A comprehensive summary of today’s judicial, legislative, and regulatory developments in agriculture and food. Email important additions HERE.
Judicial: Food Labeling
In STACY CHIAPPETTA, individually & on behalf of all others similarly situated v. KELLOGG SALES COMPANY, No. 21-CV-3545, 2022 WL 602505 (N.D. Ill. Mar. 1, 2022), the court considered whether to dismiss a complaint against Kellogg alleging that the packaging for the unfrosted strawberry pop-tarts was misleading and deceptive because the filling contains more than just strawberries. Plaintiff claimed that the use of the word strawberry combined with the picture of a strawberry on the packaging mislead consumers into believing that the product filling only contained strawberries. The court found that nothing on the front of the product packaging stated or suggested anything about the amount of strawberries in the product’s filling or guaranteed that the product only contained strawberries. The court held that the plaintiff’s interpretation of the label was unreasonable and unactionable and dismissed plaintiff’s claim under the Illinois Consumer Fraud and Deceptive Business Practices Act. The court also dismissed all of plaintiff’s remaining claims for similar reasons and for failure to plead sufficient facts to sustain her claims.
In CONSTANCE MOGULL, individually & on behalf of all others similarly situated v. PETE AND GERRY’S ORGANICS, LLC, No. 21 CV 3521 (VB), 2022 WL 602971 (S.D.N.Y. Feb. 28, 2022), the court considered whether plaintiff’s claim that defendants eggs marketed as free-range were not actually free-range should be dismissed. Plaintiff alleged that defendant’s packaging represents that its eggs are free-range when in actuality the hens have little to no access to outside. The court found that a reasonable consumer could interpret the product description as factual claims on which they could rely. The court denied defendant’s motion to dismiss.
In EILEEN MYERS, individually & on behalf of all others similarly situated v. WAKEFERN FOOD CORP., No. 20 CIV. 8470 (NSR), 2022 WL 603000 (S.D.N.Y. Mar. 1, 2022), the court considered whether defendant misrepresented the flavoring of its “Coconutmilk” to consumers. Plaintiff alleged that the product was misleading because it was not mainly flavored from vanilla and contained artificial flavors. The court concluded that the product’s vanilla label would not lead a reasonable consumer to understand its flavor to be derived mostly or exclusively from the vanilla bean. The court also found that plaintiff failed to sufficiently allege that defendant misrepresented that its product contained no artificial flavors. Plaintiff also did not plausibly allege that the product’s label was misleading to a reasonable consumer. The court granted defendant’s motion and the case was dismissed.
REGULATORY: AMS, ARS, EPA, FWS, NOAA
AGRICULTURAL MARKETING SERVICE
Notice announcing a meeting of the National Organic Standards Board. Info here.
AGRICULTURAL RESEARCH SERVICE
Notice announcing that ARS intends to seek reinstatement of the ARS Animal Health National Program Assessment Survey. Info here.
Notice announcing that the Subcommittee on Aquaculture is seeking public comment on a draft outline of the Strategic Plan for Aquaculture Economic Development, and information on a planned update to the 1983 National Aquaculture Development Plan. Info here.
ENVIRONMENTAL PROTECTION AGENCY
Final rule establishing an exemption from the requirement of a tolerance for residues of Polyammonium bisulfate. Info here.
Notice announcing that the EPA has received applications to register new uses for pesticide products containing currently registered active ingredients. Info here.
FISH AND WILDLIFE SERVICE
Proposed rule announcing that FWS proposes to downlist the relict darter (Etheostoma chienense) from endangered to threatened under the Endangered Species Act. Info here.
Proposed rule announcing that FWS proposes to list the western fanshell (Cyprogenia aberti), a freshwater mussel species from Arkansas, Kansas, Missouri, and Oklahoma, and the “Ouachita” fanshell (Cyprogenia cf. aberti), a freshwater mussel species from Arkansas and Louisiana, as threatened species and to designate critical habitat for these species under the Endangered Species Act. Info here.
NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION
Notice announcing a revisal of fee schedule for seafood inspection services. Info here.
Final rule making technical corrections to a final rule that modified the Atlantic Large Whale Take Reduction Plan. Info here.
Notice announcing the receival of seven plans for hatchery programs rearing and releasing Chinook salmon, coho salmon, and chum salmon in the Snohomish River basin. Info here.