A comprehensive summary of today’s judicial, legislative, and regulatory developments in agriculture and food. Email important additions HERE.
Judicial: Food Labeling, Animal Welfare
In HEATHER RUDY, individually & on behalf of all others similarly situated v. FAMILY DOLLAR STORES, INC., No. 21-CV-3575, 2022 WL 345081 (N.D. Ill. Feb. 4, 2022), the court considered a motion to dismiss regarding the deceptive labeling of snack almonds. Plaintiff claimed that Defendant misled consumers by marketing their “Smoked Almonds” as smoked, when they were treated with liquid smoke and not smoked over an open fire. The court found that the label on the front of the product did not suggest to consumers that the term smoked referred to the products flavoring as opposed to production process. The products label also did not contain the word flavored like some of its competitor products. The court concluded that plaintiff had sufficiently pled a deceptive trade practice. The court denied Defendant’s motion to dismiss under the Illinois Consumer Fraud and Deceptive Business Practice Act. The court did grant Defendant’s motion to dismiss Plaintiff’s claims for breach of expressed and implied warranties and the Magnuson-Moss Warranty Act, negligent misrepresentation, and fraud.
In Nacarino v. Kashi Co., No. 21-CV-07036-VC, 2022 WL 390815 (N.D. Cal. Feb. 9, 2022), the court considered whether defendant’s product packaging was false or misleading. Defendant’s product package states that eleven grams of protein are contained within the product. The court found that the amount of protein had been calculated using a technique authorized by the FDA regulations. Because the technique is FDA-approved, the court found that the statement could not be considered misleading within the meaning of the Food, Drug, and Cosmetic Act. The court granted defendant’s motion to dismiss.
In IN RE: PRIVATE CRIMINAL COMPLAINT FILED BY ANIMAL OUTLOOK APPEAL OF: ANIMAL OUTLOOK, No. 374 MDA 2021, 2022 WL 369981 (Pa. Super. Ct. Feb. 8, 2022), the court considered an appeal from an order dismissing a petition for review of animal cruelty complaints. Animal Outlook secretly gathered information from within Martin Farms and allegedly witnessed multiple counts of animal cruelty. Information was turned over to Pennsylvania State Police and an investigation was initiated. The District Attorney ultimately declined to prosecute Martin Farms. Animal Outlook then drafter private criminal complaints against Martin Farms and its employees alleging violation of various animal cruelty statutes. The District Attorney disapproved of all the complaints as lacking merit and a trial courts review upheld the decision.
The Superior Court of Pennsylvania held that the trial court committed multiple errors of law in its decision. The trial court failed to consider the evidence in the light most favorable to moving forward with a prosecution and failed to consider all reasonable inferences based on that evidence which could support a guilty verdict. The trial court also noted Martin Farms voluntarily changing some of its practices. The Superior Court concluded that whether the farm stopped committing or allowing the arguably-criminal acts did not negate culpability for any past crimes committed against animals. Finally, the trial court also failed to review the petition in its entirety and only reference the evidence obtained by state police that supported the District Attorney’s decision to disapprove the criminal complaints.
The Superior Court found that the evidence that was presented to the District Attorney, the trial court and the Superior Court was sufficient to make out prima facie cases of animal neglect, cruelty, and aggravated cruelty. The trial court’s dismissal of Animal Outlook’s petition for review was reversed and the trial court was ordered to direct the District Attorney to accept and transmit for prosecution the private criminal complaints.
REGULATORY: EPA, FCIC, FWS
ENVIRONMENTAL PROTECTION AGENCY
Final rule establishing an exemption from the requirement of a tolerance for residues of Bacillus paralicheniformis strain CH2970 in or on all food commodities when used in accordance with label directions and good agricultural practices. Info here.
Final rule establishing an exemption from the requirement of a tolerance for residues of Bacillus subtilis strain CH3000 in or on all food commodities when used in accordance with label directions and good agricultural practices. Info here.
FEDERAL CROP INSURANCE CORPORATION
Final rule establishing the Pandemic Cover Crop Program (PCCP) for the 2022 crop year. The PCCP provides support for agricultural producers impacted by the COVID-19 pandemic. USDA is dedicating funding to reach a broader set of producers than in previous COVID-19 assistance programs, with a specific focus on strengthening outreach to underserved producers and communities and small and medium agricultural operations. Info here.
FISH AND WILDLIFE SERVICE
Notice announcing the FWS received an application from Saint Martin’s Abbey for an incidental take permit (ITP) pursuant to the Endangered Species Act. The ITP would authorize the applicant’s take of the Yelm subspecies of the Mazama pocket gopher, incidental to otherwise lawful construction and maintenance activities at Saint Martin’s University in Thurston County, Washington. Info here.