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 Thursday, January 19 at 12 noon (ET) for a free webinar: Major Market Approval and the Syngenta China Corn Class Action. Details and sign-in information here.
JUDICIAL: Includes GSA, energy, divorce, CWA, FOIA, and FALCPA issues.
In re Syngenta Mass Tort Actions, This Document Relates to: Tweet et al. v. Syngenta AG et al, No. 3:16–cv–00255–DRH, 2017 WL 54345 (S.D. Ill. Jan. 4, 2017) concerned the mass tort action against Syngenta regarding the company’s Viptera brand corn seed containing genetically modified traits. In addition to claims brought against Syngenta, plaintiffs alleged named third party defendants are at fault for “failing to exercise reasonable care to prevent a foreseeable risk of harm that would naturally result from their improper conduct in the marketing, sourcing, selling, and shipping U.S. corn and Distiller’s Dried Grains with Solubles (DDGS).” Third party defendants claimed plaintiffs’ negligence claims against them are preempted by the United States Grain Standards Act (GSA). Plaintiffs argued their negligence claims fall outside scope of GSA’s “express preemption provision.” Court found the GSA “preempts plaintiff’s negligence claims as they relate to inspection and description requirements, sourcing and segregating requirements, and shipping requirements of the Viptera and dried grains with solubles (DDGS).” Court further concluded that imposing liability on defendants would “impose a duty on the part of the defendants that falls squarely within the scope of the Act,” and that it was, “’Congress’s intent to regulate foreign commerce in grain’ and facilitate and promote grain trade.” Court persuaded by defendants’ argument that plaintiffs’ claims against them are “preempted as they fall within the scope of the GSA’s express preemption provision.” Claims against third party defendants dismissed.
In the Matter of the Application of KCP&L Greater Missouri Operations Company for Permission and Approval of a Certificate of Public Convenience and Necessity Authorizing It to Construct, Install, Own, Operate, Maintain and Otherwise Control and Manage Solar Generation Facilities in Western Missouri; United for Missouri; Office of Public Counsel, Appellants, v. Missouri Public Service Commission, KCP&L Greater Missouri Operations Co., and Missouri Division of Energy, Respondents, WD 79550, 2016 WL 7650615 (Mo. Ct. App. Dec. 20, 2016) involved a public utility’s grant of “a certificate of convenience and necessity” for a proposed solar plant. Plaintiffs argued utility’s order was unlawful because utility did not prove that the solar plant was “necessary or convenient for the public service.” Plaintiff also claimed utility’s decision was unreasonable because it was based “solely on unsupported public opinion, political, and public policy speculation rather than a demonstrated public need.” Court observed that defendant wants to provide “improved service to its customers in its current service area.” Court persuaded that the costs of the plant are reasonable and the benefits to the public are valuable. Court eventually determined that per statute, proposed pilot solar plant is “necessary or convenient for the public service.”
In re the Marriage of: Michelle Beth Kremer, petitioner, Respondent, v. Robbie Michael Kremer, Appellant, A15-2006, 2017 WL 74300 (Minn. Ct. App. Filed Jan. 9, 2017) involved divorce proceeding wherein husband challenged lower court order awarding wife a substantial share of marital property. District court noted that husband liquidated $1.5 million in stored grain during pending divorce proceedings and claimed he lost financing and had to “reduce his operation from 3100 acres to 172.” District court not persuaded by husband’s explanation for downsizing his farm operation and concluded he violated law by “transferring or disposing of marital assets not in the usual course of business by liquidating $1,500,000.00 in grain in 2012 and converting a portion of the proceeds to equipment and building.” Appellate court found wife “substantially contributed to the acquisition of income and property during the marriage” and concluded district court’s division of marital estate was not an abuse of discretion.
Snohomish County, King County, and Building Industry Association of Clark County, Respondents, v. Pollution Control Hearings Board, and Washington State Department of Ecology, and Puget Soundkeeper Alliance, Washington Environmental Council, and Rosemere Neighborhood Association, Petitioners, NO. 92805-3, 2016 WL 7495874 (Wash. Dec. 29, 2016) concerned whether Washington’s “vested rights doctrine” excuses compliance with the requirements of a “municipal storm water permit.” Washington State Department of Ecology issued a municipal storm water permit pursuant to the Federal Water Pollution Control Act (CWA) requiring “owners or operators of large and medium municipal separate storm sewer systems to adopt and make effective a local storm water management program.” Permittees argued it violated the “vested rights doctrine” because it “compelled them to retroactively apply new storm water regulations to completed development applications.” Pollution Control Hearings Board held vested rights doctrine “does not apply to storm water regulations permittees must implement as part of the National Pollutant Discharge Elimination System permitting program.” Court of Appeals reversed, finding vested rights doctrine excuses compliance with the storm water regulations because they are “land use control ordinances.” Supreme Court of Washington reversed appellate court and reinstated the Pollution Control Hearings Board’s order.
People for the Ethical Treatment of Animals, Plaintiff, v. United States Department of Health and Human Services, Defendant, Civil Action No. 1:15–cv–309–CKK, 2017 WL 59079 (D.D.C. Jan. 5, 2017) involved a Freedom of Information Act (FOIA) request seeking records submitted by “importers of nonhuman primates” (NHP) to the CDC. Plaintiff alleged NHP importers committed fraud by declaring “the NHP industry is competitive and that the information requested is generally kept confidential.” Plaintiff claimed it learned “importers who offered declarations cooperate with each other and transfer primates between themselves.” Court found importer declarations were not the type of “fraud,” “misrepresentation” or “misconduct” envisioned by statute and that plaintiff provided “no proof that declarants lied by arguing that their industry was sufficiently competitive to warrant protection.” Plaintiff’s motion denied.
In Gary Cline, individually and as Next Friend and Probate Representative for the Estate of Derek Landon Wood, Plaintiff, v. Publix Supermarkets, Inc. and Publix Tennessee, LLC, Defendants, Case No. 3:15–0275, 2017 WL 67945 (M.D. Tenn. Jan. 06, 2017), plaintiff’s estate sued after he suffered an allergic reaction to eating pecans in an unlabeled cookie purchased at defendant’s bakery. Plaintiff alleged Publix violated federal Food Allergen Labeling and Consumer Protection Act (FALCPA). Court observed that under FALCPA, “[a] food shall be deemed to be misbranded … [i]f it is not a raw agricultural commodity and it is, or it contains an ingredient that bears or contains, a major food allergen, unless it is labeled as containing the major food allergen.” Here, FALCPA did not require defendant to label the cookie product, noting that “the FALCPA also expressly addresses food products like the Cookie that are baked on site at the retail bakeries where they are exclusively sold, and it expressly provides that such products do not need to be labeled.” Critically, the court observed the preemption clause in FALCPA providing, “a party cannot be held liable under state law for allergen labeling activity that is not a FALCPA violation.” Court ruled plaintiff’s cause of action “expressly preempted.”
REGULATORY: Includes EPA, FWS, FDA, GIPSA, ITA, NOAA, and RUS rules and notices.
ENVIRONMENTAL PROTECTION AGENCY:
Rule establishes tolerances for residues of tetraconazole in or on vegetable, fruiting at 0.30 parts per million and vegetable, cucurbit at 0.15 ppm and revises the tolerance for residues on beet, sugar, root; beet, sugar, dried pulp; and beet, sugar molasses. Info here.
Rule establishes an exemption from the requirement of a tolerance for residues of butanedioic acid, 2-methylene-, telomer with sodium phosphinate, acidified, potassium salts when used as an inert ingredient in a pesticide chemical formulation. Details here.
FISH AND WILDLIFE SERVICE: Notice FWS seeks comment on applications to conduct certain activities with endangered species. Details here.
FOOD AND DRUG ADMINISTRATION: Notice FDA seeks public comment on the information collection in the guidance on citizen petitions and petitions for stay of action subject to section 505(q) of the Federal Food, Drug, and Cosmetic Act. Details here.
GRAIN INSPECTORS, PACKERS AND STOCKYARDS ADMINISTRATION:
Notice GIPSA seeks comments on the quality of services provided by Farwell Commodity Grain Services, Inc. Info here.
Notice GIPSA designates Fremont Grain Inspection Department, Inc. to provide Class X or Class Y weighing services under the United States Grain Standards Act. Details here.
INTERNATIONAL TRADE ADMINISTRATION: Notice the Secretary of Commerce announces establishment of the U.S. Department of Commerce Advisory Council on Trade Enforcement and Compliance. Details here.
NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:
Rule NMFS is adjusting the 2017 total allowable catch amounts for the Bering Sea and Aleutian Islands pollock, Atka mackerel, and Pacific cod fisheries. Details here.
Notice Department of Commerce will submit OMB for clearance a proposal for collection of information. Title: Educational Partnership Program, Ernest F. Hollings Undergraduate Scholarship Program, Dr. Nancy Foster Scholarship Program, Recruitment, Training, and Research Program. Details here.
Notice NMFS seeks information on foreign commercial fishing operations exporting fish to the United States and the level of incidental and intentional mortality and serious injury of marine mammals in those fisheries. Details here.
Notice NMFS seeks nominations for the advisory committee established under the Western and Central Pacific Fisheries Convention Implementation Act. Details here.
Notice NMFS will issue a permit for a period of three years to authorize incidental take of two stocks of marine mammals listed as threatened or endangered under the Endangered Species Act. Details here.
RURAL UTILITIES SERVICE: Notice RUS announces its Community Connect Grant Program application window for Fiscal Year (FY) 2017. Info here.