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


JUDICIAL: Includes FDA, SNAP, cooperatives, CAA, and urb & ag issues.

In ELIZABETH ZEMOLA, et al., Plaintiffs, v. CARRINGTON TEA COMPANY, LLC, Defendant, No.: 17cv760-MMA (KSC), 2017 WL 4922974 (S.D. Cal. October 30, 2017), plaintiff filed class action suit regarding defendant’s allegedly “misleading marketing and labeling of [its] coconut oil products as ‘healthy.’” Defendant moved to stay, arguing the Food and Drug Administration (FDA) announced that “it is reconsidering the criteria and terms for an updated definition of ‘healthy.’” Court noted that other cases considering the FDA’s definition of “healthy” are being “actively litigated in federal court,” and denied defendant’s motion. Defendant’s motion to dismiss denied.

UNITED STATES OF AMERICA, PLAINTIFF v. ELIAS ESTEPHANE, DEFENDANT, NO. 3:16-CR-148-TBR, 2017 WL 4927676 (W.D. Ken. October 31, 2017) involved alleged misappropriation of Supplemental Nutrition Assistance Program (SNAP) benefits wherein defendant ran a meat market and allegedly gave cash back to customers on SNAP transactions for $.50 on the dollar. Defendant sought to exclude evidence of “statewide averages of SNAP transactions, and . . .  computer generated red flags.” Court allowed for introduction of the evidence, finding that the “probative value of the statewide averages and the ALERT scans is not substantially outweighed by any prejudicial effect to [defendant].”

In Barry K. WINTERS, et al. v. OCEAN SPRAY CRANBERRIES, INC., NO. 12–12016–RWZ, 2017 WL 4927661 (D. Mass. October 31, 2017), plaintiffs alleged defendant, an agricultural cooperative, “unlawfully manipulated the price of cranberry juice concentrate and discriminated against ‘B Pool’ members of the cooperative.” Plaintiffs also claimed “Ocean Spray engaged in unfair and deceptive acts and in a pattern of anti-competitive conduct in violation of the Sherman Act.” Regarding antitrust violations, plaintiffs argued defendant sought to “prevent its grower members from leaving Ocean Spray’s cooperative in search of a fairer price for their crop . . . and to force independent growers either to go out of business.” Court found that plaintiffs could not establish antitrust standing, and concluded any harm they suffered was indirect because “Ocean Spray first influences independent handlers, who in turn, lower the prices they pay independent growers.” Court ruled plaintiffs were not the “proper party to bring a private antitrust action,” as they did not have antitrust standing.

IN RE: VOLKSWAGEN “CLEAN DIESEL” MARKETING, SALES PRACTICES, AND PRODUCTS LIABILITY LITIGATION, Nos. 2864, 4175, MDL No. 2672 CRB (JSC), 2017 WL 4890594 (N.D. Cal. October 30, 2017) involved claims regarding Volkswagen’s “clean diesel” emissions fraud. Volkswagen franchise dealerships sued, arguing that defendant conspired (in violation of the federal RICO statute) with Volkswagen to “develop and implement the defeat device that Volkswagen used in its ‘clean diesel’ vehicles to evade U.S. emission standards.” Defendant moved to dismiss based on justiciability, statutory standing, and plaintiff’s RICO conspiracy claim. Court determined that plaintiffs’ claims were “well pled and that none of [defendant’s] arguments warrant dismissal at the pleading stage.” Motion to dismiss denied.

In John R. FERLIN and Mary E. Ferlin, trustees of the Ferlin Family Living Trust; J & M’S, LLC, a Washington limited liability company; Brooks Manufacturing Co., a Washington corporation, and Roosevelt Land Company, LLC, a Washington limited liability company, Appellants, v. CHUCKANUT COMMUNITY FOREST PARK DISTRICT, a metropolitan park district; The City of Bellingham, a Washington State municipal corporation, Respondents, and Whatcom County, a Washington State municipal corporation; Steven Oliver in his capacity as the Whatcom County Treasurer, Defendants, No. 75561-7-I, 2017 WL 4875818 (Wash. Ct. App. October 30, 2017), plaintiffs owned land subject to a tax imposed by defendant. Defendant retained an interest in the property through a conservation easement granted by City, and “its taxing authority exists independent of the city.” Plaintiffs argued the tax is illegal because “the revenue is passed on to the city of Bellingham to pay off a loan needed by the city to buy the park property.” Trial court disagreed and granted summary judgment for defendant. Appellate court concluded that “the district’s arrangement with the city does not exceed the district’s statutory authority and it does not violate the constitutional requirement for uniformity in taxation.” Affirmed.


LEGISLATIVE:

S. 2049: A bill to amend the Agricultural Credit Act of 1978 to increase support for conservation practices under the emergency conservation program. Bill referred to the Senate Committee on Agriculture, Nutrition, and Forestry.

S. 2053: A bill to amend the Agricultural Act of 2014 to increase the maximum amount of assistance authorized under supplemental agricultural disaster assistance programs. Bill referred to the Senate Committee on Agriculture, Nutrition, and Forestry.

S. 2050: A bill to amend the Agricultural Act of 2014 to provide to producers partial payments under the livestock indemnity program for livestock sold for salvage. Bill referred to the Senate Committee on Agriculture, Nutrition, and Forestry.

H.R. 4211: To amend the Agricultural Act of 2014 to provide to producers partial payments under the livestock indemnity program for livestock sold for salvage. Bill was referred to the House Committee on Agriculture.

H.R. 4214: To repeal the Western Area Power Administration borrowing authority. This bill was referred to the House Committee on Natural Resources.

H.R. 4209: To rebuild the Nation’s infrastructure, provide a consumer rebate to the American people, assist coal country, reduce harmful pollution. This bill was referred to the House Committee on Agriculture, House Committee on Education and the Workforce, and 5 other committees.

H.R. 4208: To reduce the risk posed by wildfires to communities and the most at-risk federally owned forests. This bill was referred to the House Committee on Agriculture and House Committee on Natural Resources.

H.R. 4210: To increase the maximum amount of assistance authorized under supplemental agricultural disaster assistance programs for livestock indemnity payments, livestock forage disaster assistance, and emergency assistance for livestock. Bill referred to the House Committee on Agriculture.

H.R. 4216: To amend the Agricultural Act of 2014 to make available additional funds for the Commonwealth of the Northern Mariana Islands pilot project. Bill referred to the House Committee on Agriculture.

H.R. 4212: To amend the Agricultural Credit Act of 1978 to increase support for conservation practices under the emergency conservation program. Bill referred to the House Committee on Agriculture.

H.R. 4201: To improve the ability of beginning farmers in the United States to acquire farms and participate in agricultural production. Bill referred to the House Committee on Agriculture and House Committee on Oversight and Government Reform.


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

AGRICULTURE DEPARTMENT:

Rule USDA is adopting a final rule to establish rules of practice and procedure governing formal rulemaking proceedings instituted by the Secretary. Info here.

Notice USDA has submitted information collection requirement(s) to OMB for review. Title: Report and Recordkeeping Requirements. Details here.
ANIMAL AND PLANT HEALTH INSPECTION SERVICE:

Notice APHIS will request a revision to and extension of approval of an information collection associated with the regulations for the importation of fresh bananas from the Philippines into Hawaii and U.S. Territories. Info here.

Notice APHIS will request a revision to and extension of approval of an information collection associated with the regulations for the importation of fresh litchi and longan fruit from Vietnam into the continental United States. Details here.

ENVIRONMENTAL PROTECTION AGENCY: Rule EPA is proposing to approve a revision to the Northern Sierra Air Quality Management District (NSAQMD) portion of the California State Implementation Plan. Details here.

FOOD AND DRUG ADMINISTRATION: Notice seeks comments on the information collection provisions of existing FDA regulations concerning substances prohibited for use in animal food or feed. Details here.

FOREST SERVICE: Notice the National Urban and Community Forestry Advisory Council will meet in Tulsa, Oklahoma. Additional information concerning the Council can be found by visiting the Council’s Web site at: http://www.fs.fed.us/​ucf/​nucfac.shtml. Info here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Rule NMFS is exchanging unused flathead sole and rock sole Community Development Quota (CDQ) for yellowfin sole CDQ acceptable biological catch (ABC) reserves in the Bering Sea and Aleutian Islands management area. Info here.

Rule NMFS announces seven inseason actions in the ocean salmon fisheries. Info here.

Rule NMFS will designate critical habitat for the Main Hawaiian Islands insular false killer whale (Pseudorca crassidens) distinct population segment by designating waters from the 45-meter (m) depth contour to the 3200-m depth contour around the main Hawaiian Islands from Niihau east to Hawaii, pursuant to section 4 of the ESA. Details here.

Notice the Department of Commerce will submit to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information. Title: For-Hire Telephone Survey. Details here.

Notice the Department of Commerce will submit to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information. Title: Annual Northern Seal Subsistence Harvest Reporting and St. George Harvest Management Plan. Details here.

Notice NMFS announces its request for applications for the 2018 shark research fishery from commercial shark fishermen with directed or incidental shark limited access permits. Details here.