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


ANNOUNCEMENT: Join us for the next Agricultural & Food Law Consortium webinar, Wednesday, September 19th, at 12 noon (ET): Understanding USDA’s New Dairy Revenue Insurance Program. Details here.


JUDICIAL: Includes landowner liability, pesticides, biotechnology, and bankruptcy issues.

In LISA E. GARVINE Plaintiff, v. STATE OF MARYLAND, et al, Defendants, No. JMC–17–01013, 2018 WL 4206935 (D. Md. September 4, 2018), plaintiff was injured during a horse riding event on farmland owned by the State of Maryland. State of Maryland claimed immunity under the state’s Recreational Use Statute (MRUS) and sought motion for summary judgment. A third party (Oxford) hosted the event and issue was “whether the event registration fee levied on Oxford or the participation fee levied on [plaintiff] constituted a ‘charge’ under the statute that would defeat Maryland’s immunity.” Court considered the validity of a waiver signed by plaintiff and a “participation fee” paid by plaintiff. Court concluded “it would defeat the purpose of the statute if a landowner could charge a third party to host an event and then claim immunity as to all of the participants of that event because they did not pay a fee directly to the landowner.” Motion for summary judgment denied.

In LEAGUE OF UNITED LATIN AMERICAN CITIZENS; Pesticide Action Network North America; Natural Resources Defense Council; California Rural Legal Assistance Foundation; Farmworkers Association of Florida; Farmworker Justice GreenLatinos; Labor Council for Latin American Advancement; Learning Disabilities Association of America; National Hispanic Medical Association; Pineros y Campesinos Unidos Del Noroeste; United Farm Workers, Petitioners, State of New York; State of Maryland; State of Vermont; State of Washington; Commonwealth of Massachusetts; District of Columbia; State of California; State of Hawaii, Intervenors, v. Andrew WHEELER, Acting Administrator of the U.S. Environmental Protection Agency; and U.S. Environmental Protection Agency, Respondents, No. 17-71636, 899 F.3d 814 (9th Cir. August 9, 2018), plaintiffs sought review of an Environmental Protection Agency (EPA) order “denying [a] petition to revoke tolerances for use of the pesticide chlorpyrifos on food products.” EPA countered that, “despite petitioners having properly-filed administrative objections to the 2017 Order more than a year ago . . . the [agency’s] utter failure to respond to the objections deprives [the court] of jurisdiction.” Appellate court reasoned that the agency’s  “intent to withhold action for years to come is ‘unreasonable’ as applied here, especially as petitioners’ objections concern no factual issues that would require additional time to investigate.” Appellate court found that the Federal Food, Drug, and Cosmetic Act’s (FFDCA) judicial review provision was “not jurisdictional,” and that the EPA “was obligated to revoke tolerances for use of chlorpyrifos on food products.” Plaintiffs’ petition granted.

In STATE OF WASHINGTON, Respondent, v. GROCERY MANUFACTURERS ASSOCIATION, Appellant. GROCERY MANUFACTURERS ASSOCIATION, Appellant, v. STATE OF WASHINGTON, Respondent, No. 49768-9-II, Consol. w/ 50188-1-II, 2018 WL 4214259 (Wash. Ct. App. September 5, 2018), Grocery Manufacturer’s Association (GMA) appealed an $18 million civil penalty for violations of the Fair Campaign Practices Act (FCPA), stemming from a 2013 Washington ballot initiative. The initiative did not pass, but “would have required all packaged food products to identify ingredients containing genetically modified organisms (GMOs).” GMA created an account and spent millions opposing the initiative, but did not register as a political committee and did not disclose companies contributing to the account. Trial court ruled GMA became a “political committee” when it created the account and had violated “reporting and disclosure requirements.” Appellate court affirmed summary judgment for State of Washington, but reversed treble damages award.

UNITED STATES of America, Plaintiff, v. JOHN HUDSON FARMS, INC., et al., Defendants, NO: 7:18-CV-7-FL, 2018 WL 4119950 (E.D.N.C. August 29, 2018) involved crop insurance fraud wherein defendant allegedly used “shell farming operations” to “fabricate eligibility and obtain additional funds from Farm Service Agency (FSA) programs, as well as FCIC crop insurance.” Per facts in the complaint and the criminal plea agreement, the Court established defendant’s guilt under the False Claims Act. Court noted that the False Claims Act “provides for treble damages, plus $5,500 to $11,000 per false claim as a required statutory penalty.” Court entered default judgment against defendants for over $10 million.


LEGISLATIVE: 

H.R. 6699: To offset retaliatory duties against the United States by establishing a fund to promote the exports of United States agricultural commodities and products. This bill’s text is now available.


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

AGRICULTURE DEPARTMENT: Notice USDA has submitted the following information collection requirement(s) to OMB for review. Title: Meeting the Information Requirements of the Animal Welfare Act Workshop Registration Form. Details here.

ENVIRONMENTAL PROTECTION AGENCY:

Rule EPA is approving State Implementation Plan (SIP) revisions submitted by the State of New Hampshire. Info here.

Rule EPA is approving a revision to the Commonwealth of Virginia’s state implementation plan (SIP). Details here.

Rule EPA is approving certain changes to the Wisconsin State Implementation Plan (SIP). Info here.

FISH AND WILDLIFE SERVICE:

Notice FWS jointly developed with the Washington State Department of Natural Resources (WDNR) a revised draft environmental impact statement (RDEIS) addressing an amendment to the 1997 WDNR State Lands Habitat Conservation Plan (HCP) to cover the implementation of a Long-Term Conservation Strategy (LTCS) for the marbled murrelet. Info here.

FOOD AND DRUG ADMINISTRATION: Notice FDA is announcing the availability of a draft guidance for industry entitled “Policy Regarding Quantitative Labeling of Dietary Supplements Containing Live Microbials.” Info here.

FOREST SERVICE: Notice FS has prepared a Revised Land Management Plan (Forest Plan) for the Colville National Forest. Details here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Rule NMFS proposes revising Federal regulations that restrict the use and configuration of bottom and midwater trawl gear for vessels fishing under the Pacific Coast Groundfish Fishery’s Trawl Rationalization Program. Info here.