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


ANNOUNCEMENT: 

Join us Wednesday, July 25th, at 12 noon (ET) for an Agricultural & Food Law Consortium webinar: Compliance with DOL and Immigration Laws and Regulations for Agricultural Businesses. Details available here.

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JUDICIAL: Includes secured transactions, CWA, and food labeling issues.

RAY ANDERSON, INC., a Nebraska corporation, appellee and cross-appellant, v. BUCK’S, INC., a Nebraska corporation, appellant and cross-appellee, No. S-17-816, 300 Neb. 434 (Neb. July 6, 2018) involved a fuel supply contract between a retail gasoline operator and a fuel supplier. Lower court ruled a contract between the parties to supply “BP-branded” motor fuel did not prevent plaintiff from contracting with a competitor “to rebrand fuel sold at some of [plaintiff’s] facilities.” Lower court also ruled defendant had a “unilateral right to terminate the fuel supply agreement.” State Supreme Court reached same conclusion and affirmed.

Michael KLEINMAN, Plaintiff, v. CITY OF AUSTIN, Defendant, 1:15-CV-497-RP, 2018 WL 3132623 (W.D. Tex. June 26, 2018) concerned a motion for attorney’s fees involving a Clean Water Act judgment. Here, plaintiff (an attorney) secured a civil penalty under the CWA against the City of Austin and court found that plaintiff “has sufficiently advanced the goals of the CWA that an award is appropriate.” Issue for court was the precise amount to be awarded. Court reasoned that “[a] nominal fee is appropriate in light of [plaintiff’s] nominal success,” and awarded “approximately five percent of his total attorney’s and expert fees.” Court also ruled plaintiff was eligible to recover his costs from the City.

In Gerard CAMPBELL, individually on behalf of himself and all others similarly situated, Plaintiff, v. FRESHBEV LLC, and Whole Foods Market Group, Inc., Defendants, 1:16–cv–7119(FB)(ST), 2018 WL 3235768 (E.D.N.Y. July 3, 2018), plaintiff alleged defendant’s claim that it’s juices are pasteurized is misleading because the juices are treated with high pressure processing (HPP), or “equivalent to pasteurization.” Defendants countered the Food and Drug Administration (FDA) regulations treat pasteurization and HPP as two separate treatments, and the FDA allows the “unpasteurized” label on juice treated with HPP. Court considered the FDA’s history of food labeling rules and observed that in this case, “the labels of the Cranberry Apple and Pineapple juices purchased by plaintiff explain that the juices were treated with pressure. This provides the consumer with the requisite additional information.” Court concluded that defendant’s labels are not false or misleading, and deemed plaintiff’s claims preempted.


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

AGRICULTURE DEPARTMENT:

Rule USDA is amending the Guidelines for Designating Biobased Products for Federal Procurement to add 12 sections that designate product categories within which biobased products will be afforded Federal procurement preference by Federal agencies and their contractors. Info here.

ENVIRONMENTAL PROTECTION AGENCY:

Rule amends existing tolerances for residues of pyroxsulam in or on teff forage, teff grain, teff hay, and teff straw. Info here.

Rule EPA is proposing to determine that the Cross-State Air Pollution Rule Update for the 2008 ozone National Ambient Air Quality Standards fully addresses certain states’ obligations under Clean Air Act (CAA) section 110(a)(2)(D)(i)(I) regarding interstate pollution transport for the 2008 ozone NAAQS. Details here.

Rule proposes amendments to the National Emission Standards for Hazardous Air Pollutants Refinery MACT 1, which was published in the Federal Register on December 1, 2015, and subsequently amended on July 13, 2016. Details here.

Rule proposes 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 2019. Details here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Rule requests that NMFS revise the current state-by-state commercial quota allocations in the summer flounder fishery. This notice announces that NMFS, acting on the Secretary’s behalf, has received this request, and provides the opportunity for public comment. Info here.