Judicial: PACA, GMO, NEPA

State v. Grocery Manufacturers Ass’n, 425 P.3d 927 (Wash. Ct. App. 2018); State brought action against nationwide trade association that represented food, beverage, and consumer product companies for alleged failure to register as a political committee with Public Disclosure Commission (PDC), failure to report financial contributions, and concealment of true source of contributions, pursuant to Fair Campaign Practices Act (FCPA), in connection with state ballot initiative, which did not pass, that would have required all packaged food products to identify ingredients containing geneticallymodified organisms (GMOs). The Thurston Superior Court, No. 13-2-02156-8, Anne Hirsch, J., granted state’s motion for summary judgment regarding requirement that trade association register as political committee and, following bench trial on penalties, imposed $6 million civil penalty for trade association’s multiple FCPA violations, which penalty was then trebled as punitive damages. Trade association appealed.

MARTIN SCHNEIDER, et al., Plaintiffs, v. CHIPOTLE MEXICAN GRILL, INC., Defendant. Additional Party Names: Nadia Parikka, Sarah Deigert, Theresa Gamage, No. 16-CV-02200-HSG, 2018 WL 4700353, N.D. Cal. Sept. 29, 2018)

Plaintiffs brought this putative class action against Chipotle Mexican Grill, Inc. (“Chipotle”), alleging that Chipotle’s claims that its products were “non-GMO” and “GMO-free” violated California, Maryland, and New York consumer protection laws. Plaintiffs currently identify representations on three in-store signs displayed during the class period, which state, respectively, (1) “[w]hen it comes to our food, genetically modified ingredients don’t make the cut,” ; (2) “all of our food is non-GMO,”  and; (3) “only non-GMO ingredients,”  Specifically, Plaintiffs allege that Defendant’s advertising and labeling was misleading and deceptive because consumers reasonably understood these representations to mean “that Chipotle does not serve food sourced from animals that have been raised on GMOs or genetically engineered feed.” See Dkt. No. 1 (“Compl.”) However, Plaintiffs allege that Defendant serves “protein products such as beef, chicken, and pork from poultry and livestock” raised on GMO feed, “dairy products such as cheese and sour cream” produced by milk from such animals, and beverages made with corn-syrup from GMO corn.

State ex rel. Washington State Pub. Disclosure Comm’n v. Food Democracy Action!, No. 49932-1-II, 2018 WL 4704433 (Wash. Ct. App. Oct. 2, 2018)
Food Democracy Action! (Food Democracy) appeals from a judgment imposing civil penalties against it for violations of state campaign finance disclosure laws.1 Food Democracy solicited and received contributions to support Initiative 522 (I-522). In turn, it contributed the money in its own name to the Yes on I-522 political committee. After the general election and vote on I-522, and after the Public Disclosure Commission (PDC) began an investigation, Food Democracy registered as a political committee and filed reports disclosing the contributions it received from over seven thousand contributors.
Food Democracy argues that the trial court erred in concluding it concealed the source of its campaign contributions. It contends that only intentional conduct amounts to concealment. Food Democracy also argues, for the first time on appeal, that the trial court erred by imposing statutorily authorized civil penalties for the state campaign finance disclosure law violations.
IN RE: WAYNE BAILEY, INC. DEBTOR, No. 18-00284-5-SWH, 2018 WL 4715358 (Bankr. E.D.N.C. Sept. 28, 2018); The matter before the court is the Objection to PACA Claim of Scott Farms, Inc. filed by the Debtor on June 4, 2018, (the “Objection”). A response to the Objection was filed by Scott Farms, Inc. (“Scott Farms”) on June 25, 2018,. A hearing was held in Raleigh, North Carolina on July 24, 2018, at which the court took the matter under advisement and invited the parties to file supplemental memoranda. After a review of the case record, the parties’ arguments, and post-hearing memoranda, the court ruled that the objection will be allowed.
FISHERIES SURVIVAL FUND, et al., Plaintiffs, v. SALLY JEWELL, et al., Defendants. Additional Party Names: Borough of Barnegat Light, NJ, City of New Bedford, MA, Fishermen’s Dock Co-Operative, Garden State Seafood Ass’n, Long Island Commercial Fishing Ass’n, Narragansett Chamber of Commerce, Rhode Island Fishermen’s All., Sea Fresh USA, Seafreeze Shoreside, Statoil Wind US, LLC, Town Dock, Town of Narragansett, RI, No. 16-CV-2409 (TSC), 2018 WL 4705795 (D.D.C. Sept. 30, 2018); This case concerns a Bureau of Ocean Energy Management (“BOEM”) plan to lease a nautical area off the coast of New York to Defendant-Intervenor Statoil Wind US, LLC (“Statoil”), for development of a wind energy facility. Plaintiffs, including the FisheriesSurvival Fund, claim that in issuing the lease, BOEM violated the National Environmental Policy Act (“NEPA”), the Outer Continental Shelf Lands Act (“OCSLA”), and the Administrative Procedure Act (“APA”). Plaintiffs filed a motion for preliminary injunction, which this court denied. Memorandum Opinion. Now before the court are Plaintiffs’ Motion for Summary Judgment, Defendant-Intervenor’s Cross-Motion for judgment, and Defendants’ Motion for Summary Judgment. For the reasons stated herein, Plaintiffs’ motion was denied, Defendants’ motion was granted, and Defendant-Intervenor’s motion was denied as moot.
Minerva Dairy, Inc. v. Harsdorf, No. 18-1520, 2018 WL 4763351 (7th Cir. Oct. 3, 2018); Pending before the court are exceptions to the final accounting for an estate. The exceptant claims that the accounting fails to account for the full value of the decedent’s farming business, which the exceptant asserts the decedent owned as a sole proprietorship, and for funds in the decedent’s personal bank account, which she alleges was a convenience account, among other issues. The executrix denies all of the claims, responding that the farming business was a closely held corporation in which the decedent was a minority interest holder, that the decedent’s interest was properly valued, and the bank account was a joint account and not a convenience account. The purported majority owner of the farming business took similar positions as those taken by the estate related to the business. For the reasons set forth below, The court concluded that the farming business was a corporate entity which, given the circumstances, was not improperly valued by the estate. The court also conclude the bank account was a convenience account and recommend that the estate’s first and final accounting be adjusted accordingly. This is a final report.
Minerva Dairy, Inc. v. Harsdorf, No. 18-1520, 2018 WL 4763351 (7th Cir. Oct. 3, 2018); Minerva Dairy is an Ohio-based, family-owned dairy company that produces, among other products, Amish-style butters in small, slow-churned batches using fresh milk supplied by pasture-raised cows. Minerva challenges Wisconsin’s butter-grading requirement as a violation of the Due Process Clause, the Equal Protection Clause, and the dormant Commerce Clause. The district court granted summary judgment to the state defendants, holding that the Wisconsin statute is rationally related to the state’s legitimate interest in consumer protection and does not discriminate against out-of-state businesses. The circuit court agrees with the district court’s analysis and, therefore, affirmed the judgment.

NATURAL RESOURCES DEFENSE COUNCIL, et al., Plaintiffs, v. RYAN ZINKE, Sec’y, U.S. Dep’t of the Interior, et al., Defendants. SAN LUIS & DELTA MENDOTA WATER AUTHORITY, et al., Defendant-Intervenors. ANDERSON-COTTONWOOD IRRIGATION DISTRICT, et al., Joined Parties. Additional Party Names: Sacramento River Settlement Contracts, U.S. Bureau of Reclamation, U.S. Fish & Wildlife Serv., No. 105CV01207LJOEPG, 2018 WL 4705942 (E.D. Cal. Sept. 28, 2018); 

On March 12, 2018, Plaintiffs, a coalition of environmental interest groups led by the Natural Resources Defense Council (“NRDC”), filed the currently operative Sixth Supplemental Complaint (“6SC”), which includes numerous claims brought under the Administrative Procedure Act (“APA”), and the Endangered Species Act (“ESA”), against the U.S. Bureau of Reclamation (“Bureau” or “Reclamation”), the U.S. Fish and Wildlife Service (“FWS” or “Service”), and various Joined Defendants and Defendant Intervenors. The remaining claims in the case1 allege that the renewal, implementation, and approval of renewal and implementation of certain long-term water contracts violate the ESA and/or APA.
Before the Court for decision are cross-motions for summary judgment on the second, fourth, and sixth claims for relief in the 6SC. The fourth claim for relief alleges a 2015 Letter of Concurrence (“2015 LOC”) authored by FWS was the culmination of an inadequate ESA consultation regarding the effects of certain long-term contract renewals on delta smelt. 6SC. The second claim for relief alleges that Reclamation acted unlawfully by accepting the 2015 LOC and implementing the long-term water supply contracts in reliance on the 2015 LOC. The sixth claim for relief alleges that some holders of a certain type of long-term water contract, known as Sacramento River Settlement Contracts (“SRS Contracts” or “SRS Contractors” when referring to the holders), and Reclamation violated the ESA’s prohibition against taking listed species because they caused substantial temperature-dependent mortality of Sacramento River winter-run Chinook salmon (“winter-run”) and Central Valley spring-run Chinook salmon (“spring-run”) eggs and fry in the Upper Sacramento River in 2014 and 2015.
The motions concerning the second and fourth claims are limited to the administrative record (“AR”),2 while review of the sixth claim is not.3 Because the sixth claim is set for a bench trial beginning March 5, 2019, see ECF No. 1194, in the interest of expedience, the Court addresses the motions that pertain to the sixth claim in this Memorandum Decision and Order, leaving the remaining matters for separate resolution.
BLACK SOIL DAIRY, LLC, Plaintiff, v. LAND O’LAKES, INC., Defendant., No. 17-CV-4065-LRR, 2018 WL 4762702 (N.D. Iowa Oct. 2, 2018); 
The matter before the court is Plaintiff Black Soil Dairy, LLC’s (“Black Soil”) “Motion to Strike Affidavit of Dr. Julian Olson DVM and Supporting Documents Relied Upon by Defendant [Land O’Lakes] in Support of its Motion for Summary Judgment … and Motion to Exclude Expert” (“Motion”) .On August 15, 2017, Black Soil filed a “Petition and Jury Demand” (“Petition”) in the Iowa District Court for Sioux County, Iowa. In the Petition, Black Soil asserts three claims against Defendant Land O’Lakes, Inc. (“Land O’Lakes”): (1) Count I alleges that Land O’Lakes was negligent in a number of respects related to a milk replacement delivered to Black Soil; (2) Count II alleges that Land O’Lakes breached an implied warranty of fitness regarding the milk replacement; and (3) Count III alleges that Land O’Lakes breached its voluntarily assumed duties. See Petition at 3-5. On September 19, 2017, Land O’Lakes filed an Answer (docket no. 5). On October 13, 2017, Land O’Lakes filed a Notice of Removal (docket no. 1), bringing the case before the court.
Perez v. Kroger Co., No. 217CV02448ODWAGR, 2018 WL 4735701 (C.D. Cal. Sept. 28, 2018); Plaintiff Sonia Perez (“Perez”), on behalf of herself and the putative class members she seeks to represent, alleges that Defendant The Kroger Co.’s (“Kroger”) use of the statement “No Sugar Added” on Kroger Apple Juice1 violates the Food and Drug Administration (“FDA”) regulations.  In particular, the FDA regulation sets forth five provisions in which the terms “no sugar added,” “without added sugar,” or “no added sugar” may be used. One of the five provisions requires that “[t]he food that it resembles and for which it substitutes normally contains added sugar.” Plaintiff alleges that Kroger Apple Juice violates this provision because Kroger Apple Juice “does not resemble and substitute for a food that normally contains added sugars.” Plaintiff further claims that the “no sugar added” label is “not appropriate to describe foods that do not normally contain added sugars,” like Kroger Apple Juice, which contains 100% apple juice.
Regulatory:
Notice and request for comments; Office of Partnerships and Public Engagement, USDA/1890 National Scholars Programs., This notice announces the Office of Partnerships and Public Engagement intention to request an extension for a currently approved information collection for the United States Department of Agriculture (USDA)/1890 National Scholars Program. Info HERE
Final Rule; Commodity Credit Corporation and Farm Service Agency, USDA; This rule implements changes to the Emergency Assistance for Livestock, Honeybees, and Farm-Raised Fish Program (ELAP); Livestock Indemnity Program (LIP); and Tree Assistance Program (TAP) as required by the Bipartisan Budget Act of 2018 (BBA), including changes to the payment limitations, the funding limitation for ELAP, and losses for injured livestock sold at a reduced price under LIP. An application period for ELAP, LIP, TAP and the Livestock Forage Disaster Program (LFP) is included in this rule to allow additional time for producers to apply. Additionally, FSA implements changes to TAP for 2017 losses to pecan trees as specified in the Consolidated Appropriations Act, 2018. This rule also includes several clarifying amendments and corrections to the regulations for the programs. Info HERE
Proposed Rule: Agricultural Marketing Service, USDA; This proposed rule would implement a recommendation from the Citrus Administrative Committee (Committee) to decrease the assessment rate established for the 2018-19 and subsequent fiscal periods. The assessment rate would remain in effect indefinitely unless modified, suspended, or terminated. Info HERE

Notice: Food and Nutrition Service (FNS), USDA.;

In accordance with the Paperwork Reduction Act of 1995, this notice invites the general public and other public agencies to comment on this proposed information collection. This collection is a revision of a currently approved collection.The purpose of the Uniform Grant Application Package for Discretionary Grant Programs is to provide a standardized format for the development of all Requests for Applications for discretionary grant programs released by the Food and Nutrition Service (FNS) Agency and to allow for a more expeditious OMB clearance process. Info HERE

Final Rule: Agricultural Marketing Service, USDA; This final rule implements a recommendation from the Idaho-Eastern Oregon Potato Committee (Committee) to revise the varietal classifications that determine the size requirements for Irish potatoes grown in certain designated counties of Idaho, and Malheur County, Oregon. As provided under section 8e of the Agricultural Marketing Agreement Act of 1937, this modification also applies to all imported long type Irish potatoes. This final rule also makes administrative revisions to the subpart headings to bring the language into conformance with the Office of Federal Register requirements. Info HERE

Request for comments from the public; reopening of comment period; Agricultural Marketing Service, USDA. The United States Department of Agriculture’s (USDA) Agricultural Marketing Service (AMS) is reopening the comment period for its request for comments from the public regarding the United States (U.S.) Standards for Soybeans under the United States Grain Standards Act (USGSA). Info HERE

Request for comments from the public; reopening of comment period.; Agricultural Marketing Service, USDA.; The United States Department of Agriculture’s (USDA) Agricultural Marketing Service (AMS) is reopening the comment period for its request for comments from the public regarding the United States (U.S.) Standards for Corn under the United States Grain Standards Act (USGSA). Info HERE

Request for comments from the public; reopening of comment period; Agricultural Marketing Service, USDA; The United States Department of Agriculture’s (USDA) Agricultural Marketing Service (AMS) is reopening the comment period for its request for comments from the public regarding the United States (U.S.) Standards for Canola under the United States Grain Standards Act (USGSA). Info HERE

Final Rule Correction: Animal and Plant Health Inspection Service, USDA; “We are correcting a portion of the summary of the economic analysis presented in the SUPPLEMENTARY INFORMATION portion of our September 14, 2018, final rule amending our regulations governing the importation and interstate movement of fruits and vegetables. The summary reported an incorrect cost savings figure in its discussion of Executive Order 13771. This document corrects that error.” Info HERE

Notice and Request for Comment; Animal and Plant Health Inspection Service, USDA.; n accordance with legislation implementing the results of the Uruguay Round of negotiations under the General Agreement on Tariffs and Trade, we are informing the public of the international standard-setting activities of the World Organization for Animal Health, the Secretariat of the International Plant Protection Convention, and the North American Plant Protection Organization, and we are soliciting public comment on the standards to be considered. Info HERE

Proposed Rule: Food and Nutrition Service (FNS), USDA; USDA proposes a deregulatory action to simplify the requirement for for-profit child care centers, for-profit adult care centers, and sponsoring organizations of for-profit centers in the Child and Adult Care Food Program to verify that they are eligible to submit claims for reimbursement each month. This rule would exempt for-profit centers from monthly verification if they annually demonstrate that at least 50 percent of children served are eligible for free and reduced-price meals or benefits under title XX of the Social Security Act, or at least 50 percent of adult participants are eligible for benefits under title XIX or title XX of the Social Security Act. Monthly verification represents a small but duplicative paperwork burden. Allowing a less frequent verification cycle would reduce the administrative burden for those centers that consistently serve a high percentage of eligible children or adult participants from low-income households. Info HERE

Notice and Request for Comment; National Agricultural Statistics Service, USDA; In accordance with the Paperwork Reduction Act of 1995, this notice announces the intention of the National Agricultural Statistics Service (NASS) to request revision and extension of a currently approved information collection, the List Sampling Frame Surveys. Revision to burden hours will be needed due to changes in the size of the target population, sampling design, and questionnaire length. Annually, NASS obtains lists of farm and ranch operators from different crop and livestock organizations. Before adding these names to our list of active operators we will contact the individuals to determine if they qualify as a farm or ranch and then collect basic information from them on the size and type of operation they have. These data will be used to eliminate any duplication we may have with names already on our list.

In addition to the names of potential operators we receive from different crop and livestock organizations, NASS has been investigating the use of web-scraping as a source of identifying new farm operators to add to our List Frame. This new approach will be conducted under a two stage process. A short screening form will be used first to identify potential agricultural producers who will then receive a more detailed questionnaire. This approach is designed to minimize respondent burden on small or non-farming entities. Info HERE

Notice of Public Meeting:  National Agricultural Statistics Service, USDA; In accordance with the Federal Advisory Committee Act, the National Agricultural Statistics Service (NASS) announces a meeting of the Advisory Committee on Agriculture Statistics. Info HERE