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


ANNOUNCEMENT: Register today for our Fifth Annual Mid-South Agricultural and Environmental Law Conference in Memphis, TN / June 7-8. CLE credit available! Additional information available here.


JUDICIAL: Includes USDA and food labeling issues.

In PHYSICIANS COMMITTEE FOR RESPONSIBLE MEDICINE, Plaintiff, v. UNITED STATES DEPARTMENT OF AGRICULTURE, Defendant, and National Cattlemen’s Beef Association, Defendant–Intervenor, No. 13–0483 (ABJ), 2018 WL 2389723 (D.D.C. May 25, 2018), plaintiff alleged USDA violated Freedom of Information Act (FOIA) by witholding documents regarding the government’s dairy checkoff and beef checkoff programs. Plaintiff sought records “concerning the relationship between the beef checkoff program and various committees and researchers from the American Academy of Pediatrics.” Issue was whether documents plaintiff sought qualified as “agency” records” per FOIA. Court observed that “[p]laintiff rests its entire argument on the fact that the agency has the authority to audit NCBA’s records.” The court ultimately concluded that “[b]y ordering the agency to ‘exercise its right of access,’ the Court effectively would be compelling the agency to ‘create’ an agency record, and this would extend the reach of [FOIA] beyond what… Congress intended.” Court ruled USDA “did not create or obtain the records at issue, and they do not qualify as ‘agency records’ under FOIA.”

In STANLEY F. FROMPOVICZ, Plaintiff, v. NIAGARA BOTTLING, LLC, ICE RIVER SPRINGS WATER CO, INC., CROSSROADS BEVERAGE GROUP AND JAMES J. LAND, JR., Defendants, NO. 18-54, 2018 WL 2363475 (E.D. Penn. May 24, 2018), a spring water extractor claimed defendants violated the Lanham Act by mislabeling their water as “spring water.” Specifically, plaintiff alleged defendant sells and markets “well water” as “spring water,” impacting plaintiff’s market to sell spring water. Issue was whether plaintiff’s claims alleged a theory of “indirect harm” and whether plaintiff could sue under the Lanham Act. Court found that plaintiff’s allegations that his sales were impacted by defendants’ misleading labels came within the “zone of interests” requirement of the Lanham Act. The court noted, however, that plaintiff sells his water to bottlers, not consumers, and concluded plaintiff failed the “proximate cause” test under the Lanham Act.


REGULATORY: Includes EPA, FCIC, FWS, FDA, FNS, FS, and NOAA rules and notices.

ENVIRONMENTAL PROTECTION AGENCY:

Rule EPA is approving the regional haze progress report under the Clean Air Act (CAA) as a revision to the Michigan state implementation plan (SIP). Details here.

Rule EPA is approving the South Carolina’s request and redesignating the Area to unclassifiable/attainment for the 1997 primary and secondary annual PM2.5 NAAQS based upon valid, quality-assured, and certified ambient air monitoring data showing that the PM2.5 monitors in the Area are in compliance with the 1997 primary and secondary annual PM2.5 NAAQS. Info here.

Rule EPA is approving a state implementation plan (SIP) revision formally submitted by Virginia. Details here.

Rule EPA is proposing to approve Alabama’s request and redesignate the Area to unclassifiable/attainment for the 2006 primary and secondary 24-hour PM2.5 NAAQS based upon valid, quality-assured, and certified ambient air monitoring data showing that the PM2.5 monitor in the Area is in compliance with the 2006 primary and secondary 24-hour PM2.5 NAAQS. Details here.

FEDERAL CROP INSURANCE CORPORATION:

Notice contains necessary amendments to address corrections in the General Administrative Regulations; Administrative Remedies for Non-Compliance regulations which contain outdated references. Info here.

FISH AND WILDLIFE SERVICE:

Rule FWS is removing the Hidden Lake bluecurls plant from the Federal List of Endangered and Threatened Plants on the basis of recovery. Info here.

Notice FWS will prepare a draft programmatic environmental impact statement addressing the potential impacts on the human environment caused by alternatives described in habitat conservation plans (HCPs) for four similar wind energy projects. Details here.

FOOD AND DRUG ADMINISTRATION: Notice solicits comments on the information collection requirements associated with current good manufacturing practice, hazard analysis, and risk-based preventive controls for human food. Details here.

FOOD AND NUTRITION SERVICE:

Rule amends the Summer Food Service Program regulations to incorporate statutory changes mandated by Section 738 of the Consolidated Appropriations Act, 2008, which extends simplified cost accounting and reporting procedures to SFSP sponsors in all States, and eliminates the cost comparison requirements for determining payments to sponsors. Details here.

Notice FNS has undertaken significant steps to strengthen its measurement process, the SNAP Quality Control system. Details here.

FOREST SERVICE: Notice U.S. Customs and Border Protection and the U.S. Forest Service Idaho Panhandle National Forests announce the availability of the Bog Creek Road Project Draft Environmental Impact Statement (EIS) for public review. Details here.

NATIONAL OCEANIC AND ATMOSPHERIC AMDINISTRATION:

Notice sets forth the proposed schedule and agenda of a forthcoming meeting of the Marine Fisheries Advisory Committee’s Columbia Basin Partnership Task Force. Info here.

Notice NMFS has received a request from the City of San Diego for an incidental harassment authorization to take three species of marine mammals, by Level B harassment only, incidental to Coast Boulevard improvements in La Jolla, California. Details here.