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

Judicial: Constitutional Law, Administrative Procedure Act,

In Animal Legal Def. Fund v. Reynolds, No. 419CV00124SMRHCA, 2022 WL 777231 (S.D. Iowa Mar. 14, 2022), the court considered whether an Iowa law that criminalized the use of deception to gain access or employment in an agricultural production facility violated the First Amendment. Plaintiffs claimed that Iowa Code § 717.3B infringed on their constitutional rights by criminalizing speech protected by the First Amendment and discriminated based on content and viewpoint. The court first analyzed whether the Iowa law regulated speech or expressive conduct. The court found that the law did regulate speech and not merely conduct as defendants argued. The court next looked at whether the law regulated protected speech. The court found that the law did not regulate protected speech.

The court also stated that the issue with the Iowa law was that it sought to single out specific individuals for punishment based on their viewpoint regarding agricultural production facilities. The court held that the law failed, in part, because it focused not on the harm from the trespass but on the subsequent harm from the intent to harm the facility once on the property. The Iowa law discriminated based on viewpoint and was subject to strict scrutiny. The court also held that the stated purposes of the law (private property rights and biosecurity) would also be implicated for deceptive trespassers without the intent to harm the facility. Finally, the court held that the State of Iowa could not single out individuals for special punishment based on their critical viewpoint of agricultural practices. The court granted plaintiffs’ motion for summary judgment and found Iowa Code § 717.3B unconstitutional in violation of the First Amendment.

In Sustainable Fisheries Coal. v. Raimondo, No. CV 21-10204-LTS, 2022 WL 795456 (D. Mass. Mar. 4, 2022), the court considered a motion for summary judgment. At issue was whether Amendment 8 to the Fishery Management Plan for Atlantic Herring was arbitrary and capricious and whether defendant failed to provide a fishery impact statement. Plaintiffs also argued that the rule violated National Standard 4 which requires the rule to be justified as an allocation decision. The court found that the defendant’s final rule was arbitrary and capricious. The court also found that the defendants did provide a lawful fishery impact statement. The court granted plaintiffs motion for summary judgment solely on the grounds that the final rule violated the APA and National Standard 4. The court denied defendant’s motion for summary judgment except for the lawful fishery impact statement.

In ANDREW GIBSON, on behalf of himself & all others similarly situated, Plaintiff, v. BARTLETT DAIRY, INC. & FARMLAND FRESH DAIRIES, LLC, Defendants., No. 20CV2848NGGSJB, 2022 WL 784746 (E.D.N.Y. Mar. 15, 2022), the court considered a motion to dismiss a complaint that alleged that defendants’ dairy products were deceptively labeled, marketed, and sold. Plaintiff alleged that defendants’ dairy products labeled as “No Antibiotics” actually contained antibiotics. The court found that plaintiffs allegation presented a triable issue regarding the nature of defendant’s role in bringing the dairy product to market and denied defendant’s motion to dismiss pursuant to New York General Business Law. However, the court also found that plaintiff could not plead a class action claim under Connecticut law and granted defendants’ motion to dismiss plaintiffs non-New York claim.

REGULATORY: EPA, FSA, FWS, FDA, NOAA

ENVIRONMENTAL PROTECTION AGENCY

Proposed rule announcing the current National Priorities List under the Comprehensive Environmental Response, Compensation, and Liability Act. Info here.

Final rule establishing tolerances for residues of bicyclopyrone in or on banana; broccoli; hop, dried cones; horseradish; onion, bulb; onion, green; papaya; strawberry; sweet potato, tuber; timothy, forage; timothy, hay and watermelon. Info here.

FARM SERVICE AGENCY

Notice clarifying hog eligibility, documentation requirements, and payment factoring under the Spot Market Hog Pandemic Program. Info here.

FISH AND WILDLIFE SERVICE

Notice inviting the public to comment on applications for a permit to conduct activities intended to recover and enhance endangered species survival. Info here.

FOOD AND DRUG ADMINISTRATION

Notice soliciting comments on abbreviated new animal drug applications. Info here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION

Notice announcing that the National Marine Fisheries Service and the U.S. Fish and Wildlife Service have received separate incidental take permit applications from the Oregon Department of Forestry, associated with the Western Oregon State Forests habitat conservation plan.  Info here.