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


JUDICIAL: Includes food labeling, biotech, antitrust, and PACA issues.

LISA ROSILLO, et al., Plaintiffs, v. ANNIE’S HOMEGROWN INC., et al., Defendants, No. 17-cv-02474-JSW, 2017 WL 5256345, (N.D. Cal. October 17, 2017) involved a food labeling dispute wherein plaintiffs claimed defendants market their Annie’s Naturals products as “natural” by including the words “Annie’s Naturals” on the packaging. Plaintiffs alleged false advertising by the defendants as the products contain “synthetic and highly chemically processed ingredients such as xanthan gum.” Defendants argued that since the Food and Drug Administration (FDA) “has commenced regulatory proceedings to explore whether, and to what extent, it should regulate the term “natural” on food labels, the Court should stay this case.” Plaintiffs countered that a stay is unwarranted because “it is speculative to think the FDA will actually use its rulemaking powers to regulate the term ‘natural.’” Court ruled “this action is stayed until the FDA’s regulatory process regarding use of the term ‘natural’ on food labeling is completed.”

CRYSTAL KAO, ET AL., Plaintiffs, v. ABBOTT LABORATORIES INC., Defendant, No. 17-cv-02790-JST, 2017 WL 5257041 (N.D. Cal. November 13, 2017) involved a food safety dispute wherein plaintiffs alleged defendant’s conduct in marketing a baby formula (Similac Non-GMO) “as containing ingredients that are not genetically engineered deceived and/or was likely to deceive the public.” Defendant argued plaintiffs’ state law claims are preempted by the National Bioengineered Food Disclosure Standard (NBFDS) “giving the USDA sole responsibility for regulating GMO labeling.” Court reasoned the preemption issue “turns not on whether the USDA has promulgated GMO labeling rules, but whether Plaintiffs’ claims fall within the express preemption provision.” Court concluded plaintiffs’ state-law claims “are not preempted by the NBFDS,” and denied defendant’s motion to dismiss.

In re RAIL FREIGHT FUEL SURCHARGE ANTITRUST LITIGATION, This document relates to: ALL DIRECT PURCHASER CASES, No. 1869, No. 07-0489 (PLF), 2017 WL 5311533 (D.C.C. November 13, 2017) involved an alleged price-fixing conspiracy wherein plaintiffs alleged defendants (railroad companies) “conspired to impose Rail Fuel Surcharges that far exceeded any increases in the Defendants’ fuel costs, and thereby collected billions of dollars of additional profits during the conspiracy.” Here, plaintiff moved to have the class certified. In a lengthy opinion, the court considered the elements of a Sherman Act violation and noted that “plaintiffs must show by a preponderance of the evidence that the elements of their claim are ‘capable of proof at trial through evidence that is common to the class rather than individual to its members.’” Court concluded that plaintiffs did not meet the “predominance requirement.” The court also found that the proposed class action “would require significant individualized inquiries regarding both injury and damages.” Class certification denied.

In re: JAMES DONZIL ROBERTS, SR. and DEENA WALDMAN ROBERTS, Debtors. JAMES DONZIL ROBERTS, SR., Appellant, v. MICHAEL BARNES; CALIFORNIA FARMS INVESTORS LLC, Appellees, BAP No. CC-17-1010-STaL, Bk. No. 1:12-bk-16474-MT, Adv. No. 1:12-ap-01371-MT, 2017 WL 5352672 (9th Cir. BAP November 13, 2017) involved Perishable Agricultural Commodities Act (PACA) issues wherein debtor appealed a judgment excepting from discharge debt arising from a scheme to defraud some investors. Appellees loaned debtor nearly a million dollars for an organic farm venture that never materialized. Here, debtor argued bankruptcy court erred “by not crediting the value of his farm equipment collateral that secured repayment of appellees’ loan against his damages.” Debtor argued his fraudulent behavior did not cause a loss because “the value of the collateral was more than sufficient to offset the amount lent.” Bankruptcy court determined that appellee was forced to assign his interest in the collateral to third party produce suppliers “in order to obtain a release of potentially massive liability under [PACA] – liability that flowed from [debtor’s] fraud.” Affirmed for appellee.


REGULATORY: Includes AMS, EPA, FCIC, ITA and NOAA rules and notices. 

AGRICULTURAL MARKETING SERVICE: Rule implements a recommendation from the Citrus Administrative Committee to relax the minimum size requirements currently prescribed under the marketing Order for oranges, grapefruit, tangerines, and pummelos grown in Florida. Details here.

ENVIRONMENTAL PROTECTION AGENCY:

Rule establishes initial air quality designations for most areas in the United States, including most areas of Indian country, for the 2015 primary and secondary national ambient air quality standards (NAAQS) for ozone. Info here.

Rule EPA is establishing tolerances for residues of tebufenozide in or on multiple commodities, which are identified and discussed later in this document. In addition, EPA is correcting commodity definitions, updating crop group tolerances, and harmonizing U.S. tolerances with Codex. Details here.

FEDERAL CROP INSURANCE CORPORATION: Notice that a public comment period on the information collection requests (ICRs) associated with the Standard Reinsurance Agreement and Appendices I, II and IV administered by Federal Crop Insurance Corporation (FCIC). Info here.

INTERNATIONAL TRADE ADMINISTRATION:

Notice ITA determines that countervailable subsidies are being provided to producers and exporters of biodiesel from the Republic of Argentina. The period of investigation is January 1, 2016, through December 31, 2016. Info here.

Notice ITA determines that countervailable subsidies are being provided to producers and exporters of biodiesel from the Republic of Indonesia (Indonesia). The period of investigation is January 1, 2016, through December 31, 2016. Details here.

Notice ITA initiated a less-than-fair-value (LTFV) investigation of imports of ripe olives from Spain.[1] Currently, the preliminary determination is due no later than November 29, 2017. Info here.

NATIONAL OCEANIC AND ATOMSPHERIC ADMINISTRRATION:

Rule NMFS announces that the 2017 summer flounder commercial quota allocated to the State of Rhode Island has been harvested. Info here.

Notice NMFS has determined that twelve exempted fishing permit (EFP) applications warrant further consideration and is requesting public comment on the applications. Details here.