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 labeling, procedural and land use issues.
In Chang v. Fage USA Dairy Indus., Inc., No. 14-CV-3826 (MKB), 2016 WL 5415678 (E.D.N.Y. Sept. 28, 2016), plaintiffs filed class action alleging violations of consumer laws, negligent misrepresentation, and unjust enrichment. Defendant makes and sells Greek yogurt “under the brand Fage®, including Defendant’s ‘Total 0%’ products.” Among a host of allegations, plaintiffs claimed that “because the ‘0%’ is preceded by the word ‘Total,’ a reasonable consumer is likely to believe that the Total 0% Products contain no fat, sugar, sodium, cholesterol, carbohydrates, calories, or any other item required to be disclosed on the Total 0% Products’ packaging.” Court noted that plaintiffs did not allege that they will “purchase the Total 0% Products in the future. These allegations are insufficient to establish a likelihood of future injury because Plaintiffs cannot rely on past injury.” Since plaintiffs failed to allege a risk of future injury, court ruled they “lack standing to seek injunctive relief individually and on behalf of a class.”
STATE OF WISCONSIN, KITTY RHOADES, Plaintiffs, v. TOM VILSACK, KEVIN CONCANNON, AUDREY ROWE, JESSICA SHAHIN, SUSAN HOLZER, Defendants., No. 15-C-0855, 2016 WL 5415749 (E.D. Wis. Sept. 28, 2016) concerned Wisconsin’s suit against USDA seeking a declaration that state’s drug testing requirement for food-stamp recipients is valid. Wisconsin claimed defendants’ final agency actions were “arbitrary and capricious, contrary to constitutional right, and in excess of statutory and jurisdictional authority.” Plaintiffs further alleged a controversy exists between the parties as to whether Wisconsin’s drug testing requirement is preempted by federal law. Defendants claimed case not ripe for review. Court reasoned that when considering the issue of ripeness, “two criteria are evaluated: ‘the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration.’” Court was not convinced defendants’ communications equated to “final agency action.” Court did not recognize hardship to the parties because it is “unclear how Wisconsin will implement the drug-testing program.” Case dismissed as court found “no case or controversy exists.”
In Martin v. Lane Cty., 281 Or. App. 285 (2016), plaintiff wanted to develop his rural land and sought a declaration that the zoning of his property be subject to a “special ordinance” enacted in 1979, rather than a “subsequently enacted comprehensive plan.” County claimed plaintiff’s petition sought review of a “land use decision” falling within the “exclusive jurisdiction of the Land Use Board of Appeals.” County also asserted that petition should be dismissed as “untimely.” Trial court granted dismissal motion. Appellate court affirmed, citing that trial court lacked subject matter jurisdiction and did not address claim that petition was untimely.
REGULATORY: Includes AMS, EPA, FWS, FDA, FS and NOAA rules and notices.
AGRICULTURAL MARKETING SERVICE:
Rule USDA is adopting, as a final rule, without change, an interim rule implementing a recommendation from the Texas Valley Citrus Committee that relaxed the container and pack requirements prescribed under the marketing order for oranges and grapefruit grown in the Lower Rio Grande Valley in Texas. Info here.
Rule announcing a public hearing to receive evidence on proposed amendments to Marketing Order No. 982, regulating the handling of hazelnuts grown in Oregon and Washington. Details here.
ENVIRONMENTAL PROTECTION AGENCY: Rule EPA will extend the implementation deadline for certain facilities subject to the final rule establishing pretreatment standards under the Clean Water Act for discharges of pollutants into publicly owned treatment works from onshore unconventional oil and gas extraction facilities. Details here.
FISH AND WILDLIFE SERVICE:
Rule FWS determines threatened species status under the Endangered Species Act of 1973 (Act), for the eastern massasauga rattlesnake, a rattlesnake species found in 10 States and 1 Canadian Province. Details here.
Rule FWS determine endangered status under the Endangered Species Act of 1973, as amended, for 10 animal species, including the Hawaii DPS of the band-rumped storm-petrel, the orangeblack Hawaiian damselfly, the anchialine pool shrimp, and seven yellow-faced bees, and for 39 plant species from the Hawaiian Islands. Info here.
Rule FWS is amending its regulations to add to the list of injurious fish the following freshwater fish species: Crucian carp, Eurasian minnow, Prussian carp, roach, stone moroko, Nile perch, Amur sleeper, European perch, zander, and wels catfish. Details here.
Rule proposing to list the Kenk’s amphipod, a ground water species from the District of Columbia, Maryland, and Virginia, as an endangered species under the Endangered Species Act. Details here.
Notice FWS received an application for an incidental take permit under the Endangered Species Act of 1973. Info here.
FOOD AND DRUG ADMINISTRATION:
Rule FDA amends the regulations for food additives permitted in feed and drinking water of animals to provide for the safe use of feed grade sodium formate as a feed acidifying agent in complete swine feeds. Info here.
Rule FDA amends the animal drug regulations to reflect application-related actions for new animal drug applications and abbreviated new animal drug applications during July and August 2016. Details here.
Rule FDA announces that BASF Corp., proposed that FDA amend the animal food additive regulations for formic acid and ammonium formate to limit formic acid and formate salts from all added sources. Info here.
FOREST SERVICE: Notice the Payette National Forest will prepare an Environmental Impact Statement for the Huckleberry Landscape Restoration Project. Info here.
NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:
Rule NMFS implements accountability measures for commercial greater amberjack in the exclusive economic zone of the South Atlantic. NMFS projects commercial landings of greater amberjack will reach the commercial annual catch limit by October 4, 2016. Info here.
Rule NMFS is prohibiting retention of big skate in the Central Regulatory Area of the Gulf of Alaska. Info here.
Rule NMFS issues regulations to modify observer coverage requirements for catcher vessels participating in the trawl limited access fisheries in the Bering Sea and Aleutian Islands management area. Info here.
Notice NMFS will prepare a Programmatic Environmental Impact Statement to analyze the potential environmental impacts of a proposed Pacific Islands Region aquaculture management program and alternatives. Details here.
Notice NMFS issues this notice to inform interested parties that the California Pink Shrimp sub-loan in the Pacific Coast Groundfish Capacity Reduction Program has been repaid. Details here.