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


JUDICIAL: Includes Urb & Ag, food labeling, and CWA issues.

In PPG INDUSTRIES, INC., Narula Real Estate Associates, LLC, and ALFRED Smith, Plaintiffs-Respondents, v. J. GOLDENBERG INC., Defendant-Appellant, and State of New Jersey and The Central Railroad Company n/k/a Consolidated Rail Corporation, Defendants, NO. A-0077-15T3, 2017 WL 1832418 (N.J. Super. Ct. App. Div. May 8, 2017), plaintiffs owned three lots their predecessors purchased from defendant and trial court granted plaintiffs title through adverse possession to their portions of an alley at the rear of the lots. Defendant had purchased all the lots in a block in 1921 and entered into a railroad siding agreement with defendant Central Railroad Company “to operate a railroad siding running down a twenty-eight-foot-wide alley in the center of the block.” The railroad siding in the alley ceased being used by 1965. Court conducted “adverse possession” analysis and was not persuaded by defendant’s claims. Affirmed for plaintiffs.

In Mary SWEARINGEN, et al., Plaintiffs, v. LATE JULY SNACKS LLC, Defendant, No. 13-cv-04324-EMC, 2017 WL 1806483 (N.D.Cal. May 5, 2017), plaintiffs filed class action claiming defendant’s use of the term “evaporated cane juice” on its labels is a misleading term for sugar. Defendant moved to dismiss. Court observed that, “The position of the Food and Drug Administration (“FDA”) is that ‘evaporated cane juice’ is not the common or usual name of any sweetener.” Court concluded that plaintiff’s claims under California’s Unfair Competition Law (UCL) and False Advertising Law (FAL) :are not preempted by federal law,” and that plaintiff “adequately allege[d] reliance under heightened pleading standard.” Defendant’s motion to dismiss denied.

State of OHIO, Plaintiff, v. UNITED STATES ARMY CORPS OF ENGINEERS, et al., Defendants, NO. 1:15-CV-679, 2017 WL 1788646 (N.D. Ohio May 5, 2017) involved Clean Water Act issues wherein plaintiff sought to reverse defendants’ decision that “dredged material” from an area (Upper Channel of the Cuyahoga River) was suitable for “open-lake placement,” and also sought to reverse a decision to defer dredging of an area “absent authorization for open-lake placement of the dredged sediment or receipt of funding contributions from a non-federal source.” Plaintiff argued defendant must follow State requirements and pay for “associated costs.” Court concluded defendants’ determination that the sediment from the Upper Channel could be deposited in Lake Erie without violating the Clean Water Act was “arbitrary and capricious, an abuse of discretion and otherwise not in accordance with the applicable law.” The court also ruled that “by treating its own determinations under the Federal Standard as the ultimate authority on the State’s water quality certification standards, and elevating that regulation above its other statutory and regulatory obligations, the Corps exercised power in excess of its statutory jurisdiction, authority, or limitations.” Plaintiff’s motion for summary judgment granted.


LEGISLATIVE: 

S. 140: A bill to amend the White Mountain Apache Tribe Water Rights Quantification Act of 2010 to clarify the use of amounts in the WMAT Settlement Fund. This bill’s text for status passed the Senate.

S. 249: A bill to provide that the pueblo of Santa Clara may lease for 99 years certain restricted land, and for other purposes. This bill’s text for status passed the Senate.

Motion to Invoke Cloture On the Nomination of Scott Gottlieb to be Commissioner of Food and Drugs: Scott Gottlieb, of Connecticut, to be Commissioner of Food and Drugs, Department of Health and Human Services. Cloture Motion Agreed to 57/41.


REGULATORY: Includes AMS, USDA, APHIS, EPA, FDA, NIFA and NOAA rules and notices.

AGRICULTURAL MARKETING SERVICE:

Rule AMS is delaying the effective date of the rule published on January 19, 2017 (Organic Livestock and Poultry Practices), for an additional six months to November 14, 2017. Info here.

Rule that USDA will pursue action on the Organic Livestock and Poultry Practices Final Rule published in the Federal Register on January 19, 2017. Details here.

AGRICULTURE DEPARTMENT: Notice of USDA National Appeals Division’s request for an extension to a currently approved information collection for Customer Service Survey. Info here.

ANIMAL AND PLANT HEALTH INSPECTION SERVICE:

Notice APHIS will request an extension of approval of an information collection associated with environmental monitoring. Info here.

Notice APHIS reached a preliminary decision to extend our determination of nonregulated status of InVigor® MS8 canola to Bayer’s canola event MS11 in response to a request from Bayer CropScience LP. Info here.

ENVIRONMENTAL PROTECTION AGENCY:

Rule EPA approves a submittal from the Indiana Department of Environmental Management to EPA, dated December 22, 2016. Info here.

Rule EPA approves the State Implementation Plan submission, submitted by the State of Tennessee. Details here.

Rule EPA approves a state implementation plan revision submitted by the Commonwealth of Virginia. Details here.

Rule EPA will approve a source-specific revision to the New York State Implementation Plan. Details here.

FOOD AND DRUG ADMINISTRATION:

Rule FDA amends the animal drug regulations to reflect application-related actions for new animal drug applications and abbreviated new animal drug applications during January and February 2017. Info here.

Rule FDA withdraws approval of a new animal drug application (NADA). Details here.

NATIONAL INSTITUTE OF FOOD AND AGRICULTURE: Rule updates list of institutions granted Hispanic-Serving Agricultural Colleges and Universities certification by the Secretary and are eligible for HSACU programs for the period ending September 30, 2017. Details here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Rule listing six foreign marine elasmobranch species under the Endangered Species Act. Info here.

Notice NMFS received a request from Washington State Department of Transportation for authorization to take marine mammals. Details here.

Notice the Gulf of Mexico Fishery Management Council will hold a public hearing via webinar to solicit public comments on Draft Reef Fish Amendment 44—Minimum Stock Size Threshold for Reef Fish Stocks. Details here.