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


JUDICIAL: Includes food safety, landowner liability, food labeling, renewable energy, and agritourism issues.

In CENTER FOR FOOD SAFETY, et al., Plaintiffs, v. Tom VILSACK, et al., Defendants, No. 15-cv-01590-HSG (KAW), 2017 WL 1709318 (N.D. Cal. May 3, 2017), USDA published the “National Organic Program––Sunset Process” in the Federal Register, “impos[ing] new, mandatory standards and Sunset Review procedures.” Plaintiffs argued Sunset Notice did not provide for a public notice and comment period in violation of the APA. Issue was whether the Administrative Record “consists of all documents and materials directly or indirectly considered by the agency in making its decision.” Court found that “the presumption of completeness is rebutted because even in the updated certification, Defendants admit that the AR contains only ‘all non-privileged materials directly or indirectly considered by USDA in issuing the Sunset Notice….’” Plaintiffs’ motion to complete the administrative record granted.

In JACOBO G. GARCIA, a Minor, etc., et al., Plaintiffs and Appellants, v. AMERICAN GOLF CORPORATION et al., Defendants and Respondents, B267613, 2017 WL 1684205 (Cal. Ct. App. May 3, 2017), plaintiff was injured by a golf ball on a walkway the City of Pasadena claimed is a trail and sued for damages. Defendant was granted summary judgment and plaintiff appealed. Court considered whether property at issue qualified for “trail immunity” per statute. Court held trail immunity “does not immunize a dangerous condition of a commercially operated, revenue generating public golf course that causes injury to pedestrians on an adjacent trail.” Summary judgment for defendant reversed.

Angerlia MARTIN et al. v. TRADEWINDS BEVERAGE COMPANY, No. CV16-9249 PSG (MRWx) 2017 WL 1712533 (C.D. Cal. April 27, 2017) concerned alleged misleading and deceptive labeling on iced tea beverage containers. Plaintiff claimed she believed iced tea she purchased was “all natural,” but it contained a caramel color additive. Defendant argued that the primary jurisdiction doctrine applied “on grounds that a pending decision by the FDA concerning natural food labeling will affect the resolution of the claims in this case.” Court observed that, “there is no representation from the FDA that resolution of the question of color additives is forthcoming.” Defendant’s motion to dismiss denied.

In NATIONWIDE AGRIBUSINESS INSURANCE COMPANY, Plaintiff, v. Steve ADKISON, Defendant, No.: 4:17-CV-0366-VEH, 2017 WL 1684547 (N.D. Ala. May 3, 2017), defendant gave Nationwide (plaintiff) estimates for repair of alleged wind damage to his poultry houses. Plaintiff argued defendant “failed to comply with his post-loss obligations under the Policy,” and defendant moved to dismiss for improper venue. Court noted that, “Plaintiff has not satisfied its burden to demonstrate a prima facie case that venue is appropriate in this district,” and observed that, “Facts and evidence relating to where the contract was formed are irrelevant.” Case dismissed.

CADENA COMERCIAL USA CORP. d/b/a OXXO, Petitioner, v. TEXAS ALCOHOLIC BEVERAGE COMMISSION, Respondent, No. 14–0819, 2017 WL 1534052 (Tex. April 28, 2017) involved interpretation of interpret Texas’s “tied house” statutes prohibiting “overlapping ownership between the manufacturing, wholesaling, and retailing segments of the alcoholic beverage industry.” Fomento Económico Mexicano, (FEMSA) owns “20% of the stock in two Heineken companies which hold non-resident manufacturer’s permits in Texas.” FEMSA also owns 100% of plaintiff’s company, formed to operate convenience stores in Texas. Plaintiff applied for retailer’s permit to sell alcohol and the Texas Alcoholic Beverage Commission (TABC) denied the permit, claiming FEMSA’s ownership interests “would violate the tied house statutes.” District court and appellate court agreed with TABC’s denial of a permit. Affirmed for respondent.


REGULATORY: Includes ARS, USDA, APHIS, BOC, EPA, NIFA, and NOAA rules and notices.

AGRICULTURAL RESEARCH SERVICE:

Notice ARS will grant to Oregon State University of Corvallis, Oregon, an exclusive license to the variety of blackberry described in U.S. Plant Patent Application Serial No. 15/330,508, “BLACKBERRY PLANT NAMED `COLUMBIA SUNRISE’.” Info here.

Notice ARS will grant to Oregon State University of Corvallis, Oregon, an exclusive license to the variety of strawberry described in U.S. Plant Patent Application Serial No. 15/330,507, “STRAWBERRY PLANT NAMED `MARY’S PEAK’.” Details here.

AGRICULTURE DEPARTMENT: Notice USDA has submitted information collection requirement(s) to OMB for review. Title: 7 CFR 765, Direct Loan Servicing—Regular. Details here.

ANIMAL AND PLANT HEALTH INSPECTION SERVICE: Notice APHIS is updating the National Poultry Improvement Plan Program Standards document. Details here.

CENSUS BUREAU: Notice the Bureau of the Census announces a meeting of the Federal Economic Statistics Advisory Committee. Details here.

ENVIRONMENTAL PROTECTION AGENCY: Rule EPA approved a New Hampshire’s State Implementation Plan submissions that addressed infrastructure requirements of the Clean Air Act for the 2010 sulfur dioxide National Ambient Air Quality Standards in the Federal Register on July 8, 2016. Details here.

NATIONAL INSTITUTE OF FOOD AND AGRICULTURE: Rule NIFA is publishing as a final rule, a set of general and specific administrative requirements applicable to competitive and non-competitive non-formula programs. Details here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Rule NMFS announces the 2017 recreational fishing seasons for the private angling and Federal charter vessel/headboat components for red snapper in the exclusive economic zone (EEZ) of the Gulf of Mexico. Info here.

Rule NMFS has received an application for authorization to take marine mammals incidental to Long Range Strike Weapons System Evaluation Program activities off Kauai, Hawaii. Details here.