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, May 16th: U.S. Agriculture Trade:  Overview and Update on Current and Emerging Issues. Details available here.


JUDICIAL: Includes CWA, landowner liability, food labeling, and pesticide issues.

In CENTRO DEVELOPMENT CORPORATION, Plaintiff-Appellant, v. CENTRAL MUTUAL INSURANCE COMPANY, Defendant-Appellee, No. 17-13489, 2018 WL 1989940 (11th Cir. April 27, 2018), plaintiff alleged its insurer wrongly denied insurance coverage in reliance on the policy’s “pollution” exclusion. Lower court held exclusion was “unambiguous and that storm water qualifies as a pollutant” per the policy, and dismissed the case. Appellate court considered the language of the policy, which defined pollution as “any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, soot, fumes, acids, alkalis, chemicals and waste.” Court also noted similar cases found storm water “qualifies as a pollutant under the exact same language that is at issue in this case.” Court affirmed dismissal of the case and ruled that “storm water qualifies as a pollutant.”

In Joel PHILIUS, respondent, v. CITY OF NEW YORK, defendant, New York City Housing Authority, appellant, 2015–11913, (Index No. 20459/13), 2018 WL 2028578 (N.Y. App. Div. May 2, 2018), plaintiff was injured playing basketball on a court maintained by City. City moved for summary judgment, arguing plaintiff was involved in a “recreational activity” and assumed the risk. Lower court found for plaintiff and on appeal, court observed that “a voluntary participant in a sporting or recreational activity ‘consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation.’” Here, plaintiff testified that he “grew [up] playing on [the subject] court,” and was aware of “cracks in the surface of the court prior to his accident.” Court noted that it has “consistently applied the primary assumption of risk doctrine in cases involving similar known or open and obvious conditions,” and reversed lower court ruling.

In CRYSTAL BROWN, Plaintiff, v. DANONE NORTH AMERICA, LLC, et al., Defendants, No. 17-cv-07325-JST, 2018 WL 2021340 (N.D. Cal. May 1, 2018), plaintiff sued alleging defendant’s labeling and advertising of its Horizon Organic milk is “false and misleading” because the product contains DHA. Plaintiff sued under California’s Unfair Competition Law (UCL). Defendants argued plaintiff’s state law claims “are impliedly preempted by the federal certification scheme.” Court observed plaintiff’s state law claims that the certified organic milk is not really organic “directly conflict with OFPA’s primary purposes: (1) a uniform national standard, and (2) exclusive federal enforcement of such standard.” Plaintiff’s claims dismissed.

In BEYOND PESTICIDES et al., Plaintiffs, v. MONSANTO CO. et al., Defendants, No. 17-941 (TJK), 2018 WL 2023508 (D.D.C. April 30, 2018), plaintiffs sued Monsanto alleging violations of the District of Columbia Consumer Protection Procedures Act (DCCPPA) for “unlawful trade practices.” At issue was the text on the company’s Roundup product label referencing glyphosate which “targets an enzyme found in plants but not in people or pets.” Monsanto countered plaintiffs’ claims “are preempted by FIFRA” and must be dismissed. Court compared DCCPPA and FIFRA statutes and reasoned that “[a]lthough the DCCPPA contains more detail than the misbranding provision in FIFRA, it is ‘fully consistent’ with FIFRA as Plaintiffs seek to apply it to Roundup’s label.” Court concluded that plaintiffs’ claims “are not preempted because the DCCPPA, as it relates to pesticide labels, does not impose a broader or different obligation than FIFRA.” Monsanto’s motion to dismiss denied.


LEGISLATIVE:

H.R. 2: Agriculture and Nutrition Act of 2018. Text for status Reported by House Committee (May 3, 2018) is now available.

H.R. 3053: Nuclear Waste Policy Amendments Act of 2017. Bill added to the House’s schedule for the coming week.

H.R. 4910: Veterans Cemetery Benefit Correction Act. Bill added to the House’s schedule for the coming week.


REGULATORY: Includes EPA, FWS, FDA, FNS, ITA, NOAA, and RUS rules and notices.

ENVIRONMENTAL PROTECTION AGENCY:

Rule establishes an exemption from the requirement of a tolerance for residues of Duddingtonia flagrans strain IAH 1297 in or on all food commodities when used in accordance with label directions and good agricultural practices. Details here.

Rule establishes an exemption from the requirement of a tolerance for residues of konjac glucomannan when used as an inert ingredient on growing crops only at a concentration not to exceed 1% by weight in a pesticide formulation. Details here.

Rule EPA is issuing a supplement to its March 1, 2018 proposed approval of the Commonwealth of Virginia’s request to change reliance on the Clean Air Interstate Rule to reliance on the Cross-State Air Pollution Rule to address certain regional haze requirements and to convert the Agency’s limited approval/limited disapproval of Virginia’s regional haze SIP to a full approval. Info here.

FISH AND WILDLIFE SERVICE:

Notice FWS is initiating 5-year status reviews of 35 species under the Endangered Species Act. Info here.

Notice FWS is initiating 5-year status reviews for 156 species in Oregon, Washington, Hawaii, Palau, Guam, and the Northern Mariana Islands under the Endangered Species Act. Info here.

Notice the natural resource Trustees for the Tri-State Mining District (TSMD) site announce the availability for public comment of a Draft Restoration Plan and Environmental Assessment for TSMD natural resource damage restoration. Details here.

FOOD AND DRUG ADMINISTRATION: Rule FDA is amending the regulations for food additives permitted in feed and drinking water of animals to provide for the safe use of dried marine microalgae as a source of docosahexaenoic acid for use in complete, dry foods for adult dogs. Info here.

FOOD AND NUTRITION SERVICENotice seeks comment on a proposed information collection. This collection is an extension of a currently approved collection for the maintenance of a central repository containing information about authorized foods in the Special Supplemental Nutrition Program for Women, Infants and Children. Info here.

INTERNATIONAL TRADE ADMINISTRATION:

Notice ITA seeks public comment on any subsidies, including stumpage subsidies, provided by certain countries exporting softwood lumber or softwood lumber products to the United States during the period July 1, 2017, through December 31, 2017. Info here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Rule NMFS is issuing regulations under the Magnuson- Stevens Fishery Conservation and Management Act to implement Amendment 4 to the Fishery Management Plan for U.S. West Coast Highly Migratory Species. Info here.

Notice is hereby given that NMFS has prepared a draft environmental assessment (EA) under the National Environmental Policy Act describing the potential effects of the continued operation of one hatchery program in the San Joaquin River Basin of California. Details here.

Notice NMFS has received a request from Point Blue Conservation Science for authorization to take marine mammals incidental to seabird and pinniped research activities in central California. Info here.

Notice NMFS is requesting comments on its proposal to issue an incidental harassment authorization (IHA) to incidentally take marine mammals during the specified activities. Info here.

RURAL UTILITIES SERVICE: Rule RUS is amending its regulations regarding its Policy on Audits to incorporate 2011 revisions to the Generally Accepted Government Auditing Standards (GAGAS) issued by the Government Accountability Office (GAO), the clarified audit standards issued by the American Institute of Certified Public Accountants (AICPA) in 2011, and Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards. Details here.