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: “The New Deal: Understanding and Negotiating Dairy Supply Contracts.” Details available here.


JUDICIAL: Includes ag lease, ag-gag, National Organic Program, and food labeling issues.

In Mary Ann VIG, as Personal Representative of the Estate of Junietta W. Swenson, Deceased, Plaintiff and Appellant v. Willis G. SWENSON, Defendant and Appellee, No. 20170032, 904 N.W.2d 489 (N.D. December 7, 2017), a deceased mother’s estate sued her son, alleging that a quit claim deed executed by mother conveying her home was void because she was incompetent. Estate also claimed son’s subleases of his mother’s farmland was “conversion of rent and grain proceeds that should have been paid to mother.” District court found “no legal grounds to question the terms of farm leases,” and estate appealed. State Supreme Court found the leases at issue each contained a “conditional term . . .  lifetime of lessor, and thus leases did not violate statute which limited agricultural leases to ten-year period.” Affirmed for defendant.

In ANIMAL LEGAL DEFENSE FUND; People for the Ethical Treatment of Animals Inc.; American Civil Liberties Union of Idaho; Center for Food Safety; Farm Sanctuary; River’s Wish Animal Sanctuary; Western Watersheds Project; Sandpoint Vegetarians; Idaho Concerned Area Residents for the Environment; Idaho Hispanic Caucus Institute for Research and Education; Counterpunch; Farm Forward; Will Potter; James McWilliams; Monte Hickman; Blair Koch; Daniel Hauff, Plaintiffs–Appellees, v. Lawrence G. WASDEN, in His Official Capacity as Attorney General of Idaho, Defendant–Appellant, No. 15-35960, 2018 WL 280905 (9th Cir. January 4, 2018), journalists recorded animal abuse at an Idaho dairy farm and eventually challenged the constitutionality of Idaho’s Interference with Animal Production (Ag-Gag) law. The appellate court analyzed aspects of the statute and focused on the Recordings Clause prohibiting persons “from entering a private agricultural production facility and, without express consent from the facility owner, making audio or video recordings of the ‘conduct of an agricultural production facility’s operations.’” The court also observed that the Recordings Clause “regulates speech protected by the First Amendment.” Appellate court eventually found the Clause “over-inclusive” and determined it “suppresses more speech than necessary to further Idaho’s stated goals of protecting property and privacy.”

In ORGANIC CONSUMERS ASSOCIATION, Plaintiff, v. HAIN CELESTIAL GROUP, INC., Defendant, No. 1:16–cv–00925 (TNM), 2018 WL 279353 (D.D.C. January 3, 2018), plaintiff sued under the District of Columbia Consumer Protection Procedures Act (CPPA), to stop defendant from labeling its “Earth’s Best” baby formula products as “organic.” Plaintiff claimed the products contain “synthetic ingredients that are not permitted under the federal Organic Food Production Act of 1990 (OFPA).” Defendant countered that “private enforcement of organic labeling via state law is preempted by the OFPA.” Court granted motion to dismiss after finding plaintiff’s claim is preempted by federal law.

In CHERYL FERNANDEZ, individually and on behalf of all others similarly situated, Plaintiff, v. ATKINS NUTRITIONALS, INC., and DOES 1-10, Defendants, No.: 3:17-cv-01628-GPC-WVG, 2018 WL 280028 (S.D. Cal. January 3, 2018), plaintiff filed class action alleging defendant “misleadingly labels its snack products with regard to their ‘net’ carbohydrate content.” Defendant argued plaintiff’s claims are preempted by Federal law and issue was whether net carb claims are “nutrient content claims.” Court considered provisions of the Nutrition Labeling and Education Act (NLEA) and determined that “because ‘net carbs’ is a configuration of nutrients ‘of the type’ required to be mentioned on a label . . . Atkins’s net carbs claims are nutrient content claims governed by § 343(r)(1).”


LEGISLATIVE:

H.R. 4735: Gold King Mine Spill Accountability Act of 2018. This bill’s text is now available.

H.J.Res. 36: Providing for congressional disapproval under chapter 8 of title 5, United States Code, of the final rule of the Bureau of Land Management relating to “Waste Prevention, Production Subject to Royalties, and Resource Conservation”. This resolution’s text for status Referred to Senate Committee (Jan 4, 2018) is now available.

H.R. 4667: Making further supplemental appropriations for the fiscal year ending September 30, 2018, for disaster assistance for Hurricanes Harvey, Irma, and Maria, and calendar year 2017 wildfires. Bill’s text for status Placed on Calendar in the Senate (Jan 4, 2018) is now available.

S. 2277: A bill to require the delisting of Mexican gray wolves under the Endangered Species Act of 1973 on a determination that the subspecies has been sufficiently recovered in the United States. Bill referred to the Senate Committee on Environment and Public Works.

S. 2279: A bill to amend title 23, United States Code, to establish a competitive grant program to repair, improve, rehabilitate, or replace bridges to improve the safety, efficiency, and reliability of the movement of people and freight. Bill referred to the Senate Committee on Environment and Public Works.

S. 2278: A bill to amend the Public Health Service Act to provide grants to improve health care in rural areasBill referred to the Senate Committee on Health, Education, Labor, and Pensions.


REGULATORY: Includes EPA, ITA, and NOAA rules and notices. 

ENVIRONMENTAL PROTECTION AGENCY:

Rule EPA is finalizing a rule to implement section 425 of the Consolidated Appropriations Act of 2016, which requires EPA to work with the Great Lakes States to establish public notification requirements for combined sewer overflow (CSO) discharges to the Great Lakes. Info here.

Rule EPA is proposing to approve a revision to the Yolo-Solano Air Quality Management District (YSAQMD) portion of the California State Implementation Plan (SIP). Details here.

Rule EPA is proposing to approve a Clean Air Act (CAA) section 111(d)/129 plan (the “plan”) submitted by the Colorado Department of Public Health and Environment (CDPHE) on July 14, 2017. Info here.

INTERNATIONAL TRADE ADMINSTRATION:

Notice ITA preliminarily determines that citric acid and certain citrate salts from Belgium are being, or are likely to be, sold in the United States at less than fair value (LTFV). Details here.

Notice ITA preliminarily determines that citric acid and certain citrate salts from Colombia are being, or are likely to be, sold in the United States at less than fair value (LTFV). Info here.

Notice ITA preliminarily determines that citric acid and certain citrate salts from Thailand are being, or are likely to be, sold in the United States at less than fair value (LTFV). Details here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Rule NMFS issues this final rule to change the management of the Pacific whiting at-sea sectors’ allocations for darkblotched rockfish and Pacific ocean perch (POP) by managing the allocations as set-asides rather than as total catch limits, under the authority of the Pacific Coast Groundfish Fishery Management Plan (FMP), and the Magnuson-Stevens Fishery Conservation and Management Act. Info here.

Rule NMFS proposes recreational management measures for a February 2018 black sea bass fishery. Details here.

Notice NMFS issues this notice to increase the fee rate for the non- pollock groundfish fishery to repay the $35,000,000 reduction loan to finance the non-pollock groundfish fishing capacity reduction program. Info here.