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, Wednesday, March 21st: 2018 Farm Bill Outlook. Details available here.


JUDICIAL: Includes crop insurance, nutrition programs, CWA, and food labeling issues.

JPM-RDP FARMS, LLC, a Florida corporation, Petitioner, v. UNITED STATES DEPARTMENT OF AGRICULTURE-RISK MANAGEMENT AGENCY, FEDERAL CROP INSURANCE CORPORATION, Defendant, No: 2:17-cv-85-FtM-99CM, 2018 WL 1167325 (M.D. Fla. March 6, 2018) concerned whether the Risk Management Agency (RMA) properly rejected tomato farmer’s crop insurance claims for the loss of his 2014-15 crops. Plaintiff argued its crop losses were covered under its crop insurance policy because “no effective control measure existed for the disease and insect infestation of the crops at issue.” RMA ruled crop losses were not a covered cause under the insurance policy because plaintiff’s tomato crop was “damaged by disease, an uninsured cause of loss.” Court considered language of Federal Crop Insurance Corporation (FCIC) regulations and determined RMA’s decision denying recovery was not “arbitrary and capricious.”

In BROAD STREET SUPERMARKET, INC., et al. v. GEORGIA DEPARTMENT OF PUBLIC HEALTH, A17A1923, 2018 WL 1165846 (Ga. Ct. App. March 6, 2018), plaintiff appealed decision denying plaintiff’s grocery stores from participating in the federal Special Supplemental Nutrition Program for Women, Infants, and Children (WIC). Defendant disqualified plaintiff’s stores after an investigation revealed “[a] pattern of receiving, transacting [,] and/or redeeming food instruments or cash-value vouchers outside of authorized channels.” Plaintiff argued defendant was required to notify plaintiff after a violation occurred at one of its stores. Appellate court agreed and concluded that “because the DPH failed to comply with federal notice requirements before imposing a three-year sanction for the violations, we reverse the superior court’s order affirming the agency’s decision.”

In MICHAEL KLEINMAN, Plaintiff, v. CITY OF AUSTIN, Defendant, 1:15-cv-497-RP, 2018 WL 1168859 (W.D. Tex. March 6, 2018), plaintiff sought injunction against City for violating the Clean Water Act (CWA). Plaintiff argued “discharges of sand, soil, rock, and other sediment that are being washed into the Colorado River from the bed and banks of a channel running through a city park.” Court agreed with plaintiff that “sediment is a pollutant under the CWA, and there is no question that sediment from the channel continues to be washed into the river during even minor rain events.” Court, however, did not grant the plaintiff’s requested inunction, but imposed a “nominal civil penalty.”

Barry Allred and Mandy C. Allred, on behalf of themselves, all others similarly situated, and the general public, Plaintiffs, v. Kellogg Company, a Delaware Corporation, et al., Defendants, No.: 17-cv-1354-AJB-BLM, 2018 WL 1158885 (S.D. Cal. February 23, 2018) concerned the labeling of defendant’s “Salt and Vinegar Flavored Potato Crisps,” wherein plaintiff alleged defendant falsely presented the chips as natural, but contained the chemical sodium diacetate. Plaintiff alleged violations of the Consumer Legal Remedies Act, Unfair Competition Law, and False Advertising Law, “which are governed by the ‘reasonable consumer’ test.” Defendant moved to dismiss. Court considered defendant’s packaging and observed “[t]he image certainly gives an impression of freshly baked chips where the salt flavoring comes from the sprinkled salt and the vinegar flavoring comes from the bottles.” Court concluded that “a reasonable consumer could believe the chips were naturally, and not artificially, flavored,” and denied defendant’s motion to dismiss.


LEGISLATIVE:

S. 2503: A bill to establish Department of Energy policy for science and energy research and development programs, and reform National Laboratory management and technology transfer programs. Referred to the Senate Committee on Energy and Natural Resources.

S. 2501: A bill to amend the Omnibus Parks and Public Lands Management Act of 1996 to provide for the establishment of a Ski Area Fee Retention Account. Referred to the Senate Committee on Energy and Natural Resources.

H.R. 5188: To amend the Food Security Act of 1985 with respect to land stewardship. Referred to the House Committee on Agriculture

H.R. 5185: To make supplemental appropriations for the Cops in Schools program for fiscal year 2018. Referred to the House Committee on Appropriations which will consider it before sending it to the House floor for consideration.

H.R. 5171: To amend the Omnibus Parks and Public Lands Management Act of 1996 to provide for the establishment of a Ski Area Fee Retention Account. Referred to the House Committee on Agriculture and House Committee on Natural Resources.

H.R. 5172: To assist Indian tribes in maintaining, expanding, and deploying broadband systems. Referred to the House Committee on Agriculture and House Committee on Energy and Commerce.

H.R. 5184: To amend the Food Security Act of 1985 to improve conservation practice standards. Referred to the House Committee on Agriculture.


REGULATORY: Includes USDA, CCC, FSA, FWS, ITA, and NOAA rules and notices.

AGRICULTURE DEPARTMENT: Notice USDA has submitted the following information collection requirement(s) to OMB for review. Title: SNAP-Ed Toolkit Submission Form (FNS-886) and Scoring Tool (FNS-885). Details here.

COMMODITY CREDIT CORPORATION: Notice announces the availability of cost-share funds to certain cotton producers of the United States, specifically for the 2016 cotton crop. Info here.

FARM SERVICE AGENCY: Notice announces the availability of cost-share funds to certain cotton producers of the United States, specifically for the 2016 cotton crop. Info here.

FISH AND WILDLIFE SERVICE:

Notice FWS received an application for an incidental take permit (ITP) under the Endangered Species Act. Details here.

Notice FWS seeks comment on applications for permits to conduct activities intended to enhance the propagation or survival of endangered species. Details here.

Notice FWS received an application from Calvary Church Santee for a 3-year incidental take permit for the threatened coastal California gnatcatcher pursuant to the Endangered Species Act, as amended. Info here.

INTERNATIONAL TRADE ADMINISTRATION: Notice Commerce is initiating an expedited review of the countervailing duty order on certain softwood lumber products from Canada. Info here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Notice NOAA will submit to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information. Title: Alaska Rockfish Program: Permits and Reports. Info here.

Notice NOAA seeks comment on proposed and/or continuing information collections. Details here.