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

JUDICIAL: Includes food labeling, food safety, and ag leases issues.

In NATALIA BRUTON, individually and on behalf of all others similarly situated, Plaintiff-Appellant, v. GERBER PRODUCTS COMPANY, Defendant-Appellee, No. 15-15174, 2017 WL 1396221 (9th Cir. April 19, 2017), plaintiff alleged Gerber baby food labels included nutrient claims impermissible under Food and Drug Administration (FDA) regulations incorporated into California law. District court granted summary judgment to defendant and on appeal, plaintiff argued “the combination of the presence of the claims on Gerber’s products . . . and the lack of claims on competitors’ products made Gerber’s labeling likely to mislead the public into believing that Gerber’s products were of a higher quality than its competitors’.” Court found that, “A reasonable jury observing Gerber’s labels and comparing them to those of its competitors could rationally conclude that Gerber’s labels were likely to deceive,” and reversed district court ruling.

LEIF NELSON, Plaintiff, v. MILLERCOORS, LLC and MILLERCOORS OIL CAN BREWERIES, Defendants. 15-CV-7082 (WFK) (RML), 2017 WL 1403343 (E.D.N.Y. March 31, 2017) involved allegations of deception regarding defendant’s Foster’s beer brand. Plaintiff alleged defendant fooled consumers into believing “they are purchasing beer imported from Australia brewed with Australian ingredients, when, in fact, they are purchasing beer brewed in Fort Worth, Texas, with ingredients from the United States.” Plaintiff further alleged MillerCoors engaged in “deceptive conduct” to capitalize on consumers’ willingness “to pay a premium for high quality, imported beer.” Defendant argued plaintiff’s claims should be dismissed because their representations “would not have misled a reasonable consumer.” Court noted that the Second Circuit has ruled “the presence of a disclaimer or similar clarifying language may defeat a claim of deception.” Defendant’s motion to dismiss granted.

In IN RE: BAYER PHILLIPS COLON HEALTH PROBIOTICS SALES PRACTICES LITIGATION, No. 11-03017, 2017 WL 1395483 (D.N.J. April 18, 2017), plaintiffs filed class action alleging Bayer made “false and misleading” representations in marketing a colon health product. Court reasoned that burden of proof was on plaintiffs to prove Bayer’s claims were false and misleading. Court noted that plaintiffs “did not conduct their own double-blind, placebo controlled RCT to support their position,” and failed to meet their burden of proof of showing that PCH’s claims of promoting “overall digestive health” and “defend[ing] against occasional constipation, diarrhea, gas, and bloating” were demonstrably false. Bayer’s motion for summary judgment granted.

Mark R. SCHEWE, Diane M. Kelly, and Marsha S. Meyer, Plaintiffs and Counterdefendants–Appellants and Cross–Appellees, v. SCHEWE FARMS, L.L.C., Virginia L. Schewe, William M. Schewe, and Lora M. Kennedy, Defendants and Counterplaintiffs–Appellees and Cross–Appellants, NO. 5–16–0192, 2017 IL App (5th) 160192-U (Ill. App. Ct. April 18, 2017) involved a voluntary dissociation by members of a family-owned and managed limited liability company, consisting of 800 acres of farmed real estate. Issue for appellate court was to determine “the fair value of the distributional interests of the Dissociating Members.” Appellate court found lower court “incorrectly held that the dissociating members of the company wrongfully dissociated from the company,” but affirmed lower court’s ruling determining the “fair value of the Dissociating Members’ distributional interests” in the farm.

REGULATORY: Includes AMS, USDA, APHIS, EDA, FDA and NOAA rules and notices.

AGRICULTURAL MARKETING SERVICE: Notice AMS will request approval from OMB for a new information collection: Proposed California Federal Milk Marketing Order; Referendum Procedures. Info here.


Notice USDA has submitted information collection requirement(s) to OMB for review. Title: Importation of Unshu Oranges. Info here.

Notice USDA has submitted information collection requirement(s) to OMB for review. Title: Power of Attorney. Info here.

Notice USDA has submitted information collection requirement(s) to OMB for review. Title: Cooperative Agricultural Pest Survey. Details here.


Notice APHIS will request a revision to and extension of approval of an information collection regarding regulations for the interstate movement of regulated nursery stock and fruit from quarantined areas to prevent the spread of citrus canker. Info here.

Notice APHIS will request a revision to and extension of approval of an information collection associated with the regulations for the importation of potatoes from Mexico. Details here.

ECONOMIC DEVELOPMENT ADMINISTRATION: Notice the National Advisory Council on Innovation and Entrepreneurship will hold a public meeting on Tuesday, May 2, and Wednesday, May 3, 2017. Details here.

FOOD AND DRUG ADMINISTRATION: Notice FDA seeks comment on the proposed collection of certain information by the Agency. Title: Focus Groups as Used by the Food and Drug Administration. Details here.


Rule implements Amendment 18 to the Northeast Multispecies Fishery Management Plan. Info here.

Rule NMFS is issuing regulations under the Tuna Conventions Act to implement Inter-American Tropical Tuna Commission Resolution C-16-08. Details here.

Rule NMFS specifies the 2016 annual catch limits for Pacific Island bottomfish, crustacean, precious coral, and coral reef ecosystem fisheries, and accountability measures (AMs) to correct or mitigate any overages of catch limits. Info here.

Notice Vanessa Coates, British Broadcasting Corporation (BBC) Natural History Unit, applied for a permit to conduct commercial photography on killer whales, Dall’s porpoise, and Pacific white-sided dolphins. Info here.