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 labeling, nuisance, procedural, contract, and FDA issues. 

In CAROLYN SITT, individually & on behalf of all others similarly situated, Plaintiff, v. NATURE’S BOUNTY, INC. & NBTY, INC., Defendants., No. 15-CV-4199 (MKB), 2016 WL 5372794 (E.D.N.Y. Sept. 26, 2016), plaintiff filed class action against defendants claiming deceptive, misleading and false practices and advertising in violation of the New York General Business Law. Plaintiff’s alleged defendant’s menopause product falsely claimed to be “natural” and “non-synthetic,” and contained unsafe levels of lead. Plaintiff also alleged violations under the Magnuson Moss Warranty Act (MMWA). Defendants argued that none of the statement on their product’s labeling would deceive a “reasonable consumer.” Court ruled for plaintiff on the issue “because the Court cannot conclude that the Product could not mislead a reasonable consumer.”

In San Diego Unified Port Dist. v. Monsanto Co., No. 15-CV-578-WQH-JLB, 2016 WL 5464551 (S.D. Cal. Sept. 28, 2016), plaintiff claimed Monsanto “concealed the dangers of PCBs, promoted the use of PCBs, and improperly instructed customers how to dispose of PCBs.” Plaintiff also alleged Monsanto is liable for public nuisance. Monsanto argued plaintiff’s public nuisance claim should be dismissed because plaintiff did not prove a connection between defendant’s actions and the disposal of products causing the alleged nuisance. Court cited prior case law, noting, “Those who create or assist in creating a system that causes hazardous wastes to be disposed of improperly, or who instruct users to dispose of wastes improperly, can be liable under the law of nuisance.” Court found that plaintiffs “alleged sufficient facts to support a claim for public nuisance” and denied defendant’s motion to dismiss.

In Barrera v. Monsanto Co., No. CV N15C-10-118 VLM, 2016 WL 4938876 (Del. Super. Sept. 13, 2016), plaintiffs claimed their cancer was caused by exposure to Monsanto’s “Roundup” pesticide. Monsanto moved to dismiss complaint on the basis of forum non conveniens and failure to state a claim. Monsanto’s motion to dismiss denied.

Heartland Co-op Co. v. Murphy, No. 15-0446, 2016 WL 5408302 (Iowa Ct. App. Sept. 28, 2016) concerned forty-one “hedge-to-arrive” (HTA) contracts. Hedge-to-arrive contracts obligate a seller to deliver a specified quantity of grain to a specified location by a particular date and the buyer agrees to pay a specific price upon delivery. These contracts are “not regulated by the Commodities Exchange Act.” Plaintiff, an Iowa cooperative, buys and sells grain and offers HTA contracts. Defendant entered into a number of HTA contracts with plaintiff and plaintiff later sued for breach of contract and fraudulent misrepresentation. Trial court ruled for plaintiff and appellate court affirmed.

CHAD BRAZIL, individually & on behalf of all others similarly situated, Plaintiff-Appellant, v. DOLE PACKAGED FOODS, LLC, Defendant-Appellee., No. 14-17480, 2016 WL 5539863 (9th Cir. Sept. 30, 2016) involved allegations defendants deceptively described their fruit products as “All Natural Fruit,” despite containing synthetic citric and ascorbic acid. Defendant originally granted summary judgment under California’s Unfair Competition Law. Court observed that the FDA “informally defined ‘natural’ to mean ‘that nothing artificial or synthetic … has been included in, or has been added to, a food that would not normally be expected to be in the food.’” Plaintiff cited FDA warning letters finding similar descriptions by food sellers of being deceptive “because the products in question included synthetic citric acid.” Court concluded “evidence could allow a trier of fact to conclude that Dole’s description of its products as ‘All Natural Fruit’ is misleading to a reasonable consumer.” Summary judgment for defendant reversed.


LEGISLATIVE:

S. Res. 602: A resolution supporting the inclusion and meaningful engagement of Latinos in environmental protection and conservation efforts. Resolution referred to the Senate Committee on Energy and Natural Resources which will consider it before sending it to the Senate. Sponsor: Sen. Michael Bennet [D-CO].


REGULATORY: Includes EPA, FWS, FTZ, and NOAA rules and notices.

ENVIRONMENTAL PROTECTION AGENCY:

Rule establishing an exemption from the requirement of a tolerance for residues of Bacillus mycoides solate J in or on all agricultural commodities when used in accordance with label directions and good agricultural practices. Details here.

Rule EPA wants to revise provisions applicable to greenhouse gases in the agency’s Prevention of Significant Deterioration and title V permitting regulations. Info here.

FISH AND WILDLIFE SERVICE: Notice FWS will ask the Office of Management and Budget to approve the information collection Habitat Conservation Plan and Safe Harbor Agreement. Info here.

FOREIGN-TRADE ZONES BOARD: Notice on May 26, 2016, Deere & Company submitted a notification of proposed production activity to the Foreign-Trade Zones Board for its facility within Subzone 133F, in Dubuque, Iowa. Info here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION: Notice requesting extension of the approved information collection regarding the Marine Mammal Protection Act of 1972, prohibiting the “take” of marine mammals unless authorized or exempted by law. Info here.

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