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


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JUDICIAL: Includes food labeling, National Organic Program, ESA, and water law issues,

In Aaron KORTE, individually and on behalf of others similarly situated, Plaintiff, v. PINNACLE FOODS GROUP, LLC., Defendant, No. 17-CV-199-SMY-SCW, 2018 WL 1508855 (S.D. Ill. March 27, 2018), plaintiff claimed defendant’s salad dressing product labels, stating “Made With Extra Virgin Olive Oil,” violate the Illinois Consumer Fraud & Deceptive Business Practices Act (ICFA). Plaintiff maintained the product contains less than a required amount of olive oil in order to make such a claim on the label. Defendant countered plaintiff’s ICFA claim is preempted by the Federal Food, Drug, and Cosmetic Act (FDCA). Court observed the FDCA sections cited by defendant “fails to reveal what nutrient, express or implied, would be implicated in labeling a product ‘extra virgin olive oil.’” In ruling for plaintiff on the issue, the court concluded relevant FDCA provisions “do not show any federal labeling requirement for extra virgin olive oil from which a state requirement could differ.”

Sara MARENTETTE, Matthew O’Neil Nighswander, Ellen Steinlien, on behalf of themselves and all others similarly situated, Plaintiffs–Appellants, v. ABBOTT LABORATORIES, INC., Defendant–Appellee, 2018 WL 1439596 (2nd Cir. March 23, 2018) involved a consumer class action against a baby formula manufacturer. Plaintiffs alleged defendant violated the law by “advertising and selling formula branded as organic and bearing the USDA ‘organic’ seal when the formula contained ingredients not permitted by the Organic Foods Production Act (OFPA).” Lower court found plaintiff’s state law claims were preempted by OFPA and reasoned that “the challenge to the organic label on [defendant’s] products was in essence a challenge to the USDA-accredited certifying agent’s certification decision itself, and that the state-law causes of action therefore posed an obstacle to Congress’s objectives in enacting the OFPA.” Appellate court affirmed, finding the state law claims were preempted under OFPA.

In MISSOURI PRIMATE FOUNDATION, et al. Plaintiffs/Counterclaim Defendants, v. PEOPLE FOR the ETHICAL TREATMENT OF ANIMALS, INC., et al. Defendants/Counterclaim Plaintiffs. No. 4:16 CV 2163 CDP, 2018 WL 1420239 (E.D. Mo. March 22, 2018), animal rights organization claimed defendants held chimpanzees in conditions that “harm” and “harass” the animals, in violation of the “take” prohibition of the Endangered Species Act (ESA). Defendant filed motion to dismiss, arguing the Animal Welfare Act (AWA) regulates the chimpanzees’ living conditions, and not the ESA. Defendants further claimed the AWA “does not provide for the filing of private lawsuits.” Court denied motion to dismiss and found plaintiffs’ suit states a plausible claim for relief under the ESA.

URI, INC., Petitioner v. KLEBERG COUNTY, Respondent, No. 16–0336, 2018 WL 1440148 (Tex. March 23, 2018) concerned a disputed settlement agreement between a uranium mining operator and a county. Uranium mining operator sued county seeking declaration that operator had complied with the settlement agreement. Here, the settlement agreement conditioned resumption of uranium mining operations on restoration of well-water quality “if pre-mining data showed the water had been suitable for specified uses before prior mining operations began.” Lower court held that in determining whether a restoration obligation existed, the mining company “was contractually required to ignore data showing no pre-mining suitability.” State Supreme Court reversed, and found mining operator “had no obligation to ensure that water in particular well was suitable for drinking, livestock watering, or irrigation before resuming mining in production area at issue.”


LEGISLATIVE:

H.R. 2154: To rename the Red River Valley Agricultural Research Center in Fargo, North Dakota, as the Edward T. Schafer Agricultural Research Center. Enacted after being signed by the President on March 27, 2018.


REGULATORY: Includes AMS, APHIS, EPA, FWS, FDA, FSIS, FS, ITA, NASS, and NOAA rules and notices.

AGRICULTURAL MARKETING SERVICE:

Rule invites comments on changing the assessment rate computation under the AMS regulations regarding a national research and promotion program for U.S. peanuts. Details here.

Rule proposes to adopt, on an emergency basis, amendments to the Florida Federal milk marketing order (FMMO) that would implement a temporary assessment on Class I milk. Info here.

ANIMAL AND PLANT HEALTH INSPECTION SERVICE:

Notice APHIS will request a revision to and extension of approval of an information collection associated with the regulations to prevent the introduction of gypsy moth from Canada into noninfested areas of the United States. Details here.

Notice APHIS will request a revision to and extension of approval of an information collection associated with the regulations for the payment of indemnity due to infectious salmon anemia. Info here.

Notice APHIS has received a petition from BASF Plant Science, LP, seeking a determination of nonregulated status of canola designated as event LBFLFK, which has been genetically engineered (GE) to allow for the synthesis of long chain omega-3 polyunsaturated fatty acids, including eicosapentaenoic acid (EPA) and docosahexaenoic acid, from oleic acid in canola seed. Info here.

ENVIRONMENTAL PROTECTION AGENCY:

Rule EPA is updating the materials that are incorporated by reference (IBR) into the Alabama state implementation plan (SIP). Info here.

Rule EPA is approving State Implementation Plan (SIP) revisions submitted by the State of New Hampshire. Info here.

Rule establishes exemptions from the requirement of a tolerance for residues of N,N-dimethyl 9-decenamide; N,N-dimethyldodecanamide; and N,N-dimethyltetradecanamide when used as inert ingredients on growing crops and raw agricultural commodities after harvest. Details here.

Rule EPA is proposing to approve revisions to the Arizona State Implementation Plan (SIP). Info here.

Rule EPA is proposing to approve revised rules submitted by the State of Michigan as State Implementation Plan (SIP) revisions. Details here.

Rule EPA is proposing to approve the draft State Implementation Plan (SIP) submissions, submitted by the State of Mississippi, through the Mississippi Department of Environmental Quality for parallel processing, on June 23, 2017, and February 2, 2018. Info here.

FISH AND WILDLIFE SERVICE: Notice FWS is establishing migratory bird subsistence harvest regulations in Alaska for the 2018 season. Info here.

FOOD AND DRUG ADMINISTRATION:

Rule FDA is amending the animal drug regulations to reflect application-related actions for new animal drug applications and abbreviated new animal drug applications during July, August, and September 2017. Info here.

Rule FDA is withdrawing approval of three new animal drug applications. Info here.

FOOD AND NUTRITION SERVICE: Rule contains technical corrections to the Code of Federal Regulations regarding the final rule and interim final rule published in the Federal Register on January 6, 2017, “Supplemental Nutrition Assistance Program (SNAP): Eligibility, Certification, and Employment and Training Provisions of the Food, Conservation and Energy Act of 2008.” Info here.

FOOD SAFETY AND INSPECTION SERVICE:

Notice FSIS is announcing its intention to renew the approved information collection for Animal Disposition Reporting entered into the Public Health Information System. Details here.

Notice FSIS is announcing its intention to renew the approved information collection regarding its Consumer Complaint Monitoring System (CCMS) web portal. FSIS is discontinuing use of the electronic Food Safety Mobile questionnaire that was approved under this collection. Info here.

FOREST SERVICE:

Rule updates the current regulations that establish procedures for public participation in the formulation of standards, criteria, and guidelines applicable to Forest Service programs as required by the Forest and Rangeland Renewable Resources Planning Act. Info here.

Notice Black Hills National Forest, located in South Dakota and Wyoming, prepared a non-significant, programmatic Forest Plan Amendment to replace an existing standard with updated language found in the Regional Watershed Conservation Practices Handbook (WCPH) relative to maintaining or improving long-term levels of organic matter and nutrients on all lands. Details here.

INTERNATIONAL TRADE ADMINISTRATION: Notice ITA is rescinding its administrative review of the antidumping duty order on certain pasta from Turkey for the period of review (POR) July 1, 2016, through June 30, 2017. Info here.

NATIONAL AGRICULTURAL STATISTICS SERVICE:

Notice NASS will request revision and extension of a currently approved information collection for Field Crops Production. Info here.

Notice NASS will seek approval to conduct a new information collection to obtain labor related data from contractors who provide laborers to the farming industry. Details here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Notice Patricia Fair, Ph.D., Medical University of South Carolina, Hollings Marine Laboratory, 331 Fort Johnson Road, Charleston, SC 29412, has applied in due form for a permit to receive, import, and export marine mammal parts for scientific research. Info here.

Notice NMFS has received one permit application submitted by FISHBIO Environmental, LLC. Details here.

Notice California American Water Company (CalAm) submitted a permit application to NOAA’s Monterey Bay National Marine Sanctuary (MBNMS) to construct and operate a reverse osmosis (RO) desalination facility project (Project) in Monterey County, California. Info here.

Notice that permits or permit amendments have been issued to the following entities under the Marine Mammal Protection Act (MMPA) and the Endangered Species Act (ESA), as applicable. Info here.