A comprehensive summary of today’s judicial, legislative, and regulatory developments in agriculture and food. Email important additions HERE. 

ANNOUNCEMENT: Join us Wednesday, October 4th, at 12 noon (ET) for an Agricultural & Food Law Consortium webinar: “Legal Issues with Data (Big and Small).” Details available here.

JUDICIAL: Includes urb & ag, food labeling, and environmental law issues.

In The STATE EX REL. ROCKY RIDGE DEVELOPMENT, L.L.C., et al. v. WINTERS, Judge, No. 2017-0321, 2017 WL 4182961 (Ohio September 21, 2017), the Ohio Environmental Protection Agency (OEPA) approved a Land Application Management Plan (LAMP) permitting plaintiff to “use spent lime in a soil blend as general fill to increase elevation and improve drainage on its property.” Benton Township filed a complaint claiming the companies were violating the terms of the LAMP, and were creating a public nuisance “by excavating the land down to bedrock . . . and causing erosion and flooding on adjacent properties.” Plaintiff argued that the Environmental Review Appeals Commission (ERAC) had exclusive jurisdiction to adjudicate their nuisance claims, but court denied writ pertaining to allegations that plaintiff’s operation constituted a public nuisance.

In JACKIE FITZHENRY-RUSSELL, et al., Plaintiffs, v. DR. PEPPER SNAPPLE GROUP, INC., et al., Defendants, No. 17-cv-00564 NC, 2017 WL 4224723 (N.D. Cal. September 22, 2017), plaintiffs filed class action suit after claiming they bought defendant’s ginger ale product because cans stated it was “Made with Real Ginger,” and questioned whether the product contained actual ginger root. Issue was whether plaintiffs stated a claim per the advertising of Canada Dry Ginger Ale, and whether the plaintiffs’ claims are preempted by the Federal Food, Drug, and Cosmetics Act (FDCA). Defendant sought dismiss of the complaint as “preempted because the plaintiffs seek to add additional food labeling requirements in violation of the Federal Food, Drug & Cosmetic Act (FDCA).” Regarding preemption, the court observed that “the rule is that if the content of some label is expressly permitted, a state may not forbid it, as that would lead to inconsistencies in the law of food labeling. However, if the requirements the state seeks to impose are different than those covered by the FDCA, a state is not precluded from creating law on that issue.” Motion to dismiss denied.

STATE of Alaska, Plaintiff, and Alaska Forest Association, Southeast Conference, Alaska Electric Light & Power, Alaska Power & Telephone, Alaska Miners Association, Citizen’s Pro Road, Alaska Marine Lines, Inc., Northwest Mining Association, Durette Construction Company, First Things First Foundation, Juneau Chamber of Commerce, City of Ketchikan, Ketchikan Gateway Borough, Southeast Stevedoring Corp., Chris Gerondale, Southeast Roadbuilders, Inc., Hyak Mining Co., Inc., Inside Passage Electric Cooperative, City of Craig, and Southeast Alaska Power Agency, Plaintiff–Intervenors, v. UNITED STATES DEPARTMENT OF AGRICULTURE, United States Department of Agriculture Forest Service, George Ervin “Sonny” Perdue III1, in his official capacity as Secretary of Agriculture, and Tom Tidwell, in his official capacity as Chief of the United States Forest Service, Defendants, Southeast Alaska Conservation Council, Alaska Center for the Environment, Boat Company, tongass Conservation Society, Sierra Club, Wilderness Society, Natural Resources Defense Council, Greenpeace, Inc., Defenders of Wildlife, and Center for Biological Diversity, Defendant–Intervenors, No. 11–1122 (RJL) 2017 WL 4221057 (D.D.C. September 20, 2017) concerned the United States Department of Agriculture’s (USDA) Roadless Area Conservation Rule (“Roadless Rule”) limiting road construction and timber harvesting in national forests. State of Alaska challenged the rule, arguing that the “Roadless Rule was promulgated in an unrealistic time frame, without considering the needs of individual states and without weighing the potentially devastating consequences to multiple-use management on national forest lands.” Plaintiff argued the Roadless Rule violates the National Environmental Policy Act (NEPA) the Administrative Procedure Act, (“APA”), and the Wilderness Act, among others. Court noted that the USDA “adequately considered” Alaska’s concerns when applying the Roadless rule and found that plaintiff failed to show agency violated any federal statutes. Defendants’ motion for summary judgment granted.

REGULATORY: Includes AMS, USDA, EPA, FNS, and NOAA rules and notices.

AGRICULTURAL MARKETING SERVICE: Notice AMS seeks comments on realigning the production districts under the Watermelon Research and Promotion Plan (Plan) for producer and handler membership on the National Watermelon Promotion Board, and adding four importer seats to the Board. Info here.

AGRICULTURE DEPARTMENT: Notice USDA has submitted the following information collection requirement(s) to OMB for review. Title: National Animal Health Monitoring System; Emergency Epidemiologic Investigations. Info here.

ENVIRONMENTAL PROTECTION AGENCY:

Rule EPA is taking direct final action to approve a portion of a state implementation plan (SIP) revision submitted by the State of Delaware. Info here.

Rule establishes tolerances for residues of fluazifop-p-butyl in or multiple commodities which are identified and discussed later in this document. Details here.

Rule establishes a tolerance for residues of the fungicide oxathiapiprolin in or on cacao bean, dried bean. Info here.

FOOD AND NUTRITION SERVICE: Notice FNS seeks comment on a proposed information collection. This collection is a new collection to conduct the Third National Survey of WIC Participants (NSWP-III). Details here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Rule NMFS announces that the Pacific Fishery Management Council (Council) submitted Amendment 21-3 to the Pacific Coast Groundfish Fishery Management Plan (PCGFMP) to the Secretary of Commerce for review. Details here.

Notice NOAA will submit to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information. Title: Alaska Interagency Electronic Reporting System (IERS). Details here.

Notice NMFS requests an extension of a currently approved information collection. Regulations at 50 CFR 665, Subpart C, require that all participants in the boat-based non-commercial bottomfish fishery in the Exclusive Economic Zone around the main Hawaiian Islands obtain a federal bottomfish permit. Info here.

Notice NMFS has found that the following stocks are, or remain, subject to overfishing or overfished: South Atlantic red grouper, Gulf of Mexico greater amberjack, and Northwestern Atlantic witch flounder. Details here.

Notice of a meeting of the U.S. Integrated Ocean Observing System Advisory Committee at Stennis Space Center and Ocean Springs, Mississippi. Info here.

Notice NMFS has received a request from Lamont-Doherty Earth Observatory for authorization to take marine mammals incidental to a WHEN OU marine geophysical survey in the southwest Pacific Ocean. Details here.