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

JUDICIAL: Includes PACA, food labeling, environmental, and labor issues.

In IN RE: TOMATO SPECIALTIES, LLC, D/B/A THE AVOCADO COMPANY INTERNATIONAL, RESPONDENT, PACA-D Docket No. 16-0068, 2017 WL 5052961 (U.S.D.A. October 18, 2017), USDA’s Agricultural Marketing Service (AMS) agency argued respondent “willfully violated the Perishable Agricultural Commodities Act, (PACA), by issuing false and misleading statements for a fraudulent purpose and by failing to account accurately to five sellers.” AMS argued for revocation of respondent’s PACA license because of the “severity of these violations.” Court found that respondent made “false and misleading statements for a fraudulent purpose” and failed in its accounting efforts. Court reasoned that “[a] lesser sanction such as civil penalty or suspension could lead to Tomato Specialties or others in the industry viewing the sanction as the “cost of doing business,” essentially the cost of violating PACA (and getting caught).” Court revoked respondent’s PACA license “to deter future violations of this type by both Tomato Specialties and other potential violators.”

INI USA, INC.; PINI POLSKA SP. Z.O.O., Plaintiffs, v. NB GLOBAL COMMODITIES, LLC, Defendant, No 2:17-CV-04763-ODW-PLA, 2017 WL 5054655 (C.D. Cal. October 31, 2017) involved a contractual relationship wherein plaintiff prepared and sold pork to defendant. Plaintiff sued for breach of contract after defendant allegedly failed to pay for “goods accepted or wrongfully rejected.” Issue was whether defendant purchased pork products from plaintiff for a “particular purpose,” thereby relying on plaintiff’s skill. Plaintiff argued defendant’s “asserted use, to re-sell the food items to stores, was an ordinary, not particular, purpose.” Defendant argued its distribution of the pork was a “sufficiently particular purpose.”  Court observed that the warranty of fitness for a particular purpose is breached “when the goods are not reasonably fit for the intended purpose, causing injury.” Court concluded that “[m]eat products are ordinarily sold and used for human consumption, and [defendant’s] status as a distributor in the supply chain does not mean that its purpose is ‘particular.’” Plaintiffs’ motion to dismiss defendant’s counterclaim granted.

In WILLIAM LIEBHART and NANCY LIEBHART, Plaintiffs, v. SPX CORPORATION, TRC COMPANIES, INC., and APOLLO DISMANTLING SERVICES, INC., Defendants, 16-cv-700-jdp, 2017 WL 5054730 (W.D. Wisc. November 2, 2017), an industrial facility was demolished and plaintiffs sued per the Resource Conservation and Recovery Act (RCRA), alleging the demolition “contaminated the surrounding area with polychlorinated biphenyls, or PCBs,” causing injury. Defendants argued PCBs cannot be considered “hazardous waste” under the RCRA. Plaintiffs countered that “even if the PCBs in this case are not a ‘hazardous waste’ under the RCRA, they are a ‘solid waste,’ which is also covered by the RCRA.” Court agreed with plaintiffs that that PCBs may qualify as a “solid waste.” Defendants’ motion to dismiss denied.

In JOHN C. DANIELS, ET AL. Plaintiffs-Appellees v. INTERNATIONAL PAPER COMPANY Defendant-Appellant, No. 51,633-CA, 2017 WL 5015159 (La. Ct. App. November 3, 2017), a third party (L&R) agreed to “sell, cut, and deliver” forest products to defendant’s business. One of L&R’s employees was injured during the work and it sought to hold defendant responsible in part. Trial court granted summary judgment for L&R and defendant appealed, arguing that that trial court wrongfully applied Louisiana law when analyzing the agreement. Defendant argued that Texas law applied because the original agreement provided that the “governing law is the state where the wood was harvested.” Court concluded that “there was no state law ‘expressly chosen’ . . . as apparently more than one state was the source of the timber that was turned into the woodchips.” Appellate court concluded that Louisiana law was properly applied.

REGULATORY: Includes USDA, APHIS, EPA, FS, NASS, and NOAA rules and notices.

AGRICULTURE DEPARTMENT: Notice USDA has submitted information collection requirement(s) to Office of Management and Budget (OMB) for review. Title: Electric System Emergency Restoration Plan. Info here.

ANIMAL AND PLANT HEALTH INSPECTION SERVICE: Rule withdrawing a proposed rule that would have revised our regulations regarding the importation, interstate movement, and environmental release of certain genetically engineered organisms. Details here.

ENVIRONMENTAL PROTECTION AGENCY: Rule EPA is taking direct final action to approve a revision to the Wisconsin State Implementation Plan submitted by the Wisconsin Department of Natural Resources (WDNR) to EPA on May 16, 2017. Info here.

FOREST SERVICE: Notice FS seeks comments from all interested individuals and organizations on the extension with revision of a currently approved information collection, Outreach Opportunity Questionnaire (0596-0207). Details here.

NATIONAL AGRICULTURAL STATISTICS SERVICE: Notice NASS will seek approval to conduct a new information collection to gather data related to water usage for North Carolina agricultural operations that likely use between 10,000 and 1,000,000 gallons per day. Info here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Rule NMFS implements an accountability measure (AM) for commercial Spanish mackerel in the northern zone of the Atlantic exclusive economic zone (EEZ) through this temporary rule. NMFS has determined that the revised commercial quota for Spanish mackerel in the northern zone of the Atlantic EEZ will be reached by November 7, 2017. Info here.

Rule NMFS issues final specifications for the 2018 commercial golden tilefish fishery and projected specifications for 2019 and 2020. Details here.

Rule NMFS proposes revised scup specifications for the 2018 fishing year and projected specifications for 2019. Details here.

Notice NOAA is publishing this notice on behalf of the United States Global Change Research Program (USGCRP) to announce the availability of a draft Fourth National Climate Assessment report for public comment. Details here.