A comprehensive summary of today’s judicial, legislative, and regulatory developments in agriculture and food. Email important additions to: camarigg at uark.edu

JUDICIAL: Includes food labeling, easement, USDA, land use, energy, and food safety issues.

In Anthony J. Bush, Plaintiff, v. Mondelez International, Inc., et al., Defendants, No. 16-cv-02460-RS, 2016 WL 7324990 (N.D. Cal. Dec. 16, 2016), plaintiff sued under California’s Unfair Competition Law, claiming defendant under-fills its travel-size snacks, and arguing the snack containers have empty space at the top, misrepresenting the “volume of included snack.” Court found plaintiff’s unpersuasive because the snack “product labels disclose the net weight and number of cookies per container and consumers expect there to be some slack-fill in opaque snack containers.” Plaintiff’s allegations did not “support a plausible claim for consumer deception, and Bush has not adequately pleaded any other violation of California’s Unfair Competition Law.” Defendant’s motion to dismiss granted.

In William K. Lester, Appellant v. Harold Conway, Appellee, No. 04–15–00730–CV, 2016 WL 7234053 (Tex. App. Dec. 14, 2016), plaintiff appealed grant of an easement of necessity permitting defendant to run electric service to his property. Plaintiff argued trial court erred in applying “law governing necessity easements as opposed to the law governing prior use easements.” Appellate court reasoned that a “court’s holding that the law governing necessity easements is applicable when a party claims roadway access does not, however, mean the law governing prior use easements is always applicable when a party claims a lesser improvement.” The court also recognized that “necessity easements ‘are implied out of the desire to avoid the proliferation of landlocked—and therefore, unproductive—parcels of land.’” Defendant testified he required “electrical access” to make his property usable. Trial court judgment for defendant affirmed.

In Warte T. Moore, Plaintiff, v. Tom J. Vilsack, Secretary, United States Department of Agriculture, Defendant, NO: 5:16-CV-290-BR, 016 WL 7335605 (E.D.N.C. Dec, 16, 2016), plaintiff was employed in the Risk Management Agency at USDA and suffered from dyslexia. He filed an Equal Employment Opportunity complaint after he was allegedly forced to complete work in a rapid fashion and suffered a hostile work environment. EEO Commission found for USDA and plaintiff appealed under Title VII and the North Carolina Persons with Disabilities Protection Act. Court ruled that, “The federal government does not qualify under the NCPDPA as an employer, covered governmental entity, or person who contracts with the State.” Case dismissed.

April WARDEN–PITTMAN, personal representative of the Estate of Montrice Coleman, Plaintiff–Appellant, v. Connie PANCOTTO and Dominique Pancotto, Defendants–Appellees, and Kingswood Estates Subdivision Association, Defendant, No. 327005, 2016 WL 7333327 (Mich. Ct. App. Dec. 15, 2016) involved recreational land use and a drowning at a lake. Defendant found not negligent in plaintiff’s death and plaintiff’s estate appealed, arguing trial court erred by finding the recreational land use act (RUA) barred plaintiff’s claim for ordinary negligence. The court observed that, “The RUA exempts an owner of land from liability for injuries suffered by a person while that person is using the owner’s land for specified purposes if that person has not paid the owner a valuable consideration for such use, unless the injuries were caused by the owner’s gross negligence or willful and wanton misconduct.” The court reasoned that “application of the RUA is not ‘limited to vacant or undeveloped lands,’ and bars liability when land is used for recreational purposes.” Court found that plaintiff “clearly entered [defendant’s] property for the purpose of engaging in a recreational use of that land.” Affirmed for defendant.

In NATIONAL BIODIESEL BOARD, PETITIONER v. ENVIRONMENTAL PROTECTION AGENCY, RESPONDENT, No. 15-1072, 2016 WL 7368626 (D.C. Dec. 20, 2016), plaintiff challenged EPA decision permitting Argentine biofuel producers to use “certain recordkeeping practices” in selling their product in the United States. The Argentine Chamber of Biofuels (CARBIO) submitted a survey program for EPA’s approval as an alternative tracking program and EPA approved. Court considered whether EPA erred in approving the CARBIO plan. Plaintiff argued that “an alternative tracking plan must be ‘[d]esigned to achieve the same level of quality assurance’ as the individual tracking and aggregate compliance options.” EPA concluded the CARBIO plan was “[d]esigned to achieve the same level of quality assurance,” and the court agreed, determining that the “EPA is well-positioned to evaluate the proposal’s technical feasibility.” Case dismissed.

In RUTH RIVERA et al., Plaintiffs and Appellants, v. FOSTER FARMS, Defendant and Respondent, B264137, 2016 WL 7340021 (Cal. Ct. App. Dec. 19, 2016), plaintiff developed Guillain-Barré syndrome after contracting a bacterial infection allegedly from eating Foster Farms chicken. Trial court ruled for defendant and appellate court considered whether trial court erroneously excluded evidence of “Salmonella contamination in defendant’s facilities.” Court determined plaintiffs’ theory of liability “was predicated on a Campylobacter infection that occurred in late 2011.” Defendant showed absence of a “correlation between how Salmonella and Campylobacter are transmitted among chickens and between the treatment measures designed to kill each type of bacteria.” Appellate court concluded trial court had “discretion to exclude evidence relating to Salmonella” because it risked confusing the jury. Judgment for defendant affirmed.

LEGISLATIVE: 

H.J.Res. 107: Disapproving the rule submitted by the Department of the Interior known as the Stream Protection Rule. Resolution referred to the House Committee on Natural Resources. Sponsor: Rep. Evan Jenkins [R-WV3].

REGULATORY: Includes AMS, EPA, FWS, FDA, and NOAA rules and notices.

AGRICULTURAL MARKETING SERVICE:

Rule AMS is revising 18 U.S. grade standards for canned vegetables issued on or before August 3, 1998. Info here.

Rule AMS amends the inspection, certification and standards requirements for fresh fruits, vegetables and other products by adding an option to allow for electronic submissions of inspection applications. Details here.

Rule AMS proposes an amendment to Marketing Order No. 929, which regulates the handling of cranberries grown in the states of Massachusetts, Rhode Island, Connecticut, New Jersey, Wisconsin, Michigan, Minnesota, Oregon, Washington, and Long Island in the State of New York. Details here.

ENVIRONMENTAL PROTECTION AGENCY: Rule that Section 6 of the Toxic Substances Control Act provides EPA with several authorities for addressing risks from chemical substances and includes procedures that EPA must follow in doing so. Info here.

FISH AND WILDLIFE SERVCE:

Rule FWS amends the List of Endangered and Threatened Wildlife by removing the current species-level listing of the humpback whale, and in its place listing the Cape Verde Islands/Northwest Africa, Western North Pacific, Central America, and Arabian Sea distinct population segments as endangered and the Mexico DPS as threatened. Details here.

Notice FWS announces availability of the final revised Habitat Conservation Planning Handbook. Info here.

Notice FWS announces a public meeting of the Wildlife and Hunting Heritage Conservation Council. Details here.

FOOD AND DRUG ADMINISTRATION: Notice FDA seeks comment on the proposed collection of information regarding the Index of Legally Marketed Unapproved New Animal Drugs for Minor Species—21 CFR Part 516. Info here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION: Notice NOAA seeks comment on information collections asking the state education agencies for Maryland, Pennsylvania, Delaware, Virginia, West Virginia, and the District of Columbia to survey their local education agencies. Details here.