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

ANNOUNCEMENT: Mark your calendar for the next Agricultural & Food Law Consortium webinar, Wednesday, February 21st: Agricultural Nutrient Management: State Innovations and Local Responsibility. Details available here.

JUDICIAL: Includes food labeling and renewable energy issues.

FOREMOST FARMS USA, COOPERATIVE, Plaintiff, v. DIAMOND V MILLS, INC., Defendant, 16-cv-551-jdp, 2018 WL 813518 (W.D. Wisc. February 9, 2018) involved a trademark dispute as two parties claimed rights to the name NUTRITEK. Plaintiff uses NUTRITEK for demineralized whey powder and as an animal feed additive. Defendant uses NUTRITEK for fermented yeast powder. Both parties have federal registrations for their marks, but here, plaintiff claimed it is the senior user. Defendant moved for summary judgment, claiming no likelihood of confusion by consumers as the products are sold in “distinct markets.” Court considered plaintiff’s use of the term in the marketplace, despite acknowledging “[t]here is no dispute that Foremost sells demineralized whey powder as an ingredient for animal feed.” Court found how plaintiff brands its product “when it is sold for animal feed is genuinely disputed,” and denied defendant’s motion.

In WESTROCK VIRGINIA CORP., (f/k/a Meadwestvaco Virginia Corp.), Plaintiff, v. The UNITED STATES, Defendant, 2018 WL 817882, No. 15–355C (Fed. Cl. February 9, 2018), plaintiff sued regarding the amount of the Department of the Treasury’s (Treasury) grant payment to plaintiff “for reimbursement of certain costs incurred to place into service an open-loop biomass facility,” under the American Recovery and Reinvestment Act (ARRA). Plaintiff argued Treasury “improperly reduced the amount of this grant payment and it seeks to recover more than $39 million in additional grant funds.” Defendant argued plaintiff failed to provide a “reasonable allocation of it cost basis.” Court dismissed plaintiff’s claims after concluded that its methodologies for allocating cost basis “either fail to account for qualified property that is used for both qualifying and nonqualifying activities, or lack evidentiary support.”


MEETING: House Committee on Natural Resources. The Committee on Natural Resources has scheduled a markup beginning on Wednesday, February 14 at 10:15 a.m. (Location: LHOB 1324).

MEETING: House Committee on Natural Resources: Subcommittee on Oversight and Investigations Meeting. Oversight Hearing: “The Costs of Denying Border Patrol Access: Our Environment and Security.” February 15 at 10 a.m. (Location: LHOB 1324).

MEETING: House Committee on Natural Resources: Subcommittee on Energy and Mineral Resources Meeting. Legislative Hearing on H.R. 520 (Rep. Mark E. Amodei). February 15 at 2 p.m. (Location: LHOB 1324).

MEETING: House Committee on Natural Resources: Subcommittee on Federal Lands Meeting. Legislative Hearing on the following bills: H.R. 2591 (Rep. Austin Scott), To amend the Pittman-Robertson Wildlife Restoration Act to modernize the funding of wildlife conservation, and for other purposes. “Modernizing the Pittman-Robertson Fund for Tomorrow’s Needs Act of 2017” H.R. 4429 (Rep. Jack Bergman), To direct the Secretary of the Interior to reissue a rule relating to extension of the expiration dates for double-crested cormorant depredation orders, and for other purposes. “Cormorant Control Act” H.R. 4609 (Rep. Scott Tipton), To provide for the conveyance of a Forest Service site in Dolores County, Colorado, to be used for a fire station. “West Fork Fire Station Act of 2017″ H.R. 4647 (Rep. Jeff Fortenberry), To amend the Pittman-Robertson Wildlife Restoration Act to make supplemental funds available for management of fish and wildlife species of greatest conservation need as determined by State fish and wildlife agencies, and for other purposes. “Recovering America’s Wildlife Act” H.R. 4851 (Rep. Andre Cason), To establish the Kennedy–King National Historic Site in the State of Indiana, and for other purposes. “Kennedy–King Establishment Act of 2018.” February 15 at 2:30 p.m. (Location: LHOB 1334).

REGULATORY: Includes USDA, APHIS, EPA, FDA, ITA, NASS, NOAA, and NRCS rules and notices.

AGRICULTURE DEPARTMENT: Rule USDA is announcing the fee schedule for official inspection and weighing services performed under the United States Grain Standards Act (USGSA), as amended, in order to comply with FGIS regulations and the Agriculture Reauthorizations Act of 2015, and publishing the annual review of Schedule A fees calculation and the resulting fees that went into effect on January 1, 2018. Info here.

ANIMAL AND PLANT HEALTH INSPECTION SERVICE: Notice announces the Animal and Plant Health Inspection Service’s intention to request a revision to and extension of approval of an information collection associated with the regulations for the importation of eggplant from Israel into the continental United States. Details here.


Rule EPA is approving State Implementation Plan (SIP) revisions submitted by the State of Arkansas to address the requirements of sections 110(a)(1) and (2) of the Clean Air Act for the 2006 and 2012 fine particulate matter National Ambient Air Quality Standards. Details here.

Rule EPA is proposing to approve a State Implementation Plan  revision submitted on September 13, 2017, by the Commonwealth of Kentucky, through the Kentucky Division for Air Quality in support of the Commonwealth’s separate petition requesting that EPA remove the federal reformulated gasoline (RFG) requirements for Boone, Campbell, and Kenton counties. Details here.

Rule EPA is proposing to approve portions of three Texas State Implementation Plan (SIP) submittals pertaining to CAA requirements to prohibit emissions which will significantly contribute to nonattainment or interfere with maintenance of the 1997 and 2006 fine particulate matter National Ambient Air Quality Standards in other states. Info here.

Rule EPA is proposing to approve four revisions to the Texas State Implementation Plan (SIP) on December 12, 2016 and February 21, 2017, specific to air quality permitting and public notice for air quality permit applications. Info here.

FOOD AND DRUG ADMINISTRATION: Rule FDA is proposing to amend its postmarketing safety reporting regulations for approved new animal drugs to require that certain adverse drug experience and product/manufacturing defect reports be submitted to FDA in an electronic format that we can process, review, and archive. Details here.

INTERNATIONAL TRADE ADMINISTRATION: Notice ITA determines that Mutlu Makarnacilik Sanayi ve Ticaret A.S. (Mutlu), an exporter of certain pasta from Turkey and the sole respondent subject to this administrative review, had no bona fide sales during the period of review (POR) July 1, 2015 through June 30, 2016. Info here.

NATIONAL AGRICULTURAL STATISTICS SERVICE: Notice NASS will seek reinstatement of an information collection, the Farm and Ranch Irrigation Survey (FRIS). Revision to previous burden hours will be needed due to changes in the size of the target population, sampling design, and questionnaire length. Details here.


Rule NMFS is prohibiting directed fishing for Pacific cod by trawl catcher vessels in the Bering Sea subarea of the Bering Sea and Aleutian Islands management area (BSAI). Details here.

Rule NMFS is publishing this final rule to implement Amendment 16 of the Coastal Pelagic Species (CPS) Fishery Management Plan. Info here.

Notice Commerce will submit to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act. Title: West Coast Region U.S. Pacific Highly Migratory Species Hook and Line Logbook. Info here.

Notice seeking extension of a currently approved information collection. The seafood dealers who process red porgy, greater amberjack, gag grouper, black grouper, red grouper, scamp, red hind, rock hind, yellowmouth grouper, yellowfin grouper, graysby or coney during seasonal fishery closures for applicable species must maintain documentation. Info here.

NATURAL RESOURCES CONSERVATION SERVICE: Notice NRCS will deauthorize Federal funding for the South Branch Potomac River Subwatershed of the Potomac River Watershed project, Highland County, Virginia and Pendleton and Grant Counties, West Virginia. Details here.