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 contract, discovery, and easement issues.

Johnson v. Associated Milk Producers, Inc., No. 15-0105, 2016 WL 6248877, (Iowa Oct. 14, 2016) involved a contract dispute between a dairy co-op and a milk hauler. The parties agreed their oral contract could be terminated at will by either side upon “reasonable notice.” The co-op notified the hauler it was eliminating a $100 trip fee it had paid to hauler, in addition to agreed hauling rate. Hauler objected, but continued transporting milk. The co-op continued receiving shipments, but paid hauling rate without trip fees. Hauler sued for the unpaid trip fees. Co-op argued it could modify the terms of the at-will contract upon reasonable notice and the hauler accepted the modification by continued performance. The court observed that, “The co-op made it clear that it would pay according to a new schedule.” The court further noted that, “The hauler faced a choice of accepting the new terms or ceasing performance. The hauler accepted by performance.” Appellate court ruled the co-op could “alter payment terms prospectively upon reasonable notice.” District court’s summary judgment for co-op affirmed.

In re: Coca-cola Prod. Mktg. & Sales Practices Litig. (No. II), No. 14MD02555JSWMEJ, 2016 WL 6245899, at *1 (N.D. Cal. Oct. 26, 2016) involved several class actions in which plaintiffs claim defendants failed to identify phosphoric acid as an artificial flavor and chemical preservative, and issued labels containing misleading statements. At issue were was plaintiff’s motion to compel defendants to produce “all communications” with the FDA concerning “the lawfulness of Coke’s labeling” and “all documents” concerning “whether the disputed aspects of Coke’s labeling complied with federal or state laws and regulations.” With respect to an FDA Compliance Letter at issue, the court found the information discoverable and observed that “nonprivileged documents concerning whether Defendants’ advertising and labeling on their products complied with state and federal laws and regulations could be persuasive evidence supporting commonality and predominance.”

O’Neill v. Slonina, No. 329227, 2016 WL 6269360, (Mich. Ct. App. Oct. 25, 2016) concerned the rights of lakefront and back-lot owners to property lying between a road and a lake.  The court determined that “the crux of the case is whether defendants have the right to seasonally or permanently anchor or store their boats on the property” at issue. Considering the scope of the easement, the court examined the meaning of the language, “to the use.” The court noted that, “‘To the use’ does not confer other shore activities, including permanent or overnight mooring.” The court concluded that, “Because ‘to the use’ does not encompass overnight or seasonal dockage or boat storage,” plaintiff’s partial summary judgment was warranted on that issue.


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

AGRICULTURE DEPARTMENT: Notice USDA has submitted information collection requirement(s) to OMB for review. Title: USDA Minority Farm Register. Details here.

ENVIRONMENTAL PROTECTION AGENCYRule EPA will approve the Commonwealth of Kentucky’s Underground Injection Control Class II Program for primacy. Info here.

FOOD AND DRUG ADMINISTRATION:

Rule FDA is proposing to amend our 2012 document entitled “New Animal Drugs; Updating Tolerances for Residues of New Animal Drugs in Food.” Info here.

Notice FDA announces issuance of four Emergency Use Authorizations for four in vitro diagnostic devices for detection or diagnosis of Zika virus. Details here.

Notice FDA announces availability of a revised draft guidance for industry entitled “Listing of Ingredients in Tobacco Products.” Details here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Rule would establish the 2017-2018 harvest specifications and management measures for groundfish taken in the U.S. exclusive economic zone off the coasts of Washington, Oregon, and California, consistent with the Magnuson-Stevens Fishery Conservation and Management Act. Details here.

Notice Department of Commerce seeks comments on a proposed information collection. Specifically, the Southwest Fisheries Science Center is undertaking an economics data collection effort for the West Coast Swordfish Fishery. Details here.

Notice of a meeting via web conference call of the Marine Protected Areas Federal Advisory Committee. Info here.

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