A comprehensive summary of today’s judicial, legislative, and regulatory developments in agriculture and food. Email important additions to: camarigg at uark.edu
ANNOUNCEMENT: Join us Monday, October 10, at 12 noon (ET) for a free webinar: “A New Era of Compensatory Mitigation for Impacts on Natural Resources.” Details and sign-in information here.
JUDICIAL: Includes labeling, First Amendment, and contract issues.
In ALIZA ATIK & WINNIE LAU, on behalf of themselves & all others similarly situated, Plaintiffs, v. WELCH FOODS, INC. & THE PROMOTION IN MOTION COMPANIES, INC., Defendants., No. 15CV5405MKBVMS, 2016 WL 5678474 (E.D.N.Y. Sept. 30, 2016), plaintiffs’ claimed defendants’ Welch’s Fruit Snacks product labels misrepresents their fruit content and nutritional qualities. Plaintiffs alleged claims of breach of express and implied warranty, and unjust enrichment, among others. Plaintiffs alleged they no longer purchase defendant’s products, but “would resume their purchases if they knew that the [Products’] marketing and packaging were truthful and not deceptive.” Court considered issue of plaintiffs’ standing and observed, “[P]ast exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief … if unaccompanied by any continuing, present adverse effects.” Here, plaintiffs failed to allege a risk of future injury and appellate court ruled plaintiffs lacked standing.
Zitter v. Petruccelli, No. 15-6488 (NLH/KMW), 2016 WL 5662017 (D.N.J. Sept. 30, 2016) concerned an oyster harvesting operation wherein plaintiff claimed state officials “destroyed thousands of dollars’ worth of his oysters in retaliation for protected speech.” Defendants moved to dismiss. Plaintiff alleged his offer to testify against the Department of Environmental Protection in a separate case “was an act of speech protected by the First Amendment” and that defendants’ actions were intended to suppress his proposed testimony. Plaintiff, in fact, never testified and therefore, had no First Amendment claim. Defendants’ motion to dismiss granted.
GREAT LAKES CHEESE OF NEW YORK, INC., Plaintiff, v. AGRI-MARK, INC., Defendant. AGRI-MARK, INC., Third-Party Plaintiff, v. BERNARD THOMAS & PENNY THOMAS d/b/a M&T TRANSP., Third-Party Defendants., No. 7:14-CV-0232, 2016 WL 5717337 (N.D.N.Y. Sept. 30, 2016) involved a breach of contract. Defendant, a dairy cooperative, contracted to sell raw milk to plaintiff, a cheese manufacturer. At issue was a third party defendant’s (a licensed milk hauler) motion to dismiss based on lack of a valid contract. Court considered a number of facts and observed that “despite the lack of a written contract, the essential terms of the arrangement between the parties as reflected in their prior dealings (i.e., the rate of payment, the time and location of performance, the manner of preforming, and expectations concerning insurance coverage) were clearly understood and agreed upon.” The court concluded that the “fact that the parties’ agreement is less clear with respect to other aspects of their arrangement, including the extent to which [third party] purported to warrant its services, does not mean that there was no oral agreement.” Court ruled “enforceable oral contract existed between the parties” and denied third party defendant’s motion for summary judgment.
REGULATORY: Includes USDA, EPA, FWS, FS, ITA, and NOAA rules and notices.
AGRICULTURE DEPARTMENT: Notice USDA announces a meeting of the National Agricultural Research, Extension, Education, and Economics Advisory Board. Info here.
ENVIRONMENTAL PROTECTION AGENCY: Rule establishing tolerances for residues of dichlormid in or on all commodities for which there is a tolerance for metolachlor and S-metolachlor. Drexel Chemical Company requested these tolerances under the Federal Food, Drug, and Cosmetic Act. Details here.
FISH AND WILDLIFE SERVICE:
Rule FWS announces 12-month findings on petitions to list 10 species as endangered or threatened species under the Endangered Species Act of 1973. Details here.
Rule FWS determines threatened species status under the Endangered Species Act of 1973 for the Suwannee moccasinshell, a freshwater mussel species from the Suwannee River Basin in Florida and Georgia. Info here.
Rule FWS proposes to designate critical habitat for the Black Warrior waterdog under the Endangered Species Act. Info here.
Rule FWS proposes to list the Black Warrior waterdog, an aquatic salamander from the Black Warrior River Basin of Alabama, as an endangered species under the Endangered Species Act. Details here.
Rule FWS proposes to list the Louisiana pinesnake, a reptile species from Louisiana and Texas, as a threatened species under the Endangered Species Act. Info here.
FOREST SERVICE: Notice the Sabine-Angelina Resource Advisory Committee will meet in Hemphill, Texas. Info here.
INTERNATIONAL TRADE ADMINISTRATION: Notice the Renewable Energy and Energy Efficiency Advisory Committee will hold a meeting on Thursday, December 1, 2016 at the U.S. Department of Commerce Herbert C. Hoover Building in Washington, DC. Details here.
NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:
Rule NMFS is reallocating the projected unused amount of the 2016 Atka mackerel incidental catch allowance for the Bering Sea subarea and Eastern Aleutian district to the Amendment 80 cooperative allocations in the Bering Sea and Aleutian Islands management area. Details here.
Rule NMFS is exchanging unused flathead sole Community Development Quota for yellowfin sole CDQ acceptable biological catch reserves in the Bering Sea and Aleutian Islands management area. Info here.
Rule NMFS is reallocating the projected unused amounts of Pacific cod from catcher vessels greater than 60 feet length overall using pot gear, catcher vessels using trawl gear, and vessels using jig gear to catcher vessels less than 60 feet LOA using hook-and-line or pot gear, catcher processors using pot gear, and Amendment 80 C/Ps in the Bering Sea and Aleutian Islands management area. Info here.