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


Judicial: H-2A Waiver of Rights, Food Labeling

In Sarmiento v. Fresh Harvest, Inc., No. 20-CV-07974-BLF, 2021 WL 5632578 (N.D. Cal. Dec. 1, 2021), the court had to determine whether a settlement agreement waived the plaintiff’s right to join a class action complaint for H-2A visa program wage violations. The primary dispute between the parties was the interpretation of the waiver of rights prohibition in the H-2A regulations. This regulation prohibits any person from seeking to have H-2A employees waive their rights under the H-2A regulations outside of certain circumstances.

To meet the first exception, an agreement must be supervised by the Department of Labor, which neither party considers applicable here. To meet the second exception, an agreement must be “in settlement of private litigation.”  For an agreement to be “in settlement of private litigation,” there must be a lawsuit to settle. Accordingly, for an agreement to qualify for the second exception to the H-2A waiver prohibition, the Court found that it must be between parties to active litigation. Fresh Harvest pointed to no cases supporting its broad interpretation of “in settlement of private litigation.” Instead, Fresh Harvest argued that settlement of any dispute that could mature into a lawsuit if not resolved would qualify. The Court interpreted the exception to the H-2A waiver prohibition to apply only when an agreement is in settlement of active private litigation.

The parties further disagreed about whether there was public policy support for limiting H-2A workers’ freedom to contract to narrow circumstances like when active litigation is pending. Fresh Harvest argued that without a court-approved settlement requirement, it does not make sense to allow H-2A workers to settle claims only after they have filed a lawsuit, because “[t]here is nothing magical about the filing of a lawsuit.” The Court found that plaintiff’s interpretation of the H-2A waiver of rights prohibition is consistent with the general public policy of protecting the employment rights of H-2A and other seasonal workers.

The court ultimately held that the settlement agreement was invalid because it did not call under either exception to the H-2A waiver prohibition.

In AMY WARREN & IESHA CONLEY, individually & on behalf of all others similarly situated v. WHOLE FOODS MARKET GROUP, INC., No. 19CV6448RPKLB, 2021 WL 5759702 (E.D.N.Y. Dec. 3, 2021), the court determined whether Whole Foods’ packaging was materially misleading. Plaintiffs claimed that they had been misled regarding the product’s sugar content and that the whole-grain stamp on the packaging fooled them into thinking that the product contained only whole grains. The court found that the plaintiffs failed to plausibly allege that the product’s packaging would mislead a reasonable consumer by giving the impression that the oatmeal contained a fruit juice ingredient and not sugar. The product contained no representation that the oatmeal was sugar free, low in sugar, no added sugar, or anything similar.

The court also found that the whole-grain stamp was not material misleading. The text surrounding the whole-grain stamp made plaintiffs’ understanding of the stamp implausible because the stamp does not specify 100% whole grain and the name of the product, “Oats & Flax,” discloses a nongrain ingredient, flax. The court found that for similar reasons as above, plaintiffs’ claims for negligent misrepresentation, express warranty, breach of implied warranty, and MMWA fail. The court dismissed all claims without prejudice.




Final rule implementing an increase to the assessment rate for avocados established for the 2021-22 and subsequent fiscal years. The assessment rate will remain in effect indefinitely unless modified, suspended, or terminated. Info here.


Notice announcing receipt of requests to voluntarily cancel certain pesticide registrations. These requests were made by registrants through 2020 Pesticide Registration Maintenance Fee responses. Info here.

 Proposed rule announcing that the EPA and the Department of the Army are publishing for public comment a proposed rule defining “Waters of the United States” under the Clean Water Act. Info here.


Temporary rule allowing shrimp fishers to use limited tow times as an alternative to Turtle Excluder Devices in specific Louisiana State waters. Info here.