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


ANNOUNCEMENT: Join us Wednesday, October 18th, at 12 noon (ET) for an Agricultural & Food Law Consortium webinar: “Understanding the H-2A Temporary Agricultural Guest Worker Program.” Details available here.


JUDICIAL: Includes food safety, food labeling, ag leases, and National Organic Program issues.

In VEATH FISH FARM, LLC, Plaintiff, v. PURINA ANIMAL NUTRITION, LLC, and TEXAS FARM PRODUCTS CO., Defendants, No. 17–cv–0303–MJR–SCW, 2017 WL 4472784 (S.D. Ill. October 6, 2017), plaintiff claimed defendants sold commercial fish feed that caused many of his largemouth bass to die and sued for breach of the Illinois Consumer Fraud Act (ICFA) and warranty claims. Plaintiff argued defendants violated ICFA “by falsely representing that their AquaMax fish food products were nutritionally optimal for largemouth bass.” Defendants countered plaintiffs cannot bring such allegations against a manufacturer. Court reasoned that plaintiff could plead alternative theories of relief, “so [defendant’s] argument that Plaintiff cannot simultaneously recover under ICFA and an express warranty claim is premature.” Motion to dismiss denied.

In SARAH BIRDSONG, on behalf of herself and all others similarly situated, Plaintiff, v. NURTURE, INC. d/b/a HAPPY FAMILY, Defendant, 16-CV-4435 (RRM) (PK), 2017 WL 4480152 (E.D.N.Y. September 28, 2017), plaintiff brought class action claiming defendant’s packaging for its baby food products “contains the representation ‘Organic’ when in fact the Products contain ingredients that the United States Department of Agriculture (USDA) prohibits in organic products.” Defendant moved to dismiss, arguing plaintiff’s claims are preempted by the Organic Foods Production Act (OFPA). Court agreed with defendant that plaintiff’s claims are preempted and dismissed the case.

BEAVER COUNTY, UTAH, a Utah political subdivision, Plaintiff, v. UNITED STATES DEPARTMENT OF THE INTERIOR; RYAN ZINKE, Secretary of the Interior; UNITED STATES BUREAU OF LAND MANAGEMENT; MICHAEL NEDD, in his capacity as Acting Director of the Bureau of Land Management; EDWIN L. ROBERSON, in his capacity as Utah State Director of the Bureau of Land Management; and DOES 1-10, Defendants, No. 2:17-CV-00088-CW, 2017 WL 4480750 (D. Utah October 6, 2017) involved a county suing the Bureau of Land Management (BLM) over an excess of wild horses on county land. County alleged that “excess wild horses and related depletion of forage and water resources infring[e] upon the rights of Beaver County citizens who hold grazing permits and leases to conduct livestock operations.” Court reasoned that “[u]nder the doctrine of parens patrie, however, counties are precluded from bringing claims against the federal government on behalf of the county’s citizens.” The court further observed that “claiming an injury based on private rights or interests of the grazing permittees or “public health and safety” on Highway 21 is the precise type of parens patrie claim the County cannot assert against the federal government.” Case dismissed.

In Leslie REILLY, an individual, on behalf of herself and all others similarly situated, Plaintiff-Appellant, v. CHIPOTLE MEXICAN GRILL, INC., a Delaware corporation, Defendant-Appellee, No. 16-17461, 2017 WL 4410952 (11th Cir. October 4, 2017), plaintiff appealed ruling for Chipotle, after claiming the restaurant chain Chipotle violated the Florida Deceptive and Unfair Trade Practices Act by falsely claiming it “eliminated genetically modified ingredients from its menu.” Appellate court observed that, “[t]o prevail under the Florida Deceptive Practices Act, Reilly had to prove the existence of a deceptive act or unfair practice; causation; and actual damages.” Court found that plaintiff “suffered no actual loss,” and that “she paid the identical amount for her burrito before and after Chipotle began its advertising.” Affirmed for defendant.


LEGISLATIVE:

S. 692: Water Infrastructure Flexibility Act. This bill’s text for status Referred to House Committee now available.

S. 190: Power And Security Systems (PASS) Act. Bill directs the Department of Energy to decide by 2021 whether standards for class A external power supply (EPS) should be amended. Any necessary amendments would apply to products manufactured after July 1, 2023.

MEETING: House Committee on Natural Resources: Subcommittee on Energy and Mineral Resources. Legislative Hearing on the Discussion Draft of the “Opportunities for the Nation and States to Harness Onshore Resources Act” or “ONSHORE Act.” October 13, 2017 at 9 a.m. (Location: LHOB 1334).


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

AGRICULTURE DEPARTMENT: Notice USDA has submitted the following information collection requirement(s) to OMB for review. Title: National Veterinary Service Laboratories; Bovine Spongiform Encephalopathy Surveillance Program. Info here.

ENVIRONMENTAL PROTECTION AGENCY:

Rule EPA is withdrawing the August 24, 2017, direct final rule that approves an Alabama state implementation plan (SIP) revision related to the Prevention of Significant Deterioration (PSD) permitting regulations. Info here.

Rule EPA is taking the following four actions regarding the Alabama State Implementation Plan (SIP): Approving the portion of Alabama’s October 26, 2015, SIP submittal seeking to change reliance from the Clean Air Interstate Rule (CAIR) to the Cross-State Air Pollution Rule (CSAPR) for certain regional haze requirements; converting EPA’s limited approval/limited disapproval of Alabama’s July 15, 2008, regional haze SIP to a full approval; approving the visibility prong of Alabama’s infrastructure SIP submittals for the 2012 Fine Particulate Matter (PM2.5), 2010 Nitrogen Dioxide (NO2), and 2010 Sulfur Dioxide (SO2) National Ambient Air Quality Standards (NAAQS); and converting EPA’s disapproval of the visibility portion of Alabama’s infrastructure SIP submittal for the 2008 Ozone NAAQS to an approval. Details here.

Rule EPA is approving a portion of a revision to the Alabama State Implementation plan (SIP) submitted by the State of Alabama on May 8, 2013, for the purpose of amending the transportation conformity rules to be consistent with Federal requirements. Info here.

Rule EPA is withdrawing the August 17, 2017, direct final rule that approves an Alabama state implementation plan (SIP) revision related to transportation conformity requirements. Info here.

Rule EPA is withdrawing the direct final rule for “Air Plan Approval; Iowa; Amendment to the Administrative Consent Order, Grain Processing Corporation, Muscatine, Iowa,” published in the Federal Register on August 25, 2017. Info here.

Rule EPA is taking final action to approve revisions to the Kentucky State Implementation Plan (SIP), submitted by the Commonwealth of Kentucky, through the Kentucky Division for Air Quality (KDAQ), on March 21, 2011, October 29, 2013, October 28, 2016, and March 24, 2017. Info here.

Rule EPA is finalizing approval of a State Implementation Plan (SIP) revision submitted by the Commonwealth of Kentucky through the Kentucky Energy and Environment Cabinet, Division of Air Quality (KDAQ) on September 17, 2014. Info here.

Rule EPA is approving a South Carolina State Implementation Plan (SIP) revision, submitted by the State of South Carolina through the South Carolina Department of Health and Environmental Control (SC DHEC) on December 28, 2012. South Carolina’s December 28, 2012, SIP revision (“Progress Report”) addresses requirements of the Clean Air Act (CAA or “Act”) and EPA’s rules that require states to submit periodic reports describing progress towards reasonable progress goals (RPGs) established for regional haze and a determination of the adequacy of the State’s existing SIP addressing regional haze. Details here.

FISH AND WILDLIFE SERVICE:

Notice FWS received an application from Protek Investments, LLC for an incidental take permit under the Endangered Species Act. Info here.

Notice FWS received an application from John Scardino of Highlands at Double R, LLC for an incidental take permit under the Endangered Species Act. Info here.

Notice FWS seeks comment on the following applications to conduct certain activities with endangered and threatened species. Details here.

INTERNATIONAL TRADE ADMINISTRATION:

Notice ITA published the preliminary results of the administrative review and intent to rescind the new shipper review of the antidumping duty order on freshwater crawfish tail meat from the People’s Republic of China. Info here.

Notice of Issuance of an amended Export Trade Certificate of Review to California Pistachio Export Council, Application No. 03-3A008. Info here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Rule NMFS is adjusting the 2017 D seasonal apportionments of the total allowable catch (TAC) for pollock in the Gulf of Alaska (GOA) by re-apportioning unharvested pollock TAC in Statistical Areas 610, 620, and 630 of the GOA. Info here.

Rule NMFS is prohibiting retention of “other rockfish” in the Aleutian Islands subarea of the Bering Sea and Aleutian Islands management area. Info here.

Rule NMFS is prohibiting retention of sculpins in the Bering Sea and Aleutian Islands management area. Details here.

Rule NMFS publishes its proposed List of Fisheries (LOF) for 2018, as required by the Marine Mammal Protection Act. Info here.

RURAL UTILITIES SERVICE: Notice RUS announces the availability of up to $10 million in fiscal year 2017 (FY17) and application deadlines for competitive grants to assist communities with extremely high energy costs. Info here.