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

JUDICIAL: Food Law, Endangered Species Act, National Marine Fisheries Service

In KAARON WARREN, et al., Plaintiffs, v. WHOLE FOODS MARKET CALIFORNIA, INC., Defendant. Additional Party Names: Christina Reed, No. 21-CV-04577-EMC, 2022 WL 2644103 (N.D. Cal. July 8, 2022), the plaintiffs alleged that defendant’s product labeling was misleading and deceptive. The plaintiffs argued that the use of the words “Vanilla” and “Naturally Flavored” violated Food & Drug Administration regulations because the product contained artificial vanilla flavoring. The court found that because plaintiff alleged that ethyl vanillin is artificial and was in the product the plaintiffs pled a plausible claim under California law. The court also found that because the plaintiff relied on the “Naturally Flavored” representation on the label that the plaintiffs have a plausible claim of fraudulent or deceptive misrepresentation.

In Ctr. for Biological Diversity v. Haaland, No. 19-CV-05206-JST, 2022 WL 2444455 (N.D. Cal. July 5, 2022), plaintiffs challenged the 2019 ESA regulations that changed how the defendants implemented the ESA. Plaintiffs requested remand of the rules to the agencies with vacatur. The court found that remand was appropriate. The court also found that vacatur was appropriate because the agencies would likely not adopt the same rules on remand and the record did not indicate any serious or irremediable harm if the rules were vacated. The case was remanded and the 2019 ESA rules vacated.

In Ctr. for Biological Diversity v. Raimondo, No. CV 18-112 (JEB), 2022 WL 2643535 (D.D.C. July 8, 2022), the court considered whether the National Marine Fisheries Service (NMFS) 2021 Biological Opinion regarding the impact of lobster and crab fishing off the Atlantic on the right whales. NMFS found that the fisheries would not jeopardize the right-whale population despite acknowledging the expected potential harm to the species. Because of that finding the NMFS issues an incidental take statement that authorized no lethal taking of the whales, even though there were projected deaths. NMFS also released a Final rule amending the Atlantic Large Whale Take Reduction Plan. Plaintiffs argued that the 2021 Biological Opinion and the Final Rule did not satisfy the ESA or the Marine Mammal Protection Act (MMPA) requirements. The court found that NMFS did violate the ESA by failing to satisfy the MMPA requirements. The court also found that the NMFS breached time requirements mandated by the MMPA when creating the Final Rule. The court held that the 2021 Biological Opinion and Final Rule were invalid. However, the court ordered no remedy and instead required more briefings from the parties to find alternatives.

LEGISLATIVE: Includes Hawaii

HAWAII

SB 3197 establishes a farmer apprentice mentoring program to support beginning farmers in the state by directing the state’s department of agriculture to enter into contracts with qualified farmer mentorship providers to effectuate the purpose of the mentoring program. Info here.

REGULATORY: EPA, FWS, NOAA

ENVIRONMENTAL PROTECTION AGENCY

Final rule announcing that the Environmental Protection Agency (EPA) is taking direct final action on the authorization of Tennessee’s changes to its hazardous waste program under the Resource Conservation and Recovery Act (RCRA). Info here.

FISH AND WILDLIFE SERVICE

Proposed rule announcing that the U.S. Fish and Wildlife Service (Service), propose to remove the Puerto Rican boa ( Chilabothrus inornatus, but listed as Epicrates inornatus ), an endemic snake from Puerto Rico, from the Federal List of Endangered and Threatened Wildlife (List). Info here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION

Final rule announcing that NMFS is prohibiting retention of Pacific cod by catcher/processors using trawl gear in the Central Regulatory Area of the Gulf of Alaska (GOA). Info here.

Final rule announcing that NMFS is extending the effective date of a temporary specification that implements a short-notice decision of the Commission on the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean (Commission or WCPFC). Info here.

Notice announcing that the National Oceanic and Atmospheric Administration (NOAA), Office for Coastal Management, will hold a public meeting to solicit comments on the performance evaluation of the Michigan Coastal Management Program. Info here.

Notice announcing that notice is hereby given that permits or permit amendments have been issued to the following entities under the Marine Mammal Protection Act (MMPA) and the Endangered Species Act (ESA), as applicable. Info here.