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


ANNOUNCEMENT: Join us this Wednesday, October 4th, at 12 noon (ET) for an Agricultural & Food Law Consortium webinar: “Legal Issues with Data (Big and Small).” Details available here.


JUDICIAL: Includes food labeling, landowner liability, biotechnology, and crop insurance issues.

Jonathan Chuang v. Dr. Pepper Snapple Group, Inc., et al, No. CV 17-01875-MWF (MRWx), 2017 WL 4286577 (C.D. Cal. September 20, 2017) concerned defendant’s fruit snack packaging stating the snacks are “Made with Real FRUIT!” and “Made with Real FRUIT & VEGETABLE Juice.” Plaintiff’s suit claimed defendants’ packaging and marketing conveyed the fruit snacks contain “significant amounts of fruit and are nutritious and healthful, and therefore influenced him and other reasonable consumers to purchase the fruit snacks.” Plaintiff sued claiming violation of the California Legal Remedies Act (CLRA) and the California Unfair Competition Law (UCL). Court concluded that the plaintiff did not “adequately allege how the images and statements are false, in particular because an independent review of the product labels reveals that the statements are not false, as the products do contain the fruits and vegetables depicted, are made with fruit and vegetable juice, and contain 100% of the daily value of Vitamin C.” Court granted defendants’ motion to dismiss after concluding plaintiff failed to meet the “reasonable consumer standard necessary to state a UCL claim.”

WildEarth Guardians, et al., Plaintiffs, v. Heather Provencio, et al., Defendants, No. CV-16-08010-PCT-SMM, 2017 WL 4286189 (D. Ariz. September 26, 2017) involved ranger districts used for recreational activities wherein plaintiffs sued the Forest Service (FS) alleging violations of the Travel Management Rule, the National Environmental Policy Act, and the National Historic Preservation Act. Plaintiffs argued FS permitted “extensive” cross-country off-road vehicle use “for the purpose of big game retrieval.” Court disagreed with plaintiffs and found that the FS “placed limitations on the use of motor vehicles in each ranger district, but it has also applied mitigation measures to ‘ensure environmental effects remain at acceptable levels.’” Court granted FS’s motion for summary judgment and upheld the agency’s decision “to allow for the limited use of motor vehicles within one mile of all designated system roads.”

MONSANTO PRODUCTION SUPPLY LLC, Plaintiff, v. RICK ROSENTRETER and DOUGLAS ROSENTRETER, Defendants, No. 3:16-cv-03038, 2017 WL 4284566 (C.D. Ill. September 27, 2017) involved intellectual property issues wherein defendant allegedly “improperly converted Plaintiff’s proprietary seeds.” Plaintiff sought a permanent injunction to prevent defendant from “making, using, selling, transferring, offering to sell or transfer, or handling any soybean or other seed containing Plaintiff’s patented biotechnology.” Court “balanced the hardships” resulting from a permanent injunction and reasoned an injunction “will not force Defendant to abandon farming altogether,” as “over 50 varietals of soybean and corn seeds are available regionally that do not contain [plaintiff’s] biotechnology.” Court ruled defendant is “permanently enjoined from making, using, selling, transferring, offering to sell or transfer, or handling any soybean or other seed (e.g., corn) containing Monsanto’s patented biotechnologies without Monsanto’s express permission.”

In Matt KARO and Michael Karo, appellees, v. NAU COUNTRY INSURANCE COMPANY, appellant, No. S-16-810, 297 Neb. 798 (Neb. September 22, 2017), plaintiffs submitted “prevented planting” claims under their crop insurance policies, claiming they could not plant corn due to wet conditions. Defendant denied plaintiffs’ claims and the parties submitted to binding arbitration. Defendant appealed, with the court observing that “arbitration of disputes arising under federally reinsured crop insurance contracts plainly involves interstate commerce and, as such, is governed exclusively by the Federal Arbitration Act.” State Supreme Court noted that “the threshold question presented is whether the 3-month time limit under the FAA is jurisdictional in nature, such that it cannot be waived and courts must consider the issue sua sponte even when the parties do not raise it.” Court concluded “the 3-month notice requirement of § 12 is jurisdictional in nature and that the [plaintiffs’] failure to comply with the requirement deprived the district court of authority under the FAA to vacate the arbitration award.” Appeal dismissed for lack of jurisdiction.


LEGISLATIVE:

S. Res. 271: A resolution supporting the goals and ideals of National Community Gardening Awareness Week. This resolution’s text is now available.


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

AGRICULTURE DEPARTMEMT:

Notice USDA has submitted the following information collection requirement(s) to OMB for review. Title: Report Forms under a California Federal Milk Marketing Order (from Milk Handlers and Milk Marketing Cooperatives); Referendum Procedures. Info here.

Notice USDA has submitted the following information collection requirement(s) to OMB for review. Title: Livestock Slaughter. Details here.

ANIMAL AND PLANT HEALTH INSPECTION SERVICE: Notice APHIS prepared a draft environmental assessment relative to the control of yellow toadflax. Details here.

ENVIRONMENTAL PROTECTION AGENCY:

Rule EPA is granting a petition submitted by Samsung Austin Semiconductor (Samsung) to exclude from hazardous waste control (or delist) a certain solid waste. Info here.

Rule establishing tolerances for residues of fluoxastrobin in or on multiple commodities which are identified and discussed later in this document. Arysta LifeScience North America, LLC requested these tolerances under the Federal Food, Drug, and Cosmetic Act. Details here.

Rule EPA is proposing to approve a revision to a State Implementation Plan (SIP) for the City of Albuquerque and Bernalillo County, New Mexico (the County) submitted by the Governor on June 24, 2016. Details here.

FISH AND WILDLIFE SERVICE:

Rule FWS propose to remove (delist) Astragalus desereticus from the Federal List of Endangered and Threatened Plants. Info here.

Rule intends to initiate a rulemaking process that will consider changes to public use regulations that are applicable to Kenai National Wildlife Refuge and that were promulgated on May 5, 2016. Info here.

FOOD AND DRUG ADMINISTRATION: Rule FDA is proposing to extend the compliance dates by approximately 1.5 years for the final rules providing updated nutrition information on the label of food, including dietary supplements; defining a single-serving container; requiring dual-column labeling for certain containers; updating, modifying, and establishing certain reference amounts customarily consumed (RACCs); and amending the label serving size for breath mints. Info here.

FOREST SERVICE:

Notice the purpose of the Elk Creek Watershed Project is to address the need to manage forest stands to be more resilient to future disturbances, improve water quality to maintain and restore riparian and aquatic habitat, improve terrestrial habitat for northern spotted owl and Roosevelt elk, reduce fuel accumulations, and improve the vigor and prevalence of Karuk cultural resources. Info here.

Notice the Bridger-Teton National Forest will prepare an Environmental Impact Statement (EIS) to analyze the effects of continued authorization of grazing on 17 sheep allotments on the Kemmerer Ranger District in southwest Wyoming. Info here.

Notice updating the information about the purpose and need, proposed action, expected dates of the Draft Environmental Impact Statement (EIS) and Final EIS, addresses, contact information for the project, and the responsible official for the Lolo Insect & Disease project. Details here.

Notice FS is revising the Environmental Impact Statement for the Public Motorized Travel Management Plan on the Apache-Sitgreaves National Forests. Info here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Rule NMFS is prohibiting directed fishing for pollock in Statistical Area 610 in the Gulf of Alaska. Details here.

Rule NMFS is reallocating the projected unused amount of the 2017 Atka mackerel incidental catch allowance (ICA) for the Bering Sea subarea and Eastern Aleutian district (BS/EAI) to the Amendment 80 cooperative allocations in the Bering Sea and Aleutian Islands management area. Info here.

Notice setting forth the schedule and proposed agenda of a forthcoming meeting of the NSGAB. Info here.

Notice NMFS has issued an incidental harassment authorization (IHA) to the Navy to incidentally harass, by Level B harassment only, marine mammals during construction activities associated with the pier replacements project at Naval Base Point Loma. Info here.

Notice NMFS has received a request from the U.S. Navy (Navy) for authorization to take, by harassment, of marine mammals incidental to conducting pier construction at the Navy Submarine Base New London in Groton, Connecticut, beginning October 2018 and ending March 2022. Details here.