., Inc., DBA Plain Jane, an Arizona corporation; O.P. Murphy Produce Co., Inc., DBA Murphy & Sons, a Texas corporation; Oceanside Produce, Inc., a California corporation; Wilson Produce, LLC, an Arizona Limited liability company; Frank Donio, Inc.; Abbate Family Farms Limited Partnership; J.P.M. Sales Co., Inc., an Arizona corporation, Plaintiffs–Appellants, Thomson International, Inc., assignee, Tanimura Distributing, Inc., Creditor–Appellant, v. Tanimura Distributing, Inc., Defendant, and AgriCap Financial Corporation, a Delaware corporation, Defendant–Appellee, No. 14-56059, No. 14-56078, 2018 WL 1003855 (9th Cir. February 22, 2018) involved the Perishable Agricultural Commodities Act (PACA) wherein defendants (sellers of produce to third parties on credit) defaulted on payments due plaintiff. Issue concerned the accounts receivable and proceeds at issue between the parties and whether they remained trust property under PACA. Defendants maintained “a trustee is allowed to remove assets from the trust in any commercially reasonable way without breaching the trust.” Appellate court considered whether “a court needs to conduct a threshold true sale inquiry before it determines whether a transaction transferring PACA trust assets was a commercially reasonable sale.” Court held that a court must apply “a threshold true sale test of which the transfer-of-risk is a key, but not the sole, factor.” The court ultimately concluded that a district court “should look to the substance of the transaction to determine whether the transaction is a true sale or a secured loan.”


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

AGRICULTURE DEPARTMENT:

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

Notice USDA has submitted information collection requirement(s) to OMB for review. Title: Commercial Transportation of Equines for Slaughter. Info here.

Notice USDA has submitted information collection requirement(s) to OMB for review. Title: Financial Information Security Request Form. Info here.

ENVIRONMENTAL PROTECTION AGENCY:

Rule EPA issued a proposed rule in the Federal Register of February 8, 2018, proposing to amend the significant new use rule (SNUR) under section 5(a)(2) of the Toxic Substances Control Act for oxazolidine, which was the subject of a premanufacture notice and a significant new use notice. Info here.

Rule EPA is proposing to set user fees applicable to any person required to submit information to EPA under the TSCA section 4 or a notice, including an exemption or other information, to be reviewed by the Administrator under TSCA section 5, or who manufactures a chemical substance that is the subject of a risk evaluation under TSCA section 6(b). Details here.

FOOD AND DRUG ADMINISTRATION:

Notice FDA is publishing a list of information collections that have been approved by the Office of Management and Budget. Details here.

Notice of an information collection that supports FDA regulations regarding substances prohibited from use in animal food or feed. Details here.

FOREST SERVICE: Notice the Manti-La Sal National Forest is withdrawing the Notice of Intent to prepare an Environmental Impact Statement for the Maverick Point Forest Health Project. The original NOI was published in the Federal Register on January 15, 2013. Details here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Rule NMFS proposes modifications to the commercial scup quota periods, as recommended by the Mid-Atlantic Fishery Management Council. Info here.

Notice NMFS seeks comment on proposed and/or continuing information collections. Native Americans may conduct certain aboriginal subsistence whaling under the Whaling Convention Act in accordance with the provisions of the International Whaling Commission. Details here.

Notice NOAA, Office for Coastal Management will hold a public meeting to solicit comments for the performance evaluation of the Hudson River National Estuarine Research Reserve. Details here.

Notice the Gulf of Mexico Fishery Management Council will hold a meeting of its Law Enforcement Technical Committee (LETC), in conjunction with the Gulf States Marine Fisheries Commission’s Law Enforcement Committee. Details here.

Notice the Working Group of the Northeast Trawl Advisory Panel of the Mid-Atlantic Fishery Management Council will hold a meeting. Info here.

Notice the New England Fishery Management Council (Council) is scheduling a four-day public meeting to undertake an independent review to assess past Council performance and solicit suggestions for improvement. Info here.