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


JUDICIAL: Includes food law

In McAfee v. U.S. Food & Drug Admin., No. CV 19-3161, 2021 WL 2073402 (D. D.C. May 24, 2021), a district court for the District of Columbia considered whether the Food and Drug Administration (“FDA”) improperly denied the plaintiff’s petition for rulemaking. Ultimately, the court found in favor of the FDA because the agency had supplied enough scientific evidence to support its decision. Since 1987, the FDA has banned the introduction into interstate commerce “any milk or milk product” that is not pasteurized. A few years later, the FDA clarified that the pasteurization rule also applied to butter. The plaintiff in this case filed a petition with the FDA, asking it to remove butter from the pasteurization rule so that unpasteurized butter could be sold in interstate commerce. According to the plaintiff, the FDA had no scientific basis for requiring that butter introduced to interstate commerce be pasteurized. The FDA denied the petition, and the plaintiff filed suit.

The court ruled in favor of the FDA, concluding that the agency’s decision to require the pasteurization of butter in order to prevent communicable diseases is “a scientific decision within its area of expertise.” When reviewing whether an agency has acted arbitrarily or capriciously, courts will generally be deferential to agency actions so long as the agency examines the relevant data and provides an adequate explanation for its action including a rational connection between the facts found and the choices made. In denying the plaintiff’s petition for rulemaking, the FDA explained why it had included butter in the pasteurization rule, noting that butter was made from cream and that unpasteurized cream was capable of spreading disease. Because the FDA had provided a satisfactory explanation for its denial of the plaintiff’s petition that was supported by science and data, the court found in favor of the FDA.



Animal and Plant Health Inspection Service

Notice advising the public of APHIS’s decision to add 26 taxa of plants for planting that are quarantine pests, all Myrtaceae taxa, and 43 other taxa of plants for planting that are hosts of 17 quarantine pests, to our lists of plants for planting whose importation is now not authorized pending pest risk analysis. Info here.

United States Department of Agriculture

Notice announcing the intention of the Office of the Assistant Secretary for Civil Rights to request a renewal of a currently approved information collection regarding the race, ethnicity, and gender of all program applicants and participants by county and State. Info here.