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


ANNOUNCEMENT: Join us 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, renewable energy, PACA, and environmental issues.

In JAREER ABU-ALI, Plaintiff-Appellant, v. PINNACLE FOODS GROUP, LLC, and STEPHEN GUNTHER, Defendants-Respondents, NO. A-1895-15T2, 2017 WL 4248411 (N.J. Super. Ct. App. Div September 26, 2017), plaintiff sued asserting claims under the Conscientious Employee Protection Act (CEPA), claiming defendants violated CEPA by subjecting him to an adverse employment action in retaliation for his alleged whistle-blowing activities. Plaintiff, as Director of Product Development for defendant, recommended that the company not use expired pickles in their products in violation of the Nutritional Labeling and Education Act (NLEA). Lower court found for defendant and on appeal, plaintiff argued he did, in fact, “present sufficient evidence to raise a genuine issue of material fact as to whether he had suffered an adverse employment action.” Appellate court concluded, however, that plaintiff “failed to show that he was demoted or otherwise subjected to an adverse employment action.” Affirmed for defendant.

In STATE OF NORTH CAROLINA EX REL. UTILITIES COMMISSION; PUBLIC STAFF-NORTH CAROLINA UTILITIES COMMISSION; DUKE ENERGY CAROLINAS, LLC; DUKE ENERGY PROGRESS, LLC; VIRGINIA ELECTRIC AND POWER COMPANY, d/b/a Dominion North Carolina Power, Defendants, v. NORTH CAROLINA WASTE AWARENESS AND REDUCTION NETWORK, Plaintiff, No. COA16-811, 2017 WL 4126385 (N.C. Ct. App. September 19, 2017), plaintiff appealed defendant’s (Commission) order concluding that plaintiff was operating as a “public utility” when it “entered into an agreement with a church to install and maintain a solar panel system on the church’s property and to charge the church based on the amount of electricity that the system generated.” Defendant also found plaintiff’s actions “constituted a provision of ‘electric service’ to the church, infringing on the utility monopoly of Duke Energy . . . in violation of Chapter 62 of the North Carolina General Statutes.” Appellate court agreed with Commission and determined that plaintiff was acting as a “public utility by operating its system of solar panels for the church on the church’s property.” Affirmed.

RESER’S FINE FOODS, INC., Plaintiff, v. H.C. SCHMIEDING PRODUCE CO., LLC, and C & E Farms, Inc., Defendants. H.C. Schmieding Produce Co., LLC, Third-party Plaintiff, v. Reser’s Fine Foods, Inc., Sunterra Produce Traders, Inc., and C.H. Robinson Worldwide, Inc., Third-party Defendants, No. 16-4150-SAC, 2017 WL 4099480 (D. Kan. September 15, 2017) involved Perishable Agricultural Commodities Act (PACA) issues wherein plaintiff sued seeking an offset of damages from defendant’s alleged breach of contract “in supplying a load of celery that [paintiff] had used in its finished food products and was notified later that the celery was the subject of a recall and then a hold.” Defendat counterclaimed, alleging plaintiff failed to pay trust funds in violation of PACA. Court concluded plaintiff provided no “genuine issue of material fact on its setoff defense as to avoid summary judgment for its liability under PACA and breach of contract in failing to pay defendant for the loads of celery delivered.” Defendant’s motion for summary judgment granted in part.

OTAY LAND COMPANY, LLC et al., Plaintiffs and Appellants, v. U.E. LIMITED, L.P., et al., Defendants and Appellants, D068347, D069029, 2017 WL 4250194 (Cal. Ct. App. September 26, 2017) involved a sale of property where a shooting range had operated, requiring plaintiff to “remedy” the property which contained “lead and polynuclear aromatic hydrocarbons (PAH’s) attributable to the target debris.” After cleaning up the property, plaintiff sought to recover remediation costs from the former owners under the Carpenter-Presley-Tanner Hazardous Substances Account Act (HSAA). Lower court found for defendants and on appeal, plaintiffs argued trial court “erred in its interpretation and application of the HSAA.” Appellate court considered “whether the HSAA requires prior government action to seek indemnity.” Defendants argued that “the only types of indemnity are express and equitable indemnity, equitable indemnity is at issue here, and Plaintiffs do not qualify.” Court disagreed and determined that “[t]he HSAA neither characterizes the indemnity provision as equitable, nor imposes requirements that would apply in that context.” Reversed and remanded.


REGULATORY: Includes AMS, EPA, DOT, FDA, NOAA, and RUS rules and notices.

AGRICULTURAL MARKETING SERVICE: Rule proposes amendments to Marketing Order No. 982 (order), which regulates the handling of hazelnuts grown in Oregon and Washington, and provides growers with the opportunity to vote in a referendum to determine if they favor the changes. Info here.

AGRICULTURE DEPARTMENT: Notice USDA has submitted information collection requirement(s) to OMB for review. Title: Study of Non-Response to the School Meals Application Verification Process. Details here.

ENVIRONMENTAL PROTECTION AGENCY:

Rule EPA is taking final action to approve a State Implementation Plan (SIP) revision submitted by the State of California on November 10, 1993. Info here.

Rule EPA is taking direct final action to approve a state implementation plan (SIP) revision submitted by the Commonwealth of Virginia. Details here.

Rule finalizes amendments to the National Emission Standards for Hazardous Air Pollutants (NESHAP) for the Phosphoric Acid Manufacturing and Phosphate Fertilizer Production source categories. Info here.

Rule EPA is taking direct final action to correct an editing oversight that led to a potential conflict in a prior rulemaking as to whether or not containers holding two pounds or less of non-exempt substitute refrigerants for use in motor vehicle air conditioning that are not equipped with a self-sealing valve can be sold to persons that are not certified technicians, provided those small cans were manufactured or imported prior to January 1, 2018. Details here.

Rule EPA is proposing to approve the State Implementation Plan (SIP) revision that the State of New Hampshire submitted to EPA on January 31, 2017 for attaining the 1-hour sulfur dioxide (SO2) primary national ambient air quality standard (NAAQS) for the Central New Hampshire Nonattainment Area. Info here.

Rule EPA is proposing this action to correct an editing oversight that lead to a potential conflict in a prior rulemaking as to whether or not containers holding two pounds or less of non-exempt substitute refrigerants for use in motor vehicle air conditioning that are not equipped with a self-sealing valve can be sold to persons that are not certified technicians, provided those small cans were manufactured or imported prior to January 1, 2018. Details here.

FEDERAL HIGHWAY ADMINISTRATION: Rule provides interested parties with the opportunity to comment on proposed regulations governing the U.S. Department of Transportation’s (DOT) Program for Eliminating Duplication of Environmental Reviews established by Section 1309 of the Fixing America’s Surface Transportation Act. Info here.

FOOD AND DRUG ADMINISTRATION: Notice FDA is announcing that a proposed collection of information has been submitted to the Office of Management and Budget (OMB) for review. Title: Food Canning Establishment Registration, Process Filing, and Recordkeeping for Acidified Foods and Thermally Processed Low-Acid Foods in Hermetically Sealed Containers 21 CFR 108.25 and 108.35, and Parts 113 and 114. Info here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION: Rule NMFS reduces the commercial trip limit for vermilion snapper in or from the exclusive economic zone (EEZ) of the South Atlantic to 500 lb (227 kg), gutted weight, 555 lb (252 kg), round weight. Info here.

RURAL UTILITIES SERVICE: Notice is accepting applications for the Technical Assistance and Training Grant Program. Details here.