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 PACA, pesticide, insurance, and intellectual property issues.
In Tropical Fruit Trading, Inc. v. Agrofarms, LLC, No. 16-CV-21735, 2016 WL 4376747 (S.D. Fla. Aug. 17, 2016), plaintiff, an alleged unpaid supplier of perishable agricultural commodities, sought a preliminary injunction under the Perishable Agricultural Commodities Act (PACA) to prevent defendant from using PACA trust funds to satisfy other debts. The court observed that under PACA, “a plaintiff’s failure to submit any evidence of irreparable harm other than a defendant’s nonpayment can be sufficient grounds on its own to deny a preliminary injunction.” Court ruled plaintiff “did not meet its burden to establish that irreparable injury will be suffered in the absence of an injunction,” and plaintiff’s motion was denied.
In Lindsay v. Nichino Am., Inc., No. 1:16CV153, 2016 WL 4382700 (M.D.N.C. Aug. 16, 2016), plaintiffs operated a joint farming venture and purchased defendant’s herbicide to kill weeds prior to planting cotton. Plaintiffs allege they applied the herbicide per the instruction booklet, but it failed to prevent weeds and reduced their crop yield. Plaintiffs sued, alleging causes of action for “products liability, breach of warranty, and negligence, and claiming damages for the cost of the herbicide, the purchase of replacement herbicides, manual labor costs, and lost crop yields.” Defendants moved to dismiss and countered that disclaimers contained in the herbicide’s instructions negated plaintiff’s claims. Court considered whether the disclaimers in the instructions were “conspicuous for purposes of the UCC.” Court determined there are factual issues regarding whether plaintiffs “actually saw or read the limitation on liability clause, were warned that there were any limitations before purchase, were on equal commercial footing with Defendants, or had any sort of chance to bargain regarding the limitation clause at all.” Court denied defendants’ motion to dismiss.
In B & D Produce Sales, LLC v. Packman1, Inc., No. SA-16-CV-99-XR, 2016 WL 4435275 (W.D. Tex. Aug. 19, 2016), plaintiff entered into agreement to purchase watermelons from defendant and claimed some of the watermelons were defective. A dispute arose under the Perishable Agricultural Commodities Act (PACA) about amount owed to defendant. The court observed that PACA “delegates authority to the Secretary of Agriculture to hear disputes relating to violations of PACA.” Furthermore, “An aggrieved party may either file a complaint to the Secretary of Agriculture or proceed with a complaint in either state or federal court.” Here, the defendant filed a motion to stay proceedings pending the outcome of an administrative action. Regarding defendant’s motion, the court considered three factors: “(1) any potential prejudice to the non-moving party; (2) the hardship and inequity to the moving party if the action is not stayed; and (3) the judicial resources saved by avoiding duplicative litigation,” and granted the motion to stay proceedings.
Allstate Indem. Co. v. Dixon, No. 6:14-CV-03489-MDH, 2016 WL 4435696 (W.D. Mo. Aug. 18, 2016) involved an insurance policy dispute. Defendants argued insurance agent negligently represented that personal property purchased for the purpose of using their home as a bed and breakfast would be covered by the policy. Defendants contended Allstate owed a duty to inform them of the increased cash value of their property. The court observed that “a duty to inform could exist only if some special relationship or extended agency agreement was formed.” Court found no duty and therefore, no negligence on Allstate’s part.
In Oxbo Int’l Corp. v. H&S Mfg. Co., Inc., No. 15-CV-292-JDP, 2016 WL 4435302 (W.D. Wis. Aug. 19, 2016), plaintiff alleged infringement of four of its patents and defendant counterclaimed, alleging plaintiff “purposefully interfered with its prospective contractual relationship with a third-party purchaser, by asserting infringement claims in bad faith.” Plaintiff moved to dismiss defendant’s counterclaim. Court found that “defendant has not alleged any facts that suggest that Oxbo and Kuhn knew about a prospective contract,” and motion to dismiss defendant’s counterclaim granted.
REGULATORY: Includes OAO, APHIS, EPA, FDA, FNS, FS, and NOAA rules and notices.
ADVOCACY AND OUTREACH OFFICE: Notice OAO will request revision of a currently approved information collection to the Minority Farm Register. Details here.
ANIMAL AND PLANT HEATLH INSPECTION SERVICE: Notice APHIS will request a revision of an information collection regarding regulations for transit of untreated oranges, tangerines, and grapefruit from Mexico through the United States to foreign countries. Info here.
ENVIRONMENTAL PROTECTION AGENCY: Rule establishing an exemption from the requirement of a tolerance for residues of the biochemical pesticide natamycin in or on citrus, pome, stone fruit crop groups, avocado, kiwi, mango and pomegranates when used according to label directions. Info here.
FOOD AND DRUG ADMINISTRATION:
Rule FDA announces availability of a draft guidance for industry entitled “Classification of Activities as Harvesting, Packing, Holding, or Manufacturing/ Processing for Farms and Facilities; Draft Guidance for Industry.” Details here.
Notice FDA announces availability of a draft guidance for industry #235 entitled “Current Good Manufacturing Practice Requirements for Food for Animals.” Info here.
Notice FDA announces availability of a draft guidance for industry #239 entitled “Human Food By-Products For Use As Animal Food.” Info here.
Notice FDA seeks public comment on proposed collection of certain information. Title: “Preparing a Claim of Categorical Exclusion or an Environmental Assessment for Submission to the Center for Food Safety and Applied Nutrition.” Info here.
FOOD AND NUTRITION SERVICE: Notice USDA submitted information collection requirement(s) to OMB for review and clearance. Title: CACFP National Disqualified List—Forms FNS-843 and FNS-844. Info here.
FOREST SERVICE: Notice FS proposes forest resilience management actions on portions of approximately 1,098,000 acres of National Forest System lands managed by the Black Hills National Forest. Info here.
NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:
Rule NMFS implements accountability measures for the golden tilefish recreational sector in the exclusive economic zone of the South Atlantic for the 2016 fishing year. Info here.
Rule NMFS reduces the commercial trip limit for vermilion snapper in or from the exclusive economic zone of the South Atlantic to 500 lb, gutted weight, 555 lb, round weight. Info here.
Rule the Gulf of Mexico Fishery Management Council submitted Amendment 45 to the Fishery Management Plan for the Reef Fish Resources of the Gulf of Mexico for review, approval, and implementation by NMFS. Details here.