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 SNAP, zoning, condemnation, trademark, and  Lanham Act issues. 

WALTER BARRY, by his next friend Elaine Barry, on behalf of himself & all others similarly situated; DONITHA COPELAND; KENNETH L. ANDERSON; WESTSIDE MOTHERS, Plaintiffs-Appellees, v. NICK LYON, in his official capacity as Acting Dir., Michigan Dep’t of Human Servs., Defendant-Appellant., No. 15-1390, 2016 WL 4473233 (6th Cir. Aug. 25, 2016) concerned a class action challenging Michigan’s fugitive-felon law and policy, under which “any person with an outstanding felony warrant is disqualified automatically from receiving food assistance under the federal Supplemental Nutrition Assistance Program (SNAP).” Plaintiffs argued Michigan’s “implementation procedure is invalid and that notices regarding termination of benefits violate the SNAP Act and the Due Process Clause of the Fourteenth Amendment.” District court granted summary judgment to the plaintiffs, finding that Michigan’s fugitive-felon policy violated the Act and the state’s notification procedure denied the recipients due process. Defendant argued “due process does not require notices to include specific, individualized reasons for benefit denial, reduction, or termination.” However, the appellate court reasoned that “while defendant is technically correct that the notice itself does not need to include specific, individualized reasons for the agency action, those details must nonetheless be provided in some form.” The court concluded that, “The notice here. . . fails to inform recipients what they must do to lift the disqualification,” and affirmed ruling for plaintiffs.

In Armada Twp. v. Hampson, No. 325135, 2016 WL 4484102 (Mich. Ct. App. Aug. 23, 2016), plaintiff (town) sued claiming defendants grew medical marijuana in greenhouses attached to a single-family residence on a property and constructed the greenhouses without permits, creating a “nuisance per se.” Trial court held town’s ordinance “confining growing of marijuana to accessory structures was preempted by the Michigan Medical Marihuana Act.” Court also held that constructing the greenhouses without permits was nuisance per se, but granted defendants time to file for permits and comply with city codes. On appeal, city asked court to find that its zoning ordinance was not preempted by the MMMA and that trial court erred in not “definitively ruling whether the Right to Farm Act was a valid affirmative defense.” However, defendants had ceased their medical marijuana growing operation and their greenhouses no longer violated town’s ordinances. Appeal dismissed as moot.

Harris Cty. Flood Control Dist. v. Taub, No. 14-15-00077-CV, 2016 WL 4479584 (Tex. App. Aug. 25, 2016) involved a condemnation suit. Plaintiff appealed a jury’s finding valuing subject property at $11,636,238.00 on the date of a taking. Plaintiff charged trial court abused its discretion in admitting “comparable-sales evidence of five other property transactions,” and in rendering judgment on the jury verdict. Appellate court ruled that trial court “abused its discretion in admitting evidence of an option contract and of a sale to a school district having the power to condemn property.” However, court found that comparable-sales evidence supported the verdict, rendering errors harmless. Trial court judgment affirmed.

In S. BERTRAM, INC. Plaintiff-Appellant, v. CITIZENS INSURANCE COMPANY OF AMERICA, Defendant-Appellee., No. 15-2552, 2016 WL 4487998 (6th Cir. Aug. 26, 2016), plaintiff was sued by a non-party (Eden Foods) for trademark infringement. Plaintiff asked defendant to defend the lawsuit under an insurance policy defendant issued to plaintiff, but per the policy, plaintiff had agreed to exclude coverage for trademark infringement. Defendant refused to defend lawsuit. Plaintiff sued to hold defendant liable for refusing to defend the suit, arguing that Eden Foods’ trademark suit included claims for “disparagement and trade dress infringement, which would be covered by the policy.” Trial court ruled that Eden Foods’ suit consisted only of trademark infringement claims and defendant had no duty to defend those claims. Summary judgment for defendant affirmed.

In TRADER JOE’S COMPANY, a California Corp., Plaintiff-Appellant, v. MICHAEL NORMAN HALLATT, an individual, DBA Pirate Joe’s, AKA Transilvania Trading, Defendant-Appellee, No. 14-35035, 2016 WL 4488009 (9th Cir. Aug. 26, 2016), defendant purchased Trader Joe’s-branded goods in Washington State, transported them to Canada, and “resold them in a store designed to mimic a Trader Joe’s store.” Trader Joe’s sued under the Lanham Act and Washington law. District court dismissed Lanham Act claims for lack of subject-matter jurisdiction after concluding defendant’s infringing activity occurred in Canada, and that Trader Joe’s did not show “how the activity impacted American commerce.” District court similarly dismissed Trader Joe’s’ state law claims. Appellate court found “the extraterritorial reach of the Lanham Act raised a question relating to merits of a trademark claim, not to federal courts’ subject-matter jurisdiction.” Court concluded that Trader Joe’s alleged “a nexus between defendant’s conduct and American commerce sufficient to warrant extraterritorial application of the Lanham Act,” and reversed trial court in part. Court affirmed trial court’s dismissal of state law claims because Trader Joe’s “did not allege trademark dilution in Washington or harm to a Washington resident or business.”

REGULATORY: Includes FDA, FNS, FS and NOAA rules and notices.

FOOD AND DRUG ADMINISTRATION:

Rule FDA is amending the animal drug regulations to reflect application-related actions for new animal drug applications and abbreviated new animal drug applications during May and June 2016. Details here.

Rule FDA is withdrawing approval of eight new animal drug applications at the sponsor’s request because these products are no longer manufactured or marketed. Info here.

Notice FDA is amending the food labeling regulations by redesignating a provision, updating any references to that provision to reflect the redesignation, and revising the section heading. Details here.

FOOD AND NUTRITION SERVICE: Notice FNS seeks comments on revision of a currently approved collection for awarding local agencies for excellence in WIC breastfeeding services and support. Info here.

FOREST SERVICE: Notice USDA has submitted information collection requirement(s) to OMB for review and clearance. Title: Annual Wildfire Summary Report. Info here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Rule NMFS is adjusting the Atlantic bluefin tuna General category daily retention limit from the default limit of one large medium or giant BFT to five large medium or giant BFT for the September – December subquota time periods of the 2016 fishing year. Details here.

Rule would establish quotas, opening dates, and retention limits for the 2017 fishing season for the Atlantic commercial shark fisheries. Info here.