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 FCA, FIFRA, FOIA, contract, procedural, PACA, and FDA issues.

In re: Syngenta AG Mir 162 Corn Litig., No. 14-MD-2591-JWL, 2016 WL 5851795 (D. Kan. Oct. 6, 2016) concerned multi-district litigation alleging Syngenta violated the False Claims Act (FCA). Syngenta moved to dismiss for failure to state a claim. The lawsuits involve Syngenta’s commercialization of genetically-modified corn seed without approval by China. Plaintiffs alleged Syngenta’s commercialization of its products “caused the genetically-modified corn to be commingled throughout the corn supply in the United States and that China rejected imports of all corn from the United States.” Plaintiffs claimed this caused farmers to obtain crop insurance and submit crop insurance claims, but critically, plaintiffs failed to allege “any affirmative acts by Syngenta relating to the actual submission of crop insurance claims.” Furthermore, plaintiffs failed to allege “any source of a duty to farmers who may submit crop insurance claims.” Case dismissed.

UNITED STATES OF AMERICA, Plaintiff, v. TERMINIX INTERNATIONAL COMPANY LIMITED PARTNERSHIP & TERMINIX INTERNATIONAL USVI, LLC, Defendants., No. CR 2016-10, 2016 WL 5844468 (D.V.I. Sept. 30, 2016) involved claims charging defendants with violating the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) by unlawfully using pesticides containing methyl bromide in buildings in the Virgin Islands. Government moved to dismiss the four-count information. Court noted that FRCP 48(a) provides that “before a trial commences, the government may, with leave of court, dismiss an indictment, information, or complaint.” Motion to dismiss granted.

Animal Legal Def. Fund v. U.S. Food & Drug Admin., No. 13-17131, 2016 WL 5827463 (9th Cir. Sept. 30, 2016) considered the applicable standard of review in Freedom of Information Act (FOIA) cases decided on summary judgment. Court noted that on summary judgment, “if there are genuine issues of material fact in a FOIA case, the district court should proceed to a bench trial or adversary hearing.” Here, parties submitted “competing declarations concerning the competitive effect of releasing egg-production information.” Appellate court concluded there was a “genuine issue of material fact in this case.” Case reversed and remanded to district court.

MECCA & SONS TRUCKING CORP. Plaintiff, v. WHITE ARROW, LLC, TRADER JOE’S COMPANY, INC., ABC CORPORATIONS 1-5, & JOHN DOES 6-10. Defendants., No. CV 14-7915 (SRC), 2016 WL 5859018 (D.N.J. Sept. 16, 2016) involved transportation of a shipment of cheese. Trader Joe’s purchased cheese from Singleton Dairy requiring shipment “at or below 40 degrees Fahrenheit” and under the Master Vendor Agreement, “could reject the shipment if temperatures exceeded that threshold.” The job was subcontracted to White Arrow and eventually, the shipped cheese was rejected by Trader Joe’s. White Arrow claimed the shipment was “wrongfully rejected” naming Trader Joe’s as a defendant. Court found White Arrow had “no contractual relationship with Trader Joe’s and was not a third-party beneficiary of the contract with Singleton.” The court also noted the Master Vendor Agreement between Trader Joe’s and Singleton “controls the circumstances pursuant to which Trader Joe’s may reject the cheese.” Court granted motion of summary judgment of Trader Joe’s.

In In re: Roundup Prod. Liab. Litig., No. MDL 2741, 2016 WL 5845994 (U.S. Jud. Pan. Mult. Lit. Oct. 3, 2016), plaintiffs moved to centralize pretrial proceedings involving litigation consisting of twenty-one actions pending in fourteen districts alleging that Roundup causes non-Hodgkin’s lymphoma and Monsanto failed to warn consumers. Monsanto opposed centralization of the cases, claiming “individualized facts concerning each plaintiff’s case . . . will predominate over common factual issues.” Court found that “all the actions entail an overarching query—whether glyphosate causes non-Hodgkin’s lymphoma in persons exposed to it while using Roundup,” and selected Northern District of California as “the appropriate transferee district for this litigation.”

In Gargiulo v. Foodland Distributors Inc., No. CV 16-2379, 2016 WL 5791401 (D.N.J. Sept. 29, 2016), plaintiff claimed defendant failed to pay for fruit in violation of the Perishable Agricultural Commodities Act (PACA). Plaintiff stated it preserved its interest in the produce by “providing PACA-compliant invoices with the goods.” Court observed that “PACA gives produce sellers a secured interest in proceeds and goods deriving from the sold produce by creating a statutory floating, non-segregated trust in their agreements with purchasers.” Court found plaintiff “directly interacted with [defendant] in the produce sales at issue,” and “invoices were mailed to [defendant] at his business address.” Court concluded plaintiff stated valid PACA claim.

In GRAHAM FORSHER, on behalf of himself & all others similarly situated, Plaintiff, v. THE J.M. SMUCKER CO., Defendant., No. CV20157180RJDMDG, 2016 WL 5678567 (E.D.N.Y. Sept. 30, 2016), plaintiff alleged defendant’s use of the word “natural” on its peanut butter violated California and Ohio consumer laws because it contains sugar manufactured from GMOs. Defendant argued case should be stayed to “permit the FDA to complete its regulatory review of the use of the word ‘natural.’” Court was persuaded by defendant’s argument in favor of “staying the claims under the doctrine of primary jurisdiction.” The court also reasoned that “many courts have found that the technical and policy issues raised by plaintiff’s claims are better suited to being addressed by the FDA rather than the courts.” Defendant’s application for stay granted.

S. 764: A bill to reauthorize and amend the National Sea Grant College Program Act. This bill was the vehicle for passage of the Safe and Accurate Food Labeling Act.

REGULATORY: Includes ARS, APHIS, EPA, FWS, FDA, FNA, FS, NRCS, and NOAA rules and notices.

AGRICULTURAL RESEARCH SERVICE:

Rule amends ARS regulations and adopts OMB guidance entitled, “Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards,” as the uniform guidance within the REE mission area on the use, award, and administration of non-assistance cooperative agreements awarded pursuant to National Agricultural Research, Extension, and Teaching Policy Act of 1977. Info here.

Notice USDA has submitted information collection requirement(s) to OMB for review. Title: Evaluation of User Satisfaction with NAL Internet Sites. Details here.

ANIMAL AND PLANT HEALTH INSPECTION SERVICE: Notice regulations in 9 CFR part 93 and 94 allow the export of poultry products from Argentina and the Mexican States of Campeche, Quintana Roo, and Yucatan under certain conditions. APHIS will collect information through the use of a health certification statement that must be completed by Mexican veterinary authorities prior to export. Details here.

ENVIRONMENTAL PROTECTION AGENCY: Rule establishing tolerances for residues of S-2200 in or on multiple commodities. Valent U.S.A., Corporation requested these tolerances under the Federal Food, Drug, and Cosmetic Act. Details here.

FISH AND WILDLIFE SERVICE:

Rule FWS removes the white-haired goldenrod plant from the Federal List of Endangered and Threatened Plants. Info here.

Rule proposes threatened species status under the Endangered Species Act for Everglades bully, Florida pineland crabgrass and pineland sandmat, and endangered species status for Florida prairie-clover. Details here.

FOOD AND DRUG ADMINISTRATION: Rule FDA filed a petition, submitted by Wm. Wrigley Jr. Company, proposing that the color additive regulations be amended to provide for the safe use of calcium carbonate to color hard and soft candy, mints, and chewing gum. Info here.

FOOD AND NUTRITION SERVICE: Notice inviting the public and other public agencies to comment on this proposed information collection. Title: Assessment of the Barriers that Constrain the Adequacy of Supplemental Nutrition Assistance Program (SNAP) Allotments. Info here.

FOREST SERVICE: Notice the Ozark-Ouachita Resource Advisory Committee will meet in Fort Smith, Arkansas. Details here.

Notice USDA has submitted information collection requirement(s) to OMB for review. Title: Cooperative Wildland Fire Management and Stafford Act Response Agreements. Info here.

Notice USDA Forest Service, Washington Office, transmitted the final map and perimeter boundary description of the Skagit Wild and Scenic River to Congress. Details here.

NATURAL RESOURCES CONSERVATION SERVICE: Notice NRCS will issue a series of revised conservation practice standards in NHCP. These standards include Brush Management, Herbaceous Weed Treatment, Lined Waterway or Outlet, Prescribed Grazing, and Restoration of Rare or Declining Natural Communities. Info here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Rule NMFS is temporarily reopening the U.S. pelagic longline fishery for bigeye tuna for vessels over 24 meters in overall length in the eastern Pacific Ocean because part of the 500 metric ton catch limit remains available after NMFS closed the fishery on July 25, 2016. Info here.

Rule the South Atlantic Fishery Management Council has submitted Amendment 37 to the Fishery Management Plan for the Snapper-Grouper Fishery of the South Atlantic Region for review, approval, and implementation by NMFS. Details here.

Rule NMFS announces a 90-day finding on a petition to list the Pacific bluefin tuna as a threatened or endangered species under the Endangered Species Act and to designate critical habitat concurrently with the listing. Info here.

Rule NMFS proposes regulations under the Tuna Conventions Act to implement provisions of two Resolutions adopted by the Inter-American Tropical Tuna Commission in 2016. Info here.