A comprehensive summary of today’s judicial, legislative, and regulatory developments in agriculture and food. Email important additions to: camarigg at uark.edu


JUDICIAL: Includes zoning, farm lease and labeling issues.

Suzanne M. Ebbert, Appellant v. Upper Saucon Twp. Zoning Bd., Upper Saucon Twp., Douglas & Carolyn Shoenberger, No. 347 C.D. 2016, 2016 WL 6833081, (Pa. Commw. Ct. Nov. 21, 2016) involved zoning issues. Plaintiff was denied a zoning permit and appealed after applying for permission to build a barn, six permanent horse run-ins, and a related access road on her property. Zoning official denied plaintiff’s zoning permit application claiming the town’s “Subdivision and Land Development Ordinance” (SALDO) required approval of a land development plan. Court observed that the Property is currently used for an agricultural operation and “otherwise used for the raising of livestock within the definition set forth in the Zoning Ordinance.” Appellate court concluded defendant “erred in determining that the Property was not a farm within the definitions set forth in the Zoning Ordinance and the SALDO.” Ruling for plaintiff on appeal.

Stiles Family Ltd. P’ship, III, LLP, Plaintiff Below, Petitioner v. Riggs & Stiles, Inc. & Christopher Stiles, Defendants Below, Respondents, No. 16-0220, 2016 WL 6819788, (W. Va. Nov. 18, 2016) involved tenants to a farm lease that allowed a concert promoter to seek a permit for a music festival on the leased property. At issue was whether the filing of the application was, in fact, a breach of the lease by the tenants. Per the facts, the application was withdrawn and the concert never occurred. Court surmised “there was no prohibited use of the property within the lease’s plain and unambiguous terms.” Court found for defendant and ruled the filing of the application was not a prohibited use by the tenants.

In Snac Lite, LLC v. Nuts ‘N More, LLC, No. 2:14-CV-01695-RDP, 2016 WL 6778268, (N.D. Ala. Nov. 16, 2016), plaintiff and defendant manufacture high-end, protein enhanced nut butter. Plaintiff sued under the Lanham Act, claiming defendant misrepresented the protein content in its specialty nut butters, and sought injunctive relief and lost profits. Defendant argued parties are not direct competitors and plaintiff cannot prove causation. Court was not persuaded by plaintiff’s experts’ testimony and noted that “[t]he final element of a Lanham Act false advertising claim is that the false advertising caused injury to plaintiff.” Considering the totality of the evidence, the court concluded that “what is missing is any evidence connecting a misrepresentation by Defendant to the drop in Plaintiff’s sales. In order to survive summary judgment, a plaintiff must provide substantial evidence not just that Plaintiff suffered damages, but that those damages were caused by Defendant’s alleged false advertisement.” Summary judgment for defendant.


REGULATORY: Includes AMS, USDA, APHIS, EDA, FCIC, FDA, FSIS, FS, USDI, ITA, and NOAA rules and notices.

AGRICULTURAL MARKETING SERVICE:

Rule removes language from the California raisin marketing order’s minimum grade standards and the import regulations’ grade and size requirements. Info here.

Rule AMS seeks comments on its proposal to create new United States Standards for Grades of Frozen Onions. Details here.

Rule would implement a recommendation from the Florida Tomato Committee to increase the assessment rate established for the 2016-17 and subsequent fiscal periods from $0.03 to $0.035 per 25-pound carton of tomatoes handled under the marketing order. Details here.

Rule would amend the research and promotion orders overseen by the AMS to provide uniform authority for the removal of board members and staff who fail to perform their duties or who engage in dishonest actions or willful misconduct. Info here.

Notice AMS will request approval from the Office of Management and Budget for a new information collection for the Processed Egg and Egg Products Verification Program. Info here.

AGRICULTURE DEPARTMENT: Rule Departments of Agriculture, the Interior, and Commerce are jointly issuing final rules for procedures for expedited trial-type hearings and the consideration of alternative conditions and fishway prescriptions required by the Energy Policy Act of 2005. Details here.

ANIMAL AND PLANT HEALTH INPECTION SERVICE: Notice APHIS will request an extension of approval of an information collection associated with the regulations for the importation of live fish, fertilized eggs, and gametes to prevent the introduction of spring viremia of carp into the United States. Info here.

ECONOMIC DEVELOPMENT ADMINISTRATION: Notice the National Advisory Council on Innovation and Entrepreneurship will hold a public meeting via teleconfrerence on Wednesday, December 7, 2016. Details here.

FEDERAL CROP INSURANCE CORPORATION: Rule amending various crop provisions. Purpose is to update prevented planting coverage levels through the actuarial documents to improve actuarial considerations and coverage offered, program integrity, and to reduce vulnerability to program fraud, waste, and abuse. Details here.

FOOD AND DRUG ADMINISTRATION:

Rule CFR correction in Title 21 of the Code of Federal Regulations concerning § 101.9 Nutrition labeling of food. Details here.

Rule CFR correction in Title 21 of the Code of Federal Regulations concerning § 101.10 Nutrition labeling of restaurant foods whose labels or labeling bear nutrient content claims or health claims. Details here.

Rule CFR correction in Title 21 of the Code of Federal Regulations regarding § 101.11 Nutrition Labeling of Standard Menu Items in Covered Establishments. Info here.

Rule FDA announces availability of a draft guidance entitled “Scientific Evaluation of the Evidence on the Beneficial Physiological Effects of Isolated or Synthetic Non-digestible Carbohydrates Submitted as a Citizen Petition.” Info here.

FOOD SAFETY AND INSPECTION SERVICE: Notice FSIS seeks nominations for membership for the National Advisory Committee on Meat and Poultry Inspection. Info here.

FOREST SERVICE: Notice that the Horse Creek Project will reduce fuels along egress and ingress roads, on strategic ridges, and adjacent to private property; to reduce safety hazards along roads and in concentrated stands in and around the community of Horse Creek, California. Info here.

INTERIOR DEPARTMENT: Rule the Departments of Agriculture, the Interior, and Commerce are jointly issuing final rules for procedures for expedited trial-type hearings and the consideration of alternative conditions and fishway prescriptions required by the Energy Policy Act of 2005. Details here.

INTERNATIONAL TRADE ADMINISTRATION:

Notice on November 9, 2016, the Department of Commerce published the preliminary results of the investigation of sales at less than fair value for ammonium sulfate from China. Info here.

Notice announcing schedule and proposed agenda of a meeting of the Environmental Technologies Trade Advisory Committee. Info here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Rule the Departments of Agriculture, the Interior, and Commerce are jointly issuing final rules for procedures for expedited trial-type hearings and the consideration of alternative conditions and fishway prescriptions required by the Energy Policy Act of 2005. Info here.

Rule establishes the opening date for all Atlantic shark fisheries, including the fisheries in the Gulf of Mexico and Caribbean. Info here.

Rule removes vessel upgrading restrictions for vessels issued swordfish directed and Atlantic tunas Longline category limited access permits. Details here.

Rule NMFS issues this final rule to implement Amendment 113 to the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area. Info here.

Rule NMFS is reducing the 2016 fishing year Georges Bank haddock catch cap for the herring midwater trawl fishery. Details here.

Rule revising fishery monitoring and equipment requirements for all commercial groundfish fisheries. Info here.

Rule NMFS proposes to implement management measures described in Amendment 43 to the Fishery Management Plan for the Reef Fish Resources of the Gulf of Mexico. Details here.

Rule NMFS proposes status quo commercial quotas for the Atlantic surfclam and ocean quahog fisheries for 2017 and projected status quo quotas for 2018. Info here.

Rule NMFS has decided to extend the public comment period by an additional 30 calendar days on a proposed rule to establish protected species hard caps for the California/Oregon large-mesh drift gillnet fishery. Details here.