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


JUDICIAL: Labeling, Bankruptcy

In Cohen v. ConAgra Brands, Inc., No. 20-55969, 2021 WL 4956243 (9th Cir. Oct. 26, 2021), the court considered if the district court’s preemption of Cohen’s claims challenging product labels should be reversed. The defendant’s chicken products were labeled as “100% Natural” and as having “NO PRESERVATIVES!” “NO ARTIFICAL COLORS” and “NO ARTIFICIAL FLAVORING” statements the plaintiff alleged were misleading given the presence of synthetic ingredients. The district court dismissed the plaintiff’s claims, finding they were “expressly prohibited” by the Poultry Products Inspection Act (“PPIA”) because the United States Department of Agriculture’s Food Safety and Inspection Service (“FSIS”) had already deemed the particular statements non-misleading when it granted its pre-approval to the products’ labeling bearing those statements. The district court reached the same conclusion regarding an image of the product’s packaging that appeared online, finding “no reason to distinguish between the packaging itself and an image of the packaging viewed over the Internet.”

In the case before the court of appeals, the court found that Cohen’s claims challenging the product labels were not preempted because there was not enough evidence in the record to support the district court’s finding that ConAgra’s labels were reviewed and approved by FSIS. The court of appeals also found that the product packaging image that appeared online was not reviewed by FSIS because a website representation is not a label. The court concluded that ConAgra’s online representation was not preempted because it materially differs from the product label.

The court of appeals reversed the district court’s preemption of Cohen’s claims.

In both In re Mongeau, No. 21-40055, 2021 WL 4943467 (Bankr. D. Kan. Oct. 22, 2021) and In re Comeau, No. 21-41029-12, 2021 WL 4927730 (Bankr. D. Kan. Oct. 21, 2021), the court addressed whether the Debtors were “family farmers” eligible for Chapter 12 bankruptcy. To be eligible for relief under Chapter 12, the debtor must be a family farmer with a regular annual income. A family farmer is defined to mean “individual or individual and spouse engaged in a farming operation” whose aggregate debt and gross income satisfy statutory requirements. In both cases, the issue arises with the “engaged in a farming operation” portion of the “family farmer” definition.

There are two elements to determining if a debtor is “engaged in a farming operation:” a temporal element (the debtor must be engaged in a farming operation on the date of filing); and a substantive element (whether the debtor’s activities on that date constituted a farming operation). Whether Debtors were “engaged in” a farming operation on the petition date and whether a particular activity constitutes a “farming operation” are determined on a case-by-case basis considering the totality of the circumstances. Additionally, the court considered the Debtor’s intent to continue farming in their analysis. The court found that even if the Debtors were not engaged in the physical activity of farming, they would still be eligible for relief under Chapter 12 if, under the totality of the circumstances, they intended to engage in a farming operation.

In both cases, the court found that the Debtors were engaged in a farming operation and were eligible for Chapter 12 relief.




Notice announcing a meeting of the Plant Variety Protection Board. The meeting is being held to discuss a variety of topics including, but not limited to, regulation updates, subcommittee activities, and program activities. The meeting is open to the public. This notice sets forth the schedule and location for the meeting. Info here.


Notice soliciting comments on rules relating to review of National Futures Association decisions in disciplinary, membership denial, registration, and member responsibility actions. Info here.


Final rule announcing that under the Clean Air Act, EPA is granting requests by the California Air Resources Board to reclassify three nonattainment areas in California from “Moderate” to “Serious” for the 2015 ozone national ambient air quality standards. Info here.